RULE 109 – Case no.1. GONZALES-ORENSE VS.
o Contention of Petitioner: it was not
CA,162 SCRA 477 (According to our syllabus; but the
correct citation is 163 SCRA 477)
FIRST DIVISION
G.R. No. 80526 July 18, 1988
J. GONZALES-ORENSE, petitioner,
vs.
COURT OF APPEALS and PRIMA M. CAGUIAT-ALBA
(Prima), respondents.
Ponente: CRUZ
FACTS:
 Respondent Prima dismissed petitioner
Gonzales-Orense was dismissed as her counsel
in the probate of her husband’s will.
 Petitioner claimed the stipulated attorney's fees
equivalent to 10% of the estate.
 The probate court allowed him only P20,000.00
on the basis of quantum meruit.
 Petitioner filed a notice of appeal from this order.
Then, the records of the case was transmitted to
the Court of Appeals.
 CA: abandoned and dismissed for his failure to
submit his record on appeal as required under
BP 1291 and the Interim Rules and Guidelines2.
 Hence, the petitioner then came on appeal by
certiorari to this Court.
1
Section 39, BP 129: Sec. 39. Appeals. — The period for appeal from
final orders, resolution, awards, judgment or decisions of any court in
all cases shall be fifteen (15) days counted from the notice of the final
order, resolution award, judgment or decision appealed from. Provided,
however, that in habeas corpus cases the period for appeal shall be
forty-eight (48) hours from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu
thereof, the entire original record shall be transmitted with all the pages
prominently numbered consecutively together with an index of the
contents thereof.
This section shall not apply in appeals in special proceedings and in
other cases wherein multiple appeals are allowed under applicable
provisions of the Rules of Court.
2 109, Section 1, of the Rules of Court, which reads in full
The Interim Rules and Guidelines: Sec. 18. Elimination of record on
appeal and appeal bond. — The filing of a record on appeal shall be
dispensed with except in the cases referred to in sub-paragraph (b) of
paragraph 19 hereof.
No appeal bond shall be required for an appeal.
Sec. 19. Period of Appeal — (a) All appeals except in habeas corpus
cases and in the cases referred to in paragraph (b) hereof, must be
taken within fifteen (15) days from notice of the judgment, order,
resolution or award appealed from; (b) In appeals in special
proceedings in accordance with Rule 109 of the Rules of Court and
other cases wherein multiple appeals are allowed, the period of appeal
shall be 30 days, a record on appeal being required.
Digested by: Ana NIhara Magarang
necessary to file a record on appeal
because his appeal involves an ordinary
claim for payment of attorney's fees
which may be asserted against the
private respondent either in the probate
case or in a separate civil action. The
appeal should therefore be covered by
the general rule rather than by the
exception. The probate court apparently
believed as much because it immediately
directed the transmittal of the records of
the case to the respondent court in lieu
of the record on appeal, and so too did
the appellee for she filed her brief in due
time instead of moving to dismiss
because of the non-filing of the record
on appeal. He adds that he could not be
regarded as having abandoned his
appeal as in fact he had filed a motion
for execution pending appeal on August
11, 1987, without prejudice to the final
outcome of his appeal.
o Contention of Prima: the above-cited
provisions specifically exclude from the
general rule special proceedings and
other cases where multiple appeals are
allowed. The period for appeal in these
cases is retained at thirty days and the
record on appeal is still necessary. Non-
compliance will result in dismissal of the
appeal as the requirements are
mandatory, and more so in this case
since the petitioner was required to file
the record on appeal and did not choose
to comply with the order of the
respondent court. It is stressed that the
petitioner's appeal was in Sp. Proc. No.
35398 in the Regional Trial Court of
Quezon City and not in any ordinary or
separate civil action.
ISSUE: Whether or not, when an award of attorney's fees
by the probate court is elevated to the Court of Appeals,
a record on appeal is necessary.
HELD:
YES. A record on appeal is necessary in this case.
In the view of the Court, the decisive provision is Rule
as follows:
Section 1. Orders or judgments from which
appeals may be taken. An interested person may
appeal in special proceedings from an order or
judgment rendered by a Court of First Instance
or a Juvenile and Domestic Relations Court,
where such order or judgment:
(a) Allows or disallows a will;
 (b) Determines who are the lawful heirs of a
deceased person, or the distributive share of the
estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any
claim against the estate of a deceased person, or
any claim presented on behalf of the estate in
offset to a claim against it;
(d) Settles the account of an executor,
administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the
settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a
final determination in the lower court of the
rights of the party appealing, except that no
appeal shall be allowed from the appointment of
a special administrator; and
(f) Is the final order or judgment rendered in the
case, and affects the substantial rights of the
person appealing, unless it be an order granting
or denying a motion for a new trial or for
reconsideration.
It is settled that the fees of the lawyer representing the
executor or administrator are directly chargeable against
the client for whom the services have been rendered and
not against the estate of the decedent. However, the
executor or administrator may claim reimbursement of
such fees from the estate if it can be shown that the
services of the lawyer redounded to its benefit.
xxx xxx xxx
(b) Failure to file, within the period prescribed by
these rules, the notice of appeal, appeal bond
or record on appeal.
On the basis of the above rule, the challenged resolution
of the respondent court dismissing the petitioner's
appeal cannot be faulted.
It is noted, however, that the question presented in this
case is one of first impression; that the petitioner acted
in honest if mistaken, interpretation of the applicable
law; that the probate court itself believed that the record
on appeal was unnecessary; and that the private
respondent herself apparently thought so, too, for she
did not move to dismiss the appeal and instead impliedly
recognized its validity by filing the appellee's brief.
In view of these circumstances, and in the interest of
justice, the Court feels that the petitioner should be
given an opportunity to comply with the above-discussed
rules by submitting the required record on appeal as a
condition for the revival of the appeal. The issue raised
in his appeal may then be fully discussed and, in the
light of the briefs already filed by the parties, resolved on
the merits by the respondent court.
ACCORDINGLY, the respondent court is directed to
REINSTATE the petitioner's appeal upon his submission,
within thirty days from notice hereof, of the required
record on appeal as duly approved by the probate court.
No costs.

