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VOL.

220, MARCH 31, 1993


733
Some Fundamentals in the Handling of an Appeal
ANNOTATION
SOME FUNDAMENTALS IN THE HANDLING OF AN APPEAL
By
SEVERIANO S. TABIOS
________________
I.Introduction, p. 733
II.Nature of Litigant's Right to Appeal, p. 736
III.Choice of Appropriate Mode for Elevating an Appeal, p. 737
A.Changes in the Mode of Appeal, p. 737
B.Mode of Appeal to the Supreme Court, p. 738
C.Mode of Appeal to the Court of Appeals, p. 739
D.Consequence of Wrong Mode of Appeal, p. 740
IV.Observance of the Period to Appeal, p. 741
A.Perfection of an Appeal, p. 741
B.Period in an Ordinary Appeal, p. 742
C.Period in Special Proceedings and Multiple Appeals, p. 743
D.Consefquence of Failure to Observe the Period to Appeal, p. 743
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I. Introduction
The jurisdiction of the courts to entertain an appeal springs from the fact that the
appeal was perfected on time. Conversely, if the appeal was not perfected on time,
the decision becomes final and executory and the appellate court will be deprived of
jurisdiction to entertain the same and will correspondingly remand the case to the
interior court for execution of the judgment.1 Furthermore, even if the briefs had
already been filed, if
_______________
1 Smith, et. al. vs. Icasiano, et. al., 52 O.G. 757; Caisip, et. al. vs. Cabangon, L14684-86, August 26, 1960.
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Some Fundamentals in the Handling of an Appeal
the appellate court finds that the appeal was not perfected on time, the court will
grant the motion to dismiss2 as the period to perfect an appeal is jurisdictional.3 For
this purpose, the certification of the record on appeal by the trial court after
expiration of the period to appeal cannot restore the jurisdiction which has been
lost.4
Considering that the appellate court can not acquire jurisdiction over the case, even
if the lower court had certified the records thereto,5 it also follows that the interest
of justice can not be invoked to admit an appeal filed out of time unless there is a
lawful justification for its admission.6 Therefore, in the absence of the legal
justification recognized by law, an appeal presented late, even if for only one day,

will have to be dismissed. The orderly administration of justice would suffer a


drawback if the
_______________
2 The ruling of the Supreme Court in Santiago, et. al. vs. Valenzuela, et. al., 78 Phil.
397, that a motion to dismiss an appeal will be denied if filed after appellant had
already submitted his brief, was abandoned and overruled in the case of
Government vs. Antonio, et. al., 15 SCRA 119, 123 (1965). Similarly, the theory of
waiver or estoppel allegedly supported by Luangco, et. al. vs. Herrero, et. al., 17
Phil. 29 and Perkins vs. Perkins, 57 Phil. 223 that a motion to dismiss should be filed
before appellant incurs expenses for the docketing fee and the costs of printing the
record on appeal or the appellant's brief otherwise he will be considered to have
waived the defects, was also rejected in Valdez vs. Acumen, et. al., L-13536, Jan. 29,
1960 and reiterated in Government vs. Antonio, supra.
3 Miranda vs. Guanzon, et. al., 92 Phil. 196; Layda vs. Legaspi, 39 Phil. 83; Lim vs.
Singian, 37 Phil. 817; Valdez vs. Acumen, et. al., supra; Government vs. Antonio, et.
al., supra.
4 Alvero vs. Dela Rosa, 76 Phil. 428, 433; Government vs. Antonio, et. al., supra.;
Luzon Stevedoring Corp. vs. Court of Appeals, et. al., L-27746, July 31, 1970.
5 Roman Catholic Bishop of Tuguegarao vs. Director of Lands, 34 Phil. 623; Estate of
Cordoba and Zarate vs. Alabado, 34 Phil. 920; Bermudez vs. Director of Lands, 36
Phil. 774; Alvero vs. De la Rosa, et. al., 76 Phil. 428, 433; Caisip, et. al. vs.
Cabangon, L-14684, August 26, 1960.
6 The intervention of such circumstances as fraud, accident, mistake and excusable
negligence that creates the interest of justice in favor of the victim of the
cirumstance was recognized as a valid reason in Reyes vs. Court of Appeals, 74 Phil.
235.
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Some Fundamentals in the Handling of an Appeal
period for perfecting appeals be rendered uncertain, as it would be, by sanctioning
the transgression of the deadline.7
The foregoing rule which has evolved in the course of judicial statesmanship
underscores the fact that the right to appeal is a purely statutory right the exercise
of which should conform with the statute. Thus, when the statute fixes thirty days
(now 15 days)8 within which an appeal could be perfected, anybody elevating a
case on appeal cannot take it to mean also thirty one days. If, without legal
justification, transgression of the deadline fixed by the rule for perfecting an appeal
may be sanctioned, the public policy behind that rule would necessarily have to be
abandoned, and the litigants would be at a loss to know exactly when they may
obtain execution of judgments or consider the case terminated.9
As may be observed, exceptions to the general rule were recognized by the
Supreme Court in several cases where considerations of equity and substantial
justice provide the legal justifications for the deviations. For this purpose, in the
case of Republic vs. Court of Appeals,10 a six day delay in the perfection of the
appeal did not warrant its dismissal while in Ramos vs. Bagaso,11 a delay of four
days in the filing of a notice of appeal and a motion for extension of time to file a
record on appeal was excused on the basis of equity. Furthermore, in Serrano vs.

