APPEALS

Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
APPEAL. The law on appeal starts from Rule 40 to
Rule 56. Usually the appeal is from the trial court to
the next higher court. Under the judiciary law, appeals
from the MTC should be to the RTC which is governed
by Rule 40. And when the case is tried by the RTC and
you want to appeal, normally, the appeal should be to
the CA under Rule 41.
We will stick to the basic rule on appeal found in the
judiciary law, Section 39, BP 129:
Sec 39. Appeals. - The period for appeal from
final orders, resolutions, awards, judgments or
decisions of any court in all cases shall be
fifteen (15) days counted from the notice of the
final order, resolution, award, judgment, or
decision appealed from: Provided, however,
That in habeas corpus cases, the period for
appeal shall be forty-eight (48) hours from the
notice of the judgment appealed from.
No record on appeal shall be required to take an
appeal. In lieu thereof, the entire original record
shall be transmitted with all the pages
prominently numbered consecutively, together
with an index of the contents thereof.
This section shall not apply in appeals in special
proceedings and in other cases wherein
multiple appeals are allowed under applicable
provisions of the Rules of Court.
There are three (3) instances under Section 39:
Type of Case
A. Civil Actions in general
B. Special Proceedings and Civil Actions where
multiple appeal is allowed
C. Habeas Corpus

So this is the general outline of the law on appeals

under Section 39, BP 129.
[EDITORS NOTE: The 48-hour period to appeal in
habeas corpus cases under Section 39 of BP 129 is
now incorporated in Rule 41, Section 3 as amended,
which took effect last July 15, 2000 (A.M. No. 01-1-03SC)]
Rule 40 refers to appeal from the MTC to the RTC. The
appellate jurisdiction of the RTC is found in Section 22,

BP 129. That is why Rule 40 is revolving around that

provision:
BP 129, Sec. 22.
Appellate
jurisdiction.
Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by MetTCs,
MTCs and MCTCs in their respective territorial
jurisdictions. Such cases shall be decided on
the basis of the entire record of the
proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted
by the parties or required by the RTCs. The
decision of the RTCs in such cases shall be
appealable by petition for review to the CA
which may give it due course only when the
petition show prima facie that the lower court
has committed an error of fact or law that will
warrant a reversal or modification of the
decision or judgment sought to be reviewed.

Let us now go to Section 1 of Rule 40:

Section 1. Where to appeal. An appeal from a
judgment or final order of a Municipal Trial
Court may be taken to the Regional Trial Court
exercising jurisdiction over the area to which
the former pertains. The title of the case shall
remain as it was in the court of origin, but the
party appealing the case shall be further
referred to as the appellant and the adverse
party as the appellee. (n)
So from the MTC, the appeal is to the RTC exercising
jurisdiction over the area to which the former pertains.
That is why under the judiciary law, every RTC has a
designated territorial area. So, if you want to appeal
from the decision of the MTC of Davao City, you
appeal to the RTC of Davao. You do not make your
appeal to the RTC of Tagum because it does not
exercise jurisdiction over Davao City.
And take note under Section 1, it is now required that
when you appeal from the MTC to the RTC, you should
indicate in the caption of the case who is the
APPELLANT and the APPELLEE. This is also the
procedure when you are appealing to the SC.
The appellant is the party appealing the case
while the appellee is the adverse party. So for
example, the original title of the case in the MTC is:
JOBOY, plaintiff vs. BROSIA, defendant. If Joboy will
appeal the case, the title of the case now in the RTC
will be: JOBOY, plaintiff-appellant vs. BROSIA,
defendant-appellee. Or, if Brosia will be the one
appealing the case, the title now will be: JOBOY,
plaintiff-appellee vs. BROSIA, defendant-appellant.

The period to appeal is in Section 2:

Sec. 2. When to appeal. An appeal may be taken
within fifteen (15) days after notice to the
appellant of the judgment or final order
appealed from.
Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within thirty (30) days after
notice of the judgment or final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion
for new trial or reconsideration shall be
allowed. (n)
In relation to certain jurisprudence, the 15-day
period cannot be extended. (Lacsamana vs. IAC,
143 SCRA 643) It cannot be extended but it can
be interrupted by a timely motion for new trial
or reconsideration. And no motion for extension
of time to file a motion for new trial or
reconsideration shall be allowed. (Section 2)
Q: How about the 30-day period? Is the 30-day period
extendible?
A. YES. It is extendible for record on appeal, on
the condition that the Motion to Extend must be
filed within the original 30 days and provided
further that the movant has no right to expect
that his motion will be granted.
So the 15-day period can never be extended but
the 30-day period is extendible based on
jurisprudence. This is because a notice of appeal is
normally a one-paragraph document. You can do that
in just 5 minutes. But a record on appeal is makapal.
That is why it is 30 days. Sometimes kulangin pa yung
30-day period. So you can extend it provided you file
the motion for extension during the original 30-day
period.
Sec. 3. How to appeal. The appeal is taken by
filing a notice of appeal with the court that
rendered the judgment or final order appealed
from. The notice of appeal shall indicate the
parties to the appeal, the judgment or final
order or part thereof appealed from, and state
the material dates showing the timeliness of
the appeal.
A record on appeal shall be required only in
1.
special proceedings and

2.
in other cases of multiple or separate
appeals.
The form and contents of the record on appeal
shall be as provided in section 6, Rule 41.
Copies of the notice of appeal, and the record
on appeal where required, shall be served on
the adverse party. (n)

Q: How do you appeal?

A: Under Section 3, you file a Notice of Appeal to the
court that rendered judgment, so MTC. And it shall
indicate the parties to the appeal, the judgment or
final order or part thereof appealed from, and state
the material dates showing the timeliness of the
appeal. For example:
Notice of Appeal
Defendant hereby serves notice that he is appealing
to the RTC from the judgment rendered by the MTC
dated March 5, 1998 copy of which was received by
him on March 15, 1998.
So it is very simple to make. And you must indicate
exactly not only the date of the decision but
also the date when you received it because the
running of the period to appeal does not run
from the date of the decision but from the time
you received it. That is why the rule says, you must
state the material dates showing the timeliness of the
appeal. (Record on appeal is discussed in Rule 41,
Section 6.)
Of course, the adverse party should be
furnished with a copy of the notice of appeal.
Sec. 4. Perfection of appeal; effect thereof. The
perfection of the appeal and the effect thereof
shall be governed by the provisions of section
9, Rule 41.
Q: When is the appeal deemed perfected?
A: See discussion under Section 9, Rule 41. From the
moment the appeal is deemed perfected, the MTC
loses jurisdiction over the case. And by fiction of law,
jurisdiction is automatically transferred to the RTC.
Sec. 5. Appellate court docket and other lawful fees.
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from the full amount of the appellate
court docket and other lawful fees. Proof of
payment thereof shall be transmitted to the
appellate court together with the original

record or the record on appeal, as the case may

be. (n)
Within the period to appeal (normally within 15 days),
the appellant must pay the docket fee. So that when
the records are transmitted, bayad na. Even before
this rule came out, the payment of appellate docket
fee is really required. The rule is the same.
Q: Suppose I will file my Notice of Appeal within 15
days but I will not pay the docket fee, should my
appeal be dismissed? Is it an additional requirement
for appeal?
A: In the case of
SANTOS vs. COURT OF APPEALS
253 SCRA 632 [1996]
ISSUE: Will the failure to pay appellate fee
automatically cause the dismissal of the appeal in the
MTC to the RTC ?
HELD: The payment of appellate fee is found in
Section 8 of Rule 141. But the SC observed that the
only requirement is Notice of Appeal. There is no
mention of appellate fee. The payment of appellate
fee is not a requisite to the perfection of an appeal
although Rule 141 does not specify when said
payment shall be made. It does not automatically
result in the dismissal of the appeal unless it affects
the jurisdiction. The dismissal being discretionary on
the part of the appellate court, such dismissal should
be exercised wisely.
This ruling is still applicable. Although Section 5
prescribes that within the period to take appeal
you must pay the docket fee. If you do not pay
it, it may not cause ipso facto the dismissal of
your appeal. But the clerk of court may refuse
to transmit the record to the RTC until you pay.
So docket fee is not a requirement to perfect an
appeal although it is an obligation also.
Sec. 6. Duty of the clerk of court. Within fifteen
(15) days from the perfection of the appeal, the
clerk of court or the branch clerk of court of the
lower court shall transmit the original record or
the record on appeal, together with the
transcripts and exhibits, which he shall certify
as complete, to the proper Regional Trial Court.
A copy of his letter of transmittal of the records
to the appellate court shall be furnished the
parties. (n)
What is the requirement to perfect an appeal? It
is notice of appeal only or record on appeal also
for special proceedings.

Section 5 of this rule now states that when the party

takes an appeal, it is the obligation of the appellant to
pay the appellate docket fee which is imposed by Rule
141 so that the clerk of the MTC will elevate the
appeal to the MTC.
Sec. 7. Procedure in the Regional Trial Court. (a)
upon receipt of the complete record or the
record on appeal, the clerk of court of the
Regional Trial Court shall notify the parties of
such fact.
(a)
Within fifteen (15) days from
such notice, it shall be the duty of the appellant
to submit a memorandum which shall briefly
discuss the errors imputed to the lower court, a
copy of which shall be furnished by him to the
adverse party.
Within fifteen (15) days from receipt of the
appellants memorandum, the appellee may file
his memorandum.
Failure of the appellant to file a memorandum
shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the
appellee, or the expiration of the period to do
so, the case shall be considered submitted for
decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the
proceedings had in the court of origin and such
memoranda as are filed. (n)
What happens if the case reaches the RTC? Section 7
answers it. The clerk court shall notify the parties.
What is important here is paragraph [b], a radical
provision:
(b) Within fifteen (15) days from such notice, it
shall be the duty of the appellant to submit a
memorandum which shall briefly discuss the
errors imputed to the lower court, a copy of
which shall be furnished by him to the adverse
party. Within fifteen (15) days from receipt of
the appellants memorandum, the appellee may
file his memorandum. Failure of the appellant to
file a memorandum shall be a ground for
dismissal of the appeal.
The procedure under the OLD RULES is found on
Section 22 of the Interim Rules. When the case is
appealed to the RTC, the case will be decided by the
RTC based on the record on appeal together with a
memorandum as the court may require the parties. In
other words, the court may or may not require the
parties to file a memorandum.

