489 Phil. 761
GARCIA, J.:
A verified petition was filed by herein petitioner through counsel alleging that she married Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she decided to go back to her parents and lived separately from her husband. After nine (9) years, there was absolutely no news about him and she believes that he is already dead and is now seeking through this petition for a Court declaration that her husband is judicially presumed dead for the purpose of remarriage.The evidence in support of the summary judicial proceeding are: the order of publication dated August 28, 2000 (Exhibit “A”); affidavit of publication dated September 16, 2000 (Exhibit “B”)[2]; copies of the newspapers where the order appeared (Exhibits “C” to “E-1”)[3]; a deposition dated September 4, 2000 of Gloria taken in Hong Kong (Exhibit “G”)[4]; Gloria’s affidavit dated October 21, 1999, also executed in Hong Kong (Exhibit “G1”)[5]; and a certification by Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated November 3, 1999, therein certifying that the signature of Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in Gloria’s affidavit of October 21, 1999, is authentic (Exhibit “G2”)[6].
Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing before this Court on September 18, 2000 at 8:30 o’clock in the morning at which place, date and time, any or all persons who may claim any interest thereto may appear and show cause why the same should not be granted.
Let a copy of this Order be published in a newspaper of general circulation in this province once a week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice and the Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.
Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition. Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City.
SO ORDERED[1]
WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered declaring the presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but subject to all restrictions and conditions provided therein.Despite the judgment being immediately final and executory under the provisions of Article 247 of the Family Code, thus:
SO ORDERED.[7]
Art. 247. The judgment of the court shall be immediately final and executory,the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of Appeal.[8] Acting thereon, the RTC had the records elevated to the Court of Appeals which docketed the case as CA-G.R. CV No. 73884.
WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is hereby AFFIRMED.Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the instant recourse under Rule 45, maintaining that the petition raises a pure question of law that does not require prior filing of a motion for reconsideration.
SO ORDERED.[9]
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; andThe Court rules against petitioner Republic.
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-cited provision by expeditiously rendering judgment within ninety (90) days after the formal offer of evidence by therein petitioner, Gloria Bermudez-Lorino.
Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of the Solicitor General who received a copy of the Decision in this case on November 14, 2001, within the reglementary period fixed by the Rules, let the entire records of this case be transmitted to the Court of Appeals for further proceedings.In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code, supra, are “immediately final and executory”. It was erroneous, therefore, on the part of the RTC to give due course to the Republic’s appeal and order the transmittal of the entire records of the case to the Court of Appeals.
SO ORDERED.[10]
Nothing is more settled in law than that when a judgment becomes final and executory it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and whether made by the highest court of the land (citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the RTC’s decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed the appeal outright on that ground.