TESTATE ESTATE OF MARIA MANUEL Vda.

DE BIASCAN
vs.
ROSALINA C. BIASCAN
G.R. No. 138731
December 11, 2000

Actions; Special Proceedings; Estate Proceedings; Probate Proceedings; Appeals; An appeal is

allowed in the cases mentioned in Section 1, Rule 109 as these orders, decrees or judgments
issued by a court in a special proceeding constitute a final determination of the rights of the
parties so appealing.—An appeal is allowed in these aforesaid cases as these orders, decrees
or judgments issued by a court in a special proceeding constitute a final determination of the
rights of the parties so appealing. In contrast, interlocutory orders are not appealable as these
are merely incidental to judicial proceedings. In these cases, the court issuing such orders
retains control over the same and may thus modify, rescind, or revoke the same on sufficient
grounds at anytime before final judgment.

Same; Same; Same; Same; Same; The trial court, by so ruling that certain persons are entitled
to participate in the settlement proceedings, has effectively determined that the said persons are
the lawful heirs of the deceased, and said ruling may be the proper subject of an appeal.—In the
instant case, the Order dated April 2, 1981 of the trial court decreed, among others, that Maria
Manuel Vda. De Biascan, the lawful wife of the deceased Florencio Biascan, private respondent
Rosalina Biascan and her brother, German Biascan, are entitled to participate in the settlement
proceedings. Moreover, the said Order likewise denied Maria’s motion to set aside the order
appointing private respondent as regular administratrix of the estate. These rulings of the trial
court were precisely questioned by Maria in her Motion for Reconsideration dated June 6, 1981.
The ruling of the trial court that Maria, private respondent Rosalina Biascan and German
Biascan were entitled to participate in the settlement proceedings falls squarely under
paragraph (b), Section 1, Rule 109 of the Rules of Court as a proper subject of appeal. By so
ruling, the trial court has effectively determined that the three persons are the lawful heirs of the
deceased. As such, the same may be the proper subject of an appeal.

Same; Same; Same; Same; Same; Administrators; An order of the trial court appointing a
regular administrator of a deceased person’s estate is a final determination of the rights of the
parties thereunder, and is thus, appealable.—The ruling of the trial court denying petitioner’s
motion to set aside the order appointing private respondent as the regular administratrix of the
estate of Florencio Biascan is likewise a proper subject of an appeal. We have previously held
that an order of the trial court appointing a regular administrator of a deceased person’s estate
is a final determination of the rights of the parties thereunder, and is thus, appealable. This is in
contrast with an order appointing a special administrator who is appointed only for a limited time
and for a specific purpose. Because of the temporary character and special character of this
appointment, the Rules deem it not advisable for any party to appeal from said temporary
appointment. Considering however that private respondent has already been appointed as
regular administratrix of the estate of Florencio Biascan, her appointment as such may be
questioned before the appellate court by way of appeal.

Same; Same; Same; Same; Same; Pleadings and Practice; In special proceedings, such as a
proceeding for the settlement of estate, the period of appeal from any decision or final order
rendered therein is thirty (30) days, a notice of appeal and a record on appeal being
required.—It is thus clear that the Order dated April 2, 1981 may be the proper subject of an
appeal in a special proceeding. In special proceedings, such as the instant proceeding for
settlement of estate, the period of appeal from any decision or final order rendered therein is
thirty (30) days, a notice of appeal and a record on appeal being required. The appeal period
may only be interrupted by the filing of a motion for new trial or reconsideration. Once the
appeal period expires without an appeal or a motion for reconsideration or new trial being
perfected, the decision or order becomes final.

Same; Same; Same; Same; Same; It is well-settled that judgments or orders become final and
executory by operation of law and not by judicial declaration, and it is of no moment that the
opposing party failed to object to the timeliness of the motion for reconsideration or that the
court denied the same on grounds other than timeliness.—It is well-settled that judgments or
orders become final and executory by operation of law and not by judicial declaration. Thus,
finality of a judgment becomes a fact upon the lapse of the reglementary period of appeal if no
appeal is perfected or motion for reconsideration or new trial is filed. The trial court need not
even pronounce the finality of the order as the same becomes final by operation of law. In fact,
the trial court could not even validly entertain a motion for reconsideration filed after the lapse of
the period for taking an appeal. As such, it is of no moment that the opposing party failed to
object to the timeliness of the motion for reconsideration or that the court denied the same on
grounds other than timeliness considering that at the time the motion was filed, the Order dated
April 2, 1981 had already become final and executory. Being final and executory, the trial court
can no longer alter, modify, or reverse the questioned order. The subsequent filing of the motion
for reconsideration cannot disturb the finality of the judgment or order.

Same; Same; Same; Same; Same; The rules on special proceedings recognize that a motion
for extension of time to file the notice of appeal and record of appeal may be
granted.—Considering that it is clear from the records that petitioner’s notice of appeal was filed
on September 20, 1996, the same was clearly filed out of time as it only had until August 22,
1996 within which to file the said pleading. And while the rules on special proceedings recognize
that a motion for extension of time to file the notice of appeal and record of appeal may be
granted, no such motion was ever filed by petitioner before the trial court. Consequently, the trial
court committed no error when it dismissed the appeal of petitioner.

This is a petition for review of the decision of the Court of Appeals in CA-G.R. SP Case No.
44306 affirming the orders dated October 22, 1996 and February 12, 1997 of the Regional Trial
Court, Branch 4, Manila. These orders dismissed the appeal of petitioner from the orders dated
April 2, 1981 and April 30, 1985 of the same Regional Trial Court.

The facts of the case are as follows:

On June 3, 1975, private respondent Rosalina J. Biascan filed a petition denominated as

Special Proceeding No. 98037 at the then Court of First Instance, Branch 4, Manila praying for
her appointment as administratrix of the intestate estate of Florencio Biascan and Timotea
Zulueta. In an Order dated August 13, 1975, private respondent was appointed as regular
administratrix of the estates.

On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of Florencio Biascan
entered her appearance as Oppositor-Movant in SP. Proc. No. 98037. Simultaneous with her
appearance, she filed a pleading containing several motions including a motion for intervention,
a motion for the setting aside of private respondent’s appointment as special administratrix and
administratrix, and a motion for her appointment as administratrix of the estate of Florencio
Biascan.

After an exchange of pleadings between the parties, Judge Serafin Cuevas, then presiding
judge of CFI Manila, Branch 4, issued an Omnibus Order dated November 13, 1975 which,
among others, granted Maria’s intervention and set for trial the motion to set aside the Orders
appointing respondent as administratrix.

On April 2, 1981, the trial court issued an Order resolving that: (1) Maria is the lawful wife of
Florencio; (2) respondent and her brother are the acknowledged natural children of Florencio;
(3) all three are the legal heirs of Florencio who are entitled to participate in the settlement
proceedings; (4) the motion to set aside the order appointing private respondent as
administratrix is denied; and (5) the motion to approve inventory and appraisal of private
respondent be deferred. Maria, through her counsel, received a copy of this April 2, 1981 Order
on April 9, 1981.

On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981 Order, Maria filed
her motion for reconsideration which private respondent opposed.
On November 15, 1981, the fourth floor of the City Hall of Manila was completely gutted by fire.
The records of the settlement proceedings were among those lost in the fire. Thus, on January
2, 1985, private respondent filed a Petition for Reconstitution of the said records.

Due to the delay caused by the fire and the reconstitution of the records, it was only on April 30,
1985 that the Regional Trial Court of Manila, Branch 4 issued an Order denying Maria’s June 6,
1981 Motion for Reconsideration.

Sometime thereafter, Maria died and her testate estate also became the subject of settlement
proceedings. Atty. Marcial F. Lopez was appointed as interim special administrator and engaged
the services of the Siguion Reyna Montecillo and Ongsiako Law Offices on Behalf of the estate.

On August 21, 1996, the law firm was allegedly made aware of and given notice of the April 30,
1985 Order when its associate visited Branch 4 of the Regional Trial Court of Manila to inquire
about the status of the case. The associate checked the records if there was proof of service of
the April 30, 1985 Order to the former counsel of Maria, Atty. Marcial F. Lopez, but he
discovered that there was none. He was able to secure a certification from the Clerk of Court of
the Regional Trial Court of Manila, Branch 4 which stated that there was no proof of service of
the Order dated April 30, 1985 contained in the records of SP. Proc. No. 98037.

A Notice of Appeal dated April 22, 1996 was filed by petitioner from the Orders dated April 2,
1981 and April 30, 1985 of the trial court. While the said notice of appeal was dated April 22,
1996, the stamp of the trial court on the first page of the notice clearly indicated that the same
was received by the trial court on September 20, 1996. A Record of Appeal dated September
20, 1996 was likewise filed by petitioner.

On October 22, 1996, the trial court issued an Order denying petitioner’s appeal on the ground
that the appeal was filed out of time. The trial court ruled that the April 2, 1981 Order which was
the subject of the appeal already became final as the Motion for Reconsideration thereof was
filed sixty-five (65) days after petitioner received the same. In addition, the court ruled that the
notice of appeal itself was filed manifestly late as the same was filed more than 11 years after
the issuance of the June 11, 1985 Order denying petitioner’s Motion for Reconsideration. The
Motion for Reconsideration dated November 13, 1996 of petitioner was likewise denied by the
trial court in an Order dated February 12, 1997.

Not satisfied with this decision, petitioner filed a Petition for Certiorari with Prayer for Mandatory
Injunction with the Court of Appeals questioning the October 12, 1996 and February 12, 1997
Orders of the Regional Trial Court.

In a Decision dated February 16, 1999, the First Division of the Court of Appeals denied the
petition for certiorari of petitioner. Petitioner’s Motion for Reconsideration was likewise denied by
the appellate court in a Resolution dated May 18, 1999.

Hence, this Petition for Review on Certiorari where petitioner sets forth the following ground for
the reversal of the decision of the appellate court:

"THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT) HAS

SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL COURT OF MANILA BRANCH 4
(TRIAL COURT) FROM THE USUAL COURSE OF JUDICIAL PROCEEDING IN ISSUING THE
ASSAILED 16 FEBRUARY 1999 DECISION AND THE 18 MAY 1999 RESOLUTION WHEN IT
AFFIRMED THE ERRONEOUS FINDING OF THE TRIAL COURT THAT THE ORDER DATED
APRIL 2, 1981 BECAME FINAL AND EXECUTORY DESPITE THE FACT THAT NO
OPPOSITION ON ITS TIMELINESS WAS FILED AND MOREOVER NO RULING AS
REGARDS ITS TIMELINESS WAS MADE."

There is no merit in the petition.

Section 1, Rule 109 of the Rules of Court enumerates the orders and judgments in special
proceedings which may be the subject of an appeal. Thus:
"Section 1. Orders or judgments from which appeals may be taken. – An interested person may
appeal in a special proceeding from an order or judgment rendered by a Regional Trial Court or
a Juvenile and domestic Relations Court, where such order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive shares of the
estate to which such person is entitled;

(c) Allows, or disallows, in whole or in part, any claim against the estate of a deceased person,
or any claim presented on behalf of the estate in offset to a claim against it;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a final determination in the lower court of the rights
of the party appealing, except that no appeal shall be allowed from the appointment of a special
administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the
person appealing, unless it be an order granting or denying a motion for new trial or for
reconsideration."

An appeal is allowed in these aforesaid cases as these orders, decrees or judgments issued by
a court in a special proceeding constitute a final determination of the rights of the parties so
appealing. In contrast, interlocutory orders are not appealable as these are merely incidental to
judicial proceedings. In these cases, the court issuing such orders retains control over the same
and may thus modify, rescind, or revoke the same on sufficient grounds at any time before the
final judgment.

