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CIVPRO – RULE 41 – MR FILED ON LAST DAY OF 15-DAY PERIOD On 28 February 1997, respondents filed a motion for new trial

, respondents filed a motion for new trial for the retaking and
presentation of testimonial and documentary evidence on the ground that the reconstitution
G.R. No. 137122 November 15, 2000 of the missing stenographic notes was no longer possible considering that the court
stenographers who had transcribed the testimony of witnesses by then since retired from the
service, their whereabouts unknown.
THE COURT OF APPEALS, BERNARDO, DOMINADOR, HERMOGENA LUCIA, and MARIA On 22 April 1997, petitioner filed a motion to dismiss the appeal and an opposition to the
GATCHALIAN, and the HEIRS OF GREGORIO GATCHALIAN: ROLANDO, CONRADO and motion for new trial filed by respondents contending that the appeal was filed out of time and
ARTURO, all surnamed GATCHALIAN, respondents. that the remedy for new trial could not be availed of since it was filed long after the
reglementary period to appeal had lapsed.
The trial court, in its order of 16 July 1997 resolved the incidents in this wise; thus:
"WHEREFORE, premises considered, the Motion for New Trial prayed for by the plaintiffs being
based on meritorious grounds is hereby GRANTED.
In a decision, dated 18 May 1998, the Court of Appeals in C.A. G.R. No. 46385, entitled "Manila
Memorial Park Cemetery, Inc., vs. the Honorable Luis R. Tongco,," dismissed a petition
for certiorari and mandamus brought by petitioner against the Honorable Luis Tongco in his "Accordingly, the Motion to Dismiss Appeal filed by defendant Manila Memorial Park is hereby
official capacity as the presiding judge of the Regional Trial Court, Branch 155, of Pasig City. DENIED for being moot and academic and barred by laches.

The factual and case antecedents were synthesized by the appellate court in its assailed "Further, considering that the Motion For New Trial filed by plaintiff has been favorably acted
decision. upon for the above reasons, the Notice of Appeal interposed by plaintiff on December 7, 1989
is hereby declared MOOTED."2
On 04 June 1975, respondents filed an action for reconveyance and recovery of parcels of land
against petitioner Manila Memorial Park Cemetery, Inc., and its co-defendants United Housing The trial court ratiocinated that the final resolution of the case could not be held in abeyance
Corporation, Victorino Hernandez, heirs of Aurelio de Leon, and heirs of Nicolas Gatchalian. indefinitely nor could petitioner's motion to dismiss the appeal still be entertained after their
having waited for eight years before raising the issue.
After a protracted litigation, the trial court, through then Presiding Judge Efricio B. Acosta,
dismissed the complaint in a decision, dated 17 June 1983, thusly: Petitioner moved to reconsider, but to no avail, the trial court's order of 16 July 1997.
Dissatisfied, petitioner elevated the matter via a petition for certiorari to the Court of Appeals
insisting that the trial court had acted capriciously and whimsically, as well as with grave abuse
"WHEREFORE, in view of the foregoing, the court hereby dismisses the complaint of the
of discretion amounting to lack or excess of jurisdiction, in holding that it was barred from
plaintiff for lack of merit and having been barred by the statute of limitations and by laches.
assailing the timeliness of the appeal and in granting respondent's motion for new trial long
The counterclaim of the defendants are likewise dismissed for lack of evidence." 1
after the decision of the trial court had already become final and executory.
Respondents received a copy of the decision on 04 July 1983. On 19 July 1983, the last day of
The Court of Appeals rendered its now assailed decision, dated 18 May 1998, dismissing the
the prescribed fifteen-day period for appeal, private respondents filed a motion for new trial
petition on the ground that petitioner was estopped by laches from assailing the notice of
and/or reconsideration. The motion was denied by the trial court in its order of 03 October
appeal which had meanwhile been given due course by the trial court. The appellate court
1989. A copy of the order was received by respondents on 28 November 1989.
On 07 December 1989, respondents filed a notice of appeal and, on 11 December 1989, the
"It is undisputed that petitioner filed the motion to dismiss appeal after almost eight years the
trial court gave due course to the appeal and directed the transmittal of the records of the
respondent court gave due course to respondent's notice of appeal. Petitioner did not raise
case to the Court of Appeals. The records of the case, however, were not transmitted to the
the issue of the timeliness of the appeal at the time the notice of appeal was filed by
appellate court due to missing transcript of stenographic notes. On 23 April 1996, the trial
respondents on December 7, 1989. During the conference on April 23, 1996 for the completion
court required the parties to appear in conference. Almost a year had lapsed but the missing
of the record, petitioner remained silent on the issue. Instead, it voluntarily asked for time to
stenographic notes were still not submitted to the trial court.
locate the missing transcript of records to be submitted to respondent court, which petitioner
never accomplished without explanation. It was only after respondents filed on February 28,
1997 a motion for new trial for the retaking or presentation of testimonial evidence that originally filed in the regional trial court, the fifteen-day period for appeal prescribed by
petitioner started questioning the appeal essayed by respondents. Section 39 of B.P. 129 and Section 19(a) of the Interim Rules is interrupted or suspended by a
motion for new trial or reconsideration duly filed.6 If the motion for new trial or
"Obviously, petitioner is estopped by laches from assailing the notice of appeal which has long reconsideration is denied, the moving party has only the remaining period from notice of
been given due course by respondent court. The motion to dismiss appeal was filed too late." 3 denial within which to file a notice of appeal. No motion for extension of time to file such a
notice of appeal is neither required nor allowed.7 This rule has been substantially reproduced
in Section 3, Rule 41 of the 1997 Rules of Civil Procedure; thus:
In its instant petition, petitioner argues that -

"Sec. 3. Period of Ordinary Appeal - The appeal shall be taken within fifteen (15) days from
notice of the judgment or final order appealed from. Where a record on appeal is required,
the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from
"The period of appeal shall be interrupted by a timely motion for new trial or reconsideration.
No motion for extension of time to file a motion for new trial or reconsideration shall be
"II. allowed."

