VOL.

449,JANUARY19,2005

57

Republic vs. BermudezLorino

*

G.R.No.160258.January19,2005.

REPUBLIC OF THE PHILIPPINES, petitioner, vs.

GLORIABERMUDEZLORINO,respondent.
Remedial Law; Appeals; In Summary Judicial Proceedings
under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family Code, are
immediately final and executory.In Summary Judicial
ProceedingsundertheFamilyCode,thereisnoreglementaryperiod
within which to perfect an appeal, precisely because judgments
rendered thereunder, by express provision of Section 247, Family
Code, supra, are immediately final and executory. It was
erroneous, therefore, on the part of the RTC to give due course to
theRepublicsappealandorderthetransmittaloftheentirerecords
ofthecasetotheCourtofAppeals.
Same; Same; An appellate court acquires no jurisdiction to
review a judgment which by express provision of law, is immediately
final and executory.An appellate court acquires no jurisdiction to
review a judgment which, by express provision of law, is
immediately final and executory. As we have said in Veloria vs.
Comelec,therighttoappealisnotanaturalrightnorisitapartof
dueprocess,foritismerelyastatutoryprivilege.Since,byexpress
mandateofArticle247oftheFamilyCode,alljudgmentsrendered
in summary judicial proceedings in Family Law are immediately
finalandexecutory,therighttoappealwasnotgrantedtoanyof
thepartiestherein.TheRepublicofthePhilippines,asoppositorin
the petition for declaration of presumptive death, should not be
treated differently. It had no right to appeal the RTC decision of
November7,2001.

PETITIONforreviewoncertiorariofadecisionoftheCourt
ofAppeals.
ThefactsarestatedintheopinionoftheCourt.
The Solicitor Generalforpetitioner.
_______________
* THIRDDIVISION.

58

58

SUPREMECOURTREPORTSANNOTATED
Republic vs. BermudezLorino

Antonio Enrile Inton, Jr.forrespondent.

GARCIA,J.:
Via this petition for review on certiorari under Rule 45 of
the Rules of Court, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG),
seeks the reversal and setting aside of the decision dated
September23,2003oftheCourtofAppealsinCAG.R.CV
No.73884, which affirmed on appeal an earlier decision of
the Regional Trial Court (RTC) at San Mateo, Rizal in a
summary judicial proceeding thereat commenced by the
herein respondent Gloria BermudezLorino for the
declarationofthepresumptivedeathofherabsentspouse,
FranciscoLorino,Jr.,basedontheprovisionsofArticle41of
theFamilyCode,forpurposesofremarriage.
Thefactsmaybesummarized,asfollows:
RespondentGloriaBermudezLorino(Gloriaforbrevity),
andherhusbandweremarriedonJune12,1987.Outofthis
marriage, she begot three (3) children, namely: Francis
Jeno,FriaLouandFatima.
Before they got married in 1987, Gloria was unaware
that her husband was a habitual drinker, possessed with
violentcharacter/attitude,andhadthepropensitytogoout
withfriendstotheextentofbeingunabletoengageinany
gainfulwork.
Becauseofherhusbandsviolentcharacter,Gloriafound
it safer to leave him behind and decided to go back to her
parents together with her three (3) children. In order to
supportthechildren,Gloriawascompelledtoworkabroad.
From the time of her physical separation from her
husbandin1991,Gloriahasnotheardofhimatall.Shehad
absolutelynocommunicationswithhim,orwithanyofhis
relatives.
On August 14, 2000, nine (9) years after she left her
husband, Gloria filed a verified petition with the Regional
Trial Court (RTC) at San Mateo, Rizal under the rules on
Summary
59

VOL.449,JANUARY19,2005

59

Republic vs. BermudezLorino

Judicial Proceedings in the Family Lawprovidedforinthe
FamilyCode,whichpetitionwasdocketedinthesamecourt
asSpecialProceedingNo.32500SM.
OnAugust28,2000,theRTCissuedanorderdirecting,
inter alia,thepublicationofthepetitioninanewspaperof
generalcirculation,thus:
A verified petition was filed by herein petitioner through counsel
alleging that she married Francisco Lorino, Jr. on June 12, 1987
butbecauseoftheviolentcharacterofhishusband,shedecidedto
gobacktoherparentsandlivedseparatelyfromherhusband.After
nine (9) years, there was absolutely no news about him and she
believes that he is already dead and is now seeking through this
petition for a Court declaration that her husband is judicially
presumeddeadforthepurposeofremarriage.

