Rule 40

Appeal from the MTC to the

RTC

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

APPEALS
Rule 40

APPEAL FROM MUNICIPAL TRIAL COURTS

TO THE REGIONAL TRIAL COURTS
APPEAL. The law on appeal starts from Rule 40 to Rule 56. Usually the appeal is from the
trial court to the next higher court. Under the judiciary law, appeals from the MTC should be to
the RTC which is governed by Rule 40. And when the case is tried by the RTC and you want to
appeal, normally, the appeal should be to the CA under Rule 41.
We will stick to the basic rule on appeal found in the judiciary law, Section 39, BP 129:
Sec 39. Appeals. - The period for appeal from final orders, resolutions, awards,
judgments or decisions of any court in all cases shall be fifteen (15) days counted
from the notice of the final order, resolution, award, judgment, or decision
appealed from: Provided, however, That in habeas corpus cases, the period for
appeal shall be forty-eight (48) hours from the notice of the judgment appealed
from.
No record on appeal shall be required to take an appeal. In lieu thereof, the
entire original record shall be transmitted with all the pages prominently numbered
consecutively, together with an index of the contents thereof.
This section shall not apply in appeals in special proceedings and in other
cases wherein multiple appeals are allowed under applicable provisions of the Rules
of Court.

There are three (3) instances under Section 39:

Type of Case

Period to appeal

A. Civil Actions in general

B. Special Proceedings and Civil Actions
where multiple appeal is allowed
C. Habeas Corpus

15 days
30 days
48 hours

Requisites for
appeal
Notice of appeal
1. Notice of Appeal
2. Record on Appeal
Notice of Appeal

So this is the general outline of the law on appeals under Section 39, BP 129.
[EDITORS NOTE: The 48-hour period to appeal in habeas corpus cases under Section 39 of
BP 129 is now incorporated in Rule 41, Section 3 as amended, which took effect last July 15,
2000 (A.M. No. 01-1-03-SC)]
Rule 40 refers to appeal from the MTC to the RTC. The appellate jurisdiction of the RTC is
found in Section 22, BP 129. That is why Rule 40 is revolving around that provision:
BP 129, Sec. 22.
Appellate jurisdiction. - Regional Trial Courts
shall exercise appellate jurisdiction over all cases decided by MetTCs,
MTCs and MCTCs in their respective territorial jurisdictions. Such cases
shall be decided on the basis of the entire record of the proceedings had
in the court of origin and such memoranda and/or briefs as may be submitted
by the parties or required by the RTCs. The decision of the RTCs in such
cases shall be appealable by petition for review to the CA which may give
it due course only when the petition show prima facie that the lower court
has committed an error of fact or law that will warrant a reversal or
modification of the decision or judgment sought to be reviewed.

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Ateneo de Davao University College of Law

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1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 40
Appeal from the MTC to the
RTC

Let us now go to Section 1 of Rule 40:

Section 1. Where to appeal. An appeal from a judgment or final order of a
Municipal Trial Court may be taken to the Regional Trial Court exercising
jurisdiction over the area to which the former pertains. The title of the case
shall remain as it was in the court of origin, but the party appealing the case
shall be further referred to as the appellant and the adverse party as the
appellee. (n)

So from the MTC, the appeal is to the RTC exercising jurisdiction over the area to which the
former pertains. That is why under the judiciary law, every RTC has a designated territorial
area. So, if you want to appeal from the decision of the MTC of Davao City, you appeal to the
RTC of Davao. You do not make your appeal to the RTC of Tagum because it does not exercise
jurisdiction over Davao City.
And take note under Section 1, it is now required that when you appeal from the MTC to
the RTC, you should indicate in the caption of the case who is the APPELLANT and the
APPELLEE. This is also the procedure when you are appealing to the SC.
The appellant is the party appealing the case while the appellee is the adverse party. So
for example, the original title of the case in the MTC is: JOBOY, plaintiff vs. BROSIA,
defendant. If Joboy will appeal the case, the title of the case now in the RTC will be: JOBOY,
plaintiff-appellant vs. BROSIA, defendant-appellee. Or, if Brosia will be the one appealing the
case, the title now will be: JOBOY, plaintiff-appellee vs. BROSIA, defendant-appellant.
The period to appeal is in Section 2:
Sec. 2. When to appeal. An appeal may be taken within fifteen (15) days after
notice to the appellant of the judgment or final order appealed from. Where a
record on appeal is required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days after notice of the judgment or final
order.
The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)

