* Cancellation and Correction of Entries in the Civil Registry

Dais vs. Garduno

G.R. No. L-25523, July 29, 1926, 49 Phil 165

FACTS: This is a petition for a writ of mandamus to compel the respondent judge to admit an appeal
interposed in a probate case by the petitioners.

In a probate proceeding, certain lands belonging to the estate of the deceased were ordered sold, over
the opposition of some of the heirs, for the purpose of obtaining funds for the payment of attorneys fees
alleged to be due. The heirs excepted to this order as well as to another order denying a motion for
reconsideration and the CFI refused to admit the appeal. The land was sold and the proceeds of the sale
paid over to the attorney. The heirs thereupon petitioned the Supreme Court for a writ of mandamus to
compel the lower court to admit the appeal. The respondent moved that the petition be dismissed on the
ground that the matters at issue had become moot questions by reason of the execution of the order of
sale and the payment of the proceeds to the attorney for the estate.

ISSUES: 1. Whether or not the order appealed from is a moot question.
2. Whether or not the order was premature for being interlocutory.

RULING: 1. No. If the payment was improvidently made, the money might be ordered refunded and that,
therefore, the order appealed from had not become a moot question.

2. An order issued without the consent of the heirs and directing the administrator of the estate of the
deceased person to proceed immediately with the sale of the land pertaining to the estate is not an
interlocutory order and is appealable. The court below may possibly have been misled by the provision in
section 123 of the Code of Civil Procedure, that no ruling, order or judgment shall "be the subject of
appeal to the Supreme Court until final judgment is rendered for one party or the other." This provision
applies to ordinary civil action, but that it cannot be accepted literally in regard to probate proceedings, is
best shown by the extensive provisions for special appeals contained in sections 773 to 783 of the same
Code."


* The case is under cancellation but is actually a probate case.