ANGELO On November 17, 1998, the trial court rendered judgment in favor of

Case No. 1 respondent.7 Petitioners received the Decision on November 26, 1998. On the
PAYMENT OF APPELLATE COURT DOCKET FEES same date, they filed a Notice of Appeal, which the RTC approved on December 2,
Badillo v. Tayag 1998.
Respondent moved for reconsideration thereof on the ground of
FACTS: Spouses Oscar and Haydee Badillo are plaintiffs in a forcible entry/ejectment petitioners’ failure to pay the docket fees within the reglementary period. The trial
case. The MTC ordered the NHA to vacate the disputed land and to return court, however, denied the Motion.
possession thereof to the Spouses. Upon receipt of the decision, the NHA filed a CA dismissed the appeal of petitioners for their failure to pay “the required
Notice of Appeal, but did not pay the appellate docket fees within the reglementary docketing fee within the period for filing an appeal.
period. They paid the fees four months late. Spouses Badillo filed with the MTC a
Motion for the immediate issuance of a writ of execution and demolition. They Issue: Whether or not the appeal was seasonably filed?
contended that because of the NHA’s failure to pay the appellate docket fees within
the prescribed period, the MTC Decision became final. Ruling: No. Petitioners failed to pay the appeal on time. In the present case,
petitioners insist that they seasonably paid the docket fees. After resolving thrice
ISSUE: Whether the failure of the NHA to pay the appellate docket fees within the the timeliness of the payment of the docket fees, the CA finally found that these
fifteen-day reglementary period is a ground to dismiss its appeal. had been paid one (1) year and 11 days from the filing of their notice of appeal.
Accordingly, in order to perfect an appeal from a decision rendered by the
RULING: NO. NHA, being a government-owned and controlled corporation, is RTC in the exercise of its original jurisdiction, the following requirements must be
exempt from paying docket fees whenever it files a suit in relation to its complied with. First, within 15 days, a notice of appeal must be filed with the court
governmental functions. that rendered the judgment or final order sought to be appealed; second, such
notice must be served on the adverse party; and third, within the same 15-day
MTC TO RTC RTC TO CA CA TO SC period, the full amount of appellate court docket and other legal fees must be paid
In appeals from the MTC Payment of appellate Payment of appellate to the clerk of the court that rendered the judgment or final order . It should be
to the RTC, failure to pay fees from the RTC to the fees from the CA to the noted that full payment of the appellate docket fees within the prescribed period is
the appellate docket fees CA is MANDATORY SC is MANDATORY mandatory, even jurisdictional, for the perfection of the appeal. Otherwise, the
within the fifteen-day according to the Rules. according to the Rules. appellate court would not be able to act on the subject matter of the action, and
reglementary period the decision or final order sought to be appealed from would become final and
bestows on the appellate executory.
court a directory, NOT A
MANDATORY, power to MACY
dismiss an appeal. CASE 3; RULE 40 SECTION 5
Bautista vs. Unangst
Just
FACTS: petition for review on certiorari
Case no. 2 petitioner to file a complaint against him for estafa, violation of Batas Pambansa
Rule 40 Section 5 Blg. 22 and carnapping against Salak. Respondents failed to interpose a timely
La Salette College vs. Pilotin G.R. No. 149227. December 11, 2003. appeal. However, on September 10, 2004, respondent Unangst filed a petition for
relief. Unangst initially paid P200.00 as docket fees Said amount was insufficient as
Facts: Pilotin [Respondent] is a bonafide student of [petitioner] La Salette College. the proper filing fees amount to P1,715.00. Nevertheless, the correct amount was
He filed his complaint and asked for the issuance of a writ of preliminary mandatory subsequently paid. Bautista contends that the proper filing fees for said petition
injunction to compel [petitioner college to] re-admit him but the college refused. were paid beyond the 60-day reglementary period. He posited that jurisdiction is
“Because of the adamant refusal of [respondent] school in readmitting him acquired by the court over the action only upon full payment of prescribed docket
he amended his complaint for damages. fees. respondent counters that the belated payment of proper docket fees was not
due to their fault but to the improper assessment by the Clerk of Court.
ISSUE: WON the appeal may proceed despite failure to pay docket fees on time
RULING: YES. The right to appeal is a purely statutory right. Not being a natural right
or a part of due process, the right to appeal may be exercised only in the manner
and in accordance with the rules provided therefor. For this reason, payment of the
full amount of the appellate court docket and other lawful fees within the
reglementary period is mandatory and jurisdictional. Nevertheless, as this Court
ruled in Aranas v. Endona, the strict application of the jurisdictional nature of the
above rule on payment of appellate docket fees may be mitigated under
exceptional circumstances to better serve the interest of justice. It is always within
the power of this Court to suspend its own rules, or to except a particular case from
their operation, whenever the purposes of justice require it.
appellants cannot be faulted for their failure to pay the proper docket fees for,
given the prevailing circumstances, such failure was clearly not a dilatory tactic
nor intended to circumvent the Rules of Court. On the contrary, appellants
demonstrated their willingness to pay the docket fees when they subsequently
paid on the same day they were assessed the correct fees
Gomez
Case no. 4
Rule 40 Sec. 7(B); Appellant is duty bound to submit memorandum of appeal
Enriquez vs. Court of Appeals
396 SCRA 377, G.R. No. 140473 January 28, 2003
FACTS: An ejectment suit was charged against petitioner before the MCTC, and
upon the unfavorable result thereof, he appealed the case to the RTC.
The RTC then required the parties, within 15 days, to submit their respected
memorandum and/or briefs. The RTC stated that upon expiration of the period to
submit memoranda, it “shall decide the case on the basis of the entire record of the
proceedings in the court of origin and/or such brief(s) as may have been filed.”
Upon expiration of the period, petitioner’s counsel didn’t file the said memoranda,
thus, the RTC dismissed said appeal.
ISSUE: Whether or not the RTC erred in dismissing the case upon the failure of
petitioner to submit their respective memoranda.
RULING: NO. But it is equally true that an appeal being a purely statutory right, an
appealing party must strictly comply with the requisites laid down in the Rules of
Court. In other words, he who seeks to avail of the right to appeal must play by the
rules. This the petitioner failed to do when she did not submit her memorandum of
appeal in Civil Case No. 12044 as required by Rule 40, Section 7 of the 1997 Rules of
Civil Procedure. That she lost her case is not the trial court’s fault but her own.
Pastor
Case No. 5
Rule 42 Section 7(b)
Chronicles Securities Corporation vs. NLRC
444 SCRA 342, Nov. 25, 2004
FACTS: Petitioner hired private respondent Neal H. Cruz, who was then the
executive editor of the Today newspaper, as the publicist and the editor in chief of
its national daily broadsheet, the Manila Chronicle. However, due to private
respondent's role in the publication of a controversial article that was carried by the
newspaper sometime in July 1994, petitioners terminated his services.
Consequently, private respondent filed a complaint for illegal dismissal against
herein petitioner. Labor Arbiter (LA) favored the private respondent. NLRC affirmed
the LA. Writ of execution was issued. Petitioners filed a Motion to Quash the writ of
execution, which was denied on August 29, 2000. Petitioners received copy of the
Order denying their motion to quash on October 10, 2000. Hence, they had until
October 20, 2000 to file their appeal. However, on October 20, 2000, Friday, at 3:30
p.m., the NLRC suspended work due to a Luzon wide power blackout. The following
Monday, October 23, 2000, petitioners filed a Manifestation with Urgent Motion to
Admit with the NLRC. Attached to this motion are the petitioners' Notice of Appeal
and Memorandum of Appeal. On February 28, 2001, the NLRC denied petitioners'
appeal for being filed out of time. Petitioners' Motion for Reconsideration was
likewise denied on August 20, 2001. Hence, this appeal.
ISSUE: W/N the delay in the filing of petitioners' Appeal with the NLRC was
justifiable and purely due to extraordinary circumstances, without fault on the part
of petitioners.
HELD: YES.
Verily, the respondent NLRC's dismissal of the petitioners' appeal in this case failed
to consider the valid reasons for not being able to timely file the same. In not a few
instances, we relaxed the rigid application of the rules of procedure to afford the
parties the opportunity to fully ventilate their cases on the merits. This is in line
with the time honored principle that cases should be decided only after giving all
parties the chance to argue their causes and defenses. Technicality and procedural
imperfections should thus not serve as bases of decisions. In that way, the ends of
justice would be better served. The facts herein are akin to the case of Surigao del
Norte Electric Cooperative v. NLRC where we upheld the NLRC's order taking
cognizance of an appeal filed one day late since the delay in filing was caused by the
onslaught of typhoon Besing, resulting in the closure of the Surigao Post Office on
the last day for the appellant to file her appeal.
