PART II

RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO
THEREGIONAL TRIAL COURTS
SECTION1. Where to Appeal.I.-An
- appeal from ajudgment
or finalorder of a MunicipalTrial Court may be taken to
the Regional Trial Courtexercising jurisdiction over the
area to which the former pertains. The title of the case
shallremain as it was in the court of origin, but the party
appealing the case shall be further referred to as the
appellant and the adverse party as the appellee. (n)
WHERE TO APPEAL?

An appeal from a JUDGMENT OR FINAL ORDER

of a Municipal Trial Court may be taken to the Regional
Trial Court exercising jurisdiction over the area to which the
former pertains. The title of the case shall remain as it was in
the court of origin.
PARTIES

There are two parties in Appeal: (1) the APPELLANT

who is the party appealing the case, and (2) the APPELLEE
who is the adverse party.

27
28 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

SECTION2. When to Appeal. An appeal may be taken

within fifteen (15) days after notice to the appellant of the
judgment or final order appealed from. Where a record
on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days after
notice of the judgment or finalorder.
The period of appeal shall be interrupted by a timely motion
for new trialor reconsideration. No motion for extension
of time to file a motion for new trial or reconsideration
shallbe allowed. (n)
WHEN TOAPPEAL?
1. In case of a notice of appeal, an appeal may be taken
within fifteen (15) days after notice to the appellant
of the judgment or final order appealed from.
2. Where arecord on appeal is required, the appellant
shall file a notice of appeal and a record on appeal
within thirty (30) days after notice of the judgment
or final order.

INTERRUPTION ON THE PERIOD OF APPEAL

The periodof appeal shall be interrupted by a TIMELY

MOTION FOR NEW TRIAL OR RECONSIDERATION.
No motion for extension of time to file a motion for new trial
or reconsideration shall be allowed.
llustration: Maria filed a case for Specific Performance against
Mario inorder to compel him to comply with the conditions
as stated in their contract. The RTC Manila rendered a decision
in favor of Maria. The decision was received by Mario on
June 15, 2022. As such, Mario has 15days from receipt ofthe
decision to cither file a Motion for Reconsideration, Motion
for New Trial or Notice of Appeal. Should Mario decide to
 RULE 40 29

ile a Motion for Reconsideration on June 25, 2022, the

counting of the period to appeal willbe interrupted.

WHAT IS THE FRESH PERIOD RULE?

Inthe case of Neypes v. CA. the Court deems it practical
to allow a fresh period of 15 days within which to file the
notice of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial or
motion for reconsideration. The new rule aims to regiment or
make the appeal period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for reconsideration
(whether fullor partial) or any final order or resolution.
The reckoning period for the application of the fresh
period rule is that a party litigant may either file his notice of
appeal within 15 days from receipt of the Regional Trial Court's
decision or file it within 15 days from receipt of the final order
denying his motion for new trial or motion for reconsideration.
The new 15-day period may be availed of only if either motion is
filed; otherwise, the decision becomes final and executory
after the lapse of the original appeal period.
With the advent of the "fresh period rule," parties who availed
themselves of the remedy of motion for reconsideration are
now allowed to file a notice of appeal within fifteen days from
the denial of that motion. The "fresh period rule" is not
inconsistent with Rule 41, Section 3 of the Revised Rules of
Court which states that the appeal shall be taken "within fifteen
(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 which it ordinarily implies.
Hence, the use of "or" in the above provision supposes that
the notice of appeal may be filed within 15 days from the

G.R. No. 141524, [September 14, 2005].

 30 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

notice of judgment or within 15 days from notice of the "final

order," x XX.The "firesh period rule" finally eradicates the
confusion as to when the 15-day appeal period should be
counted - from receipt of notice of judgment or from receipt
70
of noticeof "final order" appealed from.
This rule shall likewise apply to Rule 40 governing
appeals from the Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals; Rule 43 on appeals from
quasi-judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court.
Illustration: If Mario will receive the order of the denial of his
Motion for Reconsideration on August 15, 2022, he has a fresh
period of 15 days from August 15 to file his appeal pursuant
to the Neypes Rule applicable in appeal cases.
SECTION 3. How to Appeal. The appeal is taken by
filing a notice of appeal with the court that rendered the
judgment or final order appealed from. The notice of
appeal shallindicate the parties to the appeal, the judgment
or final order or part thereof appealed from, and state the
material dates showing the timeliness of the appeal.
Arecord on appeal shall be required only in special proceedings
and in other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as
provided in Section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal
where required, shall be served on the adverse party. (n)