Court of Appeals,12 the Supreme Court allowed the filing of an appeal where a
stringent application of the rules would have denied it because to do so would serve
the demands of substantial justice. Necessarily the Supreme Court declared that
while an appeal is an essential part of our judicial system, courts have been advised
to proceed with caution so as not to deprive a party of the right to appeal13 and to
afford every party litigant the amplest opportu_______________
7 Reyes vs. Court of Appeals, et. al., 74 Phil. 235, 238; Bello vs. Fernando, L-16970,
Jan. 30, 1962; Espartero vs. Ladaw, 49 O. G. 1439; Luzteveco vs. C. A., et. al., L27746, July 31, 1970.
8 Sec. 19 (a), Interim Rules of Court of Jan. 18, 1983.
9 Reyes vs. Court of Appeals, et. al., 74 Phil. 235.
10 72 SCRA 120.
11 96 SCRA 395.
12 139 SCRA 179.
13 NAWASA vs. Mun. of Libmanan, 97 SCRA 138.
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SUPREME COURT REPORTS ANNOTATED
Some Fundamentals in the Handling of an Appeal
nity for the proper and just disposition of his cause, freed from the constraints of
technicality.14
Appropriately, in the 1989 case of United Feature Syndicate, Inc. vs. Munsingwear
Manufacturing Co., et. al.,15 where petitioner's appeal was dismissed by the Court
of Appeals for being filed out of time when its motion for reconsideration filed on the
last day for filing appeal did not interrupt the period of appeal, because it was
declared as a scrap of paper for failing to include a notice of hearing, the Supreme
Court declared that petitioner's delay in filing its record on appeal should not be
strictly construed as to deprive it of the right to appeal since on its face the appeal
appears to be impressed with merit. Accordingly, as procedural technicality should
not prevail over substantive rights of a party to appeal, the court may relax the
stringent application of technical rules in the exercise of equity jurisdiction where
strong considerations of substantial justice are manifest in the case.16
Moreover, where the decision appealed was an interlocutory order and the
erroneous appeal was submitted after the period to appeal had expired, the
Supreme Court held in Province of Pangasinan, et. al. vs. Court of Appeals, et. al.,17
which is the subject of this annotation, since a partial summary judgment is merely
interlocutory, inasmuch as it does not finally dispose of the action, execution thereof
shall not issue. Therefore, as contemplated in Section 4, Rule 34 of the Rules of
Court, an appeal from a partial summary judgment shall be taken together with the
judgment that may be rendered in the entire case after a trial is conducted on the
material facts on which a substantial controversy exists.
II. Nature of Litigant's Right to Appeal
The right to appeal is not a natural right nor a part of due
_______________
14 A-one Feeds, Inc. vs. Court of Appeals, 100 SCRA 590.
15 G. R. No. 76193, November 9, 1989, 179 SCRA 260.

