Notes On Civil Procedure (Rules 40-56) Dennisaranabriljdii Page - 1

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.
Type of Case
Period to
appeal
A. Civil Actions in
general
B.
Special
Proceedings
and
Civil
Actions where
multiple appeal
is allowed
C. Habeas Corpus
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 fortyeight (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.
NOTES ON CIVIL PROCEDURE (Rules 40-56)
15 days
30 days
48
hours
Requisit
es for
appeal
Notice of
appeal
1. Notice
of Appeal
2. Record
on
Appeal
There are three (3) instances under Section 39:
Notice of
Appeal
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. 01-1-03-SC)]
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
dennisaranabriljdii
Page | 1
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.
dennisaranabriljdii
Page | 2
A record on appeal shall be required only

in special proceedings and 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),
appellant must pay the docket fee. So that when the records
transmitted, bayad na. Even before this rule came out,
payment of appellate docket fee is really required. The rule is
same.
the
are
the
the
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
dennisaranabriljdii
Page | 3
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.
(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.
(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.
dennisaranabriljdii
Page | 4
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.
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 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
dennisaranabriljdii
Page | 5
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.
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: 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.
[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 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)
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 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, L3720, 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:
FINAL JUDGMENT OR ORDERSthe term final has two (2)

possible meanings in Civil Procedure:
dennisaranabriljdii
Page | 6
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)
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 na-dismiss 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.
dennisaranabriljdii
Page | 7
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:
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.
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
dennisaranabriljdii
Page | 8
correct remedy is to appeal from the judgment of default not to set

aside. And that is clear. The default judgment is appealable.
appeal;
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.
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 for such judgment
(Rule 47). In the case of
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.
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.
dennisaranabriljdii
Page | 9

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.
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.
prejudice.
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 re-file 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.
dennisaranabriljdii
Page | 10
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)
3) Appeal By Certiorari (appeal from RTC direct to the SC on
pure questions of law)
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.
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
original jurisdiction.
The
case
was
originally filed in
the RTC.
PETITION FOR REVIEW (par. B)

The case was decided by the RTC
pursuant to its appellate jurisdiction
(governed by Rule 42)
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.
dennisaranabriljdii
Page | 11
(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.
days since the 48-hour period disappeared in the 1997 Rules. So

many got confused now.
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 yung ruling nyo ba. Under the
judiciary law, it is 48-hours! 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]
What is the period to appeal? Section 3:

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.
The period to appeal is 15 days. And when a record on appeal
is required, the period to appeal is doubled 30 days.
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
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?
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.
dennisaranabriljdii
Page | 12
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:
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)
RUBIO vs. MTCC BRANCH 4 OF CAGAYAN DE
ORO CITY
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
dennisaranabriljdii
Page | 13
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 magforward. 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 socalled 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
dennisaranabriljdii
Page | 14
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 successor-in-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
dennisaranabriljdii
Page | 15
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.
dennisaranabriljdii
Page | 16
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:
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 is taken 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
dennisaranabriljdii
Page | 17
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,
dennisaranabriljdii
Page | 18
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 nag-file]; 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.
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.
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?
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:
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.
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
dennisaranabriljdii
Page | 19
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
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.
This was taken in the case of DELGADO vs IAC (147 SCRA
258). Lets compose a problem based on that case:
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.
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. Nag-expire 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.
dennisaranabriljdii
Page | 20
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
15-day 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 is
automatically transferred to the Court of Appeals.
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;
dennisaranabriljdii
Page | 21
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.
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)
Q: Can the parties settle the case amicably despite the fact
that there is already an appeal?
A: Yes, compromise is welcome anytime.
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)
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 purely administrative provisions.
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,
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)
dennisaranabriljdii
Page | 22
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, L-26056, 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, there is now a rule governing petitions for
review from the RTC to the CA. Prior to July 1, 1997, there was
none. Although there were guidelines then in jurisprudence,
decided cases and SC circulars.
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
dennisaranabriljdii
Page | 23
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)
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.
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?
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.
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: 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 period.
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 timeconsuming than a simple notice of appeal. Well go to examples:
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.
PROBLEM: Lets go back to RULE 41: You receive a copy of the

RTC decision on March 31. You file your motion for reconsideration
Q: Where will you file your motion for extension of time to file
petition for review?
dennisaranabriljdii
Page | 24
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
ninyocivil, 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.
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
(a) state the full names of the parties to the
case, without impleading the lower courts or
judges thereof either as petitioners or
respondents;
(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 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.
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.
ORTIZ vs. COURT OF APPEALS
299 SCRA 708 [1998]
dennisaranabriljdii
Page | 25
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 nonforum 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 payment of the
docket and other lawful fees, the deposit for
costs, proof of service of the petition, and
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
patently
without
merit,
prosecuted
manifestly for delay, or 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)
dennisaranabriljdii
Page | 26
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.
In ordinary 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 within fifteen (15) days from notice.
(n)
Q: Now, when is an appeal by petition for review deemed
perfected?
A: Section 8 [a]. Similar to Rule 41. The same principle:
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 order unless 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.
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.
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
dennisaranabriljdii
Page | 27
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)
Rule 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
Let us now go to Rule 43 which governs Appeals from the Court
of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.
Take note that under Section 9 of BP 129, the CA has the exclusive
appellate jurisdiction to review decisions of all RTC and QuasiJudicial Bodies, and Rule 43 is the governing rule on appeals from
quasi-judicial bodies.
So, before this, appeal to the CA of Tax cases is supposed to be
to the SC. Now it is reverted to the CA, and also quasi-judicial
agencies. What was the prior law? It is Revised Administrative
Circular No. 1-95, which was promulgated on January 1, 1995. Now
it is Rule 43 the circular was actually quoted here verbatim. So,
you can no longer go to the SC, even on pure questions of law, ha!
Decisions of quasi-judicial agencies must pass first to the CA even
on pure questions of law.
Now what are these
enumerated in Section 1:
quasi-judicial
bodies?
They
are
Section 1. Scope. This Rule shall apply to

appeals from judgments or final orders of the
Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in
the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service
Commission, Central Board of Assessment
Appeals,
Securities
and
Exchange
Commission, Office of the President, Land
Registration
Authority,
Social
Security
Commission, Civil Aeronautics Board, Bureau
of Patents, Trademarks and Technology
Transfer,
National
Electrification
Administration, Energy Regulatory Board,
National Telecommunications Commission,
Department of Agrarian Reform under
Republic Act No. 6657, Government Service
Insurance System, Employees Compensation
Commission, Agricultural Inventions Board,
Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments,
Construction
Industry
Arbitration
Commission,
and
voluntary
arbitrators
authorized by law. (n)
So, very specific! The latest addition there are decisions of
voluntary arbitrators. Prior to that, it can be brought by certiorari to
the SC, but because of a decided case it is now be brought to the
CA.
One case under Rule 43 which I want to discuss with you is the
case of
LEPANTO CERAMICS vs. COURT OF APPEALS
237 SCRA 519 [1994]
FACTS: This involves appeals from the Board of
Investments (BOI). Now, as provided in the original
Omnibus Investment Code of 1981 during the Marcos
era, decisions of the BOI are appealable directly to the
SC. But years later it was nullified by the Judiciary Law
dennisaranabriljdii
Page | 28
because all decisions of all quasi-judicial bodies are

appealed to the CA.
Four years later the Constitution took effect. In July
1987 during the term of Cory Aquino, she promulgated
E.O. No. 226, the so-called Omnibus Investment Code
of 1987 where provisions from the old code were
merely lifted. And among those included is the
provision on appeals from the BOI where you go
directly to the SC.
The position of Lepanto is, the new law (E.O. No.
226) has modified BP 129 because the old law was
modified by BP 129. And since this is a new law, binalik
na naman ang appeal sa SC. So na modify ang BP 129.
HELD: NO. Lepanto is wrong because when Cory
Aquino issued E.O. No. 226, the New Constitution has
taken effect. And under the 1987 Constitution, you
cannot increase the appellate jurisdiction of the SC
without its consent and concurrence. In effect, the new
law (E.O. No. 226) increased the work of the SC without
its knowledge and consent therefore the SC did not
agree. The SC rejected the provision that decisions of
the BOI are appealable directly to the SC.
In the case of FABIAN vs. DESIERTO [December 16, 1998], a
provision under RA 6670, which provides that decisions of the
Office of the Ombudsman in administrative disciplinary cases, was
declared unconstitutional because the appellate jurisdiction of the
SC was increased without its advice and consent.
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is
before Revised Administrative Code No. 1-95. As I have told you
before, rulings of different constitutional commissions, CSC, COA,
COMELEC should be direct to the SC. That is why the case of
MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned
because the new procedure is that decisions of the CSC are now
appealable to the CA.
Sec. 2. Cases not covered. This Rule shall
not apply to judgments or final orders issued
under the Labor Code of the Philippines. (n)
Section 2 refers to decisions of NLRC and the Secretary of

