G.R. No. L-5181; February 24, 1953
FRANCISCA E. VDA. DE ESPARTERO and AMPARO ESPARTERO, petitioners, vs. JUAN LADAW, Judge of the Court of First Instance of Cagayan, Second Branch, and URBANO CASILLAN, respondents.

FACTS

In a cadastral case, respondent Urbano Casillan filed a petition under Section 112 of Act No. 496 (Land Registration Act) seeking correction or reconveyance of a lot covered by Original Certificate of Title No. 13080, claiming to be the real owner. Petitioners Francisca E. Vda. de Espartero and Amparo Espartero, heirs of the registered owner Victorino Espartero, opposed the petition on the ground of res judicata. On May 26, 1951, the court issued an order declaring Casillan the real owner and ordering the Esparteros to execute a deed of reconveyance. The Esparteros received the order on June 12, 1951. They filed a notice of appeal on June 14, filed an appeal bond on June 25 (serving a copy on Casillan’s counsel the same day), and had their record on appeal approved by respondent Judge Juan Ladaw on July 11, 1951, who then ordered its transmission to the Supreme Court. However, on August 30, 1951, Casillan filed a motion to dismiss the appeal on the ground that the appeal bond had not been approved by the court within the reglementary period. The respondent judge granted the motion and dismissed the appeal. The petitioners then filed this petition for mandamus to compel the judge to desist from dismissing the appeal and to transmit the record on appeal.

ISSUE

Whether the respondent judge erred in dismissing the appeal on the ground that the appeal bond was not approved by the court within the reglementary period for perfecting an appeal.

RULING

Yes. The petition for mandamus is granted. The Rules of Court (Rule 41) require that the notice of appeal, appeal bond, and record on appeal must be filed and served on the adverse party within thirty days from notice of judgment. The petitioners complied with these requirements within the reglementary period. The rules impose upon the appealing party the duty to file the appeal bond within the period, but the duty to approve the bond is imposed upon the court by Section 5, Rule 41. The failure of the court to approve the bond within the reglementary period does not justify dismissal of the appeal, as the petitioners had no duty to secure such approval. The case of Prisco vs. Castelo, cited by respondents, only holds that the appeal is not perfected and the trial court does not lose jurisdiction until the bond is approved; it does not hold that failure to obtain approval within the period warrants dismissal. Since the petitioners complied with all filing requirements within the period, the trial court retains jurisdiction and can still approve the appeal bond. Costs are awarded against respondent Urbano Casillan.