GR L 13391; (May, 1960) (Digest)
G.R. No. L-13391; May 25, 1960
AUREA MATIAS, petitioner, vs. HON. PRIMITIVO L. GONZALES, in his capacity as Judge of the Court of First Instance of Cavite and AUGUSTO DE LA ROSA, respondents.
FACTS
Petitioner Aurea Matias filed a petition for “Writs of Mandamus and Prohibition, with Preliminary Injunction” to compel respondent Judge Primitivo L. Gonzales to approve and certify the record on appeal she filed in Special Proceedings No. 5213 (probate of the will of Gavina Raquel) and to prohibit the judge from further involvement in the case. The appeal sought to challenge the trial court’s order dated October 11, 1957, which granted a claim for attorney’s fees in favor of Atty. Augusto de la Rosa. Matias received a copy of this order on October 21, 1957. She filed a motion for reconsideration, which was denied by an order received by her counsel on November 25, 1957. On December 5, 1957, the clerk of court received Matias’s notice of appeal, appeal bond, and record on appeal. Respondent De la Rosa opposed the approval of the record on appeal and moved to dismiss the appeal, arguing the notice of appeal was filed out of time. On January 7, 1958, the respondent judge issued an order dismissing the appeal as filed out of time and denying approval of the record on appeal.
ISSUE
Whether the notice of appeal, appeal bond, and record on appeal were filed within the thirty-day reglementary period.
RULING
Yes, the appeal was perfected on time. The Supreme Court, in the interest of justice, conducted an inquiry with the post offices. Based on information from the Acting Postmaster of Cavite City, the mail matter (containing the notice of appeal, appeal bond, and record on appeal) under registry receipt No. 33488 was received by an employee of the Court of First Instance of Cavite on December 5, 1957. The Court accepted petitioner’s claim that she posted these documents at the Manila Post Office on December 4, 1957. Applying Section 1, Rule 27 of the Rules of Court, which states that the date of mailing as shown by the post office registry receipt is considered the date of filing, the filing was made on the 30th day. Consequently, the writ of mandamus is granted. The respondent judge or his substitute is directed to give due course to the appeal. No costs.