Labor. Their decisions can be brought directly to the SC by way of
petition for Certiorari under Rule 65, not by appeal (Rule 43).
Sec. 3. Where to appeal. An appeal under
this Rule may be taken to the Court of
Appeals within the period and in the manner
herein provided, whether the appeal involves
questions of fact, of law, or mixed questions
of fact and law. (n)
Sec. 4. Period of appeal. The appeal shall be
taken within fifteen (15) days from notice of
the
award,
judgment,
final
order
or
resolution, or from the date of its last
publication, if publication is required by law
for its effectivity, or of the denial of
petitioners
motion
for
new
trial
or
reconsideration duly filed in accordance with
the governing law of the court or agency a
quo. Only one (1) motion for reconsideration
shall be allowed. Upon proper motion and the
payment of the full amount of the docket fee
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)
Sec. 5. How appeal taken. Appeal shall be
taken by filing a verified petition for review
in seven (7) legible copies with the Court of
Appeals, with proof of service of a copy
thereof on the adverse party and on the
court or agency a quo. The original copy of
the petition intended for the Court of Appeals
shall be indicated as such by the petitioner.
Upon the filing of the petition, the
petitioner shall pay to the clerk of court of
the Court of Appeals the docketing and other
lawful fees and deposit the sum of P500.00
dennisaranabriljdii
Page | 29
for costs. Exemption from payment of

docketing and other lawful fees and the
deposit for costs may be granted by the
Court of Appeals upon a verified motion
setting forth valid grounds therefor. If the
Court of Appeals denies the motion, the
petitioner shall pay the docketing and other
lawful fees and deposit for costs within
fifteen (15) days from notice of the denial.
(n)
Sec. 6. Contents of the petition. The petition
for review shall (a) state the full names of
the parties to the case, without impleading
the court or agencies either as petitioners or
respondents; (b) contain a concise statement
of the facts and issues involved and the
grounds relied upon for the review; (c) be
accompanied by a clearly legible duplicate
original or a certified true copy of the award,
judgment, final order or resolution appealed
from, together with certified true copies of
such material portions of the record referred
to therein and other supporting papers; and
(d) contain a sworn certification against
forum shopping as provided in the last
paragraph of section 2, Rule 42. The petition
shall state the specific material dates
showing that it was filed within the period
fixed herein. (2a)
Sec. 7. Effect of failure to comply with
requirements. The failure of the petitioner to
comply
with
any
of
the
foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit for
(n)
Sec. 8. 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
patently
without
merit,
prosecuted
manifestly for delay, or that the questions
raised therein are too unsubstantial to
require consideration. (6a)
Sec. 9. Contents of comment. The comment
shall be filed within ten (10) days from notice
in seven (7) legible copies and accompanied
by clearly legible certified true copies of such
material portions of the record referred to
therein together with other supporting
papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioners
statement of facts and issues; and (b) state
the reasons why the petition should be
denied or dismissed. A copy thereof shall be
served on the petitioner, and proof of such
service shall be filed with the Court of
Appeals. (9a)
Sec. 10. Due course. If upon the filing of
the comment or such other pleadings or
documents as may be required or allowed by
the Court of Appeals or upon the expiration
of the period for the filing thereof, and on the
basis of the petition or the records the Court
of Appeals finds prima facie that the court or
agency concerned has committed errors of
fact or law that would warrant reversal or
modification of the award, judgment, final
order or resolution sought to be reviewed, it
may give due course to the petition;
otherwise, it shall dismiss the same. The
findings of fact of the court or agency
concerned, when supported by substantial
evidence, shall be binding on the Court of
Appeals. (n)
Sec. 11. Transmittal of record. Within fifteen
(15) days from notice that the petition has
been given due course, the Court of Appeals
dennisaranabriljdii
Page | 30
may require the court or agency concerned to

transmit the original or a legible certified
true copy of the entire record of the
proceeding under review. The record to be
transmitted may be abridged by agreement
of all parties to the proceeding. The Court of
Appeals may require or permit subsequent
correction of or addition to the record. (8a)
Sec. 12. Effect of appeal. The appeal shall
not stay the award, judgment, final order or
resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon
such terms as it may deem just. (10a)
Sec. 13. 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 of Appeals. (n)
PROCEDURE IN THE COURT OF APPEALS

Rule 44
ORDINARY APPEALED CASES
We will now go to Rule 44 which is Procedure in the Court of
Appeals in Ordinary Appealed Cases. This is just the continuation of
Rule 41. When a case is appealed to the CA under Rule 41, this is
ordinary appeal (decisions of RTC pursuant to
its original
jurisdiction), so what will happen here?
Take note that the procedure in the CA is not only found in the
Rules of Court. The Internal Rules of the CA is found in its so called
Revised Internal Rules of the Court of Appeals (RIRCA).
So it is best that you go over it. For purposes of the BAR, hindi
na kailangan yan! There are some provisions kasi na wala sa Rules
of Court. I have a copy of that eh, leather-bound! It just so happen

that we have an alumna who is the head of the Records Division of
the CA.
Anyway, take note that under the present rules when the RTC
clerk transmits the records to the CA, nandoon na ang docket fee.
Now, once original record is there, next is you will receive a notice
from the clerk of court that all the records are there, all the
documentary evidence. And you are now given 45 days to file an
appellants brief under Section 7 which has to be answered by the
appellee under Section 8. And the appellant is given the option to
file an appellants reply brief under Section 9. As to the contents of
the appellants brief and appellees brief, you have Sections 13 and
14.
Section 1. Title of cases. In all cases
appealed to the Court of Appeals under Rule
41, 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. (1a, R46)
Sec. 2. Counsel and guardians. The counsel
and guardians ad litem of the parties in the
court
of
origin
shall
be
respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall
be served immediately on the adverse party
and filed with the court. (2a, R46)
Sec. 3. Order of transmittal of record. If the
original record or the record on appeal is not
transmitted to the Court of Appeals within
thirty (30) days after the perfection of the
appeal, either party may file a motion with
the trial court, with notice to the other, for
the transmittal of such record or record on
appeal. (3a, R46)
Sec. 4. Docketing of case. Upon receiving
the original record or the record on appeal
and the accompanying documents and
dennisaranabriljdii
Page | 31
exhibits transmitted by the lower court, as

well as the proof of payment of the docket
and other lawful fees, the clerk of court of
the Court of Appeals shall docket the case
and notify the parties thereof.
Within ten (10) days from receipt of said
notice, the appellant, in appeals by record on
appeal, shall file with the clerk of court seven
(7) clearly legible copies of the approved
record on appeal, together with the proof of
service of two (2) copies thereof upon the
appellee.
Any unauthorized alteration, omission or
addition in the approved record on appeal
shall be a ground for dismissal of the appeal.
(n)
Sec. 5. Completion of record. Where the
record of the docketed case is incomplete,
the clerk of court of the Court of Appeals
shall so inform said court and recommend to
it measures necessary to complete the
record. It shall be the duty of said court to
take
appropriate
action
towards
the
completion of the record within the shortest
possible time. (n)
Sec. 6. Dispensing with complete record.
Where the completion of the record could not
be accomplished within a sufficient period
allotted for said purpose due to insuperable
or extremely difficult causes, the court, on its
own motion or on motion of any of the
parties, may declare that the record and its
accompanying transcripts and exhibits so far
available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration.
(n)
Sec. 7. Appellants brief. It shall be the duty
of the appellant to file with the court, within
forty-five (45) days from receipt of the notice
of the clerk that all the evidence, oral and
documentary, are attached to the record,

seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of
appellee. (10a, R46)
Sec. 8. Appellees brief. Within forty-five
(45) days from receipt of the appellants
brief, the appellee shall file with the court
seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of
appellant. (11a, R46)
Sec. 9. Appellants reply brief. Within twenty
(20) days from receipt of the appellees brief,
the appellant may file a reply brief answering
points in the appellees brief not covered in
his main brief. (12, R46)
Sec. 10. Time for filing memoranda in special
cases. In certiorari, prohibition, mandamus,
quo warranto and habeas corpus cases, the
parties shall file, in lieu of briefs, their
respective
memoranda
within
a
nonextendible period of thirty (30) days from
receipt of the notice issued by the clerk that
all the evidence, oral and documentary, is
already attached to the record. (13a, R46)
The failure of the appellant to file his
memorandum within the period therefor may
be a ground for dismissal of the appeal. (n)
Sec. 11. Several appellants or appellees or
several counsel for each party. Where there are
several appellants or appellees, each counsel
representing one or more but not all of them
shall be served with only one copy of the
briefs. When several counsel represent one
appellant or appellee, copies of the brief may
be served upon any of them. (14a, R46)
Sec. 12. Extension of time for filing briefs.
Extension of time for the filing of briefs will
dennisaranabriljdii
Page | 32
not be allowed, except for good and sufficient

cause, and only if the motion for extension is
filed before the expiration of the time sought
to be extended. (15, R46)
Sec. 13. Contents of appellants brief. The
appellants brief shall contain, in the order
herein indicated, the following:
(a) A subject index of the matter in the
brief with a digest of the arguments and
page references, and a table of cases
alphabetically
arranged,
textbooks
and
statutes cited with references to the pages
where they are cited;
(b) An assignment of errors intended to
be urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading "Statement of the
Case," a clear and concise statement of the
nature of the action, a summary of the
proceedings, the appealed rulings and orders
of the court, the nature of the judgment and
any
other
matters
necessary
to
an
understanding
of
the
nature
of
the
controversy, with page references to the
record;
(d) Under the heading "Statement of
Facts," a clear and concise statement in a
narrative form of the facts admitted by both
parties and of those in controversy, together
with the substance of the proof relating
thereto in sufficient detail to make it clearly
intelligible, with page references to the
record;
(e) A clear and concise statement of the
issues of fact or law to be submitted to the
court for its judgment;
(f) Under the heading "Argument," the
appellants arguments on each assignment of
error with page references to the record. The
authorities relied upon shall be cited by the
page of the report at which the case begins
and the page of the report on which the

citation is found;
(g) Under the heading "Relief," a
specification of the order or judgment which
the appellant seeks; and
(h) In cases not brought up by record on
appeal, the appellants brief shall contain, as
an appendix, a copy of the judgment or final
order appealed from. (16a, R46)
Sec. 14. Contents of appellees brief. The
appellees brief shall contain, in the order
herein indicated, the following:
(a) A subject index of the matter in the
brief with a digest of the arguments and
page references, and a table of cases
alphabetically
arranged,
textbooks
and
statutes cited with references to the pages
where they are cited;
(b) Under the heading "Statement of
Facts," the appellee shall state that he
accepts the statement of facts in the
appellants brief, or under the heading
"Counter-Statement of Facts," he shall point
out such insufficiencies or inaccuracies as he
believes exist in the appellants statement of
facts with references to the pages of the
record in support thereof, but without
repetition of matters in the appellants
statement of facts; and
(c) Under the heading "Argument," the
appellee shall set forth his arguments in the
case on each assignment of error with page
references to the record. The authorities
relied on shall be cited by the page of the
report at which the case begins and the page
of the report on which the citation is found.
(17a, R46)
This is like a thesis or writing a book Appellants and
appellees brief.
Q: What is a brief? What is its purpose?
dennisaranabriljdii
Page | 33
A: The word BRIEF is derived from the Latin word BREVIS

