G.R. No. L-11443; September 30, 1959
MAXIMA GROSPE, TOMASA GROSPE, and HON. AGUSTIN P. MONTESA, Judge of the Court of First Instance of Nueva Ecija, petitioners, vs. COURT OF APPEALS and AUGUSTO UERA, respondents.

FACTS

Maxima and Tomasa Grospe filed a complaint for damages due to malicious prosecution against Augusto Uera in the Court of First Instance of Nueva Ecija. At the trial, Uera and his counsel failed to appear. The Grospe sisters presented their evidence, and the court rendered judgment ordering Uera to pay them damages. Uera’s counsel received a copy of the judgment on October 20, 1955. On November 11, 1955, Uera filed a petition for relief from judgment (treated as a motion for new trial), explaining his absence was due to excusable neglect as he was attending to a case before the Court of Appeals in Manila. This petition was denied by order dated November 16, 1955. Notice of this denial was sent by registered mail to Uera’s counsel, who received the first notice from the postmaster on November 28, 1955, but only claimed and received the mail on December 20, 1955. On December 20, 1955, Uera filed a motion for reconsideration, which was denied, with notice of denial served on January 16, 1956. On that same date, Uera filed a notice of appeal, appeal bond, and record on appeal, but these were rejected as having been filed out of time. Uera then filed a special civil action in the Court of Appeals seeking mandamus to compel approval of the record on appeal or certiorari to set aside the order denying his motion for new trial. The Court of Appeals held mandamus could not be granted as the appeal was not perfected on time, but granted certiorari, finding grave abuse of discretion in denying the motion for new trial, and ordered a new trial. The Grospe sisters petitioned the Supreme Court for review.

ISSUE

1. Whether Uera’s appeal to the Court of First Instance was perfected within the reglementary period.
2. Whether certiorari is available as a substitute for an appeal that could have been, but was not, taken on time.

RULING

1. No, the appeal was not perfected on time. The Supreme Court computed the period for appeal as follows: From October 20, 1955 (receipt of judgment) to November 11, 1955 (filing of motion for new trial), 21 days elapsed. Applying Rule 27, Section 8 of the Rules of Court, service of the notice denying the motion for new trial was deemed complete on December 3, 1955 (five days after Uera’s counsel received the first postmaster’s notice on November 28, 1955), due to his failure to claim the mail within five days. From December 3, 1955, to December 20, 1955 (filing of motion for reconsideration), 17 days elapsed. The motion for reconsideration did not suspend the running of the period to appeal. Thus, when Uera filed his notice of appeal on January 16, 1956, more than 30 days had passed from the notice of the judgment, making the appeal tardy. Even assuming notice was effective only on December 20, 1955, the appeal filed on January 16, 1956, was still late, as 21 days had already elapsed from the original period, and adding 26 days (from December 20 to January 16) totals 47 days.
2. No, certiorari is not available under these circumstances. The Supreme Court held that certiorari cannot be resorted to as a substitute for a lost appeal. Since Uera could have appealed the order denying his motion for new trial (and raised the issue of abuse of discretion therein) but failed to do so within the reglementary period, the remedy of certiorari was not available to him. The Court of Appeals, therefore, erred in granting certiorari.
DISPOSITIVE:
The decision of the Court of Appeals was set aside. The judgment of the Court of First Instance of Nueva Ecija became final and executory.