22, 1999 Order disapproving its Notice of Appeal].
Moreover,
[G.R. NO. 163604 : May 6, 2005]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. THE HON.
COURT OF APPEALS (Twentieth Division), HON. PRESIDING
JUDGE FORTUNITO L. MADRONA, RTC-BR. 35 and
APOLINARIA MALINAO JOMOC, Respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of
Absentee Spouse Clemente P. Jomoc, Apolinaria Malinao
Jomoc, petitioner," the Ormoc City, Regional Trial Court,
Branch 35, by Order of September 29, 1999,1 granted the
petition on the basis of the Commissioner's Report2 and
accordingly declared the absentee spouse, who had left his
petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L.
Madrona, cited Article 41, par. 2 of the Family Code. Said
article provides that for the purpose of contracting a valid
subsequent marriage during the subsistence of a previous
marriage where the prior spouse had been absent for four
consecutive years, the spouse present must institute summary
proceedings for the declaration of presumptive death of the
absentee spouse, without prejudice to the effect of the
reappearance of the absent spouse.
The Republic, through the Office of the Solicitor General,
sought to appeal the trial court's order by filing a Notice of
Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that
no record of appeal was filed and served "as required by and
pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil
Procedure, the present case being a special proceeding,"
disapproved the Notice of Appeal.
The Republic's Motion for Reconsideration of the trial court's
order of disapproval having been denied by Order of January
13, 2000,5 it filed a Petition for Certiorari6 before the Court of
Appeals, it contending that the declaration of presumptive
death of a person under Article 41 of the Family Code is not a
special proceeding or a case of multiple or separate appeals
requiring a record on appeal.
By Decision of May 5, 2004,7 the Court of Appeals denied the
Republic's petition on procedural and substantive grounds in
this wise:
At the outset, it must be stressed that the petition is not
sufficient in form. It failed to attach to its petition a certified
true copy of the assailed Order dated January 13,
2000 [denying its Motion for Reconsideration of the November
the petition questioned the [trial court's] Order dated August
15, 1999, which declared Clemente Jomoc presumptively
dead, likewise for having been issued with grave abuse of
discretion amounting to lack of jurisdiction, yet, not even a
copy could be found in the records. On this score alone, the
petition should have been dismissed outright in accordance
with Sec. 3, Rule 46 of the Rules of Court.
However, despite the procedural lapses, the Court resolves to
delve deeper into the substantive issue of the validity/nullity
of the assailed order.
The principal issue in this case is whether a petition for
declaration of the presumptive death of a person is in the
nature of a special proceeding. If it is, the period to appeal is
30 days and the party appealing must, in addition to a notice
of appeal, file with the trial court a record on appeal to perfect
its appeal. Otherwise, if the petition is an ordinary action, the
period to appeal is 15 days from notice or decision or final
order appealed from and the appeal is perfected by filing a
notice of appeal (Section 3, Rule 41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil
action is one by which a party sues another for the
enforcement or protection of a right, or the prevention of
redress of a wrong" while a special proceeding under Section
3(c) of the same rule is defined as "a remedy by which a party
seeks to establish a status, a right or a particular fact (Heirs of
Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March
2, 1999).
Considering the aforementioned distinction, this Court finds
that the instant petition is in the nature of a special
proceeding and not an ordinary action. The petition merely
seeks for a declaration by the trial court of the presumptive
death of absentee spouse Clemente Jomoc. It does not seek
the enforcement or protection of a right or the prevention or
redress of a wrong. Neither does it involve a demand of right
or a cause of action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order
dated January 13, 2000 denying OSG's Motion for
Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly issued. The
instant petition, being in the nature of a special proceeding,
OSG should have filed, in addition to its Notice of Appeal, a
record on appeal in accordance with Section 19 of the Interim
Rules and Guidelines to Implement BP Blg. 129 and Section
2(a), Rule 41 of the Rules of Court . . . (Emphasis and
underscoring supplied)ςrαlαωlιbrαrÿ
The Republic (petitioner) insists that the declaration of
presumptive death under Article 41 of the Family Code is not
a special proceeding involving multiple or separate appeals
where a record on appeal shall be filed and served in like
manner.
Petitioner cites Rule 109 of the Revised Rules of Court which
enumerates the cases wherein multiple appeals are allowed
and a record on appeal is required for an appeal to be
perfected. The petition for the declaration of presumptive
death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of appeal
suffices.
By Resolution of December 15, 2004,8 this Court, noting that
copy of the September 27, 2004 Resolution 9 requiring
respondent to file her comment on the petition was returned
unserved with postmaster's notation "Party refused,"
Resolved to consider that copy deemed served upon her.
The pertinent provisions on the General Provisions on Special
Proceedings, Part II of the Revised Rules of Court entitled
SPECIAL PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. 'Rules of
special proceedings are provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural
children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. 'In the absence of
special provisions, the rules provided for in ordinary actions
shall be, as far as practicable, applicable in special proceedings.
(Underscoring supplied)ςrαlαωlιbrαrÿ
The pertinent provision of the Civil Code on presumption of
death provides:
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)ςrαlαωlιbrαrÿ
Upon the other hand, Article 41 of the Family Code, upon
which the trial court anchored its grant of the petition for the
declaration of presumptive death of the absent spouse,
provides:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouses had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent
spouses was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose pf contracting the subsequent marriage under
the preceding paragraph, the spouses present must institute
a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without
prejudice to the effect of a reappearance of the absent spouse.
(Emphasis and underscoring supplied)ςrαlαωlιbrαrÿ
Rule 41, Section 2 of the Revised Rules of Court, on Modes of
Appeal, invoked by the trial court in disapproving petitioner's
Notice of Appeal, provides:
Sec. 2. Modes of appeal. -
(a) Ordinary appeal. - The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse
party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals
where the law or these Rules so require. In such cases, the
record on appeal shall be filed and served in like manner.
(Emphasis and underscoring supplied)ςrαlαωlιbrαrÿ
xxx
By the trial court's citation of Article 41 of the Family Code, it
is gathered that the petition of Apolinaria Jomoc to have her
absent spouse declared presumptively dead had for its
purpose her desire to contract a valid subsequent
marriage. Ergo, the petition for that purpose is a "summary
proceeding," following above-quoted Art. 41, paragraph 2 of
the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL
PROCEEDING IN THE FAMILY LAW, contains the following
provision, inter alia:
WHEREFORE, the assailed May 5, 2004 Decision of the Court
of Appeals is hereby REVERSED and SET ASIDE. Let the case be
REMANDED to it for appropriate action in light of the foregoing
discussion.
SO ORDERED.

