467 Phil. 108

SECOND DIVISION

[ G.R. No. 145284, February 11, 2004 ]

ROSITA DAVID, PETITIONER, VS. SPOUSES ROD AND CYNTHIA NAVARRO, AND THE COURT OF APPEALS, RESPONDENTS.

D E C I S I O N

CALLEJO, SR., J.:

This is a petition for certiorari, prohibition, mandamus and injunction, under Rule 65 of the 1997 Rules of Civil Procedure, assailing the March 15, 2000 Resolution of the Court of Appeals[1] and the writ of preliminary injunction issued pursuant thereto; and the Resolution dated August 25, 2000 denying the motion for reconsideration filed thereon.  In annulling the said resolutions, the petitioner seeks to (a) prohibit the Court of Appeals from deciding the said case on its merits; (b) compel the Court of Appeals to dismiss the said case; and (c) order the private respondents to vacate the property located at No. 1164 E. Rodriquez, Sr. Avenue, Quezon City.

The Antecedents

During his lifetime, Andrew David was in the business of buying and selling used cars. He had ten vehicles which were offered for sale, three of which were unserviceable. He owned  parcels of  land, including one covered by Transfer Certificate of Title (TCT) No. 14793 located in Quezon City. He had a savings deposit account with the Philippine Savings Bank (PS Bank) under Savings Account No. 017-0386548-7 in the amount of P500,000.00. He also had a life insurance of P1,500,000.00 from the SunLife of Canada Insurance Company.[2]

On May 5, 1994, Andrew David was shot by two unidentified men as he was about to reach his house. He was survived by his wife, Teodora David, and his mother, petitioner Rosita David.[3] Teodora was a suspect in the killing of her husband.[4]

The petitioner filed with the Regional Trial Court a petition for the settlement of the estate of her son, Andrew David, docketed as Sp. Proc. No. 10436 and prayed that she be appointed as special administratrix of the estate. Teodora opposed the petition. She also sold Andrew’s personal properties, including the seven serviceable vehicles. The unserviceable ones were given to the petitioner.[5]

In the meantime, Teodora and the petitioner filed a motion in Sp. Proc. No. 10436 for joint authority to withdraw P500,000.00 from PS Bank Savings Account No. 017-0386548-7, to sell the property covered by TCT No. 14793, and to receive the proceeds of the decedent’s life insurance.[6] On October 20, 1994, the court issued an Order granting the said motion. It directed Teodora and the petitioner to divide among the heirs of the decedent the remaining balance of the savings deposit account, the proceeds of the sale of the property, and the life insurance proceeds from the Sunlife of Canada Insurance Company.[7]

Thereafter, Teodora David, as vendor, and the respondent Spouses Rod and Cynthia Navarro, as vendees, executed a deed of conditional sale over the property covered by TCT No. 14793 for the price of P4,500,000.00 payable as follows:
1)      That the amount of ONE MILLION PESOS (P1,000,000.00) shall be paid by VENDEE to the VENDOR as down payment whereupon the VENDOR shall:
A.           Deliver to VENDEE the vacant possession of the premises, free of any occupants and/or tenants.

B.           Undertake the payment of the existing Real Estate Mortgage with the Philippine Savings Bank, clear the title from the aforesaid Bank and secure the Release of Mortgage.

C.           Cause the legal proceedings as legal heir of the late Andrew David (the VENDOR’S husband), to transfer the said title in the name of the VENDOR.
2)      That the balance of THREE MILLION FIVE HUNDRED THOUSAND PESOS (P3,500,000.00) shall be paid by VENDEE to VENDOR upon the presentation of a valid, transferable and registerable title in the VENDOR’S name.[8]
Rosita did not affix her conformity to the sale as she herself had a prospective buyer of the property for the price of P4,500,000.00.[9]

The Navarro Spouses remitted the amount of P1,000,000.00 to Teodora as down payment. However, Teodora did not share the amount with the petitioner. The Navarro Spouses took possession of the property, and used a portion thereof for their car sale business. They employed Nilo Nase and Federico Vibar as car painters, and the latter’s wife as caretaker of the property. The Spouses Vibar and their four-year-old daughter resided in a portion of the property.[10]

