:TITILE TIMOTEO SIMSIM, petitioner, vs. THE HON.

JUDGE FELICIANO BELMONTE OF THE COURT OF FIRST INSTANCE OF THE CITY OF BAGUIO and HECTOR DONATO, respondents. CITATION: 34 SCRA 536 DOCTRINE: Section 9 of Rule 41 must be construed together with Section 1 of Rule 37 which provides that within the period of perfecting an appeal an aggrieved party may move the court to set aside the judgment and grant a new trial. Where a motion for reconsideration is filed on time, by one party, the other party may not be allowed to perfect the appeal from the same decision which is still subject to review, otherwise the effect would be to place before the appellate court for review a decision which had already been set aside or reconsidered and which, even in case of affirmance, would not be succeptible of execution. PONENTE: MAKALINTAL, J. FACTS: This petition for certiorari was filed by Timoteo Simsim, plaintiff in Civil Case No. 1298 against Felicisimo Z. Mostajo, Francisca A. Mostajo, Hector V. Donato and the Immaculate Concepcion, Inc. That action was for partition of land, portions of which had been sold by the owner, petitioner's father, to the petitioner himself and to the aforesaid defendants. At about the same time another action (Civil Case No. 1276) was filed by Felicisimo Mostajo against the seller to compel delivery of the portion sold to him, with an area of 35,000 square meters. The two cases were tried and decided jointly by the Honorale Feliciano Belmonte (one of the respondents). In the decision the older Simsim, seller, was ordered to deliver to Felicisimo Mostajo 11,000 square meters in addition to the 24,000 square meters alleged to pertain to himin the complaint for partition, evidently to complete the 35,000 square meters claimed by him in his own complaint against Simsim. The totality of the areas of the portions sold exceeded the actual area of the entire parcel, and so in its decision the Court ordered that the additional 11,000 square meters to be given to Mostajo should be taken from the portion which had been sold to "Timoteo Simsim and/or Hector V. Donato." The decision was dated July 8, 1965. Donato prayed for and was given an extension of time within which to file a motion for reconsideration. On July 29, 1965, he filed the motion. The same was denied and he filed a second motion on August 13, which was granted. The Court reconsidered and amended its previous decision on August 30, 1965, ordering Simsim the elder, to comply with the deed of sale he had executed in favor of therein plaintiff Felicisimo Mostajo by delivering to the latter an additional area , to be taken from the portion of his son; and declaring Hector V. Donato to be the absolute owner of the portion sold to him without any reduction. On the other hand, Timoteo Simsim filed a record on appeal from the first decision, together with an appeal bond; and the same was approved by the Court, in the absence of any opposition, on August 13, 1965. That was

the same day Donato filed his second motion for reconsideration. On August 30, and the next day, August 31, the Court motu proprio issued an order directing Timoteo Simsim to amend his record on appeal so as to incorporate therein the order reconsidering the decision. Timoteo Simsim balked at the order to amend the record on appeal, contending that it was beyond the power of the Court to issue once his appeal had been perfected by the approval of the record. The court overruled the contention and on October 4, 1965 set aside his order of August 13, 1965 approving the said record on appeal and directed Timoteo Simsim to amend the same by incorporating therein the pleadings filed and orders issued since its approval. Hence, this petition. ISSUE: Whether or not the appeal is deemed perfected? RULING: NO. Section 9 of Rule 41 must be construed together with Section 1 of Rule 37 which provides that within the period of perfecting an appeal an aggrieved party may move the court to set aside the judgment and grant a new trial. Such a motion, of course may in effect be merely motion for reconsideration if the ground alleged is that the evidence already of record is insufficient to justify the decision or that the decision is against the law. Where a motion for reconsideration is filed on time, by one party, the other party may not be allowed to perfect the appeal from the same decision which is still subject to review, otherwise the effect would be to place before the appellate court for review a decision which had already been set aside or reconsidered and which, even in case of affirmance., would not be succeptible of execution. Furthermore, such a view would place it within the power of one of the parties, by the simple expedient of immediately perfecting his appeal, to deprive the other party of the right to ask for a reconsideration of the decision, let alone to have the court approve his own appeal if such a motion is denied. :TITLE ANTONIO VASCO, petitioner, vs. COURT OF APPEALS, LEONOR INES LUCIANO, as Presiding Judge of the Juvenile & Domestic Relations Court, Quezon City; NICANOR SALAYSAY, as Sheriff for the Province of Rizal, and ANGELINA REYES Y BAJACAN, REYNALDO VASCO and LOLITA VASCO, respondents. CITATION: 81 SCRA 762 (G.R. No. L-46763 February 28, 1978) DOCTRINE: The trial court had no jurisdiction (long after the perfection of the appeal) to issue an order for execution pending appeal It had no jurisdiction because, after the perfection of the appeal, "the trial court loses its jurisdiction over the case, except to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal to prove compromises offered by the parties prior to the transmittal of the record on appeal to the appellate court, and to permit the prosecution of pauper's appeals" (Sec. 9, Rule 41, Rules of Court.) PONENTE: AQUINO, J. FACTS:

