CA-G.R.SP NO. 128262


Page 20 of page 21

                The propriety and correctness of the Summary Judgment is a proper subject of an appeal under Rule 41 as what was resorted to by Faria and Atty. Bernabe. We are also aware that public respondent’s denial of HDMF’S Motion of Reconsideration of the Summary Judgment made the case final in view of its (HDMF’S) failure to file the correct appeal under Rule 41 within the 15-day period and it cannot be corrected by Certiorari (under Rule 65) as a substitute appeal for a lost one (Under Rule 41). Be that as it may the instant case is far from being completely final and executor considering that Faria and Atty. Bernabe have seasonably appealed the same under Rule 41. To pass upon the above mentioned matter, re propriety and correctness of Summary Judgment now in the instant petition is not only improper but also hovers on procedural and jurisdictional matters not to mention that it would be premature as it preempts the 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 of excess of jurisdiction on the part of public rendering the assailed Resolution dated January 30, 2012 containing the Summary Judgment and the Resolution dated December 11, 2012 denying HDMF, Faria and Atty. Bernabe’s Motion for Reconsideration, the instant petition is hereby DISMISSED.

                SO ORDERED.

                                                                                STEPHEN C. CRUZ

                                                                                Associate Justice

                WE CONCUR:

MAGDANGAL M. DE LEON                           ELIHU A. YBANEZ

        Associate Justice                                      Associate Justice


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