G.R. No. 48813 ; August 2, 1942
ARISTON BUSTAMANTE, petitioner, vs. EMILIANO T. TIRONA, Judge of Court of First Instance of Manila and PERFECTO BUSTAMANTE, respondents.

FACTS

The petitioner, Ariston Bustamante, as administrator of the intestate estate of Bernabe Bustamante and special administrator of the intestate estate of Rufina Arevalo de Bustamante, intended to appeal from the lower court’s orders dated September 8 and November 8, 1941, which authorized the sale of certain property of the deceased spouses. He received notice of the November 8 order on November 12, 1941. On November 15, 1941, he filed a motion for reconsideration, which was denied on December 16, 1941; notice of this denial was served on him on December 23, 1941. On December 27, 1941, he filed his notice of appeal. However, he did not file the record on appeal until March 16, 1942, and did not actually serve a copy of the record on appeal on opposing counsel until May 26, 1942. Under Rule 41, section 3 of the Rules of Court, the petitioner should have perfected his appeal (by serving and filing the notice of appeal, appeal bond, and record on appeal) within thirty days from November 12, 1941, deducting the time the motion for reconsideration was pending; this meant the appeal should have been perfected by January 19, 1942. The respondent judge disallowed the record on appeal on the ground that it was filed out of time. The petitioner attributed his failure to perfect the appeal on time to the “unforeseen event of war then taking place.” The respondent judge found that the petitioner did not exercise reasonable diligence, noting that the Clerk of Court’s office reopened on January 23, 1942, and the Judges of First Instance of Manila were appointed under the actual administration on February 24, 1942, since which date all court branches had resumed functioning. The judge pointed to unjustifiable delay in filing the record on March 16 and serving it on May 26, 1942.

ISSUE

Whether the respondent judge committed a manifest and gross abuse of discretion in disallowing the petitioner’s record on appeal for being filed out of time, thereby warranting the issuance of a writ of mandamus to compel its approval.

RULING

No. The Supreme Court denied the petition for mandamus. The Court held that since the petitioner admittedly tendered his record on appeal after the lapse of the thirty-day reglementary period, the approval or disapproval of the record was not mandatory but purely discretionary with the respondent judge, to be exercised in the interest of justice. For mandamus to lie in such a case, it must be shown that the judge manifestly and grossly abused his discretion. The Court found no such abuse of discretion. Instead, it found sufficient the reason given by the respondent judge for disallowing the record. The Court emphasized that a party seeking to justify noncompliance with a legal requirement due to force majeure or unavoidable accident must exercise due diligence to supply the omission as soon as possible after the justifying circumstance ceases. The petitioner failed to do so. The writ of preliminary injunction issued by the Court was dissolved, with costs against the petitioner.