As the petitioner's claim for attorney's fees is not a

claim against the estate of the private respondent's
husband, he could have filed it in an ordinary civil
action, in which event an appeal therefrom will not
be regarded as involved in a special proceeding
requiring the submission of a record on appeal. It
appears, however, that it was not filed in such
separate civil action but in the probate case itself,
which is a special proceeding and so should be
deemed governed by Rule 109 on appeals from such
proceedings. The appeal would come under
Subsection (e) thereof as the order of the probate
court granting the challenged attorney's fees
"constitutes, in proceedings relating to the
settlement of the estate of a deceased person, or the
administration of a trustee or guardian, a final
determination in the lower court of the rights of the
party appealing." The consequence is that the
exception rather than the rule in BP 129 and the
Implementing Rules and Guidelines should be
followed and, therefore, the record on appeal should
be required.

Rule 50, Section 1, of the Rules of Court provides in part

as follows:

Grounds for dismissal of appeal. — An appeal

may be dismissed by the Court of Appeals, on its
own motion or on that of the appellee, on the
following grounds:

Digested by: Ana NIhara Magarang

RULE 109 – Case no. 2. AMBROSIO VS. IAC, 181
SCRA 99
FIRST DIVISION
G.R. No. 75663 January 17, 1990
ANTONIO G. AMBROSIO (Ambrosio), petitioner,
vs.
INTERMEDIATE APPELLATE COURT and
COMMISSIONER OF INTERNAL REVENUE
(CIR), respondents.
Ponente: NARVASA
FACTS:
 In the proceedings for the probate of the will and
settlement of the testate estate of the late
Juliana Vda. de Gabriel in the then Court of
First Instance of Manila, the CIR presented a
formal claim against the estate (Motion for
allowance of Claim and for an Order of
Payment of Taxes).
 CIR alleged that a demand letter and
Assessment Notice, embodying the demand for
payment, had been sent to the decedent and
received in due course and for failure of the
taxpayer to contest the assessment within the
time fixed by law therefor, the same had become
final, executory and incontestable.
 Ambrosio opposed as the representative of the
estate and as the estate's "Auditor-Tax
Consultant."
o Argument/s:
-no proper service of any assessment on
the deceased;
-the demand letter was sent almost four
(4) years after Mrs. Gabriel had died,
and addressed not to her but the
Philippine Trust Company, which was
not the proper party; and
-the claim of the Bureau of Internal
Revenue was barred by prescription.
 The probate Court denied CIR’s claim. CIR
timely moved to take an appeal from that denial
to the Court of Appeals.
 Ambrosio filed:
o with the Probate Court a notice of
appeal, and
o with the CA, a motion for a thirty-day
extension to file a petition for review,
which was granted, as was also, a
second, for another thirty (30) days.
 A 3rd extension was sought. CA: the proper
remedy was not a petition for review, but an
ordinary appeal under Section 1 (c) of Rule
109 of the Rules of Court in relation to Secs.
19(b) and 20 of the Interim Rules of Court.
 CIR filed his petition for review.
 Ambrosio filed a Motion to Dismiss.
o Contention: since the Commissioner's
remedy was an ordinary appeal, which
should have been taken within thirty
(30) days, and since this period had
Digested by: Ana NIhara Magarang
lapsed without the corresponding record
on appeal required by law having been
filed, the Commissioner's right to appeal
had been lost.
 CA gave due course to the CIR’s appeal and
considered the petition for review as the
record on appeal itself as it states the errors
upon which review is sought.
 Hence, the petition at bar.
ISSUE: Whether or not the petition for review filed by the
Commissioner of Internal Revenue should be considered
