Rule 41-Appeal from RTC

Question 1

No appeal may be taken therefrom on the following cases:

Answer 1

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 judgment by consent, confession, 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 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 therefrom;

7) an order dismissing an action without prejudice.

Question 2

What are the modes of Appeal?

Answer 2

1) ordinary appeal

2) petition for review

3) appeal by certiorari

Question 3

What is the process of Ordinary appeal?

Answer 3

The appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction shall be takeng 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.

Question 4

What is the process of filing a petition for review?

Answer 4

The appeal to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

Question 5

What is the process of appeal by certiorari?

Answer 5

In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with rule 45.

Question 6

When is record on appeal applicable?

Answer 6

1) special proceedings

2) cases where the law or the rules allow multiple appeals, an appeal from the decision therein requires the filing of a notice of appeal and a record on appeal.

Question 7

Where can we file the record on appeal?

Answer 7

The record on appeal shall likewise be filed with the court which rendered the judgment or final order appealed from, and a copy of which shall likewise be furnished to the adverse party.

Question 8

What is meant by petition for review?

Answer 8

The remedy applies to decision rendered by the RTC in the exercise of its appellate jurisdiction.This means that the case under consideration was actually commence at, as it originated from the MTC, but the decision thereof was appealed to the RTC under rule 40 of the Rules of COurt.

Question 9

What issues are resolved in appeal by certiorari?

Answer 9

pure questions of law

Question 10

Periods to file an appeal?

Answer 10

1) 15 days for notice of appeal

2) 30 days for record on appeal

3) 48 hours for writ of habeas corpus and writ of habeas data

Question 11

What is the reckoning point of the “fresh period rule”?

Answer 11

It shall be reckoned from receipt or notice of the order denying a motion for reconsideration or a motion for new trial.

Question 12

Where should the appellant pay the payment of appeal and other lawful fees?

Answer 12

In the court which rendered the judgment.

Question 13

What is a condition sine qua non for filing an ordinary appeal?

Answer 13

notice of appeal

Question 14

In cases, where record on appeal is required, is it necessary to file a notice of appeal?

Answer 14

No, record on appeal is equivalent to a notice of appeal.

Question 15

Records on appeal are only mandated in cases:

Answer 15

1) special proceedings

2) where the court renders “several” or “separate judgments under section 4 or 5, rule 36 of the rules of court, if the trial court allows the filing of multiple appeals;

3) in actions for recovery of property with accounting

4) In actions for partition with accounting

5) in special civil action for eminent domain

6) foreclosure mortgage

Question 16

Section 8, Rule 41

Answer 16

Where both parties are appellants, they may file a joint record on appeal within the time fixed by section 3 of this rule, or that fixed by the court.

Question 17

What is required for the perfection of the notice of appeal and record on appeal?

Answer 17

For the notice of appeal, the filing itself will deem the notice of appeal being perfected. However, in the record on appeal, approval is still required in order for such appeal to be perfected.

Question 18

What is the effect of the perfection of appeal?

Answer 18

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.

Question 19

What is the difference between rule 41 and rule 40?

Answer 19

rule 41- rtc to ca
rule 40- mtc to rtc

Question 20

What is the implication of the rtc exercising its appellate jurisdiction and the rtc exercising its original jurisdiction?

Answer 20

Rule 41-
1) rtc-to ca (original jurisdiction from the rtc
2) payment of dockets to the court which rendered the judgment which is rtc
3)under rule 41

Rule 42
1) rtc to ca (appellate jurisdiciton
2) payment of dockets fees to the ca
3) under rule 42

Question 21

In what way can the case coming from the mtc, be appealed to the rtc and the decision of the rtc is appealed to the CA by way of rule 41?

Answer 21

Under rule 40 section 8 the MTC may dismiss a case for want of jurisdiction. In this case, if the rtc finds that it has jurisdiction over the subject matter of the appealed case, then it will try the case as if it has an original jurisdiction. If a judgment is promulgated or reached it may appealed to the CA by way of rule 41 and not rule 42, considering that the RTC was exercising its original jurisdiction when it tried the case.

Question 22

What is the coverage of the issues appealed to the CA?

Answer 22

questions of fact or mixed questions of fact and law

Question 23

What is required when filing a record on appeal?

Answer 23

There must be filed a notice on appeal and a record on appeal. However, the filing of the notcie on appeal does not divest the court of jurisdiction, considering that in cases where multiple appeals is allowed, the court will only lose jurisdiction upon the approval of the record on appeal. It must be remembered that loses jurisdiction as to the subject matter only.

