TOMAS MAPUA, ET AL vs SUBURBAN THEATERS, INC.

FactsOn June 24, 1941, plaintiffs Tomas Mapua et al. leased to the defendant Suburban Theaters, Inc. the building named Cine Apolo situated at 1348 Rizal Avenue, City of Manila, for a period of three years beginning July 1, 1941, extendible to another three years with rental at the rate of P700 a month. In spite of the expiration of the period of three years in 1944, the defendant entity continued in possession of the Cine Apolo paying the sum of P1,000 a month as rental. The plaintiffs filed a complaint in the Municipal Court of Manila for ejectment. After hearing, the municipal court dismissed the complaint. The plaintiffs appealed to the Court of First Instance where instead of reproducing their complaint in the municipal court, they filed an amended complaint dated October 11, 1945, with the prayer that the defendant be ordered to vacate the premises and to pay the rentals of P1,000 a month from July to October, 1945, and the sum of P10,000 as the reasonable compensation for the use and occupancy of the building from November, 1945, until defendant finally vacated the same.

Issue

whether the amount claimed as damages can be increase in appeal.

Ruling

Yes. Increasing the damages certainly constituted no new cause of action. Courts are very liberal in allowing a plaintiff to amend so long as there is no departure from the original cause of action. There is no departure in this case. Increasing the damages is not a departure. Additional damage claimed is not by virtue of a distinct cause of action, but merely increases the amount of plaintiff's claim for the cause already alleged in the original statement. The assessment of damages is usually governed by the situation or conditions of affairs existing at the time the action is brought; hence for a recovery of loss or damages occurring thereafter plaintiff should amend or file a supplementary petition.

SERVICE SPECIALISTS, INCORPORATED vs. THE SHERIFF OF MANILA, DEPUTY SHERIFF ENRIQUITO A. VIOLETA and ROY DIAZ

FactsOn February 25, 1985, petitioner filed with the Regional Trial Court of Manila. Branch L. an action for replevin and damages against private respondent which was docketed as Civil Case No. 85-29444. After private respondent had filed his answer, a pre-trial conference was set by the lower court of which the counsels were duly notified and they were, furthermore. commissioned to secure the presence of the parties they represented. Both private respondent and his counsel failed to appear at the pre-trial and, as prayed for by counsel for petitioner, private respondent was declared as in default. The lower court rendered a decision in favor of the plaintiff. On December 10, 1985, after said decision had become final, the lower court granted the motion for execution filed by petitioner. On December 24, 1985, private respondent filed a petition for relief from judgment. On April 28, 1986, respondent deputy sheriff issued a notice of levy and sale of the properties of private respondent levied on, but on the date of the auction sale, said respondent sheriff refused to proceed with the auction because of the protest of private respondent based on his appeal from the order dismissing his petition for relief. Then he filed a petition for mandamus.

Issue

Whether the petition should be granted.

Ruling

Yes. While it is true that in ordinary cases, by the perfection of an appeal, under section 9 of Rule 41 of the Rules, the trial court loses jurisdiction over its judgment, and cannot order its execution, the judgment adverted to refers to one which has not attained finality because of the timely appeal therefrom. Such is not applicable to an appeal from

an order dismissing or denying a petition for relief from judgment, under Rule 38, because the judgment from which relief is sought is already final and executory. And the only way by which the execution of said judgment could be suspended, is that prescribed in section 5 of Rule 38.

HABALUYAS ENTERPRISES, INC. and PEDRO HABALUYAS vs. JUDGE MAXIMO M. JAPSON, Manila Regional Trial Court, Branch 36; SHUGO NODA & CO., LTD., and SHUYA NODA

FactsRespondents have filed a motion for reconsideration of the Decision of the Second Division of the Court promulgated on August 5, 1985 which granted the petition for certiorari and prohibition and set aside the order of respondent Judge granting private respondents' motion for new trial.

Issue

Whether the fifteen-day period within which a party may file a motion for reconsideration of a final order or ruling of the Regional Trial Court may be extended.

Ruling

the Court restates and clarifies the rules on this point, as follows:

1.) Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that  no motion for extension of time to file a motion for new trial or reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court.  Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested.

2.) In appeals in special proceedings under Rule 109 of the Rules of Court and in other cases wherein multiple appeals are allowed, a motion for extension of time to file the record on appeal may be filed within the reglementary period of thirty (30) days. If the court denies the motion for extension, the appeal must be taken within the original period, inasmuch as such a motion does not suspend the period for appeal. The trial court may grant said motion after the expiration of the period for appeal provided it was filed within the original period.

