FERNANDO SARMIENTO, PETITIONER, VS. HON. MAGNO S. GATMAITAN, CHAIRMAN, HON. JOSE N. LEUTERIO AND HON. LUIS B. REYES, MEMBERS, COURT OF APPEALS, MANILA, AND CATALINA PONCE AS GUA…

This case originated in the trial court as an action for
acknowledgment and support of two (2) minor children, namely, Jaime Ponce and
Romeo Ponce, filed by their mother, Catalina Ponce, against herein petitioner
Fernando Sarmiento.

After trial, on 29 March
1971, the court a quo ren­dered a decision^[1]
favorable to the plaintiff.  Defendant
received copy of the decision on 14
April 1971.  Not satis­fied
with the decision, defendant, now petitioner herein, on 20 April 1971, clearly within the reglementary period, filed a notice of appeal and, thereafter, the record on appeal.  On 18
June 1971, the trial court approved the record on appeal and appeal
bond, without any objection from herein private respondent, and despite due
notice to her.  More than one month
thereafter, or specifically, on 30
July 1971, private respondent filed a motion for recon­sideration
of the order of the trial court, dated 18
June 1971.  Acting on said
motion and the opposition of petitio­ner thereto, the trial court ordered the
petitioner to file an amended record on appeal, which the petitioner did on 26 August 1971, as shown on the face of the original
of said amended record on appeal.  On 11 January 1972, the amended record
on appeal was approved by the trial court.

Before the Court of Appeals in CA-GR No. 50093-R entitled
“Catalina Ponce, etc., plaintiff-appellee vs.
Fernando Sarmiento, defendant-appellant”,
private respondent filed a motion to dismiss petitioner’s appeal.  Des­pite opposition, the respondent appellate
court^[2],
in a minute resolution, dated 18 June 1973, dismissed the appeal on the ground
that the statement of facts and arguments in appellant’s brief do not contain
any citation of the trans­cript of stenographic notes (TSN) or page references
to the record and that the Record on Appeal does not contain any averment that
the appellant ever filed an appeal bond. 
Reconsideration of the resolution of dismissal having been denied on 3 August 1973, the instant petition
was filed before this Court.

Under the present rules, an appeal bond is no longer required in
taking an appeal^[3].  This relatively new procedural rule may be
given retroactive effect.  The extent of its retroactive application
is, however, limited to actions pending
and undetermined at the time of its approval but it does not extend to actions
which had already become final and executory^[4].

Under the 1964 Rules of Court, a judgment or order of the Court
of First Instance becomes final upon the expira­tion of thirty (30) days after service of notice thereof, unless
an appeal is taken to the Court of Appeals within the said period by serving
upon the adverse party and filing with
the trial court a notice of appeal, an appeal bond, and a record on appeal^[5].

While it is the contention of petitioner herein that he filed the
notice of appeal, appeal bond and record on appeal on time, an examination of
the records, however, shows that what was filed on time was only the notice of appeal^[6].  The cash appeal bond was paid only on 7 Novem­ber 1971 as certified to by
Mariano Kintanar Officer-in-Charge for Jesus Bajarias, Branch Clerk of Court^[7],
or long after the period for perfecting an appeal had lapsed.  As to the record on appeal, the records are
silent as to when it was actually filed. 
The appeal, not having been perfected on time, the decision of the trial
court became final and executory on 14 May 1971,
thirty (30) days from receipt thereof by the petitioner on 14 April 1971.

While it may be argued that the record on appeal and appeal bond
were approved by the trial court, as shown in its order dated 18 June 1971, such approval did not
render the appeal valid, effective and legal^[8].  As stated earlier, the cash appeal bond was
actually paid on 7 November 1971;
whereas, the judgment had became final and executory
on 14 May 1971.

WHEREFORE, the instant petition is hereby DENIED.  The resolutions of the respondent Court of
Appeals, dated 18 June 1973
and 3 August 1973, are
AFFIRMED.  With costs against petitioner.

SO ORDERED.

Yap, (Chairman), Melencio-Herrera,
Paras, and Sarmiento, JJ., concur.

^[1]
Penned by Judge Francisco S. Tantuico, Jr. of the
Court of First Instance of Cebu,
14th Judicial District, Branch VI.

^[2]
Third Division composed of Justice Magno S. Gatmaitan, Chairman, and
Justices Jose N. Leuterio and Luis B. Reyes, members.

^[3]
Section 18.  Interim Rules of Court,
promulgated 11 January 1983.

^[4]
The Municipal Government of Coron, Palawan vs. Carino, et
al., G.R. No. 65894, 24 September 1987 citing the case of Alday
vs. Camilon, 120 SCRA 521

^[5]
Sec. 3, Rule 41 of the Rules of Court. 
Under Batas Pambansa Blg.
129, what is required to be filed on time is only the notice of appeal.

^[6]
Original amended Record on Appeal, p. 52

^[7]
Brief for the petitioner, p. 17

^[8]
Garganta vs. Court of Appeals, 105 Phil. 412;
417-418