GR. No.
L-8883 July 14, 1959
ALFREDO M. VELAYO, ETC., plaintiff,
vs.
SHELL COMPANY OF THE PHILIPPINES ISLANDS, LTD., defendant-appellee.
ALFONSO Z. SYCIP, ET. AL., intervenors-appellants.
Sycip, Quisumbing, Salazar and Associates for appellants.
Ozaeta, Lichauco and Picazo for appellee.
BAUTISTA ANGELO, J.:
On December 17, 1948, Alfredo M. Velayo as assignees of the insolvent Commercial
Airlines, Inc., instituted an action against Shell Company of the Philippine Islands,
Ltd., in the Court of First Instance of Manila for injunction and damages (Civil Case
No. 6966). On October 26, 1951, a complaint in intervention was filed by Alfonso
Sycip, Paul Sycip, and Yek Trading Corporation, and on November 14, 1951, by
Mabasa & Company.
After trial wherein plaintiff presented evidence in his behalf, but none in behalf of
intervenors, the court rendered decision dismissing plaintiff's complaint as well as
those filed by the intervenors. On March 31, 1954, counsel for plaintiff filed a notice
of appeal, appeal bond, and record on appeal in behalf only of plaintiff even if they
also represent the intervenors, which in due time were approved, the Court
instructing its clerk to forward the record on appeal to the Supreme Court together
with all the evidence presented in the case. This instruction was actually complied
with.
On August 31, 1954, the Deputy Clerk of the Supreme Court notified counsel of
plaintiff that the record as well as the evidence have already been received and that
they should file their brief within 45 days from receipt of the notice. On November 2,
1954, counsel filed their brief for appellants. On November 6, 1954, or 7 months after
the judgment had become final as against the intervenors, and 4 days after counsel
for appellants had submitted the latter's brief, counsel for intervenors filed with the
Supreme Court a petition for correction of the record on appeal in order to enable
them to insert therein the names of the intervenors as appellants, the petition being
based, among others, on the ground that the omission of the names of the
intervenors in said record on appeal was due to the mistake of the typist who
prepared it while the attorney in charge was on vacation. The petition was vigorously
opposed by counsel for defendant, contending that the same would serve no
purpose, whatsoever considering that the intervenors had not presented any
evidence in support of their claim, aside from the fact that the alleged absence of the
attorney of the intervenors cannot constitute a justification for the alleged omission of
the intervenors as appellants. On November 12, 1954, the Court denied the petition.
Counsel intervenors moved for a reconsideration of the order, but the same was
denied.
On November 19, 1954, counsel for intervenors filed with the lower court a petition
for relief under Rule 38 of the Rules of Court, wherein he reiterated the same
grounds they alleged in the petition for correction filed by them in the Supreme
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Court, which petition was denied on November 27, 1954, for having been filed
outside the reglementary period fixed in said Rule 38. Counsel filed a motion for
reconsideration, which was again denied, the Court stating that "no judgment or
order has been rendered, nor any other proceeding taken by this Court on the right
of the intervenors to appeal."
On December 20, 1954, counsel filed once more a motion to amend the record on
appeal based on grounds identical with those alleged in the petition for correction
filed before the Supreme Court. On December 27, 1954, the lower court denied the
motion. On January 6, 1955, counsel filed a petition for relief from this last order
entered on December 27, 1954, to which counsel for defendant filed an opposition.
On February 5, 1955, hearing was had on both the petition for relief and the
opposition, and on February 9, 1955, the petition was denied on the ground that the
case is already before the Supreme Court on appeal. It is from this order that the
counsel for intervenors has taken the appeal now before us.
The instant appeal has no merit.
To begin with, the only remedy which appellants now seek in this appeal is the
inclusion of the intervenors as appellants in the appeal from the decision rendered in
the main case, but this remedy has already been denied twice by this Court, first, in
its resolution of November 12, 1954 denying their petition for correction of the record
on appeal, and, second, in denying their motion for reconsideration of said
resolution. It should be noted that the grounds relied upon in this appeal are the
same grounds alleged in said petition for correction.
In the second place, the intervenors have no right or reason to appeal from the
decision in the main case, it appearing that they did not introduce any evidence
during the trial in support of their complaint, which shows that their appeal would be
merely pro-forma. And, in any event, they made the attempt to amend the record on
appeal seven (7) months after the decision had become final against them.
In the third place, the intervenors have no right or reason to file a petition for relief
under Rule 38 of the Rules of Court from the order of the lower court issued on
December 27, 1954, for the reason that the same was entered upon a motion filed
by them. Indeed they cannot reasonably assert that the order was entered against
them through fraud, accident, mistake, or negligence. The fraud mentioned in Rule
38 is the fraud committed by the adverse party and certainly the same cannot be
attributed to the Court.
Finally, it appears that the main case has already been decided by this Court on the
merits on October 31, 1956, reversing the decision of the lower court and awarding
damages to plaintiff, which apparently is the very purpose which the intervenors seek
to accomplish in joining the appeal as co-appellants. This appeal, therefore, has
already become moot.
Wherefore, the order appealed from is affirmed, with costs against appellants.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Endencia and
Barrera, JJ., concu
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