1997 Rules on Civil Procedure 2001 Edition <draft copy. pls.

check for errors>

Rule 38 RELIEF FROM JUD ME!"#$ ORDER#$ OR O"%ER &RO'EEDI! #

Rule 38 - Relief From Judgments, Orders, or Other Proceedings

#ect(o) *. Petition for relief from judgment, order, or other proceedings. +he) a ,ud-.e)t or f()al order (s e)tered$ or a)y other proceed()- (s thereafter take) a-a()st a party () a)y court throu-h fraud$ acc(de)t$ .(stake$ or e/cusa0le )e-l(-e)ce$ he .ay f(le a pet(t(o) () such court a)d () the sa.e case pray()- that the ,ud-.e)t$ order or proceed()- 0e set as(de. 12a3 Rule 38 is known as the remedy of petition for relief from judgment or final order. The grounds cited here are actually the same as the grounds for new trial FAM . !e are meeting FAM for the third time. "t seems to #e a ground that keeps on going #ack. First in $efault% then &ew Trial% and now a ground for petition for Relief from 'udgment. () !hat are the different remedies a*aila#le to a defaulted defendant granted #y the rules+ A) The following) , -pon ser*ice of the order of default #ut #efore judgment upon default is rendered under Rule . you can file a motion to set aside the order of default on the ground that his failure to file answer was #ecause of FAM / 0 "f there is already a default judgment% the correct procedure is to file a motion for new trial under Rule 31 on the ground of FAM within the period to appeal% meaning% #efore judgment #ecomes final and e2ecutory/ 3 "f the judgment is already final and e2ecutory% the remedy is to file a petition for relief from judgment under Rule 38 on the ground of FAM . 4o if you are a passenger and you want to ride on the #us% Rule . is first trip% Rule 31 is second trip% Rule 38 is last trip. Are those the only remedy+ For #ar purposes pwede na5 6ut if gusto mo ng mas maganda% marami pa. 7a#angan5 4ee discussions under Rule 819 () $istinguish #etween relief from judgment under Rule 38 and new trial under Rule 31. A) Rule 31 is su#stantially similar to Rule 38% the only difference #eing that the remedy is called Motion for &ew Trial if filed #efore the judgment or final order has #ecome final and e2ecutory% and :etition for Relief if filed thereafter #ut within the period prescri#ed in 4ection 3% Rule 38. And take note that only FAM could #e the ground for Rule 38. There is no newly disco*ered e*idence under Rule 38. &ewly disco*ered e*idence is not a ground for petition for relief from judgment. &ewly disco*ered e*idence is a*aila#le in Rule 31 #ut not in Rule 38. () "n what court can you file a petition for relief from judgment+ A) ;"n such court and in the same case.< Meaning% in the *ery court where you lost and in the same case num#er. 4o% para ka na ring nag=file ng motion for new trial #ecause motion for new trial is filed #efore the same court and in the same case. -nder the >?$ R-? 4% when you want to file a petition for relief from the judgment of the RT@% you file your petition for relief in the same RT@ and in the same case. And if you want to file a petition for

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1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 38 - Relief From Judgments, Orders, or Other Proceedings

