CHAPTER X

REMEDIES AGAINST JUDGMENTS OR FINAL

ORDERS

in writing stating the ground or grounds therefor, a written

notice of which shall be served by the movant on the adverse
party.

The remedies against a judgment or final order depend on

whether or not said judgment or order has become final. The
word final is used in the sense that the judgment or final
order is no longer appealable.

A motion for new trial shall be proved in the manner provided

for proof of motion. A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.

REMEDIES BEFORE
JUDGMENT

THE

FINALITY

OF

1. Motion for Reconsideration

Sec. 1, Rule 37. Grounds of and period for filing motion for
new trial or reconsideration. Within the period for taking an
appeal, the aggrieved party may move the trial court to set
aside the judgment or final order and grant a new trial for one
or more of the following causes materially affecting the
substantial
rights
of
said
party:
(a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired
in
his
rights;
or
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the
trial, and which if presented would probably alter the result.
Within the same period, the aggrieved party may also move
for reconsideration upon the grounds that the damages
awarded are excessive, that the evidence is insufficient to
justify the decision or final order, or that the decision or final
order is contrary to law. (1a)
Grounds for a Motion for Reconsideration
1.
2.
3.

The damages awarded are excessive

The evidence is insufficient to justify the judgment or
final order, or
The decision or final order is contrary to law (Sec. 1,
Rule 37)

A motion for reconsideration shall point out a specifically the

findings or conclusions of the judgment or final order which
are not supported by the evidence or which are contrary to law
making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
such
findings
or
conclusions.
A pro forma motion for new trial or reconsideration shall not
toll the reglementary period of appeal. (2a)
Sec. 5, Rule 15. Second motion for new trial. A motion for
new trial shall include all grounds then available and those not
so included shall be deemed waived. A second motion for new
trial, based on a ground not existing nor available when the
first motion was made, may be filed within the time herein
provided excluding the time during which the first motion had
been
pending.
No party shall be allowed a second motion for reconsideration
of a judgment or final order (4a, 4, IRG)
A motion for reconsideration or a motion for new trial which
does not contain a notice of hearing does not merit any
consideration. Without the required notice, it is not a motion.
It does not therefore suspend the running of the period within
which to perfect an appeal. (Firme v. Reyes)
Effect of a Pro Forma Motion for Reconsideration
A pro forma motion shall not toll the reglementary period for
appeal. (Sec. 2, Rule 37)

Period for Filing the Motion

When Considered Pro Forma
The motion shall be filed within the period for taking an
appeal. (Sec. 1, Rule 37)

Where to File
The motion shall be filed with the trial court, i.e., the court
which rendered the judgment.
Contents and Form of the Motion
Sec. 2, Rule 37. Contents of motion for new trial or
reconsideration and notice thereof. The motion shall be made

A motion for reconsideration may be considered pro

forma when it does not satisfy the requirements of the
rules and will be treated as one intended only to delay
the proceedings.
When the movant fails to make reference to the
testimonial and documentary evidence on record or
the provisions of law alleged to be contrary to the
trial courts conclusions. It is not enough that an MfR
should state the part of the decision that is contrary to
law or the evidence. It should also point out why it is

1 | Page

so. Failure to explain why will render the motion pro

forma.
A motion which in its substance is a mere reiteration
of reasons and arguments previously set forth in the
trial and based on the same grounds may be
considered pro forma.

However, the reiteration in the motion of issues already passed

upon by the court does not by itself make the motion pro
forma if it essentially complies with the requirements of the
Rules of Court.

Although a motion for reconsideration is a prohibited motion,

a court on its own may alter, modify, or even set aside its own
decisions before they become final. The refusal of the court to
act would render nugatory the very purpose of prohibiting an
MfR which is give speedy justice.
2. Motion for New Trial
Grounds for a Motion for New Trial
Sec. 1, Rule 37.

Period to Resolve the Motion

1.

Sec. 4, Rule 37. Resolution of motion. A motion for new trial

or reconsideration shall be resolved within thirty (30) days
from the time it is submitted for resolution. (n)

2.

