GR 43320; (April, 1935) (Digest)
G.R. No. 43320 ; April 11, 1935
V. SY KIAN (alias TAN YAO, alias ONG HUAT), petitioner, vs. EMILIO MAPA, Judge of First Instance of Tarlac, and P. ARROYO, Justice of the Peace of Moncada, Tarlac, respondents.
FACTS
Petitioner V. Sy Kian was convicted in the justice of the peace court of Moncada, Tarlac. Within the statutory period, one Salvador Marzan, who is not an attorney-at-law, filed a notice of appeal on behalf of the petitioner, signing as “Amicus Curiae.” The record does not show whether Marzan was authorized to act. The provincial fiscal moved to dismiss the appeal for not being properly taken. The Court of First Instance, after setting the motion for hearing and notifying the petitioner (who failed to appear), granted the motion and dismissed the appeal. The petitioner did not except to or appeal this dismissal. Only when the justice of the peace sought to enforce the sentence did the petitioner file this original action for certiorari.
ISSUE
Whether the writ of certiorari is proper to challenge the dismissal of the appeal by the Court of First Instance.
RULING
No. The petition for certiorari is denied. The Court of First Instance had jurisdiction to decide the fiscal’s motion to dismiss the appeal, and it was its duty to act on it. The petitioner was duly notified of the hearing on the motion but failed to appear. The order dismissing the appeal was a final order, against which the petitioner could have taken an exception and filed an appeal. Since a plain, speedy, and adequate remedy (ordinary appeal) was available but not availed of, certiorari is not warranted.
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