post judgment remedies civ pro
TRANSCRIPT
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
CIVIL PROCEDURE NOTES ON POST JUDGMENT
REMEDIES ACADEMIC YEAR 2011-2012
POST JUDGMENT REMEDIES
The remedies against a judgment may refer to those
remedies BEFORE a judgment becomes final and
executor and AFTER the same becomes executor.
(1) BEFORE a judgment becomes final and
executor, the aggrieved or losing party may
avail of the following:
(a) Motion for Reconsideration (Rule 37)
(b) Motion for New Trial (Rule 37)
(c) Appeal
A judgment becomes final and executor upon the
expiration of the period to appeal therefrom and no
appeal has been perfected (Sec.1, Rule 39, Rules of Court).
(2) AFTER the judgment becomes executor, the
losing party may avail of the following:
(a) Petition for Relief (Rule 38)
(b) Action to annul a judgment (Rule 47)
(c) Certiorari (Rule 65)
(d) Collateral attack of a judgment
RULE 37 NEW TRIAL OR MOTION FOR
RECONSIDERATION
MOTION for NEW TRIAL
Motion for NEW TRIAL of a judgment is a prohibited
motion in a case that falls under summary procedure.
Affidavit of merit must be one showing the facts (not
mere conclusions or opinions) constituting the valid
cause of action or defense which the movant may prove
in case a new trial is granted.
Gross negligence of the counsel is not a ground for new
trial.
MOTION for RECONSIDERATION
The MR under Rule 37 is one that is directed against a
judgment or a final order. It is not the MR of an
interlocutory order which for instance, precedes a
petition for certiorari.
MR of a judgment is a prohibited motion in a case that
falls under summary procedure.
Motion for New Trial
Motion for Reconsideration
Grounds (a) Fraud, Accident, Mistake, Excusable Negligence (FAME)
(b) Newly Discovered Evidence (NDE)
(Sec.1, Rule 37, Rules of Court)
(a) Excessive Damages
(b) Insufficient Evidence
(c) Decision is contrary to Law.
(Sec.1, Rule 37, Rules of Court)
When Within the period for taking an appeal (Sec.1, Rule 37, Rules of Court).
Extension
No motion for extension of time to file a motion for new trial or reconsideration shall be allowed (Sec.2, Rule 40, Sec.3, Rule 41, Rules of Court).
Effect to appeals
The filing of a timely motion for new trial or reconsideration interrupts the period to appeal (Sec.2, Rule 40, Sec.3, Rule 41, Rules of Court).
Contents
The motion shall be: (a) Writing (b) Stating the grounds (c) Send Notice to the adverse party. (Sec.2, Rule 37, Rules of Court)
(d) Supported by affidavits of
(1) Merits (FAME)
(2) The Witnesses (NDE)
(e) Point out specifically the findings which are not supported by the evidence.
(f) Provisions
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
(Sec.2, Rule 37, Rules of Court)
of law alleged to be contrary to such findings or conclusions.
(Sec.2, Rule 37, Rules of Court)
Action If granted:
Set aside the judgment or final order and grant a new trial (Trial de Novo). (Sec.3, Rule 37, Rules of Court)
Recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (Sec.6, Rule 37, Rules of Court)
Amend such judgment or final order accordingly. (Sec.3, Rule 37, Rules of Court)
Resolution
Resolved within thirty days from the time it is submitted for resolution (Sec.4, Rule 37, Rules of Court).
Partial If the Grounds affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (Sec.7, Rule 37, Rules of Court)
Second motion
Allowed if the ground was not existing when the first motion was filed. (Sec.5, Rule 37, Rules of Court)
Prohibited (Sec.5, Rule 37, Rules of Court)
Order of Denial
Not appealable, the remedy being an appeal from the judgment or final order (Sec.9, Rule 37, Rules of Court).
RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS
It is a legal remedy whereby a party seeks to set aside a
judgment rendered against him by a court whenever he
was unjustly deprived of a hearing or was prevented
from taking an appeal because of FRAUD, ACCIDENT,
MISTAKE, or EXCUSABLE NEGLIGENCE.
A petition for relief from judgment is an equitable
remedy that is allowed only in exceptional cases when
there is no other available or adequate remedy.
GROUNDS:
(a) When a judgment or final order is entered into,
or any other proceeding is thereafter taken against
the petitioner in any court through FRAUD,
ACCIDENT, MISTAKE, or EXCUSABLE
NEGLIGENCE (Sec.1, Rule 38, Rules of Court).
(b) When the petitioner has been prevented from
taking an appeal by FRAUD, ACCIDENT,
MISTAKE, or EXCUSABLE NEGLIGENCE
(Sec.2, Rule 38, Rules of Court).
PRAYER:
(a) In letter (a) the petition shall be filed in such
court and in the same case. The petition shall
pray that the judgment, order or proceeding be
SET ASIDE.
(b) In letter (b) the petition shall likewise be filed in
such court and in the same case but the prayer
this time is that the appeal be given DUE
COURSE.
RULE 37 as distinguished from RULE 38
NEW TRIAL /
RECONSIDERATI
ON
RELIEF FROM
JUDGMENT
When Must be filed within Judgment is final
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
the appeal period
Judgment not yet
Final.
within 60 days after
petitioner learns of
the judgment to be
set aside and within
6months after such
judgment is entered.
Right/Pri
nciple
A Legal Right More on Equity
Grounds FAME + NDE FAME only
Relief
from
Judgment on Final
Order
Judgment on Final
order / order on
other proceeding.
RULE 38 as distinguished from RULE 47
See Table in RULE 47, Infra
APPEALS
Appeal, defined: a legal proceeding by which a case is
brought before a higher court for review of the decision
of a lower court.
Rule 40 APPEALS FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL COURTS /
Rule 41 APPEALS FROM THE REGIONAL TRIAL
COURTS.
WHEN:
An appeal may be taken within fifteen (15) days after
notice to the appellant of the judgment or final order
appealed from (Sec. 2, Rule 40, Rules of Court).
*The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration shall be allowed. (n) (Sec.2, Rule 40, and
Sec.3, Rule 41, Rules of Court).
Where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within
thirty (30) days after notice of the judgment or final
order (Sec. 2, Rule 40, and Sec.3, Rule 41, Rules of Court).
However, on appeal in habeas corpus cases shall be
taken within forty-eight (48) hours from notice of the
judgment or final order appealed from (Sec.3, Rule 41,
Rules of Court).
HOW:
(a) Filing a notice of appeal with the court that
rendered the judgment or final order appealed
from and by
(b) Serving a copy of the notice to the adverse party.
(c) Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from the full amount of the appellate
court docket and other lawful fees. Proof of
payment thereof shall be transmitted to the
appellate court together with the original record
or the record on appeal, as the case may be.
(Sec.5, Rule 40, and Sec.4, Rule 41, Rules of Court)
Add’l requirements for Rule 40.