On May 24, 1995, the petitioner executed an Affidavit of adverse claim over the property covered by TCT No. 14793, alleging that she had an interest over the same as one of Andrew’s heirs, and that the latter’s estate was pending settlement in Sp. Proc. No. 10436 in the RTC of Pasig, Branch 151. The affidavit was annotated at the dorsal portion of TCT No. 14793 on January 25, 1995.[11]

The petitioner, thereafter, filed a complaint against Teodora and the Navarro Spouses for the annulment of the deed of conditional sale with the RTC of Quezon City, docketed as Civil Case No. Q-95-23351. However, Teodora and the Navarro Spouses failed to appear at the pre-trial conference. The court issued an order, on motion of the petitioner, declaring the Navarro Spouses and Teodora as in default. The petitioner adduced evidence ex-parte. On August 26, 1997, the RTC rendered judgment in favor of petitioner, the decretal portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
    1.       Declaring the Deed of Conditional Sale executed by and between defendants Teodora R. David and Spouses Rod and Cynthia Navarro as null and void;

    2.       Ordering defendant Teodora R. David to pay the plaintiff the amount of P75,000.00 as attorney’s fees;

    3.       Defendant Teodora R. David to pay the costs of suit.
SO ORDERED.[12]
The trial court ruled that the deed of conditional sale was null and void because (a) the petition did not conform to it; and (b) it was not approved by the probate court.[13] Teodora and the Navarro Spouses appealed the decision to the Court of Appeals, docketed as CA-G.R. CV No. 59872.[14]

While the appeal was pending, the petitioner filed on May 7, 1998, a Complaint for Unlawful Detainer against the Navarro Spouses with the Metropolitan Trial Court of Quezon City, Branch 36, docketed as Civil Case No. 20064. The petitioner alleged, inter alia, that the Navarro Spouses were in possession of the property and refused to pay any rentals despite demands therefor.  She prayed that the Navarro Spouses be evicted from the property, and be ordered to pay rentals in the amount of P50,000.00.[15]

In the meantime, the RTC rendered a Decision on July 6, 1998 in Sp. Proc. No. 10436, appointing the petitioner as administratrix of her son’s estate.  The decretal portion of the said decision reads:
WHEREFORE, finding the petition to be well-taken and meritorious, this Court hereby appoints Rosita S. David administratrix of the estate of the deceased Andrew S. David and upon her filing a bond in the amount of P100,000.00 and upon taking her oath of office, let letters of administration be issued in her favor.

SO ORDERED.[16]
Applying the Rules on Summary Procedure, the MTC rendered judgment on November 16, 1998, in Civil Case No. 20064 in favor of the petitioner, ordering the Navarro Spouses to vacate the property.  The decretal portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, as follows: 
    1.       Ordering the defendants and all persons claiming right under them to vacate the premises subject matter of this case located at E. Rodriquez, Sr. Avenue, Quezon City, and surrender possession thereof to the plaintiff;

    2.       Ordering the defendants to pay the sum of P50,000.00 a month, representing the reasonable compensation for the use and occupancy of the premises in question starting from the date the defendant took possession and occupied the property subject matter of this case and every month thereafter until the defendants and all persons claiming right under them shall have actually vacated the premises in question and surrendered possession thereof to the plaintiff;

    3.       Ordering the defendants to pay the sum of P50,000.00 as and for, attorney’s fees; and

    4.       Ordering the defendants to pay the costs of suit. 
SO ORDERED.[17]
The Navarro Spouses received a copy of the decision of the lower court on December 4, 1998 and filed a Notice of Appeal on December 9, 1998. The petitioner filed a motion to dismiss, which the court denied. On December 9, 1998, the petitioner filed with the MTC in Civil Case No. 20064, a Motion for the Issuance of a Writ of Execution pending appeal, on her claim that the Navarro Spouses had failed to post a supersedeas bond in the amount of P2,250,000.00.  The lower court issued an order giving the Navarro Spouses five days to file a supersedeas bond in the amount of P2,250,000.00 to stay the execution of the judgment. Upon the Navarro Spouses’ failure to post the bond, the lower court granted the petitioners’ motion and issued the writ of execution prayed for and ordered the eviction of the Navarro Spouses.[18]