In the instant case, the Order dated April 2, 1981 of the trial court decreed, among others, that
Maria Manuel Vda. De Biascan, the lawful wife of the deceased Florencio Biascan, private
respondent Rosalina Biascan and her brother, German Biascan, are entitled to participate in the
settlement proceedings. Moreover, the said Order likewise denied Maria’s motion to set aside
the order appointing private respondent as regular administratrix of the estate. These rulings of
the trial court were precisely questioned by Maria in her Motion for Reconsideration dated June
6, 1981.1âwphi1

The ruling of the trial court that Maria, private respondent Rosalina Biascan and German
Biascan were entitled to participate in the settlement proceedings falls squarely under
paragraph (b), Section 1, Rule 109 of the Rules of Court as a proper subject of appeal. By so
ruling, the trial court has effectively determined that the three persons are the lawful heirs of the
deceased. As such, the same may be the proper subject of an appeal.

Similarly, the ruling of the trial court denying petitioner’s motion to set aside the order appointing
private respondent as the regular administratrix of the estate of Florencio Bisacan is likewise a
proper subject of an appeal. We have previously held that an order of the trial court appointing a
regular administrator of a deceased person’s estate is a final determination of the rights of the
parties thereunder, and is thus, appealable. This is in contrast with an order appointing a special
administrator who is appointed only for a limited time and for a specific purpose. Because of the
temporary character and special character of this appointment, the Rules deem it not advisable
for any party to appeal from said temporary appointment. Considering however that private
respondent has already been appointed as regular administratrix of the estate of Florencio
Biascan, her appointment as such may be questioned before the appellate court by way of
appeal.

It is thus clear that the Order dated April 2, 1981 may be the proper subject of an appeal in a
special proceeding. In special proceedings, such as the instant proceeding for settlement of
estate, the period of appeal from any decision or final order rendered therein is thirty (30) days,
a notice of appeal and a record on appeal being required. The appeal period may only be
interrupted by the filing of a motion for new trial or reconsideration. Once the appeal period
expires without an appeal or a motion for reconsideration or new trial being perfected, the
decision or order becomes final.

With respect to the Order dated April 2, 1981 issued by the trial court, petitioner admits that
Maria Manuel Vda. De Biascan, its predecessor-in-interest, received a copy of the same of April
9, 1981. Applying these rules, Maria or her counsel had thirty (30) days or until May 9 within
which to file a notice of appeal with record on appeal. She may also file a motion for
reconsideration, in which case the appeal period is deemed interrupted.

Considering that it was only June 6, 1981, or a full fifty-eight (58) days after receipt of the order,
that a motion for reconsideration was filed, it is clear that the same was filed out of time. As
such, when the said motion for reconsideration was filed, there was no more appeal period to
interrupt as the Order had already become final.

Petitioner insists, however, that the order dated April 2, 1981 of the trial court did not become
final and executory as no opposition on its timeliness was filed and no ruling as regards its
timeliness was made. Petitioner argues that although its motion for reconsideration was denied
in the Order dated April 30, 1985, the denial was made on grounds other than its failure to ask
for a reconsideration within the period prescribed by law. As such, petitioner concludes, any
procedural defect attending the Motion for Reconsideration was deemed cured when the trial
court, in its Order dated April 30, 1985, took cognizance of the same and rendered its ruling
thereon.

There is no merit in this argument.

It is well-settled that judgment or orders become final and executory by operation of law and not
by judicial declaration. Thus, finality of a judgment becomes a fact upon the lapse of the
reglementary period of appeal if no appeal is perfected or motion for reconsideration or new trial
is filed. The trial court need not even pronounce the finality of the order as the same becomes
final by operation of law. In fact, the trial court could not even validly entertain a motion for
reconsideration filed after the lapse of the period for taking an appeal. As such, it is of no
moment that the opposing party failed to object to the timeliness of the motion for
reconsideration or that the court denied the same on grounds other than timeliness considering
that at the time the motion was filed, the Order dated April 2, 1981 had already become final
and executory. Being final and executory, the trial court can no longer alter, modify, or reverse
the questioned order. The subsequent filing of the motion for reconsideration cannot disturb the
finality of the judgment or order.

Even if we assume that the Motion for Reconsideration filed by petitioner had the effect of
suspending the running of the appeal period for the April 2, 1981 Order, it is clear that
petitioner’s notice of appeal of the orders of the trial court was still filed out of time.

Under Section 3, Rule 41 of the Rules of Court then applicable, the time during which a motion
to set aside the judgment or order or for a new trial shall be deducted from the period from
which to make an appeal. The rule further states that where the motion was filed during office
hours of the last day of the appeal period, the appeal must be perfected within the day following
that in which the party appealing received notice of the denial of said motion.

The Order of the trial court denying petitioner’s Motion for Reconsideration of the April 2, 1981
Order was issued on April 30, 1985. Allegedly, petitioner was only made aware of this April 30,
1985 Order on August 21, 1996 when it inquired from the trial court about the status of the case.
Giving petitioner the benefit of the doubt that it had indeed received notice of the order denying
its motion for reconsideration on August 21, 1996, it follows that petitioner only had until the
following day or on August 22, 1996 within which to perfect the appeal.

At this point, we note with disapproval petitioner’s attempt to pass off its Notice of Appeal as
having been filed on August 22, 1996. In all its pleadings before this Court and the Court of
Appeals, petitioner insists that its Notice of Appeal was filed the day after it secured the August
21, 1996 Certification from the trial court. While the Notice of Appeal was ostensibly dated
August 22, 1996, it is clear from the stamp of the trial court that the same was received only on
September 20, 1996. Moreover, in the Order dated October 22, 1996 of the trial court denying
petitioner’s appeal, the court clearly stated that the Notice of Appeal with accompanying Record
on Appeal was filed on September 20, 1996.

Considering that it is clear from the records that petitioner’s notice of appeal was filed on
September 20, 1996, the same was clearly filed out of time as it only had until August 22, 1996
within which to file the said pleading. And while the rules on special proceedings recognize that
a motion for extension of time to file the notice of appeal and record of appeal may be granted,

WHEREFORE, premises considered, we hereby DISMISS the petition for lack of merit. The
decision dated February 16, 1999 and the Resolution dated May 18, 1999 of the Court of
Appeals are hereby AFFIRMED.

Facts:
● 13 Aug 1975: Rosalina was appointed regular administratrix of the intestate estate of
Florencio Biascan (and Timotea Zulueta).
● 10 Oct 1975: Maria Vda de Biascan files a motion to intervene, a motion to set aside the
appointment of Rosalina as regular administratrix and a motion to have herself
appointed as administratrix of Florencio's estate.
● 2 Apr 1981: CFI Manila under Judge Serafin Cuevas issued an Order resolving that:
● Maria is the lawful wife of Florencio
● Rosalina and her brother German are the acknowledged natural children of Florencio
● All 3 are the legal heirs of Florencio and are entitled to participate in the settlement
proceedings
● Motion to set aside the Order appointing Rosalina administratrix of Florencio's estate IS
DENIED
● Motion to approve inventory and appraisal of Rosalina is deferred
● 9 Apr 1981: Maria, through counsel receives above Order.
● 6 Jun 1981: Maria files her motion for reconsideration (MR), which Rosalina opposed.
(58 days after receipt of Order)
● 15 Nov 1981: Records of the case were completely lost in a fire that gutted the 4th Flr of
Manila City Hall. Petition for Reconstitution of the records of the case was filed on 2 Jan
1985.
● 30 Apr 1985: RTC Manila DENIES Maria's MR.
● Maria dies sometime after. (No Date of Death). Her counsel, Atty Lopez is appointed
special administrator of her estate. He engages the services of another law firm in behalf
of Maria's estate.
● 21 Aug 1996 or (almost 11 yrs after denial of MR): Law firm allegedly made aware of
denial of MR, but was able to secure a certification from the Clerk of Court that there was
no proof of service of the Order dated 30 Apr 1985 contained in the records.
● 20 Sep 1996: Trial court received Notice of Appeal (dated 22 Aug 1996, but stamped
"Received on 20 Sep 1996"). A Record of Appeal was also filed on the same date.
● Trial Court issues Order DENYING Estate of Maria's appeal on the ground that it was
filed out of time. (MR filed 65 days after Order and Notice of Appeal filed 11 years after
denial of MR)
● Trial Court denies Estate of Maria's MR (to allow her to appeal)
● CA denies Maria's Petition for Certiorari with Prayer for Mandatory Injunction which
questioned the RTC's refusal to allow her to appeal the Orders issued in 1981.
● Estate of Maria: April 1981 Order did not become final and executory as no opposition
on its timeliness was filed and no ruling as regards to its timeliness was made.

TL;DR
Maria Vda de Biascan (legal wife of Florencio) is opposing the appointment of Rosalina
(Florencio's acknowledged natural child) as administratrix of his intestate estate. RTC does not
set aside appointment and refuses to let her appeal ruling to CA because Notice and Record on
Appeal were filed late.

Issues:
1. Based on subject matter, WoN the Order issued in Apr 1981 is subject to appeal? (YES)
2. WoN the appeal was perfected on time? (NO)
Ruling:
1. YES. The ruling of the trial court falls squarely under Sec 1(b) and 1(e) of Rule 109.
Orders, decrees or judgments issued by a court in a special proceeding which constitute
a final determination of the rights of the parties are the proper subject of an appeal. In
contrast, interlocutory orders are not appealable as these are merely incidental to judicial
proceedings.
The appointment of a special administrator for a limited time or specific purpose should not be
appealed because of its temporary and special character.

2. NO. Party has 30 days to perfect appeal (file Notice of Appeal with Record on Appeal) or
file MR to interrupt the period.

In special proceedings, the period of appeal from any decision or final order rendered
therein is thirty (30) days, a notice of appeal and a record on appeal being required to
perfect the appeal. The appeal period may only be interrupted by the filing of a motion
for new trial or reconsideration. Once the appeal period expires without an appeal or a
motion for reconsideration or new trial being perfected, the decision or order becomes
final.

Under Sec 3, Rule 41, the time during which a motion to set aside the judgment or order
or for a new trial shall be deducted from the period from which to make an appeal.

Where the motion was filed during office hours of the last day of the appeal period, the
appeal must be perfected within the day following that in which the party appealing
received notice of the denial of said motion.
9 Apr 1981: Received Order >>> Deadline 9 May 1981 (30days after Order).
6 Jun 1981: Filed MR >>> Out of Time (58 days after Order). No appeal period to
interrupt as Order had become final. Trial court would have been justified in not
entertaining MR at all.

Even if the MR interrupted the period of appeal (ex. MR filed on 30th day) and assuming
the new law firm really found out about denial of MR only on 21 Aug 1996:
21 Aug 1996: Allegedly found out about Denial of MR >>> Deadline 22 Aug
1996.
20 Sep 1996: Notice of Appeal with Record of Appeal filed. (Court disapproves of
law
 REPUBLIC OF THE PHILIPPINES
vs.
NISAIDA SUMERA NISHINA, represented by ZENAIDA SUMERA WATANABE
G.R. No. 186053
November 15, 2010

Actions; Special Proceedings; Appeals; Multiple Appeals; Record on Appeal; The filing of a
record on appeal is not necessary where no other matter remains to be heard and determined
by the trial court after it issued the appealed order granting the petition for cancellation of birth
record and change of surname in the civil registry.—Section 1, Rule 109 of the 1997 Rules of
Civil Procedure specifies the orders or judgments in special proceedings which may be the
subject of an appeal, viz.: x x x The above-quoted rule contemplates multiple appeals during the
pendency of special proceedings. A record on appeal—in addition to the notice of appeal—is
thus required to be filed as the original records of the case should remain with the trial court to
enable the rest of the case to proceed in the event that a separate and distinct issue is resolved
by said court and held to be final. In the present case, the filing of a record on appeal was not
necessary since no other matter remained to be heard and determined by the trial court after it
issued the appealed order granting respondent’s petition for cancellation of birth record and
change of surname in the civil registry.