xxx

Art. 238. Unless modified by the Supreme Court, the

procedural rules in this Title shall applyin all cases provided for
in this Codes requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without
regard to technical rules. (Emphasis and underscoring
supplied)ςrαlαωlιbrαrÿ

x x x,

there is no doubt that the petition of Apolinaria Jomoc

required, and is, therefore, a summary proceeding under the
Family Code, not a special proceeding under the Revised Rules
of Court appeal for which calls for the filing of a Record on
Appeal. It being a summary ordinary proceeding, the filing of a
Notice of Appeal from the trial court's order sufficed.

That the Family Code provision on repeal, Art. 254, provides as

follows:

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30,
31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise
known as the Child and Youth Welfare Code, as amended,
and all laws, decrees, executive orders,
proclamations rules and regulations, or parts
thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring supplied),

seals the case in petitioner's favor.

Finally, on the alleged procedural flaw in petitioner's petition

before the appellate court. Petitioner's failure to attach to his
petition before the appellate court a copy of the trial
court's order denying its motion for reconsideration of the
disapproval of its Notice of Appeal is not necessarily fatal, for
the rules of procedure are not to be applied in a technical
sense. Given the issue raised before it by petitioner, what the
appellate court should have done was to direct petitioner to
comply with the rule.

As for petitioner's failure to submit copy of the trial court's

order granting the petition for declaration of presumptive
death, contrary to the appellate court's observation that
petitioner was also assailing it, petitioner's 8-page
petition10 filed in said court does not so reflect, it merely
having assailed the order disapproving the Notice of Appeal.

[G.R. NO. 160258 : January 19, 2005]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. GLORIA
BERMUDEZ-LORINO, Respondent.
DECISION
GARCIA, J.:
Via this Petition for Review on Certiorari under Rule 45 of the
Rules of Court, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG), seeks
the reversal and setting aside of the decision dated September
23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884,
which affirmed on appeal an earlier decision of the Regional
Trial Court (RTC) at San Mateo, Rizal in a summary judicial
proceeding thereat commenced by the herein respondent
Gloria Bermudez-Lorino for the declaration of the presumptive
death of her absent spouse, Francisco Lorino, Jr., based on the
provisions of Article 41 of the Family Code, for purposes of
remarriage.
A verified petition was filed by herein petitioner through
counsel alleging that she married Francisco Lorino, Jr. on June
12, 1987 but because of the violent character of his husband,
she decided to go back to her parents and lived separately
from her husband. After nine (9) years, there was absolutely
no news about him and she believes that he is already dead
and is now seeking through this petition for a Court declaration
that her husband is judicially presumed dead for the purpose
of remarriage.
Finding the said petition to be sufficient in form and substance,
the same is hereby set for hearing before this Court on
September 18, 2000 at 8:30 o'clock in the morning at which
place, date and time, any or all persons who may claim any
interest thereto may appear and show cause why the same
should not be granted.
Let a copy of this Order be published in a newspaper of general
circulation in this province once a week for three (3)
consecutive weeks and be posted in the bulletin boards of the
Hall of Justice and the Municipal Hall, San Mateo, Rizal, all at
the expense of the
petitioner.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Furnish the Office of the Solicitor General a copy of this Order

