Appeals

Losing party has remedy against judgment depending if judgment is entered or not. If not Usually,
we advise client Rule 37 reconsideration /NT then appeal. If entered, those remedies are no
longer available, instead, can choose from among Rule 38 relief from judgment, 47 annulment of
judgment, or certiorari as an EO remedy. Even if judgment has not yet been entered we cannot
always include that remedies would still be NT/MR or appeal as remedy, we must take into
account procedure observed by the court before it rendered decision. If case originates from
inferior court and it observed procedure for small claims, the circular on small claims practically
do not give any remedy to aggrieved party. NT /R, Relief from judgment, Appeal is prohibited.
Remedy available will be rule 65. If case originates from inferior court and observed summary
procedure, NT/R are prohibited, only available remedy will be to appeal judgment. If NT/R are
prohibited, aggrieved party cannot insists in availing NT/R although they are prohibited, the
outcome following the denial because they are prohibited it will eventually be denies and the
outcome following the denial of the NT/R is that the judgment may be entered in the near time.
NT/R which is prohibited does not interrupt the running of period to appeal, by the time he
receives denial the 15 day period to appeal may be expired in which case judgment is entered by
operation of law, even if no actual entry by clerk of court as long as 15 day lapsed without an
appeal.

Appeal as a remedy contemplates a situation where judgment is not yet been entered. Period to
appeal 15/30 days is still running and because appeal is a statutory remedy according to court,
court has always interpreted strictly the requirement for perfection of appeal. If filed beyond
15/30 days SC has consistently ruled that appeal will deprive the appellate court of jurisdiction
over the case because judgment by that time would have already been entered.

Instances where trial court is an inferior court the only rule governing appeals from the inferior
court is Rule 40. If you come across other appeal, which are not consistent with rue 40 just apply
rule 40. Inferior court to RTC always correlate rule 40, with 16 motion to dismiss, 17 dismissal of
actions and rule 41. Notice that several rules governing appeals there are only 2 rules devoted
for dismissal of appeals: rule 50 and 56. Dismissal of appeals rule 50, talks about appellate court
as the CA and rule 56 on dismissal of appeals refers SC as appellate court; so that there is no
separate rule which governs the conduct of RTC as appellate court except for certain sections in
rule 40 about feasibility of dismissal of an appeal by appellate court that is a RTC. Always have in
mind provisions of rule 41; Sec 1 of Rule 41 which enumerates order and finals orders which are
appealable and not appealable. Sec 1 of 41 if rules says final order or dismissal is not appealable
rule 41 suggests a good remedy, rule 65. If we correlate rule 16,17,4041,50,56 and limit ourselves
a case tried by an inferior court and losing party decides to appeal it shall observe rule 40. In rule
40 the only mode of appeal is appeal by notice of appeal or in some cases notice of appeal plus
record on appeal. So inferior court which decided a case following an ordinary procedure,
appellate will always be RTC there is no other court that can review the decision of an inferior
court exercising original jurisdiction except in one instance under BP 129 when inferior court acts
in the exercises of its delegated jurisdiction. Inferior court acts as cadastral court, exercising
delegated jurisdiction, decision is appealable to CA not to the RTC given that inferior court is
acting as if were RTC; appeal to CA and we follow rule 41 and not 40.

Case before an inferior court, accion reindivicatoria, could be cognizable by IC because the
assessed value of property is 20/50k as the case may be. Defendant files motion to dismiss for
lack of jurisdiction over subject matter. Case dismissed. If we use rule 41 a dismissal for lack of
jurisdiction is not appealable under rule 41 because that’s is dismissal without prejudice. Remedy
is rule 65 or file same complainant before the competent court. But under rule 41 dismissal for
lack of jurisdiction over subject matter is without prejudice. If we relate this to rule 16, it also
speaks of the same reason, dismissal under rule 16 not appealable unless founded on letter f, h
and i of rule 16—these paragraphs does not include dismissal for lack jurisdiction over subject
matter so there is consistency between provisions of rule 16 on motion to dismiss and rule 41
what final judgments are not appealable. So, order of dismissal under rule 41 is not appealable
but our prior court is an inferior court so what advise do we have to losing party, the plaintiff in
the case of accion reindivicatoria, appeal or rule 65 or file another accion reindivicatoria before
a competent court. As we said earlier, if case originates from inferior court and we are interested
in remedy of appeal the only rule we should consult is rule 40. Rule 40 provides that if inferior
court dismisses case for lack of jurisdiction, the remedy of plaintiff is to appeal. It should ignore
provisions of rule 41. Last section of rule 40 say if there is conflict between rule 40 and 41, it is
rule 40 that should prevail. If rule 40 says remedy of plaintiff when he receives the order of
dismissal for lack of jurisdiction over the subject matter is to appeal and not petition certiorari
then plaintiff should appeal to a RTC which has territorial jurisdiction over the inferior court. The
appellate jurisdiction of a RTC over decisions over inferior court is not invalid in ROC, it is invalid
in BP 129— RTC exercises appellate jurisdiction over judgment and final order of an inferior court
within its territorial jurisdiction. What the rule only tells us is the mechanism which could perfect
the appeal from MTC to RTC, we follow rule 40 notwithstanding provisions of rule 41. Even if
judgment or final order is without prejudice we should still appeal order of dismissal to RTC. Only
one mode of appeal mentioned in rule 40 appeal which is notice of appeal or notice of appeal
with record on appeal in certain cases, within 15 period and paying docket fees. In certain
instances where record on appeal is required period to appeal is extended 15-30 days. In rule 40,
you will notice there could be motion for extension of time to perfect an appeal before inferior
courts if there is a requirement for record on appeal but if only requirement to perfect an appeal
is by filing notice of appeal rule 40 also prohibits filing of motion for extension of time for
submission of notice of appeal.