NOW, the present rule says, within 15 days from

notice, it is your obligation to file a memorandum. If
the appellant fails to file a memorandum in the RTC,
his appeal will be dismissed. The filing of an appeal
memorandum in the RTC is mandatory because you
must point out to the RTC kung saan nagkamali. You
help the RTC judge look for the error.
Q: Suppose the appellant has filed his memorandum
and it is the appellee who failed to file his
memorandum. What is the effect of such failure?
A: Under paragraph [c], the case shall be
submitted for decision without appellees
memorandum.
And it does not necessarily
mean that the appellee will lose the case by not
filing his memorandum because for all you know
the decision of the lower court is very clear,
whether he files a memorandum or not, he will
still wins.
Another radical change is Section 8:
Sec. 8. Appeal from orders dismissing case without
trial; lack of jurisdiction.
If an appeal is taken from an order of the lower
court dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or
reverse it, as the case may be.
In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject
matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case on the
merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded
for further proceedings.
If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the Regional Trial Court on appeal shall
not dismiss the case if it has original
jurisdiction thereof, but shall decide the case in
accordance with the preceding section, without
prejudice to the admission of amended
pleadings and additional evidence in the
interest of justice. (n)
The case was dismissed by the MTC without trial on
the merits.

disposing of the case without trial. Now, RTC said,

MTC has jurisdiction.
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas
against Ka Noli is for P500,000 before the MTC. It is
clear that the MTC has no jurisdiction. Ka Noli moved
to dismiss the case and it was dismissed. But Tomas
appealed to the RTC believing that the dismissal was
wrong. Of course the order of the MTC is correct. It
should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead
assumes jurisdiction. The RTC which has
jurisdiction, shall try the case on the merits as
if the case was originally filed in the RTC.
The second paragraph has slight modification:
PROBLEM: Tomas files a case against Ka Noli for
P500,000 before the MTC. Ka Noli file a motion to
dismiss on the ground of lack of jurisdiction. But the
motion to dismiss of Ka Noli was denied and the court
tried the case. So, the trial is void. The judgment
rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of
the MTC which tried a case even though it has no
jurisdiction over it?
A: Since the decision (on the merits) was
appealed to the RTC, the RTC will assumes
jurisdiction over the case. The RTC will convert
the appellate jurisdiction into an original
jurisdiction instead of dismissing an appeal. It
will treat it as if it has been filed for the first
time in the RTC and not as an appealed case.
The purpose here is to avoid double payment of
docket fees.
Sec. 9. Applicability of Rule 41. The other
provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not
inconsistent with or may serve to supplement
the provisions of this Rule. (n)
Rule 41 provisions may also be used in appeals from
MTC to RTC. It is more comprehensive. It refers to
appeal from RTC to CA on cases decided by the RTC
pursuant to its original jurisdiction. This is also
applicable to Rule 40 insofar as they are not
inconsistent.
Rule 41

PROBLEM: Tomas filed a case against Ka Noli to collect

a loan of P50,000 before the MTC. But upon motion to
dismiss alleging that MTC has no jurisdiction, the court
dismissed the complaint without trial. That is

APPEAL FROM THE REGIONAL TRIAL COURTS

Majority of the important rules are found here in Rule

41.
Section 1. Subject of appeal. An appeal may be
taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by
these Rules to be appealable.

Q: What is the definition of a final judgment or for

purpose of appeal?
A:
A judgment or order is final if it disposes of the
pending action so that nothing more can be done in
the trial court with respect to its merits. (Salazar vs.
De Torres, 58 O.G. 1713, Feb. 26, 1962; Bairan vs. Tan
Sui Lay, L-19460, Dec. 28, 1966)

No appeal may be taken from:

(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or
any other ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one
or more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom;
and
(h) An order dismissing an action without
prejudice.
In all the above instances where the judgment
or final order is not appealable, the aggrieved
party may file an appropriate special civil action
under Rule 65. (n)

Q: On the other hand, what is an interlocutory

judgment or order?
A: An interlocutory order is something which does not
completely dispose of the action and there is still
something for the court to do after its rendition.
(Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs.
Fabrica, 80 Phil. 762) Actually, the law does not
prohibit a party from appealing an interlocutory
judgment or order, only you cannot appeal
immediately. (Abesamis vs. Garcia, 98 Phil. 762)

Q: What orders or judgment are subject to appeal ?

A: Only FINAL judgments or orders can be appealed as
distinguished from interlocutory judgments or orders
(paragraph [c])which are not appealable.

Rule 3, Sec. 20. Action on contractual money claims.

- When the action is for recovery of money
arising from contract, express or implied, and
the defendant dies before entry of final
judgment in the court in which the action was
pending at the time of such death, it shall not
be dismissed but shall instead be allowed to
continue until entry of final judgment.
A
favorable judgment obtained by the plaintiff
therein shall be enforced in the manner
especially
provided
in
these
Rules
for
prosecuting claims against the estate of a
deceased person. (21a)

FINAL JUDGMENT OR ORDERSthe term final has

two (2) possible meanings in Civil Procedure:
[1] The judgment is final in the sense that it is already
executory and that happens if there is no appeal. And
that is for purposes of applying Rule 39 on execution.
[2] The judgment is final in the sense that it is not
merely interlocutory and this is for the purpose of
applying the law on appeal under Rule 41. In other
words, a final order or judgment (for purposes of
appeal) is one which is not merely interlocutory
in the sense that it completely disposes of the
case or a particular matter therein where there
is nothing more for the court to do after its
rendition. (Bairan vs. Tan Sui Lay, L-19460, Dec. 28,
1966)

Q: What is the test for determining whether a

judgment or order is final or interlocutory?
A: The test for the determination of whether a
judgment or order is final or interlocutory is this: Does
it leave something to be done in the trial court with
respect to the merits of the case? If it does, it is
interlocutory, hence, you cannot appeal yet; if it does
not, it is final and therefore you can appeal. (Reyes vs.
De Leon, L-3720, June 24, 1952)
So you must know the meanings of the word final in
civil procedure to avoid confusion. A good example is
Section 20 of Rule 3 where the word final was first
mentioned:

The word final here in Section 20 refers to the second

meaning that the judgment is final in the sense that it
is not merely interlocutory
BAR QUESTION: Plaintiff vs. Defendant. Defendant file
a motion to dismiss under Rule 16. The court granted
the motion and consequently ordered the dismissal of

the complaint of the plaintiff. Can the plaintiff appeal

from the order dismissing his complaint?
A: We will apply the test: Is there anything more for
the court to do after issuing the order of dismissal?
Wala na! [Awanen!] Ano pa ba ang gagawin eh nadismiss na nga eh! Therefore, the order of dismissal is
a final order it has completely disposed of the case
hence, the plaintiff can appeal.
PROBLEM: Lets modify the problem: Plaintiff vs.
Defendant. Defendant file a motion to dismiss under
Rule 16. The court denied the motion to dismiss. Can
the defendant appeal from the order of the court
denying his motion to dismiss?
A: Again, we will apply the test: Is there anything
more for the court to do after denying the motion to
dismiss of the defendant? Yes because after the court
denies such motion, the defendant will now file his
answer, then there will be pre-trial, trial, judgment.
Meaning, after denying the motion to dismiss, may
trabaho pa ako. Therefore, the order denying the
motion to dismiss is interlocutory, hence the
defendant cannot appeal.
Q:
So how do you appeal from an interlocutory
order?
A:
The procedure if there is an order which is
against you but it is not appealable, you have to
wait. The case is to be tried and then you have
to wait for the final judgment to be rendered
and if you are dissatisfied with the judgment,
that is the time you appeal from the said
judgment together with the interlocutory orders
issued in the course of the proceeding. (Mapua
vs. Suburban Theaters, Inc., 81 Phil. 311) So there
should only be one appeal form that case. Thats why,
as a general rule, the law on Civil Procedure prohibits
more that one appeal in one civil action.
The reasons why interlocutory orders are not
appealable are to avoid multiple appeals in one civil
case since the order is interlocutory and the court still
continues to try the case in the course of the
proceeding, the court will realize its error and the
court may change its order so it will be given an
opportunity to corrects its own mistake. (Manila Elec.
Co. vs. Artiaga, 50 Phil. 147)
Take note of the new rule saying that a judgment or
order is final if it disposes of the case or of a
PARTICULAR MATTER. So, it is not necessarily the
whole case.
In the case of DAY vs. RTC (191 SCRA 640), a case
filed by A against B, X filed a motion to intervene and
it was denied. Can X appeal the denial? Now, it would
seem that the order is interlocutory because the

court, after denying the motion to intervene, still has

something to do since the case between A and B will
continue. But according to the SC, YES, X can
appeal because the order denying the motion to
intervene is final.
But is it not true that the court has something to do
after denying such motion? Yes but what the SC is
trying saying is that, as far as Xs right is concerned,
the court has nothing to do anymore. Marami pa
akong trabaho dito (case between A and B), pero kay
X wala na. That is why the order denying the motion
to intervene is a final order and is appealable. Kaya
nga the test that there is nothing more for the court to
do is very confusing. In other words, you divide the
case into parts.
DAY vs. RTC OF ZAMBOANGA CITY
191 SCRA 640
HELD: An order which decides an issue or issues in a
complaint is final and appealable, although the other
issue or issues have not been resolved, if the latter
issues are distinct and separate from the others.

