EN BANC

G.R. No. L-19360; July 26, 1963

SILVESTRA DEYMOS VDA. DE OYZON, petitioner,

vs.

HON. DEMETRIO G. VINZON, Judge of the Court of First Instance of Carigara, Leyte,
and CATALINO PANAO, respondents.

Porfirio C. Altres and Jesus Velasco for petitioner.

B. Cuesta and Villamor for respondents.

PAREDES, J.:

On July 30, 1960, petitioner herein filed with the CFI of Carigara, Leyte, Civil Case No. 635, for Annulment of Contract, Recovery of Property and Damages against respondent Catalino Panao. After trial on the merits, the lower court on September 26, 1961, rendered judgment against petitioner. Copy of the decisions was received by petitioner on October 4, 1961 and on October 18, 1961, a Notice of Appeal, Appeal Bond and Record on Appeal were filed with respondent Court.

Approval of the Record on Appeal was set for October 21, 1961, in the hearing of which, the disputed document was ordered to be included in the Record of Appeal. Respondent Court gave petitioner until October 28, 1961, to incorporate said document at the same time setting the hearing on the same date. On October 23, 1961, petitioner complied with the order of respondent Court and prayed for the approval of the record on appeal. At the hearing held on October 28, 1961, respondent Panao, again objected, claiming that the Motion for Ocular Inspection, the Ocular Inspection Report, Sketch-plan by the Commissioner and the approval of the Commissioner’s Report, should likewise be included in the Record on Appeal. The respondent Court issued the following Order:

As manifested by the attorney for the plaintiff, the record on appeal does not contain all the proceedings had in the case. The Court deems it very necessary that then be incorporated in the said record on appeal. After compliance thereof, the same will be approved ipso facto.

The above order was complied with on November 11, 1961 (within 14 days), when petitioner filed his Amended Record on Appeal, wherein the pleadings last mentioned were incorporated. On November 28, 1961, petitioner was furnished an Order of respondent court, dated November 18, 1961, stating —

The Court, after a careful consideration of the petition and the opposition thereto, finds and sustains that the record on appeal was not perfected within thirty days, and that the Court can not allow, in the use of its discretion, a further time and the said provision is mandatory.

FOR ALL THE FOREGOING, the Court denies the motion to approve the amended record on appeal for not meritorious.

Petitioner moved to reconsider the above order, claiming that the appeal had been perfected with the submission of the original record on appeal (Citing Olvido and Albaniel v. Ferrares and Judge, CFI, Negros Occidental. G.R. No. L-4276, Dec. 17, 1951; Vda. de Jizon v. Court of Appeals, G.R. No. 8454, April 13, 1956). On December 2, 1961, day of the hearing on the motion for reconsideration, counsel for respondent Panao, served upon petitioner an opposition thereto, stating —

As she did not file a motion to set aside the decision which is equivalent to motion for reconsideration or for new trial, the running of the period for perfecting an appeal had not been suspended and, being not suspended, the decision became final and executory on November 4, 1961. (Sec. 3, Rule 41, Rules of Court.) The filing of the amended record on appeal on November 11, 1961 was, obviously, out of time and the Court has no more jurisdiction over the same.

It is relevant to point out here that the alleged record on appeal plaintiff’s filed on October 18, 1961, 14 days from October 4, 1951 when she received notice of the decision, and which she could not perfect within 30 days was not a record on appeal at all for it lacked the following matters:

x x x x x x x x x

In the light of the above law, plaintiff’s record on appeal filed on October 18, 1961, being not in conformity herewith, is not a record on appeal at all but a mere scrap of paper. Even assuming that the record on appeal (amended), which she filed on November 11, 1961 was a legal record on appeal, the same cannot be given due course for having been filed outside of the reglementary period and the court has no more jurisdiction over the case, except to order a writ of execution, the decision having become final and executory.

On the same day, respondent Judge denied the motion for reconsideration, for “not being meritorious”. Claiming, that respondent Judge, in not approving the record on appeal as amended; and denying the motion for reconsideration, had gravely abused his discretion and unlawfully neglected to perform a duty enjoined by law and/or has unlawfully excluded the petitioner from the use and enjoyment of a right to which she was entitled and from which there was no other plain, speedy, and adequate remedy in the ordinary course of law petitioner filed the instant action, to compel the respondent judge to approve her record on appeal and give due course to her appeal.

This Court gave due course to the petition on January 18, 1962 and issued a preliminary writ of injunction.

The singular issue thus presented is — was the appeal perfected on time? It will be noted that the last order of the respondent Court, directing petitioner to include the pleadings, which respondent Panao wanted incorporated therein, did not contain any period within which to comply. It merely stated that the record on appeal as amended will be approved ipso facto after compliance thereof, which simply means that the incorporation of the pleadings should be made within a reasonable time. We believe that the compliance of the last order of respondent Court within 14 days, was done within a reasonable time. The fact that the amended record on appeal was submitted after the reglementary 30-day period, did not render the perfection thereof untimely, because the amended record on appeal is deemed to have been filed on the presentation of the original, which was done within the reglementary period.

Amendments in pleadings do not necessarily expunge those previously filed. Amendments made, more so when ordered by the court, relate back to the date of the original complaint, if, as in the case at bar, the claim asserted in the amended pleading arose out of the same conduct, transaction or occurrence. Amendment presupposes the existence of something to be amended and, therefore, the tolling of the period should relate back to the filing of the pleading sought to be amended . . . . (Phil. Ind. Church. etc. v. Juana Mateo and I.G. Ilaño, G.R. No. L-14793, April 22, 1961.)

WHEREFORE, the Writ is granted as prayed for, the orders denying the approval of the amended record on appeal and the motion for reconsideration are hereby set aside, and respondent Judge is ordered to approve the amended record on appeal and give due course to petitioner’s appeal. The writ of preliminary injunction heretofore issued, is made permanent. Without costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala and Makalintal, JJ., concur.

Batas Pinas