Manner and Period of Perfecting an Appeal - Azarraga

632

SUPREME COURT REPORTS ANNOTATED

Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness of the Petition for Certiorari

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MANNER AND PERIOD OF PERFECTING AN APPEAL MANDATORY AND JURISDICTIONAL; TIMELINESS OF THE PETITION FOR CERTIORARI

By

JULIANA DE CASTRO-AZARRAGA

___________________

I.When appeal would lie, p. 633

A.Order of execution of a final and executory judgment not appealable; Exception, p. 633

B.Judgment of acquittal, final and executory; Appeal or certiorari not an available remedy, p. 635

C.Order of execution of a final and executory judgment not appealable; Exception, p. 636

D.Petition for review under Rule 45 of the Rules of Courtonly questions of law may be raised, p. 636

E.Appeals from inferior courts to the Regional Trial Court, p. 636

F.Appeals from the Court of First Instance/Regional Trial Court, p. 637

G.Appeals from the inferior courts may be elevated to the Regional Trial Court only by ordinary appeal, p. 637

H.Motion for New Trial or Reconsideration not a pre-requisite to an appeal, petition for review or a petition for certiorari, p. 638

I.When appeal is deemed perfected, p. 638

J.Perfection of an Appeal within the reglementary period mandatory and jurisdictional; Effect, p. 641

II.Appeal by certiorari or petition for certiorari under Rule 65 of the Rules of Court, p. 642

A.Timeliness of a petition for certiorari, p. 642

B.Certiorari not the remedy when appeal is available; Exceptions, p. 643

C.Proper issues in the special civil action of certiorari, p. 643

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D.Grave abuse of discretion defined, p. 644

____________________

I. When appeal would lie.

Par. 19 of the Interim Rules of Court, provides:

Period of Appeal.

(a) All appeals, except in habeas corpus cases and in the cases referred to in paragraph (b) hereof must be taken within fifteen (15) days from notice of the judgment, order, resolution or award appealed from.

(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal being required.

When the lower court issued an unqualified order of dismissal, albeit on a technicality (for lack of interest), it was no different from dismissal on the merits and operated as a final disposition of the case from which an appeal would lie. (Sinuhin vs. Intermediate Appellate Court, G.R. No. 71558, October 16, 1990.)

A. Order of execution of a final and executory judgment not appealable; Exception.

Ordinarily, an order of execution of a final and executory judgment is not appealable because otherwise, there would be no end to a case, however, if in the opinion of the defeated party, such order of execution varies the term of the judgment and does not conform to the essence thereof, or the terms of the judgment allow room for interpretation and the interpretation given by the trial court as contained in its order of execution is wrong, the latter may then appeal to the order so that the Appellate Tribunal may pass upon its legality and correctness. Private respondent in questioning the timeliness of the petition holds the view that the present case falls under the exceptionary clause, and therefore, the only remedy of petitioner would

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be to appeal the questioned orders. Since petitioner received a copy of the denial of his motion for reconsideration of the orders of execution on June 27, 1980, he had only up to July 27, 1980 within which to appeal. His failure to appeal the said orders consequently rendered the questioned orders final and executory.

The rule that appeal lies to question an order or writ which varies the terms of the decision being executed is not, however, meant to constitute the appeal as the sole and exclusive remedy in such instances. Any other proceeding appropriate and allowable under the Rules may be pursued by the aggrieved party. Petitioner in this case availed of the remedy of the special civil action for certiorari under Rule 65 of the Rules of Court. He maintained that (1) the award to Rufino Alvero, one of the plaintiffs-appellants in C.A. G.R. No. 32290-R of one half of the land of Cipriana, modified the finding of the Court of Appeals, affirmed by this Court, that only defendants-appellees were entitled to the land of Cipriana; and (2) the allotment to private respondents of 4,099 square meters, an increase from 2,500 square meters, as representing one fourth (1/4) of the land of Juan, varied the decision of the respondent court in Civil Case No. 5005, as affirmed by the Court of Appeals in CA-G.R. No. 57380-R. He claimed that in so doing, the court committed grave abuse of discretion and acted beyond its jurisdiction. This clearly makes a proper case for certiorari which we could pass upon. This petition is thus timely filed, only thirty-one (31) days having lapsed from notice of the assailed orders. Par. 22 of the Interim Rules, provides:

(a)Ordinary appeals from the regional trial court.The procedures provided for in Rule 46 and 124 of the Rules of Court shall apply insofar as said Rules are not inconsistent with this Resolution B.P. Blg. 129.