Question 24

What is the actual process of petition for review?

Answer 24

MTC to RTC by way of rule 40

RTC to CA by way of rule 42

rtc must exercise its appellate jurisdiction, because if it is an exercise of original jurisdiction then it will be an appeal by way of rule 41

coverage :

1) questions of fact
2) questions of law
3) mixed questions of fact and law

Question 25

Where to appeal if the question is purely of law and it originated from the rtc?

Answer 25

appeal by certiorari under rule 45

Question 26

Decide on such situations:

1) pure questions of law appealed in the CA
2) appellate jurisdiction of the rtc appealed to the CA, appealed by notice of appeal

Answer 26

1) petition for review on certiorari under rule 45

2) petition for review under rule 42

again filing a notice of appeal where in fact the proper should be either petition for review on certiorari orpetition for review under rule 42 will not toll the prescreptive period.

Question 27

Reglementary period

Answer 27

same with rule 40

15- notice
30-record
48 hrs- habeas corpus

from notice of the judgment or final order

Question 28

Where to pay the docket fees?

Answer 28

court which rendered the judgment or final order

Question 29

Is it requried to transmit the proof of payment?

Answer 29

YEs

Question 30

What happens if payment of docket fees was beyond the reglementary period?

Answer 30

invoke the liberal construction

Question 31

What is the content of the notice on appeal

Answer 31

1) indicate the parties
2) the final order or judgment
3) indicate the court it is appealed to
4) indicate the timeliness of the material dates
5) plaintiff v respondent- in appeals regardless of who, the party appealing will be considered the appellant
5) serve to the adverse party

Question 32

COndition sine qua non of filing an ordinary appeal

Answer 32

filing a notice on appeal

except when there is already a record on appeal filed pursuant to the cases being multiple proceedings/ multiple appeals

Question 33

COntent and form of the record on appeal

What if the issue includes issue of fact

Answer 33

1) parties
2) judgment and final order
3)chronological order, pleadings, petitions, motions, and all interlocutory orders related to the appealed judgment or final order

If there is an issue of fact

1) evidence
2) testimonial evidence
3) documentary evidence
4) subject index (provided that the pages is more than 20)

Question 34

Appellant filed a motion for extension to file a record on appeal.

Will it toll reglementary period of filing the record on appeal?

What will happen if the reglementary period already lapsed , but the motion for extension was approved?

Answer 34

1) it will not toll the reglementary period, which means without any approval of the motion for extension, the expiration date will still be the same which is 30 days

2) it will be considered as a valid order to file a record on appeal, provided that the motion for extension was filed during the reglementary period.

Question 35

What is the difference between the perfection fo the notice on appeal, and the record on appeal?

Answer 35

notice- upon filing
record- upon approval

Question 36

Rule 40 section 8?

Answer 36

where both parties are appellant they may file a joint record on appeal at the time fixed by section 3

Question 37

Does record on appeal need a hearing? What will the court do pursuant to section 7 rule 41?

Answer 37

no, it only needs the appellee to comment or object if he has any objections within 5 days from his receipt of the copy thereof

The court will direct the appellant to amend the record on appeal, if there are omitted issues that are considered material matters

Question 38

What is the effect of the perfection of appeal?

Answer 38

notice of appeal- the court loses jurisdiction over the case with respect to the person who filed the notice on appeal. If both parties’ reglementary period already expired, the court jurisdiction totally as to both parties

record on appeal- same situation but only up to the jurisdiction over the subject matter(needs approval and the expiration of the appeal of the parties)

Question 39

What is the duty of the clerk of court upon perfection of appeal?

Answer 39

1) verify correctness of the OR and Record on Appeal
2) verify the completeness of the records that will be transmitted to the appellate court
3) if found incomplete, take measures to complete records
4) transmit to appellate court

if fail ang measures, indicate in the TL exhibits, transcripts not included in the records, reasons and steps

furnished to both parties

Question 40

What to transmit ?

Answer 40

1) original record
2) record on appeal
3) proof of payment and other lawful fees
4)true copy of the minutes
5) certificate of approval
6) certificate of correctness
7) original documentary evidence
8) original and true copies of the transcripts.

Question 41

Grounds for dismissal of an appeal

Answer 41

motu proprio or upon motion dismiss the appeal

1) non-payment of docket fees
2) filing out of time