relief from judgement of the MT@% you file it in the RT@ like an appeal. The RT@ will #e the one to grant the relief from the judgment of the MT@. The MT@ has no power to set aside its own judgment. "t can only #e done #y the RT@. 6ut the RT@ has the power to set aside its own judgment just like a motion for new trial. 6ut &>!% under 4ection 0% you can file a petition for relief from judgment in A&A @>-RT on the ground of FAM % "& 4-@B @>-RT and in the same case. 4o% if you want to file a petition for relief from judgment of the MT@% you should file it in the same MT@ court. &ow% MT@ has authority to entertain petition for relief from judgment unlike the pre*ious rule. That is a major change. () @an a petition for relief from judgment #e filed in the @A+ A) A 4 #ecause of ;in any court.< @an you file a petition for relief not from a judgment #ut from an order+ 4ection 3) #ec. 2. Petition for relief from denial of appeal. +he) a ,ud-.e)t or f()al order (s re)dered 0y a)y court () a case$ a)d a party thereto$ 0y fraud$ acc(de)t$ .(stake$ or e/cusa0le )e-l(-e)ce$ has 0ee) pre4e)ted fro. tak()- a) appeal$ he .ay f(le a pet(t(o) () such court a)d () the sa.e case pray()- that the appeal 0e -(4e) due course. 1*a3 "n most cases% or .CD of petition for relief% a party files a petition for relief from the judgment rendered against him. Actually that is not true. The remedy of petition for relief is not only limited to judgments #ut the law says ;orders% or other proceedings.< That is *ery #road. EAM:? ) " lost the case and " filed an appeal and the appeal was #eyond 0C days. 4o% there will #e an order denying my appeal #ecause my appeal should #e within 0C days. () And suppose such order pre*ented me from taking an appeal #ecause of FAM % can " file a petition for relief+ A) Aes% not from the judgment #ut from the order denying my appeal on the ground of FAM . And the court will grant me relief #y allowing me to appeal. 4o there% " am not Fuestioning the judgment #ut " am only Fuestioning the order not allowing me to appeal. 6ut as " said% in most cases% petition for relief are #ased on 4ection 0 rather than 4ection 3. 6ihira yung petition for relief from the order denying the appeal. "s there a deadline in filing a petition for relief from judgment+ A 4. 4ection 3) #ec. 3. Time for filing petition; contents and verification. 5 pet(t(o) pro4(ded for () e(ther of the preced()- sect(o)s of th(s Rule .ust 0e 4er(f(ed$ f(led 6(th() s(/ty 1783 days after the pet(t(o)er lear)s of the ,ud-.e)t$ f()al order$ or other proceed()- to 0e set as(de$ a)d )ot .ore tha) s(/ 173 .o)ths after such ,ud-.e)t or f()al order 6as e)tered$ or such proceed()- 6as take)9 a)d .ust 0e acco.pa)(ed 6(th aff(da4(ts sho6()- the fraud$ acc(de)t$ .(stake$ or e/cusa0le )e-l(-e)ce rel(ed upo)$ a)d the facts co)st(tut()- the pet(t(o)er:s -ood a)d su0sta)t(al cause of act(o) or defe)se$ as the case .ay 0e. 133 () !hen you file a petition for relief from judgment% or final order% what are the formal reFuirements+ A) The formal reFuirements are) , The petition must #e *erified/

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Rule 38 - Relief From Judgments, Orders, or Other Proceedings

0 The petition for relief must #e accompanied with affida*its showing the FAM relied upon and the facts constituting the petitionerGs good and su#stantial case of action or defense as the case may #e. () &ow% does that reFuirement sound familiar again% that there must #e an affida*it showing the fame and the petitionerGs su#stantial cause of action or defense+ A) Aes% that is the reFuirement under the motion for new trial% affida*it of merits. Therefore% AFF"$AH"T >F M R"T4 which is a reFuirement in Rule 31 is also a reFuirement in Rule 38. That is the identical feature of new trial of fame and petition for relief. () !hat will happen if a party files a petition for relief without any affida*it of merits% or with a defecti*e affida*it+ A) The defect is FATA? and the petition will #e denied outright #ecause of lack of affida*it merits. "t is the affida*it of merits which ser*es as the jurisdictional #asis for the court to entertain a petition for relief. IFernandeJ *s. Tan Tiong Tick% ?=0C811% April 38% 0.K0L () !hen do you file a petition for relief+ A) >nce the judgment complained of has #ecome final and e2ecutory #ecause the remedy of new trial is lost. 6ut it does not mean that you can file your petition for relief anytime. There is also a deadline. () !hat is the $ A$?"& + A) -nder 4ection 3% the petition must #e filed within) , 4"ETA IK,L $AA4 from the time the petitioner learns of the judgment% order% or other proceedings to #e set aside% A&$ 0 &ot more than 4"E IKL M>&TB4 after such judgment or final order was entered% or such proceeding was taken. () !hat is the date of entry of judgment or final order+ A) "t is the date of finality of judgment or final order IRule 3K% 4ection 3L. 4o% the date of entry is deemed to #e the date of finality. 4o there are two I3L periods) K, days and K months/ and 6>TB periods must #e complied with I$irige *s. 6iranya% ?=33,33% 'uly 3,% 0.KKL. >therwise% if you fail to comply with the two periods the petition for relief will #e denied for #eing filed out of time. :R>6? M) There was a judgment rendered against me in 'une 0..1 and it #ecame final and there was entry of final judgment in 'une 0..1% meaning talo na ako last year pa. 6ut " learned a#out it only last week or se*en days ago. Today is Fe#ruary 0..8. 4o " asked my lawyer to file a petition for relief this week. () "s the petition filed on time+ A) &>. "t is filed out of time. "t is true that " only learned a#out it a week ago. 6ut definitely% the filing is #eyond K months from the date of its entry which is 'une 0..1. Aou complied with the first period #ut you did not comply with second period. 6oth periods must #e complied. :R>6? M) The judgment was entered against me last $ecem#er 0..1% and there was entry of final judgment in $ecem#er 0..1. " learned a#out it last $ecem#er also/ and now March% 0..8% " will file a petition for relief from judgment. () @an " still file the petition for relief+