(b) In actions or proceedings originally filed in the metropolitan trial court, municipal trial court and municipal circuit trial court appealed to the regional trial court, the final judgments or orders of the latter may be appealed by petition for review to the Intermediate Appellate Court which may give due course only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or

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formal order sought to be reviewed.

The petition for review shall be governed by the Resolution of the Court of Appeals dated August 12, 1971, as modified in the manner indicated in the preceding paragraph hereof.

B. Judgment of acquittal, final and executory; Appeal or certiorari not an available remedy.

In Jaime Bernardo, et al., vs. Court of Appeals, G.R. No. 82483, Sept. 26, 1990, the Supreme Court said: However, as to an appeal by the complainant on the civil aspect of the case, this Court has recently ruled that, subject to the rules on double jeopardy, if a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State thru the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused.

In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved.

In such a case, the aggrieved parties are the State, and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in the name of the said complainant.

Such an appeal dispenses with the authority and representation of both the fiscal and the Solicitor General considering that the subject matter of the action involves solely the interests of the offended party and hence, no longer concerns the State.

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C. Order of execution of a final and executory judgment not appealable; Exception.

A.Interlocutory or final orders.

In the case of de Ocampo vs. Republic, L-19533, Oct. 31, 1963, 9 SCRA 440, the Court said: The test to ascertain whether an order is interlocutory or final is: does it leave something to be done in the court with respect to the merits of the case? If it does, this is interlocutory; if it does not, it is final.

An order which decides an issue or issues in a complaint is final and appealable, although the other issue or issues have not been resolved, if the latter issues are distinct and separate from the others. Day vs. Regional Trial Court of Zamboanga, et al., G.R. No. 86500, Nov. 21, 1990.

D. Petition for review under Rule 45 of the Rules of Courtonly questions of law may be raised.

Salas v. Court of Appeals, et al., G.R. No. 86500, Nov. 21, 1990.

E. Appeals from inferior courts to the Regional Trial Court.

Par. 21 of the Interim Rules of Court, provides:

(a) all cases decided by the metropolitan trial court, municipal trial courts and the municipal circuit trial courts may be appealed to the regional trial court exercising jurisdiction over the area as to which they pertain.

(b) Within five (5) days from the perfection of the appeal, it shall be the duty of the clerk of court to transmit the original record on appeal as the case may be, to the appropriate regional trial court.

(c) Upon receipt of the original records, or of the record of appeal, and of the transcripts and exhibits, the clerk of court of the regional trial court shall notify the parties of such fact.

(d) Within fifteen (15) days from receipt of the notice referred to in the preceding paragraph, they may submit memoranda and/or briefs, or upon the expiration of the period to file the same, the regional trial court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memo-

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randa and/or briefs, as may have been filed.

F. Appeals from the Court of First Instance/Regional Trial Court.

There are two modes by which cases decided by the then Court of First Instance in their original jurisdiction may be reviewed: (a) by ordinary appeal either to the Supreme Court or to the Court of Appeals; and (b) by appeal on certiorari directly to the Supreme Court on sole error or question of law. (Sinuhin vs. Intermediate Appellate Court, G.R. No. L-71558, Oct. 16, 1990.)

Par. 20 of the Interim Rules, provides:

20. Procedure for taking appeal.An appeal from the metropolitan trial court, municipal trial courts, municipal circuit trial court to the regional trial court, and from the regional trial court to the Intermediate Appellate Court in actions or proceedings originally filed in the former shall be taken by filing a notice of appeal with the court that rendered the judgment or order appealed from.