The facts may be summarized, as follows:
together with a copy of the petition. Further, send a copy of
this Order to the last known address of Francisco Lorino, Jr. at
Respondent Gloria Bermudez-Lorino (Gloria for brevity), and
719 Burgos St., Sta. Elena, Marikina City.
her husband were married on June 12, 1987. Out of this
marriage, she begot three (3) children, namely: Francis Jeno,
SO ORDERED1
Fria Lou and
Fatima.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The evidence in support of the summary judicial proceeding
are: the order of publication dated August 28, 2000 (Exhibit
Before they got married in 1987, Gloria was unaware that her
"A"); affidavit of publication dated September 16, 2000
husband was a habitual drinker, possessed with violent
(Exhibit "B")2 ; copies of the newspapers where the order
character/attitude, and had the propensity to go out with
appeared (Exhibits "C" to "E-1")3 ; a deposition dated
friends to the extent of being unable to engage in any gainful
September 4, 2000 of Gloria taken in Hong Kong (Exhibit "G") 4 ;
work.
Gloria's affidavit dated October 21, 1999, also executed in
Hong Kong (Exhibit "G‑1")5 ; and a certification by
Because of her husband's violent character, Gloria found it
Department of Foreign Affairs Authentication Officer, Catalina
safer to leave him behind and decided to go back to her
C. Gonzalez, dated November 3, 1999, therein certifying that
parents together with her three (3) children. In order to
the signature of Vice Consul Adriane Bernie C. Candolada,
support the children, Gloria was compelled to work abroad.
appearing below the jurat in Gloria's affidavit of October 21,
1999, is authentic (Exhibit "G‑2")6 .
From the time of her physical separation from her husband in
1991, Gloria has not heard of him at all. She had absolutely no
In a decision dated November 7, 2001, the RTC, finding merit
communications with him, or with any of his relatives.
in the summary petition, rendered judgment granting the
same, to wit:
On August 14, 2000, nine (9) years after she left her husband,
Gloria filed a verified petition with the Regional Trial Court
WHEREFORE, this Court in view of the facts and circumstances
(RTC) at San Mateo, Rizal under the rules on Summary Judicial
obtaining, finds the petition with merit and hereby grants its
Proceedings in the Family Law provided for in the Family Code,
imprimatur to the petition. Judgment is hereby rendered
which petition was docketed in the same court as Special
declaring the presumptive death/absence of Francisco Lorino,
Proceeding No. 325-00 SM.
Jr. pursuant to Art. 41 of the New Family Code but subject to
all restrictions and conditions provided therein.
On August 28, 2000, the RTC issued an order directing, inter
alia, the publication of the petition in a newspaper of general
SO ORDERED.7
circulation, thus:
Despite the judgment being immediately final and executory
under the provisions of Article 247 of the Family Code, thus:
Art. 247. The judgment of the court shall be immediately final
and executory,
the Office of the Solicitor General, for the Republic of the
Philippines, nevertheless filed a Notice of Appeal.8 Acting
thereon, the RTC had the records elevated to the Court of
Appeals which docketed the case as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals,
treating the case as an ordinary appealed case under Rule 41
of the Revised Rules on Civil Procedure, denied the Republic's
appeal and accordingly affirmed the appealed RTC decision:
WHEREFORE, based on the foregoing premises, the instant
appeal is DENIED. Accordingly, the appealed November 7,
2001 Decision of the Regional Trial Court of San Mateo, Rizal
in Spec. Proc. No. 325-00 SM is hereby AFFIRMED.
SO ORDERED.9
Without filing any motion for reconsideration, petitioner
Republic directly went to this Court via the instant recourse
under Rule 45, maintaining that the petition raises a pure