B.E. BERKENKOTTER vs. COURT OF APPEALS and ISIDRO CLIMACO

FactsPetition to review the resolution of the Court of Appeals in its CA-G.R. No. 51763, dated February 28, 1973, which dismissed petitioner's appeal from the judgment of the Court of First Instance of Negros Occidental, Branch VI, dismissing plaintiff's complaint in its Civil Case No. 212-7377 entitled "B.E. Berkenkotter, Plaintiff, vs. Angustia Siokon, Pedro Rodriguez and Isidro Climaco, Defendants". On June 11, 1969, judgment therein was originally rendered in favor of the plaintiff and against the defendants by Judge Carlos Abierra. On September 1, 1969, the defendants filed a motion for reconsideration. On August 13, 1970, he filed a "motion to dismiss and/or new trial" and on December 19, 1970, he also filed a Supplement to the motion for reconsideration and new trial. The same Judge Carlos Abiera rendered an Amended Decision completely reversing the decision. The motion was denied by Judge Serafin A. Camilon on May 17, 1972, and a copy of the order of denial was received by plaintiff on June 13, 1972. On the same day, June 13, 1972, plaintiff filed a notice of appeal, an appeal bond and an  ex parte motion for extension of time (five days from June 13) within which to file the record on appeal which was filed two days later, or on June 15, 1972.

Issue

Whether the appeal was perfected on time.

Ruling

This Tribunal has repeatedly construed section 6, Rule 41, of the Rules of Court as mandatory and jurisdictional, non-compliance with which justifies dismissal of appeal.  In the case at bar, petitioner filed his record on appeal within the period of time requested and although no order of approval nor denial of the ex parte motion for extension was issued, the Order of the Court on November 14, 1972, approving the notice of appeal, appeal bond and record on appeal amounts to and should be construed as a ratification or approval of the motion for extension. It has always been the view of this Court that the period within which the record on appeal and appeal bond should be perfected and filed, may, however, be extended by order of the court, upon application made, prior to the expiration of the original period. What decisively matters is that the motion for extension of time to file the record on appeal is filed before the expiration of the 30-day period prescribed by the rules.

LEONCIA REYES, in her own representation and as administratrix of the estate of the deceased Dalmacio Celino,  vs. THE COURT OF APPEALS and ENRIQUE BAUTISTA

Facts

Prohibition to the Court of Appeals from taking cognizance of the appeal entitled "Enrique Bautista, plaintiff and appellant, vs. Leoncia Reyes, etc., defendant and appellee" (C.A. — C.R. No. 311), on the ground that, the appeal bond having been presented out of time, said appeal was unlawfully allowed by the trial court. In said case the Court of First Instance of Laguna (Judge Vicente del Rosario presiding) rendered judgment in favor of the defendant on September 19, 1942, of which the plaintiff received notice on October 10. The plaintiff filed a notice of appeal on October 23, the record on appeal on November 2, and the appeal bond on November 10, 1942, after a pro forma motion for new trial filed by him on October 17 had been denied by the court on the same date and notice of the denying order had been received by him on October 22.

Issue

Whether filing of appeal bond is indispensable

Ruling

Yes. The filing of an appeal bond is an indispensable prerequisite to the perfection of an appeal. Thus, section 3 of rule 41 provides that "appeal may be taken by serving upon the adverse party and filing with the trial court within thirty days from notice of order or judgment, a notice of appeal, an appeal bond, and a record on appeal." The appeal bond shall be in the amount of P50 unless the court shall fix a different amount, or unless a surpersedeas bond is filed. (Section 5, id.) "Where the notice of appeal, appeal bond, or record on appeal is filed but not within the period of time herein provided, the appeal shall be dismissed." (Sec. 13, id.) An appeal may be dismissed by the Court of appeals on its own motion or on that of the appellee for failure to file the appeal bond within the said period of thirty days.

Neypes et al vs CA et al

FactsPetitioners Domingo Neypes, Luz Faustino, Rogelio Faustino, Lolito Victoriano, Jacob Obania and Domingo Cabacungan filed an action for annulment of judgment and titles of land and/or reconveyance and/or reversion with preliminary injunction before the Regional Trial Court, Branch 43, of Roxas, Oriental Mindoro, against the Bureau of Forest Development, Bureau of Lands, Land Bank of the Philippines and the heirs of Bernardo del Mundo, namely, Fe, Corazon, Josefa, Salvador and Carmen. Respondent heirs filed a motion for reconsideration of the order denying their motion to dismiss. In an order2 dated February 12, 1998, the trial court dismissed petitioners’ complaint on the ground that the action had already prescribed. Petitioners allegedly received a copy of the order of dismissal on March 3, 1998 and, on the 15th day thereafter or on March 18, 1998, filed a motion for reconsideration. On July 1, 1998, the trial court issued another order dismissing the motion for reconsideration 3 which petitioners received on

July 22, 1998. Five days later, on July 27, 1998, petitioners filed a notice of appeal  and paid the appeal fees on August 3, 1998.