(d) Within fifteen (15) days from the perfection of
the appeal, the clerk of court or the branch clerk
of court of the lower court shall transmit the
original record or the record on appeal, together
with the transcripts and exhibits, which he shall
certify as complete, to the proper Regional Trial
Court. A copy of his letter of transmittal of the
records to the appellate court shall be furnished
the parties (Sec.6, Rule 40, Rules of Court).
(e) Upon receipt of the complete record on appeal,
the clerk of court of the Regional Trial Court
shall notify the parties of the fact (Sec.7(a),
Rule40, Rules of Court).
(f) Within 15 days from such notice, it shall be the
duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to
the lower court, a copy of which shall be
furnished by him to the adverse party. Within
fifteen (15) days from receipt of the appellant’s
memorandum, the appellee may file his
memorandum. Failure of the appellant to file a
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
memorandum shall be a ground for dismissal of
the appeal (Sec.7(b), Rule 40, Rules of Court).
(g) Upon the filing of the memorandum of the
appellee, or the expiration of the period to do so,
the case shall be considered submitted for
decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the
proceedings had in the court of origin and such
memoranda as are filed (Sec.7(c), Rule 40, Rules of
Court).
Add’l requirements for Rule 41.
(h) Within 30 days after perfection of all the
appeals, the clerk of court shall verify the
CORRECTNESS and COMPLETENESS of the
records and if incomplete, to take such measures
to complete such records, certify to the
correctness of the records, to transmit the same
to the appellate court, and to furnish the parties
with copies of his letter of transmittal of the
records to the appellate court (Sec.10, Rule 41,
Rules of Court).
(i) Upon receiving the original record on appeal
and the accompanying documents transmitted
by the lower court, as well as the proof of
payment of the docket fees, the clerk of court of
the Court of Appeals shall docket the case and
notify the parties (Sec.4, Rule44, Rules of Court).
(j) Within 45 days from receipt of the notice of the
clerk of court, the appellant shall file a brief a
brief with proof of service upon the appellee
(Sec.7, Rule 44, Rules of Court). Within 45 days
from the receipt of the appellant’s brief, the
appellee shall file his own brief with proof of
service to the appellant (Sec.8, Rule 44, Rules of
Court). Within 20 days from receipt of the
appellees brief, the appellant may file a reply
brief answering points in the appellee’s brief not
covered in his main brief (Sec.9, Rule 44, Rules of
Court).
*Note: Extension of time for the filing or briefs will
be allowed, except for GOOD and SUFFICIENT
CAUSE and only if the MOTION FOR EXTENSION
is filed BEFORE the EXPIRATION of the time
sought to be extended (Sec.12, Rule 44, Rules of
Court).
*In petitions for certiorari, prohibition, mandamus,
quo warranto and habeas corpus cases, briefs are not
filed. Instead the parties shall file their respective
memoranda within a non-extendible period of 30
days from receipt of the notice that all the pieces of
evidence are already attached to the record (Sec.10,
Rule 44, Rules of Court).
EXTENSION:
Rule 41
The period to file notice of appeal is NOT EXTENDIBLE.
The extension refers only to filing of briefs only if with:
(a) GOOD and
(b) SUFFICIENT CAUSE
(c) MOTION FOR EXTENSION
(d) BEFORE the EXPIRATION of the time sought to
be extended.
(Sec.12, Rule 44, Rules of Court)
Sec.12, Rule 44, Rules of Court
Sec. 12. Extension of time for filing briefs.—Extension of time for the filing
of briefs will not be allowed, except for good and sufficient cause, and
only if the motion for extension is filed before the expiration of the
time sought to be extended.
PERFECTION, LOSING of COURT’s JURISDICTION,
and CONTENTS:
Notice of appeal, is deemed perfected as to him upon
the filing of the notice of appeal in due time.
*Notice of appeal does not require the approval of the
court. The function of the notice is merely to notify the
trial court that the appellant was availing of the right of
appeal, and not to seek the court’s permission that he be
allowed to pose an appeal.
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
*In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to
appeal of the other parties. (Sec. 9, Rule 41, Rules of
Court).
Notice of appeal, the court loses jurisdiction over the case:
(a) upon the perfection of the appeals
(b) filed in due time and
(c) the expiration of the time to appeal of the other parties.
(Sec. 9, Rule 41, Rules of Court).
*Notice of appeal shall indicate:
a. the Parties to the appeal
b. specify the Judgment or final order or part thereof
appealed from,
c. specify the Court to which the appeal is being taken,
and
d. state the Material dates showing the timeliness of the
appeal.
Sec.3, Rule 40, and Sec.5, Rule 41, Rules of Court
Record on appeal, is deemed perfected as to him with
respect to the subject matter thereof upon the approval
of the record on appeal filed in due time.
*A record on appeal shall be required only in special
proceedings and in cases of multiple or separate appeals
(Sec. 2, Rule 40, Rules of Court).
*In appeals by record on appeal, the court loses
jurisdiction over the subject matter thereof upon the
approval of the records on appeal filed in due time and the
expiration of the time to appeal of the parties (Sec. 9, Rule
41, Rules of Court).
*In appeals by record on appeal, the court loses
jurisdiction over the subject matter:
(a) upon the approval of the records on appeal
(b) filed in due time and
(c) the expiration of the time to appeal of the parties (Sec. 9,
Rule 41, Rules of Court).
*Record on appeal; form and contents:
a. the Full names of all the Parties
b. the Judgment or final order from which the appeal is
taken.
c. in chronological order, Copies of such Pleadings,
petitions, motions, and all interlocutory orders related to
the appealed judgment.
d. data as will show that the appeal was perfected on
time.
e. ALL evidence, testimonial, documentary, etc. If an
Issue of Fact is raised on appeal.
f. if the whole testimonial and documentary evidence is
to be included, a Statement to that effect is sufficient
without mentioning the names of the witnesses.
g. Subject index if record on appeals exceeds 20 pages.
Sec.6, Rule 41, Rules of Court
MODES:
Rule 41
Sec.2, Rule 41, Rules of Court.
SEC. 2. Modes of appeal.—
a. Ordinary appeal.—The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such cases,
the record -on appeal shall be filed and served in like manner.
b. Petition for review.—The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its appellate
jurisdiction shall be by petition for review in accordance with Rule 42.
c. Appeal by certiorari.—In all cases where only questions of law are
raised or involved, the appeal shall be to the Supreme Court by
petition for review on certiorari in accordance with Rule 45. (n)
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
QUESTIONS TO BE RAISED:
The appellant may include in his assignment of errors
any QUESTION OF LAW or FACT that has been raised
in the court below and which is within the issues raised
by the parties (Sec.15, Rule 44, Rules of Court).