On February 8, 1999, the Navarro Spouses filed a Petition for Certiorari with the RTC, docketed as Civil Case No. 36725 with a prayer for a temporary restraining order or writ of preliminary injunction, for the nullification of the writ of execution pending appeal issued by the MTC. They claimed that despite the perfection of their appeal with the RTC from the decision of the MTC, the latter nonetheless issued a writ of execution pending appeal.  The Navarro Spouses prayed as follows:
WHEREFORE, premises considered, petitioners respectfully pray that, upon filing, a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction be issued enjoining the respondent Deputy Sheriff of the MTC, Branch 36 from implementing the Writ of Execution dated January 20, 1999, and all persons acting under said public respondent and said Writ of Execution be QUASHED, the same having been based on a void judgment.

Petitioners further pray that public respondent judge, pursuant to his Order granting the perfected appeal, be directed to forward the records of Civil Case No. 20064 to this Honorable Court with dispatch to enable this Honorable Court to resolve the issues raised herein involving the grave abuse of discretion and/or in excess or without jurisdiction since the respondent judge has lost his jurisdiction to act on any matter therewith.

Petitioners further pray that upon elevation of the records of Civil Case No. 20064 to this Honorable Court that the same be consolidated with the perfected appeal for purposes of consolidating the same.[19]
The RTC did not issue a temporary restraining order or a writ of preliminary injunction.

On February 9, 1999, the petitioner filed a Motion to Dismiss the Appeal in CA-G.R. CV No. 59872 on the ground that the respondents’ Brief, as appellants, was defective, in that –
    4.       The “Statement of Facts” contained in pages 2 to 6 of the herein defendants-appellants-spouses’ appellants’ brief violate this provision. It does not state what are “the facts admitted by both parties and of those in controversy.” It also does not state or cite the proof or evidence to support these alleged “facts.” It does not make any page references to the record. It does not cite a single transcript of stenographic notes, pleading (to prove admissions, if any) or documentary evidence.[20]
In the meantime, at 11:30 a.m. on February 11, 1999, Atty. Ricardo J.M. Rivera, the petitioner’s counsel, proceeded to the property to implement the writ of execution issued by the MTC in Civil Case No. 20064.  He was with Deputy Sheriff Cenon L. Amoranto and some policemen. At first, the Navarro Spouses were adamant and refused to give up the possession of the property. They later relented but appealed to Atty. Rivera to allow their three unserviceable cars to remain in the garage.  The lawyer agreed. The sheriff turned over the possession of the property to the petitioner, through counsel, who issued a receipt of possession for and in behalf of the petitioner.[21] The Spouses Vibar and Nilo Nase, the care-takers, pleaded that they be given a few days to vacate the property. Atty. Rivera saw the seven-year-old daughter of the Vibar couple, Maricris, crying, and pitied them. He agreed to let them stay in the property for a few more days.[22] Atty. Rivera engaged the services of security guards Larry Ordines, Arsenio Rufano and Dante Vargas of the GBF Security and Investigation Agency, with specific orders not to allow any repair works in the property by any employee of the Navarro Spouses.[23] The petitioner, through counsel, had the entrance to the property locked.

Unknown to the petitioner, the Navarro Spouses filed with the Court of Appeals in CA-G.R. CV No. 59872 an Urgent Motion for the Issuance of a Temporary Restraining Order praying that the court enjoin the MTC from implementing the writ of execution it issued in Civil Case No. 20064. The petitory portion of the motion reads:
WHEREFORE, PREMISES CONSIDERED, appellants ROD and CYNTHIA NAVARRO, respectfully pray:   
    1.       That, upon filing, a Temporary Restraining Order (TRO) be issued against the appellee, restraining her and all persons acting for her behalf such as the Deputy Sheriff of the Metropolitan Trial Court of Quezon City, Branch 36, from implementing the Writ of Execution issued by the Metropolitan Trial Court of Quezon City, Branch 36, covering the same property subject matter of the instant appeal;