REPUBLIC vs. TACLOBAN CITY ICE PLANT

258 SCRA 145 [1996]
HELD: A court order is final in character if it puts an
end to the particular matter resolved or settles
definitely the matter therein disposed of, such that no
further questions can come before the court except
the execution of the order. Such an order or judgment
may validly refer to the entire controversy or to some
definite and separate branch thereof.
So the opening paragraph of Section 1 is in
accordance with the DAY and TACLOBAN cases. In
other words, either the whole case is disposed of
or a particular matter therein has been
disposed of.
Q:
If I cannot appeal because Section 1 of Rule 41
prohibits an appeal, is there a way of hastening the
issue before the appellate court in order to avoid the
waste of time and effort and money of entering into a
trial which is null and void because of lack of
jurisdiction?
A:
The answer is the last paragraph of Section 1:
In all the above instances where the judgment
or final order is not appealable, the aggrieved
party may file an appropriate special civil action
under Rule 65. (n)

So if appeal is not available, the correct remedy is an

appropriate special civil action under Rule 65. There
are three civil actions there: Certiorari, Prohibition,
Mandamus.
The present Rule 41 tells us exactly what orders
cannot be appealed:
(a) An order denying a motion for new trial or
reconsideration;
So
when
a
motion
for
new
trial
or
reconsideration is denied, there is no appeal
from that order. Your remedy is you appeal from
the judgment, not from the order denying your
motion for new trial or reconsideration. That is
found on Rule 37, Section 9:
Section 9. Remedy against order denying a motion
for new trial or reconsideration.- An order denying a
motion for new trial or reconsideration is not
appealable, the remedy being an appeal from
the judgment or final order.
So the correct remedy is in Rule 37 you appeal from
the judgment, not from the order denying the
motion for new trial or reconsideration.
(b) An order denying a petition for relief or any
similar motion seeking relief from judgment;
Paragraph [b] has changed some decided cases in the
past. Before, an order granting a petition for relief is
interlocutory but an order denying a petition for relief
is final. NOW, wala na yan! Whether it is an order
granting or denying a petition for relief, you cannot
appeal.
So what is remedy for such order? Go with special
civil action under Rule 65 as provided in the last
paragraph of Section 1.
Give an example of an order denying a motion other
than a petition for relief: motion for new trial. So it is
not appealable.
Suppose I am declared in default, can I appeal from a
DEFAULT JUDGMENT ? The 1964 rules says, yes. You
notice that such provision is lost. There is no more
direct provision on that. But still, it is appealable. The
provision in the old rules is not necessary. There is
nothing in paragraphs [a] to [h] prohibiting an
appeal from a default judgment. So it falls
under the general rule.

Q: How about the order to LIFT the order of default?

Suppose you file a motion to set aside the judgment
of default and motion is denied, can you appeal?
A: NO, because the law says, an order denying
any similar motion seeking relief from judgment
cannot be appealed. As a matter of fact, the 1995
case of MANILA ELECTRIC COMPANY vs. CAMPANA
FOOD PRODUCTS (246 SCRA 77), there is no such
remedy as a motion to set aside an order of default
but there is no provision in the rules to set aside a
judgment of default. The correct remedy is to
appeal from the judgment of default not to set
aside. And that is clear. The default judgment is
appealable.
(d) An
appeal;

order

disallowing

or

dismissing

an

So, if an appeal is dismissed, you cannot appeal from

the order dismissing it. What is the remedy? The 1964
rules provides for the remedy of mandamus. That is a
direct provision because if the appeal is on time , the
duty of the court to grant due course to the appeal is
ministerial. There is no more such provision in the
present rules because it is already provided in the last
paragraph.
Another possible remedy where an appeal is allowed
aside from the mandamus is if I lost my right to
appeal because of fraud, mistake accident and
inexcusable negligence, the other possible remedy is
a petition for relief from judgment denying my appeal
and that is found in Rule 38, Section 2:
Rule 38, Sec. 2. Petition for relief from denial of
appeal. When a judgment or final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from
taking an appeal, he may file a petition in such
court and in the same case praying that the
appeal be given due course. (1a)
So, aside from the remedy under Rule 65, the other
possible remedy is a petition for relief from the order
denying the appeal.
(e) An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or
any other ground vitiating consent;
PROBLEM: So there is a judgement by consent
(cognovit judgment) and the motion to set aside such
judgment
is denied. The order of denial is not
appealable. So again, there is judgement by
confession or compromise and then you file a motion

to set aside the judgement of compromise on the

ground of fraud, mistake or duress or any other
ground. Motion denied!
Q: Can you appeal?
A: NO. (paragraph [e])
Q: So what is my remedy?
A: You file a separate case for annulment
such judgment (Rule 47). In the case of

for

DOMINGO vs. COURT OF APPEALS

255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an
action for annulment of judgment before the Court of
Appeals pursuant to Section 9, par. 2, of the Judiciary
Law.
A compromise may however be disturbed and
set aside for vices of consent or forgery. Hence,
where an aggrieved party alleges mistake,
fraud, violence, intimidation, undue influence,
or falsity in the execution of the compromise
embodied in a judgment, an action to annul it
should be brought before the Court of Appeals,
in accordance with Section 9(2) of Batas
Pambansa Bilang 129, which gives that court
(CA) exclusive original jurisdiction over actions
for annulment of judgments of regional trial
courts.
(f) An order of execution;
So you cannot appeal from an order of execution
because if we will allow the losing party to appeal
from an order of execution, then there will be no end
to litigation. Kaya nga execution, eh it means tapos
na ang kaso. That case is finished, decided, final.
But suppose the order of execution contains portions
which are not found in the judgment, meaning, the
order of execution is changing the judgment which
should not be done, then obviously, the correct
remedy is certiorari under Rule 65 because of grave
abuse of discretion.
(g) A judgment or final order for or against one
or more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom;
The best example of a judgment of final order where
there are separate claims is found in Rule 36. There
could be more than one judgment in one civil case
and there can be more than one decision judgment
on the main action, on the counterclaim, etc. (c.f.
Sections 4 and 5, Rule 36)

Q:
Everytime a judgment is issued, can you appeal
already form the first judgment when there will be a
second judgment in that civil action? Can you appeal
from all these separate judgment?
A:
No, unless the court allows an appeal
therefrom. Generally, you have to wait for all
the judgments to be rendered before you can
appeal because, normally, there can be no
appeal from every judgment rendered. A good
example of this is in the case of

PROVINCE OF PANGASINAN vs. COURT OF

APPEALS
220 SCRA 726
FACTS: This was a partial summary judgment under
Rule 35. Is it appealable? One party claims that a
partial summary judgment is appealable because of
Rule 36, where the court allows an appeal therefrom.
But according to the Supreme Court:
HELD: A partial summary judgment is not
covered by Rule 36. It is governed by Rule 35
and there is no appeal because it is merely
interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated on
motion. If on motion under this Rule, judgment is
not rendered upon the whole case or for all the
reliefs sought and a trial is necessary, the court
at the hearing of the motion, by examining the
pleadings and the evidence before it and by
interrogating counsel shall ascertain what
material
facts
exist
without
substantial
controversy and what are actually and in good
faith controverted. It shall thereupon make an
order specifying the facts that appear without
substantial controversy, including the extent to
which the amount of damages or other relief is
not in controversy, and directing such further
proceedings in the action as are just. The facts
so specified shall be deemed established, and
the trial shall be conducted on the controverted
facts accordingly.
Q:
When can there be a partial summary
judgment?
A:
When some portions of a claim are substantially
controverted and the rest are not substantially
controverted. So the court is authorized to render a
partial summary judgment on the claim where there is
no genuine issue we continue trying the case with
respect to the claim where there is a genuine issue.
So there will be two judgments. A summary judgment

for one claim and an ordinary judgment for the other

claim. So nauna yung partial summary judgment.

3)
Appeal By Certiorari (appeal from
RTC direct to the SC on pure questions of law)

Q:
Can you appeal from there immediately?
A:
NO, you have to wait for the other
judgment to come out. You cannot appeal from
that partial summary judgment while the main
case is pending, unless the court allows appeal
therefrom.

Sec. 2. Modes of appeal.

(a) Ordinary appeal.- The appeal to the Court of
Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction
shall be taken by filing a notice of appeal with
the court which rendered the judgment or final
order appealed from and serving a copy thereof
upon the adverse party. No record on appeal
shall be required except in special proceedings
and other cases of multiple or separate appeals
where the law or these Rules so require. In such
cases, the record on appeal shall be filed and
served in like manner.

(h) An order
prejudice.

dismissing

an

action

without

If an action is dismissed without prejudice, it cannot

be appealed because, as it is without prejudice, you
can re-file the case. But supposed the dismissal
without prejudice is arbitrary, and I dont want to refile because it is too costly and I really want to
question the court dismissing my case without
prejudice, I want to challenge the order. Now, because
appeal is not appealable, your remedy is Rule 65 on
certiorari.
Q: Give examples of dismissal of cases without
prejudice.
A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f], [h],
[i]):
Rule 16, Sec. 5. Effect of dismissal. Subject to
the right of appeal, an order granting a motion
to dismiss based on paragraphs (f), (h) and (i)
of section 1 hereof shall bar the refiling of the
same action or claim.
Rule 16, Section 1. Grounds. Within the time for
but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss
may be made on any of the following grounds:
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(h) That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded
is unenforceable under the provisions of the
statute of frauds;
Another new provision is Section 2. But, actually, the
principles are not new. How do you appeal from the
RTC to the CA? (or to a higher court) Take note that
Section 2 tells us that there are 3 possible ways:
1)
Ordinary Appeal (in cases decided
by the RTC pursuant to its original jurisdiction)
2)
Petition For Review (in cases
decided by the RTC pursuant to its appellate
jurisdiction)

Ordinary Appeal is the mode of appeal from

RTC to CA in cases decided by the RTC pursuant
to its original jurisdiction.
Just like in Rule 40, you file a notice of appeal with the
RTC furnishing the adverse/losing party. No record on
appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where
the law or these Rules so require.
(b) Petition for review.- The appeal to the Court of
Appeals in cases decided by the Regional Trial
Court in the exercise of its appellate jurisdiction
shall be by petition for review in accordance
with Rule 42.
Actually, this was already touched in Judiciary Law.
How do you appeal to the CA from the RTC in cases
decided by the RTC pursuant to its appellate
jurisdiction? not by ordinary appeal but by petition
for review.
ORDINARY APPEAL (par. A)