Sec.15, Rule 44, Rules of Court
Sec. 15. Questions that may be raised on appeal.-Whether or not the
appellant has filed a motion for new trial in the court below, he may
include in his assignment of errors any question of law or fact that has
been raised in the court below and which is within the issues framed by the
parties.
DISMISSAL:
Rule 40
Sec.8, Rule 40, Rules of Court
SEC. 8. Appeal from orders dismissing case without trial; lack of
jurisdiction.—If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case may be. In case of
affirmance and the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover,
shall try the case on the merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on appeal
shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without
prejudice to the admission of amended pleadings and additional
evidence in the interest of justice. (n) (SEC. 8., Rule 40, Rules of Court)
Lack of Jurisdiction
1. A case may be dismissed in the Municipal Trial
Court without a trial on the merits. This occurs
when a motion to dismiss is filed and granted in
accordance with Rule 16 of the Rules of Court,
the Regional Trial Court may affirm or reverse
it. If the order is affirmed, then it is a declaration
of the merits of the dismissal.
However, if the dismissal is made on the ground
of lack of jurisdiction over the subject matter,
and the Regional Trial Court affirms the
dismissal, the action of the latter court shall not
be confined to a mere affirmation of the
dismissal. Instead, the rule obligates the
Regional Trial Court to try the case on the merits
as if the case was originally filed with it.
2. The same rule prevails if the case was tried on
the merits in the lower court without
jurisdiction over the subject matter and was
subsequently dismissed on such ground. On the
appeal, the Regional Trial Court, if it has
original jurisdiction shall not dismiss the case,
but shall decide the case in the same manner as
dismissed by the lower court without trial on
the merits. The Regional Trial Court may allow
amendment of the pleadings and may receive
additional evidence in the interest of justice
(Sec.8, Rule 40, Rules of Court).
*When a case is dismissed from lack of jurisdiction, the
order of dismissal is one without prejudice because the
plaintiff may simply refile the complaint in the court
with the proper jurisdiction. By the terms of Sec.1 (g),
Rule 41 as amended, the order dismissing an action
without prejudice is not appealable. Sec.8, Rule 40, on
the other hand allows an appeal from an order of the
MTC dismissing a case for lack of jurisdiction. Sec.8,
Rule 40 hence, should be considered as an exception to
Sec.1, Rule 41, Rules of Court.
Rule 41
Sec.13, Rule 41, Rules of Court.
SEC. 13. Dismissal of appeal.—Prior to the transmittal of the original
record or the record on appeal to the appellate court, the trial court
may motu proprio or on motion dismiss the appeal for having been
taken out of time, or for non-payment of the docket and other lawful
fees within the reglementary period. (13a)
Non-payment of docket fees the court acquires no
jurisdiction over the subject matter of the case.
Appeal taken out of time.
Sec.2, Rule 50, Rules of Court
Sec. 2. Dismissal of improper appeal to the Court of Appeals.—An appeal
under Rule 41 taken from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed, issues purely
of law not being reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed. (n)
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed outright.
(3a)
Appeals to be dismissed:
Raising only questions of law
Erroneously Taken
APPEAL, SUBJECT, INTERRUPTION, and
PROHIBITION:
The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration of the judgment or final order (Sec.2,
Rule 40, and Sec.3, Rule 41, Rules of Court).
Sec.1, Rule 41, Rules of Court.
SECTION 1. Subject of appeal.—An appeal may be taken from a
judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion seeking
relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress,
or any other ground vitiating consent.
(f) An order of execution;
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and third-
party complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65. (n)
*Take note of the above cited explanation of Sec.1, Rule
41.
RESIDUAL JURISDICTION:
The concept of residual jurisdiction is available at a stage
in which a court is normally deemed to have LOST
JURISDICTION over the case or the subject matter
involved in the appeal. There is no residual jurisdiction
to speak of where no appeal or petition has ever been
filed (Fernandez vs. C.A. 458SCRA454).
Sec.2(a), Rule 39, Rules of Court
Sec. 2. Discretionary execution.—
(a) Execution of a judgment or final order pending appeal.— On
motion of the prevailing party with notice to the adverse party filed in
the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as the
case may be, at the time of the filing of such motion, said court may, in
its discretion, order execution of a judgment or final order even before
the expiration of the period to appeal.
Sec.9, Rule 41, Rules of Court
Xxx x
In either case, prior to the transmittal of the original record or the
record on appeal, the court may issue orders for the protection and
preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals
of indigent litigants, order execution pending appeal in accordance
with section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
SEC.8(a), Rule 42, Rules of Court
Xxx
However, before the Court of Appeals gives due course to the petition,
the Regional Trial Court may issue orders for the protection and
preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve corn-promises, permit appeals
of indigent litigants, order execution pending appeal in accordance
with section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41)
The term refers to the:
i. authority of as trial court to issue orders for the
protection and preservation of the rights of the
parties which do not involve any matter
litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order
execution pending appeal in accordance with
Sec.2, Rule 39, and
ii. allow withdrawal of the appeal provided these
are done prior to the transmittal of the original
record or the record on appeal even if the
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
appeals have already been perfected despite the
approval of the record on appeal (Sec.9, Rule 41,
Rules of Court) or
iii. in case of a petition for review under Rule 42
before the Court of Appeals gives due course to
the petition (Sec.8, Rule 42, Rules of Court).
Residual
Jurisdiction
Rule 41 Rule 42
When Before transmittal of
the original record
Before the court
gives due course.
SUBMITTED for DECISION:
Rule 40
The case shall be considered submitted for decision:
(a) Upon the filing of the memorandum of the
appellee, OR
(b) The expiration of the period to do so, the case
shall be considered submitted for decision.
The Regional Trial Court shall decide the case on the
basis of the entire record of the proceedings had in the
court of origin and such memoranda as are filed
(Sec.7(c), Rule 40, Rules of Court).
Rule 41
Sec.1(a), Rule 51, Rules of Court provides for the
submission of cases for decision under Rule 41.
In ordinary appeals:
(a) No Hearing on the merits
i. Filing of the LAST PLEADING, OR
ii. EXPIRATION of the period for its filing
(b) Hearing on the merits
i. Upon its TERMINATION, or
ii. Filing of the LAST PLEADING, or
iii. EXPIRATION of the period for its filing
Sec.1(a), Rule 51, Rules of Court
Sec. 1. When case deemed submitted for judgment.—A case shall be
deemed submitted for judgment:
A. In ordinary appeals.—
1) Where no hearing on the merits of the main case is held, upon the
filing of the last pleading, brief, or memorandum required by the Rules
or by the court itself, or the expiration of the period for its filing.
2) Where such a hearing is held, upon its termination or upon the filing
of the last pleading or memorandum as may be required or permitted to
be filed by the court, or the expiration of the period for its filing.
WITHDRAWAL OF APPEAL:
The Court may, upon its discretion allow withdrawal of
the appeal by the appellant before the transmittal of the
original record or record on appeal (Sec.9, Rule 41, Rules
of Court).
