CIVIL PROCEDURE

Regalado Notes RULE 38: RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS 38.1, 38.2

The petition for relief from a judgment, final order or proceeding involved in a case tried by MTC shall be filed in and decided by the same court in the same case. Palmomes v. Jimenez A petition for relief is an equitable remedy and is allowed only in exceptional cases from final judgments or orders where no other remedy is available. Fajardo v. Bayona It will not be entertained when the proper remedy is appeal or certiorari. The phrase other proceeding includes an order or writ of execution, or an order dismissing an appeal. Samonte v. Samonte since they are not required to be entered, the period starts from rendition of the order or taking of the proceeding or from the date of occurrence since entry is either unnecessary or inconsequential Rafanan v. Rafanan and the court will merely set aside the proceeding and allow the party to act as if the proceeding never took place. Sayman v. CA a petition for relief is in effect a second opportunity for an aggrieved party to ask for a new trial. o Hence fraud, accident, mistake or excusable negligence as grounds for petition for relief have the same concepts that they have in motions for new trial. o Vasquez v. Mesagal Also in a motion for new trial, mistake of law was considered sufficient to justify a petition for relief. Petition for relief under sec. 1 has been held to be applicable to all kinds of special proceedings such as land registration, intestate settlement, and guardianship proceedings.

38.3 Quijano v. Tameta The 2 periods for filing a petition for relief are not extendible and never interrupted. o Palomares v. Jimenez a petition for certiorari does not suspend the periods prescribed by this section o Cruz v. Oppen neither does MR of the subject of the petition for relief. o Vda d Salvatierra v. Garlitos these periods cannot be subject to a condition or contingency as they are devised to meet a condition or contingency. o Phil. Rabbit Bus Lines v. Arciaga both periods must be complied with Balite v. Cabangon a petition for relief filed on the 65th day from notice of order, but within 6 months from such proceeding was given due course.

CIVIL PROCEDURE
o

But this was a proceeding in the court of agrarian relations not bound by technical rules of procedure.

PHHC v. Tiongco petition for relief was filed beyond the 60 day reglementary period, SC ordered trial court to give it due course since original counsel of defendants deprived them of their day in court by fishy and suspicious actualtions Phil. Rabbit Bus Lines v. Arciaga petition for relief was filed on 61st day and therefore correctly denied. Special circumstances obtaining in Balite and PHHC which warranted relaxation of the rule did not obtain in this case. Perez v. Araneta The 60 day period is reckoned from the time the party acquired knowledge of the order, judgment or proceedings and not from the date he actually read the same. The 6 month period is computed from the date of entry of the final order or judgment. With respect of proceedings, the date when the proceedings were taken controls. In judgments upon compromise, being immediately executor, prescription runs from the date of its rendition, hence the 6 month period also runs therefrom. An affidavit of merits must accompany the petition, and the petition itself must be verified. o Fernandez v. Tan Tiong Tick As in MNT the absence of an affidavit of merits is a fatal defect and warrants denial of the petition o Fabar, Inc. v. Rodelas unless the facts required to be set out in the affidavit of merits also appear in the verified petition. o Republic v. De Leon also, like motions for new trial, such affidavits are not required when the judgment or order is void for want of jurisdiction, or was obtained by mistake of fraud (Lupisan v. Alfonso) or with denial of due process (Valerio v. Tan).

38.4, 38.5 Ayson v. Ayson Where a writ of execution was already issued and levy was made before the petition for relief was filed, the lien that may have been acquired over the property is not discharged by the subsequent issuance of a writ of preliminary injunction. Thereafter, if the petition is denied, the court has the power to reinstate the writ of execution. Servicewide Specialists v. Sheriff of Manila Unless a writ of preliminary injunction has been issued, execution of the judgment shall proceed even if the order denying the petition for relief is pending on appeal. Said writ may be sought either in the trial or appellate courts.

38.6 Villanueva v. Alcoba There are two steps or hearings in a petition for relief o A hearing to determine whether the judgment order or proceeding should be set aside o In the affirmative, a hearing on the merits of the case.