RYLE
6. Mejillano v. Lucillo, et al.
Rule 40, Sec. 7(b)

FACTS: Faustino died in 1931 leaving two parcels of land. The surviving children of
Faustino with Luciñada (Tranquilino and Antonia) divided Lot A equally between
them, and Antonia ceded her one-half ( 1/2) share in the property to Tranquilino.
Tranquilino executed a Deed of Absolute Sale of Lot A in favor of Jesus Lorente.
Soon after, he modified the agreement to include Lot B in an Amended Deed of
Absolute Sale. The children of Faustino with Monreal, (Felix and Hospicio) claimed
that Lot B is their inheritance from their late father. Lorente filed an action to
recover possession with the RTC, which dismissed the complaint. Hospicio’s heirs
sold to Lucillo their one-half (½) share in Lot B and the remaining portion was also
sold to respondent Lucillo by Felix. Lucillo discovered that petitioner was occupying
Lot B. Lucillo filed an action for recovery of possession of real property against
petitioner with the MTC. MTC ordered Mejillano to relinquish possession of Lot B to
Lucillo. Petitioner appealed the foregoing decision to the RTC, but failed to file an
appeal memorandum. Case dismissed. Petitioner filed MR attaching thereto the
appeal memorandum, alleging ignorance and poverty. The Opposition to the MR by
respondents stands to be meritorious. Petitioner went to the CA on a petition for
certiorari. CA dismissed the petition, ruling that respondent judge did not act with
grave abuse of discretion in dismissing the appeal.  of lack of jurisdiction.
ISSUE: W/N CA erred in not considering petitioner’s substantial compliance in filing
his appeal memorandum with the RTC in the interest of substantial justice despite
the fact that the rather belated filing thereof by petitioner was unintentional as
shown in his affidavit of merit.
RULING: No. It is obligatory on the part of petitioner to file his memorandum on
appeal within fifteen days from receipt of the notice to file the same; otherwise, his
appeal will be dismissed. In rules of procedure, an act which is jurisdictional, or of
the essence of the proceedings, or is prescribed for the protection or benefit of the
party affected is mandatory. The raison d'être for such necessity was equally
clarified in the same case: in appeals from inferior courts to the RTC, the appellant’s
brief is mandatory22 since only errors specifically assigned and properly argued in
the appeal memorandum will be considered in the decision on the merits.
Sec. 7 (b), Rule 40 - Within fifteen (15) days from such notice, it shall be the duty of
the appellant to submit a memorandum which shall briefly discuss the errors
imputed to the lower court, a copy of which shall be furnished by him to the
adverse party. Within fifteen (15) days from receipt of the appellant's
memorandum, the appellee may file his memorandum. Failure of the appellant to
file a memorandum shall be a ground for dismissal of the appeal.
RECHINE
CASE NO. 7.
RULE 41: SEC. 2.
BASCO v. CA, G.R. NO. 125290, (2000)
FACTS: petitioner was charged with Qualified Illegal Possession of Firearm and
Illegal Possession of Firearm before the RTC of Manila. Petitioner received a copy of
the trial court’s decision. Thereafter, petitioner’s counsel filed a MR of the said
decision. However, in the notice of hearing, petitioner’s counsel failed to indicate
the date and time of the motion’s hearing as explicitly required by Sections 4 and 5,
Rule 15 of the Rules of Court.
When petitioner’s counsel realized his error, he submitted a Notification and
Manifestation. Petitioner filed a petition for relief from judgment with the RTC
pursuant to Rule 38 of the Rules of Court. He contended that his inadvertence was
due to the perennial brownouts being experienced across the country during that
time and should, thus, be considered as a mistake or excusable negligence. The
trial court issued an order denying the petition for relief for lack of merit. Petitioner
appealed, the CA dismissed petitioner’s appeal on the ground of lack of jurisdiction.
ISSUE: W/N the CA evidently erred in dismissing petitioner’s appeal on the ground
RULING: YES. At the outset, it bears stressing that the instant controversy does not
concern an appeal from the judgment of conviction itself. It ruled that since
petitioner was meted the sentence of reclusion perpetua, his appeal falls under the
Supreme Court’s exclusive appellate jurisdiction in accordance with Article VIII,
Section 5 (2)[d] of the 1987 Constitution of the Philippines.
The case brought to the Court of Appeals involved an appeal from the trial court’s
denial of petitioner’s petition for relief from judgment. When the Court of Appeals
dismissed the appeal, the applicable provision was Section 2, Rule 41 of the Rules
of Court governing appeals from the Regional Trial Courts to the Court of Appeals.
Said provision specifically stated that: Sec. 2. Judgments or orders subject to appeal.
—x x x A judgment denying relief under Rule 38 is subject to appeal, and in the
course thereof, a party may also assail the judgment on the merits, upon the
ground that it is not supported by the evidence or it is contrary to law.
Under the 1997 Amended Rules of Procedure, an order denying a petition for relief
is no longer subject to appeal.
WEE
CASE NO. 8
RULE 41, SEC. 1(b)
GSIS v. Bengson Commercial Buildings, Inc. ǀ G.R. No. 137448 , 31 January 2002
FACTS: Bengson obtained loans from GSIS. As a security for the payment of these
loans, Bengson executed a real estate and chattel mortgages in favor of GSIS. Upon
Bengson’s failure to pay, the mortgaged properties were extra-judicially foreclosed
and sold at public auction to the highest bidder, the GSIS itself. Bengson filed with
the CFI an action for the annulment of the foreclosure sale, which ruled in its favor.
CA affirmed. GSIS did not file an MR or an appeal, and hence that decision of the CA
became final and executory. Bengson filed with the trial court a Motion for Hearing
on the Costs of Suit which issued an Order (6 April 1995) awarding to Bengson the
sum of P31M as costs of suit. A copy of that order was received on that same date
by GSIS’ counsel Atty. Terrado. After the said order became final, the trial court
granted Bengson’s ex parte motion for execution. It was only on 4 May 1995, upon
the receipt of a copy of the order of execution, that GSIS became aware of the
Order because Atty. Terrado had been AWOL. GSIS then filed with the trial court an
Urgent Omnibus Motion. Trial court denied the motion, which was treated as a
petition for relief from judgment. GSIS instituted with the CA a special civil action
for certiorari, which said petition was dismissed by the CA.
ISSUE: Whether or not CA erred in dismissing GSIS’s petition.
RULING: NO. The 1997 Rules of Civil Procedure, specifically Section 1(b) of Rule 41,
provides that no appeal may be taken from an order denying a petition for relief or
any similar action seeking the relief from judgment. The last paragraph thereof,
however, allows the aggrieved party to file a special civil action for certiorari under
Rule 65 of the Rules.
Under Section 4 of Rule 65 of the new Rules, the petition may be filed not later than
60 days from notice of the judgment, order, or resolution sought to be annulled.
The petition for certiorari was filed 43 days from receipt of the Order, and hence it
was seasonably filed. However, GSIS did not assail the denial of both its petition
for relief from judgment and its MR; neither did it allege or show the "fraud" or
"negligence" purportedly committed by its former counsel Atty. Terrado. As
correctly pointed out by the CA, the petition challenged, and focused instead on
awarding to BENGSON P31 million costs of suit, and then prayed for its
nullification. We cannot, therefore, ascribe error to the CA when it said that the
petition was filed out of time, three years having elapsed since the issuance of the
Order.
NOTE: SC remanded the case back to the trial court, in the higher interest of justice
and equity. As a general rule, the negligence or mistake of counsel binds the
client,however, procedural technicality should not be made a bar to the vindication
of a legitimate grievance. When such technicality "deserts from being an aid to
justice", the Courts are justified in excepting from its operation a particular case.
CHAM
Case No. 9
Rule 41, Section 1(e)
Sy Chin v. CA
FACTS
The instant case stemmed from a petition for dissolution and liquidation of
the partnership filed by the petitioners with the SEC.