Nisaida Sumera Nishina (respondent), represented by her mother Zenaida Sumera Watanabe
(Zenaida), filed before the Regional Trial Court (RTC) of Malolos, Bulacan a verified petition for
cancellation of birth record and change of surname in the civil registry of Malolos, Bulacan,
docketed as Special Proceedings No. 106-M-2007.

In her petition, respondent alleged the following:

She was born on October 31, 1987 in Malolos, Bulacan to her Filipino mother Zenaida and
Japanese father Koichi Nishina who were married on February 18, 1987. Her father later died.
On July 19, 1989, her mother married another Japanese, Kenichi Hakamada.

As they could not find any record of her birth at the Malolos civil registry, respondent’s mother
caused the late registration of her birth in 1993 under the surname of her mother’s second
husband, "Hakamada." Her mother and Hakamada eventually divorced.

On May 29, 1996, her mother married another Japanese, Takayuki Watanabe, who later
adopted her by a decree issued by the Tokyo Family Court of Japan on January 25, 2001. The
adoption decree was filed and recorded in the civil registry of Manila in 2006.

In 2007, it surfaced that her birth was in fact originally registered at the Malolos Civil Registry
under the name "Nisaida Sumera Nishina," hence, her filing before the RTC of her petition
praying that her second birth certificate bearing the surname "Hakamada," issued through late
registration in 1993, be cancelled; and that in light of the decree of adoption, her surname
"Nishina" in the original birth certificate be changed to "Watanabe."

After hearing the petition, Branch 83 of the RTC, by Order of October 8, 2007, granted
respondent’s petition and directed the Local Civil Registry of Malolos "to cancel the second birth
record of Nisaida Sumera Hakamada issued in 1993 [bearing] Registry No. 93-06684 and to
change it [in its stead] Registry No. 87-04983, particularly the surname of [respondent] from
NISAIDA SUMERA NISHINA to NISAIDA SUMERA WATANABE."

A copy of the October 8, 2007 Order was received on December 13, 2007 by the OSG which
filed, on behalf of petitioner, a notice of appeal.

Before the Court of Appeals, respondent filed a motion to dismiss the appeal, alleging that
petitioner adopted a wrong mode of appeal since it did not file a record on appeal as required
under Sections 2 and 3, Rule 41 (appeal from the RTCs) of the 1997 Rules of Civil Procedure
reading:

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.

xxxx

SEC. 3. Period of ordinary appeal. – The appeal shall be taken within fifteen (15) days from
notice 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 from notice
of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within
forty-eight (48) hours from notice of the judgment or final order appealed from. (A.M. No.
01-1-03- SC, June 19, 2001)

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.
(emphasis, underscoring and italics supplied)

xxxx

SEC. 9. Perfection of appeal; effect thereof. – x x x.

A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal filed in due time.

xxxx

Opposing the motion, petitioner countered that a record on appeal is required only in
proceedings where multiple appeals may arise, a situation not obtaining in the present case.

By Resolution of September 2, 2008, the appellate court dismissed petitioner’s appeal, holding
that since respondent’s petition before the RTC "is classified as a special proceeding," petitioner
should have filed both notice of appeal and a record on appeal within 30 days from receipt of
the October 8, 2007 Order granting respondent’s petition, and by not filing a record on appeal,
petitioner "never perfected" its appeal.

Its motion for reconsideration having been denied by Resolution of December 22, 2008,
petitioner filed the present petition for review on certiorari.

The petition is meritorious.

Section 1, Rule 109 of the 1997 Rules of Civil Procedure specifies the orders or judgments in
special proceedings which may be the subject of an appeal, viz:

SECTION 1. Orders or judgments from which appeals may be taken. – An interested person
may appeal in special proceedings from an order or judgment rendered by a Court of First
Instance or a Juvenile and Domestic Relations Court, where such order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the
estate to which such person is entitled;

(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person,
or any claim presented on behalf of the estate in offset to a claim against it;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a final determination in the lower court of the rights
of the party appealing, except that no appeal shall be allowed from the appointment of a special
administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the
person appealing unless it be an order granting or denying a motion for a new trial or for
reconsideration.

The above-quoted rule contemplates multiple appeals during the pendency of special
proceedings. A record on appeal – in addition to the notice of appeal – is thus required to be
filed as the original records of the case should remain with the trial court to enable the rest of
the case to proceed in the event that a separate and distinct issue is resolved by said court and
held to be final.

In the present case, the filing of a record on appeal was not necessary since no other matter
remained to be heard and determined by the trial court after it issued the appealed order
granting respondent’s petition for cancellation of birth record and change of surname in the civil
registry.

The appellate court’s reliance on Zayco v. Hinlo, Jr. in denying petitioner’s motion for
reconsideration is misplaced. In Zayco which was a petition for letters of administration of a
deceased person’s estate, the decedent’s children appealed the trial court’s order appointing the
grandson of the decedent as administrator of the estate. Their notice of appeal and record on
appeal were denied due course by the trial court on the ground that the appealed order is
interlocutory and not subject to appeal. But even if the appeal were proper, it was belatedly filed.
On certiorari by the decedent’s children, the appellate court sustained the trial court. On petition
for review, this Court reversed the appellate court, holding that "[a]n order appointing an
administrator of a deceased person’s estate is a final determination of the rights of the parties in
connection with the administration, management and settlement of the decedent’s estate,"
hence, the order is "final" and "appealable.” The Court also held that the appeal was filed on
time.

In Zayco, unlike in the present case, a record on appeal was obviously necessary as the
proceedings before the trial court involved the administration, management and settlement of
the decedent’s estate– matters covered by Section 1 of Rule 109 wherein multiple appeals
could, and did in that case, call for them.

WHEREFORE, the petition is GRANTED. The Court of Appeals Resolutions of September 2,

2008 and December 22, 2008 in CA G.R. CV No. 90346 are REVERSED and SET ASIDE. The
appeal of petitioners before the appellate court is REINSTATED.

Facts:

NAPOCOR filed a complaint for expropriation against petitioners for the construction of the
AGUS VI Kauswagan 69 KV Transmission Line Project. Petitioners opposed contending that the
expropriation would render the remaining portion of their property valueless and unfit for
whatever purpose. The trial court, in its decision, determined NAPOCOR’s authority to exercise
the power of eminent domain and fixed the just compensation for the property sought to be
expropriated. And on its supplemental decision, ruled that petitioners are entitled to
consequential damages because NAPOCOR’s expropriation impaired the value of the
remaining area and deprived petitioners of the ordinary use of their property. NAPOCOR filed a
motion for reconsideration which was denied for being moot and academic because a Notice of
Appeal was also filed by the latter on the trial court’s supplemental decision. The corresponding
writ of execution was ordered thereon. Hence, NAPOCOR filed a special civil action for certiorari
with a prayer for a temporary restraining order before the Court of Appeals. NAPOCOR argued
that the trial court acted without or in excess of jurisdiction and gravely abused its discretion
when it denied NAPOCOR’s notice of appeal of the 19 March 2002 Supplemental Decision on
the sole ground that it was not filed and served personally. Petitioner, on the other hand, moved
for its dismissal because NAPOCOR failed to file a record on appeal.
Issue:

WON filing of a record on appeal is necessary in special proceedings.

Ruling:
No. No record on appeal shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or the Rules of Court so require. The reason for
multiple appeals in the same case is to enable the rest of the case to proceed in the event that a
separate and distinct issue is resolved by the trial court and held to be final. In such a case, the
filing of a record on appeal becomes indispensable since only a particular incident of the case is
brought to the appellate court for resolution with the rest of the proceedings remaining within the
jurisdiction of the trial court. In this case, since the trial court fully and finally resolved all
conceivable issues in the complaint for expropriation, there was no need for NAPOCOR to file a
record on appeal.
 SPOUSES ELBE LEBIN and ERLINDA LEBIN
vs.
VILMA S. MIRASOL, and REGIONAL TRIAL COURT OF ILOILO, BRANCH XXVII
G.R. No. 164255
September 7, 2011

Civil Procedure; Appeals; The party who intends to appeal must always comply with the
procedures and rules governing appeals, or else the right of appeal may be lost or
squandered.—The changes and clarifications recognize that appeal is neither a natural nor a
constitutional right, but merely statutory, and the implication of its statutory character is that the
party who intends to appeal must always comply with the procedures and rules governing
appeals, or else the right of appeal may be lost or squandered.

Same; Same; An appeal by notice of appeal is a mode that envisions the elevation of the
original records to the appellate court.—An appeal by notice of appeal is a mode that envisions
the elevation of the original records to the appellate court as to thereby obstruct the trial court in
its further proceedings regarding the other parts of the case. In contrast, the record on appeal
enables the trial court to continue with the rest of the case because the original records remain
with the trial court even as it affords to the appellate court the full opportunity to review and
decide the appealed matter.

Same; Same; The right to appeal is a mere statutory privilege, and should be exercised only in
the manner prescribed by law.—The right to appeal is a mere statutory privilege, and should be
exercised only in the manner prescribed by law. The statutory nature of the right to appeal
requires the one who avails himself of it to strictly comply with the statutes or rules that are
considered indispensable interdictions against needless delays and for an orderly discharge of
judicial business.

Same; Same; The perfection of an appeal within the period laid down by law is mandatory and
jurisdictional.—The perfection of an appeal within the period laid down by law is mandatory and
jurisdictional, because the failure to perfect the appeal within the time prescribed by the Rules of
Court causes the judgment or final order to become final as to preclude the appellate court from
acquiring the jurisdiction to review the judgment or final order.

The perfection of an appeal in the manner and within the period laid down by law is mandatory
and jurisdictional.

The Case

In Special Proceedings No. 1307 involving the settlement of the estate of the late L.J. Hodges,
the Regional Trial Court (RTC), Branch 27, in Iloilo City, issued an order dated May 3, 1995
(ruling that a property of the estate sold to the petitioners be divided in two equal portions
between the petitioners and the respondent). On March 2, 1998, the RTC affirmed the order
dated May 3, 1995. The petitioners filed a notice of appeal and, later on, a record on appeal, but
the respondents moved to dismiss their appeal on June 15, 2000 on the ground of tardiness of
the record on appeal. The RTC granted the motion to dismiss on February 1, 2002. On March
13, 2002, the petitioners moved for reconsideration of the dismissal, but the RTC denied the
motion for reconsideration on May 21, 2004. Thus, on June 23, 2004, the petitioners directly
appealed to the Court, assailing the orders of February 1, 2002 and May 21, 2004.

