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LUCIANO, NOEL CHRISTIAN O.

UP LAW 2015

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TABLE OF CONTENTS

rule page
Rule 30 4 Trial
Rule 31 10 Consolidation or Severance
Rule 32 13 Trial by Commissioner
Rule 33 17 Demurrer to Evidence
Rule 34 20 Judgment on the Pleadings
Rule 35 23 Summary Judgments
Rule 36 28 Judgments, Final Orders, and Entry Thereof
Rule 37 37 New Trial or Reconsideration
Rule 38 44 Relief From Judgments, Orders, or Other Proceedings
Rule 39 50 Execution, Satisfaction, and Effect of Judgments
APPEALS
Rule 40 89 Appeal from Municipal Trial Courts to the Regional Trial Court
Rule 41 94 Appeal from the Regional Trial Courts
Rule 42 107 Petition for Review from the Regional Trial Courts to the Court of Appeals
Rule 43 111 Appeals from Quasi-Judicial Agency to the Court of Appeals
PROCEDURE IN THE COURT OF APPEALS
Rule 44 116 Ordinary Appealed Cases
Rule 45 120 Appeal by Certiorari to the Supreme Court
Rule 46 127 Original Cases
Rule 47 130 Annulment of Judgments or Final Orders and Resolutions
Rule 48 135 Preliminary Conference
Rule 49 136 Oral Argument
Rule 50 137 Dismissal of Appeal
Rule 51 140 Judgment
Rule 52 144 Motion for Reconsideration
Rule 53 145 New Trial
Rule 54 146 Internal Business
Rule 55 147 Publication of Judgments and Final Resolution
PROCEDURE IN THE SUPREME COURT
Rule 56 148 Original and Appealed Cases

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NOTE: As a matter of procedural due process, it is now required that
RULE 30 parties should receive notice at least 5 days before the scheduled
TRIAL date

Trial is the judicial process of investigating and determining the legal SECTION 2 Adjournments and postponements. A court may
controversies, starting with the production of evidence by the adjourn a trial from day to day, and to any stated time, as the
plaintiff and ending with his closing arguments. expeditious and convenient transaction of business may require,
but shall have no power to adjourn a trial for a longer period than
GENERAL RULE: When an issue exists, trial is necessary. Decision one month for each adjournment, nor more than three months in
should not be made without trial. all, except when authorized in writing by the Court Administrator,
Supreme Court. (3a, R22)
EXCEPTIONS: When there may be judgment without trial
1. Judgment on the pleading (Rule 34) GENERAL RULE: A court may adjourn a trial from day to day, and to
2. Summary Judgment (Rule 35) any stated time, as the expeditious and convenient transaction of
3. Judgment on Compromise business may require
4. Judgment on Confession
5. Dismissal with Prejudice (Rule 17) LIMITATION: The court has no power to adjourn a trial for:
6. Judgment under Rule on Summary Procedure, and 1. A period longer than one month for each adjournment; or
7. Stipulation of fact 2. More than 3 months in all

EXCEPTION: Unless authorized in writing by the Court


SECTION 1 Notice of trial. Upon entry of a case in the trial Administrator, SC
calendar, the clerk shall notify the parties of the date of its trial in
such manner as shall ensure his receipt of that notice at least five See Admin Circular No. 3-99, January 15, 1999 Strict Observance of
(5) days before such date. (2a, R22) Session Hours of Trial Courts and Effective Management of Cases to
Ensure their Speedy Disposition
Relevant guidelines on trial:
Breakdown of Provision
1. Not more than 4 cases shall be scheduled for trial daily
A. Upon entry of a case in the trial calendar:
a. UNLESS the docket of the court requires otherwise
1. Clerk shall notify the parties of the date of its trial
2. Presiding Judge shall make arrangements with the
a. In such manner as to ensure his receipt of that
prosecutor and the PAO so that a relief prosecutor and
notice
PAO attorney are always available in case the regular
b. At least 5 days before such date
prosecutor or PAO attorneys are absent
3. Contingency measures must be taken for any unexpected
Trial a judicial investigation and determination of the issues
absence of stenographer and other support staff
between the parties to an action, whether they are issues of law or
4. Issuance and service of subpoena shall be done in
fact before a court has jurisdiction over the cause
accordance with Admin Circ. No. 4, 22 Sep. 1998
- Trial is governed by established procedures and court
5. Judge shall conduct trial:
rules, and usually involves offering of testimony or
a. With utmost dispatch
evidence
b. With judicious exercise of the courts power to
control trial proceedings to avoid delay
Hearing v. Trial note that they are not synonymous
6. Judge must take notes of material and relevant testimonies
a. Trial may refer to the reception of evidence and other
of witnesses to facilitate decision-making
processes
7. Trial shall be terminated within 90 days from initial
It embraces the period for introduction of evidence
hearing
by both parties
a. Appropriate disciplinary sanctions may be imposed
b. Hearing is not confined to trial but embraces the several
on judge and lawyers for failure to comply due to
stages of litigation, including the pre-trial stage
causes attributable to them
Does not necessarily mean presentation of evidence
8. Each party is bound to complete the presentation of his
Does not imply the presentation of oral or evidence within the trial dates assigned to him
documentary evidence in court a. After lapse of said dates, the party is deemed to have
But that the parties are afforded the opportunity to completed the presentation of evidence
be heard in court b. However, upon verified motion based on compelling
reasons, judge may allow a party additional trial
When Case is Ready for Trial dates in the afternoon
- A case is ready for trial when the issues are joined (1) Provided that said extension will not go beyond
The issues are joined when all the parties have placed the 3-month limit computed from the first trial
their respective theories and the terms of the dispute date
are placed before the court (a) Except when authorized by the Court
- A case is ready for trial after the termination of pre-trial Administrator, SC
A case is ready for pre-trial after the last pleading has
been filed Personal Use of Court Premises as Residence Prohibited
- Where no answer has yet been filed on an admitted third- - What is involved is the delirious effect of the courts
party complaint, trial is premature (Principe v. Eria) reputation to the public
- Such behavior betrays lack of judicial decorum which
diminishes the image of the court of justice

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- Violative of Admin Circ. No. 3-92, August 31,1992 which Requisites of Motion to Postpone Trial for Illness of Party or Counsel
prohibits all judges and court personnel the use of the 1. A motion for postponement stating the ground relied upon
court premises not directly related to the functions and must be filed; and
operations of the courts of justice 2. The motion must be supported by an affidavit or sworn
certification showing:
The court is not unaware of the heavy caseload of judges a. The presence of such party or counsel at the trial is
- Court has been sympathetic to requests for extension of indispensable; and
time b. That the character of his illness is such as to render
- All that a judge really needs to do is to ask, a request which his non-attendance excusable
is almost invariably granted
- Note however Rule 3.05 of Canon 3, Code of Judicial Note: Postponements are addressed to the sound discretion of the
Conduct requiring the disposition of court business court in the absence of grave abuse of discretion. It cannot be
promptly and of pending cases of incidents within the controlled by mandamus. (Olsen v. Fressel & Co.)
period fixed therefor
Postponements may be granted only upon meritorious grounds
- Motions for postponement are addressed to the sound
SECTION 3 - Requisites of motion to postpone trial for absence of discretion of the courts, and discretion must be exercised
evidence.A motion to postpone a trial on the ground of absence wisely
of evidence can be granted only upon affidavit showing the - In considering motions for postponement two things must
materiality or relevancy of such evidence, and that due diligence be considered:
has been used to procure it. But if the adverse party admits the 1. The reason for the postponement; and
facts to be given in evidence, even if he objects or reserves the 2. The merits of the case of the movant
right to their admissibility, the trial shall not be postponed. (4a,
R22) A mere medical certificate is generally insufficient
- It must be under oath or in the form of an affidavit
Where a party wishes to have a trial postponed because of his - However, it has been held that even if the motion to
inability to secure the attendance of a witness or to produce other postpone on account of illness was not accompanied by a
kind of evidence, he may do so by AFFIDAVIT showing: medical certificate, since not every ailment is attended to
1. That the evidence is relevant; and by a physician and the required medical certificate under
2. That diligent efforts had been exerted to procure the oath could not be obtained within a limited time, such
evidence requirement may be dispensed with in the interest of
justice (Sarmiento v. Juan)e
If the court is persuaded by the affidavit, it may grant the
postponement
- The opponent may avoid the postponement by: SECTION 5 - Order of trial.Subject to the provisions of section 2
ADMITTING the facts sought to be proven by the of Rule 31, and unless the court for special reasons otherwise
absent evidence directs, the trial shall be limited to the issues stated in the pre-
a. Even if subject to objection as to admissibility trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his
A mere admission that the absent evidence be considered as actually complaint;
given on trial is not sufficient ground to deny postponement (b) The defendant shall then adduce evidence in support of
- Reason: a submission of an agreed statement as to what a his defense, counterclaim, cross-claim and third-party
witness who is not actually examined in court would say if complaint;
called on to testify, deprives the court of the benefit of (c) The third-party defendant, if any, shall adduce evidence
reflections upon the intelligence and veracity of the of his defense, counterclaim, cross-claim and fourth-
witness party complaint;
Such can only arise from the process of examination (d) The fourth-party, and so forth, if any, shall adduce
and cross-examination in court evidence of the material facts pleaded by them;
Where witnesses testifying to the contrary of such a (e) The parties against whom any counterclaim or cross-
statement are actually examined in court and trial claim has been pleaded, shall adduce evidence in
judge accepts the facts as testified to by them, such support of their defense, in the order to be prescribed
finding cannot be reversed by reason of the supposed by the court;
force of such agreed statements (f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and in
Notes: the furtherance of justice, permits them to adduce
- If the absent evidence would not change the result of the evidence upon their original case; and
case, it has been held that continuance should be denied (g) Upon admission of the evidence, the case shall be
- Failure to comply with 3-day notice of motion as required deemed submitted for decision, unless the court directs
by Rule 15 is a valid ground to deny the motion for the parties to argue or to submit their respective
postponement of pre-trial (Corpus v. Corpus) memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth.
having separate defenses appear by different counsel, the court
SECTION 4 - Requisites of motion to postpone trial for illness of shall determine the relative order of presentation of their
party or counsel.A motion to postpone a trial on the ground of evidence. (1a, R30)
illness of a party or counsel may be granted if it appears upon
affidavit or sworn certification that the presence of such party or See Flowchart under NOTES section
counsel at the trial is indispensable and that the character of his
illness is such as to render his non-attendance excusable.

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GENERAL RULE: The trial shall be limited to the issues stated in the But it is competent for the judge to allow a party who
pre-trial order has closed his case to introduce further evidence in
Subject to Sec. 2, Rule 31, and rebuttal
Unless the court for special reasons otherwise directs a. This rule depends on the circumstances of each
case and falls within sound discretion of judge
All trials upon the merits shall be conducted: - The judges rule that the presentation of additional
1. In open court; and evidence could not be allowed after a party had finished
2. So far as convenient in a regular courtroom presenting his direct evidence is not absolute
If, after hearing all evidence adduced, judge is not
All other acts of proceedings may be done or conducted by satisfied, he may, in the exercise of his sound
a judge in chambers, without the attendance of the clerk or discretion, on his own motion, and in furtherance of
other court officials justice, call additional witnesses or recall some or the
same witnesses, for further questioning, in order to
Par. (g) declares, for purposes of fixing the date of submission of the satisfy his mind
case for decision vis--vis the constitutional period for deciding the Note that the opening of the case for the reception of
same, that it shall be upon the admission of evidence of the parties further evidence, before any judgment has been
- If the trial court allows oral argument or submission of entered, is not granting of a new trial
memoranda, period shall be correspondingly extended Note also that the filing of memoranda is optional
after such proceedings have been conducted or such a. The court in Anama v. CA, citing Sps. Montecer
memoranda submitted v. CA, held that the court may not dismiss the
- Since there is a possibility that memoranda may not be appeal solely on the basis of the partys failure to
received in court simultaneously, the court should specify file his memorandum
in advance or declare after actual submission of b. Non-submission of memoranda is not part of the
memoranda or further pleadings the date when the case is trial nor is the memorandum itself essential,
deemed submitted for decision much less indispensable
c. It is merely intended to aid the court in the
Reverse Order of Trial in this situation, the defendant presents rendition of its decision
evidence ahead of the plaintiff

When Proper: If the defendant in his answer relies upon an SECTION 6 - Agreed statement of factsThe parties to any action
affirmative defense may agree, in writing, upon the facts involved in the litigation, and
- Where the answer of the defendant admitted the submit the case for judgment on the facts agreed upon, without
obligation stated in the complaint, although special the introduction of evidence.
defenses were pleaded, the plaintiff has every right to If the parties agree only on some of the facts in issue, the
insist that it was for the defendant to come forward with trial shall be held as to the disputed facts in such order as the
evidence to support his special defenses (Yu v. Mapayo) court shall prescribe. (2a, R30)

Ratio: Plaintiff need not have to present evidence since judicial Breakdown of Provision
admissions do not require proof (Sec. 2, Rule 129) A. The parties may agree in writing upon the facts involved in
the litigation
Presentation of Additional Evidence 1. And submit the case for judgment in the facts agreed
- After the parties have produced their respective direct upon
proofs, they are allowed to offer rebutting evidence only a. Without the introduction of evidence
But the court, for good reasons, in the furtherance o B. If the parties agree only on some of the facts in issue:
justice, may permit them to offer evidence upon their 1. Trial shall be held
original case a. As to the disputed facts
Generally, additional evidence is allowed: b. In such order as the court shall prescribe
1. When it is newly discovered, or
2. Where it has been omitted through inadvertence This section describes the Stipulation of Facts (SOF)
or mistake, or where the purpose of the evidence - Among the purposes of a pre-trial
is to correct evidence previously offered - Under the Rules:
- To allow a party to reserve certain evidence and to present 1. It must be in writing
additional proofs is purely discretionary 2. But it may also be made verbally in open court
It will not be overruled, where it appears that:
1. There was no abuse of discretion, Note: If NO EVIDENCE IS PRESENTED and the case is submitted for
2. Nor any substantial right prejudiced decision on an agreement of the parties
- The prosecution shall not be permitted to introduce a part - The court should render judgment in accordance with said
of its proof and after defendant has introduced his, to take agreement
the defendant by surprise by introducing further proof - Court cannot impose upon the parties a judgment different
If, however, the defendant in presenting his defense from their compromise agreement
should present some proof which, upon its face, However, the compromise agreement must not be
tended to contradict the proof presented by contrary to law, morals, good customs, public order,
prosecution, then the prosecution should be and public policy (Phil Bank of Comm. V. Echiverii)
permitted to rebut such proof
- The orderly course of proceedings requires that
prosecution shall go forward and present all of its proof in
the first instance

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Stipulation of Facts in Civil Cases and Criminal Cases 2. The reception shall be made only by the clerk of that court
who is a member of the bar
SOF in Civil Cases SOF in Criminal Cases 3. Said clerk shall have no power:
May be signed by the counsel Must be signed by both counsel a. To rule on objections to any questions; or
alone who has an SPA and accused b. To rule on admission of evidence or exhibits
May be made verbally or in Strict; it must always be in 4. The clerk shall submit his report and transcripts of the
writing writing proceedings
a. Together with the objections to be resolved by the
Parties are bound by the SOF court
- Stipulations in a case are agreements or admission b. Within 10 days from termination of hearing
regarding certain facts included in the litigation and are
conclusive between the parties Note: The delegation authorized under this rule should be
- Acts or facts admitted do not require proof and cannot be distinguished from the Trial by Commissioner under Rule 32
contradicted - Under Rule 32, a commissioner may rule upon the
UNLESS it be shown that the admission was made admissibility of evidence
through a palpable mistake Unless otherwise provided in the order of reference
A party to a SOF may withdraw from the agreement
made ONLY BY LEAVE OF COURT upon cause shown

Limitations END OF RULE 30


- Stipulation of Facts are not permitted in actions for
annulment of marriage and for legal separation (Art. 48,
FC and Art. 60, FC)
- Counsel cannot stipulate on what their respective evidence
consists of and ask that judgment be rendered on the basis
of such stipulation (Arzadon v. Arzadon)

SECTION 7 - Statement of judge.During the hearing or trial of a


case any statement made by the judge with reference to the case,
or to any of the parties, witnesses or counsel, shall be made of
record in the stenographic notes. (3a, R30)

SECTION 8 - Suspension of actions.The suspension of actions


shall be governed by the provisions of the Civil Code. (n)

Under Art. 2030, CC: Every civil action or proceeding shall be


suspended:
1. If willingness to discuss a possible compromise is
expressed by one or both parties; or
2. If it appears that one of the parties, before the
commencement of the action or proceeding, offered to
discuss a possible compromise but the other party refused
the offer

SECTION 9 - Judge to receive evidence; delegation to clerk of


court.The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the parties.
However, in default or ex parte hearings, and in any case where
the parties agree in writing, the court may delegate the reception
of evidence to its clerk of court who is a member of the bar. The
clerk of court shall have no power to rule on objections to any
question or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the
transcripts within ten (10) days from termination of the hearing.
(n)

GENERAL RULE: The judge shall personally receive and resolve the
evidence to be adduced by the parties

HOWEVER: The reception of such evidence may be delegated under


the following conditions:
1. The delegation may be made only in:
a. Defaults or ex-parte hearings, and
b. In any case where the parties agree in writing

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NOTES ON RULE 30

ORDER OF TRIAL

Plaintiff presents evidence

Defendant presents evidence to


support his defense/ Defendant files
counterclaim/ cross-claim/ third- Demurrer to evidence
party complaint

Third party defendant presents If court If court


evidence, if any GRANTS: DENIES:
Renders Continues with
dismissal hearing

Parties against whom a


counterclaim or cross-claim is
pleaded presents evidence in their
defense

Rebuttal evidence by parties

After presentation of evidence:


(1) Oral arguments
DECISION (2) Submission of memoranda

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NOTES ON RULE 30

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Note:
RULE 31 - Consolidation of cases on appeal and assigned to different
CONSOLIDATION OR SEVERANCE divisions of the SC and CA is also authorized
- The consolidation of civil with criminal cases is allowed
This is now sanctioned under Sec. 2(a), Rule 111 of
Consolidation involves several actions having a common question the Rules of Criminal Procedure
of law or fact which may be jointly tried
Sec. 1, Rule 31 on consolidation or severance of hearings grants
Severance contemplates a single action having a number of claims, discretion to the trial court
counterclaims, cross-claims, third-party complaints or issues which - Hence, mandamus cannot lie
may be separately tried
Discussion on Jurisprudence

It has been held in PAL and Far Eastern Air Transport v. Teodoro,
SECTION 1 Consolidation.When actions involving a common
etc. and Capitol Subdivision Inc. that Sec. 1, Rule 31 must be
question of law or fact are pending before the court, it may order
understood to refer to the consolidation of the hearing of 2 or more
a joint hearing or trial of any or all the matters in issue in the
cases which are before the same judge
actions; it may order all the actions consolidated; and it may make
- Not when the cases are pending before different courts or
such orders concerning proceedings therein as may tend to avoid
different branches of the same court
unnecessary costs or delay. (1)
However, the PAL holding has been relaxed in subsequent cases:
Breakdown of Provision
1. Delta Motor Sales Corp. v. Mangosing
A. When actions involving a common question of law or fact
a. The first action was filed in Manila versus Delta for
are pending before the court, the court may:
damages; the second was filed by Delta in Pasig for
1. Order a joint hearing or trial of any or all matters in
rescission
issue in the actions
b. This in effect is a counterclaim to the Manila case. In
2. Order all actions consolidated
the interest of justice and to avoid conflicting
3. Such orders concerning proceedings therein as may
decisions, the cases should be consolidated in Manila
tend to avoid unnecessary costs or delay
c. Note that in PAL, the plaintiffs are different; in Delta,
parties are the same and both cases have not
GENERAL RULE: Consolidation is discretionary upon the court
commenced
2. Superlines Transportation Co. v. Victor
EXCEPTIONS: Consolidation becomes a matter of duty when the
a. Vehicular collision; action between 2 buses filed in
cases are:
Gumaca while the victims of both buses field an
1. Pending before the same judge; OR
action for damages in Cavite
2. Filed with different branches of the same RTC and one of
b. Cases were consolidated in Cavite which is a more
such cases has NOT been partially tried
pragmatic solution than intervention by the victims in
the Gumaca case.
Purpose to avoid multiplicity of suits, guard against oppression or
c. Court took into consideration the fact that the victims
abuse, prevent delay, clear congested dockets, simplify the work of
were all residents of Cavite and will be unnecessarily
the trial court and save unnecessary costs and expenses
exposed to expenses if forced to litigate in Quezon,
considering also that no such prejudice would befall
Requisites for Consolidation
the bus companies
1. Actions which involve a common question of law or fact;
3. Vallacar Transit, Inc. v. Yap
and
a. Two separate cases of damages from the same
2. There must be at least 2 actions pending before the same
vehicular accident
court
b. Court held that the Misamis Occidental case should be
consolidated to the Agusan del Sur case, the latter
Note: if filed with different courts, an authorization from the SC
already pending before the filing of the Misamis case
is necessary
Test of Propriety - It has been held that the rules do not distinguish
Three Ways of Consolidating Cases -- Where the questions at issue
between cases filed before the same branch or judge and those that
and the parties in interest are the same, consolidation may consist
are pending in different branches or before different judges of the
of:
same court, in order that consolidation may be proper, as long as the
1. Recasting the cases already instituted and conducting only
cases involve the resolution of questions of law or facts in common
one hearing and rendering only one decision
with each other (Active Woods Products Co. Inc. v. CA)
Reshaping of the cases by amending the pleading and
dismissing some cases and retaining only one case
There must be joinder of causes of action and of
SECTION 2 - Separate trials.The court, in furtherance of
parties
convenience or to avoid prejudice, may order a separate trial of
2. Consolidating the existing cases and holding only one
any claim, cross-claim, counterclaim, or third-party complaint, or
hearing and rendering only one decision
of any separate issue or of any number of claims, cross-claims,
It is a joint trial with joint decision, the cases counterclaims, third-party complaint or issues. (2a)
retaining their original docket numbers
3. By hearing only the principal case and suspending the
When separate trial of claims is conducted by the court under this
hearing on the other cases until judgment has been
section, it may render separate judgments on each claim (see Sec. 5,
rendered in the principal case
Rule 36)
The cases retain their original docket numbers

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This provision permitting separate trials presupposes that the
claims involved are within the jurisdiction of the court
- When one of the claims is not within its jurisdiction, the
same should be dismissed, so that it may be filed in the
proper court

END OF RULE 31

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NOTES ON RULE 31

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Situations when reference to Commissioner made ON MOTION:
RULE 32 1. Examination of a long account
TRIAL BY COMMISSIONER 2. Taking of an account is necessary
3. Carrying a judgment or order into effect; or
4. Question of fact, other than upon the pleading

Note: Commissioner may be appointed for by verification of identity


SECTION 1 Reference by consent.By written consent of both
of land to enforce judgment
parties, the court may order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by the parties or to
Practice of Delegation to Clerk of Court and Commissioner
be appointed by the court. As used in these Rules, the word
- Where reference to commissioner was by agreement but
commissioner includes a referee, an auditor and an examiner.
without written consent
(1a, R33)
This will not invalidate the proceedings where:
1. The issue was not raised in the trial court; and
Breakdown of Provision
2. The defect could be remedied
A. The court may order any or all of the issues in a case to be
It is a procedural point that can be waived by consent
referred to a commissioner
of parties, express or implied
1. By written consent of both parties
- No provision of law or principle of public policy prohibits a
2. To be:
court from authorizing its clerk to receive evidence of a
a. Agreed upon by the parties; or
party litigant (Gochangco v. CFI-Negros Occidental)
b. Appointed by the court
In Laluan v. Malpaya and Continental Bank v.
Commissioner a person to whom a case pending in court is Tiangco, the validity of delegation to clerk to receive
referred, for him to take testimony, hear the parties and report evidence of a party litigant against party was upheld
thereon to the court, and upon whose report, if confirmed, judgment
is rendered SECTION 3 - Order of reference; powers of the commissioner.
When a reference is made, the clerk shall forthwith furnish, the
GENERAL RULE: Trial by commissioner depends largely upon the commissioner with a copy of the order of reference. The order
discretion of the court may specify or limit the powers of the commissioner, and may
direct him to report only upon particular issues, or to do or
EXCEPTION: In the following instances, appointment of a perform particular acts, or to receive and report evidence only,
commissioner is necessary: and may fix the date for beginning and closing the hearings and
1. Expropriation (Rule 67) for the filing of his report. Subject to the specifications and
2. Partition (Rule 69) limitations stated in the order, the commissioner has and shall
3. Settlement of Estate of a Deceased Person in case of exercise the power to regulate the proceedings in every hearing
contested claims; and before him and to do all acts and take all measures necessary or
4. Submission of Accounting by executors or administrators proper for the efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces tecum, swear
Irregularity in Appointment witnesses, and unless otherwise provided in the order of
- An irregularity in the appointment of a commissioner must reference, he may rule upon the admissibility of evidence. The
be seasonably raised in the trial court where the defect trial or hearing before him shall proceed in all respects as it
could still be remedied would if held before the court. (3a, R33)
- It can be waived by consent of the parties (express or
implied) Breakdown of Provision
A. When a reference is made, the clerk shall forthwith furnish
Notes: the commissioner with a copy of the order of reference
- Consent of all parties necessary B. The order:
- Substantial compliance sufficient 1. May specify or limit the powers of the commissioner
- Reference without consent is void 2. And may:
a. Direct him to report only upon particular issues
b. Or to do or perform particular acts,
SECTION 2 - Reference ordered on motion.When the parties do c. Or to receive and report evidence only
not consent, the court may, upon the application of either or of its 3. And may fix the date
own motion) direct a reference to a commissioner in the a. For beginning and closing the hearings
following cases: b. And for the filing of his report
(a) When the trial of an issue of fact requires the C. The commissioner has and shall exercise (subject to the
examination of a long account on either side, in specifications and limitations stated in the order):
which case the commissioner may be directed to 1. To regulate the proceedings in every hearing before
hear and report upon the whole issue or any specific him; and
question involved therein; 2. To do all acts necessary or proper for the efficient
(b) When the taking of an account is necessary for the performance of his duties under the order
information of the court before judgment, or for D. He may:
carrying a judgment or order into effect; 1. Issue subpoenas and subpoenas duces tecum
(c) When a question of fact, other than upon the 2. Swear witnesses
pleadings, arises upon motion or otherwise, in any 3. Rule upon the admissibility of evidence
stage of a case, or for carrying a judgment or order a. Unless otherwise provided in the order of
into effect. (2a, R33) reference
E. The hearing before him shall proceed in all respects as it
would if held before court

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Requisites of the Order of Reference Breakdown of Provision
1. It must state the purpose A. If a party fails to appear at the time and place appointed:
2. It must be in writing; and 1. Commissioner may proceed ex parte; or
3. It may specify or limit the power of the commissioner 2. In his discretion, adjourn the proceedings to a future
day
Power of Commissioner a. Giving notice to the absent party or his counsel of
1. Exercise power to regulate the proceeding before him the adjournment
2. Do all acts and take all measures necessary or proper for
the efficient performance of his duties Note: Where the order was merely to examine the accounts involved
3. Swear witnesses in the counterclaim without any direction to hold hearings, the
4. Issue subpoena and subpoenas duces tecum commissioner do not need the presence of the parties (Froilan v.
5. Rule upon the admissibility of evidence Pan Oriental Shipping)
UNLESS otherwise provided in the order of reference

Note: Requirement of hearing cannot be dispensed with as this is the SECTION 7 - Refusal of witness.The refusal of a witness to obey
essence of due process a subpoena issued by the commissioner or to give evidence before
him, shall be deemed a contempt of the court which appointed the
A commissioner may rule upon the admissibility of evidence commissioner. (7a, R33)
- Unless otherwise provided in the order
- Note that where reception of evidence was merely Breakdown of Provision
delegated to the clerk, the clerk shall have no power to A. Refusal of witness:
rule on objections or to the admissibility of evidence (Sec. 1. To obey a subpoena issued by the commissioner
9, Rule 30) 2. Or to give evidence before him
B. Shall be deemed a contempt of the court which appointed
Note also that what Sec. 3 authorizes to be limited is the SCOPE of the commissioner
the proceedings before the commissioner, not the MODALITY
- Order of reference may direct commissioner to perform
different acts in and for the purposes of the proceedings SECTION 8 - Commissioner shall avoid delays.It is the duty of
- But, whatever may be the case, the requirement for him to the commissioner to proceed with all reasonable diligence. Either
hold a hearing cannot be dispensed with party, on notice to the parties and commissioner, may apply to the
court for an order requiring the commissioner to expedite the
proceedings and to make his report. (8a, R33)
SECTION 4 - Oath of commissioner.Before entering upon his
duties the commissioner shall be sworn to a faithful and honest Breakdown of Provision
performance thereof. (14, R33) A. It is the duty of commissioner to proceed with all reasonable
diligence
Effect of Failure to be Sworn B. Whether party may apply to the court for an order requiring
- It does not necessarily vitiate the proceedings if the parties commissioner to expedite proceedings and to make his
did not raise the question report
If they did, then the proceedings are null and void 1. Apply on notice to the parties and commissioner
(Perlas v. Erhman)

SECTION 9 - Report of commissioner.Upon the completion of


SECTION 5 - Proceedings before commissioner.Upon receipt of the trial or hearing or proceeding before the commissioner, he
the order of reference and unless otherwise provided therein, the shall file with the court his report in writing upon the matters
commissioner shall forthwith set a time and place for the first submitted to him by the order of reference. When his powers are
meeting of the parties or their counsel to be held within ten (10) not specified or limited, he shall set forth his findings of fact and
days after the date of the order of reference and shall notify the conclusions of law in his report. He shall attach thereto all.
parties or their counsel. (5a, R33) exhibits, affidavits, depositions, papers and the transcripts, if any,
of the testimonial evidence presented before him. (9a, R33)
Breakdown of Provision
A. Upon receipt of the order of reference, the commissioner: Breakdown of Provision
1. Shall forthwith set a time and place for the first A. Report of Commissioner
meeting of parties or their counsel 1. Filed upon completion of the trial or hearing or
a. To be held within 10 days after the date of the proceeding before the commissioner
order of reference 2. File with the court
2. And shall notify the parties or their counsel 3. Report in writing upon the matters submitted to him by
B. Unless otherwise provided therein the order of reference
B. When his powers are not specified or limited:
1. He shall set forth his findings of fact and conclusions of
SECTION 6 - Failure of parties to appear before commissioner.If law in his report
a party fails to appear at the time and place appointed, the C. He shall attach:
commissioner may proceed ex parte or, in his discretion, adjourn 1. All exhibits, affidavits, depositions, papers, and
the proceedings to a future day, giving notice to the absent party transcripts, if any, of testimonial evidence presented
or his counsel of the adjournment. (6a, R33) before him

14
DELEGATION TO CLERK OF Note: Failure to set commissioners report for hearing is not
TRIAL BY COMMISSIONER
COURT necessarily erroneous where parties were already granted
Commissioner need not be a opportunity to be heard (Apurillo v. Garciano)
Clerk of court must be a lawyer - Aggrieved party may file motion to recommit
lawyer
Commissioner can rule on
Clerk cannot rule on objections When the commissioner did not hold a hearing in violation of Sec 3
objections or on admissibility of
or on admissibility of evidence of this rule, it is error for the trial court to issue an order approving
evidence
Commissioner can be said commissioners report over the objection of the aggrieved party
Delegation is made during trial appointed even after the case (Jaca v. Davao Lumber Co.)
has become final and executory

SECTION 12 - Stipulations as to findings.When the parties


SECTION 10 - Notice to parties of the filing of report.Upon the stipulate that a commissioners findings of fact shall be final, only
filing of the report, the parties shall be notified by the clerk, and questions of law shall thereafter be considered. (12a, R33)
they shall be allowed ten (10) days within which to signify
grounds of objections to the findings of the report, if they so SECTION 13 - Compensation of commissioner.The court shall
desire. Objections to the report based upon grounds which were allow the commissioner such reasonable compensation as the
available to the parties during the proceedings before the circumstances of the case warrant, to be taxed as costs against the
commissioner, other than objections to the findings and defeated party, or apportioned, as justice requires. (13, R33)
conclusions therein set forth, shall not be considered by the court
unless they were made before the commissioner. (10, R33)

Breakdown of Provision END OF RULE 32


A. Upon filing of report:
1. Parties shall be notified by the clerk
2. And they shall be allowed 10 days within which to
signify grounds of objections to the findings of the
report, if they desire
B. Objections based upon grounds which were available to the
parties during the proceedings before the commissioner
1. Shall not be considered by the court:
a. Unless they were made before the commissioner
2. Other than objections to findings and conclusions
therein

Upon the filing of the report of the commissioner:


1. The parties shall be notified by the clerk; AND
2. The parties shall be allowed 10 days within which to
object to the findings of the report

Note: Objections to the report based upon grounds which were


available to the parties during the proceedings before the
commissioner shall not be considered by the court
UNLESS they were made before the commissioner

Note: Objections to reports should be specific

SECTION 11 - Hearing upon report.Upon the expiration of the


period of ten (10) days referred to in the preceding section, the
report shall be set for hearing, after which the court shall issue an
order adopting, modifying, or rejecting the report in whole or in
part, or recommitting it with instructions, or requiring the parties
to present further evidence before the commissioner or the court.
(11a, R33)

Breakdown of Provision
A. Upon expiration of the 10 day period in Sec. 10, the report
shall be set forth in hearing
B. After which, the court shall issue an order
1. Adopting, modifying, or rejecting the report in whole or
in part
2. Or recommitting it with instructions
3. Or requiring the parties to present further evidence
before the commissioner or the court

15
NOTES ON RULE 32

16
- When, admitting every proven fact favorable to the
RULE 33 plaintiff and indulging in his favor all conclusions fairly
DEMURRER TO EVIDENCE and reasonably inferable therefrom, the plaintiff has failed
to make out one or more of the material elements of his
case
- There is no evidence to support an allegation necessary to
his claim
SECTION 1 Demurrer to evidence.After the plaintiff
- Where plaintiffs evidence is prima facie insufficient for a
has completed the presentation of his evidence, the defendant
recovery
may move for dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief. If his motion is
Two Scenarios
denied, he shall have the right to present evidence. If the motion is
granted but on appeal the order of dismissal is reversed he shall
MOTION GRANTED BUT
be deemed to have waived the right to present evidence. (1a, R35) MOTION DENIED
REVERSED ON APPEAL
Movant is deemed to have
This rule allows the defendant to move for dismissal of the case after
waived his right to present
the plaintiff has presented his evidence on the ground of
evidence.
insufficiency of evidence
The decision of the appellate
Movant shall have the right to
court will be based only on the
Demurrer to Evidence a motion to dismiss based on the ground of present his evidence
evidence of the plaintiff as the
insufficiency of evidence and is presented after the plaintiff rests his
defendant loses his right to
case
have the case remanded for
reception of his evidence
Nature: There is only a one-sided trial
- It is only the plaintiff who has presented evidence Denial is INTERLOCUTORY
Order of the court is an
- It is an aid or instrument for the expeditious termination Sec. 1, Rule 36 (that judgment
ADJUDICATION ON THE
of an action, similar to a motion to dismiss, which the court should state clearly and
MERITS
may either grant or deny distinctly the facts and the law
Hence, the requirement in Sec.
on which it is based) will NOT
1, Rule 36 should be complied
Purpose To discourage prolonged litigations apply.
with
The denial is NOT appealable
Judgment on Demurrer to Evidence is a judgment rendered by the
court dismissing a case upon motion of defendant, made after No need of findings of fact where motion is DENIED
plaintiff has rested his case, on the ground that upon the facts - The requirement of Sec. 1, Rule 36 would apply if the
presented and the law on the matter, plaintiff has not shown any demurrer is granted
right to relief. In this event, there would in fact be an adjudication
on the merits of the case
Demurrer to Evidence v. Motion to Dismiss There is no more left to be done, except perhaps to
appeal
DEMURRER TO EVIDENCE MOTION TO DISMISS - However, a DENIAL is not final
Presented before a responsive It is merely interlocutory in character as it does not
It is presented after the disposed of the case
pleading is made by the
plaintiff has rested his case The defendant still has the right to present his
defendant
The ground is based on the It may be based on any of those evidence
insufficiency of evidence enumerated in Rule 16
If the motion is denied, the If the motion to dismiss is Action on the Demurrer
defendant may present his denied, the defendant may file - If the trial court disagrees, the defendants retain the right
evidence his responsive pleading to present their own evidence
If the motion to dismiss is - If the trial court grants but the appellate court disagrees
If the motion is granted, the and reversed the dismissal order:
granted, the complaint is
complaint is dismissed Defendants lose the right to present their own
dismissed and depending on
The plaintiffs remedy is to evidence
the ground, the complaint may
appeal The appellate court shall also resolve the case and
be re-filed
render judgment on the merits; it cannot remand for
It is presented AFTER the plaintiff rests his case further proceedings
- An objection by one of the parties in an action, to the effect - If the motion is sustained the case is dismissed under this
that evidence which his adversary produced is insufficient rule and such order will be an adjudication on the merits
in point of law, to make out a case or sustain the issue Hence, Sec. 1, Rule 36 must be complied with
- Note that the evidence contemplated by the rule on
demurrer is that which pertains to the MERITS of the case Difference in Civil and Criminal Cases
As such, lack of legal capacity to sue, for example, is
not a proper ground for demurrer CIVIL CASES CRIMINAL CASES
May be filed with or without
A demurrer to evidence should be sustained in the ff: leave of court.
- Where the plaintiffs evidence together with such Defendant need not ask for Leave of court is necessary so
inference and conclusions as may reasonably be drawn leave of court that the accused could present
therefrom does not warrant recovery against the his evidence if demurrer is
defendant denied

17
If the court finds the
If the court finds plaintiffs
prosecutions evidence
evidence insufficient, it will
insufficient, it will grant
grant demurrer by dismissing
demurrer by rendering
the complaint
judgment of acquittal.
The judgment of dismissal is
appealable.
If plaintiff appeals and
judgment is reversed by the
appellate court, it will decide
Judgment of acquittal is NOT
the case on the basis of
appealable.
plaintiffs evidence with the
Double jeopardy sets in.
consequence that the
defendant already loses his
right to present evidence.
There is no res judicata in
dismissal due to demurrer.
The plaintiff files a motion to
The court may motu proprio
deny motion to demurrer to
deny the motion
evidence
If court denies the demurrer
filed with leave, accused may
present his evidence.
If court denies the demurrer, If court denies the demurrer
defendant will present his filed without leave, accused can
evidence no longer present his evidence
and submits the case for
decision based on the
prosecutions evidence

END OF RULE 33

18
NOTES ON RULE 33

19
Failure of Answer to Tender an Issue
RULE 34 - Failure to comply with the requisites of a specific denial
JUDGMENT ON THE PLEADINGS under Rule 8 would in effect admit the material allegations
of the adverse partys pleading

Admission of Material Allegations


- May either be express or implied from failure to make a
SECTION 1 Judgment on the pleadings.Where an answer fails
specific denial
to tender an issue, or otherwise admits the material allegations of
the adverse partys pleading, the court may, on motion of that
Hence, judgment on the pleadings will not be proper if an answer
party, direct judgment on such pleading. However, in actions for
does in fact specifically deny the material averments of the
declaration of nullity or annulment of marriage or for legal
complaint in the manner indicated by Sec. 10, Rule 8, and/or asserts
separation, the material facts alleged in the complaint shall
affirmative defenses in accordance with Sec. 4 and 5, Rule 6.
always be proved. (1a, R19)
No Judgment on the Pleadings in Actions for:
Judgment on the Pleadings is a judgment rendered by the court if the
1. Declaration of Nullity of Marriage
answer fails to tender an issue, or otherwise admits the material
2. Annulment of marriage; and
allegations of the adverse partys pleading.
3. Legal Separation
- It is rendered without a trial, or even without a pre-trial
4. Unliquidated damages
Claims for such damages must be alleged and proved
A motion for judgment on the pleadings is one that is considered ex
5. Admission refers only to allegations of fact and not
parte because upon particular facts thus presented, the plaintiff is
conclusions of law
entitled to judgment or motu proprio under Rule 18, Sec. 2(g) (Dino
6. Insufficiency of facts
v. Valenzuela)
Proper remedy is amendment
A judgment on the pleadings must be on motion of claimant
Motion to Dismiss v. Motion for Judgment on the Pleadings
- HOWEVER, if at pre-trial the court finds that a judgment
on the pleadings is proper, it may render such judgment
motu proprio (Sec. 2(g), Rule 18) MOTION FOR JUDGMENT ON
MOTION TO DISMISS
THE PLEADINGS
Motion for Judgment on Pleadings may be Ex-Parte Filed by a defendant to a
Filed by the plaintiff if the
- Sec. 1 states that where an answer admits the material complaint, counterclaim, cross-
answer fails to tender an issue
allegations of the adverse partys pleading, the court may, claim, or 3rd party complaint
on motion of that party, direct judgment on such pleadings
It does not state, however, whether the motion for Note: If the complaint states no cause of action, a motion to dismiss
judgment on the pleadings may be considered ex should be filed and not a motion for judgment on the pleadings.
parte or only after notice of hearing served on the
adverse party Summary Judgment v. Motion for Judgment on the Pleadings
- It has been held that a motion for a judgment on the
pleadings, were the answer admits all material averments, MOTION FOR JUDGMENT ON
SUMMARY JUDGMENT
is one that may be considered ex parte because upon the THE PLEADINGS
particular facts thus presented and laid down before the Proper when it appears that
Proper even if there is an issue
court, the plaintiff is entitled to a judgment (Dino v. there is no genuine issue
as to damages recoverable
Valencia), or motu proprio under Rule 18(2g) (Luzon Dev. between the parties
Bank v. Conquilla) Based not only on the
pleadings but also upon
Note: One who prays for judgment on the pleadings without offering affidavits, depositions, Based exclusively upon the
proof as to the truth of his own allegations and without giving the admissions of the parties pleadings without introduction
opposing party an opportunity to introduce evidence, must be showing that, except as to of evidence
understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS amount of damages, there is no
of the opposing party and to rest his motion for judgment on those genuine issue
allegations taken together with such of his own as are admitted in Proper only in actions to
Available in any action, except
the pleadings (Paleasantos v. How Suy Chiing) recover debt, or for a
for declaration of nullity,
liquidated sum of money, or for
annulment, legal separation
Allegations NOT deemed admitted by Filing of Judgment on declaratory relief
Pleadings: Subject only to the 3-day notice
1. Irrelevant allegations rule (Sec. 4, Rule 15)
2. Immaterial allegations; and Requires the 10-day notice And where all material
3. Allegations of damages in the complaint rule (Sec. 3, Rule 35) averments are admitted, such
motion may even be made ex
Grounds of Judgment on the Pleadings parte
1. The answer fails to tender an issue because of:
a. General denial of the material allegations of the Judgments by Default Judgments on the pleadings and summary
complaint; judgments are also to be distinguished from judgments by default
b. Insufficient denial of the material allegations of the In default judgment:
complaint; OR a. Genuine issues of fact and/or law are normally involved
2. The answer admits material allegations of the adverse b. Evidence must be introduced on the material allegations
partys pleading 1. Albeit ex parte
2. Except in cases covered by summary procedure

20
c. All cases may be subject to judgments by default
1. Except those for annulment, declaration of nullity, or
legal separation
d. Motions for default judgment may be filed ex parte
1. Except under the rule on summary procedure,
wherein upon failure of defendant to answer, court,
motu proprio or on plaintiffs motion, renders
judgment

Illustrative Cases
1. Galofa v. Nee Bon Sing Denial is a negative pregnant,
judgment on the pleadings held proper
2. D.D. Comendador Construction Corp v. Sayo Judgment
on the pleadings was proper where the obligation is not
denied but merely alleged that payment was subject to
certain conditions, but belied by the terms of the
document evidencing the transaction
3. Dino v. Valencia Judgment on the pleadings was proper
where the cause of action was based on an Affidavit or
Memorandum of Quitclaim, properly alleged, defendant
deemed to have admitted the genuineness of the document
for failure to deny the same under oath
4. PNB v. Utility Assurance & Surety Co., Inc. Judgment on
the pleadings was proper where the lack of knowledge of
information cannot be deemed to have denied the
allegations of the amended complaint to the execution of
the surety bond which was peculiarly within the
knowledge of the defendant being the issuer
a. Manufacturers Bank & Trust Co. v. Diversified
Industries, Inc. Denials consisting of avowed lack of
knowledge of facts which could not be clearly known
to defendants or ought to be or could easily have been
known by them are sham denials

END OF RULE 34

21
NOTES ON RULE 34

22
3. ADMISSIONS of the adverse party under Rule 26; and
RULE 35 4. ANSWERS to interrogatories under Rule 25
SUMMARY JUDGMENTS
All intended to show that:
a. There is no genuine issue as to any material fact,
except damages which must always be proved; and
Summary Judgment is a judgment rendered by a court without trial
b. The movant is entitled to a judgment as a matter of
if it is clear that there exists NO GENUINE ISSUE or controversy as to
law
any material fact, EXCEPT as to the amount of damages

Genuine Issue is an issue of fact which calls for the presentation of SECTION 1 Summary judgment for claimant.A party seeking
evidence as distinguished from an issue, which is a sham, fictitious, to recover upon a claim, counterclaim, or cross-claim or to obtain
contrived, and patently unsubstantial so as not to constitute a a declaratory relief may, at any time after the pleading in answer
genuine issue for trial thereto has been served, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor
Compare: upon all or any part thereof. (1a, R34)

SUMMARY JUDGMENT ON JUDGMENT BY Test: Whether or not the pleadings, affidavits and exhibits in support
JUDGMENT THE PLEADINGS DEFAULT of the motion are sufficient to overcome the opposing papers and to
justify the finding that, as a matter of law, there is no defense to the
Based on the Based on the
action or claim is clearly meritorious (Estrada v. Consolocaion, et
pleadings, complaint and
Based solely on the al.)
depositions, evidence, if
pleadings
admissions, and presentation is
Object of Summary Judgment
affidavits required
- The procedure may be availed of by claimants and
Generally available
defendants who may be the object of unfounded claims
Available to both only to the plaintiff,
Available to - Assumes that the pleadings need not be tried because:
plaintiff and unless the defendant
plaintiff 1. They are so patently unsubstantial as not to be
defendant presents a
genuine issues, or
counterclaim
2. That there is no genuine issue as to any material fact,
There is no
3. Or where the facts appear undisputed and certain
genuine issue The answer fails to
from the pleadings, depositions, admissions, and
between the tender an issue or No issue as no
affidavits
parties there is an answer is filed by
i.e. There may be admission of the defending party
When Rendered
issues but these material allegations
- Summary judgment can be rendered where there is no
are irrelevant
genuine issue of fact and movant is entitled to a judgment
10-day notice 3-day notice 3-day notice rule as a matter of law
required required applies - Plaintiff can move for summary judgment at any time
May be after the pleading in answer thereto
interlocutory or on On the merits On the merits This means at any stage of the litigation
the merits
Whenever it becomes evident at any stage of the
Available only in litigation that no triable issue exists or that defenses
Available in any Available in any
actions to recover raised are sham or frivolous, plaintiff may move for
action except action except
a debt, or for a summary judgment (Republic v. Sandiganbayan)
annulment of annulment of
liquidated sum of
marriage, or legal marriage, or legal
money or for On the Necessity of Hearing
separation cases separation cases
declaratory relief - Upon motion, the court is expected to act chiefly on the
If filed by plaintiff, basis of affidavits, depositions, admissions submitted by
it must be filed at the movant and those of the other party in opposition
any time after an - The hearing contemplated (with 10-day notice) is for the
answer is served. purpose of determining whether the issues are genuine or
There is already an There is no answer
If filed by not
answer filed filed
defendant, may be It is not to receive evidence on the issues set up in the
filed at any time pleadings
even before there
Note that the matter may be resolved usually on the
is answer
basis of affidavits, admissions, depositions
But that is not to say that a hearing is a superfluity;
Notes:
the Court has plenary discretion to determine the
- An action for annulment of marriage cannot be decided by
necessity therefor
summary judgment proceeding
- However, summary judgments are made specifically
Note: Summary judgment is improper where there is a genuine issue
applicable to a special civil action for declaratory relief
(Rule 63) Proceedings and Burden of Proof
- Burden of proof is upon the plaintiff to prove the cause of
Bases of Summary Judgment
action and to show that the defense is interposed solely for
1. AFFIDAVITS made on personal knowledge
the purpose of delay
2. DEPOSITIONS of the adverse party or a third party under
Rule 23

23
- After plaintiff discharges such burden, the burden shifts to Note: The motion must also satisfy the requirements under Rule 15
the defendant to show facts sufficient to entitle him to
defend Summary judgment is only proper when there is clearly no genuine
- To resolve this query, pleadings and documents on file are issue as to any material fact in the action, and if there is any question
both indispensable and decisive or controversy upon any question of fact, there should be trial on the
- The sine qua non of such an adjudicative recourse is merits.
spelled out thus:
After hearing, judgment sought shall be rendered Genuine Issue is meant an issue of fact which calls for the
forthwith if pleadings, depositions, admissions on file presentation of evidence
together with affidavits, show that, except as to - As distinguished from an issue which is fictitious and
amount of damages, there is no genuine issue as to contrived, set up in bad faith and patently unsubstantial so
any material fact, and that movant is entitled to as not to constitute a genuine issue for trial
judgment as a matter of law - Court can determine this on the basis of the pleadings and
- WON the pleadings filed tendered a genuine issue as to the admissions, documents, affidavits, and/or counter-
material facts affidavits submitted by the parties
Trial court need only to look the pleadings, - What is crucial for determination is the presence or
depositions, and affidavits submitted without going absence of a genuine issue as to any material fact
into the truth or falsity of such
- Remember that trial courts have limited authority to Principles in Jurisprudence
render summary judgments 1. Where the facts pleaded by the parties are disputed or
It may only do so when there is clearly no genuine contested, proceedings for a summary judgment cannot
issue as to the material fact take place of a trial (Paz v. CA)
- Adjudication is a pure question of law that must be 2. Although an issue may be raised formally by the pleadings
appealed to the SC under Rule 45 by way of petition for but there is no genuine issue of fact, and all the facts are
review on certiorari within the judicial knowledge of the Court, summary
Appeal by notice of appeal to the CA is an erroneous judgment may be granted (Grand Farms, Inc. v. CA)
mode of appeal that must be dismissed outright 3. When the facts as pleaded appear uncontested or
undisputed, then there is no real or genuine issue or
question as to the facts, and summary judgment is called
SECTION 2 - Summary judgment for defending party.A party for (Evadel Realty and Dev. Corp. v. Sps. Antero)
against whom a claim, counterclaim or cross-claim is asserted or 4. The proper inquiry would therefore be whether the
a declaratory relief is sought may, at any time, move with affirmative defenses offered by petitioners constitute
supporting affidavits, depositions or admissions for a summary genuine issues of fact requiring a full-blown trial
judgment in his favor as to all or any part thereof. (2a, R34) (Evangelista v. Mercator Financing Corp.)

Who can file: IMPORTANT: There must be a motion for summary judgment and a
1. Plaintiff may file the motion after the answer has been hearing on said motion.
served, and therefore must wait until the issues have been - The non-observance of such procedural requirements
joined warrants the setting aside of the summary judgment
2. Defendant He can move for summary judgment at any (Cadirao, et al. v. Estenzo)
time
Procedural Steps Taken After Hearing
1. The judgment sought may forthwith be rendered if, except
SECTION 3 - Motion and proceedings thereon .The motion shall as to the amount of damages, there is no genuine issue as
be served at least ten (10) days before the time specified for the to any material fact and the moving party is entitled to a
hearing. The adverse party may serve opposing affidavits, judgment as a matter of law
depositions, or admissions at least three (3) days before the If the only issue is of law, summary judgment proper
hearing. After the hearing, the judgment sought shall be rendered A hearing on a motion to resolve the motion for
forthwith if the pleadings, supporting affidavits, depositions, and summary judgment is not necessary (Ley
admissions on file, show that, except as to the amount of damages, Construction Dev. Corp. v. Union Bank of the Phil.)
there is no genuine issue as to any material fact and that the 2. Proceed to assess damages
moving party is entitled to a judgment as a matter of law. (3a, 3. If judgment cannot be rendered on a whole case and trial
R34) is necessary:
a. Ascertain what material facts exist without
Breakdown of Provision substantial controversy and what material facts are
A. Service of motion actually and in good faith controverted
1. At least 10 days before the time specified in the hearing b. Then issue an order specifying the foregoing matters
B. Opposing party may serve opposing affidavits, depositions, c. And trial proceeds accordingly
or admissions
1. At least 3 days before the hearing Damages Must Be Proven
C. After the hearing - Damages must be proven even if not denied
1. Judgment sought shall be rendered forthwith if the - As clarified in Estrada v. Consolacion:
pleadings, supporting affidavits, depositions, and a. The real summary judgment is not only supposed to
admissions on file show: be rendered after proof of damages is presented, but
a. That there is no genuine issue as to any material should also state clearly and distinctly the facts and
fact (Except as to the amount of damages) the law on which it is based
b. And that the moving party is entitled to a b. The order of the court granting the motion for
judgment as a matter of law summary judgment was only interlocutory

24
(1) It merely directed that a hearing be conducted Validity of Summary Judgment Sec. 3, Rule 34 requires:
for the purpose of ascertaining the amount of 1. That there must be NO genuine issue as to any material
damages which may be adjudged fact, except for the amount of damages; and
(2) It is a determination of the court of a preliminary 2. That the party presenting the motion for summary
point or directing steps in the proceedings, and judgment must be entitled to a judgment as a matter of law
not a disposition on the merits
c. Upon rendering the assessment, the court shall direct
the entry forthwith of the appropriate summary SECTION 4 - Case not fully adjudicated on motion.If on motion
judgment with a statement of facts under this Rule, judgment is not rendered upon the whole case or
- In the absence of any findings of fact and conclusions of for all the reliefs sought and a trial is necessary, the court at the
law, the order granting the motion for summary judgment hearing of the motion, by examining the pleadings and the
cannot be considered a judgment evidence before it and by interrogating counsel shall ascertain
Trial court should file findings of fact and conclusion what material facts exist without substantial controversy and
of law or a memorandum opinion so as to disclose what are actually and in good faith controverted. It shall
grounds upon which the trial court reached its thereupon make an order specifying the facts that appear without
determination substantial controversy, including the extent to which the amount
of damages or other relief is not in controversy, and directing
NOTE: In summary judgment, the court should not decide an ISSUE such further proceedings in the action as are just. The facts so
OF FACT. The question presented is whether an issue of fact exists. If specified shall be deemed established, and the trial shall be
there is doubt as to such facts, and an issue of fact is joined by the conducted on the controverted facts accordingly. (4a, R34)
parties, summary judgment would be improper.
Breakdown of Provision
Burden of Proving Grounds for Summary Judgment A. If on motion, judgment is not rendered upon the whole case
- The court is not authorized to decide an issue of fact but to or for all the reliefs sought and a trial is necessary:
determine whether the pleadings and records before the 1. The court shall ascertain:
court create an issue of fact to be tried a. What material facts exist without substantial
- A party moving for summary judgment has the burden of controversy; and
demonstrating clearly the absence of any genuine issue of b. What are actually and in good faith controverted
fact or that the issue posed in the complaint is patently 2. Ascertain at the hearing of the motion
unsubstantial so as not to constitute a genuine issue for a. By examining the pleadings and evidence before it
trial b. And by interrogating counsel
Any doubt as to the existence of such issue is resolved B. It shall thereupon make an order:
against the movant 1. Specifying the facts that appear without substantial
The defending party must show that he has a controversy
plausible ground for defense to overcome the motion a. Including the extent to which amount of damages
- In ruling on a motion for summary judgment, the court or other relief is not in controversy
take the view of the evidence most favorable to the party 2. And directing such further proceedings in the action as
against whom it is directed are just
That one may surmise plaintiffs showing that C. Facts so specified shall be deemed established
defendant is unlikely to prevail upon a trial is not D. Trial shall be conducted on the controverted facts
sufficient basis accordingly
If defense relied by defendant is legally sufficient and
does not appear patently sham, motion should be Note: This authorizes rendition of partial summary judgment but
denied such is interlocutory in nature and is not a final and appealable
judgment (Guevarra v. CA)
Note: If the issue of fact is uncontested, the remedy should be
judgment on the pleadings Note: Partial summary judgment is not allowed when defendant
tenders vital issues which calls for the presentation of evidence
Failure to Deny Actionable Document
- Summary judgment is proper where there is failure to Partial Summary Judgment is NOT Appealable
deny under oath the genuineness and due execution of - Partial summary judgment is not appealable judgment
notes attached to the complaint as this is deemed to be an - Propriety of the summary judgment may be corrected only
admission of the existence and validity of the liability of on appeal or other direct review
the defendant - Any review by the appellate court of the propriety of the
- This does no however hold true with respect to the summary judgment rendered by the trial court based on
statement of accounts these pleadings would not involve an evaluation of the
In this case, it should be remanded to the lower court probative value of any evidence
for the reception of evidence as to the amount thereof It would only limit itself to the inquiry of whether the
(Kalilid Wood Industries v. IAC) law was properly applied given the facts and
supporting documents
Determination of Propriety of Summary Judgment it is the law Therefore, what would inevitably arise from such a
which determines when a summary judgment is proper review are pure questions of law, not questions of
- It declares that although the pleadings on their face appear fact
to raise issues of fact (compare with Judgment on - As such, ordinary appeal by Rule 41 is not proper
Pleadings) - But should be raised by way of a petition for review on
If it is shown by admissions, depositions, or affidavits, certiorari under Rule 45
that those issues are sham, fictitious, or not genuine,
the court shall render summary judgment

25
SECTION 5 - Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Certified true
copies of all papers or parts thereof referred to in the affidavit
shall be attached thereto or served therewith. (5a, R34)

Requisites of Affidavits
1. Should be based on personal knowledge
It should disregard hearsay
2. Set forth facts as would be admissible in evidence
Allegations of ultimate facts or mere reiteration of
pleadings is insufficient
3. Affiant is competent to testify on matters stated therein
4. Sworn or certified copies of all papers must be attached
thereto and served on the opposing party

Opposing affidavits should, however, be made


- Otherwise, a summary judgment may be rendered
- But where there are factual issues, a failure to file counter-
affidavits is not fatal (Consing v. Jamandre)

SECTION 6 - Affidavits in bad faith.Should it appear to its


satisfaction at any time that any of the affidavits presented
pursuant to this Rule are presented in bad faith, or solely for the
purpose of delay, the court shall forthwith order the offending
party or counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him
to incur, including attorneys fees. It may, after hearing, further
adjudge the offending party or counsel guilty of contempt. (6a,
R34)

Grounds: Should it appear to the courts satisfaction at any time that


any of the affidavits presented to this Rule are:
1. Presented in bad faith
2. Or solely for the purpose of delay

Sanctions
1. Pay to the other party the amount of the reasonable
expenses including attorneys fees; and
2. After hearing, adjudged offending party guilty of contempt

Notes:
- Sanctions and violations of Rule 35 shall be imposed not
only on the offending party, but also upon his counsel
- The contumacious conduct contemplated herein are in the
nature of indirect or constructive contempt
Hence, the same shall be punished only after hearing,
pursuant to Sec. 3, Rule 71

END OF RULE 35

26
NOTES ON RULE 35

27
KINDS OF JUDGMENTS
RULE 36
JUDGMENTS, FINALS ORDERS, Kinds of Judgments
1. Judgment upon compromise;
AND ENTRY THEREOF 2. Judgment upon confession
3. Judgment upon the merits
4. Clarificatory judgment
Judgment is the final consideration and determination of a court of 5. Judgment non pro tunc (Now for then)
competent jurisdiction upon the matters submitted to it in an action 6. Judgment sin perjuicio
or proceeding 7. Judgment by default (Sec. 3, Rule 9)
8. Judgment on the pleadings (Rule 34)
Parts of a Judgment 9. Summary judgment (Rule 35)
1. The opinion of the court contains the findings of facts 10. Several judgment (Sec. 4, Rule 36)
and conclusions of law 11. Separate judgment (Sec. 5, Rule 36)
2. The disposition of the case the final and actual 12. Special judgment (Sec. 11, Rule 39)
disposition of the rights litigated (the dispositive part) 13. Judgment for specific acts (Sec. 10, Rule 39)
3. Signature of the judge 14. Judgment on demurrer to evidence (Rule 33)
15. Conditional judgment
16. Final judgment
SECTION 1 Rendition of judgments and final orders. 17. Amended judgment; and
A judgment or final order determining the merits of the case shall 18. Supplemental judgment
be in writing personally and directly prepared by the judge,
stating clearly and distinctly the facts and the law on which it is
based, signed by him, and filed with the clerk of the court. (1a) Judgment Upon Compromise

Note: Sec. 1, Rule 36 applies only to final judgments. It does not It is one rendered by the court on the basis of a compromise
apply to interlocutory orders agreement entered into between the parties.