Finding the said petition to be sufficient in form and substance,

the same is hereby set for hearing before this Court on September
18, 2000 at 8:30 oclock in the morning at which place, date and
time, any or all persons who may claim any interest thereto may
appearandshowcausewhythesameshouldnotbegranted.
LetacopyofthisOrderbepublishedinanewspaperofgeneral
circulation in this province once a week for three (3) consecutive
weeksandbepostedinthebulletinboardsoftheHallofJusticeand
the Municipal Hall, San Mateo, Rizal, all at the expense of the
petitioner.
Furnish the Office of the Solicitor General a copy of this Order
together with a copy of the petition. Further, send a copy of this
Order to the last known address of Francisco Lorino, Jr. at 719
BurgosSt.,Sta.Elena,MarikinaCity.
1
SOORDERED.

Theevidenceinsupportofthesummaryjudicialproceeding
are:theorderofpublicationdatedAugust28,2000(Exhibit
A); affidavit
of publication dated September 16, 2000
2
(ExhibitB) ;copiesofthenewspaperswheretheorderap
_______________
1Records,p.9.
2Records,pp.1011.

60

60

SUPREMECOURTREPORTSANNOTATED
Republic vs. BermudezLorino
3

peared (Exhibits C to E1) ; a deposition dated

September
4, 2000 of Gloria taken in Hong Kong (Exhibit
4
G) ;GloriasaffidavitdatedOctober21,1999,alsoexecuted
5
in Hong Kong (Exhibit G1) ; and a certification by
Department of Foreign Affairs Authentication Officer,
Catalina C. Gonzalez, dated November 3, 1999, therein
certifyingthatthesignatureofViceConsulAdrianeBernie
C. Candolada, appearing below the jurat in Glorias
6
affidavitofOctober21,1999,isauthentic(ExhibitG2) .
InadecisiondatedNovember7,2001,theRTC,finding
meritinthesummarypetition,renderedjudgmentgranting
thesame,towit:
WHEREFORE, this Court in view of the facts and circumstances
obtaining, finds the petition with merit and hereby grants its
imprimatur to the petition. Judgment is hereby rendered declaring
thepresumptivedeath/absenceofFranciscoLorino,Jr.pursuantto
Art. 41 of the New Family Code but subject to all restrictions and
conditionsprovidedtherein.
7
SOORDERED.

Despite the judgment being immediately final and

executoryundertheprovisionsofArticle247oftheFamily
Code,thus:
Art. 247.Thejudgmentofthecourtshallbeimmediatelyfinaland
executory,

the Office of the Solicitor General, for the Republic

of the
8
Philippines,neverthelessfiledaNoticeofAppeal. Acting
_______________
3Records,pp.1215.
4Records,pp.3740.
5Records,p.42.
6Records,p.41.
7RTCDecision,p.2;Records,pp.5152.
8Records,p.53.

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61

Republic vs. BermudezLorino

thereon, the RTC had the records elevated to the Court of
AppealswhichdocketedthecaseasCAG.R.CVNo.73884.
In a decision dated September 23, 2003, the Court of
Appeals, treating the case as an ordinary appealed case
under Rule 41 of the Revised Rules on Civil Procedure,
denied the Republics appeal and accordingly affirmed the
appealedRTCdecision:
WHEREFORE,basedontheforegoingpremises,theinstantappeal
is DENIED. Accordingly, the appealed November 7, 2001 Decision
of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No.
32500SMisherebyAFFIRMED.
9
SOORDERED.

Without filing any motion for reconsideration, petitioner

RepublicdirectlywenttothisCourtviatheinstantrecourse
underRule45,maintainingthatthepetitionraisesapure
questionoflawthatdoesnotrequirepriorfilingofamotion
forreconsideration.
The foregoing factual antecedents present to this Court
thefollowingissues:
WHETHER OR NOT THE COURT OF APPEALS DULY
ACQUIRED JURISDICTION OVER THE APPEAL ON A FINAL
AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL
COURT;and
WHETHERORNOTTHEFACTUALANDLEGALBASESFOR
A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY
ESTABLISHEDINTHISCASE.

TheCourtrulesagainstpetitionerRepublic.
Article 238 of the Family Code, under Title XI:
SUMMARYJUDICIALPROCEEDINGSINTHEFAMILY
LAW,setsthetenorforcasescoveredbytheserules,towit:
_______________
9Rollo,pp.2226.

62

62

SUPREMECOURTREPORTSANNOTATED
Republic vs. BermudezLorino

Art. 238. Until modified by the Supreme Court, the procedural

rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided
inanexpeditiousmannerwithoutregardtotechnicalrules.

Judge Elizabeth BalquinReyes of RTC, Branch 75, San

Mateo, Rizal duly complied with the abovecited provision
by expeditiously rendering judgment within ninety (90)
daysaftertheformalofferofevidencebythereinpetitioner,
GloriaBermudezLorino.
Theproblemcameaboutwhenthejudgegaveduecourse
to the Republics appeal upon the filing of a Notice of
Appeal, and had the entire records of the case elevated to
theCourtofAppeals,statinginherorderofDecember18,
2001,asfollows:
Notice of Appeal having been filed through registered mail on
November 22, 2001 by the Office of the Solicitor General who
receivedacopyoftheDecisioninthiscaseonNovember14,2001,
within the reglementary period fixed by the Rules, let the entire
records of this case be transmitted to the Court of Appeals for
furtherproceedings.
10
SOORDERED.

