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1997 Rules on Civil Procedure Rule 40

2001 Edition Appeal from the MTC to the


RTC

APPEALS

Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS

APPEAL. The law on appeal starts from Rule 40 to Rule 56. Usually the appeal is from the trial
court to the next higher court. Under the judiciary law, appeals from the MTC should be to the RTC
which is governed by Rule 40. And when the case is tried by the RTC and you want to appeal,
normally, the appeal should be to the CA under Rule 41.

We will stick to the basic rule on appeal found in the judiciary law, Section 39, BP 129:

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.
No record on appeal shall be required to take an appeal. In lieu thereof,
the entire original record shall be transmitted with all the pages prominently
numbered consecutively, together with an index of the contents thereof.
This section shall not apply in appeals in special proceedings and in other
cases wherein multiple appeals are allowed under applicable provisions of the
Rules of Court.

There are three (3) instances under Section 39:

Type of Case Period to appeal Requisites for appeal

A. Civil Actions in general 15 days Notice of appeal


B. Special Proceedings and Civil Actions 30 days 1. Notice of Appeal
where multiple appeal is allowed 2. Record on Appeal
C. Habeas Corpus 48 hours Notice of Appeal

So this is the general outline of the law on appeals under Section 39, BP 129.

[EDITOR’S NOTE: The 48-hour period to appeal in habeas corpus cases under Section 39 of BP 129
is now incorporated in Rule 41, Section 3 as amended, which took effect last July 15, 2000 (A.M. No. 01-
1-03-SC)]

Rule 40 refers to appeal from the MTC to the RTC. The appellate jurisdiction of the RTC is found in
Section 22, BP 129. That is why Rule 40 is revolving around that provision:

BP 129, Sec. 22. Appellate jurisdiction. - Regional Trial Courts


shall exercise appellate jurisdiction over all cases decided by MetTCs,
MTCs and MCTCs in their respective territorial jurisdictions. Such
cases shall be decided on the basis of the entire record of the
proceedings had in the court of origin and such memoranda and/or briefs
as may be submitted by the parties or required by the RTCs. The
decision of the RTCs in such cases shall be appealable by petition for
review to the CA which may give it due course only when the petition
show 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.

Let us now go to Section 1 of Rule 40:

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Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 40
2001 Edition Appeal from the MTC to the
RTC

Section 1. 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, but the party appealing the case
shall be further referred to as the appellant and the adverse party as the
appellee. (n)

So from the MTC, the appeal is to the RTC exercising jurisdiction over the area to which the former
pertains. That is why under the judiciary law, every RTC has a designated territorial area. So, if you
want to appeal from the decision of the MTC of Davao City, you appeal to the RTC of Davao. You do
not make your appeal to the RTC of Tagum because it does not exercise jurisdiction over Davao City.

And take note under Section 1, it is now required that when you appeal from the MTC to the RTC,
you should indicate in the caption of the case who is the APPELLANT and the APPELLEE. This is also
the procedure when you are appealing to the SC.

The appellant is the party appealing the case while the appellee is the adverse party. So for example,
the original title of the case in the MTC is: “JOBOY, plaintiff vs. BROSIA, defendant.” If Joboy will appeal
the case, the title of the case now in the RTC will be: “JOBOY, plaintiff-appellant vs. BROSIA, defendant-
appellee.” Or, if Brosia will be the one appealing the case, the title now will be: “JOBOY, plaintiff-appellee
vs. BROSIA, defendant-appellant.”

The period to appeal is in Section 2:

Sec. 2. 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 final order.
The period of 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. (n)

In relation to certain jurisprudence, the 15-day period cannot be extended. (Lacsamana vs. IAC, 143
SCRA 643) It cannot be extended but it can be interrupted by a timely motion for new trial or
reconsideration. And no motion for extension of time to file a motion for new trial or reconsideration
shall be allowed. (Section 2)

Q: How about the 30-day period? Is the 30-day period extendible?


A. YES. It is extendible for record on appeal, on the condition that the Motion to Extend must be
filed within the original 30 days and provided further that the movant has no right to expect that his
motion will be granted.

So the 15-day period can never be extended but the 30-day period is extendible based on
jurisprudence. This is because a notice of appeal is normally a one-paragraph document. You can do
that in just 5 minutes. But a record on appeal is makapal. That is why it is 30 days. Sometimes kulangin
pa yung 30-day period. So you can extend it provided you file the motion for extension during the
original 30-day period.

Sec. 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 shall indicate 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.
A record 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)

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1997 Rules on Civil Procedure Rule 40
2001 Edition Appeal from the MTC to the
RTC

Q: How do you appeal?


A: Under Section 3, you file a Notice of Appeal to the court that rendered judgment, so MTC. And
it “shall indicate 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.” For example:

Notice of Appeal

Defendant hereby serves notice that he is appealing to the RTC from the judgment
rendered by the MTC dated March 5, 1998 copy of which was received by him on March
15, 1998.

So it is very simple to make. And you must indicate exactly not only the date of the decision but
also the date when you received it because the running of the period to appeal does not run from the
date of the decision but from the time you received it. That is why the rule says, you “must state the
material dates showing the timeliness of the appeal.” (Record on appeal is discussed in Rule 41, Section
6.)

Of course, the adverse party should be furnished with a copy of the notice of appeal.

Sec. 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.