Requisites of a Valid Judgment It is covered by Art. 2028 to 2046; some provisions:


1. The court or tribunal must be clothed with authority to 1. Art. 2032 requiring approval for compromise entered into
hear and determine the matter before it; by parents, guardians, representatives, administrators and
2. The court must have jurisdiction over the parties and the executors
subject matter; 2. Art. 1878(3) provides that a 3rd person cannot bind
3. The parties must have been given an opportunity to be another to a compromise agreement unless such person
heard; has obtained an SPA for that purpose from the party to be
4. The evidence must have been considered by the tribunal in bound
deciding the case
5. It should be in writing, personally and directly prepared Judgment upon a compromise is immediately executory upon the
by the judge signing of the compromise agreement in the absence of a motion to
6. It must state clearly and distinctly the facts and the law on set aside on the ground of fraud, mistake, etc.
which it is based; and - Hence, it has the effect of res judicata
7. It should contain a dispositive part and should be signed - If motion to set aside is made and denied, appeal may be
by the judge and filed with the clerk of court taken from that order of denial (De los Reyes v. Ugarte)

May be granted even without approval of court -- The parties may


THE DECISION OF THE COURT, IN GENERAL submit to a compromise agreement at any stage of the case, even if
judgment has already become final and executory, even without
The decision of the court is the entire document prepared and approval of the court
promulgated by it, adjudicating and determining the rights of the - It cannot be annulled unless it is vitiated with error, deceit,
parties to the case. violence, or forgery of documents
- It contains:
a. Findings of facts and law Advantage of approval of court The court could render a judgment
b. Reasons and evidence to support such findings based upon a compromise and in case of breach of any of the
c. Discussion of issues leading up to its determination conditions, the party may ask the court for Execution of Judgment
- The dispositive or decretal portion or the fallo is what under Rule 39
actually constitutes the judgment or resolution of the court
In Mabale, et al. v. Apalisok et al., the SC held that to be entitled to
Conflict between dispositive and the body: appeal from a judgment on compromise, a party must not only move
General Rule: the dispositive portion controls irrespective of what to set aside the judgment but also move to set aside or annul the
appears in the body compromise agreement itself.
- Exceptions
1. Where the inevitable conclusion from the findings of Where a judgment based on compromise is sought to be enforced
fact in the opinion is so indubitable and clear as to against a person not a party thereto:
show that there was a mistake in the dispositive - He may file an original petition for certiorari to quash the
portion (Aguirre, et al. v. Aguirre, et al.) writ of execution
2. Where explicit discussion and statement of the issue - He could not move to have the compromise set aside and
is found in the body of the decision (Millare v. then appeal from the order denying his motion
Millare)

28
Since he is not a party to the compromise or the Judgment Upon the Merits
judgment therein
Petition for relief would be inadequate remedy as the It is one that is rendered after consideration of the evidence
execution was already being carried out (Jacinto v. submitted by the parties during the trial of the case.
Montesa)
Clarificatory Judgment

Judgment by Confession It is rendered to clarify an ambiguous judgment or one difficult to


comply with.
It is one rendered by the court when a party expressly agrees to the
other partys claim or acknowledges the validity of the claim against Where the judgment is difficult to execute because of ambiguity in its
him. terms, the remedy is to file a motion for clarificatory judgment and
not to assail the judgment as void.
Two Kinds of Judgment by Confession
1. Judgment by COGNOVIT ACTIONEM Judgment Non Pro Tunc
a. The defendant after service instead of entering a plea,
acknowledged and confessed that the plaintiffs cause It is a judgment intended to enter into the record the acts which had
of action was just and rightful already been done, but which do not appear in the records.
2. Judgment by CONFESSION RELICTA VERIFICATIONE - It is rendered to enter or record such judgment as had
a. After pleading and before trial, the defendant both been formerly rendered but has not been entered as thus
confessed the plaintiffs cause of action and withdrew rendered.
or abandoned his plea or other allegations, - Only function is to record, without any changes in
whereupon judgment was entered against him substance or in any material respect
without proceeding to trial
Its object is NOT the rendition of a new judgment
Note: Remedy against judgment by consent, confession, or - It only places in proper form on the record the judgment
compromise is to first file a MOTION TO SET IT ASIDE that has been previously rendered, to make it speak the
5. Then if denied, file the appropriate PETITION UNDER truth and thereby show what judicial action really was
RULE 65
It may not be availed of to correct judicial errors, such as to render a
Similarities with Judgment Upon Compromise judgment which the court ought to have rendered in the place of one
1. They stand on the same footing in the sense that they it did erroneously render
cannot be entered into by counsel without knowledge and
special authority of client Judgment Sin Perjucio
2. Both are immediately executory
a. Unless otherwise provided in the judgment, as may It may refer to a dismissal of a case without prejudice to its being re-
be prayed for and agreed upon by the parties filed. It is one which contains only the dispositive portion of the
decision and reserves the making of findings of fact and conclusions
JUDGMENT UPON of law in a subsequent judgment.
JUDGMENT BY CONFESSION
COMPROMISE
The provisions and terms are An affirmative and voluntary Conditional Judgment
settled and agreed upon by the act of the defendant himself.
parties to the action, and which The court exercises a certain It is one wherein the effectivity of which depends upon the
is entered in the record by the amount of supervision over the occurrence of non-occurrence of an event.
consent of the court entry of judgment As a general rule, judgments of such kind, conditioned
upon a contingency, are held to be null and void.
Judgment by Confession v. Judgment on Consent -- A judgment on
consent is not to be fully equated with a judgment on confession Incomplete Judgment
Qualities:
- One where the provisions and terms of which are settled It is one which leaves certain matters to be settled in a subsequent
and agreed upon by the parties to the action proceeding. There is a decision but there are still other matters to be
- It is entered in the record by the consent of the court incorporated later in such decision.
- There must be unqualified agreement among the parties to
be bound by the judgment on consent before said Discussion on Minute Resolutions and Memorandum Decisions
judgment may be entered
- The court does not have the power to supply terms, As explained in Borromeo v. CA:
provisions, or essential details not previously agreed to by - The Court disposes of the bulk of its cases by minute
parties resolutions and decrees them as final and executory:
1. Where a case is patently without merit
Judgment Note -- A promissory note wherein the maker authorizes 2. Where issues raised are factual in nature
in advance, on warrant of attorney, a confession of judgment against 3. Where decision appealed from is supported by
him in the event of non-payment of the note on its maturity substantial evidence and is in accord with the facts of
- This is void as being contrary to public policy, since the the case and applicable laws
promissor bargains away his day in court (PNB v. Manila 4. Where it is clear from the records that the petition is
Oil Refining) filed merely to forestall the early execution of
judgment and for non-compliance with rules
- Resolution denying due course or dismissing the petition
always gives the legal basis

29
- For a prompt dispatch of actions of the Court, minute parties. He must also set out in his decision the facts alleged by the
resolutions are promulgated by the Court through the contending parties which he finds to have been proven, the
Clerk, who takes charge of sending copies thereof to the conclusions deduced therefrom, and the opinion he has formed on
parties concerned the issues raised.

Note: Minute resolutions need not be signed by members of the Remedy for failure to make findings of fact: Where a judgment fails
Court nor do they require the certification of the Chief Justice to make findings of fact, the case may be remanded to the trial court
for the making of such findings
Sec. 40, BP 129 has authorized memorandum decisions, a
species of succinctly written decisions by appellate courts for Jurisprudence:
expediency, practicality, and convenience in consideration of the 1. Final orders should state the facts on which they are based
docket status of the courts. It has been held that such decisions (Yuson de Pua v. San Agustin)
comply with the constitutional mandate (Oil and Natural Gas 2. Minute orders, or those merely stating that the trial court
Commission v. CA) had resolved to grant the motion to dismiss, should be
avoided. Instead, the trial court should specify the reasons
Guidelines for the Validity of Memorandum Decisions for the dismissal so that the appellate court can readily
1. A memorandum decision, to be valid, cannot incorporate determine whether there is prima facie justification for the
the findings of fact and conclusions of law of the lower order of dismissal (Continental Bank v. Tiangco)
court only by remote reference
2. For incorporation by reference to be allowed, it must
provide direct access to the facts and law adopted PARTS AND OTHER REQUIREMENTS
This must be contained in a statement attached to the
said decision (annex it) The Parts of a Judgment are:
1. The opinion of the court contains the findings of fact and
conclusions of law
CONSTITUTIONAL REQUIREMENT 2. The disposition of the case the final and actual
disposition of the rights litigated
Under Sec. 14, Art. VIII, 1987 Constitution, no decision shall be 3. Signature of the judge
rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based. Other Requisites
1. A judgment must conform to the pleadings and the theory
NOTE: The constitutional requirement refers only to decisions of the action under which the case was tried
- This mandate is applicable only in cases submitted for A judgment going outside the issues and purporting
decision; i.e., given due course and after the filing of briefs to adjudicate something on which the parties were
or memoranda and/or other pleadings, as the case may be not heard is invalid
- It is not applicable to an order or resolution refusing due UNLESS such issues were tried with the express or
course to a petition for certiorari (Nunal v. Commission implied consent of the parties
on Audit) 2. A court cannot set itself in motion, nor has it power to
- Under the 1987 Constitution, no petition for review or decide questions except as presented by parties in their
motion for reconsideration of a decision of the court shall pleadings
be refused due course or denied without stating the legal Anything that is decided beyond them is coram non-
basis therefor judice and void
Where a court enters a judgment or awards relief
NOTE: The constitutional requirement applies only to courts of beyond the prayer of the complaint or the scope of its
record allegations the excessive relief is not merely irregular
but is void for want of jurisdiction and is open to
Only findings of facts which are necessary to support its conclusion collateral attack (Asian Transmission Corp. v.
is required Canlubang Sugar Estates)
- Judges are enjoined to make complete findings of facts in 3. A case should be decided in its totality
their decision and to scrutinize closely the legal aspects of Resolving all interlocking issues in order to render
the case in light of evidence presented justice to all concerned and to end the litigation once
- It is a requirement of due process that the parties to a and for all
litigation be informed of how it was decided, with an Conditional judgments not allowed
explanation of the factual and legal reasons
- As such, the Court has struck down as void, decisions in
careless disregard of Sec. 14, Art. VIII, of the Constitution PERIOD TO RENDER DECISION;
WHEN A CASE DEEMED SUBMITTED
Findings of Fact
- Means statements of facts and not conclusions of law Sec. 15, Art. VIII, 1987 Constitution
- Differentiate: 1. All cases or matters filed after the effectivity of the
a. In pleadings, only ultimate or essential facts need be Constitution must be decided or resolved:
pleaded, evidentiary facts being unnecessary a. Within 24 months from date of submission for the SC,
b. In judgments, not only the ultimate facts but the b. Within 12 months for all lower collegiate courts
supporting evidentiary facts must be stated (1) Unless reduced by the SC
c. Within 3 months for all other lower courts
It is not sufficient that the court or trial judge take into account the (1) Unless reduced by the SC
facts brought out in an action the circumstances of each question
raised, and the nature and conditions of the proofs furnished by the

30
2. All cases or matters shall be deemed submitted for Parties Must be Furnished Copies
decision or resolution upon the filing of last pleading, brief, - No judgment or order, final or interlocutory, has juridical
or memorandum required by the Rules or by the court existence until and unless it is set down in writing, signed,
3. Upon expiration of the corresponding period, a and promulgated
certification to this effect signed by the Chief Justice or i.e., delivered by the judge to the clerk for filing,
presiding judge shall forthwith be issued and a copy released to the parties and implementation
thereof attached to the record of the case or matter, and - Even after promulgation, it does not bind the parties until
served upon the parties. The certification shall state why a and unless notice thereof is duly served on them by any of
decision or resolution has not been rendered or issued the modes prescribed by law
within said period - Even after promulgation and even after service of notice,
4. Despite expiration of the applicable mandatory period, the the court rendering it has plenary power to recall and
court, without prejudice to such responsibility as may amend or revise it in substance or form on motion of any
have been incurred in consequence thereof, shall decide or party or even motu proprio
resolve the case or matter submitted thereto for Provided that in the case of final order or judgment,
determination, without further delay the same has not attained finality

When case deemed submitted for decision in trial court (Admin Circ. Memorandum Decision is a decision of the appellate court which
No. 28, July 3, 1989) adopts the findings and the conclusion of the trial court
- A case is considered submitted for decision upon the
admission of the evidence of the parties at the termination
of the trial
- 90-day period for deciding the case shall commence to run AMENDMENTS
from submission of the case for decision without
memoranda Note: The power to amend a judgment is inherent to the court before
In case the Court requires or allows its filing, the case judgment becomes final and executory.
shall be considered submitted for decision upon the
filing of the last memorandum or expiration of the GENERAL RULE: After judgment has become final and executory, the
period to do so, whichever is earlier court cannot amend the same.
- The court may grant extension of time to file memoranda,
but the 90 day period for deciding the case shall not be EXCEPTIONS:
interrupted thereby 1. To make corrections of clerical errors, not substantial
amendments, as by an amendment non pro tunc
2. To clarify an ambiguity which is borne out by and
RENDITION AND PROMULGATION OF JUDGMENT justifiable in the context of the decision; or
3. In judgments for support, which can always be amended
Rendition of Judgment from time to time
- The filing of the signed decision constitutes rendition
- This includes an amended decision because an amended There is a difference between an amended judgment and a
decision is a distinct and separate judgment and must supplemental judgment:
follow Sec. 1, Rule 36
AMENDED and CLARIFIED
Note: It is the filing of the signed decision with the clerk of court, and SUPPLEMENTAL JUDGMENT
JUDGMENT
not its pronouncement in open court that constitutes rendition of The court makes a thorough
judgment (Ago v. CA) study of the original judgment
If decision is sent by judge by registered mail, it is considered filed in and renders the amended and Does not take place of or
court as of the date of its receipt by the clerk, not the date of its clarified judgment only after extinguish the original decision
posting or mailing (Sec. 51, RA 296 as amended) considering all legal and
factual issues.
Promulgation refers to the process by which a decision is published, It only serves to bolster or add
officially announced, made known to the public or delivered to the Such decision is an entirely
something to the primary
clerk of court for filing, coupled with notice to the parties or their new decision
decision
counsel
- It is the delivery of a court decision to the clerk of court for See also further discussion under Sec. 2
filing and publication

See NOTES for Flowchart of Promulgation of Judgment ATTACK

Notes: A judgment must conform to the pleadings and the theory of the
1. A judge permanently transferred to another court of equal action under which the case was tried
jurisdiction (coordinate court) can render a decision on a - A judgment going outside the issues and purporting to
case in his former court which was TOTALLY HEARD by adjudicate something on which the parties were not heard
him and submitted for decision, with the parties having is invalid (Lozo, et al. v. Republic Surety & Insurance)
argued the case (Valentin v. Sta. Maria)
2. Minute resolutions of the SC denying petition to review the A judgment contrary to the express provisions of the law is
decision of the CA are not decisions within the erroneous but it is not void
requirement of Sec. 1, Rule 36 (Commercial Union Assn. - Once it becomes final and executory, it is as binding and
Co., Ltd. v. Lepanto Consolidated Mining Co.) effective as any judgment and, though erroneous, will be
enforced as a valid judgment (Mercado, et.al v. CA)

31
GENERAL RULE: The validity of a judgment or order of a court Importance of Entry
cannot be collaterally attacked. - For purposes of reckoning some reglementary period, the
period shall be counted from entry of judgment
Exceptions: - E.g. the Mittimus is the final process for carrying into effect
1. Lack of jurisdiction; and the decision of the appellate court and transmittal thereof
2. Irregularity of its entry apparent from the face of the to the court of origin is predicated upon finality of
record judgment

If the supposed nullity is based on the partys alleged lack of consent GENERAL RULE: Once a judgment becomes final and executory, such
to the compromise agreement: judgment can no longer be disturbed, altered, or modified
- The remedy is to move for its reconsideration
If motion is denied, to appeal from the judgment EXCEPTIONS:
- If the judgment has already become final and executory, to 1. Clerical errors
file a petition for relief under Rule 38 2. Nunc Pro Tunc entries
3. Void judgments - Final judgment can be annulled on the
Where the judgment is ambiguous and difficult to comply with: ground of fraud or lack of jurisdiction or contrary to law
- The remedy is to file a motion for a so-called clarificatory (Panlilio v. Garcia)
judgment (Almendras v. Del Rosario) 4. Whenever circumstances transpire after finality of the
- For said purpose, the court may resort to the pleadings decision making its execution unjust and inequitable:
filed by the parties, the findings of fact and the conclusions a. Cases where, because of supervening events, it
of law expressed in the text or body of the decision becomes imperative, in the higher interest of justice,
to direct its modification in order to harmonize the
disposition with the prevailing circumstances
SECTION 2 - Entry of judgments and final orders.If no appeal or (Seavan Carrier Inc. v. GTI Sportswear Corp.)
motion for new trial or reconsideration is filed within the time b. Whenever it is necessary to accomplish the aims of
provided in these Rules, the judgment or final order shall justice (Pascual v. Tan)
forthwith be entered by the clerk in the book of entries of
judgments. The date of finality of the judgment or final order shall Rules on Amendment of Judgments
be deemed to be the date of its entry. The record shall contain the 1. Rule on Power to Amend BEFORE Finality
dispositive part of the judgment or final order and shall be signed The power to amend a judgment is inherent before
by the clerk, with a certificate that such judgment or final order the judgment becomes final and executory
has become final and executory. (2a, 10, R51). 2. Rule on Power to Amend AFTER Finality
After judgment becomes final by expiration of the
Breakdown of Provision: time to appeal, no further amendment or correction
1. If no appeal or motion for new trial or reconsideration is can be made by the Court
filed within the time provided in the Rules (1) EXCEPT: for clerical errors or mistakes
a. Judgment or final order shall forthwith be entered by
the clerk in the book of entries of judgments Clerical Errors or Mistakes or Omissions
2. Date of finality of judgment or final order is the date of its - Errors in Judgment:
entry 1. Judicial not open to correction on motion in the
3. The record shall: court which made it
a. Contain the dispositive part of the judgment or final 2. Clerical may be corrected any time on application in
order the court where it occurred
b. Signed by the clerk - Test: Whether the mistake relates to something the court
(1) With a certificate that such judgment or final did not consider and pass on, or considered and
order has become final and executory erroneously decided, or whether there was failure to
preserve or correctly represent in record, in all respects,
The date of finality of the judgment or final order shall be deemed to the actual decision of the court
be the date of its entry. - clerical error employed in a broad sense to cover all
- The judgment is the pronouncement of the court errors, mistakes, or omissions which are not the result of
And the entry in the docket is merely the evidence of the exercise of judicial functions
the judgment and not the judgment itself
- The date of finality of a decision is entirely distinct from Limitations on Power to Amend
the date of its entry and the delay in the latter does not - The prerogative of the court to amend their decisions is
affect effectivity of the former as such is counted from the not absolute
expiration of the period of appeal - The rules do not contemplate amendments that are
- Date of finality is date indicated in the entry, not the date substantial in nature
the entry was made - They merely cover formal changes that will not affect the
- Even without entry, judgment becomes final crux of the decision
- Principles laid down by the court in IBAA Employees
Note: Entry of judgment or final order assumes importance in Union v. Inciong:
reckoning some reglementary periods, such as: 1. Neither the Constitution nor the statutes, except
1. The 5-year period for execution by motion (Sec. 6, Rule penal laws favorable to the accused, have retroactive
39); or effect in the sense of annulling or modifying vested
2. The 6-month period for petition for relief (Sec. 3, Rule 38) rights, or altering contractual obligations
2. Not even a law can validly annul a final decision
When decision becomes final Only upon the lapse of the period to
appeal, with no appeal perfected within such period

32
3. The lapse of the appeal period deprives the court of 2. An annulment of judgment
jurisdiction to alter the final judgment and the 3. A petition for certiorari; and
judgment becomes final ipso jure 4. Collateral attack of a judgment
4. The rule is absolute except for clerical errors or
mistakes SECTION 3 - Judgment for or against one or more of
several parties.Judgment may be given for or against one or
Conflict Between Body and Fallo more several plaintiffs, and for or against one or more of several
defendants. When justice so demands, the court may require the
GENERAL RULE: The judgment or fallo is the controlling factor for parties on each side to file adversary pleadings as between
the purpose of res judicata themselves and determine their ultimate rights and obligations.
(3)
EXCEPTION: Where the inevitable conclusion from the findings of
facts in the opinion is so indubitable and so clear that there was a Breakdown of Provision
mistake in the dispositive portion A. Judgment may be given:
1. For or against one or more of several plaintiffs
Notes: 2. And for or against one or more of several defendants
- Dispositive should not be interpreted in a manner B. When justice so demands, court may require parties on each
contrary to the ratio decidendi; they must be in harmony side to file adversary pleadings as between themselves and
- Where there is ambiguity caused by an omission or determine their ultimate rights and obligations
mistake in the dispositive part of the decision, the court
may clarify such ambiguity by an amendment even after
judgment has become final SECTION 4 - Several judgments.In an action against several
For this purpose, the court may resort to the defendants, the court may, when a several judgment is proper,
pleadings filed by the parties render judgment against one or more of them, leaving the action
to proceed against the others. (4)
Effect of Amendment
- Where a judgment is amended, date of amendment should Several Judgments is one rendered by a court against one or more
be considered as the date of the decision for the defendants and not against all of them leaving the action to proceed
computation of the period to perfect the appeal against the other
- Take note of the difference between an amended decision 1. It is proper where the liability of each part is clearly
and a supplemental decision separable and distinct from his co-parties such that the
- Date of amendment claims against each of them could have been the subject of
Refers to date of rendition of the amended decision separate suits, and the judgment for or against one of them
It is the filing of the signed decision with the clerk will not necessarily affect the other
that constitutes the rendition of the judgment 2. A several judgment is not proper in action against solidary
debtors
Effect of Void Judgments
- In legal effect, no judgment by which no rights are divested
from which no rights can be obtained, which neither binds SECTION 5 - Separate judgments.When more than one claim for
nor bars anyone relief is presented in an action, the court, at any stage, upon a
- It is not a decision in contemplation of law; and hence determination of the issues material to a particular claim and all
cannot become executory counterclaims arising out of the transaction or occurrence which
- Void judgment cannot be a bar to another case by reason is the subject matter of the claim, may render a separate judgment
of res judicata and mat be attacked directly or collaterally disposing of such claim. The judgment shall terminate the action
and cannot become final with respect to the claim so disposed of and the action shall
- This is the Doctrine of Total Nullity proceed as to the remaining claims. In case a separate judgment is
Note, however, that the doctrine of absolute nullity rendered, the court by order may stay its enforcement until the
was not observed in Tan v. Barrios (criminal case) rendition of a subsequent judgment or judgments and may
and the Doctrine of Operative Facts was used prescribe such conditions as may be necessary to secure the
benefit thereof to the party in whose favor the judgment is
Other Notes: rendered. (5a)
1. Finality of courts decisions cannot be reopened by
administrative or quasi-judicial bodies Separate Judgment is one rendered by a court disposing of a claim,
a. Note that a final judgment cannot be reviewed, or in among several others, presented in a case after determination of the
any way modified directly or indirectly, by a higher issues material to a particular claim and all counterclaims arising out
court, not even the SC of transaction or occurrence, which is the subject matter of said
2. A judgment of a court of justice is presumed valid and claim
enforceable, where the record discloses that all the steps 1. It is proper when more than one claim for relief is
necessary to confer jurisdiction have been taken, and that presented in an action and a determination as to the issues
the court has jurisdiction of the subject matter material to the claim has been made
The action shall proceed as to the remaining claims
Remedies Against Judgments or Final Orders
A. BEFORE finality of judgment or final order The Rule correctly states that the court may render separate
1. A motion for reconsideration judgments at various stages
2. A motion for new trial - And in case a separate judgment is so rendered, court may
3. An appeal stay its enforcement until the rendition of a subsequent
B. AFTER the finality of the judgment or final order judgment
1. Relief from judgment or final order

33
Be mindful of Sec. 1(f), Rule 41, which states that No appeal may be
taken from: (f) A judgment or final order for or against one or more
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

AMENDED OR CLARIFIED
SUPPLEMENTAL DECISION
JUDGMENT
It is an entirely new decision
It does not supersede the
and supersedes the original
original decision
judgment
Court makes a thorough study
of the original judgment and
renders the amended and Serves to bolster or add to the
clarified judgment only after original judgment
considering all the factual and
legal issues

Comments by Justice Feria


- As a consequence of the rule on separate trials under Sec.
2, Rule 31, court may render separate judgments under
Sec. 5, Rule 36
Court may not allow separate appeals to be taken
until judgment has been rendered on all claims
- When court grants a partial new trial under Sec. 7 and 8 of
Rule 37, it may not allow separate appeal from judgment
as to the rest of the issues until judgment has been
rendered after new trial
- But if separate appeals are allowed, a record on appeal
would be required

Notes on Sec. 3, 4, and 5:


1. Sec. 3 refers to an action by several parties
2. Sec. 4 refers to an action against several defendants
It gives the meaning of a several judgment
3. Sec. 5 refers to several claims for relief in an action
It refers to a separate judgment

SECTION 6 - Judgment against entity without juridical


personality.When judgment is rendered against two or more
persons sued as an entity without juridical personality, the
judgment shall set out their individual or proper names, if known.
(6a)

See the provisions of Sec. 15, Rule 3

Other Kinds of Judgment; Salient Features


1. Judgment by consent of the parties is more than a mere
contract in pais; having the sanction of the court and
entered as its determination of the controversy
2. Judgment for support does not become final because the
allowance for the right of support is essentially provisional
3. Naturalization becomes final only after issuance of
naturalization certificate and compliance with RA 536
4. Judgment by default there is no answer
5. Judgment on the pleadings answer tenders no issue or
otherwise admits to the material allegations of the adverse
partys pleading (Rule 34)
6. Summary Judgment no genuine issue as to any material
facts (Rule 35
7. Judgment on Demurrer to Evidence is based on
insufficiency of plaintiffs evidence (Rule 33)

END OF RULE 36

34
NOTES ON RULE 36

PROMULGATION OF JUDGMENT

Court renders decision

Files an appeal within 15/30 days


from notice of judgment
Losing Party
Files a motion for reconsideration or
motion for new trial within 15/30
days from notice of judgment

Accepts decision
without further contest

If GRANTED: If DENIED:
The court: Losing party
1. Modifies may appeal
If no appeal is taken or decision; or within a fresh
did not avail of 2. Grants new 15-day period
remedies, judgment trial (Neypes v. CA)
becomes final and
executory

Final Order v. Interlocutory Order


As distinguished from a final order which disposes of the subject matter in its entirety or terminates a particular proceeding or action,
leaving nothing else to be done but to enforce by execution what has been determined by the court, an interlocutory order does not dispose of a
case completely, but leaves something more to be adjudicated upon. The term final judgment or order signifies a judgment or an order which
disposes of the case as to all the parties, reserving no further questions or directions for future determination.
On the other hand, a court order is merely interlocutory in character if it leaves substantial proceedings yet to be had in connection
with the controversy. It does not end the task of the court in adjudicating the parties contentions and determining their rights and liabilities as
against each other. In this sense, it is basically provisional in its application.[54] (emphasis supplied)

35
NOTES ON RULE 36

36
(2) By reason of which such aggrieved party has
RULE 37 probably been impaired in his rights; or
NEW TRIAL OR RECONSIDERATION b. Newly discovered evidence
(1) Which he could not, with reasonable
diligence, have discovered and produced at
trial; and
(2) Which is presented would probably alter the
An order denying the motion for new trial result
B. Motion for Reconsideration
1. The aggrieved party may move for reconsideration
a. Within the period for taking an appeal
2nd motion for new trial based on grounds 2. On the grounds that:
not existing or available when the 1st a. The damages awarded are excessive
motion was filed b. The evidence is insufficient to justify the decision
or final order
c. The decision or final order is contrary to law

When and Where to File


Appeal from the judgment or final order 1. Motion for a New Trial
and assign as one of the errors the denial a. When to file within the period for taking an appeal
of the motion for new trial b. Where to file with the trial court which rendered
the questioned judgment
2. Motion for Reconsideration
Fresh Period Rule
a. When to file within the period for taking an appeal
1. The aggrieved party has a fresh period of 15 DAYS within
b. Where to file with the trial court which rendered
which to file his appeal
the judgment or final order sought to be reconsidered
This applies to Rules 40, 41, 42, 43, 45
2. This fresh period becomes significant only when a party
Motion for a New Trial and a Motion for Reconsideration
opts to file a motion for new trial or reconsideration
3. This rule does not refer to the period within which to
MOTION FOR MOTION FOR
appeal from the order denying the motion for
NEW TRIAL RECONSIDERATION
reconsideration but to the period within which to appeal
Grounds: Grounds:
from the judgment itself
1. Fraud, accident, mistake, 1. Damages awarded are
This is because an order denying a motion for
or excusable negligence excessive
reconsideration is not appealable
2. Newly discovered 2. That evidence is
evidence insufficient to justify the
Note the qualifications of decision or final order
SECTION 1 Grounds of and period for filing motion for new trial
each 3. That decision or final
or reconsideration.Within the period for taking an appeal, the
order is contrary to law
aggrieved party may move the trial court to set aside the
Second motion may be allowed Second motion from the same
judgment or final order and grant a new trial for one or more of
so long as based on grounds party is prohibited.
the following causes materially affecting the substantial rights of
not existing or available at the The prohibition applies only to
said party:
time the first motion was made final orders or judgments,
(a) Fraud, accident, mistake or excusable negligence which
hence it is allowed in
ordinary prudence could not have guarded against and
interlocutory orders
by reason of which such aggrieved party has probably
If a new trial is granted, If the court finds that excessive
been impaired in his rights; or
original judgment or final damages have been awarded or
(b) Newly discovered evidence, which he could not, with
order is vacated. that the judgment or final order
reasonable diligence, have discovered and produced at
The case stands for trial de is contrary to the evidence or
the trial, and which if presented would probably alter
novo and will be tried anew law, it may amend such
the result.
judgment or final order
Within the same period, the aggrieved party may also move
accordingly
for reconsideration upon the grounds that the damages awarded
are excessive, that the evidence is insufficient to justify the Available even on appeal but Available against the judgments
decision or final order, or that the decision or final order is only on the ground of newly or final orders or both the trial
contrary to law. (1a) discovered evidence and appellate courts
Both are prohibited motions under Summary Procedure
Breakdown of Provision
A. Motion for New Trial Rule 9, Sec. 3(b) vis--vis Rule 37
1. The aggrieved party may move for the trial court to set 1. Rule 9, Sec. 3(b) on the rules from order of default and
aside the judgment or final order and grant a new trial Rule 37 on motion for new trial have the same grounds
a. Within the period for taking an appeal (FAME)
2. For one or more of the ff. causes materially affecting 2. Rule 37 could also be a remedy in case the defendant who
the substantial rights of said party: is declared in default failed to avail of the remedy in Rule
a. Fraud, accident, mistake, excusable negligence 9, Sec. 3(b), and as a result, a judgment has already been
(FAME) rendered
(1) Which ordinary prudence could not have This is because Rule 37 is broader
guarded against; and 3. Once remedy available to a party declared in default is, if
the judgment has already been rendered when the

37
defendant discovered the default but before the same has Accident may be defined as an event that takes place without ones
become final and executory, he may file a MOTION FOR foresight or expectation
NEW TRIAL under Sec. 1(a) of Rule 37 - As a ground for new trial, it is allowed where the party
4. Rule 9 Sec. 3(b) v. Rule 37 seeking it had exercised ordinary diligence to ascertain the
a. Rule 9, Sec. 3(b) after notice of the order of default facts, which, it is claimed surprised or prevented said
but before judgment party from presenting his case
b. Rule 37 if there is already a judgment but not yet - E.g. a party, after being hit with a car, fails to attend the
final and executory; during the period of filing an trial; delay or loss of mail
appeal
Mistake - generally refers to mistakes of fact or law in good faith, the
Note: The motion must comply with the provisions of Rule 15, defendant was misled in a case
otherwise it will not be accepted for filing and/or will not suspend - Some unintentional act, omission, or error arising from
the running of the reglementary period ignorance, surprise, imposition or misplaced confidence
- E.g. a party, relying on a compromise fails to answer and
was declared in default
MOTION FOR NEW TRIAL
Negligence what constitutes negligence depends upon the
New Trial is the rehearing of a case already decided by the court but circumstances of each case
before the judgment rendered thereon becomes final and executory, - Failure to take the proper steps at the proper time, not in
whereby errors of law or irregularities are expunged from the consequence of partys own carelessness, inattention, or
record or new evidence is introduced, of both steps are taken willful disregard of the process of the unavoidable
hindrance or accident, or on reliance on the care and
Jurisprudence vigilance of his counsel, or on promises made by the
1. Filing of a proper motion for new trial interrupts the adverse party
running of the period of appeal which begins to run again - The negligence must be excusable and generally imputable
from receipt of the notice of the movant of the order to the party because if it is imputable to the counsel, it is
denying his motion (fresh 15 day period) (Phil. binding on the client
Commercial and Industrial Bank v. Ortiz) - E.g. failure to timely answer because counsels employee
2. Motion for new trial is only available when relief is sought who was commissioned to file the answer was suddenly
against a judgment and judgment is not yet final (Samonte taken ill and attorney was not informed
v. Samonte) - RULE: Negligence of the counsel is binding on the client
3. A motion for new trial is considered filed from the date a EXCEPTION: Such negligence of counsel may be a
copy with notice of hearing is mailed or served upon the ground for new trial if it was so great that the party
other party without such notice period of appeal is not was prejudiced and prevented from fairly presenting
suspended (Firme v. Reyes) his case
4. A judgment approving compromise agreement is
immediately final and executory and thereafter not the Tests to determine when negligence is binding on client; exceptions
proper subject of motion for new trial 1. Nature of the negligence
Motion to set aside on the ground of fraud or duress Depends on whether or not the negligence is simple
falls under Rule 38 (Samonte v. Samonte) or gross
5. Motion for new trial may be considered as petition for If simple, negligence of counsel is binding; if gross,
relief where judgment is already final (Laurel v. Cui) negligence does not bind the client
6. Where the motion for new trial is based on the last 2. Merits of the case
paragraph of Sec. 1, it is properly a motion for The rule on negligence of lawyer, simple or gross,
reconsideration as the movant merely asks the court to have been relaxed due to the merits of the case
reevaluate its decision without a trial being conducted 3. Due process test
again on the issues involved (City of Cebu, et al. v. As long as the client had an opportunity to be heard,
Mendoza) there is no denial of due process and the court cannot
relieve the client of the lawyers negligence
4. Interest of justice test
Fraud, Accident, Mistake, Excusable Negligence Where an injustice has been done, and further trial is
necessary to secure justice, courts have not only the
Fraud as a ground for new trial must be EXTRINSIC to the litigation right and inherent power, in its discretion, but also
the duty to grant new trial
Extrinsic Fraud
- Any fraudulent scheme executed by the prevailing party
outside of the trial against the losing party who because of Newly Discovered Evidence
such fraud is prevented from presenting his side of the
case Requisites of Newly Discovered Evidence: Berry Rule
- E.g. prevent witness from testifying 1. It must have been discovered after the trial
2. It could not have been discovered and produced at the trial
Intrinsic Fraud even with the exercise of reasonable diligence; and
- Refers to acts of a party during the trial which does not 3. The evidence is of such weight that if admitted, would
affect the presentation of the case probably alter the result of the action; and
- E.g. presentation of a forged promissory note or a perjured 4. It must be material and not merely collateral, cumulative,
testimony, which did not affect the presentation of the or corroborative
case, but did prevent a fair and just determination of the
case

38
Note: Newly discovered evidence need not be newly created SECTION 2 - Contents of motion for new trial or reconsideration
evidence. It may and does commonly refer to evidence already in and notice thereof.The motion shall be made in writing stating
existence prior to or during trial but which could not have been the ground or grounds therefor, a written notice of which shall be
secured and presented during the trial despite reasonable diligence served by the movant on the adverse party.
on the part of the litigant (Tumang v. CA) A motion for new trial shall be proved in the manner
provided for proof of motions. A motion for the cause mentioned
Note: The hostility of a witness does not exempt the party that in paragraph (a) of the preceding section shall be supported by
should have offered his testimony from complying with the affidavits of merits which may be rebutted by affidavits. A motion
requirements of Rule 37 for the cause mentioned in paragraph (b) shall be supported by
affidavits of the witnesses by whom such evidence is expected to
NEWLY DISCOVERED be given, or by duly authenticated documents which are proposed
FORGOTTEN EVIDENCE
EVIDENCE to be introduced in evidence.
Evidence was already available A motion for reconsideration shall point out specifically
Evidence was not available to a
to a party and was not able to the findings or conclusions of the judgment or final order which
party during the trial, and was
present it through are not supported by the evidence or which are contrary to law,
only discovered thereafter
inadvertence, or negligence making express reference to the testimonial or documentary
Ground for new trial Not a ground for new trial evidence or to the provisions of law alleged to be contrary to such
findings or conclusions.
Note: New trial should be distinguished from the exercise of the A pro forma motion for new trial or reconsideration
discretionary power to reopen a trial for the introduction of shall not toll the reglementary period of appeal. (2a)
additional evidence. The discretionary power is subject to no rule
other than the paramount interest of justice and will not be Breakdown of Provision:
reviewed on appeal unless the exercise thereof is abused (Arce v. A. General rules:
Arce) 1. The motion shall be made in writing
a. Stating the ground or grounds therefor
2. Written notice of which shall be served by the movant
MOTION FOR RECONSIDERATION on the adverse party
B. A motion for new trial
Note: The motion for reconsideration under Rule 37 is one that is 1. Shall be proved in the same manner provided for proof
directed against a judgment or final order, not of an interlocutory on motions
order which for instance, precedes a petition for certiorari 2. Motion for cause based on Sec. 1(a) shall be supported
by affidavits of merits
On Award of Excessive Damages a. It may be rebutted by affidavits
- Unless the amount is so large as to indicate that the verdict 3. Motion for cause based on Sec. 1(b) shall be supported:
was the result of passion, prejudice, or corruption, or that a. By affidavits of witnesses by whom such evidence
the evidence was disregarded, the verdict is conclusive is expected to be given; or
and will not be set aside on motion for new trial b. By duly authenticated documents which are
proposed to be introduced in evidence
Under Sec. 4 of the Interim Rules, no party shall be allowed to file a C. A motion for reconsideration
Second Motion for Reconsideration of a final order or judgment of 1. Shall point out specifically the findings or conclusions
trial courts of the judgment or final order which are not supported
- Note that a Second Motion for New Trial would still be by evidence or which are contrary to law
available under the circumstances set out in Sec. 5 2. Make express reference to testimonial or documentary
evidence or provisions of law alleged to be contrary to
Jurisprudence such findings or conclusions
1. A motion for reconsideration is equivalent to a new trial if D. Pro forma motion shall not toll reglementary period of
based on a ground for new trial (Mendoza v. Bautista) appeal
2. While a motion for new trial based on fraud and so forth is
pro forma if unaccompanied by an affidavit of merits, A motion for new trial grounded on FAME should be accompanied
Where said motion also invokes the further ground by 2 affidavits:
that its decision awards excessive damages, with a 1. One setting forth the facts and circumstances alleged to
certification of courts findings and conclusions, said constitute the FAME
motion is not pro forma as the latter ground does not 2. The other, an affidavit of merits, setting forth the
require affidavit of merits (PCIB v. Ortiz) particular facts claimed to constitute movants meritorious
3. The concept of pro forma motions for reconsideration is cause of action or defense
properly directed against a final judgment or order, not
those against an interlocutory order Affidavit of Merits
In the former, repetition of the ground already - One which recites the nature and character of FAME on
disposed of may be categorized as merely for which the motion is based and stating the movants good
purposes of delay; hence, such motion is pro forma and substantial cause of action or defense and the
But the rule does not apply to motions against evidence he intends to present if granted
interlocutory orders (BA Finance Corp. v. Pineda) - The evidence should be such as to warrant reasonable
4. Where a motion for reconsideration is but a reiteration of belief that the result of the case would probably be
reasons and arguments previously set forth in the otherwise
movants memorandum and which the trial court had - Without an affidavit of merits, motion for new trial is pro-
already considered, weighed, and resolved adversely forma
before it rendered its decision, that motion is pro forma
(Dacanay v. Alvendia)

39
A motion for new trial based on FAME must include an affidavit of Indications of a Pro-Forma Motion
merit, which states: 1. It is based on the same ground as that raised in a denied
1. The nature or character of FAME motion under Rule 37
2. The facts constituting the movants good and substantial 2. It contains the same arguments in the opposition to a
defense or valid cause of action; and granted motion to dismiss
3. The evidence which he intends to present if his motion is 3. The new ground alleged in the 2nd motion for new trial
granted already existed, was available and could have been alleged
in the first motion for new trial which was denied
Specific rules: 4. It is based on the ground of insufficiency of evidence or
a. A motion for new trial, based on newly discovered that the judgment is contrary to law but does not specify
evidence, must contain affidavits of witness or duly the supposed defects in the judgment
authenticated documents 5. It is based on FAME but does not specify the facts
b. A motion for reconsideration must point out the constituting these grounds and/or is not accompanied by
findings or conclusions not supported by the an affidavit of merit; and
evidence or contrary to law 6. Non-compliance with the requirements of Rule 15

Note: A motion suspends or tolls the running of the reglementary Jurisprudence:


period for appeal except when it is pro-forma 1. A motion for reconsideration, if based on the same
grounds as that of a new trial, is considered a motion for
Purpose of Affidavit of Merits new trial and has the same effect (Rodriguez v. Rovira)
- When FAME is invoked as a ground of a motion for new 2. When first motion for reconsideration was dismissed
trial, it should be proved in the manner provided for in the erroneously and summarily, a second motion is hardly pro
proof of motions: forma (Siy v. CA)
By affidavits or depositions 3. A second motion may be a considered a supplemental
Unless the court should direct that the matter be pleading, according to the circumstances
heard wholly or partly on oral testimony or
depositions
SECTION 3 - Action upon motion for new trial or reconsidera-
NOTE: When additional grounds invoked; If a motion for new trial tion.The trial court may set aside the judgment or final order
invokes FAME and also invokes award of excessive damages, if no and grant a new trial, upon such terms as may be just; or may
affidavit of merits is appended, only the ground of FAME is deny the motion. If the court finds that excessive damages have
considered pro forma. The untenability of one does not, of itself, been awarded or that the judgment or final order is contrary to
render the other unmeritorious. the evidence or law, it may amend such judgment or final order
accordingly. (3a)
When Affidavits of Merits are Not Necessary: Affidavits of merits are
not necessary if the granting of the motion for new trial is not Breakdown of Provision
discretionary with the courts but is demandable as of right, as: A. The trial court may:
1. Where movant has been deprived of his day in court 1. Set aside the judgment or final order and grant a new
through no fault or negligence on his part because no trial; or
notice of hearing was furnished him in advance so as to a. Upon such terms as may be just
enable him to prepare for trial 2. Deny the motion
2. Where judgment by default was rendered before period to 3. Amend such judgment or final order accordingly if:
answer expired, or where it was entered by fraud and a. The court finds that excessive damages have
other similar causes been awarded or that; or
3. Where attach is on the jurisdiction of the court b. That the judgment or final order is contrary to
4. Where express incorporation by reference of motion for the evidence or law
reconsideration filed before the rendition of judgment Notes:
which was under oath and which alleged the reasons why - Reopening is not necessary when resolution of the motion
movant was not able to appear in trial is substantial depends on a fact admitted by both parties. An amended
compliance decision is sufficient
5. When motion for new trial is not based on FAME - New trial will not be granted if it will not serve useful
purpose
Pro-Forma Motion one where the movant fails to make reference
to the testimonial and documentary evidence on record or the
provisions of law alleged to be contrary to the trial courts SECTION 4 - Resolution of motionA motion for new trial or
conclusion as well as the reasons thereof, or if there is no affidavit of reconsideration shall be resolved within thirty (30) days from the
merit time it is submitted for resolution. (n)
- Period of appeal is not interrupted by filing of such motion
Motion shall be resolved within 30 days from submission.
Two types of pro-forma motion for new trial under Rule 37:
1. A motion for new trial which is not supported by affidavit SECTION 5 - Second motion for new trial.A motion for new trial
of merits shall include all grounds then available and those not so included
One which does not comply in substance or in form shall be deemed waived. A second motion for new trial, based on
with Sec. 2 a ground not existing nor available when the first motion was
2. A second motion for new trial on a ground available to a made, may be filed within the time herein provided excluding the
party where the first motion was filed time during which the first motion had been pending.
See Sec. 5 No party shall be allowed a second motion for
reconsideration of a judgment or final order. (4a, 4, IRG)

40
Single-Motion Rule a party shall not be allowed to file a second - The court has discretion to recall witness for further
motion for reconsideration of judgment or final order examination
- The first sentence of Sec. 5 implements the omnibus - Where a party filed a motion for reconsideration and the
motion rule under Sec. 8, Rule 15 other party files an appeal from the same decision, court
- The second sentence provides for the exception should defer approval of appeal
- A motion for new trial or reconsideration is not appealable
While a second motion for reconsideration is not allowed, a second
motion for new trial is authorized by the rules
- A motion for new trial shall include all grounds then SECTION 7 - Partial new trial or reconsideration.If the grounds
available otherwise they are deemed waived for a motion under this Rule appear to the court to affect the
- A 2nd motion for new trial, based on a ground not existing issues as to only a part, or less than all of the matter in
nor available when the first motion was made within the controversy, or only one, or less than all, of the parties to it, the
period allowed but excluding the time during which the court may order a new trial or grant reconsideration as to such
first motion had been pending issues if severable without interfering with the judgment or final
- A second motion for new trial is an exceptional case order upon the rest. (6a)
A litigant, who does not observe the requisites of a 2nd
motion for new trial, files at his peril of losing his Breakdown of Provision
right to appeal due to the expiration of the remaining A. The court may order a new trial or grant reconsideration as
period within which to appeal (City of Cebu v. to such issues if severable without interfering with the
Mendoza) judgment or final order upon the rest:
1. If the grounds for motion under Rule 37 appear to the
court to affect the issues:
SECTION 6 - Effect of granting of motion for new trial.If a new a. As to only a part, or less than all the matter in
trial is granted in accordance with the provisions of this Rule, the controversy; or
original judgment or final order shall be vacated, and the action b. As to only one, or less than all of the parties to it
shall stand for trial de novo; but the recorded evidence taken upon
the former trial, insofar as the same is material and competent to
establish the issues, shall be used at the new trial without SECTION 8 - Effect of order for partial new trial.when less than
retaking the same. (5) all of the issues are ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the enforcement of
Breakdown of Provision such judgment or final order until after the new trial. (7a)
A. If a new trial is granted:
1. Original judgment or final order shall be vacated Breakdown of Provision:
2. Action shall stand for trial de novo A. When less than all of the issues are ordered retried, the
B. The recorded evidence taken upon the former trial, in so far court may either:
as the same is material and competent to establish the 1. Enter a judgment or final order as to the rest; or
issues, shall be used at the new trial without retaking the 2. Stay the enforcement of such judgment or final order
same until after the new trial

MOTION FOR REOPENING THE


MOTION FOR NEW TRIAL
TRIAL SECTION 9 - Remedy against order denying a motion for new trial
Not mentioned in the rules but or reconsideration.An order denying a motion for new trial or
is nevertheless a recognized reconsideration is not appealable, the remedy being an appeal
procedural recourse deriving from the judgment or final order. (n)
validity and acceptance from
Specifically mentioned in the long established usage Remedy:
Rules - Appeal from the judgment or final order
Note: It is mention in Criminal Not certiorari under Rule 65 nor appeal from denial
Procedure (Rule 119, Sec. 24); of the motion
and as a prohibited pleading in
Summary Procedure (Sec. 19c) If motion is denied:
May properly be presented only - Movant has a fresh period of 15 days from receipt or
after either or both the parties notice of the order denying or dismissing the motion for
Proper only after promulgation
have formally offered and reconsideration within which to file notice of appeal
of judgment
closed their evidence before - This fresh period also applies to Rule 40, 41, 42, 43, and
judgment 45
Based upon specific grounds Controlled by no other rule - See Neypes v. CA
set forth in Rule 37 for civil than the paramount interest of
cases and Rule 121 in criminal justice, resting entirely on the Jurisprudence:
cases sound discretion of the court 1. Where one party files a motion for new trial or
reconsideration and the other party seeks to perfect an
Note: If the order granting a new trial is set aside, the original appeal from said decision, the court should withhold
judgment is deemed repromulgated (Pineda v. CA) action on the appeal until after motion for new trial or
reconsideration shall have been resolved (Simsion v.
Notes: Belmonte)
- Where the new trial is based on insufficiency of evidence 2. Where defendants motion for new trial was denied by the
or that the decision is contrary to law, mere review is trial court, it has been held that he can perfect an appeal
enough. There is no need for trial from the judgment and also proceed on certiorari to set

41
aside the order denying his motion for new trial. There is
no incompatibility between the two remedies as one is
directed against the judgment and the other, against the
order denying the new trial (Banco Filipino Savings &
Mortgage Bank v. Campos)
3. A motion to extend the reglementary period for filing a
motion for reconsideration is not authorized. (Roque, et
al. v. Gunigundo)

END OF RULE 37

42
NOTES ON RULE 37

43
SECTION 1 Petition for relief from judgment, order, or other
RULE 38 proceedingsWhen a judgment or final order is entered, or any
RELIEF FROM JUDGMENTS, other proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he may
ORDERS, OR OTHER PROCEEDINGS file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside. (2a)

A petition for relief from judgment together with a motion for new SECTION 2 -- Petition for relief from denial of appealWhen a
trial and a motion for reconsideration are remedies available only to judgment or final order is rendered by any court in a case, and a
parties in the proceedings where the assailed judgment is rendered. party thereto, by fraud, accident, mistake, or excusable
In fact, it has been held that a person who was never a party to the negligence, has been prevented from taking an appeal, he may file
case, or even summoned to appear therein, cannot avail of a petition a petition in such court and in the same case praying that the
for relief from judgment (Alaban v. Cam) appeal be given due course. (1a)

Note: This is not applicable to the Supreme Court since it is not a The remedy presupposes that judgment has already become final
trier of facts and executory
- In both sections, judgment or orders must be final
Concept of Relief from Judgment Otherwise, the remedy is Rule 37
- Relief from judgment under Rule 38 is a remedy provided
by law to any person against whom a decision or order is The general rule is that once the judgment becomes executory, the
entered into through fraud, accident, mistake, or excusable only other remedy left to attempt a material alteration thereof is that
negligence (FAME) provided in Rule 38
- Equitable in character; allowed only in exceptional cases - Rule 47 may also be availed by the other party in cases
as when there is no other adequate remedy available to applicable to Rule 47
him
- When a party had another adequate remedy available to Nature: Not an independent action but a continuation of the old case.
him, and he was not prevented by FAME from filing such It is filed with the same court which decided the case.
motion or taking an appeal, he cannot avail himself of the
relief under Rule 38 A petition for relief has been held to be applicable to all kinds of
Relief will not be granted to a party who seeks to be special proceedings, such as land registration, intestate settlement,
relieved from the effects of the judgment when the and guardianship proceedings
loss of remedy was due to his own negligence, or a
mistaken mode of procedure A petition for relief is available not only against a judgment or final
order
Rule 37 v. Rule 38 - Under Sec. 1, it is also available when any other
proceeding is thereafter taken against the petitioner in any
RULE 37 RULE 38 court through FAME
Available BEFORE judgment Available AFTER judgment has - Thus, it was held that a petition for relief is also applicable
becomes final and executory become final and executory to a proceeding taken after entry of judgment or final
Applies to judgments or final Applies to judgments, final order such as an order of execution (Cayetano v.
orders only orders and other proceedings Ceguerra) or an order dismissing an appeal (Medran v.
Grounds: (1) FAME and (2) CA)
Ground: FAME
Newly discovered evidence Since these are not required to be entered, the period
Filed within 60 days from starts from rendition of the order or taking of the
knowledge of judgment and proceeding or from the date of occurrence
Filed within the time to appeal And the court will merely set aside the proceeding
within 6 months from entry of
judgment and allow the party to act as if the proceeding never
If denied, order denying a took place
If denied, order of denial is not petition for relief is not
appealable; hence, remedy is appealable; remedy is Procedural notes
appeal from judgment appropriate civil action under - The petition should be filed in the same case and in the
Rule 65 same branch of the court which rendered the judgment
Legal remedy Equitable remedy from which relief is sought
Motion need not be verified Petition must be verified - Unlike in a petition for certiorari, judge who rendered the
judgment is not a party in a petition for relief
Note: Rule 37 and 38 are exclusive remedies - To stay execution of the judgment, injunction must be
- A party who has filed a timely motion for new trial and/or obtained
reconsideration cannot file a petition for relief after his Where court does not grant preliminary injunction,
motion has been denied the appellate court may grant it
- These remedies are exclusive of each other - If there is no FAME, remedy is MANDAMUS
- It is only in appropriate cases where a party aggrieved by - Relief from judgment cannot be substituted for appeal
judgment has not been able to file a motion for new trial Note that remedy is available only in exceptional
and/or reconsideration that a petition for relief can be cases
filed (Francisco v. Puno) - Motion to suspend without affidavit of merits does not
interrupt period to appeal
The petition is, in effect, a second opportunity for an aggrieved party - All grounds must be invoked at one time only
to ask for a new trial. Hence, the grounds mentioned have the same
concepts that they have in motion for new trial.