"THE COURT OF APPEALS (HAS) ERRED IN HOLDING THAT THE PETITIONER IS ALREADY Accordingly, when respondents filed their motion for reconsideration on the last day of the
ESTOPPED BY LACHES FROM ASSAILING THE TIMELINESS OF THE APPEAL OF THE PRIVATE fifteen day prescribed period for taking an appeal, which motion was subsequently denied,
RESPONDENTS. they only had one (1) day from receipt of a copy of the order denying the motion for
reconsideration, within which to perfect their appeal, i.e., excluding the day of receipt and
"III. including the next day.8 Since respondents had received a copy of the order denying their
motion for reconsideration on 28 November 1989, the filing of the notice of appeal on 07
"THE COURT OF APPEALS (HAS) ERRED IN SANCTIONING THE ORDER OF THE TRIAL COURT December 1989 came much too late for by then the judgment had already become final and
The perfection of an appeal in the manner and within the period prescribed by law is not only
Anent the first assigned error, petitioner maintains that compliance with the reglementary mandatory but jurisdictional upon the court a quo, and the failure to perfect that appeal
period for perfecting an appeal is not merely mandatory but jurisdictional, and it is thus never renders its judgment final and executory.9 A fundamental precept is that the reglementary
too late to assail the timeliness of an appeal. Respondents, upon the other hand, urges the periods under the Rules are to be strictly observed for being considered indispensable
Court to sustain the assailed decision asseverating that in view of the meritorious character of interdictions against needless delays and an orderly discharge of judicial business. The strict
their appeal, a stringent application of the rules would defeat substantial justice. compliance with such periods has more than once been held to be imperative, particularly and
most significantly in respect to the perfection of appeals.10 The finality of a judgment becomes
The petitioner has it. a fact upon the lapse of the reglementary period to appeal if no appeal is perfected, 11 and the
court loses all jurisdiction over the case,12 and it becomes the ministerial duty of the court
concerned to order execution of the judgment.13 After the judgment has become final and
Concededly, respondents received on 04 July 1983 a copy of the decision of the trial court,
executory, vested rights are acquired by the winning party. Just as the losing party has the right
dated 17 June 1983, dismissing its complaint. Conformably with Section 39 of B.P. 129, like
to file an appeal within the prescribed period, so also the winning party has the correlative
Section 19(a) of the Interim Rules and Guidelines, respondents had up to 19 July 1983 within
right to enjoy the finality of the resolution of the case.14
which to file an appeal. On said date, respondents, instead of filing their notice of appeal,
moved for the reconsideration of the decision. The motion for reconsideration was denied by
the trial court in its order of 03 October 1989, and a copy of the order was received by The Court is not unmindful of highly exceptional cases where it has allowed a relaxation of the
respondents on 28 November 1989. Respondents failed to file a notice of appeal until 07 rules on the application of the reglementary periods of appeal.
December 1989.
In Ramos vs. Bagasao,15 the Court excused the delay of four days in the filing of the notice of
In Lacsamana vs. Intermediate Appellate Court,5 the Court has ruled that in an ordinary appeal appeal because the questioned decision of the trial court had been served upon appellant
from the final judgment or order of a metropolitan or municipal trial court to the regional trial Ramos at a time when her counsel of record was already dead. The new counsel could only file
court, and from the regional trial court to the Court of Appeals in actions or proceedings the appeal four days after the presecribed reglementary period was over. In Republic vs. Court
of Appeals,16 the Court allowed the perfection of an appeal by the Republic despite the delay legality of the appeal may be raised at any stage of the proceedings in the appellate court, and
of six days to prevent a gross miscarriage of justice since the Republic stood to lose hundreds the latter is not precluded from dismissing the petition on the ground of its being out of time.
of hectares of land already titled in its name and had since then been devoted for public A recognition of the merit of the petition does not necessarily carry with it any assumption or
purposes. In Olacao vs. National Labor Relations Commission,17 a tardy appeal was accepted conclusion that it has been timely filed.25 Strangely, respondents did not attempt to explain
considering that the subject matter in issue had theretofore been judiciallly settled with finality the reason for the delay and would, instead, lay the blame on petitioner for its failure to assail
in another case, and a dismissal of the appeal would have had the effect of the appellant being the timeliness of the appeal.1âwphi1
ordered twice to make the same reparation to the appellee.18 These instances indeed
constituted exceptional circumstances that would hardly find parallel elsewise. It may here be worthwhile to reiterate the pronouncement in Galima vs. Court of Appeals 26
that an error by counsel in ascertaining the appeal period will not arrest the finality of the
Not being a natural right or a part of due process, but merely a statutory privelege, the right judgment.
to appeal may be exercised only in the manner and in accordance with rules provided
therefor.19 A failure to perfect an appeal within the prescribed period has the effect of Given the foregoing, the Court sees no further need to resolve the other issues raised in the
rendering final the judgment of a court, and an appellee's failure to file a motion for dismissal petition.
of appeal in the court of origin before the transmittal of the record to the appellate court does
not constitute a waiver on his part to interpose such objection.20
WHEREFORE, the instant petition is GRANTED, and the assailed decision of the Court of
Appeals is SET ASIDE.
Should petitioner be now held estopped from assailing the timeliness of the appeal after the
lapse of almost eight years from the time the notice of appeal was approved by the trial court
on 11 December 1989? Citing Dequito vs. Lopez21 and Carillo vs. Allied Workers’ Association
of the Philippines,22 respondents would contend in the affirmative.

The cases invoked are not squarely applicable.

In Dequito, defendant-appellees moved to dismiss the appeal after plaintiff-appellant Dequito

had filed his appeal brief with the appellate court and solely on the ground that the record on
appeal did not disclose on its face that the appeal was timely perfected. Similarly, in Carillo,
petitioners had already submitted their brief when the respondents tried to question the
timeliness of the appeal, and there was no showing that the appeal was interposed beyond
the reglementary period for its filing. In the instant case, respondents had not once denied
that their appeal was, in fact, interposed beyond the prescribed period.

The doctrine of estoppel is predicated on, and has its origin in equity which, broadly defined,
is justice according to natural law and right. It is a principle intended to avoid a clear case of
injustice. The term is hardly distinguishable from a waiver of right. Estoppel, like its
counterpart, must be unequivocal and intentional for, when misapplied, it can easily become
a convenient and effective means of injustice. Estoppel is not understood to be a principle that,
as a rule, should prevalently apply but, as it concededly is, a mere exception from the standard
legal norms of general application that can be invoked only in highly exceptional and justifiable

Petitioner could not be faulted for its failure to move for the dismissal of the appeal at an
earlier time acting upon the assumption, albeit erroneously, that the appeal was filed on time
relying on the order, dated 11 December 1989, of the trial court declaring that the notice of
appeal had been filed within the reglementary period. Neither can the conduct of petitioner's
counsel during the conference called by and held before the trial court be regarded as a waiver
of its right to contest the seasonableness of the appeal. A motion contesting a late appeal may
be filed before the appellate court even after the transmittal of the records therein. 24 The
CIVPRO – RULE 41 – WHEN APPEAL ALLOWED EVENIF PERIOD HAS EXPIRED The Supreme Court has pointed out that a lower court should not be cited as having acted
with grave abuse of discretion simply because it has correctly but strictly applied the rules
G.R. No. 128421 October 12, 1998 (Castro vs. CA, supra). However, in this case, We hold that the denial of the notice of appeal,
filed one day late despite the valid excuse presented before it, which excuse was not found
to be incredible or concocted, was arbitrary and amounted to a grave abuse of discretion on
the part of the trial judge, being in clear disregard of established precedents enunciating a
liberal policy towards invocation of the right to appeal as an essential part of our judicial
system. 1
GILBERTO A. PASTORAL, respondents.

Now, petitioner prays that we again review the facts and circumstances on record to
determine whether the respondent court's application of the exception instead of the general
rule measures up to the extraordinary circumstances held sufficient in the decisions of the
MARTINEZ, J.: Court.

Petitioner has filed this motion for reconsideration of the decision dated January 26, 1998, After a meticulous re-examination of the background facts, We find that the respondent court
denying the petition, on the ground that: was in error; thus, we reconsider our earlier decision and grant the motion for reconsideration.