question of law that does not require prior filing of a motion
for reconsideration.
The foregoing factual antecedents present to this Court the
following issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED
JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY
JUDGMENT OF THE REGIONAL TRIAL COURT; andcralawlibrary
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A
JUDICIAL DECLARATION OF PRESUMPTIVE DEATH UNDER
ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN
THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, sets the tenor for
cases covered by these rules, to wit:
Art. 238. Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this
Code requiring summary court proceedings. Such cases shall
be decided in an expeditious manner without regard to
technical rules.
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo,
Rizal duly complied with the above-cited provision by
expeditiously rendering judgment within ninety (90) days after
the formal offer of evidence by therein petitioner, Gloria
Bermudez-Lorino.
The problem came about when the judge gave due course to
the Republic's appeal upon the filing of a Notice of Appeal, and
had the entire records of the case elevated to the Court of
Appeals, stating in her order of December 18, 2001, as follows:
Notice of Appeal having been filed through registered mail on
November 22, 2001 by the Office of the Solicitor General who
received a copy of the Decision in this case on November 14,
2001, within the reglementary period fixed by the Rules, let
the entire records of this case be transmitted to the Court of
Appeals for further proceedings.
SO ORDERED.10
In Summary Judicial Proceedings under the Family Code, there
is no reglementary period within which to perfect an appeal,
precisely because judgments rendered thereunder, by express
provision of Section 247, Family Code, supra, are "immediately
final and executory". It was erroneous, therefore, on the part
of the RTC to give due course to the Republic's appeal and
order the transmittal of the entire records of the case to the
Court of Appeals.
An appellate court acquires no jurisdiction to review a
judgment which, by express provision of law, is immediately
final and executory. As we have said in Veloria v.
Comelec,11 "the right to appeal is not a natural right nor is it a
part of due process, for it is merely a statutory privilege."
Since, by express mandate of Article 247 of the Family Code,
all judgments rendered in summary judicial proceedings in
Family Law are "immediately final and executory", the right to
appeal was not granted to any of the parties therein. The
Republic of the Philippines, as oppositor in the petition for
declaration of presumptive death, should not be treated
differently. It had no right to appeal the RTC decision of
November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting
through its Special Fourth Division, with Justice Elvi John S.
Asuncion as Acting Chairman and ponente, denied the
Republic's appeal and affirmed without modification the final
and executory judgment of the lower court. For, as we have
held in Nacuray v. NLRC :12
Nothing is more settled in law than that when a judgment
becomes final and executory it becomes immutable and
unalterable. The same may no longer be modified in any
respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and
whether made by the highest court of the land (citing Nunal v.
Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).
But, if only to set the records straight and for the future
guidance of the bench and the bar, let it be stated that the
RTC's decision dated November 7, 2001, was immediately final
and executory upon notice to the parties. It was erroneous for
the OSG to file a notice of appeal, and for the RTC to give due
course thereto. The Court of Appeals acquired no jurisdiction
over the case, and should have dismissed the appeal outright
on that ground.