Effect of Granting the Motion

Sec. 3, Rule 37. Action upon motion for new trial or
reconsideration. The trial court may set aside the judgment or
final order and grant a new trial, upon such terms as may be
just, or may deny the motion. If the court finds that excessive
damages have been awarded or that the judgment or final
order is contrary to the evidence or law, it may amend such
judgment or final order accordingly. (3a)
Sec. 7, Rule 37. Partial new trial or reconsideration. If the
grounds for a motion under this Rule appear to the court to
affect the issues as to only a part, or less than an of the matter
in controversy, or only one, or less than all, of the parties to it,
the court may order a new trial or grant reconsideration as to
such issues if severable without interfering with the judgment
or final order upon the rest. (6a)
Remedy Against an Order Denying the Motion for
Reconsideration
Sec. 9, Rule 37. Remedy against order denying a motion for
new trial or reconsideration. An order denying a motion for
new trial or reconsideration is not appealed, the remedy being
an appeal from the judgment or final order. (n)
Motion for reconsideration under the 1991 Revised Rule
on Summary Procedure
Sec. 19 (c), IV. Prohibited pleadings and motions. The
following pleadings, motions or petitions shall not be allowed
in the cases covered by this Rule:
(c) Motion for new trial, or for reconsideration of a judgment,
or for opening of trial;
There is no summary procedure in the RTC. The motion for
reconsideration filed in the RTC is not prohibited in
proceedings in the RTC.

Fraud, accident, mistake, or excusable negligence

which ordinary prudence could not have guarded
against and by reason of which such aggrieved party
has probably been impaired in his rights.
Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced
at the trial, and which if presented would probably
alter the result.

Sec. 5, Rule 37. . Second motion for new trial. A motion for
new trial shall include all grounds then available and those not
so included shall be deemed waived. A second motion for new
trial, based on a ground not existing nor available when the
first motion was made, may be filed within the time herein
provided excluding the time during which the first motion had
been
pending.
No party shall be allowed a second motion for reconsideration
of a judgment or final order (4a, 4, IRG)
If the ground is that the decision is contrary to law, the
remedy is not a motion for new trial but a motion for
reconsideration (?) within the period for appeal.
Motion for a New Trial
Proper only after a judgment
has
been
rendered
or
promulgated
With specific provisions in the
Rules of Court

Motion to Reopen the Trial

Presented before judgment
but after the parties have
formally offered and closed
their evidences
No specific provisions in the
Rules of Court

Fraud as a Ground for New Trial

Fraud as a ground for review, must be extrinsic or collateral.
Extrinsic or collateral fraud connotes any fraudulent scheme
executed by the prevailing party outside of the trial against the
losing party who because of such fraud is prevented from
presenting his side of the cause.
Keeping a party away from the court by a false
promise of a compromise, purposely keeping him
ignorant of the suit, fraudulent pretending to
represent a party and conniving or the selling out by
an attorney of his clients interest.
Deliberately failing to notify a party entitled to notice

2 | Page

Intrinsic fraud is an act of a party during the trial but which

did not affect the presentation of the case. It is not sufficient
to attack a judgment.
The introduction of fabricated and the employment of
false testimony are intrinsic fraud.
Mistake as a Ground for New Trial
A mistake exists when a person under some erroneous
conviction of law or fact, does, or omits to do, some act
which, but for the erroneous conviction, he would not have
done or omitted. It may arise either from unconscious,
ignorance, forgetfulness, imposition, or misplaced confidence.
Where a party failed t file an answer thinking that
because a compromise was about to be entered into,
there was no need to participate in the proceedings.
Accident as a Ground for New Trial
Accident may be defined as an event that takes place without
ones foresight or expectation; an undersigned, sudden, and
unexpected evidence.
In an accident, a party claiming the benefit of an
accident must not be negligent.
An illness may be considered an accident.
Loss or delay in the mails may be deemed an
accident.
Excusable Negligence as a Ground for New Trial
See example (p. 624)
Newly Discovered Evidence as a Ground for New Trial

Sec. 2, Rule 37. Contents of motion for new trial or

reconsideration and notice thereof. The motion shall be made
in writing stating the ground or grounds therefor, a written
notice of which shall be served by the movant on the adverse
party.
A motion for new trial shall be proved in the manner provided
for proof of motion. A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out a specifically the
findings or conclusions of the judgment or final order which
are not supported by the evidence or which are contrary to law
making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
such
findings
or
conclusions.
A pro forma motion for new trial or reconsideration shall not
toll the reglementary period of appeal. (2a)
Sec. 5, Rule 15. Notice of hearing. The notice of hearing shall
be addressed to all parties concerned, and shall specify the
time and date of the hearing which must not be later than ten
(10) days after the filing of the motion. (5a)
If the motion is based on fraud, accident, mistake or excusable
negligence, the motion shall be supported by an affidavit of
merit (Sec. 2, Rule 37).

