Rule 42 applies only to orders or judgments rendered by the RTC in

the exercise of its appellate jurisdiction. Such judgments or orders

must be final and not merely interlocutory. Like an order denying a
motion to dismiss which is interlocutory as it does not completely
disposes of the case on the merits, hence is not appealable. Also
under this rule, questions of facts and law may be raised.

Section 1 is a very long that lays out the procedure on how an

appeal under rule 42 should be taken, and it is done by:

1.Filing a verified petition for review with the CA

2. Paying at the same time with the clerk of court of the CA

 The corresponding docket fee and other lawful fees

(jurisdictional)
 Depositing the amount of 500 pesos for costs
 Furnishing the RTC and the Adverse party with a copy of
the petition which complies with the notice rule

3. However these requirements must be complied with within

15 days from:

 Notice of the decision sought to be reviewed

 Notice of the denial of petitioners motion for new trial or
denial of a motion for reconsideration filed in due time.

We have to take note of the fresh period rule established in the

Neypes case.

“ that in case a motion for reconsideration or a motion for new

trial was seasonably filed, it tolls the running of the
prescriptive period within which to file the appeal and if the
same is denied, the petitioner is given a fresh period of 15 days
within which to file the appeal ”.
Extension of time to file appeal

Should the petitioner be convinced that he will not be able to file

his appeal within the period required by section 1, the same
provides that he may be given an additional period of 15 days to file
the appeal but only:

 Upon proper motion

 And he has paid the full amount of the docket and other
lawful fees and deposits of costs
 Before the expiration of the reglementary period of 15 days

However, the granting of said extension is discretionary and not a

matter of right, so it is essential for the petitioner to show good
cause to convince the court to obtain the sought extension.

And should an extension be awarded, no further extension shall

be granted except for the most compelling reasons.

Section 2 forms and contents

1. Filed in 7 legible copies with the original copy intended for

the court being indicated as such by the petitioner and
shall state:
 Full names of the parties to the case without impleading
the courts or judges thereof either as petitioners or
respondents.
 Indicate the specific material dates showing it was filed
on time (material data rule, so that the CA may be
apprised that the petition was seasonably filed.
 Set forth concisely the: statement of matters involved,
issues raised, specifications of errors of facts and law or
 both, allegedly committed by the RTC and the reasons
and arguments relied upon for the allowance.

Note:

 the appellate court shall consider no error unless stated in

the assignment of errors (sec8, rule 51)
 errors not raise before the lower courts cannot be raised
for the first time on appeal – offensive to the basic rule of
fair play, justice and due process.
 Also a change of theory relied upon is not allowed and will
not be passed upon.

2. Must be accompanied by a certification against forum

shopping

Section 3. effect of failure to comply with the requirements, such

as the payment of docket and other lawful fees and deposits for
costs and proof of service (under section 1) and the form and
contents of the petition and accompanying documents such as the
certification against forum shopping (under section 2)shall be a
ground for the dismissal of the petition.

Section 4 action on the petition

1. The CA may dismiss the petition if it finds the same to be:

 Patently without merit
 Prosecuted merely for delay
  That the questions raised are too unsubstantial to require
consideration

2. Should the petition be not dismissed, the CA may require the

respondent:
 To file a comment on the petition, (not a motion to dismiss),
within 10 days from notice. The contents of such comment are
governed by section 5.

Section 5 contents of comment

1. Filed in 7 legible copies, accompanied by certified true copies

of such material portions of the record referred to therein,
together with other supporting papers.

2. And shall state:

 WON he accepts the statements of matters involved in the
petition
 Point out such insufficiencies or inaccuracies as he believes
exist in the petitioner’s statement of matters involved but
without repetition. (refers to the assignment of errors)
 State the reasons why the petition should not be given due
course

A copy must be served upon the petitioner

Section 6 due course

After the filling of the comment and other pleadings that the court
may require or after the expiration of the period for filing the same
which is 10 days from notice to the respondent, the CA
(discretionary) may give due course to the petition if it finds prima
facie that the RTC has committed an error of fact or law that would
warrant: REVERSAL or MODIFICATION OF THE APPEALED
DECISION.

Section 7 elevation of the record

When the CA finds it necessary, it may order the clerk of court of

the RTC to elevate the original record of the case within 15 days
from notice including the oral and documentary evidence.

Section 8 perfection of appeal, effect

As to petitioner – upon the timely filing of a petition for review &

the payment of the corresponding docket & other lawful fees.

Effect: the RTC loses jurisdiction over the case upon its perfection
or upon the expiration of time to appeal

Except: residual jurisdiction – jurisdiction of the RTC to issue

orders for the protection and preservation of the rights of the
parties which do not involve an 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 the withdrawal of the appeal provided these are done
before the CA gives due course to the petition.
Residual jurisdiction under rule 41 vs residual jurisdiction
under rule 42

Rule 41 – may be exercised by the RTC before the transmittal of the

original record or record on appeal

Rule 42 – may be exercised by the RTC before the CA gives due

course to the petition

Paragraph 3.

General rule: perfection of the appeal stays the challenged

judgment or final order

Except: civil cases decided under the Rules of Summary Procedure

( sec 21, thereof, immediately executory)

Section 9 submission for decision

Should the petition be given due course, the CA within 15 days

may:

 Set the case for oral argument (motu propio/on motion)

 Require the parties to submit further memoranda after such
oral argument or allow the submission of memoranda in lieu
of oral argument

The case shall be deemed submitted for decision – upon the

filing of the last pleading or memoranda required by the rules or the
court itself.