Rule 72 (case # 5)

REPUBLIC VS. C.A. ( G.R. No. 163604 May 6,2005)

Facts: Private respondent, Apolinaria Malinao Jomoc petitioned the RTC of Ormoc City to declare her husband
presumptively dead (It had been nine years since he left). The RTC , thereafter granted Apolinaria’s petition citing Art.
41 par. 2 of the Family Code.
The Republic, through the Sol.Gen. sought to appeal the RTC’s order by filing notice of appeal which was then
disapproved by the RTC. Republic’s Motion for Reconsideration of the RTC’s order was again denied ensuing in the
filing of a Petition for Certiorari before the C.A.
The C.A. however, denied republic’s petition on procedural and substantial grounds. C.A. held that petition is not
sufficient in form( it failed to attach a certified true copy of the assailed decision and the denial of its motion for
reconsideration).

***Republic contends that declaration of presumptive death of a person under Art. 41 of the Family Code is not a
special proceeding or a case of multiple or separate appeals requiring a record on appeal.

Issue: Whether or not a petition for declaration of the presumptive death of a person is in the nature of a special
proceeding.

Held: No.
By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to
have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent
marriage. Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of
the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the
following provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply  in all
cases provided for in this Codes requiring summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules. (Emphasis and underscoring supplied)
x x x,

there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under
the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of
a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial
court’s order sufficed.
Finally, on the alleged procedural flaw in petitioner’s petition before the appellate court. Petitioner’s
failure to attach to his petition before the appellate court a copy of the trial court’s  order denying its motion for
reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the rules of procedure are
not to be applied in a technical sense. Given the issue raised before it by petitioner, what the appellate court
should have done was to direct petitioner to comply with the rule.

WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Let the case
be REMANDED to it for appropriate action in light of the foregoing discussion.