[AND BRUTTHEAD] and the French word BREFIE, and literally
means a short or condensed statement. Its purpose is to present to
the court in concise form the points and questions in controversy,
and by fair argument on the facts and law of the case, to assist the
court to arrive at a just and fair conclusion. It should be prepared
as to minimize the labor of the court in the examination of the
record upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil.
67; Casilan vs. Chavez, L-17334, Feb. 28, 1962)
So you summarize the case, facts, issues,
discussions, citations of laws. So its like a debate no?
arguments,
Alright. The best brief writers I noticed are those in the Solicitor
Generals office. Just imagine, the Solicitor General defends all the
cases of the government. When a criminal case is appealed by the
accused to the CA or CA, automatically the Solicitor General takes
over. In the lower court, it is the fiscals no?
So, the Solicitor General defends the case he had never tried.
So they just based it on records. They condensed decisions kahit
na gaano ang kapal, reducing it to 15 pages or less. Its really an
ability to do it. The shorter the better. People there in the Solicitor
Generals office are really good writers and researchers because
that is the law office of the Republic of the Philippines. Lahat dyan
magagaling, isa lang ang hindi marunong. SINO? Ang Solicitor
General ninyo! He is only a political appointee. (F. Chavez? Or
Galvez?)
Q: Is the 45-day period to file brief extendible?
A: YES, that is section 12. The worst violator here is the
Solicitor General extension 30 days, 2nd extension 30 days!
Ganyan sila! Sometimes it takes them 18 months to prepare a
brief. Sabagay, marami din kasi silang trabaho no?
Q: When do you file the motion for extension of time to file
brief?
A: The motion for extension of time is filed BEFORE the
expiration of the time sought to be extended. (Section 12) BUT
sometimes the SC can be liberal about extension. One case is
MOSKOWSKY vs. COURT OF APPEALS
230 SCRA 657
FACTS: The CA here granted the appellant a period

of 90 days counted from August 3, 1991. So after the
45 days plus 90 days pa from August 3, 1991. Said 90day period ended on November 1, 1991. On November
4, 1991, or 3 days after the extended period, instead of
filing a brief, appellant filed another motion for a 20day extension.
ISSUE #1: Was the motion for extension filed on
time based on Section 12?
HELD: YES. Said ninety-day period would end on
November 1, 1991. November 1 is a regular holiday.
Then President Aquino declared November 2, 1991 as a
special holiday. The next day, November 3, 1991
turned out to be a Sunday. The next business day was,
therefore, November 4, 1991 - a Monday.
The abovementioned motion was, therefore, filed
on time, i.e., the motion for the extension sought was
filed before the expiration of the time sought to be
extended.
ISSUE #2: When do you compute the 20-day
extension being asked for? Is it on November 1, the
expiration of the period? Or on November 4, the day of
the filing of the motion?
HELD: The appellant specifically manifested that
they will need another extension from today
(November 4) within which to file appellants brief, and
today is November 4. So, the period commences to
run on November 4. So very liberal no?
Take note of Section 15 what questions may an appellant
raise on appeal:
Sec. 15. Questions that may be raised on
appeal. Whether or not the appellant has filed
a motion for new trial in the court below, he
may include in his assignment of errors any
question of law or fact that has been raised
in the court below and which is within the
issues framed by the parties. (18, R46)
dennisaranabriljdii
Page | 34
So the appellant cannot raise before the CA on appeal any

question of law or fact that has not been raised in the lower court
and not within the issues framed by the parties. He cannot, for the
first time on appeal, say something which was not raised in the
trial court. Another thing is, he cannot change his theory on
appeal, either theory on the cause of action or theory on the
defense.
Now, sometimes it is easy to detect whether there is change of
theory. The only possible exception maybe is when you raise for
the first time on appeal something which you never raised as in
lack of jurisdiction unless estoppel will set in as in the case of
TIJAM vs. SIBONGHANOY. Illustrating this point is the case of
of the contract of sale is to enable the Martinez

spouses to recover or redeem the property they
deeded in favor of Rivera. It would be absurd to pray
for the nullity of an agreement and stop there. There
would be a vacuum and the law, like nature, abhors a
vacuum.
In the CA, they persisted in their claim to
entitlement of the right to recover, redeem, or
repurchase. This agreement can not be construed as
change of theory; it is persistence, plain and simple. It
does not leave any interstice in the entire theory of the
case. Consistency in the position of the private
respondents runs throughout the presentation of their
claim.
RIVERA vs. COURT OF APPEALS

176 SCRA 169 [1989]
FACTS: The spouses Martinez sold their house and
lot to Rivera. Later, they filed a complaint against
Rivera declaring the sale as null and void on the
ground that the sale is a mortgage. The court
dismissed the complaint. So the ruling of the trial court
was that the sale was valid. But on the CA, Martinez
spouses prayed that they maybe allowed to redeem
the property.
The CA reversed the trial court and allowed
Martinez spouses to redeem the property. Now, Rivera
appealed to the CA, contending that Martinez change
the theory of their case because in the original
complaint the latter prayed for the annulment of the
sale, and in the CA they prayed that they be allowed to
redeem the property.
ISSUE: Was there a change of theory of the
Martinez spouses?
HELD: There was NO CHANGE of theory. There was
no surprise against Rivera or to the CA. The real
purpose of the Martinez spouses in asking for the
nullity of the contract is to enable them to recover the
property from Rivera.
Prescinding from those allegations and from the
prayer all clearly set out in the complaint, it is fair to
conclude that the real purpose in asking for the nullity
So akala mo may change of theory, yun pala wala! Why are

they annulling? To recover their property. In other words there was
no change of theory.
Q: Is the appellee required to make assignment of errors?
A: The APPELLEE is not required to make assignment of errors,
except when his purpose is to seek affirmation of the judgment on
other grounds or reasons not stated in the decision. (Saenz vs.
Mitchell, 60 Phil. 69; Gorospe vs. Peaflorida, 101 Phil. 886; Dy vs.
Kuison, L-16654, Nov. 30, 1961)
Q: If the appellee seeks modification of the judgment, is it
enough for him to make assignment of errors?
A: In such a case, the appellee must appeal; an assignment of
error is not enough. (Oquiena vs. Canda, 87 Phiil. 120; Gorospe
vs. Peaflorida, supra; Dy vs. Kuison, supra)
GENERAL RULE: If you are the winning party, you may appeal
the decision if you think you are entitled for more. So, you must
appeal. You cannot just state of errors in the appellees brief.
EXCEPTION: You may state assignment of errors to support the
decision to support, not to change, the decision. If you want to
change the decision, you appeal (general rule).
Rule 46
dennisaranabriljdii
Page | 35
ORIGINAL CASES
Q: What is the difference between Rule 46 and Rule 44?
A: Rule 44 deals with appealed cases. Rule 46 deals with
original cases. Remember that the CA is both an original and
appellate court.
Rule 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
Rule 47 is an entirely new rule which governs the remedy of
annulment of judgments or final orders or resolutions. We already
met this remedy in judiciary law. The CA has original exclusive
jurisdiction to annul final judgments and resolutions of the RTC.
(Section 9, BP 129) So it is an entirely original action for annulment
of judgment of the RTC.
Now, that should not be confused with certiorari, prohibition
and mandamus which fall under the original concurrent jurisdiction
of the CA. Rule 47 or annulment of judgment of the RTC falls within
the exclusive original jurisdiction of the CA.
Take note that in an appeal, the judgment appealed from is
valid. But in annulment under Rule 47, the judgment is being asked
to be declared void.
Under the prior law there was no direct rule governing that
remedy. The only guideline for annulment of judgments of the RTC
are decided cases. Now for the first time the 1997 Rules have a
definite rule on how to enforce this remedy.
So lets read Section 1 because this is a remedy which has
been existing without definite guidelines on how to do it.
Section 1. Coverage. This Rule shall govern
the annulment by the Court of Appeals of
judgments or final orders and resolutions in
civil actions of Regional Trial Courts for which
the ordinary remedies of new trial, appeal,

petition for relief or other appropriate
remedies are no longer available through no
fault of the petitioner. (n)
Well of course the remedy of new trial under Rule 37 must be
availed of before the judgment or order becomes final and
executory. Also, the remedy of appeal must also be availed before
the judgment or order becomes final and executory.
In petition for relief under Rule 38, although the judgment or
order is already final and executory, it must be done still within 60
days and 6 months.
Q: Suppose all the abovementioned remedies have lapsed, is
there a remedy left?
A: Section I says YES. There is annulment of judgment but only
on limited grounds.
Now what are the grounds for annulment of judgment? Section
2:
Sec. 2. Grounds for annulment. The
annulment may be based only on the grounds
of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground
if it was availed of, or could have been
availed of, in a motion for new trial or
petition for relief. (n)
Q: What are the grounds for annulment of judgment under
Section 2?
A: The grounds recognized by law for annulment of judgment
are the only two (2):
1.) The judgment was secured through extrinsic fraud; or
Extrinsic fraud should not be a valid ground if
availed of, or could have been availed of, in a
motion for new trial or petition for relief.
2.) The judgment is void for lack of jurisdiction.
dennisaranabriljdii
Page | 36
First Ground: EXTRINSIC FRAUD