    2.       That said Temporary Restraining Order ripen into a Writ of Preliminary Injunction upon proper hearing and/or submission of memoranda.
Appellants further pray for such relief and remedy as this Honorable Court may deem just and equitable under the premises.[24]
The Navarro Spouses averred that the petitioner’s complaint in Civil Case No. 20064 was premature because the decision of the RTC in Civil Case No. 23351, annulling the deed of conditional sale, had already been appealed to the Court of Appeals; hence, it had not yet become final and executory.  Until then, they had the right to stay in the property. However, the Navarro Spouses did not, in the said motion, mention the filing of their petition for certiorari with the RTC in Civil Case No. 36725 and the dismissal thereof by the said court.[25]

The next day, February 12, 1999, the RTC issued an Order in Civil Case No. 36725, dismissing the Navarro Spouses’ petition for certiorari for failing to comply with the second paragraph of Section 1 of Rule 65 of the Rules of Court, as amended.  At 11:45 a.m. later that day, the Navarro Spouses filed an Urgent Ex-parte Motion to withdraw their petition on the claim that it should have been filed with the Court of Appeals and not with the RTC.[26] The Navarro Spouses, through counsel, were served on the said date with a copy of the order of the lower court dismissing their petition.[27] On the same day, the trial court issued an order merely noting the respondent’s motion to withdraw the petition.[28]

On February 16, 1999, the Court of Appeals issued a Resolution in CA-G.R. CV No. 59872, granting the Navarro Spouses’ motion for a temporary restraining order, enjoining the sheriff from implementing the writ of execution issued by the MTC in Civil Case No. 20064 and setting the hearing on the motion for a writ of preliminary injunction on March 9, 1999 at 10:30 a.m.[29]

On February 17, 1999, the petitioner filed a Manifestation and Omnibus Motion to lift the temporary restraining order and for contempt in CA-G.R. CV No. 59872 on the following grounds: (a) that the writ of execution issued by the MTC had already been implemented on or before the Navarro Spouses filed their motion with the Court of Appeals for a temporary restraining order or writ of preliminary injunction; (b) that the  Navarro Spouses were guilty of forum shopping as the relief prayed for in their motion and the grounds invoked therein were the same as those alleged in their petition for certiorari and for injunctive relief before the RTC in Civil Case No. 36725 which had already been dismissed by the said court.[30]

On March 15, 1999, Cynthia Arellano-Navarro, Nilo Nase, the Spouses Vibar and their daughter Maricris, executed affidavits charging the petitioner, her counsel, security guards Larry Ordines, Arsenio Rufano, and Dante Vargas, with robbery, grave coercion and serious illegal detention.[31] On the same day, police operatives arrested the security guards and brought them to the police precinct for investigation.[32] The policemen turned over the possession of the property to the Navarro Spouses. The Investigating Prosecutor thereafter found probable cause for serious illegal detention against Ordines and Rufano and filed an Information for serious illegal detention against the said security guards docketed as Criminal Case No. 82215.[33] The accused security guards appealed the resolution to the Secretary of Justice.

On March 22, 1999, the petitioner filed a Manifestation with the Court of Appeals in CA-G.R. CV No. 59872, alleging that on March 15, 1999, she was ousted of the possession of the property by policemen.[34] On May 14, 1999, the Secretary of Justice ordered the City Prosecutor of Quezon City to withdraw the Information in Criminal Case No. 82215.[35] The Secretary of Justice ruled that the defendants were illegally detained by the accused and that the defendants’ continued stay in the property was upon the former’s request.[36]

On March 15, 2000, the Court of Appeals issued a Resolution in CA-G.R. CV No. 59872, denying the petitioner’s motion to dismiss appeal and to hold the Navarro Spouses in contempt.  It granted the respondents’ motion for a preliminary injunction on a bond in the amount of P500,000.00 so as not to render the decision of the court in the said case moot and academic.  The CA, likewise, stated that since the parties had already filed their respective Briefs, the case was ready for adjudication. Consequently, the case was re-raffled for study, recommendation and report.[37]

Later, on June 27, 2000, the RTC of Quezon City rendered its Decision in Civil Case No. 36859 setting aside the decision of the MTC in Civil Case No. 20064 ejecting the Navarro Spouses without prejudice to the refiling of the petitioner’s complaint after the decision of the RTC in Civil Case No. 23351 shall have become final and executory.[38] The petitioner filed a petition for review of the decision to the Court of Appeals docketed as CA-G.R. SP No. 64666.

