EMMANUEL M. RELAMPAGOS vs. ROSITA C. CUMBA, ET AL.

Problem No. 1. Facts:In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba were candidates for the position of Mayor in the municipality of Magallanes, Agusan del Norte. The latter was proclaimed the winning candidate, with a margin of only twenty-two votes over the former.

Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court (RTC) of Agusan del Norte, which was assigned to Branch 2 thereof in Butuan City.

On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with a margin of six votes over the private respondent and rendered judgement in favor of the petitioner as follows:

WHEREFORE, in view of the foregoing results, the court hereby declares the protestant as having won the mayoralty election and as duly elected Mayor of the Municipality of Magallanes, Agusan del Norte in the local election held on May 11, 1992, the protestant having obtained six (6) votes more than that of the protestee's votes.

Copies of the decision were sent to and received by the petitioner and the private respondent on 1 July 1994.

On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of appeal and paying the appellate docket fees.

On 8 July 1994, the trial court gave due course to the appeal.

On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal, which the private respondent opposed on 22 July 1994.

QUESTION: Under the circumstances, is the motion of execution pending appeal proper?

ANSWER: Since both the petitioner and the private respondent received copies of the decision on 1 July 1994, an appeal therefrom may be filed within five days ¹⁶ from 1 July 1994, or on or before 6 July 1994. Any motion for execution pending appeal must be filed before the period for the perfection of the appeal. Pursuant to Section 23 of the Interim Rules Implementing B.P. Blg. 129, which is deemed to have supplementary effect to the COMELEC Rules of Procedures pursuant to Rule 43 of the latter, an appeal would be deemed perfected on the last day for any of the parties to appeal, ¹⁷ or on 6 July 1994. On 4 July 1994, the private respondent filed her notice of appeal and paid the appeal fee. On 8 July 1994, the trial court gave due course to the appeal and ordered the elevation of the records of the case to the COMELEC. Upon the perfection of the appeal, the trial court was divested of its jurisdiction over the case. ¹⁸ Since the motion for execution pending appeal was filed only on 12 July 1994, or after the perfection of the appeal, the trial court could no longer validly act thereon. It could have been otherwise if the motion was filed before the perfection of the appeal. G.R. No. 118861 April 27, 1995
EMMANUEL M. RELAMPAGOS vs. ROSITA C. CUMBA, ET AL.