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On June 24, 1941, plaintiffs Tomas Mapua et al. leased to the defendant Suburban Theaters, Inc. the building
named Cine Apolo situated at 1348 Rizal Avenue, City of Manila, for a period of three years beginning July 1, 1941,
extendible to another three years with rental at the rate of P700 a month. In spite of the expiration of the period of
three years in 1944, the defendant entity continued in possession of the Cine Apolo paying the sum of P1,000 a
month as rental. The plaintiffs filed a complaint in the Municipal Court of Manila for ejectment. After hearing, the
municipal court dismissed the complaint. The plaintiffs appealed to the Court of First Instance where instead of
reproducing their complaint in the municipal court, they filed an amended complaint dated October 11, 1945, with
the prayer that the defendant be ordered to vacate the premises and to pay the rentals of P1,000 a month from July
to October, 1945, and the sum of P10,000 as the reasonable compensation for the use and occupancy of the
building from November, 1945, until defendant finally vacated the same.

whether the amount claimed as damages can be increase in appeal.

Yes. Increasing the damages certainly constituted no new cause of action. Courts are very liberal in allowing a
plaintiff to amend so long as there is no departure from the original cause of action. There is no departure in this
case. Increasing the damages is not a departure. Additional damage claimed is not by virtue of a distinct cause of
action, but merely increases the amount of plaintiff's claim for the cause already alleged in the original
statement. The assessment of damages is usually governed by the situation or conditions of affairs existing at the
time the action is brought; hence for a recovery of loss or damages occurring thereafter plaintiff should amend or file
a supplementary petition.


On February 25, 1985, petitioner filed with the Regional Trial Court of Manila. Branch L. an action for replevin and
damages against private respondent which was docketed as Civil Case No. 85-29444. After private respondent had
filed his answer, a pre-trial conference was set by the lower court of which the counsels were duly notified and they
were, furthermore. commissioned to secure the presence of the parties they represented. Both private respondent
and his counsel failed to appear at the pre-trial and, as prayed for by counsel for petitioner, private respondent was
declared as in default. The lower court rendered a decision in favor of the plaintiff. On December 10, 1985, after said
decision had become final, the lower court granted the motion for execution filed by petitioner. On December 24,
1985, private respondent filed a petition for relief from judgment. On April 28, 1986, respondent deputy sheriff issued
a notice of levy and sale of the properties of private respondent levied on, but on the date of the auction sale, said

respondent sheriff refused to proceed with the auction because of the protest of private respondent based on his
appeal from the order dismissing his petition for relief. Then he filed a petition for mandamus.

Whether the petition should be granted.

Yes. While it is true that in ordinary cases, by the perfection of an appeal, under section 9 of Rule 41 of the Rules,
the trial court loses jurisdiction over its judgment, and cannot order its execution, the judgment adverted to refers to
one which has not attained finality because of the timely appeal therefrom. Such is not applicable to an appeal from
an order dismissing or denying a petition for relief from judgment, under Rule 38, because the judgment from which
relief is sought is already final and executory. And the only way by which the execution of said judgment could be
suspended, is that prescribed in section 5 of Rule 38.

Regional Trial Court, Branch 36; SHUGO NODA & CO., LTD., and SHUYA NODA

Respondents have filed a motion for reconsideration of the Decision of the Second Division of the Court
promulgated on August 5, 1985 which granted the petition for certiorari and prohibition and set aside the order of
respondent Judge granting private respondents' motion for new trial.

Whether the fifteen-day period within which a party may file a motion for reconsideration of a final order or ruling of
the Regional Trial Court may be extended.

the Court restates and clarifies the rules on this point, as follows:
1.) Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion
for extension of time to file a motion for new trial or reconsideration may be filed with the Metropolitan or Municipal
Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in
cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or
deny the extension requested.

2.) In appeals in special proceedings under Rule 109 of the Rules of Court and in other cases wherein multiple
appeals are allowed, a motion for extension of time to file the record on appeal may be filed within the reglementary
period of thirty (30) days. If the court denies the motion for extension, the appeal must be taken within the original
period, inasmuch as such a motion does not suspend the period for appeal. The trial court may grant said motion
after the expiration of the period for appeal provided it was filed within the original period.


