GR 45417; (March, 1937) (Digest)
G.R. No. 45417 ; March 20, 1937
EMILIANA MORTERA VIUDA DE CALVO, plaintiff-appellant, vs. THE CITY OF MANILA; JUAN POSADAS, JR., as Mayor of said City; HIS EXCELLENCY MANUEL L. QUEZON, as Acting of the Department of Public Works and Commonwealth; and JAIME HERNANDEZ, as Auditor-General of said Commonwealth, defendants-appellees.
FACTS
Plaintiff Emiliana Mortera Viuda de Calvo filed a complaint to compel the defendants to comply with an alleged contract for the payment of the assessed value of her land, which the City of Manila had agreed to expropriate for a wharf extension. The procedural history involves a demurrer by the Mayor of Manila and a motion to dismiss filed by the Solicitor-General on behalf of the Secretary of the Department of Public Works and Communications (then Acting Secretary Manuel L. Quezon) and the Auditor-General. The lower court, on August 26, 1936, issued an order dismissing the case as against Secretary Quezon and Auditor-General Hernandez. Plaintiff did not appeal this specific order of dismissal. Later, plaintiff sought to substitute the former Acting Secretary Quezon with the permanent Secretary, Mariano Jesus Cuenco. The Solicitor-General opposed the substitution, arguing the case was already terminated as to the Secretary since no appeal was taken from the dismissal order.
ISSUE
Whether the lower court’s resolution permitting the substitution of the Secretary of the Department of Public Works and Communications should be sustained, given that the plaintiff did not appeal the order dismissing the case as against the original defendant, Acting Secretary Manuel L. Quezon.
RULING
No. The Court reconsidered its prior resolution allowing substitution. The order of August 26, 1936, dismissing the case as against the Secretary of the Department of Public Works and Communications was a final judgment as to that official. The plaintiff did not appeal from that order within the reglementary period (30 days for a new trial or 10 days for an appeal without a new trial). Consequently, the case was already terminated as to the Secretary. Therefore, the substitution was improper and was denied. The appeal was ordered to proceed excluding the Secretary as a defendant-appellee.
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