CIVIL PROCEDURE
38.7

Failure to file an answer to the petition for relief does not constitute default as even without such answer, the court will still have to hear the petition and determine its merits. An order granting a petition for relief is interlocutory and non-appealable.

RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO REGIONAL TRIAL COURTS 40.1 Sec. 18 of BP 129 provided that SC shall define the territory over which the RTC shall exercise its authority. Territory thus defined shall, inter alia, determine the lower courts over which the said branch may exercise appellate jurisdiction. Starting with AO No. 3 (1983) the SC defined the territorial jurisdiction of the RTCs and specifically that of the branches thereof.

40.2 Pursuant to RA 7691, MTC now have probate jurisdiction where the gross value of the estate, whether testate or intestate does not exceed P 100,00 or if in Metro Manila P 200,000. o As provided in Sec 3 of this rule an appeal from such special proceeding shall be by record on appeal. o The reglementary periods of appeals from inferior courts are the same as those from the RTCs. Second paragraph regarding the interruption of the period of appeal and the prohibition of a motion for extension to file a motion for new trial or reconsideration is likewise the same as rule in RTCs (41.3) o This s in consonance with the policy on uniformity of procedure in both courts (Rule 5)

40.3 Notice of appeal shall indicate (same as 41.5) o not only the parties o but also the judgment or final order or part thereof appealed from, o together with the material dates showing the timeliness of the appeal. The last mentioned requirement is the same as the material data rule applicable to records on appeal with respect to the contents thereof, and for the same reasons which impelled the adoption of that rule.

40.4 Since appeals from the inferior courts may now be either by notice of appeal or record on appeal, the rules on perfection and effect thereof are the same (see 41.9)

CIVIL PROCEDURE
40.5

Dacudao v. Duenas failure to pay the docket fee within the reglementary period was fatal to an appeal. Barnido v. Balana if the docket fee paid was insufficient due to an error of the treasurer, the appeal should not be dismissed. NAWASA v Sec. of Public Works non-payment of the docket fees does not automatically result in dismissal of the appeal or affect the appellate jurisdiction of the CFI, the dismissal being discretionary in the appellate court if there are justifications for its non-payment. It is suggested however, that the foregoing rulings that non-payment or incomplete payment of the fees required on appeal do not automatically result in the dismissal of the appeal should be maintained Failure to pay docket and other lawful fees has is also ground for dismissal of appeal in CA (50.1c) and CA (56.5c). o However it has heretofore been held that even in said courts, with the exception of failure to file notice of appeal or record on appeal within the reglementary period, it is not ministerial duty of the court to dismiss the appeal where one of the grounds therefor obtains (50.1). Panes v. CA non-payment of appellate court docket fees is not a mandatory ground for dismissal. Liberalizing attitude of SC in Sun Insurance Office Ltd. v. Asuncion would bolster this submission. Pedrosa v. Hill a strict application of the rule on payment of docket fees in CA should be adopted, on the theory that payment in full of docket fees within the prescribed period is mandatory. o In this case, despite timely notice and admonition from the appellate court, appellants paid the docket fees 4 months after the date of notice and reasons given for such default were considered by the appellate court as reflective of their lack of interest and inexcusable lethargy in pursuing their appeal. Guevarra v. CA relied on ruling above, docket fees were paid 41days late and on flimsy excuse that the delay was due to inadvertence, oversight and pressure of work. It would appear that while compliance with the requirement for timely payment of docket fees on appeal is mandatory, the appellate court is not without power to make exceptions thereto on justifiable cause, instead of dismissing the appeal on that sole ground.

CIVIL PROCEDURE
40.6

Aside from the original record or the record on appeal, the transcripts and exhibits taken or submitted in the lower court shall be elevated to the RTC. Lower court being a court of record, transcripts of the proceedings therein and documentary evidence of the parties may be involved in the appeal, hence the specific mention thereof and the extension of the period from the original 5 days to 15 days within which the clerk of court should comply with his duty. A certification of the completeness of the documents transmitted to the appellate court must be furnished to the parties for their verification and appropriate action.