Petition to review the resolution of the Court of Appeals in its CA-G.R. No. 51763, dated February 28, 1973, which
dismissed petitioner's appeal from the judgment of the Court of First Instance of Negros Occidental, Branch VI,
dismissing plaintiff's complaint in its Civil Case No. 212-7377 entitled "B.E. Berkenkotter, Plaintiff, vs. Angustia
Siokon, Pedro Rodriguez and Isidro Climaco, Defendants". On June 11, 1969, judgment therein was originally
rendered in favor of the plaintiff and against the defendants by Judge Carlos Abierra. On September 1, 1969, the
defendants filed a motion for reconsideration. On August 13, 1970, he filed a "motion to dismiss and/or new trial"
and on December 19, 1970, he also filed a Supplement to the motion for reconsideration and new trial. The same
Judge Carlos Abiera rendered an Amended Decision completely reversing the decision. The motion was denied by
Judge Serafin A. Camilon on May 17, 1972, and a copy of the order of denial was received by plaintiff on June 13,
1972. On the same day, June 13, 1972, plaintiff filed a notice of appeal, an appeal bond and an ex parte motion for
extension of time (five days from June 13) within which to file the record on appeal which was filed two days later, or
on June 15, 1972.

Whether the appeal was perfected on time.

This Tribunal has repeatedly construed section 6, Rule 41, of the Rules of Court as mandatory and jurisdictional,
non-compliance with which justifies dismissal of appeal. In the case at bar, petitioner filed his record on appeal within
the period of time requested and although no order of approval nor denial of the ex parte motion for extension was
issued, the Order of the Court on November 14, 1972, approving the notice of appeal, appeal bond and record on
appeal amounts to and should be construed as a ratification or approval of the motion for extension. It has always
been the view of this Court that the period within which the record on appeal and appeal bond should be perfected
and filed, may, however, be extended by order of the court, upon application made, prior to the expiration of the
original period. What decisively matters is that the motion for extension of time to file the record on appeal is filed
before the expiration of the 30-day period prescribed by the rules.

LEONCIA REYES, in her own representation and as administratrix of the estate of the deceased Dalmacio

Prohibition to the Court of Appeals from taking cognizance of the appeal entitled "Enrique Bautista, plaintiff and
appellant, vs. Leoncia Reyes, etc., defendant and appellee" (C.A. C.R. No. 311), on the ground that, the appeal
bond having been presented out of time, said appeal was unlawfully allowed by the trial court. In said case the Court
of First Instance of Laguna (Judge Vicente del Rosario presiding) rendered judgment in favor of the defendant on
September 19, 1942, of which the plaintiff received notice on October 10. The plaintiff filed a notice of appeal on
October 23, the record on appeal on November 2, and the appeal bond on November 10, 1942, after a pro forma
motion for new trial filed by him on October 17 had been denied by the court on the same date and notice of the
denying order had been received by him on October 22.

Whether filing of appeal bond is indispensable

Yes. The filing of an appeal bond is an indispensable prerequisite to the perfection of an appeal. Thus, section 3 of
rule 41 provides that "appeal may be taken by serving upon the adverse party and filing with the trial court within
thirty days from notice of order or judgment, a notice of appeal, an appeal bond, and a record on appeal." The
appeal bond shall be in the amount of P50 unless the court shall fix a different amount, or unless a surpersedeas
bond is filed. (Section 5, id.) "Where the notice of appeal, appeal bond, or record on appeal is filed but not within the
period of time herein provided, the appeal shall be dismissed." (Sec. 13, id.) An appeal may be dismissed by the
Court of appeals on its own motion or on that of the appellee for failure to file the appeal bond within the said period
of thirty days.

Neypes et al vs CA et al

Petitioners Domingo Neypes, Luz Faustino, Rogelio Faustino, Lolito Victoriano, Jacob Obania and Domingo
Cabacungan filed an action for annulment of judgment and titles of land and/or reconveyance and/or reversion with
preliminary injunction before the Regional Trial Court, Branch 43, of Roxas, Oriental Mindoro, against the Bureau of
Forest Development, Bureau of Lands, Land Bank of the Philippines and the heirs of Bernardo del Mundo, namely,
Fe, Corazon, Josefa, Salvador and Carmen. Respondent heirs filed a motion for reconsideration of the order
denying their motion to dismiss. In an order 2 dated February 12, 1998, the trial court dismissed petitioners complaint
on the ground that the action had already prescribed. Petitioners allegedly received a copy of the order of dismissal
on March 3, 1998 and, on the 15th day thereafter or on March 18, 1998, filed a motion for reconsideration. On July
1, 1998, the trial court issued another order dismissing the motion for reconsideration 3 which petitioners received on
July 22, 1998. Five days later, on July 27, 1998, petitioners filed a notice of appeal and paid the appeal fees on
August 3, 1998.