Private respondents formed a partnership under the name of Tan Chin
Heng & Company. After the death of three members, their heirs (petitioners) were
in conflict because of the company’s failure to render an accounting and non-
distribution of profits. In order to settle their differences, the parties agreed to refer
the matter to the Federation of Filipino Chinese Chamber of Commerce.
The petitioners filed a petition for dissolution and liquidation of the
partnership with the SEC. They moved for a partial reconsideration of the decision,
averring that the properties should be divided equally among the partners or their
heirs. The motion was denied by the hearing officer.
The petitioners filed a Notice of Appeal but this was not perfected due to
their failure to file the Memorandum on Appeal and to pay the docket fees within
the period provided for by the Revised Rules of Procedure of the SEC.
Consequently, a motion for execution was filed by the private respondents
on which was granted by the hearing officer. Petitioners filed an opposition thereto
asserting that there was a need to check/investigate the information that some of
the partnership properties were already adjudicated. Opposition was denied.
Petitioners went up to the Commission En Banc. Private respondents filed
an opposition asserting that the SEC no longer had jurisdiction over the case
considering that the decision of the hearing officer had already become final and
executory. SEC, nonetheless, took cognizance of the case.
SEC - remanded the case to the department of origin for proper action. 
A Motion for Reconsideration/Clarification was filed by the private respondents but
this was denied by the SEC Commission en banc.
CA- petition for certiorari was filed assailing SEC’s decision. CA ruled that the SEC
acted in excess of its jurisdiction.
ISSUE
Whether or not CA erred when it treated private respondents’ petition for
certiorari as an appeal from the decision of the SEC
RULING/MAIN POINT
 Yes. It must be noted that petitioners’ appeal to the Commission en
banc was an appeal on the order of execution which is not permissible under the
rules. The order granting the motion for writ of execution is not appealable as
provided under Rule 41, Section 1 which states:
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:
xxx
(f) An order of execution.
Clearly, the SEC committed grave abuse of discretion when it entertained
petitioners’ appeal and treated it as a direct attack against the orders of the hearing
officer. This in effect re-opened the case that has already become final and
executory. Time and again, this Court has made the pronouncement that there
must be an end to every litigation. Once a judgment becomes final, executory and
unappealable, the prevailing party should not be denied the fruits of his victory by
some subterfuge devised by the losing party.
Petitioners maintained that the SEC did not in fact alter the decision of the
hearing officer. It merely remanded the case to the department of origin for the
purpose of determining whether it has jurisdiction over the properties which are
sought to be distributed to the heirs. This was due to the fact that "it came to their
(petitioners) knowledge very recently that the real properties in Manila and Quezon
City had already been adjudicated to the heirs of Feliciano Tang in the Intestate
Estate Proceeding before the then CFI of Manila in 1964" and there was a need to
"conduct an investigation to check the veracity thereof." This contention is
untenable.
COELI
10. SEC. 1(f), RULE 41: NOT AN ORDER OF EXECUTION
HUFANA ET. AL V. GENATO | GR 141209
FACTS:
 RESP GENATO filed before the RTC of Quezon City a Complaint to foreclose a
real estate mortgage over 2 parcels of land owned by Oakland Dev’t Corp. RTC
rendered a Decision in favor of Genato, & ordered Oakland to pay the principal
obligation, otherwise, the lands will be sold in auction sale. CA affirmed.
Genato filed a Motion for Execution and the branch COC scheduled the date of
auction sale.
 PETITIONERS, the alleged owners/buyers of the mortgaged properties, sought
to restrain the RTC from proceeding with the auction on the ground that the
mortgage was void.
 RTC: declared the mortgage between Oakland and Genato null and void insofar
as third parties were concerned (thus partial execution). It further ruled that
the buyers (petitioners) had a superior right thereto. Thus, it enjoined
respondent from foreclosing the properties and then resolved that the sale of
the lot be confined only to those portions that had not been bought or
occupied by herein petitioners/intervenors.
ISSUE: W/N RTC’s Resolution is proper, considering that the Resolution purports to
be merely an order of execution which is allegedly interlocutory in nature.
RULING: NO. Under Section 1(f) of Rule 41, an order of execution issued by a trial
court is not appealable.
BUT… It is clear that the trial court did not merely grant execution. Rather, it also
resolved matters that delved on the merits of the claims of both parties. It did not
merely order something to be done pursuant to a previous final decision, but
resolved issues determinative of the final outcome of the case. As such, the
Resolution is in effect a final order that may be appealed to the CA under the Rules
of Court.
jAn Soriano
CASE NO. 11
RULE 41, SEC. 1(f)
YASUDA V. CA, BLUE CROSS INSURANCE| GR NO. 112569
FACTS: Petitioner filed a complaint before the RTC of Makati, to collect form
defendants YRL shipping (not a party to the appeal to the SC) the sum of P8.9M
which ruled in his favor. Aggrieved, defendant filed an appeal to the CA which was
granted. On the other hand, petitioner filed for the execution of the judgement
pending appeal, also was granted and respondent blue cross was made to pay the
said amount. Respondent then filed a special civil action for certiorari questioning
the propriety of the execution pending appeal. CA granted. Petitioner now raises
the decision of the CA to the SC claiming that the order allowing execution pending
appeal had become final and executory because the defendants in the trial court
who are the principals of private respondent did not appeal the order; thus, private
respondent, the surety, is "deemed to have bowed to said order" and could no
longer question its propriety.
ISSUE: W/N an execution pending appeal is not appealable because it is final and
executory
RULING (MAIN POINT IN BOLD): No. Petitioner also This is erroneous. An order for
execution pending appeal is not appealable pursuant to Paragraph 2(f), Section 1,
Rule 41 of the Revised Rules of Court.  This provision enumerates the judgments
or final orders that may be appealed from. It also specifies the interlocutory or
other orders from which no appeal can be taken. In the latter instance, the
aggrieved party may resort to a special civil action under Rule 65, i.e., a petition
for certiorari.  half cavans of rice per harvest. Private respondents faithfully complied with their
AREEJ
CASE NO. 12
RULE 41 SEC 1(e); ORDER OF DEMOLITION
Cua v. Lecaros | G.R. No. 71909 May 24, 1988
FACTS: Joe Cua bought a property from J. M. Tuason & Co. At the time he bought
the property, a decision Civil Case No. Q-3296 was already rendered in favor of J. M.
Tuason & Co. against Antonio Estabillo, a squatter on the property in question.
Later, Antonio’s wife sold to respondent Lecaros a house erected on Cua’s property.
Meanwhile, the TC issued the writ of execution. J.M. Tuason moved for the issuance
of an alias writ of execution and a special order of demolition, which was granted.
Estabillo appealed to the SC, which affirmed TC’s decision.
With the finality of the decision, the trial court issued a writ of demolition, which
was later suspended but the suspension was eventually lifted. Thus, TC granted
Cua's motion for the issuance of an alias writ of execution. Lecaros filed a Notice of
Appeal. Cua filed a motion to dismiss the appeal on the ground that a writ of
execution through an order of demolition is not appealable. TC dismissed the
appeal. CA reversed. Hence, the petition.
ISSUE: Whether or not an order granting the issuance of execution or demolition is
appealable.
RULING: NO. An order of demolition, as a means to enforce a writ of execution, is
generally not appealable and that before the approval of Batas Pambansa Blg. 129,
the filing of a record on appeal was mandatory in order to perfect an appeal.
Petition granted. The orders of the TC ordering the issuance of an alias writ of
demolition, dismissing Lecaros’ appeal, and the alias writ of demolition are
REINSTATED. This decision is IMMEDIATELY EXECUTORY.
AYEH
Case No. 13
Spouses Bunag v CA (G.R. No. 107364 February 25, 1999)
RULE 41, Section 1(3) – Order of Demolition
FACTS: The land in question, which consists of about 10,000 square meters, is
devoted to palay, coconuts, and bananas. The owner of the property, Juanita
Valdez, instituted Magsisi and Hinang as tenants in exchange of delivering two-
thirds of the harvest to Valdez. Later, parties changed their relation to leasehold
under which private respondents paid rents to Juanita Valdez equal to seven and a
obligation to the landowner. However, petitioners, who are the son-in-law and the
daughter of Juanita Valdez, took over the land and had it plowed over the protest of
private respondents.