40.7 Enriquez v. CA The requirement in 40.7b for the submission of the appellants memorandum is a mandatory and compulsory rule. Noncompliance therewith authorizes the dismissal of the appeal. Elli v. Ditan where the pary had appeared by counsel in the inferior court, the notice contemplated in this section should be sent to the attorney (138.21). Valenzuela v. Balayo but if the notice was sent to the party himself and he actually received the same, such notice is valid and binding.

40.8 First paragraph contemplates the situation wherein the case was not tried on the merits but was dismissed on a technical objection or question of law (like improper venue on defendants motion or prescription). o No trial having been held, RTC on appeal merely affirms or reverses the order of dismissal and in case of reversal, remands the case to the lower court for further proceedings. However, were the question of law involves lack of jurisdiction over the subject matter and RTC has jurisdiction thereover, it shall try the case on the merits as if originally filed with it. Consent of parties to such assumption of original jurisidiction over the case is not required and this abandons previous rulings which made it optional on part of the parties on whether or not to submit to such original jurisdiction. Same procedure, whereby RTC assumes original jurisdiction over the case without need of consent of the parties is followed where the case was tried on the merits by the lower court although it did not have jurisdiction over the subject matter. o However, since there was an actual trial of case on the merits, which normally entailed the reception of evidence on which judgment of the lower court was based, in the

CIVIL PROCEDURE

interest of justice, parties may be allowed to file amended pleadings and adduce additional evidence at the trial of the case in RTCs. 40.9 Interim or Transitional Rules 22.b appellate court may give due course only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or final order sought to be reviewed. Lacsamana v. Hon. 2nd Special Cases Division of IAC SC restated and clarified modes of appeal o Ordinary appeals by mere notice of appeal 15 day period is interrupted or suspended by MNT or MR, unless it is pro forma If MNT or MR is denied, the moving party has only the remaining period from notice of denial within which to file a notice of appeal. No extension of time to file such notice is needed much less allowed. o Appeals in special proceedings and other cases wherein multiple appeals are allowed The period of appeal is 30 days, a record of appeal being required. If MNT or MR is filed and denied, the remaining period within which to file a record on appeal may be too short, and hence a motion for extension of time to file the record on appeal may be granted, subject to requirements of May 30, 1986 resolution. Roque v. Gunigundo 30 day period may be extended because where the record is voluminous or appellant has other pressing matters to attend to it may not be practicable to submit appeal within reglementary period. Appeals by petition for review to CA Period for filing is 15 days If MR is filed with and denied by lower court, movant has only remaining period within which to file petition for review. Hence it may be necessary to file a motion with CA for extension of time to file such petition for review. Appeals from QJ bodies to CA Appeal taken by notice of appeal with the CA and with QJB within 15 days from notice of ruling, award, decision or judgment Or in case MR is filed within said period, within 10 days from notice of resolution denying the MR No extension of time to file such notice of appeal is needed much less allowed Appeals by certiorari to SC 15 days from notice of judgment or denial of MR filed in due time, paying at the same time docket fee In case MR is filed and denied 15 days begin to run again from notice of denial. MEx of time to file petition for review on certiorari may be filed with SC within the reglementary period paying at the same time the corresponding docket fee. Copies of the Mex and of subsequent petition for review must be served on lower court and on the adverse party.

CIVIL PROCEDURE
o

Period of extension of time to file petition for review 1 month after promulgation of this decision 15 day extension for filing petition for review may be granted by CA, save in exceptionally meritorious cases. MEx must be filed and corresponding docket fee paid within reglementary period for appeal. Copies of the Mex and of subsequent petition for review must be served on lower court and on the adverse party.

Subsequent changes from aforesaid resume.