as a record on appeal, constituting sufficient compliance
with the requirement of Sections 19 (b) and 20 of the
Interim Rules implementing B.P. Blg. 129 in relation to
Section 1 (c), Rule 109 of the Rules of Court. YES.
HELD:
Ambrosio's objection that the petition for review may
not be considered a record on appeal because it does
not contain all the orders and pleadings necessary
for the evaluation and determination of the issues on
appeal, is quickly exposed as without foundation by a
perusal of the petition for review. For appended to
the latter pleading, in chronological sequence, are
copies of the claim and other pleadings, motions and
orders related to the appealed final order (denying
the Commissioner's claim), which are mentioned and
described in said petition for review, and which are
necessary for the proper understanding of the issues
involved. It is in all but name a record on appeal —
stating the full names of all the parties in the caption,
and including "the order or judgment 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 order
or judgment and necessary for the proper understanding
of the issue involved . . . "—with the added feature that it
contains the arguments relied upon by the
Commissioner for the reversal of the contested Order of
the Probate Court.
So, too, Ambrosio's claim that he was not given an
opportunity to object to the petition for review
(considered as a record on appeal), which he would
have had if it had been a record on appeal which was
drawn up and presented before the Probate Court,
cannot be sustained. He was furnished a copy of the
petition, and nothing prevented him from drawing
the attention of the Appellate Court to any defect
therein, considered as a record on appeal.
Now, it is not disputed that the Commissioner filed his
notice of appeal timely, within thirty (30) days from
notice of order denying his claim. It cannot be disputed
that a Trial Court has discretion to grant extension of
the same thirty-day period for the presentation of the
requisite record on appeal, just as the Court of Appeal
has discretion to concede extensions for the filing of a
petition for review. Nor is there any issue raised about
the propriety of the grant of extensions by the Court of
Appeals to the respondent Commissioner. Except
therefore, for the Commissioner's unfortunate
misapprehension of the rule for taking an appeal, of
relatively recent effectivity at the time, the motion for
extension could very well have been sought from the
Probate Court in relation to a record on appeal, instead
of from the Court of Appeals with reference to a petition
for review. In any event, it is clear from all these
circumstances that the estate represented by
petitioner Ambrosio had suffered no real injury to its
rights and interests by reason of the imperfection in
the mode of taking the appeal. As already pointed
out, strict adherence to technical adjective rules
should never be unexceptionaly required, specially in
the context of facts from which substantial
compliance with the rules may be reasonably
inferred; a contrary precept would result in a failure
to decide cases on their merits. It should be the
function of Courts to afford parties-litigants the
amplest opportunity for the proper and just
determination of their causes, free from the
constraint of technicalities. 12 In the disposition of
controversies, reasonable and justifiable liberality in
the application of procedural rules should be the
guiding principle, where otherwise substantial justice
would be jeopardized; inadequacies and errors of
form should be overlooked when they would defeat
rather than help in arriving at a just and fair result
as to the essential merits of any case. There is then
no justification whatever to modify the impugned
Resolution of the Intermediate Appellate Court of July
29, 1986 in AC-G.R. CV No. 09107.