Antecedents

In January 1985, the petitioners relayed their offer to the administrator of the Estate of L.J.
Hodges to purchase for ₱22,560.00 Lot 18, Block 7 of 971 (Lot 18), an asset of the Estate
situated on D.B. Ledesma Interior, Jaro, Iloilo City. They made a deposit of ₱4,512.00, the
equivalent of 20% of the offer. On August 1, 1985, the administrator sought judicial approval of
the offer, stating to the RTC that petitioner Erlinda Lebin was the actual occupant of Lot 18. The
RTC commissioned one Atty. Tabares to conduct an ocular inspection of Lot 18 to ascertain if
Erlinda Lebin was really the occupant. In his report, Atty. Tabares confirmed that Erlinda Lebin
was the only occupant of Lot 18. Accordingly, on August 28, 1985, the RTC granted the
administrator’s motion for approval of the offer.

In the meanwhile, respondent Vilma S. Mirasol (Mirasol) also offered to purchase the lot
containing an area of 188 square meters where her house stood. The lot was initially identified
as Lot No. 4, Block 7 of 971 (Lot 4), but a later survey revealed that her house was actually
standing on Lot 18, not Lot 4. Learning on November 11, 1985 of the approval of the petitioners’
offer to purchase Lot 18, therefore, Mirasol filed on December 6, 1985 a petition for relief from
the order dated August 28, 1985.

On December 17, 1987, pending resolution of the petition for relief, the petitioners paid the last
installment for Lot 18, and moved for the execution of the deed of sale. Apparently, the motion
was not acted upon by the RTC.

At last, on May 3, 1995, the RTC resolved the petition for relief, viz:

WHEREFORE, the Court, under the auspices of equity and justice tempered with humanitarian
reasons, hereby declare each of the offeror-claimants after complying with their respective
obligation with the estate, should there be any, to be the owner where their respective houses
stand, and therefore, DIRECTS and ENJOINS for the following matters to be undertaken:

For the Administrator of the L.J. Hodges Estate:

1) To assist both offeror-claimants in effecting a Relocation Survey Plan and cause the equal
partition of the subject lot herein between the said offeror-claimant;

2) To execute the corresponding deed of sale over the aforecited subject lot in favor of the
herein offeror-claimants --- Erlinda Lebin and Vilma S. Mirasol purposely to expedite the
issuance of respective title; and ---

3) To exact payment from either or both offeror-claimants should there be any deficiency, and/or
to refund payment should there be any excess payment from either or both offeror-claimants.

SO ORDERED.

On May 23, 1995, the petitioners moved for reconsideration and/or new trial. On March 2, 1998,
the RTC denied the motion for reconsideration and/or new trial of the petitioners. Thus, on
March 27, 1998, the petitioners filed a notice of appeal in the RTC. Allegedly, on May 5, 1998,
they also filed a record on appeal. On January 25, 1999, they presented an ex parte motion to
approve the record on appeal. On June 15, 2000, Mirasol filed a motion to dismiss the appeal,
insisting that the record on appeal had been filed late. The RTC granted the motion to dismiss
the appeal on February 1, 2002. The petitioners moved for reconsideration on March 13, 2002,
but the RTC denied their motion for reconsideration on May 21, 2004.

Hence, the petitioners appealed via petition for review on certiorari filed on June 23, 2004, to
seek the review and reversal of the orders of the RTC dated February 1, 2002 and May 21,
2004.

Issues

1. Whether or not the RTC erred in dismissing the petitioners’ appeal for their failure to timely
file a record on appeal; and

2. Whether or not the RTC committed reversible error in adjudging that Lot 18 be sold to both
the petitioners and Mirasol in equal portions.

Ruling

The petition for review lacks merit.

I
RTC did not err in dismissing the petitioners’ appeal

for their failure to timely file a record on appeal

Among the innovations introduced by Batas Pambansa Blg. 129 is the elimination of the record
on appeal in most cases, retaining the record on appeal only for appeals in special proceedings
and in other cases in which the Rules of Court allows multiple appeals. Section 39 of Batas
Pambansa Blg. 129 has incorporated this innovation, to wit:

Section 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 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. (emphasis
supplied)

In early 1990, the Supreme Court issued its resolution in Murillo v. Consul to clarify and fortify a
judicial policy against misdirected or erroneous appeals, stating:

At present then, except in criminal cases where the penalty imposed is life imprisonment or
reclusion perpetua, there is no way by which judgments of regional trial courts may be appealed
to the Supreme Court except by petition for review on certiorari in accordance with Rule 45 of
the Rules of Court, in relation to Section 17 of the Judiciary Act of 1948 as amended. The
proposition is clearly stated in the Interim Rules: "Appeals to the Supreme Court shall be taken
by petition for certiorari which shall be governed by Rule 45 of the Rules of Court.

On the other hand, it is not possible to take an appeal by certiorari to the Court of Appeals.
Appeals to that Court from the Regional Trial Courts are perfected in two (2) ways, both of which
are entirely distinct from an appeal by certiorari to the Supreme Court. They are:

a) by ordinary appeal, or appeal by writ of error - where judgment was rendered in a civil or
criminal action by the RTC in the exercise of original jurisdiction; and

b) by petition for review - where judgment was rendered by the RTC in the exercise of appellate
jurisdiction.

The petition for review must be filed with the Court of Appeals within 15 days from notice of the
judgment, and as already stated, shall point out the error of fact or law that will warrant a
reversal or modification of the decision or judgment sought to be reviewed. An ordinary appeal
is taken by merely filing a notice of appeal within 15 days from notice of the judgment, except in
special proceedings or cases where multiple appeals are allowed in which event the period of
appeal is 30 days and a record on appeal is necessary.

There is therefore no longer any common method of appeal in civil cases to the Supreme Court
and the Court of Appeals. The present procedures for appealing to either court – and, it may be
added, the process of ventilation of the appeal – are distinct from each other. To repeat, appeals
to this court cannot now be made by petition for review or by notice of appeals (and, in certain
instances, by record on appeal), but only by petition for review on certiorari under Rule 45. As
was stressed by this Court as early as 1980, in Buenbrazo v. Marave, 101 SCRA 848, all "the
members of the bench and bar" are charged with knowledge, not only that "since the enactment
of Republic Act No. 8031 in 1969," the review of the decision of the Court of First Instance in a
case exclusively cognizable by the inferior court xxx cannot be made in an ordinary appeal or by
record on appeal," but also that appeal by record on appeal to the Supreme Court under Rule
42 of the Rules of Court was abolished by Republic Act No. 5440 which, as already stated, took
effect on September 9, 1968. Similarly, in Santos, Jr., v. C.A., 152 SCRA 378, this Court
declared that "Republic Act No. 5440 had long superseded Rule 41 and Section 1, Rule 122 of
the Rules of Court on direct appeals from the court of first instance to the Supreme Court in civil
and criminal cases, x x and that "direct appeals to this Court from the trial court on questions of
law had to be through the filing of a petition for review on certiorari, wherein this Court could
either give due course to the proposed appeal or deny it outright to prevent the clogging of its
docket with unmeritorious and dilatory appeals."

In fine, if an appeal is essayed to either court by the wrong procedure, the only course of action
open is to dismiss the appeal. In other words, if an appeal is attempted from a judgment of a
Regional Trial Court by notice of appeal, that appeal can and should never go to this Court,
regardless of any statement in the notice that the court of choice is the Supreme Court; and
more than once has this Court admonished a Trial Judge and/or his Clerk of Court, as well as
the attorney taking the appeal, for causing the records to be sent up to this Court in such a
case. Again, if an appeal by notice of appeal is taken from the Regional Trial Court to the Court
of Appeals and in the latter Court, the appellant raises naught but issues of law, the appeal
should be dismissed for lack of jurisdiction. And finally, it may be stressed once more, it is only
through petitions for review on certiorari that the appellate jurisdiction of the Supreme Court may
properly be invoked.

There is no longer any justification for allowing transfers of erroneous appeals from one court to
the other, much less for tolerating continued ignorance of the law on appeals. It thus behooves
every attorney seeking review and reversal of a judgment or order promulgated against his
client, to determine clearly the errors he believes may be ascribed to the judgment or order,
whether of fact or of law; then to ascertain which court properly has appellate jurisdiction; and
finally, to observe scrupulously the requisites for appeal prescribed by law, with keen awareness
that any error or imprecision in compliance therewith may well be fatal to his client's cause.
(emphasis supplied)

An offshoot of Murillo v. Consul is the inclusion in the 1997 revision of the rules of civil
procedure, effective July 1, 1997, of a provision that forthrightly delineated the modes of
appealing an adverse judgment or final order. The provision is Section 2 of Rule 41, viz:

Section 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.

(b) Petition for review.— The appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in
accordance with Rule 42.

(c) Appeal by certiorari.— In all cases where only questions of law are raised or involved, the
appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule
45. (n) (emphasis supplied)

The changes and clarifications recognize that appeal is neither a natural nor a constitutional
right, but merely statutory, and the implication of its statutory character is that the party who
intends to appeal must always comply with the procedures and rules governing appeals, or else
the right of appeal may be lost or squandered.

As the foregoing rules further indicate, a judgment or final order in special proceedings is
appealed by record on appeal. A judgment or final order determining and terminating a
particular part is usually appealable, because it completely disposes of a particular matter in the
proceeding, unless otherwise declared by the Rules of Court. The ostensible reason for
requiring a record on appeal instead of only a notice of appeal is the multi-part nature of nearly
all special proceedings, with each part susceptible of being finally determined and terminated
independently of the other parts. An appeal by notice of appeal is a mode that envisions the
elevation of the original records to the appellate court as to thereby obstruct the trial court in its
further proceedings regarding the other parts of the case. In contrast, the record on appeal
enables the trial court to continue with the rest of the case because the original records remain
with the trial court even as it affords to the appellate court the full opportunity to review and
decide the appealed matter.

Section 1, Rule 109 of the Rules of Court underscores the multi-part nature of special
proceedings by enumerating the particular judgments and final orders already subject of appeal
by any interested party despite other parts of the proceedings being still untried or unresolved,
to wit:

Section 1. Orders or judgments from which appeals may be taken. - An interested person may
appeal in special proceedings from an order or judgment rendered by a Court of First Instance
or a Juvenile and Domestic Relations Court, where such order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the
estate to which such person is entitled;

(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person,
or any claim presented on behalf of the estate in offset to a claim against it;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a final determination in the lower court of the rights
of the party appealing, except that no appeal shall be allowed from the appointment of a special
administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the
person appealing, unless it be an order granting or denying a motion for a new trial or for
reconsideration.

The petitioners’ appeal comes under item (e) of Section 1, supra, due to the final order of May
3, 1995 issued in the settlement of the estate of L.J. Hodges being "a final determination in the
lower court of the rights of the party appealing." In order to elevate a part of the records
sufficient for appellate review without the RTC being deprived of the original records, the
remedy was to file a record on appeal to be approved by the RTC.

The elimination of the record on appeal under Batas Pambansa Blg. 129 made feasible the
shortening of the period of appeal from the original 30 days to only 15 days from notice of the
judgment or final order. Section 3, Rule 41 of the Rules of Court, retains the original 30 days as
the period for perfecting the appeal by record on appeal to take into consideration the need for
the trial court to approve the record on appeal. Within that 30-day period a party aggrieved by a
judgment or final order issued in special proceedings should perfect an appeal by filing both a
notice of appeal and a record on appeal in the trial court, serving a copy of the notice of appeal
and a record on appeal upon the adverse party within the period; in addition, the appealing party
shall pay within the period for taking an appeal to the clerk of the court that rendered the
appealed judgment or final order the full amount of the appellate court docket and other lawful
fees. A violation of these requirements for the timely perfection of an appeal by record on
appeal, or the non-payment of the full amount of the appellate court docket and other lawful fees
to the clerk of the trial court may be a ground for the dismissal of the appeal.