The case was decided by the RTC pursuant to its or

jurisdiction. The case was originally filed in the RTC.
EXAMPLE: You filed an action for recovery of money
amounting to P1 million. Obviously the jurisdiction is
in the RTC. Now, natalo ka and you want to go to the
CA. What is your mode of appeal? Ordinary Appeal
because the case was decided by the RTC pursuant to
its original jurisdiction.
EXAMPLE: In paragraph B, the case is recovery of sum
of money amounting to P50,000. Saan i-file yan? MTC
man yan ba. Now, you lose, where will you appeal and
what is the mode of appeal? RTC by Ordinary appeal.
Suppose, talo ka pa rin sa RTC and you want to go to
CA. This time, the mode of appeal is not by ordinary
appeal but by petition for review because the case

now being appealed has been decided by the RTC

pursuant to its appellate jurisdiction.
(c) Appeal by certiorari.- In all cases where only
questions of law are raised or involved, the
appeal shall be to the Supreme Court by
petition for review on certiorari in accordance
with Rule 45.
This goes back to the jurisdiction of the SC. The SC
has exclusive, appellate jurisdiction in certain cases
constitutionality of a law, treaty is in issue, jurisdiction
of the court is in issue, and when only questions of
law are being raised.
So the case is in the RTC and you lost. You
would like to appeal on pure question of law.
Now, do not go to the CA for it has no
jurisdiction. You by-pass CA and go directly to
the SC on appeal by certiorari in accordance
with Rule 45.

yung ruling nyo ba. Under the judiciary law, it is 48hours! Two months after the conversation, Section 3
was amended. [ehem!]
Alright, the period to appeal shall be interrupted by
timely motion for new trial or motion for new
consideration provided that the motion for new trial is
not a pro forma motion (Rule 37, Section 2).
LABITAD vs. COURT OF APPEALS
246 SCRA 434 [1995]
FACTS: You receive a judgment on January 31. You
filed a motion for reconsideration on February 10. So,
interrupted and then on February 20, you receive the
order denying the motion for reconsideration. When is
the last day to appeal?

Sec. 3. Period of ordinary appeal. The appeal shall

be taken within fifteen (15) days from notice of
the judgment or final order appealed from.
Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within thirty (30) days from
notice of the judgment or final order. However,
an appeal in habeas corpus cases shall be taken
within forty-eight (48) hours from notice of the
judgment or final order appealed from.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion
for new trial or reconsideration shall be
allowed.

HELD: The last day is February 26. The filing of a

motion for new trial or reconsideration is not counted
in the 15-day period. Upon the filing in February 10, it
is already interrupted. So, you did not consume 10
days. You consumed only 9 days.
The period to appeal is suspended if a motion for
reconsideration or one for a new trial is filed, which, if
denied, continues to run upon receipt of the order
denying the same as if no interruption has occurred.
The time during which a motion for reconsideration or
one for new trial has been pending shall be counted
from the date the motion is duly filed to the date
when the movant is duly notified of the denial
thereof.
The period during which the motion is pending with
the trial court includes the day the same is filed
because the motion shall have been already placed
under the court's consideration during the remaining
hours of the day. The very date the motion for
reconsideration has been filed should be excluded
from the appeal period.

The period to appeal is 15 days. And when a record on

appeal is required, the period to appeal is doubled
30 days.

So how do you reconcile this pronouncement with the

rule that the first day is excluded and the last day is
included? The answer is found in Rule 22, Section 2:

Section 3 is already amended. It now specifically

provides the period to appeal in cases of habeas
corpus, which is 48 hours. This is because the SC
made an error in one of the latest cases involving
Rufus Rodriguez as Immigration Commissioner, where
the SC ruled that the period to appeal in habeas
corpus cases is 15 days since the 48-hour period
disappeared in the 1997 Rules. So many got confused
now.

Rule 22, Sec. 2. Effect of interruption.- Should an

act be done which effectively interrupts the
running of the period, the allowable period after
such interruption shall start to run on the day
after notice of the cessation of the cause
thereof.
The day of the act that caused the interruption
shall be excluded in the computation of the
period. (n)

So when I had a talk with Justice Panganiban last year

during the celebration of the 100 years of SC here in
Davao, I opened this issue to him. Sabi ko, Mali man

RUBIO vs. MTCC BRANCH 4 OF CAGAYAN DE

ORO CITY

What is the period to appeal? Section 3:

252 SCRA 172

FACTS: The period to file a motion for new trial or
reconsideration is within the period to appeal which is
15 days, kaya walang extension. Now this is what
happened. The court issued an interlocutory order.
After two months, one of the parties filed a motion for
reconsideration and, of course, the other party said,
no more, you should file the motion within 15 days.
You cannot file beyond the 15-day period. Is that
correct?
HELD: NO. That is wrong because an interlocutory
order cannot be appealed hence, the 15-day period
does not apply. You can file your motion for
reconsideration anytime for as long as the court still
has jurisdiction over the case.
The 15-day period only applies when the order is
final. But when the order is interlocutory, you can file
it anytime because there is no definite period for the
court to change it. For as long as the court has
jurisdiction over the case, it has the power to change
that wrong order.
The period subject to interruption by a motion for
reconsideration is the period to appeal. An
interlocutory order is not appealable if there is
accordingly no period to suspend or interrupt.
Sec. 4. Appellate court docket and other lawful fees.
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the appellate
court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the
appellate court together with the original
record or the record on appeal. (n)
Under the law, within the period for taking an appeal,
the appellant shall only pay to the clerk of court of the
RTC which rendered the judgment or final order the
full amount of the appellate court docket fee and all
other lawful fees and the proof of payment shall be
transmitted to the CA together with the original record
on appeal.
Q: How does this amend the Old law ?
A: Under the OLD Law, when you appeal from the RTC
to the CA , you just file a notice of appeal. You do not
pay anything, you do not pay the appellate docket
fee. So the records will be transmitted upon order of
the clerk of court.
Pagdating sa CA, later on, the clerk of court there will
communicate to the appellant na the records are
there already, magbayad ka ng docket fee within so
many days. So, mamaya mo na bayaran, hintayin mo
munang mapunta doon at hintayin mo ang notisya.

NOW, you do not wait. Pag - file mo ng notice of

appeal, you PAY IMMEDIATELY. When you
appeal, bayaran mo na ang CA docket fee sa
RTC clerk and then pag-transmit, sabay na! That
is the change.
If we will notice, the counterpart is Section 5 Rule 40
yung appeal from the MTC to the RTC:
RULE 40, Section 5. Appellate court and other
lawful fees. - Within the period for taking an
appeal, the appellant shall pay to the clerk of
the court which rendered the judgment or final
order appealed from the full amount of the
appellate court docket and other lawful fees.
Proof of payment thereof shall be transmitted
to the appellate court together with the original
record or the record on appeal, as the case may
be. (n)
Q: Suppose the person appealing from the MTC to the
RTC failed to pay the appeal fee under Rule 40, can
the appeal be dismissed ?
A: No, because it is not one of the requisites.
That was the ruling in SANTOS vs. CA. That can
be collected from you later but that is not a
requisite. The appeal cannot be dismissed.
We will ask the same question under Section 4 Rule
41. BUT this time, you are appealing from the RTC to
the CA and this contains an identical provision that
when you are appealing from the RTC to the CA, you
already pay there with the clerk of court of the RTC
the docket fee. Bayaran mo na, siya na ang bahalang
mag-forward. Heres the problem:
Q: You failed to pay the docket fee within 15 days. So,
when the case was transmitted to the CA, hindi kasali
yung fee no. Now, can your appeal be dismissed on
the ground of failure to pay the docket fee or not in
accordance with the ruling in SANTOS (by analogy,
although in this case, the appeal is from the MTC to
the RTC. Pero the same, hindi ka rin magbayad ng
docket fee.) Is the ruling in SANTOS also applicable to
Rule 41 ?
A: NO, the ruling in SANTOS is not applicable.
Your appeal will be dismissed.
Q: What provision of the Rules authorizes such
dismissal? Is there any direct provision of the Rules of
Court which authorizes the dismissal of the appeal by
non-payment of the appeal docket fee?
A: YES. Rule 50 Section 1 [c];
RULE 50, Section 1 An appeal may be
dismissed by the Court of Appeals, on its own

motion or on that of the appellee. on the

following grounds:
xxxx
(c) Failure of the appellant to pay the docket
and other lawful fees as provided in Section 4 of
Rule 41 ;
xxxx
I believe that it is dismissible because of that.
So, to my mind, the SANTOS vs. CA ruling which
governs Rule 40 and which for me is valid, is
NOT APPLICABLE to Rule 41 because there is a
direct provision in Rule 50 that an appeal can
be dismissed for non-payment of appeal docket
fee. That is the difference between these two
situations.
NOTICE OF APPEAL
Now, let us go back to Section 5 of Rule 41;
Sec. 5. Notice of appeal. The notice of appeal
shall indicate the parties to the appeal, specify
the judgment or final order or part thereof
appealed from, specify the court to which the
appeal is being taken, and state the material
dates showing the timeliness of the appeal. (4a)
Ano ba ang nakalagay sa notice of appeal? Its very
clear there that you indicate the parties to the appeal,
specify the judgment and state the material date
showing the timeliness of the appeal.
Do you know how to do it? Its very simple. The
defendant merely says; Defendant hereby serves
notice that he is appealing to the CA on questions of
fact or on questions of fact and law the judgment of
the Honorable Court (RTC) dated December 20, 1997,
copy of which was received by me on January 5,
1998. So it is simple that only 15 days is required to
file the notice. When the law says the period to file an
appeal is non-extendible, that is fair. I do not need 15
days to prepare the notice of appeal. You can do it
only in two minutes. [sobra pa sa quicky!!]
So you must state the date when you received
because the computation of the 15-day period is from
the receipt of the judgment and NOT from the date of
the judgment. This is the so-called the MATERAL
DATA RULE material dates showing timeliness of
appeal. The date received and the date of decision are
not the same. Both dates must be included in the
notice of appeal.
Now, kung sabihin mo na I am appealing from the
judgment of the court dated December 20, 1997, and
hindi mo sinabi kung kailan mo natanggap, the

