G.R. No. L-18266; June 30, 1962
FRANCISCO ROSKA and APOLONIA CAUSING ROSKA, petitioners, vs. HON. MODESTO R. RAMOLETE, Judge of the Court of First Instance of Cebu, FORTUNATA GABRINTINA, FULGENCIO BANICO KHO, LIBRADA MALINAO (spouses) and CEBU FIRE DAMAGE COMMISSION, respondents.

FACTS

The Cebu Fire Damage Commission filed an interpleader action regarding the apportionment of fire damage claims owed to Fulgencio Banico Kho, which were subject to claims by various creditors, including petitioners Francisco and Apolonia Roska and respondent Fortunata Gabrintina. On December 10, 1960, the trial court issued an order approving a compromise agreement that allocated specific amounts to each creditor. However, on December 17, 1960, acting on an urgent motion by Gabrintina, the respondent judge amended the order without the petitioners’ knowledge, reducing their share and increasing Gabrintina’s. Petitioners received this amended order on December 24, 1960, and immediately filed a motion for reconsideration, which was denied in an order dated January 9, 1961, received by petitioners on January 11, 1961.
Petitioners subsequently filed their notice of appeal, appeal bond, and record on appeal on January 12, 1961, February 7, 1961, and February 10, 1961, respectively. Respondent Gabrintina moved to dismiss the appeal, and the respondent judge granted the motion in an order dated March 9, 1961, prompting the petitioners to file this mandamus petition to compel the approval of their appeal.

ISSUE

Whether the petitioners’ appeal was perfected within the statutory period, thereby warranting its due course.

RULING

The Supreme Court granted the petition, ruling that the appeal was timely perfected. The legal logic centers on the computation of the appeal period. The 30-day period to appeal commenced on January 12, 1961, the day after petitioners received the order denying their motion for reconsideration on January 11, 1961. Counting 30 days from January 12, the period expired on February 10, 1961, the exact date petitioners filed their record on appeal. Thus, all required steps were completed within the reglementary period.
The Court rejected the contention that petitioners waived their right to appeal by withdrawing the original amount allotted to them under the initial compromise order. It clarified they withdrew the original, uncontested sum, not the reduced amount under the appealed order, and they had manifested their willingness to return it pending appeal, demonstrating an intent to protect their rights, not to abandon the appeal. Furthermore, the failure to serve a copy of the record on appeal on the adverse party on the day of filing was not a fatal defect. Citing precedent, the Court held such a service requirement is directory, not mandatory, when no substantial right of the adverse party is impaired, and its omission is not a statutory ground for dismissing an appeal. The respondent judge therefore acted with grave abuse of discretion in dismissing the timely appeal.