APPEALS [RULE 41]
Appeal via Rule 41 presupposes that:
(1) The RTC rendered the judgment or final order in the civil action or special proceeding in the exercise of its original jurisdiction; and
(2) That the appeal is taken to the CA on:
(a) Questions of fact or
(b) Mixed questions of fact and law Notice of Appeal – Filed with the court which rendered the judgment or final order appealed from. A copy is served on the adverse party. (Rule 41, Sec. 5)
Contents of the Notice of Appeal:
(1) Parties to the appeal
(2) Judgment or final order or part thereof appealed from
(3) The court to which the appeal is being taken; and
(4) The material dates showing the timeliness of the appeal
Record on Appeal – Done in special proceedings and other cases where multiple or separate appeals are allowed. This is filed and served in the same manner as notice of appeal.
Contents of the Record (Rule 41, Sec. 6) (1) Full names of all the parties to the
proceedings shall be stated in the caption of the record on appeal
(2) It shall include the judgment or final order from which the appeal is taken, (3) In chronological order, copies of only
such pleadings, petitions, motions, and all interlocutory orders as are related to the appealed judgment or final order (4) For the proper understanding of the issue
involved
(5) Together with such data as will show that the appeal was perfected on time
Approval of the Record on Appeal (Rule 41, Sec. 7)
Upon filing of the record for approval and if no objection is filed by the appellee within 5 days from receipt of a copy thereof, the trial court may:
(1) Approve it as presented; or
(2) Direct its amendment by the inclusion of any omitted matters which are deemed essential
Joint Record on Appeal (Rule 41, Sec. 8) Where both parties are appellants, they may file a joint record on appeal.
I. PERIOD TO APPEAL
[Rule 41, Sec. 2](1) 15 days from notice of judgment or final order appealed from
(2) 30 days from notice of judgment or final order where a record on appeal is required
(3) 48 hours from notice of judgment or final order appealed from in habeas corpus cases
111 Reckoning point of reglementary period
Period for filing the appeal should be counted from the date when the party’s counsel received a copy of the judgment or final order
When a party is represented by a counsel, service of process must be made on counsel, not on party [Fajardo v. CA]
Effect of Motions for New Trial and Reconsideration
Originally, the period to appeal is interrupted by a timely motion for new trial and reconsideration. However, with the Neypes doctrine, a party has a fresh 15-day period from a denial of the motion to perfect an appeal.
Extension of Period to Appeal
Period to appeal may be extended but such extension is addressed to the sound discretion of the court (Socco v. Garcia) The mere filing and pendency of motion for extension to perfect appeal does not suspend the running of the reglementary period (Bello et al., v. Fernandez)
II. PLEADINGS FILED
[See Rule 44, Procedure in the CA]
Appellant’s Brief
Filed within 45 days from receipt of notice of clerk that all evidence is attached to record
Follow the Efficient Use of Paper Rule, one original properly marked and 2 copies with annexes
Attach proof of service to adverse party Grounds for dismissal with respect to appellant’s brief:
(1) Failure to file brief on time
(2) Failure to make specific assignment of errors in his brief
Contents:
(1) Subject index
(2) Assignment of Errors (3) Statement of the Case (4) Statement of Facts (5) Statement of Issues (6) Arguments
(7) Relief
(8) Copy of judgment or final order appealed from
Appellee’s Brief
Filed within 45 days from receipt of appellant’s brief
Manner of filing is similar to that in appellant’s brief
Contents:
(1) Subject index
(2) Statement of Facts and Counter-Statement of Facts
(3) Arguments Appellant’s Reply Brief
(1) Filed within 20 days from receipt of appellee’s brief
(2) This is not mandatory as it is optional on the part of the appellant
Extension of Time for Filing Briefs:
General rule: Not allowed
Exception: For good reasons and only if motion for extension is filed before expiration of time sought to be extended
III. PERFECTION OF APPEAL
Payment of Docket Fees [Rule 41, Sec. 4]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.
112 Payment of docket fees in full is mandatory and is a condition sine qua non for the perfection of an appeal.
Perfection of Appeal (Rule 41, Sec. 9)
If appeal is by notice of appeal – it is deemed perfected as to him upon the filing of the notice of appeal in due time
If appeal is by record on appeal – it is perfected as to him with respect to the subject matter thereof, upon approval of the record on appeal filed in due time Effect of Perfected Appeal
(1) In appeals by notice of appeal:
Court loses jurisdiction over the case upon perfection of appeal filed in due time and expiration of the time to appeal of the other parties
This rule applies individually and to each of the parties since the timeliness of their recourse for appellate remedy depends on when they respectively received a copy of the judgment or final order
(2) In appeals by record on appeal:
Court loses jurisdiction only over the subject matter thereof upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties
The effect is limited to the subject matter only. Jurisdiction over the case is still with the trial court Residual Powers/Jurisdiction of the RTC After losing jurisdiction but prior to the transmittal of the original record on appeal, the RTC may:
(1) Issue orders for preservation of the rights of the parties, which do not involve matters litigated by appeal
(2) Approve compromise
(3) Permit appeal by an indigent
(4) Order execution pending appeal under Rule 39, Sec. 2 (motion for execution was
filed before expiration of the period to appeal)
(5) Allow withdrawal of the appeal
The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. CA).
Duty of Clerk Upon Perfection of Appeal [Rule 41, Sec. 10]
Within 30 days after perfection of all appeals, the RTC clerk shall:
(1) Verify completeness of original record or record on appeal and make certification as to its correctness
(2) Verify completeness of records that will be transmitted to appellate court
(3) If found to be incomplete:
(a) Take such measures as may be required to complete records
(b) If efforts to complete records fail:
(i) Indicate in his letter of transmittal the exhibits or transcripts not included
(ii) Reasons for their transmittal (iii) Steps taken or that could be
taken to have them available (4) Transmit the records to appellate court
and furnish the parties with copies of his letter of transmittal
IV. DISMISSAL OF APPEAL
[Rule 41, Sec. 13]When can the RTC dismiss the appeal?
Prior to transmittal of original record to appellate court; or
Prior to transmittal of record on appeal to the appellate court
How done: By the court, motu proprio, or on motion to dismiss appeal by a party
113 Grounds
(1) Appeal was taken out of time
(2) Non-payment of docket and other lawful fees within the reglementary period Note: The dismissal of the appeal in RTC is limited only to these two grounds