RULE 41: APPEAL FROM THE REGIONAL TRIAL COURTS 41.1 Provision clarifies and reiterate judgment or final order that may be appealed from, and specifies the interlocutory or other orders form which no appeal can be taken. o In latter instance, aggrieved party may resort to special civil action under Rule 65, petition for certiorari or prohibition, or in case of an order disallowing or dismissing appeal, mandamus. 41.1g refers to several or separate judgments in Rule 36, and appeals therefrom are not absolutely prohibited but depend upon the circumstances of the case and the sound discretion of the court. Interlocutory order does not dispose of the case but leaves something else to be done by the trial court on the merits of the case. Order is final, for purposes of appeal if it disposes of the entire case. Where the order is interlocutory, movant has to wait for the judgment and appeal from the judgment in the course of which appeal he can assign as error said interlocutory order. o Mapua v. Suburban Theaters Interlocutory order cannot be appealed from separately from the judgment. General rule is where interlocutory order is rendered without or in excess of jurisdiction or with grave abuse of discretion, the remedy is certiorari, prohibition or mandamus depending on the facts of the case. Abesames v. Garcia where the order appealed from is interlocutory, appellate court can dismiss the appeal even if no objection thereto was filed by the appellee in either trial or appellate court. Omico Mining v. Vallejos where defendant has been improperly declared ind efaul and has perfected his appeal from the judgment by default, he can still avail of certiorari to prevent carrying out of the writ of execution improperly issued by the trial court.

CIVIL PROCEDURE
41.2

Ordinary appeal sometimes referred to as an appeal by writ of error due to the requirement that the brief filed for that purpose must contain an assignment of errors. o This presupposes that RTC rendered judgment or final order in civil action or special proceeding in the exercise of its original jurisdiction and the appeal is taken to the CA on questions of fact and law. o The appeal may be taken by notice of appeal or by record on appeal. o Governed by Rule 41. Petition for review on questions of fact, of law, or on mixed questions of fact and law and is governed by Rule 42. o Has to be observed where questioned judgment or final order was rendered by RTC in the exercise of its appellate jurisdiction over a judgment or final order in a civil action or special proceeding originally commenced in and decided by a lower court. Appeal by petition for review on certiorari to the SC only on questions of law from a judgment or final order rendered in a civil action or special proceeding by the RTC in the exercise of its original jurisdiction. o Subject to provisions of Rule 45. petition for review on certiorari is different from special civil action for certiorari in rule 65 which is not a mode of appeal but an original action. Though word review is used, second and third modes are modes of appeal. Milwaukee v. Industrial Commission difference between appeal and an action to review in American law. o Appeal tribunal by which the first determination was made is not a party to the proceeding for review (Rule 45) o Review while in action to review, the tribunal which made the determination is a party to the proceeding for review (Rule 64, 65)

41.3 Habulyas Enterprises v. IAC prohibition against filing of a motion for extension of time to file MNT or MR taken therefrom, and reiterated by SC in resolution Capistrano v. Corina reglementary period for appeal is reckoned from notice of the judgment or order or any subsequent amendment thereof Bueva v. Surtida period to appeal may be extended Socco v. Garcia but extension is addressed to the sound discretion of the court Bello v. Fernandez mere filing and pendency of the motion for extension of time to perfect appeal does not suspend the running of the reglementary period

CIVIL PROCEDURE

Semira v. Enriquez a motion to extend period for filing the record on appeal must be filed within the 30 day reglementary period for perfecting the appeal. It should be heard and resolved promptly or before the lapse of said period so as to apprise the appellant whether or not his obligation to file record on appeal within the said period is dispensed with The parties or their attorneys should be immediately notified of the order issued on the matter so that they may avail themselves of the proper remedy if it is denied. In case it is granted and the court fails to state when the extension should commence to run, it should be joined to the original period or that fixed by law and must be computed from the date following the expiration thereof. Alejandro v. Endencia if the order granting the extension is issued and notice thereof served after the expiration of the period fixed by law, the extension must be computed from the date of notice of the order granting it. Cumplido v. Mendoza - The appellant has the duty to ascertain the status of his motion, for if no action is taken thereon or it is denied after the lapse of the period, the right to appeal is lost. Reyes v. Sta. Maria when an appellant asks the court to extend the period for perfecting his appeal and he himself fixes the extension period in his motion, the motion is deemed denied if no action is taken thereon and the period thereafter lapses. Reyes v. CA even if appeal was filed out of time, the court still has jurisdiction to admit and give due course to it provided there are justifiable reasons therefor. Rodriguez v. CA The trend of the rulings of the SC in matters pertaining to the timeliness of the perfection of an appeal is to afford the litigant the amplest opportunity to present his case freed from the constraints of technicalities. Velasco v. Gayapa Thus the filing of an appeal beyond the reglementary period has been allowed in some cases in the exercise of the equity jurisdiction of the courts, where a stringent application of the rule would not serve the demands of substantial justice. The rules of procedure are not to be applied in a very rigid or technical sense since they are designed to help secure justice not to override the same. Neypes v. CA fresh period rule liberal grant of a fresh period of 15 days within which the aggrieved party in the case may file a notice of appeal in RTC counted from receipt of the order dismissing a motion for new trial or reconsideration. o While seemingly involving a departure from 41.3, the effect thereof is in fact complementary to the same, but may justifiably be invoked only in the interest of substantial justice. o To standardize different appeal periods, applicable to rule 40, 42, 43, 45. o Makes the appeal uniform by being invariably counted from receipt in the case therein of the order denying the motion for new trial, motion for reconsideration or any final order or resolution.