Sec.9, Rule 41, Rules of Court
Xxx x
In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal. (9a)
RULE 42 PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE COURT OF
APPEALS
APPLICATION:
Rule 42 applies to an appeal from the judgment or final
order of the Regional Trial Court to the Court of Appeals
in cases decided by the former in the exercise of its
appellate jurisdiction.
WHEN:
The petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be reviewed
or of the denial of petitioner’s motion for new trial or
reconsideration filed in due time after judgment (Sec.1,
Rule 42, Rules of Court).
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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
HOW:
A party desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of its
appellate jurisdiction may:
(a) file a VERIFIED petition for review with the
Court of Appeals,
(b) paying at the same time to the clerk of said court
the corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs, and
(c) furnishing the Regional Trial Court and the
adverse party with a copy of the petition.
(Sec.1, Rule 42, Rules of Court)
(d) The Court of Appeals may dismiss the petition if
it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration (Sec.4, Rule 42, Rules of
Court).
(e) If the Court of Appeals does not dismiss the case
it may require the respondent to file a comment
on the petition, not a motion to dismiss, within
ten (10) days from notice (Sec.4, Rule 42, Rules of
Court).
(f) If the Court of Appeals finds prima facie that the
lower court has committed an error of fact or
law that will warrant a reversal or modification
of the appealed decision, it may accordingly
give due course to the petition (Sec.6, Rule 42,
Rules of Court).
(g) If the petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within
a period of fifteen (15) days from notice. The
case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
court itself(Sec.9, Rule 42, Rules of Court).
EXTENSION:
The Court may grant an additional 15 days only within
which to file the petition for review:
(a) Upon proper motion and
(b) the payment of the full amount of the docket
and other lawful fees and the deposit for costs
(c) before the expiration of the reglementary period.
*No further extension shall be granted except for the
most compelling reason and in no case to exceed fifteen
(15) days. (n)
(Sec.1, Rule 42, Rules of Court)
PERFECTION, LOSING of COURT’s JURISDICTION,
and CONTENTS:
The appeal is perfected as to the petitioner upon the
timely filing of a petition for review and the payment of
the corresponding docket and other lawful fees, the
appeal is deemed perfected as to the petitioner (Sec.8,
Rule 42, Rules of Court).
Sec.8(a), Rule 42, Rules of Court.
Sec. 8. Perfection of appeal; effect thereof —
(a) Upon the timely filing of a petition for review and the payment of
the corresponding docket and other lawful fees, the appeal is deemed
perfected as to the petitioner.
*The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
(Sec. 8, Rule 42, Rules of Court).
The Regional Trial Court loses jurisdiction over the case:
(a) upon the perfection of the appeals
(b) filed in due time and
(c) the expiration of the time to appeal of the other
parties. (Sec. 8, Rule 42, Rules of Court).
Sec.8(a), Rule 42, Rules of Court.
Sec. 8. Perfection of appeal; effect thereof —
(a) Xxx
The Regional Trial Court loses jurisdiction over the case upon the
10
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
perfection of the appeals filed in due time and the expiration of the
time to appeal of the other parties.
Form and contents.—
(a) FULL NAMES of the PARTIES to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents;
(b) SPECIFIC MATERIAL DATES showing that it was
filed on time;
(c) STATEMENT OF THE MATTERS involved, the
issues raised, the specification of errors of fact or law, or
both, allegedly committed by the Regional Trial Court,
and the reasons or arguments relied upon for the
allowance of the appeal;
(d) Accompanied by CLEARLY LEGIBLE DUPLICATE
ORIGINALS or TRUE COPIES of the JUDGMENTS or
FINAL ORDERS of both lower courts, certified correct
by the clerk of court of the Regional Trial Court, the
requisite number of plain copies thereof and of the
pleadings and other material portions of the record as
would support the allegations of the petition.
(e) CERTIFICATE of NON-FORUM SHOPPING.
(Sec.2, Rule 42, Rules of Court)
RESIDUAL JURISDICTION:
*See Explanation, Supra
QUESTIONS TO BE RAISED:
The appellant may include in his assignment of errors
any QUESTION OF LAW or FACT, or BOTH, allegedly
committed by the Regional Trial Court.
(a) Pure questions of LAW
(b) Questions of Fact
(c) Mixed – Both law and fact
Sec.2(c), Rule 42, Rules of Court
Sec. 2. Form and contents.—Xxx
(c) set forth concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and the reasons or arguments
relied upon for the allowance of the appeal;
Xxx
DISMISSAL:
Sec.1, Rule 50, Rules of Court
Sec.1. Grounds for dismissal of appeal—An appeal may be dismissed by
the Court of Appeals, on its own motion or on that of the appellee, on
the following grounds:
(a) Failure of the record on appeal to show on its face that the appeal
was taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within
the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees as
provided in section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved
record on appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the appellant’s brief, or
of page references to the record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited by the
court in its order;
(h) Failure of the appellant to appear at the preliminary conference
under Rule 48 or to comply with orders, circulars, or directives of the
court without justifiable cause; and
(i) The fact that order or judgment appealed from is not appealable.
(1a)
Sec.2, Rule 50, Rules of Court
Sec. 2. Dismissal of improper appeal to the Court of Appeals.—An appeal
under Rule 41 taken from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed, issues purely
of law not being reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed outright.
(3a)
SUBMITTED for DECISION
11
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
The case shall be deemed submitted for decision upon
the filing of the last pleading or memorandum required
by these Rules or by the court itself. (Sec. 9, Rule 42, Rules
of Court).
Sec. 9, Rule 42, Rules of Court
Sec. 9. Submission for decision.—If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the
parties to submit memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision upon the filing
of the last pleading or memorandum required by these Rules or by the
court itself. (n)
Sec.1 (B), Rule 51, Rules of Court
Sec 1. When case deemed submitted for judgment.—A case shall be deemed
submitted for judgment: Xxx
Xxx
B. In original actions and petitions for review.—
1) Where no comment is filed, upon the expiration of the period to
comment.
2) Where no hearing is held, upon the filing of the last pleading
required or permitted to be filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the main case is held, upon its
termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration
of the period for its filing. (n)
WITHDRAWAL:
As a matter of Right:
(a) The original records are still within the court a
quo (MTC/RTC)
Before the transmittal of the original record or
record on appeal, the court may allow the
withdrawal (Sec.9, Rule 41, Rules of Court).
(b) Records are transmitted in the appellate court
(RTC/CA)
Before the appellee files its answer, the court
may allow the withdrawal as a matter of right
(Sec.3, Rule 50, Rules of Court).
As a matter of Discretion:
(a) If the appellee has already filed its answer, the
court may allow the withdrawal of the case
upon its discretion.