Respondents filed a complaint for recovery of possession. Trial court ruled in favor
of them. After CA affirmed, the decision became final and executory. A writ of
execution was issued. Later, in view of the refusal of petitioners to remove their
house from the land, private respondents moved for the issuance of an order of
demolition. Now, petitioners contend that the decision of the trial court does not
require the removal of improvements on the parcel of land and, therefore, the
order of demolition is void.
ISSUE: WON judgment for the delivery or restitution of property need to expressly
require the removal of improvements and structures in said property for an order
of demolition to be valid.
RULING: NO. A judgment for the delivery or restitution of property is essentially an
order to place the prevailing party in possession of the property. If the defendant
refuses to surrender possession of the property to the prevailing party, the sheriff
or other proper officer should oust him. There is no need for an express order to
this effect to be stated in the decision. Nor is there a need to state categorically in
the decision that in such event the sheriff or other proper officer shall have the
authority to remove the improvements on the property if the defendant fails to do
so within a reasonable period of time. Precisely, the law requires in cases where
there are improvements on the land that a special order be issued by the court,
directing the removal of such improvements.
Note: Order of execution cannot be appealed, neither can the order of demolition
issued in pursuance thereof be appealable. Neither can an order of demolition be
set aside through a special civil action for certiorari except upon a showing that the
trial court gravely abused its discretion in issuing the same. 
Alcala
Rule 41 – Section 1(e) – Subject of appeals.
14. City of Manila v. Serrano GR No. 142304 (2001)
Facts: City of Manila enacted Ordinance No. 7833 and filed a petition for
expropriation against several owners of lots in Tondo pursuant to the Land Use
Development Program of the City of Manila. Respondents opposed the petition
claiming that the lot is exempt from expropriation because it comes within the
purview of a small property as defined in RA 7279. Trial court ruled in favor of
petitioners. Respondents filed a petition for certiorari with the CA. CA held that the
lot is not exempt from expropriation under RA 7279 but nevertheless reversed the
trial court on the ground that petitioner did not comply with certain procedures
before resorting to expropriation. SC reinstated the ruling of the trial court and
remanded the case for further proceedings. City of Manila contends that
respondents’ remedy against the order of the trial court granting a writ of
possession was not to file a petition for certiorari under Rule 65 but a petition for
review under Rule 45 which should have been filed in the SC.
Issue: W/N CA erred in giving due course to the Petition of Respondent Serranos
under Rule 65.
Ruling: NO. A petition for review under Rule 45 is a mode of appeal. Accordingly,
it could not have been resorted to by respondents inasmuch as the order of the
trial court granting a writ of possession was merely interlocutory from which no
appeal could be taken. Rule 45, §1 of the 1997 Rules of Civil Procedure applies
only to final judgments or orders of the Court of Appeals, the Sandiganbayan, and
the Regional Trial Court. On the other hand, a petition for certiorari is the suitable
remedy in view of Rule 65, §1 which provides:
When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.
Respondents’ petition before the CA alleged that the trial court had acted without
or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction in issuing the order resolving that subject lot is not exempt from
expropriation and ordering the issuance of the writ of possession in favor of
petitioner.
Alcala
Rule 41 – Section 1(e) – Subject of appeals.
15. 311 SCRA 142 cannot be found
Martin
Case No. 16
Rule 41. Sec. 1: Subject of Appeal (An Order of Execution: Motion to Lift Order in
Default)
MANILA ELECTRIC COMPANY vs. LA CAMPANA FOOD PRODUCTS, INC.| G.R. No.
97535, August 4, 1995
Facts: La Campana (PR) filed a complaint to recover sum of money against
petitioner and pursuant to the latter’s failure to file an answer within the
reglementary period, PR sought to declare petitioner in default (granted by RTC).
Instead of appealing the said decision to the CA, petitioner filed a "Motion to Set
Aside Judgment by Default and/or for New Trial" on the ground that the judgment
by default was obtained by fraud. This was denied by RTC. Nonetheless, RTC
granted the motion for execution filed by PR and a writ of execution was issued.
Hence, this petition.
Issue: Whether or not a motion to set aside order of default is proper if what is
sought to set aside is a judgment by default.
Ruling: No. It must be clarified that under the Rules, what an aggrieved party seeks
to set aside is the order of default, an interlocutory order which is, therefore, not
appealable, and not the judgment by default, which is a final disposition of the case
and appealable to the Court of Appeals. The Rules expressly state that what may
be set aside is the order of default, while the judgment itself may be appealed to
a higher court: A party declared in default may at any time after discovery thereof
and before judgment file a motion under oath to set aside the order of default upon
proper showing that his failure to answer was due to fraud, accident, mistake or
excusable neglect and that he has a meritorious defense. In such case the order of
default may be set aside on such terms and conditions as the judge may impose in
the interest of justice.
RASHIDO
CASE 17
RULE 41 Section 1(e) DISMISSAL WITHOUT PREJUDICE
Casupanan v. Laroya GR 145391
FACTS: 2 vehicles, one driven by Laroya and the other owned by Capitulo and driven
by Casupanan figured in an accident. As a result, two cases were filed with the
MCTC. Laroya filed a criminal case against Casupanan for reckless imprudence
resulting in damage to property. On the other hand, Casupanan and Capitulo filed a
civil case against Laroya for quasi-delict.
Laroya filed a motion to dismiss the civil case on the ground of forum-shopping
considering the pendency of the criminal case. The MCTC dismissed the civil case.
MCTC denied the MR. Casupanan and Capitulo filed a petition for certiorari under
Rule 65 before the Regional Trial Court assailing the MCTC’s Order of dismissal. RTC
dismissed on the ground that the proper remedy is an ordinary appeal.
ISSUE: W/N the dismissal of the petition for certiorari is proper.
RULING: NO. The MCTC dismissed the civil action for quasi-delict on the ground of
forum-shopping. The MCTC did not state in its order of dismissal that the dismissal
was with prejudice. Under the Administrative Circular, the order of dismissal is
without prejudice to refiling the complaint, unless the order of dismissal expressly
states it is with prejudice. Absent a declaration that the dismissal is with prejudice,
the same is deemed without prejudice. Thus, the MCTC’s dismissal, being silent on
the matter, is a dismissal without prejudice.
Section 1 of Rule 41 provides that an order dismissing an action without prejudice
is NOT APPEALABLE. The remedy of the aggrieved party is to file a special civil
action under Rule 65. Clearly, the Capas RTC’s order dismissing the petition for
certiorari, on the ground that the proper remedy is an ordinary appeal, is
erroneous.
Eloise Coleen 
18. ROMAN CATHOLIC ARCHBISHOP OF MANILA v. CA | RULE 41, SEC. 2
FACTS: The case at bar springs from a lease agreement executed by petitioner-
lessor, the Roman Catholic Archbishop of Manila, and private respondent-lessees,
spouses Ernesto and Lorna Reyes over a parcel of land in Intramuros, Manila.
Petitioner, through counsel, filed this petition for review before the SC, not
questioning the substantive aspects of the case but raising only the procedural
issues.
ISSUE: One of the issues in this case is this—“Does the Court of Appeals have
jurisdiction over an appeal from the Regional Trial Court raising only questions of
law?”
RULING: NO. Petitioner is correct in saying that decisions of the Regional Trial Court
may be directly reviewed by the Supreme Court on petition for review only if pure
question of law are raised. Article VIII, Section 5 (2) (e) of the 1987 Constitution
provides that the Supreme Court may review decisions of a lower court, such as
the Regional Trial Court where only errors or questions of law are raised, pursuant
to law or the Rules of Court. When the Constitution states that cases involving
questions of fact or mixed questions of fact and law should be appealed to the
Court of Appeals, it merely restates in another way the principle that if only
questions of law are raised, these cases should be elevated to the Supreme Court.
ARZHY
Case No. 19
Section 3 Rule 41: Period of Ordinary Appeal
Fajardo v. CA, 354 SCRA 736, March 20, 2001
FACTS: RTC rendered a Decision dated October 15, 1997 granting the claim for
attorney’s fees of private respondent who represented petitioner in several cases.
The Chief of the Records Section of the Quezon City Central Post Office certified
that a copy of the decision was received by a certain Gloria Fajardo at petitioner’s
given address on December 15, 1997 but the registry return receipt showed that a
copy of the decision was received by petitioner’s counsel only on January 19, 1998.