Thus, in the light of the indubitable fact that the trial court proceeded to hear the erstwhile detainer case under its original jurisdiction, the review by ordinary appeal was the proper recourse for the aggrieved parties and the Appellate Court erred in dismissing the petitioners appeal. (Sinuhin vs. Intermediate Appellate Court, supra. )

G. Appeals from the inferior courts may be elevated to the Regional Trial Court only by ordinary appeal.

Private respondent is of the belief that the action filed before the respondent Regional Trial Court was both an original action for certiorari and a petition for certiorari as a mode of appeal. We disagree. Applying Sec. 22 of BP 129 (governing law on the matter), appeals from the inferior courts may be elevated to the Regional Trial Court only by ordinary appeal, that is, by filing a notice of appeal with the inferior court. The said proviso does not admit of any other mode of elevating decisions of inferior courts to the Regional Trial Court presumably to carry out the

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purpose of BP 129 which is to simplify judicial procedure to effect speedy administration of justice. (Day vs. Regional Trial Court of Zamboanga City, et al., G.R. No. 79109, Nov. 22, 1990.)

SEC. 22, BP 129, provides:

SEC. 22. Appellate jurisdiction.Regional Trial Court shall exercise appellate jurisdiction over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions. Such cases shall be decided on the basis of the entire records had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Courts. The decision of the Regional Trial Courts in such cases shall be appealable by petition for review to the Intermediate Appellate Court which may give it due course only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed.

H. Motion for New Trial or Reconsideration not a pre-requisite to an appeal, petition for review or a petition for certiorari.

A motion for new trial or reconsideration is not a pre-requisite to an appeal, petition for review or a petition for review on certiorari. The reglementary period for filing the petition for review on certiorari in the instant case was thirty (30) days from notice of the order or judgment subject of review which period, parenthetically, is now fifteen (15) days pursuant to Section 39 of the Judiciary Act (BP 129) of 1980. (Director of Lands, et al. vs. Aquino, et al., G.R. No. 31688, Dec. 7, 1990.)

Sec. 39, provides:

SEC. 39. Appeals.The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from: Provided, however, That in habeas corpus cases, the period for appeal shall be forty-eight (48) hours from the notice of the judgment appealed from.

I. When appeal is deemed perfected.

A.Where record on appeal is not required, the filing of the

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Notice of Appeal does not perfect the appeal.


23. Perfection of Appeal.In cases where appeal is taken, the perfection of the appeal shall be upon the expiration of the last day to appeal by any party.

In cases where a record on appeal is required, the appeal is perfected upon approval thereof by the court which should be done within ten (10) days.

Paragraph 19 of the same Rules dispenses with the filing of the record on appeal, thus

Elimination of record on appeal and appeal bond.

18. The filing of a record on appeal shall be dispensed with, except in the cases referred to in sub-paragraph (b) of paragraph 19 hereof.

No appeal bond shall be required for an appeal.


19. Period of Appeal.

(a) All appeals, except in habeas corpus cases and in the cases referred to in paragraph (b) hereof, must be taken within fifteen (15) days from notice of the judgment, order, resolution or award appealed from.

(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal being required.

Thus, in cases where a record on appeal is not required, the mere filing of a notice of appeal does not perfect the appeal. ( Montelibano vs. Bacolod-Murcia, No. 69800, May 7, 1985, 136 SCRA 294; Yabut vs. Intermediate Appellate Court, No. 69208, May 28, 1986, 142 SCRA 124; Belgado vs. Intermediate Appellate Court, No. 74975, January 12, 1987, 147 SCRA 258.)