presumption is you also received the copy of the

judgment on December 20, 1997. And then you are
appealing today, it will be dismissed because you did
not state the material dates.
And of course, there is one SC decision which
said that you do not only specify the final
judgment or order, but you also specify as much
as possible the interlocutory orders from where
you are appealing because interlocutory orders
can only be appealed at this time. So, isabay mo
na rin, i-one time ba!
In the case of
HEIRS OF MAXIMO RIGOSO vs. COURT OF
APPEALS
211 SCRA 348
FACTS: Plaintiff filed an action against defendant for
partition of property. While the action was pending,
defendant died. Partition is an action which survives.
Defendants lawyer failed to inform the court about
plaintiffs death (it is the lawyers duty which he did
not do). So with that, there was no proper
substitution. Later, judgment was rendered against
the deceased defendant. But after the decision came
out, the lawyer of the defendant filed a notice of
appeal in accordance with Rule 41.
ISSUE #1: Was the appeal properly made?
HELD: NO. Upon the death of the defendant, the
lawyers authority to represent him already
expired. There was an automatic expiration of
the lawyer-client relationship. The notice of
appeal which the lawyer filed in behalf of the
deceased was an unauthorized pleading,
therefore not valid.
ISSUE #2: Is the judgment binding to the defendants
heirs (remember, they were not substituted)?
HELD: YES. The validity of the judgment was not
affected by the defendants demise for the
action survived (partition, eh). The decision is
binding and enforceable against the successorin-interest of the deceased litigant by title
subsequent to the commencement of the action
pursuant to Section 47 [b] of Rule 39Rule on
Res Judicata.
Now, in our outline in appeal, the general rule is when
you appeal, you only file a notice of appeal and you
pay the docket. The important requirement there is
notice of appeal but, we said in some cases, aside
from notice of appeal, there is a second requirement
which is the RECORD ON APPEAL.

This time, the period to appeal is not only 15 but 30

days and a record on appeal is only required in special
proceedings or in civil cases where multiple appeals
are allowed. Never mind special proceedings, saka na
yun. It sounds strange because what weve studied
so far, multiple appeals are not allowed in civil cases,
there should only be one appeal. Kaya nga
interlocutory orders are not appealable, precisely to
avoid order on appeal in a civil case. We will explain
this later.
RECORD ON APPEAL
Sec. 6. Record on appeal; form and contents thereof.
The full names of all the parties to the
proceedings shall be stated in the caption of
the record on appeal and it shall include the
judgment or final order from which the appeal is
taken and, in chronological order, copies of only
such pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the proper
understanding of the issue involved, together
with such data as will show that the appeal was
perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall
include
by
reference
all
the
evidence,
testimonial and documentary, taken upon the
issue involved. The reference shall specify the
documentary evidence by the exhibit numbers
or letters by which it was identified when
admitted or offered at the hearing, and the
testimonial evidence by the names of the
corresponding
witnesses.
If
the
whole
testimonial and documentary evidence in the
case is to be included, a statement to that
effect will be sufficient without mentioning the
names of the witnesses or the numbers or
letters of exhibits. Every record on appeal
exceeding twenty (20) pages must contain a
subject index. (6a)
A record on appeal is simply a reproduction of all the
pleadings filed by the parties, all the motions filed by
the parties, all the orders issued by the court and the
final judgment rendered by the court arranged in
chronological order.
For EXAMPLE: Juan de la Cruz versus Pedro Santos.
Record on appeal. Normally, it starts with this phrase

Be it remembered the following proceedings took

place in the court below:
Par. 1. On January 5, 1998, plaintiff filed a complaint
against defendant as follows: -- (so kopyahin mo yung
complaint. Practically it is mechanical work, eh.)

Par. 2. On January 25, 1998, defendant filed an

answer (kopyahin mo ang answer)
Par. 3. On March 5, 1998, the court rendered
judgment (kopyahin mo na naman.)
How long? Gaano kakapal yan? Depende. For
example, the case lasted for more than two years. So
practically, the record on appeal may amount to
hundreds of pages. That is why the period to appeal is
increased from 15 to 30 if the law requires a record on
appeal because of the possibility that you may not be
able to complete everything within 15 days.
Sometimes the 30-day period can be extended.
Q: Do you have to include there every motion, every
order of the case?
A: No, the law says you reproduce in chronological
order copies of only such pleadings, motions,
petitions, and all interlocutory orders as are related
to the appealed judgment or final order for the
proper understanding of the issues involved.
This is to allow the appellate court to review the order
appealed from.
But there are some motions na hindi na kailangan. For
example, the case will be set for trial next week. Sabi
ng defendant, Motion to postpone, I am not ready
because I am suffering from diarrhea. So the trial
was postponed. Kailangan pa bang ilagay ang motion
na yan? That is not necessary to understand the issue.
Piliin mo lang ang importante.
Now, bakit kailangan yang record on appeal? Bakit sa
ordinary appeal, hindi man kailangan? Because in
Ordinary Civil Actions, when the appeal is perfected,
the clerk of court of the RTC transmits the entire
record to the CA. So andoon na lahat yan. But in
special proceedings or in civil cases where multiple
appeals are allowed, when an order or judgment is
rendered, the case continues pa. So, the records are
not yet elevated. So, how can the CA understand what
happened without the records? That is called the
record on appeal.
Q: Give an example of a civil action where multiple
appeals are allowed.
A: Section 4 of Rule 36, where several judgments will
be rendered in one case:
RULE 36, Sec. 4. Several judgments. - In an action
against several defendants, the court may,
when several judgment is proper, render
judgment against one or more of them, leaving
the action to proceed against the others. (4)
And to be more specific, that rule was applied by the
SC in the case of

MUNICIPALITY OF BIAN vs. GARCIA

180 SCRA 576
FACTS: Municipality of Binan filed expropriation cases
against several landowners because it would like to
expropriate their land for public use. All of them were
named as co-defendants in one complaint. Landowner
A filed a motion for separate trial (Rule 31). The court
granted it. The court rendered a decision
expropriating the land of A. Nauna siya. As for the
other landowners, the case continued.
ISSUE #1: Can A appeal already from the decision
rendered against him or must he wait for the decision
to be rendered against the other landowners?
HELD: YES, A can now appeal because the order was
already final against A. There is something more for
the court to do but only with respect to the other
defendants. But as far as A is concerned, there is
nothing more for the court to do.
So when the judgment is already rendered against the
other landowners, they can now also appeal. So there
could be two or more final judgments and two or more
appeals.
ISSUE #2: Suppose the case was tried against all of
them (sabay ba) and there was one decision against
themso sabay-sabay sila mag-appeal. Is record on
appeal required?
HELD: NO, only notice of appeal because there is only
one decision.
Q:
Why is it that in ordinary civil cases, normally a
record on appeal is not required?
A:
Ordinarily, when the case is over and you say
that you are appealing, the entire record of the case
will be elevated to the CA. But in the case of BIAN,
there is judgment against landowner A and he wants
to appeal, the record cannot be brought to the CA
because the case will still be tried with respect to
landowners B, C and D. So for the CA to know what
happened, a record on appeal is needed.

ROMAN CATHOLIC ARCHBISHOP OF MANILA vs.

COURT OF APPEALS
258 SCRA 186 [1996]
HELD: Multiple appeals are allowed in:S
1.)
Special proceedings;
2.)
Actions for recovery of property with
accounting;
3.)
Actions for partition of property with
accounting;

4.)
Special civil actions of eminent domain
(expropriation);
5.)
Special civil actions for foreclosure of
mortgage.
The rationale behind allowing more than one appeal
in the same case is to enable the rest of the case to
proceed in the event that a separate and distinct case
is resolved by the court and held to be final.
The enumeration cited in ROMAN CATHOLIC CASE
istaken from the ruling of the SC in the cases of
MIRANDA vs. CA (71 SCRA 295) and DE GUZMAN vs.
CA (74 SCRA 222). In these cases, when you file only a
notice of appeal without the record on appeal, it will
not suffice. So it will be dismissed.
Q:
What if the party filed a record on appeal
without a notice of appeal? Should the appeal be
dismissed?
A:
NO, the appeal will not be dismissed
because the filing of the record on appeal is
harder to comply with than the filing of a notice
of appeal. The filing of the record on appeal is
more expressive of the desire of the party to
appeal. (Peralta vs. Solon, 77 Phil. 610)
(The following discussions under Section 6 was taken
from the 4th year review transcription) Now, let us try
to tie this up with what may be appealed and what
may not be appealed, lets go back to section 1 [g] of
Rule 41:
Section 1. Subject of appeal. - An appeal may be
taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:
xxxxx
(g) A judgment or final order for or against one
or more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom.
xxxxx
Take note that as a GENERAL RULE: a judgment
for or against one or more of several parties or
in separate claims, counterclaims, cross-claims,
etc., while the main case is pending, cannot be
appealed because that will result to multiple
appeals, unless the court allows an appeal
therefrom, in which case, multiple appeals
would now be possible.

Q: Cite examples of civil actions where, by direct

provision of the Rules, the law mentions that the
judgment is already final and appealable despite the
fact that the case still goes on with respect to the
other issues.
A: The case of MUNICIPALITY OF BIAN vs. GARCIA
which is now expressly provided for in Rule 67,
Section 4, (on Expropriation):
Sec. 2. Entry of plaintiff upon depositing value with
authorized government depositary Upon the filing
of the complaint or at any time thereafter and
after due notice to the defendant, the plaintiff
shall have the right to take or enter upon the
possession of the real property involved if he
deposits with the authorized government
depositary an amount equivalent to the
assessed value of the property for purposes of
taxation to be held by such bank subject to the
orders of the court. Such deposit shall be in
money, unless in lieu thereof the court
authorizes the deposit of a certificate of deposit
of a government bank of the Republic of the
Philippines
payable
on
demand
to
the
authorized government depositary. x x x x x x
Did you notice that an Order of Expropriation MAY BE
APPEALED? When there is an order of expropriation the court says, Alright, the property is declared
expropriated. Tapos na ba ang case? NOT YET
because there is still a Part 2 which the determination
of just compensation. So, technically, it does not yet
really dispose of the case BUT by express provision of
the law, the order is already appealable. That is an
instance where multiple appeals may arise in one civil
case.
Another example is Rule 69 on Partition:
RULE 69, Sec. 2. Order for partition, and partition by
agreement thereunder. - If after the trial the court
finds that the plaintiff has the right thereto, it
shall order the partition of the real estate
among all parties in interest. Thereupon the
parties may, if they are able to agree, make the
partition
among
themselves
by
proper
instruments of conveyance, and the court shall
confirm the partition so agreed upon by all the
parties, and such partition, together with the
order of the court confirming the same, shall be
recorded in the registry of deeds of the place in
which the property is situated. (2a)
A final order decreeing partition and accounting
may be appealed by any party aggrieved
thereby. (n)

A final order decreeing partition is appealable.