In relation to certain jurisprudence, the 15-day period cannot be extended. (Lacsamana vs.
IAC, 143 SCRA 643) It cannot be extended but it can be interrupted by a timely motion for
new trial or reconsideration. And no motion for extension of time to file a motion for new trial
or reconsideration shall be allowed. (Section 2)
Q: How about the 30-day period? Is the 30-day period extendible?
A. YES. It is extendible for record on appeal, on the condition that the Motion to Extend
must be filed within the original 30 days and provided further that the movant has no right to
expect that his motion will be granted.
So the 15-day period can never be extended but the 30-day period is extendible based on
jurisprudence. This is because a notice of appeal is normally a one-paragraph document. You
can do that in just 5 minutes. But a record on appeal is makapal. That is why it is 30 days.
Sometimes kulangin pa yung 30-day period. So you can extend it provided you file the motion
for extension during the original 30-day period.
Sec. 3. How to appeal. The appeal is taken by filing a notice of appeal with the
court that rendered the judgment or final order appealed from. The notice of appeal
shall indicate the parties to the appeal, the judgment or final order or part

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Ateneo de Davao University College of Law

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1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 40
Appeal from the MTC to the
RTC

thereof appealed from, and state the material dates showing the timeliness of the
appeal.
A record on appeal shall be required only in special proceedings and in other
cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as provided in section 6,
Rule 41.
Copies of the notice of appeal, and the record on appeal where required, shall
be served on the adverse party. (n)

Q: How do you appeal?

A: Under Section 3, you file a Notice of Appeal to the court that rendered judgment, so
MTC. And it shall indicate the parties to the appeal, the judgment or final order or part
thereof appealed from, and state the material dates showing the timeliness of the appeal.
For example:
Notice of Appeal
Defendant hereby serves notice that he is appealing to the RTC from the judgment
rendered by the MTC dated March 5, 1998 copy of which was received by him on March 15,
1998.

So it is very simple to make. And you must indicate exactly not only the date of the
decision but also the date when you received it because the running of the period to appeal
does not run from the date of the decision but from the time you received it. That is why the
rule says, you must state the material dates showing the timeliness of the appeal. (Record
on appeal is discussed in Rule 41, Section 6.)
Of course, the adverse party should be furnished with a copy of the notice of appeal.
Sec. 4. Perfection of appeal; effect thereof. The perfection of the appeal and
the effect thereof shall be governed by the provisions of section 9, Rule 41.

Q: When is the appeal deemed perfected?

A: See discussion under Section 9, Rule 41. From the moment the appeal is deemed
perfected, the MTC loses jurisdiction over the case. And by fiction of law, jurisdiction is
automatically transferred to the RTC.
Sec. 5. Appellate court docket and other lawful fees. Within the period for
taking an appeal, the appellant shall pay to the clerk of the court which rendered
the judgment or final order appealed from the full amount of the appellate court
docket and other lawful fees. Proof of payment thereof shall be transmitted to the
appellate court together with the original record or the record on appeal, as the
case may be. (n)

Within the period to appeal (normally within 15 days), the appellant must pay the docket
fee. So that when the records are transmitted, bayad na. Even before this rule came out, the
payment of appellate docket fee is really required. The rule is the same.
Q: Suppose I will file my Notice of Appeal within 15 days but I will not pay the docket fee,
should my appeal be dismissed? Is it an additional requirement for appeal?
A: In the case of
SANTOS vs. COURT OF APPEALS

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Ateneo de Davao University College of Law

65

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 40
Appeal from the MTC to the
RTC

253 SCRA 632 [1996]

ISSUE: Will the failure to pay appellate fee automatically cause the dismissal of
the appeal in the MTC to the RTC ?
HELD: The payment of appellate fee is found in Section 8 of Rule 141. But the SC
observed that the only requirement is Notice of Appeal. There is no mention of
appellate fee. The payment of appellate fee is not a requisite to the perfection of an
appeal although Rule 141 does not specify when said payment shall be made. It
does not automatically result in the dismissal of the appeal unless it affects the
jurisdiction. The dismissal being discretionary on the part of the appellate court,
such dismissal should be exercised wisely.
This ruling is still applicable. Although Section 5 prescribes that within the period to take
appeal you must pay the docket fee. If you do not pay it, it may not cause ipso facto the
dismissal of your appeal. But the clerk of court may refuse to transmit the record to the RTC
until you pay. So docket fee is not a requirement to perfect an appeal although it is an
obligation also.
Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection
of the appeal, the clerk of court or the branch clerk of court of the lower court
shall transmit the original record or the record on appeal, together with the
transcripts and exhibits, which he shall certify as complete, to the proper
Regional Trial Court. A copy of his letter of transmittal of the records to the
appellate court shall be furnished the parties. (n)