Did the petitioners comply with the requirements for perfecting their appeal?

The petitioners received the assailed May 3, 1995 order of the RTC on May 15, 1995. They filed
a motion for reconsideration and/or new trial on May 24, 1995. On March 23, 1998, they were
served with the order dated March 2, 1998 (denying their motion for reconsideration and/or new
trial). Although they filed a notice of appeal on March 27, 1998, they submitted the record on
appeal only on May 5, 1998. Undoubtedly, they filed the record on appeal 43 days from March
23, 1998, the date they received the denial of their motion for reconsideration and/or new trial.
They should have filed the record on appeal within 30 days from their notice of the judgment.
Their appeal was not perfected, therefore, because their filing of the record on appeal happened
beyond the end of their period for the perfection of their appeal.

The petitioners’ filing of the motion for reconsideration vis-à-vis the order of May 3, 1995
interrupted the running of the period of 30 days; hence, their period to appeal started to run from
May 15, 1995, the date they received the order of May 3, 1995. They filed their motion for
reconsideration on May 24, 1995. By then, nine days out of their 30-day period to appeal
already elapsed. They received a copy of the order dated March 2, 1998 on March 23, 1998.
Thus, the period to appeal resumed from March 23, 1998 and ended 21 days later, or on April
13, 1998. Yet, they filed their record on appeal only on May 5, 1998, or 22 days beyond the end
of their reglementary period. Although, by that time, the 1997 Rules on Civil Procedure had
meanwhile taken effect (July 1, 1997), their period of appeal remained 30 days. It is stressed
that under the 1997 revisions, the timely filing of the motion for reconsideration interrupted the
running of the period of appeal, pursuant to Section 3, Rule 41 of the 1997 Rules on Civil
Procedure, viz:

Section 3. Period of ordinary appeal. — The appeal shall be taken within fifteen (15) days from
notice 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 from 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)
(emphasis supplied)

Section 13, Rule 41 of the Rules of Court empowers the RTC as the trial court, motu proprio or
on motion, to dismiss the appeal for having been taken out of time or for non-payment of the
docket and other lawful fees within the reglementary period. For that reason, the RTC rightly
granted Mirasol’s motion to dismiss the record on appeal.

Nonetheless, the petitioners propose to be excused from the requirement of filing a record on
appeal, arguing that "(t)o require a (r)ecord on (a)ppeal here is to reproduce the more than
eighteen (18) volumes of records here which is quite impossible to do" and that "most of these
records, (sic) have nothing to do with the present controversy." Also, they state that their
counsel was "of the honest belief and impression" that "the same was not really necessary
because the nature of the controversy xxx is civil and not an intestate one."

The petitioners’ submissions are frail and facetious.

In order to come up with the record on appeal, the petitioners were not expected to reproduce
over 18 volumes of the records, for their record on appeal would have included only the records
of the trial court which the appellate court would be asked to pass upon. Section 6, Rule 41 of
the 1997 Rules of Civil Procedure, which meanwhile became applicable to them, specified what
the record on appeal should contain, thusly:

Section 6. Record on appeal; form and contents thereof. - The full names of all the parties to the
proceedings shall be stated in the caption of the record on appeal and it shall include the
judgment or final order from which the appeal is taken and, 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, together with such
data as will show that the appeal was perfected on time. 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. 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 corresponding witnesses. If the
whole testimonial and documentary evidence in the case is to be included, 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 a subject index.
(6a)
The right to appeal is a mere statutory privilege, and should be exercised only in the manner
prescribed by law. The statutory nature of the right to appeal requires the one who avails himself
of it to strictly comply with the statutes or rules that are considered indispensable interdictions
against needless delays and for an orderly discharge of judicial business. In the absence of
highly exceptional circumstances warranting their relaxation, like when the loftier demands of
substantial justice and equity require the relaxation, or when there are other special and
meritorious circumstances and issues, such statutes or rules should remain inviolable.

In like manner, the perfection of an appeal within the period laid down by law is mandatory and
jurisdictional, because the failure to perfect the appeal within the time prescribed by the Rules of
Court causes the judgment or final order to become final as to preclude the appellate court from
acquiring the jurisdiction to review the judgment or final order. The failure of the petitioners and
their counsel to file their record on appeal on time rendered the orders of the RTC final and
unappealable. Thereby, the appellate court lost the jurisdiction to review the challenged orders,
and the petitioners were precluded from assailing the orders.

II

RTC committed no reversible error in allocating

Lot 18 in equal portions to both petitioners and respondent

The non-perfection of the appeal by the petitioners notwithstanding, the Court declares that the
RTC did not err in allocating the parcel of land equally to the parties if only to serve and enforce
a standing policy in the settlement of the large estate of the late L.J. Hodges to prefer actual
occupants in the disposition of estate assets. The policy was entirely within the power of the
RTC to adopt and enforce as the probate court.

As stated in the administrator’s motion for approval of the offer, the approval of the offer to
purchase would be conditioned upon whether the petitioners were the only actual occupants.
The condition was designed to avoid the dislocation of actual occupants, and was the reason
why the RTC dispatched Atty. Tabares to determine who actually occupied the property before
approving the motion. It turned out that the report of Atty. Tabares about the petitioners being
the only occupants was mistaken, because the house of Mirasol, who had meanwhile also
offered to purchase the portion where her house stood, happened to be within the same lot
subject of the petitioners’ offer to purchase. The confusion arose from the misdescription of
Mirasol’s portion as Lot 4, instead of Lot 18.âwphi1

Under Rule 89 of the Rules of Court, the RTC may authorize the sale, mortgage, or
encumbrance of assets of the estate.1avvphi1 The approval of the sale in question, and the
modification of the disposition of property of the Estate of L.J. Hodges were made pursuant to
Section 4 of Rule 89, to wit:

Section 4. When court may authorize sale of estate as beneficial to interested persons; Disposal
of proceeds. - When it appears that the sale of the whole or a part of the real or personal estate
will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may,
upon application of the executor or administrator and on written notice to the heirs, devisees
and legatees who are interested in the estate to be sold, authorize the executor or administrator
to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or
expenses of administration; but such authority shall not be granted if inconsistent with the
provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled
to the estate in the proper proportions. [emphasis supplied]

Without doubt, the disposal of estate property required judicial approval before it could be
executed. Implicit in the requirement for judicial approval was that the probate court could
rescind or nullify the disposition of a property under administration that was effected without its
authority. This power included the authority to nullify or modify its approval of the sale of the
property of the estate to conform to the law or to the standing policies set and fixed for the
purpose, where the invalidation or modification derived from the falsity of the factual basis of the
disposition, or from any other factual mistake, or from the concealment of a material fact by a
party. Consequently, the probate court’s modification of its approval of the petitioners’ offer to
purchase was well within the power of the RTC to nullify or modify after it was found to be
contrary to the condition for the approval. Thereby, the RTC’s ruling, being sound and judicious,
constituted neither abuse of discretion nor excess of jurisdiction.

WHEREFORE, we DENY the petition for review, and AFFIRM the final orders dated May 3,
1995 and March 2, 1998.

The petitioners shall pay the costs of suit.

Facts:

● In a special proceedings case involving the settlement of the estate of the late L.J.
Hodges, the RTC Branch 27 of Iloilo City issued an order dated May 3, 1995.
● May 23, 1995 Sps Lebin moved for reconsideration and/or new trial.
● March 2, 1998 RTC denied MR/MNT
● March 27, 1998 Sps Lebin filed a notice of appeal in the RTC
● May 5, 1998 Also filed a record on appeal
● Jan 25, 1999 Presented an ex parte motion to approve the record on appeal
● Mirasol filed MTD on the ground that the record on appeal had been filed late
● RTC granted MTD
● MR denied

Issue:

WON Sps Lebin failed to timely file a record on appeal

Ruling:

Among the innovations introduced by Batas Pambansa Blg. 129 is the elimination of the record
on appeal in most cases, retaining the record on appeal only for appeals in special proceedings
and in other cases in which the Rules of Court allows multiple appeals.

A judgment or final order in special proceedings is appealed by record on appeal. A judgment or

final order determining and terminating a particular part is usually appealable, because it
completely disposes of a particular matter in the proceeding, unless otherwise declared by the
Rules of Court. The ostensible reason for requiring a record on appeal instead of only a notice
of appeal is the multi-part nature of nearly all special proceedings, with each part susceptible of
being finally determined and terminated independently of the other parts.

a. An appeal by notice of appeal is a mode that envisions the elevation of the original records to
the appellate court as to thereby obstruct the trial court in its further proceedings regarding the
other parts of the case.

b. In contrast, the record on appeal enables the trial court to continue with the rest of the case
because the original records remain with the trial court even as it affords to the appellate court
the full opportunity to review and decide the appealed matter.

Section 3, Rule 41 of the Rules of Court, retains the original 30 days as the period for perfecting
the appeal by record on appeal to take into consideration the need for the trial court to approve
the record on appeal. Within that 30-day period a party aggrieved by a judgment or final order
issued in special proceedings should perfect an appeal by filing both a notice of appeal and a
record on appeal in the trial court, serving a copy of the notice of appeal and a record on appeal
upon the adverse party within the period; in addition, the appealing party shall pay within the
period for taking an appeal to the clerk of the court that rendered the appealed judgment or final
order the full amount of the appellate court docket and other lawful fees. A violation of these
requirements for the timely perfection of an appeal by record on appeal, or the non-payment of
the full amount of the appellate court docket and other lawful fees to the clerk of the trial court
may be a ground for the dismissal of the appeal.

In this case, although they filed a notice of appeal on March 27, 1998, they submitted the record
on appeal only on May 5, 1998. Undoubtedly, they filed the record on appeal 43 days from
March 23, 1998, the date they received the denial of their motion for reconsideration and/or new
trial. They should have filed the record on appeal within 30 days from their notice of the
judgment. Their appeal was not perfected, therefore, because their filing of the record on appeal
happened beyond the end of their period for the perfection of their appeal.
 AIDA P. BAÑEZ
vs.
GABRIEL B. BAÑEZ
G.R. No. 132592
January 23, 2002

Actions; Appeals; Execution Pending Appeal; Execution pending appeal is allowed when
superior circumstances demanding urgency outweigh the damages that may result from the
issuance of the writ; Merely putting up a bond is not sufficient reason to justify a plea for
execution pending appeal, for to do so would make execution routinary, the rule rather than the
exception.—As held in Echaus vs. Court of Appeals, 199 SCRA 381, 386 (1991), execution
pending appeal is allowed when superior circumstances demanding urgency outweigh the
damages that may result from the issuance of the writ. Otherwise, instead of being an
instrument of solicitude and justice, the writ may well become a tool of oppression and inequity.

this case, considering the reasons cited by petitioner, we are of the view that there is no
superior or urgent circumstance that outweighs the damage which respondent would suffer if he
were ordered to vacate the house. We note that petitioner did not refute respondent’s
allegations that she did not intend to use said house, and that she has two (2) other houses in
the United States where she is a permanent resident, while he had none at all. Merely putting
up a bond is not sufficient reason to justify her plea for execution pending appeal. To do so
would make execution routinary, the rule rather than the exception.

Same; Same; Legal Separation; Pleadings and Practice; An action for legal separation is not
one where multiple appeals are allowed.—Now, is an action for legal separation one where
multiple appeals are allowed? We do not think so. In Roman Catholic Archbishop of Manila v.
Court of Appeals, 258 SCRA 186, 194 (1996), this Court held: xxx Multiple appeals are allowed
in special proceedings, in actions for recovery of property with accounting, in actions for partition
of property with accounting, in the special civil actions of eminent domain and foreclosure of
mortgage. The rationale behind allowing more than one appeal in the same case is to enable
the rest of the case to proceed in the event that a separate and distinct issue is resolved by the
court and held to be final.

