REMEDIAL LAW
Rule 40
Section 1 : Where to appeal
Appeal to the RTC from the MTC must exercise jurisdiction over the area to which the
latter pertains, meaning the RTC has designated territorial area.
Appellant – the party appealing the case
Appellee – is the adverse party.
Section 2 When to appeal
The 15-day period cannot be extended but it can be interrupted by a timely motion for
new trial or reconsideration.
The 30-day period for record on appeal is extendible on the condition that the Motion to
extend must be filed within the original 30 days and provided further that the movant
has no right to expect that his motion will be granted.
Section 3 How to appeal
File a notice of appeal to the court that rendered judgment (which is MTC).
Notice of appeal and record on appeal if it is special proceedings and when multiple
appeals are allowed.
Section 4 Perfection of appeal, effect thereof.
The appeal is deemed perfected when the MTC loses jurisdiction over the case, and by
fiction of law, jurisdiction is automatically transferred to the RTC.
Section 5 Appellate court docket and other lawful fees.
The docket fee is not a requirement to perfect an appeal. Failure to pay the appellate
fee does not automatically cause the dismissal of the appeal (cf Section 8, Rule 141)
(Santos v. CA) 253 SCRA 632 (1996)
Section 6. Duty of the clerk of court
The requirement to perfect an appeal is the notice of appeal or record on appeal for
special proceedings.
Section 7 Procedure in the Regional Trial Court
Failure to part on the appellant to submit his/her memorandum shall be a ground for
dismissal of the appeal.
Failure on the part of the appellee to file his/her memorandum, the case shall be
submitted for decision.
Section 8 Appeal form orders dismissing case without trial: lack of jurisdiction
The court will dismiss the complaint without trial of upon motion to dismiss that the MTC
has no jurisdiction. This is called disposing of the case without trial.
If the court (RTC) found that the MTC has jurisdiction, the RTC will order the MTC to
conduct trial.
Section 9. Applicability of Rule 41.
Rule 41 Appeal from the Regional Trial Courts
Section 1 Subject of Appeal
No appeal may be taken from:
1. An order denying a petition for relief or any similar motion seeking relief from
judgment.
2. An interlocutory order
3. An order disallowing or dismissing an appeal
4. 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
5. An order of execution
6. 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 there from
7. An order dismissing an action without prejudice
Interlocutory order – something which does not completely dispose of the action and
there is still something for the court to after its rendition.
The court does not actually prohibit a part from appealing an interlocutory order, only
you cannot appeal immediately (Abesamis vs. Garcia, 98 Phil. 762)
The test for determination of whether a judgment or order is final or interlocutory is
“Does it leave something to be done in the trial court with respect to the merits of the
case? It if does, it is interlocutory hence you cannot appeal yet, if it s does not, it is final
and therefore you can appeal. (Reyes v. De Leon, L-3720, June 24, 1952)
A court order is final in character if it puts an end to the particular matter resolved or
settles definitely the matter therein disposed of, such that no further questions can come
before the court except the execution of the order. Such an order or judgment may
validly refer to the entire controversy or to some definite and separate branch thereof.
(DAY v RTC of Zamboanga City, 191 SCRA 640)
If appeal is not available, the correct remedy is an appropriate special civil
action under Rule 65.
Default judgment is appealable
Judgment by consent – cognovits judgment
Remedy against compromise entered through vitiated consent:
1. Motion to set aside
2. Motion for reconsideration or new trial
3. Relief from judgment
4. Annulment of judgment
A partial summary judgment is not appealable because it is merely interlocutory order
since it is governed by Rule 35.
Section 2 Modes of Appeal
a. Ordinary Appeal is the mode of appeal from RTC to CA in cases decided by the
RTC pursuant to its original jurisdiction.
b. Petition for Review is the mode of appeal to the CA from RTC in cased decided
by RTC pursuant to its appellate jurisdiction.
c. Grounds where appeal was permitted even if beyond reglementary period
(Genete v CA)
1. Matters of life, liberty, honor property
2. Counsel’s negligence without participatory negligence of the client
3. Existence of special or compelling circumstances
4. It affects the merits of the case
5. If the cause is not entirely attributable to the fault or negligence of the party
6. Lack of any showing that the review sought is merely dilatory.