SAID DECISION IS NOT SUPPORTED BY THE FACTS AND CIRCUMSTANCES ON RECORD We are constrained to agree with petitioner that the reasons relied upon by the respondent
AND\OR IS CONSTRARY TO THE LAW AND JURISPRUDENCE APPLICABLE TO THE MATTER IN court for the relaxation of the rule of the timeliness in the perfection of an appeal in this case
CONTROVERSY. are not as compelling as was our previous assessment. The stringent rule can be relaxed only
when the demands of substantial justice so warrant. As correctly argued by petitioner; thus:
In essence, movant posits the view that while the mandatory and jurisdictional nature of the
timely perfection of an appeal is subject to well-recognized exceptions, the circumstances . . . that may be done only when, in the varying but consistent language of jurisprudence,
reflected in this case do not come close to the exceptional circumstances that could justify a "to do so would serve the demands of substantial justice and in the exercise of (our) equity
turn about from the otherwise strictly followed general rule. jurisdiction" (Pacific Asia Overseas Shipping Corporation vs. NLRC, et al., 161 SCRA 122, 130),
or, when there are "strong considerations of substantial justice" (Vda. de Crisologo, et al. vs.
Upon perusal of the motion for reconsideration and the comment thereto filed by the public Court of Appeals, et al., 158 SCRA 236); or, "on the basis of strong and compelling reasons,
respondent, through the Office of the Solicitor General, we have been persuaded to take a such as serving the ends of justice and preventing a grave injustice (Paramount Vinyl
second look at the facts and circumstances obtaining herein. Products Corporation vs. NLRC, et al., 190 SCRA 525, 534); or, "on grounds of substantial
justice and equity, the delay must, however, be excusable and the appeal must be impressed
For a better perspective of the case at bar, we go back to the petition for certiorari filed before with merit" (Acena vs. Court of Appeals, et al., 193 SCRA 623, 630): Some such strong and
the respondent court, which, as in petitions of this nature, the focus of the inquiry invariably compelling reasons are exemplified in Republic vs. CA, 83 SCRA 453, where the six-day delay
is whether or not the trial court acted without or in excess of jurisdiction or with grave abuse in the filing of a record on appeal was excused because, among others, there were involve a
of discretion amounting to lack of jurisdiction in denying due course to respondent National serious issues of jurisdiction and the application of defenses like prescription, statute of
Power Corporation's appeal. The threshold issue posed for resolution, therefore, is whether limitations and laches against the Republic which would place technicality over substance if
or not, in view of the facts and circumstances obtaining as spread out on the record, private the dismissal of the appeal is upheld; in Ramos vs. Bagasao, 96 SCRA 395, where the four-
respondent's tardiness in the filing of the notice of appeal from the trial court's decision may day delay was justified because the plaintiff's lawyer died and the decision was served
be considered as an exception to the general rule that failure to appeal on time is fatal. directly upon plaintiff who still had to engage the services of a new counsel to take the
appeal on her behalf; in Siguenza vs. Court of Appeals, 137 SCRA 570, where the delay in the
We upheld the respondent court when it ruled that the failure of the National Power filing of the record on appeal was overlooked and this Honorable Court opted to already
Corporation to file the appeal on time falls under the exception to the general rule despite the decide the case on the merits inasmuch as, on its face, the appeal appeared to be impressed
fact that the perfection of an appeal within the period fixed by law is not only mandatory but with merit; in Cortes vs. Court of Appeals, 161 SCRA 444, where the seven-day delay in the
also jurisdictional. Resultantly, the respondent court opined that, in denying due course to filing of the notice of appeal was excused because the party's counsel, who was appointed
respondent's appeal and directing the issuance of a writ of execution, the respondent judge RTC Judge, failed to file a withdrawal of appearance such that notice of the decision was still
acted with grave abuse of discretion. served upon him and it was only after he returned to his former law office from his station
that he learned of`said decision and also only after a new counsel was engaged that the
notice of appeal was filed; and, in Orata vs. IAC, 185 SCRA 148, where the delay was likewise
Thus, respondent court said:
overlooked and this Honorable Court resolved the case on its merits because, in addition to
the basic merits of the main case, the petition embodied circumstances that warranted Upon perusal of the aforequoted affidavit, we overlooked or otherwise failed to consider the
heeding the petitioner's plea for justice.2 failure of Ronald Lapuz to comply with the strict instruction of Atty. Collado, respondent
Napocor's counsel, for the immediate delivery to his secretary of any order in the case. It might
However, a re-examination of the reasons advanced by private respondent National Power be true that when he received the copy of the order, it was already 4:54 p.m., Friday. Yet, there
Corporation to justify the tardiness of their filing the notice of appeal before the trial court, is nothing on record or in the affidavit that Atty. Collado or the latter's secretary was no longer
cannot be catalogued under the aforecited exceptions to the general rule. in the office. Lapuz states that he placed the order inside the drawer of his table believing that
he could give the order the next succeeding working day (Monday). But then, Ronald Lapuz
could have at least given the order to the secretary of Atty. Collado the following day, Saturday,
The respondent court said that "the notice of appeal was admittedly filed one (1) day late."
since there is no showing that Saturday was a non-working day, and consequently said denial
However, it was convinced that under the circumstances of the case, the delay of one (1) day
order could have been transmitted on said day to Atty. Collado or his secretary.
in filing the appeal is justified and should be excused by the court a quo . . . ." The reasons for
this, the respondent court so holds, was due to the big amount involved in the case; and, that
"the one (1) day delay arose from an honest mistake or unforeseen accident . . . ." 3 Furthermore, absent in the record is any independent proof of the alleged indisposition of
Ronald Lapuz. To his affidavit, he attached an approved leave of absence form for two (2) days
(Monday and Tuesday) to prove that he was absent on those days due to illness. However,
In justifying the one (1) day delay, the respondent court took into account the affidavit of
there is no medical certificate to attest to the fact of illness, thus, there is no competent
Ronald Lapuz, the receiving clerk, pertinent portions of which is quoted as follows:
supporting proof of the alleged extraction of three front teeth.
xxx xxx xxx
Another capital sin of Ronald Lapuz is his admission that he "forgot to deliver immediately the
copy of the order . . .," despite the instruction of Atty. Collado for him to "immediately deliver
2. On August 23, 1996 at 4:54 p.m. Friday, I received a copy of the Order dated August 2, to his secretary any order" in this case. Forgetfulness is neither accident, mistake or excusable
1996 issued by the RTC-Branch 101, Quezon City, entitled Trans International vs. NPC, et al; negligence which would warrant justification for the one (1) day delay in filing the notice of
appeal. We quote with approval the citation made by movant in the case of Philippine Air Lines,
3. Since it was already almost 5:00 p.m., I placed the said order inside the drawer of my table Inc. vs. Arca, 19 SCRA 300, 302-303, viz.:
together with some other documents;
. . . The excuse offered by respondent Santos as reason for his failure to perfect in due time
4. On August 26, 1996, that was Monday I was unable to report to the office because of his appeal from the judgment of the Municipal Court, that counsel's clerk forgot to hand him
severe pain in my front jaw as a result of the extraction of my three front teeth, causing the court notice, is the most hackneyed and habitual subterfuge employed by litigants who
severe pain in my body; fail to observe the procedural requirements prescribed by the Rules of Court. The uncritical
acceptance of this kind of common-place excuses, in the face of the Supreme Court's
5. I forgot to deliver immediately the copy of the Order to Atty. Collado nor to his secretary repeated rulings that they are neither credible nor constitutive of excusable negligence
on August 23, 1996, despite his instruction to me to immediately deliver to his secretary any (Gaerlan vs. Bernal, L-4039, 29 January 1952; Mercado vs. Judge Domingo, L-19457, 17
order in this case, Trans International vs. NKPC et al, RTC-Quezon City and Sps. Lim vs. NPC, December 1966) is certainly such whimsical exercise of judgment as is a grave abuse of
et al RTC-Lingayen as it was already almost 5:00 p.m. and believing that on the next discretion.5
succeeding working day, I could report to work, but incidentally, I got sick and was able only
to report on August 28, 1996 as per hereto attached copy of my approved sick leave; Consequently, the liberality extended to respondent National Power Corporation in
considering the tardiness of filing notice of an appeal as an exception to the mandatory and
xxx xxx xxx jurisdictional rule on the requirement for the timely perfection of an appeal cannot be given
consideration. And, as petitioner again correctly contends, falling foursquare to the situation
7. My failure to deliver the said order to the secretary of Atty. Wilfredo Collado on the next presented is our ruling in Velasco vs. Ortiz, et al. 184 SCRA 303, 310:
working day, August 26, 1996 was due to my aforesaid illness which incapacitated me from
reporting to work on August 26 & 27, 1996.4 Fourth. Neither a mistake of law . . . nor the fact that the delay in the filing of the appeal
bond was only one day, nor both of these circumstances together, are legal justifications for
Petitioner makes a rather strong case that the respondent court (and we add, this Court) erred non-compliance with the rule. If mistake of law were excusable, the law would be
in concluding that the one-day delay in the filing of the notice of appeal was sufficiently unenforceable. That is why it is expressly provided that "ignorance of the law does not
explained. excuse anyone from compliance therewith (Art. 2, Civil Code). If, without justification,
transgression of the deadline fixed by the rule for perfecting an appeal may be sanctioned,
the public policy behind the rule would necessarily have to be abandoned, and the litigants
would be at a loss to know exactly when they may obtain execution of judgments or consider
the case terminated. On the other hand, when the law fixes thirty days, we cannot take it to And unfortunately, the plaintiffs claim for damages are all substantiated by the testimonies
mean also thirty-one days. If that deadline could be stretched to thirty-one days in one case, as well as documentary evidence presented and identified by plaintiff's witness, namely: Mr.
what would prevent its being further stretched to thirty-two days in another case, and so Syed Hasim Zaide, Miss Erlinda Cross and Myrna Magdaluyo in the hearing of this case. 9
on, step by step, until the original line is forgotten or buried in the growing confusion
resulting from the alterations? That is intolerable. We cannot fix a period with the solemnity Apparently, there was basis for the award of damages. Hence, it is premature to speculate on
of a statute and disregard it like a joke. If law is founded on reason, whim and fancy should the merits of the aborted appeal, since such a speculation would be wanting in factual basis.
play no part in its application.
WHEREFORE, the petitioner's motion for reconsedaration of the decision dated Janaury 26,
We do not agree that "the ends of justice would be better subserved" by allowing an appeal 1998, is GRANTED, and the Court hereby SET ASIDE the decision dated October 21, 1996 and
presented "only one day late." On the contrary, these considerations militate against it: (1) the resolution dated Janaury 31, 1997 of the respondent court in CA-G.R. SP No. 41977. The
The orderly administration of justice would suffer a drawback if the period for perfecting decision of the Regional Trial Court of Quezon City in Civil Case No. Q-94-20960 is hereby
appeals be rendered uncertain, as it would be, by sanctioning such transgression of the declared as having attained finality in due course, in consequence of which the said court may
deadline. (2) The appealed decision is presumed by law to be just and correct, and therefore issue such orders as it may deem proper and appropriate in the premises.
the denial of the appeal does not necessarily imply an injustice to the appellant. (3) The right
to appeal is a purely statutory right, and he who wants to exercise it must comply with the