Requisites:
1.
2.
3.

The evidence had been discovered after the trial

The evidence could not have been discovered and
produced during the trial even with the exercise of
reasonable diligence
The evidence is material, not merely corroborative,
cumulative or impeaching and is of such weight that
if admitted would probably alter the result

Period for Filing the Motion

The motion shall be filed within the period for taking an
appeal. (Sec. 1, Rule 37)
Where to File
The motion shall be filed with the trial court, i.e., the court
which rendered the judgment.
Contents and Form of the Motion

An affidavit of merit is not required except when the

motion is based either upon fraud, accident, mistake
or excusable negligence.
An affidavit is not necessary when the granting of the
motion is a matter of right.
o Where the movant has been deprived of his
day in court without his fault or negligence,
there being no notice sent to him to enable
him to prepare for trial, the judgment would
be absolutely void and no showing of merit
is necessary to support an application to
have the judgment

Effect of a Pro Forma Motion for New Trial

A pro forma motion for new trial shall not toll the
reglementary period for appeal. (Sec. 2, Rule 37)
Period to Resolve the Motion
Sec. 5, Rule 37. A second motion for new trial, based on a
ground not existing nor available when the first motion was
made, may be filed within the time herein provided excluding
the time during which the first motion had been pending.

3 | Page

Effect of Granting a Motion for New Trial

Sec. 6, Rule 37. Effect of granting of motion for new trial. If
a new trial is granted in accordance with the provisions of this
Rules the original judgment or final order shall be vacated,
and the action shall stand for trial de novo; but the recorded
evidence taken upon the former trial, insofar as the same is
material and competent to establish the issues, shall be used at
the new trial without retaking the same. (5a)
Sec. 7, Rule 37. Partial new trial or reconsideration. If the
grounds for a motion under this Rule appear to the court to
affect the issues as to only a part, or less than an of the matter
in controversy, or only one, or less than all, of the parties to it,
the court may order a new trial or grant reconsideration as to
such issues if severable without interfering with the judgment
or final order upon the rest. (6a)
Remedy Against an Order Denying a Motion for New Trial
Sec. 8, Rule 37.
Distinctions Between a Motion for New Trial and a Motion
for Reconsideration

As to grounds
As to effect of
granting
the
motion

As to availability

As to number of
motions which
may be filed

Motion for New

Trial
different
When the motion
for new trial is
granted,
the
judgment or final
order is set aside,
the case stands
trial de novo and
the case is tried
anew.
A motion for
new
trial
is
available even
on appeal but
only on the
ground of newly
discovered
evidence
A second motion
for new trial may
be based on
grounds
not
available when
the first motion
was filed.

3. Appeal
Meaning and Nature of an Appeal

Motion for
Reconsideration
different
When a motion for
reconsideration
is
granted, the judgment
is
amended
accordingly but there
is no more trial.

A
motion
for
reconsideration
is
available against the
judgments or final
orders of both the trial
and appellate courts.
A second motion for
reconsideration is not
allowed.

An appeal is the resort to a superior or appellate court to

review the decision of an inferior court or an administrative
agency. An appeal presupposes that the court has jurisdiction
over the subject matter and the persons of the parties. An
appeal corrects only errors of judgment, i.e., errors in
conclusions of law or fact. It is a statutory privilege. However,
if a defendant is by law entitled to appeal, mandamus will lie
if appeal is refused.
A motion for reconsideration or a motion for a new trial is not
a prerequisite to an appeal.
If the error is one of jurisdiction because the act complained of
was performed by a court, officer or a quasi-judicial body
without jurisdiction, or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction, the error
is not correctible by appeal but by extraordinary writ of
certiorari. Certiorari, unlike appeal, is an extraordinary remedy
because it is available only when there is no appeal nor any
plain, speedy or adequate remedy in the ordinary course of
law. Certiorari under Rule 65 cannot be a substitute for lost
appeal.
Strict Compliance with the Rules on Appeal; Exception
Gen. Rule: the party who wants to appeal must comply with
the rules because strict compliance is indispensable for the
prevention of needless delays and for the orderly dispatch of
judicial business.
Exception: In order to serve the demands of justice and in the
exercise of equity jurisdiction. (to serve ends of justice and
prevent grave miscarriage of justice)
Subject of Appeal
Sec. 1, Rule 41. 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:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any similar motion
seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) 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;
(f) An order of execution;

