In civil case No. 30232 of the Municipal Court of Manila, judgment was  rendered ordering defendants Helen Smith and Sven Smith to pay plaintiff  T. Peyer the total sum of P216 (representing  rentals and  water charges  unpaid  by the  lessee  Smith),  plus interest and costs.  Defendants appealed to the Court of First Instance  of Manila (civil case No. 23688) and on August 7, 1954, were notified to file their answer.   They filed their answer with the court on August 17, 1954, but  did not  serve a copy thereof on  the plaintiff.  On February  24. 1955, plaintiff moved, with notice to the defendants, for the dismissal of the appeal because of defendants' failure to comply with section 7, Rule 40 of the  Rules of Court; and finding that  defendants did not serve  copy of their answer  upon plaintiff within the prescribed period, the then Presiding Judge Vicente Santiago ordered on March 8, 1955 the dismissal of the appeal.

More than two months later, or on May 17, 1955, plaintiff filed with the court a petition alleging that the order dismissing  defendants'  appeal  had  become  final  and executory, and praying that the records be remanded to the court of origin for the execution of the judgment.  Defendants opposed the motion, claiming that their appeal to the Court  of  First Instance had vacated the judgment of the municipal court and deprived  it of all jurisdiction over the case.   Over  defendants'  objections, however,  presiding judge  Ruperto Kapunan, Jr. on May 30,  1955 ordered the remand of the records to the municipal court for execution. Charging that Judge Kapunan's order was issued in excess of jurisdiction and with grave abuse of discretion, defendants brought this petition for certiorari before this court,, asking that the  said  order be  annulled.

After due consideration of the petition, we are  of the opinion and so hold that the respondent Judge neither exceeded his jurisdiction nor gravely abused his discretion in issuing his  order on May 30, 1955.

Petitioners complain about Judge Kapunan's order of remand  of May 30, 1955, but not against the previous order of Judge  Vicente Santiago  dismissing  defendants'  appeal on  the ground that they  did not  serve upon plaintiff  a copy  of  their answer within  the  reglementary  period. While  this dismissal was clearly erroneous (since the proper procedure in case of failure  to answer is to declare the appealing defendant in default, hear the evidence for.the plaintiff,  and  render judgment  in accordance therewith), unfortunately, it  has become irrevocable, since defendants did not appeal from Judge Santiago's order of dismissal, nor did they seek seasonable  relief therefrom under Rule 38.  The order dismissing their appeal having thus become final and unreviewable, the respondent Judge Ruperto Kapunan, Jr., who succeeded Judge Santiago, had no jurisdiction left over the case  but to remand the same  to the inferior court  for execution, which he did in his order of May 30, 1955, now sought to be annulled.

It  is  contended that  a perfected appeal  operates to vacate the judgment of the inferior court (Rule 40, section 9); that such judgment can be revived only by withdrawal of the appeal, and only the appellant can ask for such withdrawal.^[1]  But as petitioners  failed to  appeal  from the order of dismissal, or to  seasonably ask for relief there-from under Rule 38, their silence and inaction is equivalent to an implied withdrawal  of their appeal and  an assent to the  revival of the  judgment  of  the municipal court. Their assent is  made more evident by the fact that,  even now, petitioners do not question the validity of the order dismissing their  appeal,  but  only complain  against the order of remand for execution.

 The writ of preliminary injunction issued in this case is hereby  ordered dissolved, and  the petition for certiorari is dismissed, with costs  against  petitioners.  So  ordered.

Parás, C. J., Padilla, Montemayor, Reyes, A., Jugo,  Bautista Angela, Labrador,  Concepcion, and Endencia,. .JJ., concur.