On August 25, 2000, the Court of Appeals issued a Resolution, this time, in CA-G.R. CV No. 59872, denying the petitioner’s motion for reconsideration of the March 15, 2000 Resolution of the appellate court.[39]

In the meantime, Rod Navarro died on April 9, 2003 and was survived by his heirs.[40]

The petitioner assails the resolution of the CA contending that:
I

THE APPEAL SHOULD HAVE BEEN DISMISSED ON THE GROUND OF FORUM SHOPPING AND/OR FAILURE TO COMPLY WITH SECTION 1, RULE 50 OF THE RULES OF COURT.

II

THE PRELIMINARY INJUNCTION WAS POINTLESS AS THE ACT SOUGHT TO BE ENJOINED HAD ALREADY BEEN ACCOMPLISHED.[41]
The petitioner asserts that the respondents filed their motion for a temporary restraining order and writ of preliminary injunction in the CA to enjoin the enforcement of the writ of execution pending appeal issued by the MTC in Civil Case No. 20064, only after the RTC dismissed their petition for certiorari and prohibition with injunctive relief in Civil Case No. 36725. As a necessary consequence, the private respondents’ plea for injunctive relief was thwarted. For failing to secure injunctive relief in Civil Case No. 36725, the respondents, by filing their urgent motion, sought the same injunctive relief from the CA. They were thus guilty of forum shopping, which should have impelled the CA to deny the said motion. The petitioner contends that by the time the CA granted the motion and issued its temporary restraining order to enjoin the enforcement and implementation of the writ of execution issued by the MTC in Civil Case No. 20064, the said writ had already been implemented. The Sheriff had already placed her in possession of the property as of February 11, 1998. Furthermore, the petitioner was ejected by police officers from the subject property on the basis of the order, even before the Navarro Spouses’ ownership over the property had been established by clear and convincing evidence.  Thus, the temporary restraining order issued by the CA partook the nature of a writ of preliminary mandatory injunction. Finally, the petitioner asserts that the CA erred in not dismissing the appeal of the respondents for their failure to comply with Section 1, Rule 50 of the Rules of Court.

The respondents, for their part, contend that they are not guilty of forum shopping. Before they filed their urgent motion in the CA, the RTC had already dismissed their petition in Civil Case No. 36725. The CA issued the assailed resolutions in the exercise of its appellate jurisdiction, in view of the respondent’s need for injunctive relief to prevent the decision in CA-G.R. CV No. 59872 from being rendered moot and academic.  The reversal of the MTC decision in Civil Case No. 20064 by the RTC in Civil Case No. 36859, nevertheless mooted the petition. According to the private respondents, the reversal of the MTC decision in Civil Case No. 20064 carried with it the nullification of the writ of execution pending appeal issued by the said court. The decision of the RTC is now the subject of a petition for review in CA-G.R. SP No. 64666.

THE RULING OF THE COURT

    The petition is dismissed.

The rule on forum shopping applies where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other.[42] Res judicata applies only where judgment on the merits is finally rendered on the first.  In this case, the RTC dismissed outright the private respondents’ petition for certiorari in Civil Case No. 36725 for failing to append certified copies of the assailed orders of the MTC in Civil Case CV No. 20064. Hence, there was as yet no judgment of the case on the merits.  Moreover, the respondents did not file a second petition or complaint, but merely an urgent motion with the CA in CA-G.R. CV No. 59872 for a temporary restraining order to enjoin the enforcement of the writ of execution issued by the MTC in Civil Case No. 20064.

However, we agree with the petitioners that the CA imprudently issued a temporary restraining order on February 16, 1999 and a writ of preliminary injunction on March 15, 2000 to enjoin the enforcement of the writ of execution in Civil Case No. 20064.

First.  By then, the writ of execution had already been enforced and the private respondents were evicted from the property, as the petitioners were placed in possession of the property on February 11, 1999.  Case law has it that a writ of preliminary injunction will not issue if the act sought to be enjoined is a fait accompli.