Whether the appeal filed late/

No. We thus hold that petitioners seasonably filed their notice of appeal within the fresh period of 15 days, counted
from July 22, 1998 (the date of receipt of notice denying their motion for reconsideration). This pronouncement is not
inconsistent with Rule 41, Section 3 of the Rules which states that the appeal shall be taken within 15 days from
notice of judgment or final order appealed from. The use of the disjunctive word "or" signifies disassociation and
independence of one thing from another. It should, as a rule, be construed in the sense in which it ordinarily
implies.33 Hence, the use of "or" in the above provision supposes that the notice of appeal may be filed within 15
days from the notice of judgment or within 15 days from notice of the "final order," which we already determined to
refer to the July 1, 1998 order denying the motion for a new trial or reconsideration.
TEODORA DE LA CRUZ, ET AL., vs. MANUEL BLANCO, Judge of First Instance of Ilocos Norte, and SANTOS
On October 31, 1932, Teodora de la Cruz and others petitioners here, applied in the Court of First Instance of Ilocos
Norte for registration of a parcel of land indicated in their plan. Santos Quevedo, one of the respondents here, with
others, opposed the application claiming that certain parcels belonging to him were included in petitioners' plan. The
trial court adjudicated to petitioners the whole land applied for and Santos Quevedo, with others appealed. On
October 31, 1938, the Court of Appeals rendered judgment sustaining, among others, Quevedo's claim and ordering
the applicants to present within the time to be fixed by the trial court an amended plan excluding, among others,
Quevedo's land. This judgment having become final. He then filed another petion.
Whether the CA can dismiss the petition on its face.
Yes. Although, as a general rule, an appeal should not be dismissed on a ground which goes to the merits of the
cause or to the right of plaintiff or defendant to recover (Velasco vs. Rosenberg, 29 Phil., 212-214), yet, in
exceptional instances, an appellate court may order the dismissal when the appeal appears to be manifestly and
palpably frivolous (4 C. J. S., 1961, section 1358). And where, as in the instant case, the dismissal had been
ordered by the trial court, it will not be disturbed in the appellate court if the latter finds the appeal to have been
interposed ostensibly for delay. It has been held that a frivolous appeal is one presenting no justiciable question, or
one or so readily recognizable as devoid of merit on the face of record to be that there is a little, if any, prospect that
it can ever succeed. The instant case is one such instance in which the appeal is evidently without merit, taken
manifestly for delay.

In Civil Case No. 313 the Respondent Court of First Instance of Agusan dismissed the appeal taken by
the Petitioners (Plaintiffs below) on the ground that the notice of appeal and appeal bond were filed out of time. This
dismissal is assailed in the present petition for mandamus. The last day within which to perfect the appeal in
question was October 5, 1954. The petition (which is under oath) alleges that counsel for Petitioners sent to
the Respondent court on October 2, by registered and special delivery mail, the necessary notice of appeal, record

on appeal and appeal bond, all contained in one envelope identified as registered letter No. 927 of the post office of
Carmen, Agusan; chan roblesvirtualawlibraryand that said letter was received in the Respondent court on October 7.
In the order of dismissal the Respondent court assumed that the record on appeal was filed on October 2 (date of
mailing), but drew the conclusion that the notice of appeal and appeal bond were filed on October 7, from the mere
fact that the appeal bond is found in the record immediately following the notice of appeal, and that the property
certificate of the bondsmen was issued only on October 4. The answer filed by Respondent Luis Peggy
(Defendant below) is not under oath and simply follows the line of argument of the Respondent court.
Whether the appeal was filed on time.
No. We are inclined to sustain the view that Petitioners appeal was perfected on time. No positive showing has
been made in support of the conclusion that the record on appeal, notice of appeal and appeal bond were not
mailed together on October 2. Upon the other hand, it is alleged under oath by counsel for Petitioners that said
papers were so mailed, and he has presented (1) a certified true copy of the notice of appeal which contains on the
upper left-hand corner the note Reg. No. 927, 10-2-54, ACR, and on the upper right-hand corner the note Court of
First Instance, October 7, 1954 at 8 :chanroblesvirtuallawlibrary40 a. m., Province of Agusan PCV, and (2 a certified
true copy of the envelope showing the date of posting in Carmen, Agusan, as October 2, 1954. At any rate, the filing
of the record on appeal (admittedly on time) implies the filing of the notice of appeal and is equivalent thereto (Lopez
vs. Lopez, 77 Phil., 133). Although the property certificate of the bondsmen was issued on October 4, it does not
necessarily follow that the appeal bond, dated September 30 and sworn to on October 2, and much less the notice
of appeal dated September 30, were mailed after October 4, or 5.