With the foregoing jurisprudence as our bench mark, we are compelled to conclude, as we did
in Bank of America, NT and SA vs. Gerochi, Jr., et al., 230 SCRA 9, 15-16, to wit:

The case at bench, given its own settings, cannot come close to those extraordinary
circumstances that have indeed justified a deviation from an otherwise stringent rule. Let it
not be overlooked that the timeliness of an appeal is a jurisdictional caveat that not even
this Court cannot (sic) trifle with.7

To hold otherwise, as we did, after a conscientious review of the factual milieu of this case,
would disturb a well-entrenched ruling that could make uncertain when a judgment attains
finality, leaving the same to depend upon the resourcefulness of a party in concocting
implausible excuses to justify unwarranted departure from the time-honored policy of the law
that the period for the perfection of an appeal is mandatory and jurisdictional.

One other thing. It is not enough that the delay be excusable, one added requisite is that the
intended appeal be "impressed with merit."8 We perused the record and find confirmation in
the fact that respondent NAPOCOR never, at any time in the trial court or in the respondent
court, alleged, much less demonstrate, that the intended appeal is meritorious. It was the
respondent court which unilaterally considered that the supposedly anomalous amount
awarded in the decision of the trial court as a factor that warranted such relaxation. On second
look, obviously given the presumption of validity and correctness of the decision of the trial
court, this would be indulging in speculation that should not be allowed. We note that in the
decision of the trial court, it said:

On plaintiff's claim for damages, while the Court is hesitants in granting the same because
defendant NAPOCOR is a government agency, however, it acts by and thru its defendants
officer and is consequently bound by their acts.
CIVPRO – RULE 41 – RTC CANNOT DISMISS APPEAL ON GROUND THAT ONLY Q. OF LAW On February 25, 1988, petitioner seasonably filed a notice of appeal stating that he was
INVOLVED appealing the February 12, 1988 order to the Court of Appeals. Respondent Judge duly
approved said notice in his order of February 29, 1988.
G.R. No. 82789 November 21, 1991
On the other hand, despite the reduced money judgment, Camacho made no move to contest
NARCISO KHO, petitioner, the award. Instead, he filed a motion/manifestation praying that petitioner's notice of appeal
vs. be stricken off the record as a mere scrap of paper.
Trial Court of Quezon City, Branch 97, respondents. Acting on the aforesaid motion, respondent Judge issued the assailed order of March 29, 1988
setting aside the previously approved notice of appeal and adopting Camacho's view that the
FERNAN, C.J.: proper remedy from a judgment on the pleadings was a petition for certiorari to the Supreme
Court. Said order reads:
The issue in this petition for certiorari is whether respondent Judge Oscar L. Leviste of the
Regional Trial Court of Quezon City, Branch 97, grossly abused his discretion when he issued In view of the Motion/Manifestation dated March 1, 1988, which this Court finds with merit,
the questioned order of March 29, 1988 which cancelled the previous order approving a notice . . ., this Court believing that only questions of law are involved, hence the proper remedy
of appeal. should be a petition for certiorari, there being no question of fact presented by the pleadings
and the order in Summary Judgment, the order of this Court approving the notice of appeal
is hereby cancelled and a new order is hereby made that said notice of appeal is
The facts are as follows:
disapproved. 3
In payment of attorney's fees resolved against him, petitioner Narciso Kho, a businessman,
Hence this petition for certiorari.
issued in favor of private respondent Atty. Manuel Camacho six (6) postdated Manila Bank
checks in the total sum of P57,349.00. One of the checks, in the amount of P10,000.00, was
lost by Atty. Camacho who promptly notified petitioner. When the other five (5) checks were The Court has readily observed two very glaring errors committed by respondent Judge
negotiated by Camacho with the Philippine Amanah Bank, the same were returned uncleared Leviste. First, he listened to Camacho who could not even distinguish between a petition for
because Manila Bank had been ordered closed by the Central Bank. certiorari and a petition for review on certiorari. Secondly, he pre-empted a prerogative that
legally pertains to the Court of Appeals when he disapproved petitioner's notice of appeal
"believing that only questions of law are involved."
Because of petitioner's refusal to replace the Manila Bank checks or pay his obligation,
Camacho instituted an action for a sum of money against petitioner before respondent trial
court. 1 In E Razon, Inc. vs. Judge Moya, No. L-31693, February 24, 1981, 103 SCRA 41, the Court,
through Justice Melencio-Herrera, held:
In his answer, petitioner alleged that he was under no obligation to replace the lost check for
P10,000.00, arguing that Camacho should have executed a sworn statement that he lost the Concededly, issues that involve pure questions of law are within the exclusive jurisdiction of
check issued to him and furnished both the drawer and the bank with said statement so that this Court. However, Rule 41 of the Rules of Court does not authorize the Trial Court to
the bank could place on the check "under alarmed," instead of merely informing petitioner. disallow an appeal on the ground that there is no question of fact, but only a question of law,
involved. 4
Petitioner also refused to issue new checks maintaining that the closure of Manila Bank (in
which he had an outstanding deposit of P581,571.84 which was more than enough to cover The Court was no less explicit and emphatic when it declared in the subsequent case of PNB
the cost of the five checks) was beyond his control and therefore he was in no financial position vs. Romillo, Jr., G.R. No. 70681, October 16, 1985, 139 SCRA 320, 325-326, that:
to pay Camacho unless and until his money in that beleaguered bank was released.
We hold the view that whether an appeal involves only question of law or both questions of
Contending that petitioner's answer failed to tender a genuine issue, Camacho moved for a fact and law, this question should be left for the determination of an appellate court and
judgment on the pleadings which respondent Judge Leviste granted in his order of February not by the court which rendered the subject decision appealed from. . . . Respondent Judge
12, 1988. In said order, respondent Judge directed petitioner to pay Camacho P57,349.00 erred in dismissing said appeal on his misconception that the same involves only a question
"minus the P10,000.00 pertaining to the lost check, or a total of P47,349.00 with interest at of law and based on this reasoning, disallowed petitioner's appeal because it was not made
the legal rate of 6% from June 2, 1987, until fully paid, with costs or attorney's fees." 2 to the Supreme Court. . . .
By dismissing the appeal on the ground that it was misdirected because the case was
resolved by it on a pure question of law, the trial court committed a grave error. Respondent
Judge should have allowed the Intermediate Appellate Court to decide whether or not the
petitioner's appeal involves only a question of law and not arrogate unto himself the
determination of this question. His error in dismissing petitioner bank's appeal becomes
even more obvious considering the provisions of Section 3 of Rule 50 of the Rules of Court,
wherein it is specifically provided that "where the appealed case has been erroneously
brought to the Court of Appeals, it shall not dismiss the appeal but shall certify the case to
the proper court, with a specific and clear statement of the grounds therefor."