InSummaryJudicialProceedingsundertheFamilyCode,
thereisnoreglementaryperiodwithinwhichtoperfectan
appeal, precisely because judgments rendered thereunder,
byexpressprovisionofSection247,FamilyCode,supra,are
immediately final and executory. It was erroneous,
therefore,onthepartoftheRTCtogiveduecoursetothe
Republics appeal and order the transmittal of the entire
recordsofthecasetotheCourtofAppeals.
An appellate court acquires no jurisdiction to review a
judgmentwhich,byexpressprovisionoflaw,isimmediately
final and
executory. As we have said in Veloria vs.
11
Comelec,
_______________
10Records,p.56.
11211SCRA907(1992).

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Republic vs. BermudezLorino

therighttoappealisnotanaturalrightnorisitapartof
dueprocess,foritismerelyastatutoryprivilege.Since,by
express mandate of Article 247 of the Family Code, all
judgments rendered in summary judicial proceedings in
Family Law are immediately final and executory, the
righttoappealwasnotgrantedtoanyofthepartiestherein.
TheRepublicofthePhilippines,asoppositorinthepetition
fordeclarationofpresumptivedeath,shouldnotbetreated

differently. It had no right to appeal the RTC decision of

November7,2001.
It was fortunate, though, that the Court of Appeals,
actingthroughitsSpecialFourthDivision,withJusticeElvi
JohnS.AsuncionasActingChairmanandponente,denied
theRepublicsappealandaffirmedwithoutmodificationthe
finalandexecutoryjudgmentofthelowercourt.For,aswe
12
haveheldinNacuray vs. NLRC:
Nothingismoresettledinlawthanthatwhenajudgmentbecomes
final and executory it becomes immutable and unalterable. The
same may no longer be modified in any respect, even if the
modificationismeanttocorrectwhatisperceivedtobeanerroneous
conclusionoffactorlaw,andwhethermadebythehighestcourtof
theland(citingNunal v. Court of Appeals,G.R.No.94005,6April
1993,221SCRA26).

But, if only to set the records straight and for the future
guidanceofthebenchandthebar,letitbestatedthatthe
RTCs decision dated November 7, 2001, was immediately
final and executory upon notice to the parties. It was
erroneousfortheOSGtofileanoticeofappeal,andforthe
RTC to give due course thereto. The Court of Appeals
acquired no jurisdiction over the case, and should have
dismissedtheappealoutrightonthatground.
ThisjudgmentofdenialwaselevatedtothisCourtviaa
petition for review on certiorari under Rule 45. Although
theresultoftheCourtofAppealsdenialoftheappealwould
_______________
12270SCRA9(1997).

64

64

SUPREMECOURTREPORTSANNOTATED
Republic vs. BermudezLorino

apparently be the same, there is a big difference between

havingthesupposedappealdismissedforlackofjurisdiction
by virtue of the fact that the RTC decision sought to be
appealedisimmediatelyfinalandexecutory,andthedenial
oftheappealforlackofmerit.Intheformer,thesupposed
appelleecanimmediatelyaskfortheissuanceofanEntryof
JudgmentintheRTC,whereas,inthelatter,theappellant
canstillraisethemattertothisCourtonpetitionforreview
andtheRTCjudgmentcannotbeexecuteduntilthisCourt
makesthefinalpronouncement.
TheCourt,therefore,findsinthiscasegraveerroronthe
part of both the RTC and the Court of Appeals. To stress,
the Court of Appeals should have dismissed the appeal on
ground of lack of jurisdiction, and reiterated the fact that
the RTC decision of November 7, 2001 was immediately
final and executory. As it were, the Court of Appeals
committed grave reversible error when it failed to dismiss
the erroneous appeal of the Republic on ground of lack of
jurisdiction because, by express provision of law, the
judgmentwasnotappealable.
WHEREFORE, the instant petition is hereby DENIED

forlackofmerit.Nopronouncementastocosts.
SOORDERED.
SandovalGutierrez, CoronaandCarpioMorales, JJ.,
concur.
Panganiban, J.,Intheresult.CertiorariunderRule
65,notreviewunderRule45,istheOSGsremedy.
Petition denied.
Note.The right to appeal is not a constitutional,
natural or inherent right. It is a statutory privilege of
statutoryoriginandtherefore,availableonlyifgrantedor
provided by statute. (Yao vs. Court of Appeals, 344 SCRA
202[2000])
o0o
65

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