This judgment of denial was elevated to this Court via a

Petition for Review on Certiorari under Rule 45. Although the
result of the Court of Appeals' denial of the appeal would
apparently be the same, there is a big difference between
having the supposed appeal dismissed for lack of jurisdiction
by virtue of the fact that the RTC decision sought to be
appealed is immediately final and executory, and the denial of
the appeal for lack of merit. In the former, the supposed
appellee can immediately ask for the issuance of an Entry of
Judgment in the RTC, whereas, in the latter, the appellant can
still raise the matter to this Court on Petition for Review and
the RTC judgment cannot be executed until this Court makes
the final pronouncement.

The Court, therefore, finds in this case grave error on the part
of both the RTC and the Court of Appeals. To stress, the Court
of Appeals should have dismissed the appeal on ground of lack
of jurisdiction, and reiterated the fact that the RTC decision of
November 7, 2001 was immediately final and executory. As it
were, the Court of Appeals committed grave reversible error
when it failed to dismiss the erroneous appeal of the Republic
on ground of lack of jurisdiction because, by express provision
of law, the judgment was not appealable.

WHEREFORE, the instant petition is hereby DENIED for lack of

merit.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

No pronouncement as to costs.

SO ORDERED.
[G.R. NO. 161062 : July 31, 2009]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. FERVENTINO U.
TANGO, Respondent.
DECISION
QUISUMBING, J.:
This is a Petition for Review on Certiorari of the
Decision1 dated November 28, 2003 of the Court of Appeals in
CA-G.R. CV No. 76387 which denied the Republic's appeal from
the Order2 dated July 23, 2002 of the Regional Trial Court (RTC)
of Ligao City, Branch 11 in Special Proceeding No. 357. The trial
court had declared the wife of respondent Ferventino U. Tango
(Ferventino), Maria Jose Villarba (Maria), presumptively dead
under Article 413 of the Family Code.
The present controversy arose from the following facts:
On March 9, 1987, Ferventino and Maria were married 4 in civil
rites before then Mayor Ignacio Bunye of Muntinlupa City.
None of Maria's relatives witnessed the ceremony as they
were opposed to her relationship with Ferventino. The two
had only spent a night together and had been intimate once
when Maria told Ferventino that she and her family will soon
be leaving for the United States of America (USA). Maria
assured Ferventino, however, that she will file a petition so he
can live with her in the USA. In the event that said petition is
denied, she promised to return to the Philippines to live with
him. On March 13, 1987, Maria and her family flew to Seattle,
USA.
Ferventino alleges that Maria kept in touch for a year before
she stopped responding to his letters. Out of resentment, he
burned all the letters Maria wrote him. He claims to have
forgotten her address since.
Ferventino recounts the efforts he made to find Maria. Upon
inquiry from the latter's uncle, Antonio Ledesma, in Las Piñas,
Ferventino learned that even Maria's relatives were unaware
of her whereabouts. He also solicited the assistance of a friend
in Texas, Capt. Luis Aris of the U.S. Air Force, but to no avail.
Finally, he sought the aid of his parents Antonio and Eusebia in
Los Angeles, and his aunt Anita Castro-Mayor in Seattle. Like,
Ledesma though, their attempts to find Maria proved fruitless.
The next 14 years went by without any news of Maria.
On the belief that his wife had died, Ferventino filed a verified
petition5 dated October 1, 2001 before the Ligao City RTC for
the declaration of presumptive death of Maria within the
contemplation of Article 41 of the Family Code.
When the case was called for initial hearing on January 8, 2002,
nobody entered any opposition. On July 22, 2002, Ferventino
presented evidence ex parte and testified in court about the
details of his search. On July 23, 2002, Branch 11 of the Ligao
City RTC issued an Order, the dispositive portion of which
reads as follows:
WHEREFORE, judgment is hereby rendered, declaring MARIA