Sec.9, Rule 41, Rules of Court
Xxx x
In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal. (9a)
Sec.8, Rule 50, Rules of Court
Sec. 3. Withdrawal of appeal.—An appeal may be withdrawn as of right
at any time before the filing of the appellee’s brief. Thereafter, the
withdrawal may be allowed in the discretion of the court. (4a)
RULE 43APPEALS FROM THE QUASI-JUDICIAL
AGENCIES TO THE COURT OF APPEALS
RULE 42 as distinguished from RULE 43
Rule 42 Rule 43
Scope Applies to an appeal
from the judgment or
final order of the
Regional Trial Court
to the Court of
Appeals in cases
decided by the
former in the exercise
of its appellate
jurisdiction.
Applies to awards,
judgments, final
orders or resolutions
of or authorized by
any quasi-judicial
agency in the
exercise of its quasi-
judicial functions.
How
appeal
is taken
(a) VERIFIED
petition for
review,
(b) Payment of
docket and
Same as Rule 42,
Rules of Court
(Sec.5, Rule 43, Rules
of Court).
12
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
other lawful
fees,
depositing
the amount
of P500.00
for costs, and
(c) Furnish a
copy of the
petition to
RTC and
adverse
party.
Where
to
Appeal
Court of Appeals Court of Appeals
Questio
ns to be
raised
Questions of Fact or
Law, or Both,
allegedly committed
by the RTC (Sec.2(c),
Rule 43, Rules of
Court).
Questions of Fact or
Law, or Both,
allegedly committed
by the quasi-judicial
authorities (Sec.3,
Rule 43, Rules of
Court).
Period Within fifteen (15)
days from notice of
the decision sought
to be reviewed or of
the denial of
petitioner’s motion
for new trial or
reconsideration filed
in due time after
judgment
Within fifteen (15)
days from notice of
the award, judgment,
final order or
resolution, or from
the date of its last, or
of the denial of
petitioner’s motion
for new trial or
reconsideration filed
in accordance with
governing law of the
court or agency a quo.
(Sec.4, Rule 43, Rules
of Court)
Extensio
n
See Sec.1, Rule 42,
Rules of Court, Supra
Same as Rule 42,
Rules of Court
(Sec.4, Rule 43, Rules
of Court).
Effect of
failure
to
comply
with the
reqs.
The failure of the
petitioner to comply
with any of the
requirements shall be
sufficient ground for
dismissal.
Same as Rule 42,
Rules of Court.
(Sec.7, Rule 43, Rules
of Court.)
Content
s of
petition
See Sec.2, Rule 42,
Rules of Court, Supra
Same as Rule 42,
Rules of Court
(Sec.6, Rule 43, Rules
of Court)
Content
s of
commen
ts
(a) State
whether or
not he
accepts the
statement of
the matters
involved.
(b) Insufficiencie
s or
inaccuracies
in
petitioner’s
statement of
facts and
issues.
(c) Reasons why
petition shall
be denied or
dismissed.
(a) Insufficiencie
s or
inaccuracies
in
petitioner’s
statement of
facts and
issues.
(b) Reasons why
petition shall
be denied or
dismissed.
(Sec.9, Rule 43, Rules
of Court).
Due
course
the Court of Appeals
finds prima facie that
the lower court has
committed an error
of fact or law that
will warrant a
reversal or
modification of the
appealed decision, it
may accordingly give
due course to the
petition.
Court of Appeals
finds prima facie that
the court or agency
concerned has
committed errors of
fact or law that
would warrant
reversal or
modification of the
award, judgment,
final order or
resolution sought to
be reviewed, it may
13
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
(Sec.6, Rule 42, Rules
of Court)
give due course to
the petition;
otherwise, it shall
dismiss the same.
The findings of fact
of the court or
agency concerned,
when supported by
substantial evidence,
shall be binding on
the Court of Appeals.
(Sec.10, Rule 43, Rules
of Court)
Submitt
ed for
decision
The case shall be
deemed submitted
for decision upon the
filing of the last
pleading or
memorandum
required by the Rules
of Court (Sec.9, Rule
42, Rules of Court)
Same as Rule 42,
Rules of Court.
(Sec.13, Rule 43, Rules
of Court).
Cases
not
covered
Cases decided by the
RTC in its original
jurisdiction.
This Rule shall not
apply to judgments
or final orders issued
under the Labor
Code of the
Philippines (Sec.2,
Rule 43, Rules of
Court).
Stay Except in civil cases
decided under the
Rule on Summary
Procedure, the
appeal shall stay the
judgment or final
order unless the
Court of Appeals, the
law, or these Rules
shall provide other-
wise.
(Sec.8(b), Rule 42,
The appeal shall not
stay the award,
judgment, final order
of resolution sought
to be reviewed
unless the Court of
Appeals shall direct
otherwise upon such
terms as it may deem
just.
(Sec.12, Rule 42, Rules
of Court)
Rules of Court)
Table of Appeals
FROM APPEAL TO
HOW?
MTC RTC File a notice of appeal with the court (MTC) and
serve a copy of the notice to the
adverse party. Rule 40
RTC -exercise of its
original jurisdiction.
CA -only
questions of fact or
law
File a notice of appeal with the court (RTC) and
serve a copy of the notice to the
adverse party. Rule 41
RTC -exercise of its
original jurisdiction.
SC -only
questions of law
File a petition for review on
Certiorari with the Supreme Court (SC) under Rule
45. RTC
-exercise of its appellate jurisdiction
CA -
questions of fact law
or both
File a petition for review with the
CA under Rule 42.
Quasi-judicial bodies
-exercising its quasi-judicial power
CA -
questions of fact law
or both
File a petition for review with the
Court of Appeals (CA) under Rule
43.
Ombudsman
-administrative disciplinary case
-Criminal case
CA
File a petition for review with the
Court of Appeals (CA) under Rule
43.
SC File a petition for
review with the Supreme Court (SC) under Rule
65.
NLRC CA File a petition for review on
14
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
Certiorari with the Court of Appeals (CA) under Rule
65. CSC
-Judgment or Final order or resolution.
CA File a petition for review with the
Court of Appeals (CA) under Rule
COMELEC -Judgment or Final order or resolution.
SC File a petition for review on
Certiorari with the Supreme Court (SC) under Rule
65 as provided by Rule 64.
COA -Judgment or Final order or resolution.
SC File a petition for review on
Certiorari with the Supreme Court (SC) under Rule
65 as provided by Rule 64.
CA -exercising its
original/appellate jurisdiction
SC File a petition for review on
Certiorari with the Supreme Court (SC) under Rule
45.
CTA CTA -En Banc
File a petition for review on
Certiorari with the CTA En Banc.
CTA -En Banc
SC File a petition for review on
Certiorari with the SC under Rule 45.
Sandiganbayan -exercise of its
original/appellate jurisdiction.
-imposing a penalty other than Death,
reclusion perpetua, or life imprisonment.
SC File a petition for review on
Certiorari under Rule 45.