Same; Same; Same; The effects of legal separation, such as entitlement to live separately,
dissolution and liquidation of the absolute community or conjugal partnership, and custody of
the minor children, follow from the decree of legal separation—they are not separate or distinct
matters that may be resolved by the court and become final prior to or apart from the decree of
legal separation.—The issues involved in the case will necessarily relate to the same marital
relationship between the parties. The effects of legal separation, such as entitlement to live
separately, dissolution and liquidation of the absolute community or conjugal partnership, and
custody of the minor children, follow from the decree of legal separation. They are not separate
or distinct matters that may be resolved by the court and become final prior to or apart from the
decree of legal separation. Rather, they are mere incidents of legal separation. Thus, they may
not be subject to multiple appeals.

These two petitions stem from the decision dated September 23, 1996 of the Regional Trial
Court of Cebu, Branch 20, in Civil Case No. CEB-16765. The first seeks the reversal of the
Court of Appeals’ decision dated March 21, 1997, setting aside the orders dated October 1 and
November 22, 1996 of the Regional Trial Court. The second prays for the reversal of the
resolution dated February 10, 1998, of the Court of Appeals in CA-G.R. No. CV-56265, denying
the motion to dismiss.

The antecedent facts, as gathered from the parties’ pleadings, are as follows:

On September 23, 1996, the Regional Trial Court of Cebu, Branch 20, decided Civil Case No.
CEB-16765, decreeing among others the legal separation between petitioner Aida Bañez and
respondent Gabriel Bañez on the ground of the latter’s sexual infidelity; the dissolution of their
conjugal property relations and the division of the net conjugal assets; the forfeiture of
respondent’s one-half share in the net conjugal assets in favor of the common children; the
payment to petitioner’s counsel of the sum of ₱100,000 as attorney’s fees to be taken from
petitioner’s share in the net assets; and the surrender by respondent of the use and possession
of a Mazda motor vehicle and the smaller residential house located at Maria Luisa Estate Park
Subdivision to petitioner and the common children within 15 days from receipt of the decision.

Thereafter, petitioner filed an urgent ex-parte motion to modify said decision, while respondent
filed a Notice of Appeal.

The trial court granted petitioner Aida Banez’ urgent ex-parte motion to modify the decision on
October 1, 1996 by approving the Commitment of Fees dated December 22, 1994; obliging
petitioner to pay as attorney’s fees the equivalent of 5% of the total value of respondent’s ideal
share in the net conjugal assets; and ordering the administrator to pay petitioner’s counsel, Atty.
Adelino B. Sitoy, the sum of ₱100,000 as advance attorney’s fees chargeable against the
aforecited 5%.

In another motion to modify the decision, petitioner Aida Bañez sought moral and exemplary
damages, as well as litigation expenses. On October 9, 1996, she filed a motion for execution
pending appeal. Respondent Gabriel Bañez filed a consolidated written opposition to the two
motions, and also prayed for the reconsideration of the October 1, 1996 order.

On November 22, 1996, the trial court denied Aida’s motion for moral and exemplary damages
and litigation expenses but gave due course to the execution pending appeal. Thus:

WHEREFORE, in view of all the foregoing premises, the petitioner’s motion to modify decision
is hereby ordered denied. But, petitioner’s motion for execution of decision pending appeal is
hereby granted. Consequently, let a writ of execution be issued in this case to enforce the
decision for (1) respondent to vacate the premises of the small residential house situated in
Maria Luisa Estate Park Subdivision, Lahug, Cebu City and for (2) respondent to surrender the
use and possession of said Mazda motor vehicle together with its keys and accessories thereof
to petitioner.

Atty. Edgar Gica, the Special Administrator, appointed in this case, is hereby ordered to make
the necessary computation of the value of the one-half (1/2) share of petitioner in the net
remaining conjugal assets of the spouses within 10 days from receipt of this order.

The petitioner is hereby ordered to post a bond in the amount of P1,500,000.00 to answer for all
the damages that respondent may suffer arising from the issuance of said writ of execution
pending appeal and to further answer for all the advances that petitioner may have received
from the Special Administrator in this case pending final termination of this present case.

In turn, in a petition for certiorari, Gabriel Bañez elevated the case to the Court of Appeals. On
March 21, 1997, the appellate court rendered its decision, thus:

WHEREFORE, the Order dated October 1, 1996 and the Omnibus Order dated November 22,
1996, insofar as (1) it authorized the release of the sum of P100,000.00 to private respondent’s
counsel as the advanced share of private respondent [Aida Bañez] in the net remaining conjugal
assets, and (2) granted the motion for execution pending appeal by ordering petitioner [Gabriel
Bañez] to vacate the premises of the small residential house situated in Maria Luisa Estate Park
Subdivision, Lahug, Cebu City, and to surrender the use and possession of the Mazda Motor
vehicle to private respondent are hereby SET ASIDE. The writ of execution dated December 2,
1996 and the Order dated December 10, 1996 granting the motion filed by the sheriff to make
symbolic delivery of the subject house and motor vehicle to the administrator of the partnership
are also SET ASIDE.

As prayed for by petitioner, the Administrator of the conjugal partnership is hereby ordered to
cause the reimbursement by counsel for the private respondent [Aida Bañez] of the amount of
P100,000.00 released to him as advance payment of attorney’s fees.

SO ORDERED.

On February 10, 1998, the Court of Appeals denied Aida’s motion for reconsideration. Hence,
the petition in G.R. No. 132592, filed by herein petitioner.
In the meantime, the trial court gave due course to Gabriel’s Notice of Appeal and elevated on
April 15, 1997 the entire case records to the Court of Appeals. Aida filed with the Court of
Appeals a motion to dismiss the appeal on the ground that Gabriel had failed to file with the
appellate court a Record on Appeal. On February 10, 1998, the Court of Appeals decided the
motion, thus:

WHEREFORE, premises considered, the petitioner–appellant’s motion to dismiss filed on

November 3, 1997 is hereby DENIED. The appointment of the petitioner-appellee as
administratix of the conjugal properties is hereby AFFIRMED.

In view of petitioner’s Motion to Withdraw her own appeal filed on November 27, 1997, and for
failing to pay the required docket fee within the prescribed period under Rule 41, Section 4 of
the 1997 Rules of Civil Procedure, the appeal instituted by the petitioner Aida P. Bañez is
hereby DISMISSED.

In continuance of the appeal of respondent-appellant [Gabriel Bañez], he is hereby ordered to

file his brief with the court within 45 days from receipt of this resolution. The petitioner-appellee
[Aida Bañez] shall file her own brief with the court within 45 days from receipt of the
petitioner-appellant’s [Gabriel Bañez] brief.

SO ORDERED.

The appellate court also denied herein petitioner’s motion for reconsideration, hence, the
petition in G.R. No. 133628.

On January 19, 2000, we consolidated the two petitions.1avvphi1 Petitioner Aida Bañez now
avers that the Court of Appeals erred:

I. G.R. No. 132592

... IN SETTING ASIDE THE GRANT OF EXECUTION PENDING APPEAL BY THE TRIAL
COURT OF THE PORTIONS OF ITS DECISION ORDERING RESPONDENT TO VACATE THE
SMALLER RESIDENTIAL HOUSE LOCATED AT THE MARIA LUISA ESTATE PARK
SUBDIVISION, CEBU CITY, AND TO PAY P100,000.00 TO PETITIONER’S COUNSEL AS
ATTORNEY’S FEES TO BE TAKEN FROM HER SHARE IN THE NET CONJUGAL ASSETS.

II. G.R. No. 133628:

... IN NOT GRANTING PETITIONER’S MOTION TO DISMISS RESPONDENT’S ORDINARY

APPEAL AND/OR NOT RETURNING THE RECORDS OF CIVIL CASE NO. CEB-16765 TO
THE REGIONAL TRIAL COURT OF CEBU.

In G.R. No. 132592, petitioner manifested that she no longer questions the Court of Appeals’
decision on the Mazda vehicle because respondent repossessed it. As to the residential house,
she claimed that being conjugal in nature, justice requires that she and her children be allowed
to occupy and enjoy the house considering that during the entire proceedings before the trial
court, she did not have the chance to occupy it. Further, she posted a bond of ₱1,500,000 for
the damages which respondent may suffer. For these reasons, she asked for execution pending
appeal. The amount of ₱100,000 as advance payment to her counsel was a "drop in the bucket"
compared to the bond she posted, according to her. She also suggested as an alternative that
she simply be required to put up an additional bond. She also agreed to submit to an accounting
as regular administratrix and the advance attorney’s fees be charged to her share in the net
conjugal assets.

In his comment, respondent denied petitioner’s allegation that she did not have the chance to
occupy the residential house. He averred that she could have, had she chosen to. According to
him, as the inventory of the couple’s properties showed, petitioner owned two houses and lots
and two motor vehicles in the United States, where she is a permanent resident. Respondent
contended that there was no compelling reason for petitioner to have the judgment executed
pending appeal.
Essentially, the core issue in G.R. No. 132592 is whether execution of judgment pending appeal
was justified.

As held in Echaus vs. Court of Appeals, 199 SCRA 381, 386 (1991), execution pending appeal
is allowed when superior circumstances demanding urgency outweigh the damages that may
result from the issuance of the writ. Otherwise, instead of being an instrument of solicitude and
justice, the writ may well become a tool of oppression and inequity.

In this case, considering the reasons cited by petitioner, we are of the view that there is no
superior or urgent circumstance that outweighs the damage which respondent would suffer if he
were ordered to vacate the house. We note that petitioner did not refute respondent’s
allegations that she did not intend to use said house, and that she has two (2) other houses in
the United States where she is a permanent resident, while he had none at all. Merely putting
up a bond is not sufficient reason to justify her plea for execution pending appeal. To do so
would make execution routinary, the rule rather than the exception.

Similarly, we are not persuaded that the ₱100,000 advance payment to petitioner’s counsel was
properly granted. We see no justification to pre-empt the judgment by the Court of Appeals
concerning said amount of ₱100,000 at the time that the trial court’s judgment was already on
appeal.

In G.R. No. 133628, petitioner Aida Bañez contends that an action for legal separation is among
the cases where multiple appeals may be taken. According to her, the filing of a record on
appeal, pursuant to Section 2(a), Rule 41 of the Rules of Court, is required in this case. She
concludes that respondent’s appeal should have been dismissed for his failure to file the record
on appeal within the reglementary period, as provided under Section 1-b, Rule 50 of the Rules
of Court.

Petitioner likewise prays that, in the event that we do not dismiss Gabriel Bañez’ appeal, we
should direct the appellate court to return the records of the case to the RTC of Cebu.
Thereafter, according to her, respondent should file his record on appeal for approval and
transmittal to the Court of Appeals. In the alternative, she prays that the appellate court retain
only the pleadings and evidence necessary to resolve respondent’s appeal pursuant to Section
6, Rule 44 and Section 6, Rule 135 of the Rules of Court, and return the rest of the case records
to the RTC.

In turn, respondent argues that Section 39 of B.P. 129 expressly abolished the requirement of a
record on appeal, except in appeals in special proceedings in accordance with Rule 109, and
other cases wherein multiple appeals are allowed. An action for legal separation, he avers, is
neither a special proceeding nor one where multiple appeals are allowed.

