LILIA AGUIRRE, GENATO AGUIRRE AND BENITO AGRAVA, PETITIONERS, VS. THE HONORABLE COURT OF FIRST INSTANCE OF LEYTE, BRANCH III, EDUARDO TAMPIL AND LETICIA A. TAMPIL, RESPONDENTS.

This petition for certiorari assails the order (p. 27, Rollo) of respondent Court of First Instance (now Regional Trial
Court) of Leyte, Branch III,
dismissing petitioners appeal for failure to prosecute and the order (p. 41, Rollo) denying the motion for reconsideration.

The undisputed facts are as follows:

This petition stemmed from Civil Case No. 5153 filed by private
respondents.  The complaint was for
damages sustained when the auto-calesa (AC) jeep owned by petitioners figured
in an accident on September 18, 1974,
resulting in the death of private respondents’ daughter and injury to private
respondent Leticia Tampil requiring hospitalization for nine (9) days.

The petitioners denied liability to the private respondents.  After trial, judgment was rendered on February 28, 1978 holding petitioners
liable to the private respondents.

The petitioners filed a timely notice of appeal to the Court of
Appeals from the decision of the trial court. 
On August 15, 1978,
respondent trial court issued an order
approving petitioners’ record on appeal and appeal bond (p. 6, Rollo).

On August 21, 1979,
private respondents filed with the trial court a motion to dismiss the appeal for failure of petitioners to
prosecute their appeal pursuant to Section 3, Rule 46 of the Rules of
Court.  The motion alleged that for over
a year after the approval of petitioners’ record on appeal, the same had not
been forwarded to the appellate
court and still lay dormant in the files of the trial court (pp. 22-23, Rollo).

Petitioners filed an opposition (pp. 24-26, Rollo) to the motion to dismiss on the following arguments:  1) that the trial court had no more
jurisdiction over the case in
view of the perfection of the appeal and the approval of the record on appeal
by the trial court; 2) that the motion is misdirected having been filed with
the trial court instead of filing it with the appellate court; and 3) that
petitioners exerted efforts to have the record of the case transmitted to the
appellate court but the Deputy Clerk of Court explained that the stenographic
notes of the proceedings have not yet been attached to the record.

On October 12, 1979,
the trial court issued an order granting the motion to dismiss (p. 27, Rollo).  Petitioners’ motion
for reconsideration was denied on February
22, 1980.

On April 10, 1980,
this petition for certiorari was filed with Us.

There is no question that an appeal from the decision of the
Court of First Instance (now Regional Trial Court) to the Court of Appeals may
be dismissed for failure of the appellant to prosecute his appeal.  We have ruled in the case of Fagtanac v. CA,
L-26922-23, March 21, 1968 and reiterated in Loyola v. CA, L­-27465, August 31,
1971, and in Arcega v. C.A., G.R. No. 79043, October 28, 1988 that:

“A rule long familiar to practitioners in this jurisdiction is
that it is the duty of the appellant to prosecute his appeal with reasonable
diligence.  He cannot simply fold his
arms and say that it is the duty of the Clerk of Court of First Instance under
the provisions of Section 11, Rule 41 of the Rules of Court to transmit the
record on appeal to the appellate court. 
It is appellants’ duty to make the Clerk act and, if necessary, procure
a court order to compel him to act.  He
cannot idly sit by an wait till this is done.  He cannot afterwards wash his hands and say
that delay in the transmittal of the record on appeal was not his fault.  For indeed, this duty imposed upon him was
precisely to spur on the slothful.”

The petitioners contend that respondent trial court acted without
jurisdiction when it dismissed the appeal of petitioners.  The act of respondent trial court in
dismissing their appeal after it had been perfected violates Section 9, Rule 41
of the Rules of Court.

The contention is tenable. 
Rule 41, Section 9 of the Rules of Court provides that once an appeal
has been perfected, the trial court loses its jurisdiction over the case.  But, notwithstanding
the perfection of an appeal, the trial court does not lose its jurisdiction
“x x x to issue orders for the protection and preservation of the rights
of the parties which do not involved any matter litigated by the appeal.”
Private respondents contend that the dismissal of the appeal by the trial court is an “order for the protection
and preservation of the rights of the parties which do not involve any matter
litigated by the appeal.  We disagree. 
The order granting private respondents’ motion to dismiss appeal for
failure of petitioners to prosecute their appeal is not merely an order for the
protection of the rights of the parties but is an order which disposes of the
case.

Rule 41, Section 14, in connection with Section 13 of the Rules
of Court provides for the only instance when the Court of First Instance may
dismiss an appeal i.e., when the notice of appeal, or the appeal bond or the
record on appeal was not filed on
time.  In all these cases, the appeal had
not yet been perfected.  In the instant
case, the notice of appeal, the record on appeal and the appeal bond were filed
on time and the appeal had
already been perfected.

Under Section 22, Rule 41, “(A)n
appeal in any case may be withdrawn in the Court of First Instance before the
record on appeal is transmitted to the appellate court.” The dismissal in
this case is initiated by the appellant himself who withdraws his appeal.

The basis of private respondents’ filing of a motion to dismiss
is Section 1, Rule 50 in connection with Section 3, Rule
46 of the Rules of Court which provides:

Rule 46:

“Section 3.  Order of Transmittal of record.- If the record on appeal is not received by the Court of
Appeals within thirty (30) days after the approval thereof, the appellee may,
upon notice to the appellant, move the court to grant an order directing the
clerk of the lower court
forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute.

Rule 50:

“Section 1.  Grounds for dismissal of
appeal.  – An appeal may be
dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:

‘(a) x x x

‘(b) x x x

‘(c) Failure of the appellant to prosecute his
appeal under Section 3 of Rule 46.’

“x x x.”

The proper court therefore, which must dismiss an appeal for failure to prosecute upon motion of the
appellant himself or upon the court’s
own motion is the Court of Appeals and not the Court of First
Instance.  Respondent trial court acted
without jurisdiction when it ordered the dismissal of the appeal for failure to
prosecute, the proper court to order the dismissal of the appeal for failure to
prosecute, after the perfection of said appeal, being the Court of Appeals,
before which the appeal is taken.

ACCORDINGLY, the petition is GRANTED.  The assailed orders of respondent trial court
are set aside and the appeal of petitioners is reinstated.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Grino-Aquino, JJ., concur.