But the case will go on because if the first order
is that there is a co-ownership, then there
should be a partition. Ang sunod is how to
partition. As a matter of fact, the court may even
hire commissioners as to how to partition but in the
meantime, the order to partition is already appealable
although it did not completely disposed of the civil
action.
Sec. 7. Approval of record on appeal. Upon the
filing of the record on appeal for approval and if
no objection is filed by the appellee within five
(5) days from receipt of a copy thereof, the trial
court may approve it as presented or upon its
own motion or at the instance of the appellee,
may direct its amendment by the inclusion of
any omitted matters which are deemed
essential to the determination of the issue of
law or fact involved in the appeal. If the trial
court orders the amendment of the record, the
appellant, within the time limited in the order,
or such extension thereof as may be granted, or
if no time is fixed by the order within ten (10)
days from receipt thereof, shall redraft the
record by including therein, in their proper
chronological sequence, such additional matters
as the court may have directed him to
incorporate, and shall thereupon submit the
redrafted record for approval, upon notice to
the appellee, in like manner as the original
draft. (7a)
What you have to remember here is that in appeals,
where a record on appeal is required, the law requires
an approval. The record on appeal has to be approved
by the court. In ordinary cases where you only file a
notice of appeal, approval is not required. A record
on appeal has to be approved because the other
party is given the right to object your record on
appeal.
The possible grounds for objections are necessary
pleadings were not produced like kulang-kulang ang
record on appeal [kulang-kulang din siguro yung nagfile]; or, you did not reproduce the pleading properly;
to pester the other party and just to block the
approval, like i-reklamo kahit wrong spelling lang.
[peste talaga!]
Sec. 8. Joint record on appeal. Where both parties
are appellants, they may file a joint record on
appeal within the time fixed by section 3 of this
Rule, or that fixed by the court. (8a)
Q: Is it possible that both sides will appeal?
A: Yes, when both are not satisfied.

Suppose both plaintiff and defendant will want to

appeal and a record on appeal is required, it would be
tedious. Para walang gulo at para makatipid, the
plaintiff and the defendant will file a joint record on
appeal, tapos hati tayo sa gastos.
WHEN APPEAL IS DEEMED PERFECTED
Let us now go to Section 9 of Rule 41 which is one of
the most important provisions when is appeal
deemed perfected. Now, if you are asked this
question: HOW DO YOU PERFECT AN APPEAL? This
question is not the same as WHEN IS THE APPEAL
DEEMED PERFECTED?
Q: How do you perfect an appeal?
A: By:
1.)
Filing
a
NOTICE
OF
APPEAL,
generally within 15 days; or by
2.)
Filing A NOTICE OF APPEAL and
RECORD ON APPEAL WITHIN 30 DAYS.

In appeals by notice of appeal, the court loses

jurisdiction over the case upon the perfection of
the appeals filed in due time and the expiration
of the time to appeal of the other parties.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed
in due time and the expiration of the time to
appeal of the other parties.
In either case, prior to the transmittal of the
original record or the record on appeal, the
court may issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal, approve compromises, permit appeals
of indigent litigants, order execution pending
appeal in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal. (9a)

WHEN ONLY NOTICE OF APPEAL IS REQUIRED

Those are the steps taken to perfect the BUT the

appeal is NOT YET PERFECTED. It is perfected
according to Section 9, and it is important to
determine the exact date when the appeal is
considered as perfected because of the doctrine
that from the moment the appeal is perfected,
the RTC automatically loses jurisdiction of the
case. And by fiction of law, the jurisdiction is
automatically transferred to the CA, although
the records as still with the RTC. Therefore it is
important to determine the exact date.

Q:
When only a notice of appeal is required, when
is an appeal deemed perfected?
A:
First and third paragraph: A partys appeal by
record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the
approval of the record on appeal filed in due time. x x
x In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the
time to appeal of the other parties.

For example, in notice of appeal, is it perfected on the

very day that the appellant will file a notice of appeal
that if he files it, after two days perfected na?

This was taken in the case of DELGADO vs IAC (147

SCRA 258). Lets compose a problem based on that
case:

All of these are answered by Section 9 and I noticed

that Section 9 has improved on the language of the
Interim Rules. Under the Interim Rules, they are
actually the same, the question when is the appeal
deemed perfected is also answered by the Interim
Rules but the language of the law there is more
convoluted. Now, it is more clearer:

PROBLEM: I received a copy of the decision on March

31 so I have 15 days to appeal i.e. up to April 15. My
opponent received the decision on April 10. So ang
opponent ko naman ang bilang niya is from April 10 to
April 25. Iba ang 15 days niya, iba din sa akin.
Q: Since I received the decision on March 31, I filed
my notice of appeal on April 5, is the appeal
perfected?
A: Yes, as far as I am concerned.

Sec. 9. Perfection of appeal; effect thereof.

A partys appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice
of appeal in due time.
A partys appeal by record on appeal is deemed
perfected as to him with respect to the subject
matter thereof upon the approval of the record
on appeal filed in due time.

Q:
How about the other side?
A:
Not yet, because as of April 5, he has not yet
received a copy of the decision. He will start
computing from April 10. So as of now, it is already
perfected only by 50%.

Q: Suppose by April 25 which is the last day of 15-day

period of my opponent, he did not file anything. Nagexpire na. What will happen now?
A: Then as of April 25, the appeal is now fully
perfected (100%) because as far as I am concerned, I
have already filed a notice of appeal. As far as he is
concerned, his 15-day period to appeal has lapsed.
Therefore, the case is now ripe for elevation. This is
what the third paragraph means, In appeals by
notice of appeal, the court loses jurisdiction over the
case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the
other parties. You have to look at it from the
viewpoint of both parties.
That is the time for the clerk of court to elevate the
records. It is from that moment that the court has lost
100% jurisdiction over the case from the viewpoint of
both parties.
Up to now, despite this provision, Im still receiving
these kind of orders from the courts. Nakalagay doon:
A notice of appeal having been filed by the
defendant on this date, the appeal is now deemed
perfected and let the record now be elevated to the
CA. My Golly! This is WROOOONG! The appeal is
perfected only as far as the defendant is concerned
why decree it as perfected? Tiningnan mo lang yung
isang side eh. Paano kung yung plaintiff mag-file pa
ng motion for execution pending appeal?
So, do not elevate the record until the 15-day
period has expired on BOTH SIDES. This is the
correct interpretation of the Rules. We will now go to
some interesting cases:
UNIVERSAL FAR EAST CORP. vs. COURT OF
APPEALS
131 SCRA 642
FACTS: On March 31, both Epi and Hilde received a
copy of the decision. Epi won, Hilde lost. From the
viewpoint of both, April 15 is the last day to appeal.
On April 5, Hilde filed a notice of appeal. So the
appeal is perfected from the viewpoint of Hilde. On
April 13, Epi file a motion to execute pending appeal.
Was the motion filed on time? Yes, because Epi can
file the motion between March 31 and April 15. On
April 25, the court granted Epis motion.
This is now the argument of Hilde: [My Golly!] The
order of execution by Epi is void because the court
has already lost jurisdiction over the case as of April
25 because From the viewpoint of both parties, the
last day is April 15, after April 15 the period within
which Epi can file a motion to execute has expired.
From the viewpoint of Hilde, he already filed a notice

of appeal on April 5. So, from the viewpoint of both,

the court already lost jurisdiction.
According to Epi: But I filed my motion on April 13,
the court has not yet lost jurisdiction. Ah Yes, sabi
naman ni Hilde, but the court acted on your motion
on April 25, which is after April 15.
HELD: Epi is correct. The important point is the date
of filing. Thus, even if the court acts beyond the 15day period, the order is still valid. The important thing
is the motion to execute pending appeal was filed
within the 15-day period.
It may be argued that the trial court should dispose
of the motion for execution within the reglementary
fifteen-day period. Such a rule would be difficult, if not
impossible, to follow. It would not be pragmatic and
expedient and could cause injustice.
The motion for execution has to be set for hearing.
The judgment debtor has to be heard. The good
reasons for execution pending appeal have to be
scrutinized. These things cannot be done within the
short period of fifteen days, or in this case, two days.
The trial court may be confronted with other matters
more pressing that would demand its immediate
attention.
So in this case, the court has not yet lost jurisdiction
the act on the motion for execution pending appeal
even if it is beyond 15 days, provided the motion was
filed within 15 days.
WHEN RECORD OF APPEAL IS REQUIRED
Q: How about an appeal where a record of appeal is
required? When is the appeal deemed perfected?
A: Second paragraph of Section 9: A partys appeal
by record on appeal is deemed perfected as to him
with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
So it is not upon the filing of the record of
appeal, but upon the APPROVAL. Because as we
said, under Section 7, a record on appeal has to
be approved while a notice of appeal need not
be approved.
As to the fourth paragraph: In appeals by record on
appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration
of the time to appeal of the other parties. The
principle is the same. But definitely an appeal is not
perfected upon the filing of the record on appeal but
upon the approval.
The last point to remember in Section 9. GENERAL
RULE: once an appeal is deemed perfected from the
viewpoint of both sides, the trial court loses

jurisdiction over the case. The jurisdiction

automatically transferred to the Court of Appeals.

is

Q: Are there EXCEPTIONS to the rule? Are there things

that the trial court can do even if it has no more
jurisdiction? What things or actions can the trial court
do?
A: Last paragraph of Section 9: In either case, prior
to the transmittal of the original record or the
record on appeal, the court may issue orders for the
protection and preservation of the rights of the
parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow
withdrawal of the appeal.
Lets us outline the last paragraph: Once an appeal is
deemed perfected under Section 9, the RTC loses
jurisdiction over the case and can no longer act in that
case.
Q:
What things or what actions can the RTC do
even if it has technically lost jurisdiction over the
case? Sometimes they call this as the residual
jurisdiction, a.k.a. dukot jurisdiction.
A:
For as long as the original record or the
record on appeal is not yet transmitted
(because it takes some time for the records to
be transmitted) the trial court, despite the fact
that it has already lost jurisdiction, can do the
following acts:
1.)
to issue orders for the protection
and preservation of the rights of the parties
which do not involve in any matter litigated in
the appeal;
2.)
to approve compromises between
the parties;
3.)
to permit appeals to indigent
litigants;
4.)
to order executions pending appeal
in accordance with Section 2 of Rule 39; and
5.)
to allow the withdrawal of the
appeal.
6.)
The court can order the dismissal of
an appeal under Section 13, Rule 41.
Q: Can the parties settle the case amicably despite
the fact that there is already an appeal?
A: Yes, compromise is welcome anytime.
Q: Now who will approve the compromise?
A: Technically, the court has no jurisdiction. But for as
long as the records are still there, the trial court can
approve the compromise. Now, suppose the records
are already transmitted to the CA? Then you better
submit your compromise agreement before the CA.