16 United Feature Syndicate, Inc. vs. Munsingwear Creation Mfg. Co., 179 SCRA 260,
266 (1989); Serrano vs. Court of Appeals, et. al., 139 SCRA 179 (1985).
17 G. R. No. 104266, March 31, 1993.
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Some Fundamentals in the Handling of an Appeal
process. It is merely a statutory privilege and may be exercised only in the manner
and in accordance with the provisions of the law that grants it.18 Naturally, it
becomes the duty of appellants to exercise due diligence in the prosecution of their
appeals within the limits prescribed by the law.
The duty of appellants obviously includes that of securing the approval of the record
on appeal, in cases where it is needed,19 and its transmittal to the appellate court
within a reasonable time.20 In this regard, the appellant cannot simply fold his arms
and say that it is the duty of the Clerk of the Regional Trial Court under the
provisions of Section 11, Rule 41 of the Rules of Court to transmit the record on
appeal to the appellate court, because it is appellant's duty to make the clerk act,
and if necessary, procure a court order to compel him to act.21 Necessarily, the
appellant cannot idly sit by and wait till transmittal of the records is done nor can be
afterwards wash his hands and say that the delay in the transmittal of the record on
appeal was not his fault, because this duty imposed on him was precisely to spur on
the slothful.22
III. Choice of Appropriate Mode for Elevating an Appeal
A. Changes in the Mode of Appeals
It may be noted that with the enactment of Republic Act No. 5433 and Republic Act
No. 5440, which both took effect on September 9, 1968, Republic Act No. 6031,
which took effect on August 4,1969, and Batas Pambansa Blg. 129, which took
effect on August 14,1981, the provisions of the Rules of Court prescrib_______________
18 Velasco vs. Court of Appeals, 51 SCRA 439, 448-449 (1973); Bello vs. Fernando, 4
SCRA 135, 138 (1962); Santiago vs. Valenzuela, 78 Phil. 397; Aguila vs. Navarro, 55
Phil. 898.
19 Under Rule 19 (b), Interim Rules, a record on appeal is still needed in cases of
appeals in special proceedings.
20 Montejo vs. Urotia, 40 SCRA 41.
21 Aguirre, et. al. vs. Tampil GR 53556, Dec. 20, 1990.
22 Aguirre, et. al. vs. Tampil, et. al., GR 53556, Dec. 20, 1990; Arcega vs. Court of
Appeals, et. al., GR 79043, Oct. 28, 1988.
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SUPREME COURT REPORTS ANNOTATED
Some Fundamentals in the Handling of an Appeal
ing a common mode of appeal to the Court of Appeals and the Supreme Court and a
common method of passing on and resolving an appeal were largely superseded
and rendered functus officio by said statutes. Thus, under Republic Act No. 5440,
the mode of appeal from courts of first instance (now Regional Trial Courts) to the
Supreme Court in cases involving only questions of law or the constitutionality or a