Q: How do we describe the remedy of annulment of judgment?
A: Annulment of judgment is described briefly as a remedy
against a judgment which is already final and executory when the
remedy of appeal and new trial is already lost.
Petition for relief under Rule 38 is a remedy against a final and
executory judgment kaya lang merong deadline 6 months and 60
days. So after these periods lapse, wala na.
Sa petition for relief, apat yon eh: Fraud, accident, mistake and
excusable negligence. In annulment of judgment, wala na yung
accident, mistake and excusable negligence. But yung EXTRINSIC
FRAUD natira pa. That is the only one which can be left behind
under Rule 47.
Q: Now what is meant by extrinsic fraud ?
A: We already discussed this. Fraud, to be a ground for nullity
of a judgment, must be extrinsic that fraud done by the adverse
party which prevented a party from having a trial or from
presenting his case fully.
Therefore, intrinsic fraud is not a ground for new trial. It is not a
ground for petition for relief. And it is not a ground for annulment.
INTRINSIC FRAUD is that fraud which was an issue in the
litigation such as perjury, false testimony, concealment of
evidentiary facts, but did not prevent you from presenting your
case. That is not a ground for annulment of judgment. So take note
of that principle.
COSMIC LUMBER CORP. vs. COURT OF
APPEALS
256 SCRA 168 [1996]
FACTS: Cosmic Lumber owns a piece of land
occupied by some squatters. Now, Cosmic Lumber
executed a board resolution for a special power of
attorney authorizing an attorney-in-fact to initiate,
institute and file in any court action for the ejectment
of the squatters from its property. Then the agent by
virtue of the power of attorney, filed a case to recover
a portion of this property from its occupants before the

RTC.
While the case was going on, the agent (the
attorney-infact) entered into a compromise
agreement with the squatters. In the compromise
agreement, the attorney-in-fact sold the property or
land to the squatter for only P26,000. And the
compromise agreement was approved by the court and
it became final and executory.
Now it was several years later that the Cosmic
Lumber heard about it. The Cosmic Lumber filed an
action to annul the judgment before the CA on the
ground of extrinsic fraud.
The CA: The case will be dismissed because that is
not one of the grounds for annulment of judgment
because the alleged nullity of the compromise
judgment, because petitioners attorney-in-fact was not
authorized to sell the property. That does not amount
to extrinsic fraud. That was fraud by your own
representative, it is not fraud by the other party. The
one who exercised fraud was your own attorney-in-fact,
not the squatter. So kaya nga that is not a ground. The
CA dismissed the action. So Cosmic Lumber went to
the SC.
HELD: The petition to annul the decision of the
trial court in civil case before the CA was proper.
Emanating as it did from a void compromise
agreement, the trial court had no jurisdiction to render
a judgment based thereon. So there is another ground
lack of jurisdiction.
The highly reprehensible conduct of attorney-infact in the civil case constituted an extrinsic or
collateral fraud by reason of which the judgment
rendered thereon should have been struck down. Not
all the legal semantics in the world can becloud the
unassailable fact that petitioner was deceived and
betrayed by its attorney-in-fact. The latter deliberately
concealed from petitioner, her principal, that a
compromise agreement had been forged with the end
result that a portion of petitioners property was sold
literally for a song, for P26,000. Thus completely kept
unaware of its agents artifice, petitioner was not
accorded even a fighting chance to repudiate the
dennisaranabriljdii
Page | 37
settlement so much so that the judgment based

thereon became final and executory.
For sure, the CA restricted the concept of
fraudulent acts within too narrow limits. Fraud may
assume different shapes and be committed in as many
different ways and here lies the danger of attempting
to define fraud. For man in his ingenuity and fertile
imagination will always contrive new schemes to fool
the unwary.
So fraud by your attorney-in-fact is also considered as a ground
for annulment.
Second Ground: JUDGMENT IS VOID

If we follow jurisprudence, there is a third ground which is
implied: LACK OF DUE PROCESS. When there is lack of due process
there is also lack of jurisdiction.
Q: How do you attack a judgment which is void?
A: It depends:
a.) when the judgment is null and void on its very face, the
judgment may be attacked:
1.) DIRECTLY; or
2.) COLLATERALLY;
b.) when the nullity is not apparent on the face of the
judgment, the judgment can be attacked only be
DIRECTLY attacked.
Q: What is a COLLATERAL ATTACK?
A: Meaning, there is no need for me to file a case but I can
invoke its nullity anytime because a judgment which is void on its
very face can be attacked at anytime, in any manner anywhere.
EXAMPLE of Collateral attack: You are moving to execute a
judgment. I will oppose the execution on the ground that the
judgment is void. That is collateral attack. Im just saying that the
judgment cannot be enforced because it is null and void. But I
never filed a direct action to declare its nullity. That can be done if
the judgment is void on its very face.
Q: What is a DIRECT ATTACK?
A: By direct attack means you must file an action to declare its
nullity. So there must be a case for its annulment.
Again, when the judgment is null and void on its face, (1) you
may file a direct action to annul it under Rule 47. Or, (2) it can also
be attacked collaterally, a direct attack is not necessary. A
collateral attack will suffice.
EXAMPLE: RTC decided a forcible entry. By simply reading the
decision, obviously the RTC has no jurisdiction. Therefore, I can
attack it directly by filing a case for its annulment under Rule 47.
OR, I will not file a case under Rule 47 but I will attack it
collaterally. Meaning, bayaan ko lang. I will raise that issue during
execution. If you move for execution, I can oppose, You cannot
execute because the RTC has no jurisdiction over the case.
Therefore the judgment is void. So it is not necessary to file a
case to declare the decision as null and void. That is collateral
attack.
But if the judgment is not void on its face but the nullity is
intrinsic or nakatago not obvious ba the rule is, you must file a
direct action for its annulment which must be done before the
action is barred by laches or estoppel. So it is necessary to file a
case for annulment of judgment under Rule 47.
Well of course, certiorari under Rule 65 is also a ground for
attacking a judgement but the trouble is you are limited to 3
grounds: Lack of jurisdiction, excess of jurisdiction and grave abuse
of discretion. Walang extrinsic fraud. That is governed by Rule 65
and not by Rule 47.
And under Rule 65, you can avail of certiorari only within 60
days. But if you want annulment, it could be longer under Rule 47.
That is under section 3. That could be a big difference.
Moreover, what do you attack in certiorari? Normally,
interlocutory orders eh. But a final judgment can be attacked by
annulment under Rule 47.
Now, those remedies were summarized in the case of
dennisaranabriljdii
Page | 38
1.) Rule 9, Section 3 [b] Motion to lift Order

of Default, there is still no judgment;
ground: FAME;
2.) Rule 37 Motion for new trial, judgment
not yet final; Ground: FAME;
3.) Rule 38 Petition for relief within 60 days
and 6 months, judgment is already final;
ground: FAME;
4.) Rule 41 Appeal within 15 days; ground:
Default judgment is contrary to law or
evidence;
5.) Rule 47 Annulment of judgment; Ground:
Extrinsic Fraud;
6.) Rule 65 Certiorari; ground: Lack or excess
of jurisdiction or grave abuse of discretion
BAYOG vs. NATINO

258 SCRA 378 [1996]
HELD: It is a settled rule that a final and executory
judgment may be set aside in three (3) ways. To wit:
1. By petition for relief from judgment
under Rule 38;
2. When the judgment is void for want of
jurisdiction, by direct attack, by
certiorari, annulment of judgment or by
collateral attack; and
3. When the judgment was obtained by
fraud and Rule 38 cannot be applied
anymore.
So those are the summary of the remedies.
Q: What is the period to file an action for annulment on the

ground of extrinsic fraud?
A: Section 3:
ISLAMIC DAVAO COUNSEL vs. COURT OF

APPEALS
178 SCRA 178
Sec. 3. Period for filing action. If based on

extrinsic fraud, the action must be filed
within four (4) years from its discovery; and
if based on lack of jurisdiction, before it is
barred by laches or estoppel. (n)
ISSUE #1: Can a person, who is not a party to the

judgment, file an action for annulment of judgment?
HELD: A person who is not a part of the judgment
may sue for its annulment PROVIDED that he can prove
[1] that the judgment was obtained through fraud and
collusion and [2] that he would be adversely affected
thereby.
This is based on decided cases. If your ground is extrinsic

fraud, the action is filed within four (4) years from its discovery.
Now, if it is based on lack of jurisdiction, before it is barred by
laches or estoppel. That is very elastic laches or estoppel.
ISSUE #2: Suppose the judgment had already

been fully executed and implemented, can you still file
a case for annulment of judgment?
HELD: YES. We will also annul the execution. If
there is no execution yet, the proper remedy normally
is you file an action for annulment and ask for the
issuance of a writ of preliminary injunction so that it
will not be enforced. Pero kung na-enforced na pwede
pa man din ba.
SUMMARY:
DEFAULT:
Possible
remedies
of
defendant
declared
Although if you look at the strict law based on Article 1144 of

the New Civil Code, the prescriptive period really is 10 years for
any action on judgment. That is the strict law but it could be barred
earlier by laches or estoppel.
Now as to the contents of the petition, we have Section 4:
in
Sec. 4. Filing and contents of petition. The

action shall be commenced by filing a verified
petition alleging therein with particularity
the facts and the law relied upon for
annulment, as well as those supporting the
dennisaranabriljdii
Page | 39
petitioners good and substantial cause of

action or defense, as the case may be.
The petition shall be filed in seven (7)
clearly legible copies, together with sufficient
copies corresponding to the number of
respondents. A certified true copy of the
judgment or final order or resolution shall be
attached to the original copy of the petition
intended for the court and indicated as such
by the petitioner.
The petitioner shall also submit together
with the petition affidavits of witnesses or
documents supporting the cause of action or
defense and a sworn certification that he 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 that yung mga affidavits of your witnesses or
documents supporting your cause of action must be attached
already. You correlate this with Rule 37, Section 2 on new trial and
Rule 38, Section 3 on petition for relief.
What does Rule 37, Section 2 and Rule 38, Section 3 say about
motion for new trial or petition for relief? There is also an
AFFIDAVIT OF MERITS showing the nature of the fraud, accident
and the meritorious cause of action or defense. So more or less
that principle also applies in Rule 47.
Sec. 5. Action by the court. Should the court
find no substantial merit in the petition, the
same may be dismissed outright with specific

