520 Phil. 449
By this petition for certiorari and mandamus under Rule 65 of the Rules of Court, petitioner Juan De Dios Carlos assails and seeks the setting aside of the May 20, 1998 Resolution
[1] of the Court of Appeals (CA) in CA- G.R. CV No. 57625 which denied his motion to dismiss private respondents' appeal from an earlier decision of the Regional Trial Court (RTC) of Muntinlupa City, Branch 256, in Civil Case No. 94-1964. The mandamus aspect of the petition prays the Court to compel the CA to dismiss said appeal.
The facts:
Civil Case No. 94-1964, entitled
Juan de Dios Carlos v. Felicidad S. Vda. de Carlos, et al., is an action for partition, recovery of property, reconveyance with damages. Petitioner is the plaintiff in that case while the herein private respondents are two of the defendants therein. The case was earlier concluded between the petitioner and the other defendants. However, a full-blown trial transpired as between the petitioner and the herein private respondents.
Involved in that case is a parcel of land located at Alabang, Muntinlupa City, covered by Transfer Certificate of Title (TCT) No. 139061 in the name of petitioner's deceased brother Teofilo Carlos. It was previously registered in the name of petitioner's father, Felix Carlos.
Prior to Felix's death, Teofilo, a lawyer, advised his father to transfer all his properties to one of the children in order to avoid payment of inheritance taxes and other expenses. Felix agreed, provided that the rights of all the other heirs will be respected and their shares duly delivered to them. The subject property was among those transferred to Teofilo.
Before the intended property partition could be effected, however, Teofilo died, survived by his spouse, Felicidad Carlos. Sometime in the early part of 1994, the petitioner demanded the division of the subject property and asked Felicidad for reimbursement of the expenses he advanced for Teofilo's hospitalization and burial. The request irked Felicidad who told the petitioner that the property no longer pertained to the Carlos family, the same having already been lost in a court case with the herein respondent spouses Pedro Balbanero and Jovita Amiths-Balbanero. This prompted the petitioner to file the partition case,
Civil Case No. 94-1964, against Felicidad.
Petitioner would, upon inquiry, later discover about a sales agreement over the subject property which his brother Teofilo, during his lifetime, entered into with the private respondent spouses. This agreement, as it turned out, was the subject of a litigation which culminated in the CA ordering Teofilo to comply with the terms thereof by executing in favor of the private respondent spouses a deed of absolute sale for the entire property upon payment of the agreed purchase price.
Subsequent events saw the petitioner asking the private respondents to exclude his one-half (1/2) share in the property from the sales transaction. Upon being rebuffed, the petitioner proceeded to implead the private respondents in the partition case.
After due proceedings, the trial court, in a decision
[2] dated November 28, 1997, upheld the hereditary nature of the subject property and declared that the registration of the title in the name of Teofilo Carlos established an implied trust in favor of the other compulsory heirs, such as the petitioner, with respect to their respective shares in the estate of the decedent Felix Carlos. Dispositively, the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff [now petitioner] and against defendants [now respondents] spouses Balbanero as follows:
- Declaring and confirming the ownership by plaintiff of an undivided one-half (1/2) share of the net area, after deducting the 2,331 square meters adjudicated to the plaintiffs in Civil Case No. 11975 of the property covered by [TCT] No. 139061 of the Register of Deeds of Makati City.
- Ordering the exclusion of the said plaintiff's one-half (1/2) undivided share from any deed of absolute sale should one be ordered executed in favor of defendants spouses Balbanero in Civil Case No. 18358 entitled "Pedro Balbanero, et al. v. Teofilo Carlos, et al.," before Branch 60, Regional Trial Court of Makati City;
- Declaring that the other half of the said property covered by TCT No. 139061, which pertained to Teofilo Carlos, is subject to plaintiff's right of pre-emption or redemption;
- Ordering defendants spouses Balbanero to pay plaintiff the amount of Php100,000.00 as moral damages and Php250,000.00 as attorney's fees;
- Ordering the dismissal of defendants spouses Balbanero's counterclaims.
Costs against defendants spouses Balbanero.
SO ORDERED. (Words in bracket added.)
From the aforementioned decision, two (2) Case after case, this Court stressed the rule that failure to pay the appellate court docket fee within the reglementary period confers a discretionary, and not mandatory, power to dismiss the proposed appeal, and that such power should be used in the exercise of the court's sound judgment in accordance with the tenets of justice and fair play and with a great deal of circumspection considering all attendant circumstances. Said "discretion must be exercised wisely and prudently, never capriciously, with a view to substantial justice."
Sec. 5. Fees to be paid by the advancing party. —
xxx If the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the appeal or the action or proceeding.