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globeasiatique wins against pagibig : ca decision final and executory

written by delfin lee

ca-g.r.sp no. 128262

decision

page 20 of page 21

the propriety and correctness of the summary judgmentis a proper subject of an appeal under rule 41 as what was resorted to by fariaand atty. bernabe. we are also aware that public respondent’s denial of hdmf’smotion of reconsideration of the summary judgment made the case final in viewof its (hdmf’s) failure to file the correct appeal under rule 41 within the15-day period and it cannot be corrected by certiorari (under rule 65) as asubstitute appeal for a lost one (under rule 41). be that as it may the instantcase is far from being completely final and executor considering that faria andatty. bernabe have seasonably appealed the same under rule 41. to pass upon theabove mentioned matter, re propriety and correctness of summary judgment now inthe instant petition is not only improper but also hovers on procedural andjurisdictional matters not to mention that it would be premature as it preemptsthe proper and timely adjudication of the respective appeals (of faria and atty.bernabe) on its merits by this court at the proper opportune time.

whereof, there being no grave abuse of discretion amounting to lack ofexcess of jurisdiction on the part of public rendering the assailed resolutiondated january 30, 2012 containing the summary judgment and the resolution dateddecember 11, 2012 denying hdmf, faria and atty. bernabe’s motion forreconsideration, the instant petition is hereby dismissed.

so ordered.

stephen c. cruz

associatejustice

we concur:

magdangal m. deleon

associatejustice                                     

elihu a. ybanez

associatejustice