2.-Philippine National Bank v. Philippine

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EN BANC

[G.R. No. L-27005. January 31, 1969.]

PHILIPPINE NATIONAL BANK and DEVELOPMENT BANK OF THE


PHILIPPINES , petitioners, vs. PHILIPPINE MILLING CO. , INC. , HECTOR
TORRES , FRANCISCO GOMEZ and COURT OF APPEALS , respondents.

Jesus Avanceña for petitioner Development Bank.


C.E. Medina, J.M. Locsin, B.V. Coruña E. Magtalas for the Philippine National
Bank.
Araneta & Associates for respondents.

SYLLABUS

1. REMEDIAL LAW; APPEALS; APPEAL IN THE COURT OF APPEALS;


DISMISSAL THEREOF IS DISCRETIONARY WITH SAID COURT. — Petitioners' pretense
that when respondent failed to le a motion for extension when the third extension
granted them had expired, "the Court of Appeals already lost jurisdiction to try the case
and proceed further, but has not only the power but also the duty to dismiss the
appeal," is clearly untenable. Pursuant to Section 1 of Rule 50 of the Rules of Court, "an
appeal may be dismissed by the Court of Appeals, on its own motion or on that of the
appellee" upon the ground, among others, of "failure of the appellant . . . to serve and le
the required number of copies of his brief," within the reglementary period. Manifestly,
this provision confers a power and does not impose a duty. What is more, it is directory,
not mandatory.
2. ID.; ID.; ID.; ID.; NO ABUSE OF DISCRETION IN INSTANT CASE — Under
Section 1, Rule 50 of the Rules of Court, the Court of Appeals had discretion to dismiss
or not to dismiss respondents' appeal. Although said discretion must be a sound one,
to be exercised in accordance with the tenets of justice and fair play, having in mind the
circumstances obtaining in each case, the presumption is that it has been so exercised.
It was incumbent upon herein petitioners, as actors in the case at bar, to offset this
presumption. Yet, the record before us does not satisfactorily show that the Court of
Appeals has abused its discretion, much less gravely. Petitioners' assertion of abuse of
discretion is predicated solely upon the alleged "ministerial" duty of said Court to
dismiss the appeal therein, which is devoid of legal foundation.

DECISION

CONCEPCION , C.J : p

In their petition herein, the Philippine National Bank and the Development Bank of
the Philippines — hereinafter referred to, respectively, as the PNB and DBP — pray that
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writs of certiorari, prohibition and mandamus be issued annulling certain resolutions of
the Court of Appeals, in CA-G.R. Nos. 35253-R and 35254-R thereof, and prohibiting
said Court from assuming jurisdiction over these cases, as well as directing the Court
to dismiss the appeal therein taken. Said petitioners prayed, also, that a writ of
preliminary injunction be issued during the pendency of the present case, but such
auxiliary relief has not been granted, although the petition herein was given due course.
The aforementioned appeals had been taken by the Philippine Milling Co., Inc.,
Francisco Gomez, Hector Torres and Federico Santiago, from a decision of the Court of
First Instance of Manila, in Civil Cases Nos. 42133 and 42322 thereof, entitled,
respectively, "Philippine Milling Co. v. Development Bank of the Philippines, Philippine
National Bank and Register of Deeds of the Province of Mindoro Occidental," and
"Development Bank of the Philippines v. Philippine Milling Co., et al., "dismissing the first
case and ordering the defendants, in the second case, "particularly the Secretary of the
Philippine Milling Co., to transfer in the stock book of the corporation in the name of the
DBP the 15,000 shares of stocks covered by Certi cate of Stock No. 32, now in the
name of the respondents Hector A. Torres and Francisco M. Gomez, and to issue a new
certi cate of stock in lieu thereof in favor of the DBP," with costs against said
defendants in the Court of First Instance and appellants in the Court of Appeals, but
respondents in the present original action.
Upon the ling with the Court of Appeals of their printed record on appeal,
respondents herein were required to submit therein their brief as appellants, within the
reglementary period. After securing two (2) extensions thereof, the last of which was to
expire on November 11, 1966, respondents moved for a third extension of 15 days,
which was granted on November 14, but for 10 days only, to expire on November 21,
1966. On November 24, 1966, respondents asked a fourth extension of thirty (30) days
"counted from November 26, 1966." On the date last mentioned, the DBP — as one of
the appellees in the two cases — objected to said extension and moved to dismiss the
appeal, upon the ground that the extension had been sought late, the previous extension
having expired on November 21, 1966. Without touching upon this opposition and
motion to dismiss, on November 28, 1966, the Court of Appeals granted the 30-day
extension applied for, counted from November 26, 1966.
On December 1, 1966, the PNB — another appellee in CA-G.R. No. 35253-R-
moved to dismiss the appeal, upon the ground relied upon by the DBP. Both motions to
dismiss were denied by the Court of Appeals on December 2, 1966. Seemingly unaware
of the resolution to this effect, on December 5, 1966, the DBP led another motion
urging that its motion to dismiss be acted upon. The PNB, in turn, led, on December 7,
1966, a motion for reconsideration of the resolution of the Court of Appeals of
November 28, 1966. This motion for reconsideration was, on December 9, 1966, denied
by the Court of Appeals. Soon thereafter, or on December 23, 1966, the PNB and DBP
commenced the present action to annul said resolutions of the Court of Appeals dated
December 2 and 9, 1966, to restrain or prohibit the Court of Appeals from hearing the
aforementioned cases CA-G.R. Nos. 35253-R and 35254-R, and to compel said Court to
dismiss the appeals therein.
The petition herein is based upon the premise that, owing to respondents' failure
to le a motion for extension, on or before November 21, 1966, when the third
extension granted to them expired, "the Court of Appeals already lost jurisdiction to try
the case and proceed further, but has not only the power but also the duty to dismiss
the appeal." This pretense is clearly untenable, for, pursuant to Section 1 of Rule 50 of
the Rules of Court, "(a)n appeal may be dismissed by the Court of Appeals, on its own
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motion or on that of the appellee" upon the ground, among others, of "(f)ailure of the
appellant. to serve and le the required number of copies of his brief," within the
reglementary period. Manifestly, this provision confers a power and does not impose a
duty. What is more, it is directory, not mandatory.
Contrary to petitioners' assertion that, on November 22, 1966, "it became its
(Court of Appeals') ministerial duty to dismiss the appeal and remand the case for
execution to the Court of origin," the Court of Appeals had, under said provision of the
Rules of Court, discretion to dismiss or not to dismiss respondents' appeal. Although
said discretion must be a sound one, to be exercised in accordance with the tenets of
justice and fair play, having in mind the circumstances obtaining in each case, the
presumption is that it has been so exercised. It was incumbent upon herein petitioners,
as actors in the case at bar, to offset this presumption. Yet, the record before us does
not satisfactorily show that the Court of Appeals has abused its discretion, much less
gravely. Petitioners' assertion of abuse of discretion is predicated solely upon the
alleged "ministerial" duty of said Court to dismiss the appeal therein, which is devoid of
legal foundation. It is inconsistent with our views in Viuda de Ordoveza v. Raymundo 1
and Alquiza v. Alquiza. 2
WHEREFORE, the petition herein should be, as it is hereby dismissed and the
writs prayed for denied, with costs against the petitioners.
IT IS SO ORDERED.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Capistrano,
Teehankee and Barredo, JJ., concur. Fernando, J., did not take part.

Footnotes

1.63 Phil. 276.

2.L-23342, February 10, 1968.

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