JOSE V. VILLARBA, wife of FERVENTINO U. TANGO,
presumptively dead within the meaning of Article 41 of the
Family Code.
SO ORDERED. 6
This prompted the Office of the Solicitor General (OSG), for the
Republic, to file a Notice of Appeal.7 Acting thereon, Presiding
Judge Romulo SG. Villanueva of the Ligao City RTC had the
records of the case transmitted to the Court of Appeals.
The Court of Appeals, treating the case as an ordinary
appealed case under Rule 41 of the Rules of Court, affirmed
the RTC's Order. It held that Maria's absence for 14 years
without information about her location despite diligent search
by Ferventino was sufficient to support a well-founded belief
of her death. The appellate court observed that neither the
OSG nor the Assistant Provincial Prosecutor objected to the
evidence which Ferventino presented on trial. It noted, in
particular, that the OSG did not dispute the adequacy of
Ferventino's basis to engender a well-founded belief that
Maria is dead. Hence, in a Decision dated November 28, 2003,
the Court of Appeals denied the Republic's appeal in this tenor:
WHEREFORE, the appeal is hereby DENIED. Accordingly, the
July 23, 2002 Order of the Regional Trial Court of Ligao City,
Branch 11 in Spec. Proc. No. 357 is AFFIRMED.
SO ORDERED.8
Before us, petitioner anchors this Petition for Review
on Certiorari on the following two grounds:
I.
THE TESTIMONY OF RESPONDENT ON THE ALLEGED EFFORTS
MADE BY HIS FRIEND AND RELATIVES IN LOCATING HIS
MISSING WIFE IN SEATTLE, UNITED STATES, IS HEARSAY AND
DEVOID OF PROBATIVE VALUE[; AND]
II.
EVEN ASSUMING THAT THE AFORESAID TESTIMONY MAY BE
CONSIDERED IN EVIDENCE, THE ALLEGED EFFORTS OF
RESPONDENT'S FRIEND AND RELATIVES IN LOCATING HIS
MISSING WIFE IN SEATTLE, UNITED STATES, DO NOT
SUFFICIENTLY SUPPORT A "WELL-FOUNDED BELIEF" THAT
RESPONDENT'S ABSENT SPOUSE IS PROBABLY DEAD. 9
Unadorned, the issues for our determination are: (1) whether
the testimony of respondent Ferventino is hearsay; and (2)
whether respondent Ferventino has established a basis to
form a well-founded belief that his absent spouse is already
dead.
The Republic, through the OSG, contests the appellate court's
holding that the absence of respondent's wife Maria for 14
years provides sufficient basis to entertain a well-founded
belief that she is dead. The OSG discounts respondent's
testimony, on the steps he took to find Maria, as hearsay
because none of the persons who purportedly helped in his
search testified in court. Notably, the OSG observes that only
Capt. Aris gave a detailed account of his efforts to track down
Maria. According to Capt. Aris, he went over the Seattle phone
directory for Maria's name and inquired about her from the
registrar's office in Seattle, but both efforts proved to be in
vain.
The OSG belittles its failure to object to the admissibility of
respondent's testimony during trial. Instead, it invokes
Constitutional provisions that advocate the state policy of
preserving marital institutions.
On March 16, 2007, respondent's counsel, Atty. Richie R.
Regala, manifested to this Court his intent to withdraw as
counsel for respondent. According to Atty. Regala, he received
a letter by which respondent expressed a desire to withdraw
from the proceeding.10 In view of this, the Court issued a
Resolution11 on April 21, 2008 which deemed as waived the
filing of respondent's comment on the petition. Previously, the
Court of Appeals had also issued a Resolution 12 dated October
15, 2003 submitting the case for decision and ordering its re-
raffling for respondent's failure to file an appellee's brief. In
other words, apart from the verified petition for the
declaration of presumptive death of Maria dated October 1,
2001, which respondent filed before the Ligao City RTC, he has
not submitted any other pleading in connection with the
petition.
Respondent's apparent lack of desire to pursue the
proceedings notwithstanding, the Court is inclined to rule
against the Republic.
This case presents an opportunity for us to settle the rule on
appeal of judgments rendered in summary proceedings under
the Family Code and accordingly, refine our previous decisions
thereon.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes the