Petitioner filed a notice of appeal on February 3, 1998. RTC improperly denied the
notice of appeal for being premature due to a pending motion for correction of
judgment filed by private respondent (pro-forma motion since there was no notice
of hearing – scrap of paper). On February 13, 1998, RTC rendered an amended
decision. Petitioner filed a motion for issuance of a writ of execution with RTC.
Granted.
ISSUE: W/N the notice of appeal filed on February 3, 1998 was timely
RULING: YES. The appeal should be taken within fifteen (15) days from notice of the
judgment appealed from. The fifteen-day period for filing the appeal should be
counted from the date when petitioner’s counsel received a copy of said judgment
because that is the effective service of the decision, not the service upon petitioner
herself. When a party is represented by counsel, service of process must be made
on counsel, not on the party. Thus, counting from the date of receipt of the decision
by petitioner’s counsel on January 19, 1998, the notice of appeal filed on February
3, 1998 was timely. The pendency of petitioner’s appeal tolled the finality of the
assailed decision. Consequently, the resolution of the trial court ordering the
execution of the assailed judgment was without basis. GRANTED.
In relation to Section 4: Respondent asserts that petitioner’s appeal was ineffective
as she failed to pay the appeal docket fee. The argument is not well-taken. A party’s
omission to pay the appeal docket fee does not automatically result in the dismissal
of the appeal. The failure to pay the appellate court docket fee within the
reglementary period confers a discretionary, and not mandatory, power to dismiss
the proposed appeal. (Parang nabanggit ni Judge eh)
CASE NO. 20 cannot be found
ADDALINO
21 Fortune Life and Gen. Insurance Co., Inc. vs. Court of Appeals
RULE 41; SECTION 9
FACTS: In a prior Civil Case, RTC rendered judgment in favor of private respondent
Delsan Transport Lines, Inc. (against herein petitioner Fortune Life). Delsan filed a
motion for execution pending appeal. Its motion was supported by a bond. While
the motion was pending, petitioner filed its notice of appeal. Subsequently, the
trial court issued a writ of execution pending appeal. Petitioner filed a motion for
reconsideration, but this was denied. Eventually, the issuance of the writ was set
aside by the CA (for lack of good reasons), affirmed by SC. Petitioner filed before
the trial court an application for damages against the bond and private
respondent. This was opposed by private respondent, citing Section 5, Rule 39 of
the Rules of Court. The trial court then proceeded to receive petitioner’s evidence.
Private respondent filed a motion for reconsideration assailing the trial
court's jurisdiction alleging that petitioner’s appeal having been perfected, trial
Court has already lost jurisdiction to entertain petitioner’s Application for
Damages. DENIED. Thereafter, private respondent filed a portion for certiorari,
prohibition and mandamus before Court of Appeals to prohibit the trial court from
conducting further proceedings; and to compel the trial court to forward the
records of the case to the appellate court since it has lost jurisdiction over the case
in view of the appeal of petitioner. CA RULED IN FAVOR OF PR. MR DENIED. THUS
THIS PETITION.
ISSUE: upon perfection of petitioner's appeal of the trial court's decision, does said
court retain jurisdiction to hear the application for damages against the bond that
was posted in support of private respondent's motion for execution pending
appeal?
RULING: NO. There is no controversy that the appeal of petitioner has been
perfected. As a necessary consequence thereof, the trial court was divested of
jurisdiction over the case. Instances when the trial court is allowed to exercise
residual jurisdiction after the perfection of the appeal:
(1) to issue orders for the protection and preservation of the rights of the
parties which do not involve any matter litigated by the appeal;
(2) to approve compromises offered by the parties prior to the
transmittal of the record on appeal to the appellate court; and
(3) to permit the prosecution of pauper’s appeals.
Petitioner relies on the first instance as basis for its stand that the trial court has the
authority to hear its application for damages. Its reliance thereon is misplaced.
Although the application for damages is beyond the scope of the matter to be
litigated by the appeal, there is no "protection and preservation" of its "rights" to
speak of.
AIRA
CASE NO. 22
SEC. 9, RULE 41
Marawi Marantao General Hospital, Inc. and Atty. Mangondato vs. Court of
Appeals 349 SCRA 321, January 16, 2001
FACTS: Petitioners filed a complaint against SSS for specific performance with
damages. The RTC rendered a decision in favor of petitioners. Petitioners then filed
a Motion for Partial Execution. During the hearing, the counsel for SSS failed to
appear considering that, as of said date, he had not as yet been served with a copy
of the RTC’s Decision and a copy of petitioners’ motion. Nevertheless, RTC granted
petitioners motion. SSS filed a notice of appeal which it later amended to include
material dates in the proceedings. However, in said amended appeal, SSS only
quoted item No. 1 in the dispositive portion of RTC’s Decision and placing “x x x x x x
x x x” in lieu of Item Nos. 2, 3, 4 and 5 of the dispositive portion of the Decision
appealed from. Petitioners thus prayed that entry of judgment may be made
declaring, final and executory, items nos. 2, 3, 4 and 5 of the dispositive portion and
that execution thereof be ordered which RTC granted. SSS then averred that having
perfected its appeal from RTC’s Decision, the latter had no more jurisdiction to
grant relief to petitioners on their “Motion for Execution.”
ISSUE: Whether or not RTC validly executed nos. 2, 3, 4, and 5 of the dispositive
portion.
RULING: NO. SSS did not use any word precisely restricting the coverage of its
appeal to particular or specific items in the dispositive portion of the RTC’s Decision.
Where the notice of appeal is clear and specifically states that the appellant is
appealing the entirety of the decision, the omission of several items in its quotation
of the dispositive portion of the judgment being appealed could not be taken to
signify that only the first item mentioned is being appealed. In cases of 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 other
parties. Considering that the SSS appealed the entirety of the decision to the Court
of Appeals and considering further that the period of appeal of the petitioners had
already expired, the RTC already lost jurisdiction over the subject matter of the case
when it issued the Order declaring item numbers 2, 3, 4 and 5 as final and
executory.
ANGELO
Case No. 23
PERFECTION OF APPEAL; EFFECT
Constantino-David vs. Pangandaman-Gania
FACTS: Respondent is a Director II and Manila Information and Liaisoning Officer of
the Mindanao State University. Respondent received a copy of Special Order
designating a certain Agnes Mangondato as Acting Director in her place in view of
the alleged expiration of her term and was no longer allowed to report for work.
She verified the status of her appointment and found out that her appointment was
not submitted to the CSC for attestation. In Resolution No. 01-0558, the CSC
declared her removal from office as illegal, exonerated her from the charge of being
on absence without official leave, and ordered her reinstatement but disallowed
the payment of back salaries for the period she was not working as a result of the
illegal dismissal.
ISSUE: Whether Respondent has the right to ask for modification of CSC Resolution
to demand compensation of her back salaries.
RULING: NO. It is true that respondent had lost the right to ask for the modification
of CSC Resolution No. 01-0558 and to demand compensation for her back salaries
and other benefits. She did not move for the reconsideration of this resolution
within fifteen (15) days from receipt thereof nor did she file a petition for its
review within the same period under Rule 43 of the 1997 Rules of Civil Procedure.
To be sure, both the CSC and respondent herself admitted the finality of
the Resolution and acted upon it when she was granted an order for its execution.
Where all the parties have either thus perfected their appeals by filing their
notices of appeal in due time and the period to file such notice of appeal has
lapsed for those who did not do so, then the trial court loses jurisdiction over the
case as of the filing of the last notice of appeal or the expiration of the period to
do so for all the parties.
Just
Case no. 24
Rule 42 Section 1
Yao vs. Court of Appeals G.R. No. 132428. October 24, 2000
Facts: Roxas and Yao was accused for selling counterfeits lamps by Philippine
Electrical Manufacturing Company (hereafter PEMCO) is authorized since they were
the only ones to sell the GE lamps in the PH.
MeTC, indicted for unfair competition under Article 189 of the Revised
Penal Code were YAO, who was TCC’s President. MeTC acquitted Roxas but
convicted YAO. YAO appealed to the RTC.
RTC: affirmed MeTC in TOTO =) ; he filed an MR but denied
He appealed in CA and asked for an extension but still failed to comply making RTC
decision final and executory. Yao now files with SC an appeal contending A fortiori,
the entry of judgment was improvidently issued for lack of legal basis.
Solicitor General prays that the petition should be dismissed for lack of merit. It
maintains that although the 25 April 1995 resolution did not specifically state that
the appeal was being dismissed, the intent and import are clear and unequivocable.
