G.R. No. and Date: G.R. Nos. L-11379-11380, January 3, 1916

FACTS:
On June 25, 1915, separate complaints were filed in the Court of First Instance of Manila against Yu Ten and Jose Fernandez (alias Yu Chip), alleging they were Chinese laborers found within the Philippine Islands on or about June 22, 1915, without the certificate of residence required by Act No. 702 . Warrants were issued, and the defendants appeared in court and posted bail. The cases proceeded to trial, and on November 1, 1915, the court, noting the allegations were uncontested and the defendants’ appearance indicated they were Chinese persons required to have the certificate, ordered each defendant remanded to the Insular Collector of Customs for deportation.

On November 10, 1915, the defendants filed a notice of appeal to the Supreme Court. At the foot of the notice, their attorney noted that a copy was “sent” to the Attorney-General. The appeal was received by the Supreme Court on November 11, 1915. The Attorney-General filed a motion to dismiss the appeal on November 22, 1915, arguing that the appeal was not properly perfected because the appellants failed to serve a copy of the notice of appeal upon the adverse party or his attorney as required by Section 45 of General Orders No. 58 (the procedural rules for criminal cases). The appellants opposed, arguing that deportation proceedings under Act No. 702 were civil in nature and thus governed by the Code of Civil Procedure, which did not require such service.

ISSUE:
Whether or not the appeal filed by the defendants-appellants was perfected and valid, considering the alleged failure to serve a copy of the notice of appeal upon the adverse party or his attorney.

RULING:
The Supreme Court DISMISSED the appeal. The Court held that while deportation proceedings under Act No. 702 are civil in nature (as established in U.S. vs. Tan Yak), the procedure prescribed for such proceedings is criminal in form. Consequently, the rules for perfecting an appeal in criminal cases apply. Section 45 of General Orders No. 58 explicitly requires that an appeal be taken by filing a notice with the court and “by serving a copy thereof upon the adverse party or his attorney.”

The Court found that the appellants did not comply with this mandatory requirement. The record did not show, and the appellants did not assert through affidavit or otherwise, that they had “served” a copy of the notice on the Attorney-General. The mere act of “sending” a copy, as noted on the notice, was insufficient to constitute the “service” required by law. The appellants’ subsequent argument that the proceeding was civil and service was unnecessary was a change in theory and did not cure the procedural defect.

The right to appeal is statutory, and an appellant must perfect the appeal in strict compliance with the prescribed procedure. The failure to serve the notice of appeal as required is a jurisdictional defect that warrants dismissal. Therefore, the Attorney-General’s motion to dismiss was granted, the appeals were dismissed, and the records were ordered returned to the lower court for execution of the deportation order. Costs were imposed on the appellants.