COMPAGNIE DES MESSAGERIES MARITIMES, PETITIONER, VS. THE COURT OF APPEALS AND A. A. R. BOTELHO, RESPONDENTS.

Compagnie des Messageries Maritimes versus Court of Appeals and Botelho

The Case

This is a petition for certiorari and mandamus filed by Compagnie des Messageries Maritimes against the Court of Appeals and A. A. R. Botelho. The petitioner, a judgment creditor in a civil case for a sum of money, sought to stop the appellate court from entertaining Botelho's appeal, on the ground that his record on appeal omitted the material data rule requirements showing that the appeal was perfected on time. The case matters because it marks the Supreme Court's deliberate shift from a rigid to a liberal application of the material data rule, and it teaches when a defect in the record on appeal is cured by the trial court's approval and when an appellee is deemed to have waived the objection of non timeliness.

Procedural History

The trial court, the Court of First Instance of Manila, rendered a decision in favor of the petitioner and against the defendants Gertrudis Carlos and A. A. R. Botelho, ordering them to pay jointly and severally the principal amount and litigation expenses, with interest and attorney's fees, and dismissing Botelho's cross claim. Botelho failed to obtain reconsideration and signified his intention to appeal. The trial court approved his record on appeal, there being no opposition.

While the appeal was pending before the Court of Appeals, the petitioner filed a motion to dismiss on the ground that the record on appeal did not contain data showing that the appeal was perfected on time, and that it failed to show on its face that the appeal was perfected within the period fixed by the Rules. Botelho acknowledged the omissions but attributed them to excusable negligence, and presented a certification of the clerk of court of the trial court attesting to the actual dates of receipt of the decision and the order and the filing of the notice of appeal. He prayed that the appellate court authorize the insertion of the necessary data or remand the record to the court of origin for amendment.

The Court of Appeals denied the motion to dismiss, instructed its clerk to remand the original record on appeal to the court of origin, and directed the clerk of court of the Court of First Instance of Manila to insert the data contained in the certification. The petitioner's motion for reconsideration was denied, hence this petition for certiorari and mandamus before the Supreme Court.

Facts

On October 28, 1966, the trial court rendered a decision in favor of the petitioner and against Gertrudis Carlos and A. A. R. Botelho, ordering them to pay jointly and severally the principal sum of 5,202.23 US dollars or its equivalent in Philippine pesos, plus 605.72 US dollars or its equivalent representing expenses of litigation, with interest on both amounts at six percent per annum until fully paid, reckoned from the filing of the case on December 28, 1961, plus twenty five percent of the total amount as attorney's fees, and costs. Botelho's cross claim was dismissed.

Botelho sought reconsideration but was unsuccessful, and he signified his intention to appeal. On December 10, 1966, the trial court approved his record on appeal, there being no opposition.

While the appeal was pending, the petitioner moved to dismiss it, pointing out that the record on appeal did not contain the data showing that the appeal was perfected on time. Botelho admitted the omissions but showed, through the clerk of court's certification, that he had received the decision on October 28, 1966, received the order of November 21, 1966 on December 1, 1966, and filed his notice of appeal on December 7, 1966. The certification thus established that he had perfected his appeal on time, on the sixteenth day from notice of the appealed decision after deducting the period during which his motion for reconsideration was pending.

Issues

• Whether or not the Court of Appeals acted correctly in refusing to dismiss Botelho's appeal despite the omissions in his record on appeal.
• Whether or not the omissions in the record on appeal, consisting of the dates of receipt of the decision and order and the exact date of filing of the notice of appeal, are fatal to the appeal.
• Whether or not the trial court's approval of the record on appeal, there being no opposition, cured the defect and amounted to a waiver by the petitioner of the objection of non timeliness.

Applicable Provisions

Section 6 of Rule 41 of the Rules of Court, invoked by the petitioner, provides:

The Record on Appeal shall include the full names of all the parties to the action, the nature of the action, a brief statement of the proceedings, the date of the filing of the notice of appeal, the date of the approval of the record on appeal, and such data as will show that the appeal was perfected on time.

This is the material data rule whose non compliance the petitioner raised as a ground to dismiss the appeal.

Section 1, paragraph a, of Rule 50 of the Rules of Court, also invoked by the petitioner, provides:

When the record on appeal is filed in the appellate court, the clerk shall examine the record and if he finds that it does not show on its face that the appeal was perfected within the period fixed by these rules, he shall report the matter to the court, which may dismiss the appeal motu proprio or on motion of the appellee.

This is the provision under which the petitioner sought dismissal of the appeal in the appellate court.

Ruling

On the first issue, the Court held that the Court of Appeals acted correctly in refusing to dismiss the appeal. While the Court had previously adhered to a rigid application of the material data rule, it had since modified and liberalized that doctrine. The failure to show on the face of the record on appeal the date when the appellant received the decision of the trial court, and such other data showing that the appeal was duly perfected, is not a fatal defect, because the trial court's approval of the record on appeal served to cure whatever defect or omission there may have been. As the Court put it, speaking through the late Justice Salvador V. Esguerra:

No trial Judge in his right mind and who is aware of the serious responsibilities of his office would approve a record on appeal that was not timely filed.

On the second issue, the Court held that the omissions were not fatal. The deficiencies consisted of the non inclusion of the dates of receipt by Botelho of copies of the decision and of the order of the lower court, and the exact day in December 1966 when the notice of appeal was filed. The certification of the clerk of court, however, indicated the actual dates of receipt and showed beyond cavil of doubt that Botelho had actually perfected his appeal on time, on the sixteenth day from notice of the appealed decision after deducting the period during which the motion for reconsideration was pending.

On the third issue, the Court held that the trial court's approval of the record on appeal, there being no opposition, strengthened Botelho's case and weakened the petitioner's, who must be deemed to have waived the issue of timeliness and who was obviously relying on a mere technicality. The Court quoted with approval its ruling in Abando versus Court of Appeals:

Petitioner had filed no opposition whatsoever to the approval of the record on appeal, which in fact was timely filed and perfected, and in the absence of any positive showing from the records that the appeal was in fact not timely perfected, he must be likewise deemed to have waived the objection of non-timeliness and can no longer be allowed to invoke it on mere technicality in the appellate court.

The Court added that a remand to the trial court was unnecessary in the face of a positive showing that the appeal was timely perfected.

Doctrine

The failure to show on the face of the record on appeal the date when the appellant received the decision of the trial court, and such other data showing that the appeal was duly perfected, is not a fatal defect. The trial court's approval of the record on appeal cures whatever defect or omission there may have been, on the reasoning that no trial judge aware of the serious responsibilities of his office would approve a record on appeal that was not timely filed.

An appellee who files no opposition to the approval of the record on appeal, and who makes no positive showing that the appeal was in fact not timely perfected, is deemed to have waived the objection of non timeliness and can no longer invoke it on mere technicality in the appellate court. The material data rule under Section 6 of Rule 41 and the dismissal provision under Section 1 of Rule 50 must yield to the liberal application of the Rules where the records positively show that the appeal was perfected on time.

Disposition

The petition for certiorari and mandamus was dismissed, and the case was remanded to the Court of Appeals for determination of the appeal on the merits as expeditiously as possible, with no costs.

Remember This

Memorize the line that no trial judge in his right mind would approve a record on appeal that was not timely filed, for that is the reasoning that cures the omission. Examiners use this case to test the liberal application of the material data rule and the doctrine of waiver by an appellee who fails to oppose the approval of the record on appeal.