44
Grounds: be set aside, and not more than six (6) months after such
1. When judgment or final order is entered or any other judgment or final order was entered, or such proceeding was
proceeding is thereafter taken against petitioner through taken; and must be accompanied with affidavits showing the
FAME fraud, accident, mistake, or excusable negligence relied upon, and
2. When petitioner has been prevented from taking an appeal the facts constituting the petitioners good and substantial cause
by FAME of action or defense, as the case may be. (3)

FAME (See discussions under Rule 37) For a petition for relief to be entertained by the court, petitioner
1. Fraud must satisfactorily show:
Fraud must be extrinsic 1. That he has faithfully and strictly complied with the
2. Accident provisions of Rule 38
3. Mistake 2. And that the said petition was filed within the
An erroneous interpretation or application of the law reglementary period specified in Sec. 3, Rule 38
by the court is not excusable error that can be
remedied under this rule When to File:
Mistake does not include judicial error since such 1. Within 60 days after petitioner learns of the judgment,
errors may be corrected by appeal final order, or other proceeding to be set aside; AND
4. Excusable negligence 2. Not more than 6 months after such judgment or final order
Loss of defendants right to appeal through was entered, or such proceeding was taken
negligence of counsel does not justify granting of
relief; generally, the negligence of counsel is binding Note:
upon client a. The date of entry of judgment is the date of finality of
judgment or final order
Note: A petition for relief is no longer available where a motion for b. Reglementary period is reckoned from the time
new trial had already been filed partys counsel receives notice of the decision for
- If the motion for new trial is denied, proper remedy is to notice to counsel is notice to party for purposes of
appeal from the decision Rule 38
Note that the appeal should be from the decision, not
the order denying the motion The two periods for the filing of a petition for relief are not
The denial of the motion may be assigned as an error extendible and never interrupted. Both periods must be complied
in the appeal of the decision with. (Phil. Rabbit Bus Lines Inc. v. Ariaga)
- A petition for certiorari does not suspend the periods
Jurisprudence: (Polomares v. Jimenez)
1. Fraud committed by one defendant against his co- - Neither does a motion for reconsideration of the order
defendant cannot affect the right of plaintiff who obtained subject of the petition for relief (Cruz v. Oppen)
judgment after trial (Villeza v. Olmedo) - These periods cannot be subject to a condition or a
2. Jalover v. Ytoriaga Remedy is available only when contingency
judgment or order is final but not when it has never
attained finality for failure of service upon counsel Reckoning of the Period
No service was made on counsel so order of dismissal - The 60-day period is reckoned from the time the party
never acquired a character of finality acquired knowledge of the order, judgment or proceeding
3. Duran v. CA decision was based only on plaintiffs Not from the date he actually read the same (Perez v.
evidence, hence, appeal from the decision is futile, 30 day Araneta)
period was computed from receipt of the denial of new - 6-months period is computed from the date of entry of the
trial order or judgment
Motion for new trial in that case was treated as a Under the amended Rule 36, the date of finality of the
petition for relief judgment or final order is deemed to be the date of its
As such, the 30-day period was counted not from the entry
receipt of the decision but from receipt of denial of - As to the proceedings in RTC, which can be the subject of
the motion petitions for relief, the date when the proceedings were
4. Pan Asiatic v. CA and Mercury Drug Corp. v. CA as long taken controls
as the judgment against which relief is sought has not yet - In judgments upon compromise, being immediately
become final, petition for relief is not yet available as a executory, prescription runs from the date of its rendition,
remedy hence, 6 months period also runs therefrom
Aggrieved party may file a motion for new trial - The 6-month period presupposes that the petitioner
In such a case, order denying the motion is not itself learned of the judgment from which he seeks relief also
appealable although the time during which the within the same time frame
motion was pending must be deducted from the Otherwise, a petition for relief is not available
appeal period The only remedy in such a case is an action for its
5. Lagula, et al. v. Casimiro, et al. The rule does not apply annulment under Rule 47
to one who was never made a party for lack of the - If the records do not bear the exact date when the
requisite notice judgment was entered, the 6 month period can be counted
from the time the writ of execution of final judgment was
issued
SECTION 3 - Time for filing petition; contents and verification. A
petition provided for in either of the preceding sections of this Form and Contents of the Petition
Rule must be verified, filed within sixty (60) days after the peti- 1. The petition for relief must be verified
tioner learns of the judgment, final order, or other proceeding to

45
2. The petition must be accompanied by an affidavit showing a. Note that under the present rules on annulment
the FAME relied upon; and of judgment, this remedy is only available when
3. The affidavit of merit accompanying the petition must also petition for relief or other appropriate remedies
show the facts constituting the petitioners good and are no longer available through no fault of
substantial cause of action or defense as the case may be petitioner

Affidavit of Merit is one which recites the nature of the FAME on Remedy for Denial of Petition for Relief
which the motion is based - Appeal from an order denying a petition for relief is no
- It serves as the jurisdictional basis for the court to longer available under the present rules
entertain a petition for relief - The remedy against a denial of a petition for relief is
- The absence of an affidavit of merits is a fatal defect and certiorari under Rule 65
warrant denial of the petition (Fernandez v. Tan Tiong
Tick) Jurisprudence
However, it is not a fatal defect so long as the facts 1. In Balite v. Cabangon, et al. it was held that a petition for
required to be set out also appear in the verified relief filed on the 65th day from notice of order, but within
petition (Fabar Inc. v. Rodelas) 6 months from taking of such proceeding, could be given
due course under the authority of Prudential Bank v.
Instances When Affidavit of Merit is Not Necessary Macadaeg and Angala v. Tan
1. Where there is no jurisdiction over the defendant Note that the Balite case involved a case before the
2. Where there is no jurisdiction over the subject matter Court of Agrarian Relations which was not bound by
3. Where judgment was taken by default technical rules of procedure and evidence
4. Where judgment was entered by mistake or was obtained Besides, no judgment had been rendered as the
by fraud; or proceeding arose from a default order only
5. Other similar cases: 2. In PHHC v. Tiongco, the petition for relief was filed beyond
a. Where petition is verified and merits of petitioners the 60-day period but the SC directed the RTC to give due
case is apparent from the petition and petition was course
under oath (Consul v. Consul) It appears that the original counsel of defendants had
b. Where sworn petition merely alleged that defendant deprived them of their day in court by abandoning
has a meritorious defense as shown in his answer, their case without notice
petition was held sufficient (Eduque v. CA) SC also considered their petition not only from the
c. When movant was deprived of his day in court judgment but from the order of execution since Rule
through no fault or negligence of his, petition was 38 includes relief from such orders
held to be demandable as a matter of right (Navarro 3. But in Phil. Rabbit Bus Lines Inc. v. Arciaga, the petition
v. Bello) for relief was correctly denied where it was filed one day
too late, 61 days after receipt of the dismissal of the action
On Judgments based on Compromise or Upon Confession Note that no special circumstances, which warranted
- These are judgments and are immediately final and relaxation of the rule, was present in this case
executory
Unless otherwise provided in the judgment, as may
be prayed for as agreed upon by the parties SECTION 4 - Order to file an answer If the petition is sufficient
- They are not appealable, hence, cannot be the object of in form and substance to justify relief, the court in which it is filed,
new trial shall issue an order requiring the adverse parties to answer the
- Remedies: same within fifteen (15) days from the receipt thereof. The order
1. Note that the validity of a judgment or order cannot shall be served in such manner as the court may direct, together
be assailed collaterally with copies of the petition and the accompanying affidavits. (4a)
a. UNLESS the ground of attach is lack of
jurisdiction or irregularity in their entry Note: An order to answer shall issue only if petition is sufficient in
apparent in the face of the record or because it is form and substance
vitiated by fraud
2. If the purported nullity of judgment is based on lack This remedy precludes the issuance of summons upon its filing
of consent to the compromise, the aggrieved party - If petition is sufficient in form and in substance, the court
can have it reconsidered shall issue an order requiring the adverse party to answer
a. If denied, to appeal from such judgment, or if within 15 days from receipt thereof
final to apply for relief under Rule 38 (Cadano v. - The order shall be served in such manner as the court may
Cadano) direct, together with copies of the petition and the
- However, in view of BP 129 which vested the CA with accompanying affidavits
original and exclusive jurisdiction to annul judgments
based on fraud, remedy against a judgment based on Note: Failure to answer does not warrant declaration of default
compromise agreement is an action for annulment of Even without such answer, the court will still have to
judgment in the CA hear the petition and determine its merits (See Sec. 6)
An action for annulment of judgment based on
compromise agreement on the ground of extrinsic
fraud must be filed in the CA if judgment sought to be SECTION 5 - Preliminary injunction pending proceedings.
annulled is that of the RTC The court in which the petition is filed, may grant such
Note however that this does not necessarily mean preliminary injunction as may be necessary for the preservation
that a petition for relief under Rule 38 is no longer of the rights of the parties, upon the filing by the petitioner of a
available as a remedy bond in favor of the adverse party, conditioned that if the petition
is dismissed or the petitioner fails on the trial of the case upon its

46
merits, he will pay the adverse party all damages and costs that Two Hearings under Rule 38:
may be awarded to him by reason of the issuance of such 1. Hearing to determine whether the judgment should be set
injunction or the other proceedings following the petition; but aside; and
such injunction shall not operate to discharge or extinguish any 2. In the affirmative, a hearing on the merits of the case
lien which the adverse party may have acquired upon the
property of the petitioner. (5a)
SECTION 7 - Procedure where the denial of an appeal is set
Breakdown of Provision: aside .Where the denial of an appeal is set aside, the lower court
A. The court in which the petition is filed, may grant such shall be required to give due course to the appeal and to elevate
preliminary injunction as may be necessary for preservation the record of the appealed case as if a timely and proper appeal
of the rights of the parties had been made. (7a)
1. Upon filing by petitioner of a bond in favor of the
adverse party Breakdown of Provision
2. Conditioned that if petition is dismissed or petitioner A. Where denial of an appeal is set aside:
fails on the trial of the case upon its merits: 1. Lower court shall be required to give due course to the
a. He will pay adverse party all damages and costs appeal
that may be awarded to him by reason of the 2. And to elevate the record of the appealed case as if a
issuance of such injunction or the other timely and proper appeal had been made
proceedings following the petition
B. But such injunction shall not operate to discharge or Relate this provision with Sec. 8, Rule 40 on appeals
extinguish any lien which the adverse party may have
acquired upon the property of the petitioner Note: Under AM No. 03-8-7 SC (Rule of Procedure for Small Claims
Cases) a Motion for New Trial or Reconsideration (Rule 37), and a
Rule: Execution of judgment is not stayed Petition for Relief from Judgment (Rule 38) are prohibited pleadings.
Exception: Unless a writ of preliminary injunction is issued by the Both remedies are also prohibited pleadings under the Rule on
court Summary Procedure
- Execution of judgments are not automatically stayed by
filing a petition for relief Remedies if Rule 38 is No Longer Available
- To stay execution, a writ of preliminary injunction should 1. Petition for Annulment of Judgment under Rule 47; and
be obtained in accordance with Rule 38, Sec. 5 2. A direct or collateral attack if judgment is void ab initio for
lack of jurisdiction
Where a writ of execution as already issued and levy was made
before the petition for relief was filed An order of the RTC granting a petition for relief under Rule 38 is
- The lien that may have been acquired over the property is interlocutory and is not appealable
not discharged by the subsequent injunction - Failure of a party who opposed the petition to appeal from
- If petition is denied, court has the power to reinstate the said order, or his participation in the proceedings
writ of execution subsequently had, cannot be construed as a waiver of his
objection to the petition
He may still raise the same question on appeal from
SECTION 6 - Proceedings after answer is filed.After the filing of the judgment on the merits of the same case
the answer or the expiration of the period therefor, the court shall
hear the petition and if after such hearing, it finds that the
allegations thereof are not true, the petition shall be dismissed; ON ATTACKING THE VALIDITY OF A JUDGMENT
but if it finds said allegations to be true, it shall set aside the
judgment or final order or other proceeding complained of upon Direct Attack v. Collateral Attack
such terms as may be just. Thereafter the case shall stand as if 1. Direct attack upon a judgment is an action or proceeding
such judgment, final order or other proceeding had never been to annul it, this being the main object of the proceeding
rendered, issued or taken. The court shall then proceed to hear 2. Collateral attack upon a judgment is one made to obtain
and determine the case as if a timely motion for a new trial or relief other than the setting aside of the judgment, the
reconsideration had been granted by it. (6a) attack on the judgment itself being incidental

Breakdown of Provision In collateral attacks:


A. After filing of answer or expiration of the period therefor, - This is proper only when the judgment on its face is null
court shall hear the petition and void as where it is patent that the court which
B. If after such hearing: rendered said judgment has no jurisdiction
1. It finds that allegations thereof are not true: - The record must show that the court lacked jurisdiction to
a. The petition shall be dismissed render judgment
2. If it finds said allegations to be true: - Note however
a. If shall set aside the judgment, final order, or
other proceeding complained of upon such terms The validity of a judgment or order of the court, which has become
as may be just final and executory, may be attacked in three ways:
b. Thereafter, case shall stand as if such had never 1. Only by a direct action or proceeding to annul the same
been rendered, issued, or taken a. This proceeding is a direct attack against the order of
c. The court shall then proceed to hear and judgment because it is not incidental to, but is the
determine the case as if timely motion for new main object of, the proceeding
trial or reconsideration has been granted by it b. A direct action to annul and enjoin enforcement of the
judgment where the alleged defect is not apparent on
its face or from the recitals contained in the judgment

47
c. See Rule 47
2. Or by direct action, as certiorari, or by collateral attack in
case of apparent nullity
a. The collateral attack must be against a challenged
judgment which is void upon its face or that the
nullity of the judgment is apparent from its own
recitals
3. Or by a Petition for Relief under Rule 38
a. This third manner of attacking must be taken in the
same action or proceeding in which the judgment or
order was entered

A judgment can only be annulled on two grounds:


1. The judgment is void for want of jurisdiction; or
2. It has been obtained by fraud
Only if the fraud is extrinsic or collateral in character

SUMMARY OF REMEDIES AGAINST JUDGMENT

1. Motion for New Trial (judgment not final)


2. Inherent power to amend and control (Sec. 5, Rule 135)
3. Petition for Relief (judgment final) under Rule 38
4. Certiorari, prohibition, and mandamus under Rule 65
5. Direct action for annulment of judgment
6. Quo warranto if the claim is that the judge was no longer
in office

END OF RULE 38

48
NOTES ON RULE 38

49
Execution shall issue as a matter of right
RULE 39 1. On motion,
EXECUTION, SATISFACTION, AND EFFECT 2. Upon a judgment or order that disposes of the action or
proceeding
OF JUDGMENTS 3. Upon expiration of period to appeal, if no appeal has been
duly perfected
Execution is a process provided by law for the enforcement of a final
judgment. Enforcement is part of courts jurisdiction. It is not an If appeal has been duly perfected and finally resolved
action but is included in the phrase Process in an action part of 1. Execution may forthwith be applied for
the proceedings considered as still pending a. In the court of origin
b. On motion of the judgment oblige
Against Whom Issued: Execution can only issue against a party and (1) Submitting certified true copies of the
not against one who has never had his day in court judgment/s or final order/s sought to be
enforced
Writ of Execution A judicial writ issued to an officer authorizing (a) And the entry thereof
him to execute the judgment of the court (2) With notice to the adverse party
2. Appellate court may direct the court of origin to issue the
Essential Requisites of a Writ of Execution writ of execution
1. A writ of execution to be valid, must conform strictly to the a. On motion in the same case
decision or judgment which gives it life; and b. When the interest of justice so requires
2. It cannot vary the terms of the judgment it seeks to
enforce
BASIC PRINCIPLES
Final Judgment or Order is one which disposes of the whole subject
matter or terminates the particular proceedings or action, leaving Final Order for purposes of binding effect or whether it can be
nothing to be done by the court but to enforce by execution what has subject of execution, an order is final or executory after the lapse of
been determined the reglementary period to appeal and no appeal has been perfected

Judgments and orders become final and executory by operation of NOTE: There must be a final judgment for execution to happen
law and not by judicial declaration (Viason Enterprises v. CA)
- Trial court need not even pronounce the finality of the NOTE FURTHER: The difference between a FINAL Judgment and a
order as the same becomes final by operation of law Judgment which has BECOME FINAL (or EXECUTORY)
- Finality becomes a fact when reglementary period for - Judgment is final if it disposes of the action completely
appeal lapses, and no appeal is perfected within such - Judgment has become final or executory if period to appeal
period has lapsed and no appeal was perfected

A void judgment for want of jurisdiction is no judgment at all After judgment has become executory, the court cannot amend the
- It cannot be the source of any right nor creator of any same except:
obligation 1. To make corrections of clerical errors, mistakes, or
- All acts pursuant to it have no legal effect omissions
- A writ of execution based on it is void (Galicia v. As by an amendment nunc pro tunc, but substantial
Manliquez) changes cannot be effected by an amendment nunc
pro tunc
Classes of Execution 2. To clarify an ambiguity which is borne out by and
A. As to their Nature justifiable in the context of the decision
1. Compulsory Execution Execution as a matter of Especially if the parties acquiesced there to
right (Sec. 1) 3. In judgments for support, which can always be amended
2. Discretionary Execution Execution pending appeal from time to time
(Sec. 2)
B. As to how it is enforced (Sec. 6) Remedies against a judgment or order which has become executory
1. Execution by motion are:
2. Execution by independent action 1. Petition for relief under Rule 38
2. A direct attack on the judgment, or
3. A collateral attack
SECTION 1 - Execution upon judgments or final orders.
Execution shall issue as a matter of right, on motion, upon a Distinction between the jurisdiction of the court to modify its
judgment or order that disposes of the action or proceeding upon judgment and to enforce its judgment
the expiration of the period to appeal therefrom if no appeal has 1. Jurisdiction of the court over its judgment to change, alter
been duly perfected. (1a) or modify it terminates when the judgment becomes final
If the appeal has been duly perfected and finally resolved, 2. Jurisdiction of the court over the case to enforce said
the execution may forthwith be applied for in the court of origin, judgment continues even after judgment has become final
on motion of the judgment obligee, submitting therewith certified for purposes of execution and enforcement
true copies of the judgment or judgments or final order or orders
sought to be enforced and of the entry thereof, with notice to the NOTE: When the court has no jurisdiction over the case, it has no
adverse party. power to order the execution of a judgment erroneously issued
The appellate court may, on motion in the same case, thereon.
when the interest of justice so requires, direct the court of origin
to issue the writ of execution. (n)

50
EXECUTION AS A MATTER OF RIGHT because the dispositive part of a decision must find
support from decisions ratio decidendi
GENERAL RULE: It is a matter of right on the part of the winning 2. Where extensive and explicit discussion and settlement of
party. The court cannot refuse execution the issue is found in the body of the decision

UNLESS: Note: When writ of execution varies the terms of the dispositive
1. Where judgment turns out to be incomplete or conditional portion, the defeated party can file:
2. Judgment novated by subsequent agreement of the parties 1. Motion to quash the writ of execution, if denied; and
3. Equitable grounds like a change in situation of the parties 2. File petition for certiorari under Rule 65 with a prayer for
which makes execution inequitable (Supervening Fact TRO
Doctrine)
4. Execution is enjoined (e.g. Petition for Relief or Annulment Jurisprudence
of Judgment with TRO or writ of Preliminary Injunction) 1. The dispositive portion of the judgment approving
5. Judgment has becomes dormant compromise and enjoining strict compliance thereto by
EXCEPT support which can be executed by motion the parties is adequate for purposes of execution
6. Execution is unjust or impossible (Rodriguez v. Alikpala)
7. When the judgment has already been executed by 2. Where ejectment suit is dismissed and six months
voluntary compliance thereof by parties extension of lease is granted, upon expiration of period, a
8. When refusal to execute has become imperative in the motion for execution of judgment and not a new ejectment
higher interest of justice suit, will suffice to eject defendant from leased premises
9. When the execution is sought against property exempt (Heirs of Julio Rosas v. Reyes)
from execution under Sec. 13, Rule 39 3. In a compromise agreement, where the decision of the
appellate court did not order appellant to do anything for
Instances Where Execution is a Matter of Right or to pay any amount to appellee, but merely specified the
1. Rule 39, Sec. 1 nature of the contract between the parties and defined
a. Sec. 1, par. 1 No appeal; judgment becomes final their rights thereunder, there was nothing to be executed
b. Sec. 1, par. 2 there is an appeal; once CA judgment under such decision
becomes final What was merely created was a right of action
2. Sec. 4 judgment in an action for injunction, receivership, (Capalungan v. Medrano)
accounting, support, judgment declared to be immediately 4. When petitioner agreed to pay the stipulated amount,
executory; and what was created was a right of action in favor of private
3. Rule 70 judgment in forcible entry and unlawful detainer respondents in case of default, which must, however, be
enforced by filing the corresponding complaint in court
There must be a Motion with Notice and not through an application for an alias writ of
- Execution may only issue upon motion with notice of execution particularly where no proviso in the decision
hearing with respect to future default (Magno v. Blanco)
- Note that if the party against whom it is directed could
show facts that had developed subsequently that would
make it unjust or inequitable, a hearing is indispensable WRIT OF EXECUTION; TO WHOM ISSUED
before issuance of writ
Otherwise, the writ of execution would be void for When execution is a matter of right
lack of compliance with procedural due process - Judgment debtor need not be given advance notice or prior
hearing of such motion for execution
Ministerial Duty of the Court An ex parte motion for issuance of writ would suffice
- Finality of judgment has the effect of entitling prevailing The trial court may take judicial notice of the record
party to execution as a matter of right of the case to determine the propriety of the issuance
- It is the ministerial duty of the court to do - However, if the losing party shows that subsequent facts
Demandable by mandamus had taken place which would render execution unjust, a
Such ministerial duty finds exception when hearing on the motion should be held
subsequent events would render execution of
judgment unjust Duty of the Sheriff The officer charged with execution of judgment
a. For this supervening event to apply, the event in the absence of a restraining order is enjoined:
must happen after the judgment has become 1. To act with considerable dispatch so as not to unduly delay
final and executory the administration of justice and
2. To ensure that only that portion of a decision ordained or
decreed in the dispositive should be the subject of
DISPOSITIVE PORTION AS SUBJECT OF EXECUTION execution

It is basic that the only portion of the decision that becomes subject GENERAL RULE: Writ is to be issued ONLY against parties
to execution is that ordained in the dispositive portion - Only real parties in interest in an action are bound by
judgment rendered therein and by the writs of execution
GENERAL RULE: The dispositive portion of decision is that part that - Not against one who did not have his day in court
becomes the subject of execution No man shall be affected by any proceeding to which
he is a stranger
EXCEPTIONS:
1. Where there is ambiguity, the body of the opinion may be
referred to for purposes of construing the judgment

51
EXCEPTIONS: There are certain cases where the writ may be issued 2. Should be raised before the decision of the appellate
against non-parties court became final
1. One who is privy to judgment debtor can be reached by an - A partys failure to bring to attention the appellate court,
order of execution and writ of demolition (Vda. De Medina through filing of proper motions, supervening event is
v. Cruz) deemed waived as a defense
2. Issued against one who not being originally a party to the
case submits his interest to the court for consideration in A supervening event may prevent execution One of the exceptions
the same case and invites adjudication regarding said to the immutability of final judgments is the existence of
interest (Jose v. Blue) supervening events
3. Where non-parties voluntarily signed the compromise
agreement or voluntarily appeared before court Supervening events refer to:
(Rodriguez v. Alikpala) 1. Facts which transpire after judgment has become final and
4. Where the remedy of a person not a party to the case executory. Or
which he did not avail of, was to intervene in the case in 2. New circumstances which developed after the judgment
question involving rights over the same parcel of land and has acquired finality
said person in another case was adjudged buyer in bad 3. Matters which the parties were not aware of prior to or
faith thereof (Lising v. Plan) during the trial as they were not yet in existence at that
5. In an ejectment case, where 3rd party derived his right of time
possession from defendant particularly when such right
was acquired only after filing of ejectment suit (Cordova v. NOTE: The supervening facts or circumstances must either bear a
Tornilla) direct effect upon the matters already litigated and settled or create
a substantial change in the rights or relations of the parties therein
Writ in Favor of Non-Party which render execution of the final judgment unjust or impossible
- In Vda. De Chi v. Taneda, the SC held that in the interest of (Lim v. Jabalde)
justice, a court may, on execution, conduct a hearing to
find out if the person not a party to a case is entitled to In fine, a suspension or refusal of execution of a final and executory
execution judgment or order on equitable grounds can only be justified upon
- In that case: facts and events transpiring after the judgment or order had become
Judgment was rendered in favor of patients who were executory, materially affecting the judgment or obligation.
victims of a vehicular accident, who did not pay their
hospital bills Facts or events bearing on the substance of the obligation subject of
Hospital asserted their claim against patients after the action
rendition of judgment 1. Should ordinarily be alleged during issue-formulation, or
Hospital was allowed to recover on the judgment in a by proper amendment, and proved during trial
proceeding supplementary to execution even if the 2. If discovered after case has been submitted but before
hospital was not a party to the case rendering decision:
a. These facts should be proved after obtaining a
When Portion of a Judgment may be Executed reopening the case
1. Where a portion of one single judgment is not the subject 3. If discovered after the case has been rendered but before it
of appeal becomes final
2. If that portion is separable and distinct from the portions a. They must be substantiated upon a new trial secured
under appeal and will not be affected by such appeal in by motion under Rule 37 on the ground of newly
other respects discovered evidence
3. Where that portion needs no further proceedings and has 4. Once the judgment becomes executory:
acquired finality a. The only remedy left to attempt a material alteration
4. Where a decision contains separate findings for each of the is that in Rule 38, or an action to set aside the
parties and makes distinct rulings for each of them judgment on account of extrinsic fraud

Cases Where Execution May Issue Even if Judgment not Final NOTE: There is no other permissible mode of preventing
1. Support pendente lite or delaying execution on equitable grounds predicated on
2. Judgments of inferior courts in ejectment cases facts occurring BEFORE finality of judgment
3. Execution pending appeal
4. Injunction, accounting, receivership, support EXAMPLE: Defendants in an action for recovery of ownership and
5. Decision of the RTC in appealed civil cases under Summary possession failed to allege in their answer to their status as builders
Procedure, including forcible entry and unlawful detainer in good faith and failed to present evidence on trial, although they
6. Decision of the LA reinstating dismissed employee, insofar were declared as such by appellate court
as reinstatement aspect is concerned - When decision became final and remanded for execution,
they cannot present proof of the value of necessary and
useful expenses subject to reimbursement under Art. 546
SUPERVENING EVENT DOCTRINE - They should have:
1. Sought leave to present proof of the value of the
Note: A supervening event can also be invoked for the modification necessary and useful expenses
or alteration of a final judgment a. In the appellate proceedings or after being
- Before an event can be considered a supervening event, declared builders in good faith by the appellate
justifying modification or alteration of a final judgment, court
the event must: 2. Or they should have set this up as a counterclaim in
1. Have transpired after judgment has become final and the original suit
executory, and a. Alternative to the defense of ownership

52
b. Since they did not set this up, it is now barred NO EXECUTION AGAINST GOVERNMENT

EXAMPLE: When decision has been rendered unenforceable on Execution may not issue against the government
account of undetermined amount to be awarded
- Trial court must receive evidence to determine exact Jurisprudence
amount 1. Salaries of government employees still in the hands of
- In the meantime, stay of execution is inevitable public officer are public funds (Pacific Products v. Ong)
2. However, while all government funds deposited with the
Remedies Where there is a Supervening Fact PNB by any agency or instrumentality of the government
- The interested party may ask the court to modify or alter whether by way of special or general deposit, remain
the judgment to harmonize the same with justice and the government funds and may not be the subject of levy
facts Where an ordinance has already been enacted
- Motion to quash execution should be addressed to the appropriating an amount as payment to respondent,
court form which the writ issued and by the party to the then the case is covered by the exception (Pasay City
original suit who is liable to be injured thereby Gov. v. CFI Manila)
Or in an appeal or special civil action for certiorari,
prohibition, or mandamus
QUASHAL OF A WRIT OF EXECUTION
EXAMPLE: In De la Costa v. Cleofas Cleofas alleged subsequent
agreement that he is indebted for a lesser amount Quashal of Writ of Execution When Proper
- In such circumstances, it was held that it was the courts 1. A change in the situation of the parties renders execution
duty to allow Cleofas to substantiate his allegation and inequitable
thereafter to issue an execution 2. Issued against wrong party
3. Issued without authority
4. Improvidently issued
WHERE JUDGMENT HAS BEEN NOVATED BY PARTIES 5. Defective in substance
6. Judgment already satisfied; and
Requisite of Novation: 7. The controversy was never submitted to the court
1. Incompatibility between judgment and new agreement 8. Where the writ varies the terms of the judgment
2. Animus novandi 9. It is sought to be enforced against property exempt from
execution
Note: that the change contemplated by this exception is one which 10. Where there is ambiguity in the terms of the judgment
occurred SUBSEQUENT to the judgment
Note: Ultimately, these defects may also be challenged on
Jurisprudence appeal or in certiorari, prohibition, or mandamus actions
1. Condonation while the case is still pending before the CA (Limpin, et. Al. v. IAC, et al.)
does not constitute a supervening event (Pacific Mills Inc.
and George Lim v. Hon. Padolina) Whatever irregularities attended the issuance and execution of a
2. Vide Obsbase v. Nocos The said agreement simply gave writ of execution should be referred to the same court which
the plaintiff a method and more time for the satisfaction of rendered the same
said judgment. - Any court which issued a writ of execution has the
it did not extinguish the obligations contained in the inherent power to correct its errors and control its own
judgment processes
the contract and punctual compliance with its terms - Court which rendered judgment has a general supervisory
only delayed the right of defendant to an execution control over its processes of execution
upon judgment This power carries with it the right to determine
3. Fua Cam Lu v. Yap Fauco That appellants liability under every question of fact and law which may be involved
the judgment had been extinguished by the statement in the execution
evidenced by the mortgage executed by them in favor of
appellee Jurisdiction to Entertain Motions to Quash Writs of Execution
Although the mortgage did not expressly cancel the - Jurisdiction and power to entertain motions to quash and
old obligation, this was impliedly novated by reason to correct errors and mistakes in the execution properly
of incompatibility belongs to the court which issued the execution
Later agreement did not merely extend time to pay Courts general supervisory control over its processes
judgment, because it was therein recited that of execution
appellant promised to pay a sum as a settlement of
the said judgment Jurisprudence
4. Santos v. Acuna, et al. plaintiff agreed twice to give 1. Partial execution of a judgment for mandamus ordering
appellants the chance to repurchase properties but it was reinstatement and a motion for reconsideration on the
always subject to the right of plaintiff to enforce the writ of amount of damages is permissible, the judgment being
possession in case appellants failed to comply divisible (Vital-Gozon v. CA)
Subsequent arrangements were entered into without 2. In Medado v. CA, an action to annul an execution sale was
any unqualified intention to discard or replace the considered to all intents and purposes as a motion to
judgment in favor of plaintiff quash the writ of execution and therefore should be
No animus novandi lodged before the same body who issued the decision
3. If the claim of impropriety on the part of the sheriff in
execution proceedings is made by a party to the action, any

53
relief therefrom may be applied for with, and obtained d. Delivery of personal and real property
only from, the executing court (Ong v. Tating et al.)
a. Where the property is claimed by a third party, a Unlike judgments that are final and executory, a judgment subject to
separate action by third party who claims to be the discretionary execution cannot be insisted upon but simply prayed
owner of the property attached is appropriate and hoped for
(Esteban Uy, Jr. v. CA)
COURTS AND JURISDICTION

SECTION 2 - Discretionary execution. Execution Pending Appeal


(a) Execution of a judgment or final order pending 1. By the Appellate Court -- it can order execution pending
appeal. On motion of the prevailing party with notice appeal for good reasons to be stated in a special order
to the adverse party filed in the trial court while it has after due hearing
jurisdiction over the case and is in possession of either 2. By the Trial Court may also do so in the exercise of its
the original record or the record on appeal, as the case residual jurisdiction under Rule 41 and 42
may be, at the time of the filing of such motion, said If the trial court lost jurisdiction by reason of
court may, in its discretion, order execution of a perfection of appeal, motion for execution pending
judgment or final order even before the expiration of appeal may be filed in the appellate court to which
the period to appeal. the original record or record on appeal been elevated
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be filed in the The CA had no authority to issue immediate execution pending
appellate court. appeal of its OWN decisions therein
Discretionary execution may only issue upon - Discretionary execution is allowed pending appeal of
good reasons to be stated in a special order after due judgment or final order of RTC, upon good reasons stated
hearing. in special order after due hearing
(b) Execution of several, separate or partial judgments.A - Judgment of CA cannot be executed pending appeal
several, separate or partial judgment may be executed - Once final and executory
under the same terms and conditions as execution of a Judgment on appeal must be remanded to lower
judgment or final order pending appeal. (2a) court, where a motion for execution may be filed only
after its entry
Discretionary Execution - Dont confuse this with Sec. 2(a) governing discretionary
1. Execution of Judgment or Final Order Pending Appeal execution of the decision of the RTC on appeal in the CA
a. How done: and the RTC lost jurisdiction over the case
(1) On motion of prevailing party
(2) With notice to adverse party Prior to transmittal of the original record or the record on appeal,
(3) Filed: the court may issue orders for the protection and preservation of the
(a) In trial court while it has jurisdiction over rights of the parties which do not involve any matter litigated by the
the case and is in possession of either the appeal (Residual jurisdiction)
original record or record on appeal at the
time of filing Note that Sec. 9, Rule 41 seemingly allows the court to order
(b) If trial court has lost jurisdiction, file in the execution pending appeal, even after perfection of appeal, but it is
appellate court limited in that the issuance must be in accordance with Sec. 2, Rule
b. Such court may, in its DISCRETION, order execution 39
of a judgment or final order even before expiration of - That is, while it has jurisdiction over the case and is in
the period to appeal possession of either the original record or record on
(1) Discretionary execution may only issue upon appeal, as the case may be, at the time of the filing of such
good reasons motion
(a) To be stated in a special order after due
hearing Herrera comments:
2. Execution of several, separate, or partial judgments - He believes that whether it is the court where the records
a. May be executed under same terms and conditions as are or the appellate court that should issue the writ is in
execution pending appeal essence merely procedural, not jurisdictional
- It is within the power of the SC to promulgate rules to
EXECUTION AS A MATTER OF provide that despite perfection of appeal and the filing of
DISCRETIONARY EXECUTION
RIGHT the motion for execution thereafter, the lower court may
May issue before the lapse of Period to appeal has already order execution pending appeal prior to transmittal of
period to appeal, and even lapsed and no appeal is records
during appeal perfected In the same manner that the Rules, despite perfection
Discretionary upon the court Ministerial duty of the court of appeal, allow the court to issue orders for
Upon showing of good reason Provided there are no protection and preservation of the rights of the
for execution supervening events parties which do not involve any matter litigated by
appeal
Basic Steps in Execution
1. Execution is ordered (Sec. 1 or 2) The courts authority to act on a case is not limited to the residual
2. Sheriff enforces writ of execution jurisdiction provided in Sec. 9, Rule 41
3. Losing party is made to indemnify thru: - The Rules permit a petition for relief under Rule 38
a. Payment of interest - There is no reason why the SC may not provide for the
b. Levy and sale of personal property issuance of a writ execution even after perfection of the
c. Levy and sale of real property appeal where the judgment has not yet become final and

54
executory for as long as the court is in possession of the DISCRETIONARY EXECUTION
record
Requisites for Discretionary Execution
The duration of the courts discretionary power is while the trial 1. There must be a motion filed by prevailing party with
court has jurisdiction over the case and is in possession of either the notice to adverse party
original record or record on appeal at the time of the filing of such 2. There must be a hearing of the motion for discretionary
motion. execution
3. There must be good reasons to justify the discretionary
When does the Court still has jurisdiction? execution
- Under BP 129: 4. These good reasons must be stated in a special order after
1. An appeal by notice of appeal is deemed perfected due hearing
upon expiration of the last day to appeal by either
party Guidelines:
2. In exceptional cases where record on appeal is still 1. Execution pending appeal must be strictly construed
required, the appeal is perfected upon approval It is an exception to the general rule
thereof Must not be availed of routinely, only in exceptional
- A motion for execution pending appeal filed before circumstances
perfection of an appeal by mere notice, may still be acted 2. Valid exercise of discretion to allow execution pending
upon and granted AFTER such perfection but BEFORE appeal requires that it should be based upon good reasons
transmittal of record to appellate court to be stated in a special order
- This means that discretionary execution may issue in cases 3. The Court has been very discriminating in the allowance of
where appeal is taken, where motion for execution was such exceptional execution
filed before the perfection of the appeal, which shall be 4. Reasons allowing execution must constitute superior
upon expiration of the last day to appeal by any party circumstances demanding urgency which will outweigh
Before expiration of period, a motion for execution the injury or damages should the losing party secure
pending appeal may be filed and may be acted upon reversal of judgment
by the court even if thereafter the period to appeal
has expired Importance of Good Reasons
Courts jurisdiction to act on the motion continues - If the judgment is executed and, on appeal, the same is
until it is resolved reversed, damages on top of restitution may arise which
cannot be fully compensated
Under the Sec. 9, Rule 41, the trial court loses jurisdiction upon - Execution should be granted only when these
perfection of the appeal. considerations are clearly outweighed by superior
circumstances demanding urgency
Thus, the duration of the courts discretionary power to order - The rule requires a statement of these circumstances as a
execution pending appeal therefore depends on: security for their existence
1. Where a record on appeal is required If the order granting execution neither states the
a. The court loses jurisdiction only over the subject reasons nor make reference to reasons alleged by
matter thereof upon approval of the record on appeal movant, the same should be annulled and set aside
filed in due time and the expiration of the time to
appeal of the other party Examples of Good Reasons:
1. Where the goods subject of the judgment stand to perish
2. Where no record on appeal is required, the court may or deteriorate during the pendency of the appeal (Yasuda
issue a writ of execution before perfection of appeal v. CA)
a. A partys appeal by notice of appeal is deemed 2. The award of actual damages is for an amount fixed and
perfected as to him upon the filing of the notice of certain (Radio Communications Inc. v. Lantin)
appeal in due time Not an award for moral and exemplary damages
b. But not as to the other party whose period to appeal 3. Insolvency of a defeated party (Hacienda Navarro v.
has not yet expired Labrador)
Determination of the period to appeal should not be 4. The prevailing party is of advanced age and in a precarious
only from date one party received a copy of the state of health and the obligation in the judgment is non-
decision, but also from the date the other party had transmissible, being for support (De Leon v. Soriano)
notice thereof 5. Where defendants were exhausting their income and have
Thus, an appeal is perfected upon the expiration of no other property aside from proceeds of the property
the last day to appeal by any party. It is not perfected subject in litigation (Lao v. Mencias)
on the date the notice of appeal was filed
As such, the prevailing party may file a motion for Where Reasons were deemed Insufficient
execution pending appeal: 1. A precarious financial condition is not a compelling
1. With the court which rendered the judgment circumstance warranting immediate execution (Heirs of
before it loses jurisdiction over the case or the Justice JBL Reyes v. CA)
subject matter thereof 2. Mere allegations that appeal is dilatory (International
2. If motion is filed on time, it may be granted even School Manila v. CA)
after the court has lost jurisdiction but before 3. Mere payment of a bond in itself is not sufficient
transmission of the records to the appellate
court Intent to Delay as a Reason
After the trial court has lost jurisdiction and the 1. In Javellana v. Querubin an intent to delay alone is
records have been transmitted to the appellate court, sufficient and is determined from surrounding
motion must be filed with the appellate court

55
circumstances such as the repeated continuance sought by SECTION 3- Stay of discretionary execution.Discretionary
petitioner execution issued under the preceding section may be stayed upon
2. In RCPI v. Lantin merits of the main case are not to be approval by the proper court of a sufficient supersedeas bond
determined in a petition questioning execution pending filed by the party against whom it is directed, conditioned upon
appeal However, the facts and circumstances clearly the performance of the judgment or order allowed to be executed
brought out during trial cannot help but influence whether in case it shall be finally sustained in whole or in part. The bond
or not an appeal appears to be dilatory thus given may be proceeded against on motion with notice to the
3. Baliong v. Martinez whether or not the petitioner has a surety. (3a)
valid defense or that the appeal is intended to delay the
execution of the judgment are controversial issues based Stay of Discretionary Execution under Sec. 2
on finding of fact that should be left to the appellate court 1. Party against whom the discretionary execution is directed
and shall not be the sole basis for immediate execution of files a sufficient supersedeas bond
judgment 2. Approval of the court of the supersedeas bond is required
4. Sasan v. CA delay was held as a good reason for a. Conditioned upon the performance of the judgment
immediate reaction or order allowed to be executed in case it shall be
5. Ong v. CA the reason given is that an appeal is frivolous finally sustained in whole or in part
and dilatory, execution pending appeal cannot be justified. b. Bond given may be proceeded against on motion with
It is not proper for the trial court to find that an appeal is notice to surety
frivolous and consequently to disapprove it since the
disallowance of an appeal by said court constitutes a GENERAL RULE: An order of execution is not appealable otherwise
deprivation of the right to appeal there would be no end to the litigation between the parties

Mere Posting of a Bond is not Sufficient EXCEPTIONS:


- To consider the mere posting of a bond a good reason 1. When the terms of the judgment are not very clear; and
would precisely make immediate execution pending 2. When the order of execution varies with the tenor of the
appeal routinary judgment
- It is now settled that the filing of a bond cannot by itself
alone entitle one to immediate execution pending appeal To determine whether an execution should be stayed or not, merits
(Eudela v. CA) of the case which should not be determined in advance of the appeal
are of no moment
In Election Cases
- Execution pending appeal is not favored in election cases Supersedeas Bond one filed by the party against whom the
unless there are good reasons apart from the protestant execution was issued and approved by the court conditioned upon
being declared as winner the performance of the judgment or order allowed to be executed in
- It must be manifest in the decision sought to be executed case it shall be finally sustained in whole or in part
that the defeat of the protestee and the victory of the - Guarantees satisfaction of the judgment in case of
protestant has been clearly established affirmance on appeal
- Thus, a combination of 2 or more of the following reasons: - It does not answer for damage to property pending appeal
1. Public interest involved or the will of the electorate
2. The shortness of the remaining period of the term of Fixing amount of supersedeas bond is left to court discretion
the contested office - It must be conditioned on performance of the judgment
3. The length of time that the election contest has been - It is not a delivery bond or for damages
pending
- See Santos v. COMELEC, Fermo v. COMELEC, Navarosa v. Guidelines:
COMELEC, Repo v. COMELEC 1. If a judgment which is affirmed on appeal awards no
damages or costs, liability of supersedeas bond is
terminated
TRIAL TYPE OF HEARING NOT REQUIRED 2. If appeal is discontinued, supersedeas bond not
answerable. Nothing is affirmed
A trial type of hearing is not necessary in granting the motion for 3. If bond originally filed is not proper, party should be given
execution pending appeal. Due process basically entails the opportunity to file sufficient one
opportunity to be heard. 4. Liability of surety on supersedeas bond cannot be reduced
5. Bond filed after judgment becomes final is without force
Since under BP 129, appeal is now generally taken by merely filing a and effect
notice of appeal, it was then held that the motion for immediate 6. Execution of supersedeas bond is in the same case unless
execution should be filed before notice is filed and the appeal given the bond is contractual
due course by the trial court, the perfection of appeal in such case 7. Execution pending appeal does not bar continuance of
being the lapse of the last day for all parties to appeal. appeal on merits

Sec. 3 is NOT a matter of right


REMEDY AGAINST EXECUTION PENDING APPEAL - Trial court may disregard the supersedeas bond and order
immediate execution
The remedy against execution pending appeal is CERTIORARI. Provided there are special and compelling reasons
- The fact that the losing party has also appealed from the justifying execution
judgment does not bar the certiorari proceedings - The filing of such bond does not entitle him to the
The appeal could not be an adequate remedy for such suspension of execution as a matter of right
premature execution (Jaca v. Davao Lumber Co.) - It is not considered a plain, speedy, and adequate remedy

56
- No rule requires a losing party to adopt such remedy in Jurisprudence
lieu or before availment of other remedial options 1. Appeal does not stay the execution of a judgment
decreeing dissolution of a preliminary injunction (Aguilar
v. Tan et al.)
SECTION 4 - Judgments not stayed by appeal.Judgments in 2. Rule on immediate execution of a judgment in an
actions for injunction, receivership, accounting and support, and injunction case does not apply to a judgment in an action
such other judgments as are now or may hereafter be declared to for prohibition (Embroidery & Apparel Control &
be immediately executory, shall be enforceable after their Inspection Board v. Cloribel)
rendition and shall not be stayed by an appeal taken therefrom, 3. A judgment in an action where accounting is ordered, as a
unless otherwise ordered by the trial court. On appeal therefrom, primary or incidental relief, is a final and appealable
the appellate court in its discretion may make an order judgment (Miranda v. CA, et al.)
suspending, modifying, restoring or granting the injunction, 4. General rule is that in partition, an appeal will not lie until
receivership, accounting, or award of support. partition and distribution proceedings are terminated
The stay of execution shall be upon such terms as to bond a. This does not apply where appellant claims exclusive
or otherwise as may be considered proper for the security or ownership of the whole property and denies the
protection of the rights of the adverse party. (4a) adverse partys right to any partition (Garbo v. CA)

Judgments not stayed by appeal


A. The following are immediately executory: SECTION 5 - Effect of reversal of executed judgment.Where the
1. Judgments in actions for injunction executed judgment is reversed totally or partially, or annulled, on
2. Judgments in actions for receivership appeal or otherwise, the trial court may, on motion, issue such
3. Judgments in actions for accounting orders of restitution or reparation of damages as equity and
4. Judgments in actions for support justice may warrant under the circumstances. (5a)
5. Other judgments as are now or may hereafter be
declared to be immediately executory Effect of Reversal of Executed Judgment
B. They are: A. If the executed judgment, on appeal, is
1. Enforceable after their rendition a. Reversed, totally or partially
2. Shall not be stayed by an appeal taken therefrom b. Or annulled
a. UNLESS otherwise ordered by the trial court B. Then the trial court may, ON MOTION:
C. On appeal therefrom: a. Issue such orders of:
1. The appellate court may make an order suspending, (1) Restitution, or
modifying, restoring, or granting it (2) Reparation of damages as equity and justice may
D. Stay of execution shall be upon such terms as to bond or warrant under the circumstances
otherwise as may be considered proper for the security or
protection of the rights of the adverse party Under Sec. 5, the party who moved for immediate execution should,
upon return of the case to the lower court, be required to make
Review: The fact that the decision has become final does not specific restitution. If specific restitution becomes impracticable,
preclude the modification or an alteration thereof because even with losing party in execution becomes liable for the full value at the time
the finality of judgment, when its execution becomes impossible or of seizure of property, with interest
unjust, it may be modified or altered to harmonize the same with
justice and facts How Restitution is Effected
1. Judgment debtor may elect:
GENERAL RULE: Only judgments and final orders or resolutions may a. To compel judgment creditor as purchaser to return
be executed the property with damages for deprivation, or
- Execution shall issue only if the judgment has become b. To affirm the sale and compel the creditor to account
executory, that is, no motion for new trial or for the purchase price
reconsideration has been filed, nor has an appeal or 2. If restitution is not possible, go to compensation
certiorari been taken therefrom
Compensation is made as follows:
EXCEPTIONS: Judgments immediately executory 1. If purchaser at public auction was judgment creditor:
1. Orders in injunction, receivership, accounting cases a. He must pay the full value of the property at the time
Those mentioned in Sec. 4 which contemplates that of its seizure
such directives are pursuant to a judgment b. Plus interests
2. Orders granting support pendente lite 2. If purchaser was a third person:
This can be executed even if the main action is still a. Judgment creditor must pay the judgment debtor the
pending amount realized from sheriffs sale
3. Judgments of inferior courts in ejectment (Sec. 19, Rule b. Plus interests
70) 3. If judgment award was reduced on appeal:
a. Judgment creditor must return to judgment debtor
Injunctions only excess which he received over and above that to
- A judgment in an action for injunction shall not be stayed which he is entitled under final judgment
after its rendition and before an appeal is taken or during b. With interest on such excess
the pendency of an appeal
- The execution of a judgment decreeing the dissolution of a Notes:
writ of preliminary injunction shall not be stayed before - The illegality of the order of the court allowing premature
an appeal is taken or during pendency of an appeal execution does not affect the liability of the party moving
- The foregoing also applies to TROs for such execution in case the judgment is reversed or
modified

57
SECTION 6 - Execution by motion or by independent action. The Five Year Period
A final and executory judgment or order may be executed on - It may be extended if delay is traceable to the fault of
motion within five (5) years from the date of its entry. After the judgment debtor
lapse of such time, and before it is barred by the statute of - It is to be counted not from the date the judgment became
limitations, a judgment may be enforced by action. The revived final in the sense that no appeal could be taken therefrom
judgment may also be enforced by motion within five (5) years but when it became executory in the sense that it could
from the date of its entry and thereafter by action before it is already be enforced
barred by the statute of limitations. (6a) a. Example: Compromise agreement approved by court
provided for payment of a sum to be paid within 6
Execution by Motion or Independent Action years
A. A final and executory judgment or order may be executed (1) This judgment can be executed only after the
on motion within 5 years from date of entry expiration of the 6-yr period
B. After the lapse 5 years: (2) Remedy of judgment creditor after lapse of 6
1. Judgment may be enforced: years is not revival of judgment since no
a. By action execution could be had within that period
b. And before it is barred by statute of limitations
C. A revived judgment: There are many instances where the Court allowed execution by
1. May also be enforced: motion even after the lapse of 5 years, upon meritorious grounds
a. By motion - One common denominator: The delay is caused or
b. Within 5 years from date of entry occasioned by actions of the judgment debtor and/or is
2. Thereafter, it may be enforced: incurred for his benefit or disadvantage
a. By action - Any interruption or delay occasioned by the debtor will
b. Before it is barred by statute of limitations extend the time within which the writ may be issued
without scire facias
Modes of Enforcement
1. By Motion If a writ of execution was issued and levy made on the property
a. Within 5 years from date of entry within the 5-yr period, the sale of the property thereafter will be
2. By Independent Action for Revival of Judgment valid provided that it is made within the 10-yr period (Quiambao v.
a. After 5 years from entry Manila Motor Co.)
b. And before it is barred by statute of limitations which - If no levy was made within the 5-yr period, the writ of
is 10 years from entry (Art. 1144 (3)) execution may no longer be enforced even if it was issued
This action is a personal one and not quasi in rem within the 5-yr period

Sec. 6 is NOT applicable in: Failure to object to a writ of execution issued after 5-years from final
1. Judgments for support (this judgment does not become judgment does not validate the writ
dormant) - Question of jurisdiction of the court is involved and
2. Contempt orders in unauthorized reentry on the land by jurisdiction cannot be conferred by the will of the parties
an ejected defendant
3. Issuance of a writ of possession
4. Special proceedings INDEPENDENT ACTION FOR REVIVAL OF JUDGMENT

Sec. 6 v. Sec. 34 After the 5-yr period, there is a need for the interested party to file
an independent action for revival of judgment by instituting an
REVIVAL OF JUDGMENT IN REVIVAL OF JUDGMENT IN ordinary civil action
SEC. 6 SEC. 34 - After the 5-yr period, the judgment is reduced to a mere
It is carried out through the right of action so it must be enforced by ordinary action
It is an independent action - Such action must be filed within 10 years from the date the
filing of a motion in court
Assumes that there is no Assumes that a judgment is judgment became final
execution within the first 5 executed within the first 5 - A revived judgment may also be revived within the same
years years period
The party who files the action Party who files such motion is
is the judgment creditor or his not the original judgment Dormant Judgment is one that was not executed within 5 years
assignee, or successor-in- creditor but he is the highest - Enforcement of dormant judgment is in the nature of an
interest bidder in the public auction sale ordinary civil action
Filed because the movant is - Object of the action:
Filed due to lapse of the 5 yr. 1. Reviving the dormant judgment, and
deprived of the property
period 2. Executing the judgment reviving it
purchased
A revived judgment is a new judgment
- Thus, another 5 or 10 year period to execute and revive is
MOTION FOR EXECUTION
given the party
- That 2nd revived judgment can again be enforced under
The court could issue a writ of execution by motion within 5 years
Sec. 6
from finality of the decision
- A writ of execution filed after the expiration of that period
The Ten-Year Period
is null and void
- The 10-yr prescriptive period commences to run from the
- Note that date of finality shall be deemed the date of its
date of finality of the REVIVED judgment and not of the
entry (Sec. 2, Rule 36)
original judgment

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The revived judgment is a new judgment His only remedy is appeal
- For as long as the original judgment was revived within - If the appellate court denies him such relief:
the prescriptive period, the revived judgment may also be He must take what is offered by the second judgment
enforced by motion within 5 years from date of its entry or nothing
and thereafter be revived by action - The revived judgment cannot award new monetary
- The rule follows the old ruling in PNB v. Bondoc that a obligations
revived judgment is enforceable by motion within 5 years
and by another action within 10 years from its finality
- The following rules will also be followed: SECTION 7 - Execution in case of death of party.In case of the
If judgment is based upon compromise which is death of a party, execution may issue or be enforced in the
immediately executory, prescription runs from date following manner:
of rendition, not from entry (a) In case of the death of the judgment obligee, upon the
If an amendatory or clarificatory judgment was application of his executor or administrator, or
issued, it is from the date of entry thereof successor in interest.
(b) In case of the death of the judgment obligor, against his
Nature of the Action executor or administrator or successor in interest, if the
- The action for revival is a new and independent action judgment be for the recovery of real or personal
- It is a personal one, not quasi in rem property, or the enforcement of a lien thereon;
- The cause is the judgment itself and not the merits of the (c) In case of the death of the judgment obligor, after
action upon which the judgment sought to be enforced is execution is actually levied upon any of his property, the
rendered same may be sold for the satisfaction of the judgment
- It is not to re-examine and retry the issues obligation, and the officer making the sale shall account
- In an application to revive, plaintiff does not have to prove to the corresponding executor or administrator for any
the enforceability of the judgment surplus in his hands. (7a)
Sec. 6 states that an action to revive only requires
proof of a final judgment and has remained Execution in case of death of party, execution is enforced:
unexecuted after the lapse of 5 years but not more A. If death of judgment obligee:
than 10 years from its finality a. Execution upon application of his:
1. Executor or administrator, or
Where to File 2. Successor in interest
- Independent action to revive will not necessarily be filed B. If death of judgment obligor
with the same court that decided the case a. If judgment be for recover of real or personal
- It shall be filed in the RTC as one incapable of pecuniary property, or enforcement of a lien thereon:
estimation (Rianos view) 1. Execution against his executor or administrator,
- It must satisfy requirements of venue in Rule 4 or successor in interest
- According to Herrera: b. After execution is actually levied upon his property
It would depend on the character of the original 1. It may be sold for the satisfaction of the
action judgment obligation
If the original action is personal, venue on personal 2. Officer making the sale shall account for any
actions will be followed; if real, venue on real actions surplus in his hand