Digested by: Ana NIhara Magarang

RULE 109 – Case no. 3. REPUBLIC VS. NISHINA,
NOVEMBER 15, 2010
THIRD DIVISION
G.R. No. 186053 November 15, 2010
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
NISAIDA SUMERA NISHINA, represented by ZENAIDA
SUMERA WATANABE, Respondent.
Ponente: CARPIO MORALES
FACTS:
 As they could not find any record of her birth at
the Malolos civil registry, respondent’s mother
caused the late registration of her birth in 1993
under the surname of her mother’s second
husband, "Hakamada." Her mother and
Hakamada eventually divorced.
 On May 29, 1996, her mother married another
Japanese, Takayuki Watanabe, who later
adopted her by a decree issued by the Tokyo
Family Court of Japan on January 25, 2001.
The adoption decree was filed and recorded in
the civil registry of Manila in 2006.
 In 2007, it surfaced that her birth was in fact
originally registered at the Malolos Civil Registry
under the name "Nisaida Sumera
Nishina," hence, her filing before the RTC of her
petition praying that her second birth
certificate bearing the surname "Hakamada,"
issued through late registration in 1993, be
cancelled; and that in light of the decree of
adoption, her surname "Nishina" in the original
birth certificate be changed to "Watanabe."
 RTC: granted respondent’s petition and directed
the Local Civil Registry of Malolos "to cancel the
second birth record of Nisaida Sumera
Hakamada issued in 1993 [bearing] Registry No.
93-06684 and to change it [in its stead] Registry
No. 87-04983, particularly the surname of
[respondent] from NISAIDA SUMERA NISHINA to
NISAIDA SUMERA WATANABE."
 OSG filed, on behalf of petitioner, a notice of
appeal.
 Before the Court of Appeals, respondent filed a
motion to dismiss the appeal, alleging that
petitioner adopted a wrong mode of appeal
since it did not file a record on appeal as
required under Sections 2 and 3, Rule 41 of
the 1997 Rules of Civil Procedure3
3
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.
Digested by: Ana NIhara Magarang
 Petitioner countered that a record on appeal
is required only in proceedings where
multiple appeals may arise, a situation not
obtaining in the present case.
 CA: dismissed petitioner’s appeal, holding that
since respondent’s petition before the RTC "is
classified as a special proceeding," petitioner
should have filed both notice of appeal and a
record on appeal within 30 days from receipt
of the October 8, 2007 Order granting
respondent’s petition, and by not filing a record
on appeal, petitioner "never perfected" its
appeal.
 Its motion for reconsideration having been
denied by Resolution20 of December 22, 2008,
petitioner filed the present petition for review on
certiorari.
ISSUE: Whether or not the filing of the record on appeal
is necessary in this case. NO.
HELD:
The filing of a record on appeal is not necessary
where no other matter remains to be heard and
determined by the trial court after it issued the
appealed order granting the petition for
cancellation of birth record and change of surname
in the civil registry.
Section 1, Rule 109 of the 1997 Rules of Civil
Procedure specifies the orders or judgments in
special proceedings which may be the subject of an
appeal, viz:
SECTION 1. Orders or judgments from which appeals
may be taken. – An interested person may appeal in
special proceedings from an order or judgment rendered
by a Court of First Instance or a Juvenile and Domestic
Relations Court, where such order or judgment:
(a) Allows or disallows a will;
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. (A.M. No. 01-1-03- SC, June 19,
2001)
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.
(emphasis, underscoring and italics supplied)
SEC. 9. Perfection of appeal; effect thereof. – x x x.
A party’s 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.
 (b) Determines who are the lawful heirs of a trial court involved the administration, management and
deceased person, or the distributive share of the settlement of the decedent’s estate– matters covered by
estate to which such person is entitled; Section 1 of Rule 109 wherein multiple appeals could,
and did in that case, call for them.
(c) Allows or disallows, in whole or in part, any
claim against the estate of a deceased person, or
any claim presented on behalf of the estate in
offset to a claim against it;

(d) Settles the account of an executor,

administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the

settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a
final determination in the lower court of the
rights of the party appealing, except that no
appeal shall be allowed from the appointment of
a special administrator; and

(f) Is the final order or judgment rendered in the

case, and affects the substantial rights of the
person appealing unless it be an order granting
or denying a motion for a new trial or for
reconsideration.

The above-quoted rule contemplates multiple

appeals during the pendency of special proceedings.
A record on appeal – in addition to the notice of
appeal – is thus required to be filed as the original
records of the case should remain with the trial
court to enable the rest of the case to proceed in the
event that a separate and distinct issue is resolved
by said court and held to be final.

In the present case, the filing of a record on appeal was

not necessary since no other matter remained to be
heard and determined by the trial court after it issued
the appealed order granting respondent’s petition for
cancellation of birth record and change of surname in
the civil registry.

The appellate court’s reliance on Zayco v. Hinlo, Jr.23 in

denying petitioner’s motion for reconsideration is
misplaced. In Zayco which was a petition for letters of
administration of a deceased person’s estate, the
decedent’s children appealed the trial court’s order
appointing the grandson of the decedent as
administrator of the estate. Their notice of appeal and
record on appeal were denied due course by the trial
court on the ground that the appealed order
is interlocutory and not subject to appeal. But even if the
appeal were proper, it was belatedly filed. On certiorari
by the decedent’s children, the appellate court sustained
the trial court. On petition for review, this Court reversed
the appellate court, holding that "[a]n order appointing
an administrator of a deceased person’s estate is a final
determination of the rights of the parties in connection
with the administration, management and settlement of
the decedent’s estate," hence, the order is "final" and
"appealable."24 The Court also held that the appeal was
filed on time.

In Zayco, unlike in the present case, a record on appeal

was obviously necessary as the proceedings before the

Digested by: Ana NIhara Magarang