Case Digest: REPUBLIC OF THE PHILIPPINES v. COURT OF APPEALS, et al.

REPUBLIC OF THE PHILIPPINES v. COURT OF APPEALS, et al.

         Apolinaria Malinao filed a petition before the Ormoc Regional Trial Court for the Declaration of Presumptive Death of her Absentee Spouse Clemente P. Jomoc which was granted by Order of September 29, 1999.The Republic through the Office of the Solicitor General filed a Notice of Appeal. The trial court disapproved the Notice of Appeal as the present case is a special proceeding which requires that a record of appeal be filed and served pursuant to Section 2 (a) Rule 41 of the 1997 Rules of Civil Procedure. The Republic filed a Petition for Certiorari before the Court of Appeals as its Motion for Reconsideration before the trial court was denied. The Republic contends that the declaration of presumptive death of a person under Article 41 of the Family Code is not a special proceeding.

ISSUE:

Whether or not a petition for declaration of the presumptive death of a person is in the nature of a special proceeding

HELD:

As defined in Section 3(a), Rule 1 of the Rules of Court, “a civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention of redress of a wrong” while a special proceeding under Section 3(c) of the same rule is defined as a remedy by which a party seeks to establish a status, a right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).

Considering the aforementioned distinction, this Court finds that the instant petition is in the nature of a special proceeding and not an ordinary action. The petition merely seeks for a declaration by the trial court of the presumptive death of absentee spouse Clemente Jomoc. It does not seek the enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of right or a cause of action that can be enforced against any person.

On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying OSG’s Motion for Reconsideration of the Order dated November 22, 1999 disapproving its Notice of Appeal was correctly issued. The instant petition, being in the nature of a special proceeding, OSG should have filed, in addition to its Notice of Appeal, a record on appeal in accordance with Section 19 of the Interim Rules and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court .