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Geromo, Felix Louis T.

LLB-4
Practice Court Regular Class Tues 6:30- 8:30 pm

Prelim Exam
I.
Petition for Certiorari must be filed not later than sixty days from notice of the judgment, order
or resolution or from the order denying the motion for reconsideration. The motions for
extension may be allowed, subject to the Supreme Courts sound discretion, and only under
exceptional and meritorious cases.
II.
As Clerk of court of the MTC of Tagbilaran, I have the duty to transmit within 15 days from the
perfection of the appeal the original record or the record on appeal together with the transcripts
and exhibits which I shall certify as complete to the proper RTC, a copy of the transmittal of
records shall likewise be furnished to the parties.( Section 6 Rule 41.)
III.
Petition for review is not a matter of right but discretionary on the Court of Appeals. If the Court
of Appeals finds prima facie that the lower court has committed an error of fact or law that will
warrant a reversal or modification of the appealed decision, it may accordingly give due course
to the petition.
IV.
I will advise Mr. Clifford as to the different modes of perfection of his appeal
a) If the final judgment of the Regional Trial Court was rendered in its original jurisdiction,
appeal shall be taken within 15 days from notice of the judgment or final order appealed from.
Where a record on appeal is required, the appellants shall file a notice of appeal and a record on
appeal within 30 days from notice of the judgment or final order. However, on appeal in habeas
corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed
from (AM No. 01-1-03-SC, June 19, 2001). The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for extension of time to file a motion for new
trial or reconsideration shall be allowed (Sec. 3).
If the record on appeal is not transmitted to the CA within 30 days after the perfection of appeal,
either party may file a motion with the trial court, with notice to the other, for the transmittal of
such record or record on appeal (Sec. 3, Rule 44).




b) Period of Petition for Review under Rule 42.
The petition shall be filed and served within 15 days from notice of the decision sought to be
reviewed or of the denial of petitioners motion for new trial or reconsideration filed in due time
after judgment. The court may grant and additional period of 15 days only provided the
extension is sought (a) upon proper motion, and (b) there is payment of the full amount of the
docket and other lawful fees and the deposit for costs before the expiration of the reglementary
period. No further extension shall be granted except for the most compelling reason and in no
case to exceed 15 days (Sec. 1).



Perfection of appeals
(1) For Ordinary Appeals from MTC to the RTC (Rule 40) and from the RTC to the CA (Rule
41).
(a) A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the
Notice of appeal in due time;
(b) A partys 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;
(c) In appeals by notice of 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;
(d) 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 Sec. 2, Rule 39, and allow
withdrawal of the appeal (Sec. 9, Rule 41).

(2) Perfection of Appeal by Petition for Review under Rule 42. (Sec.8)
(a) Upon the timely filing of a petition for review and the payment of the corresponding docket
and other lawful fees, the appeal is deemed perfected as to the petitioner. The RTC 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.
However, before the CA give due course to the petition, the RTC 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 Sec. 2, Rule 39, and allow withdrawal of the appeal.
(b) Except in civil cases decided under Rules on Summary Procedure, the appeal shall stay the
judgment or final order unless the CA, the law, or the Rules provide otherwise.
(c) A partys appeal by notice of appeal is deemed perfected as to him upon the filing thereof in
due time, and a partys appeal by record on appeal is deemed perfected as to him upon the
approval thereof. In the first case, the court loses jurisdiction over the whole case upon the
perfection of the appeals taken by the parties who have appealed and the expiration of the time to
appeal of the other parties. In the second case, the court loses jurisdiction over the subject matter
thereof upon the approval of all the records on appeal filed by the parties who have appealed and
the expiration of the time to appeal of the other parties; and retains jurisdiction over the
remaining subject matter not covered by the appeal.