CIVIL PROCEDURE
o

10

A party may either file his notice of appeal within 15 days from receipt of the RTCs decision or within 15 days from receipt of the order denying his MNT or MR which thereby assumes the role of final order.

While the courts stated that it had amended the rules of court on the appeal period in Neypes, it could not have been referring to an unpublished amendment of the wordings of the Rules of Court itself, but to an amendment of the doctrinal precept thereof, that is, not the codal text but the jurisprudential precedent. Lucas v. Mariano Where the trial court dismissed the complaint, then set aside such dismissal order, but on motion for reconsideration by the defendant it again ordered the dismissal of the complaint, the period to appeal is reckoned from the receipt of the second order of dismissal. Vda. de Haberer v. Martinez where the trial court set aside an order dismissing the complaint and granted new trial but thereafter entered another order of dismissal, the period for perfecting an appeal runs from the date of the second order of dismissal. Berkenkotter v. CA the approval by the trial court of the record on appeal even if the period for the appeal has expired is tantamount to a valid order granting the extension prayed for by appellant if any such motion has been filed. PVTA v. De los Angeles Conversely, the dismissal of the appeal by the trial court constitutes a denial of the extension prayed for in which case the only question that can arise is whether or not the trial court had gravely abused its discretion in denying such extension. Mara Inc. v. CA Where the motion to set aside the judgment is filed on the last day of the period to appeal, that day should be excluded. Hence, when the order denying the motion is received, appellant still has one day to perfect his appeal. (exclude the day of receipt and including the next day) As a rule it is the appellate court which will determine whether the appeal is pro forma, frivolous or dilatory and thereafter dismiss the appeal, as the trial court has the ministerial duty to elevate the records if the appeal us duly perfected. o De la Cruz v. Blanco however, if the trial court dismissed the appeal because it was clearly demonstrated to be dilatory or frivolous, such order will not be disturbed by the appellate court. o Manila Railroad Co. v. Ballesteros mandamus will not lie to compel the court to give due course to the appeal under said circumstances.

41.4, 41.5 Calo v. CFI of Agusan Even if no notice of appeal was filed, such defect may be disregarded if there was a record on appeal duly filed, as the same is equivalent to a notice of appeal. o Director of Lands v. Reyes Hence failure to serve a copy of the notice of appeal to the adverse party who was however served with a copy of record on appeal wherein such notice of appeal is embodied does not impair the right of appeal.

CIVIL PROCEDURE

11

Appeal bonds are no longer required, and records on appeal are required only in certain cases, the general rule now being that only a notice of appeal is required to perfect an appeal.

