GR L 1321; (July, 1947) (Digest)
G.R. No. L-1321; July 31, 1947
ROBERTO LUPISAN, petitioner, vs. FRANCISCO ALFONSO, Judge of First Instance of Cavite, and SISENANDO ARGUIETA, respondents.
FACTS
The Justice of the Peace of Tanza, Cavite, rendered a judgment in favor of plaintiff Roberto Lupisan, ordering defendant Sisenando Arguieta to vacate the land and pay damages. The defendant was notified of the decision on December 28, 1945, and on the same day filed a motion for new trial, which was denied on January 13, 1946. On January 20, 1946, the defendant filed a “Motion for Reconsideration of the Decision,” arguing lack of jurisdiction, error in law, and judicial notice of palay prices. This motion was denied on February 5, 1946. The defendant perfected his appeal on February 6, 1946, without objection from the plaintiff.
Upon receipt of the record in the Court of First Instance, the defendant filed a motion to set for hearing the appeal on the jurisdictional question. The plaintiff moved to declare the defendant in default, which the court granted on July 19, 1946. The defendant moved for reconsideration. The plaintiff then moved to dismiss the appeal as having been perfected out of time. On August 24, 1946, the respondent judge granted the motion to set aside the order of default, gave the defendant time to answer, and denied the motion to dismiss the appeal.
The petitioner filed a joint petition for certiorari and mandamus: (a) for mandamus to compel the judge to dismiss the appeal as untimely; and (b) for certiorari to annul the order setting aside the default, alleging grave abuse of discretion.
ISSUE
1. Whether mandamus lies to compel the respondent judge to dismiss the defendant’s appeal.
2. Whether certiorari lies to annul the order setting aside the default declaration.
RULING
1. On the petition for mandamus: The petition is denied. Mandamus under Section 3, Rule 67, lies only to compel the performance of a specific duty enjoined by law or to prevent the exclusion from a right or office. The respondent judge’s duty to act on a motion to dismiss an appeal is discretionary, not a specific legal duty to grant it. A judge may be compelled to act on a matter, but not to decide in a particular manner. An erroneous decision is remediable by appeal, not mandamus.
2. On the petition for certiorari: The petition is denied. The respondent judge did not commit grave abuse of discretion in setting aside the order of default. The defendant’s motion attacking the jurisdiction of the justice of the peace, though not labeled as a demurrer or motion to dismiss, should be liberally construed as such under the Rules. Filing this motion within the 15-day period from notice of receipt of the record interrupted the time to plead under Section 4, Rule 8. Thus, the default was properly lifted, and no excess of jurisdiction or grave abuse attended the order.
Both petitions are denied.