Justice Zenaida Laguilles REMEDIAL LAW REVIEW I

Monica S. Cajucom 1

RULE 50
DISMISSAL OF APPEAL

The dismissal of appeal in this Rule is ordered in the
exercise of the appellate jurisdiction of the Court of
Appeals.

An appeal can be dismissed by the Court of
Appeals:
1) on its own motion or motu propio; or
2) on the motion of the appellee

Note: The appellant cannot dismiss his own appeal.
However, he can withdraw his appeal.


GROUNDS UNDER SECTION 1

Section 1 enumerates the 9 grounds for the
dismissal of an appeal. For convenience, the
grounds are separated into two groups.

1) Grounds involving the reglementary period:

(a) Failure of the record on appeal to show on its
face that the appeal was taken within the
period fixed by these Rules

Note: This ground is not the failure to file an
appeal within the reglementary period. An
appeal may have been seasonably filed,
however there is a failure to show such fact in
the record on appeal. In short, this ground
pertains to the failure to aver in the record on
appeal that a timely appeal was taken by the
appellant.

(b) Failure to file the notice of appeal or the record
on appeal within the period prescribed by
these Rules

Notice of appeal 15 days
Record on appeal 30 days

Note: This is the ground of failure to file per se
an appeal within the reglementary period. In
other words, the appeal was taken beyond the
prescribed period.

(c) 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

Appellants brief within 45 days from
notice of the clerk that all evidence are
attached to the record
Memorandum within 15 days in case
of ordinary cases or 30 days in case
of special cases (such as those
actions under Rule 65, quo warranto,
or habeas corpus cases)

(d) 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

Note: The time prescribed in the order is the
shortest possible time which may be on a
case-to-case basis.

2) Other grounds:

(a) Failure of the appellant to pay the docket and
other lawful fees as provided in section 4 of
Rule 41

One must observe these rules:
i. Payment must be made within the
time for taking an appeal
ii. Proof of payment or receipt must be
attached to the notice of appeal or
record on appeal

Non-compliance with the abovementioned will
be considered as non-payment of docket and
other lawful fees.

Note: An incomplete payment will not readily
amount to the dismissal of an appeal. The
court, in the exercise of its sound discretion,
may allow the full satisfaction of the docket
and other lawful fees within a reasonable time.

(b) Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in section 4 of Rule 44

Any unauthorized alteration, omission
or addition is not allowed.

(c) Absence of specific assignment of errors in the
appellants brief, or of page references to the
record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44

To afford convenience to the court
and for organization purposes, a
specific assignment of errors or page
Justice Zenaida Laguilles REMEDIAL LAW REVIEW I

Monica S. Cajucom 2

references to a record on appeal can
save time in studying the substantial
matters of the brief.

Note: However, the court, in the interest of
justice and for the complete disposition of the
case, may determine an issue not specifically
included in the assignment of errors.

(d) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause (Emphasis
supplied)

Note: When there is a valid cause for non-
appearance or non-compliance, there is no
dismissal of the appeal. A valid cause may be
illness or distance.

(e) The fact that the order or judgment appealed
from is not appealable.

Section 1 of Rule 41 enumerates
orders and judgments not appealable:

i. An order denying a motion for new
trial or reconsideration

Remedy: Rule 65 (Certiorari)

ii. An order denying a petition for relief
or any similar motion seeking relief
from judgment

Remedy: Rule 65 (Certiorari)

iii. An interlocutory order

Remedy: Rule 65 (Certiorari)

iv. An order disallowing or dismissing an
appeal

Remedy: Motion for reconsideration
or new trial. If the motion is denied,
file a petition for certiorari under Rule
65.

v. An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or duress,
or any other ground vitiating consent

Note: Such judgment is immediately
executory.

vi. An order of execution

Remedy: Quashal of the writ of
execution based on the following
grounds:
- the order was issued against the
wrong party
- there is a change of situation
- the order was issued without
authority
- the order is defective
- the judgment has already been
satisfied

vii. A judgment or final order for or
against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third-party complaints, while the main
case is pending, unless the court
allows an appeal therefrom

Note: The court may allow an appeal
when the issue at hand is so closely
intertwined with the issue of the main
case pending that the complete
determination thereof is dependent
on such appeal.

viii. An order dismissing an action without
prejudice.

Connect this with the dismissal by the
plaintiff under Rule 17 subject to the
Two-Dismissal Rule.

Under the Two-Dismissal Rule, the
first dismissal by the plaintiff is without
prejudice. The second dismissal is
already with prejudicehence, a
judgment on the merits.

Also relate this with the grounds under
Rule 16 (Motion to Dismiss) where the
dismissal is without prejudice. (e.g.
improper venue)

Remedy: Refile the case.





Justice Zenaida Laguilles REMEDIAL LAW REVIEW I

Monica S. Cajucom 3

OTHER GROUNDS
NOT INCLUDED IN THIS RULE

1) The issue has become moot and academic
2) The appeal is frivolous and dilatory
3) There has been an amicable settlement
4) Failure to file an appellants brief or
memorandum
5) Failure to comply with the contents of the
petition (proof of payment of docket fees and
other lawful fees, material data rule, etc.)


DISMISSAL OF IMPROPER APPEAL

There are two situations in Section 2 of this Rule:

1) An appeal under Rule 41 taken from the Regional
Trial Court to the Court of Appeals raising only
questions of law shall be dismissed, issues purely of
law not being reviewable by said court.

Explanation: This pertains to a petition for review
filed under Rule 41. This deals with questions of fact
or mixed questions of fact and law reviewable by the
CA. However, when the matters contain purely
questions of law, Rule 41 becomes an improper
mode of appeal because said Court has no power to
review purely questions of law. The appeal should
be dismissed. The proper mode of appeal is an
appeal by certiorari under Rule 45 before the
Supreme Court.

2) Similarly, an appeal by notice of appeal instead of
by petition for review from the appellate judgment of
a Regional Trial Court shall be dismissed.

Explanation: A notice of appeal is filed when the
assailed judgment is decided by the RTC in the
exercise of its original jurisdiction. When the appeal
is designated as a notice of appeal but the assailed
judgment has been decided by the RTC in the
exercise of its appellate jurisdiction, it becomes an
improper mode of appeal. Hence, it should be
dismissed. The proper mode of appeal is a petition
for review under Rule 42not a notice of appeal.

Important: An appeal erroneously taken to the Court
of Appeals shall not be transferred to the appropriate
court but shall be dismissed outright.






WITHDRAWAL OF APPEAL

Under Section 3, there are two kinds of withdrawal
of an appeal:

1) As a matter of right
- The appellant may withdraw his appeal as
a matter of right before the filing of the
appellees brief.

Note: An appellee can file his brief within 45
days from the receipt of the appellants brief.

2) In the discretion of the court
- After the filing of the appellants brief.