Now, is an action for legal separation one where multiple appeals are allowed? We do not think
so.

In Roman Catholic Archbishop of Manila v. Court of Appeals, 258 SCRA 186, 194 (1996), this
Court held:

xxx Multiple appeals are allowed in special proceedings, in actions for recovery of property with
accounting, in actions for partition of property with accounting, in the special civil actions of
eminent domain and foreclosure of mortgage. The rationale behind allowing more than one
appeal in the same case is to enable the rest of the case to proceed in the event that a separate
and distinct issue is resolved by the court and held to be final.

In said case, the two issues raised by therein petitioner that may allegedly be the subject of
multiple appeals arose from the same cause of action, and the subject matter pertains to the
same lessor-lessee relationship between the parties. Hence, splitting the appeals in that case
would only be violative of the rule against multiplicity of appeals.

The same holds true in an action for legal separation.1âwphi1 The issues involved in the case
will necessarily relate to the same marital relationship between the parties. The effects of legal
separation, such as entitlement to live separately, dissolution and liquidation of the absolute
community or conjugal partnership, and custody of the minor children, follow from the decree of
legal separation. They are not separate or distinct matters that may be resolved by the court and
become final prior to or apart from the decree of legal separation. Rather, they are mere
incidents of legal separation. Thus, they may not be subject to multiple appeals.

Petitioner’s alternative prayers that in case we do not dismiss the appeal, we return the records
to the trial court and require respondent to file a record on appeal, or we return the records to
the trial court and retain only the pleadings and orders relevant to the appeal, are untenable. If
we grant the first, we are effectively saying that the instant case is one involving multiple
appeals, which it is not. If we allow the second, we are effectively applying by analogy, Section
6, Rule 44 and Section 6, Rule 135 of the Rules of Court, without petitioner showing support
therefor in law or jurisprudence.

WHEREFORE, the instant petitions are DENIED for lack of merit. The decision and resolution of
the Court of Appeals in CA-G.R. SP No. 42663 and CA-G.R. No. CV-56265, respectively, are
hereby AFFIRMED, so that the Order dated October 1, 1996, of the Regional Trial Court
authorizing the release of ₱100,000 to petitioner’s counsel; the Omnibus Order dated November
22, 1996 granting the motion pending appeal; the writ of execution dated December 2, 1996;
and the Order dated December 10, 1996 granting the motion by the sheriff to make symbolic
delivery of the house and vehicle are SET ASIDE. Further, the Administrator of the conjugal
partnership is ORDERED to cause the reimbursement by petitioner’s counsel of the released
amount of ₱100,000. The Court of Appeals is hereby DIRECTED to give due course to
respondent’s appeal, and the Division Clerk of Court of this Court is likewise DIRECTED to
promptly remand the record of these cases to the Court of Appeals.

Costs against petitioner.

Facts:

The RTC of Cebu decreed legal separation between Aida and Respondent Gabriel on the
ground of Sexual Infedelity. Dissolution of conjugal property and division of net conjugal assets
forfeiture of Gabriel’s half share in the net assets in favor of common children; payment of
100,000 as attorney’s fees and surrender of a Mazda car and small residential house to
petitioner and common children 15 days from receipt of decision was also decreed by the same
court. Respondent appealed.

Aida filed a motion for execution pending appeal. The RTC gave due course to execution
pending appeal and issued a writ of execution commanding the sheriff to order the respondent
to vacate the house and surrender the Mazda car. It also ordered the petitioner to post bond to
answer for all damages that respondents may suffer.

The CA set aside the judgment.

Upon motion, Aida prayed that she and her children be allowed to occupy the house for she did
not have the chance to occupy it and besides, she posted a bond for damages that respondent
may suffer. Respondent on the other hand argued that Aida chose not to live in the house for
she owned two houses in the United States where she resides.

Issue:

Whether the execution pending appeal is justified.

Ruling:

Execution pending appeal is allowed when superior circumstances demanding urgency

outweigh the damages that may result from issuance of writ. Otherwise, the writ may become a
tool of oppression and inequity.

In this case, considering the reason cited of Aida, there is no superior or urgent circumstances
that outweigh the damages which the respondent would suffer if he were ordered to vacate the
house. She did not refute the respondent’s allegations that she did not intend to use the house
for she owned two houses in the US where she resides. Merely, putting up a bond is not
sufficient to justify her plea for execution pending appeal.
 BPI FAMILY SAVINGS BANK, INC.
vs.
PRYCE GASES, INC., INTERNATIONAL FINANCE CORPORATION, and NEDERLANDSE
FINANCIERINGS-MAATSCHAPPIJ VOOR ONTWIKKELINGSLANDEN N.V.
G.R. No. 188365
June 29, 2011

Corporate Rehabilitation; Appeals; Under A.M. No. 00-8-10-SC, a petition for corporate
rehabilitation is considered a special proceeding; The period of appeal shall be 30 days since a
record of appeal is required.—Section 5 of the Interim Rules on Corporate Rehabilitation
provides that “(t)he review of any order or decision of the court or an appeal therefrom shall be
in accordance with the Rules of Court x x x.” Under A.M. No. 00-8-10-SC, a petition for
corporate rehabilitation is considered a special proceeding. Thus, the period of appeal provided
in paragraph 19(b) of the Interim Rules Relative to the Implementation of Batas Pambansa Blg.
129 for special proceedings shall apply, that is, the period of appeal shall be 30 days since a
record of appeal is required.

Same; Same; A party’s appeal by record on appeal is deemed perfected as to him with respect
to the subject matter therein upon approval of the record on appeal filed in due time.—Under
Section 9, Rule 41 of the 1997 Rules of Civil Procedure, “(a) party’s appeal by record on appeal
is deemed perfected as to him with respect to the subject matter thereof upon approval of the
record on appeal filed in due time.”

Same; Same; Appeal is not a matter of right but a mere statutory privilege; The party who seeks
to exercise the right to appeal must comply with the requirements of the rules, failing in which
the right to appeal is lost.—Appeal is not a matter of right but a mere statutory privilege. The
party1 who seeks to exercise the right to appeal must comply with the requirements of the rules,
failing in which the right to appeal is lost. While the Court, in certain cases, applies the policy of
liberal construction, it may be invoked only in situations where there is some excusable formal
deficiency or error in a pleading, but not where its application subverts the essence of the
proceeding or results in the utter disregard of the Rules of Court.

Same; Under Section 1, Rule 3 of the Interim Rules of Procedure on Corporate Rehabilitation,
the proceedings shall be summary and non-adversarial in nature and a motion for new trial or
reconsideration is a prohibited pleading.—In addition, BFB filed a motion for reconsideration of
the 9 May 2006 Order of the RTC, Branch 138. Under Section 1, Rule 3 of the Interim Rules of
Procedure on Corporate Rehabilitation, the proceedings shall be summary and non-adversarial
in nature and a motion for new trial or reconsideration is a prohibited pleading. Hence, in view of
the failure of BFB to perfect its appeal and its subsequent filing of a motion for reconsideration
which is a prohibited pleading, the 10 October 2003 Order of the RTC, Branch 138, approving
the rehabilitation plan had become final and executory. BPI Family Savings Bank, Inc. vs. Pryce
Gases, Inc., 653 SCRA 42, G.R. No. 188365 June 29, 2011

The Case

Before the Court is a petition for review assailing the Decision promulgated on 26 February
2008 and the Resolution promulgated on 11 June 2009 of the Court of Appeals in CA-G.R. SP
No. 98626.

The Antecedent Facts

Pryce Gases, Inc. (PGI) is a corporation engaged in the business of producing, selling and
trading in all kinds of liquids, gases, and other chemicals, including but not limited to oxygen,
acetylene, hydrogen, nitrogen, argon, carbon dioxide, carbonex, nitrous oxide, compressed air,
helium, and other allied or related products. PGI is a debtor of the International Finance
Corporation (IFC), an international organization and an affiliate of the International Bank of
Reconstruction and Development (World Bank), and the Nederlandse
Financierings-Maatschappij Voor Ontwikkelingslanden N.V. (FMO), a Dutch development bank
engaged in promoting the expansion of private enterprise in emerging markets.

On 27 August 2002, IFC and FMO filed a Petition for Rehabilitation with the Regional Trial Court
of Makati due to the failure of PGI to service its debts as well as the refusal of PGI’s parent
company, the Pryce Corporation, to provide financial support to PGI. The case was raffled to
Branch 142 and was docketed as SP Proc. No. 02-1016. The petition for rehabilitation was
meant to preserve PGI’s workforce and ensure that its cash flow would not be diverted to
ill-advised ventures but would instead be channeled back to its operating capital to generate
profits to pay off and retire debts. IFC and FMO proposed a financial restructuring that called for
the conversion of dollar-denominated loans to peso and the splitting of the whole debt
instrument into two categories: (1) the sustainable debt which would be rescheduled as a senior
loan and secured by PGI’s assets; and (2) the unsustainable portion to be transformed into
redeemable preferred shares with voting rights. Under the proposal, senior loans shall be paid
in five years while the shares are forecast to be redeemed in ten years. Based on the proposed
financial restructuring, PGI’s loan from BPI Family Savings Bank, Inc. (BFB) shall be paid in ten
years as it was a non-MTI5 creditor.

Presiding Judge Estela Perlas-Bernabe of RTC, Branch 142, inhibited herself from further
hearing the case. The case was re-raffled to RTC, Branch 138.

The Ruling of the Trial Court

In an Order dated 24 January 2003, the RTC, Branch 138, gave due course to the petition. The
RTC, Branch 138, appointed Mr. Gener Mendoza (Mendoza) as Rehabilitation Receiver and
directed him to submit his evaluation, study and recommendation on the proposed rehabilitation
of PGI.

In a Manifestation dated 29 May 2003, PGI informed RTC, Branch 138, that its parent company,
Pryce Corporation, had offered to help through dacion en pago of its real estate assets to PGI’s
creditors, subject to certain terms and conditions.

In a Compliance dated July 2003, Mendoza submitted his recommendation which, among
others, states:

2. Creditors Secured with Non-Operating Assets. - Payment of principal and interest accrued as
of August 31, 2002 by way of assets already mortgaged to them at dacion values pegged to the
average of two appraisals to be undertaken by Bangko Sentral-accredited appraisal firms who
are nominated by the creditors in a meeting called for that purpose.

In its Comment to Mendoza’s Compliance, BFB objected to dacion en pago as a mode of

payment. BFB’s exposure to PGI was secured by assets that were considered non-operating
and not critical to the rehabilitation plan recommended by Mendoza. PGI and Pryce Corporation
submitted a Partial Opposition to the provision on income sharing of receiver’s recommended
revised rehabilitation plan but manifested their conformity to the other provisions of the plan.

In an Order dated 10 October 2003, the RTC, Branch 138, approved the rehabilitation plan.

On 3 November 2003, BFB filed a notice of appeal. PGI filed a motion to dismiss the appeal on
the ground that BFB failed to perfect the appeal because of failure to file the record on appeal
within the required period.

On 20 April 2006, before the RTC, Branch 138, could resolve PGI’s motion to dismiss, BFB filed
its Opposition (Re: Additional Argument in Support of Motion to Dismiss Appeal dated 27 July
2004) and Motion With Leave to Withdraw Notice of Appeal Dated 3 November 2003 and
Instead Be Allowed to File a Petition for Review.1avvphi1

In an Order dated 9 May 2006, the RTC, Branch 138, dismissed BFB’s appeal. The RTC,
Branch 138, ruled that the law clearly states that in special proceedings, record on appeal is
required to perfect the appeal. The dispositive portion of the Order reads:
WHEREFORE, the Motion to Dismiss Appeal filed by respondent Pryce Gases, Inc. is granted
and the appeal of BPI Family Savings Bank, Inc. is dismissed. Consequently, no action need to
be taken by the Court on the Motion for Leave to Withdraw Notice of Appeal dated 3 November
2003 and Instead Be Allowed to File a Petition for Review filed by BPI Family Savings Bank,
Inc.

