Giovanni N Bitoy

G.R. No. L-38006 May 16, 1978

Natalie de Las Alas et. al. petitioners

Vs
Court of Appeals, Honorable Benjamin Relova et.al. respondents

Case Facts:

Date Events
August 7, 1972 Court rendered a decision on civil case no. 2117
September 9, 1972 Petitioners received the court decision on civil case no. 2117
September 28, 1972 Petitioners files urgent motion for extension (MOE) of 15 days from October 9,
1972.
October 7, 1972 Petitioners filed the motion for reconsiderations (MOR) on the August 7, 1972
decision.
October 9, 1972 Last day of filing for motion of reconsideration (MOR) and/or perfecting the appeal
by the petitioners for the decision on August 7, 1972.
November 9, 1972 The judge of the lower court denied the motion for reconsideration (MOR)
November 16, 1972 A copy of the order of denial for MOR was furnished to the counsel of the
petitioners.
November 20, 1972 Petitioners sent their notice of appeal, an appeal bond thru registered mail to the
court and the respondent’s counsel.
Petitioners also files a motion of extension for 20 days within which to file their
record on appeal and was granted, that, under this extension the record on appeal
was due for filling on December 25, 1972.
December 8, 1972 Petitioners filed their record of appeal.
December 9, 1972 The respondents filed a motion to dismiss the appeal and to disapprove the record
on appeal on the ground that the notice of appeal, the appeal bond and the record
on appeal were filed out of time.
December 20, 1972 Petitioners filed their opposition to the said motion (motion to dismiss by the
respondents) and to disapprove record of appeal.
January 26, 1973 The Lower Court Judge granted the motion to dismiss and petitioners received the
copy on February 9, 1973.
March 9, 1973 The petitioners filed the motion for extension of 15 days from March 11, 1973 within
which to submit motion for reconsiderations.
March 11, 1973 The private respondents filed a motion for execution of the decision of the
respondent lower court judge dated August 7, 1972.
March 21, 1973 Petitioners filed their motion for reconsideration of the order of the respondent
lower court judge dated January 26, 1973, which, motion for reconsideration was
denied on June 18, 1973.
July 3, 1973 Petitioners filed a petition for certiorari and mandamus with preliminary injunction
before the respondent Court of Appeals.

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 September 12, 1973 After the private respondents filed their answer to the aforementioned petition
(petition for certiorari (Rule 65) and mandamus), respondent CA rendered its
decision – to dismiss the petition for the following reasons.

“After a careful review of the record and the arguments of opposing counsel we are
constrained to uphold the contention of the private respondents (their plaintiffs).
The order on October 2, 1972 granting the petitioners-defendant 15 days within
which to file a motion for reconsideration of the decision on August 7, 1972 is clear
and unequivocal. It is the filing of the motion for reconsideration of the decision on
August 7, 1972 and not for the perfecting the appeal. Consequently, when the
petitioners-defendant filed the motion for reconsideration on October 7, 1972 within
the original period, they did not avail the extension. This resulted to the waiver of
the extension the order on October 2, 1972 granting the extension became functus
officio.

2nd Issue: WON from the petitioners-defendants’ receipt of the order on November
9, 1972 on November 16, 1972, they have only 2 days to perfect the appeal. We think
the contention of the private respondents is correct.”

Rule 41, Section 3, Revised Rules of Court

Section 3: How appeal is taken. Appeal maybe taken by serving upon the adverse party and filing with the
trial court within 30 days from notice of order or judgement, a notice of appeal. The time during which a
motion to set aside the judgment or order or for a new to has been pending shall be deducted unless such
motion fails to satisfy the requirements of Rule 37.

Issues:

1. Whether or not the petitioners have still had 3 more days left of the period of appeal as of the
day they filed their motion for reconsideration on October 7, 1972 and this period was interrupted
and suspended upon such filling, and started anew on November 17, 1972, the next day after
November 16, 1972, when they received the respondent lower court Judge’s order of November
9, 1972 within which to perfect their appeal, since November 19, 1972 was Sunday.
2. Whether or not the private respondents is correct to say that when petitioners filed their motion
for reconsideration on October 7, 1972, they had only 2 days left of their period of appeal after
the receipt of the order denying the motion for reconsideration, and hence, the filing of the notice
of appeal, appeal bond and the motion for extension to file record on appeal on November 20,
1972 was beyond the reglementary period based on the rule of the last paragraph of Article 13 of
the New Civil Code which provides that in “computing a period, the first day should be excluded
and the last day included.”

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Held:

1. Yes, based on Lloren vs. De Vera 4 SCRA 637.

The Supreme Court agreed with the petitioners that they have up to October 9, 1972 within which
to perfect their appeal (Lloren vs. De Vera 4 SCRA 637). Their MOR was filed on October 7, 1972,
and in this date of filing must be added to the remainder of the period of the appeal, petitioners,
clearly had 3 more days left of their period of appeal October 7,8, and 9 1972. Therefore, if the
petitioners received the order denying their MOR on November 16, 1972 which day should also
be excluded from the period of appeal in him the Lloren Doctrine their period of appeal extended
up to November 19, 1972, since Nov 19, 1972 is a Sunday, there period to perfect their appeal
was extended ipso jure to the first working day immediately following after, i.e. November 20,
1972. Since the petitioners filed their notice of appeal and appeal bond on November 20, 1972
and their record on appeal within the period extended by respondent lower court judge, it follows
that the petitioners perfected their appeal within the legal period.
As per SC’s logic the MOR has been pending since October 7, 1972, the date of its filing and
remained so until November 16, 1972, when the petitioners received the order of denial of their
MOR. Consequently, making the MOR pending for a period of 41 days – 25 days for October and
16 days for November. Deducting 41 days from 61 days this will result to 27 days, therefore the
petitioners still have 3 days more within which to perfect their appeal.

2. No, based on the same logic applied on the above cited case.
3. Regardless, however, of the findings and even assuming that the respondent’s position was
correct. The SC contends “we find that one-day delay does not justify the dismissal of the appeal
under the circumstances obtaining in this case. The provision of section 1, Rule 50 of the Rule of
Court which provides specificic grounds for dismissal of appeal manifestly confers a power and
does not impose a duty, what is more it is directory and not mandatory. Hence, it should be
exercised with a great deal of circumspection, considering all the attendant circumstances.
We note from the records the absence or lack of element of intent to delay the administration of
justice on the part of the petitioners. Petitioners’ counsel exercise cautiousness, concern and
punctuality in the prosecution of the appeal. Even, assuming further that the petitioners’ counsel
committed a mistake in the computation of the period of appeal the error is not clearly
attributable to negligence or bad faith and should not be counted against the petitioners. Lastly,
litigations should, as much as possible, be decided on their merits and not on technicality.”

Ruling:

Wherefore, the decision of the respondent Court of Appeals, promulgated on September 12, 1972, and
its resolution denying the motion for reconsideration, dated December 13, 1973, are hereby REVERSED
AND SET ASIDE. The respondent trial court is hereby directed to approve petitioners bond and record on
appeal and to certify the said appeal to respondent court of appeals, for the resolution of the case on its
merits. No costs.

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