OMakati Insurance Co., Inc. vs. Reyes, G.R. No. 167403, August 6, 2008.
 RULE 40 31

HOW TOAPPEAL

1 The appeal is taken by FILING A NOTICE OF

APPEAL with the court that rendered the judgment
or final order appealed from. The notice of appeal
shall indicate the (1) parties to the appeal, (2) the
judgment or final order or part thereof appealed from,
and (3) state the material dates showing the timeliness
of the appeal.
2. In special proceedings and in other cases of multiple
or separate appeals, a RECORD ON APPEAL shall
be required.
WHAT IS MATERIAL DATE RULE?
The material dates required to be stated in the petition
are the following:
1. The date of receipt of the judgment or final order or
resolution subject of the petition;
2. The date of filing of a motion for new trial or
reconsideration, if any; and
3. The date of receipt of the notice of the denial of the
motion.?1

TAKE NOTE:
The failure to show on the face of the Record
on Appeal the date when the petitioner received
the decision of the trial court, and such other data
to show that the appeal was duly perfected, is not a fatal
defect, and the trial court's approval of the Record on Appeal
Serves to cure whatever defects or omissions there are. 72

Castilex Industrial Corp. vs. Vasquez, Jr., G.R. No. 132266,. (December 21, 1999].
32 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

FORMS AND CONTENTS OF A RECORD ON APPEAL

As provided in Section 6, Rule 41 of the Rules of Court,
the form and contents of the recordon appeal are as followS:
1. The full names of all the parties to the proceedings
shall be stated in the caption of the record on appeal and
2. It shall include the:

i. judgment or final order from which the appeal is

taken and,
ii. in chronological order, copies of only such pleadings,
petitions, motions and all interlocutory orders as
are related to the appealed judgment or final
order for the proper understanding of the issue
involved, and
iii. such data as willshow that the appeal was perfected
on time.

3. If an issue of fact is to be raised on appeal, the record

on appeal shall include by reference all the evidence.
testimonial and documentary, taken upon the issue
involved.

4. The reference shall specify the documentary evidence

by the exhibit numbers or letters by which it was
identified when admitted or offered at the hearing,
and the testimonial evidence by the names of the
coresponding witnesses. If the whoe testimonial and
documentary evidence in the case is to beincluded, a
statement to that effect will be sufficient without
mentioning the names of the witnesses or the numbers
or letters of exhibits. Every record on appeal exceeding
twenty (20) pages must contain asubject index.

Santos vs. Court of Appeals, G.R. No. |-42679, | May 25, 19791.
 RULE 40
33

5. Copies of the notice of appeal, and the record on appeal

where required shall be served on the adverse party.
TAKE NOTE:
It must be emphasized that in instances where
there is designation of the wrong court in the
notice of appeal, it does not necessarily affect the validity of
such. However, the designation of the proper court should be
made within the 15-day period to appeal. Once made within
the said period, the designation of the correct appellate court
may be allowed even if the records of the case are forwarded
73
to the Court of Appeals.
SECTION 4. Perfection of Appeal, Effect Thereof. - The
perfection of the appeal and the effect thereof shall be
governed by the provisions of Section 9, Rule 41. (n)
PERFECTION OF APPEAL

Section 9, Rule 41 shall govern the perfection of the

appeal and the effect thereof, to wit:
1. Aparty's appeal by notice of appeal is deemed perfected
as to him upon the FILING OF THE NOTICE OF
APPEAL IN DUE TIME. A party's appeal by record
on appeal is deemed perfected as to him with respect
to the subject mater thereof upon the APPROVAL OF
THE RECORD ON APPEAL FILED IN DUE TIME.
2. 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 appealof the other parties. In appeals by record
On appeal, the court loses jurisdiction only over the
Subjectmatter thereof upon the approval of the records
Torres vs. People, G.R. No. 175074,
[August 31, 2011)
34 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

on appeal filed in due time and the expiration of the

time to appealof the other parties.
3. Ineither case, prior to the transmittal of the original
record or the record on appeal, the court may issue
orders for the protection and preservation of the rights
of the parties which do not involve any matter
litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending
appeal in accordance with section 2 of Rule 39,and
allow withdrawal ofthe appeal.
EFFECT OF FILING OF NOTICE OF APPEAL IN THE
TRIAL COURT

Mere filing of a notice of appeal does not divest the trial

court of its power to resolve pending incidents, like a motion
for execution pending appeal filed by the party within the
reglementary period for perfecting an appeal because the court
must hear and resolve such motion for itwould become part
of the records to be elevated on appeal. As long as any of the
parties may still file his, her or its appeal, the court does not
Jose jurisdiction over the case

DOCTRINE OF RESIDUAL JURISDICTION

The "residual jurisdiction" of trial courts is available at a

stage in whích the court is normally deemed to have lost
jurisdiction over the case or the subject matter involved in the
appeal. This stage is reached upon the perfection of the
appeals by the parties or upon the approval of the records on
appeal, but prior to the transmittal of the original records or
the records on appeal, In either instance, the trial court still
retains its so-called residual jurisdiction to issue protective orders,
approve compromises, permit appeals of indigent litigants,

Villamor vs. Naional Power Corp., G.R. No. 146735, (October 25, 2004).
 RULE 40 35

order execution pending appeal, and allow the withdrawal of

theappeal75

Section 9, Rule 41 of the Rules of Court mentions three

when the trial court is allowed to exercise "residual"
(3)instances
jurisdictionafter the perfection of the appeal, namely: (1) to
issue orders forthe protection and preservation of the rights of
the parties which do not involve any matter litigated by the
appeal: (2) to approve compromises offered by the parties
prior tothe transmittal of the record on appeal to the appellate
court: and (3)to permit the prosecution of pauper's appeals.?76
The Regional Trial Court loses jurisdiction over the case
uDon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.However
before the Court of Appeals gives due course to the petition,
the Regional Trial Courtmay issue orders for the protection and
preservation of the rights of the parties which do not inyolve
any matter litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order execution pending
appeal in accordance with Section 2 of Rule 39, and allow
withdrawal of the appeal."
EXECUTION PENDING APPEAL

Section 2 of Rule 39 provides for Discretionary execution

that pertains to Execution of ajudgment or final order pending
appeal. On motion of the prevailing party with notice to the
adverse party filed in the trial court while it has jurisdiction
over the case and is in possession of either the original record
or the record on appeal, as the case may be, at the time of the
filing of such motion, said court may, in its discretion, order

15
Katon Vs. Palanca et., al. G.R. No. 15l 149,|[September 7, 2004).
Fortune8.Life vs..CA, GR. No. 101374 |July 30, 1993].
"Section Rule 42 Rules of Court.
 36 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

execution of ajudgment or finalorder even before the expiration

of the period to appeal.
After the trial court has lost jurisdiction the motion for
execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to
be stated in a special order after due hearing.
SECTION 5. Appellate Court Docket and Other
Lawful
Fees. Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the
judgment or final order appealed from the full amount of
the appellate court docket and other lawful fees. Proof of
payment thereof shall be transmitted to the appellate court
together with the original record or the record on appeal,
as the case may be. (n)

APPELLATE COURT DOCKET AND OTHER LAWFUL

FEES

1. Within the period for taking an appeal, the appellant

shall pay to the clerk of the court which rendered the
judgment or final order appealed from the full amount
of the appellate court docket and other lawful fees.
2. Proof of payment thereof shall be transmitted to the
appellate court together with the original record or
the record on appeal, as the case may be.

PAYMENT OF DOCKET FEE

The payment of the full amount of the docket fee is sine
qua non for the perfection of an appeal. The court acquires
jurisdiction over the case only upon the payment of the prescribed
docket fees. WITHOUT SUCH PAYMENT, THE APPELLATE

"* Julian vs. Development Bank of the Phils., G.R. No. 174193, [December 7, 2011).
 RULE 40 37

COURT DOES NOT ACQUIRE JURISDICTION OVER

THE SUBJECT MATTER OF THE ACTION AND THE
DECISION SOUGHT TO BE APPEALED FROM
RECOMES FINAL AND EXECUTORY 79
1 The Branch Clerk of Court, Acting Branch Clerk of
Court or Judge is allowed to safekeep or hold any
money related to any case filed in court. Also, only
the Clerk of Court/Acting Clerk of Court (COC
ACOC) of the OCC (in case of multi-sala court) or
the COC/ACOCof a single sala court is ALLOWED
toreceive any money for safekeeping;*
2. Any question relating to the coector proper assessment
and collection of docket fees of a particular case,
which is /udicial in nature, 2 should be raised before
and should be resolved within a reasonable period by
the court having jurisdiction over the said case.31
3. For uniformity in the assessment of legal fees and
other court collections, the Judiciary Electronic Payment
Solution (JEPS) for the courts shall be USED.
TAKE NOTE:
The MERE FILING OF THE NOTICEOF
APPEAL IS NOT ENOUGH, for it must be
accompanied by the payment of the correct appellate docket
fees. Payment in full of docket fees within the prescribed
period is mandatory.$
nowever, there are instances where the Supreme Court
relaxedthe rule payment of appeal fee, such as:
19
EniGuiqueLdelines Vs,in theEnriquez, G.R. No. 139303, August 225, 2005|.
Assessment and Collecion of Legal Fees and Other Court Collections, OCA
Circular
Ibid. No.66-2023. [February 20,2023|).
1bidNat. ional
83