What is the requirement to perfect an appeal? It is notice of appeal only or record on

appeal also for special proceedings.
Section 5 of this rule now states that when the party takes an appeal, it is the obligation of
the appellant to pay the appellate docket fee which is imposed by Rule 141 so that the clerk
of the MTC will elevate the appeal to the MTC.
Sec. 7. Procedure in the Regional Trial Court. (a) upon receipt of the complete
record or the record on appeal, the clerk of court of the Regional Trial Court
shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors imputed to
the lower court, a copy of which shall be furnished by him to the adverse party.
Within fifteen (15) days from receipt of the appellants memorandum, the appellee
may file his memorandum. Failure of the appellant to file a memorandum shall be a
ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of the
period to do so, the case shall be considered submitted for decision. The Regional
Trial Court shall decide the case on the basis of the entire record of the
proceedings had in the court of origin and such memoranda as are filed. (n)

What happens if the case reaches the RTC? Section 7 answers it. The clerk court shall
notify the parties. What is important here is paragraph [b], a radical provision:
(b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors imputed to
the lower court, a copy of which shall be furnished by him to the adverse party.
Within fifteen (15) days from receipt of the appellants memorandum, the appellee
may file his memorandum. Failure of the appellant to file a memorandum shall be a
ground for dismissal of the appeal.

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Ateneo de Davao University College of Law

66

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 40
Appeal from the MTC to the
RTC

The procedure under the OLD RULES is found on Section 22 of the Interim Rules. When the
case is appealed to the RTC, the case will be decided by the RTC based on the record on
appeal together with a memorandum as the court may require the parties. In other words, the
court may or may not require the parties to file a memorandum.
NOW, the present rule says, within 15 days from notice, it is your obligation to file a
memorandum. If the appellant fails to file a memorandum in the RTC, his appeal will be
dismissed. The filing of an appeal memorandum in the RTC is mandatory because you must
point out to the RTC kung saan nagkamali. You help the RTC judge look for the error.
Q: Suppose the appellant has filed his memorandum and it is the appellee who failed to file
his memorandum. What is the effect of such failure?
A: Under paragraph [c], the case shall be submitted for decision without appellees
memorandum. And it does not necessarily mean that the appellee will lose the case by not
filing his memorandum because for all you know the decision of the lower court is very clear,
whether he files a memorandum or not, he will still wins.
Another radical change is Section 8:
Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction.
If an appeal is taken from an order of the lower court dismissing the case without
a trial on the merits, the Regional Trial Court may affirm or reverse it, as the
case may be. In case of affirmance and the ground of dismissal is lack of
jurisdiction over the subject matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case on the merits as if the case was
originally filed with it. In case of reversal, the case shall be remanded for
further proceedings.
If the case was tried on the merits by the lower court without jurisdiction over
the subject matter, the Regional Trial Court on appeal shall not dismiss the case
if it has original jurisdiction thereof, but shall decide the case in accordance
with the preceding section, without prejudice to the admission of amended pleadings
and additional evidence in the interest of justice. (n)

The case was dismissed by the MTC without trial on the merits.
PROBLEM: Tomas filed a case against Ka Noli to collect a loan of P50,000 before the MTC.
But upon motion to dismiss alleging that MTC has no jurisdiction, the court dismissed the
complaint without trial. That is disposing of the case without trial. Now, RTC said, MTC has
jurisdiction.
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is for P500,000 before the
MTC. It is clear that the MTC has no jurisdiction. Ka Noli moved to dismiss the case and it was
dismissed. But Tomas appealed to the RTC believing that the dismissal was wrong. Of course
the order of the MTC is correct. It should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes jurisdiction. The RTC which has
jurisdiction, shall try the case on the merits as if the case was originally filed in the RTC.
The second paragraph has slight modification:
PROBLEM: Tomas files a case against Ka Noli for P500,000 before the MTC. Ka Noli file a
motion to dismiss on the ground of lack of jurisdiction. But the motion to dismiss of Ka Noli
was denied and the court tried the case. So, the trial is void. The judgment rendered is also
void. So Ka Noli appealed.

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67

Rule 40
Appeal from the MTC to the
RTC

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Q: What will happen on appeal from the decision of the MTC which tried a case even
though it has no jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the RTC will assumes
jurisdiction over the case. The RTC will convert the appellate jurisdiction into an original
jurisdiction instead of dismissing an appeal. It will treat it as if it has been filed for the first
time in the RTC and not as an appealed case. The purpose here is to avoid double payment of
docket fees.
Sec. 9. Applicability of Rule 41. The other provisions of Rule 41 shall apply to
appeals provided for herein insofar as they are not inconsistent with or may serve
to supplement the provisions of this Rule. (n)

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

-oOo-

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Ateneo de Davao University College of Law

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