4 | Page

(g) A judgment or final order for or against one or more of

several parties or in separate claims, counterclaims, crossclaims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is
not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65. (n)
An issue not raised in the trial court cannot be allowed to be
raised for the first time on appeal without offending basic rules
of fair play, justice, and due process.
A court is clothed with ample authority to review matters even
if they are not assigned as errors in the appeal, if it find that
their consideration is necessary in arriving at a just decision of
the case.

Where to Appeal
Sec. 1, Rule 40. Where to appeal. An appeal from a judgment
or final order of a Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over the area to
which the former pertains.
Title of the case
Sec. 1, Rule 40. The title of the case shall remain as it was in
the court of origin, but the party appealing the case shall be
further referred to as the appellant and the adverse party as the
appellee. (a)
Designation of the Parties
Sec. 1, Rule 40, supra.
When to Appeal

Gen. Rule: Conclusions and findings of fact by the trial court

are entitled to great weight and should not be disturbed on
appeal, unless strong and cogent reasons dictate otherwise.
This is because the trial court is in a better position to examine
the real evidence, as well as to observe the demeanor of the
witnesses while testifying in the case.

Sec. 2, Rule 40. When to appeal. An appeal may be taken

within fifteen (15) days after notice to the appellant of the
judgment or final order appealed from. Where a record on
appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days after notice of
the judgment or final order.

Exceptions:
1. When the inference made is manifestly absurd or
impossible
2. When there is grave abuse of discretion
3. When the finding is grounded entirely on
speculations, surmises or conjectures
4. When the judgment is based on misapprehension of
facts
5. When the findings are conflicting
6. When the findings of the CA are contrary to those of
the trial court
7. When the findings of facts are conclusions without
citation of specific evidence on which they are based
8. When the CA manifestly overlooked certain relevant
facts not dispute by the parties and which, if properly
considered, would justify a different conclusion
9. When the findings of facts of the CA are premised on
the absence of evidence and are contradicted by the
evidence on record (Golangco v. CA)

The period of appeal shall be interrupted by a timely motion

for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed. (n)

Judgments or Orders Which Cannot be Appealed

Sec. 1, Rule 41, supra.
Remedy Against a Judgment or an Order Not Subject to
Appeal
Sec. 1, Rule 41, supra.
A. Appeal from MTC to the RTC (Rule 40)

Sec. 3, Rule 40. How to appeal. The appeal is taken by filing a

notice of appeal with the court that rendered the judgment or
final order appealed from. The notice of appeal shall indicate
the parties to the appeal, the judgment or final order or part
thereof appealed from, and state the material dates showing
the timeliness of the appeal.
A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate
appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where
required, shall be served on the adverse party. (n)
Sec. 3, Rule 41. Period of ordinary appeal. The appeal shall
be taken within fifteen (15) days from notice of the judgment
or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days from notice of the
judgment or final order.
The period of appeal shall be interrupted by a timely motion

5 | Page

for new trial or reconsideration. No motion for extension of

time to file a motion for new trial or reconsideration shall be
allowed. (n)
Sec. 4, Rule 40. Perfection of appeal; effect thereof. The
perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41. (n)
Sec. 9, Rule 41. Perfection of appeal; effect thereof. A party's
appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In 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 the other parties.
In appeals by record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with 2 of Rule 39, and
allow withdrawal of the appeal. (9a)
These periods are interrupted by a timely motion for
reconsideration or new trial as long as such motions are not
pro forma.
See illustration (p. 634)
How to Appeal
Sec. 2, Rule 40. When to appeal. An appeal may be taken
within fifteen (15) days after notice to the appellant of the
judgment or final order appealed from. Where a record on
appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days after notice of
the judgment or final order.
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed. (n)
Sec. 3, Rule 40. How to appeal. The appeal is taken by filing a
notice of appeal with the court that rendered the judgment or
final order appealed from. The notice of appeal shall indicate
the parties to the appeal, the judgment or final order or part
thereof appealed from, and state the material dates showing

the timeliness of the appeal.