Thus, following the above pronouncements, what respondent Judge should have done under
the circumstances was to sustain his approval of the notice of appeal and leave it to the Court
of Appeals to certify the case to the proper tribunal if warranted. Indeed, Judge Leviste had
absolutely no authority to disapprove the notice of appeal. Under the present rules, his role is
to approve or disapprove the record on appeal (when required) and the appeal bond, but not
a notice of appeal. A notice of appeal does not require the approval of the trial court. 5

Nonetheless, although a procedural error was committed by respondent Judge in disapproving

petitioner's notice of appeal, to require him to give due course to the appeal and then elevate
the records of Civil Case No. Q-52014 to the Appellate Court will serve no useful purpose and
will only delay the resolution of an otherwise open-and-shut case. The records before us are
sufficient to enable us to rule on the propriety of the judgment on the pleadings and to
terminate this case once and for all.

The obligation to pay P57,349.00 in attorney's fees is admitted. The appropriate checks in
payment therefor have been issued. However, one check was misplaced through the creditor's
fault while the other five were dishonored because the drawee bank has ceased to operate.

A perusal of petitioner's answer convinces us that the judgment on the pleadings was proper.
In that pleading, petitioner disavowed any obligation to replace the useless checks and
gratuitously advanced the reason that the bank where he had deposited his lifetime savings
had been closed through no fault of his. In effect, what petitioner was saying was that Camacho
should wait until he (petitioner) was in a position to pay. This is not a sufficient controversion
of the material allegations in the complaint.

Finding no reversible error in the judgment on the pleadings rendered by respondent Judge
Leviste, the Court considers the same as the final adjudication on the respective rights of the

WHEREFORE, in view of the foregoing, certiorari is hereby DENIED. No costs.

CIVPRO – RULE 41 – APPELEE WHO HAS NOT APPEALED MAY NOT OBTAIN AFFIRMATIVE along their property which is also along the first passageway. Defendant Morato constructed
RELIEF FROM APPELLATE COURT her adobe fence and even extended said fence in such a way that the entire passageway
G.R. No. 116100 February 9, 1996 was enclosed. (Exhibit "1-Santoses and Custodios, Exh. "D" for plaintiff, Exhs. "1-C", "1-D"
SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA and "1-E") And it was then that the remaining tenants of said apartment vacated the area.
SANTOS, petitioners, Defendant Ma. Cristina Santos testified that she constructed said fence because there was
vs. an incident when her daughter was dragged by a bicycle pedalled by a son of one of the
COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and REGIONAL TRIAL COURT OF PASIG, tenants in said apartment along the first passageway. She also mentioned some other
METRO MANILA, BRANCH 181, respondents. inconveniences of having (at) the front of her house a pathway such as when some of the
tenants were drunk and would bang their doors and windows. Some of their footwear were
even lost. . . .3 (Emphasis in original text; corrections in parentheses supplied)
On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:
This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-
Accordingly, judgment is hereby rendered as follows:
G.R. CV No. 29115, promulgated on November 10, 1993, which affirmed with modification the
decision of the trial court, as well as its resolution dated July 8, 1994 denying petitioner's 1) Ordering defendants Custodios and Santoses to give plaintiff permanent access ingress
motion for reconsideration.1 and egress, to the public street;
On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed 2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight
by Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Thousand Pesos (P8,000) as indemnity for the permanent use of the passageway.
Santos and Maria Cristina C. Santos before the Regional Trial Court of Pasig and assigned to
Branch 22 thereof.2 The parties to shoulder their respective litigation expenses.4