Issue

Whether the appeal filed late/

Ruling

No. We thus hold that petitioners seasonably filed their notice of appeal within the fresh period of 15 days, counted from July 22, 1998 (the date of receipt of notice denying their motion for reconsideration). This pronouncement is not inconsistent with Rule 41, Section 3 of the Rules which states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The use of the disjunctive word "or" signifies disassociation and independence of one thing from another. It should, as a rule, be construed in the sense in which it ordinarily implies.33 Hence, the use of "or" in the above provision supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of the "final order," which we already determined to refer to the July 1, 1998 order denying the motion for a new trial or reconsideration.

TEODORA DE LA CRUZ, ET AL., vs. MANUEL BLANCO, Judge of First Instance of Ilocos Norte, and SANTOS QUEVEDO

FactsOn October 31, 1932, Teodora de la Cruz and others petitioners here, applied in the Court of First Instance of Ilocos Norte for registration of a parcel of land indicated in their plan. Santos Quevedo, one of the respondents here, with others, opposed the application claiming that certain parcels belonging to him were included in petitioners' plan. The trial court adjudicated to petitioners the whole land applied for and Santos Quevedo, with others appealed. On October 31, 1938, the Court of Appeals rendered judgment sustaining, among others, Quevedo's claim and ordering the applicants to present within the time to be fixed by the trial court an amended plan excluding, among others, Quevedo's land. This judgment having become final. He then filed another petion.

Issue

Whether the CA can dismiss the petition on its face.

Ruling

Yes. Although, as a general rule, an appeal should not be dismissed on a ground which goes to the merits of the cause or to the right of plaintiff or defendant to recover (Velasco vs. Rosenberg, 29 Phil., 212-214), yet, in exceptional instances, an appellate court may order the dismissal when the appeal appears to be manifestly and palpably frivolous (4 C. J. S., 1961, section 1358). And where, as in the instant case, the dismissal had been ordered by the trial court, it will not be disturbed in the appellate court if the latter finds the appeal to have been interposed ostensibly for delay. It has been held that a frivolous appeal is one presenting no justiciable question, or one or so readily recognizable as devoid of merit on the face of record to be that there is a little, if any, prospect that it can ever succeed. The instant case is one such instance in which the appeal is evidently without merit, taken manifestly for delay.

HERMENEGILDO CALO, ET AL., vs. THE COURT OF FIRST INSTANCE OF AGUSAN and LUIS PEGGY

Facts

In Civil Case No. 313 the Respondent Court of First Instance of Agusan dismissed the appeal taken by the Petitioners (Plaintiffs below) on the ground that the notice of appeal and appeal bond were filed out of time. This

dismissal is assailed in the present petition for mandamus. The last day within which to perfect the appeal in question was October 5, 1954. The petition (which is under oath) alleges that counsel for Petitioners sent to the Respondent court on October 2, by registered and special delivery mail, the necessary notice of appeal, record on appeal and appeal bond, all contained in one envelope identified as registered letter No. 927 of the post office of Carmen, Agusan; chan roblesvirtualawlibraryand that said letter was received in the Respondent court on October 7. In the order of dismissal the Respondent court assumed that the record on appeal was filed on October 2 (date of mailing), but drew the conclusion that the notice of appeal and appeal bond were filed on October 7, from the mere fact that the appeal bond is found in the record immediately following the notice of appeal, and that the property certificate of the bondsmen was issued only on October 4. The answer filed by Respondent Luis Peggy (Defendant below) is not under oath and simply follows the line of argument of the Respondent court.

Issue

Whether the appeal was filed on time.

Ruling

No. We are inclined to sustain the view that Petitioners’ appeal was perfected on time. No positive showing has been made in support of the conclusion that the record on appeal, notice of appeal and appeal bond were not mailed together on October 2. Upon the other hand, it is alleged under oath by counsel for Petitioners that said papers were so mailed, and he has presented (1) a certified true copy of the notice of appeal which contains on the upper left-hand corner the note “Reg. No. 927, 10-2-54, ACR,” and on the upper right-hand corner the note “Court of First Instance, October 7, 1954 at 8 :chanroblesvirtuallawlibrary40 a. m., Province of Agusan PCV,” and (2 a certified true copy of the envelope showing the date of posting in Carmen, Agusan, as October 2, 1954. At any rate, the filing of the record on appeal (admittedly on time) implies the filing of the notice of appeal and is equivalent thereto (Lopez vs. Lopez, 77 Phil., 133). Although the property certificate of the bondsmen was issued on October 4, it does not necessarily follow that the appeal bond, dated September 30 and sworn to on October 2, and much less the notice of appeal dated September 30, were mailed after October 4, or 5.