Sandiganbayan -exercise of its
original jurisdiction -penalty imposed is
reclusion perpetua or life imprisonment, or
where a lesser penalty is imposed
for offenses
SC File a notice of appeal with the Sandiganbayan
and serve a copy of the notice to the
adverse party.
committed on the same occasion or
which arose out of the same occurrence that gave rise to the
offense punishable by Death, RP, or LI.
RULE 45 APPEAL BY CERTIORARI TO THE
SUPREME COURT
An appeal for review on certiorari under Rule 45 may
include an application for a writ of preliminary
injunction or other provisional remedies. The petitioner
may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any
time during its pendency (Rule 1, Rule 45, Rules of
Court, as amended by A.M. No. 07-7-12-SC, December 12,
2007.)
An appeal under Rule 45 is not a matter of right, but of
sound judicial discretion, and will be ground only when
special and important reasons could justify the petition.
The following are examples of reasons which the Court
may consider in allowing the petition:
(a) Question of substance not yet determined by the
Supreme Court.
(b) Court below decided a matter of substance in a
way that is not in accord with the law.
(c) Court below has departed from the accepted
and usual course of judicial proceedings.
Exception:
The penalty of death or reclusion perpetua where an
appeal is a matter of right leaving the reviewing court
without any discretion
QUESTIONS TO BE RAISED:
The petition shall raise ONLY QUESTIONS OF LAW.
The rule is that before the Supreme Court, only legal
issues may be raised in a petition for review on certiorari.
The Supreme Court is not a trier of facts, and is not to
review or calibrate the evidence on record. Moreover,
15
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
the findings of the trial court, as affirmed by the Court of
Appeals are conclusive on the Court.
Exceptions:
(a) Question of substance not yet determined by the
Supreme Court.
(b) Court below decided a matter of substance in a
way that is not in accord with the law.
(c) Court below has departed from the accepted
and usual course of judicial proceedings.
(Sec.6, Rule 45, Rules of Court)
(d) Conclusion of the CA is grounded entirely on
speculations.
(e) Inference made is manifestly mistaken.
(f) Grave abuse of discretion.
(g) Misapprehension of facts.
(h) Facts are conflicting.
(i) The CA went beyond the issues of the case.
(j) Findings of the CA are contrary to that of the
trial court.
(k) Findings of fact are conclusions without citation
of specific evidence on which they are based.
(l) Facts set forth by in the petition by the petitioner
are not disputed by the respondents.
(m) The findings of fact by the CA are premised on
the supposed absence of evidence and
contradicted by the evidence on record.
(n) In appeal from a judgment or final order of the
court in a petition for writ of amparo or habeas
data questions of fact may be raised.
Sec.6, Rule 45, Rules of Court
Sec. 6. Review discretionary.—A review is not a matter of right, but of
sound judicial discretion, and will be granted only when there are
special and important reasons therefor. The following, while neither
controlling nor fully measuring the court’s discretion, indicate the
character of the reasons which will be considered:
(a) When the court a quo has decided a question of substance, not
theretofore determined by the Supreme Court, or has decided it in a
way probably not in accord with law or with the applicable decisions
of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned such
departure by a lower court, as to call for an exercise of the power of
supervision.
WHEN:
The petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be reviewed
or of the denial of petitioner’s motion for new trial or
reconsideration filed in due time after judgment (Sec.2,
Rule 45, Rules of Court).
EXTENSION:
The Court may grant an additional 30 days only within
which to file the petition for review:
(a) Upon proper motion and
(b) the payment of the full amount of the docket
and other lawful fees and the deposit for costs
(c) before the expiration of the reglementary period.
Sec.2, Rule 45, Rules of Court
Sec. 2. Time for filing; extension.—The petition shall be filed within
fifteen (15) days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioner’s motion for
new trial or reconsideration filed in due time after notice of the
judgment. On motion duly filed and served, with full payment of the
docket and other lawful fees and the deposit for costs before the
expiration of the reglementary period, the Supreme Court may for
justifiable reasons grant an extension of thirty (30) days only within
which to file the petition.
CONTENTS:
See Sec.2, Rule 42, Rules of Court, Supra
DISMISSAL:
Sec. 5, Rule 45, Rules of Court
Sec. 5. Dismissal or denial of petition.—The failure of the petitioner to
comply with any of the foregoing requirements regarding the payment
of the docket and other lawful fees, deposit for costs, proof of service
of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal
thereof.
16
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
The Supreme Court may on its own initiative deny the petition on the
ground that the appeal is without merit, or is prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial to
require consideration.
SUBMITTED for DECISION:
Sec. 1(B), Rule 51, Rules of Court
Sec.1. When case deemed submitted for judgment.—A case shall be deemed
submitted for judgment:
Xxx
B. In original actions and petitions for review.—
1) Where no comment is filed, upon the expiration of the period to
comment.
2) Where no hearing is held, upon the filing of the last pleading
required or permitted to be filed by the court, or the expiration of the
period for its filing.
3)Where a hearing on the merits of the main case is held, upon its
termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration
of the period for its filing.
RULE 45 as distinguished from RULE 65
Rule 45 Rule 65
A Mode of appeal. A Special civil action that
is an original action.
Continuation of the
appellate process over the
original case.
Not a part of the appellate
process.
Seeks to review final
orders and final
judgments.
May be directed against an
interlocutory order or
matters where no appeal
may be taken from.
Raises questions of law. Raises questions of
jurisdiction because a
tribunal, board or officer
exercising judicial or extra-
judicial functions has acted
without or in excess of
jurisdiction or with grave
abuse of discretion
amounting to lack or
excess of jurisdiction.
Filed within 15days from
notice of judgment.
Filed within 60 days from
notice of judgment.
Does not require a prior
Motion for
Reconsideration.
Requires a prior Motion
for Reconsideration.
Stays the judgment
appealed.
Does not appeal the
judgment or order of the
petition unless enjoined or
restrained.
Parties as the original
parties with the appealing
party as the petitioner and
the adverse party as
respondent.
Tribunal, board, officer
exercising judicial or
quasi-judicial functions in
impleaded as respondent.
Only Filed in SUPREME
COURT.
Filed with the:
(a) RTC (Sec.21, BP
129 as amended)
(b) CA (Sec.9, BP 129
as amended)
(c) SC (Sec.5[1], Art.
VIII)
Rule 45 and Rule 65 are mutually exclusive and not
alternative or cumulative.
Court may set aside technicality for justifiable reasons as
when the petition before the court is clearly meritorious
and filed on time both under Rules 45 and 65. In
accordance with the liberal interest of justice, the Court
may treat the petition as having been filed under Rule 45
(Int’l Corporate Bank vs. CA, G.R.No.129910, Sept. 5, 2006).