If court of origin in our example is RTC, consequence would be different, if order of dismissal is
one without prejudice we follow rule 41, we cannot appeal but remedy is to avail petition for
certiorari under rule 65. Supposing in our accion reindivicatoria pending before an inferior court,
plaintiff erroneously follows rule 41, instead filing simple notice of appeal, he files a certiorari
before RTC, the RTC has no jurisdiction over that petition for certiorari because RTC will only have
jurisdiction over rule 65 as remedy of appeal under instances given in sec 1 of rule 41. So what
losing party should do is always notice of appeal on time that is 15 days and within 15 day period
should see to it that appellate court docket fees are paid. SC is strict with appellate court docket
fees, if not paid on time appellate court does not acquire jurisdiction over the case, so the appeal
will be dismissed for lack of jurisdiction.

Can we not apply rule 50, rule on dismissal of appeals or rule 56 another rule on dismissal of
appeals. But the appellate courts mentioned in 50 and 56, are respectively CA and SC, we cannot
use rule 50 and 41 because our appellate court is the RTC. In one case the losing party before an
inferior court knew that the remedy which is available to him is to file a notice of appeal of
judgement or final order but mistakenly use rule 41 so he filed with RTC a petition for review—a
second mode of appeal under rule 41, third mode of appeal is petition for review on certiorari
(rule 45). These modes of appeal are not available to rule 40, there is only one mode under rule
40 that is notice of appeal but in this particular case appellant mistakenly prepared and filed a
petition for review, recognized under rule 41. So where records of the case were transmitted by
inferior court to RTC as an appellate court, the appellee filed a motion to dismiss for the reason
that mode of appeal used by appellant was improper instead of notice of appeal, petition for
review was filed which is not authorized by rule 40. SC in this case said appeal should not be
dismissed although mode of appeal was improper, the SC relied on the finding that if the
requirement of appeal from an inferior court t RTC is notice of appeal which is a one page
document all that the appellant will incorporate in the notice of appeal is that he is appealing to
the RTC, and he received the final order or judgment on a particular date and within the 15 day
period he has fild the notice of appeal and he has paid the appellate court docket fees. Whereas
in a petition for review side from the same matters that are included in a notice of appeal the
appellant in a petition for review will also cite assignment of errors committed by inferior court,
the arguments relied upon by appellant in order to convince appellate court to reverse the
decision and under rule 41 a certification on non-forum shopping. SC said, although mode of
appeal may have been improper because mode used is petition for review although mode
authorized under rule 40 is notice of appeal. SC said, a petition for review is a document which
contains already a notice of appeal, so the court cannot be misled if it receives a petition for
review the trial court would know readily that the appellant intends to have his case reviewed by
a RTC. So SC ruled that the filing by appellant of a petition for review with the inferior court is
more than a substantial compliance with the requirements of a notice of appeal. Court finally
said the filing by appellant of a petition for review is not a ground for dismissal of appeal, appeal
should be allowed because a petition of review contains all the ingredients of a valid notice of
appeal. In this context, SC seems to have been flexible in applying its rule that when it comes to
appeal we should interpret strictly the provisions on rules on appeal.

Certain terms that need clarification whenever we talk of appeal.

Improper appeal and erroneous appeal are mentioned in rule 56, rule that governs when appeal
is to the SC. And as an incident to the terms improper appeal and erroneous appeal, in appeal
cases we always meet the term questions of fact or law or a mixed questions of fact or law. In
rule 56 the definition of improper appeal is when the mode of appeal used is the correct mode,
in an erroneous appeal mode of appeal is not the correct mode. But in improper appeal when
the mode of appeal used is the correct mode, the fault/error of appellant is that he raises the
wrong issue that is allowed. As we all know in certain cases before the SC or CA, we cannot raise
purely question of law. Before CA, in certain cases we can raise only questions of fact, but also in
the CA we can also raise purely questions of law. Before the SC, generally, we should raise only
purely questions of law but there are several exemptions, that is why even before the appealed
cases in SC, the appellant could raise questions of fact as well as questions of law, the SC could
not order the dismissal of the appeal.

Going back to rule 40, from final order or judgment of an inferior court, if aggrieved party want
to appeal there is only one mode of appeal available and that is to file a notice of appeal on time
and pay docket fees on time. If he makes use of another mode of appeal like a petition for review,
he must rely on that judgment of the SC which held that a petition for review should be treated
as a substantial compliance with the requirements of notice of appeal so the appeal will not be
dismissed.

Before a RTC, as an appellate court, since there is no separate rule which prescribes dismissal of
an appeal by a RTC as an appellate court then we should be contended with rule 40. When there
is an appeal from an inferior court to a RTC rule 40 also speaks about the feasibility of the RTC
dismissing the appeal.

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