Professional Documents
Culture Documents
2001 Edition <draft copy. pls. check for errors> Dismissal of Appeal
Rule 50
DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Take note that under Section 1, an appeal may be
dismissed by the CA on its own (motu propio) or upon motion of the appellee. And there are nine (9)
grounds for dismissal of appeal under Section 1:
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW ON ITS FACE THAT THE
APPEAL WAS TAKEN WITHIN THE PERIOD FIXED BY THESE RULES;
So this only applies in cases where a record on appeal is required. Failure to show on its face that
the appeal was perfected on time – meaning, the appeal might have been perfected on time but by
reading the record on appeals, you will not see it.
Normally, that happens when the party did not state the exact date when he received the decision.
He may just state the date of the decision without stating the date of receipt. With that, the court will
presume that you received it on the date of the decision. It might be beyond the period to appeal. So
on its face, there is no showing whether the appeal was within the 30 day period or not.
The first ground is called the MATERIAL DATA RULE – that the record on appeal must show on
its face that the appeal was taken on time.
In the 1973 case of BERKENKOTTER VS. CA, this ground was supposed to be abolished already
where the SC said that from now on, We will no longer follow the material data rule. Meaning this is
abandoned.
So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the SC has already refused to apply
this ground. So when they drafted the Rules, dapat tinanggal na yon. Bakit nandito na naman? They
might have forgotten that it has been abandoned by jurisprudence, unless the intention is to return it.
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR THE RECORD ON APPEAL
WITHIN THE PERIOD PRESCRIBED BY THESE RULES;
Take note that under paragraph [a], the appeal was filed on time but the record on appeal does not
show that it was filed on time.
But here in paragraph [b], the appeal is really out of time. Take note that you can raise this ground
in the trial court. The trial court is also authorized to dismiss an appeal on this ground (Rule 41, Section
13). But assuming that you failed to raise it in the trial court, you can raise it in the CA.
Q: Are you under estoppel for not raising it earlier in the RTC? Meaning, why did you not bring it
out earlier, bakit hinintay pa sa CA?
A: There is no estoppel here because actually this is a jurisdictional challenge. When the notice of
appeal is filed out of time or beyond 15 days, actually the judgment of the RTC has already become
final and executory. So you are now challenging the jurisdiction of the CA. Meaning, you are trying to
say that the CA has no jurisdiction to review on appeal a judgment of the RTC which has already been
final and executory.
Q: Does the CA have the power to review and reverse an RTC judgment which is already final and
executory?
A: No more. The judgment which is already final cannot be changed by the CA. Meaning, the CA
has no jurisdiction to entertain the appeal in that case. So in effect, it is a jurisdictional challenge which
can be raised even in the CA even if not raised earlier in the RTC.
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET AND OTHER LAWFUL
FEES AS PROVIDED IN SECTION 5 OF RULE 40 AND SECTION 4 OF RULE 41;
Section 5 of Rule 40 is about filing of docket fees if you appeal from the MTC to the RTC. Section 4
of Rule 41 refers to filing of docket fees when the appeal is from RTC to CA.
Q: But how about failure to pay the appeal fee in the MTC prior to transmittal to the RTC? Is it a
ground for dismissal by the CA?
A: To my mind NO because why will the CA dismiss it when the appeal is in the RTC? Bakit ang
CA mag-dismiss, wala man ang kaso sa kanila? The CA has nothing to do with the appeal. It is
supposed to be in the RTC, bakit ang CA ang mag-dismiss? In other words, there is something wrong
with this amendment. (referring to “Section 5 of Rule 40”)
But if the appeal is from the RTC to the CA, you must you must pay the docket fees because it is a
specific ground for dismissal for the dismissal under Rule 50.
That’s only when there is a record on appeal. When the record on appeal is approved, you have to
reproduce it and you are not allowed to make any alteration, revision or addition.
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND FILE THE REQUIRED NUMBER
OF COPIES OF HIS BRIEF OR MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES;
Failure of the appellant to serve and file the required number of copies of his brief. So, failure to file
the appellant’s brief is a ground for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief, what will happen ?
A: You do not dismiss the appeal but the case will be submitted for decision without appellee’s
brief. The CA will make a resolution that the case was submitted without the appellee’s brief.
Well, you may file an appellant’s brief, eh wala namang page references, wala namang assignment
of errors. My God! What kind of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief without
telling the CA kung anong mali and then you expect the CA to look for the errors. My golly! Do not
expect the CA to do that. Meron dapat citations – e.g. “See Exhibit ‘A’”, “See transcript…” Merong
reference ba! like kung anong page yan.
Now if you file a brief without footnotes, without citing the law, without citing the transcript,
without citing the exhibit, that would be dismissed. That’s what happened in the 1995 case of
FACTS: The CA dismissed the case simply because the appellant’s brief was sloppily
written – no reference to exhibit, no reference to page, no reference to anything. It was
dismissed! The appellant went to the SC pleading liberality.