Q: When is the appeal deemed perfected?


A: See discussion under Section 9, Rule 41. From the moment the appeal is deemed perfected, the
MTC loses jurisdiction over the case. And by fiction of law, jurisdiction is automatically transferred to
the RTC.

Sec. 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)

Within the period to appeal (normally within 15 days), the appellant must pay the docket fee. So
that when the records are transmitted, bayad na. Even before this rule came out, the payment of
appellate docket fee is really required. The rule is the same.

Q: Suppose I will file my Notice of Appeal within 15 days but I will not pay the docket fee, should
my appeal be dismissed? Is it an additional requirement for appeal?
A: In the case of

SANTOS vs. COURT OF APPEALS


253 SCRA 632 [1996]

ISSUE: Will the failure to pay appellate fee automatically cause the dismissal of the
appeal in the MTC to the RTC ?

HELD: The payment of appellate fee is found in Section 8 of Rule 141. But the SC
observed that the only requirement is Notice of Appeal. There is no mention of appellate
fee. The payment of appellate fee is not a requisite to the perfection of an appeal although
Rule 141 does not specify when said payment shall be made. It does not automatically result
in the dismissal of the appeal unless it affects the jurisdiction. The dismissal being
discretionary on the part of the appellate court, such dismissal should be exercised wisely.

This ruling is still applicable. Although Section 5 prescribes that within the period to take appeal
you must pay the docket fee. If you do not pay it, it may not cause ipso facto the dismissal of your
appeal. But the clerk of court may refuse to transmit the record to the RTC until you pay. So docket fee
is not a requirement to perfect an appeal although it is an obligation also.
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1997 Rules on Civil Procedure Rule 40
2001 Edition Appeal from the MTC to the
RTC

Sec. 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
with the transcripts and exhibits, which he shall certify as complete, to the
proper Regional Trial Court. A copy of his letter of transmittal of the records
to the appellate court shall be furnished the parties. (n)

What is the requirement to perfect an appeal? It is notice of appeal only or record on appeal also for
special proceedings.

Section 5 of this rule now states that when the party takes an appeal, it is the obligation of the
appellant to pay the appellate docket fee which is imposed by Rule 141 so that the clerk of the MTC
will elevate the appeal to the MTC.

Sec. 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 shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors imputed
to the lower court, a copy 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 shall be considered submitted for decision. 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 memoranda as are filed. (n)

What happens if the case reaches the RTC? Section 7 answers it. The clerk court shall notify the
parties. What is important here is paragraph [b], a radical provision:

(b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors imputed
to the lower court, a copy 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.

The procedure under the OLD RULES is found on Section 22 of the Interim Rules. When the case is
appealed to the RTC, the case will be decided by the RTC based on the record on appeal together with a
memorandum as the court may require the parties. In other words, the court may or may not require
the parties to file a memorandum.

NOW, the present rule says, within 15 days from notice, it is your obligation to file a memorandum.
If the appellant fails to file a memorandum in the RTC, his appeal will be dismissed. The filing of an
appeal memorandum in the RTC is mandatory because you must point out to the RTC kung saan
nagkamali. You help the RTC judge look for the error.

Q: Suppose the appellant has filed his memorandum and it is the appellee who failed to file his
memorandum. What is the effect of such failure?
A: Under paragraph [c], the case shall be submitted for decision without appellee’s memorandum.
And it does not necessarily mean that the appellee will lose the case by not filing his memorandum
because for all you know the decision of the lower court is very clear, whether he files a memorandum
or not, he will still wins.

Another radical change is Section 8:

Sec. 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 case 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

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1997 Rules on Civil Procedure Rule 40
2001 Edition Appeal from the MTC to the
RTC

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)

The case was dismissed by the MTC without trial on the merits.

PROBLEM: Tomas filed a case against Ka Noli to collect a loan of P50,000 before the MTC. But upon
motion to dismiss alleging that MTC has no jurisdiction, the court dismissed the complaint without
trial. That is disposing of the case without trial. Now, RTC said, “MTC has jurisdiction.”
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.

PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is for P500,000 before the MTC.
It is clear that the MTC has no jurisdiction. Ka Noli moved to dismiss the case and it was dismissed. But
Tomas appealed to the RTC believing that the dismissal was wrong. Of course the order of the MTC is
correct. It should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes jurisdiction. The RTC which has
jurisdiction, shall try the case on the merits as if the case was originally filed in the RTC.

The second paragraph has slight modification:

PROBLEM: Tomas files a case against Ka Noli for P500,000 before the MTC. Ka Noli file a motion to
dismiss on the ground of lack of jurisdiction. But the motion to dismiss of Ka Noli was denied and the
court tried the case. So, the trial is void. The judgment rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of the MTC which tried a case even though it has
no jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the RTC will assumes jurisdiction
over the case. The RTC will convert the appellate jurisdiction into an original jurisdiction instead of
dismissing an appeal. It will treat it as if it has been filed for the first time in the RTC and not as an
appealed case. The purpose here is to avoid double payment of docket fees.

Sec. 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)

Rule 41 provisions may also be used in appeals from MTC to RTC. It is more comprehensive. It
refers to appeal from RTC to CA on cases decided by the RTC pursuant to its original jurisdiction. This
is also applicable to Rule 40 insofar as they are not inconsistent.

-oOo-

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