Defenses in an Action for Revival - Being a matter of right of action, it


is subject to defenses and counterclaims which may have arisen DEATH OF JUDGMENT DEBTOR
subsequent to the date it became effective, such as:
1. Prescription Par. B applied where judgment debtor dies after the entry of the
2. Payment judgment or order which has become final and executory.
3. Counterclaims arising out of transactions not connected
with the former controversy If judgment debtor dies BEFORE ENTRY
4. Want of jurisdiction - If he dies before entry and the action is for a contractual
5. Collusion between the parties money claim, it will not be dismissed but shall continue
6. Fraud until entry of final judgment
7. Other defenses based on facts occurring after the If it is a favorable judgment, it may be enforced as a
judgment or arising out of transactions not connected with claim against debtors estate (Sec. 20, Rule 3)
the former controversy
If judgment obligor dies AFTER ENTRY but BEFORE LEVY
Notes: 1. If it is for recovery of real or personal property:
- The former proceedings may be inquired into to determine a. Execution will issue following Sec. 7
specific facts but it can never be reopened and retried 2. If judgment is for a sum of money
- Only matters of jurisdiction and those arising after the a. Such judgment cannot be enforced by writ of
finality of the first judgment may be raised in the new execution
action b. It must be filed as a claim against his estate (Sec. 5,
Rule 86)
Whatever value that former judgment may have and whatever relief
he is entitled to by virtue thereof after the lapse of 5 years depends If judgment obligor dies AFTER LEVY
upon the judgment handed down in the action seeking its - Execution sale may proceed
enforcement Regardless of whether or not it is a money judgment
- Rights of judgment creditor depend upon the 2nd judgment - Note: it is the actual date of levy on execution which is the
- If that judgment denies him any relief granted by the first: cut-off date

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Note: After a valid levy, the property is already separated from the 2. If it be against real or personal property in the hands of
estate of the deceased and is deemed in custodia legis personal representatives, heirs, devisees, legatees, tenants,
or trustees of judgment obligor
a. To satisfy judgment with interest out of such
SECTION 8 - Issuance, form and contents of a writ of execution.
The writ of execution shall: (1) issue in the name of the Republic 3. If it be for sale of real or personal property
of the Philippines from the court which granted the motion; (2) a. To sell such property, describing it
state the name of the court, the case number and title, the b. Apply the proceeds in conformity with judgment
dispositive part of the subject judgment or order; and (3) require (1) Material parts of which to be recited in the writ
the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms, in the manner hereinafter 4. If it be for delivery or possession of real or personal
provided: property
(a) If the execution be against the property of the judgment a. To deliver possession of the same, describing it, to the
obligor, to satisfy the judgment, with interest, out of the party entitled thereto
real or personal property of such judgment obligor; b. Then to satisfy any costs, damages, rents, or profits
(b) If it be against real or personal property in the hands of covered by the judgment
personal representatives, heirs, devisees, legatees, (1) Out of the personal property of obligor
tenants, or trustees of the judgment obligor, to satisfy (2) In case of insufficiency, then out of real property
the judgment, with interest, out of such property;
(c) If it be for the sale of real or personal property, to sell Award distinguished from Issuance of writ of execution
such property, describing it, and apply the proceeds in - The issuing of an execution is a ministerial act while the
conformity with the judgment, the material parts of awarding of an execution is a juridical act
which shall be recited in the writ of execution; 1. The function of ordering the execution of judgment,
(d) If it be for the delivery of the possession of real or being juridical, devolves upon the judge
personal property, to deliver the possession of the same, 2. Act of issuing the writ, being ministerial, can be
describing it, to the party entitled thereto, and to satisfy performed by another person (e.g. clerk)
any costs, damages, rents, or profits covered by the - The order of the court granting the motion is the
judgment out of the personal property of the person foundation of the writ
against whom it was rendered, and if sufficient personal If the order is ambiguous, it is imperative that before
property cannot be found, then out of the real property; the clerk can amend the writ itself, the order granting
and issuance must first be amended
(e) In all cases, the writ of execution shall specifically state The clerk is without authority to amend the writ
the amount of the interest, costs, damages, rents, or
profits due as of the date of the issuance of the writ, The writ of execution must conform to the judgment which is to be
aside from the principal obligation under the judgment. executed
For this purpose, the motion for execution shall specify - It may not vary the terms of the judgment it seeks to
the amounts of the foregoing reliefs sought by the execute nor may it go beyond the terms of the judgment
movant. (8a) - Where execution is not in harmony with judgment, it has
pro tanto no validity
The Writ of Execution shall: - The clerk could, under direction of the court, make out and
1. Issue in the name of the Republic from the court which sign all writs and processes issuing from the court
granted the motion Such writ must be in accordance with the tenor of the
a. Under execution pending appeal (Sec. 2), the writ judgment
may be sought in or issued either by the trial court or - If writ varies, it is null and void
appellate court - The dispositive portion of the decision controls the
b. Under execution as a matter of right (Sec. 1), the writ execution of judgment and must be strictly followed
must of necessity be issued by court of origin
2. State the: GENERAL RULE: The dispositive part is the subject of execution
a. Name of the court, EXCEPTIONS:
b. Case number and title, 1. Where there is ambiguity or uncertainty, the opinion body
c. Dispositive part of judgment or order may be referred for purposes of construing the judgment
3. Require the sheriff or other proper officer to whom it is 2. Where extensive and explicit discussion and settlement of
directed to enforce the writ according to its terms the issue is found in the body of the decision
4. In all cases, the writ of execution shall:
a. Specifically state the amount of interest, costs, Contents of the Writ
damages, rents, or profits due - If the judgment is for money
(1) As of date of issuance of writ Writ must state the exact amount without charging
b. Principal obligation under judgment shall also be interest
stated If none is provided in the judgment, the sheriff is not
The motion for execution shall also specify these allowed to determine the amount
amounts
If the judgment of the MTC is appealed to the RTC and the decision of
Manner of Execution the latter is elevated to the CA, whose decision thereafter became
final, the case should be remanded through the RTC to the MTC for
1. If it be against property of judgment obligor execution
a. To satisfy judgment plus interest out of his real or - the only exception is in execution pending appeal
personal property,

60
Guidelines: court that issued the writ whose clerk of court shall
- Sheriff has no authority to settle matters that are not then deliver said payment to the judgment obligee in
determined in the judgment and involve the exercise of satisfaction of the judgment. The excess, if any, shall be
judicial discretion delivered to the judgment obligor while the lawful fees
- If judgment is against administrator, writ must be in that shall be retained by the clerk of court for disposition as
capacity, not his personal provided by law. In no case shall the executing sheriff
- Writs of execution should not be equated with judgments demand that any payment by check be made payable to
as regards their conclusiveness him.
- Writs may serve as evidence only of the unsettled portion (b) Satisfaction by levy.If the judgment obligor cannot
of the judgment pay all or part of the obligation in cash, certified bank
check or other mode of payment acceptable to the
A writ of possession may only be issued in the following cases: judgment obligee, the officer shall levy upon the
1. Land registration proceedings, which are in rem properties of the judgment obligor of every kind and
2. Extrajudicial foreclosure of real estate mortgage nature whatsoever which may be disposed of for value
3. Judicial foreclosure of a real estate mortgage, which is a and not otherwise exempt from execution giving the
quasi in rem proceeding. Provided: latter the option to immediately choose which property
a. That mortgagor is in possession of mortgaged or part thereof may be levied upon, sufficient to satisfy
property and the judgment. If the judgment obligor does not exercise
b. That no third person, not a party to the foreclosure the option, the officer shall first levy on the personal
suit, had intervened properties, if any, and then on the real properties if the
4. Execution sales personal properties are insufficient to answer for the
judgment.
Remedies in a Writ of Execution The sheriff shall sell only a sufficient portion
- If there is a defect in the writ, file a motion to quash the of the personal or real property of the judgment obligor
writ of execution which has been levied upon.
If said motion is denied, appeal from said denial When there is more property of the
- An order granting the issuance of a writ of execution is not judgment obligor than is sufficient to satisfy the
appealable, except where: judgment and lawful fees, he must sell only so much of
1. The order varies the terms of the judgment, or the personal or real property as is sufficient to satisfy
2. Where, being vague, the court renders what is the judgment and lawful fees.
believed to be a wrong interpretation Real property, stocks, shares, debts, credits,
- A party is not permitted to appeal if: and other personal property, or any interest in either
1. He voluntarily executed a judgment, partially or in real or personal property, may be levied upon in like
toto manner and with like effect as under a writ of
2. He voluntarily acquiesces or ratifies, partially or in attachment.
toto (c) Garnishment of debts and credits.The officer may levy
- As a writ of execution cannot be appealed, neither can the on debts due the judgment obligor and other credits,
order of demolition issued pursuant thereto be appealable including bank deposits, financial interests, royalties,
(David v. Ejercito et al.) commissions and other personal property not capable
of manual delivery in the possession or control of third
parties. Levy shall be made by serving notice upon the
SECTION 9 - Execution of judgments for money, how enforced person owing such debts or having in his possession or
(a) Immediate payment on demand.The officer shall control such credits to which the judgment obligor is
enforce an execution of a judgment for money by entitled. The garnishment shall cover only such amount
demanding from the judgment obligor the immediate as will satisfy the judgment and all lawful fees.
payment of the full amount stated in the writ of The garnishee shall make a written report to
execution and all lawful fees. The judgment. obligor the court within five (5) days from service of the notice
shall pay in cash, certified bank check payable to the of garnishment stating whether or n6t the judgment
judgment obligee, or any other form of payment obligor has sufficient funds or credits to satisfy the
acceptable to the latter, the amount of the judgment amount of the judgment. If not, the report shall state
debt under proper receipt directly to the judgment how much funds or credits the garnishee holds for the
obligee or his authorized representative if present at judgment obligor. The garnished amount in cash, or
the time of payment. The lawful fees shall be handed certified bank check issued in the name of the
under proper receipt to the executing sheriff who shall judgment obligee, shall be delivered directly to the
turn over the said amount within the same day to the judgment obligee within ten (10) working days from
clerk of court of the court that issued the writ. service of notice on said garnishee requiring such
If the judgment obligee or his authorized delivery, except the lawful fees which shall be paid
representative is not present to receive payment, the directly to the court.
judgment obligor shall deliver the aforesaid payment to In the event there are two or more
the executing sheriff. The latter shall turn over all the garnishees holding deposits or credits sufficient to
amounts coming into his possession within the same satisfy the judgment, the judgment obligor, if available,
day to the clerk of court of the court that issued the shall have the right to indicate the garnishee or
writ, or if the same is not practicable, deposit said garnishees who shall be required to deliver the amount
amounts to a fiduciary account in the nearest due; otherwise, the choice shall be made by the
government depository bank of the. Regional Trial judgment obligee.
Court of the locality. The executing sheriff shall observe the same
The clerk of said court shall thereafter arrange procedure under paragraph (a) with respect to delivery
for the remittance of the deposit to the account of the of payment to the judgment obligee. (8a, 15a)

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If the award is for payment of money, execution is enforced by: Procedure for Levy
1. Immediate payment on demand 1. The judgment obligor have the option to immediately
2. Satisfaction by levy choose which property or part thereof may be levied upon,
3. Garnishment of debts and credits sufficient to satisfy judgment
2. If judgment obligor does not exercise the option:
IMMEDIATE PAYMENT ON DEMAND a. The officer shall first levy on personal properties, if
any
Procedure b. If personal properties are insufficient, then on the
1. The officer shall demand from judgment obligor the real properties
immediate payment of the full amount stated in the writ 3. Sheriff shall sell only sufficient portion of personal or real
and all lawful fees property of the judgment obligor levied upon
2. The judgment obligor shall pay the amount of the a. If there is more property than is sufficient to satisfy
judgment debt judgment and lawful fees, then sell only so much as is
a. Payable in Cash, Certified bank check payable to sufficient
judgment obligee, Or any other form of payment
acceptable to judgment obligee Note: Real property, stocks, shares, debts, credits, and other
(1) In no case shall sheriff demand that any payment personal property, or any interest in either real or personal
by check be made payable to him property, may be levied
b. Amount of judgment under proper receipt directly to
the judgment obligee or his authorized representative Guidelines
if present at time of payment - Sheriff can validly levy any property of judgment obligor
(1) If not present to receive payment, see Procedure which may be disposed of for value but not exempt from
below execution
3. The judgment obligor shall pay the lawful fees - Judgment obligor has the option to choose which property
a. Handed over to the sheriff to levy upon
(1) Sheriff shall turn over the said amount within If he does not exercise the option, officer shall first
the same day to the clerk that issued the writ levy on personalty then on realty if personalty is
b. Payment shall be under proper receipt insufficient
4. If there is any excess - Real or personal property or any interest in either may be
a. It shall be delivered to the judgment obligor levied upon in like manner
b. Lawful fees shall be retained by the clerk 1. Real property by filing with the Register of Deeds a
copy of the order together with description of
Procedure if Judgment Obligee or his authorized representative is property and notice that it is attached (Sec. 7(a), Rule
not present to receive payment 57)
1. Judgment obligor shall deliver payment to executing 2. Personal property if capable of manual delivery, by
sheriff taking and safely keeping in custody of sheriff after
2. Sheriff shall turn over the amounts within the same day to issuing corresponding receipt (Sec. 7(b), Rule 57)
the clerk which issued the writ
3. If (2) is not practicable: Meaning and Necessity of Levy
a. Sheriff to deposit the amounts to a fiduciary account - It is an essential act by which the property is set apart for
in the nearest government depository bank of the the satisfaction of the judgment and taken into the custody
RTC of the locality of the law for purposes of prospective execution sale
b. The clerk shall thereafter arrange for the remittance - After it has been taken, judgment debtors interest is
of the deposit to the account of the court which issued limited to its application to the judgment
the writ - Effect of a valid levy:
c. The clerk shall then deliver payment to judgment 1. It places the property under jurisdiction and
obligee in satisfaction of the debt authority of the court
4. If there is any excess 2. It creates a lien in favor of judgment creditor, subject
c. It shall be delivered to the judgment obligor to existing lies and encumbrances then existing
d. Lawful fees shall be retained by the clerk
Levy in Cases of MONEY JUDGMENT
- If judgment is for money, officer must execute the same
SATISFACTION BY LEVY pursuant to Sec. 9
- Procedure:
Levy is the act whereby a sheriff sets apart or appropriates for the 1. Sheriff shall levy on all property belonging to
purpose of satisfying the command of the writ, a part or the whole of judgment debtor as amply sufficient to satisfy
the judgment debtors property. judgment and costs
2. Sheriff shall sell the same
Conditions to be met before resort to Satisfaction by Levy a. Paying to creditor so much of the proceeds as
A. If the judgment obligor cannot pay all or part of the will satisfy judgment
obligation b. Excess in proceeds delivered to judgment debtor
1. Then the officer shall levy upon the properties of the (1) Unless otherwise directed by judgment or
judgment obligor order of court
B. Characteristics of properties to be levied
1. Properties of every kind and nature whatsoever Levy on REAL PROPERTY
2. Which may be disposed of for value - Sec. 9(b), 4th par provides that a levy is effected in the
3. Not otherwise exempt from execution same manner as the levy under a writ of attachment (See
Sec. 57)

62
- To effect levy on realty, sheriff is required to do 2 things: b. Certified bank check issued in the name of judgment
1. File with Register of Deeds a copy of the order of obligee
attachment or execution 5. Garnished amount shall be delivered directly to judgment
a. Together with the description of the attached obligee
property a. Within 10 working days from service of notice on said
b. And notice of attachment or execution garnishee requiring such delivery
2. Leave with occupant of the property a copy of the b. Follow procedure under Immediate Payment on
same order, description, and notice Demand with respect to delivery
Non-compliance with these requisites is fatal 6. Lawful fees shall be paid directly to court
1. Without proper levy, property is not placed
under court authority and jurisdiction Attachment v. Garnishment
2. Subsequent execution sale is null and void 1. Attachment refers to corporeal property in the
possession of judgment obligor
Jurisprudence 2. Garnishment refers to money, stocks, credits, other
1. Where no notice of levy was given to occupant of the land incorporeal property which belong to judgment debtor but
there was no valid levy and its registration and annotation is in the possession or under control of third person
is ineffective (Leath v. Dewesee)
2. The above ruling was modified in Pamintuan v. Munoz, Nature and Effect of Garnishment
citing PBC v. Macandog, which held that defect is cured by - In legal contemplation, it is a forced novation by
service of notice of sale upon judgment debtor (who is substitution of creditors
actual occupant) prior to the sale Judgment debtor, who is original creditor of
3. Reaffirmed in Ravanera v. Imperial what is required is garnishee is substituted by judgment creditor who
that the judgment debtor must be notified of the auction thereby becomes creditor of garnishee
sale before actual date of sale - In order that trial court may validly acquire jurisdiction to
4. A judge may not order execution of judgment for bind garnishee:
ejectment in the decision itself (Felongco v. Dictado) Not necessary that summons be served upon him;
Even if immediately executory, there must be motion neither is it needed that he be impleaded
with notice (Lu v. Judge Siapno) All that is required is service upon him of the writ of
garnishment
a. Through service of this writ, garnishee becomes
GARNISHMENT OF DEBTS AND CREDITS a virtual party or forced intervenor in the case
b. Trial court can bind him and compel him to
Garnishment is considered as a species of attachment for reaching comply with all orders and processes of the trial
credits belonging to the judgment debtor and owing to him from a court with a view to the complete satisfaction of
stranger to the litigation judgment
- The garnishee is required to pay the debt, not to the
The Officer may levy on: former creditor, but to the creditor in the main litigation
1. Debts due the judgment obligor and other credits,
2. Including bank deposits, financial interests, royalties, Other points
commissions, - Where rights and obligations arise from judgment, not
3. And other personal property not capable of manual contract, CC provisions on consignation requirements are
delivery in possession and control of third parties not applicable
- Statutes allowing the State to be sued do not authorize
Procedure in Garnishment seizure of state property as satisfaction of judgment
1. Levy shall be made by serving notice upon: It only implies that the legislature will recognize such
a. The person owing such debts, or judgment as final and make provisions for
b. Having in his possession or control such credits to satisfaction thereof
which judgment obligor is entitled
2. Garnishment to cover only such amount as will satisfy
judgment and lawful fees SECTION 10 - Execution of judgments for specific act.
a. If there are 2 or more garnishees, holding deposits or (a) Conveyance, delivery of deeds, or other specific acts;
credits sufficient to satisfy judgment: vesting title. If a judgment directs a party to execute a
(1) Judgment obligor shall have the right to indicate conveyance of land or personal property, or to deliver
the garnishee/s who shall be required to deliver deeds or other documents, or to perform any other
(2) Otherwise, the choice shall be made by judgment specific act in connection therewith, and the party fails
obligee to comply within the time specified, the court may
3. The garnishee shall make a written report to the court direct the act to be done at the cost of the disobedient
a. Within 5 days from service of notice of garnishment party by some other person appointed by the court and
b. The report shall state whether: the act when so done shall have like effect as if done by
(1) Judgment obligor has sufficient funds or credits the party. If real or personal property is situated within
to satisfy judgment, OR the Philippines, the court in lieu of directing a
(2) Judgment obligor has insufficient funds or conveyance thereof may by an order divest the title of
credits to satisfy judgment any party and vest it in others, which shall have the
(a) In this case, state how much funds or force and effect of a conveyance executed in due form of
credits garnishee holds for judgment law. (10a)
obligor (b) Sale of real or personal property.If the judgment be for
4. Garnish the amount the sale of real or personal property, to sell such
a. It may be in cash, or property, describing it, and apply the proceeds in

63
conformity with the judgment. (8[c]a) b. And all persons claiming rights under him
(c) Delivery or restitution of real property.The officer 2. The officer shall demand the aforementioned to:
shall demand of the person against whom the judgment a. Peaceably vacate the property within 3 working days
for the delivery or restitution of real property is b. Restore possession to judgment obligee
rendered and all persons claiming rights under him to 3. In case of non-compliance of (2), the officer shall
peaceably vacate the property within three (3) working a. Oust all persons therefrom with assistance, if
days, and restore possession thereof to the judgment necessary, of appropriate peace officers
obligee; otherwise, the officer shall oust all such b. Employ such means as may be reasonably necessary
persons therefrom with the assistance, if necessary, of to retake possession and place judgment obligee in
appropriate peace officers, and employing such means possession
as may be reasonably necessary to retake possession, 4. Costs, damages, rents, or profits awarded by judgment
and place the judgment obligee in possession of such a. Satisfy using the same manner as a Judgment for
property. Any costs, damages, rents or profits awarded Money
by the judgment shall be satisfied in the same manner
as a judgment for money. (13a) Removal of Improvements on Property Subject of Execution
(d) Removal of improvements on property subject of
execution.When the property subject of the execution 1. If the property subject of execution contains
contains improvements constructed or planted by the improvements constructed or planted by judgment obligor
judgment obligor or his agent, the officer shall not or his agent
destroy, demolish or remove said improvements except 2. Then officer shall not destroy, demolish, or remove said
upon special order of the court, issued upon motion of improvements
the judgment obligee after due hearing and after the a. EXCEPT upon special order of the court, provided
former has failed to remove the same within a that it be:
reasonable time fixed by the court. (14a) (1) Issued upon motion of judgment obligee
(e) Delivery of personal property.In judgments for the (2) After due hearing
delivery of personal property, the officer shall take (3) After the judgment obligor has failed to remove
possession of the same and forthwith deliver it to the the same within reasonable time fixed by court
party entitled thereto and satisfy any judgment for
money as therein provided. (8a) Delivery of Personal Property

EXECUTION OF JUDGMENTS FOR SPECIFIC ACT 1. If judgment is for delivery of personal property
2. Then the officer shall:
Conveyance, delivery of deeds, or other specific acts, vesting title a. Take possession of the same
A. If: b. Then Deliver it to the party entitled thereto
1. The judgment directs a party: c. Then satisfy any judgment for money as therein
a. To execute a conveyance of land or personal provided
property, or
b. To deliver deeds or other documents, or
c. To perform any other specific act in connection COMMENTARIES
therewith
2. And the party fails to comply within the time Clarifications:
specified - Sec. 10 on judgments for specific acts have been clarified
B. Then: by the qualification that the specific acts contemplated are
1. The court may direct the act to be done those in connection with the directive to a party to execute
a. At the cost of disobedient party a conveyance of land or deliver deeds or other documents
b. By some other person appointed by court - The court, in order to divest title of disobedient party and
2. The act when so done shall have the like effect as if vest it in another, does not have to enter another judgment
done by the party for that purpose
C. If real or personal property is situated within the It may do so merely by an order to that effect
Philippines
1. In lieu of directing conveyance thereof, There must be Notice and Demand
2. Court may divest the title of any party and vest it in - Immediate enforcement of a writ of ejectment execution
others requires notice to defendant
a. By court order - Period has been fixed to 3 working days
b. It shall have the force and effect of a conveyance
executed in due form of law What if a party refuses to yield possession of a property ordered by
writ of execution?
- Contempt is not a proper remedy
Sale of Real or Personal Property - Sheriff must oust said property from the property
But if a Demolition Order is involved, there must be
A. If the judgment be for sale of real or personal property hearing on motion and due notice for issuance of a
1. Sell such property, describing it special order
2. Apply proceeds in conformity with judgment - Mere refusal to vacate does not constitute contempt
Delivery or Restitution of Real Property Since the acts in connection therewith is not
necessarily punishable as contempt as they may be
1. The officer shall demand the: done by some other person designated
a. Person against whom judgment for delivery or Remedy is to move for demolition
restitution of real property is rendered

64
WRIT OF POSSESSION Jurisprudence
1. Where the case did not deal with the issue of possession,
Writ of possession is a writ of execution employed to enforce a writ of possession and order of demolition directed at
judgment to recover the possession of land persons not party to the case is null and void for lack of
- It commands sheriff to enter the land and give possession due process (Salamat Vda. De Medina v. Judge Cruz)
of it to person entitled under judgment But the writ may reach a person who is privy to
judgment debtor
A writ of possession may be issued in the following instances: 2. It is not necessary to await order of demolition to be
1. Land registration proceedings under Sec. 17, Act 496 served upon defeated party in a forcible entry proceedings
2. Judicial foreclosure before writ of demolition may be carried out (Albertz
Provided that debtor is in possession of mortgaged Investments Inc. v. CA)
realty
Provided further that no third person, not party to GENERAL RULE: The judgment debtor cannot be cited for contempt
foreclosure, had intervened of court since it is not a remedy to enforce a judgment
3. Extrajudicial foreclosure of real estate mortgage under
Sec. 7 Act 3135, as amended by Act 4188 EXCEPTIONS: He may be cited in contempt in these cases:
4. Final judgment to recover real property 1. Refusal to perform a particular act or Special Judgment
5. Immediate execution in cases of forcible entry and under Sec. 11
unlawful detainer 2. In case of the provisional remedy of support pendente lite
under Rule 61
A writ of possession may be issued either:
1. Within 1 year period, upon filing of a bond, or
2. After lapse of the redemption period without need for SECTION 11 - Execution of special judgments.When a judgment
bond requires the performance of any act other than those mentioned
in the two preceding sections, a certified copy of the judgment
Authority to Break Open shall be attached to the writ of execution and shall be served by
- No need for sheriff to secure a break open order where the the officer upon the party against whom the same is rendered, or
character of the writ authorized them if necessary to break upon any other person required thereby, or by law, to obey the
open same, and such party or person may be punished for contempt if
- Officer enforcing the writ has the right to employ force he disobeys such judgment. (9a)
necessary to enable him to enter and enforce the judgment
- A writ of execution directing sheriff to cause defendant to Execution of Special Judgments
vacate is in the nature of habere facias possessionem 1. When a judgment requires performance of any other act
It authorizes sheriff, without the need of securing a than those mentioned in Sec. 9 and 10
break open order, to break open premises where 2. Procedure:
there is no occupant therein a. A writ of execution shall be issued
(1) Attached to this is a certified copy of the
NOTE: Sec. 10, par (d), contemplates the only instance when a judgment
special break open order is required b. Service by the officer upon:
- It is only when there is no occupant in the premises that (1) The party against whom the same is rendered, or
the sheriff may lawfully cause a demolition without the (2) Any other person required thereby, or by law, to
need of securing a break open order obey the same
c. Failure of such party to obey the judgment
Authority of Sheriff to Oust Defendant (1) Punishable by contempt
- A judgment for delivery or restitution of property is
essentially an order to place prevailing party in possession Special Judgment is one which can only be complied with by the
of property judgment obligor because of his personal qualifications or
- If the losing party refuses to surrender: circumstances
There is no need for an express order to oust to be - It requires performance of an act other than payment of
stated in the decision money or sale or delivery of property
- A special judgment may be enforced by contempt if
ORDER OF DEMOLITION defendant refuses to comply

Before the removal of an improvement, there must be a special


order, hearing, and reasonable notice to remove
Examples of Special Judgments in Jurisprudence
Only the real parties-in-interest in the action are bound by the 1. A judgment in mandamus to reinstate petitioner as chief
judgment rendered therein and by the writs of execution and clinic of the hospital (Vital-Gozon v. CA)
demolition issued pursuant thereto. 2. A judgment directing petitioner to vacate the land which is
a judgment to deliver possession of real property and not
Requirements before demolition order may issue: special judgment. No contempt for refusal (Moslem v.
1. There must be: Soriano)
a. Motion 3. A judgment directing defendant to remove a fence from a
b. Notice to adverse party certain place is a special judgment (Marquez v. Marquez)
c. Hearing
d. Special order
e. Reasonable time to remove improvements
2. Only real parties bound by writ

65
SECTION 12 - Effect of levy on execution as to third persons.The occupation;
levy on execution shall create a lien in favor of the judgment (d) His necessary clothing and articles for ordinary
obligee over the right, title and interest of the judgment obligor in personal use, excluding jewelry;
such property at the time of the levy, subject to liens and (e) Household furniture and utensils necessary for house-
encumbrances then existing. (16a) keeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor
Effect of Levy create a lien in favor of judgment obligee may select, of a value not exceeding one hundred
thousand pesos;
Note: The power of a court in execution of its judgment extends only (f) Provisions for individual or family use sufficient for four
over properties unquestionably belonging to the judgment debtor months;
(g) The professional libraries and equipment of judges,
Levy is an essential act by which the property is set apart for the lawyers, physicians, pharmacists, dentists, engineers,
satisfaction of the judgment and taken into custody of the law surveyors, clergymen, teachers, and other professionals,
- There must be a valid levy not exceeding three hundred thousand pesos in value;
- Execution may only be effected against the property of the (h) One fishing boat and accessories not exceeding the total
judgment debtor, who must necessarily be a party to the value of one hundred thousand pesos owned by a
case fisherman and by the lawful use of which he earns his
Sheriff who levies property other than that of livelihood;
judgment debtor acts beyond his authority (i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the
The judgment debtor must be served with notice of levy four months preceding the levy as are necessary for the
- But even if not served therewith, the defect is cured by support of his family;
service on him of the notice of sale prior to actual sale (j) Lettered gravestones;
(PBC v. Macadaeg) (k) Monies, benefits, privileges, or annuities accruing or in
any manner growing out of any life insurance;
Manner of levy on real and personal property is provided for in Sec. (l) The right to receive legal support, or money or property
7, Rule 57 obtained as such support, or any pension or gratuity
from the Government;
Specific rules: (m) Properties specially exempted by law.
- If susceptible of appropriation: But no article or species of property mentioned in this section
Officer removes and takes property for safekeeping shall be exempt from execution issued upon a judgment
Otherwise, the same is placed under sheriffs guards recovered for its price or upon a judgment of foreclosure of a
- If property involved is money, stocks, or other incorporeal mortgage thereon. (12a)
property in the hands of 3rd persons
Acts of appropriation is by garnishment FAMILY HOME

The preference given to a duly registered levy on attachment or How Constituted


execution over prior unregistered sale is well-settled - It is deemed constituted on a house and lot from the time it
- Gomez v. Levy Hermanos an attachment duly annotated is occupied as a family residence
on a certificate of title is superior to the right of a prior but - From time of constitution and so long as any of its
unregistered buyer beneficiaries actually reside therein:
- such duly registered attachment or levy on execution takes It shall be exempt from execution, forced sale, or
precedence over a notice of lis pendens which does not attachment
even create a lien Except as provided in Art. 153 FC to the extent of the
- Under the Torrens system: value allowed by law
Auction sale of that property retroacts to the date the
levy was registered Beneficiaries: The beneficiaries of a family home under Art. 154 FC:
Under Sec. 51 and 52, PD 1529, the act of registration 1. The husband and wife, or an unmarried person who is the
is the operative act to convey or affect the land head of a family; and
insofar as 3rd persons are concerned, and of which 2. Their parents, ascendants, descendants, brothers and
acts they are deemed to have constructive notice sisters, whether legitimate or illegitimate, who are living in
- Even if the prior unregistered sale is subsequently the family home and who depend upon the head of the
registered before sale on execution but after levy was family for legal support
made, the validity of the execution sale should be
maintained because it retroacted to date of levy Scope of Exemption: Art. 155 FC
1. GENERAL RULE: The family home shall be exempt from
execution, forced sale, or attachment,
SECTION 13 - Property exempt from execution.Except as 2. EXCEPTIONS:
otherwise expressly provided by law, the following property, and a. For non-payment of taxes
no other, shall be exempt from execution: b. For debts incurred prior to constitution of the family
(a) The judgment obligors family home as provided by law, home
or the homestead in which he resides, and land c. For debts secured by mortgages on the premises
necessarily used in connection therewith; before or after such constitution; and
(b) Ordinary tools and implements personally used by him d. For debts due to laborers, mechanics, architects,
in his trade, employment, or livelihood; builders, material men and others who have rendered
(c) Three horses, or three cows, or three carabaos, or other service or furnished material for the construction of
beasts of burden, such as the judgment obligor may the building
select necessarily used by him in his ordinary

66
Limitations imposed by Art. 157 FC: HOMESTEAD HOUSES
- Actual value of family home shall not exceed, at time of
constitution: Homestead Houses means dwelling houses in which the judgment
1. P300,000 in urban areas debtor resides and the land necessarily used in connection therewith
2. P200,000 in rural areas - Even if debtor is merely leasing the land, exemption
Or such amounts as may be fixed by law applies
The family home is exempt if it does not exceed these
amounts The usufructuary right of a widow over a lot whereon she had
- In any event, if value of currency changes after the constructed a residential house is not exempt from execution as it is
effectivity of FC, the value most favorable for constitution not the homestead contemplated under this section. (Vda. De
of family home shall be basis of evaluation Bogack v. Inserto, et al.)
- Such usufructuary right may even be transferred or
Sale where Family Home is worth more than Maximum disposed of, hence it is an interest in property which can
1. When a creditor whose claim is not under Art. 155 obtains be sold on execution
a judgment in his favor, and has reasonable grounds to - Unlike the usufruct of parents over childrens property
believe that the family home is actually more than the under parental authority
maximum fixed in Art. 157:
He may apply to the court which rendered judgment
an order directing the sale of property under TOOLS AND IMPLEMENTS
execution
2. The court shall so order if it finds that the value exceeds Tools and Implements refer to instruments of husbandry or manual
the maximum amount allowed by law as of the time of its labor needed by any artisan, craftsman, or laborer to obtain his
constitution living
Same rule and procedure is followed if the increased
actual value exceeds the maximum and resulted from Note:
subsequent voluntary improvements - Only ordinary tools and implements used for trade or
3. During execution sale: employment are exempt
No bid below value allowed for a family home shall be - Sophisticated tools of advanced technological designs with
considered considerable value are not exempt (e.g. power tools)
Proceeds to be applied: - It does not include firearm used by security guards
a. First to the amount mentioned in Art. 157
b. Then apply to the liabilities under the judgment
and costs WORK ANIMALS OR BEASTS OF BURDEN
c. The excess, if any, delivered to the judgment
debtor Notes:
See Art. 160 FC - The number has been increased, without limit on their
value, provided that, and as long as, they are used by
judgment obligor in his ordinary occupation
LABORERS WAGES

Laborers wages as distinguished from the salary of employees refer ARTICLES FOR ORDINARY USE
to physical or manual labor.
Notes:
Except as otherwise provided by law (Additional exemptions) - In addition to judgment debtors ordinary clothing, all
1. Art. 1708 CC exempts laborers wages from attachment or other articles for his ordinary use are exempted
execution - Not covered by exemption are unessential or expensive
2. Homestead under Act No. 141 items such as jewelry or sable and mink coats
3. Securities on loans given by DBP
4. Money or property vested by the Philippine Alien Property
Administration FURNITURE
5. Government property used for public purposes including
municipal property not owned for private or quasi- Furniture necessary for housekeeping and actually used the value of
private purposes which does not exceed P100,000, is exempt
- How to separate exempt portion from not exempt sell
then deliver exempt portion to debtor and excess to
PUBLIC FUNDS judgment creditor

Public funds are not subject to levy on execution Notes:


- Municipal funds in possession of provincial and municipal - Value of exempt household furniture and utensils for
treasurers are public funds exempt from execution housekeeping, professional libraries and equipment, and
- Exemption applies even if government may have given its fishing boats and accessories, has been increased
consent to be sued
- For claims against the government, see Sec. 91-93 of PD
1445 RETIREMENT BENEFITS

Retirement benefits are also exempt from execution

67
Notes: shall set forth the whole of the proceedings taken, and shall be
- All monies, benefits, privileges, or annuities accruing or filed with the court and copies thereof promptly furnished the
growing out of any life insurance are likewise exempt parties. (11a)
regardless of amount of premiums paid
- Note that exemption does not apply to non-life insurance Return of Writ of Execution: Judgment Satisfied within 30 days
1. Writ of execution shall be returnable to the court issuing it
a. Immediately after judgment has been satisfied in part
FOREIGN CURRENCY DEPOSITS or in full
2. The return shall:
Sec. 113 Central Bank Circ. No. 960 exempts foreign currency a. Set forth the whole of the proceedings taken, and
deposits from attachment or garnishment or any other process of b. Be filed with the court
the court c. Be reproduced and copies thereof furnished to
- But this law was held as inapplicable to a case where levy parties
was to carry out a judgment for damages for rape
committed by foreigner against a 12-yr old Filipina Return of Writ of Execution: Judgment Not Satisfied within 30 days
(Salvacion v. Central Bank) This procedure is followed if judgment cannot be satisfied
in full within 30 days after receipt of the writ
1. Officer shall report to the court
OTHER PROPERTIES SPECIALLY EXEMPTED FROM EXECUTION a. State the reason for non-satisfaction
2. The writ shall continue in effect during the period within
1. Property mortgaged to DBP (Sec. 26, CA 458) which judgment may be enforced by motion
2. Property taken over by the Alien Property Administration 3. Officer shall make a report to the court every 30 days on
3. Savings of national prisoners deposited with the Postal the proceedings taken thereon, until either:
Savings Bank (Act 2489) a. Judgment is satisfied in full, or
4. Backpay of pre-war civilian employees (RA 304) b. Its effectivity expires
5. Philippine government backpay to guerillas (RA 897) 4. The periodic reports shall:
6. Produce, work animals, and farm implements of a. Set forth the whole of the proceedings taken, and
agricultural lessees, subject to limitation (Sec. 21, RA b. Be filed with the court
6389) c. Be reproduced and copies thereof furnished to
7. Benefits from private retirement systems of companies parties
and establishments, with limitations (RA 4917)
8. Laborers wages, except for debts incurred for food, Lifetime of a Writ of Execution
shelter, clothing, and medical attendance (Art. 1708, CC) - The lifetime of a writ of execution is without limit for as
9. Benefit payments from SSS (Sec. 16, RA 1161) long as the judgment has not been satisfied
10. Copyrights and other rights in intellectual property under - But it is returnable to the court issuing it immediately after
the formal copyright law PD 49, and judgment has been satisfied in full or in part
11. Bonds issued under RA 1000 If judgment cannot be satisfied in full within 30 days
after receipt of writ, officer shall report to the court
and state the reasons therefor
WHEN TO CLAIM EXEMPTION - Hence, there is no need for an alias writ of execution
- The writ shall continue in effect during period within
The rule is well-settled which the judgment may be enforced by motion
- Even though the ROC does not prescribe the period This is 5 years from date of entry
- The right of exemption is a personal privilege granted to After the first 5 years, judgment becomes dormant
judgment debtor and subject to revival action
It must be claimed not by sheriff but by the debtor
himself Duties of the Sheriff
- Claim must be made at the: - It is mandatory for sheriff to make a return of the writ too
a. TIME OF LEVY or the clerk or judge issuing it
b. WITHIN A REASONABLE TIME - If judgment cannot be satisfied in full within 30 days after
(1) For purposes of the law on exemption, this does receipt of the writ, officer shall report to the court and
not mean a time after expiration of 1-yr period state the reasons therefor
provided in Sec. 28, Rule 39 for judgment He is now tasked to make a report to the court every
debtors to redeem property sold on execution 30 days on the proceedings taken thereon until
- Claim must be presented before the sale on execution by judgment is satisfied in full or effectivity expires
plaintiff (Gomez v. Gealone) - Within the period of its enforceability and from its receipt
by officer tasked with enforcement, officer shall make
periodic reports until judgment is fully satisfied or
SECTION 14 - Return of writ of execution.The writ of execution becomes ineffective
shall be returnable to the court issuing it immediately after the.
judgment has been satisfied in part or in full. If the judgment Duty of the Sheriff, in General
cannot be satisfied in full within thirty (30) days after his receipt 1. To proceed with considerable dispatch
of the writ, the officer shall report to the court and state the 2. To proceed with reasonable celerity and promptness to
reason therefor. Such writ shall continue in effect during the execute it according to its mandate, in absence of directive
period within which the judgment may be enforced by motion. to the contrary
The officer shall make a report to the court every thirty (30) days 3. To be circumspect and proper and perform duties without
on the proceedings taken thereon until the judgment is satisfied needless severity
in full, or its effectivity expires. The returns or periodic reports

68
a. The sale shall be held in the office of the clerk of the
Sheriffs duty as to Expenses RTC or MTC which issued the writ or which was
- The rule (See Sec. 9, Rule 141) requires the sheriff to designated by the appellate court, in the following
estimate the expenses to be incurred and cases:
- Upon approval of estimated expenses, the interested party (1) Sale of real property, or
has to deposit the amount with the clerk (2) Sale of personal property not capable of manual
These expenses shall then be disbursed to the delivery
executing sheriff subject to his liquidation within the b. Sale shall be held in the place where property is
same period for rendering a return located, in case:
Any unspent amount shall be refunded to party- (1) Sale of Personal property capable of manual
depositor delivery

Notice in Sale of Perishable Property


SECTION 15 - Notice of sale of property on execution.Before the 1. Post written notice of the time and place of the sale in 3
sale of property on execution, notice thereof must be given as public places
follows: a. Preferably in conspicuous areas of the municipal or
(a) In case of perishable property, by posting written notice city hall, post office and public market in the
of the time and place of the sale in three (3) public municipality or city where sale is to take place
places, preferably in conspicuous areas of the municipal 2. Post for such time as may be reasonable
or city hall, post office and public market in the a. Consider the character and condition of the property
municipality or city where the sale is to take place, for 3. Written notice shall be given to judgment obligor
such time as may be reasonable, considering the a. At any time before the sale
character and condition of the property; b. In the same manner as personal service of pleadings
(b) In case of other personal property, by posting a similar under Sec. 6, Rule 13
notice in the three (3) public places abovementioned for
not less than five (5) days; Notice in Sale of Personal Property (not Perishable)
(c) In case of real property, by posting for twenty (20) days 1. Post written notice of the time and place of the sale in 3
in the three (3) public places abovementioned a similar public places
notice particularly describing the property and stating a. Preferably in conspicuous areas of the municipal or
where the property is to be sold, and if the assessed city hall, post office and public market in the
value of the property exceeds fifty thousand municipality or city where sale is to take place
(P50,000.00) pesos, by publishing a copy of the notice 2. Post for not less than 5 days
once a week for two (2) consecutive weeks in one 3. Written notice shall be given to judgment obligor
newspaper selected by raffle, whether in English, a. At least 3 days before the sale
Filipino, or any major regional language published, b. In the same manner as personal service of pleadings
edited and circulated or, in the absence thereof, having under Sec. 6, Rule 13
general circulation in the province or city;
(d) In all cases, written notice of the sale shall be given to Notice in Sale of Real Property
the judgment obligor, at least three (3) days before the 1. Notice must:
sale, except as provided in paragraph (a) hereof where a. Particularly describe the property and
notice shall be given at any time before the sale, in the b. State where the property is to be sold
same manner as personal service of pleadings and other 2. Post written notice of the time and place of the sale in 3
papers as provided by section 6 of Rule 13. public places
The notice shall specify the place, date and exact time of the sale a. Preferably in conspicuous areas of the municipal or
which should not be earlier than nine oclock in the morning and city hall, post office and public market in the
not later than two oclock in the afternoon. The place of the sale municipality or city where sale is to take place
may be agreed upon by the parties. In the absence of such 3. Post for 20 days
agreement, the sale of real property or personal property not 4. If the assessed value of property exceeds P50,000:
capable of manual delivery shall be held in the office of the clerk a. Publish a copy of the notice once a week
of court of the Regional Trial Court or the Municipal Trial Court b. For 2 consecutive weeks
which issued the writ or which was designated by the appellate c. Publish in one newspaper selected by raffle
court. In the case of personal property capable of manual delivery, (1) Whether in English, Filipino, or any major
the sale shall be held in the place where the property is located. regional language
(18a) (2) Published, edited, and circulated or, having
general circulation in the province or city
PROCEDURE 5. Written notice shall be given to judgment obligor
a. At least 3 days before the sale
Notice of Sale of Property on Execution, in General b. In the same manner as personal service of pleadings
1. Before the sale of property on execution, notice thereof under Sec. 6, Rule 13
must be given according to par. (a), (b), (c)
2. The notice shall Specify the place, date, and exact time of
the sale NOTES
3. Specific rules as to the sale itself:
a. The sale shall not be earlier than 9am, but not later Three Kinds of Sale of Real Property - There are 3 types of sales
than 2pm arising from failure to pay a mortgage debt:
b. Place of sale may be agreed upon by parties 1. Ordinary Execution Sale right of judgment debtor or
4. In the absence of such agreement: redemptioner is only to redeem

69
2. Judicial Foreclosure Sale there is generally no right to A Third-Party Claim, to be Sufficient
redeem but only equity of redemption before confirmation 1. Must be filed by a person other than the defendant or his
sale agent, at any time before sale
3. Extrajudicial Foreclosure Sale there is right to redeem 2. Must be under oath or supported by affidavit stating the
within one year. Sec. 4, Rule 68 on delivery to junior claimants title to, or right of possession of, the property,
encumbrancer of excess should also be applied and grounds therefor
3. Must be served upon the officer making levy and a copy
Sale Without Notice thereof upon the judgment creditor
- If purchaser is judgment creditor and was responsible for
the sale without notice: Applicability of Third-party claims
Sale is void - Sec. 16 and other provisions which provide for a mode of
- If purchaser is third party without collusion recovering property allegedly to have been wrongfully
Sale is valid taken by sheriff pursuant to a writ of execution or other
Remedy is damages against sheriff process, refers to a STRANGER to an action
- No applicability to a party to a case
Note: - Arabay Inc. v. Salvador an injunction is a proper
- Sale without notice and publication made at the change of remedy to prevent sheriff from selling the property of one
date is null and void (Abrogar v. IAC) person for the purpose of paying debt of another
- Variance in amount does not nullify the sale (Government General Rule: No court has authority to interfere by
v. Echaus, et al.) injunction with judgments or decrees of another
court of equal or concurrent or coordinate
There must be a Valid Levy jurisdiction
- Valid levy is indispensable for valid execution sale Exception: General rule does not apply when a third-
- The reglementary requirements for a valid levy must be party claimant is involved
strictly complied with
Effect of Third-Party Claim When a third-party claim is filed, sheriff
is not bound to proceed with the levy of the property unless
SECTION 16 - Proceedings where property claimed by third judgment creditor or latters agent posts an indemnity bond against
person.If the property levied on is claimed by any person other the claim
than the judgment obligor or his agent, and such person makes an
affidavit of his title thereto or right to the possession thereof, The timing of the filing of the claim is important
stating the grounds of such right or title, and serves the same - Because the timing determines the remedies that a third-
upon the officer making the levy and a copy thereof upon the party is allowed to file
judgment obligee, the officer shall not be bound to keep the - A claimant files under Sec. 16, Rule 39:
property, unless such judgment obligee, on demand of the officer, He may vindicate his claim in a separate action
files a bond approved by the court to indemnify the third-party Intervention is no longer allowed here since the
claimant in a sum not less than the value of the property levied judgment has already been rendered
on. In case of disagreement as to such value, the same shall be - A claimant files under Sec. 14, Rule 57
determined by the court issuing the writ of execution. No claim He may vindicate his claim by intervention
for damages for the taking or keeping of the property may be He has a legal interest in the matter of litigation
enforced against the bond unless the action therefor is filed - Claims arising in attachment proceedings (Sec. 14, Rule
within one hundred twenty (120) days from the date of the filing 57) and replevin suits (Sec. 7, Rule 60) involve actions still
of the bond. pending in the trial court
The officer shall not be liable for damages for the taking Claims filed in the same action involved
or keeping of the property, to any third-party claimant if such
bond is filed. Nothing herein contained shall prevent such Remember that a Third-party claim is different
claimant or any third person from vindicating his claim to the
property in a separate action, or prevent the judgment obligee THIRD PARTY CLAIM THIRD PARTY COMPLAINT
from claiming damages in the same or a separate action against a Pleading
third-party claimant who filed a frivolous or plainly spurious Affidavit
Filed by a defendant against the
claim. Made by a third person who
third person not a party to the
When the writ of execution is issued in favor of the claims to be entitled to
action for contribution,
Republic of the Philippines, or any officer duly representing it, the property in custody of the
indemnity, subrogation, or any
filing of such bond shall not be required, and in case the sheriff or sheriff
other relief
levying officer is sued for damages as a result of the levy, he shall Filed by third-party claimant Filed by third-party plaintiff
be represented by the Solicitor General and if held liable therefor,
the actual damages adjudged by the court shall be paid by the The Indemnity Bond
National Treasurer out of such funds as may be appropriated for A. Determination of amount
the purpose. (17a) 1. The bond must be approved by the court
2. The sum must not be less than the value of the
Basic rules on Third-Party Claim property levied on
1. The purpose of the bond filed by the judgment obligee is to 3. In case of disagreement as to such value:
indemnify third-party claimant, not sheriff or officer a. The same shall be determined by the court
2. Amount of the bond is not less, nor greater, than the value issuing the writ
of the property levied B. Where a third-party claim has been filed in due form:
3. Sheriff not liable for damages if bond is filed 1. Prevailing party can compel the sheriff to proceed by
4. Third person may vindicate his claim in a separation filing of a bond to answer for damages as a
action since intervention is no longer allowed consequence of the execution

70
2. If sheriff proceeds with the sale without such bond, REMEDIES
he will be personally liable for such damages as may
be sustained by and awarded to the claimant Remedy is Not Exclusive - Right of third-party claimants over
C. Action against Indemnity property levied upon should be decided in a separate
1. Action against indemnity bond must be filed within reinvindicatory action, not in the case were such claims are
120 days from date of filing of the bond presented but in a separate independent action by claimant
2. After lapse of 120 days, no claim for damages for Remedies available:
taking or keeping of property may be enforced 1. Summary hearing before the court which authorized
against the bond execution
D. Other key points: 2. Terceria or third-party claim filed with the sheriff
1. Indemnity bond is not necessary to vindicate claim in 3. Action for damages on the bond posted by judgment
proper action creditor
2. Sureties may not be impleaded but judgment cannot 4. Independent reinvindicatory action
be executed against them unless brought in as third-
party defendant Cumulative Remedies of a Third-Party Claimant as restated in Sy
a. In the action for damages upon the bond filed by and Tan v. Discaya
judgment creditor, surety must be impleaded These remedies are cumulative and may be resorted to by a
otherwise judgment therein cannot be enforced third-party claimant independent of or separately from and without
against bond (Montojo v. Hilario) need of availing of the others.
b. But an action against surety is binding upon
principal if the latter had knowledge thereof and A. A third-person whose property was seized by a sheriff to
opportunity to participate in defense (Sec. 46, answer for an obligation of a judgment debtor may invoke
Rule 39) the supervisory power of the court which authorized such
3. When sheriffs sale did not proceed because of an execution
injunction, liability of indemnity bond never became 1. Procedure:
effective a. Claimant files application
4. If the winning party files a bond, it is only then that b. Court conducts summary hearing
the sheriff can take the property into possession c. The court may command that the property be
5. If there is no bond, sale cannot proceed released from the mistaken levy and restored to
rightful owner or possessor
Only a Stranger to the case may file third-party claim d. If claimants proofs do not persuade, the claim
- Only strangers may file terceria cases will be denied by the court
- Some cases: 2. Note however that the court determination is limited
1. Husband of wife-judgment debtor cannot be deemed a. Limited only to a determination of whether the
stranger for an obligation that has redounded to the sheriff has acted rightly or wrongly in
benefit of the CPG (Mariano v. CA) performance of his duties
2. Conjugal property may not be levied upon for the (1) If he has indeed taken property not
exclusive obligation of estranged wife (Wong v. IAC) belonging to judgment debtor
3. Wifes third-party claim against levy on conjugal b. The court does not and cannot pass upon the
properties on a ground that conjugal partnership is question of title
not liable is permissible (Polaris Marketing v. Plan) (1) It can treat of the matter only insofar as
4. A spouse not a party to the suit is not a stranger to the may be necessary to decide if sheriff acted
case, except when levy is made on his/her correctly or not
paraphernal or exclusive property (Ching v. CA)
B. Independent of the foregoing, a third-party claimant may
also avail of the remedy of Terceria
LIABILITIES 1. Terceria is provided in Sec. 16, Rule 39
a. This is an action for damages by claimant against
Note: The officer shall not be liable for damages to any third-party officer within 120 days from date of filing of
claimant if such bond is filed for the taking or keeping of the bond for taking or keeping the property subject
property of the terceria
- The officers immunity from liability is only with respect to 2. Procedure
damages arising from his taking and keeping of the a. Claimant serves on the officer making levy an
property affidavit of his title and a copy thereof to
- Damages arising from his part not connected with his judgment creditor
official duty are not within the conditions of the bond and b. Officer shall not be bound to keep property
he can be held liable under showing of culpability (1) Unless judgment creditor, or his agent, on
demand of officer, posts indemnity bond
If the claim of impropriety in the execution proceedings is made by a not lesser nor greater than value of
party to the original action, not by a stranger thereto, any relief property
therefrom may be applied for with, and obtained from, only the c. Action for damages may be brought against
executing court (Mariano v. CA) sheriff within 120 days from filing of bond

However, judgment obligee can claim damages against a third-party C. The aforesaid remedies are nevertheless without prejudice
claimant who filed a frivolous or plainly spurious clam, and such to any proper action that third-party claimant may file to
judgment obligee can institute proceedings therefor in the same or vindicate his claim over the property (ownership claim)
separate action a. This action is separate and independent

71
b. Procedure SECTION 18 - No sale if judgment and costs paid.At any time
(1) He must institute an action, distinct and separate before the sale of property on execution, the judgment obligor
from that which the judgment is being enforced, may prevent the sale by paying the amount required by the
with the court of competent jurisdiction execution and the costs that have been incurred therein. (20a)
(2) No need to file a claim in the court which issued
a writ Prevention of sale judgment obligor may pay the amount required
(a) The latter is not a condition sine qua non and costs incurred
for the former
(3) In such proper action, validity and sufficiency of Notes:
title of claimant will be resolved - A sale after payment is void
(1) A writ of preliminary injunction against - If payment is made after sale, the sale is valid (Bualom et
sheriff may be issued al. v. Sarenas et al.)
- An execution sale is uncalled for where a certified check is
Meaning of Proper Action offered as payment and entitles debtor to a certificate of
- A separate and distinct action from that in which execution satisfaction of judgment (New Pacific Timber & Supply
is issued; distinct from that in Sec. 16, Rule 39 Co. Inc .v. Seneris)
- The object of the action:
Recovery of possession of the property seized by
sheriff SECTION 19 - How property sold on execution; who may direct
Damages resulting from allegedly wrongful seizure manner and order of sale.All sales of property under execution
and detention despite third-party claim must be made at public auction, to the highest bidder, to start at
- It may brought against: the exact time fixed in the notice. After sufficient property has
Sheriff been sold to satisfy the execution, no more shall be sold and any
Such other parties as may be alleged to have colluded excess property or proceeds of the sale shall be promptly
with the sheriff delivered to the judgment obligor or his authorized
- Court may issue preliminary injunction against sheriff representative, unless otherwise directed by the judgment or
enjoining him from proceeding with execution sale order of the court. When the sale is of real property, consisting of
- Denial or disapproval of the claim is not res judicata several known lots, they must be sold separately; or, when a
Third-party may still file reinvindicatory action portion of such real property is claimed by a third person, he may
require it to be sold separately. When the sale is of personal
property capable of manual delivery, it must be sold within view
SECTION 17 - Penalty for selling without notice, or removing or of those attending the same and in such parcels as are likely to
defacing notice.An officer selling without the notice prescribed bring the highest price. The judgment obligor, if present at the
by section 15 of this Rule shall be liable to pay punitive damages sale, may direct the order in which property, real or personal,
in the amount of five thousand (P5,000.00) pesos to any person shall be sold, when such property consists of several known lots
injured thereby, in addition to his actual damages, both to be or parcels which can be sold to advantage separately. Neither the
recovered by motion in the same action; and a person willfully officer conducting the execution sale, nor his deputies, can
removing or defacing the notice posted, if done before the sale, or become a purchaser, nor be interested directly or indirectly in
before the satisfaction of the judgment if it be satisfied before the any purchase at such sale. (21a)
sale, shall be liable to pay five thousand (P5,000.00) pesos to any
person injured by reason thereof, in addition to his actual Procedure of Sale on Execution
damages, to be recovered by motion in the same action. (19a) 1. It must be made at a public auction
2. Start at the exact time fixed in the notice
The following are liable for actual and punitive damages 3. It must be sold to the highest bidder
1. An officer selling without the notice prescribed by Sec. 15 4. After sufficient property has been sold to satisfy execution:
2. A person willfully removing or defacing the notice posted a. No more shall be sold
a. If done before the sale, or b. Any excess property or proceeds shall be promptly
b. Before satisfaction of judgment if satisfied before sale delivered to judgment obligor or his authorized
representative
What may be recovered: (1) Unless otherwise directed by judgment or court
1. Actual damages order
2. Punitive damages in the amount of P5,000
Specific Rules on Sale on Execution as to Property involved
How recovered by Motion in the same action 1. When the sale is for real property
a. If it consists of several known lots they must be sold
Jurisprudence separately
1. A sale without notice is null and void (Ago v. CA) b. If a portion of such is claimed by a third person
Subjects the officer to liability for damages third person may require it to be sold separately
2. Creditor who induced sheriff to sell without notice will be 2. When the sale is for personal property capable of manual
solidarily liable as a tortfeasors (Campomanes v. delivery
Bartolome, et al.) a. Sold in view of those attending the same
3. Execution sale made on the date after that fixed in the b. Sold in such parcels as are likely to bring the highest
notice is null and void. Sale is also a nullity where price
requirement for posting of notices is not complied with
(Prov. Sheriff of Rizal v. CA, et al.) Rights and Limitations of the parties involved
1. The judgment obligor, if present, may direct the order in
which the property shall be sold

72
a. When such property consists of several known lots or Defects in the Sale:
parcels that can be sold to advantage separately - An agreement or combination among bidders to stifle
2. Officer conducting execution sale, nor his deputies cannot competition nullifies the sale
be: - Mere attempt of an unsuccessful bidder to improve his bid
a. A purchaser cannot disapprove the sale
b. Or be interested directly or indirectly in any purchase - Irregularity of the sale must be promptly objected to
- Attachment and sale of properties belonging to third
Three Kinds of Sale of Real Property - There are 3 types of sales persons is void
arising from failure to pay a mortgage debt:
1. Ordinary Execution Sale right of judgment debtor or Inadequacy of Price as grounds for invalidity of sale
redemptioner is only to redeem - Inadequacy of price unless shocking to the conscience will
2. Judicial Foreclosure Sale there is generally no right to not nullify the sale
redeem but only equity of redemption before confirmation - It must be shown that in the event of resale, a better price
sale can be obtained
Extrajudicial Foreclosure Sale there is right to redeem within one - As held in Gomez v, Gealone the inadequacy of the price
year. Sec. 4, Rule 68 on delivery to junior encumbrancer of excess is not ground for setting aside an execution sale unless
should also be applied inadequacy is so great as to shock the conscience of man
Note that this rule does not apply to conventional
ORDINARY SALE ON SALE IN JUDICIAL sales
EXECUTION FORECLOSURE OF MORTGAGE - It has been held in Barrozo v. Macaraeg and Ponce de
Must be confirmed by the court Leon v. RFC that even in execution sales, if there is a right
Need not be confirmed by the in order to divest the rights in to redeem, the mere inadequacy of the price is not
court the property of the parties and material since judgment debtor may reacquire the
to vest the rights in purchaser property or sell his right to redeem and thus recover any
No right of redemption loss he claims to have suffered by reason of the price
Right to redemption exists Except by mortgagor where obtained at execution sale
when property is real mortgagee is a bank or banking
institution Remedy
Title acquired after expiration - The remedy against an irregular sale is a motion to vacate
Title acquired upon entry of or set aside the sale
of redemption period when
confirmation and registration - Filed in the court which issued the writ of execution
final deed of conveyance is
of foreclosure sale
executed

Auction Sale is Mandatory SECTION 20 - Refusal of purchaser to pay.If a purchaser refuses


- A judgment creditor cannot be given the property of to pay the amount bid by him for property struck off to him at a
judgment debtor levied upon execution except through a sale under execution, the officer may again sell the property to the
public auction sale highest bidder and shall not be responsible for any loss
- It is mandatory occasioned thereby; but the court may order the refusing
- Whatever is sold or is in excess of judgment should be purchaser to pay into the court the amount of such loss, with
returned to judgment debtor costs, and may punish him for contempt if he disobeys the order.
The amount of such payment shall be: for the benefit of the
Right of Debtor to Select person entitled to the proceeds of the execution, unless the
- Sec. 19 grants to judgment debtor the right to direct the execution has been fully satisfied, in which event such proceeds
order in which property shall be sold during sale shall be for the benefit of the judgment obligor. The officer may
- The rule does not forbid the execution debtor, in case he thereafter reject any subsequent bid of such purchaser who
has sufficient property, to point out to sheriff which of refuses to pay. (22a)
such property should be sold to satisfy judgment
- This principle applies in case of attachment: Effects if a purchaser refuses to pay the amount bid by him
When there are several that may be attached and 1. The officer may again sell the property to the highest
Their value is sufficient to answer for amount of bidder
judgment a. He shall not be liable for any loss occasioned thereby
2. But the court may:
Prohibited Buyers a. Order the refusing purchaser to pay into the court the
- Note that the judgment creditor can bid and purchase at amount of such loss, with costs; and
the public auction (Sec. 21) b. Punish him for contempt if he disobeys the order
- But the officer conducting the execution sale or his deputy 3. The officer may then reject any subsequent bid of such
are disqualified purchaser who refuses to pay
- Other persons disqualified from participating in said
public sale are enumerated in Art. 1491: The amount of such payment to court:
1. Guardians over property of his ward 1. It shall be for the benefit of the person entitled to the
2. Agents over property under administration proceeds of the execution
3. Executors and administrators over property of estate 2. If execution has been fully satisfied
4. Public officers and employees, over State property a. The proceeds shall be for the benefit of the judgment
5. Justices, judges, prosecuting attorneys, clerks, obligor
employees of justice over property in litigation
6. Any others disqualified by law Measure of damages to which judgment creditor is entitled against
the unlawful intervenor is the difference between:

73
1. The amount which would have been realized were it obligor had in such property as of the date of the levy on
not for the illegal intervention (but not to exceed the execution or preliminary attachment. (25a)
judgment account) and
2. The total amount which he actually recovered on the When Purchaser of any Personal Property capable of Manual
judgment from all sources Delivery pays the Purchase price
a. This includes the amount actually realized at 1. Officer making the sale must:
auction sale. a. Deliver the property to the purchaser
b. Plus expenses incurred as a consequence of the b. If desired, execute and deliver to him a certificate of
illegal intervention sale
2. Effect of the sale:
a. It conveys to the purchaser all rights which judgment
SECTION 21 - Judgment obligee as purchaser.When the obligor had in such property as of the date of levy on
purchaser is the judgment obligee, and no third-party claim has execution or preliminary attachment
been filed, he need not pay the amount of the bid if it does not
exceed the amount of his judgment. If it does, he shall pay only the Notes:
excess. (23a) - After delivery, court cannot set aside the sale (Sarmiento
v. Villamor)
Effects when the Purchaser is the Judgment Obligee - Owners are not in estoppel to question the sale, where the
(provided that there is no third-party claim filed) purchase is in bad faith (Gamboa v. CA)
1. If the bid did not exceed the amount of judgment
a. He need not pay the amount
2. If the bid exceeds the amount of judgment SECTION 24 - Conveyance to purchaser of personal property not
a. He shall pay only the excess capable of manual delivery.When the purchaser of any personal
property, not capable of manual delivery, pays the purchase price,
Notes: the officer making the sale must execute and deliver to the
- Payment is mandatory purchaser a certificate of sale. Such certificate conveys to the
- So long as there exists a third-party claim, sheriff has no purchaser all the rights which the judgment obligor had in such
discretion and must require the execution creditor who is property as of the date of the levy on execution or preliminary
the highest bidder to pay his bid in cash attachment. (26a)
He must require the successful bidder to pay in cash
so that the amount might be held by the sheriff When Purchaser of any Personal Property incapable of Manual
subject to the orders of the court should litigation Delivery pays the Purchase price
have broken out 1. Officer making the sale must:
a. Execute and deliver to purchaser a certificate of sale
2. Effect of certificate of sale
SECTION 22 - Adjournment of sale.By written consent of the a. Such certificate conveys to purchaser all rights which
judgment obligor and obligee, or their duly authorized judgment obligor had in such property as of the date
representatives, the officer may adjourn the sale to any date and of the levy on execution or preliminary attachment
time agreed upon by them. Without such agreement, he may
adjourn the sale from day to day if it becomes necessary to do so
for lack of time to complete the sale on the day fixed in the notice SECTION 25 - Conveyance of real property; certificate thereof
or the day to which it was adjourned. (24a) given to purchaser and filed with registry of deeds.Upon a sale of
real property, the officer must give to the purchaser a certificate
Adjournment of Sale, how done: of sale containing:
1. By written consent of the judgment obligor and obligee, or (a) A particular description of the real property sold;
their duly authorized representatives (b) The price paid for each distinct lot or parcel;
a. They may postpone to any date and time agreed upon (c) The whole price paid by him;
2. Without such agreement: (d) A statement that the right of redemption expires one
a. The officer may adjourn the sale from day to day if it (1) year from the date of the registration of the
becomes necessary to for lack of time to complete the certificate of sale.
sale Such certificate must be registered in the registry of deeds of the
place where the property is situated. (27a)
Notes:
- Officer may adjourn the sale from day to day if necessary Upon Sale of Real Property
to complete the sale 1. Officer must give to purchaser a certificate of sale which
- But the officer may not adjourn the sale to another date contains:
unless it is with written consent of parties a. Particular description of real property sold
Sale thus conducted without consent is null and void b. Price paid for each distinct lot or parcel
- For there to be valid postponement the requirements of c. The whole price paid by him
notice and publication will must also be followed d. Statement that the right of redemption expires 1 year
from date of registration of the certificate of sale
2. The certificate of sale must be registered in the Registry of
SECTION 23 - Conveyance to purchaser of personal property Deeds of the place where property is located
capable of manual delivery.When the purchaser of any personal
property, capable of manual delivery, pays the purchase price, the May the Validity of an Auction Sale be Attacked?
officer making the sale must deliver the property to the purchaser
and, if desired, execute and deliver to him a certificate of sale. The GENERAL RULE: No, because of the presumption of regular
sale conveys to the purchaser all the rights which the judgment performance of duty by the sheriff

74
EXCEPTIONS: SECTION 27 - Who may redeem real property so sold.
1. When from the nature of the irregularity or from the Real property sold as provided in the last preceding section, or
intrinsic facts, injury resulted therefrom (Navarro v. any part thereof sold separately, may be redeemed in the manner
Navarro) hereinafter provided, by the following persons:
2. When the price obtained is shockingly inadequate and it is (a) The judgment obligor, or his successor in interest in the
shown that a better price can be obtained at resale whole or any part of the property;
(Barrozo v. Macaraeg) (b) A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on some
EXCEPTION TO THE EXCEPTIONS: This rule that you can question part thereof, subsequent to the lien under which the
the validity of the auction sale if price obtained is shockingly property was sold. Such redeeming creditor is termed a
inadequate does not apply when the property sold is real property redemptioner. (29a)

Notes: SECTION 28 - Time and manner of and amounts payable on,


- Confirmation of the sale is not needed unlike judicial successive redemptions; notice to be given and filed.
foreclosure of mortgage (Pabico v. Ongpauco) The judgment obligor, or redemptioner, may redeem the property
Certificate of sale is merely provisional (Raymundo v. from the purchaser, at any time within one (1) year from the date
Sunico) of the registration of the certificate of sale, by paying the
- Unlike in extrajudicial foreclosure of mortgage, purchaser purchaser the amount of his purchase, with one per centum per
has no possession, but purchasers inchoate right must be month interest thereon in addition, up to the time of redemption,
respected until it is extinguished by redemption (Bautista together with the amount of any assessments or taxes which the
v. Fule) purchaser may have paid thereon after purchase, and interest on
- Registration with the register of deeds is mandatory for such last named amount at the same rate; and if the purchaser be
purposes of redemption period even if there is no third- also a creditor having a prior lien that of the redemptioner, other
party claimant than the judgment under which such purchase was made, the
A year after registration, a final deed of sale may be amount of such other lien, with interest.
executed in favor of purchaser who may then Property so redeemed may again be redeemed within
consolidate the title of the property in his favor sixty (60) days after the last redemption upon payment of the
sum paid on the last redemption, with two per centum thereon in
Period of Redemption addition, and the amount of any assessments or taxes which the
1. There is no right of redemption where property sold at last redemptioner may have paid thereon after redemption by
judicial sale is personal property him, with interest on such last-named amount, and in addition,
2. If property sold is real property: the amount of any liens held by said last redemptioner prior to his
a. Period of redemption is one year from registration of own, with interest. The property may be again, and as often as a
certificate of sale = redemptioner is so disposed, redeemed from any previous
If said certificate is not registered, period of redemptioner within sixty (60) days after the last redemption, on
redemption does not commence to run paying the sum paid on the last previous redemption, with
two per centum thereon in addition, and the amounts of any
But where the parties agreed on the date of redemption, assessments or taxes which the last previous redemptioner paid
the statutory period for legal redemption was converted after the redemption thereon, with interest thereon, and the
into one of conventional redemption and the period amount of any liens held by the last redemptioner prior to his
binding on them is that agreed upon (Lazo v. Republic own, with interest.
Surety & Insurance Co, Inc,) Written notice of any redemption must be given to the
officer who made the sale and a duplicate filed with the registry of
Certificate of Sale and Final Deed of Sale deeds of the place, and if any assessments or taxes are paid by the
- The certificate of sale of real property is merely a redemptioner or if he has or acquires any lien other than that
memorial of the fact of sale upon which the redemption was made, notice thereof must in like
It does not confer any right to possession manner be given to the officer and filed with the registry of deeds;
It does not confer ownership of the real property if such notice be not filed, the property may be redeemed without
purchased paying such assessments, taxes, or liens. (30a)
- It is the deed of sale executed by sheriff at expiration of
period of redemption which constitutes effective REDEMPTION
conveyance (See Sec. 33) Right of Redemption:
Now, the purchaser is entitled to possession of - Transferable and may be voluntarily sold
property sold - But it cannot be levied upon by the judgment creditor so as
to deprive the judgment debtor of any further rights to the
property
SECTION 26 - Certificate of sale where property claimed by third
person.When a property sold by virtue of a writ of execution has Right of Redemption:
been claimed by a third person, the certificate of sale to be issued 1. Personal property None; sale is absolute
by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall 2. Real property there is a right of redemption
make express mention of the existence of such third-party claim.
(28a) Who May Redeem (Sec. 27)
1. Judgment obligor, or his successor in interest, in the whole
If Property is Claimed by Third Party: The certificate of sale shall or any part of the property
also make an express mention of the existence of such third-party 2. Remptioner who is a creditor having a lien by virtue of an
claim attachment, judgment or mortgage on the property sold,
subsequent to the lien which the property was sold

75
NOTE: If lien is prior to judgment, he is not a redemptioner because Offers to Redeem
his interests in his lien are fully protected (relate to Sec. 12) - Offer to redeem must be accompanied by a bona fide
tender or delivery of redemption price
Successors-in-interest - However, a formal offer to redeem with tender is not
- They include, among others, one to whom the debtor has necessary where right to redeem is exercised though the
conveyed HIS INTEREST in the property for purposes of filing of a complaint to redeem in the courts within the
redemption period to redeem
- They refer to those persons: - If there was a valid tender, consignation is unnecessary
1. To whom the debtor has conveyed his interest in the and no further interest is demandable
property It is the duty of the sheriff to accept and execute
2. Transferred his statutory right of redemption certificate of redemption
3. Succeeds to the interest of the debtor by operation of
law Redemption Price (Sec. 28)
4. One or more joint owners of the property sold
5. The wife as regards her husbands homestead A. By the JUDGMENT DEBTOR or FIRST REDEMPTIONER
6. An attorney who agreed to divide the property in 1. Purchase PRICE
litigation 2. 1% INTEREST thereon up to time of redemption
- A surety cannot redeem the property of the principal sold 3. Any amount of ASSESSMENTS OR TAXES which
in execution purchaser may have paid after purchase
In such a case, the surety by paying the debt stands in a. As well as interest on such last named amount at
the place of the creditor, not debtor the same rate
As such, it is not a successor-in-interest of the debtor 4. If purchaser is also a creditor having a PRIOR LIEN to
that of redemptioner, other than the judgment under
The Redemptioner which such purchase was made, the AMOUNT of such
- He is a creditor with a lien SUBSEQUENT to the judgment OTHER LIEN
which was the basis of the execution sale a. Also with interest
- Unlike the judgment debtor, a redemptioner must prove
his right to redeem by producing the documents required B. By SUBSEQUENT REDEMPTIONERS
in Sec. 30 1. AMOUNT paid on last redemption
- If the lien of the creditor is PRIOR to the judgment under 2. 2% INTEREST thereon
which the property was sold: 3. Any amount of ASSESSMENTS OR TAXES which
He is not a redemptioner purchaser may have paid after purchase
He cannot redeem since his interests in his lien are a. As well as interest on such last named amount at
fully protected the same rate
Any purchaser at a public auction takes the same 4. Amount of any LIENS held by said last redemptioner
subject to such prior lien which he has to satisfy prior to his own
a. Also with interest
Note: Ownership of the property is not a requisite for the exercise of
the right of redemption The redemption price for subsequent redemption shall be the same
(so price becomes higher and higher)
When can redemption be made (Sec. 28)
1. BY THE JUDGMENT DEBTOR May redemption be paid in any other form other than cash? YES
Within 1 year from date of registration of certificate - Rule is construed liberally allowing redemption (to aid
of sale rather than defeat the right)
2. BY FIRST REDEMPTIONER - It has been allowed in cashiers check, certified bank
Within 1 year from date of registration of certificate checks, and even checks
of sale
3. BY ALL SUBSEQUENT REDEMPTIONERS Other Matters
Within 60 days from the last redemption - Judgment debtor has preference
Provided that the judgment debtor has not - Redemption must be for full amount
exercised his right of redemption - Lien of purchaser to be paid only if redemptioner is not the
judgment debtor
In all cases, judgment debtor shall have the entire 1 year Note that a lien does not refer to unpaid balance of
period from date of registration of sale to redeem the judgment
property. If judgment debtor redeems, no further - Right of judgment debtor is one year from registration
redemption is allowed (Sec. 29). regardless of number of redemptions
But if redemption is made from redemptioner,
No extension or interruption of redemption period judgment debtor has to pay the same payments
- The period of redemption is NOT suspended by an action required by a redemptioner
to annul foreclosure sale
- Periods of redemption are not extendible or interrupted Jurisprudence
- But the parties may agree on a longer period 1. Where several parcels of land were sold at a public auction
In this case, there is conventional redemption to satisfy a judgment, the defendant may redeem some of
- The court may also grant additional period to redeem the properties by paying the price at which they were sold
under special circumstances at the auction sale.
Piecemeal redemption is allowed since redemption of
properties sold at an execution sale, amount payable

76
is no longer the judgment debt but the purchase price 2. Whether or not the redemption of property sold in
(Dulay v. Carriaga, et al.) execution freed the redeemed property from prior
2. The rule is different in redemption of properties liens
mortgaged with the PNB or DBP and which were - Note however that WHEN THE PRIOR LIEN IS A
foreclosed judicially or extrajudicially since, under their MORTGAGE constituted on property redeemed:
charters, redemptioner must pay all the amounts owed by Such redemption does not extinguish the mortgage
the debtor on said mortgages (DBP v. Mirang) A mortgage previously registered cannot be
Same rule applies to foreclosure of banking prejudiced by any subsequent lien or encumbrance
institutions in view of Sec. 78, RA 337 (Ponce de Leon
v. RFC)
SECTION 30 - Proof required of redemptioner.A redemptioner
must produce to the officer, or person from whom he seeks to
SECTION 29 - Effect of redemption by judgment obligor, and a redeem, and serve with his notice to the officer a copy of the
certificate to be delivered and recorded thereupon; to whom judgment or final order under which he claims the right to
payments on redemption made.If the judgment obligor redeems, redeem, certified by the clerk of the court wherein the judgment
he must make the same payments as are required to effect a or final order is entered; or, if he redeems upon a mortgage or
redemption by a redemptioner, whereupon, no further other lien, a memorandum of the record thereof, certified by the
redemption shall, be allowed and he is restored to his estate. The registrar of deeds; or an original or certified copy of any
person to whom the redemption payment is made must execute assignment necessary to establish his claim; and an affidavit
and deliver to him a certificate of redemption acknowledged executed by him or his agent, showing the amount then actually
before a notary public or other officer authorized to take due on the lien. (32a)
acknowledgments of conveyances of real property. Such
certificate must be filed and recorded in the registry of deeds of NOTE: When the original owner wants to redeem, there is no need
the place in which the property is situated, and the registrar of for him to prove his right as a judgment debtor
deeds must note the record thereof on the margin of the record of - Proof is not needed from judgment debtor but only from
the certificate of sale. The payments mentioned in this and the the redemptioner
last preceding sections may be made to the purchaser or
redemptioner, or for him to the officer who made the sale (13a) Redemptioner must produce to the officer, or person from whom he
seeks to redeem, and serve with his notice to the officer:
Effect of Redemption by Judgment Debtor 1. Copy of the judgment or final order under which he claims
1. No further redemption is allowed the right to redeem certified by the clerk wherein
2. He is restored to his estate judgment or final order was entered OR
2. If he redeems upon a mortgage or other lien, a
Payments mentioned in Sec. 28 and 29 may be made to the: memorandum of the record thereof, certified by the
1. Purchaser, or Register of Deeds; OR
2. Redemptioner, or 3. An original or certified copy of any assignment necessary
3. For him to the officer who made the sale to establish his claim; OR
4. An affidavit executed by him or his agent showing the
The person to whom redemption payment is made must execute and amount then actually due on the lien
deliver to him a CERTIFICATE OF REDEMPTION
- Acknowledged by a notary public or other officer Failure to produce proof is a ground for refusal to allow redemption
authorized to take acknowledgements of conveyances of
real property
- Filed and recorded in the registry of deeds of the place SECTION 31 - Manner of using premises pending redemption;
which the property is situated waste restrained.Until the expiration of the time allowed for
Registrar must note the record on the margin of the redemption, the court may, as in other proper cases, restrain the
record of the certificate of sale commission of waste on the property by injunction, on the
application of the purchaser or the judgment obligee, with or
Effect of Redemption without notice; but it is not waste for a person in possession of
- When a judgment debtor redeems the property, what is the property at the time of the sale, or entitled to possession
effected is the elimination of the lien created by the levy on afterwards, during the period allowed for redemption, to continue
attachment or judgment on the registration of mortgage to use it in the same manner in which it was previously used; or to
thereon use it in the ordinary course of husbandry; or to make the
Note that he never lost ownership so there is no necessary repairs to buildings thereon while he occupies the
recovery of ownership property. (33a)
- The redemption of property sold under foreclosure
defeats the inchoate right of the purchaser and restores SECTION 32 - Rents, earnings and income of property pending
the property to the same condition as if no sale had been redemption.The purchaser or a redemptioner shall not be
attempted entitled to receive the rents, earnings and income of the property
sold on execution, or the value of the use and occupation thereof
NOTE: Redemption does not wipe out prior obligation when such property is in the possession of a tenant. All rents,
- Sec. 39 does not provide or is silent as to the following: earnings and income derived from the property pending
1. Effect of acceptance by purchaser, who is also a redemption shall belong to the judgment obligor until the
creditor, having prior lien to that of redemptioner, of expiration of his period of redemption. (34a)
redemption amount, without demanding payment of
the prior lien RIGHT OF JUDGMENT CREDITOR PENDING REDEMPTION
1. Apply for injunction to restrain the commission of waste
on the property

77
RIGHTS OF THE JUDGMENT DEBTOR PENDING REDEMPTION Note that there can be no valid execution if there
1. Remain in possession of the property was no valid levy
2. Cannot be ejected
3. Use the property in the same manner it was previously NOTE: The deed and possession is to be given at the expiration of the
used redemption period in the same case
4. Make necessary repairs to buildings thereon while he - There is no need for purchaser to file a separate action for
occupies the property a writ of possession
5. Use it in the ordinary course of husbandry (Sec. 31); and NOTE HOWEVER that it is only when it is the
6. Collect rents, earning and income derived from property judgment debtor or his successor-in-interest who is
until the expiration of period of redemption in possession that the execution court has jurisdiction
to issue a writ of possession
Notes: Improvements introduced without the knowledge of the When third persons or rights of third persons
judgment debtor is at purchasers risk who is not entitled to a return are involved, a proceeding supplemental to
of the money (Flores v. Lim) execution is had

Writ of possession is but complementary to writ of execution


SECTION 33 - Deed and possession to be given at expiration of - A writ of possession may only be issued in:
redemption period; by whom executed or given.If no redemption a. Land registration proceedings
be made within one (1) year from the date of the registration of b. Extrajudicial foreclosure of real estate mortgage
the certificate of sale, the purchaser is entitled to a conveyance c. Judicial foreclosure if debtor is in possession and no
and possession of the property; or, if so redeemed whenever sixty third person, not party to suit, has intervened
(60) days have elapsed and no other redemption has been made,
and notice thereof given, and the time for redemption has Proceeding Supplemental to Execution: When 3rd persons involved
expired, the last redemptioner is entitled to the conveyance and - Procedure is for the court to order a hearing and
possession; but in all cases the judgment obligor shall have the determine the nature of such adverse possession
entire period of one (1) year from the date of the registration of - A trial court cannot summarily make a finding that a third
the sale to redeem the property. The deed shall be executed by person has in his possession property of the judgment
the officer making the sale or by his successor in office, and in the debtor
latter case shall have the same validity as though the officer The trial court can only make an ORDER authorizing
making the sale had continued in office and executed it. the creditor to sue in the proper court pursuant to
Under the expiration of the right of redemption, the Sec. 43, Rule 39 (Remedies of Judgment Creditor)
purchaser or redemptioner shall be substituted to and acquire all
the rights, title, interest and claim of the judgment obligor to the On Registration and Validity of Levy
property as of the time of the levy. The possession of the property - The validity of levy is not affected by unregistered rights,
shall be given to the purchaser or last redemptioner by the same as well as that of the auction sale made in pursuance
officer unless a third party is actually holding the property thereof
adversely to the judgment obligor. (35a) This is true even if the unregistered right is registered
before the auction sale
Judgment obligor shall have the entire period of ONE YEAR from - Actual knowledge is equivalent to registration (Villegas v.
date of registration of sale to redeem the property Roldan)
- The right of the purchaser to the property RETROACTS to
Entitlement to a CONVEYANCE and POSSESSION: the date of levy
1. To the PURCHASER - So since the sale retroacts, any disposition or lien in favor
If there is no redemption made within 1 year from of 3rd persons created by acts of the debtor AFTER levy on
date of registration of the certificate of sale real property shall not be binding against purchaser to
2. To the LAST REDEMPTIONER whom a final deed of dale was issued
If there was redemption, and 60 days have elapsed
and no other redemption has been made Effects of Sale
Notice must have been given, and the redemption - It is only upon execution and delivery of final deed that
period has elapsed substitution to the rights of the judgment debtor takes
place
Two Documents which the Sheriff executed in case of REAL property Must be done after expiration of period to redeem
1. CERTIFICATE OF SALE - Rule in both real and personal property is caveat emptor.
After auction sale, he will execute in favor of the There is no warranty
purchaser the certificate of sale under Sec. 25 Sheriff does not warrant the title of the property thus
From registration of said certificate, the one year sold (Pablico v. Ong Pauco)
redemption period starts Nevertheless, a person dealing with registered land is
Certificate of sale after execution sale is merely a charged with notice only of liens and encumbrances
memorial of the fact of sale and does not operate as noted on the certificate of title
conveyance The purchase of registered land in execution sale
2. DEED OF CONVEYANCE has the better right over the vendee in a prior
If after expiration of redemption period there is no conventional sale of said land where such
redemption private sale was not registered in line with the
Operates to transfer to purchaser whatever rights the law
judgment debtor had in the property - What is sold at public auction is only the interest of the
The effect of a final deed of sale transfers the right as judgment debtor and not the property itself
of the time of the levy

78
Effect of Conveyance and Possession: He is substituted to and Right to compel contribution:
acquires all the rights, title, interest, and claim of the judgment 1. When property liable to an execution against several
debtor to the property AT THE TIME OF LEVY persons is sold and more than a due proportion of the
- Such right RETROACTS to the date of levy judgment is satisfied out of the proceeds of the sale of
- The purchaser acquires no better right than what the property of one of the; or
judgment debtor had in the property levied upon 2. When one of them pays, without a sale, more than his
Thus, if judgment debtor had already transferred the proportion
property executed prior to the levy and no longer has
an interest in the property, execution purchaser Right to reimbursement: When judgment is upon an obligation of
acquires no right (Pacheco v. CA) one of them, as security for another and surety pays the amount

Jurisprudence NOTE: Contribution and reimbursement may be obtained in a


1. The failure of a registered owner to avail of his right as separate action
such to redeem the property from buyer at execution by - Unless cross claims have been filed and adjudicated in the
public auction within the period provided by law is fatal same action
even if in the meantime they have sold the property to In this case, execution may issue to compel
their children (Dilag v. IAC) contribution or reimbursement

SECTION 34 - Recovery of price if sale not effective; revival of SECTION 36 - Examination of judgment obligor when judgment
judgment.If the purchaser of real property sold on execution, or unsatisfied.When the return of a writ of execution issued
his successor in interest, fails to recover the possession thereof, against property of a judgment obligor, or any one of several
or is evicted therefrom, in consequence of irregularities in the obligors in the same judgment, shows that the judgment remains
proceedings concerning the sale, or because the judgment has unsatisfied, in whole or in part, the judgment obligee, at any time
been reserved or set aside, or because the property sold was after such return is made, shall be entitled to an order from the
exempt from execution, or because a third person has vindicated court which rendered the said judgment, requiring such
his claim, to the property, he may on motion in the same action or judgment obligor to appear and be examined concerning his
in a separate action recover from the judgment obligee the price property and income before such court or before a
paid, with interest, or so much thereof as has not been delivered commissioner appointed by it, at a specified time and place; and
to the judgment obligor; or he may, on motion, have the original proceedings may thereupon be had for the application of the
judgment revived in his name for the whole price with interest, or property and income of the judgment obligor towards the
so much thereof as has been delivered to the judgment satisfactions of the judgment. But no judgment obligor shall be
obligor. The judgment so revived shall have the same force and so required to appear before a court or commissioner outside
effect as an original judgment would have as of the date of the the province or city in which such obligor resides or is found.
revival and no more. (36a) (38a)

Purchaser may recover the purchase price WHEN: SECTION 37 - Examination of obligor of judgment obligor.
1. Purchaser or his successor-in-interest fails to recover When the return of a writ of execution against the property of a
possession the property; or judgment obligor shows that the judgment remains unsatisfied,
2. Evicted due to: in whole or in part, and upon proof to the satisfaction of the
a. Irregularities in the proceedings concerning the sale; court which issued the writ, that a person, corporation, or other
or juridical entity has property of such judgment obligor or is
b. Judgment has been reversed or set aside; or indebted to him, the court may, by an order, require such
c. The property sold was exempt form execution; or person, corporation, or other juridical entity, or any officer or
d. A third person has vindicated his claim to the member thereof, to appear before the court or a commissioner
property appointed by it, at a time and place within the province or city
where such debtor resides or is found, and be examined
Remedies of the Purchaser concerning the same. The service of the order shall bind all
1. File a motion in the same action or file a separate action to credits due the judgment obligor and all money and property of
recover from judgment creditor the price paid the judgment obligor in the possession or in the control of such
2. File a motion for revival of judgment in his name against person, corporation, or juridical entity from the time of service;
judgment debtor; or and the court may also require notice of such proceedings to be
3. Bring an action to recover possession of property given to any party to the action in such manner as it may deem
proper. (39a)
Effect of revived judgment it has the same force and effect as an
original judgment would have as of the date of revival and no more SECTION 38 - Enforcement of attendance and conduct of
examination.A party or other person may be compelled, by an
order or subpoena, to attend before the court or commissioner
SECTION 35 - Right to contribution or reimbursement. to testify as provided in the two preceding sections, and upon
When property liable to an execution against several persons is failure to obey such order or subpoena or to be sworn, or to
sold thereon, and more than a due proportion of the judgment is answer as a witness or to subscribe his deposition, may be
satisfied out of the proceeds of the sale of the property of one of punished for contempt as in other cases. Examinations shall not
them, or one of them pays, without a sale, more than his be unduly prolonged, but the proceedings may be adjourned
proportion, he may compel a contribution from the others; and from time to time, until they are completed. If the examination is
when a judgment is upon an obligation of one of them, as before a commissioner, he must take it in writing and certify it to
security for another, and the surety pays the amount, or any part the court. All examinations and answers before a court or
thereof, either by sale of his property or before sale, he may commissioner must be under oath, and when a corporation or
compel repayment from the principal. (37a) other juridical entity answers, it must be on the oath of an
authorized officer or agent thereof. (40a)

79
SECTION 39 - Obligor may pay execution against obligee. Limitations on examination:
After a writ of execution against property has been issued, a a. Judgment debtor cannot be made to appear
person indebted to the judgment obligor may pay to the sheriff before a judge or commissioner outside the
holding the writ of execution the amount of his debt or so much province where debtor resides
thereof as may be necessary to satisfy the judgment, in the b. He may no longer be examined after lapse of 5
manner prescribed in section 9 of this Rule and the sheriffs years within which a judgment may be enforced
receipt shall be a sufficient discharge for the amount so paid or by motion for execution (Umali v. Coquia)
directed to be credited by the judgment obligee on the execution. Examination of other persons may also be done
(41a) pursuant to Sec. 38

SECTION 40 - Order for application of property and income to 2. SEC. 37 He may cause examination of the debtor of the
satisfaction of judgment.The court may order any property of judgment debtor as to any debt owed by him or to any
the judgment obligor, or money due him, not exempt from property of the judgment debtor in his possession
execution, in the hands of either himself or another person, or of Requisites:
a corporation or other juridical entity, to be applied to the (1) The writ must be returned unsatisfied; and
satisfaction of the judgment, subject to any prior rights over (2) Proof that person, corporation, or other legal
such property. entity has property of such judgment debtor or
If, upon investigation of his current income and is indebted to him
expenses, it appears that the earnings of the judgment obligor Where? Before a judge or commissioner appointed by
for his personal services are more than necessary for the him at a time and place where such debtor resides or
support of his family, the court may order that he pay the is found
judgment in fixed monthly installments, and upon his failure to Effect: Service of order shall bind all credits due to
pay any such installment when due without good excuse, may judgment debtor and all money and property
punish him for indirect contempt. (42a) This rule is not applicable if there is no issue
concerning the indebtedness of the person
SECTION 41 - Appointment of receiver.-The court may appoint a
receiver of the property of the judgment obligor; and it may also 3. SEC. 37 If after examination, court finds property of the
forbid a transfer or other disposition of, or any interference judgment debtor, either in his own hands or that of any a
with, the property of the judgment obligor not exempt from person, court may order the property applied to the
execution. (43a) satisfaction of judgment
SEC. 39 - Note that the person indebted to judgment
SECTION 42 - Sale of ascertainable interest of judgment obligor obligor may pay to the sheriff holding the writ the
in real estate.If it appears that the judgment obligor has an amount of his debt or so much thereof as may be
interest in real estate in the place in which proceedings are had,
necessary to satisfy the judgment
as mortgagor or mortgagee or otherwise, and his interest
therein can be ascertained without controversy, the receiver Sheriffs receipt shall be sufficient discharge for
may be ordered to sell and convey such real estate or the the amount so paid or directed to be credited by
interest of the obligor therein; and such sale shall be conducted judgment obligee on execution
in all respects in the same manner as is provided for the sale of Follow the rules under Sec. 9, Rule 39
real estate upon execution, and the proceedings thereon shall be
approved by the court before the execution of the deed. (44a) 4. SEC. 38 A party or other person may be compelled to
attend before the court or commissioner to testify as
SECTION 43 - Proceedings when indebtedness denied or another provided in Sec. 36 and 37
person claims the property.If it appears that a person or This must be done by order of the court or by
corporation, alleged to have property of the judgment obligor or subpoena
to be indebted to him, claims an interest in the property adverse Failure to obey: Contempt
to him or denies the debt, the court may authorize, by an order All examinations and answers must be under oath
made to that effect, the judgment obligee to institute an action
against such person or corporation for the recovery of such 5. SEC. 40 Order for application of property and income to
interest or debt, forbid a transfer or other disposition of such satisfaction of judgment
interest or debt within one hundred twenty (120) days from Court may order any property of judgment debtor, or
notice of the order, and may punish disobedience of such order any money due him, or in the hands of another to be
as for contempt. Such order may be modified or vacated at any applied to the satisfaction of judgment
time by the court, which issued it, or by the court in which the Property must not be exempt
action is brought, upon such terms as may be just. (45a) Subject to any prior rights over such property
If the court finds the earning of the judgment debtor
REMEDIES OF JUDGMENT CREDITOR for his personal services are MORE than sufficient for
In aid of execution or if Judgment is Not Fully Satisfied his familys needs, it may order payment in FIXED
MONTHLY INSTALLMENTS
1. SEC. 36 If execution is returned unsatisfied, he may cause Done upon investigation of his current income
examination of the judgment debtor as to his property and and expenses
income Failure to do so: Punish for contempt
When: At any time after return is made
The court issues an order requiring the judgment 6. SEC. 41 Appointment of a Receiver
debtor to appear and be examined Court may appoint a receiver for the property of
Proceedings may be had for the application of the judgment debtor not exempt from execution
property and income towards satisfaction

80
Court may also forbid disposition or interference with stands as surety for another, the latter is also bound from the
the property time that he has notice of the action or proceeding, and an
opportunity at the suretys request to join in the defense. (48a)
7. SEC. 42 Sale of Ascertainable Interest of Judgment
Obligor in Real Estate by Receiver Effect of Judgment AGAINST Surety
Requisites: - The principal is also bound
1. The court finds that the judgment debtor has an From the time principal had notice of the action or
ascertainable interest in real property proceeding
2. Such interest can be ascertained without
controversy Note: The converse is not true; In order that surety may be bound by
If the requisites are met, the court can order the sale the judgment against his principal, such surety:
of such interest 1. Must be impleaded in the action (Montejo v. Hilario)
Procedure is the same as in sale of real estate 2. Or given an opportunity to be heard
upon execution Otherwise, writ of execution issued against surety is void (Luzon
Proceedings shall be approved by the court Surety Co., Inc. v. Beson et al.)
before execution of the deed

8. SEC. 43 Institution of an action to recover property SECTION 47 - Effect of judgments or final orders .The effect of
If person alleged to have property of judgment debtor a judgment or final order rendered by a court of the Philippines,
or person indebted to him, claims an adverse interest having jurisdiction to pronounce the judgment or final order,
in the property or denies his debt may be as follows:
Court may authorize judgment creditor to bring an (a) In case of a judgment or final order against a specific
action to recover the property, forbid its transfer thing, or in respect to the probate of a will, or the
Court issues an order to this effect administration of the estate of a deceased person, or in
Action must be instituted within 120 days from respect to the personal, political, or legal condition or
notice of order status of a particular person or his relationship to
Failure is contempt another, the judgment or final order is conclusive
Such order may be modified or vacated at any upon the title to the thing, the will or administration,
time by the court or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of
SECTION 44 - Entry of satisfaction of judgment by clerk the death of the testator or intestate;
of court.Satisfaction of a judgment shall be entered by the (b) In other cases, the judgment or final order is, with
clerk of court in the court docket, and in the execution book, respect to the matter directly adjudged or as to any
upon the return of a writ of execution showing the full other matter that could have been raised in relation
satisfaction of the judgment, or upon the filing of an admission to thereto, conclusive between the parties and their
the satisfaction of the judgment executed and acknowledged in successors in interest by title subsequent to the
the same manner as a conveyance of real property by the commencement of the action or special proceeding,
judgment obligee or by his counsel unless a revocation of his litigating for the same thing and under the same title
authority is filed, or upon the endorsement of such admission by and in the same capacity; and
the judgment obligee or his counsel on the face of the record of (c) In any other litigation between the same parties of
the judgment. (46a) their successors in interest, that only is deemed to
have been adjudged in a former judgment or final
SECTION 45 - Entry of satisfaction with or without admission. order which appears upon its face to have been so
Whenever a judgment is satisfied in fact, or otherwise than upon adjudged, or which was actually and necessarily
an execution, on demand of the judgment obligor, the judgment included therein or necessary thereto. (49a)
obligee or his counsel must execute and acknowledge, or
indorse, an admission of the satisfaction as provided in the last This refers to judgments which are considered as conclusive and
preceding section, and after notice and upon motion the court may be rebutted directly by means of relief from judgment or
may order either the judgment obligee or his counsel to do so, or annulment of judgment or indirectly by offering them in evidence
may order the entry of satisfaction to be made without such under the parole evidence rule.
admission. (47a)
Immutability of Judgments -- Once a judgment attains finality it
Entry of satisfaction of the judgment shall be made in the court thereby becomes immutable and unalterable
docket and in the execution book on the bases of:
1. The return of an execution satisfied by action of sheriff; or Effect of Erroneous Judgment - Under res judicata, no matter how
2. An admission of the satisfaction of judgment executed and erroneous a judgment may be once it becomes final, it cannot be
acknowledged in the same manner as conveyance of real corrected
property by judgment obligee or his counsel; or
3. The indorsement of such admission by the judgment Dual Aspect of Res Judicata:
creditor or his attorney on the face of the record or 1. Bar by Former Judgment - Direct Estoppel by Judgment;
judgment; or covers paragraph (a) and (b)
4. By order of the court upon satisfactory proof of such 2. Conclusiveness of Judgment Estoppel by Verdict,
judgment Estoppel by Record, Collateral Estoppel by Judgment or
Preclusion of Issues or Rule of Auter Action Pendant; it
covers paragraph (c)
SECTION 46 - When principal bound by judgment against
surety.When a judgment is rendered against a party who

81
CONCLUSIVENESS OF E.g. issuance of a writ of possession does not
BAR BY FORMER JUDGMENT
JUDGMENT involve judicial discretion nor judgment (Ong v.
There is identity of parties, There is only identity of parties CA)
subject matter, and causes of and subject matter E.g. also in labor relations proceeding, it does not
action Cause of action are different apply since such are non-litigious and summary
The first judgment is in nature (Nasipit Lumber Co. v. NLRC)
The first judgment constitutes conclusiveness only as to
as an absolute bar to all matters directly adjudged and SECOND REQUISITE: Jurisdiction
matters directly adjudged and actually litigated in the first - If the court did not acquire jurisdiction over the subject
those that might have been action. matter and the parties, the judgment is void and cannot be
adjudged The second action can be invoked res judicata
prosecuted When the question of jurisdiction is concerned, there
Preclusion of claims Preclusion of issues only is no res judicata and the issue can be raised at any
stage of the proceedings, particularly where
indispensable party has not been impleaded
BAR BY FORMER JUDGMENT - Jurisdiction by acquiescence is valid and may be the basis
of res judicata
IN REM IN PERSONAM - A dismissal under Sec. 3, Sec. 17 for lack of interest on the
(Paragrah A) (Paragraph B) part of the plaintiff without any condition is with prejudice
The judgment or final order is and shall have the effect of an adjudication upon the
Decision is CONCLUSIVE upon merits unless otherwise provided by the court
CONCLUSIVE as between
title the thing, will or - There is no res judicata if the court has not yet acquired
parties and their successors in
administration of condition, jurisdiction over the person of the defendant
interest, litigating for the same
status or relationship of the
thing and under the same title
person THIRD REQUISITE: Judgment Upon Merits
an in the same capacity
e.g. land registration e.g. accion reinvindicatoria - GENERAL RULE: A dismissal without trial is not an
adjudication upon the merits
Res judicata is a rule that a final judgment rendered by a court of EXCEPTION: Under Sec. 3, Rule 17, where there is no
competent jurisdiction on the merits is conclusive as to the rights of trial but the dismissal shall have the effect of an
the parties and their privies, and, as to them, constitutes an absolute adjudication on the merits
bar to a subsequent action involving the same claim, demand, or - A judgment is on the merits if:
causes of action 1. Both parties have been heard, or given opportunity to
do so
Bar by prior judgment = Claim preclusion 2. And the court after a consideration of the evidence
- The first judgment is a bar to the prosecution of a second during trial renders judgment
action upon the same claim, demand, or cause of action There is an unequivocal determination of the
rights and obligations of the parties with respect
Requisites: to the causes of action and the subject matter of
the case
1. A FINAL judgment or order - Even if the court dismisses the action, if the
2. JURISDICTION over the subject matter and the parties by aforementioned are present, it is still on the merits
the court rendering it - NOTE: It is not necessary that there should have been trial
3. Judgment UPON MERITS If the judgment is general, and not based on any
4. Between the TWO CASES, there is: technical defect or objection, and the parties had full
a. IDENTITY OF PARTIES legal opportunity to be heard, it is on the merits
b. IDENTITY OF SUBJECT MATTER Example: Sec. 3, Sec. 17
c. IDENTITY OF CAUSE OF ACTION - A dismissal without prejudice does not mean that said
dismissal order was any less final
FIRST REQUISITE: Judgment must be final If it addressed the issues and disposed of the matter,
- The judgment must be final and executory which is beyond even if it is dismissed with prejudice, it is still a
the power of the court to alter judgment on the merits
- The former judgment must be a valid one - Jurisprudence:
- An interlocutory order cannot give rise to res judicata 1. There is no res judicata where former judgment is
Only a final and unappealable judgment on merits based on a prohibited and null and void contract (BF
rendered by a court of competent jurisdiction can Goodrich v. WCC)
effectively be the basis of res judicata 2. A dismissal by the court based on appellants failure
- A compromise has the effect and authority of res judicata to comply with court order to amend complaint there
even if not approved by the court (Cochingyan, Jr. v. being no basis in law to order such, was void as it was
Cloribel) based on a void order. No adjudication on the merits
- As to decisions of Administrative or Quasi-Judicial Bodies (Casenas v. Sanchez)
Res judicata applies only to juridical or quasi-juridical 3. No res judicata where the court issues an order
proceedings granting a motion to dismiss due to pendency of
Res judicata only applies to adversary another case without prejudice, there is no judgment
administrative proceedings on merits (Cuano v. CA)
It does not apply to administrative powers of - Dismissals even without trial considered as judgment on
legislative, executive, or ministerial determination merits:
1. Two dismissal rule under Sec. 1, Rule 17

82
2. Dismissal for failure to prosecute, to appear at trial, Tests applicable:
or to comply with rules or order of the court under 1. Inconsistency Rule there is identity of causes
Sec. 3, Rule 17 operates as judgment on merits when judgment sought will be inconsistent with
(unless otherwise provided by the court) the prior judgment
3. Judgment on pleadings, summary judgment, 2. Same Evidence Rule would the same evidence
judgment by confession, judgment by compromise support and establish both the present and
former causes of action? If yes, former
FOURTH REQUISITE: Identity constitutes a bar
1. Identity of Parties 3. Identity of Facts Rule If the two actions rest
Identity of parties exist when: upon different state of facts, or if different proofs
1. The parties in both cases are the same, or would be required to sustain both, there is no
2. The actions are between those in privity with identity in cause of action
them, as between their successors in interest by 4. The Same Delict Rule the right to relief in one
title subsequent to the commencement of action, suit must rest upon the same question which in
litigating for the same thing, under same title, in essence and substance was litigated and
same capacity; or determined in the first suit, there is res judicata
3. Where there is substantial identity even if there
are additional parties There is NO res judicata in:
There is also identity even if defendant in the first 1. Revival of Judgment
case becomes plaintiff, and vice-versa (HSBC v. Cause of action is for revival of dormant judgment
Adecoa & Co.) 2. Annulment of Judgment
Only substantial identity of parties is required Cause of action is extrinsic fraud or lack of
SHARED IDENTITY OF INTEREST is sufficient jurisdiction
It makes no difference that a party was a Subject matter is the judgment itself
defendant with others in the second or include 3. In Civil and Criminal Actions from the same act/s
some parties who are not joined in the first or The causes of action from these 2 actions may be
that additional parties are joined, provided that different
the judgment was rendered on merits and party 4. In Judgment for Support
against whom estoppel is set up was actually a A judgment for support does not become final and
party to the former litigation may be modified or altered during the entire period
NOTE: The SC held in Valdez v. Mendoza that res of support
judicata does not operate between persons who were Even if the parties entered into compromise
co-parties in the first case and are opposing parties in agreement
the second (estoppel operates only between adverse 5. Citizenship cases
parties) Exception was laid down in Burca v. Republic; In
EXCEPTION: Where the individual claims of such order that res judicata may be applied:
co-parties in the first case were brought in issue, 1. A persons citizenship must be raised as a
litigated, and determined in the first case, res material issue in a controversy where said
judicata applies to the co-parties person is a party
There is also no identity of parties in Intervention 2. The Solicitor General or representative took
Note that intervention is merely an interlocutory active part in the resolution thereof
proceeding dependent on or subsidiary to the 3. Finding of citizenship is affirmed by the SC
case between the original parties 6. When the court disregards application of res judicata
If the application would involve the sacrifice of justice
2. Identity of Subject Matter to technicality
The subject matter is not the same as cause of action
or the purpose of the action Specific Cases
Subject of the action is the matter or thing with 1. Rule in Actions to recover possession a judgment in this
respect to which the controversy has arisen, case is only conclusive on the question of possession and
concerning which the wrong has been done does not affect ownership
Ordinarily, it is the property, or contract, or the thing 2. As to cross claims
in dispute There is res judicata if subsequently filed in a
Examples: separate action (provided requisites are present)
1. Subject matter of previous action on recovery of Remember that the dismissal of the principal claim in
damages sustained up to filing of complaint is the first case carries with it the dismissal of the cross-
different from subject matter of action for claim
damages sustained after filing (Solano v. 3. As to counterclaims
Salvilla) Compulsory counterclaims cannot be made the
2. If previous action was concerned with a subject of a separate action
compromise agreement, the subject matter of
the 2nd action based on validity of execution
proceedings after compromise is different CONCLUSIVENESS OF JUDGMENT
(Cagayan de Oro Coliseum Inc. v. CA)
The issues actually and directly resolved in a former suit cannot
3. Identity of Cause of Action again be raised in any future case between the same parties
When the two actions are based on the same delict or involving a different cause of action.
wrong committed by defendant even if remedies are - It has the effect of preclusion ONLY OF THE ISSUES
different

83
- Parties in both actions may be the same but the causes of Note: Posterior changes has no retroactive effect and cannot be
action are different applied to nullify a prior final ruling

Conclusiveness of Judgment = Issue preclusion Difference with Res Judicata


- The first judgment precludes the re-litigation of a - Conclusiveness of the first judgment is not dependent
particular fact or issue in another action between the same upon its finality
parties on a different cause of action - First judgment is generally not final
- E.g. Smith Bell and Company Inc. v. CA the Court held - It relates entirely to questions of law and is confined in its
that the issue of negligence of the shipping line, which operation to subsequent proceedings in the SAME case
issue had already been passed upon in a case filed by one
of the insurers, is conclusive and can no longer be re-
litigated in a similar case filed by another insurer against SECTION 48 - Effect of foreign judgments or final orders.
the same shipping line on the basis of the same factual The effect of a judgment or final order of a tribunal of a foreign
circumstances country, having jurisdiction to render the judgment or final order,
is as follows:
Requirement: Identity of ISSUES (a) In case of a judgment or final order upon a specific
- The issues must be identical thing, the judgment or final order is conclusive upon the
- The adjudication of an issue in the first case is not title of the thing; and
conclusive of an entirely different and distinct issue arising (b) In case of a judgment or final order against a person, the
in the second judgment or final order is presumptive evidence of a
- It must clearly and positively appear, either from the right as between the parties and their successors in
record itself or by the aid of competent extrinsic evidence interest by a subsequent title.
that the precise point or question in issue in the 2nd suit In either case, the judgment or final order may be repelled by
was involved and decided in the first evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. (50a)
Examples:
1. Where the validity of substituted service had already been Public Policy Principle A judgment by a foreign court is enforceable
ventilated and decided in a former case which had long only within its territorial jurisdiction
become final and executory, petitioners are precluded to
re-litigate the same (Ybanez v. CA) A valid judgment rendered by a foreign tribunal may be recognized
2. But a judgment on the disbarment proceedings which insofar as the immediate parties the underlying cause of action are
incidentally touched on the issue of validity of a deed of concerned so long as it is convincingly shown that:
sale, cannot be considered conclusive in another action 1. There has been an opportunity for a fair hearing before a
where validity of the same deed is merely one of the main court of competent jurisdiction
issues. The issues in the 2 cases are not identical, what was 2. Trial upon registered proceedings has been conducted
decided in the disbarment proceedings is WON the lawyer 3. There is nothing to indicate either a prejudice in court and
violated his oath and not the validity of the deed of sale in the system of laws under which it is sitting or fraud in
(Esquivias v. CA) procuring the judgment

Where Conclusiveness of Judgment NOT applicable Effect of Foreign Judgments (provided that foreign tribunal had
1. Where the issues of the 2 cases are not identical jurisdiction):
2. The rule does not apply to issues of law 1. In case of judgment against a specific thing (in rem):
a. Judgment is CONCLUSIVE upon the title to the thing
2. In case of a judgment against a person (in personam):
STARE DECISIS a. Judgment is PRESUMPTIVE evidence of a right as
between parties and their successors-in-interest by a
When the SC has laid down a principle of law applicable to a certain subsequent title
state of facts, it will adhere to that principle and apply to it all future
cases where the facts are substantially the same In both cases, judgment may be repelled by evidence of:
- Note that this rule is not absolute 1. Want of jurisdiction
2. Want of notice
3. Collusion
DOCTRINE OF LAW OF THE CASE 4. Fraud
5. Clear mistake of law or fact
Whatever is once irrevocably established as the controlling legal rule
or decision between the same parties in the case continues to be the
law of the case whether correct on general principles or not, so long ENFORCING A FOREIGN JUDGMENT
as the facts on which such decision was predicated continue to be
the facts of the case before the court Two Ways of Giving Effect to Foreign Judgment:
- This generally finds application where an appellate court 1. An ordinary action to enforce the foreign judgment may be
passes on a question and remands the case to the lower filed in court, or
court for further proceedings 2. It may be pleaded in an answer or a motion to dismiss
The question there settled becomes the law of the
case upon subsequent appeal (RCPI v. CA) BY ACTION TO ENFORCE FOREIGN JUDGMENT
- This does NOT apply to resolutions rendered in connection - A foreign judgment may not be enforced if it is not
with the case wherein no rationale has been expounded on recognized in the jurisdiction where affirmative relief is
the merits of that action (Jarantilla v. CA) sought
- This doctrine is limited to the same case

84
The complaint should be considered as a petition for PROOF OF FOREIGN JUDGMENT
recognition of foreign judgment
In order that the defendant may present evidence to FIRST: Admission as evidence
repel enforcement - Before a foreign judgment is given presumptive
- In a complaint for enforcement, the cause of action derives evidentiary value, the document must first be presented
from the foreign judgment itself and admitted in evidence
- The matter left for proof is the foreign judgment itself and - A foreign judgment is a public document
not the facts from which it prescinds - For a copy of a foreign public document be admissible, the
- The actionable issues are generally restricted to a review following requisites are mandatory:
of jurisdiction, service of personal notice, collusion, fraud, 1. It must be attested by the officer having legal custody
or mistake of the records or by his deputy
This limitation on review is also known as the policy 2. It must be accompanied by a certificate by a secretary
of preclusion of the embassy or legation, consul general, consul vice
- In an action to enforce a foreign judgment the inclusion of general or consular agent or foreign service officer,
the other petitioners in the local case who were not and with the seal of his office
included in the foreign judgment is proper under our rules
on permissive joinder of parties even if they were not SECOND: Presumption of Regularity
impleaded in the foreign court - Once proved to be authentic, a foreign judgment is
presumed to be valid and binding in the country from
Action for Enforcement of Foreign Judgments were classified as which it comes
Capable of Pecuniary Estimation in Mijares v. Javier - It is also proper to presume the regularity of the
- In this case, the court declared the action to enforce a proceedings and the giving of due notice therein
foreign judgment against the estate of Pres. Marcos as - Hence, once the authenticity of the foreign is proved, the
capable of pecuniary estimation AS IT WOULD party attacking a foreign judgment, is tasked with the
NECESSARILY RESULT IN A MONEY JUDGMENT burden of overcoming its presumptive validity
- However, the court ruled that the action is not a claim
against the estate but falls under the class of cases under FINALLY: The party challenging the judgment has the ultimate duty
Sec. 7(b) Rule 141: All other actions not involving to demonstrate the alleged invalidity of the foreign judgment
property - See discussion below
This had a blanket filing fee of minimal amount
- Also it clarified that the case falls with the RTC
Sec. 33, BP 129 on jurisdiction of the MTC refers to CHALLENGING THE FOREIGN JUDGMENT
instances where the cause of action or subject matter
pertains to an assertion of rights and interests over The adverse party must be given opportunity to repel or impeach
the property or a sum of money foreign judgment
The RTC has jurisdiction pursuant to Sec. 19(6) which - The party attacking the foreign judgment has the burden
provides for filing fee in all cases not within the of overcoming the presumption of validity of such
exclusive jurisdiction of any court, tribunal, person, judgment on any of the following grounds:
or body exercising judicial or quasi-judicial functions
- Note that the subject matter of an action to enforce a Want of Jurisdiction over the Person By the Foreign Court
foreign judgment is the foreign judgment itself - To repel the foreign judgment for want of jurisdiction by
- Herrera makes a commentary on this case: the foreign court, the defendant must establish the manner
He says that the issue in Mijares is not to recover a of serving summons
sum of money - Hence, the attacking party must establish:
The recovery was a mere consequence of the 1. The procedural law of the foreign court, and
principal relief which sought to enforce the foreign 2. The manner of service which shows its invalidity
judgment - Foreign laws do not prove themselves in our jurisdiction
and our courts are not authorized to take judicial notice of
Hence, it should be INCAPABLE OF PECUNIARY
ESTIMATION them
Like any other fact, it has to be alleged and proved
PLEADING A FOREIGN JUDGMENT AS A DEFENSE As to what this foreign law is, is a question of FACT
- If a foreign judgment is intended as a defense against an - In the absence of proof regarding the relevant procedural
action in court on the ground of res judicata: law of the foreign country, processual presumption applies
Plead the foreign judgment in the answer or motion
to dismiss The Principle of Processual Presumption
In pleading a judgment of a foreign court, it is - In the absence of proof regarding the particular foreign
law, the procedure is presumed to be similar with the
sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it Philippine law
- It is NOT necessary that there should be a judgment - Hence, the validity of the procedure and its manner of
admitting said decision (Perkins v. Benguet) enforcement will then be adjudged based on Philippine
law
The requirements of an action on the foreign
judgment to afford the court an opportunity to pass To determine whether or not there is jurisdictional
judicially upon the foreign judgment is accomplished defect
where foreign judgment is relied upon in an answer
and duly proved Note: Want of jurisdiction over person not limited to improper
- Though it is not necessary that there be an action to service of summons but also foreign judgments which contravene
enforce the judgment, it is NECESSARY that the adverse law of the forum
party be given opportunity to impeach it

85
Collusion or Fraud
- As a ground to repel a foreign judgment, it must refer to
extrinsic fraud

Clear Mistakes of Law or Fact


- This only applies if judgment was rendered by a court in a
country which does not recognize our judgments as
conclusive (like France)
- It does not apply to judgments of foreign courts where
Philippine judgments are recognized as conclusive of the
merits (like England and Canada)
Since such facts are conclusive to us as well

PRINCIPLE OF FORUM NON-CONVENIENS

Under this principle, even if the exercise of jurisdiction is authorized


by law, courts may nonetheless refuse to entertain a case for any of
the following practical reasons:
1. The belief that the matter can be better tried and decided
elsewhere, either because the main aspects of the case
transpired in a foreign jurisdiction or material witnesses
have their residence there
2. The belief that the non-resident plaintiff sought the forum,
forum shopping, merely to secure procedural advantages
or to convey or harass the defendant
3. The unwillingness to extend local judicial facilities to non-
residents or aliens when the docket may already be over-
crowded
4. The inadequacy of the local judicial machinery for
effectuating the right sought to be maintained; and
5. The difficulty of ascertaining foreign law

Invocation of the principle


- It is not a ground for a motion to dismiss since it requires a
factual determination
- It is more properly considered as a matter of defense
- While it is within the discretion of the court, it should do
so only after vital facts are established, to determine
whether special circumstances require court desistance
- The issue of whether a suit should be entertained or
dismissed on the basis of this principle depends largely
upon the facts of the case and on the sound discretion of
the court

END OF RULE 39

86
NOTES ON RULE 39

87
NOTES ON RULE 39

88
The Right to Appeal
APPEALS 1. Not a natural right nor a part of due process
2. It is merely a statutory right, and may be exercised only in
Three Modes of Appeal: the manner and in accordance with provisions of the law
1. Ordinary Appeal Rule 40 and 41 c. Must comply with the requirements; failing to do so,
a. Notice of Appeal the right to appeal is lost
b. Record on Appeal 3. Perfection of an appeal in the manner and within the
2. Petition for Review Rule 42 period laid down by law is not only mandatory but
3. Appeal by Certiorari Rule 45 jurisdictional
4. Once granted, appeals become part of due process and
When is Appeal a Matter of Right should be liberally applied in favor of the right to appeal
1. First appeal is a matter of right
a. EXCEPT: In civil cases, first appeal is not a matter of Ordinary Appeal an appeal by notice of appeal from a judgment or
right if filed with the Supreme Court final order of a lower court on questions of fact and law
2. In criminal cases, when the RTC imposes death penalty,
the CA shall automatically review the judgment (Sec. 3(d), ORDINARY APPEAL PETITION FOR REVIEW
Rule 122) Matter of right Discretionary
a. If the CA finds that death penalty should be imposed, All the records are elevated No records are elevated unless
the CA shall not render judgment but certify and from the court of origin the court decrees it
elevate the case to the SC for review (Sec. 13(a), Rule Notice and record on appeal
124) are filed with the court of Filed with the CA
origin
Notes: The case was decided by the
The case was decided by the
1. Only final judgments or orders can be appealed as RTC pursuant to its original
RTC pursuant to its appellate
distinguished from interlocutory judgments or orders jurisdiction. The case was
jurisdiction
which are not appealable original filed in the RTC
2. Right to appeal is neither part of due process but a mere Note: The Rule on Summary Procedure no longer applies when the
statutory privilege that has to be exercised only in the case is on appeal
manner and in accordance with the provisions of law
3. Right to appeal is not constitutional or a natural right SECTION 1 - Where to appeal.An appeal from a judgment or
final order of a Municipal Trial Court may be taken to the Regional
Trial Court exercising jurisdiction over the area to which the
RULE 40 former pertains. The title of the case shall remain as it was in the
court of origin, but the party appealing the case shall be further
APPEAL FROM MUNICIPAL TRIAL COURTS referred to as the appellant and the adverse party as the appellee.
(n)
TO THE REGIONAL TRIAL COURTS
Breakdown of Provision:
A. An appeal from a judgment or final order of MTC:
Breakdown of Procedure 1. May be taken to the RTC exercising jurisdiction over
the area to which the MTC pertains
Appeal decision of MTC by filing notice of appeal and pay B. Title of the case shall remain as it was in the court of origin
within 15 days from receipt of judgment 1. But party appealing shall be referred to as appellant
2. The adverse party as the appellee

15 days from perfection of appeal,


Appeal to the RTC
MTC clerk transmits record to RTC 1. Mode of appeal notice of appeal within 15 days from
receipt of decision
2. After appeal to RTC is perfected, MTC loses its jurisdiction
over the case and any motion for the execution of the
Notice to parties that an appeal is being taken judgment should be filed with the RTC
from the decision of the MTC
If a judgment of an inferior court is sought to be reviewed:
1. The remedy is appeal
Within 15 days from notice of appeal: 2. Not a special civil action of certiorari
1. Appellant submits memorandum to the RTC a. EXCEPT when appeal would not be a speedy and
2. Appellee files his own memorandum 15 days from adequate remedy and would not promptly relieve a
receipt of appellants memorandum party from the injurious effects of the order
complained

Who may Appeal


Court acts on the appeal
1. The only requirement is that the person appealing:
1. Must have a present interest in the subject matter of
the litigation; and
If uncontested, Any party may appeal 2. Must be aggrieved or prejudiced by the judgment
judgment is entered in by filing a petition for 2. One is deemed aggrieved or prejudiced when his interest,
the book of entries review with the CA recognized by law in the subject matter of the lawsuit, is
injuriously affected by the judgment, order or decree

89
SECTION 2 - When to appeal.An appeal may be taken within How to Appeal:
fifteen (15) days after notice to the appellant of the judgment or A. By Notice of Appeal
final order appealed from. Where a record on appeal is required, 1. File a notice of appeal with the trial court that
the appellant shall file a notice of appeal and a record on appeal rendered the judgment or final order appealed from
within thirty (30) days after notice of the judgment or final order. 2. The notice of appeal must indicate
The period of appeal shall be interrupted by a timely a. The parties
motion for new trial or reconsideration. No motion for extension b. The judgment or final order or part thereof
of time to file a motion for new trial or reconsideration shall be appealed from;
allowed. (n) c. The material date showing timeliness of appeal
3. A copy served on the adverse party; and
Breakdown of Provision: 4. Payment in full of docket fees and other lawful fees
A. When to Appeal: B. By Record on Appeal
1. Within 15 days after notice to appellant of judgment or 1. For the following cases:
final order appealed from a. Special proceedings (such as probate)
2. If record of appeal is required, within 30 days from b. In such other cases where multiple appeals are
notice of judgment or final order allowed (as in partition and in expropriation)
a. By filing a notice of appeal and a record on appeal 2. Form and contents of the record on appeal shall be as
B. Period of appeal shall be interrupted by a timely motion for provided in Sec. 6, Rule 41
new trial or reconsideration 3. A copy served on the adverse party; and
1. No motion for extension of time to file motion for new 4. Payment in full of docket fees and other lawful fees
trial or reconsideration
Material Data Rule The notice of appeal must also be accompanied
When to Appeal: by a statement of the material dates showing the timeliness of the
1. Within 15 days after notice of judgment or final order appeal
2. Where a record on appeal is required, within 30 days from
notice of judgment or final order by filing a notice of In Roque v. Gunigundo, the 30-day period may be extended
appeal and a record on appeal because, where the record is voluminous or the appellant has other
pressing matters to attend to, it may not be practicable to submit the
EXAMPLE: Pursuant to RA 7691, MTC have probate jurisdiction record of appeal within the reglementary period
where gross value of the estate, testate or intestate, does not exceed
P100,000 or, if in Metro Manila, P200,000
- As provided by Sec. 3, an appeal from such special SECTION 4 - Perfection of appeal; effect thereof.The perfection
proceeding shall be by record on appeal of the appeal and the effect thereof shall be governed by the
provisions of section 9, Rule 41. (n)
The Fresh Period Rule
1. Sec. 2 provides that the period of appeal shall be Since appeals from inferior courts may now be either by notice of
interrupted by a timely motion for new trial or appeal or record on appeal, the rules on the perfection and the effect
reconsideration thereof are the same. See Sec. 9, Rule 41
2. Under the fresh period rule, a party litigant may either:
a. File his notice of appeal within 15 days from receipt Note: The notice of appeal does not require the approval of the court.
of the RTCs decision or The function of the notice of appeal is merely to notify the trial court
b. File it within 15 days from receipt of order denying that the appellant was availing of the right to appeal, and not to seek
his motion for new trial or motion for reconsideration the courts permission that he be allowed to pose an appeal
3. The fresh period rule shall apply to Rule 40, 41, 42, 43, 45 (Crisologo v. Daray)

Note: No motion for extension to file a motion for new trial or


reconsideration shall be allowed. But if the appeal requires the filing SECTION 5 - Appellate court docket and other lawful fees.Within
of a record on appeal, a motion for extension to submit record on the period for taking an appeal, the appellant shall pay to the
appeal is allowed 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
SECTION 3 - How to appealThe appeal is taken by filing a notice the appellate court together with the original record or the record
of appeal with the court that rendered the judgment or final order on appeal, as the case may be. (n)
appealed from. The notice of appeal shall indicate the parties to
the appeal, the judgment or final order or part thereof appealed Breakdown of Provision
from, and state the material dates showing the timeliness of the A. The appellant shall pay to the clerk of the court which
appeal. rendered the judgment or final order appealed from the full
A record on appeal shall be required only in special amount of the appellate court docket and other lawful fees
proceedings and in other cases of multiple or separate appeals. 1. Within the period for taking the appeal
The form and contents of the record on appeal shall be as B. Proof of payment
provided in section 6, Rule 41. 1. Shall be transmitted to the appellate court
Copies of the notice of appeal, and the record on appeal a. Together with the original record or the record on
where required, shall be served on the adverse party. (n) appeal, as the case may be

Payment of Docket Fees


1. Payment of appellate court docket fees is jurisdictional
a. Failure to do so is ground for dismissal of appeal (Sec.
1(c), Rule 50)

90
2. However, non-payment of docket fees does not 1. Appellee may file his memorandum
automatically result in dismissal of appeal D. Upon filing of memorandum of appellee, or expiration of
a. The dismissal being discretionary in the court if there period to do so
are justifications on non-payment (Fontanar v. 1. Case shall be considered submitted for decision
Bonsubre) E. RTC shall decide the case on the basis of:
b. It has been held that it is not a ministerial duty of the 1. The entire record of the proceedings had in the court of
court to dismiss the appeal due to non-payment of the origin and
docket fee (Panes v. CA) 2. Such memoranda as are filed
c. The SC has been liberal about the payment of docket
fees (See the modification of the Manchester rule by Notes:
the Sun Insurance case) 1. The requirement in Sec. 7(b) for submission of appellants
memorandum is mandatory and compulsory
2. Where the party had appeared by counsel in the inferior
SECTION 6 - Duty of the clerk of court.Within fifteen (15) days court, notice contemplated in this section should be sent to
from the perfection of the appeal, the clerk of court or the branch the attorney
clerk of court of the lower court shall transmit the original record a. But if the notice was sent to party himself, and he
or the record on appeal, together with the transcripts and actually received the same, such notice is valid and
exhibits, which he shall certify as complete, to the proper binding
Regional Trial Court. A copy of his letter of transmittal of the 3. There is no more trial de novo
records to the appellate court shall be furnished the parties. (n) a. Appellate court must decide the appeal on the basis of
the records
Breakdown of Provision b. EXCEPTION: Where proceedings were not recorded
A. Within 15 days from perfection of appeal, clerk of court or because of the absence of a qualified stenographer
the branch clerk of the lower court shall transmit to the (Draculan v. Donato)
proper RTC: a. Decision of the inferior court which was not
1. The original record or record on appeal recorded is not null and void
2. Together with the transcripts and exhibits b. In an appeal therefrom, a trial de novo may be
a. Clerk shall certify as complete conducted
B. Clerk shall also furnish the parties a copy of his letter of 4. Judgment is not vacated by appeal
transmittal of the records to the appellate court a. It is merely stayed, and may be affirmed, modified, or
reversed, or findings of facts or conclusions of law
A certification of the completeness of the documents transmitted to may be adopted by reference
the appellate court must be furnished to the parties for their 5. No new parties or change of theory is permitted
verification and appropriate action. 6. No new matters are allowed to be incorporated in the
written answer on appeal
a. But pleadings may be amended on appeal to conform
SECTION 7 - Procedure in the Regional Trial Court. to the evidence submitted before the trial court
(a) Upon receipt of the complete record or the record on
appeal, the clerk of court of the Regional Trial Court
shall notify the parties of such fact. SECTION 8 - Appeal from orders dismissing case without trial;
(b) Within fifteen (15) days from such notice, it shall be the lack of jurisdiction.If an appeal is taken from an order of the
duty of the appellant to submit a memorandum which lower court dismissing the case without a trial on the merits, the
shall briefly discuss the errors imputed to the lower Regional Trial Court may affirm or reverse it, as the case may be.
court, a copy of which shall be furnished by him to the In case of affirmance and the ground of dismissal is lack of
adverse party. Within fifteen (15) days from receipt of jurisdiction over the subject matter, the Regional Trial Court, if it
the appellants memorandum, the appellee may file his has jurisdiction thereover, shall try the case on the merits as if the
memorandum. Failure of the appellant to file a case was originally filed with it. In case of reversal, the case shall
memorandum shall be a ground for dismissal of the be remanded for further proceedings.
appeal. If the case was tried on the merits by the lower court
(c) Upon the filing of the memorandum of the appellee, or without jurisdiction over the subject matter, the Regional Trial
the expiration of the period to do so, the case shall be Court on appeal shall not dismiss the case if it has original
considered submitted for decision. The Regional Trial jurisdiction thereof, but shall decide the case in accordance with
Court shall decide the case on the basis of the entire the preceding section, without prejudice to the admission of
record of the proceedings had in the court of origin and amended pleadings and additional evidence in the interest of
such memoranda as are filed. (n) justice. (n)

Breakdown of Provision Two Scenarios:


A. Upon receipt of complete record or record on appeal
1. RTC Clerk of court shall notify the parties of such fact A. If the lower court dismissed the case without trial on the
B. Within 15 days from such notice merits, the RTC may:
1. It is the duty of the appellant to submit a memorandum 1. Affirm, if the ground of dismissal is lack of jurisdiction
2. Memorandum shall briefly discuss the errors imputed over the subject matter
to the lower court a. The RTC, if it has jurisdiction, shall try the case
3. A copy of which shall be furnished by him to the on the merits as if the case was originally filed
adverse party therein
4. Failure of appellant to file a memorandum shall be a 2. Reverse, in which case, it shall remand the case for
ground for dismissal of the appeal further proceedings
C. Within 15 days from receipt of appellants memorandum

91
B. If the case was tried on the merits by the lower court
without jurisdiction over the subject matter:
1. The RTC shall not dismiss the case if it has original
jurisdiction
a. But shall decide the case, and shall admit
amended pleadings or additional evidence

Notes:
1. The first paragraph contemplates the situation wherein
the case was not tried on the merits but was dismissed on
a technical objection or question of law, as where the case
was dismissed for improper venue on defendants motion
or for prescription
2. Where the question of law involves lack of jurisdiction
over the subject matter and the RTC has jurisdiction over
it,
a. It shall try the case on the merits as if it were
originally tried by it
b. Consent of parties to such assumption of original
jurisdiction over the case is not required
3. Where the case was tried on merits by the lower court
which did not have jurisdiction over subject matter
a. Same procedure RTC assumes original jurisdiction
without need for consent by parties
b. Since there was actual trial, the parties may be
allowed to file amended pleadings and adduce
additional evidence

SECTION 9 - Applicability of Rule 41.The other provisions of


Rule 41 shall apply to appeals provided for herein insofar as they
are not inconsistent with or may serve to supplement the
provisions of this Rule. (n)

Note: By virtue of this provision, the inferior courts also exercise


residual jurisdiction in the same manner as provided under par. 5,
Sec. 9, Rule 41

END OF RULE 40

92
NOTES ON RULE 40

93
5. Order of execution
RULE 41 6. Judgment or final order for or against one or more of
APPEAL FROM several parties or in separate claims, counterclaims, cross-
claims and 3rd party complaints, while the main case is
THE REGIONAL TRIAL COURTS pending
a. UNLESS the court allows an appeal therefrom
The Three Modes of Appeal from Decisions of the RTC 7. Order dismissing an action without prejudice
1. Ordinary appeal or appeal by writ of error, where
judgment was rendered in a civil or criminal action by the Remedy in cases where appeal is not allowed: Special civil action of
RTC in the exercise of its original jurisdiction certiorari or prohibition if there is lack of excess of jurisdiction or
a. This mode of appeal, governed by Rule 41, is taken to grave abuse of discretion or mandamus is there is no performance of
the CA on questions of fact or mixed questions of fact duty (Rule 65)
and law

2. Petition for review, where judgment was rendered by the AN ORDER DENYING A MOTION FOR NEW TRIAL OR
RTC in the exercise of its appellate jurisdiction RECONSIDERATION
a. This mode of appeal, covered by Rule 42, is brought
to the CA on question of fact, of law, or mixed Order denying a motion for new trial or reconsideration
questions of fact and law 1. An aggrieved party may no longer assail an order denying
a motion for new trial or reconsideration by Rule 65
3. Petition for review on certiorari, or appeal by certiorari to 2. Proper remedy is to appeal from the judgment
the SC
a. This mode of appeal, provided for by Rule 45, is Proscription against an order denying a motion for reconsideration
brought to the SC from the decision of the RTC in the refers to an interlocutory order, and not a final order or judgment
exercise of its original jurisdiction and only on 1. So the dismissal of the complaint is not interlocutory but a
questions of law final order and is appealable
2. But the denial of a motion to dismiss is interlocutory and
SECTION 1 - Subject of appeal.An appeal may be taken from a not appealable
judgment or final order that completely disposes of the case, or of
a particular matter therein when declared by these Rules to be
appealable. AN ORDER DENYING A PETITION FOR RELIEF OR ANY SIMILAR
No appeal may be taken from: MOTION SEEKING RELIEF FROM JUDGMENT
(a) An order denying a motion for new trial or reconsidera-
tion; Order denying petition for relief of any similar motion seeking relief
(b) An order denying a petition for relief or any similar from judgment
motion seeking relief from judgment; 1. This is no longer appealable
(c) An interlocutory order; 2. An abandonment of the former rule
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by AN INTERLOCUTORY ORDER
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating Final has two possible meanings in Civil Procedure:
consent. 1. FINAL in the sense that it is already executory
(f) An order of execution; a. This happens if there is no appeal
(g) A judgment or final order for or against one or more of b. And that is for purposes of applying Rule 39 on
several parties or in separate claims, counterclaims, execution
cross-claims and third-party complaints, while the main 2. FINAL in the sense that it is not merely interlocutory
case is pending, unless the court allows an appeal because it completely disposes of the case or a particular
therefrom; and matter therein and there is nothing more for the court to
(h) An order dismissing an action without prejudice. do after its rendition
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special Interlocutory Order Refers to an order which does not dispose of
civil action under Rule 65. (n) the case but leave something else to be done by the trial court on the
merits of the case
Appealable Cases: 1. Movant has to wait for the judgment and appeal from the
1. Judgments or final orders that completely disposes of the judgment, in the course of which appeal he can assign as
case error the said interlocutory order
2. A particular matter in a judgment declared by the Rules to 2. Interlocutory order cannot be appealed from separately
be appealable from the judgment
3. But one can resort to Rule 65 immediately, under proper
Non-Appealable Cases circumstances
1. Order denying a petition for relief or any similar motion 4. Appellate court can motu proprio dismiss an appeal from
seeking relief from judgment an interlocutory order
2. Interlocutory order
3. Order disallowing or dismissing an appeal Test for Determining whether Judgment or Order is Final or
4. Order denying a motion to set aside a judgment by Interlocutory
consent, confession, or compromise on the ground of 1. Does it leave something to be done in the trial court with
fraud, mistake, or duress, or any other ground vitiating respect to the merits of the case?
consent a. If it does, it is interlocutory, you cant appeal yet

94
b. If it does not, it is final and therefore you can appeal See Rules 38 and 47 for availability of other remedies against a
judgment based on compromise agreement
Note: The Rule refers to appeals from RTC exercising ORIGINAL Judgment based on Compromise it is not appealable and is
jurisdiction immediately executory
c. An appeal on pure questions of law cannot be taken - Remedies to set aside a compromise agreement are:
to the CA and such improper appeal will be dismissed a. Motion to set aside
pursuant to Sec. 2, Rule 50 b. Motion for reconsideration or new trial
c. Petition for relief from judgment
GENEAL RULE: An appeal therefore from an order that does not d. Petition for annulment of judgment
completely dispose of the case is not allowed
EXCEPTION: Unless declared by the rules to be appealable Judgment by Default Where defendant has been improperly
1. Examples: declared in default and has perfected his appeal from the judgment
a. Appeal from order of condemnation under Rule 67, by default, he can still avail of certiorari to prevent the carrying out
Sec. 5 on Expropriation of the writ of execution improperly issued by the trial court
b. Order of partition under Rule 69
c. Appeals in special proceedings under Rule 109 AN ORDER OF EXECUTION

Jurisprudence Non-appealability of Order of Execution


1. The ruling of the trial court declaring that the disputed 1. An order of execution is not merely interlocutory but final
property belongs to the estate and thus squarely resolved in character
the issue of ownership is a definitive judgment and not an 2. Final and executory judgments may no longer be contested
interlocutory order (Miranda v. CA) and no appeal therefrom is permitted
2. A decision in legal separation case is a final judgment even
if the conjugal partnership still has to be liquidated However, the SC held earlier that appeal is available when such
(Macadangdang v. CA) order varies the term of the judgment or if the same is ambiguous,
3. An order of dismissal against one of the solidary debtor is such as:
not final and not appealable unless the case is completely 1. Where such order of execution in the opinion of the
terminated defeated party varies the terms of the judgment and does
d. This rule does not apply if party dismissed is an not conform to the essence thereof, or
indispensable party (Santos v. Pecson) 2. When the terms of the judgment are not clear and there is
4. Order dismissing the complaint against a group of room for interpretation and the interpretation given by
defendants is a final order in the sense that it disposed of the trial court is wrong in the opinion of the defeated party
the case as between the plaintiffs and the said defendants
leaving the action to proceed with respect to the other However, Herrera notes that these cases are now of
defendants (Bank of America NT & SA v. CA) doubtful applicability
5. Order that the action is premature is a final order, not
interlocutory (Distilleria Limtuaco v. CA) The rule is once a decision or resolution becomes final and
6. Summary judgment is a final order (Mercado et al. v. CA) executory, it is the ministerial duty of the court or tribunal to order
7. Rulings on admissibility of evidence is interlocutory (Peza its execution
v. Alikpala) 1. And such order is NOT APPEALABLE
8. Appeal from an order dismissing a counterclaim which is 2. Under the present rule, the remedy against the issuance of
related to and an incident of the cause of plaintiffs a writ of execution is not a petition for review under Rule
complaint is premature 42 but a PETITION FOR CERTIORARI under Rule 65
9. Order denying third-party complaint by vendee to warrant
eviction is final and appealable (De Dios v. Balagot) Note that under the Rules: No appeal may be taken from an order
10. An order fixing the amount of attorneys fees is a final and denying a motion for new trial or reconsideration and an order of
appealable order (Gold City Integrated Port Services Inc. execution
v. IAC)
11. An order suspending the decision in an appeal in an Where the judgment or final order may not be appealed, the
ejectment case until the separate action for specific appropriate recourse is a special civil action under Rule 65
performance is decided is merely interlocutory (Philgreen
Trading Corp. v. CA) Effects of Partial Execution
1. As explained in Vital-Gozun v. CA:
AN ORDER DISALLOWING OR DISMISSING AN APPEAL The general rule is that when a judgment has been
satisfied, it passes beyond review, satisfaction being
An order disallowing or dismissing an appeal is not appealable the last act and end of the proceedings, and payment
- If proper appeal is disallowed, the remedy is mandamus or satisfaction of the obligation thereby established
produces permanent and irrevocable discharge
AN ORDER DENYING A MOTION TO SET ASIDE A JUDGMENT hence, a JUDGMENT DEBTOR who acquiesces in and
BY CONSENT, CONFESSION, OR COMPROMISE voluntarily complies with the judgment is estopped
ON THE GROUND OF FRAUD, MISTAKE OR DURESS, from taking an appeal therefrom
OR ANY GROUND VITIATING CONSENT 2. However, as laid down in Verches v. Rios, the question of
whether or not a JUDGMENT CREDITOR is estopped from
An order denying a motion to set aside a judgment by consent, appealing or seeking modification of a judgment has been
confession, or compromise on the ground of fraud, mistake or executed at his instance, is one dependent upon the nature
duress, or any other ground vitiating consent is not appealable of the judgment as being indivisible or not
a. Where the judgment is INDIVISIBLE:

95
1. The weight of authority is to the effect that an Such order of dismissal is a final order
acceptance of full satisfaction of judgment 4. Law grants an aggrieved party a period of 15 days from his
annihilates the right to further prosecute the receipt of the courts decision or order disposing of the
appeal case to appeal or move to reconsider
2. Even partial execution by compulsory legal Rule 40, Sec. 2 in relation to Rule 13, Sec. 9 and 10
process at the instance of a party in whose favor 5. Plaintiff may move and set aside his notice of dismissal
a judgment appealed from was rendered, places and revive his action before that period lapses
said party in estoppel to ask that the judgment But after the dismissal has become final after the
be amended, or otherwise lapse of the 15-day reglementary period, the only way
b. If the judgment is DIVISIBLE to revive the case is the institution of another action
1. Estoppel should not operate against a judgment through filing and payment of docket fees
creditor who causes implementation of a part of
the decision by writ of execution
SECTION 2 - Modes of appeal.
E.g. A judgment for reinstatement and damages is divisible (as held (a) Ordinary appeal.The appeal to the Court of Appeals in
in Gozun v. CA) cases decided by the Regional Trial Court in the exercise
- The amended judgment of the CA is clearly divisible, the of its original jurisdiction shall be taken by filing a
satisfaction of which may be split up: notice of appeal with the court which rendered the
1. One part has reference to the enforcement of the final judgment or final order appealed from and serving a
and executory judgment of the CSC for reinstatement copy thereof upon the adverse party. No record on
2. The other part has reference to the damages which appeal shall be required except in special proceedings
plaintiff suffered as a result of the unjustified refusal and other cases of multiple or separate appeals where
to comply with the final and executory judgment of the law or these Rules so require. In such cases, the
the CSC record -on appeal shall be filed and served in like
a. The second part cannot affect the first manner.
b. As such, the enforcement of the CSCs judgment (b) Petition for review.The appeal to the Court of Appeals
by writ of execution issued by the CA, cannot in cases decided by the Regional Trial Court in the
influence in any manner the question of whether exercise of its appellate jurisdiction shall be by petition
or not there was culpable refusal on the part of for review in accordance with Rule 42.
Gozun to comply with said judgment and (c) Appeal by certiorari.In all cases where only questions
whether plaintiff did in fact suffer damages of law are raised or involved, the appeal shall be to the
Supreme Court by petition for review on certiorari in
A JUDGMENT OR FINAL ORDER accordance with Rule 45. (n)
FOR OR AGAINST ONE OR MORE SEVERAL PARTIES OR IN
SEPARATE CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, The Modes of Appeal
AND THRID-PARTY COMPLAINTS
WHILE THE MAIN CASE IS PENDING, PETITION FOR
UNLESS THE COURT ALLOWS AN APPEAL THEREFROM ORDINARY PETITION FOR
REVIEW ON
APPEAL REVIEW
CERTIORARI
Par. (g) refers to the several or separate judgments provided for in Appeal by writ of
Rule 36, and appeals therefrom are not absolutely prohibited but Rule 42 Rule 45
error
depend on the circumstances of the case and the sound discretion of Case decided by RTC
the court. Case is decided by Case decided by the
in the exercise of its
RTC in its original RTC, CA, CTA, and
appellate
As a consequence of the rule on separate trials under Sec. 2, Rule 31 jurisdiction Sandiganbayan
jurisdiction
1. The court may render separate judgments under Sec. 5,
Petition for review
Rule 36 Appealed to the CA Appealed to the SC
with the CA
2. Court may not allow separate appeals to be taken until
File verified
judgment has been rendered on all the claims File a verified
petition for review
petition for review
on certiorari with
Similarly, when the court allows a partial new trial under Sec. 7 and File notice of with CA.
the SC.
8 of Rule 37 appeal or record of Pay docket and
Pay docket and
- It may not allow a separate appeal from the judgment as to appeal with court lawful fees and P500
lawful fees and
the rest of the issues until judgment has been rendered of origin and give a as deposit for costs
P500 for costs.
after new trial copy to adverse with the CA.
Submit proof of
party Furnish RTC and
service of a copy to
Note: If separate appeals are allowed, a record on appeal would be adverse party a copy
the lower court and
required. of such
adverse party
Within 15 days
AN ORDER DISMISSING AN ACTION WITHOUT PREJUDICE Within 15 days from Within 15 days
from notice of
notice of decision to from notice of
judgment for
An order dismissing an action without prejudice is non-appealable be reviewed or from judgment or order
notice of appeal
1. It attains finality after 15 days; Remedy is to refile the case denial of a MFR or of denial of MFR or
and 30 days for
2. An order dismissing a case without prejudice is a final MFNT MFNT
records on appeal
order if no motion for reconsideration or appeal therefrom
is timely filed
3. The dismissal without prejudice of a complaint does not
mean that said dismissal order was any less final

96
MODES OF APPEAL, IN GENERAL Record on Appeal

Sec. 2 provides for the different modes of appeal from judgment or Record on Appeal
final orders of the RTC to the CA or the SC - Done in special proceedings and other cases of multiple or
separate appeals are allowed
Romero v. CA A party is generally allowed one appeal as a matter - Filed and served in the same manner as notice of appeal
of right and second appeal as a matter of discretion
The rationale for requiring the filing of a record on appeal is to
Under BP 129 enable the appellate court to decide the appeal without the original
1. Appeals from judgments or final orders of the RTC are record which should remain with the court a quo pending disposal of
taken to the CA simply by filing a notice of appeal the case.
2. There is no more need to file an appeal bond
3. Record on appeal is only required in: Multiple Appeals are allowed in the following cases:
a. Special proceedings or 1. In special proceedings
b. Actions in which multiple appeals are allowed 2. In actions for recovery of property with accounting
3. In actions for partition of property with accounting
4. In the special civil action of eminent domain
ORDINARY APPEAL 5. Foreclosure of mortgage

In General The rationale behind allowing more than one appeal in the same
- Ordinary appeal is also referred to as Appeal by Writ of case is to enable the rest of the case to proceed in the event that a
Error separate and distinct issue is resolved by the court and held to be
- It is a requirement that the brief filed for that purpose final
must contain an assignment of errors
- This presupposes that: EXAMPLE: An action was filed by the lessee based on a contract of
1. The RTC rendered the judgment or final order in the lease: (1) one to compel lessor to make adjustments on the property;
civil action or special proceeding in the exercise of its and (2) one for specific performance to compel lessor to sell to the
original jurisdiction; and lessee the property based on a right of pre-emption. Defendant
2. That the appeal is taken to the CA on: counterclaimed for rentals on arrearages.
a. Questions of fact or 1. An appeal from a Partial Judgment on the Pleadings on
b. Mixed questions of fact and law lessors counterclaim after denial of the Motion to Dismiss
- The appeal is taken by notice of appeal or by record on first cause of action does not require multiple appeals
appeal 2. The two issues do not arise from the 2 or more causes of
- Governed by Rule 41 action but from the same cause of action
3. When issues arise from the same cause of action, Splitting
Two modes by which cases decided by the RTC in their original of Appeals is not allowed
jurisdiction may be reviewed:
1. Ordinary appeal either to the CA or SC; or
2. An appeal on certiorari to the SC under Rule 45 PETITION FOR REVIEW

Note that each mode have different procedural In General


requirements - This appeal is observed where the questioned judgment or
final order was rendered by the RTC in the exercise of its
Notice of Appeal appellate jurisdiction over a judgment or final order in a
civil action or special proceeding originally commenced in
Notice of Appeal and decided by a lower court
- Filed with the court which rendered the judgment or final - This is taken by a petition for review filed with the CA on:
order appealed from a. Questions of fact
- Serving a copy thereof upon the adverse party b. Questions of law, or
c. Questions of fact and law
Need to Serve Adverse Party with Copy of Notice of Appeal - Governed by Rule 42
1. It has been held in Perez v. CA that a litigants failure to
furnish his opponent with a copy of his appeal does not As provided for in the Judiciary Act
suffice to warrant dismissal of that appeal - Petition for review is the appropriate remedy for appeal
a. All that is needed is for the court to order litigant to on cases decided by the RTC in the exercise of its appellate
furnish the other party with a copy of his appeal jurisdiction
2. However, Justice Francisco is of a different view and - Petition for review of the RTC decision must be filed
underscored the importance of the notice of appeal within the 15-day period to appeal
a. The adverse party may only be apprised initially of - The CA will only give due course to the petition only when
the pendency of an appeal by the notice of appeal the petition shows prima facie that the lower court has
b. To deprive him of such is tantamount to depriving committed an error of fact or law that will warrant
him of his right to be informed reversal or modification of the decision or formal order
c. Service of the notice of appeal upon him may not be sought to be reviewed (Limpin Investment v. Sundiam)
dispensed with on the basis of the appellants whims
and caprices (Casolita Sr. v. CA) Petition for Review, a Mode of Appeal, Not a Matter of Right
- The appeal is not a matter of right in this case

97
- Its acceptance is only discretionary on the CA, which may corpus cases shall be taken within forty-eight (48) hours from
give it due course only when the petition shows prima notice of the judgment or final order appealed from.
facie that the lower court has committed an error The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of time
NOTE: The remedy against the judgment of the RTC in the exercise to file a motion for new trial or reconsideration shall be allowed.
of its appellate jurisdiction is a petition for review, and not (n)
annulment of judgment
- Annulment of judgment can only be resorted to where Breakdown of Provision
ordinary and other appropriate remedies, including A. The appeal shall be taken:
appeal, are no longer available thru no fault of petitioner 1. Within 15 days from notice of judgment or final order
appealed from
2. Where record on appeal is required, appellant shall file
APPEAL BY CERTIORARI a notice of appeal and a record on appeal within 30
days from notice of judgment
In General 3. An appeal in habeas corpus cases shall be taken within
- This is taken to the SC only on questions of law from a 48 hours from notice of judgment or final order
judgment or final order rendered in a civil action or special appealed from
proceeding by the RTC in the exercise of its original B. Period of appeal shall be interrupted by a timely motion for
jurisdiction new trial or reconsideration
- Appeal is taken by filing a petition for review on certiorari 1. No motion for extension of time to file a motion for new
with the SC trial or reconsideration shall be allowed
- Governed by Rule 45
The appeal shall be taken within:
Whether appeal involves questions of law or fact is to be determined 1. 15 days from notice of judgment or final order appealed
by the appellate court, not the RTC from
- E. Razon, Inc. v. Judge Moya Rule 41 does not authorize 2. 30 days from notice of judgment or final order where a
the Trial Court to disallow an appeal on the ground that record on appeal is required
there is no question of fact, but only a question of law 3. 48 hours from notice of judgment or final order appealed
- PNB v. Romillo, Jr., Hontiveros v. RTC Iloilo Respondent from in habeas corpus cases
Judge erred in dismissing said appeal on his misconception
that the same involves only a question of law and based on As a rule, it is the appellate court which will determine whether the
this reasoning, disallowed petitioners appeal because it appeal is pro forma, frivolous, or dilatory and thereafter dismiss the
was not made to the SC appeal, as the trial court has the ministerial duty to elevate the
What Judge should have done was to sustain the records if the appeal is duly perfected.
approval of the notice of appeal and leave it to the CA - However, if the trial court dismissed the appeal because it
to certify the case to the proper tribunal if warranted was clearly demonstrated to be dilatory and frivolous,
such order will not be disturbed by the appellate court (De
Notes: la Cruz, et al. v. Blanco, et al.)
1. Where appeal is directed to the SC by one party and Mandamus will not lie to compel court to give due
another to the CA, the case should be forwarded to the CA. course to the appeal under said circumstances
2. Filing of notice of appeal is an abandonment of the motion (Manila Railroad Co. v. Ballesteros)
for reconsideration (Puertollano v. IAC)

RECKONING POINT AND REGLEMENTARY PERIODS


EFFECT OF WRONG MODE OF APPEAL
Period for filing the appeal should be counted from the date when
For further discussion on this point, see Sec. 3, Rule 50 the partys counsel received a copy of the judgment or final order
- Because that is the effective service of the decision, not the
Jurisprudence service upon the party himself
1. Where the mode of appeal is a petition for review, the - When a party is represented by a counsel, service of
filing of a notice of appeal does not toll the running of the process must be made on counsel, not on party (Fajardo v.
period to appeal (Tang Hang v. Paredes) CA)
2. It has also been held that as long as the formal steps to
perfect an appeal have been taken within the prescribed Computation of Appeal Periods
period, courts must give due course to the appeal without - Apply pretermission of holidays
prejudice to requiring the appellants to file the proper - It is to the effect that:
petition, as the case may be (Sinuhin v. IAC) 1. The first day shall be excluded
3. An erroneous appeal may be treated as a special civil 2. But the last day of period so computed is to be
action for certiorari in the interest of justice (Apodaca v. included
NLRC) a. UNLESS it is a Saturday, a Sunday, or legal
holiday in which event the time shall run until
the end of the next day which is neither a Sunday
SECTION 3 - Period of ordinary appeal, appeal in habeas corpus nor Holiday
cases.The appeal shall be taken within fifteen (15) days from - Note that the commencement of the period should not be
notice of the judgment or final order appealed from. Where a reckoned from the latest day any of the parties received a
record on appeal is required, the appellant shall file a notice of copy of the decision
appeal and a record on appeal within thirty (30) days from notice It is from the respective dates each of the parties
of the judgment or final order. However, an appeal in habeas received a copy

98
Each party has a different period within which to MOTIONS FOR NEW TRIAL AND RECONSIDERATION
appeal
a. Unless all of them received their copies on the Filing of Motion for New Trial or Reconsideration
same date and none filed a motion for - Now, the fresh period rule embodied in Neypes case shall
reconsideration be applied
- Also, it should be counted from the receipt of the Note that the fresh period of 15 days becomes
DULICATE ORIGINAL from the court and not from a significant only when a party opts to file a motion for
receipt of mere photocopy thereof (Villareal v. CA) new trial or reconsideration
- With the Neypes Doctrine, the rule that the filing of a
Principle of Estoppel to Question Timeliness of Appeal Applied motion for new trial or reconsideration interrupts the
- Tijam, et al. v. Sibonghanoy, et al. it was held that a period to appeal is abandoned
party, after voluntarily submitting a cause, is estopped - Note though that the rule in Sec. 9, Rule 37 is not
from attacking the jurisdiction of the court simply because abandoned
it thereafter obtained an adverse decision on the merits - A motion for new trial or reconsideration which is pro
Where the jurisdictional issue involved in the instant forma, or which is without requisite proof of service and
was raised only for the first time in the position for notice of hearing, does not interrupt the reglementary
review on certiorari before the SC; and the lack or period of appeal
absence of appellate jurisdiction was never
questioned by petitioners either in their Comment Second Motion for Reconsideration Not Deducted
submitted or in their Motion to Dismiss Appeal based - Time during which a 2nd motion for reconsideration is
solely on the lack of verification pending is not deducted from the 15-day period to appeal
- If period of appeal should lapse during pendency of the 2nd
Jurisprudence: motion for reconsideration, judgment or order becomes
1. Where trial court dismissed the complaint, then set aside final and executory
such dismissal order, but on motion for reconsideration by Appeal is lost
defendant it again ordered dismissal, period to appeal is Such situation cannot be remedied by substituting the
reckoned from receipt of second order of dismissal (Lucas, special civil action of certiorari for the lost appeal
et al. v. Mariano et al.)
2. Where trial court set aside an order dismissing the Note: A Motion for Clarificatory Judgment not being in the character
complaint and granted a new trial but thereafter entered of a motion for reconsideration does not toll the reglementary
another order of dismissal, period for perfecting appeal period. (Sps. Jimenez v. Patricia Inc.)
runs from the date of the second order of dismissal (Vda.
De Haberer v. Martinez) Policy of NO Extension to File Motion for Reconsideration
3. Where motion to set aside the judgment is filed on the last - GEN. RULE: Motions for extension to file a motion for
day of the period to appeal, that day should be excluded. reconsideration shall not be permitted
Hence, when the order denying the motion is received, - EXCEPTION: Such a motion may be filed only in cases
appellant still has one day to perfect his appeal. This one- pending with the SC (Heirs Cristobal v. CA)
day period should be computed in accordance with Rule The SC as a court of last resort may, in its discretion,
28 by excluding the day of receipt and including the next either grant or deny the extension requested
day (Mara, Inc. v. CA et al.) The Habaluyas Doctrine applies even if the motion is
4. It is not proper for the trial court to find that an appeal is filed before the expiration of the period sought to be
frivolous and consequently to disapprove it since the extended because the 15 days period for filing a
disallowance of appeal by said court constitutes a motion for new trial or reconsideration is non-
deprivation of the right to appeal. The authority to extendible
disapprove an appeal rightfully pertains to the appellate
court (Heirs Sabenal v. Hon. Gorospe) Prohibition Against Second Motion for Reconsideration Only Against
Final Judgments or Orders
- The prohibition against a 2nd MFR is only against final
EFFECT OF FAILURE TO APPEAL ON TIME judgments
- Dizon v. CA There is no such rule as regards
The right to appeal is lost interlocutory orders
- Failure to appeal renders the questioned decision final and
executory that deprives the appellate jurisdiction to alter
the final judgment much less to entertain the appeal EXTENSION OF PERIOD TO APPEAL
- It now becomes ministerial for the court to order
execution of judgment Period to appeal may be extended
- But such extension is addressed to the sound discretion of
The legality of the allowance of the appeal may be raised at any stage the court (Socco v. Garcia)
of the proceedings in the appellate court - The mere filing and pendency of motion for extension to
- Court is not precluded from dismissing the petition on the perfect appeal does not suspend the running of the
ground that it was filed late inasmuch as the recognition of reglementary period (Bello et al., v. Fernandez)
the merit of the petition does not carry with it any
assumption or conclusion that it was timely filed Motion does not suspend running of period for perfecting appeal
- Where no timely appeal was taken, judgment becomes - Appellant has the duty to ascertain the status of his motion
final, and legality of allowance of appeal may be raised at - If no action is taken thereon or it is denied after the lapse
any stage of the proceedings in the appellate court of the period, right to appeal is lost

99
Motion to extend period for filing the record on appeal compelling reasons such as serving the ends of justice and
- Must be filed within the 30-day reglementary period for preventing a miscarriage thereof must be shown
perfecting the appeal - Concomitant to a liberal interpretation should be an effort
- It should be heard and resolved promptly and parties on the part of the party invoking liberality to adequately
should be immediately notified of the order so that they explain his failure to abide by the Rules
may avail of proper remedies - Anyone seeking exemption has the burden of proving that
exceptionally meritorious instances exist which warrant
Effects of Court Action such departure
1. If the extension is granted but court fails to state when the - Justifiable reasons, such as fraud, accident, mistake, or
extension should commence to run: excusable negligence, or similar supervening casualty,
It should be joined to the original period or that fixed without fault of appellant
by law
And must be computed from date following Power to Suspend Rules
expiration thereof - The SC has the power to suspend its own rules, or to
2. If order granting extension is issued and notice thereof except a particular case from its operation, whenever the
served after the expiration of the period fixed by law purposes of justice require
Extension must be computed from the date of notice - Ginete v. CA provided a range of reasons which may
of the order granting it (Alejandro v. Endencia) provide justifications for a court to resist a strict
3. When appellant asks for extension and fixes the extension adherence to procedure:
period in his motion 1. Matters of life, liberty, honor or property
Motion deemed denied if no action is taken thereon 2. Counsels negligence without any participatory
and period lapses negligence on the part of the client
3. Existence of special or compelling circumstances
Jurisprudence 4. Merits of the case
1. The approval of the trial court of the record on appeal 5. Cause not entirely attributable to the fault or
even if the period for the appeal has expired, is negligence of the party favored by the suspension of
tantamount to a valid order granting the extension prayed the rules
for by appellant if any such motion has been filed 6. Lack of any showing that the review sought is merely
(Berkencotter v. CA, et al.) frivolous and dilatory
2. Conversely, the dismissal of the appeal by trial court 7. The other party will be unjustly prejudiced thereby
constitutes a denial of the extension prayed for, in which - Note that the power to suspend rules is only lodged in the
case the only question that can arise is whether or not the Supreme Court since it has the rule-making power
trial court had gravely abused its discretion in denying In the absence of fraud, accident, mistake, or
such extension (PVTA v. De los Angeles) excusable negligence, no error or grave abuse of
discretion may be attributed to lower courts in
disallowing appeals that were not perfected in the
STRICT APPLICATION OF THE RULES manner and within the time prescribed

Period of Time to Appeal is MANDATORY and JURISDICTIONAL Jurisprudence:


- The rules, particularly the requirement for perfecting an 1. Even if appeal was filed out of time, court still has
appeal within the reglementary period specified in the law, jurisdiction to admit and give due course to it, provided
must be strictly followed as they are considered there are justifiable reasons therefor (Reyes v. CA, et al.)
indispensable against needless delays and for orderly
discharge of judicial business
- These requirements are mandatory and jurisdictional SECTION 4 - Appellate court docket and other lawful fees.
Failure to perfect the appeal renders the judgment Within the period for taking an appeal, the appellant shall pay to
final and executory the clerk of the court which rendered the judgment or final order
It is not just a mere technicality appealed from, the full amount of the appellate court docket and
other lawful fees. Proof of payment of said fees shall be
Where the decision is satisfactorily supported by the records, strict transmitted to the appellate court together with the original
application of the rules is applied. Any delay is fatal. (Narag v. NLRC) record or the record on appeal. (n)

Breakdown of Provision
LIBERAL INTERPRETATION A. Within the period for taking an appeal:
1. Appellant shall pay to the clerk of the court which
Despite its pronouncements that the period and manner of taking an rendered the judgment or final order appealed from
appeal is mandatory and jurisdictional, the Court has permitted a. The full amount of the appellate court docket and
appeals even if not perfected on time, when to do so would serve the other lawful fees
demands of justice (Castro v. CA) 2. Proof of payment of said fees
a. Shall be transmitted to the appellate court
The court has on several occasions relaxed this strict requirement b. Together with the original record or record on
where a stringent application of the rules would have denied it, but appeal
only when to do so would serve the demands of substantial justice
and in the exercise of equity jurisdiction (Toledo v. IAC) Payment of Docket Fees is Mandatory
- Payment of docket fees in FULL is mandatory and is a
There must be STRONG COMPELLING REASONS condition sine qua non to perfection of appeal
- To seek exception for its failure to comply strictly with the - It is both mandatory and jurisdictional
statutory requirements for perfecting an appeal, strong

100
Effect of Non-Payment motions and all interlocutory orders as are related to the
- Without such payment, appeal is not perfected appealed judgment or final order for the proper understanding of
- Appellate court does not acquire jurisdiction over the the issue involved, together with such data as will show that the
subject matter of the action and the decision becomes final appeal was perfected on time. If an issue of fact is to be raised on
and executory appeal, the record on appeal shall include by reference all the
- Note Sec. 13, Rule 41: Prior to the transmittal of the evidence, testimonial and documentary, taken upon the issue
original record or the record on appeal to the appellate involved. The reference shall specify the documentary evidence
court, the trial court may motu proprio, or on motion, by the exhibit numbers or letters by which it was identified when
dismiss the appeal for non-payment of docket fee and admitted or offered at the hearing, and the testimonial evidence
other lawful fees on time by the names of the corresponding witnesses. If the whole
- The provision uses the word SHALL testimonial and documentary evidence in the case is to be
included, a statement to that effect will be sufficient without
Liberal Application mentioning the names of the witnesses or the numbers or letters
- It has however been held that there are instances when of exhibits. Every record on appeal exceeding twenty (20) pages
the court applied the rule with liberality must contain a subject index. (6a)
- The court pointed that on several occasions it has
pronounced that failure to pay the appellate docket fee Breakdown of Provision
DOES NOT automatically result in dismissal of the appeal A. Contents:
Dismissal being discretionary on the part of the a. Full names of all the parties to the proceedings shall be
appellate court stated in the caption of the record on appeal
Failure to pay on time confers only a discretionary b. It shall include the judgment or final order from which
power and not mandatory power to dismiss the appeal is taken,
Such discretionary power should be used in the c. In chronological order, copies of only such pleadings,
exercise of the courts sound judgment in accordance petitions, motions, and all interlocutory orders as are
with the tenets of justice and fair play with great deal related to the appealed judgment or final order
of circumspection, considering all attendant a. For the proper understanding of the issue involved
circumstances and must be exercised wisely and d. Together with such data as will show that the appeal
prudently, never capriciously, with a view to was perfected on time
substantial justice (Consigrado v. Consigrado) B. If an issue of fact is to be raised on appeal:
a. Record on appeal shall include by reference all the
evidence, testimonial and documentary, taken upon the
SECTION 5 - Notice of appeal.The notice of appeal shall indicate issue involved
the parties to the appeal, specify the judgment or final order or b. Reference shall specify the documentary evidence by:
part thereof appealed from, specify the court to which the appeal (1) Exhibit numbers or letters by which it was
is being taken, and state the material dates showing the identified when admitted or offered at hearing
timeliness of the appeal. (4a) (2) And the testimonial evidence by the names of the
corresponding witnesses
Notice of Appeal must specify the following matters: C. If the whole testimonial and documentary evidence in the
1. Parties to the appeal case is to be included
2. Judgment or final order or part thereof appealed from 1. A statement to that effect will be sufficient without
3. The court to which the appeal is being taken; and mentioning the names of the witnesses or numbers or
4. The material dates showing the timeliness of the appeal letters of exhibits
D. Every record on appeal exceeding 20 pages must contain a
Even if no notice of appeal was filed, such defect may be disregarded subject index
if there was a record on appeal duly filed, as the same is equivalent
to a notice of appeal (Calo, et al. v. CFI Agusan) Note: Sec. 6, Rule 41 refers to the record on appeal filed with the trial
court
The failure to serve a copy of the notice of appeal to the adverse - Not the printed record on appeal filed in the appellate
party who was, however, served with a copy of the record on appeal court
wherein such notice is embodied, does not impair the right to appeal - At any rate, the appellate court is in a position to
(Dir. Of Lands, et al. v. Reyes) determine the date, by examining the original record on
appeal thereto forwarded and, hence, forming part of its
When will a second notice of appeal be necessary? own record
- In Pacific Life Assurance Corp v. Sison, a second notice of
appeal was not necessary from the amended decision The following needs to be included in the record on appeal:
which increased the award of damages, to more than 1. The order or judgment from which the appeal is taken
double 2. Copies of such pleadings, petitions, and all interlocutory
- In Allied Free Workers Union v. Estipona the errata orders as are related to the appealed order or judgment
and omissions corrected by the Judge in the amended and necessary for the proper understanding of the issue
decision was not substantial in nature, hence no second
notice of appeal was necessary Thus:
- A memorandum need not be included
- Documents not presented at trial cannot be included
SECTION 6 - Record on appeal; form and contents thereof - Where order appealed from is not included in the record
The full names of all the parties to the proceedings shall be stated on appeal, appeal should not be entertained
in the caption of the record on appeal and it shall include the
judgment or final order from which the appeal is taken and, in
chronological order, copies of only such pleadings, petitions,

101
Material Data Rule 2. The same is true where the record on appeal consisting of
- The record on appeal should contain data as will show that more than 20 pages does not have the requisite subject
the appeal was perfected on time index and does not contain the full names of the parties in
- Failure of record on appeal to show on its face that the the caption
appeal was perfected within period fixed by law is a As these are purely matters of form correctible by
ground for dismissal (Sec. 1(a), Rule 50) amendment which the trial court may order to be
This is mandatory and jurisdictional done (Abuso v. Acosta)
If not complied with, appellate court acquires no
jurisdiction and appeal must be dismissed (Araneta
v. Madrigal & Co.) SECTION 7 - Approval of record on appeal Upon the filing of the
- However, the application of this rule has been relaxed by record on appeal for approval and if no objection is filed by the
the SC in later cases appellee within five (5) days from receipt of a copy thereof, the
- As such, liberal application was carried in J. Gonzales trial court may approve it as presented or upon its own motion or
Orenze v. CA: at the instance of the appellee, may direct its amendment by the
a. There being indications in the record on appeal inclusion of any omitted matters which are deemed essential to
(which was approved, without objection, by the trial the determination of the issue of law or fact involved in the
court on finding that the same is in order) that the appeal. If the trial court orders the amendment of the record, the
appeal was perfected on time appellant, within the time limited in the order, or such extension
b. SC held that there was substantial compliance thereof as may be granted, or if no time is fixed by the order
c. The appellate court should properly rely on the trial within ten (10) days from receipt thereof, shall redraft the record
courts order of approval and determination that the by including therein, in their proper chronological sequence, such
perfection of the appeal was in order where additional matters as the court may have directed him to
correctness and veracity of such determination by incorporate, and shall thereupon submit the redrafted record for
trial court are not impugned or disputed by adverse approval, upon notice to the appellee, in like manner as the
party original draft. (7a)
- Material data rule need not be observed if the trial court
issued an order to the effect that the appeal was Breakdown of Provision
seasonably perfected (Pimental, et al. v. CA, et al.) A. Upon filing of record on appeal for approval
- Especially when timeliness of perfection has not been 1. And if no objection is filed by appellee within 5 days
impugned by appellee who filed no opposition to the from receipt of a copy thereof
approval by the trial court of the record on appeal (Saura B. Trial court may:
Import & Export Co., Inc. v. CA, et al.) 1. Approve it as presented; or
- Trial courts approval of the record on appeal serves to 2. Direct its amendment by the inclusion of any omitted
cure whatever defect or omission may have been matters which are deemed essential to the
committed therein (Compagne des Messageries v. CA) determination of the issue of law or fact involved in the
appeal
The date when the original typewritten record on appeal was filed in a. Upon its own motion, or
the trial court appears on the date of the receipt as stamped b. At the instance of the appellee
- Thus, filing of original typewritten record on appeal in the C. If trial court orders amendment of record:
lower court, the date of filing thereof is not required to be 1. Appellant shall redraft the record
stated therein a. Within the time limited in the order
And, it will not appear in the printed record on appeal b. Or such extension as may be granted
filed in the appellate court c. If no time fixed, within 10 days from receipt
- The only exception when the date of filing in the trial court 2. He shall then submit the redrafted record for approval
of the original record on appeal is required to be stated is a. With notice to appellee
when an amended record on appeal is subsequently b. Same manner as in original draft
permitted to be filed
For then, the date of the filing of the original record SECTION 8 - Joint record on appeal.Where both parties are
on appeal within reglementary period will show the appellants, they may file a joint record on appeal within the time
seasonableness of the appeal fixed by section 3 of this Rule, or that fixed by the court. (8a)
- Valera v. CA
Breakdown of Provision
It is the trial courts duty to determine whether or not appeal has A. Where both parties are appellants, they may file a joint
been actually perfected on time and to allow amendment of the record on appeal
record on appeal in order to include therein any relevant omitted 1. Within:
data (Design Masters, Inc. v. CA) a. Same time fixed in Sec. 3 or
- If printed record on appeal does not show date of filing b. Time fixed by court
which is stamped on the original record on appeal,
appellate court may ascertain such by examining the Under BP 129, Sec. 39, the Record on Appeal had been dispensed
original record on appeal with except in special proceeding or multiple appeals
It will then determine whether or not said record on - Note also that a notice of appeal does not require court
appeal meets the objective of Sec. 6, and which may approval unlike a record on appeal
be deemed to have been substantially complied with - The court may recall approval of the order approving a
record on appeal prior to transmittal of record (Echaus v.
Jurisprudence: CA)
1. Failure of counsel to sign record on appeal is not a ground
for dismissal. The same could merely be required to be
signed by him (Toribio, et al. v. Montejo, et al.)

102
A record on appeal does not to be set for hearing in the trial court by In the meantime, trial court still retains
the appellant jurisdiction over the case
- It is deemed submitted for approval upon filing However, where all parties perfected appeals by
- Rule merely requires adverse party to file any objection filing notices in due time and period to file for
thereto within 5 days such has lapsed, the trial court loses jurisdiction
- Non-appearance of counsel for appellant at hearing for over the case as of the last notice of appeal or
approval of record on appeal does not warrant dismissal of expiration of the period to do so
appeal (Heirs of Olango v. CFI-Misamis Oriental, et al.)
2. In appeals by record on appeal
Notes: a. Court loses jurisdiction only over the subject matter
- Court has jurisdiction to extend the period for filing a thereof upon approval of the records on appeal filed
record on appeal (Moya v. Barton) in due time and the expiration of the time to appeal of
- Amended record on appeal is deemed filed on date of the other parties
presentation of original record on appeal (De Mesa v. CA) Note that the effect is limited to the subject matter
- The mere filing of a record on appeal which does not state only
that the corresponding notice of appeal has been Jurisdiction over the case is still with the trial
seasonably filed is ineffectual to perfect an appeal (Alto court
Sales Corp. v. IAC) Where all parties have either perfected their appeals
or period has expired for those who did not do so,
trial court loses jurisdiction over the subject matter
SECTION 9 - Perfection of appeal; effect thereofA partys appeal upon approval of their records on appeal and
by notice of appeal is deemed perfected as to him upon the filing expiration of period as to others
of the notice of appeal in due time.
A partys appeal by record on appeal is deemed perfected Residual Power/Jurisdiction of the court after losing jurisdiction but
as to him with respect to the subject matter thereof upon the prior to the transmittal of the original record on appeal:
approval of the record on appeal filed in due time. 1. Order execution pending appeal under Rule 39, Sec. 2
In appeals by notice of appeal, the court loses jurisdiction (motion for execution was filed before expiration of the
over the case upon the perfection of the appeals filed in due time period to appeal)
and the expiration of the time to appeal of the other parties. Note that under Sec. 2, Rule 39, trial court may issue
In appeals by record on appeal, the court loses jurisdiction execution pending appeal only while court has
only over the subject matter thereof upon the approval of the jurisdiction over the case and prior to the transmittal
records on appeal filed in due time and the expiration of the time of the records at time of filing of motion
to appeal of the other parties. Note also that this principle is different if appeal is by
In either case, prior to the transmittal of the original petition for review in which case appeal is deemed
record or the record on appeal, the court may issue orders for the perfected only when petition is timely filed and
protection and preservation of the rights of the parties which do docket fee is paid
not involve any matter litigated by the appeal, approve Prior thereto, the court may still grant execution
compromises, permit appeals of indigent litigants, order pending appeal, even if period to appeal by other
execution pending appeal in accordance with section 2 of Rule 39, party had already expired
and allow withdrawal of the appeal. (9a) 2. To issue orders for preservation of the rights of the parties
which do not involve matters litigated by appeal
Appeal is Deemed Perfected: 3. To approve compromise prior to the transmittal of the
1. By notice of appeal: As to him, upon the filing of the notice record
of appeal in due time; and 4. Permit appeal by an indigent
2. By record on appeal: As to him, with respect to the subject 5. Allow withdrawal of the appeal
matter thereof, upon approval of the record on appeal filed
in due time The concept of residual jurisdiction of the trial court is available
at a stage in which the court is normally deemed to have lost
Effect of a Perfected Appeal: jurisdiction over the case or the subject matter involved in the
1. In appeals by notice of appeal appeal. There is no residual jurisdiction to speak of where no
a. Court loses jurisdiction over the case upon perfection appeal or petition has even been filed (Fernandez v. CA)
of appeal filed in due time and expiration of the time This stage is reached upon perfection of appeal by parties
to appeal of the other parties or upon approval of records on appeal, but prior to transmittal
While he can withdraw his appeal, he cannot do so in of the original records or records on appeal.
order to revive the jurisdiction of the trial court and
enable him to take another course of action calling for Duration of Residual Powers
exercise of jurisdiction (like MFR, or MFNT)
By filing his notice of appeal, insofar as he is ORDINARY APPEAL PETITION FOR REVIEW
concerned he has perfected his appeal; it is now only Until records are transmitted Until the CA gives due course to
with the appellate court where he can pursue any to the appellate court the petition
further remedy
NOTE: effect is loss of jurisdiction over the case Effect of Judgment on Those who Failed to Appeal
Note also that this rule applies individually and to 1. Where decision contains separate and independent
each of the parties since the timeliness of their findings for each party, appeal by one is not an obstacle to
recourse for appellate remedy depends on when they the execution of the others
respectively received a copy of the judgment or final 2. If liability of those who failed to appeal is dependent on
order appellants liability, appeal inures to their benefit

103
a. But an appeal by guarantor does not inure to the evidence and shall prepare and affix to their transcripts an index
benefit of the principal containing the names of the witnesses and the pages wherein
3. Third-party plaintiff who did not appeal but is held liable their testimonies are found, and a. list of the exhibits and the
on appeal cannot claim affirmative relief against third- pages wherein each of them appears to have been offered and
party defendant admitted or rejected by the trial court. The transcripts shall be
transmitted to the clerk of the trial court who shall thereupon
Jurisprudence arrange the same in the order in which the witnesses testified at
1. It has been formerly been held that even if the appeal has the trial, and shall cause the pages to be numbered consecutively.
already been perfected but records have not yet been (12a)
transmitted to the appellate court, the trial court still has
jurisdiction to set aside its order approving the record on TRANSCRIPT
appeal (Cabungcal v. Fernandez) 1. Appeal is perfected
Regalado notes that this may still be applicable 2. Duty of the Clerk upon perfection:
2. Also, the rule is that an interlocutory order remains under a. Direct the stenographers to make transcripts of the
the control of the court and can be modified or rescinded testimonial evidence referred to in record on appeal
before entry of final judgment (Larrobis v. Wislezemers) b. 5 copies of the transcripts will be attached to the
Regalado also believes that this still applies record of the case
3. Duty of the Stenographers upon order of Clerk
a. Transcribe such testimonial evidence
SECTION 10 - Duty of clerk of court of the lower court upon b. Prepare and affix to their transcripts an index
perfection of appeal.Within thirty (30) days after perfection of containing:
all the appeals in accordance with the preceding section, it shall (1) Names of the witnesses,
be the duty of the clerk of court of the lower court: (2) Pages where their testimonies are found
(a) To verify the correctness of the original record or the (3) List of exhibits and pages where they appear to
record on appeal, as the case may be, and to make a have been offered and admitted or rejected
certification of its correctness; 4. Then the transcripts shall be transmitted to the RTC Clerk
(b) To verify the completeness of the records that will be 5. Duty of the Clerk at this point:
transmitted to the appellate court; a. Arrange the same in order in which witnesses
(c) If found to be incomplete, to take such measures as may testified at trial
be required to complete the records, availing of the b. Cause proper pagination
authority that he or the court may exercise for this
purpose; and
(d) To transmit the records to the appellate court. SECTION 12 - Transmittal.The clerk of the trial court shall
If the efforts to complete the records fail, he shall indicate transmit to the appellate court the original record or the
in his letter of transmittal the exhibits or transcripts not included approved record on appeal within thirty (30) days from the
in the records being transmitted to the appellate court, the perfection of the appeal, together with the proof of payment of the
reasons for their non-transmittal, and the steps taken or that appellate court docket and other lawful fees, a certified true copy
could be taken to have them available. of the minutes of the proceedings, the order of approval, the
The clerk of court shall furnish the parties with copies of his certificate of correctness, the original documentary evidence
letter of transmittal of the records to the appellate court. (10a) referred to therein, and the original and three (3) copies of the
transcripts. Copies of the transcripts and certified true copies of
DUTY OF CLERK UPON PERFECTION OF APPEAL the documentary evidence shall remain in the lower court for the
1. Within 30 days after perfection of all appeals, the RTC examination of the parties. (11a)
clerk shall:
a. Verify completeness of original record or record on TRANSMITTAL
appeal 1. RTC Clerk shall transmit to the appellate court the original
(1) Make certification as to its correctness record or the approved record on appeal
b. Verify completeness of records that will be a. Within 30 days from perfection of appeal
transmitted to appellate court 2. The following shall accompany the transmittal:
c. If found to be incomplete: a. Proof of payment of CA docket and lawful fees
(1) Take such measures as may be required to b. Certified true copy of minutes of proceedings
complete records c. Order of approval
(2) If efforts to complete records fail: d. Certificate of correctness
(a) Indicate in his letter of transmittal the e. Original documentary evidence referred to therein
exhibits or transcripts not included f. Original transcripts plus 3 copies of such
(b) Reasons for their transmittal 3. Copies of the following shall remain in the lower court for
(c) Steps taken or that could be taken to have examination of the parties:
them available a. Transcripts
d. Transmit the records to appellate court b. Certified true copies of documentary evidence
(1) Furnish the parties with copies of his letter of
transmittal Notes:
- It is now evident that transmittal of the record should be
the sole responsibility of the clerk
SECTION 11 - Transcript.Upon the perfection of the appeal, the - Note also Sec. 10 which makes it the further duty of the
clerk shall immediately direct the stenographers concerned to clerk to furnish the parties with copies of his letter of
attach to the record of the case five (5) copies of the transcripts of transmittal of the records to the appellate court
the testimonial evidence referred to in the record on appeal. The This is to enable the latter to monitor or verify the
stenographers concerned shall transcribe such testimonial clerks compliance of his duty

104
SECTION 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)

WHEN THE TRIAL COURT CAN DISMISS THE APPEAL


1. Prior to transmittal of original record to appellate court, or
2. Prior to transmittal of record on appeal to appellate court

HOW?
1. The Court, motu proprio; or
2. On motion to dismiss appeal by party

GROUNDS:
1. Appeal was taken out of time
2. Non-payment of docket and lawful fees within
reglementary period

NOTE: The dismissal of the appeal in RTC is limited only to


these two grounds
The trial court cannot dismiss appeals on the grounds
mentioned in Rule 50, nor other grounds
Authority to do so rests with the appellate court

Can the trial court dismiss the appeal on the ground that the appeal
is dilatory? NO
- Such ground can only be passed upon by the appellate
court.
- Otherwise, the trial courts can easily forestall review of
their decisions (Dasalla v. Caluag)

The requirement regarding the perfection of the appeal within the


reglementary period is not only mandatory but jurisdictional.
- Approval of notice becomes ministerial duty only when
filed on time
Otherwise, the court has the discretion to refuse or
disallow it in accordance with the Rules
- Failure of a party to perfect an appeal within the period
fixed by law renders final the decision sought to be
appealed
As a result, no court could exercise appellate
jurisdiction to review the decision

Moreover, perfection of an appeal WITHIN period and IN THE


MANNER prescribed by law is essential
- Non-compliance is fatal

Can the motion to dismiss the appeal be filed in the appellate court?
- YES, See Sec. 1(b), Rule 50
- The failure of the appellee to move for dismissal in the trial
court of an appeal perfected out of time does not prevent
him from filing such motion to dismiss in the appellate
court as it involves the appellate jurisdiction of the latter
court (Garganta v. CA, et al.)

Jurisprudence
1. It has been held that where the appellant failed to perfect
his appeal on time due to FAME and his appeal was
dismissed by the trial court, his remedy is a petition for
relief under Rule 38 from such order dismissing his
appeal. (De Luna et al v. Palacio et al.)
Recourse to Rule 38 is still applicable provided its
conditions are present
However, the order denying petition for relief is no
longer appealable; appropriate recourse is Rule 65

END OF RULE 41

105
NOTES ON RULE 41

106
SECTION 2 - Form and contents.The petition shall be filed in
RULE 42 seven (7) legible copies, with the original copy intended for the
PETITION FOR REVIEW court being indicated as such by the petitioner, and shall (a)
state the full names of the parties to the case, without
FROM THE REGIONAL TRIAL COURTS impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the specific material
TO THE COURT OF APPEALS dates showing that it was filed on time; (c) set forth concisely a
statement of the maters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly
Under this mode of appeal, it is NOT a matter of right but is a matter committed by the Regional Trial Court, and the reasons or
of DISCRETION on the part of the CA on whether or not to entertain arguments relied upon for the allowance of the appeal; (d) be
the appeal accompanied by clearly legible duplicate originals or true copies
of the judgments or final orders of both lower courts, certified
SECTION 1 - How appeal taken; time for filing.A party desiring correct by the clerk of court of the Regional Trial Court, the
to appeal from a decision of the Regional Trial Court rendered in requisite number of plain copies thereof and of the pleadings
the exercise of its appellate jurisdiction may file a verified petition and other material portions of the record as would support the
for review with the Court of Appeals, paying at the same time to allegations of the petition.
the clerk of said court the corresponding docket and other lawful The petitioner shall also submit together with the
fees, depositing the amount of P500.00 for costs, and furnishing petition a certification under oath that he has not theretofore
the Regional Trial Court and the adverse party with a copy of the commenced any other action involving the same issues in the
petition. The petition shall be filed and served within fifteen (15) Supreme Court, the Court of Appeals or different divisions
days from notice of the decision sought to be reviewed or of the thereof, or any other tribunal or agency; if there is such other
denial of petitioners motion for new trial or reconsideration filed action or proceeding, he must state the status of the same; and if
in due time after judgment. Upon proper motion and the payment he should thereafter learn that a similar action or proceeding
of the full amount of the docket and other lawful fees and the has been filed or is pending before the Supreme Court, the Court
deposit for costs before the expiration of the reglementary period, of Appeals, or different divisions thereof, or any other tribunal
the Court of Appeals may grant an additional period of fifteen or agency, he undertakes to promptly inform the aforesaid
(15) days only within which to file the petition for review. No courts and other tribunal or agency thereof within five (5) days
further extension shall be granted except for the most compelling therefrom. (n)
reason and in no case to exceed fifteen (15) days. (n)
1. Form of the petition
If a party desires to appeal from a decision of the RTC in its appellate a. Original copy is filed intended for the court
jurisdiction: b. Petition shall also be in 7 legible copies
1. File a VERIFIED petition for review with the CA c. Accompanied by clearly legible duplicate originals or
a. Within 15 days from notice of decision, or true copies of judgments or final orders of both lower
b. Within 15 days from notice of denial of petitioners courts
motion for new trial or reconsideration Certified correct by the RTC clerk
2. Pay the corresponding docket fee and other lawful fees d. Also with pleadings and other material portions of
and depositing P500 for costs record as would support the allegations of the
3. Furnish the RTC and adverse party a copy of the petition petition
2. The petition shall state:
Extension of period: a. Full names of the parties
- The CA may grant an additional 15 days within which to Without impleading the lower courts or judges
file the petition for review provided: thereof
1. There was a motion filed to this effect b. Specific material dates showing timeliness of appeal
2. Payment in full of docket fees and other lawful fees as c. Concise statement of:
well as deposit for costs (1) Matters involved
3. To be done within the reglementary period (2) Issues raised
- After that, no further extension may be granted (3) Specification of errors of fact or law, or both
EXCEPT for the most compelling reason (4) Reasons or arguments relied upon
And in no case to exceed 15 days 3. A certificate of non-forum shopping must also be attached

Remember the proper mode: Notes


1. If decision is rendered by RTC in its original jurisdiction: - Appeal under Rule 42 may be on either questions of fact or
Appeal by Rule 41, ordinary appeal of law or on mixed questions of both
2. If decision is rendered by RTC in its appellate jurisdiction - Lower courts or judges that rendered the judgment or final
Appeal by Rule 42, petition for review order should not be impleaded as parties
Same prohibition in Rule 45
In actions or proceedings originally filed in the MTCs, appealed to These petitions are for purposes of appeal, not
the RTCs, the final judgments or orders of the latter shall be petitions in original actions
appealable by PETITION FOR REVIEW to the CA - Appeals under Rules 42, 43, and 45 and petitions under
- The CA may give due course ONLY when the petition Rule 65 not all supporting papers need be certified
shows prima facie that the RTC has committed error of fact Only questioned judgments or final orders or
or law that will warrant reversal or modification resolutions or a clearly legible duplicate original
- Note also that appeals to the CA from the RTC via Rule 42 Liberal interpretation of rules
and 43 may be made solely on questions of law - Note however that it is MANDATORY that the requirement
of attaching clearly legible duplicate originals or true

107
copies of judgments or final orders of both lower courts is NOTE: The ground for dismissal of an appeal under Sec. 1, Rule 50
well settled are discretionary upon the appellate court
- Rule uses may, not shall
Pleadings and other material portions of the record as would - As such, it is only directory not mandatory
support the allegations of the petition - Sound discretion must be exercised in consonance with
- This contemplates an exercise of discretion on the part of the tenets of justice and fair play, keeping in mind the
the petitioner in selecting the documents deemed relevant circumstances obtaining in each case (Mercury Drug v. De
- However, it is the CA that will ultimately determine if the Leon)
supporting documents are sufficient to make out a prima
facie case Additional Notes:
The documents accompanying the petition must - The CA may dismiss the petition outright or require a
sufficiently support the allegations comment thereon
Otherwise, petitions may be dismissed outright - Depending on the complexity or ambiguity of the issues for
- Note that under Sec. 3, Rule 42, if petitioner fails to comply resolution, it could also require subsequent exchanges like
with the submission of documents which should reply and rejoinder
accompany the petition, it shall be sufficient grounds for
dismissal
- Where petitioner failed to append the pleadings and SECTION 5 - Contents of comment.The comment of the
pertinent documents in her petition to the CA, but rectified respondent shall be filed in seven (7) legible copies, accompanied
her error by filing a motion for reconsideration and by certified true copies of such material portions of the record
appending the pleadings and documents required, the referred to therein together with other supporting papers and
appeal should not have been dismissed by the CA but shall (a) state whether or not he accepts the statement of matters
should have been decided on the merits (Mendoza v. involved in the petition; (b) point out such insufficiencies or
David) inaccuracies as he believes exist in petitioners statement of
matters involved but without repetition; and (c) state the reasons
why the petition should not be given due course. A copy thereof
SECTION 3 - Effect of failure to comply with requirements. shall be served on the petitioner. (n)
The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other Form of Comment
lawful fees, the deposit for costs, proof of service of the petition, 1. Comment filed in 7 legible copies
and the contents of and the documents which should accompany 2. Accompanied by certified true copies of such material
the petition shall be sufficient ground for the dismissal thereof. portions of the record referred to therein
(n) 3. Together with other supporting papers
4. Copy of the comment served on petitioner
Failure to comply with any of the following requirements shall be
sufficient ground for DISMISSAL Contents of Comment: The comment shall:
1. Payment of docket and other lawful fees 1. State whether or not he accepts the statement of matters
2. Deposit for costs involved in the petition
3. Proof of service of petition 2. Point out such insufficiencies or inaccuracies as he
4. Contents of the documents, which should accompany the believes exist in petitioners statement of matters but
petition without repetition
3. Reasons why the petition should not be given due course
Note: In petitions for review under Rules 42, 43, and 45, the
corresponding docket fee is paid in the appellate courts
SECTION 6 - Due course.If upon the filing of the comment or
such other pleadings as the court may allow or require, or after
SECTION 4 - Action on the petition.The Court of Appeals may the expiration of the period for the filing thereof without such
require the respondent to file a comment on the petition, not a comment or pleading having been submitted, the Court of Appeals
motion to dismiss, within ten (10) days from notice, or dismiss finds prima facie that the lower court has committed an error of
the petition if it finds the same to be patently without merit, fact or law that will warrant a reversal or modification of the
prosecuted manifestly for delay, or that the questions raised appealed decision, it may accordingly give due course to the
therein are too unsubstantial to require consideration. (n) petition. (n)

The CA may: Due Course is given only if CA finds prima facie error committed by
1. Require respondent to file a comment on the petition the RTC which warrants reversal or modification of appealed
Not a motion to dismiss decision
Within 10 days from notice; or - Meaning, DISCRETIONARY
2. Dismiss the petition if it finds the same to be:
a. Patently without merit
b. Prosecuted manifestly for delay; or SECTION 7 - Elevation of record.Whenever the Court of Appeals
c. The questions raised therein are too unsubstantial to deems it necessary, it may order the clerk of court of the Regional
require consideration Trial Court to elevate the original record of the case including the
oral and documentary evidence within fifteen (15) days from
Remember: Under this Rule, appeal is discretionary on the CA which notice.(n)
may give its due course only when the petition shows prima facie
that the lower court has committed error Elevation of Record
- Only when the CA deems it necessary

108
- CA may order the RTC Clerk to elevate the original record 2. The parties may be required to submit memoranda within
of the case 15 days from notice
Including the oral and documentary evidence 3. Case shall be deemed submitted for decision upon filing of
Within 15 days from notice last pleading or memoranda

Notes Notes:
- It is merely discretionary on the CA to order elevation of - The CA may, motu proprio or on motion, set the case on
the records certain specified issues therefor for oral argument
This is because until petition is given due course, RTC CA may also require memoranda in lieu of oral
may still issue a warrant of execution pending appeal argument
and in some cases such as ejectment and Summary
Procedure, judgments are immediately executory
- As such, it is only when the CA deems it necessary that the
records be ordered elevated END OF RULE 42

SECTION 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.
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 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, R41)
(b) 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 otherwise. (n)

Appeal is deemed perfected as to petitioner upon:


1. Timely filing of petition and
2. Payment of docket and lawful fees

RTC Jurisdiction
1. It loses jurisdiction over the case upon
a. Perfection of appeals filed in due time; and
b. Expiration of the time to appeal of the other parties
2. RTC may exercise its residual jurisdiction before the CA
gives due course to the petition

GENERAL RULE: Perfected appeal stays the challenged judgment or


final order
- EXCEPTIONS:
1. Unless the CA, law, or Rules, provide otherwise
2. Also in civil cases decided under the Rule on
Summary Procedure
Note that stay of judgment is not applicable here
since these are immediately executory

SECTION 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)

If the petition is given due course:


1. Case may be set for oral argument, or

109
NOTES ON RULE 42

110
As to the Ombudsman
RULE 43 - CA has jurisdiction over orders, directives, and decisions of
APPEALS FROM THE COURT OF TAX the Office of Ombudsman in administrative disciplinary
cases only
APPEALS AND THE QUASI-JUDICIAL - It cannot review orders, directives, decisions in criminal
and non-administrative cases
AGENCIES TO THE COURT OF APPEALS In criminal cases, ruling of Ombudsman shall be
elevated to the SC via Rule 65

SECTION 1 - Scope.This Rule shall apply to appeals from As to the Office of the Prosecutor
judgments or final orders of the Court of Tax Appeals and from - The Office of the Prosecutor is not a quasi-judicial body
awards, judgments, final orders or resolutions of or authorized by and its action approving the filing of an information is not
any quasi-judicial agency in the exercise of its quasi-judicial appealable to the CA under Rule 43 (Bautista v. CA, et al.)
functions. Among these agencies are the Civil Service Commission, - A prosecutor conducting a preliminary investigation
Central Board of Assessment Appeals, Securities and Exchange performs a quasi-judicial function, but his office is not a
Commission, Office of the President, Land Registration Authority, quasi-judicial body
Social Security Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National As to Central Board of Assessment Appeals
Electrification Administration, Energy Regulatory Board, National - Appeals from the Central Board of Assessment Appeals in
Telecommunications Commission, Department of Agrarian the exercise of its appellate jurisdiction is no longer to the
Reform under Republic Act No. 6657, Government Service CA but to the CTA
Insurance System, Employees Compensation Commission, Via an analogous petition for review under the CTA
Agricultural Inventions Board, Insurance Commission, Philippine Rules of Procedure
Atomic Energy Commission, Board of Investments, Construction - Sec. 7(5) of RA 9282 provides that the CTA shall exercise
Industry Arbitration Commission, and voluntary arbitrators exclusive jurisdiction to review by appeal decisions of the
authorized by law. (n) CBAA in the exercise of its appellate jurisdiction over cases
involving the assessment and taxation of real property
SCOPE: Appeals from awards, judgments, final orders or resolution originally decided by the provincial or city board of
of or authorized by any quasi-judicial agency in the exercise of its assessment appeals
quasi-judicial functions
A quasi-judicial agency or body is an organ of government As to the CIAC
other than a court and other than a legislature, which affects the - The right to appeal from judgments, awards, or final
rights of private parties though either adjudication or rule-making orders of the CIAC is granted in EO 1008
A new procedure to enforce this right is provided for
NOTE: A party adversely affected by a decision or ruling of the CTA in Circular No. 1-91
en banc may file with the SC a verified petition for review on Even if the CIAC is not enumerated in the circular
certiorari via Rule 45 (Sec. 12, RA 9282 and AM 07-7-12-SC) - In sum, appeals from the arbital awards of the CIAC may
The CTA is no longer a quasi-judicial agency under RA be brought to the CA, and not to the SC alone
9282, as of April 7, 2004. Grounds for appeal are likewise broadened to include
appeals on questions of facts and appeals involving
These agencies include: mixed questions of fact and law
1. Civil Service Commission
2. Securities and Exchange Commission As to the CSC
3. Office of the President - Appeals from the CSC is by Rule 43 also to the CA
4. Land Registration Authority - The CSC, as an institution, also has standing to appeal
5. Social Security Commission Its primary concern is the effectiveness of the civil
6. Civil Aeronautics Board service system, and has standing to appeal a decision
7. Bureau of Patents Trademarks and Technology Transfer which adversely affects the civil service
8. National Electrification Administration
9. Energy Regulatory Board As to the HLURB
10. National Telecommunications Commission - A direct resort to the SC questioning the HLURB decision is
11. Department of Agrarian Reform under RA 6657 improper and premature
12. GSIS - First, a petition for review should be made to the HLURB
13. Employees Compensation Commission Board of Commissioners
14. Agricultural Inventions Board - The decision of the Board may then be appealed to the
15. Insurance Commission Office of the President
16. Philippine Atomic Energy Commission - From the Office of the President, aggrieved party can now
17. Board of Investment resort to the CA under Rule 43
18. Construction Industry Arbitration Commission, and
19. Voluntary arbitrators authorized by law As to the DAR under RA 6657
This includes: - Entities that are involved in agrarian cases: PARAD
Voluntary arbitrators appointed and accredited (Provincial Agrarian Reform Adjudicator); DARAB (DAR
under the Labor Code, or Adjudication Board); Sec. of DAR
Pursuant to the provisions of RA 876, as they are - DARAB exercises appellate jurisdiction over resolutions,
considered included in the term quasi-judicial orders, decisions, of the RARAD (Regional Agrarian
instrumentalities Reform Adjudication Board) and PARAD
The RARAD and PARAD exercises delegated authority

111
Other Cases covered: PERIOD TO APPEAL: 15 Days from:
- Appeal from Deportation Board is also under Rule 43 1. Notice of award, judgment, final order, or resolution OR
- Appeals from Office of President also via Rule 43 2. Date of publication, if publication is required by law for its
effectivity, OR
Availability of Appeal Forecloses Right to Resort to SPA Certiorari 3. Denial of petitioners MNT or MFR
- Remember that the special civil action for certiorari is a Note: Only one MFR shall be allowed
limited form of review and is a remedy of last recourse
Resorted only where there is no appeal nor plain, EXTENSION OF PERIOD: Additional 15 days only
speedy, and adequate remedy in the ordinary course 1. Extension is granted upon:
of law a. Motion for extension and
- Rule 43 and Certiorari under Rule 65 are two distinct b. Payment of full docket fees
remedies which are mutually exclusive and not alternative BOTH within the reglementary period
or successive 2. No further extension shall be granted
- Admittedly, there are instances where certiorari may be EXCEPT for the most compelling reasons
availed of despite availability of appeal, but these are the In such case, additional extension shall not
exceptions rather than the rule exceed 15 days

Findings of Fact by these Agencies


- If supported by substantial evidence shall be binding on SECTION 5 - How appeal taken..Appeal shall be taken by filing a
the CA verified petition for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy thereof on the
adverse party and on the court or agency a quo. The original copy
SECTION 2 - Cases not covered.This Rule shall not apply to of the petition intended for the Court of Appeals shall be indicated
judgments or final orders issued under the Labor Code of as such by the petitioner.
the Philippines. (n) Upon the filing of the petition, the petitioner shall pay to
the clerk of court of the Court of Appeals the docketing and
RULE 43 NOT APPLICABLE TO LABOR CODE other lawful fees and deposit the sum of P500.00 for costs.
Exemption from payment of docketing and other lawful fees and
The law no longer provides for an appeal from decisions of the LA or the deposit for costs may be granted by the Court of Appeals upon
from the NLRC a verified motion setting forth valid grounds therefor. If the Court
- Mode of review from said decisions is the special civil of Appeals denies the motion, the petitioner shall pay the
action for Certiorari under Rule 65 in the CA docketing and other lawful fees and deposit for costs within
fifteen (15) days from notice of the denial. (n)

SECTION 3 - Where to appeal.An appeal under this Rule may PROCEDURE FOR APPEAL:
be taken to the Court of Appeals within the period and in the 1. File a VERIFIED petition for review with the CA
manner herein provided, whether the appeal involves questions a. File it in 7 legible copies
of fact, of law, or mixed questions of fact and law. (n) b. Attach proof of service of a copy to:
(1) Adverse party. And
WHERE TO APPEAL: To the CA (2) Court or agency a quo
- Under this rule c. Original copy of petition is for CA as indicated
- The appeal may raise: 2. Upon filing, pay the docket and lawful fees as well as a
Questions of fact P500 deposit for costs
Questions of law a. Where? To the CA Clerk
or Mixed questions of fact and law b. Exemption from payment may be granted by the CA:
- Review: Review solely on questions of law may be sought 1. File VERIFIED motion for exemption setting
in the CA in the following cases: forth the valid grounds therefor
1. Rule 43 2. If CA denies motion, the party must pay within
2. Rule 42 appeals from RTC where it decided the case 15 days from notice of denial
in exercise of its appellate jurisdiction
Distinction:

SECTION 4 - Period of appeal.The appeal shall be taken within RTC AS APPELLATE COURT QUASI-JUDICIAL AGENCIES
fifteen (15) days from notice of the award, judgment, final order Rule 42 Rule 43
or resolution, or from the date of its last publication, if publication Decision is immediately
is required by law for its effectivity, or of the denial of petitioners Decision is stayed by an appeal executory
motion for new trial or reconsideration duly filed in accordance Not stayed by appeal
with the governing law of the court or agency a quo. Only one (1) Factual findings are conclusive
Factual findings not conclusive
motion for reconsideration shall be allowed. Upon proper motion to the CA if supported by
to CA
and the payment of the full amount of the docket fee before the substantial evidence
expiration of the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only within which
to file the petition for review. No further extension shall be SECTION 6 - Contents of the petition.The petition for review
granted except for the most compelling reason and in no case to shall (a) state the full names of the parties to the case, without
exceed fifteen (15) days. (n) impleading the court or agencies either as petitioners or
respondents; (b) contain a concise statement of the facts and
issues involved and the grounds relied upon for the review; (c) be
accompanied by a clearly legible duplicate original or a certified

112
true copy of the award, judgment, final order or resolution SECTION 9 - Contents of comment.The comment shall be
appealed from, together with certified true copies of such filed within ten (10) days from notice in seven (7) legible
material portions of the record referred to therein and other copies and accompanied by clearly legible certified true copies of
supporting papers; and (d) contain a sworn certification against such material portions of the record referred to therein together
forum shopping as provided in the last paragraph of section 2, with other supporting papers. The comment shall (a) point out
Rule 42. The petition shall state the specific material dates insufficiencies or inaccuracies in petitioners statement of
showing that it was filed within the period fixed herein. (2a) facts and issues; and (b) state the reasons why the petition should
be denied or dismissed. A copy thereof shall be served on the
CONTENTS OF PETITION FOR REVIEW petitioner, and proof of such service shall be filed with the Court
1. Statement of full names of parties to the case of Appeals. (9a)
Without impleading court or agencies
2. Concise statement of facts and issues involved and MANNER OF FILING OF COMMENT
grounds relied upon for review 1. Filed within 10 days from notice
3. Accompanied by: a. In 7 legible copies
a. Clearly legible duplicate original or a certified true 2. Accompanied by the following documents:
copy of award, judgment, final order, or resolution a. Clearly legible certified true copies of such material
appealed from portions of the record referred to therein
b. Certified true copies of such material portions of b. And such other supporting documents
record referred to in the petition and other 3. Copy of Comment:
supporting papers a. Served on petitioner
See comments under Sec. 2, Rule 42 b. Proof of such service filed with the CA
4. Certificate of non-forum shopping
5. Statement of specific material dates showing timeliness of CONTENTS OF COMMENT: The Comment shall:
appeal 1. Point insufficiencies or inaccuracies in petitioners
statement of facts and issues
2. State reasons why petition should be denied or dismissed
SECTION 7 - Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other SECTION 10 - Due course.If upon the filing of the comment or
lawful fees, the deposit for costs, proof of service of the such other pleadings or documents as may be required or allowed
petition, and the contents of and the documents which should by the Court of Appeals or upon the expiration of the period for
accompany the petition shall be sufficient ground for the the filing thereof, and on the basis of the petition or the records
dismissal thereof. (n) the Court of Appeals finds prima facie that the court or agency
concerned has committed errors of fact or law that would
EFFECT OF FAILURE TO COMPLY WITH THE FOLLOWING: warrant reversal or modification of the award, judgment, final
DISMISSAL! order or resolution sought to be reviewed, it may give due course
1. Payment of docket and lawful fees to the petition; otherwise, it shall dismiss the same. The findings
2. Deposit for costs of fact of the court or agency concerned, when supported by
3. Proof of service of petition substantial evidence, shall be binding on the Court of Appeals. (n)
4. Contents of petition
5. Documents which should accompany the petition DUE COURSE:
1. CA may give due course if CA finds prima facie that court
Notes: or agency has committed errors of fact or law that would
- Substantial compliance of the requirements does not warrant reversal or modification
warrant dismissal a. Upon filing of comment or such other pleadings or
- Strict and rigid application must always be eschewed if it documents as may be required or allowed by the CA
would subvert their primary objective of enhancing fair b. Or upon expiration of such period of filing
trials and expediting justice 2. The CA may also dismiss the same

Notes:
SECTION 8 - Action on the petition.The Court of Appeals may - It is only after filing of comment or such other pleadings or
require the respondent to file a comment on the petition, not a documents as may be required or allowed by the CA or
motion to dismiss, within ten (10) days from notice, or dismiss upon expiration of period for filing thereof may the CA
the petition if it finds the same to be patently without merit, proceed to determine WON to give due course
prosecuted manifestly for delay, or that the questions raised UNLESS the CA dismisses the same outright pursuant
therein are too unsubstantial to require consideration. (6a) to Sec. 8
- Findings of fact by the court or agency concerned, when
NOTE: Sec. 8, 9, and 10 are similar to Sec. 4, 5, 6 of Rule 42 supported by substantial evidence, shall be binding on the
CA
THE CA MAY: Follow the substantial evidence rules
1. Require respondent to file Comment
Within 10 days from notice
2. Dismiss the petition SECTION 11 - Transmittal of record.Within fifteen (15) days
If CA finds the same to be: from notice that the petition has been given due course, the Court
a. Patently without merit of Appeals may require the court or agency concerned to transmit
b. Prosecuted manifestly for delay, or the original or a legible certified true copy of the entire record of
c. Questions raised are too unsubstantial to require the proceeding under review. The record to be transmitted may
consideration be abridged by agreement of all parties to the proceeding. The

113
Court of Appeals may require or permit subsequent correction of
or addition to the record. (8a)

PROCEDURE FOR TRANSMITTAL OF RECORD


1. Within 15 days from notice that petition has been given
due course
2. CA may require court or agency concerned to transmit
original or legible certified true copy of entire record of
proceeding under review
This may be abridged by the agreement of all parties
to the proceedings
3. CA may also require or permit subsequent correction or
addition to record

SECTION 12 - Effect of appealThe 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. (10a)

GENERAL RULE: Appeal shall not stay the award, judgment, final
order or resolution sought to be reviewed

EXCEPTION: When the CA shall direct otherwise upon such terms as


it may deem just

SECTION 13 - 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 of Appeals.
(n)

Note: Similar to Sec. 9, Rule 42

PROCEDURE UP TO SUBMISSION FOR DECISION


1. If petition is given due course
2. CA may:
a. Set the case for oral argument, or
b. Require parties to submit memoranda within 15 days
from notice
3. Upon filing of last pleading or memorandum required, case
is deemed submitted for decision

END OF RULE 43

114
NOTES ON RULE 43

115
the parties thereof. (4a, R46)
PROCEDURE IN THE Within ten (10) days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file with the clerk
COURT OF APPEALS of court seven (7) clearly legible copies of the approved record on
appeal, together with the proof of service of two (2) copies
thereof upon the appellee.
Any unauthorized alteration, omission or addition in the
approved record on appeal shall be a ground for dismissal of the
appeal. (n)
RULE 44
Docketing of the case is made upon:
ORDINARY APPEALED CASES 1. Receiving original record or record on appeal
a. Together with accompanying documents and exhibits
SECTION 1 - Title of cases.In all cases appealed to the Court of 2. Proof of payment of docket and lawful fees
Appeals under Rule 41, the title of the case shall remain as it was
in the court of origin, but the party appealing the case shall be Duty of the CA Clerk:
further referred to as the appellant and the adverse party as the 1. To docket the case
appellee. (1a, R46) 2. Notify the parties thereof

In all cases appealed to the CA under Rule 41: Within 10 days from receipt of Notice:
1. Title of case shall remain as it was in court of origin 1. Appellant, in appeals by record on appeal, shall file with
2. Party appealing shall be referred to as appellant the clerk 7 clearly legible copies of the approved record on
3. Adverse party referred to as appellee appeal
2. Appellant must also attach proof of service of 2 copies
If the title of the case commenced in the trial court is erroneous as thereon upon appellee
where a non-party is impleaded, such as the court or a trial judge or
a nominal party who should not be a party to the appeal Unauthorized alteration, omission, or addition in approved record
- Appellate court may effect corresponding change or on appeal = Ground for DISMISSAL of APPEAL
correction of title of the case
It will indicate in its decision the reason for doing so SECTION 5 - Completion of record.Where the record of
the docketed case is incomplete, the clerk of court of the Court
SECTION 2 - Counsel and guardians.The counsel and of Appeals shall so inform said court and recommended to it
guardians ad litem of the parties in the court of origin shall be measures necessary to complete the record. It shall be the duty of
respectively considered as their counsel and guardians ad litem in said court to take appropriate action towards the completion of
the Court of Appeals. When others appear or are appointed, the record within the shortest possible time. (n)
notice thereof shall be served immediately on the adverse
party and filed with the court. (2a, R46) Where record of docket case is incomplete
1. CA Clerk shall:
Counsel and guardians ad litem in court of origin a. Inform the court
- Considered as counsel and guardians ad litem in CA b. Recommend measures necessary to complete the
- When others appear or are appointed: record
Notice to that effect must be made immediately 2. The court shall take appropriate action towards
Served on adverse party completion of records ASAP
Filed with the court
SECTION 6 - Dispensing with complete record.Where the
SECTION 3 - Order of transmittal of record.If the original record completion of the record could not be accomplished within a
or the record on appeal is not transmitted to the Court of Appeals sufficient period allotted for said purpose due to insuperable or
within thirty (30) days after the perfection of the appeal, either extremely difficult causes, the court, on its own motion or on
party may file a motion with the trial court, with notice to the motion of any of the parties, may declare that the record and
other, for the transmittal of such record or record on appeal. (3a, its accompanying transcripts and exhibits so far available are
R46) sufficient to decide the issues raised in the appeal, and shall issue
an order explaining the reasons for such declaration. (n)
Original record or record on appeal must be transmitted to the CA
within 30 days after perfection of the appeal Where completion of record could not be accomplished within
- Failure to do so, either party may file a motion for sufficient period
transmittal of such record or record on appeal - NOTE: due to insuperable or extremely difficult causes
With notice to other party - Court may declare that the record and its accompanying
- It is the duty of both parties to expedite transmittal of the transcripts and exhibits are sufficient to decide the issues
records Made motu proprio or on motion of any party
Failure to transmit is not a ground for dismissal CA shall issue an order explaining the reasons

See Two Raffle Rule under Internal Rules of CA SECTION 7 - Appellants brief.It shall be the duty
of the appellant to file with the court, within forty-five (45)
SECTION 4 - Docketing of case.Upon receiving the original days from receipt of the notice of the clerk that all the
record or the record on appeal and the accompanying evidence, oral and documentary, are attached to the record, seven
documents and exhibits transmitted by the lower court, as well as (7) copies of his legibly typewritten, mimeographed or printed
the proof of payment of the docket and other lawful fees, the clerk brief, with proof of service of two (2) copies thereof upon the
of court of the Court of Appeals shall docket the case and notify appellee. (10a, R46)

116
SECTION 8 - Appellees briefWithin forty-five (45) days from BRIEF MEMORANDUM
receipt of the appellants brief, the appellee shall file with the Certiorari, Prohibition,
court seven (7) copies of his legibly typewritten, mimeographed Ordinary appeals Mandamus, Quo Warranto,
or printed brief, with proof of service of two (2) copies thereof Habeas Corpus
upon the appellant. (11a, R46) Filed within 45 days from Filed within 30 days from
notice of clerk notice of clerk; non-extendible
SECTION 9 - Appellants reply brief.Within twenty (20) days Shorter, briefer, only one issue
from receipt of the appellees brief, the appellant may file a reply involved
brief answering points in the appellees brief not covered in his Contents specified by the Rules No subject index or assignment
main brief. (12, R46) of errors
Just facts and law applicable
APPELLANTS BRIEF
In these special cases, a memorandum is filed, not a brief
Manner of filing
1. Filed within 45 days from receipt of notice of clerk that all Additional Ground for Dismissal:
evidence is attached to record - Failure of appellant to file his memorandum within the
2. Filed in: period may be a ground for dismissal
a. 7 copies of legibly typewritten, mimeographed or
printed brief; and SECTION 11 - Several appellants or appellees or several counsel for
b. Proof of service of 2 copies thereof upon appellee each party.Where there are several appellants or appellees,
each counsel representing one or more but not all of them shall be
Grounds for Dismissal with respect to Appellants brief: served with only one copy of the briefs. When several counsel
1. Failure to file appellants brief on time represent one appellant or appellee, copies of the brief may be
However, if failure to do so is due to caso fortuito, served upon any of them. (14a, R46)
appeal will not be dismissed (Montices, et al. v. CA)
2. Failure of appellant to make specific assignment of errors Where there are several appellants or appellees
in his brief - Each counsel representing one or more but not all of them
shall be served with only one copy of the briefs
Notes:
- Expiry of period to file appellants brief does not When several counsel represent one appellant or appellee
automatically result in the dismissal of appeal or loss of - Copies of the brief may be served upon any of them
jurisdiction of appellate jurisdiction (Infantado v.
Liwanag) SECTION 12 - Extension of time for filing briefs.
- If motion to dismiss an appeal has been filed, it suspends Extension of time for the filing of briefs will not be allowed, except
the running of the period for filing appellants brief for good and sufficient cause, and only if the motion for extension
It would be unnecessary if motion is granted is filed before the expiration of the time sought to be extended.
- Filing of a motion for new trial does not suspend period (15, R46)
for filing appellants brief
Extension of time for filing briefs
APPELLEES BRIEF - GENERAL RULE: Not allowed
- EXCEPTION:
Manner of filing: Similar to appellants brief 1. For good and sufficient cause, AND
1. Filed within 45 days from receipt appellants brief 2. Only if motion for extension is field before expiration
2. Filed in: of time sought to be extended
a. 7 copies of legibly typewritten, mimeographed or
printed brief; and SECTION 13 - Contents of appellants brief.The appellants brief
b. Proof of service of 2 copies thereof upon appellant shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of
APPELLANTS REPLY BRIEF the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited
Manner of filing: Within 20 days from receipt of appellees brief with references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which
Notes: errors shall be separately, distinctly and concisely
- Appellant MAY file a reply brief; only optional stated without repetition and numbered consecutively;
- Reply brief to answer points not covered in his main (c) Under the heading Statement of the Case, a clear and
brief concise statement of the nature of the action, a
summary of the proceedings, the appealed rulings and
SECTION 10 - Time of filing memoranda in special cases. orders of the court, the nature of the judgment and any
In certiorari, prohibition, mandamus, quo other matters necessary to an understanding of the
warranto and habeas corpus cases, the parties shall file, in lieu of nature of the controversy, with page references to the
briefs, their respective memoranda within a non-extendible record;
period of thirty (30) days from receipt of the notice issued by the (d) Under the heading Statement of Facts, a clear and
clerk that all the evidence, oral and documentary, is already concise statement in a narrative form of the facts
attached to the record. (13a, R46) admitted by both parties and of those in controversy,
The failure of the appellant to file his memorandum within together with the substance of the proof relating
the period therefor may be a ground for dismissal of the appeal. thereto in sufficient detail to make it clearly intelligible,
(n) with page references to the record;
(e) A clear and concise statement of the issues of fact or law

117
to be submitted to the court for its judgment; SECTION 14 - Contents of appellees brief.The appellees brief
(f) Under the heading Argument, the appellants shall contain, in the order herein indicated, the following:
arguments on each assignment of error with page (a) A subject index of the matter in the brief with a digest of
references to the record. The authorities relied upon the arguments and page references, and a table of cases
shall be cited by the page of the report at which the case alphabetically arranged, textbooks and statutes cited
begins and the page of the report on which the citation with references to the pages where they are cited;
is found: (b) Under the heading Statement of Facts, the appellee
(g) Under the heading Relief, a specification of the order shall state that he accepts the statement of facts in the
or judgment which the appellant seeks; and appellants brief, or under the heading Counter-
(h) In cases not brought up by record on appeal, the Statement of Facts, he shall point out such
appellants brief shall contain, as an appendix, a copy of insufficiencies or inaccuracies as he believes exist in the
the judgment or final order appealed from. (16a, R46) appellants statement of facts with references to the
pages of the record in support thereof, but without
Contents of Appellants Brief repetition of matters in the appellants statement of
1. Subject index of the matter in the brief, with: facts; and
a. Digest of the arguments with page references (c) Under the heading Argument, the appellee shall set
b. Table of cases alphabetically arranged forth his arguments in the case on each assignment of
c. Textbooks and statutes cited with page references error with page references to the record. The
2. Assignment of Errors authorities relied on shall be cited by the page of the
3. Statement of the Case report at which the case begins and the page of the
a. Clear and concise statement of nature of action report on which the citation is found. (17a, R46)
b. Summary of proceedings
c. Appealed rulings, orders of the court Contents of Appellees Brief
d. Nature of judgment 1. Subject index of matter in the brief, with:
e. Other matters necessary for understanding a. Digest of the arguments with page references
f. All with page references b. Table of cases alphabetically arranged
4. Statement of Facts c. Textbooks and statutes cited with page references
a. Clear and concise statement in narrative form of facts 2. As to facts
(1) Facts admitted by both parties, and a. Statement of Facts
(2) Facts in controversy (1) State that he accepts statement of facts in
b. Substance of proof relating thereto in detail appellants brief
5. Statement of issues of fact or law b. Counter-Statement of Facts
6. Argument (1) Point out such insufficiencies or inaccuracies as
a. Appellants arguments on each assignment of error he believes exist in appellants statement of facts
with page references (2) With references to record pages in support
b. Authorities relied upon with citation (3) No repetition of matters in appellants statement
7. Relief 3. Argument
a. Specification of order or judgment which appellant a. Set forth his arguments in each assignment of error
seeks with page references
8. Copy of judgment or final order appealed from b. Authorities must be with citation
For cases not brought up by record on appeal
Notes:
Notes: - Appellee who has not also appealed cannot make
- Failure of appellant to make specific assignment of errors assignments of errors in his brief (Gorospe v.
or of page references to record as required is ground for Penaflorida)
dismissal (Sec. 1(f), Rule 50) But he can make a counter-assignment of errors in
See however Phil Coconut Authority v. Corona order to sustain the judgment (Saenz v. Mitchel)
International Inc. which directed a liberal - Appellee in his brief can also argue on issues raised at trial
interpretation on this ground to sustain judgment in his favor on other grounds, even if
- Only errors specifically assigned and properly argued in the same were not included in the decision of the court a
the brief will be considered quo nor raised in appellants assignment of errors or
Exceptions: The following may also be considered arguments (Relativo v. Castro)
(Catholic Bishop of Balanga v. CA, et al.) Appellee, however, cannot assign such errors to have
Errors affecting jurisdiction over the subject judgment modified for, to do so, he must have
matter appealed (Aparri v. CA et al.)
Plain or Clerical errors
Unassigned errors closely related to or SECTION 15 - Questions that may be raised on appeal.-Whether or
dependent upon an assigned error and properly not the appellant has filed a motion for new trial in the court
argued in the brief below, he may include in his assignment of errors any question of
Unassigned errors which are necessary for a just law or fact that has been raised in the court below and which is
decision in the case, or in the interest of justice within the issues framed by the parties. (18, R46)
if:
a. They involve questions passed upon in the The appeal can raise only questions of law or fact that:
trial court, and 1. Has been raised in the court below, and
b. Are matters of record having some bearing 2. Which is within the issues framed by the parties
on the issues submitted
GENERAL RULE: Reversal of a judgment on appeal is generally
binding only on the parties in the appealed case and does not affect

118
or inure to the benefit of those who did not join or were not made NOTES ON RULE 44
parties to the appeal

Notes on the General rule:


- This rule must be read in conjunction with Sec. 4 and 8,
Rule 51
- Issues not raised and/or ventilated in the trial court, let
alone in the CA, cannot be raised for the first time on
appeal as it would be offensive to basic rules of fair play,
justice, and due process (Galicia v. Polo)
- Defenses not raised in trial court cannot be raised on
appeal, even the constitutionality of a law must be raised
in the earliest opportunity (People v. Vera)

Change of theory is not permitted


- Where a cause of action has been tried upon the theory
that the pleadings are at issue, or that a particular issue is
made by the pleadings, or where an issue is tacitly
accepted by all parties as properly presented for trial and
the only issue, the appellate court will proceed upon the
same theory
- To adopt a different theory is unjust and oppressive and
would surprise the parties
However, In the interest of justice, change in legal
theory is permitted when factual bases would not
require presentation of any further evidence to meet
the new theory

EXCEPTION: Where the rights of such parties are so interwoven and


dependent on each other as to be inseparable due to community of
interests

Notes on the Exception


- Issues not formally and specifically raised on appeal may
nevertheless be considered as long as they are closely
related to the error properly assigned or upon which the
determination of question raised by error properly
assigned is dependent

Jurisdiction
- Questions on jurisdiction over subject matter may be
raised for the first time on appeal
UNLESS it depends upon a question of fact which
must first be raised and determined by the court

Change of Emphasis is Allowed


- Change of emphasis from one phase of the case as
presented by one set of facts to another is not change of
theory

END OF RULE 44

119
Hence, the courts composing the integrated judicial
RULE 45 system which means it does not include the quasi-
APPEAL BY CERTIORARI judicial bodies or agencies
- Appeals from judgments and final orders of quasi-judicial
TO THE SUPREME COURT agencies are now to be brought to the CA on a verified
petition for review under Rule 43

Only Questions of Law Allowed


- Such questions of law must be distinctly set forth
RTC, Sandiganbayan, CTA en banc, or CA renders a decision
- The SC is not a trier of facts, and is not to review or
calibrate the evidence on record. Moreover, findings of
facts of trial court, as affirmed on appeal by the CA, are
Any party files a petition for review on certiorari conclusive on the court (Boston Bank of the Philippines v.
Within 15 days from notice Manalo)
of final judgment or order of lower court - It has to be emphasized that it is not the duty of the SC to
or notice of denial of motion for reconsideration or new trial review, evaluate, and weigh the probative value of the
evidence adduced before the lower courts (Frondarina v.
Malazarte)

Appellant serves copies of petition on adverse parties


And to the lower court, APPEAL FROM RTC TO SC UNDER RULE 45
And pay the corresponding docket fees
To appeal under Rule 45, the RTC must render judgment in the
exercise of its ORIGINAL JURISDICTION

SC may dismiss the petition or require appellee to comment If the RTC exercised its APPELLATE JURISDICTION:
- As in Rule 42 and 43
- Appeal shall be taken to the CA even if only questions of
law are raised by petitioner
If given due course, parties may submit memoranda
Review of RTC Decision under Rule 45 is not allowed where appeal
by other party is pending before the CA
- If the other party had already taken an appeal to the CA to
SC may affirm, reverse, or modify judgment of lower court question the RTC decision, the property remedy of
petitioner is simply ordinary appeal to the CA as well
(First Phil. International Bank v. CA)
- The appellate courts action could collide with a ruling
SECTION 1 - Filing of petition with Supreme Court.A party
with the SC
desiring to appeal by certiorari from a judgment or final order or
resolution of the Court of Appeals, the Sandiganbayan, the Such situation would lead to absurdity and confusion
Regional Trial Court or other courts whenever authorized by law, in the ultimate disposition of the case
may file with the Supreme Court a verified petition for review on Such possibility must be avoided at all cost
certiorari. The petition shall raise only questions of law which
must be distinctly set forth. (1a, 2a) NOTE: Grave abuse of discretion is not an allowable ground under
Rule 45 (Martires v. CA)
PROPRIETY OF RULE 45 AS A MODE OF APPEAL

Appeals to the SC APPEAL FROM CA IS BY RULE 45


- Can be taken from a judgment or final order or resolution
of the CA, Sandiganbayan, CTA en banc, RTC or such other Appeal under Rule 45 is the proper review of decisions of the CA
courts as may be authorized by law - Even in special civil actions
- Only by VERIFIED PETITION FOR REVIEW ON - Any alleged errors committed by it in the exercise of
CERTIORARI jurisdiction would be errors of judgment which are
reviewable by timely appeal and not by special civil action
This petition may include and application for a writ of
of certiorari
preliminary injunction or other provisional remedies
If party fails to do so within the reglementary period,
Petitioner may seek the same provisional remedies
and decision becomes final and executory, he cannot
via VERIFIED MOTION in the same action or
avail of Rule 65 due to his inaction
proceeding at any time during pendency (AM 07-7-
12-SC)
Rule 45 is clear that decisions, final orders, or resolutions of the CA
- Except as provided in criminal cases in Sec. 13(c) Rule 124
in any case, regardless of the nature of the action or proceedings
in relation to Sec. 3 Rule 122, whenever the CA imposes
involved, may be appealed to the SC by filing a petition for review,
reclusion perpetua, life imprisonment, judgment may be
which would but be a continuation of the appellate process over the
appealed to the SC by NOTICE OF APPEAL filed with the CA
original case.
Rule does not include appeals from Quasi-Judicial Bodies
- Note that the appellate jurisdiction of the SC contemplated
here is to be exercised over final judgments and orders of
LOWER COURTS