rules that govern summary court proceedings in the Family
Code:
ART. 238. Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this
Code requiring summary court proceedings. Such cases shall
be decided in an expeditious manner without regard to
technical rules.
In turn, Article 253 of the Family Code specifies the cases
covered by the rules in chapters two and three of the same
title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41,
51, 69, 73, 96, 124 and 217, insofar as they are applicable.
(Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART 247. The judgment of the court shall be immediately final
and executory.
By express provision of law, the judgment of the court in a
summary proceeding shall be immediately final and executory.
As a matter of course, it follows that no appeal can be had of
the trial court's judgment in a summary proceeding for the
declaration of presumptive death of an absent spouse under
Article 41 of the Family Code. It goes without saying, however,
that an aggrieved party may file a petition for certiorari to
question abuse of discretion amounting to lack of jurisdiction.
Such petition should be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy of Courts. To be
sure, even if the Court's original jurisdiction to issue a writ
of certiorari is concurrent with the RTCs and the Court of
Appeals in certain cases, such concurrence does not sanction
an unrestricted freedom of choice of court forum. 13 From the
decision of the Court of Appeals, the losing party may then file
a Petition for Review on Certiorari under Rule 45 of the Rules
of Court with the Supreme Court. This is because the errors
which the court may commit in the exercise of jurisdiction are
merely errors of judgment which are the proper subject of an
appeal.14 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
In the case before us, petitioner committed a serious
procedural lapse when it filed a notice of appeal in the Court
of Appeals instead of a petition for certiorari . The RTC equally
erred in giving due course to said appeal and ordering the
transmittal of the records of the case to the appellate court. By
no means did the Court of Appeals acquire jurisdiction to
review the judgment of the RTC which, by express provision of
law, was immediately final and executory.
Adding to the confusion, the Court of Appeals entertained the
appeal and treated the same as an ordinary appeal under Rule
41 of the Rules of Court. As it were, the Court of Appeals
committed grave reversible error when it failed to dismiss the
erroneous appeal of the Republic on the ground of lack of
jurisdiction because, by express provision of the law, the
judgment was not appealable.15
Before us, petitioner filed a Petition for Review
on Certiorari under Rule 45 of the Rules of Court. But, even if
petitioner used the correct mode of appeal at this level, the
hands of the Court are tied. Without a doubt, the decision of
the trial court had long become final.
Deeply ingrained in our jurisprudence is the principle that a
decision that has acquired finality becomes immutable and
unalterable. As such, it may no longer be modified in any
respect even if the modification is meant to correct erroneous
conclusions of fact or law and whether it will be made by the
court that rendered it or by the highest court of the land. 16 In
light of the foregoing, it would be unnecessary, if not useless,
to discuss the issues raised by petitioner.

The doctrine of finality of judgment is grounded on the

fundamental principle of public policy and sound practice that,
at the risk of occasional error, the judgment of courts and the
award of quasi-judicial agencies must become final on some
definite date fixed by law. The only exceptions to the general
rule are the correction of clerical errors, the so-called nunc pro
tunc entries which cause no prejudice to any party, void
judgments, and whenever circumstances transpire after the
finality of the decision which render its execution unjust and
inequitable.17 None of the exceptions obtains here to merit the
review sought.

WHEREFORE the instant petition is DENIED for lack of merit.

No pronouncement as to costs.

SO ORDERED.