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Note: No change of theory on appeal; reason: due process. A: NO, the ruling in SANTOS is not applicable. Your appeal will be
dismissed.
May a court render a judgment on an issue that has not
been raised?
Q: What provision of the Rules authorizes such dismissal? Is there any direct
provision of the Rules of Court which authorizes the dismissal of the appeal by
As a rule Courts of justice have no jurisdiction or power to decide a question not non-payment of the appeal docket fee?
in issue. Thus, a judgment that goes beyond the issues and purports to adjudicate
something on which the court did not hear the parties, is not only irregular but
also extrajudicial and invalid. The rule rests on the fundamental tenets of fair A: YES. Rule 50 Section 1 [c];
play. RULE 50, Section 1 – An appeal may be dismissed by the Court of Appeals,
on its own motion or on that of the appellee. on the following grounds:
EXCEPTIONS: x x x x
(c) Failure of the appellant to pay the docket and other lawful fees as
(1) Matters not assigned as errors on appeal but consideration of which is
provided in Section 4 of Rule 41 ;
necessary in arriving at a just decision and complete resolution of
x x x x
the case or to serve the interest of justice or to avoid dispensing
I believe that it is dismissible because of that. So, to my mind, the SANTOS vs. CA
piecemeal justice;
ruling which governs Rule 40 and which for me is valid, is NOT APPLICABLE to
Rule 41 because there is a direct provision in Rule 50 that an appeal can be
(2) Matters not specifically assigned as errors on appeal but raised in the dismissed for
trial court and are matters of record having some bearing on the issue non-payment of appeal docket fee. That is the difference between these two
submitted which the parties failed to raised or which the lower court situations.
ignored;

(3) Matters not assigned as errors on appeal but closely related to an
error assigned;
(4) Matters not assigned as error but upon which the determination
properly assigned is dependent. (Filipinas Palmoil Processing Inc., et al.
v. CA, et al., G.R. No. 167332, February 7, 2001)
DIFFERENCE OF RUL 40 AND RULE 41 IN NON-PAYMENT OF DOCKET
FEES OF APPEAL: P. 462-463
Note:
SHOULD THE APPEAL BE DISMISSED IF FILED WITHOUT A NOTICE OF
APPEAL BUT ONLY A RECORD ON APPEAL?
NO. Because the filing of a record on appeal is harder to comply with than the
filing of a notice of appeal. The filing of the record on appeal is more
expressive of the desire of the party to appeal. (Peralta vs. Solon,
77 Phil. 610)

Q: You failed to pay the docket fee within 15 days. So, when the case was
transmitted to the CA, hindi kasali yung fee no. Now, can your appeal be
dismissed on the ground of failure to pay the docket fee or not in accordance
with the ruling in SANTOS (by analogy, although in this case, the appeal is
from the MTC to the RTC. Pero the same, hindi ka rin magbayad ng docket
fee.) Is the ruling in SANTOS also applicable to Rule 41 ?