The generative facts of the case, as synthesized by the trial court and adopted by the Court of Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents,
Appeals, are as follows: went to the Court of Appeals raising the sole issue of whether or not the lower court erred in
not awarding damages in their favor. On November 10, 1993, as earlier stated, the Court of
Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during Appeals rendered its decision affirming the judgment of the trial court with modification, the
the pendency of this case and was substituted by Ofelia Mabasa, his surviving spouse [and decretal portion of which disposes as follows:
WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH
The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at MODIFICATION only insofar as the herein grant of damages to plaintiffs-appellants. The
Interior P. Burgos St., Palingon, Tipas, Tagig, Metro Manila. The plaintiff was able to acquire Court hereby orders defendants-appellees to pay plaintiffs-appellants the sum of Sixty Five
said property through a contract of sale with spouses Mamerto Rayos and Teodora Quintero Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand (P30,000) Pesos as Moral
as vendors last September 1981. Said property may be described to be surrounded by other Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages. The rest of the
immovables pertaining to defendants herein. Taking P. Burgos Street as the point of appealed decision is affirmed to all respects.5
reference, on the left side, going to plaintiff's property, the row of houses will be as follows:
That of defendants Cristino and Brigido Custodio, then that of Lito and Maria Cristina Santos On July 8, 1994, the Court of Appeals denied petitioner's motion for reconsideration.6
and then that of Ofelia Mabasa. On the right side (is) that of defendant Rosalina Morato and Petitioners then took the present recourse to us, raising two issues, namely, whether or not
then a Septic Tank (Exhibit "D"). As an access to P. Burgos Street from plaintiff's property, the grant of right of way to herein private respondents is proper, and whether or not the award
there are two possible passageways. The first passageway is approximately one meter wide of damages is in order.
and is about 20 meters distan(t) from Mabasa's residence to P. Burgos Street. Such path is
passing in between the previously mentioned row of houses. The second passageway is With respect to the first issue, herein petitioners are already barred from raising the same.
about 3 meters in width and length from plaintiff Mabasa's residence to P. Burgos Street; it Petitioners did not appeal from the decision of the court a quo granting private respondents
is about 26 meters. In passing thru said passageway, a less than a meter wide path through the right of way, hence they are presumed to be satisfied with the adjudication therein. With
the septic tank and with 5-6 meters in length, has to be traversed. the finality of the judgment of the trial court as to petitioners, the issue of propriety of the
grant of right of way has already been laid to rest.
When said property was purchased by Mabasa, there were tenants occupying the remises
and who were acknowledged by plaintiff Mabasa as tenants. However, sometime in For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot
February, 1982, one of said tenants vacated the apartment and when plaintiff Mabasa went obtain any affirmative relief other than those granted in the decision of the trial court. That
to see the premises, he saw that there had been built an adobe fence in the first passageway decision of the court below has become final as against them and can no longer be reviewed,
making it narrower in width. Said adobe fence was first constructed by defendants Santoses much less reversed, by this Court. The rule in this jurisdiction is that whenever an appeal is
taken in a civil case, an appellee who has not himself appealed may not obtain from the In the case at bar, although there was damage, there was no legal injury. Contrary to the claim
appellate court any affirmative relief other than what was granted in the decision of the lower of private respondents, petitioners could not be said to have violated the principle of abuse of
court. The appellee can only advance any argument that he may deem necessary to defeat the right. In order that the principle of abuse of right provided in Article 21 of the Civil Code can
appellant's claim or to uphold the decision that is being disputed, and he can assign errors in be applied, it is essential that the following requisites concur: (1) The defendant should have
his brief if such is required to strengthen the views expressed by the court a quo. These acted in a manner that is contrary to morals, good customs or public policy; (2) The acts should
assigned errors, in turn, may be considered by the appellate court solely to maintain the be willful; and (3) There was damage or injury to the plaintiff.15
appealed decision on other grounds, but not for the purpose of reversing or modifying the
judgment in the appellee's favor and giving him other affirmative reliefs.7 The act of petitioners in constructing a fence within their lot is a valid exercise of their right as
owners, hence not contrary to morals, good customs or public policy. The law recognizes in
However, with respect to the second issue, we agree with petitioners that the Court of Appeals the owner the right to enjoy and dispose of a thing, without other limitations than those
erred in awarding damages in favor of private respondents. The award of damages has no established by law.16 It is within the right of petitioners, as owners, to enclose and fence their
substantial legal basis. A reading of the decision of the Court of Appeals will show that the property. Article 430 of the Civil Code provides that "(e)very owner may enclose or fence his
award of damages was based solely on the fact that the original plaintiff, Pacifico Mabasa, land or tenements by means of walls, ditches, live or dead hedges, or by any other means
incurred losses in the form of unrealized rentals when the tenants vacated the leased premises without detriment to servitudes constituted thereon."
by reason of the closure of the passageway.
At the time of the construction of the fence, the lot was not subject to any servitudes. There
However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover was no easement of way existing in favor of private respondents, either by law or by contract.
damages. To warrant the recovery of damages, there must be both a right of action for a legal The fact that private respondents had no existing right over the said passageway is confirmed
wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong by the very decision of the trial court granting a compulsory right of way in their favor after
without damage, or damage without wrong, does not constitute a cause of action, since payment of just compensation. It was only that decision which gave private respondents the
damages are merely part of the remedy allowed for the injury caused by a breach or wrong. 8 right to use the said passageway after payment of the compensation and imposed a
corresponding duty on petitioners not to interfere in the exercise of said right.
There is a material distinction between damages and injury. Injury is the illegal invasion of a
legal right; damage is the loss, hurt, or harm which results from the injury; and damages are Hence, prior to said decision, petitioners had an absolute right over their property and their
the recompense or compensation awarded for the damage suffered. Thus, there can be act of fencing and enclosing the same was an act which they may lawfully perform in the
damage without injury in those instances in which the loss or harm was not the result of a employment and exercise of said right. To repeat, whatever injury or damage may have been
violation of a legal duty. These situations are often called damnum absque injuria.9 sustained by private respondents by reason of the rightful use of the said land by petitioners
is damnum absque injuria.17
In order that a plaintiff may maintain an action for the injuries of which he complains, he must
establish that such injuries resulted from a breach of duty which the defendant owed to the A person has a right to the natural use and enjoyment of his own property, according to his
plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person causing pleasure, for all the purposes to which such property is usually applied. As a general rule,
it.10 The underlying basis for the award of tort damages is the premise that an individual was therefore, there is no cause of action for acts done by one person upon his own property in a
injured in contemplation of law. Thus, there must first be the breach of some duty and the lawful and proper manner, although such acts incidentally cause damage or an unavoidable
imposition of liability for that breach before damages may be awarded; it is not sufficient to loss to another, as such damage or loss is damnum absque injuria. 18 When the owner of
state that there should be tort liability merely because the plaintiff suffered some pain and property makes use thereof in the general and ordinary manner in which the property is used,
suffering.11 such as fencing or enclosing the same as in this case, nobody can complain of having been
injured, because the incovenience arising from said use can be considered as a mere
Many accidents occur and many injuries are inflicted by acts or omissions which cause damage consequence of community life. 19
or loss to another but which violate no legal duty to such other person, and consequently
create no cause of action in his favor. In such cases, the consequences must be borne by the The proper exercise of a lawful right cannot constitute a legal wrong for which an action will
injured person alone. The law affords no remedy for damages resulting from an act which does lie, 20 although the act may result in damage to another, for no legal right has been invaded. 21
not amount to a legal injury or wrong.12 One may use any lawful means to accomplish a lawful purpose and though the means adopted
may cause damage to another, no cause of action arises in the latter's favor. An injury or
In other words, in order that the law will give redress for an act causing damage, that act must damage occasioned thereby is damnum absque injuria. The courts can give no redress for
be not only hurtful, but wrongful. There must be damnum et injuria.13 If, as may happen in hardship to an individual resulting from action reasonably calculated to achieve a lawful
many cases, a person sustains actual damage, that is, harm or loss to his person or property, means. 22
without sustaining any legal injury, that is, an act or omission which the law does not deem an
injury, the damage is regarded as damnum absque injuria.14 WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of
respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial
court is correspondingly REINSTATED.
CIVPRO – RULE 41 – EXCEPTION – WHEN THERE IS SOLIDARITY IN OBLIGATIONS Citytrust's account before the stop payment order was given by Samara, this being
unjustifiable. Hence, a decision was rendered on March 4, 1986, the dispositive portion of
G.R. No. 92591 April 30, 1991 which reads:

CITYTRUST BANKING CORPORATION, petitioner WHEREFORE, judgment is hereby rendered:

THE COURT OF APPEALS, and WILLIAM SAMARA, respondents. 1. Ordering the defendants, jointly and severally, to pay the plaintiff the sum of US
$40,000.00, plus twelve percent (12%) interest per annum from July 3, 1981, until full
GUTIERREZ, JR., J.: payment is made, and the further interest of twelve percent (12%) per annum on the
accrued interest from December 23, 1980 up to the filing of the complaint on October 4,
1983, inclusive; Exemplary damages in the sum of One Hundred Thousand Pesos
The Court is beset with the issue involving two defendants in a case for recovery of a sum of
(P100,000.00) and the sum of Fifty Thousand Pesos (P50,000.00) as and for attorney's fees,
money where the trial court adjudged them to be jointly and severally liable as judgment
and costs;
debtors to pay the plaintiff but who are now required, as a result of a modification on appeal
by only one of them, to pay substantially different amounts while being solidarity liable.
2. Dismissing the defendant's counter-claims for lack of merit;
As a prefatory note, this is the second time the petitioner has gone to this Court but the issues
raised at the first instance are distinct from the one at bar. 3. Ordering defendant Marine Midland to reimburse defendant Citytrust of whatever
amount the latter will be made to pay the plaintiff by reason of this judgment and costs.
(Rollo, pp. 29-30)
The case arose from a complaint filed by private respondent William Samara, an American who
does business in the Philippines, against petitioner Citytrust Banking Corporation (hereinafter
referred to as Citytrust) and a foreign bank, Marine Midland Bank, N.A. (hereinafter referred Only Marine Midland filed a motion for reconsideration of the decision. It was denied. The
to as Marine Midland). petitioner did not do anything except to move for a reconsideration of an order of execution
of the judgment against it which was granted. The petitioner and Marine Midland filed
separate appeals.
The facts as established by the trial court show that plaintiff-private respondent Samara
purchased on December 10, 1980 from defendant petitioner Citytrust Bank Draft Number
23681 for US $40,000.00, the payee being Thai International Airways and the corresponding The petitioner's appeal was, however, dismissed on December 15, 1987 for having been filed
bank in the United States or the drawee, defendant Marine Midland. On December 23, 1980, out of time or fifty-one (51) days after (i.e., May 7, 1986) it received a copy of the trial court
Samara executed a stop-payment order of the bank draft instructing Citytrust to inform Marine decision on March 17, 1986. A motion to reconsider the dismissal was denied by the Court of
Midland about the order through telex. Citytrust transmitted the message to Marine Midland Appeals.
the next day and followed it up with a cable, which the latter bank acknowledged to have
received on January 14, 1981 stating in its receipt that it has noted the stop-payment order On February 26, 1988, the petitioner questioned before the Supreme Court the dismissal of its
and has not paid the bank draft. Citytrust credited back Samara's account for U.S. $40,000.00 appeal. That case was docketed as G.R. No. 82009 where the petitioner raised the following
due to the non-payment. After seven months or on July 3, 1981, Citytrust re-debited Samara's issues: (1) whether or not the timely appeal of Marine Midland inured to petitioner's benefit;
account for U.S. $40,000.00 upon discovering that Marine Midland had already debited and (2) whether or not plaintiff-private respondent Samara was entitled to immediate
Citytrust's own account for the same amount allegedly on December 22, 1980, Despite the execution even assuming the petitioner's appeal was indeed filed out of time.
alleged discovery, however, there is evidence to show that Marine Midland informed Citytrust
through a letter of the non-payment or non-encashment of the bank draft as of August 4, 1981. While the petition for certiorari to review the dismissal of the appeal was still pending before
It is also shown that Marine Midland even confirmed in a telex letter dated August 31, 1981 this Court, the Court of Appeals on February 23, 1989 affirmed the trial court decision with
that the bank draft had not been paid as of that date. modification consisting of a reduction of the rate of interest and attorney's fees, as well as the
exclusion of exemplary damages. Thus, the dispositive portion of the decision of the appellate
Based on the above findings, the trial court brushed aside Marine Midland's contention that it court in CA-G.R. CV No. 14128 reads:
had already paid the bank draft of Samara on December 22, 1980 or before it received the stop
payment order. The trial court was not convinced regarding the denial of the confirmation WHEREFORE, judgment is hereby rendered AFFIRMING the Decision appealed from except
made as to the non-payment of the bank draft since the time it received the stop payment paragraph 1 thereof which is hereby modified to read as follows:
order. Marine Midland was held bound by its letters admitting knowledge of the stop payment
order and compliance with it. The trial court also overruled the ground relied on by Citytrust
in re-debiting Samara's dollar account, i.e., the discovery that Marine Midland debited
1. Ordering the defendants jointly and severally, to pay the plaintiff the sum of US against Marine Midland, the amount of US $40,000.00 plus 6% simple interest per annum, and
$40,000.00, plus six percent (6%) interest per annum from July 3, 1981 until full payment is attorney's fees of only P10,000.00.
made, and the sum of Ten Thousand (P10,000.00) Pesos, as and for attorney's fees. (Rollo,
pp. 45-46) We are less concerned now with the issues of whether or not a co-defendant's appeal inures
to the benefit of another who failed to appeal on time and on the right of a judgment creditor
About a month and a half later or on April 10, 1989, this Court, through its First Division, denied to immediate execution of a final and executory judgment since such issues have become moot
the petition in G.R. No. 82009 for lack of merit. In response to the allegation that the and academic.
prescriptive period for filing an appeal was also suspended as to the petitioner when co-
defendant Marine Midland filed a motion for reconsideration, the Court ruled that the rights It is worthy to note that the Court was not apprised of the February 23, 1989 decision of the
and liabilities of the two defendants are not so interwoven as to show similarity in defenses Court of Appeals until after we had promulgated a decision denying Citytrust's petition for
and warrant reversal of the judgment as to both. This Court stressed specifically the finding of certiorari to review the dismissal of its own appeal. We were so notified through Citytrust's
the appellate court that although the petitioner and Marine Midland were solidarily liable, only motion for reconsideration of our decision n in G.R. No. 82009. It is a sad fact, however, that
the latter was ultimately held responsible for damages because it was the one ordered to the motion did not present sufficiently compelling grounds to convince the Court to rule
reimburse the petitioner for "whatever amount" the petitioner will be made to pay the plaintiff otherwise on the issues presented in G.R. No. 82009 which pertain to the validity of the
by reason of the judgment. (See Citytrust Banking Corp. v. Court of Appeals, 171 SCRA 758 dismissal of the petitioner's appeal.
[1989]). Moreover, in filing a motion for reconsideration, Marine Midland was in fact acting
only for itself. Regarding the second issue, we held that respondent Samara is entitled to
The present petition was given due course in line with our settled rule that while a decision
immediate execution when the trial court decision became final and executory as to the
has already become final and executory and can no longer be challenged, the manner of its
petitioner. In overcoming the petitioner's argument that execution pending appeal of its co-
execution can be reviewed by proper appeal (Abbot v. National Labor Relations Commission,
defendant should not be allowed to prevent an absurd result in case of possible reversal, we
145 SCRA 206 [1986]). It is not only the difference in the issue raised that makes us allow this
held that the law is clear that a final judgment must be executed against a defeated party.
petition. It is also because of a different Court of Appeals decision (this time in CA- G.R. SP No.
Since both defendants are jointly and severally liable, it is irrelevant whether or not the co-
19176) that is the subject of our review. The petitioner now assails the affirmation of the order
defendant would be absolved.
of execution based on the trial court judgment in spite of the modified judgment which
reduced the liability of co-defendants to pay private respondent. What bothers the private
Some four months later or on August 7, 1989, the Supreme Court declared the decision in G.R. respondent is the similarity of the arguments used by the petitioner in all the pleadings filed
No. 82009 to be final and executory. The petitioner's motion for reconsideration was denied. with this Court in G.R. No. 82009 and in the present petition.

On September 28, 1989, Samara filed a motion for execution which the trial court granted on The Court reiterates what it has held in the Abbot case:
October 23, 1989. The petitioner assailed the Order of Execution before the Court of Appeals
on November 6, 1989 in CA-G.R. SP No. 19176. The trial court was upheld and subsequent
xxx xxx xxx
motion for reconsideration was denied.
In the instant case, however, what is sought to be reviewed is not the decision itself but the
Hence, the instant petition was filed on March 29, 1990 which raises the main issue of whether
manner of its execution. There is a big difference. While it is true that the decision itself has
or not the respondent appellate court committed reversible error in ruling that the liability of
become final and executory and so can no longer be challenged, there is no question either
the petitioner should be based on the original decision of the trial court and not the modified
that it must be enforced in accordance with its terms and conditions. Any deviation
therefrom can be the subject of a proper appeal. (pp. 209-210)