Sections 10, 11, and 12 are

provisions.

purely administrative

Sec. 10. Duty of clerk of court of the lower court

upon perfection of appeal. Within thirty (30) days
after perfection of all the appeals in accordance
with the preceding section, it shall be the duty
of the clerk of court of the lower court:
(a) To verify the correctness of the original
record or the record on appeal, as the case may
be, and to make a certification of its
correctness;
(b) To verify the completeness of the records
that will be transmitted to the appellate court;
(c) If found to be incomplete, to take such
measures as may be required to complete the
records, availing of the authority that he or the
court may exercise for this purpose; and
(d) To transmit the records to the appellate
court.
If the efforts to complete the records fail, he
shall indicate in his letter of transmittal the
exhibits or transcripts not included in the
records being transmitted to the appellate
court, the reasons for their non-transmittal, and
the steps taken or that could be taken to have
them available.
The clerk of court shall furnish the parties with
copies of his letter of transmittal of the records
to the appellate court. (10a)
Sec. 11. Transcript. Upon the perfection of the
appeal, the clerk shall immediately direct the
stenographers concerned to attach to the
record of the case five (5) copies of the
transcripts of the testimonial evidence referred
to in the record on appeal. The stenographers
concerned shall transcribe such testimonial
evidence and shall prepare and affix to their
transcripts an index containing the names of
the witnesses and the pages wherein their
testimonies are found, and a list of the exhibits
and the pages wherein each of them appears to
have been offered and admitted or rejected by
the trial court. The transcripts shall be
transmitted to the clerk of the trial court who
shall thereupon arrange the same in the order
in which the witnesses testified at the trial, and
shall cause the pages to be numbered
consecutively. (12a)
Sec. 12. Transmittal. The clerk of the trial court
shall transmit to the appellate court the original
record or the approved record on appeal within
thirty (30) days from the perfection of the
appeal, together with the proof of payment of

the appellate court docket and other lawful

fees, a certified true copy of the minutes of the
proceedings, the order of approval, the
certificate
of
correctness,
the
original
documentary evidence referred to therein, and
the original and three (3) copies of the
transcripts. Copies of the transcripts and
certified true copies of the documentary
evidence shall remain in the lower court for the
examination of the parties. (11a)
Sec. 13. Dismissal of appeal. Prior to the
transmittal of the original record or the record
on appeal to the appellate court, the trial court
may motu proprio or on motion dismiss the
appeal for having been taken out of time. (14a)
Q: May the RTC dismiss the appeal?
A: Yes, for as long as the record of the case or
the record of appeal has not yet been
transmitted to the appellate court, the court
may motu propio, even without any motion, or
on motion of the appellee, the trial court is
empowered to dismiss the appeal on the ground
of having been taken out of time.
Q: Can the trial court dismiss the appeal on the
ground that the appeal is dilatory?
A: NO. The trial court has no power to say that
the appeal is dilatory. Such question can only be
passed upon by the appellate court. Otherwise,
trial courts can easily forestall review or
reversal of their decisions no matter how
erroneous such decisions may be.(Dasalla vs.
Caluag, L-18765. July 31, 1963; GSIS vs. Cloribel, L22236, June 22, 1965; Republic vs. Rodriguez, L26056, May 29, 1969) The only ground for the trial
court to dismiss appeal is for having been taken out of
time. Thats all.
Dont confuse that with Rule 39.
Q: Can the prevailing party file a motion for execution
pending appeal, on the ground that the appeal is
dilatory? Any appeal which is frivolous is intended as
dilatory.
A: Well, its not the appeal that is being questioned
but whether there is a ground for execution pending
appeal. Ang jurisprudence niyan magulo eh: NO, the
trial court cannot do that. Only the CA can determine
whether the appeal is dilatory. But there are cases
where the SC said YES because that can be a good
reason.
Pero dito (Rule 41), iba ang tanong. The court is
not being asked to grant an execution pending
appeal but being asked to dismiss an appeal.

Ah, ito talaga hindi pwede. NEVER, because of

Section 13, Rule 41 there is only one ground,
filed out of time. Yaaan!
Rule 42
PETITION FOR REVIEW
FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS

Q:
What are the modes of appeal from RTC to the
CA?
A:
Its either ORDINARY APPEAL (Rule 41) or
PETITION FOR REVIEW (Rule 42).
Rule 41 refers to an ordinary appeal from the
RTC to the CA yung notice of appeal. Here, the RTC
rendered a decision pursuant to its ORIGINAL
JURISDICTION.
Eto namang Rule 42 (Petition for review) is the
mode of appeal from the RTC to the CA in cases
decided by the RTC pursuant to its APPELLATE
JURISDICTION.So, the case here actually originated
in the MTC, then it was appealed to the RTC under
Rule 40. And now, from the RTC, you want to go to the
CA. Hence, the mode of appeal is not (Rule 41) Notice
of Appeal but RULE 42 Petition for Review.
For the first time,
petitions for review
July 1, 1997, there
guidelines then in
SC circulars.

there is now a rule governing

from the RTC to the CA. Prior to
was none. Although there were
jurisprudence, decided cases and

Section 1. How appeal taken; time for filing. A party

desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of
its appellate jurisdiction may file a verified
petition for review with the Court of Appeals,
paying at the same time to the clerk of said
court the corresponding docket and other lawful
fees, depositing the amount of P500.00 for
costs, and furnishing the Regional Trial Court
and the adverse party with a copy of the
petition.
The petition shall be filed and served within
fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of
petitioners
motion
for
new
trial
or
reconsideration
filed
in
due
time
after
judgment. Upon proper motion and the payment
of the full amount of the docket and other
lawful fees and the deposit for costs before the
expiration of the reglementary period, the Court

of Appeals may grant an additional period of

fifteen (15) days only within which to file the
petition for review.
No further extension shall be granted except for
the most compelling reason and in no case to
exceed fifteen (15) days. (n)15 extension of
another 15 extension of another 15 most
compelling reasons
Under Section 1, a petition for review under Rule
42 must be VERIFIED.
Q:
Where will you file your petition for review?
A:
You file it directly with the CA. Do not file
it with the trial court.
In Rule 41, where the appeal is deemed perfected by
simply filing a notice of appeal, you file your notice of
appeal with the RTC. Do not file it with the CA. But in
Rule 42, where the appeal is by petition for review,
you file your petition directly with the CA. Do
not file it with the RTC.
Not only that. Of course, you have to pay the
docket and lawful fees plus P500 for costs. And
you must furnish the RTC and the adverse party
with a copy of the petition. That is a new
requirement.
Q: What is the period to file a petition for review ?
A: The period to file a petition for review is 15
days from receipt of the RTC judgment or from
the
order
denying
the
motion
for
reconsideration.
Q: What is the difference in period to file between
Rule 41 and Rule 42 ?
A: In Rule 41, if your motion for reconsideration is
denied, you can still appeal within the remaining
balance of the 15-day periodamended by neypes vs
CA. In Rule 42, the 15-day period starts all over
again because the law says or of the denial. So,
another fresh 15 days. This because it is more
difficult to prepare a petition for review. This is more
time-consuming than a simple notice of appeal. Well
go to examples:
PROBLEM: Lets go back to RULE 41: You receive a
copy of the RTC decision on March 31. You file your
motion for reconsideration on April 10 the 10th day.
After two weeks, you received order of the court
denying the MFR.
Q: How many more days are left for you to file a
notice of appeal?

A: Six (6) days. Ang binilang mo, 1-9 days lang. The
10th day is interrupted na. Thats true.
PROBLEM: We will go to the same problem (applying
Rule 42): The case was decided by the MTC, appealed
to the RTC. And then in the RTC, you lost again. You
receive a copy of the decision on March 31. On April
10, you file a motion for reconsideration. And then on
April 20, you receive the order denying the MFR.
Q: How many days more are left for you to file your
petition for review?
A: Kung sabihin mo 6 days from April 20 or April
26, thats FALSE! The answer is 15 days all over
again. Look at the law: The petition shall be
filed and served within fifteen (15) days from
notice of the decision sought to be reviewed or
of the denial of petitioners motion for new trial
or reconsideration.Meaning, you count another
15 days from the denial. Umpisa na naman!
So the filing a motion for new trial or
reconsideration in Rule 42 does not only
interrupt the running of the period but it
commences to run all over again. Unlike in Rule
41, in ordinary appeal, where the filing of the motion
for reconsideration or new trial merely interrupts the
running of the period to appeal. And it commences to
run again from the time you are notified that your
motion is denied. See the difference?
Actually, if you are not serious in your study of appeal,
you will not see these distinctions. You will just
assume that the principles under Rule 41 and Rule 42
are the same.
Q: Under Section 1, is the 15-day period to file petition
for review extendible?
A:
Under Rule 41, the 15-day period to file notice
of appeal is not extendible no exceptions. But in
Rule 42, the 15-day period to file petition for review
is EXTENDIBLE according to the last sentence of
Section 1, provided you pay your docket and other
lawful fees, the CA will grant additional 15 days within
which to file a petition for review.
Q:
Where will you file your motion for extension of
time to file petition for review?
A:
You file your motion for extension to the
CA. The CA itself will grant the extension.
Q:
How many more days can the CA grant?
A:
The CA may grant another 15 days and no
further extension can be granted except for the
most compelling reasons. So, original extension
is 15 days, and a possible extension of 15 days
= total 30 days.