reasons for such dismissal.
Should prima facie merit be found in the
petition, the same shall be given due course
and summons shall be served on the
respondent. (n)
Under Section 5, the court may dismiss outright the petition if
there is no merit or no substantial merit. If there is, then the same
shall be given due course and summons shall be served on the
respondent.
Take note there will be SUMMONS here. Unlike in Rule 46,
walang summons yon. But here, there will be summons by the CA.
That is the difference between Rule 47 and Rule 46.
Sec. 6. Procedure. The procedure in
ordinary civil cases shall be observed. Should
a trial be necessary, the reception of the
evidence may be referred to a member of the
court or a judge of a Regional Trial Court. (n)
Q: What happens if the judgment is annulled? Can the plaintiff
re-file the case?
A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of
annulment shall set aside the questioned
judgment or final order or resolution and
render the same null and void, without
prejudice to the original action being refiled
in the proper court. However, where the
judgment or final order or resolution is set
aside on the ground of extrinsic fraud, the
court may on motion order the trial court to
try the case as if a timely motion for new trial
had been granted therein. (n)
So if the judgment is set aside on the ground of extrinsic fraud,
the action can be re-filed. The court may, on motion, order the trial
court to try the case as if a timely motions for the trial had been
granted therein. That is similar to Rule 38, Section 6. Remember
dennisaranabriljdii
Page | 40
when the court grants a petition for relief, the case will be tried all
over again as if a timely motion for new trial has been filed.
and sections 2, 3, 4, 7, 8 and 9 of this Rule

shall be applicable thereto. (n)
Q: What happens if by the time you re-file the case the

prescriptive period has already lapsed?
A: As a general rule, while the action for annulment is pending,
the prescriptive period for filing is interrupted. That is Section 8:
I have always maintained this view. As I said, if we will look at

the judiciary law, it only mentions annulment of judgments of
Regional Trial Courts which should be filed in the CA (exclusive
original).
Sec. 8. Suspension of prescriptive period. The

prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
annulment. However, the prescriptive period
shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the
original action. (n)
And the QUESTION is asked: Meron bang action for annulment

of judgments of MTC? Yaann!
Answer: YES. Kung merong annulment of judgment of the RTC,
by implication, meron din ang MTC. You cannot file it in the CA. You
file it in the RTC.
Q: What happens if a judgment is annulled and it was earlier

executed?
A: Section 9:
Sec. 9. Relief available. The judgment of
annulment may include the award of
damages, attorneys fees and other relief.
If the questioned judgment or final order
or resolution had already been executed, the
court may issue such orders of restitution or
other relief as justice and equity may warrant
under the circumstances. (n)
Annulment of judgment of the MTC will fall under the rule on

jurisdiction of the RTC any action which does not belong to the
jurisdiction of any other courts (Section 19 [6], BP 129) or, an
action the subject matter of which is incapable of pecuniary
estimation (Section 19 [1], BP 129) That would be the authority.
Now its very clear, meron talaga. It is now stated categorically
there is an action for annulment of judgment also of the MTC. It
must be filed in the RTC having jurisdiction over the MTC. The
grounds are identical as those found in the previous section. So
this is an entirely new section.
Rule 48
PRELIMINARY CONFERENCE
Under Section 9, the court may issue order of restitution or

other reliefs as justice and equity may warrant. That is similar to
Rule 39, Section 5 in case of execution pending appeal and the
appealed judgment is reversed, the court will now order mutual
restitution pursuant to Rule 39, Section 5.
Preliminary Conference is like a pre-trial in the CA. Iba lang ang

tawag but it is really a pre-trial because there are cases which fall
under the original jurisdiction of the CA, like annulment of
judgment of the RTC. Its purpose is the same as in Rule 18 on pretrial.
Sec. 10. Annulment of judgments or final

orders of Municipal Trial Courts. An action to
annul a judgment or final order of a Municipal
Trial Court shall be filed in the Regional Trial
Court having jurisdiction over the former. It
shall be treated as an ordinary civil action
Section 1. Preliminary conference. At any

time during the pendency of a case, the court
may call the parties and their counsel to a
preliminary conference:
(a) To consider the possibility of an
amicable settlement, except when the case is
not allowed by law to be compromised;
dennisaranabriljdii
Page | 41
(b) To define, simplify and clarify the

issues for determination;
(c) To formulate stipulations of facts and
admissions of documentary exhibits, limit the
number of witnesses to be presented in
cases falling within the original jurisdiction of
the court, or those within its appellate
jurisdiction where a motion for new trial is
granted on the ground of newly discovered
evidence; and
(d) To take up such other matters which
may aid the court in the prompt disposition
of the case. (n)
Sec. 2. Record of the conference. The
proceedings at such conference shall be
recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the
actions taken therein, the stipulations and
admissions made, and the issues defined. (n)
Sec. 3. Binding effect of the results of the
conference. Subject to such modifications
which may be made to prevent manifest
injustice, the resolution in the preceding
section
shall
control
the
subsequent
proceedings in the case unless, within five
(5) days from notice thereof, any party shall
satisfactorily show valid cause why the same
should not be followed. (n)
Sec. 2. Conduct of oral argument. Unless

authorized by the court, only one counsel
may argue for a party. The duration allowed
for each party, the sequence of the
argumentation, and all other related matters
shall be as directed by the court. (n)
Sec. 3. No hearing or oral argument for
motions. Motions shall not be set for hearing
and, unless the court otherwise directs, no
hearing or oral argument shall be allowed in
support thereof. The adverse party may file
objections to the motion within five (5) days
from service, upon the expiration of which
such motion shall be deemed submitted for
resolution. (2a, R49)
How are cases decided in the CA? Normally, you file your
petition; submit argument in writing; then you wait for the
decision. But sometimes, the CA is provoked by legal issues. So the
CA would decide to listen to oral arguments of the parties,
especially when the case is controversial.
Under Section 3, one difference between motions filed in the
RTC and in the CA is that:
a.) in the RTC, there must be notice of hearing (Rule
15) attached to the motion, otherwise it will be
denied;
b.) in the CA, there is no need for notice of hearing to
be attached to the motion.
Rule 49
ORAL ARGUMENTS
The CA may or may not require oral argument. Just read that.
Section 1. When allowed. At its own
instance or upon motion of a party, the court
may hear the parties in oral argument on the
merits of a case, or on any material incident
in connection therewith. (n)
The oral argument shall be limited to such
matters as the court may specify in its order
or resolution. (1a, R48)
Rule 50
DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Take note that under
Section 1, an appeal may be dismissed by the CA on its own (motu
propio) or upon motion of the appellee. And there are nine (9)
grounds for dismissal of appeal under Section 1:
Section 1. Grounds for dismissal of appeal. An
appeal may be dismissed by the Court of
dennisaranabriljdii
Page | 42
Appeals, on its own motion or on that of the

appellee, on the following grounds:
(a) Failure of the record on appeal to
show on its face that the appeal was taken
within the period fixed by these Rules;
(b) Failure to file the notice of appeal or
the record on appeal within the period
prescribed by these Rules;
(c) Failure of the appellant to pay the
docket and other lawful fees as provided in
section 5 of Rule 40 and section 4 of Rule 41;
(d) Unauthorized alterations, omissions or
additions in the approved record on appeal
as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and
file the required number of copies of his brief
or memorandum within the time provided by
these Rules;
(f) Absence of specific assignment of
errors in the appellants brief, or of page
references to the record as required in
section 13, paragraphs (a), (c), (d) and (f) of
Rule 44;
(g) Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at
the preliminary conference under Rule 48 or
to comply with orders, circulars, or directives
of the court without justifiable cause; and
(i) The fact that the order or judgment
appealed from is not appealable. (1a; En
Banc Resolution, Feb. 17, 1998)
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO

SHOW ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE
PERIOD FIXED BY THESE RULES;
So this only applies in cases where a record on appeal is
required. Failure to show on its face that the appeal was perfected
on time meaning, the appeal might have been perfected on time

but by reading the record on appeals, you will not see it.
Normally, that happens when the party did not state the exact
date when he received the decision. He may just state the date of
the decision without stating the date of receipt. With that, the court
will presume that you received it on the date of the decision. It
might be beyond the period to appeal. So on its face, there is no
showing whether the appeal was within the 30 day period or not.
The first ground is called the MATERIAL DATA RULE that the
record on appeal must show on its face that the appeal was taken
on time.
In the 1973 case of BERKENKOTTER VS. CA, this ground was
supposed to be abolished already where the SC said that from now
on, We will no longer follow the material data rule. Meaning this is
abandoned.
So, I wonder bakit binalik ito sa 1997 Rules because since
1973, the SC has already refused to apply this ground. So when
they drafted the Rules, dapat tinanggal na yon. Bakit nandito na
naman? They might have forgotten that it has been abandoned
by jurisprudence, unless the intention is to return it.
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL
OR THE RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY
THESE RULES;
Take note that under paragraph [a], the appeal was filed on
time but the record on appeal does not show that it was filed on
time.
But here in paragraph [b], the appeal is really out of time. Take
note that you can raise this ground in the trial court. The trial court
is also authorized to dismiss an appeal on this ground (Rule 41,
Section 13). But assuming that you failed to raise it in the trial
court, you can raise it in the CA.
Q: Are you under estoppel for not raising it earlier in the RTC?
Meaning, why did you not bring it out earlier, bakit hinintay pa sa
CA?
A: There is no estoppel here because actually this is a
jurisdictional challenge. When the notice of appeal is filed out of
dennisaranabriljdii
Page | 43
time or beyond 15 days, actually the judgment of the RTC has

already become final and executory. So you are now challenging
the jurisdiction of the CA. Meaning, you are trying to say that the
CA has no jurisdiction to review on appeal a judgment of the RTC
which has already been final and executory.
Q: Does the CA have the power to review and reverse an RTC
judgment which is already final and executory?
A: No more. The judgment which is already final cannot be
changed by the CA. Meaning, the CA has no jurisdiction to
entertain the appeal in that case. So in effect, it is a jurisdictional
challenge which can be raised even in the CA even if not raised
earlier in the RTC.
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE
DOCKET AND OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF
RULE 40 AND SECTION 4 OF RULE 41;
Section 5 of Rule 40 is about filing of docket fees if you appeal
from the MTC to the RTC. Section 4 of Rule 41 refers to filing of
docket fees when the appeal is from RTC to CA.
Q: When do you pay the docket fee ?
A: Within the 15-day period, you already pay it in the RTC clerk
of court. Unlike before you pay it with the CA later. That is why as I
said, failure to pay the docket fee in the RTC is a ground for
dismissal of the appeal because of this.
Q: But how about failure to pay the appeal fee in the MTC prior
to transmittal to the RTC? Is it a ground for dismissal by the CA?
A: To my mind NO because why will the CA dismiss it when the
appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang
kaso sa kanila? The CA has nothing to do with the appeal. It is
supposed to be in the RTC, bakit ang CA ang mag-dismiss? In other
words, there is something wrong with this amendment. (referring
to Section 5 of Rule 40)
But if the appeal is from the RTC to the CA, you must you must
pay the docket fees because it is a specific ground for dismissal for
the dismissal under Rule 50.
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS

OR ADDITIONS IN THE APPROVED RECORD ON APPEAL AS
PROVIDED IN SECTION 4 OF RULE 44;
Thats only when there is a record on appeal. When the record
on appeal is approved, you have to reproduce it and you are not
allowed to make any alteration, revision or addition.
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND
FILE THE REQUIRED NUMBER OF COPIES OF HIS BRIEF OR
MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES;
Failure of the appellant to serve and file the required number of
copies of his brief. So, failure to file the appellants brief is a ground
for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief,
what will happen ?
A: You do not dismiss the appeal but the case will be submitted
for decision without appellees brief. The CA will make a resolution
that the case was submitted without the appellees brief.
Q: Does it mean to say that talo na yung appellee?
A: NO. There are many cases Ive seen where the appellee did
not file any brief Talo man gihapon ang appellant because
anyway the appellants brief has no merit. But normally in cases na
delikado, you better file an appellees brief. You owe that to your
client. Just imagine, lahat ng arguments dun hindi sagutin. Thats
very dangerous!
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF
ERRORS IN THE APPELLANTS BRIEF, OR OF PAGE REFERENCES TO
THE RECORD AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C),
(D) AND (F) OF RULE 44;
Well, you may file an appellants brief, eh wala namang page
references, wala namang assignment of errors. My God! What kind
of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief
without telling the CA kung anong mali and then you expect the CA
dennisaranabriljdii
Page | 44
to look for the errors. My golly! Do not expect the CA to do that.

Meron dapat citations e.g. See Exhibit A, See transcript
Merong reference ba! like kung anong page yan.
Now if you file a brief without footnotes, without citing the law,
without citing the transcript, without citing the exhibit, that would
be dismissed. Thats what happened in the 1995 case of
DEL ROSARIO vs. COURT OF APPEALS
241 SCRA 553 [1995]
FACTS: The CA dismissed the case simply because
the appellants brief was sloppily written no reference
to exhibit, no reference to page, no reference to
anything. It was dismissed! The appellant went to the
SC pleading liberality.
HELD: Petitioners plea for liberality in applying
these rules in preparing Appellants Brief does not
deserve any sympathy. Long ingrained in our
jurisprudence is the rule that the right to appeal is a
statutory right and a party who seeks to avail of the
right must faithfully comply with the rules. Deviations
from the rules cannot be tolerated. The rationale for
this strict attitude is not difficult to appreciate. These
rules are designed to facilitate the orderly disposition
of appealed cases. In an age where courts are
bedeviled by clogged dockets, these rules need to be
followed by appellants with greater fidelity. Their
observance cannot be left to the whims and caprices of
appellants.
Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE
NECESSARY STEPS FOR THE CORRECTION OR COMPLETION OF THE
RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER;
Sometimes yung record mo kulang-kulang ba. And the party
may be directed to work for the completion. If you fail to complete
the record, your appeal will be dismissed.
Please connect this with two previous provisions talking about

completion of the record in an appealed case. Im referring to Rule
41, Section 10 and Rule 44, Sections 5 to 6 because these
provisions talk also of completion of record. (please refer to your
codals)
Rule 41, 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.
Rule 44, Sec. 5. Completion of record. Where
the record of the docketed case is
incomplete, the clerk of court of the Court of
Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty of
said court to take appropriate action towards
dennisaranabriljdii
Page | 45
the completion of the record within the

shortest possible time.
Rule 44, Sec. 6. Dispensing with complete
record. Where the completion of the record
could not be accomplished within a sufficient
period allotted for said purpose due to
insuperable or extremely difficult causes, the
court, on its own motion or on motion of any
of the parties, may declare that the record
and
its
accompanying
transcripts
and
exhibits so far available are sufficient to
decide the issues raised in the appeal, and
shall issue an order explaining the reasons
for such declaration.
Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT
THE PRELIMINARY CONFERENCE UNDER RULE 48 OR TO COMPLY
WITH ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT
WITHOUT JUSTIFIABLE CAUSE; AND
Thats a new ground failure to appear on the preliminary
conference; failure to comply with orders, circulars, directives of
the court without justifiable cause. That is very broad. Thats a new
one not found in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT
APPEALED FROM IS NOT APPEALABLE.
The fact that the judgment or order appealed from is not
appealable. Interlocutory!
Q: What are the judgments or orders which are not appealable?
A: Your reference is Rule 41, Section 1:
Rule 40, Section 1. Subject of appeal.
xxxxxx
NO APPEAL may be taken from:

judgment;
(c) An interlocutory order;
appeal;
consent;
appeal therefrom; and
prejudice.
xxxxxx
So, if you appeal on any one of them, the other party can file a
motion to dismiss on the ground that it is not appealable.
Now, there is one ground for dismissal under the old rule na
nawala naman. Yun bang failure to prosecute the appeal, when
the records are not elevated to the CA the appeal can be
dismissed. Meaning, you have to follow up the clerk of court.
Nawala yun eh. That ground seems to have been abandoned. I
think the attitude there is let us not punish the appellant for the
fault of the clerk of court.
Q: Is a default judgment appealable?
A: YES. It is appealable because it is a final judgment and not
merely interlocutory. Although under the 64 Rules, there is a direct
provision that a default judgment is appealable. Now, that
provision has disappeared. But even if it is not mentioned now,
default judgment is now covered by Rule 41 on final judgments.
Sec. 2. Dismissal of improper appeal to the
Court of Appeals. An appeal under Rule 41
taken from the Regional Trial Court to the
Court of Appeals raising only questions of
dennisaranabriljdii
Page | 46
law shall be dismissed, issues purely of law

not being reviewable by said court. Similarly,
an appeal by notice of appeal instead of by
petition for review from the appellate
judgment of a Regional Trial Court shall be
dismissed. (n)
An appeal erroneously taken to the Court
of Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright. (3a)
Meaning, you must appeal to the right court and you must use
the proper mode of appeal. This incorporates in the Rules the
resolutions of the SC in the 1990 En Banc Resolution in MORILLO
vs. CONSUL (not found in the SCRA) and also incorporates the
provisions of Circular 2-90 dated March 9. 1990.
Prior to this under the 1964 Rules, the rule is if there is wrong
appeal like pure questions of law to the CA, the CA should not
dismiss the appeal but elevate it to the SC. That rule has long been
abandoned. It was abandoned in the case of MORILLO and in
Circular 2-90. Now, it is here. Kung question of law you better
appeal to the SC. If you appeal to the CA, the CA will dismiss it.
MORILLO vs. CONSUL
HELD: There is no longer any justification for
allowing transfers of erroneous appeals from one court
to the other, much less for tolerating continued
ignorance of the law on appeals.
(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 RTC and the
reasons or arguments relied upon for the
allowance of the appeal.
xxx
Errors of fact or law, or both. This refers to Petition for Review
from the RTC to the CA.
Q: What happens if an appeal is already taken to the CA?
A: It shall be dismissed outright. Under the 64 Rules, the CA
will pass it on to the SC. But the liberal policy has now been
changed.
Aaron [Cruz] asked a question (during the 1998 Review Class)
Deans ANSWER: Yes, there is a decided case. In the meantime,
you also lost the right to correct the error. Lumampas na eh!. Kaya
it would be dismissed. Hindi naman sinasabi na the appellant will
be directed to appeal properly. In other words, it will be dismissed.
Meaning, that is the end. That is the penalty for erroneous appeal.
Kaya nga according to MORILLO which became the basis of this,
there is no longer any justification for allowing transfers of
erroneous appeals from one court to the other, much less for
tolerating continued ignorance of the law on appeals. Kaya nga
before, very lenient pag mali under the 1964 Rules. But now in
Section 2 of Rule 50, wala na i-dismiss na.
WITHDRAWAL OF APPEAL
Take note that this refers to appeal under Rule 41 from RTC.
This does not apply when the appeal to the CA is from a
quasi-judicial body. Appeal from a quasi-judicial body on a pure
question of law should be to the CA, never to the SC. You compare
this with Rule 42, Section 2:
Rule 42, Section 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:
xxx
Sec. 3. Withdrawal of appeal. An appeal may

be withdrawn as of right at any time before
the filing of the appellees brief. Thereafter,
the withdrawal may be allowed in the
discretion of the court. (4a)
Q: Now, can you withdraw the appeal in the RTC level?
A: YES, prior to the transmittal of the original record or the
record on appeal, the court may allow withdrawal of the appeal.
(Section 9, Rule 41)
dennisaranabriljdii
Page | 47
Q: Where will you file the motion to withdraw?