validity of any treaty, law, ordinance, etc., or the legality of any tax, impost,
assessment or toll, etc., or the jurisdiction of any inferior court, was changed from
an ordinary appeal under Rule 41 to an appeal by certiorari under Rule 45.23 On the
other hand, under Republic Act No. 5433, final judgments of courts of first instance
rendered after trial on the merits in the exercises of their appellate jurisdiction were
required to be elevated to the Court of Appeals only on petition for review and
under Republic Act No. 6031, decisions of courts of first instance when rendered on
cases appealed to them from municipal and city courts having exclusive original
jurisdiction over said cases were given finality, provided that the findings of facts
contained in said decisions were supported by substantial evidence as basis thereof.
Moreover, with the enactment of Batas Pambansa Blg. 129, Republic Act No. 5433
and 6031 were superseded.24
B. Mode of appeals to the Supreme Court
According to the Supreme Court, except in criminal cases where the penalty
imposed is life imprisonment or reclusion perpetua, there is no way at present by
which judgments of regional trial courts may be appealed to the Supreme Court,
except by petition for review on certiorari in accordance with Rule 45 of the Rules of
Court, in relation to Section 17 of the Judiciary Act of 1948, as amended.25 This
proposition was clearly
_______________
23 Resolution of Supreme Court en banc, March 1, 1990.
24 Ibid.
25 Limiting the issues thus appealable to errors or questions of law, or questions
involving constitutionality or validity of any treaty, executive agreement, law,
ordinance, or executive order or regulation; or the legality of any tax, impost,
assessment, or toll, or penalty imposed in relation thereto; or the jurisdiction of an
inferior court.
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Some Fundamentals in the Handling of an Appeal
stated in the Interim Rules, to wit: "Appeals to the Supreme Court shall be taken by
petition for certiorari which shall be governed by Rule 45 of the Rules of Court.26
C. Mode of Appeal to the Court of Appeals
On the other hand, the Supreme Court also declared that it would not be possible to
take an appeal by certiorari to the Court of Appeals. For this purpose, appeals to the
Court of Appeals from the Regional Trial Courts should be perfected in two (2) ways,
both of which are entirely distinct from an appeal by certiorari, namely: (1) by
ordinary appeal, or appeal by writ of errorwhere judgment was rendered in a civil
or criminal action by the RTC in the exercise of original jurisdiction; and (2) by
petition for reviewwhere judgment was rendered by the RTC in the exercise of
appellate jurisdiction.27
The petition for review must be filed with the Court of Appeals within 15 days from
notice of the judgment and shall point out the error of fact or law that will warrant a
reversal or modification of the decision or judgment sought to be reviewed. On the
other hand, an ordinary appeal is taken by merely filing a notice of appeal within 15
days from notice of judgment, except in special proceedings or cases where

multiple appeals are allowed in which event the period of appeal is 30 days and a
record on appeal is necessary.28
Considering the changes above discussed, there is therefore no longer any common
method of appeal in civil cases29 to the Supreme Court and the Court of Appeals.
As already mentioned, appeals to the Supreme Court cannot now be made by
petition for review or by notice of appeals (and, in certain instances, by record on
appeal), but only by petition for review on certiorari under Rule 45. As emphasized
by the Supreme Court as early as 1980 in Buenbrazo vs. Marave, 101 SCRA 849, all
"the members
_______________
26 Resolution of Supreme Court en banc, March 1, 1990.
27 Ibid. See also S. C. Circular No. 2-90, March 9, 1990.
28 See Paragraphs 18 and 19, Interim Rules of Court.
29 In criminal cases, a common method still exists, where the penalty imposed is
reclusion perpetua or life imprisonment.
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SUPREME COURT REPORTS ANNOTATED
Some Fundamentals in the Handling of an Appeal
of the bench and the bar" are charged with knowledge, not only that "since the
enactment of Republic Act No. 6031 in 1969", the review of the decision of the Court
of First Instance (now Regional Trial Court) in a case exclusively cognizable by the
inferior court xxx cannot be made in an ordinary appeal or by record on appeal", but
also that appeal by record on appeal to the Supreme Court under Rule 42 of the
Rules of Court was abolished by Republic Act No. 5440 which, as already stated,
took effect on September 9, 1968".30 Similarly, in Santos vs. Court of Appeals, 152
SCRA 378, the Supreme Court declared that "Republic Act No. 5440 had long
superseded Rule 41 and Section 1, Rule 122 of the Rules of Court on direct appeals
from the court of first instance to the Supreme Court in civil and criminal cases" x x
x and that "direct appeals to the Supreme Court from the trial court on questions of
law had to be through the filing of a petition for review on certiorari, wherein the
Supreme Court could either give due course to the proposed appeal or deny it
outright to prevent the clogging of its docket with unmeritorious and dilatory
appeals."31
D. Consequence of Wrong Mode of Appeal
Appropriately, if an appeal is elevated to either the Court of Appeals or the Supreme
Court by the wrong procedure, the only course of action open is to dismiss the
appeal. No transfers of appeals erroneously taken to the Supreme Court or to the
Court of Appeals to whichever of these tribunals has appropriate jurisdiction will be
allowed.32 In other words, if an appeal is attempted from a judgment of a Regional
Trial Court by notice of appeal, that appeal can and should never go to the Supreme
Court, regardless of any statement in the notice that the court of choice
_______________
30 See Landicho vs. Tensuan, 151 SCRA 410, where the Supreme Court noted the
"common error" of members of the bar attempting to "appeal by record on appeal
and notice of appeal from a decision of the CFI in an appealed case falling within the