It asserts that the appeal was obviously dismissed because the RTC decision has
long become final and executory. YAO failed to challenge the RTC decision, within
the reglementary period, by filing a petition for review of the same with the Court
of Appeals pursuant to Section 1 of Rule 42 of the Rules of Court. Instead, he filed
an ordinary appeal by way of a notice of appeal. Hence, the period to file the
correct procedural remedy had lapsed.
Issue: W/N Yao be granted of appeal?
Ruling: NONONO WAY. There is no dispute that YAO availed of the wrong
procedural remedy in assailing the RTC decision. It is clear from the records that
YAO received a copy of the adverse RTC judgment on 16 August 1994. He has
fifteen (15) days or until 31 August 1994 within which to file either a motion for
reconsideration or a petition for review with the Court of Appeals. Fourteen (14)
days thereafter or on 30 August 1994, YAO opted to file a motion for
reconsideration the pendency of which tolled the running of the period. He
received a copy of the RTC’s order denying the motion for reconsideration on 3
October 1994. He had therefore, only one day left, 4 October 1994 as the last day,
within which to file with the Court of Appeals a petition for review. However, on
said date, YAO filed a notice of appeal. He palpably availed of the wrong mode of
appeal. And since he never instituted the correct one, he lost it.
MACY
CASE 25; RULE 42 Section 1
Ditching v CA G.R. NO. 109834
FACTS: petitioner Ditching and Zonette San Juan Bacani, seeking to eject herein
private respondent Motas and another occupant named Vidal Batalla from the lot
owned by the petitioner. A contract of tenancy was entered by Private respondent
Motas and Dr. Eduardo San Juan, the predecessors-in-interest of petitioners. Then,
Motas constructed his house on the lot without the consent of petitioners, who,
upon learning of such fact, demanded that he vacate the property. Motas having
refused to vacate, , hence the suit for ejectment.
CA: Dismissed the MR because it was filed late.
ISSUE: WON the dismissal of the case on sheer technicality by the CA is valid.
RULING: Yes. Court had set the allowable extension to file petitioner for review with
the Court of Appeals at fifteen (15) days. The motion for extension of time must be
filed and the corresponding docket fee paid within the reglementary period of
appeal. a motion for extension of time to file a petition should be filed prior to the
expiration or lapse of the period fixed by law, and beyond dispute, if the motion for
extension is filed after the expiration of the period sought to be extended (i.e., the
reglementary period to appeal), then there is no longer any period to extend, and
the judgment or order to be appealed from will have become final and executory.
The error of herein petitioners and their counsel goes into the very validity of the
appeal, and cannot simply be brushed off as an honest mistake in computing the
period to appeal. It should be stressed that a lawyer has the responsibility of
monitoring and keeping track of the period of time left to file an appeal. He cannot
escape from the rigid observance of this rule which is jurisdictional and cannot be
trifled with as "mere technicality" to suit the interest of a party. The rules as to
periods for filing appeal are to be observed religiously, for it is well-settled in our
jurisdiction that the right to appeal is a statutory right and a party who seeks to
avail of the right must comply with the rules. "These rules, particularly the
statutory requirement for perfecting an appeal within the reglementary period
laid down by law, must be strictly followed as they are considered indispensable
interdictions against needless delays and for orderly discharge of judicial
business." Perfection of an appeal within the statutory period is a jurisdictional
requirement. If an appeal be not taken within the reglementary period, the
judgment becomes final and the court loses all jurisdiction over the case, and it
has no alternative but to order the execution of the final judgement
Gomez
Case no. 26
Rule 42 Sec. 1; Certified True Copy; Appeal
Jaro vs. Court of Appeals
377 SCRA 282, G.R. No. 127536 February 19, 2002
FACTS: The Court of Appeals, upon receipt of the first memoranda from petitioner
only contained certified true copy of petitioner’s counsel, and not of from where
the office where the documents originated. Due to such, CA dismissed the case,
despite having filed an amended petition with the true certified true copy attached
as required by the present rules.
ISSUE: Whether or not the CA should have not dismissed petitioner’s petition.
RULING: YES. To recall, the Court of Appeals dismissed the appeal for two reasons.
First, the appeal was not in the form of a petition for review as required by Supreme
Court Revised Administrative Circular No. 1-95. Second, the annexes attached to the
petition were neither duplicate originals nor were they certified true copies. The
annexes were only certified as true xerox copies by the counsel of petitioner, not by
the authority or the corresponding officer or representative of the issuing entity, in
contravention of Administrative Circular No. 3-96. While we agree with the Court of
Appeals that the defective petition deserved to be dismissed, the amended petition
filed by petitioner should have been given due course. Petitioner filed the amended
petition, now in proper form, accompanied by annexes, all of which were certified
true copies by the DARAB. This is more than substantial compliance.
Pastor
Case No. 27
Rule 42 Section 1
Atillo vs. Bombay, 351 SCRA 361, G.R. No. 136096 February 7, 2001
FATCS: Petitioner entered into a Lease Agreement with Buenaventura Bombay
(private respondent) alleged owner of the Alto Commercial Building, in Mayamot,
Antipolo, Rizal. Petitioner failed to pay the rentals despite repeated demands.
Hence, Private respondent filed an ejectment case against petitioner with the
Municipal Trial Court (MTC) of Antipolo, Rizal. In her Answer, petitioner alleged that
the Alto Commercial Building was actually owned by the heirs of a certain Tomas
Escaraman pursuant to a 10-yr lease “kasunduan”. MTC issued its Decision
dismissing the ejectment case on the ground that private respondent was not the
proper party in interest based on the “Kasunduan” and had therefore no right to
eject the petitioner. Private respondent appealed to the RTC of Antipolo, Rizal. The
RTC affirmed MTC’s findings. On appeal, CA issued a Resolution dismissing the
petition of petitioner on the ground that petitioner failed to attach the pleadings
and other material portions of the record of the case in violation of Rule 42, Section
2 (d) of the Rules of Court. While petitioner has attached original/certified machine
copies of the decisions of both lower courts, as well as the RTC order denying her
motion for reconsideration, the writ of execution and notice to vacate, she has not
annexed to her petition copies of the pleadings and other material portions of the
record such as the complaint, answer and position papers filed with the lower
court, in violation of the above-cited rule.
ISSUE: Whether or not the requirement to attach the pleadings and other material
portions of the record as provided for by Section 2 (d), Rule 42 of the Rules of Court
is mandatory such that non-compliance would warrant the outright dismissal of the
petition.
HELD: YES.
The mandatory tenor of Section 2 (d), Rule 42 with respect to the requirement of
attaching clearly legible duplicate originals or true copies of the judgments or final
orders of both lower courts is discernible and well settled. Petitioner did not even
come close to substantially complying with the requirements of Section 2 (d) of Rule
42. Petitioner did not annex the “Kasunduan” or Agreement, the Lease Contract
between her and private respondent, the letters evidencing the alleged credit that
she still has with private respondent and the other documentary evidence vital and
indispensable to the disposition of her petition before the CA. Without the
necessary documents to support the petition, the allegations therein were reduced
to nothing more but bare allegations and the dismissal of the petition in this case
was therefore forthcoming.
RYLE
Case 28
Rule 44, Sec. 7-8
Aguam vs. CA
FACTS: The RTC, in an action for sum of money and damages arising from malicious
mischief filed by Aguam against Ronsayro Ronsayro. Aguam filed an appeal to the
Court of Appeals. The CA, through the Clerk of Court, issued a notice addressed to
the Aguam’s counsel, requiring her as plaintiff appellant to file within 45 days from
receipt an appellant’s brief, furnishing a copy of the notice to Ronsayro’s counsel.
The notice was sent by registered mail to Aguam’s counsel, at the latter’s address of
record. The notice was received by an office clerk of a realty firm with which the
counsel was sharing office. She was not an employee of Aguam’s counsel and she
did not note down the date of receipt.
Aguam filed with the CA a motion for extension of time to file appellant’s brief,
asking for 90 days from the expiry date within which to do so. CA denied the motion
and dismissed the appeal for failure of the appellant to file brief within the
reglementary period. Aguam filed with the CA her appellant’s brief. Aguam filed
with the CA a MR of the denial and to admit appellant’s brief. Ronsayro filed an
opposition to the MR. CA denied Aguam’s MR.