A: In the RTC if the records are still in the RTC. If the records of
appeal is already in the CA, you file the motion to the CA at
anytime before the filing of the appellees brief you can withdraw it
as a matter of right. When there is already an appellees brief, it
can be allowed in the discretion of the Court (Section 3). That is
similar to the Rule in Rule 17, Section 1:
Rule 17, Section 1. Dismissal upon notice by
plaintiff. A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any
time before service of the answer or of a
motion for summary judgment. Upon such
notice being filed, the court shall issue an
order confirming the dismissal. Unless
otherwise stated in the notice, the dismissal
is without prejudice, except that a notice
operates as an adjudication upon the merits
when filed by a plaintiff who has once
dismissed in a competent court an action
based on or including the same claim. (1a)
Q: Can you withdraw a complaint if you file a complaint in the
lower court?
A: YES, as a matter of right for as long as there is still no
answer filed. But when the defendant has filed an answer,
dismissal of the complaint is already discretionary upon the court.
So it is the same!
Rule 52
MOTION FOR RECONSIDERATION
Sec. 1. Period for filing. - A party may file a
motion for reconsideration of a judgment or
final resolution within fifteen (15) days from
notice thereof, with proof of service on the
adverse party. (n)
Q: Can a party file a motion for reconsideration of a CA
decision?
A: YES. That is very obvious. (Section 1)

Sec. 2. Second motion for reconsideration. No second motion for reconsideration of a
judgment of final resolution by the same
party shall be entertained. (n)
Q: Can you file more than one motion for reconsideration?
A: NO. No second motion for reconsideration of a judgment or
final resolution by the same party shall be entertained. (Section 2)
There is no such thing as second motion for reconsideration.
Section 2 of Rule 52 is also in accord with Section 11 of the
Judiciary law. Section 11 of the Judiciary law governs how may
times you can file a motion for reconsideration in the CA.
BP 129, Section 11. Quorum xxxx A motion for reconsideration of its
decision or final resolution shall be resolved
by the Court within ninety (90) days from the
time it is submitted for resolution and no
second motion for reconsideration from the
same party shall be entertained.
Under par. (3), the CA has 90 days from the time it is submitted
for the resolution to rule on a motion for reconsideration.
Sec. 3. Resolution of motion. - In the Court

of Appeals, a motion for reconsideration shall
be resolved within ninety (90) days from the
date when the court declares it submitted for
resolution. (n)
The CA is given only 90 days to resolve a motion for
reconsideration.
Sec. 4. Stay of execution. - The pendency of
a motion for reconsideration filed on time
and by the proper party shall stay the
dennisaranabriljdii
Page | 48
execution of the judgment or final resolution

sought to be reconsidered unless the court,
for good reasons, shall otherwise direct. (n)
Q: What happens when a judgment of the CA is the object of a
motion for reconsideration? What happens to the execution?
A: Stayed it is not yet final unless the court for good reasons
shall otherwise direct like when there is a good ground to execute
pending appeal.
Rule 53
NEW TRIAL
Q: What is the ground for new trial in CA?

A: The ground for new trial is newly discovered evidence.
(Section 1)
Sec. 1. Period for filing; ground. - At any time
after the appeal from the lower court has
been perfected and before the Court of
Appeals loses jurisdiction over the case, a
party may file a motion for a new trial on the
ground of newly discovered evidence which
could not have been discovered prior to the
trial in the court below by the exercise of due
diligence and which is of such a character as
would probably change the result.
The
motion shall be accompanied by affidavits
showing the facts constituting the grounds
therefor and the newly discovered evidence.
(1a)
The ground is newly discovered evidence similar to the second
ground for new trial in the RTC (FAME). Fraud, accident, mistake
hindi kasali. Only newly discovered evidence is the ground under
Rule 53.
Q: Suppose the case is before the SC, can a party file a motion
for new trial on the ground of newly discovered evidence before
the SC under Rule 53 in a civil case?
A: NO. The SC said in the case of
NAVARRA vs. COURT OF APPEALS

204 SCRA 850
HELD: The Rules of Court allows only two (2)
occasions where a party may file a motion for new trial
on the ground of newly discovered evidence. That
motion may be filed only with the trial court under Rule
37 or with the CA under Rule 53 BUT NEVER with the
SC.
Time and again, We have stressed that the SC is
not a trier of facts. It is not a function of the SC to
analyze or weigh all over again the evidence already
considered in the proceedings below. Its jurisdiction is
limited to reviewing only errors of law that may have
been committed by the lower courts.
If there would be a motion for new trial with the SC and it
would be granted, you are converting the SC into a trial court.
Sec. 2. Hearing and order. - The Court of
Appeals shall consider the new evidence
together with that adduced at the trial below,
and may grant or refuse a new trial, or may
make such order, with notice to both parties,
as to the taking of further testimony, either
orally in court, or by depositions, or render
such other judgment as ought to be rendered
upon such terms as it may deem just. (2a)
Sec. 3. Resolution of motion. - In the Court
of Appeals, a motion for new trial shall be
resolved within ninety (90) days from the
date when the court declares it submitted for
resolution. (n)
Sec. 4. Procedure in new trial. - Unless
the court otherwise directs, the procedure in
dennisaranabriljdii
Page | 49
the new trial shall be the same as that

granted by a Regional Trial Court. (3a)
Q: If the motion for new trial is granted, can the CA conduct the
new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law particularly
section 9, the CA can receive evidence and act as a trial court.
That is why it is a powerful court.
votes of the majority of the members present

shall be necessary to pass a resolution of the
court en banc. The affirmative votes of three
members of a division shall be necessary for
the pronouncement of a judgment or final
resolution, which shall be reached in
consultation before the writing of the opinion
by any member of the division.
BP 129, Section 9, last paragraph:

The Court of Appeals shall have the
power to try cases and conduct hearings,
receive evidence and perform any and all
acts necessary to resolve factual issues
raised in cases falling within its original and
appellate jurisdiction, including the power to
grant and conduct new trials or further
proceedings.
Rule 56
PROCEDURE IN THE SUPREME COURT
This is an entirely new provision. In the SC, there are 2 types of
cases ORIGINAL and APPEALED. The SC has both the original and
appellate jurisdiction.
What are the original cases cognizable by the SC?
Rule 54
INTERNAL BUSINESS
Section 1. Distribution of cases among divisions. - All the cases of the Court of Appeals
shall be allotted among the different
divisions thereof for hearing and decision.
The Court of Appeals, sitting en banc, shall
make proper orders or rules to govern the
allotment of cases among the different
divisions, the constitution of such divisions,
the regular rotation of Justices among then
the filing of vacancies occurring therein, and
other matters relating to the business of the
court; and such rules shall continue in force
until repealed or altered by it or by the
Supreme Court.
Section 2. Quorum of the court. A majority
of the actual members of the court shall
constitute a quorum for its sessions en banc.
Three members shall constitute a quorum for
the sessions of a division. The affirmative
A.) ORIGINAL CASES

SECTION 1. Original cases cognizable. Only
petitions
for
certiorari,
prohibition,
mandamus, quo warranto, habeas corpus,
disciplinary proceedings against members of
the judiciary and attorneys, and cases
affecting ambassadors, other public ministers
and consuls may be filed originally in the
Supreme Court. (n)
You know them no? Certiorari, prohibition, mandamus, quo
warranto, habeas corpus, cases affecting ambassadors other public
ministers and consuls nasa Constitution din yan. This is only a
repetition of Article VIII, Section 5 (1) of the Constitution. Aside
from that, the Rules of Court give the SC authority to hear
disciplinary proceedings against members of the judiciary,
disbarment or removal of judges. SC man yan ba! And they are
governed specially for disbarment by Rule 139-B of the Rules of
Court.
dennisaranabriljdii
Page | 50
SEC. 2. Rules applicable. The procedure in

original cases for certiorari, prohibition,
mandamus, quo warranto and habeas corpus
shall be in accordance with the applicable
provisions of the Constitution, laws, and
Rules 46,48, 49, 51, 52 and this Rule, subject
to the following provisions:
a.) All references in said Rules to the
Court of Appeals shall be understood to also
apply to the Supreme Court;
b.) The portions of said Rules dealing
strictly with and specifically intended for
appealed cases in the Court of Appeals shall
not be applicable; and
c.) Eighteen (18) clearly legible copies of
the petition shall be filed, together with
proof of service on all adverse parties.
The proceedings for disciplinary action
against members of the judiciary shall be
governed by the laws and Rules prescribed
therefor, and those against attorneys by Rule
139-B, as amended. (n)
case. The SC operates in 2 ways. It decides cases either en banc or

by division. 18 copies is required because 15 na ang justices, only
three (3) for the clerk.
Q: How about subsequent pleadings? How many copies?
A: Depende. Kung en banc, all subsequent pleadings, still 18
copies. Kapag division case, 9 na lang. Now, there are three
divisions in the SC the first, second and third divisions. And every
division is composed of five (5) members.
The SC meets en banc twice a week Tuesday and Thursday
unless they have changed it. It is called an en banc session. Cases
are raffled for assignment by division. Monday and Wednesday,
hiwa-hiwalay sila the 5 justices who belong to the same division
meet together and discuss cases which are raffled to that division.
Friday is a NO SESSION but a working day. That is when they study,
prepare their decisions and resolutions. That is why we can also
predict when will the result of the Bar be released because that is
an en banc session. Only the SC en banc can order the release of
the results of the Bar Exam. They have to pass a resolution.
B. APPEALED CASES
a.) All references in said Rules to the Court of Appeals

shall be understood to also apply to the Supreme Court
Actually, kulang ito eh. These proceedings are actually
governed more by Rule 65 and 66. But they are also covered by
Rule 46, 48, 49, 51 and 52 (CA) and it also applies to SC.
b.) The portions of said Rules dealing strictly with and
specifically intended for
appealed cases in the Court of Appeals shall not be applicable;
and
This is more of legal and judicial ethics.