RULE 46 ORIGINAL CASES
APPLICATION:
This Rule shall apply to all cases ORIGINALLY filed in
the Court of Appeals for ORIGINAL ACTIONS for
17
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
Certiorari, Prohibition, Mandamus, Quo Warranto,
Annulment (CPMQA).
Rule 65- CPM
Rule 66-Q
Rule 47-A
Sec. 2. To what actions applicable.—This Rule shall apply to original
actions for certiorari, prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of judgment
shall be governed by Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto by Rule 66. (n)
Sec.1, Rule 46, Rules of Court
Sec.1. Title of cases.—In all cases originally filed in the Court of
Appeals, the party instituting the action shall be called the petitioner
and the opposing party the respondent. (1a)
RULE 47 ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
APPLICATION:
The purpose of such action is to have final and executor
judgment set aside so that there will be a renewal of
litigation.
It is resorted to in cases where the ordinary remedies of
new trial, appeal, petition for relief from judgment, or
other appropriate remedies are no longer available
through no fault of the petitioner, and is based only two
grounds: Extrinsic Fraud, and Lack of Jurisdiction or
denial of due process (Alaban vs. CA, 470 SCRA 697).
GROUNDS for ANNULMENT:
A petition for annulment is an extraordinary action. By
virtue of its exceptional character, the action is restricted
exclusively to the grounds specified in the rules:
(a) EXTRINSIC FRAUD
Exists when there is a fraudulent act committed by the
prevailing party outside of the trial of the case, whereby
the defeated party was prevented from presenting fully
his side of the case by deception practiced by the
prevailing party (Alba vs. CA, 465 SCRA 495).
(b) LACK OF JURISDICTION
Refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Petitioner must show an absolute lack of authority to
decide the case.
EFFECT of JUDGMENT OF ANNULMENT:
(a) EXTRINSIC FRAUD
1) Where the judgment or final order is set aside,
and annulled on the ground of EF, the court,
upon motion, may order the trial court to try the
case as if a motion for new trial was granted
(Sec.7, Rule 47, Rules of Court).
Sec.7. Rule 47, Rules of Court
Sec. 7. Effect of judgment- Xxx
However, where the judgment or final order or resolution is set aside
on the ground of extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for new trial had been
granted therein.
(b) LACK OF JURISDICTION
A judgment of annulment based on LOJ shall
have the effect of setting aside the questioned
judgment or final order and rendering the same
null and void but the judgment of annulment is
without prejudice to the refilling of the original
action in the proper court(Sec.7, Rule 47, Rules of
Court).
Sec.7, Rule 47, Rules of Court
Sec. 7. Effect of judgment- A judgment of annulment shall set aside the
questioned judgment or final order or resolution and render the same
null and void, without prejudice to the original action being refiled in
the proper court. Xxx
(c) Judgment may include award of damages,
attorney’s fees, and other relief (Sec.9, Rule 47,
Rules of Court).
Sec.9, Rule 47, Rules of Court
Sec.9. Relief available.—The judgment of annulment may include the
18
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
award of damages, attorney’s fees and other relief.
If the questioned judgment or final order or resolution had already
been executed, the court may issue such orders of restitution or other
relief as justice and equity may warrant under the circumstances. (n)
ANNULMENT of the MTC:
Sec.10, Rule 47, Rules of Court
Sec. 10. Annulment of judgments or final orders of Municipal Trial
Courts.—An action to annul a judgment or final order of a Municipal
Trial Court shall be filed in the Regional Trial Court having jurisdiction
over the former. It shall be treated as an ordinary civil action and
sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)
INTERRUPTION and PROHIBITION:
The prescriptive period of the original action shall be
deemed suspended from the filing of the original action
until its finality (Sec.8, Rule 47, Rules of Court).
Sec.8, Rule 47, Rules of Court
Sec.8. Suspension of prescriptive period.—The prescriptive period for the
refiling of the aforesaid original action shall be deemed suspended
from the filing of said original action until the finality of the judgment
of annulment. However, the prescriptive period shall not be
suspended where the extrinsic fraud is attributable to the plaintiff in
the original action. (n)
Only pleadings allowed by the Court shall be allowed,
otherwise, a leave of court is necessary (Sec.5, Rule 46,
Rules of Court).
Sec.5, Rule 46, Rules of Court
Sec. 5. Action by the court.—Xxx
Only pleadings required by the court shall be allowed. All other
pleadings and papers, may be filed only with leave of court. (n)
DISMISSAL:
Sec.3, Rule 46, Rules of Court
Sec.3. Contents and filing of petition; effect of non-compliance with
requirements.-Xxx
Xxx
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the
petition. (n)
Sec.5, Rule 46, Rules of Court
Sec.5. Action by the court.—The court may dismiss the petition outright
with specific reasons for such dismissal or require the respondent to
file a comment on the same within ten (10) days from notice. Xxx
Sec.5, Rule 47, Rules of Court
Sec.5. Action by the court.—Should the court find no substantial merit
in the petition, the same may be dismissed outright with specific
reasons for such dismissal. Xxx
SUBMITTED for DECISION:
Sec.7, Rule 46, Rules of Court
Sec.7. Effect of failure to file comment.—When no comment is filed by any
of the respondents, the case may be decided on the basis of the record,
without prejudice to any disciplinary action which the court may take
against the disobedient party. (n)
Sec.1(B), Rule 50, Rules of Court
Sec 1. When case deemed submitted for judgment.—A case shall be deemed
submitted for judgment: Xxx
Xxx
B. In original actions and petitions for review.—
1) Where no comment is filed, upon the expiration of the period to
comment.
2) Where no hearing is held, upon the filing of the last pleading
required or permitted to be filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the main case is held, upon its
termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration
of the period for its filing. (n)
RULE 38 as distinguished from RULE 47
Rule 38 Rule 47
Scope Available not only
against a judgment
or final order, it is
(a) Rule shall
govern the
annulment
19
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
also available when
―any other
proceeding is
thereafter taken
against then
petitioner in any
other COURT
through Fraud,
Accident, Mistake,
Excusable negligence
(Sec.1, Rule 38, Rules
of Court).
by the Court
of Appeals of
judgments
or final
orders and
resolutions
in civil
actions of
Regional
Trial Courts
for which
the ordinary
remedies of
new trial,
appeal,
petition for
relief or
other
appropriate
remedies are
no longer
available
through no
fault of the
petitioner.
(Sec.1, Rule 47, Rules
of Court)
(b) Annulment
of
judgments
or final
orders of
Municipal
Trial Courts.
(Sec.1, Rule 47, Rules
of Court)
Who ONLY the PARTIES
of the case.
ANY PERSON as
long as there is a
showing that he was
affected by the
judgment.
How
appeal is
(a) File a
VERIFIED
(a) File a
VERIFIED
taken PETITION.
(b) Accompanie
d with
affidavits
showing
FAME.
(c) FACTS
constituting
the
petitioner’s
GOOD and
SUBSTANTI
AL cause of
action or
Defense.