ISSUE: W/N CA acted with GAD in dismissing petitioner’s appeal because of the late
filing of appellant’s brief due to counsel’s mistake in the counting of the
reglementary period from notice to file appellant’s brief.
RULING: No. Technically, the CA may dismiss an appeal for failure to file appellant’s
brief on time. However, the dismissal is directory, not mandatory. It is not the
ministerial duty of the court to dismiss the appeal. “The failure of an appellant to
file his brief within the time prescribed does not have the effect of dismissing the
appeal automatically.” The court has discretion to dismiss or not to dismiss an
appellant’s appeal. It is a power conferred on the court, not a duty.
The “discretion must be a sound one, to be exercised in accordance with the tenets
of justice and fair play, having in mind the circumstances obtaining in each case.”
Technicalities, however, must be avoided. The law abhors technicalities that impede
the cause of justice.
RECHINE
CASE NO. 29.
SEC 44. SEC. 7-8
TORRES v. ORDEN, A.C. NO. 4646
FACTS: Torres engaged the services of respondent Atty. Orden to represent her in
a Civil Case for the recovery of possession of a market stall from spouses Gayo
before the RTC. In time, a decision was rendered in favor of Torres. The Gayo
spouses appealed the case to the CA. Respondent lawyer failed to submit an
appellee’s brief before the appellate court; hence, the CA issued a decision in favor
of the spouses Gayo.
Respondent lawyer filed with this Court a Notice of Petition for Review on
Certiorari. Petitioner failed to file the intended petition for review on certiorari
within the reglementary period, theretofore, this court declared the case
terminated and the judgment of the CA final and executory. Torres thereupon filed
the instant Administrative Complaint against respondent for the latter’s failure to
properly discharge his duty as such counsel.
ISSUE: Respondent’s failure to submit the brief to the appellate court within the
reglementary period entails disciplinary action.

RULING: YES. Upon appeal, the appellate court, not being in a position to hear
firsthand the testimony of the parties, can only place great reliance on the briefs
and memoranda of the parties. The failure to submit these pleadings could very
well be fatal to the cause of a client.
Respondent’s failure to submit the brief to the appellate court within the
reglementary period entails disciplinary action. Not only is it a dereliction of duty to
his client but also to the court as well. His shortcomings before the Court of Appeals
is, in itself, already deplorable but to repeat that same infraction before this Court
constitutes negligence of contumacious proportions. It is even worse that
respondent has attempted to mitigate his liability by professing ignorance of
appellate procedures, a matter that, too, is inexcusable.
WEE
CASE NO. 30
RULE 44, SEC. 13 - NONCOMPLIANCE OF CONTENTS OF APPELLANT’S BRIEF
De Liano v. CA ǀ G.R. No. 142316, 22 November 2001
FACTS: The case involved the cancellation of 2 real estate mortgages in favor of
petitioner San Miguel Corporation (SMC) executed by private respondent Tango.
SMC, De Liano and Abrille appealed the aforesaid decision to the CA. In due time,
their counsel, Atty. Afable, filed an Appellants' Brief which failed to comply with
Section 13, Rule 44 [ROC]. Tango was quick to notice these deficiencies, and
accordingly filed a "Motion to Dismiss Appeal". De Liano, et al. averred that their
brief had substantially complied with the contents as set forth in the rules. They
proffered the excuse that the omissions were only the result of oversight or
inadvertence and as such could be considered "harmless" errors. They prayed for
liberality in the application of technical rules, adding that they have a meritorious
defense. Appellate court issued the first assailed resolution dismissing the appeal.
As pointed out, the Brief does not contain a Subject Index nor a Table of Cases and
Authorities, with page references. Moreover, the Statement of the Case, Statement
of Facts, and Arguments in the Brief has no page reference to the record. These
procedural lapses justify the dismissal of the appeal, pursuant to Section 1 (f), Rule
50. De Liano, et al. sought to have the foregoing resolution reconsidered.
Simultaneously, through the same counsel, they filed a "Motion to Admit Amended
Defendants-Appellants' Brief." The appellate court denied the consolidated
motions. From the denial of their motion for reconsideration, only petitioner SMC
interposed the instant petition.
ISSUE: Whether or not CA erred in dismissing SMC’s appeal on the basis of pure
technicalities and even after SMC has corrected the technical defect of its appeal.
RULING: NO. All things being equal, we would have been inclined to grant the
petition until we realized that the attempt at compliance was, at most, only a
cosmetic procedure. On closer scrutiny, the amended brief was as defective as the
first. Where the first brief lacked an assignment of errors but included a
statement of issues, the amended brief suffered a complete reversal: it had an
assignment of errors but no statement of issues. The "statement of facts" lacked
page references to the record, a deficiency symptomatic of the first. Authorities
were cited in an improper manner, that is, the exact page of the report where the
citation was lifted went unspecified. The amended brief did not even follow the
prescribed order: the assignment of errors came after the statement of the case
and the statement of facts. No one could be expected to ignore such glaring errors,
as in the case at bar. The half-hearted attempt at submitting a supposedly amended
brief only serves to harden our resolve to demand a strict observance of the rules.
We remind members of the bar that their first duty is to comply with the rules, not
to seek exceptions.
CHAM
Case No. 31
Rule 44, Section 7-8
Barangay Sangalang v. Barangay Maguihan
FACTS
The controversy has its roots in a barangay jurisdiction dispute between
petitioner Barangay Sangalang and respondent Barangay Maguihan, both situated
in Lemery, Batangas. which ruled properties in dispute belonged to petitioner.
Respondent appealed the decision to the RTC ruling in favor of respondent.
Petitioner filed a Motion for Reconsideration, which was, however, denied by the
RTC. Aggrieved, petitioner then filed a Notice of Appeal. Later, petitioner filed an
Amended Notice of Appeal.
CA rendered a Decision dismissing the appeal. It ruled that petitioner had
availed itself of the wrong remedy in filing a notice of appeal instead of filing a
petition for review under Rule 42 of the Rules of Court. The CA also ruled that if said
appeal were to be considered as an ordinary appeal under Rule 41, it still should be
dismissed, because the submitted appellant’s brief failed to contain a subject index
and page references to the records requirement in its Statement of Facts and Case
and Argument, as provided for in Section 13 of Rule 44 of the 1997 Rules of
Procedure. Hence, this appeal.
ISSUE
whether or not CA committed grave abuse of discretion in dismissing the
appeal of petitioner solely based on the rigid and strict application of technicalities
overriding substantial justice, that is, the merit of the petitioner’s appeal,
RULING/MAIN POINT
 Yes. After an examination of relevant laws pertinent to herein petition, this
Court finds that the CA was correct in holding that petitioner had availed itself of
the wrong remedy.
In the case at bar, it is clear that when the case was appealed to the RTC,
the latter took cognizance of the case in the exercise of its appellate jurisdiction, not
its original jurisdiction. Hence, any further appeal from the RTC Decision must
conform to the provisions of the Rules of Court dealing with said matter.
HOWEVER, notwithstanding petitioner’s wrong mode of appeal, the CA
should not have so easily dismissed the petition, considering that the parties
involved are local government units and that what is involved is the determination
of their respective territorial jurisdictions. In the same vein, the CA’s strict reliance
on the requirements under Section 13 of Rule 44 relating to subject index and page
references in an appellant’s brief is, to stress, putting a premium on technicalities.
While the purpose of Section 13, Rule 44, is to present to the appellate court in the
most helpful light, the factual and legal antecedents of a case on appeal, said rule
should not be strictly applied considering that petitioner’s brief before the CA
contained only 9 pages, the records of the case consisted only of a few documents
and pleadings, and there was no testimonial evidence.
COELI
32. SEC. 1, RULE 45
PROPER PARTY
PEOPLE & SALMINGO V. VELEZ ET. AL | 397 SCRA 721
FACTS:
 PETITIONER SALMINGO: former member of the Sangguniang Panlalawigan of
Silay City, filed an affidavit-criminal complaint with the Office of the
Ombudsman charging respondents (Mayor, City Accountant, City Treasurer,
City Engineer) with violation of RA 3019.
 After preliminary investigation, the Graft Investigator recommended the filing
of an Information against the malefactors for said crime.
 The SB found probable cause for the issuance of warrants for the arrest of
respondents. Later on, SB dismissed the case, and ruled that Salmingo had no
legal personality to intervene in the criminal case because as shown by the
Information, the alleged aggrieved party was the City of Silay and not Salmingo.
