Rule 41 - Appeal From The RTC

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.
Property of LAKAS ATENISTA 68

[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:
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
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.

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.
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,
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]):
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 The case was decided by the
pursuant to its original jurisdiction. The RTC pursuant to its appellate
case was originally filed in the RTC. jurisdiction (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.
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
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.
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!
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—
“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.
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,
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 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.
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.
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.
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;
(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-

Rule 41 - Appeal From The RTC

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Rule 41 - Appeal From The RTC

Uploaded by

Copyright:

Available Formats

1997 Rules on Civil Procedure Rule 41 –Appeal From

2001 Edition The Regional Trial Courts

Majority of the important rules are found here in Rule 41.

Section 1. Subject of appeal. An appeal may be

Q: What orders or judgment are subject to appeal ?

FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2) possible

Property of LAKAS ATENISTA 68

Q: What is the definition of a final judgment or for purpose of appeal?

Q: On the other hand, what is an interlocutory judgment or order?

Q: What is the test for determining whether a judgment or order is final or

Rule 3, Sec. 20. Action on contractual money

Property of LAKAS ATENISTA 69

BAR QUESTION: Plaintiff vs. Defendant. Defendant file a motion to dismiss

Q: So how do you appeal from an interlocutory order?

DAY vs. RTC OF ZAMBOANGA CITY

HELD: “An order which decides an issue or issues in a complaint is

REPUBLIC vs. TACLOBAN CITY ICE PLANT

HELD: “A court order is final in character if it puts an end to the

So the opening paragraph of Section 1 is in accordance with the DAY and

Q: If I cannot appeal because Section 1 of Rule 41 prohibits an appeal, is there

In all the above instances where the judgment or

So if appeal is not available, the correct remedy is an appropriate special civil

The present Rule 41 tells us exactly what orders cannot be appealed:

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

So when a motion for new trial or reconsideration is denied, there is no appeal

Section 9. Remedy against order denying a motion

(b) An order denying a petition for relief or any

Suppose I am declared in default, can I appeal from a DEFAULT JUDGMENT

Property of LAKAS ATENISTA 72

(d) An order disallowing or dismissing an appeal;

Another possible remedy where an appeal is allowed aside from the

Rule 38, Sec. 2. Petition for relief from denial

(e) An order denying a motion to set aside a

PROBLEM: So there is a judgement by consent (cognovit judgment) and the

Property of LAKAS ATENISTA 73

DOMINGO vs. COURT OF APPEALS

(f) An order of execution;

(g) A judgment or final order for or against one

Property of LAKAS ATENISTA 74

PROVINCE OF PANGASINAN vs. COURT OF APPEALS

FACTS: This was a partial summary judgment under Rule 35. Is it

HELD: A partial summary judgment is not covered by Rule 36. It is

Rule 35, Sec. 4. Case not fully adjudicated on

Q: When can there be a partial summary judgment?

Property of LAKAS ATENISTA 75

summary judgment on the claim where there is no genuine issue we continue

Q: Can you appeal from there immediately?

(h) An order dismissing an action without

If an action is dismissed without prejudice, it cannot be appealed because, as it

Q: Give examples of dismissal of cases without prejudice.

Rule 16, Sec. 5. Effect of dismissal. Subject to

Rule 16, Section 1. Grounds. Within the time for

Property of LAKAS ATENISTA 76

Sec. 2. Modes of appeal.

Ordinary Appeal is the mode of appeal from RTC to CA in cases decided by

(b) Petition for review.- The appeal to the Court

ORDINARY APPEAL (par. A) PETITION FOR REVIEW (par.

Property of LAKAS ATENISTA 77

EXAMPLE: You filed an action for recovery of money amounting to P1

EXAMPLE: In paragraph B, the case is recovery of sum of money amounting

(c) Appeal by certiorari.- In all cases where

What is the period to appeal? Section 3:

Sec. 3. Period of ordinary appeal. The appeal