G.R. No. 49112 ; February 23, 1944
DOMINGO FOJAS, petitioner, vs. EULALIO GARCIA, Judge of First Instance of Cavite, and LEONARDO BURGOS, ET AL., respondents.

FACTS

The petitioner, Domingo Fojas, filed a civil case (No. 38) in the Court of First Instance of Cavite against Leonardo Burgos and his two minor children, Bonifacio and Isidro Burgos. The action sought to recover P1,000 from the minors, which their deceased mother, Ambrosia Fojas, had allegedly obligated herself to pay in lieu of one-half of a specific lot. On May 10, 1943, the respondent judge dismissed the complaint on the ground of prescription. Petitioner’s counsel received notice of this judgment and, three days later, filed a motion for reconsideration. This motion was denied by the court in an order dated June 10, 1943, which reiterated that the action had prescribed and added that if it had not, it should be presented in special proceedings for estate distribution. Upon receipt of notice of this denial, counsel filed a second motion for reconsideration, which was denied by the trial court on July 31, 1943; notice of this denial was received on August 6, 1943. On September 6, 1943, counsel filed a notice of appeal from the judgment of May 10, 1943, and from the orders of June 10 and July 31, 1943, denying the motions for reconsideration. On the same date, he filed his record on appeal and the appeal bond. The respondent judge, upon opposition, dismissed the appeal as having been filed out of time. Petitioner’s theory was that he was appealing only from the last order of July 31, 1943, and that the filing on September 6 was timely because the 30th day from August 6 was a Sunday. He admitted that if the time to appeal were counted from the notice of the original judgment, even with deductions for the pendency of his motions, his appeal would be out of time.

ISSUE

Whether the petitioner’s appeal was filed within the reglementary period.

RULING

The Supreme Court denied the petition. It held that the petitioner’s theory was untenable. The notice of appeal expressly stated an appeal from the judgment of May 10, 1943, as well as from the subsequent orders. The petitioner could not appeal solely from the last order denying his second motion for reconsideration while leaving the original judgment undisturbed. The subsequent orders did not set aside or substitute the original judgment but merely maintained it, adding fortifying reasons. Therefore, the time to appeal must be counted from May 28, 1943 (the date petitioner received notice of the judgment of dismissal), deducting the time during which the motions for reconsideration were pending. Under this computation, the record on appeal was filed four days late. The Court cited a precedent (Reyes vs. Court of Appeals, G.R. No. 48960 ) where an appeal was declared out of time for being filed even one day late. The petition was denied, with costs against the petitioner.