exclusive original jurisdiction of the Municipal or City Courts", "the correct remedy
being a petition for review".
31 Resolution of Supreme Court en banc, March 1, 1990.
32 Supreme Court Circular No. 2-90, March 9, 1990.
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Some Fundamentals in the Handling of an Appeal
is the Supreme Court. Again, if an appeal by notice of appeal is taken from the
Regional Trial Court to the Court of Appeals and in the latter court, the appellant
raises naught but issues of law, the appeals should be dismissed for lack of
jurisdiction, because issues purely of law is not reviewable by the Court of
Appeals.33 Also, if an appeal is essayed from the judgment rendered by a Regional
Trial Court in the exercise of its appellate jurisdiction by notice of appeal, instead of
by petition for review, the appeal is inefficacious and should be dismissed. Finally,
the Supreme Court stressed that it is only through petitions for review on certiorari
that the appellate jurisdiction of the Supreme Court may properly be invoked.34
IV. Observance of the Period to Appeal
A. Perfection of an Appeal
It appears that before the Revised Rules of Court was amended in part by Batas
Pambansa Blg. 129, the perfection of an appeal consisted of two stages, namely: (1)
the filing by the appellant of an appeal notice, an appeal bond and a record on
appeal; and (2) the approval by the court of the appeal bond and record on
appeal.35 However, with the enactment of Batas Pambansa Blg. 129 and the
issuance of the interim Rules of Court and Guidelines relative thereto, the perfection
of an appeal was changed and should now be reckoned from the expiration of the
last day to appeal by any party.36 Thus, if a party who had received a copy of a
lower court's decision on October 5, 1985 took an appeal on the same date that he
was notified of the decision and the court issued its order on October 9, 1985
directing the transmittal of the records and transcript of stenographic notes to the
Intermediate Appellate Court (now Court of Appeals), his appeal could not have
been perfected on the date that the lower court trans_______________
33 Ibid.
34 Caina vs. People, 213 SCRA 309, 313 (1992) citing S. C. Resolution, entitled
Murillo vs. Consul, UDK-9748, March 1, 1990.
35 Rule 41, Sec. 9, Revised Rules of Court.
36 Go It Bun vs. Dizon, 214 SCRA 41, 50 (1992); Contractors Consortium Co. vs.
Court of Appeals, 216 SCRA 597, 600 (1992).
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SUPREME COURT REPORTS ANNOTATED
Some Fundamentals in the Handling of an Appeal
mitted the records of the case to the appellate court, because under the Interim
Rules of Court the perfection of an appeal takes effect upon the expiration of the
last day to appeal by any party. Necessarily, if he were the last party to appeal, his
appeal would be considered perfected on October 21, 1985 after the expiration of