41.6 Araneta v. Madrigal The requirement that the record on appeal must show on its face that the appeal was perfected on time is mandatory and jurisdictional and if not complied with the appellate court acquires no jurisdiction and the appeal must be dismissed. Sarmiento v. Salud Where however the motion to dismiss the appeal on this ground was filed more than 6 years after the filing of appellees brief, without justification for such delay, the motion was property denied. The date when the original typewritten record on appeal was filed in the trial court appears on the date of the receipt thereof as stamped thereon upon its receipt. o Hence the filing of the original typewritten record on appeal in the lower court, being a posterior act to its preparation, the date of filing thereof is not required to be stated therein and consequently will not appear in the printed record on appeal filed in the appellate court. o Valera v. CA The only exception wherein the date of filing in the trial court of the original record on appeal is required to be stated therein is when an amended record on appeal is subsequently permitted to be filed, for then the date of the filing of the original record on appeal within the reglementary period will show whether the appeal was seasonably perfected. Reyes v. Carrasco Sec. 6 obviously refers to the record on appeal filed with the trial court, not the printed record on appeal filed in the appellate court. o The appellate court is in a position to determine the date aforementioned, by examining the original record on appeal forwarded thereto and hence, forming part of its own record. Design Masters v. CA It is the trial courts duty to determine whether or not appeal has been actually perfected on time and to allow the amendment of the record on appeal in order to include therein any relevant omitted data. Mintu v. CA If the printed record on appeal does not show the date of filing thereof which is stamped on the original record on appeal, the appellate court may ascertain such date by examining the original record on appeal and determine whether or not the said record on appeal meets the objective of 41.6, and which may be deemed substantially complied with. Toribio v. Montejo Failure of counsel to sign the record on appeal is not a ground for dismissal of appeal. The same could merely be required to be signed by him. o Abuso v. Acosta The same is true where the record on appeal consisting of 20 pages does not have the requisite subject index and does not contain the full names of the parties in the caption as these are purely matters of form correctible by amendment which the trial court may order to be done.

CIVIL PROCEDURE

12

Pimentel v. CA The material data rule in 41.6 need not be observed if the trial court issued an order to the effect that the appeal was seasonably perfected with the filing of the notice of appeal, and the record on appeal within the reglementary period. Compagne des Messageries v. CA The trial courts approval of the record on appeal serves to cure whatever defect or omission may have been committed therein.

41.7, 41.8 Olvido v. Ferraris A record on appeal does not have to be set for hearing in the trial court by the appellant, as it is deemed submitted for approval upon its filing and the rule merely requires the adverse party to file any objection thereto within 5 days. o Heirs of Olangp v. CFI of Misamis Oriental Consequently, non-appearance of counsel for the appellant at the hearing for the approval of the record on appeal does not warrant dismissal of the appeal. Moya v. Barton the court has jurisdiction to extend the period for filing of a record on appeal. Toribio v. Montejo A record on appeal filed on time, though unsigned through inadvertence, may be given force and effect where no impairment of the rights of the adverse party can be shown.

41.9 Sec. 23 of BP 129 changed the requisites for taking appeal by providing that no record on appeal shall be required, except in appeals in special proceedings and in other cases wherein multiple appeals are allowed. In an appeal by notice of appeal, a partys appeal is deemed perfected as to him upon the filing of his appeal in due time. o While he can withdraw such appeal, he cannot do so in order to revive the jurisdiction of the trial court and enable him to take another course of action calling for the exercise of that jurisdiction such as MNT or MR. o This is so because by filing his notice of appeal, insofar as he is concerned he has perfected his appeal to the appellate court and it is in that court where he can pursue any further remedy. Applies individually and only to each parties so circumstanced since the timeliness of their recourse to appellate remedy depends on when they respectively received a copy of the judgment or final order. o In the meantime the trial court still retains jurisdiction over the case. o However, where all parties have either perfected their appeals by filing their notices of appeal in due time and period to file such has lapsed for those who did not, then the trial court loses jurisdiction over the case as of the last notice of appeal or the expiration of the period to do so for all the parties.