J. ANTONIO ARANETA,  vs. MADRIGAL & CO., INC., and THE HONORABLE JOSE S. RODRIGUEZ, ANTONIO G. LUCERO, and ANGEL MOJICA, as members of the Fifth Division of the Court of Appeals

Facts

petitioner J. Antonio Araneta had filed Civil Cases Nos. 37327 and 40703 of the Court of First Instance of Manila against respondent, Madrigal & Co., Inc., for the recovery of damages resulting from the destruction caused in an orchard of Araneta, in Las Piñas , Rizal, by several fires that had allegedly crept into said property from the adjoining orchard of Madrigal; that, after a joint hearing of said two (2) cases, decision was, in due course, rendered therein sentencing Madrigal to pay to Araneta, by way of damages. Araneta filed in the Court of Appeals a motion to dismiss the appeal, upon the ground that, in violation of Rule 41, Section 6, of the present Rules of Court, Madrigal's records of appeal did not contain "such data as will show that the appeal was perfected on time.

Issue

Whether appeal should be entertained.

Ruling

No. The deficiencies pointed out are fatal. For the reason that in ordinary appeals the original record is not forwarded to the appellate court, and because the dates when an applicant received the notice of the pertinent orders or judgment under appeal, and of the denial of his motion for reconsideration or new trial, are facts within the conclusive knowledge of said appellant, the Revised Rules of Court place upon the appellant the burden of showing that his appeal is timely, and for that purpose prescribe (Rule 41, Sec. 6) that the record of appeal shall include ":such data as well show that the appeal was perfected on time". This requirement is mandatory and jurisdictional,

for unless appeal is perfected on time the appellate court acquires no jurisdiction over the appealed case, and has power only to dismiss the appeal. The certification of the record on appeal by the trial court after expiration of the period to appeal cannot restore the jurisdiction which has been lost. The principle is confirmed by Rule 50, Section 1, subpar. (a), heretofore quoted.

CELSO VALERA, vs. THE HONORABLE COURT OF APPEALS (FOURTH DIVISION), ADORACION VALERA DE BRINGAS and ROMEO R. BRINGAS

FactsIt appears that, on November 12, 1965, the Court of First Instance of Abra rendered a decision, in Civil Case No. 374 of said Court, declaring "that plaintiff Adoracion Valera de Bringas is the acknowledged natural child of Francisco Valera" and directing the defendants in said case — Virgilio Valera, Celso Valera and Mercedes Angco Vda. de Valera — to "recognize" said Adoracion Valera de Bringas as such acknowledged natural child of Francisco Valera, as well as dismissing, for lack of merit, the counterclaim and cross-claim of defendants Virgilio and Celso Valera, without special pronouncements as to costs. Copy of said decision was, on November 15, 1965, served upon defendants Virgilio Valera and Celso Valera, who, on December 14, 1965, filed his notice of appeal and appeal bond and asked for an extension of thirty (30) days within which to file his record on appeal, which was granted on January 14, 1966. The lower court ordered Celso Valera on March 18, 1966, to amend his record of appeal, and, on June 28, 1966, approved the amended record on appeal.

Issue

Whether failure of the record on appeal to show on its face that the appeal was perfected" within the reglementary period is fatal.

Ruling

Yes. We have consistently reaffirmed and stressed the mandatory and jurisdictional nature of the requirements contained on Sec. 6 of Rule 41 of the Rules of Court4 and find no reason to change our view thereon. It may not be amiss to point out that, in making the amendment adversed to above. Well-settled is the rule that the jurisdiction over a case or matter may be questioned at any stage of the proceedings. In the language of Government v. Antonio, "the certification of the record on appeal by the trial court, after expiration of the period to appeal  cannot restore the jurisdiction which has not been lost." 

