Discussion – March 13, 2019
41.
- Once the MNT is denied, appeal is the
remedy, appeal from the judgment
from the final order. However, a party
may, if the judgment is tainted with
GAD, proceed with certiorari under
rule 65.
- Error of Judgment v. Error of
Jurisdiction
o Appeal is the remedy –
judgment
o Certiorari under rule 65 –
jurisdiction
- However, the common approach, the
counsel of the aggrieved party, will
assign as an error in appeal the error
of judgment.
- Denial of the MR, there is no second
MR against a final order.
o Remedy - appeal from the
judgment
RULE 40:
- deals with appeal from MTC to RTC
- original jurisdiction of MTC
- do not include small claims cases
o Decision is final and not
appealable.
o Only appealable if there is
GAD.
- The first rule is 3W:
o What, where, and When
- May there be an instance where the
decision of the MTC is appealable to
CA?
o NO, doctrine of hierarchy of
courts.
o However, when the MTC is
acting in delegated authority
involving cadastral and land
registration cases, it may be
appealable to CA under rule
- The PT files an ejectment suit against
the D. The PT won. The D filed a
notice of appeal. Unfortunately, the
court of origin, refused to give due
course to the appeal. The D filed a
petition for certiorari with the CA.
The writ of certiorari was granted.
The Plaintiff is now the aggrieved
party. He went to the CA, he utilized
rule 42. The CA dismissed the appeal
because he took the wrong mode. The
case reached the SC. CA is correct.
The mode of appeal should be rule 41
because there was already a judgment
from the RTC. (Heirs of Garcia v.
Mun. of Zambales)
- When to appeal:
o 15 days
o MNT or MR is denied, the
appellant has a fresh period of
15 days. (Neypes v. CA)
o Rodriguez v. People
 That the fresh period
rule does not apply to
42, 43, and 45 because
there is nothing to
extend, after all, the
time frame was never
interrupted.
- Habeas corpus: 48 hours from date of
judgment
o From the RTC to CA
governed by Rule 48.
- Writ of Amparo and habeas data: 5
working days
o Goes directly to the SC under
Rule 45.
o Questions of fact or law or
BOTH.
- Record of appeal is the records of the
case, the appellant requires this. The
 original records stays with the
original court. The appellate court
may have a basis for the judgment.
- This only involves cases with
multiple cases.
o Several judgments
o expropriation cases under rule
67
o order of partition under rule
69
o recovery of property with
accounting
o Special proceedings
o Judicial foreclosure of real
estate mortgage
 The appeals:
 judgment of
foreclosure
itself
 judgment
confirming the
foreclosure
sale
 deficiency
judgment
- the moment there are multiple appeal,
then you have the record of appeal.
- Under Sec 9 of rule 41, over the
subject matter is important.
- Material dates to consider:
o When you receive the notice
o When did you file a MNT or
MR
o When the denial of the MNT
or MR
o Purpose: to show the
timeliness of the appeal.
- Perfection of appeal: in relation to
perfection of appeals, sec 9 of rule 41.
o By notice of appeal on the
subject matter: upon the filing
of within due time
o By record of appeal: upon
approval of the record of
appeal filed in due time.
o No hearing requirement
o That the appellant has
perfected the appeal within
the reglementary period.
- When the court loses jurisdiction over
the case:
o Notice of appeal: upon the
perfection of the appeal AND
the expiration of the time to
appeal of the other parties.
o Record on appeal: upon
approval of the records on
appeal filed in due time AND
the expiration of the time to
appeal of the other parties.
- Residual powers of the court: Issue an
order for protection and preservation
of the rights of the parties (Par. 5, Sec
9, rule 40)
o It is the exercise of its
jurisdiction even if it lost it as
long as the records are not yet
transmitted by the Clerk of
Court.
o Which do not involve any
matter litigated by the appeal
o Approve compromises
o Permit appeals of indigent
litigants
o Order execution pending
appeal
o Until the records are
transmitted to the appellate
court.
- First scenario: MTC dismisses the
case without trial on the merits
o May go to the RTC by filing
of a notice of appeal
o RTC will either affirm or
reversed
  Reversed: Remand the  The rule has
Case to the original been relaxed
court for further by the SC.
proceeding. ALLOWED in
 Affirm: the RTC will the interest of
decide the case on the justice.
merits.  Cu-unjieng v. CA
 Remedy: Rule
41 for RTC
decided the
case as it had
original
jurisdiction.

- Second scenario: MTC decides even

without jurisdiction over the subject
matter
 Decides the case as if
the case on the merits
as if the case was
originally filed with it.
 Remedy: Rule 42 for
MTC decided the case
without the decision.
- Rule pertaining to appellate court
docket and other lawful fees.
o Fajardo v. CA: dismissal for
nonpayment of the docket fees
discretionary with the court.
(MTC to RTC)
 Appellate: Badillo v.
Tayag (RTC to CA)
 Mandatory and
jurisdictional
o Nonpa
yment
dismiss
es the
case.
 Far Corp. v.
Magdaluyo: