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129846 MENDOZA; January 18, 2000

NATURE Petition for certiorari FACTS - Office of the President issued four type "B" Treasury Warrants drawn against the Bureau of Treasury in the aggregate amount of P151,645,000.00. The treasury warrants were deposited in private respondent Traders Royal Bank for collection. - On January 7, 1986, private respondent presented the warrants to the Bureau of Treasury. It was cleared and credited to the payees. - Petitioner later discovered that the payees indorsements were forged. It demanded reimbursement from respondent but the latter refused to pay. - A civil case was filed against the respondent for collection in RTC Manila. After petitioner has rested its case, respondent filed a demurrer w/o leave of court contending that the plaintiff does not claim nor alleged that because of the alleged forgery of the indorsements of the payees, the plaintiff had to replace the treasury warrants in question and thus pay the payees all over again. - The RTC denied the demurrer. On motion, the RTC reconsidered its decision and granted the demurrer. The case was thus dismissed. - Petitioner received notice of the dismissal on February 7, 1995. On Feb 20, 1995, petitioner filed a motion for reconsideration which interrupted the running of the appeal (2 more days left). On May 23, 1995, it was denied. The order was received on June 2, 1995 (june 4 new last day). However, the notice of appeal was filed only on June 16, 1995. The dismissal thus became final - For some reason, this fact was not immediately noticed, so that the records of the case were elevated to the Court of Appeals and petitioner was required to file its appellant's brief. Respondent asked to dismiss the case. The CA then dismissed the case. A motion for reconsideration was filed but it was denied. - Petitioner receive notice of the CA decision on June 5, 1997. (June 20, 1997 last day to file appeal under R45). Instead, petitioner filed on August 4, 1997, 45 days after the last day to file an appeal, the present petition for certiorari under Rule 65. ISSUE WON a petition for certiorari is proper HELD NO. Reasoning - Petitioner should have filed a petition for review on certiorari under rule 45. Petitioner filed the present petition since the reglementary period has already expired. Certiorari under rule 65 cannot be used as a substitute for an appeal already lost. . Certiorari lies only where there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. There is no reason why the question (WON there was grave abuse of discretion) being raised by petitioner could have been raised in appeal - The remedies of appeal and certiorari are mutually exclusive and not alternative or successive (Bernardo v CA) - Even on the grounds invoked by petitioner, the petition should be dismissed. Petitioner invokes the judicial policy of allowing appeals, although filed late, when the interest of justice so requires. No exceptional circumstances are present to allow a relaxation of the rules. Nor can petitioner invoke the doctrine that rules of technicality must yield to the broader interest of substantial justice. While every litigant must be given the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities, the failure to perfect an appeal within the reglementary period is not a mere technicality. It raises a jurisdictional problem as it deprives the appellate court of jurisdiction over the appeal - There is another reason why review of the trial court's order cannot be made. Petitioner does not dispute the fact that, as observed by the Court of Appeals, its notice of appeal referred only to the order of the trial court denying its Motion for Reconsideration and not the order of dismissal of its complaint as well. Such failure is fatal. Under Rule 37.9, an order denying a motion for reconsideration is not appealable, the remedy being an appeal from the judgment or final order. Rule 41 also provides that no appeal may be taken from an order denying a motion for reconsideration. Even if the Rules of Civil Procedure took effect only on July 1, 1997 (whereas this case involves an appeal taken in February 1995), rulings in several cases already said that an order denying a motion for reconsideration is interlocutory in nature and, therefore, is not appealable. Disposition Petition DENIED