A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate
appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where
required, shall be served on the adverse party. (n)
Sec. 6, Rule 41. Record on appeal; form and contents thereof.
The full names of all the parties to the proceedings shall be
stated in the caption of the record on appeal and it shall
include the judgment or final order from which the appeal is
taken and, in chronological order, copies of only such
pleadings, petitions, motions and all interlocutory orders as are
related to the appealed judgment or final order for the proper
understanding of the issue involved, together with such data as
will show that the appeal was perfected on time. If an issue of
fact is to be raised on appeal, the record on appeal shall
include by reference all the evidence, testimonial and
documentary, taken upon the issue involved. The reference
shall specify the documentary evidence by the exhibit
numbers or letters by which it was identified when admitted or
offered at the hearing, and the testimonial evidence by the
names of the corresponding witnesses. If the whole testimonial
and documentary evidence in the case is to be included, a
statement to that effect will be sufficient without mentioning
the names of the witnesses or the numbers or letters of
exhibits. Every record on appeal exceeding twenty (20) pages
must contain a subject index. (6a)
Sec. 7, Rule 41. Approval of record on appeal. Upon the
filing of the record on appeal for approval and if no objection
is filed by the appellee within five (5) days from receipt of a
copy thereof, the trial court may approve it as presented or
upon its own motion or at the instance of the appellee, may
direct its amendment by the inclusion of any omitted matters
which are deemed essential to the determination of the issue of
law or fact involved in the appeal. If the trial court orders the
amendment of the record, the appellant, within the time
limited in the order, or such extension thereof as may be
granted, or if no time is fixed by the order within ten (10) days
from receipt thereof, shall redraft the record by including
therein, in their proper chronological sequence, such
additional matters as the court may have directed him to
incorporate, and shall thereupon submit the redrafted record
for approval, upon notice to the appellee, in like manner as the
original draft. (7a)
Sec. 5, Rule 40. Appellate court docket and other lawful fees.
Within the period for taking an appeal, the appellant shall pay
to the clerk of the court which rendered the judgment or final
order appealed from the full amount of the appellate court
docket and other lawful fees. Proof of payment thereof shall
be transmitted to the appellate court together with the original

6 | Page

record or the record on appeal, as the case may be. (n)

Perfection of the Appeal

Sec. 4, Rule 40. Perfection of appeal; effect thereof. The
perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41. (n)
Sec. 9, Rule 41. Perfection of appeal; effect thereof. A party's
appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In 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 the other parties.
In appeals by record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with 2 of Rule 39, and
allow withdrawal of the appeal. (9a)
Effect of Perfection of an Appeal
Sec. 4, Rule 40, supra.
Sec. 9, Rule 41, supra.
Duty of the Clerk of Court
Sec. 6, Rule 40. Duty of the clerk of court. Within fifteen (15)
days from the perfection of the appeal, the clerk of court or the
branch clerk of court of the lower court shall transmit the
original record or the record on appeal, together with the
transcripts and exhibits, which he shall certify as complete, to
the proper Regional Trial Court. A copy of his letter of
transmittal of the records to the appellate court shall be
furnished the parties. (n)
Procedure in the RTC
Sec. 7 (a), Rule 40. Procedure in the Regional Trial Court.
(a) Upon receipt of the complete record or the record on
appeal, the clerk of court of the Regional Trial Court shall
notify the parties of such fact.

Filing of Memorandum
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.
Submission for Decision
Sec. 7 (c), Rule 40. Upon the filing of the memorandum of
the appellee, or the expiration of the period to do so, the case
shall be considered submitted for decision. The Regional Trial
Court shall decide the case on the basis of the entire record of
the proceedings had in the court of original and such
memoranda as are filed. (n)
Appeals from Orders of Dismissal Based on Lack of
Jurisdiction
Sec. 8, Rule 40. Appeal from orders dismissing case without
trial; lack of jurisdiction. If an appeal is taken from an order of
the lower court dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or reverse it, as
the case may be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction thereover, shall try
the case on the merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded for further
proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court
on appeal shall not dismiss the case if it has original
jurisdiction thereof, but shall decide the case in accordance
with the preceding section, without prejudice to the admission
of amended pleadings and additional evidence in the interest
of justice. (n)
The provisions of Sec. 8, Rule 40 applies only to cases
dismissed for lack of jurisdiction. It does not cover dismissals
on some other grounds.
Duty of Appellant
It is the duty of appellant to have his appeal prosecuted with
reasonable diligence.
B. Appeals from the RTC (Rules 41, 42, and 45)
Modes of Appeal
1.
2.
3.