The Juvenile and Domestic Relations Court of Quezon City in a decision dated October 5, 1976 found that Reynaldo Vasco and Lolita Vasco (born on April 8, 1952 and April 27, 1954, respectively) are the illegitimate children of Antonio Vasco and Angelina Reyes. It ordered Antonio to pay them the sum of P200 as monthly allowance for support, beginning October, 1976 plus P500 as attorney's fees. Antonio Vasco appealed to the Court of Appeals from that decision. He perfected his appeal on January 6, 1977. In its order dated April 21, 1977 the lower court approved Vasco's record on appeal and ordered the elevation of the record to the Court of Appeals. Two months after the approval of the record on appeal, Reynaldo Vasco and Lolita Vasco filed a motion for the execution of the said judgment pending appeal. Antonio Vasco opposed that motion on the ground that the lower court had no jurisdiction to grant execution. He invoked section 9, Rule 41 of the Rules of Court. The lower court granted the motion in its order of July 13, 1972. Antonio Vasco assailed that order of execution in his petition for certiorari in the Court of Appeals. The Court of Appeals in its decision of August 10, 1977 upheld that order of execution pending appeal in the "interest of substantial justice" and on the theory that the judiciary is an agency of the State acting as parens patriae. Hence, Antonio Velasco filed the instant petition for certiorari. ISSUE: Whether or not the trial court has jurisdiction to issue an order for execution pending appeal? RULING: No. The trial court had no jurisdiction (long after the perfection of the appeal) to issue an order for execution pending appeal It had no jurisdiction because, after the perfection of the appeal, "the trial court loses its jurisdiction over the case, except to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal to prove compromises offered by the parties prior to the transmittal of the record on appeal to the appellate court, and to permit the prosecution of pauper's appeals" (Sec. 9, Rule 41, Rules of Court.) An order for execution pending appeal does not fall within the said exceptions because it is a proceeding involving the very matter litigated by the appeal. As to the doctrine of parens patriae (father of his country), its relevancy to this case is doubtful because the recipients of the support granted by the lower court are no longer honors. The doctrine refers to the inherent power and authority of the state to provide protection of the person and property of a person non sui juries. Under that doctrine, the state has the sovereign power of guardianship over persons under disability. Thus, the state is considered the parens patriae of minors. CIRCULAR NO. 2-90* March 9, 1990 TO: COURT OF APPEALS, REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A DISTRICT COURTS AND SHARI'A CIRCUIT COURTS, ALL MEMBERS OF THE GOVERNMENT PROSECUTION SERVICE, AND ALL MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES SUBJECT: GUIDELINES TO BE OBSERVED IN APPEALS TO THE COURT OF APPEALS AND TO THE SUPREME COURT