his period to appeal. Therefore, should the prevailing party file a motion for
execution pending appeal on October 11, 1985, the lower court that rendered the
decision would still have jurisdiction to entertain the motion, because it is only upon
the perfection of the appeal that the trial court loses jurisdiction over the case.37
B. Period in Ordinary Appeal
As clarified by the Supreme Court, ordinary appeals may now be made by mere
notice of appeal within fifteen (15) days from notice of the decision.38 Where more
than one attorney appears for a party, notice to one would suffice upon the
assumption that he would notify or relay the notice to his colleagues in the case;
but, if all the lawyers are given notices, the earliest date of receipt thereof by one of
them is the starting point from which the reglementary period to comply with what
is required is to be counted.39 In an ordinary appeal from the final judgment or
order of a metropolitan or municipal court to the regional trial court, and from the
regional trial court to the Court of Appeals in actions or proceedings originally filed
in the regional trial court, the fifteen-day period for appeal provided by Section 39 of
B.P. No. 129 and Section 19 (a) of the Interim Rules and Guidelines is extended by
one day if the last day for perfection of appeal is a holiday.40 Likewise, if the last
day of appeal falls on a Sunday, the period of appeal is ipso jure extended to the
first working day following.41 In this regard, while the running of the period to
_______________
37 Magtibay vs. Court of Appeals, 166 SCRA 177, 179 (1988).
38 Go It Bun vs. Dizon, 214 SCRA 51 (1992).
39 Bolanos vs. Intermediate Appellate Court, 138 SCRA 99, 104105 (1985); Ortega
vs. Pacho, 98 Phil. 618.
40 Mintu vs. Court of Appeals, 53 SCRA 114.
41 Quiqui vs. Boncaros, 151 SCRA 416 (U1987); Delas Alas vs. Court of Appeals, 83
SCRA 200 (1978).
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Some Fundamentals in the Handling of an Appeal
perfect an appeal is interrupted or suspended by a motion for new trial or
reconsideration,42 however, it is not suspended by a motion for extension filed
within the reglementary period but not acted upon until the period lapses.43
Accordingly, where a motion for new trial or reconsideration is filed but denied, the
moving party has only the remaining period from notice of denial within which to file
a notice of appeal, which is the only requirement for taking an appeal under the
present rules. Obviously, no extension of time to file such a notice of appeal is
needed, much less allowed.44
C. Period in Special Proceedings and Multiple Appeals
On the other hand, regarding appeals in special proceedings and other cases
wherein multiple appeals are allowed, the Supreme Court declared that the period
of appeal is thirty days, a record on appeal being required. In this regard, if a motion
for new trial or reconsideration is filed and denied, the remaining period within
which to file a record on appeal may be too short and, hence, a motion for extension
of time to file the record on appeal may be granted, subject to the requirements
summarized in the Resolution of May 30, 1986. As the Supreme Court stated in
Roque vs. Gunigundo, 89 SCRA 178, "the thirty day period may be extended

because where the record is voluminous or the appellant has other pressing matters
to attend to, it may not be practicable to submit the record on appeal within the
reglementary period".45
D. Consequence of Failure to Observe the Period to Appeal
Appropriately, if an appeal was not filed within the reglementary period, the
judgment becomes final. As pointed out by the Supreme Court, the legality of the
allowance of an appeal
_______________
42 Lacsamana vs. IAC, 143 SCRA 643, 648 (1986); Habaluyas Enterprises, Inc. vs.
Japson, 138 SCRA 46, 48 (1985).
43 Prov'l. Sheriff of Rizal vs. Court of Appeals, 68 SCRA 329; Berkenkotter vs. Court
of Appeals, 53 SCRA 226.
44 Lacsamana vs. IAC, 143 SCRA 643, 648 (1986).
45 Lacsamana vs. IAC, 143 SCRA 643, 6489 (1986).
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SUPREME COURT REPORTS ANNOTATED
Some Fundamentals in the Handling of an Appeal
and of the denial of a motion to dismiss the appeal by the trial court and the
appellate court, to which the appeal has been forwarded, may always be raised,
because it concerns the jurisdiction of the appellate court, a point which may be
raised at any stage of the proceedings in the appellate court.46 For this reason, the
party who seeks to avail of the right to appeal must comply with the requirements
of the rules, because the right to appeal is a statutory right and no one but the
appellant will be blamed for losing it.47
o0o
_______________
46 Garganta vs. Court of Appeals, 56 O.G. 4323, 4327; Galima vs. Court of Appeals,
16 SCRA 140, 143-144.
47 Tan vs. Court of Appeals, 213 SCRA 316, 320 (1992); Tiatco vs. Civil Service
Commission, 216 SCRA 749, 753 (1992); Mendez vs. Civil Service Commission, 204
SCRA 965 (1991); Ozaeta vs. Court of Appeals, 179 SCRA 800 (1989).
[Some Fundamentals in the Handling of an Appeal, 220 SCRA 733(1993)]