GR L 8612; (November, 1957) (Digest)
G.R. No. L-8612; November 29, 1957
JUAN TIONGKO, ROSARIO UMBAO DE TIONGKO and FILOMENA RUEDA DE UMBAO, petitioners, vs. HON. FRANCISCO ARCA, Judge of the Court of First Instance of Agusan, THE PROVINCIAL SHERIFF OF AGUSAN, ANA UMBAO DE CARPIO and DIOSCORO CARPIO, respondents.
FACTS
Petitioners (defendants below) seek to compel the respondent Judge to give due course to their appeal and to restrain execution of the judgment in Civil Case No. 75 for damages and partition. The decision, rendered in favor of respondents (plaintiffs below), was served on petitioners on March 27, 1954. On April 6, 1954, petitioners filed a motion for new trial, suspending the period to appeal. During this suspension, respondents filed a motion to correct errors and modify the judgment on April 28th. Both motions were denied on August 7, 1954, and notice was served on petitioners’ counsel on August 10, 1954. The remaining 20 days of the appeal period began to run anew on August 11, 1954, expiring on August 30, 1954. Petitioners filed their notice of appeal on August 13, 1954, but filed their record on appeal and appeal bond only on September 1, 1954, which was two days late. Respondents moved to dismiss the appeal for being perfected out of time and for execution, which the court granted on October 20, 1954. Petitioners’ motion for reconsideration was denied.
ISSUE
Whether the respondent Judge correctly dismissed the petitioners’ appeal for being perfected beyond the reglementary period.
RULING
Yes, the respondent Judge correctly dismissed the appeal. The rules governing appeals are mandatory. Under Rule 41, an appeal is perfected by serving and filing the notice of appeal, appeal bond, and record on appeal within thirty days from notice of judgment. The failure to file any of these requirements within the period is fatal and results in the dismissal of the appeal. The period became final on August 30, 1954, but petitioners filed their record on appeal and bond on September 1, 1954. The Court found no merit in petitioners’ claim that respondents’ incidental motions (a motion for execution filed August 13th and a motion to fix appeal bond filed August 25th, both denied within the appeal period) caused confusion or justified the delay. Petitioners could have protected their right by filing a timely motion for extension, which they failed to do. Consequently, the trial court lost jurisdiction, and its order dismissing the appeal and ordering execution was proper. The petition was dismissed.