Ordinary appeal
Petition for review
Appeal by certiorari

7 | Page

1. Ordinary appeal (Rule 41)

Subject of Appeal
Sec. 2 (a), Rule 41. Modes of appeal. Ordinary appeal. The
appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction
shall be taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and
other cases of multiple or separate appeals where law on these
Rules so require. In such cases, the record on appeal shall be
filed and served in like manner.
Sec. 2 (b), Rule 41. Petition for review. The appeal to the
Court of Appeals in cases decided by the Regional Trial Court
in the exercise of its appellate jurisdiction shall be by petition
for review in accordance with Rule 42.
How to Appeal
Sec. 2 (a), Rule 41, supra.
Sec. 9, Rule 41. Perfection of appeal; effect thereof. A party's
appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.

Sec. 3, Rule 41. Period of ordinary appeal. The appeal shall

be taken within fifteen (15) days from notice of the judgment
or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days from notice of the
judgment
or
final
order.
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed. (n)
Payment of Court Docket and Other Lawful Fees
Sec. 4, Rule 41. Appellate court docket and other lawful fees.
Within the period for taking an appeal, the appellant shall pay
to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court
docket and other lawful fees. Proof of payment of said fees
shall be transmitted to the appellate court together with the
original record or the record on appeal. (n)
When Appeal is Perfected
Sec. 9, Rule 41. Perfection of appeal; effect thereof. A party's
appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.

A party's appeal by record on appeal is deemed perfected as to

him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.

A party's appeal by record on appeal is deemed perfected as to

him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.

In 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 the other parties.

In 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 the other parties.

In appeals by record on appeal, the court loses jurisdiction

only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal
of
the
other
parties.

In appeals by record on appeal, the court loses jurisdiction

only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal of the other parties.

In either case, prior to the transmittal of the original record or

the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with 2 of Rule 39, and
allow
withdrawal
of
the
appeal.
(9a)

In either case, prior to the transmittal of the original record or

the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with 2 of Rule 39, and
allow withdrawal of the appeal. (9a)

Sec. 5, Rule 41. Notice of appeal. The notice of appeal shall

indicate the parties to the appeal, specify the judgment or final
order or part thereof appealed from, specify the court to which
the appeal is being taken, and state the material dates showing
the timeliness of the appeal. (4a)

It must be noted that the filing of the notice of appeal or the

approval of the record on appeal perfects the appeal as to the
particular appellant only because the appeal may not yet be
perfected as to the others.

When to Appeal

Effect of Perfection
Sec. 9, Rule 41, supra.

8 | Page

See illustrations
Duty of Clerk of the Lower Court Upon Perfection of the
Appeal
Sec. 12, Rule 41. Transmittal. The clerk of the trial court shall
transmit to the appellate court the original record or the
approved record on appeal within thirty (30) days from the
perfection of the appeal, together with the proof of payment of
the appellate court docket and other lawful fees, a certified
true copy of the minutes of the proceedings, the order of
approval, the certificate of correctness, the original
documentary evidence referred to therein, and the original and
three (3) copies of the transcripts. Copies of the transcripts and
certified true copies of the documentary evidence shall remain
in the lower court for the examination of the parties. (11a)
Sec. 10, Rule 41. Duty of clerk of court of the lower court
upon perfection of appeal. Within thirty (30) days after
perfection of all the appeals in accordance with the preceding
section, it shall be the duty of the clerk of court of the lower
court:
(a) To verify the correctness of the original record or the
record on appeal, as the case may be aid to make certification
of its correctness;
(b) To verify the completeness of the records that will be,
transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be
required to complete the records, availing of the authority that
he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in
his letter of transmittal the exhibits or transcripts not included
in the records being transmitted to the appellate court, the
reasons for their non-transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court. (10a)
Dismissal of the Appeal
Sec. 13, Rule 41. Dismissal of appeal. Prior to the transmittal
of the original record or the record on appeal to the appellate
court, the trial court may motu propio or on motion dismiss
the appeal for having been taken out of time. (14a)
(see Riano)

9 | Page