CIVIL PROCEDURE

13

In appeals by record on appeal, same rules apply except that it is deemed perfected upon the approval of his record on appeal but only as respect to the subject matter. o Trial court loses jurisdiction only over the subject-matter, but retains jurisdiction over the case or special proceeding from which such appeals were taken (rule due to possibility of multiple appeals) Special civil actions, where multiple appeals can be had o Expropriation (Rule 67) right to expropriate, issue of just compensation o Judicial foreclosure of mortgage (Rule 68) right to foreclose, order confirming foreclosure sale, deficiency judgment against third-party mortgagor o Judicial Partition (Rule 69) order directing partition, judgment on the project or schedule of partition submitted by the commissioners Before the transmittal to the appellate court of the original record on appeal, the trial court still retains its so-called residual jurisdiction o to issue protective orders, o approve compromises, o permit appeals of indigent litigants and o to order discretionary execution and o to allow withdrawal of appeal. Power to order discretionary execution must be correlated with 39.2 o On motion of the prevailing party with notice to the adverse party filed in the rtail court while it has jurisdiction over the case and is in possession of either original record or record on appeal at the time of filing of such motion. Cabungcal v. Fernandez It has formerly been held that even if the appeal has already been perfected but the records have not yet been transmitted to the appellate court, the trial court still has jurisdiction to set aside its order approving the record on appeal. Larrobis v. Wislezemers also, the rule is that an interlocutory order remains under the control of the court and can be modified or rescinded before entry of final judgment.

41.10, 41.11, 41.12 The transmittal of the record should be the sole responsibility of the clerk of court, as indeed it must be so. o 41.10 makes it the further duty of the clerk of court to furnish the parties with copies of his letter of transmittal of the records to the appellate court, to enable the latter to monitor or verify the clerks compliance with his duty to do so.

41.13 A motion to dismiss the appeal on the foregoing ground may also be filed in the appellate court 50.1b.

CIVIL PROCEDURE

14

Garganta v. CA The failure of the appellee to move for dismissal in the trial court of an appeal perfected out of time does not prevent him from filing such a motion to dismiss in the appellate court as it involves the appellate jurisdiction of the latter court. Where the appellant failed to perfect his appeal on time due to fraud, accident, mistake or excusable negligence and his appeal was dismissed by trial court, his remedy is a petition for relief, from such order dismissing his appeal o De Luna v. Palacio if the petition is denied he can appeal from the order denying his petition. o However, when order denying the petition for relief is no longer appealable, remedy is an appropriate petition under Rule 65.

RULE 42: PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS 42.1 Rule 41 Regular appeals from RTC exercising appellate jurisdiction Appeals on pure question of law cannot be taken to CA and will be dismissed (50.2) 42.2 First paragraph details the form and contents required for the sufficiency in form and substance of the petition. Appeal under this rule may be on either questions of fact or law or mixed questions of fact and law. The lower courts or judges that rendered the judgment or final order complained of should not be impleaded as parties (same prohibition in Rule 45). Rule 42 RTC is exercising appellate jurisdiction Appeals to CA from Rules 42 and 43 may be made solely on questions of law

42.3 Devised to eliminate the causes of judicial backlog and delay in light of the experience of the appellate courts.

42.4, 42.5, 42.6, 42.7 CA may dismiss the petition outright or require comment thereon. Depending on the complexity or ambiguity of the issues for resolution, it could also require subsequent exchanges by the parties, such as filing of a reply and a rejoinder in the sound exercise of its discretion.

CIVIL PROCEDURE

15

If warranted from the exchange under the guideline in sec 6, the appellate court may give due course to the petition and for purposes of its decision therein, it may require filing of memoranda. o The original record in the lower court may be ordered elevated for that purpose or for such other purposes as determined by the appellate court.

42.8 First two paragraphs reiterate the rule as to when the appellate court acquires, and the trial court corresponding lose jurisdiction over the case save to perform or allow certain acts to be done in connection with the case (same as 41.9) Third paragraph is the general rule that a perfected appeal stays the challenged judgment or final order. o That stay of judgment however is not applicable to civil cases under the rule on summary procedure, wherein it provides that decision of RTC in civil cases governed by such rules including forcible entry and unlawful detainer shall be immediately executor without prejudice to a further appeal that may be taken therefrom (70.21)

42.9 The appellate court may motu proprio or on motion, set the case on certain specified issues thereof for oral argument. It may require further memoranda after such oral argument or allow the submission of memoranda in lieu of oral argument. Provision as to when the case is deemed submitted is important in view of the mandatory periods for rendition of judgment under sec. 15 (1), Art. VIII of the constitution.