Transmission Corp. vs.Heirs of Ebesa, G.R. No. 186102, |February 24, 2016].
 38 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

1. Most persuasive and weighty reasons;

2. To relieve a litigant from an injustice not commensurate
with his failure to comply with the prescribed procedure;
3. Good faith of the defaulting party by immediately
paying within a reasonable time from the time of the
default;
4. The existence of special or compelling circumstances;
5. The merits of the case;
6. A cause not entirely attributable to the fault or
negligence of the party favored by the suspension of
the rules;
7.. A lack of any showing that the review sought is
merely frivolous and dlatory;
8. The other party will not be unjustly prejudiced thereby;
9. Fraud, accident, mistake or excusable negligence
without appellant's fault;
10, Peculiar legal and equitable circumstances attendant
to each case;

11, In the name of substantial justice and fair play:

12. Importance of the issues involved; and
13.Exercise of sound discretion by84 the judge guided by
allthe attendant circumstances.
SECTION 6. Duty of the Clerk of Court. - Within fifteen
(15) days from the perfection of the appeal, the clerk of
court or the branch clerk of court of the lower court shall
transmit the original record or the record on appeal, together

S# Villena vs. Rupisan, G.R. No. l67620, |April 3,2007)

 RULE 40 39

transcripts and exhibits, which he shall certify as

with the
complete, to the proper Regional Trial Court. ÀCopy of
ofi transmittal of the records to the appellate court
his letter
shall be
furnished the parties. (n)
DUTY OFTHE
T CLERK OF COURT
The clerk of court or the branch clerk of court of the
lower court shall. within fifteen (15) days from the perfection
ofthe appeal, TRANSMIT THE ORIGINAL RECORD
OR THE RECORD ON APPEAL, together with the transcripts
and exhibits, which he shall certify as complete, to the proper
Regional Trial Court.
Acopy of his letter of transmittal of the records to the
appellate court shall| be furnished the parties.

SECTION 7. Procedure in the Regional Trial Court.

(a) Upon receipt of the complete record or the record
on appeal, the clerk of court of the Regional Trial
Court shall notify the parties of such fact.
(b) Within fifteen (15)days from such notice, it shalbe
the duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to the
lower court, acopy of which shall be furnished by
him to the adverse party. Within fifteen (15)days from
receipt of the appellant's memorandum, the appellee
may file his memorandum. Failure of the appellant to
file a memorandum shall be a ground for dismissal of
the appeal.
(c)Upon the filing of the memorandum of the
appellee or
the expiration of the period to do so, the case
considered submitted for decision. The RegionalshallTrial
be
Courtshall decide the case on the basis of the entire
record of the proceedings had in the court of origin
and such memoranda as are
filed. (n)
40 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

PROCEDURES IN THE REGIONAL TRIAL COURT

1. Upon receipt of the complete record or the record on

appeal, the clerk of court of the Regional Trial Court
shall NOTIFY THE PARTIES OF SUCH FACT;
2. Within fifteen (15) days from notice, it shall be the
duty of the appellant to submit a MEMORANDUM
OF APPEAL to briefly discuss the errors imputed to
the lower court, and acopy shall be furnished by
him/her to the adverse party;
3. Within fiteen (15) days from receipt of the appellant's
memorandum, the appellee may file his/her
MEMORANDUM OF APPEAL;and
4. Upon filing of the memorandum of the appelle, OR
the expiration of the period to do so, the case shall be
considered SUBMITTED FOR DECISION,

5. The Regional Trial Court shall decide the case on the

basis of the entire record of the proceedings in the
court of origin and such memoranda as are filed.
TAKE NOTE:

FAILURE OF THE APPELLANT TO FILE

AMEMORANDUM SHALL BE AGROUND
FOR THE DISMISSAL OF THE APPEAL. The
requirement for the submission of appellant's memorandum is
a mandatory and compulsory rule. Non-compliance therewith
authorizes the dismissal of the appeal.
The Supreme Court ruled that it is true that the Rules
should be interpreted so as to give litigants ample opportunity
to prove their respective claims and that a possible denial of
substantial justice due to legal technicalities should be avoided.
But it is equally true that an appeal being a purely statutory
right, an appealing party must strictly comply with the requisites
 RULE 40 41

laid downinthe Rules of Court. In other words, he who seeks

avail ofthe right to appeal must play by the rules. 85
to
WHEN SHOULD JUDGMENT BE RENDERED?

Section 15 (1), Article VIl of the 1987 Philippine Constitution

nrOvides that all cases or matters filed after the effectivity of
this Constitution must be decided or resolved within THREE
MONTHS for all other LOWER COURTS
SECTION 8. Appeal from Orders Dismissing Case without
Trial: Lack of Jurisdiction. If an appeal is taken from
an order of the lower court dismissing the cas without a
trial on the merits, the Regional Trial Court may affirm or
reverse it, as the case may be. In case of affirmance and
the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as if the case
was originally filed with it. In case of reversal, the case
shall be remanded for further proceedings.
If the case was tried on the merits by the lower court
without jurisdiction over the subject matter, the Regional
Trial Court on appeal shall not dismiss the case if it has
original jurisdiction thereof, but shall decide the case in
accordance with the preceding section, without prejudice
to the admission of amended pleadings and additional
evidence in the interest of justice. (n)
APPEAL FROM ORDERS DISMISSING CASE
TRIAL; LACK OF WITHOUT
JURISDICTION
1. If an appeal is taken from an order of the
lower court
dismissing the case without a trial on the merits, the

Enriquez vs. Court of . Appeals, G.R. No. 140473, [January 28,20031.

42 THE AMENDED RULES ON
CIVIL PROCEDURE ANNOTATED
BOOK 2

Regional Trial Court may affirm or reverse it, as the

case may be.
2. If the ground for dismissal in the
lower court is lack
of jurisdiction:
i. If the Regional Trial Court
dismissal:
AFFIRMS the
a. It shall try the case on the merits as if
the case
was ORIGINALLY FILED with it, if it has
jurisdiction over the subject matter; or
b. It shall not try the case if it has no
jurisdiction
over the subject matter.
ii. If the Regional Trial Court
REVERSES the
dismissal, the case shall be remanded to the
lower court for further proceedings.
3. If the case was tried on the merits by the lower
court
without jurisdiction over the subject matter, the Regional
Trial Court on appeal, shall NOT dismiss the case if
it has original jurisdiction thereof, BUT shall decide
the case WITHOUT prejudice to the admission of
amended pleadings and additional evidence in the
interest of justice.
llustration l: Maria filed a Notice of Appeal to question the
decision rendered by MTCCBulacan, immediately
her case for Recovery of Possession of a dismissing
to P500,000, for lack of property amounting
jurisdiction. The RTC Bulacan as
appellate court may affirm or reverse the said decision
rendered by the MTCC.
llustration 2: Ifthe RTC Bulacan, will affirm the dismissal of
the case for lack of jurisdiction, the RTC
Bulacan shall try the
case on the meritsas if it has been originally
if it has jurisdiction over the subject filed with it only
matter. So int case for
the Recovery of Possession filed before the MTCC,histhe
RTC
 RULE 40 43

who hasjurisdiction for real action involving properties amounting

P400,000above, then the RTCshall try the case.
to
lustration 3: Iftthe RTC Bulacan reverses the dismissal on the
groundthatthe assessed value is within the MTCC's jurisdiction.,
itshallremandthe caseto MTCC Bulacan for further proceedings.
llustration 4: Ifthe MTCC tried the case on the merits even
in the absence of jurisdiction and rendered a decision, on
appeal,the RTCshall not dismiss the case but shall decide the
case and may require the submission of amended pleadings
and additional evidence.

SECTION 9. Applicability of Rule 41. The other provisions

of Rule 41 shall apply to appeals provided for herein
insofar as they are not inconsistent with or may serve to
supplement the provisions of this Rule. (n)
APPLICABILITY OF RULE 41

The other provisions of Rule 41 shall apply to appeals

provided for herein insofar as they are not inconsistent with or
may serve to supplement the provisions of this Rule.