ISSUE: W/N Salmingo is the proper party to file the present petition for certiorari.
RULING: NO. Salmingo is not the proper party as petitioner in this case. Only the
aggrieved original party in the main case is the only proper party as petitioner. One
who has not been an original party in the main case has no personality to file a
petition under said rule.
While it is true that he initiated the criminal complaint with the Office of the
Ombudsman against respondents for various offenses, however, under the
Information filed with the SB, the parties are the People of the Philippines as
plaintiff and the respondents as the accused. The private complainant is the City of
Silay while Salmingo is merely a witness for the plaintiff.
jAn Soriano
CASE NO. 33
RULE 45, SEC. 1
LIM V. PHILIPPINE FISHING GEAR INDUSTRIES, INC. | GR NO. 136448
FACTS: Petitioner filed a Petition for Review on Certiorari of the decision of the CA
affirming the ruling of the RTC that a partnership existed among the petitioner and
several persons based on the evidence presented against them. Thus, he may be
held liable for the unpaid fishing nets and floats purchased by and for the use of the
partnership
ISSUE: W/N the question of the existence of a partnership falls under a petition for
review under rule 45.
RULING (MAIN POINT IN BOLD): No. We stress that under Rule 45, a petition for
review like the present case should involve only questions of law. Thus, the
foregoing factual findings of the RTC and the CA are binding on this Court, absent
any cogent proof that the present action is embraced by one of the exceptions to
the rule. In assailing the factual findings of the two lower courts, petitioner
effectively goes beyond the bounds of a petition for review under Rule 45.
AREEJ
CASE NO. 34
RULE 45 SEC 1
Spouses Villarico v. CA | 309 SCRA 193
FACTS: An application for confirmation of title was filed by the spouses, Teofilo
Villarico and Maxima Villarico over a parcel of land. The Government interposed its
opposition averring that the land in question is part of the public domain. TC
dismissed the case as a certificate of title is void when it covers property of the
public domain classified as forest or timber and mineral lands. CA affirmed. Hence,
this petition for review on certiorari alleging that CA erred in sustaining TC’s
decision (a) that there was no documentation in favor of either parties; (b) that
Buenaventura Villarico apparently died prior to 1914; and (c) that the tax
declaration in the name of Buenaventura Villarico could have been contrived.
ISSUE: Whether or not the appeal is with merit.
RULING: NO. The first, second, and third assigned errors relate to factual and
evidentiary matters which the Supreme Court does not inquire into in an appeal
on certiorari. 4 It is well-settled that in a petition for review on certiorari as a mode
of appeal under Rule 45 of the Rules of Court, only questions of law may be
raised. 5 The Supreme Court is not a trier of facts. 6 Findings of fact by the trial court
and the Court of Appeals are binding on the Supreme Court. In the case under
consideration, the Court discerns no compelling reason to reverse such findings
arrived at by the trial court and affirmed by the respondent court, absent any
showing of any error, mistake, or misappreciation of facts. Records on hand indicate
that the decisions under attack accord with the law and the evidence.
AYEH
Case No. 35
Metropolitan Bank & Trust Company v. Tonda (G.R. No. 134436 August 16, 2000)
RULE 45, Section 1 –
FACTS: Metrobank filed with the Provincial Prosecutor of Rizal a complaint/affidavit
against the TONDAS for violation of P.D. No. 115 (Trust Receipts Law) in relation to
Article 315 (1) (b) of the Revised Penal Code. This was granted by Provincial
Prosecutor of Rizal. The TONDAS immediately sought a reconsideration of the DOJ
Resolution but their motion was denied.
Subsequently, the TONDAS filed with the Court of Appeals a special civil action for
certiorari and prohibition with application for a temporary restraining order or a
writ of preliminary injunction, that the Secretary of Justice acted without or in
excess of jurisdiction. The Court of Appeals granted the TONDAS' petition and
ordered the criminal complaint against them dismissed. Hence, this petition for
review on certiorari under Rule 45 of the Rules of Court seeking to set aside the
Decision of the Court of Appeals. TONDAS maintain that the issues raised in the
present petition are purely factual and not proper under Rule 45.
ISSUE: WON the assigned errors in the petition for certiorari filed with this
honorable court raises purely questions of facts.
RULING: NO. While the jurisdiction of the Supreme Court in a petition for review on
certiorari under Rule 45 of the Revised Rules of Court is limited to reviewing only
errors of law, not of fact, one exception to the rule is when the factual findings
complained of are devoid of support by the evidence on record or the assailed
judgment is based on misappreciation of facts , as will be shown to have happened
in the instant case.
Alcala
Rule 45 – Section 4 – Contents of petition. *cannot find any connection to this rule
36. Manila Bay Club Corporation v. CA & Sabeniano G.R. No. 110015 (1995)
Facts: PR Sabenianos as owners-lessors, and petitioner Manila Bay Club Corporation
as lessee executed a 10-year lease contract over the subject building. PR unilaterally
terminated the lease on the following grounds: LESSEE’s failure to insure the
building; unpaid accumulated rentals in arrears and to issue all the postdated
checks agreed upon; failure pay the fees, taxes and other assessments on the
improvements.
Petitioner filed a complaint with the Makati RTC for "Specific Performance with
Prayer for Preliminary Injunction and Damages" against PR on the ground that the
cancellation of the lease contract was arbitrary and capricious.
RTC held that petitioner was not in default nor in arrears in payment of rentals.
However, it found that petitioner violated the "insurance clause" of the contract.
RTC dismissed the complaint, declared the lease contract terminated and ordered
petitioner to immediately return possession of the leased premises to private
respondents. Petitioner appealed to respondent CA which affirmed with
modification RTC’s decision. Hence this petition for review on certiorari. Petitioner
strongly maintains that it is a question of law reviewable and reversible by the
Court.
Issue: W/N the question involve is a question of law or a question of fact.
Ruling: YES. For a question to be one of law it must involve no examination of the
probative value of the evidence presented by the litigants or any of them. And the
distinction is well-known: There is a question of law in a given case when the doubt
or difference arises as to what the law is on a certain state of facts; there is a
question of fact when the doubt arises as to the truth or the falsehood of alleged
facts.
Petitioner has made it very clear that it is not disputing respondent CA's and the
RTC's findings vis-a-vis its failure to designate private respondents as beneficiaries
in the insurance policies it procured on the leased building at the inception of the
lease contract. And from the arguments raised herein by petitioner, this Court is
indeed not called upon to reexamine and appreciate anew any evidence presented
below, and thereafter arrive at a contrary finding. What petitioner is challenging is
solely the respondent CA’s conclusion drawn from these undisputed facts.
This Court in the early case of "Cunanan vs. Lazatin" (74 Phil. 719) has ruled that:
There is no question of fact here because the facts are admittedly proven. Whether
or not the conclusion drawn by the CA from those facts is correct, is a question of
law which this Court is authorized to pass upon.

Martin
Case No. 37
Rule 45. Sec. 4: Contents of Petition (Proper to include in certiorari)
PHILIPPINE GLOBAL COMMUNICATIONS, INC. vs. HON. BENJAMIN RELOVA, in his
capacity as Presiding Judge, Court of First Instance of Manila, Branch XI,
PHILIPPINE TELEGRAPH AND TELEPHONE CORPORATION, CAPITOL WIRELESS, INC.
and RADIO COMMUNICATIONS OF THE PHILIPPINES, INC., respondents.| G.R. No.
L-60548, November 10, 19864

Facts: In this petition for review on certiorari, petitioner seeks to set aside the
decision rendered by respondent Judge Relova in a case pertaining to a declaratory
judgment sought by petitioner for the establishment of a branch station in Cebu
City for the purpose of rendering international telecommunication services from
Cebu City to any point outside the Philippines where it is authorized to operate.

Issue: Whether or not the petition in an appeal by certiorari to the Supreme Court
under Rule 45 requires that judges of lower court be impleaded. (see title in red
font)

Ruling: No. The common error of joining the court or judge who rendered the
decision appealed from as a party respondent in an appeal by certiorari to this
Court under Rule 45 of the Rules of Court; when correctly the only parties in an
appeal by certiorari are the appellant as petitioner and the appellee as respondent:
and it is in the special civil action of certiorari under Section 5 of Rule 65 of the
Rules of Court where the court or judge is required to be joined as a party
defendant or respondent.