The private respondent contends that the petition is barred by res judicata alleging that the
The petitioner alleges that the appellate court decision dated February 23, 1989 has
issue in the case at bar had already been raised, passed upon, and judicially determined by this
superseded and rendered functus oficio the March 4, 1986 decision of the trial court invoked
Court in G.R. No. 82009.
by the private respondent and is applicable not only to Marine Midland but also to the
It is our considered opinion that the issue here is distinct from the ones raised earlier. In the
present petition, the Court is faced with the issue of the propriety of the execution of
The Court does not agree with this allegation which hinges on the petitioner's insistence that
judgments in favor of private respondent Samara who is entitled to recover on execution:
it can benefit from a reversal or modification of a judgment even if it has lost its own appeal.
against the petitioner, the amount of US $40,000.00 plus 12% compounded interest per
We do not depart from our earlier analysis in G.R. No. 82009 that the rights and liabilities of
annum, exemplary damages of P100,000.00 attorney's fees of P50,000.00 and costs; and as
the petitioner and Marine Midland are not so interwoven in such a manner that their defenses
are similar as to readily warrant an operative effect upon a party who failed to appeal.
As found by this Court in G.R. No. 82009: to the petitioner who was a co-defendant are up for review. The rights and liabilities of
Citytrust as a defensive cross-claimant, which alleged that the proximate cause of the injury to
It must be noted that two defendants, Marine Midland and Citytrust, filed cross claims the plaintiff was the wrongful action of Marine Midland, have already been litigated before
against each other in their answer. Citytrust alleged that the proximate cause of the injury the trial court which ordered full reimbursement in favor of Citytrust. Until petitioner Citytrust
should be attributed to co-defendant Marine Midland when the latter failed to promptly appeals for the review of the trial court decision either in part or in toto, its rights and
inform Citytrust that the demand draft Citytrust issued was really paid by Marine Midland obligations as pre-determined cannot generally be affected by an appeal of a co-defendant.
on December 22, 1980. For its part, Marine Midland alleged that Citytrust did not properly The respondent appellate court made this clear in its decision dated February 23, 1989, when
advise it of the actual circumstances relating to the dates of payment of the draft and of the it stated that even assuming that the petitioner may be considered an appellee, "such a
receipt by the latter of the stop-payment instructions. The rights and liabilities of both standing was only with respect to the cross-claim against (appellant Marine Midland) and not
parties concerned are not so interwoven in such a manner that their defenses are similar with respect to its (petitioner's) liability in favor or private respondent Samara", the judgment
and that a reversal of the judgment as to one should operate as a reversal to the other. on which had already become final and executory as to the Petitioner. The petitioner cannot
Furthermore, a perusal of the decision appealed from shows that Marine Midland, though now present a subverted interpretation of what the appellate court meant.
jointly and severally liable with petitioner, is the one ultimately held responsible for the
damages incurred by the private respondent inasmuch as the trial court ordered "defendant The Court examines the execution of judgment rendered in favor of private respondent
Marine Midland to reimburse defendant Citytrust of whatever amount the latter will be Samara from a perspective which shows a glaring disparity between the amounts which each
made to pay the plaintiff by reason of this judgment and costs." (Citytrust Banking Corp. v. of the two judgment debtors are bound to pay despite: (1) their being held jointly and severally
Court of Appeals, supra at page 765) liable, and (2) the right of one of them to be reimbursed for the whole amount of whatever it
is obliged to pay.
The Court is of the considered view that it was the trial court judgment that created a joint and
several obligation to pay the private respondent certain sums. No solidary liability as between A judgment may determine the ultimate rights of the parties on the same side as between
them existed from the drawer-drawee relationship in the draft transaction. themselves such that questions of primary and secondary liability between joint tort-feasors
may be determined. (Montgomery v. Blades, 9 SE 2d 397, 217 NC 654 [1940]). This rule
The joint and several obligation imposed by the lower court had a three-fold purpose: (1) to reaffirms that principles of joint and several liability have survived so that the plaintiff is
declare the prevailing party to be entitled to recover damages on account of the prejudice entitled to recover the entire judgment from a single defendant even though the responsibility
which resulted from the acts of the co-defendants; (2) to give the prevailing party the right to of that defendant for personal injury is of a lesser extent. (Gorelick v. Department of State
proceed against either one of them to recover the amounts awarded to him; and (3) to impress Highways, 339 NW 2d. 635,127 Mich. App. 324 [1983])
upon Marine Midland its ultimate liability to fully reimburse the petitioner Citytrust consistent
with the finding that the proximate cause of the injury to the private respondent was the A review of the trial court judgment and the appellate court judgment here shows that the
wrongful deed of Marine Midland. only difference is the amount of damages in paragraph 1 of the dispositive portion of the
March 4, 1986 decision as restated and reduced in the February 23, 1989 decision. All other
The trial court judgment, however, does not alter the fact that the respective defenses of the orders of the trial court were affirmed by the respondent appellate court. The joint and several
co-defendants are distinct on trial and even on appeal. Citytrust and Marine Midland were not obligation to pay the private respondent and the right of the petitioner to be reimbursed are
in privity with each other in a transaction involving payment through a bank draft. A bank draft retained. The problem now lies in interpreting the said modification as likewise reducing the
is a "bill of exchange drawn by a bank upon its correspondent bank, . . . issued at the solicitation total amount which can be executed against the petitioner.
of a stranger who purchases and pays therefor" (Kohler v. First National Bank, 289 P 47, 49,
157 Wash. 417 [1930]). It is also defined as an "order for payment of money." (Polotsky v. If we go by a literal procedure, execution against petitioner Citytrust would be based on the
Artisans Savings Bank, Del. 180 A. 791, 792, 7 WW. Harr 142 [1935]). In the case at bar, Citytrust March 4, 1986 decision. However, the Court can not close its eyes to the inexplicable situation
from which the private respondent purchased the bank draft, was the drawer of the draft where private respondent Samara would be given a choice of executing his claim for US
through which it ordered Marine Midland, the drawee bank, to pay the amount of US $40,000.00 plus bigger interest (compounded), exemplary damages, and attorney's fees from
$40,000.00 in favor of Thai International Airways, the payee. The drawee bank acting as a petitioner Citytrust, or US $40,000.00 plus a smaller sum inclusive of simple interest and
"payor" bank is solely liable for acts not done in accordance with the instructions of the drawer reduced attorney's fees from Marine Midland. Even if it is admitted that Citytrust would
bank or of the purchaser of the draft. The drawee bank has the burden of proving that it did anyway be reimbursed for the whole amount which Citytrust may be ordered to pay, such
not violate. Meanwhile, the drawer, if sued by the purchaser of the draft is liable for the act of reimbursement would be a circumvention of the appellate court's judgment that Marine
debiting the customer's account despite an instruction to stop payment. The drawer has the Midland is liable only for the modified sum.
duty to prove that he complied with the order to inform the drawee.
There are two final judgments arising from one and the same basic claim of Mr. Samara. The
The fact that the petitioner previously filed a cross-claim against Marine Midland does not obligations arising from the same stop payment order on the same U.S. $40,000.00 bank draft
make the former a party in the latter's appeal where all reliefs granted to the plaintiff and/or are sought to be enforced by the two conflicting final and executory judgments. We cannot
enforce one judgment while allowing a violation of the other. We apply basic principles of SO ORDERED.
justice and equity.

It is clear from the records that "the draft was not paid or cashed before the receipt of the stop
payment order by the appellant (Marine Midland)" but was certainly paid at some other date
as evidenced by a reconciliation entry showing a debit of the corresponding amount in the
books of Marine Midland. (See Rollo, pp. 40 and 42). Furthermore, there was substantial
evidence to show that Marine Midland is the one actually responsible for the personal injury
to the private respondent. The respondent court made the following findings, to wit:

xxx xxx xxx

It must be noted that it was the appellant's certifications and repeated reaffimation of non-
payment of the bank draft that led defendant Citytrust to re-credit appellee's account. Also,
the appellant negligently failed to implement the stop payment order upon receipt. It tarried
in actually executing it until January 13, 1981. Furthermore, it was the appellant's debiting
of the account of the defendant-Citytrust which also led the defendant Citytrust to again
debit the appellee's dollar account despite prior acknowledgment of the non-payment of
the draft. No doubt, it was the appellant's actuations that triggered the whole mess.
Therefore, the lower court correctly ordered the appellant to reimburse defendant Citytrust
of whatever amount the latter may pay the appellee by virtue of its judgment. (Rollo, p. 44)

Considering the above circumstances, the Court will not allow the absurd situation where a co-
defendant who is adjudged to be primarily liable for sums of money and for tort would be
charged for an amount lesser than what its co-defendant is bound to pay to the common
creditor and allowed to collect from the first co-defendant. Such a situation runs counter to
the principle of solidarity in obligations as between co-defendants established by a judgment
for recovery of sum of money and damages. Substantial justice shall not allow Marine Midland,
which is the source of the injury afflicted, to be unjustly enriched either by the direct execution
against him of the judgment for the reduced amount or by the indirect execution by way of
reimbursement at a later time.

Additionally, the Court notes the modification made by the respondent court which ordered
not only Marine Midland (the appellant therein) but both "defendants jointly and severally" to
pay the new amount. Though, as a matter of procedure, the modification shall be applied only
to the appellant, substantial justice and equity also demand that we re-interpret the decision
to refer to petitioner Citytrust as well. There exists a strong and compelling reason to warrant
an exception to the rule that a judgment creditor is entitled to execution of a final and
executory judgment against a party especially if that party failed to appeal. (Olacao v. National
Labor Relations Commission, 177 SCRA 38 [1989]; Quigui v. Boncaros 151 SCRA 416 [1987];
Orata v. Intermediate Appellate Court, 185 SCRA 148 [1990])

WHEREFORE, the decision of the Court of Appeals in CA-G.R. SP No. 19176 dated January 18,
1990 as well as the resolution denying reconsideration are hereby REVERSED and SET ASIDE.
The court a quo is ordered to effect execution of its judgment subject to the modifications
supplied by the Court of Appeals in its judgment on February 23, 1989.