1. No common mode of appeal to Court of Appeals and Supreme Court. The provisions of rules 41 and 42 of the Rules of Court, prescribing a common mode of appeal to the Court of Appeals and to the Supreme Court, and a common procedure for considering and resolving an appeal, are no longer in force. They have been largely superseded and rendered functus officio by certain statuteswhich wrought substantial changes in the appellate procedures in this jurisdiction, notably: RepublicActs Nos. 5433 and 5400 (both effective on September 9, 1968) and 6031 (effective August 4,1969), and Batas Pambansa Blg. 129 (effective August 14, 1981). 2. Appeals from Regional Trial Courts to the Supreme Court. Except in criminal cases where thepenalty imposed is life imprisonment or reclusion perpetua, judgments of regional trial courts may beappealed to the Supreme Court only by petition for review on certiorari in accordance with Rule 45of the Rules of Court in relation to Section 17 of the Judiciary Act of 1948, as amended, 1 this being the clear intendment of the provision of the Interim Rulesthat "(a)ppeals to the Supreme Court shall be taken by petition for certiorari which shall be governedby Rule 45 of the Rules of Court." 2 3. Appeals to the Court of Appeals. On the other hand, appeals by certiorari will not lie with theCourt of Appeals. 2a R.A. No. 6657 (1988) provides, however, that appeals from the Agrarian Reform Arbitration Board of the Department of Agrarian Reform shall be taken to the Court of Appeals by certiorari within 15 days from notice of final judgment or order (Sec. 54)2a Appeals to that Court from Regional Trial Courts may be taken: a) by writ error (ordinary appeal) where the appealed judgment was rendered in a civil or criminal action by the regional trial court in the exercise of its original jurisdiction; or b) by petition for review where the judgment was rendered by the regional trial court in the exercise of its appellate jurisdiction. The mode of appeal in either instance is entirely distinct from an appeal by certiorari to the Supreme Court. 4. Erroneous Appeals. An appeal taken to either the Supreme Court or the Court of Appeals by the wrong or inappropriate mode shall be dismissed. a) Appeal to the Supreme Court by notice of appeal. - No appeal may be taken to the Supreme Court from a judgment of a regional trial court by notice of appeal under Rule 41 of the Rules of Court, regardless of any statement in the notice that the Supreme Court is the court of choice; and no judge or clerk of a regional trial court, shall elevate, or cause to be elevated, to the Supreme Court the records of a case thus erroneously appealed 3 under pain of disciplinary action, said officials, no less than the attorney taking the appeal, being chargeable with knowledge that the appellate jurisdiction of the Supreme Court may properly be invoked only through petitions for review on certiorari. b) Raising factual issues in appeal by certiorari. Although submission of issues of fact in an appeal by certiorari taken to the Supreme Court from the regional trial court is ordinarily prescribed, the Supreme Court nonetheless retains the option, in the exercise of its sound discretion and considering the attendant circumstances, either itself to take cognizance of and decide such issues or to refer them to the Court of Appeals for determination. c) Raising issues purely of law in the Court of Appeals, or appeal by wrong mode. If an appeal under Rule 41 is taken from the regional trial court to the Court of Appeals and therein the appellant raises only questions of law, the appeal shall be dismissed, issues purely of law not being reviewable by

said Court. 4 So, too, if an appeal is attempted from the judgment rendered by a Regional Trial Court in the exercise of its appellate jurisdiction by notice of appeal, instead of by petition for review, the appeal is in efficacious and should be dismissed. d) No transfer of appeals erroneously taken. no transfers of appeals erroneously taken to the Supreme Court or to the Court of Appeals to whichever of these Tribunals has appropriate appellate jurisdiction will be allowed; 5 continued ignorance or willful disregard of the law on appeals will not be tolerated. e) Duty of counsel. It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated against his client to make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to his client's cause. 6 FOR STRICT COMPLIANCE. March 9, 1990. (Sgd.) MARCELO B. FERNAN Chief Justice Footnotes * [Based on the Resolution of the Court En Banc in UDK-9748 (Anacleto Murillo v. Rodolfo Consul), March 1, 1990]. 1 Limiting the issues appealable to errors or question of law, or questions involving constitutionality or validity of any treaty, executive agreement, law, ordinance, or executive order or regulation; or the legality of any tax, impost, assessment, or toll, or penalty imposed in relation thereto; or the jurisdiction of an inferior court, SEE, HOWEVER, Sec. 54, R.A. No. 6657, in 2a, infra. 2 Par. 25, Sub-Head F., APPEAL TO THE SUPREME COURT; cf., Pars. 16-24, Sub-Head E, APPELLATE PROCEDURE (in the Intermediate Appellate Court). N.B. Appeals from any decision, order or ruling of a Constitutional Commission (Civil Service Commission, Commission on Elections, or Commission on Audit) may, unless otherwise provided bylaw, be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof (Sec. 7, ART. IX, 1987 Constitution) 2a R.A No. 6657 (1988) provides, however, that appeals from the Agrarian Reform Arbitration Board of the Department of Agrarian Reform shall be take to the Court of Appeals by certiorari within 15 days from notice of final judgment or order (Sec. 54) 3 In Service Specialists, Inc. v. Sheriff of Manila, 145 SCRA 139, the difference in modes of appeal was once again emphasized, it being held that an appeal from the order of the trial court which dismissed a petition for relief from judgment "for lack of jurisdiction to hear and determine the same" "should have been made this Court through a petition for review on certiorari in accordance with the Judiciary Act of 1948 as amended by Republic Act No. 5440 and Section 25 of the Interim Rules," and not by "a notice of appeal to the Intermediate Appellate Court."

4 SEE fn. 2a, supra. 5 SEC. 13 (second par.), Rule 124, as amended, does speak of a transfer of a criminal case from the Court of Appeals to this Court, but it has no relation to an erroneously appeal. The section pertinently reads: "Whenever the Court of Appeals should be of the opinion that the penalty of reclusion perpetua or higher should be imposed in a case, the Court after discussion of the evidence and the law involved, shall render judgment imposing the penalty of reclusion perpetua or higher as the circumstances warrant, refrain from entering judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review." 6 SEE, e.g., Circular No. 1-88, effective January 1, 1989.