REDENA v.

COURT OF APPEALS

Petitioners: Tancredo Redena

Respondents: The Court of Appeals and Leocadio Redena
Ponente: GARCIA, J.
Doctrine: Petition for Relief under Rule 38 may be filed only before the MTC
or RTC which decided the case. It may only be filed in the same case and
same court in which the petition arose.
FACTS:
1. An action for partition was filed by petitioner Tancredo against his
older half-brother Leocadio, herein respondent, before the RTC of
San Pablo, Laguna.
2. The complaint alleges that the parties common father left several
pieces of realty (Three properties were mentioned). RTC confined its
decision to only one piece of property that was co-owned by the
father and the parties in this case. The other properties were not
included in the partition because the RTC stated that it belonged to
Leocadio.
3. December 11, 1997, petitioner filed with the trial court a notice of
appeal.
4. On September 28, 1998, the CA directed the petitioner to file his
appellants brief. The period to file was extended by the CA.
5. March 9, 1999, the CA considered the appeal abandoned and
dismissed it because the appellants brief was not filed within the
period given.
6. November 8, 1999 (8 months after), petitioner filed a motion for
reconsideration. CA denied the motion.
7. December 28, 1999, petitioner filed a Petition for Relief before the
CA. CA denied the petition.
8. CA states that Petition for Relief may not be filed before the CA.
Petition for Relief, based on the past and present Rules of Court,
may only be filed in the MTC or RTC.
ISSUE:
1. WON Petition for Relief may be filed.

To recapitulate, petitioner is not entitled to relief under Rule 38,

Section 2 of the Rules of Court. He was not prevented from
filing his notice of appeal by fraud, accident, mistake or
excusable negligence, as in fact he filed one. The relief
afforded by Rule 38 will not be granted to a party who seeks to
be relieved from the effects of the judgment when the loss of the
remedy of law was due to his own negligence, or a mistaken
mode of procedure for that matter; otherwise, the petition for
relief will be tantamount to reviving the right of appeal which has
already been lost, either because of inexcusable negligence or
due to a mistake of procedure by counsel.21 The Rules allow a
petition for relief only when there is no other available
remedy, and not when litigants, like the petitioner, lose a
remedy by negligence.
Under Section 2 of Rule 38, supra, of the Rules of Court, a party
prevented from taking an appeal from a judgment or final
order of a court by reason of fraud, accident, mistake or
excusable negligence, may file in the same court and in the
same case a petition for relief praying that his appeal be
given due course. This presupposes, of course, that no appeal
was taken precisely because of any of the aforestated
reasons which prevented him from appealing his case.
A petition for relief under Rule 38 cannot be availed of in the CA,
the latter being a court of appellate jurisdiction.
It needs to be filed in the same court and in the same case.
Applicable for both RTC and MTC.
In this case, Petitioner had all the opportunity to appeal his case
and also to file his appellants brief. However, he failed to file the
appellants brief. His motion for reconsideration was also filed
late.
The negligence of his counsel was not gross negligence.

DISPOSITION:
WHEREFORE, the instant petition is DISMISSED and the assailed
resolutions of the CA are AFFIRMED.
No pronouncement as to costs.

RULING + RATIO:
1. No. Negligence of Petitioner is not an excusable negligence which
prevented him from perfecting his appeal..