These are technical points. And how many appealed

cases have been dismissed simply because these
finer provisions were not been observed by lawyers? I
would say 60% of all appeals are dismissed. Even in
Davao, majority of petitions are dismissed because
nakulangan ng piso sa docket fee, karami. I presume
throughout the country, the pattern is the same
because the rules on appeal are very technical and
very strict. Thats why there are lawyers in Manila,
even in Davao, who do not want to handle appealed
cases. They only handle cases in the trial court. Pagakyat na, nasa CA na, petition for certiorari, pasa na
sa iba.
But there are also who have mastered the rules on
appeal. For the purpose of specialization, trial phase
and appeal phase. For purposes of the bar, you have
to know all the fields in laws. Once you pass the bar,
diyan na kayo mag-isip kung ano ang pipiliin ninyo
civil, criminal, labor, etc. But for purposes of the bar,
you cannot say dito lang ako mag-aral sa Labor, wag
na sa Civil Law. Pwede ba yan? You cannot do that.
Kaya nga sabi nila, the people who know more about
the law are those who have just taken the bar.

has not theretofore commenced any other

action involving the same issues in the Supreme
Court, the Court of Appeals or different
divisions thereof, or any other tribunal or
agency; if there is such other action or
proceeding, he must state the status of the
same; and if he should thereafter learn that a
similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days
therefrom. (n)
Take note of Section 2. Do not implead the lower
court or the judge because nasanay na tayo na pati
yung judge naging defendant or respondent na. We
only do that in Certiorari under Rule 65 in Special Civil
Actions, but not on appeal. This is the influence of
Justice Feria because he has penned many cases
which has included the judge as defendant or
respondent. So, he said that in the case of MWSS vs.
CA [Aug. 25, 1986], hence we can see his influence,
siningit talaga niya iyan sa kaso na yon.

Sec. 2. Form and contents. The petition shall be

filed in seven (7) legible copies, with the
original copy intended for the court being
indicated as such by the petitioner, and shall

Now, as to the form [last paragraph], there has to be a

Certification of Non-Forum Shopping, failure to
comply with such would mean the dismissal of the
case.

(a) state the full names of the parties to the

case, without impleading the lower courts or
judges
thereof
either
as
petitioners
or
respondents;

ORTIZ vs. COURT OF APPEALS

299 SCRA 708 [1998]

(b) indicate the specific material dates showing

that it was filed on time;
(c) set forth concisely a statement of the
matters involved, the issues raised, the
specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court,
and the reasons or arguments relied upon for
the allowance of the appeal;
(d) be accompanied by clearly legible duplicate
originals or true copies of the judgments or final
orders of both lower courts, certified correct by
the clerk of court of the Regional Trial Court,
the requisite number of plain copies thereof and
of the pleadings and other material portions of
the record as would support the allegations of
the petition.
The petitioner shall also submit together with
the petition a certification under oath that he

FACTS: The certification was not signed by the Ortizes

but by their lawyer who has personal knowledge of
the fact and contended that it should be accepted as
substantial compliance with the rules.
HELD: The certification was not proper. Strict
observance of the rule is required. In this case, no
explanation was given.
Regrettably, We find that substantial compliance will
not suffice in a matter involving strict compliance.
The attestation contained in the certification on
non-forum
shopping
requires
personal
knowledge by the party who executed the
same. To merit the Courts consideration, Ortizes here
must show reasonable cause for failure to personally
sign the certification. The Ortizes must convince the
court that the outright dismissal of the petition would
defeat the administration of justice. However, the
Ortizes did not give any explanation to warrant their
exemption from the strict application of the rule. Utter
disregard of the rules cannot justly be rationalized by
harking on the policy of liberal construction.

Q:
Under paragraph [c], what issues can you raise
in the petition for review?
A:
Errors of fact, errors of law, or both
mixed errors of fact or law.
Somebody asked this QUESTION: hindi ba kapag error
of law dapat sa SC yan? Hindi na dadaan sa CA? How
do you reconcile this with the Constitution? Actually,
when the law says decisions of the RTC appealable
directly to the SC, it was decided pursuant to its
original jurisdiction. But if it is decided pursuant to
its appellate jurisdiction, the appeal should be
to the CA even on pure questions of law without
prejudice of going to the SC later on.
Sec. 3. Effect of failure to comply with requirements.
The failure of the petitioner to comply with any
of the foregoing requirements regarding the
A.
payment of the docket and other lawful
fees,
B.
the deposit for costs,
C.
proof of service of the petition, and
D.
the contents of and the documents which
should accompany the petition
shall be sufficient ground for the dismissal
thereof.
Section 3. If you fail to comply with the requirements,
tapos ang petition mo, dismiss!
Sec. 4. Action on the petition. The Court of Appeals
may require the respondent to file a comment
on the petition, not a motion to dismiss, within
ten (10) days from notice,
or dismiss the petition if it finds the same to be
A.
patently without merit,
B.
prosecuted manifestly for delay, or
C.
that the questions raised therein are too
unsubstantial to require consideration. (n)
Sec. 5. Contents of comment. The comment of the
respondent shall be filed in seven (7) legible
copies, accompanied by certified true copies of
such material portions of the record referred to
therein together with other supporting papers
and shall
(a) state whether or not he accepts the
statement of matters involved in the petition;

(b) point out such insufficiencies or inaccuracies

as he believes exist in petitioners statement of
matters involved but without repetition; and
(c) state the reasons why the petition should
not be given due course.
A copy thereof shall be served on the petitioner.
(n)
Sec. 6. Due course. If upon the filing of the
comment or such other pleadings as the court
may allow or require, or after the expiration of
the period for the filing thereof without such
comment or pleading having been submitted,
the Court of Appeals finds prima facie that the
lower court has committed an error of fact or
law that will warrant a reversal or modification
of the appealed decision, it may accordingly
give due course to the petition. (n)
Q: When you file a petition for review from the RTC to
the CA, is the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The
CA may or may not give due course to the
petition unlike in ordinary appeal. Yan ang
kaibahan ng ordinary appeal and petition for
review.
Inordinary appeal under Rule 41, when you file
notice of appeal and you pay your docket fee, your
appeal is automatically entertained. At least it will be
heard by the CA. But in Rule 42, it is not the same.
When you go there, whether your petition for review
will be given due course or not even if you have paid
the docket fee. Normally, the CA will required you to
comment and then chances are after another month
and after reading your petition and your comment,
the CA will refuse to give due course to your petition,
Your petition is hereby dismissed! So, you must
convince the CA na may merit baah!
Q: What happens when the petition for review is given
due course?
A: The parties will be required to submit their
respective memoranda.
Take note that the RTC is also given the power to issue
orders for the protection of the parties the same as
in Section 8, paragraph [b].

Sec. 7. Elevation of record. Whenever the Court of

Appeals deems it necessary, it may order the
clerk of court of the Regional Trial Court to
elevate the original record of the case including

the oral and documentary evidence

fifteen (15) days from notice. (n)

within

Q: Now, when is an appeal by petition for review

deemed perfected?
A: Section 8 [a]. Similar to Rule 41. The same
principle:

Under Section 21 of the Summary Rules, when a case

is started in the MTC under the Summary Procedure,
and appealed to the RTC and decided by the RTC, the
decision becomes immediately executory. Even if we
file a petition for review, it is executory. The only
way to stop the RTC from enforcing that judgment is
to get a TRO or a writ of preliminary injunction from
the CA. That is the rule.

Sec. 8. Perfection of appeal; effect thereof.

(a) Upon the timely filing of a petition for
review and the payment of the corresponding
docket and other lawful fees, the appeal is
deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over
the case upon the perfection of the appeals
filed in due time and the expiration of the time
to appeal of the other parties.
However, before the Court of Appeals gives due
course to the petition, the Regional Trial Court
may issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal, approve compromises, permit appeals
of indigent litigants, order execution pending
appeal in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule
on Summary Procedure, the appeal shall stay
the judgment or final orderunless the Court of
Appeals, the law, or these Rules shall provide
otherwise. (n)
Q: Does the RTC have the power to act despite the
fact that the petition for review is already before the
CA? Suppose I lost in the MTC, and I also lost on
appeal in the RTC. I file a petition for review. What
happens to the decision? Can the decision be
enforced?
A: NO, it cannot be enforced yet because it is
not yet final. We still have to wait for the appeal
to be dismissed or to be entertained and denied
later. Under paragraph [b], the appeal shall stay
the judgment or final order UNLESS the CA, the
law or these rules should provide otherwise.
Also, based on the opening clause of paragraph [b],
except in civil cases provided in the Rules on
Summary Procedure, any part thereafter appealed to
the CA will not stop the implementation of the RTC
decision.

I have a similar case now on that issue. The case

originated from the MTC for ejectment. The defendant
lost, akyat ngayon sa RTC, affirmed. And then akyat
na naman ang defendant sa CA on petition for review
(although right now, it has not yet been given due
course) with a prayer for TRO. But the CA said that
there is no compelling reason to issue one. In the
meantime, I filed a motion for execution. The
defendant opposed on the ground that a judgment
cannot be executed daw because of a pending
petition for review. But this is under the Summary
Rules ejectment. This is an exception, so that will
not apply.

Sec. 9. Submission for decision. If the petition is

given due course, the Court of Appeals may set
the case for oral argument or require the
parties to submit memoranda within a period of
fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing
of the last pleading or memorandum required
by these Rules or by the court itself. (n)