Q: When you file a petition before the SC for certiorari,
prohibition or mandamus, how many copies?
A: First filing 18 copies minimum. Why? Because you do not
know whether it will be considered as an en banc case or a division
SEC. 3. Mode of appeal. An appeal to the

Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed is
death,
reclusion
perpetua
or
life
imprisonment. (n)
There is only one way of appeal to the SC. The only mode of
appeal recognized is Petition for Review by Certiorari under Rule
45, except in criminal cases when the penalty imposed by the RTC
is death penalty, reclusion perpatua or life imprisonment where
only ordinary appeal (under Rule 41) is required. Outside of that,
the only mode of appeal to the SC is Petition for Review by
Certiorari.
Please connect this with Rule 45, Section 9:
Rule 45, Sec. 9. Rule applicable to both civil
and criminal cases.- The mode of appeal
prescribed in this rule shall be applicable to
dennisaranabriljdii
Page | 51
both civil and criminal cases except in

criminal cases where the penalty imposed is
death,
reclusion;
perpetua
or
life
imprisonment.
Rule 56, Sec. 4. Procedure.- The appeal
shall be governed by and disposed of in
accordance with the applicable provisions of
the Constitution, laws, Rules 45, 48, sections
l,2, and 5 to 11 of Rule 51, 52 and this rule.
Q: What are the grounds for dismissal of an appeal before the
comply
with
any
of
the
foregoing
requirement regarding the payment of the
docket and other lawful fees, deposit for
The Supreme Court may on its own
initiative deny the petition on the ground
that the appeal is without merit, or is
prosecuted manifestly for delay or that the
questions
raised
therein
are
too
unsubstantial to require consideration.
SC?
A: Section 5:
Section 5. Grounds for dismissal of appeal.The appeal may be dismissed motu propio or
on motion of the respondent on the following
grounds:
a. Failure to take the appeal within the
reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee
and other lawful fees or to make a deposit for
costs;
d.
Failure
to
comply
with
the
requirements regarding [proof of service and
contents of and the documents which should
accompany the petition;
e. Failure to comply with any circular,
directive or order of the Supreme Court
without justifiable cause;
f. Error in the choice of mode of appeal;
and
g. The fact that the case is not appealable
to the Supreme Court.
Connect Rule 56, Section 5 with Rule 45, Section 5. The
grounds are identical, to wit:
Rule 45, Sec. 5. Dismissal or denial of
petition. The failure of the petitioner to
Sec. 6. Disposition of improper appeal

Except as provided in section 3, Rule 122
regarding appeals in criminal cases where
the penalty imposed is death, reclusion
perpetua or life imprisonment, an appeal
taken to the Supreme Court by notice of
appeal; shall be dismissed.
An appeal by certiorari taken to the
Supreme court from the Regional Trial Court
submitting issues of fact may be referred to
the Court of Appeals for decision or
appropriate action. The determination of the
Supreme Court on whether or not the issues
of fact are involved shall be final.
This is already discussed in Rule 50, Section 2. A wrong appeal
is a ground for a dismissal of such appeal.
Q: If the appeal is on pure question of law (it should be before
the SC) and by mistake the party appealed to the CA, what will
happen?
A: The appeal will be dismissed under Rule 50. The CA will not
endorse the case to the SC.
Q: Suppose you will appeal by certiorari to the SC under Rule
45. Tapos, halo pala hindi naman pala question of law lahat may
kasamang question of fact. What will happen now in the appeal?
A: Under Rule 56, Section 6, the SC may or may not dismiss
the appeal. It may refer the matter to the CA baliktad noh? So it
is not the same as Rule 50, Section 2.
dennisaranabriljdii
Page | 52
Section 7. Procedure if opinion is divided.

Where the court en banc is equally divided in
opinion, or the necessary majority cannot be
had, the case shall again be deliberated on,
and if after such deliberation no decision is
reached, the original action commenced in
the court shall be dismissed; in appealed
cases, the judgment or order appealed from
shall stand affirmed; and on all incidental
matters, the petition or motion shall be
denied.
What happens if the justices of the SC are equally divided?
For instance, there were 4 in attendance in a division dahil
absent ang isa the result is 2:2. So, we will deliberate again, but
still 2:2. If that is so, the decision appealed from is considered
affirmed. In other words, the ruling in the lower court is considered
correct.
The counterpart of this rule in Criminal Procedure is Rule 125,
Section 3. If after deliberation, the justices are even, they will
deliberate again but still even. The decision must be acquittal.
Since you cannot break the tie, it must be in favor of the accused.
EN BANC CASES
Now, before we leave this topic, of course we know very well
that when you appeal to the SC, there are two possibilities either
it will be heard by a division (there are 3 divisions there) or your
case might be decided by the entire SC en banc.
2.) Criminal cases in which the appealed decision imposes

death penalty; Criminal cases where a change of venue is
required to avoid miscarriage of justice where SC has to
make an order to change the venue;
Pag reclusion perpetua, hindi man yan en banc ba!
Only for death penalty.
3.) Cases raising novel questions of law;
There is a point of law where there is no decided case yet.
Meaning, such legal issue is raised for the first time.
4.) Cases affecting ambassadors, other public ministers or
consuls;
5.) Cases involving decisions, resolutions, orders of the
COMELEC, COA, or the Office of the OMBUDSMAN,
SANDIGANBAYAN in administrative disciplinary cases;
6.) Cases in which the penalty involved is a dismissal of the
judge, officer or employee of the judiciary, disbarment of a
lawyer or even suspension of any of them for a period of
more than one (1) year of fine exceeding P10,000.
Tignan mo sa SCRA. Pag ang penalty is removal of a judge or
disbarment, en banc yan. And sometimes, you cannot even identify
who is the ponente. Ang tawag diyan per curiae. The ponente is
not identified.
7.) Cases where a doctrine or principle of law laid down
by the Court en banc or division may be modified or
reversed;
A decision by a division can only be reversed by the SC en banc.
The same is true in a decision previously decided en banc. Only SC
en banc can change its mind and reverse its previous ruling.
Q: What cases are heard by the SC en banc?

A: There was a circular in 1993 issued by the SC enumerating
en banc cases:
8.) Cases assigned in a division which in the opinion of at least

three (3) members thereof, merit the attention of the Court
en banc and are acceptable to the majority of the actual
members of the court en banc;
1.) Cases in which the constitutionality or validity of any

treaty, international or executive agreement, law,
executive order, presidential decree, proclamation, order,
instruction, ordinance or regulations in question. For
example, the recent Oil Deregulation Law;
Meaning, it is a division case but at least three

members of the division are of the view that it should
be elevated to the SC en banc. And the majority of the
entire court also agree.
dennisaranabriljdii
Page | 53
Example: A case is assigned to a division. After

deliberating, majority of the 5 hold that the case is so
important that referral to the entire membership is
proper. Then when it is referred en banc, majority
accepts it, then it is to be decided en banc.
Specific Example: The case of PEOPLE vs. LUCAS in
Criminal Law. ISSUE: Is the penalty of reclusion
perpetua divisible or indivisible? The original ruling
there by a division is that it is a divisible penalty. But
upon motion for reconsideration by the Solicitor
General, the first division realized that maraming
implications ito. So at least 3 or 4 voted na itapon natin
to the SC en banc and then the entire voted.
BAR QUESTION : A lost in an appealed decision. He
filed a motion for reconsideration. He is insisting that
his motion be resolved by the entire membership of the
SC. Can he insist that his motion for reconsideration be
heard by the entire membership of the SC en banc
when he lost in a division?
A: NO, because the SC en banc is not a separate

court from one of its divisions. You cannot say that a
decision by a division can be appealed to the SC en
banc because it is the same court. The best that can
happen to you is you convince the members of the
same division to refer the matter to the entire court en
banc and try to convince the majority of the court en
banc to accept it. That is the correct move.
9.) All other cases as the court en banc, by the majority of its
actual members, may deem of sufficient importance to
merit its attention.
These cases are those involving the welfare of the
nation like Lotto case, EVAT, Manila Hotel case. This is
also the ground invoked by Imelda Marcos where she
tries to convince the court en banc to hear her motion
for reconsideration.
dennisaranabriljdii
Page | 54

Notes On Civil Procedure (Rules 40-56) Dennisaranabriljdii Page - 1

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Notes On Civil Procedure (Rules 40-56) Dennisaranabriljdii Page - 1

Enviado por

Direitos autorais:

Formatos disponíveis

APPEALS

We will stick to the basic rule

NOTES ON CIVIL PROCEDURE (Rules 40-56)

There are three (3) instances under Section 39:

So this is the general outline of the law on appeals under

shall be appealable by petition for review to

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Sec. 2. When to appeal. An appeal may be

A record on appeal shall be required only

Q: How do you appeal?

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Q: When is the appeal deemed perfected?

Q: Suppose I will file my Notice of Appeal within 15 days but I

appellate court, such dismissal should be exercised

NOTES ON CIVIL PROCEDURE (Rules 40-56)

memorandum. Failure of the appellant to file

Q: Suppose the appellant has filed his memorandum and it is

NOTES ON CIVIL PROCEDURE (Rules 40-56)

PROBLEM: Suppose the complaint filed by Tomas against Ka

APPEAL FROM THE REGIONAL TRIAL COURTS

[1] The judgment is final in the sense that it is already

FINAL JUDGMENT OR ORDERSthe term final has two (2)

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Rule 3, Sec. 20. Action on contractual money

NOTES ON CIVIL PROCEDURE (Rules 40-56)

REPUBLIC vs. TACLOBAN CITY ICE PLANT

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Section 9. Remedy against order denying a

correct remedy is to appeal from the judgment of default not to set

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Q: Can you appeal?

case is pending, unless the court allows an

the extent to which the amount of damages

Rule 16, Section 1. Grounds. Within the

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Ordinary Appeal is the mode of appeal from RTC to CA in

PETITION FOR REVIEW (par. B)

EXAMPLE: You filed an action for recovery of money amounting

(c) Appeal by certiorari.- In all cases where

days since the 48-hour period disappeared in the 1997 Rules. So

What is the period to appeal? Section 3:

NOTES ON CIVIL PROCEDURE (Rules 40-56)

FACTS: You receive a judgment on January 31. You

So how do you reconcile this pronouncement with the rule that

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Sec. 4. Appellate court docket and other

payment thereof shall be transmitted to the

NOTES ON CIVIL PROCEDURE (Rules 40-56)

I believe that it is dismissible because of that. So, to my mind,

NOTES ON CIVIL PROCEDURE (Rules 40-56)

Now, in our outline in appeal, the general rule is when you

statement to that effect will be sufficient

NOTES ON CIVIL PROCEDURE (Rules 40-56)

suffering from diarrhea. So the trial was postponed. Kailangan pa

ISSUE #1: Can A appeal already from the decision

NOTES ON CIVIL PROCEDURE (Rules 40-56)

5.) Special civil actions for foreclosure of

Take note that as a GENERAL RULE: a judgment for or against

NOTES ON CIVIL PROCEDURE (Rules 40-56)

RULE 69, Sec. 2. Order for partition, and

shall redraft the record by including therein,

Q: How do you perfect an appeal?

records on appeal filed in due time and the