HELD: “Petitioner’s plea for liberality in applying these rules in preparing Appellant’s
Brief does not deserve any sympathy. Long ingrained in our jurisprudence is the rule that
the right to appeal is a statutory right and a party who seeks to avail of the right must
faithfully comply with the rules. Deviations from the rules cannot be tolerated. The rationale
for this strict attitude is not difficult to appreciate. These rules are designed to facilitate the
orderly disposition of appealed cases. In an age where courts are bedeviled by clogged
dockets, these rules need to be followed by appellants with greater fidelity. Their
observance cannot be left to the whims and caprices of appellants.”
Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE NECESSARY STEPS FOR THE
CORRECTION OR COMPLETION OF THE RECORD WITHIN THE TIME LIMITED BY THE COURT
IN ITS ORDER;
Sometimes yung record mo kulang-kulang ba. And the party may be directed to work for the
completion. If you fail to complete the record, your appeal will be dismissed.
Please connect this with two previous provisions talking about completion of the record in an
appealed case. I’m referring to Rule 41, Section 10 and Rule 44, Sections 5 to 6 because these provisions
talk also of completion of record. (please refer to your codals)
Rule 41, 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:
Rule 44, Sec. 5. Completion of record. Where the record of the docketed case
is incomplete, the clerk of court of the Court of Appeals shall so inform said
court and recommend to it measures necessary to complete the record. It shall be
the duty of said court to take appropriate action towards the completion of the
record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record. Where the completion of
the record could not be accomplished within a sufficient period allotted for
said purpose due to insuperable or extremely difficult causes, the court, on its
own motion or on motion of any of the parties, may declare that the record and
its accompanying transcripts and exhibits so far available are sufficient to
decide the issues raised in the appeal, and shall issue an order explaining the
reasons for such declaration.
That’s a new ground – failure to appear on the preliminary conference; failure to comply with
orders, circulars, directives of the court without justifiable cause. That is very broad. That’s a new one
not found in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT APPEALED FROM IS NOT
APPEALABLE.
The fact that the judgment or order appealed from is not appealable. Interlocutory!
So, if you appeal on any one of them, the other party can file a motion to dismiss on the ground that
it is not appealable.
Now, there is one ground for dismissal under the old rule na nawala naman. Yun bang “failure to
prosecute the appeal”, when the records are not elevated to the CA the appeal can be dismissed.
Meaning, you have to follow up the clerk of court. Nawala yun eh. That ground seems to have been
abandoned. I think the attitude there is let us not punish the appellant for the fault of the clerk of court.
Meaning, you must appeal to the right court and you must use the proper mode of appeal. This
incorporates in the Rules the resolutions of the SC in the 1990 En Banc Resolution in MORILLO vs.
CONSUL (not found in the SCRA) and also incorporates the provisions of Circular 2-90 dated March 9.
1990.
Prior to this under the 1964 Rules, the rule is if there is wrong appeal like pure questions of law to
the CA, the CA should not dismiss the appeal but elevate it to the SC. That rule has long been
abandoned. It was abandoned in the case of MORILLO and in Circular 2-90. Now, it is here. Kung
question of law you better appeal to the SC. If you appeal to the CA, the CA will dismiss it.
HELD: “There is no longer any justification for allowing transfers of erroneous appeals
from one court to the other, much less for tolerating continued ignorance of the law on
appeals.”
Take note that this refers to appeal under Rule 41 from RTC. This does not apply when the appeal
to the CA is from a quasi-judicial body. Appeal from a quasi-judicial body on a pure question of law
should be to the CA, never to the SC. You compare this with Rule 42, Section 2:
Rule 42, Section 2. Form and contents.- The petition shall be filed in seven
(7) legible copies, with the original copy intended for the court being
indicated as such by the petitioner, and shall:
x x x
(c) set forth concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both, allegedly committed
by the RTC and the reasons or arguments relied upon for the allowance of the
appeal.
x x x
“Errors of fact or law, or both.” This refers to Petition for Review from the RTC to the CA.
penalty for erroneous appeal. Kaya nga according to MORILLO which became the basis of this, there is
no longer any justification for allowing transfers of erroneous appeals from one court to the other,
much less for tolerating continued ignorance of the law on appeals. Kaya nga before, very lenient pag
mali under the 1964 Rules. But now in Section 2 of Rule 50, wala na – i-dismiss na.
WITHDRAWAL OF APPEAL
Q: Can you withdraw a complaint if you file a complaint in the lower court?
A: YES, as a matter of right for as long as there is still no answer filed. But when the defendant has
filed an answer, dismissal of the complaint is already discretionary upon the court. So it is the same!
-oOo-