(Sec.3, Rule 38, Rules
of Court)
PETITION.
(b) FACTS
constituting
the
petitioner’s
GOOD and
SUBSTANTI
AL cause of
action or
Defense.
(c) LAW relied
upon
annulment.
(d) Accompanie
d with
affidavits of
Witnesses.
(d) CERTIFICA
TE of NON-
FORUM
SHOPPING.
(Sec.4, Rule 47, Rules
of Court)
Where In the Court where
the judgment, order,
or resolution was
rendered (Secs.1 and
2, Rule 38, Rules of
Court).
(a) MTC
(b) RTC
Not available in CA
and SC.
Court of Appeals if
what is sought to be
annulled is a
decision of the RTC
(Sec.1, Rule 47, Rules
of Court).
RTC if what is
sought to be
annulled is a
decision of the MTC
(Sec.10, Rule 47, Rules
of Court).
(a) RTC
(b) CA
Period (a) within sixty (60) days after the
(a) If based on extrinsic fraud, the
20
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
petitioner learns of the judgment, final order, or other proceeding to be set aside, and
(b) not more than six (6) months after such judgment or final order was entered, or such proceeding was taken.
(Sec.3, Rule 38, Rules
of Court)
action must be filed within four (4) years from its discovery; and
(b) If based on lack of jurisdiction, before it is barred by laches or estoppel.
(Sec.3, Rule 47, Rules
of Court)
Grounds Fraud, Accident,
Mistake, Excusable
Negligence (FAME).
(a) Judgment or
Final order
is entered
through
FAME. or
(b) Any other
proceeding
is thereafter
taken
against a
party
through
FAME. or
(Sec.1, Rule 38, Rules
of Court)
(c) Judgment or
Final order
is entered
and a party
by FAME
was
(a) Extrinsic
Fraud; and
(b) Lack of
Jurisdiction
(Sec.2, Rule 47, Rules
of Court)
prevented
from taking
an appeal.
(Sec.2, Rule 38, Rules
of Court)
Availabi
lity
(a) After the
judgment or
final order
has become
final or
executory
and that no
other
remedy is
available.
(b) Any other
proceeding
is thereafter
taken
against then
petitioner in
any other
COURT
through
Fraud,
Accident,
Mistake,
Excusable
negligence.
(Sec.1, Rule 38, Rules
of Court).
(a) After the
judgment or
final order
has become
final or
executory
and that no
other
remedy is
available.
(Sec.1, Rule 45, Rules
of Court)
RULE 65 CERTIORARI, PROHIBITION,
MANDAMUS
*only Certiorari of Rule 65 will be discussed as this topic
is compared to Rule 45.
CERTIORARI:
Called a ―supervisory or superintending writ,‖ this
remedy is availed of to annul or modify the proceedings
of a tribunal, board or officer exercising judicial or
21
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
extrajudicial functions which has acted without or in
excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
As a rule, where appeal is available, certiorari cannot be
availed of unless it can be shown that appeal is not
speedy, or adequate.
The task of the court in a certiorari proceeding is to
determine whether the lower court committed grave
abuse of discretion (Marcopper Mining vs. Solidbank
Corporation, GR No. 134049). Its function is to raise
questions of jurisdiction and no other. It cannot be used
for any other purpose (Landbank vs. CA, 409 SCRA 455).
Do not file certiorari if your purpose is to raise a factual
issue or to ask for re-evaluation of the facts and the
evidence (PILTEL vs. NTC, 410 SCRA 82).
The phrase ―grave abuse of discretion‖ has a precise
meaning in law, denoting abuse of discretion ―too patent
and gross as to amount to an evasion of a positive duty,
or a virtual refusal to perform the duty enjoined or act in
contemplation of law, or where the power is exercised in
an arbitrary and despotic manner by reason of passion
and personal hostility.
MOTION for RECONSIDERATION
The general rule is that before filing a petition for
certiorari under Rule 65 of the Rules of Court, the
petitioner is mandated to comply with the condition
precedent:
(1) The filing of a Motion for Reconsideration, and
(2) The subsequent denial of the court a quo.
However, the rule is subject to the following recognized
exceptions:
(a) The court a quo has no jurisdiction
(b) Questions raised in the certiorari proceeding
have been duly raised and passed upon by the
lower court, or are the same as those raised and
passed upon in the lower court.
(c) Urgent necessity for the resolution of the
questions and any further delay would
prejudice the interest of the petitioner.
(d) Motion for reconsideration is useless.
(e) Petitioner was deprived of due process and
there is extreme urgency for relief.
(f) In criminal case, relief from an order of arrest is
urgent.
(g) The proceeding was ex parte or in which the
petitioner had no opportunity to object.
(h) Issue raised is one purely of law or public
interest is involved.
RULE 45 as distinguished from RULE 65
See Table in RULE 45, Supra
Distinction between a DIRECT from a COLLATERAL
ATTACK
A DIRECT ATTACK of a judgment is made through an
action or proceeding the main object of which is to
annul, set aside or enjoin the enforcement of such
judgment if not yet carried into effect; or if the property
has been disposed of, the aggrieved party may sue
recovery.
A COLLATERAL ATTACK is made when, in another
action to obtain a different relief, an attack on the
judgment is made as an incident in said action. This is
proper only when the judgment, on its face, is null and
void, as where it is patent that the court which rendered
said judgment has no jurisdiction (Co vs. C.A., 196 SCRA
705).
Examples: A petition for certiorari under Rule 65 is a
direct attack. It is filed primarily to have an order
annulled. An action for annulment of a judgment is
likewise a direct attack on a judgment is likewise a direct
attack on a judgment. A motion to dismiss a complaint
for collection of a sum of money filed by a corporation
against the defendant on the ground that the plaintiff
has no legal capacity to sue is a collateral attack on the
22
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
corporation. A motion to dismiss is incidental to the
main action for a sum of money. It is not filed as an
action intended to attack the legal existence of the
plaintiff (Macabingkil vs. PHHC, 72 SCRA 326; Co vs. C.A.,
196 SCRA 705).
References:
Riano, William B., Civil Procedure (A
Restatement of the Bar) Rules 1-71, Manila:
Central Bookstore, Inc., 2002
Lakas Atenista Civil Procedure Reviewer I and
II 2007
Ateneo University Civil Procedure Reviewer
2001
Rules on Civil Procedure, Rules of Court,
Manila: Rex Bookstore, Inc., 2009
DISCLAIMER:
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solely those of the author and do not necessarily
represent those of the authors in the given reference.
The author accepts no liability for the content of this
reviewer, or for the consequences of the usage, abuse, or
any actions taken by the user on the basis of the
information given.
The reviewer is a compilation of different law books/
reviewers and not an original creation of the author. The
references may vary from different reviewers. Thus, the
user is tasked to be vigilant on any discrepancies on the
given information.