G. LUCERO, and ANGEL MOJICA, as members of the Fifth Division of the Court of Appeals

petitioner J. Antonio Araneta had filed Civil Cases Nos. 37327 and 40703 of the Court of First Instance of Manila
against respondent, Madrigal & Co., Inc., for the recovery of damages resulting from the destruction caused in an
orchard of Araneta, in Las Pias , Rizal, by several fires that had allegedly crept into said property from the adjoining
orchard of Madrigal; that, after a joint hearing of said two (2) cases, decision was, in due course, rendered therein
sentencing Madrigal to pay to Araneta, by way of damages. Araneta filed in the Court of Appeals a motion to dismiss
the appeal, upon the ground that, in violation of Rule 41, Section 6, of the present Rules of Court, Madrigal's records
of appeal did not contain "such data as will show that the appeal was perfected on time.
Whether appeal should be entertained.
No. The deficiencies pointed out are fatal. For the reason that in ordinary appeals the original record is not
forwarded to the appellate court, and because the dates when an applicant received the notice of the pertinent
orders or judgment under appeal, and of the denial of his motion for reconsideration or new trial, are facts within the
conclusive knowledge of said appellant, the Revised Rules of Court place upon the appellant the burden of showing
that his appeal is timely, and for that purpose prescribe (Rule 41, Sec. 6) that the record of appeal shall include
":such data as well show that the appeal was perfected on time". This requirement is mandatory and jurisdictional,

for unless appeal is perfected on time the appellate court acquires no jurisdiction over the appealed case, and has
power only to dismiss the appeal. The certification of the record on appeal by the trial court after expiration of the
period to appeal cannot restore the jurisdiction which has been lost. The principle is confirmed by Rule 50, Section
1, subpar. (a), heretofore quoted.


It appears that, on November 12, 1965, the Court of First Instance of Abra rendered a decision, in Civil Case No.
374 of said Court, declaring "that plaintiff Adoracion Valera de Bringas is the acknowledged natural child of
Francisco Valera" and directing the defendants in said case Virgilio Valera, Celso Valera and Mercedes Angco
Vda. de Valera to "recognize" said Adoracion Valera de Bringas as such acknowledged natural child of Francisco
Valera, as well as dismissing, for lack of merit, the counterclaim and cross-claim of defendants Virgilio and Celso
Valera, without special pronouncements as to costs. Copy of said decision was, on November 15, 1965, served
upon defendants Virgilio Valera and Celso Valera, who, on December 14, 1965, filed his notice of appeal and appeal
bond and asked for an extension of thirty (30) days within which to file his record on appeal, which was granted on
January 14, 1966. The lower court ordered Celso Valera on March 18, 1966, to amend his record of appeal, and, on
June 28, 1966, approved the amended record on appeal.

Whether failure of the record on appeal to show on its face that the appeal was perfected" within the reglementary
period is fatal.

Yes. We have consistently reaffirmed and stressed the mandatory and jurisdictional nature of the requirements
contained on Sec. 6 of Rule 41 of the Rules of Court 4 and find no reason to change our view thereon. It may not be
amiss to point out that, in making the amendment adversed to above. Well-settled is the rule that the jurisdiction
over a case or matter may be questioned at any stage of the proceedings. In the language of Government v.
Antonio, "the certification of the record on appeal by the trial court, after expiration of the period to appeal cannot
restore the jurisdiction which has not been lost."