The mere fact that one party has already filed his notice of appeal does not mean that the appeal has already been perfected because the adverse party still has the reglementary period within which to perfect his appeal. (Magtibay vs. Court

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of Appeals, No. 77040, Nov. 29, 1988, 108 SCRA 177, 180. ) Corollarily,

(A)s long as any of the parties may still file his, her or its appeal the court does not lose jurisdiction over the case. x x x. It is only after all the parties respective periods to appeal have lapsed that the court loses jurisdiction over the case. (Ass. Bank vs. Gonong, No. 77353, July 30, 1987, 152 SCRA 478, 480.)

Illustrated case: Pamintuan vs. Intermediate Appellate Court, 186 SCRA 83.

In Civil Case No. 2525, the Court of First Instance, in a decision rendered on December 8, 1982, ordered the Rodolfos (the private respondents herein) to return the possession of the land in question to the petitioners, the heirs of Mariano Borromeo, and to pay damages to them. The Rodolfos filed a notice of appeal, and subsequently an appeal bond and record on appeal, but the Regional Trial Court (which in the meanwhile had replaced the Court of First Instance) dismissed the appeal on the ground that the Rodolfos had received a copy of the Decision on January 12, 1983 but filed their notice of appeal only on February 1, after more than fifteen (15) days as required by Sec. 39 of the new BP 129. However, on motion of the Rodolfos, the trial court, on July 29, 1983, reconsidered its order, ordered the status quo prior to the issuance of the writ of execution on May 12, 1983 to be restored, and approved the record on appeal of the Rodolfos. The trial court made its order on the basis of its findings that the decision of December 8, 1982 had been served on Flora Rodolfo Guzman and Jaime Rodolfo personally when it would have been served instead on their counsel as required by Rule 13, Sec. 12. The trial court reiterated its ruling in its order of February 23, 1984, denying the motion for reconsideration of the Borromeos.

The Borromeos then gave notice that they were in turn appeal ing the orders dated July 29, 1983 and February 28, 1984. On July 19, 1984 however, the trial court, acting on motion of the Rodolfos, directed the respondent Sheriff to restore possession of the land in question to the defendants (the Rodolfos) pursuant to the Orders of this Court (IAC) dated July 29, 1983, and February 28, 1984. Hence, this petition. Originally filed with

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the Supreme Court, it was later referred to this Court for appropriate determination.

The contention of the petitioners before the then Intermediate Appellate Court was that as a consequence of their having filed, on March 5, 1984 their notice of appeal. From the trial courts order dated July 29, 1983 and February 28, 1984, the trial court had already lost jurisdiction over Civil Case No. 2525-O and acted without authority in issuing the Order dated July 19, 1984. The petitioners prayed therefore the respondent appellate court to invalidate the trial courts order of July 19, 1984 and to order the elevation of the records of Civil Case No. 2525-O.

The respondent appellate court found no merit in the petitioners contentions and this dismissed their petition. Undaunted by the setback, the petitioners are now before us with basically the same issue and arguments.

The petition is not meritorious.

The perfection of appeal is explicitly covered by Sec. 23 of the Interim Rules of Court which states, to wit:

xxx xxx xxx xxx xxx xxx xxx xxx xxx

Here, it is clear that at the time private respondents filed their motion to be restored to the possession of the contested property on March 13, 1984, the period within which they could appeal had not yet been perfected.

J. Perfection of an Appeal within the reglementary period mandatory and jurisdictional; Effect.

It is beyond question that the perfection of an appeal within the statutory or reglementary period is mandatory and jurisdictional and that failure to so perfect an appeal renders final and executory the questioned decision. The lapse of the appeal period deprives the courts of jurisdiction to alter the final judgment and the prevailing party becomes entitled as a matter of right to its execution and for the court, it becomes its ministerial duty to order the execution of judgment. (Suan vs. Unson, et al., G.R. No. L-30716, May 18, 1990. )

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II. Appeal by certiorari or petition for certiorari under Rule 65 of the Rules of Court.

Rule 65 provides:

Petition for certiorari.When any tribunal board or officer exercising judicial functions, has acted without or in excess of its jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy and adequate remedy in the course of law, a person aggrieved thereby may file a verified petition in the proper court alleging that the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officer.

xxx xxx xxx xxx.