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RULE 45 VS RULE 65
An order or a judgment is deemed final when it finally disposes of a pending
G.R. No. 156067 action, so that nothing more can be done with it in the trial court. In other words,
August 11, 2004 MADRIGAL VS LAPANDAY the order or judgment ends the litigation in the lower court. Au contraire, an
interlocutory order does not dispose of the case completely, but leaves
something to be done as regards the merits of the latter. [27] chanrobles virtual
First Issue: Remedy Against Dismissal of Complaint
law library
The resolution of this case hinges on the proper remedy: an appeal or a Petition
Petition for Certiorari
for Certiorari. Petitioner claims that it correctly questioned the trial court’s
A petition for certiorari is governed by Rule 65, which reads:chanrobles virtual
Order through its Petition for Certiorari. Respondents insist that an ordinary
law library
appeal was the proper remedy. We agree with respondents. chanrobles virtual
Section 1. Petition for certiorari.- When any tribunal, board or officer exercising
law library
judicial or quasi-judicial functions has acted without or in excess of its or his
Appeal
jurisdiction, or with grave abuse of discretion amounting to lack or excess of its
Under Rule 41, Rules of Court, an appeal may be taken from a judgment or final
or his jurisdiction, and there is no appeal, or any plain, speedy, and adequate
order that completely disposes of the case, or of a particular matter therein when
remedy in the ordinary course of law, a person aggrieved thereby may file a
declared by the Rules of Court to be appealable. [25] The manner of appealing
verified petition in the proper court, alleging the facts with certainty and praying
an RTC judgment or final order is also provided in Rule 41 as follows:chanrobles
that judgment be rendered annulling or modifying the proceedings of such
virtual law library
tribunal, board or officer, and granting such incidental reliefs as law and justice
Section 2. Modes of appeal.-
may require.
(a) Ordinary appeal.- The appeal to the Court of Appeals in cases decided by
The petition shall be accompanied by a certified true copy of the judgment, order
the Regional Trial Court in the exercise of its original jurisdiction shall be taken
or resolution subject thereof, copies of all pleadings and documents relevant and
by filing a notice of appeal with the court which rendered the judgment or final
pertinent thereto, and a sworn certification of non-forum shopping as provided
order appealed from and serving a copy thereof upon the adverse party. No
in the third paragraph of Section 3, Rule 46. [28]
record on appeal shall be required except in special proceedings and other cases
A writ of certiorari may be issued only for the correction of errors of jurisdiction
of multiple or separate appeals where the law or these Rules so require. In such
or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ
cases, the record on appeal shall be filed and served in like manner.cralaw
cannot be used for any other purpose, as its function is limited to keeping the
(b) Petition for review.- The appeal to the Court of Appeals in cases decided
inferior court within the bounds of its jurisdiction. [29]
by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by
For certiorari to prosper, the following requisites must concur: (1) the writ is
petition for review in accordance with Rule 42.cralaw
directed against a tribunal, a board or any officer exercising judicial or quasi-
(c) Appeal by certiorari. — In all cases where only questions of law are raised
judicial functions; (2) such tribunal, board or officer has acted without or in
or involved, the appeal shall be to the Supreme Court by petition for review on
excess of jurisdiction, or with grave abuse of discretion amounting to lack or
certiorari in accordance with Rule 45. [26]

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excess of jurisdiction; and (3) there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law. [30]
“Without jurisdiction” means that the court acted with absolute lack of
authority. [31] There is “excess of jurisdiction” when the court transcends its
power or acts without any statutory authority. [32] “Grave abuse of discretion”
implies such capricious and whimsical exercise of judgment as to be equivalent
to lack or excess of jurisdiction; in other words, power is exercised in an arbitrary
or despotic manner by reason of passion, prejudice, or personal hostility; and
such exercise is so patent or so gross as to amount to an evasion of a positive
duty or to a virtual refusal either to perform the duty enjoined or to act at all in
contemplation of law. [33]
Appeal and Certiorari, Distinguished
Between an appeal and a petition for certiorari, there are substantial distinctions
which shall be explained below.cralaw
As to the Purpose. Certiorari is a remedy designed for the correction of errors of
jurisdiction, not errors of judgment. [34] In Pure Foods Corporation v. NLRC, we
explained the simple reason for the rule in this
light:chanroblesvirtuallawlibrary chanrobles virtual law library
“When a court exercises its jurisdiction, an error committed while so engaged
does not deprive it of the jurisdiction being exercised when the error is
committed. If it did, every error committed by a court would deprive it of its
jurisdiction and every erroneous judgment would be a void judgment. This
cannot be allowed. The administration of justice would not survive such a
rule. Consequently, an error of judgment that the court may commit in the
exercise of its jurisdiction is not correct[a]ble through the original civil action of
certiorari.” [35] chanrobles virtual law library
The supervisory jurisdiction of a court over the issuance of a writ of certiorari
cannot be exercised for the purpose of reviewing the intrinsic correctness of a
judgment of the lower court -- on the basis either of the law or the facts of the
case, or of the wisdom or legal soundness of the decision. [36] Even if the
findings of the court are incorrect, as long as it has jurisdiction over the case, such
3
correction is normally beyond the province of certiorari. [37] Where the error is
not one of jurisdiction, but of an error of law or fact -- a mistake of judgment --
appeal is the remedy. [38]
As to the Manner of Filing. Over an appeal, the CA exercises its appellate
jurisdiction and power of review. Over a certiorari, the higher court uses its
original jurisdiction in accordance with its power of control and supervision over
the proceedings of lower courts. [39] An appeal is thus a continuation of the
original suit, while a petition for certiorari is an original and independent action
that was not part of the trial that had resulted in the rendition of the judgment
or order complained of. [40] The parties to an appeal are the original parties to
the action. In contrast, the parties to a petition for certiorari are the aggrieved
party (who thereby becomes the petitioner) against the lower court or quasi-
judicial agency, and the prevailing parties (the public and the private
respondents, respectively). [41]
As to the Subject Matter. Only judgments or final orders and those that the Rules
of Court so declare are appealable. [42] Since the issue is jurisdiction, an original
action for certiorari may be directed against an interlocutory order of the lower
court prior to an appeal from the judgment; or where there is no appeal or any
plain, speedy or adequate remedy. [43] chanrobles virtual law library
As to the Period of Filing. Ordinary appeals should be filed within fifteen days
from the notice of judgment or final order appealed from. [44] Where a record
on appeal is required, the appellant must file a notice of appeal and a record on
appeal within thirty days from the said notice of judgment or final order. [45] A
petition for review should be filed and served within fifteen days from the notice
of denial of the decision, or of the petitioner’s timely filed motion for new trial or
motion for reconsideration. [46] In an appeal by certiorari, the petition should
be filed also within fifteen days from the notice of judgment or final order, or of
the denial of the petitioner’s motion for new trial or motion for
reconsideration. [47] chanrobles virtual law library
On the other hand, a petition for certiorari should be filed not later than sixty
days from the notice of judgment, order, or resolution. [48] If a motion for new
 4