Petitioners-spouses filed on October 2, 1969 an application for the registration of a small residential lot before
Branch XIV of the Court of First Instance of Pangasinan, which application was opposed by private respondents,

who earlier or on September 24, 1968 filed their own application for the registration of the same residential lot also
in the same court, to which herein petitioners filed their opposition. After a joint trial of the two cases, a decision was
rendered on September 20, 1973 in favor of private respondents, which decision was received on September 25,
1973 by herein petitioners. On October 13, 1973, herein petitioners filed their notice of appeal in the two cases. The
respondent Court of Appeals dismissed the appeal for failure to show all the material data indicating that the appeal
was seasonably perfected, upon motion of herein private respondents.

Whether the dismissal is proper.

The mere absence of a formal order granting the motion for extension of time to file the record on appeal should not
be fatal to the petitioner if the record on appeal filed within the requested extension period was approved by the
Court a quo. As previously stated, the approval thereof carries with it the approval of the motion for extension and
the mere failure of the record on appeal to show such approval should not defeat the right to appeal. No trial Judge
in his right mind and who is aware of the serious responsibilities of his office, would approve a record on appeal that
was not timely filed"


Case entitled Jose L. Moya vs. John Barton, judgment was rendered in favor of the plaintiff and against defendant,
and the latter was notified thereof on February 14, 1946. On March 14, 1946, that is, twenty eight (28) days after
notice, defendant filed a motion for new trial which was denied, and the order denying said motion was served upon
said defendant on April 1, 1946. The latter filed on April 2, 1946, a notice of appeal and an appeal bond, and at the
same time a motion requesting an extension of five (5) days within which to file his record on appeal, on the ground
that it was impossible for him to have the same typewritten and filed in one day or on April 3, the last day of the
period fixed by law, and the court granted the motion on the same day it was presented. The defendant and
appellant filed his appeal on time, and the case is now pending before this court.

Whether the lower court has the power to extend the period for filing the record on appeal.


Yes. The court has power and discretion to extend the period for filing the record on appeal in the interest of justice,
if it appears that the appellant had not sufficient time to prepare and file it within the period limited by law, either
because the remaining period is very short, or the record on appeal voluminous, or because of some other
justifiable reason, provided the motion for extension is filed before the expiration of the period fixed by law.

Sarmiento vs CA

On May 10, 1977, the private respondent Norma Sarmiento sued her husband, the petitioner Cesar Sarmiento, for
support. It was rendered in favor of her. On April 9, 1984 the private respondent moved for execution of the
judgment pending appeal which was granted. On June 13, 1966, the Court of Appeals found petitioner's appeal
unmeritorious and thus dismissed the same. Petitioner moved for reconsideration but the motion was denied. The
petitioner prays to prohibit the judge in enforcing the decision.
Whether the approval of the court is required to perfect an appeal.

No. Under BP 129, sec. 39, no record on appeal is required to take an appeal. Nor is an appeal bond required. A
notice of appeal is sufficient. Unlike before, where approval of the record on appeal and the appeal bond was
required before the appeal was perfected, under the present rule, the appeal is perfected upon the expiration of the
last day to appeal by a party by the mere filing of a notice of appeal. The approval of the court is not required. This
means that within 30 days after the perfection of the appeal, the original record should be transmitted to the
Intermediate Appellate Court. If the clerk neglects the performance of this duty, the appellant should ask the court to
order the clerk. It does not seem that the petitioner has done this, and it may even be that he is liable for failure to
prosecute his appeal.

De Luna et al vs Judge Palacio and Ferrer

On 26 May 1966, Judge Palacio of the Court of First Instance of Camarines Sur rendered his decision in Civil Case
No. 5151, wherein petitioners were plaintiffs and Damaso Ferrer the defendant. Both parties announced in due time
their intention to appeal from the decision to the Court of Appeals. While respondent Ferrer had filed his record of
appeal within the period prescribed by the rules, he admittedly failed to file his appeal bond within the reglementary
term. Whereupon, the plaintiffs, now petitioners, moved that Ferrer's appeal be dismissed. The trial court held that
the belated filing of the appeal bond was due to excusable negligence, and denied the motion to dismiss
defendant's appeal.
Whether there was a grave abuse of discretion.

It is indisputable and elementary that to perfect an appeal the notice and record of appeal, as well as the appeal
bond, must be filed within the period prescribed by the Rules; and that the failure to do so renders the decision final
and unappealable because the period for appeal is fatal. But the would-be appellant is not thereby precluded from
seeking relief under Revised Rule 38, section 2, whenever the entering of a judgment or order against said party
was made through fraud, accident, mistake or excusable neglect.