A. Timeliness of a petition for certiorari.

Private respondent questions the timeliness of this petition for certiorari, alleging that the filing by petitioners of the petition on July 28, 1980 was clearly beyond the thirty (30) day reglementary period within which to appeal or to appeal or to file a petition for certiorari from such order of denial.

Certain points have to be clarified regarding the two different modes of review, that of appeal and that of original action for certiorari, which private respondent in his comment apparently thinks are one and the same. A petition for certiorari under Rule 65 of the Rules of Court is required to be filed only within a reasonable period, no time frame being provided in the Rules within which such petition has to be filed. Moreover, a writ of certiorari is proper only when lack or excess of jurisdiction or grave abuse of discretion amounting to lack of jurisdiction is committed by the lower court. (Rules of Court, Rule 65, Sec. 1). On the other hand, under the Rules of Court then in force, an appeal had to be taken by the defeated party to the Court of Appeals (provided for in Rule 41) or to the Supreme Court (provided for in Rule 42) within thirty (30) days from the notice of judgment or order (Rules of Court, Rule 41, Sec. 3). As distinguished from an action for certiorari, errors of judgment and not errors of jurisdiction, are reviewable on appeal. (Reas vs. Bonife, et al., G.R. Nos. 54348-49, Oct. 17, 1990. )

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B. Certiorari not the remedy when appeal is available; Exceptions.

As a rule, errors of judgment or procedure not relating to the courts jurisdiction nor involving grave abuse of discretion, are not reviewable by certiorari. The court had repeatedly held that certiorari is not the remedy when appeal is available. However, there are exceptions to the rule. For instance, certiorari is justified where the trial judge capriciously and whimsically exercised his judgment, or where an appeal is not adequate to protect ones rights or where there may be danger of failure of justice, and in order to prevent irreparable damage and injury to a party. Certiorari may be availed of where an appeal would be slow, inadequate, insufficient, and will not promptly relieve a party from the injurious effects of the judgment complained of, or in order to avoid further litigation. (Preso vs. Court of Appeals, et al., G.R. No. 82215, December 10, 1990.)

C. Proper issues in the special civil action of certiorari.

The Court stresses that it possesses no authority to rule upon non-jurisdictional issues in a certiorari proceeding. x x x (T)he only question involved in certiorari is jurisdiction, either want of or in excess thereof x x x.

As defined, certiorari is a special civil action:

a. directed against any tribunal, board or officer exercising judicial function.

b. which is alleged in a verified petition in the proper court

c. to have acted

1. without jurisdiction

2. or in excess of jurisdiction

3. or with grave abuse of discretion

d. there being no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law

e. for the purpose of annulling or modifying the proceeding. ( Planters Products, Inc. vs. Court of Appeals, et al., G.R. No. 76591, Feb. 6, 1991. )

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D. Grave abuse of discretion defined.

By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.

A mere error of judgment cannot be the power subject of a special civil action for certiorari. Erroneous findings and conclusions do not render the appellate court vulnerable to the corrective writ of certiorari for where the court has jurisdiction over the case, even if its findings are not correct, they would, at most, constitute errors of law and not an abuse of discretion correctible by certiorari. A trial judges error in the analysis of evidence attempted to be introduced, and his rejection thereof is an error of judgment, not such an error as may be branded a grave abuse of discretion, i.e., such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, against which the writ of certiorari will lie. Where the court has jurisdiction on the subject matter as respondent judge has in this case, the orders, or decision upon all questions pertaining to the cause are orders or decision within its jurisdiction, and however erroneous they may be, they cannot be corrected by certiorari. ( Planters Products, Inc. vs. Court of Appeals, supra.)

o0o

[MANNER AND PERIOD OF PERFECTING AN APPEAL MANDATORY AND JURISDICTIONAL; TIMELINESS OF THE PETITION FOR CERTIORARI, 197 SCRA 632(1991)]

Manner and Period of Perfecting an Appeal - Azarraga

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