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04 Heirs of Bihag V Heirs of Bathan
04 Heirs of Bihag V Heirs of Bathan
DECISION
DEL CASTILLO, J : p
SO ORDERED. 29
Petitioners moved for a reconsideration but the RTC denied the same
in its August 11, 2006 Order. 30
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Unfazed, petitioners filed a Notice of Appeal on October 2, 2006.31
On January 5, 2007, the RTC issued an Order 32 denying the Notice of
Appeal. The RTC declared that:
A reading of the Notice of Appeal will show that [petitioners]
received a copy of the Decision on April 20, 2006 but filed the Motion
for Reconsideration on April 28, 2006 after the lapse of eight (8) days.
Furthermore, [petitioners] received a copy of the Order denying their
motion on September 22, 2006 but filed the Notice of Appeal on
October 2, 2006 after the lapse of ten (10) days. Thus, the Notice of
Appeal was filed after the lapse of [the] fifteen (15) days reglementary
period or to be exact after the lapse of eighteen (18) days.
xxx xxx xxx
[Based] on the case cited above, [petitioners] only [have] (7)
seven days from the date of receipt of the Order denying the Motion for
Reconsideration to file the Notice of Appeal.ADEHTS
Considering that the Notice of Appeal was filed on the 15th day
from receipt of the Order denying Motion for Reconsideration which is
beyond the reglementary period to file the Notice of Appeal, the same
is DENIED due course.
Notify counsels.
SO ORDERED. 33
Footnotes
8. Id. at 2.
9. Id.
10. Id. at 2-3.
11. Id. at 2.
12. Id. at 3.
13. Id.
14. Id.
15. Id. at 5.
16. Id. at 10; penned by Judge Mercedes Gozo-Dadole.
1. It does not show the material dates required under Sec. 3 Rule 46 of the
Rules of Court such as: (a) when notice of the judgment or final order or
resolution subject thereof was received, (b) when a motion for new trial or
reconsideration, if any, was filed and (c) when notice of the denial thereof
was received;
2. No prior Motion for Reconsideration was taken. The precipitate filing of
petition for certiorari under Rule 65 of the Rules of Court without first moving
for reconsideration of the assailed order of the lower court warrants the
outright dismissal of the case. Certiorari will not lie unless the aggrieved
party has no other claim, speedy and adequate remedy in the course of law,
such as the filing of a Motion for Reconsideration;
3. One of the petitioners, Jorge T. Bihag, has not signed the verification and
certification of non-forum shopping;
In actions filed under Rule 65, the petition shall further indicate the material
dates showing when notice of the judgment or final order or resolution
subject thereof was received, when a motion for new trial or reconsideration,
if any, was filed and when notice of the denial thereof was received.
It shall be filed in seven (7) clearly legible copies together with proof of
service thereof on the respondent with the original copy intended for the
court indicated as such by the petitioner, and shall be accompanied by a
clearly legible duplicate original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material portions of the record as
are referred to therein, and other documents relevant or pertinent thereto.
The certification shall be accomplished by the proper clerk of court or by his
duly authorized representative, or by the proper officer of the court, tribunal,
agency or office involved or by his duly authorized representative. The other
requisite number of copies of the petition shall be accompanied by clearly
legible plain copies of all documents attached to the original.
The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such
other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly
inform the aforesaid courts and other tribunal or agency thereof within five
(5) days therefrom.
The petitioner shall pay the corresponding docket and other lawful fees to
the clerk of court and deposit the amount of P500.00 for costs at the time of
the filing of the petition.
The failure of the petitioner to comply any of the requirements shall be
sufficient ground for the dismissal of the petition.
40. CA rollo, pp. 77-81.
41. Id. at 84-88.
42. Id. at 97-99.
43. Rollo , p. 184.
55. Id.
56. Bernarte v. Philippine Basketball Association (PBA), G.R. No. 192084,
September 14, 2011, 657 SCRA 745, 753.
57. Gallardo-Corro v. Gallardo, supra note 1.
n Note from the Publisher: Copied verbatim from the official document. "Reyes v.
Court of Appeals" should read as "Neypes v. Court of Appeals".