V.
When in the exercise of its original jurisdiction, the clerk of Court or the branch clerk of court of
the Regional Trial Court, within fifteen (15) days from the perfection of the appeal, shall
transmit the original record or the record on appeal, together with the transcripts and exhibits,
which he shall certify as complete, to the proper Regional Trial Court. A copy of his letter of
transmittal of the records to the appellate court shall be furnished the parties. (section 6, Rule 40)
But when in the exercise of its appellate jurisdiction, the clerk of Court or the branch clerk of
court of the Regional Trial Court, within thirty (30) days after perfection of all the appeals, 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 aid to make certification of its
correctness; (b) To verify the completeness of the records that will be, transmitted to the
appellate court; (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)

VI.
If I were the Associate Justice, I will dismiss Mr. Zeromos verified petition for certiorari for the
simple expedient that it is the wrong mode of appeal. The proper remedy being is by way of
petition for review under rule 42.
RULE 42 Petition for Review From the Regional Trial Courts to the Court of Appeals Section 1.
How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional
Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for
review with the Court of Appeals, paying at the same time to the clerk of said court the
corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and
furnishing the Regional Trial Court and the adverse party with a copy of the petition. The
petition shall be filed and served within fifteen (15) days from notice of the decision sought to be
reviewed or of the denial of petitioner's motion for new trial or reconsideration filed in due time
after judgment. Upon proper motion and the payment of the full amount of the docket and other
lawful fees and the deposit for costs before the expiration of the reglementary period, the Court
of Appeals may grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the most compelling reason
and in no case to exceed fifteen (15) days.


VII.
No, the argument of Paul cannot be countenanced, Section 4 of Rule 42 of Rules of Court (Action
on the Petition) provides that the Court of Appeals may require the respondent to file a comment
on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition
if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the
questions raised therein are too insubstantial to require consideration. On the other hand, Section
6 of Rules of Court ( Due course) provides that If upon the filing of the comment or such other
pleadings as the court may allow or require, or after the expiration of the period for the filing
thereof without such comment or pleading having been submitted, the Court of Appeals
finds prima facie that the lower court has committed an error of fact or law that will warrant a
reversal or modification of the appealed decision, it may accordingly give due course to the
petition.
In the case at bar, the Court of Appeals has the discretion either to dismiss or give due course to
the petition. Rio is not required to file a comment on Pauls petition immediately. If the court
finds that the petition is patently without merit, prosecuted manifestly for delay, or that the
questions raised therein are too insubstantial to require consideration, the court may dismiss the
same. If the court gives due course on the petition (or it does not dismiss the petition), Rio may
be required to file a comment on the petition within 10 days from notice. After which, the Court
of Appeals may set the case for oral argument or require the parties to submit memoranda within
a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon
the filing of the last pleading or memorandum required by these Rules or by the court itself.
Therefore, upon receipt of the petition, Rio is not required to file a comment immediately.

VIII.
The Modes of Appeal taken from a judgment or a final order of the Regional Trial Court that
completely disposes of the case are Ordinary Appeal (under Rule 41 of Rules of Court), Petition
for Review (under Rule 42 of Rules of Court), and Petition for Review on Certiorari (under Rule
45 of Rules of Court).
(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 law
on these Rules so require. In such cases, the record on appeal shall be filed and served in
like manner.
(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.
(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 the Rule 45.
IX.

The recommendation of Cletu is misplaced, a petition for review on certiorari cannot be availed
of to assail the Regional Trial Courts Order denying Aranas evidence.

Sec.1 Rule 41 is explicit as to what may be the subject of appeal. An appeal may be taken from a
judgment or final order that completely disposes of a case.
NO APPEAL MAY BE TAKEN FROM:**************

(b) An I nterlocutory Order

Since the order of the RTC denying admission of Aranas evidence is an interlocutory order, the
same may not be the subject of a petition for review on Certiotari. Further as enunciated in the
case of Sine Darby Employees Association vs. NLRC 510 SCRA 204 an interlocutory order is not
appealable until after the finality of judgment on the merits, a contrary rule would delay the
administration of justice and unduly burden the courts.



X.


No, the rule relied upon by the clerk of the Court of Appeals requiring the appellant to submit his
memorandum within 15 days from notice is sec.7 of Rule 40 which is applicable to appeals from
Municipal Trial Courts to Regional Trial Courts, It has no application in the case at bar
In an ordinary appeal from a judgment of the RTC it shall be the duty of the Appellant to file
with the court within 45 days from receipt of the notice that all evidence oral and documentary
are attached to the record, seven copies of his Appellants brief pursuant to Sec.7 of Rule 44.

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