JUAN C. PIMENTEL and SALUD DE LOS REYES, vs. HONORABLE COURT OF APPEALS, PAULINO O. ORIEL, and MACARIA RUIZ,

Facts

Petitioners-spouses filed on October 2, 1969 an application for the registration of a small residential lot before Branch XIV of the Court of First Instance of Pangasinan, which application was opposed by private respondents, who earlier or on September 24, 1968 filed their own application for the registration of the same residential lot also in the same court, to which herein petitioners filed their opposition. After a joint trial of the two cases, a decision was rendered on September 20, 1973 in favor of private respondents, which decision was received on September 25, 1973 by herein petitioners. On October 13, 1973, herein petitioners filed their notice of appeal in the two cases. The respondent Court of Appeals dismissed the appeal for failure to show all the material data indicating that the appeal was seasonably perfected, upon motion of herein private respondents.

Issue

Whether the dismissal is proper.

Ruling

The mere absence of a formal order granting the motion for extension of time to file the record on appeal should not be fatal to the petitioner if the record on appeal filed within the requested extension period was approved by the Court a quo. As previously stated, the approval thereof carries with it the approval of the motion for extension and the mere failure of the record on appeal to show such approval should not defeat the right to appeal. No trial Judge in his right mind and who is aware of the serious responsibilities of his office, would approve a record on appeal that was not timely filed"

JOSE L. MOYA vs. JOHN BARTON

FactsCase entitled Jose L. Moya vs. John Barton, judgment was rendered in favor of the plaintiff and against defendant, and the latter was notified thereof on February 14, 1946. On March 14, 1946, that is, twenty eight (28) days after notice, defendant filed a motion for new trial which was denied, and the order denying said motion was served upon said defendant on April 1, 1946. The latter filed on April 2, 1946, a notice of appeal and an appeal bond, and at the same time a motion requesting an extension of five (5) days within which to file his record on appeal, on the ground that it was impossible for him to have the same typewritten and filed in one day or on April 3, the last day of the period fixed by law, and the court granted the motion on the same day it was presented. The defendant and appellant filed his appeal on time, and the case is now pending before this court.

Issue

Whether the lower court has the power to extend the period for filing the record on appeal.

Ruling

Yes. The court has power and discretion to extend the period for filing the record on appeal in the interest of justice, if it appears that the appellant had not sufficient time to prepare and file it within the period limited by law, either because the remaining period is very short, or the record on appeal voluminous, or because of some other justifiable reason, provided the motion for extension is filed before the expiration of the period fixed by law.

Sarmiento vs CA

Facts

On May 10, 1977, the private respondent Norma Sarmiento sued her husband, the petitioner Cesar Sarmiento, for support. It was rendered in favor of her. On April 9, 1984 the private respondent moved for execution of the judgment pending appeal which was granted. On June 13, 1966, the Court of Appeals found petitioner's appeal unmeritorious and thus dismissed the same. Petitioner moved for reconsideration but the motion was denied. The petitioner prays to prohibit the judge in enforcing the decision.

Issue

Whether the approval of the court is required to perfect an appeal.

Ruling

No. Under BP 129, sec. 39, no record on appeal is required to take an appeal. Nor is an appeal bond required. A notice of appeal is sufficient. Unlike before, where approval of the record on appeal and the appeal bond was required before the appeal was perfected, under the present rule, the appeal is perfected upon the expiration of the last day to appeal by a party by the mere filing of a notice of appeal. The approval of the court is not required. This means that within 30 days after the perfection of the appeal, the original record should be transmitted to the Intermediate Appellate Court. If the clerk neglects the performance of this duty, the appellant should ask the court to

order the clerk. It does not seem that the petitioner has done this, and it may even be that he is liable for failure to prosecute his appeal.

De Luna et al vs Judge Palacio and Ferrer

Facts

On 26 May 1966, Judge Palacio of the Court of First Instance of Camarines Sur rendered his decision in Civil Case No. 5151, wherein petitioners were plaintiffs and Damaso Ferrer the defendant. Both parties announced in due time their intention to appeal from the decision to the Court of Appeals. While respondent Ferrer had filed his record of appeal within the period prescribed by the rules, he admittedly failed to file his appeal bond within the reglementary term. Whereupon, the plaintiffs, now petitioners, moved that Ferrer's appeal be dismissed. The trial court held that the belated filing of the appeal bond was due to excusable negligence, and denied the motion to dismiss defendant's appeal.

Issue

Whether there was a grave abuse of discretion.

Ruling

It is indisputable and elementary that to perfect an appeal the notice and record of appeal, as well as the appeal bond, must be filed within the period prescribed by the Rules; and that the failure to do so renders the decision final and unappealable because the period for appeal is fatal. But the would-be appellant is not thereby precluded from seeking relief under Revised Rule 38, section 2, whenever the entering of a judgment or order against said party was made through fraud, accident, mistake or excusable neglect.