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Rule 38 - Relief From Judgments, Orders, or Other Proceedings

A) &o more. Although it is within K months I$ecem#er to March is only 3 monthsL from date of entry 6-T definitely% #etween $ecem#er to March is more than K, days. 4o the petition can no longer #e filed. That is how you apply the two periods. 6oth periods must #e complied. () "s the period for filing a petition for relief e2tendi#le+ A) The remedy allowed #y Rule 38 is merely an act of grace or #ene*olence intended to afford a litigant a penultimate opportunity to protect his interest. @onsidering the nature of such relief and of the purpose #ehind it% the periods fi2ed #y said rule are &>&= ET &$"6? and is ne*er interrupted/ nor can it #e su#ject to any condition or contingency #ecause it is itself de*ised to meet a condition or contingency. I4mith% 6ell M @o. *s. :hil. Milling @o.% C1 >.N. 31,0% April 0,% 0.K0/ (uijano *s. Tameta% ?=0K813% April 3,% 0.K0L !ell% of course% petition for relief according to 4@% is penultimate remedy gi*en #y the law to a *ictim of FAM . 6ecause% if you are a *ictim of FAM % you lose the case #ecause of that reason. 4omehow the law would like to help you lalo na pagna=default ka. >.O.% you ha*e Rule .% file ka nang motion to lift order of default. Hindi ako nakahabol eh, may-judgment na. > sige% Rule 38 petition for relief. 6ut paglumampas ka dyan% sorry na lang. Meaning% the law cannot help you fore*er. The law can only help you up to a certain period. "f you still do not do anything a#out it% pasensiya ka na. #ec. ;. !rder to file an ans"er. If the pet(t(o) (s suff(c(e)t () for. a)d su0sta)ce to ,ust(fy rel(ef$ the court () 6h(ch (t (s f(led$ shall (ssue a) order re<u(r()- the ad4erse part(es to a)s6er the sa.e 6(th() f(ftee) 1*=3 days fro. the rece(pt thereof. "he order shall 0e ser4ed () such .a))er as the court .ay d(rect$ to-ether 6(th cop(es of the pet(t(o) a)d the acco.pa)y()- aff(da4(ts. 1;a3 Aou file a petition for relief% the court will issue an order reFuiring the other party to answer. "t is like a complaint all o*er again where you are gi*en 0C days to answer. Meaning sagutin mo #ould you agree that your opponent is a victim of $%&'( "n other words% do you agree or disagree+ yan ang sagutin mo. )o you agree that he has meritorious cause of action *or defense+( Meaning% you are gi*en the right to oppose the petition for relief. #ec. =. Preliminary injunction pending proceedings. "he court () 6h(ch the pet(t(o) (s f(led$ .ay -ra)t such prel(.()ary (),u)ct(o) as .ay 0e )ecessary for the preser4at(o) of the r(-hts of the part(es$ upo) the f(l()- 0y the pet(t(o)er of a 0o)d () fa4or of the ad4erse party all da.a-es a)d costs that .ay 0e a6arded to h(. 0y reaso) of (ssua)ce of such (),u)ct(o) or the other proceed()-s follo6()- the pet(t(o)9 0ut such (),u)ct(o) shall )ot operate to d(schar-e or e/t()-u(sh a)y l(e) 6h(ch the ad4erse party .ay ha4e ac<u(red upo) the property of the pet(t(o)er. 1=a3 :reliminary injunction actually is a type of pro*isional remedy which is go*erned #y Rule C8. "njunction is to stop #a% to enjoin some#ody or stop the court from doing an act. That is the essence of injunction. EAM:? ) " lost in a case. The judgment #ecame final and e2ecutory #ecause " did not make an appeal. Bowe*er% " filed a petition for relief. "n the meantime% my opponent is asking the court to e2ecute the decision which is his right #ecause the judgment is already final and e2ecutory. "n other

