Professional Documents
Culture Documents
*
G.R. No. 167471. February 5, 2007.
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* THIRD DIVISION.
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ance that the allegations of the petition have been made in good
faith, or are true and correct, not merely speculative. This
requirement is simply a condition affecting the form of pleadings
and noncompliance therewith does not necessarily render it
fatally defective. Perusal of the verification in question shows
there was sufficient compliance with the requirements of the
Rules and the alleged defects are not so material as to justify the
dismissal of the petition in the Court of Appeals. The defects are
mere typographical errors. There appears to be no intention to
circumvent the need for proper verification and certification,
which are intended to assure the truthfulness and correctness of
the allegations in the petition and to discourage forum shopping.
Motions; It has been said that “ex parte motions are frequently
permissible in procedural matters, and also in situations and
under circumstances of emergency, and an exception to a rule
requiring notice is sometimes made where notice or the resulting
delay might tend to defeat the objective of the motion.”—It has
been held that a “motion for extension of time x x x is not a
litigated motion where notice to the adverse party is necessary to
afford the latter an opportunity to resist the application, but an ex
parte motion made to the
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tion that the judge will undertake his noble role to dispense
justice according to law and evidence and without fear and favor.”
Same; Same; Same; Same; The fact alone that the Court of
Appeals decided the case within eight months does not in any way
indicate bias and partiality against a party.—There is no factual
support to petitioner’s charge of bias and partiality. A perusal of
the records of the case fails to reveal that any bias or prejudice
motivated the Court of Appeals in granting respondent’s petition.
Neither did this Court find any questionable or suspicious
circumstances leading to the issuance of the questioned decision,
as suggested by petitioner. The fact alone that the Court of
Appeals decided the case within eight months does not in any way
indicate bias and partiality against petitioner. It is within the
constitutional mandate to decide the case within 12 months.
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CHICO-NAZARIO, J.:
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4
Respondent filed her notice of appeal. Thereafter, the case
was raffled to the RTC of Quezon City, Branch 223,
docketed as Civil Case No. Q-03-49437.5
In the Notice of Appealed Case, the RTC directed
respondent to submit her memorandum in accordance with
the provisions of Section 7(b) of Rule 40 of the Rules of
Court and petitioner to file a reply memorandum within 15
days from receipt.
Respondent’s counsel having received the notice on 19
May 2003, he had until 3 June 2003 within which to file
the requisite memorandum. But on 3 June 2003, he filed a
Motion for Extension of Time of five days due to his failure
to finish the draft of the said Memorandum. He cited as
reasons for the delay of filing his illness for one week, lack
of staff to do the work due to storm and flood compounded
by the
6
grounding of the computers because the wirings got
wet. But the motion remained unacted.
On 9 June 2003, respondent filed her Memorandum. On
19 June 2003, the RTC dismissed the appeal as follows:
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4 Id., at p. 283.
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5 Id., at p. 298.
6 Id., at p. 321.
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xxx
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7 Id., at p. 343.
8 Id., at p. 345.
9 Id., at p. 349.
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Moreover, parties and counsel should not assume that courts are
bound to grant the time they pray for. A motion that is not acted
upon in due time is deemed denied (Orosa vs. Court of Appeals,
261 SCRA 376 [1996]). Thus, defendant-appellant’s appeal was
properly dismissed on account of her failure to file an appeal
memorandum within the fifteen (15) day period provided under
Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure.
With regard to the “Motion for Immediate Execution,” dated
June 23, 2003, filed by plaintiff-appellee, the rule is explicit that
the execution of a judgment in an ejectment case, must be sought
with the inferior court which rendered the same. The appellate
court which affirms a decision brought before it on appeal cannot
decree its execution in the guise of an execution of the affirming
decision. The only exception is when said appellate court grants
an execution pending appeal, which is not the case herein (City of
Manila vs. Court
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of Appeals, 204 SCRA 362; Sy vs. Romero, 214
SCRA 187).”
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19 Tan v. Court of Appeals, 356 Phil. 1058, 1067-1068; 295 SCRA 755,
763 (1998).
20 Commercial Union Assurance Company Limited v. Lepanto
Consolidated Mining Company, G.R. No. L-43342, 30 October 1978, 86
SCRA 79, 96; citing Amante v. Judge Suñga, 159-A Phil. 476; 64 SCRA
192 (1975); Pimentel v. Court of Appeals, 159-A Phil. 728; 64 SCRA 475
(1975).
21 J.M. Tuason & Co., Inc. v. Magdangal, G.R. No. L-15539, 30 January
1962, 4 SCRA 84, 86.
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24 Sanchez v. Court of Appeals, 452 Phil. 665, 674; 404 SCRA 540, 546
(2003).
25 Records, Vol. 1, p. 321.
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31 Gochan v. Gochan, 446 Phil. 433, 447; 398 SCRA 323, 333 (2003).
32 People v. Kho, G.R. No. 139381, 20 April 2001, 357 SCRA 290, 297.
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SO ORDERED.
——o0o——
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