1997 Rules on Civil Procedure Rule 41 –Appeal From

2001 Edition The Regional Trial Courts

Rule 41
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.

FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2) possible meanings in Civil
Procedure:

[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, L-3720, 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:

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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: Let’s 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. That’s 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 X’s 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

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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.”

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:

(a) An order denying a motion for new trial or reconsideration;

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.

(b) An order denying a petition for relief or any similar motion seeking
relief from 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.

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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 correct
remedy is to appeal from the judgment of default not to set aside. And that is clear. The default
judgment is appealable.

(d) An order disallowing or dismissing an 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.

(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;

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.”

(f) An order of execution;

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.

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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.

(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;

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.

(h) An order dismissing an action without 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 don’t 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]):
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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.

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) PETITION FOR REVIEW (par. B)

The case was decided by the RTC pursuant to its The case was decided by the RTC
original jurisdiction. The case was originally filed in pursuant to its appellate jurisdiction
the RTC. (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.

(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.

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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.

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 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]

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.”

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

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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 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.

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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 mag-forward. Here’s 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:
x x x x
(c) Failure of the appellant to pay the docket and other lawful fees as
provided in Section 4 of Rule 41 ;
x x x x

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? It’s 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? It’s 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 so-called 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 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!
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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. Defendant’s
lawyer failed to inform the court about plaintiff’s death (it is the lawyer’s 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 lawyer’s 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 defendant’s heirs (remember, they were not
substituted)?
HELD: YES. The validity of the judgment was not affected by the defendant’s 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 39—Rule 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 we’ve 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
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—
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“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 BIÑAN 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.

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 them—so sabay-sabay sila mag-appeal. Is record on appeal required?
HELD: NO, only notice of appeal because there is only one decision.
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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 BIÑAN, 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, let’s 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:
x x x x x
(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.
x x x x x

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 BIÑAN 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

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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, 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.

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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 party’s appeal by notice of

appeal is deemed perfected as to him upon the filing of the notice of appeal in
due time.
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.
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 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 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. 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). Let’s 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.

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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, I’m 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 Epi’s
motion.
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.

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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 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 .” 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;
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.

Q: Can the parties settle the case amicably despite the fact that there is already an appeal?
A: Yes, compromise is welcome anytime.

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;

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(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. (10a)

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)

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)

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, L-22236, 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. That’s all.

Don’t 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, it’s 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!

-oOo-

published by

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1997 Rules on Civil Procedure Rule 41 –Appeal From
2001 Edition The Regional Trial Courts

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