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Rule 38 - Relief From Judgments, Orders, or Other Proceedings

words% " am Fuestioning the judgment of the court while siya naman% he is asking the court to enforce the judgment. () &ow% what is my remedy to stop the enforcement of the judgment+ A) -nder 4ection C% " can ask the court to issue a writ of preliminary injunction to stop the enforcement of the judgment. 6ut " ha*e to put up a 6>&$ conditioned that in the e*ent that my petition for relief is not meritorious% " will pay for all the damages that the other party will incur #ecause of the delay in the e2ecution. #ec. 7. Proceedings after ans"er is filed. 5fter the f(l()- of the a)s6er or the e/p(rat(o) of the per(od therefor$ the court shall hear the pet(t(o) a)d (f after such hear()-$ (t f()ds that the alle-at(o)s thereof are )ot true$ the pet(t(o) shall 0e d(s.(ssed9 0ut (f (t f()ds sa(d alle-at(o)s to 0e true$ (t shall set as(de the ,ud-.e)t or f()al order or other proceed()-s co.pla()ed of upo) such ter.s as .ay 0e ,ust. "hereafter the case shall sta)d as (f such ,ud-.e)t$ f()al order or other proceed()- had )e4er 0ee) re)dered$ (ssued or take). "he court shall the) proceed to hear a)d deter.()e the case as (f a t(.ely .ot(o) for a )e6 tr(al or reco)s(derat(o) had 0ee) -ra)ted 0y (t. 17a3 6AR (- 4T">&) !hen a petition for relief from judgment is filed% what are the hearings that will #e conducted #y the court+ A) "n proceedings for relief from judgment% there may #e two I3L hearings% to wit) , a hearing to determine whether the judgment or order complained of should #e set aside% and 0 if the decision thereon is in the affirmati*e% a hearing on the merits of the principal case. 4o% the F"R4T B AR"&N is to determine whether the petition should #e granted or not is the petition meritorious or not( #as there $%&'( ,s there affidavit of merit( ,s the affidavit proper( ,s the petition filed "ithin the period allo"ed by the la" or not( &ow% if the petition is denied that is the end of the story. !ala na. &ow% if the petition for relief is granted% the judgment will #e set aside as if it ne*er e2isted. Then we will now try the case all o*er again as if a motion for new trial has #een filed. That is the second hearing. The 4 @>&$ B AR"&N is the trial on the merits or a trial de no*o. &ow% some#ody was commenting% ,to bang petition for relief parang appeal din( ,s this similar to appeal( The answer is &>. "n the first place% there is no appeal here. Oaya nga the judgment has #ecome final and e2ecutory #ecause there was no appeal. &ow% in an appeal% for e2ample) &atalo ka sa kaso. !hen you appeal and you win% the decision will #e o*erturned. From losing% you #ecome the winner. That is the effect of appeal. 6ut in petition for relief% you are not asking the court to change its decision. !hen a petition for relief from judgment is granted% the decision against you will #e set aside as if it was ne*er rendered and we will try the case all o*er again. "n a petition for relief% the court has no power to change its decision #ecause it has already #ecome final and e2ecutory. 6ut its power under Rule 38 is to set it aside as if it was ne*er rendered and conduct a new trial as if a motion for new trial has #een filed. 4o please do not confuse Rule 38 with the remedy of appeal.

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Rule 38 - Relief From Judgments, Orders, or Other Proceedings

#ec. >. Procedure "here the denial of an appeal is set aside. +here the de)(al of a) appeal (s set as(de$ the lo6er court shall 0e re<u(red to -(4e due course to the appeal a)d to ele4ate the record of the appealed case as (f a t(.ely a)d proper appeal had 0ee) .ade. 1>a3 This is a continuation of 4ection 3 what can #e Fuestioned in Rule 38 is not only a judgment #ut also an order% such as an order denying an appeal. () @an " file a petition for relief from the denial of an appeal+ A) A 4. () And if my petition for relief from the order denying the appeal is granted% what will happen+ A) According to 4ection 1% the court will now grant the appeal and allow the appeal to proceed as if it was filed on time. Meaning% the judgment will not #e set aside #ut " will #e gi*en the right to appeal if the failure to file an appeal as due to FAM . =o>o=

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