SO ORDERED.

BFB filed a motion for reconsideration of the 9 May 2006 Order. In its Order dated 16 February
2007, the RTC, Branch 138, denied the motion on the ground that the Interim Rules of
Procedure on Corporate Rehabilitation prohibit the filing of motions for reconsideration.

On 19 April 2007, BFB filed a petition for before the Court of Appeals.

The Decision of the Court of Appeals

In its 26 February 2008 Decision, the Court of Appeals dismissed the petition. The Court of
Appeals ruled that corporate rehabilitations are special proceedings and as such, appeals from
the final order or decision therein should be by record on appeal in accordance with Section 2,
Rule 41 of the 1997 Rules of Civil Procedure. The Court of Appeals ruled that when BFB filed
the notice of appeal, the rule in force was the Interim Rules of Procedure on Corporate
Rehabilitation which required the filing of a record on appeal. The Court of Appeals ruled that
the mere filing of a notice of appeal would not suffice without the required record on appeal. The
Court of Appeals further ruled that BFB’s prayer that the petition be treated as filed under Rule
43 of the 1997 Rules of Civil Procedure lacked merit because it was filed out of time. The Court
of Appeals ruled that due to the dismissal of BFB’s appeal and the denial of its motion for
reconsideration by the RTC, Branch 138, the 10 October 2003 Order had become final and
executory. Finally, the Court of Appeals ruled that BFB’s petition was grossly defective because
the verification was signed by an employee of the Bank of the Philippine Islands, a completely
different entity from BPI Family Savings Bank, Inc.

BFB filed a motion for reconsideration. In its 11 June 2009 Resolution, the Court of Appeals
denied the motion for lack of merit.

Hence, the petition before this Court on the following grounds:

1. The Honorable Court of Appeals resolved an issue in a manner contrary to law and
jurisprudence when it upheld the ruling of the lower court that dismissed the appeal of petitioner
bank; and

2. The Honorable Court of Appeals resolved an issue in a manner contrary to law and
jurisprudence when it upheld the ruling of the lower court which in effect forced and compelled
petitioner bank to accept a dacion en pago arrangement against its consent.

The Issue

The issue in this case is whether the Court of Appeals committed a reversible error in sustaining
the RTC, Branch 138, in dismissing BFB’s appeal.

The Ruling of this Court

The petition has no merit.

Section 5 of the Interim Rules on Corporate Rehabilitation provides that "(t)he review of any
order or decision of the court or an appeal therefrom shall be in accordance with the Rules of
Court x x x." Under A.M. No. 00-8-10-SC, a petition for corporate rehabilitation is considered a
special proceeding. Thus, the period of appeal provided in paragraph 19(b) of the Interim Rules
Relative to the Implementation of Batas Pambansa Blg. 129 for special proceedings shall apply,
that is, the period of appeal shall be 30 days since a record of appeal is required. Thus:

19. Period of Appeal. -

(a) x x x
(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and
other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days,
a record of appeal being required.

On 14 September 2004, this Court issued A.M. No. 04-9-07-SC providing that all decisions and
final orders in cases falling under the Interim Rules of Corporate Rehabilitation and the Interim
Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799 shall
be appealed to the Court of Appeals through a petition for review under Rule 43 of the Rules of
Court, to be filed within fifteen (15) days from notice of the decision or final order of the Regional
Trial Court. However, in this case, BFB filed a notice of appeal on 3 November 2003, before the
effectivity of A.M. No. 04-9-07-SC. Hence, at the time of filing of BFB’s appeal, the applicable
mode of appeal is Section 2, Rule 41 of the 1997 Rules of Civil Procedure which 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.

Under Section 9, Rule 41 of the 1997 Rules of Civil Procedure, "(a) party’s appeal by record on
appeal is deemed perfected as to him with respect to the subject matter thereof upon approval
of the record on appeal filed in due time."

In this case, BFB did not perfect the appeal when it failed to file the record on appeal.1avvphi1
The filing of the notice of appeal on 3 November 2003 was not sufficient because at the time of
its filing, the Rules required the filing of the record on appeal and not merely a notice of appeal.
The issuance by the Court of A.M. No. 04-9-07-SC providing that all decisions and final orders
in cases falling under the Interim Rules of Corporate Rehabilitation and the Interim Rules of
Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799 shall be
appealed to the Court of Appeals through a petition for review under Rule 43 of the Rules of
Court, to be filed within 15 days from notice of the decision or final order of the Regional Trial
Court, did not change the fact that BFB’s appeal was not perfected. Further, BFB filed its Motion
With Leave to Withdraw Notice of Appeal only on 20 April 2006 or almost two years after the
issuance of A.M. No. 04-9-07-SC on 14 September 2004.

Appeal is not a matter of right but a mere statutory privilege. The party who seeks to exercise
the right to appeal must comply with the requirements of the rules, failing in which the right to
appeal is lost. While the Court, in certain cases, applies the policy of liberal construction, it may
be invoked only in situations where there is some excusable formal deficiency or error in a
pleading, but not where its application subverts the essence of the proceeding or results in the
utter disregard of the Rules of Court.

In addition, BFB filed a motion for reconsideration of the 9 May 2006 Order of the RTC, Branch
138. Under Section 1, Rule 3 of the Interim Rules of Procedure on Corporate Rehabilitation, the
proceedings shall be summary and non-adversarial in nature and a motion for new trial or
reconsideration is a prohibited pleading. Hence, in view of the failure of BFB to perfect its
appeal and its subsequent filing of a motion for reconsideration which is a prohibited pleading,
the 10 October 2003 Order of the RTC, Branch 138, approving the rehabilitation plan had
become final and executory.

WHEREFORE, we DENY the petition. We AFFIRM the 26 February 2008 Decision and the 11
June 2009 Resolution of the Court of Appeals in CA-G.R. SP No. 98626.
Facts:

Pryce Gases, Inc. (PGI) is a corporation engaged in the business of producing, selling and
trading in all kinds of liquids, gases, and other chemicals, including but not limited to oxygen,
acetylene, hydrogen, nitrogen, argon, carbon dioxide, carbonex, nitrous oxide, compressed...
air, helium, and other allied or related products. PGI is a debtor of the International Finance
Corporation (IFC), an international organization and an affiliate of the International Bank of
Reconstruction and Development (World Bank), and the Nederlandse
Financierings-Maatschappij Voor Ontwikkelingslanden N.V. (FMO), a Dutch development bank
engaged in promoting the expansion of private enterprise in emerging markets.

On 27 August 2002, IFC and FMO filed a Petition for Rehabilitation[4] with the Regional Trial
Court of Makati due to the failure of PGI to service its debts as well as the refusal of PGI's
parent company, the Pryce Corporation, to provide financial support... to PGI. The case was
raffled to Branch 142 and was docketed as SP Proc. No. 02-1016. The petition for rehabilitation
was meant to preserve PGI's workforce and ensure that its cash flow would not be diverted to
ill-advised ventures but would instead be channeled back to its... operating capital to generate
profits to pay off and retire debts. IFC and FMO proposed a financial restructuring that called for
the conversion of dollar-denominated loans to peso and the splitting of the whole debt
instrument into two categories: (1) the sustainable debt which... would be rescheduled as a
senior loan and secured by PGI's assets; and (2) the unsustainable portion to be transformed
into redeemable preferred shares with voting rights. Under the proposal, senior loans shall be
paid in five years while the shares are forecast to be redeemed... in ten years. Based on the
proposed financial restructuring, PGI's loan from BPI Family Savings Bank, Inc. (BFB) shall be
paid in ten years as it was a non-MTI[5] creditor.

BFB filed a notice of appeal.[13] PGI filed a motion to dismiss the appeal on the ground that
BFB failed to perfect the appeal because of failure to file the record on appeal within the
required period.

the RTC, Branch 138, dismissed BFB's appeal.

BFB filed a petition for certiorari[18] before the Court of Appeals... the Court of Appeals
dismissed the petition. The Court of Appeals ruled that corporate rehabilitations are special
proceedings and as such, appeals from the final order or decision therein should be by record
on appeal in accordance with Section 2, Rule 41 of the 1997 Rules of Civil Procedure. The
Court of Appeals ruled that when BFB filed the notice of appeal, the rule in force was the Interim
Rules of Procedure on Corporate Rehabilitation which required the filing of a record on appeal.

Issue:

whether the Court of Appeals committed a reversible error in sustaining the RTC, Branch 138, in
dismissing BFB's appeal.

Ruling:

The petition has no merit. This Court issued A.M. No. 04-9-07-SC providing that all decisions
and final orders in cases falling under the Interim Rules of CCorporate Rehabilitation and the
Interim Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No.
8799... shall be appealed to the Court of Appeals through a petition for review under Rule 43 of
the Rules of Court, to be filed within fifteen (15) days from notice of the decision or final order of
the Regional Trial Court.[23] However, in this case, BFB filed a... notice of appeal on 3
November 2003, before the effectivity of A.M. No. 04-9-07-SC. Hence, at the time of filing of
BFB's appeal, the applicable mode of appeal is Section 2, Rule 41 of the 1997 Rules of Civil
Procedure

Under Section 9, Rule 41 of the 1997 Rules of Civil Procedure, "(a) party's appeal by record on
appeal is deemed perfected as to him with respect to the subject matter thereof upon approval
of the record on appeal filed in due time."

In this case, BFB did not perfect the appeal when it failed to file the record on appeal. The filing
of the notice of appeal on 3 November 2003 was not sufficient because at the time of its filing,
the Rules required the filing of the record on appeal and not merely a notice of... appeal. The
issuance by the Court of A.M. No. 04-9-07-SC providing that all decisions and final orders in
cases falling under the Interim Rules of Corporate Rehabilitation and the Interim Rules of
Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799... shall be
appealed to the Court of Appeals through a petition for review under Rule 43 of the Rules of
Court, to be filed within 15 days from notice of the decision or final order of the Regional Trial
Court, did not change the fact that BFB's appeal was not perfected. Further,... BFB filed its
Motion With Leave to Withdraw Notice of Appeal only on 20 April 2006 or almost two years after
the issuance of A.M. No. 04-9-07-SC on 14 September 2004.

Appeal is not a matter of right but a mere statutory privilege.[24] The party who seeks to
exercise the right to appeal must comply with the requirements of the rules, failing in which the
right to appeal is lost.[25] While the Court,... in certain cases, applies the policy of liberal
construction, it may be invoked only in situations where there is some excusable formal
deficiency or error in a pleading, but not where its application subverts the essence of the
proceeding or results in the utter disregard of... the Rules of Court.[26]

In addition, BFB filed a motion for reconsideration of the 9 May 2006 Order of the RTC, Branch
138. Under Section 1, Rule 3 of the Interim Rules of Procedure on Corporate Rehabilitation, the
proceedings shall be summary and non-adversarial in nature and a motion for new trial or...
reconsideration is a prohibited pleading. Hence, in view of the failure of BFB to perfect its
appeal and its subsequent filing of a motion for reconsideration which is a prohibited pleading,
the 10 October 2003 Order of the RTC, Branch 138, approving the rehabilitation plan had...
become final and executory.