Second.  The MTC issued a writ of execution ordering the eviction of the private respondents for their refusal to file a supersedeas bond on appeal to stay the execution. The MTC was, thus, mandated to issue a writ of execution, conformably to Section 19, Rule 70 of the Rules of Court, as amended. By issuing a temporary restraining order and writ of preliminary injunction enjoining the eviction of the private respondents, the CA allowed the former to stay in the property despite the mandatory provision of Section 19 of Rule 70[43] of the Rules of Court, as amended.

Third.  The remedy of the private respondents to nullify the order of the MTC in Civil Case No. 20064 was via a petition for certiorari in the RTC under Section 4, Rule 65 of the Rules of Court, as amended.  The private respondents did file their petition for certiorari in Civil Case No. 36725, but the same was, however, dismissed by the RTC. It behooved the private respondents to refile the petition in the RTC with a plea for a temporary restraining order or writ of preliminary injunction. They failed to do so.  Instead, they filed an Urgent Motion in the Court of Appeals in CA-G.R. CV No. 59872.  The appellate court, in granting the private respondents’ plea for a writ of preliminary injunction, in effect, granted the same injunctive relief which the latter failed to secure from the RTC due to their procedural lapse.

We are impelled, however, to dismiss the petition on the sole ground that in its June 27, 2000 Decision in Civil Case No. 36859, the RTC reversed the decision of the MTC in Civil Case No. 20064 and ordered the dismissal of the complaint on the ground that it was prematurely filed.  The writ of execution issued by the MTC had, thus, become functus officio.

It bears stressing that under Section 21 of Rule 70 of the Rules of Court, the decision of the RTC on appeal shall be immediately executory without prejudice to a further appeal from the said decision:
Sec. 21. Immediate execution on appeal to the Court of Appeals or Supreme Court.—The judgment of the Regional Trial Court shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. (10a)[44]
Thus, there is no longer a need for this Court to nullify the writ of preliminary injunction issued by the CA which ordered the respondents to vacate the property and restore possession thereof to the petitioners.

Likewise moot and academic is the petitioner’s contention that the CA erred in denying her motion to dismiss the appeal of the private respondents for their failure to comply with Section 1(b) of Rule 50 in relation to Section 13(d), Rule 44[45] of the Rules of Court. The petitioner had already filed her Brief, and the appellate court deemed the case submitted for decision.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.  The assailed Resolutions of the Court of Appeals are AFFIRMED.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.



[1] Penned by Justice Presbitero J. Velasco, Jr., now the Court Administrator, with Associate Justices Bernardo Ll. Salas and Salome A. Montoya, concurring.

[2] Rollo, p. 27.

[3] Id. at 30.

[4] Id. at 31.

[5] Id. at 30-33.

[6] Id.

[7] Id.

[8] Id. at 215.

[9] Id. at 30-33.

[10] Id. at 96.

[11] Id. at 213.

[12] Id. at 29.

[13] Id.

[14] Rosita David, plaintiff-appellee, v. Teodora David and Spouses Rod and Cynthia Navarro, defendants-appellants.

[15] Rollo, p. 34.

[16] Id. at 33.

[17] Id. at 37.

[18] Id. at 44-47.

[19] Id. at 46.

[20] Id. at 78.

[21] Id. at 38.

[22] Id. at 39-40.

[23] Id. at 115-120.

[24] Id. at 53-54.

[25] Id.

[26] Id.

[27] id., supra.

[28] Id. at. 141.

[29] Id. at 79-81.

[30] Id. at 216-219.

[31] Id. at 106-112.

[32] Id. at 113-114.

[33] Id. at 156.

[34] Id. at 101.

[35] Id. at 156-159.

[36] Id. at 159.

[37] Id. at 24-25.

[38] Id. at 231-235.

[39] Id. at 26.

[40] (1) Rod Navarro, Jr.; (2) Maria Irene A. Navarro; (3) Josephine Anthony A. Arilla; (4) Cynthia A. Navarro.

[41] Id. at 10.

[42] Cruz v. Court of Appeals, 309 SCRA 714 (1999).

[43] Sec. 19. Immediate execution of judgment; how to stay same. –If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time under the contract, if any, as determined by the judgment of the Municipal Trial Court.  . . .

[44] Supra.

[45] (d) Under the heading “Statement of Facts,” a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record;



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