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

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

458 SCRA 200 (2005), THIRD DIVISION

Apolinaria Malinao filed a petition before the Ormoc Regional Trial Court for the Declaration of Presumptive Death of her Absentee Spouse Clemente P. Jomoc. The petition was thereafter granted by the trial court. The Republic, through the Office of the Solicitor General, filed a Notice of Appeal. The trial court disapproved the Notice of Appeal on the ground that 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 contending that the declaration of presumptive death of a person under Article 41 of the Family Code is not a special proceeding. The CA affirmed the trial court‘s decision.

ISSUE:

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

HELD:

Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW contains Article 238 which provides that unless modified by the Supreme Court, the procedural rules in the said Title shall apply in all cases provided for in the Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.

The petition of Apolinaria Jomoc required and is therefore, a summary proceeding under the Family Code as her purpose was to contract a valid subsequent marriage, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court‘s order sufficed.