Final order vs. interlocutory order; what is the proper remedy when a case is dismissed.
GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner, vs. ANTONIO P. OLISA, respondent. [G.R. No. 126874. March 10, 1999]
“x x x.
We find the petition impressed with merit.
The trial court’s order dismissing the complaint as against the GSIS is a final order, not an interlocutory one.[i] it “finally disposes of, adjudicates or determines the rights, or some rights of the parties, either on the controversy of some definite and separate branch thereof, and which concludes them until it is reversed or set aside.”[ii] hence, it is a “proper subject of appeal, not certiorari.”[iii]
However, respondent Olisa did not take an appeal from the order of dismissal. Instead, he filed a petition for certiorari with the Court of Appeals. Certiorari is not available where the proper remedy is an appeal in due course.[iv] And such remedy has lapsed because of respondent’s failure to take an appeal. “The special civil action of certiorari is not and can not be made a substitute for appeal or a lapsed appeal.”[v]
Obviously, respondent Olisa interposed the extraordinary action of certiorari in lieu of the remedy of appeal which he has lost.[vi] He alleged in the petition that there is “NO plain, speedy and adequate remedy in the ordinary course of law except the instant petition.”[vii] Notice that he omitted the term “appeal”. Indeed, he could not truly say that there is “NO appeal”.
Consequently, an action for certiorari will not prosper, for the rule is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law[viii] Of course, there are exceptions to the rule.[ix] One of which is that appeal would not be an adequate and effectual remedy.[x] None of the recognized exceptions applies to this case.
X x x.”