(Sec. 3 R 9)
trial or motion for reconsideration was timely filed, the period shall be counted
5. There must be a hearing of the motion to declare the defendant in default; and
from the denial of the motion. [49]
As to the Need for a Motion for Reconsideration. A motion for reconsideration is
6. There must be proof of such failure to answer.
generally required prior to the filing of a petition for certiorari, in order to afford
the tribunal an opportunity to correct the alleged errors. Note also that this Effect of a declaration/order of default:

motion is a plain and adequate remedy expressly available under the

law. [50]Such motion is not required before appealing a judgment or final 1. The party declared in default loses his standing in court. The loss of such
standing prevents him from taking part in the trial (Sec. 3[a], Rule 9);
order. [51]
Certiorari Not the Proper Remedy if Appeal Is Available
2. While the defendant can no longer take part in the trial, he is nevertheless
Where appeal is available to the aggrieved party, the action for certiorari will not
entitled to notices of:
be entertained. Remedies of appeal (including petitions for review) and
certiorari are mutually exclusive, not alternative or successive. [52] Hence, a. Motion to declare him in default;
b. Order declaring him in default;
certiorari is not and cannot be a substitute for an appeal, especially if one’s own c. Subsequent proceedings; and
negligence or error in one’s choice of remedy occasioned such loss or d. Service of final orders and judgments.
lapse. [53] One of the requisites of certiorari is that there be no available appeal
3. A declaration of default is not an admission of the truth or the validity of the
or any plain, speedy and adequate remedy. [54] Where an appeal is available, plaintiff’s claims
certiorari will not prosper, even if the ground therefor is grave abuse of
Note: A defendant declared in default cannot take part in the trial, but he cannot
discretion.cralaw
be disqualified from testifying as a witness in favor of non-defaulting defendants
(Cavile vs. Florendo GR No. 73039, Oct. 9, 1987)
Requisites before a party may be declared in default:
Note: If the defendant was declared in default upon an original complaint, the
filing of the amended complaint results in the withdrawal of the original
1. The Court must have acquired jurisdiction over the person of the defendant complaint, hence, the defendant is entitled to file an answer to the amended
thru a valid service of summons or voluntary appearance; complaint as to which he
was not in default.

2. The defending party must have failed to file his answer within the REMEDIES
reglementary period or within the period fixed by the court;
1. A party declared in default may at any time after notice thereof and
before judgment
3. there must be a motion to declare the defendant in default; a. file a motion to lift or to set aside the order of default (must be
verified and under oath)
b. upon proper showing that his failure to answer was due to FAME
4. The defending party must be notified of the motion to declare him in default c. must also show he has a meritorious defense (ex. There must be
an affidavit of merits)

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In such a case, the order of default may be set aside on such terms
and conditions as the judge may impose in the interest of justice
(Sec. 3b)

2. After judgment and before judgment becomes final and executory

a. The defendant may file a motion for new trial under Rule 37 on the
ground of FAME within the period to appeal.
b. He may also appeal from the judgment as being contrary to the
evidence or the law

3. Remedy after the judgment becomes final and executory

a. The defendant may file a petition for relief from judgment under Rule
38 on the ground of FAME

4.) Rule 41 – Appeal within 15 days; ground: Default judgment is contrary to

law or evidence;

5.) Rule 47 – Annulment of judgment; Ground: Extrinsic Fraud;

6. Where the defendant has however, been wrongly or improvidently declared

in default, the court can be considered to have acted with grave abuse of
discretion amounting to lack of jurisdiction and when the lack of
jurisdiction is patent in the face of the judgment or from the judicial records,
he may avail of the special civil action of certiorari under Rule 65