120
CERTIORARI AS A MODE OF APPEAL (RULE 42) AND Distinguish: Rule 45, 64, 65
CERTIORARI AS A SPECIAL CIVIL ACTION (RULE 65)
REVIEW OF
APPEAL BY CERTIORARI CERTIORARI AS AN ACTION APPEAL BY JUDGMENTS FINAL PETITION FOR
Rule 45 Rule 65 CERTIORARI ORDERS OR CERTIORARI
Petition raises the issue as to Rule 45 RESOLUTIONS Rule 65
Based on questions of law whether the lower court acted Rule 64
which appellant desires the without or in excess of Petition is based on
Petition is based Petition is based on
appellate court to resolve jurisdiction or with grave abuse questions of
on questions of law questions of law
of discretion jurisdiction
May be directed against an Mode of appeal but
interlocutory order of the court Mode of appeal the petition used is Mode of Review
Involves review of judgment, prior to appeal from the that in Rule 65
award or final order on merits judgment or where there is no Directed against an
appeal or any other plain, Involves review of interlocutory order
Involves review of
speedy, or adequate remedy judgments, final of the court or
judgment award or
May be filed not later than 60 orders, or where there is no
final order on the
Must be made within the days from notice of judgment, resolutions of appeal or any other
merits
reglementary period of appeal order or resolution sought to be COMELEC or COA plain, speedy,
assailed adequate remedy
Does not stay the challenged Filed within 30 days
Filed within 15 Filed not later than
Stays the judgment, award, or proceedings from notice of
days from notice of 60 days from notice
order appealed from (unless a writ of preliminary judgment, final
judgment, final of judgment, order,
injunction or TRO is issued) order, or resolution
order, resolution resolution sought
The parties are the aggrieved sought to be
appealed from to be reviewed
Petitioner and respondent are party against the lower court or reviewed
original parties to the action quasi-judicial agency as Does not stay the
Shall not stay the
prevailing parties challenged
execution
A filing of a MFR is a condition Stays judgment or proceeding
Prior filing of MFR not UNLESS the SC shall
precedent, subject to certain order appealed UNLESS a writ of
required direct otherwise
exceptions from preliminary
upon such terms as
Appellate court is in the Higher court exercises original injunction of TRO is
it may deem just
exercise of appellate jurisdiction under its power of issued
jurisdiction and power of control and supervision over Appellant and
Judge, court, quasi-
review proceedings of lower courts appellee are
judicial agency,
original parties to COMELEC and COA
tribunal,
The SC can treat a petition filed erroneously under Rule 65 as one the action shall be public
corporation, board,
filed under Rule 45 if the petitioner alleged grave absue of discretion Without respondents
officer, or person
under the following circumstances: impleading the impleaded to the
shall be public
1. If petition was filed within 15 days of notice of judgment lower court, or action
respondents
or final order or resolution appealed from; or quasi-judicial
impleaded
2. If petition is meritorious agency
MFR or New Trial is
Filing of MFR or
Rule 45 and Rule 65 are incompatible remedies required
New Trial, if allowed
- As a rule, a party cannot file a petition both under Rule 45 The period shall be
under the
and Rule 65 because said procedural rules pertain to MFR not required interrupted and a
procedural rules,
different remedies and have distinct applications fresh 60-day period
shall interrupt the
- The remedy of Rule 45 and Rule 65 are MUTUALLY is given to
period fixed
EXCLUSIVE and not alternative or cumulative petitioner
- A party should not join both petitions in one pleading. Court is in exercise Court is in exercise
When a party adopts an improper remedy his petition may of its appellate of its appellate Court exercises
be dismissed outright (Nagkakaisang Mamumuno sa jurisdiction and jurisdiction and original jurisdiction
PICOP Resources Inc. v. CA) power of review power of review
- However, the SC may set aside technicality for justifiable Petition shall be
reasons Petition shall be Petition shall be filed with the RTC,
When the petition is clearly meritorious and both filed with the SC filed with the SC CA, Sandiganbayan,
filed on time and COMELEC
The court may treat the petition as one filed under
Rule 45
- Note that under Rule 65, one of the requisites for its QUESTIONS OF LAW AND OF FACT
availment is precisely that there should be no appeal
- See notes under Rule 65 Whether an appeal involves only questions of law or both questions
- Herrera notes that the nature of the questions intended to of law and fact is best left to the determination of an appellate court
be raised on appeal is of no consequence and not by the court which rendered the decision appealed from
The remedy remains to be an appeal, not certiorari as (PNB v. Romillo, etc., et al.)
a special civil action
TEST: The test of whether a question is one of law or of fact is
whether the appellate court can determine the issue raised without

121
reviewing or evaluating the evidence. In which case, it is a question - The appellate jurisdiction of the SC in cases brought to it is
of law. Otherwise, a question of fact. limited to reviewing and correcting the errors of law
committed by the lower court, the findings of facts of the
QUESTIONS OF LAW QUESTIONS OF FACT lower court being final and conclusive
Doubt or difference as to the
Doubt or controversy as to truth or falsehood of facts, or as In certiorari proceedings under Rule 45, the findings of facts of the
what the law is on certain facts to probative value of the lower court as well as the conclusions on credibility of witnesses are
evidence presented generally not disturbed, the question before the court being limited
If the appellate court can to questions of law. This principle applies to quasi-judicial agencies.
The determination involves
determine the issue without
evaluation or review of
reviewing or evaluating the
evidence CONCLUSIVENESS OF FINDINGS OF FACT
evidence
Query involves the calibration
of the whole evidence GENERAL RULE: The findings of fact of the CA are final and
considering mainly the conclusive and cannot be reviewed on appeal to the SC
Can involve questions of credibility of witnesses,
interpretation of law with existence, and relevancy of EXCEPTIONS TO CONCLUSIVENESS OF FACTS:
respect to certain set of facts specific surrounding 1. When finding is grounded entirely on speculations,
circumstances and relation to surmise, or conjecture
each other and the whole 2. When influence made is manifestly absurd, mistaken, or
probabilities of the situation impossible
3. When the judgment is premised on a misrepresentation of
Examples of Questions of Law facts
1. An interpretation of the true agreement between parties 4. When there is grave abuse of discretion in the
and their contractual relations appreciation of facts
2. Validity of statement of cause of action 5. When findings of fact are conflicting
3. Validity of dismissal for lack of jurisdiction to hear and 6. When the CA in making its findings went beyond the issues
decide a case of the case and the same is contrary to both the admissions
of appellants and appellees
For a question to be one of law, it must involve no 7. When the findings of fact of the CA are at variance with
examination of the probative value of the evidence those of the trial court, the SC has to review the evidence
presented by the litigants or any of them in order to arrive at the correct findings based on the
record
Examples of Questions of Fact 8. When the findings of fact are conclusions without citation
1. Where what is being questions is the sufficiency of of specific evidence on which they are based
evidence 9. When the facts set forth in the petition as well as in the
2. Whether certain items of evidence should be accorded petitioners main and reply briefs are not disputed by the
probative value, or WON the proofs on one side or the respondents
other are clear and convincing 10. The findings of fact of the CA is premised on the supposed
3. Questions on the truth and falsehood of alleged facts evidence and is contradicted by the evidence on record;
4. WON there was preponderance of evidence to justify the and
award of damages, or WON there was causal connection 11. When certain material facts and circumstances have been
between the given set of facts and the resulting damage, overlooked by the trial courts which, if taken into account,
WON civil liability will arise would alter the result of the case in that they would entitle
5. Questions on the conclusion of the trial court that there accused to acquittal
was no meeting of the minds between lessor and lessee
regarding the sale of the leased property
6. WON there was a perfected contract of sale which SECTION 2 - Time for filing; extension.The petition shall be filed
necessitates an inquiry into the facts and evidence on within fifteen (15) days from notice of the judgment or final order
record or resolution appealed from, or of the denial of the petitioners
7. Propriety of granting judgment on the pleadings on the motion for new trial or reconsideration filed in due time after
matter of rental arrears notice of the judgment. On motion duly filed and served, with full
8. Authenticity of a Deed of Extrajudicial Settlement and payment of the docket and other lawful fees and the deposit for
Partition costs before the expiration of the reglementary period, the
9. Existence of forgery Supreme Court may for justifiable reasons grant an extension
10. Findings that concern compliance or non-compliance with of thirty (30) days only within which to file the petition. (1a, 5a)
notice and publication requirements of a foreclosure
Time for Filing: 15 days from:
1. Notice of judgment, final order, or resolution appealed
ONLY QUESTIONS OF LAW ARE ENTERTAINED IN RULE 45 from, or
2. Notice of denial of motion for new trial or reconsideration
When an appeal raises only pure questions of law, it is the SC that filed in due time after notice of judgment
has sole jurisdiction to entertain the same
- Appeals involving both questions of fact and law fall within The SC may grant an extension of 30 days, upon:
the exclusive appellate jurisdiction of the CA 1. Motion duly filed and served; and
2. Payment of docket and lawful fees and deposit for costs
In an appeal by certiorari under Rule 45, only questions of law may 3. And for justifiable reasons
be raised

122
Reglementary period for appeal: 15 DAYS for new trial or reconsideration, if any, was filed and when notice
- Counted from service of judgment, final order, or of the denial thereof was received; (c) set forth concisely a
resolution statement of the matters involved, and the reasons or arguments
- Within this 15 day period, aggrieved party may: relied on for the allowance of the petition; (d) be accompanied by
1. Appeal, or a clearly legible duplicate original, or a certified true copy of the
2. File a motion for new trial or reconsideration judgment or final order or resolution certified by the clerk of
a. If this is denied, he shall have a fresh 15 day court of the court a quo and the requisite number of plain copies
period from notice of denial to appeal thereof, and such material portions of the record as would
support the petition; and (e) contain a sworn certification against
In either case, within such 15-day period, the party may file a motion forum shopping as provided in the last paragraph of section 2,
for extension of time with the SC Rule 42. (2a)
- He must show:
a. Good cause Manner of Filing of the Petition:
b. The requisite proof of service of motion on 1. Filed in 18 copies
respondents 2. Original copy intended for the court and indicated as such
c. As well as payment of fees
- All of these must be done within the 15 day period Contents of the Petition
1. State full names of the parties
There must be proof of service of motion for extension of time a. Appealing party = as Petitioner
- Although the courts are no longer impleaded as b. Adverse party = as Respondent
respondents under Rule 45, it must still be furnished with Do not implead lower courts or judges
a copy petitioners motion for extension of time 2. Indicate material dates showing:
This is so that the court is prevented from making an a. When notice of judgment or final order or resolution
entry of judgment was received
- In Mendoza v. CA, the court held that there was no valid b. When a motion for new trial or reconsideration, if
service even though the motion carried a registry receipt any, was filed
purportedly sent to the CA but the affidavit of service (1) When a denial thereof was received
attached did not state whether the service was effected by 3. Concise statement of:
personal delivery, ordinary, or registered mail a. The matters involved
In said case, the SC dismissed the petition b. Reasons or arguments relied on
Considering that the CA entered the judgment and the 4. Accompanied by a clearly legible duplicate original, or a
judgment has become final certified true copy of the judgment or final order or
resolution
Certified by the clerk of court and court a quo
SECTION 3 - Docket and other lawful fees; proof of service of 5. Certificate of non-forum shopping
petition.Unless he has theretofore done so, the petitioner shall
pay the corresponding docket and other lawful fees to the clerk of
court of the Supreme Court and deposit the amount of P500.00 SECTION 5 - Dismissal or denial of petition.The failure of the
for costs at the time of the filing of the petition. Proof of service of petitioner to comply with any of the foregoing requirements
a copy thereof on the lower court concerned and on the adverse regarding the payment of the docket and other lawful fees,
party shall be submitted together with the petition. (1a) deposit for costs, proof of service of the petition, and the contents
of and the documents which should accompany the petition shall
To accompany the filing of the VERIFIED petition be sufficient ground for the dismissal thereof.
1. Payment of docket and other lawful fees and deposit of The Supreme Court may on its own initiative deny the
P500 for costs petition on the ground that the appeal is without merit, or is
With the SC Clerk at time of filing prosecuted manifestly for delay, or that the questions raised
2. Proof of service of the petition therein are too unsubstantial to require consideration. (3a)
a. Service to the lower court
b. Service to the adverse party Grounds for Denial of Petition
1. Failure of petitioner to comply with:
Notes: a. Payment of docket or other lawful fees
- Unless he has theretofore done so b. Deposit for costs
Refers to the situation in Sec. 2 where a motion for c. Proof of Service; and
extension of time for filing the petition was filed d. Contents of and documents which would accompany
In which case, the petitioner has already paid the petition
- Strict compliance with the provision on proof of service on 2. Appeal is without merit
the lower court and on the adverse party is prescribed in 3. Is prosecuted manifestly for delay
SC Circ. No. 19-91 4. That the questions raised are so unsubstantial as to
require consideration

SECTION 4 - Contents of petitionThe petition shall be filed in NOTE: SC may dismiss the petition motu proprio
eighteen (18) copies, with the original copy intended for the court
being indicated as such by the petitioner, and shall (a) state the Justice Feria notes:
full name of the appealing party as the petitioner and the adverse - Dismissal of petition for review on certiorari under Rule
party as respondent, without impleading the lower courts or 45 renders judgment or final order appealed from final
judges thereof either as petitioners or respondents; (b) indicate and executory
the material dates showing when notice of the judgment or final - In case of petition for certiorari under Rule 65, dismissal
order or resolution subject thereof was received, when a motion thereof for non-compliance with requirements is not fatal

123
since the defects may be corrected or petition may be Elevation of Records
refiled within the period of 60 days provided in Sec. 4, - If petition is given due course
Rule 65 - The SC MAY require the elevation of the complete record
or specified parts
- Within FIFTEEN DAYS from notice
SECTION 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 SECTION 9 - Rule applicable to both civil and criminal cases.The
following, while neither controlling nor fully measuring the mode of appeal prescribed in this Rule shall be applicable to both
courts discretion, indicate the character of the reasons which will civil and criminal cases, except in criminal cases where the
be considered: penalty imposed is death, reclusion perpetua or life imprisonment.
(a) When the court a quo has decided a question of (n)
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 END OF RULE 45
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. (4a)

Appeals to the SC is NOT a matter of right


- It is a matter of sound judicial discretion on the SC
- It will be granted only when there are special and
important reasons therefor

Some indications of the character of reasons which will be


considered:
1. When the court a quo has decided the question of
substance, not theretofore determined by the SC, or has
decided it in a way probably not in accord with law or with
the applicable provisions of the SC; or
2. Court a quo has so far departed from accepted and usual
course of judicial proceedings, or so far sanctioned such
departure by a lower court, as to call for an exercise of
power of supervision

SECTION 7 - Pleadings and documents that may be required;


sanctions.For purposes of determining whether the petition
should be dismissed or denied pursuant to section 5 of this Rule,
or where the petition is given due course under section 8 hereof,
the Supreme Court may require or allow the filing of such
pleadings, briefs, memoranda or documents as it may deem
necessary within such periods and under such conditions as it
may consider appropriate, and impose the corresponding
sanctions in case of non-filing or unauthorized filing of such
pleadings and documents or noncompliance with the conditions
thereof. (n)

The SC may require pleadings and documents


- For purposes of:
a. Sec. 5 -- Determining whether the petition should be
dismissed or denied; or
b. Sec. 8 where petition is given due course

Compliance
- Within such period and under such conditions as the SC
may consider appropriate
- SC may impose corresponding sanctions for non-
compliance

SECTION 8 - Due course; elevation of records.If the petition is


given due course, the Supreme Court may require the elevation of
the complete record of the case or specified parts thereof within
fifteen (15) days from notice. (2a)

124
NOTES ON RULE 45

125
THE MODES OF APPEAL
Only one mode of appeal: Rule 40
APPEAL FROM Ordinary Appeal to the RTC via Rule 40
INFERIOR COURTS a. Notice of Appeal or
b. Record on Appeal

If RTC is in exercise of its Original Jurisdiction


1. Ordinary Appeal to the CA via Rule 41 on questions of fact or mixed questions of fact and law
2. Petition for review on Certiorari to the SC via Rule 45 only on questions of law
APPEAL FROM
REGIONAL TRIAL COURTS
If RTC is in exercise of its Appellate Jurisdiction
Petition for Review to the CA via Rule 42 on questions of fact, of law, or mixed questions of fact and law

APPEAL FROM
Always by Petition for Review on Certiorari to the SC via Rule 45 only on questions of law
COURT OF APPEALS

APPEAL FROM QUASI- By Petition for Review to the CA via Rule 43


JUDICIAL AGENCIES

Other considerations
1. Appeals from the RTC to the Sandiganbayan
Sandiganbayan exercises exclusive appellate jurisdiction over final judgments, resolutions, or orders of RTCs whether in the
exercise of its original or appellate jurisdiction (for cases falling under the cognizance of the Sandiganbayan)
Procedure followed is similar to that in Petitions for Review to the CA
Petition for Review to the Sandiganbayan, and from the Sandiganbayan to the SC
2. Appeals from the RTC to the COMELEC
COMELEC shall exercise appellate jurisdiction over all contests involving elective municipal officials decided by the trial courts of
general jurisdiction, or involving barangay officials decided by trial courts of limited jurisdiction
Decisions, final orders, rulings of the COMELEC on election contests involving elective municipal and barangay offices shall be
final, executory, and non-appealable
Quo Warranto proceedings may be had under proper cases
3. Review of Decisions of the COMELEC and the COA
By Certiorari under Rules 64 and 65
4. Review of Decisions of the NLRC
By Certiorari under Rule 65

126
petition a sworn certification that he has not theretofore
RULE 46 commenced any other action involving the same issues in the
ORIGINAL CASES Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the same; and if
he should thereafter learn that a similar action or proceeding has
SECTION 1 - Title of cases.In all cases originally filed in the been filed or is pending before the Supreme Court, the Court of
Court of Appeals, the party instituting the action shall be Appeals, or different divisions thereof, or any other tribunal or
called the petitioner and the opposing party the respondent. (1a) agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days
therefrom.
Title of Cases in cases ORIGINALLY filed in the CA:
The petitioner shall pay the corresponding docket and
- Party instituting the action = PETITIONER
other lawful fees to the clerk of court and deposit the amount of
- Adverse party = RESPONDENT
P500.00 for costs at the time of the filing of the petition.
The failure of the petitioner to comply with any of the foregoing
SECTION 2 - To what actions applicable.This Rule shall apply to
requirements shall be sufficient ground for the dismissal of the
original actions for certiorari, prohibition, mandamus and quo
petition. (n)
warranto.
Except as otherwise provided, the actions for
The petition shall contain:
annulment of judgment shall be governed by Rule 47, for
1. Full names and actual addresses of all petitioners and
certiorari, prohibition and mandamus by Rule 65, and for quo
respondents
warranto by Rule 66. (n)
2. Concise statement of matters involved
a. With factual background of the case; and
Rule 46 specifies the different rules applicable in ORIGINAL actions
b. Grounds relied upon for the relief prayed for
1. Rule 46 shall apply to original actions for certiorari,
3. For actions filed under Rule 65, in addition, indicate the
prohibition, mandamus, and quo warranto
material dates showing:
2. Rule 47 shall apply to actions for annulment of judgment
a. When notice of judgment or final order or resolution
except as otherwise provided
was received,
3. Rule 65 governs certiorari, prohibition, mandamus
b. When a motion for new trial or reconsideration, if
4. Quo warranto by Rule 66
any, was filed
(1) And when notice of its denial was received
Notes:
4. Petition shall be accompanied by:
- Under BP 129, the CA has original jurisdiction to issue
a. Proof of service of the petition on the respondent
writs of mandamus, prohibition, certiorari, habeas corpus,
b. A clearly legible duplicate original or certified true
and quo warranto and auxiliary writs or processes
copy of the judgment, order, or ruling
Whether or not they are in aid of its appellate
(1) Such material portions of the record as are
jurisdiction
referred to therein
- It also has exclusive original jurisdiction over annulment
(2) And other documents relevant or pertinent
of judgments of RTC
thereto
- Habeas Corpus is excluded, being governed by the rules on
c. Certificate of non-forum shopping
special proceedings and Sec. 3, Rule 41
Manner of Filing:
SECTION 3 - Contents and filing of petition; effect of non- 1. Original copy intended for the court as indicated
compliance with requirements.The petition shall contain the full 2. Filed in 7 legible copies
names and actual addresses of all the petitioners and a. Each shall be accompanied by clearly legible plain
respondents, a concise statement of the matters involved, the copies of all documents attached to the original
factual background of the case, and the grounds relied upon for 3. Certification of the duplicate or certified true copy of the
the relief prayed for. judgment, order, or ruling shall be accomplished by the
In actions filed under Rule 65, the petition shall further clerk or his representative, or by proper officer of the
indicate the material dates showing when notice of the judgment court
or final order or resolution subject thereof was received, when a 4. Petitioner shall pay corresponding docket and lawful fees
motion for new trial or reconsideration, if any, was filed and when to the clerk
notice of the denial thereof was received. 5. Petitioner shall deposit P500 fro costs at time of filing
It shall be filed in seven (7) clearly legible copies
together with proof of service thereof on the respondent with the SANCTION: Failure of petitioner to comply with any of the foregoing
original copy intended for the court indicated as such by the shall be sufficient ground for dismissal of petition
petitioner, and shall be accompanied by a clearly legible duplicate
original or certified true copy of the judgment, order, resolution, Meaning of Certified True Copy and Duplicate Original
or ruling subject thereof, such material portions of the record as - Duplicate Originals
are referred to therein, and other documents relevant or
That copy of the decision, judgment, or resolution, or
pertinent thereto. The certification shall be accomplished by the
order which is intended for and furnished to a party
proper clerk of court or by his duly authorized representative, or
in the case or proceeding in the court which rendered
by the proper officer of the court, tribunal, agency or office
and issued the same
involved or by his duly authorized representative. The other
- Certified True Copy
requisite number of copies of the petition shall be accompanied
Such other copy furnished to a party at his instance or
by clearly legible plain copies of all documents attached to the
in his behalf, duly authenticated by the proper
original.
officers
The petitioner shall also submit together with the

127
One which was made by the proper clerk of court or indicating its initial action on the petition or by his voluntary
his duly authorized representative submission to such jurisdiction. (n)
Copies certified by a notary are not certified true
copies and will be disregarded Jurisdiction is Acquired
1. Over the PETITIONER By filing of petition
Papers to Accompany Rule 46 (in relation to Rule 65) 2. Over the RESPONDENT By the service on the latter of the
- The Rules do not require that all supporting papers and order or resolution indicating the courts initial action on
documents accompanying a petition for certiorari be in the petition or by his voluntary submission
duplicate originals or certified true copies
Petitions need only be accompanied by duplicate Note:
originals or certified true copies of the QUESTIONED - Summons is not required and will not acquire jurisdiction
judgment, order, or resolution over the person of the respondent
Other relevant documents and pleadings attached to - Such jurisdiction is only acquired upon service on
it may be mere machine copies respondents of the order or resolution issued by the Court
indicating its initial action on the petition or voluntary
The Substantial Compliance Rule submission
- Rule 46 applies to original actions for certiorari filed in the
CA but Rule 65 generally serves to supplement the same SECTION 5 - Action by the court.The court may dismiss the
Mere duplicate originals are sufficient under Rule 46 petition outright with specific reasons for such dismissal or
even if Rule 65 requires only certified true copies require the respondent to file a comment on the same within ten
- A certified Xerox copy was held to be substantial (10) days from notice. Only pleadings required by the court shall
compliance (provided of course that it is a faithful be allowed. All other pleadings and papers, may be filed only with
reproduction) leave of court. (n)
- The stamp mark Original signed without dry seal or any
other official indication of the authenticity and The Court may EITHER:
completeness of such copy is insufficient 1. Dismiss the petition outright
- In Gutierrez v. DOLE Sec., the court held that while what With specific reasons for such dismissal
were submitted were mere photocopies, there was 2. Require respondent to file a comment
substantial compliance since petitioner attached to her Within 10 days from notice
Supplemental Motion for Reconsideration certified true Only pleadings required by the court shall be allowed
copies of the questioned DOLE orders All other pleadings and papers may be filed only
with leave of court
Payment of Docket Fees
- Court cannot acquire jurisdiction over the subject matter Notes:
unless docket fees are filed - The rule has done away with the filing of an answer
- Where filing of initiatory pleadings is not accompanied by - The court may require a comment but only when the court
docket fees, court may allow payment within reasonable requires him to do so
time Only pleadings required by the court shall be allowed
Provided it is within the prescriptive period Others need leave of court for filing (like a motion to
dismiss)
NOTE: Lack of certification against forum shopping is generally not Such unauthorized pleadings may either be
curable by submission thereof after filing of a petition. noted without action or expunged from the
records
Jurisprudence
1. Balagtas Multi-Purpose Cooperative Inc. et al v. CA, et SECTION 6 - Determination of factual issuesWhenever
al. the SC set aside the dismissal of the petition by the CA necessary to resolve factual issues, the court itself may conduct
based on non-compliance of Sec. 3. The issue before the hearings thereon or delegate the reception of the evidence on
court was whether petitioner was exempted from posting such issues to any of its members or to an appropriate court,
bond. Thus, failure to submit the complaint and other agency or office. (n)
documents were not material. The financial statement,
which was material, was filed together with an MFR. There When necessary to resolve factual issues, the court may:
was substantial compliance 1. Conduct hearings thereon, or
2. In Paras, et al. v. Baldado etc., et al., the SC set aside the 2. Delegate the reception of evidence
dismissal of the petition where copies of challenged orders
attached were certified only by the notary. The SC noted Notes:
that duplicate original copies were attached to one copy of - For resolution of factual issues, the CA is granted the
the petition and they submitted duly certified copies in options provided under Sec. 6
their MFR. - However, in the SC:
3. In Molina et al. v. CA, et al., the SC sustained the Factual issues are not generally involved
sufficiency of a certiorari petition even if the copies of the However, there may be instances wherein an appeal
attached order failed to show the authority of the person to the SC on questions of la may involve prior
who certified the same, and the seal of the court thereon resolution of factual issues, in which case the SC may
could not be identified. The parties merely relied on court dispose of such improper appeal following Sec. 6,
personnel and presumption of regularity in official duty. Rule 56
Where factual issue raised in direct appeal to the SC
SECTION 4 - Jurisdiction over person of respondent, how does not involve a complicated situation nor entail
acquired.The court shall acquire jurisdiction over the person of introduction of evidence for clarification, the parties
the respondent by the service on him of its order or resolution

128
may be required to submit corresponding pleadings NOTES ON RULE 46
or be set for oral argument

SECTION 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)

Failure to Comment
1. Case may be decided on the basis of records
2. Court may impose disciplinary action against disobedient
party

REVIEW: PROCEDURAL OUTLINE


(Original Cases in the CA)

1. Filing of petition
2. Order to acquire jurisdiction over the respondents or
outright dismissal for failure to comply with requirements
as to form and payment of fees
3. Require respondents to comment within 10 days from
notice
4. Court may require filing of reply or such other pleadings as
it may deem necessary
5. Determination of Due Course
6. Determination of factual issues
a. Court itself may conduct hearings or
b. Delegate the reception of evidence to any of its
members or to an appropriate court, agency or office
7. Submission of Memoranda

END OF RULE 46

129
decisions or orders of the Ombudsman in administrative
RULE 47 cases whose decisions or orders may be appealed to the
ANNULMENT OF JUDGMENTS OR CA under Rule 43 (Macalalag v. Ombudsman)
- This does not apply to an action to annul the levy and sale
FINAL ORDERS AND RESOLUTIONS at public auction
- It does not apply to an action to nullify a writ of execution
Annulment of Judgment is a remedy in law independent of the case A writ of execution is not a final order or
where the judgment sought to be annulled was rendered and may be resolution, but is issued to carry out a mandate
availed of though the judgment has been executed. of the court
- This remedy is not available where ordinary remedies are
The purpose of such action is to have the final and executory already availed of
judgment set aside so that there will be a renewal of litigation.
- Resorted to in cases where ordinary remedies of new trial, It has been held that; where the petition makes out a case for
appeal, petition for relief, or other appropriate remedies reconveyance and not a mere annulment of judgment of the RTC
are no longer available through no fault of petitioner judgment, jurisdiction over the case is in the RTC
- It is based only on 2 grounds: extrinsic fraud and lack of - Holding that an action for quieting of title and cancellation
jurisdiction and nullification of title issued by virtue of a land
registration court is a real action cognizable by the RTC
Like a petition for relief, an action for annulment is a recourse and not an action for annulment of judgment
equitable in character
- Allowed only in exceptional cases
SECTION 2 - Grounds for annulment.The annulment may be
The remedy may no longer be invoked where the party has availed based only on the grounds of extrinsic fraud and lack of
himself of the remedy of new trial, appeal, petition for relief, or other jurisdiction.
appropriate remedy and lost or where he has failed to avail himself Extrinsic fraud shall not be a valid ground if it was availed of,
of those remedies through his fault or negligence or could have been availed of, in a motion for new trial or petition
for relief. (n)
NATURE: It is not a mode of appeal but an Independent Civil Action
As for remedies available against a judgment, see discussion under
Rule 38
SECTION 1 - Coverage.This Rule shall govern the annulment by
the Court of Appeals of judgments or final orders and resolutions Remember: Annulment of judgment is available only where the
in civil actions of Regional Trial Courts for which the ordinary ordinary remedies of new trial, appeal, petition for relief, or other
remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available to petitioner
appropriate remedies are no longer available through no fault of
the petitioner. (n) ATTACK OF A VOID JUDGMENT

To avail of this remedy: The petitioner failed to move for new trial When the judgment is null and void on its very face, the judgment
in, or appeal from, or file a petition for relief against, or take other may be attacked:
appropriate remedies assailing the questioned judgment or final 1. Directly, or
order or resolution through no fault attributable to him When nullity is not apparent on the face of the
- If he failed to avail of those remedies without sufficient judgment, the judgment can only be attacked
justification, he cannot resort to annulment directly
An independent action must be filed to challenge
Where Filed: the validity of the judgment whose nullity is not
patent on its face
JUDGMENTS, FINAL ORDERS, JUDGMENTS, FINAL ORDERS, 2. Collaterally
OR RESOLUTIONS OF THE RTC OR RESOLUTIONS OF THE MTC It is made when, in another action to obtain a
Filed with the CA Filed with the RTC different relief, an attack on the judgment is
CA has exclusive and original RTC as a court of general made as an incident in said action
jurisdiction over said action jurisdiction under Sec. 19(6) BP This is proper only when the judgment is on its
under Sec. 9 (2) of BP 129 129 face null and void such as in cases of lack of
The CA may dismiss the case jurisdiction to render judgment
The RTC has no such discretion,
outright; it has the discretion
it is required to consider it as an EXTRINSIC FRAUD
on whether or not to entertain
ordinary civil action
the petition
Extrinsic or collateral fraud
A person who is not a party to the judgment may sue for its - Refers to any fraudulent act of the prevailing party in the
annulment provided that he can prove the same was obtained litigation which is committed outside of the trial of the
through fraud or collusion and that he would be adversely affected case, whereby the defeated party has been prevented from
thereby exhibiting fully and fairly presenting his side of the case
- It shall not be a valid ground if it was availed of, or could
Applicability have been availed of, in a motion for new trial or petition
- An action for annulment may be availed of even if the for relief
judgment sought to be annulled had already been fully
executed or implemented Condition precedent
- Note: Annulment of Judgment does not apply to judgments - Where the ground is based on extrinsic fraud, the remedy
rendered by quasi-judicial bodies. It does not apply also to is subject to a condition precedent:

130
Petitioner must allege that the ordinary SECTION 3 - Period for filing action.If based on extrinsic fraud,
remedies of new trial, appeal, petition for relief the action must be filed within four (4) years from its discovery;
or other appropriate remedies are no longer and if based on lack of jurisdiction, before it is barred by laches or
available through no fault of the petitioner estoppel. (n)
- Failure to comply will warrant dismissal of petition
EXTRINSIC FRAUD LACK OF JURISDICTION
Jurisprudence PERIOD OF 4 years from discovery Before it is barred by
1. The use of forged instruments or perjured testimonies FILING of fraud laches or estoppel
during trial is not an extrinsic fraud. Such evidence does Set aside the questioned
not preclude a partys participation in the trial (Bobis v. Court may on motion
judgment and render the
CA) order the trial court to
EFFECT OF same null and void,
2. There is extrinsic fraud when a party was prevented from try the case as if a timey
JUDGMENT without prejudice to the
having presented all of his case to the court as when the motion for new trial had
original action being re-
lawyer connives at his defeat or corruptly sells out his been granted
filed in the proper court
clients interest
Notes:
- There must be a manifest showing with petition that it was
LACK OF JURISDICTION filed within the 4-yr period
- The rule does not fix the period to annul judgment based
Lack of jurisdiction refers to either lack of jurisdiction over the on lack of jurisdiction but recognizes the principle of
person of the defending party or over the subject matter of the claim, estoppel as first laid down by Tijam v. Sibonghanoy
and in either case, the judgment or final order and resolution are For procedural purposes, the estoppel referred
void. to here is actually estoppel by laches, which is
that failure to do something which should be
In a petition for annulment of judgment based on lack of jurisdiction, done or to claim or enforce a right at a proper
petitioner must show an ABSOLUTE LACK of jurisdiction time
- Not merely abuse of jurisdictional discretion
- Lack of jurisdiction means absence of jurisdiction
The court should not have taken cognizance of SECTION 4 - Filing and contents of petition.The action shall be
the petition because the law does not vest it with commenced by filing a verified petition alleging therein with
jurisdiction particularity the facts and the law relied upon for annulment, as
The jurisdiction over nature of action or subject well as those supporting the petitioners good and substantial
matter is conferred by law cause of action or defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies,
NOTE: If the ground is lack of jurisdiction, there is no need to allege together with sufficient copies corresponding to the number of
and prove the condition precedent of the availability of other respondents. A certified true copy of the judgment or final order
remedies or resolution shall be attached to the original copy of the petition
intended for the court and indicated as such by the petitioner.
The defense of lack of jurisdiction may be barred by laches The petitioner shall also submit together with the petition
- Laches that failure to do something which should be affidavits of witnesses or documents supporting the cause of
done or to claim or enforce a right at a proper time or a action or defense and a sworn certification that he has not
neglect to do something which one should do or to seek or theretofore commenced any other action involving the same
enforce a right at a proper time issues in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is such
Jurisprudence other action or proceeding, he must state the status of the same,
1. The petitioner must show not a mere grave abuse of and if he should thereafter learn that a similar action or
discretion but an absolute lack of jurisdiction (Republic v. proceeding has been filed or is pending before the Supreme Court,
G Holdings Inc.) the Court of Appeals, or different divisions thereof, or any other
A claim of grave abuse of discretion will support tribunal or agency, he undertakes to promptly inform the
a petition for certiorari under Rule 65, but it will aforesaid courts and other tribunal or agency thereof within five
not support an action for annulment (50 days therefrom. (n)

The action shall be commenced by filing:


AS TO EVIDENCE 1. Verified petition, alleging therein:
a. With particularity, the facts and the law relied upon
Where an action for annulment is grounded on extrinsic fraud: b. Petitioners good and substantial cause of action or
- Extraneous evidence is admitted defense
Where an action for annulment is based on lack of jurisdiction 2. Filed in 7 legible copies together with sufficient copies
- Only evidence found in the records of the case can justify corresponding to the number of respondents
the nullity of the judgment 3. Certified true copy of the judgment or final order or
resolution shall be attached to the original copy of the
petition
OTHER GROUND 4. Affidavits of witnesses or documents supporting the cause
of action or defense; and
Although Sec. 2 provides that annulment of judgment or order may 5. Certificate of non-forum shopping
be based only on extrinsic fraud and lack of jurisdiction,
jurisprudence recognizes DENIAL OF DUE PROCESS as an additional
ground (Sps. Benatiro, et al. v. Heirs of Cuyos et al.)

131
The petitioner need not be a party to the judgment sought to be Procedure: The rule requires that the procedure in ordinary civil
annulled cases shall be observed
- What is essential is that the petitioner is one who can - Should trial be necessary, reception of evidence may be
prove his allegation that the judgment was obtained and referred to a member of the court or a judge of the RTC
that he was affected thereby (Alaban v. CA) Justice Feria notes that the reception of evidence
- It is a remedy independent of the case where judgment may not be referred to the RTC judge who acted
sought to be annulled is promulgated (Villanueva v. Nite) without jurisdiction or who was involved in the
extrinsic fraud
Just like motions for new trial and petitions for relief from judgment, - Hence, a motion to dismiss may be filed and a writ of
the verified petition for annulment must state: preliminary injunction may issue to prevent execution of
1. With particularity, the facts and law sustaining the ground judgment
therefor; and
This is a fundamental requirement Note: Res judicata is not a bar to an action for annulment of the
2. Those supporting the petitioners good and substantial judgment sought to be annulled (Orbeta v. Sendiong)
action or defense
This is equally important in order to convince
the court that something may indeed be SECTION 7 - Effect of judgment- A judgment of annulment shall
achieved should the petition be given due course set aside the questioned judgment or final order or resolution and
This 2nd requirement must further be supported render the same null and void, without prejudice to the original
by affidavits or documents showing, prima facie, action being refiled in the proper court. However, where the
the validity of petitioners claim 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
Note: The complaint must allege ultimate facts for the annulment of try the case as if a timely motion for new trial had been granted
the decision therein. (n)

SECTION 5 - Action by the court.Should the court find no EXTRINSIC FRAUD LACK OF JURISDICTION
substantial merit in the petition, the same may be dismissed Set aside the questioned
outright with specific reasons for such dismissal. Court may on motion
judgment and render the
Should prima facie merit be found in the petition, the order the trial court to
EFFECT OF same null and void,
same shall be given due course and summons shall be served on try the case as if a timey
JUDGMENT without prejudice to the
the respondent. (n) motion for new trial had
original action being re-
been granted
filed in the proper court
SECTION 6 - Procedure.The procedure in ordinary civil cases
shall be observed. Should a trial be necessary, the reception of the EFFECT OF ANNULMENT BASED ON LACK OF JURISDICTION
evidence may be referred to a member of the court or a judge of 1. The same shall be set aside and considered null and void
a Regional Trial Court. (n) 2. Aggrieved party may refile the action in the proper court
a. This may involve a different court of competent
Two Stages: jurisdiction
1. A preliminary evaluation of the petition for prima facie b. But where the reason for such annulment was
merit therein under Sec. 5, because of lack of jurisdiction over defendant, the
The rule allows the CA to dismiss the petition action may be refilled in the same original court
outright as in special civil actions provided it has proper jurisdiction and venue
2. The issuance of summons as in ordinary civil cases and
such appropriate proceedings thereafter as contemplated EFFECT OF ANNULMENT BASED ON EXTRINSIC FRAUD
in Sec. 6 1. The same shall be set aside and considered null and void
For the court to acquire jurisdiction over the 2. On motion of the prevailing party on justifiable grounds,
respondent, the rule requires the issuance of he may be allowed to no longer refile the action
summons should prima facie merit be found in a. The trial court which rendered the questioned
the petition and the same is given due course judgment shall be ordered to try the case anew

The action for annulment is a hybrid of special civil action and an


ordinary civil action SECTION 8 - Suspension of prescriptive period.The prescriptive
- Like in special civil actions, the CA can dismiss the petition period for the refiling of the aforesaid original action shall be
outright deemed suspended from the filing of said original action until the
- But unlike special civil actions or in original cases where finality of the judgment of annulment. However, the prescriptive
an order to comment would be sufficient for the court to period shall not be suspended where the extrinsic fraud is
acquire jurisdiction over respondent, the rule requires attributable to the plaintiff in the original action. (n)
issuance of summons should prima facie merit be found in
the petition and the same is given due course For purposes of computing prescriptive period within which the
same original action may be refiled as authorized in Sec 7, the
Taken altogether, the action may be dismissed: prescriptive period provided by law must first be considered
1. Outright if the initiatory pleading itself reveals lack of - From that period shall be deducted the length of time
merit from the very allegations thereof; or transpired from date when action was originally filed up to
2. Thereafter during the preliminary evaluation after the first the finality of the judgment which eventually annulled the
stage of the hearing, the same may likewise be dismissed questioned judgment of trial court
upon consideration of the evidence and arguments - Resulting balance of the prescriptive period may then be
adduced therefor availed of by aggrieved party for refiling of the same action

132
HOWEVER, if the extrinsic fraud resulted in the annulment of
judgment of the trial court is attributable to the plaintiff in the
original action, the suspension authorized by Sec. 8 will not apply
- Of course this presupposes that the action for annulment
was filed by defendant of the original action

SECTION 9 - Relief available.The judgment of annulment may


include the award of damages, attorneys 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)

Relief
- This may include the award of damages, attorneys fees
and other relief
- If the questioned judgment or final order or resolution had
already been executed:
Court may issue:
a. Such orders of restitution, or
b. Other relief as justice and equity may warrant
under the circumstances provided for in Sec. 5,
Rule 39

SECTION 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)

Sec. 19(6), in relation to Sec. 9(2), BP 129 is considered as the


jurisdictional basis for this power of the RTC to annul the judgments
or final orders of lower courts.

END OF RULE 47

133
NOTES ON RULE 47

134
Notes:
RULE 48 - In the CA, this procedural device may be availed not
PRELIMINARY CONFERENCE only in original actions but also in cases on appeal
wherein a new trial was granted on the ground of
newly discovered evidence
SECTION 1 - Preliminary conference.At any time during the - The CA can act as a trier of facts
pendency of a case, the court may call the parties and their Hence, preliminary conference is convenient adjunct
counsel to a preliminary conference. to such power and function
(a) To consider the possibility of an amicable settlement, - Rule 48 is also applicable to the SC in original and
except when the case is not allowed by law to be appealed cases (Sec 2 and 4, Rule 56)
compromised;
(b) To define, simplify and clarify the issues for
determination;
(c) To formulate stipulations of facts and admissions of NOTES ON RULE 48
documentary exhibits, limit the number of witnesses to
be presented in cases falling within the original
jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on
the ground of newly discovered evidence; and
(d) To take up such other matters which may aid the court
in the prompt disposition of the case. (Rule 7, CA
Internal Rules) (n)

PRELIMINARY CONFERENCE
- WHEN: At any time during pendency of a case
- HOW:
1. By calling the parties to a preliminary conference
2. Either or both parties may suggest the same to the
court upon motion and for valid reasons
- WHY:
1. To consider possibility of amicable settlements
Except when amicable settlements are
prohibited by law
2. To define, simply, clarify issues for determination
3. To formulate stipulations of facts, admissions of
documentary exhibits, limit number of witnesses to
be presented
4. To take up such matter which may aid the court in the
prompt disposition of the case
- SANCTION FOR FAILURE TO APPEAR:
Ground for dismissal of the petition (Sec. 1(h), Rule
50, Sec. 5(a), Rule 56)

SECTION 2 - Record of the conference.The proceedings at such


conference shall be recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the actions taken therein,
the stipulations and admissions made, and the issues defined. (n)

RECORD OF CONFERENCE
1. Proceedings shall be recorded
2. Upon termination, a resolution shall be issued
embodying all actions taken therein, stipulations and
admissions made, issues defined

SECTION 3 - Binding effect of the results of the conference.


Subject to such modifications which may be made to prevent
manifest injustice, the resolution in the preceding section shall
control the subsequent proceedings in the case unless, within five
(5) days from notice thereof, any party shall satisfactorily show
valid cause why the same should not be followed. (n)

EFFECT OF RESOLUTION Shall control subsequent proceedings in


- This may be modified to prevent manifest injustice
- A party may also contest the Resolution
Within 5 days from notice thereof
He must satisfactorily show valid cause why the same
should not be followed

135
RULE 49 NOTES ON RULE 49

ORAL ARGUMENT

SECTION 1 - When allowed.At its own instance or upon motion


of a party, the court may hear the parties in oral argument on the
merits of a case, or on any material incident in connection
therewith. (n)
The oral argument shall be limited to such matters as the
court may specify in its order of resolution. (1a, R48)

WHEN ORAL ARGUMENTS ALLOWED:


1. Motu proprio
2. Upon motion of a party

MATTERS COVERED:
1. On the merits of the case, or
2. Any material incident in connection therewith
3. Limited to such matters as the court may specify in its
order or resolution

SECTION 2 - Conduct of oral argumentUnless authorized by the


court, only one counsel may argue for a party. The duration
allowed for each party, the sequence of the argumentation, and all
other related matters shall be as directed by the court. (n)

CONDUCT OF ORAL ARGUMENT


1. Only one counsel may argue for a party
Unless authorized by the court
2. The court shall direct:
a. Duration allowed for each party
b. Sequence of argumentation
c. All other related matters

SECTION 3 - No hearing or oral argument for motions.


Motions shall not be set for hearing and, unless the court
otherwise directs, no hearing or oral argument shall be allowed in
support thereof. The adverse party may file objections to the
motion within five (5) days from service, upon the expiration of
which such motion shall be deemed submitted for resolution. (2a,
R49)

MOTIONS IN THE SC AND CA


- Motions in the SC and CA do not contain notices of hearing
as NO oral arguments will be heard in support thereof
Rule 15 requiring notice of hearing and proof of
service of notice of hearing does not apply here
What is required is proof of service
- If the appellate court desires to hold a hearing thereon, it
will itself set the date with notice to the parties
- Adverse party may file objections to the motion within 5
days from service
Upon expiration of which, such motion shall be
deemed submitted for resolution

END OF RULE 49

136
FUNDAMENTAL PRINCIPLE OF APPELLATE PROCEDURE
RULE 50
DISMISSAL OF APPEAL Strict Interpretation
- The general rule, and indeed a fundamental principle of
appellate procedure, is that decisions of a trial court which
SECTION 1 - Grounds for dismissal of appealAn appeal may be lie in its discretion will not be set aside on appeal
dismissed by the Court of Appeals, on its own motion or on that of But where the exercise of discretionary power by an
the appellee, on the following grounds: inferior court affects adversely the substantial rights
(a) Failure of the record on appeal to show on its face that of a litigant, the exercise of such discretion becomes a
the appeal was taken within the period fixed by these proper subject review on appeal
Rules; - Rules of procedure are tools designed to promote
(b) Failure to file the notice of appeal or the record on efficiency and orderliness as well as to facilitate
appeal within the period prescribed by these Rules; attainment of justice, such that strict adherence thereto is
(c) Failure of the appellant to pay the docket and other required
lawful fees as provided in section 4 of Rule 41; Application of the Rules may be relaxed only when
(d) Unauthorized alterations, omissions or additions in the rigidity would result in defeat of equity and
approved record on appeal as provided in section 4 of substantial justice
Rule 44; If petitioner has not presented any persuasive reason
(e) Failure of the appellant to serve and file the required for the court to be liberal, even pro hac vice, dismissal
number of copies of his brief or memorandum within of the appeal may be sustained
the time provided by these Rules;
(f) Absence of specific assignment of errors in the Liberal Interpretation
appellants brief, or of page references to the record as - Whenever non-compliance with the rules is not intended
required in section 13, paragraphs (a), (c), (d) and (f) of to delay the final disposition of the case, nor cause
Rule 44; prejudice to the adverse party, the Court has repeatedly
(g) Failure of the appellant to take the necessary steps for held that the dismissal of an appeal on mere technicalities
the correction or completion of the record within the may be stayed in the exercise of the courts equity
time limited by the court in its order; jurisdiction
(h) Failure of the appellant to appear at the preliminary - It is the courts policy to encourage hearings of appeals on
conference under Rule 48 or to comply with orders, the merits so that every party-litigant is afforded the
circulars, or directives of the court without justifiable amplest opportunity for the proper and just disposition of
cause; and his cause, unhampered by the constraints of technicalities
(i) The fact that order or judgment appealed from is not - Strong compelling reasons, such as serving the ends of
appealable. (1a) justice and preventing a miscarriage thereof, can warrant a
suspension of the rules
GROUNDS FOR DISMISSAL - Petitioner must provide persuasive and weighty reasons
A. As provided in Sec. 1, Rule 50 that would allow the court to exercise its discretion on
a. Failure of record on appeal to show on its face that whether or not to adhere to the strict requirement of law
appeal was taken within the period fixed by Rules
b. Failure to file notice of appeal or record on appeal Note: These grounds of dismissal of an appeal is DIRECTORY, not
within prescribed period mandatory (Advincula v. IAC)
c. Failure of appellant to pay docket and other lawful - This means that it is not ministerial duty of the court to
fees as provided in Sec. 4, Rule 41 dismiss the appeal
d. Unauthorized alterations, omissions, or additions in Rule 50 merely confers a power, not an imposition of
approved record on appeal as provided in Sec. 4, Rule duty
44 - Except Sec. 1(b) which is not merely directory, but is
e. Failure of appellant to serve and file required number mandatory
of copies of his brief or memorandum within time
provided by Rules Two Ways to dismiss:
f. Absence of specific assignment of errors in the 1. By the CA, motu proprio
appellants brief, or of page references to record as 2. By the appellee, upon motion
required in Sec. 13, (a), (c), (d), (f), Rule 44
g. Failure of appellant to take necessary steps for Procedure:
correction or completion of record within time 1. The CA may order, motu proprio, or the party may move,
limited by the court in its order upon motion, for the dismissal of the appeal
h. Failure of appellant to appear at preliminary 2. Upon notice of dismissal of the appeal, the adverse party
conference under Rule 48 or comply with orders, has 15 days from notice to file a MFR
circulars, directives of the court without justifiable 3. Procedure for MFR will be followed
cause a. Court can deny the MFR
i. Fact that the order or judgment appealed from is not b. Court can grant and reinstate the appeal
appealable
B. Other Grounds
a. By agreement of the parties (i.e. amicable settlement) DISCUSSION ON SOME GROUNDS
b. Where appealed case has become moot or academic
c. Where appeal is frivolous or dilatory Material Data Rule
- The record on appeal, whenever its filing is required, must
show on its face that the appeal was perfected on time
This is a jurisdictional requisite

137
Failure to do so warrants dismissal of the appeal - Liberal Interpretation
Even if briefs of both parties have already been The court has allowed the filing of an appeal in some
filed (Govt v. Antonio, et al.) cases where a stringent application of the rules would
- The certification of the record on appeal by the trial court have denied it only when to do so would serve the
after lapse of reglementary period does not restore such demands of justice and in the exercise of the Courts
lost jurisdiction (Alvero v. De la Rosa) equity jurisdiction
- The material data rule has been liberalized starting with The court has had occasions to suspend its own rules,
the case of Pimentel, at al. v. CA, et al. or to except a particular case from its operation,
- Motion to dismiss appeal for non-compliance of Sec. 1(a), whenever the purposes of justice require it
Rule 50: A more lenient interpretation is appropriate where
If filed with the appellate court, appellate court has to the dismissal of respondents appeal for failure to pay
evaluate (Ozaeta, Jr., et al. v. CA) docket fees was manifestly erroneous (Reyes v. Sps.
If filed with the court a quo, said appeal should not be Torres)
dismissed but the lower court should order the
amendment and completion thereof Want of Specific Assignment of Errors
- While want of specific assignment of errors is one of the
Failure to File Notice of Appeal v. Failure to File Brief within Period grounds, substantial compliance with the requirements is
sufficient
FAILURE TO FILE NOTICE OF FAILURE TO FILE BRIEF If the brief points out to the CA specific part of the
APPEAL WITHIN THE PERIOD appealed judgment which appellant seeks to
Not jurisdictional controvert, it is sufficient
Jurisdictional
May be waived by the parties If it informs the court which part of the decision is
Results in the abandonment of sought to be reviewed, it is sufficient
Decision becomes FINAL and
appeal, which could lead to - Pleadings should be construed liberally, in order that
EXECUTORY upon failure to
DISMISSAL upon failure to litigants may have ample opportunity to prove their
move for reconsideration
move for reconsideration respective claims, and that a possible denial of substantial
justice, due to legal technicalities, may be avoided
Failure to File Brief within Reglementary Period
- Is a ground for dismissal Frivolous Appeals
- The mere lapse of period to file appellants brief does not - As a general rule, an appeal should not be dismissed on a
automatically result in the dismissal of the appeal and loss ground which goes into the merits of the case or to the
of jurisdiction of the court rights of the parties to recover
After expiration of period, the appellate court still has - Yet, in exceptional circumstances, an appellate court may
to order the dismissal of the appeal upon motion or order dismissal when appeal appears to be manifestly and
motu proprio palpably frivolous
Party adversely affected by the dismissal still has a - A frivolous appeal is one presenting no justifiable
period of 15 days from notice of order to dismissal to question, or one so readily recognizable as devoid of merit
file a motion for reconsideration on the face of the record and that there is little, if any,
And the court can still reinstate the appeal if prospect that it can even succeed
motion for reconsideration is timely filed
- If the appeal brief cannot be filed on time, extension of
time may be allowed provided: SECTION 2 - Dismissal of improper appeal to the Court of
1. There is good and sufficient cause, and Appeals.An appeal under Rule 41 taken from the Regional Trial
2. The motion for extension is filed before the expiration Court to the Court of Appeals raising only questions of law shall
of time sought to be extended be dismissed, issues purely of law not being reviewable by said
But of course, liberality should never be presumed court. Similarly, an appeal by notice of appeal instead of by
- However, it need not necessarily cause dismissal of the petition for review from the appellate judgment of a Regional
appeal where the same was due to force majeure and a Trial Court shall be dismissed. (n)
request for extension was seasonably filed, with the brief An appeal erroneously taken to the Court of Appeals shall
thereafter actually filed (Padosas v. CA) not be transferred to the appropriate court but shall be dismissed
outright. (3a)
Failure to Pay Docket and Lawful Fees
- Payment of docket fee and other lawful fees within the An appeal improperly brought before the CA should be dismissed
period prescribed is both mandatory and jurisdictional outright pursuant to Sec. 2, Rule 50
Failure of appellant to conform with the rules on
appeal renders judgment final and executory Determination of Proper Mode
NOTE: This does not apply to a pauper litigant who is - It is within the competence of the trial court to determine
exempt from paying legal fees even in appellate whether the appeal interposed is based on pure questions
courts of law or mixed questions of fact and law, for the purpose
- However, failure to timely pay the docket fees does not of deciding on the correctness of the procedural mode of
automatically result in dismissal of the appeal appeal adopted by appellant, the court to which the appeal
It merely confers discretionary, not mandatory, is to be taken, and consequently, whether to give due
power to dismiss course thereto
This power must be exercised with sound discretion - Sec. 2. Rule 50 applies only when appeal is already brought
in accordance with the tenets of justice and fair play to the CA at which time it will determine whether the
with great deal of circumspection, considering the appeal was brought to the correct appellate court (Heirs of
attendant circumstances Ramon Pizarro Sr. v. Consolacion, et al.)

138
The following shall be dismissed for IMPROPER appeal Withdrawal of Appeal
1. Appeal under Rule 41 from the RTC to the CA raising only 1. Matter of Right Any time before filing appellees brief
questions of law 2. Matter of Discretion If appellees brief has been filed
2. Appeal by notice of appeal instead of by petition for review
from appellate judgment of RTC

Notes:
NOTES ON RULE 50
- The CA has no jurisdiction over appeals from decisions of
the RTC rendered in the exercise of its original jurisdiction
in cases where issues are purely of law
- Nature of issues raised can be gleaned from the appellants
notice of appeal and his brief
If it appears that only issues raised are legal and not
factual, appellate court is mandated to dismiss the
appeal
When facts are not in dispute, the issue is one of law
and should be appealed to the SC via Rule 45; appeal
to the CA should be dismissed as an erroneous appeal

Effect of Improper Appeal It shall not be transferred to the


appropriate court but shall be dismissed outright
- Remedy of appellant: To FILE in the PROPER FORUM
But it has to be within the prescriptive period

EXCEPTIONS:
1. Suspension of rules to serve the ends of substantial justice
E.g. in Cucueco v. CA, the CA reviewed, instead of
dismissing, an ordinary appeal raising questions of
law; had the court strictly applied the rule on
erroneous appeal and reversed the CA in remanding
the case to the RTC for trial, the erroneous decision of
the RTC granting the summary judgment would
become final
2. Not applicable in criminal cases

NOTE: In Atlas Consolidated Mining and Dev. Corp. v. CA, the SC


held that where the SC refers an appeal to the CA, the latter must
decide the case on the merits
- Sec. 2, Rule 50 allows a dismissal of an appeal by notice of
appeal instead of petition for review from appellate
judgment of RTC
- It does not provide for a dismissal of an appeal by petition
for review from an original judgment of RTC which should
be by notice of appeal
This is because the petition for review contains all the
requisites of notice of appeal

Jurisprudence
1. Where defendant-appellant appealed directly to the SC on
pure questions of law, while plaintiff-appellant appealed to
the CA on questions of law and fact, disputing the facts set
forth in defendant-appellants brief before the SC, the case
should be remanded to the CA which has jurisdiction
thereof (Hoey v. Aurelio & Co.)
2. A resolution of the CA dismissing the appeal and
remanding the case to the trial court for further
proceedings is merely interlocutory, hence a motion for its
reconsideration filed a year later may be entertained and
granted (Valdez v. Bagasao)

SECTION 3 - Withdrawal of appeal.An appeal may be with-


drawn as of right at any time before the filing of the appellees
brief. Thereafter, the withdrawal may be allowed in the discretion
of the court. (4a)

139
BY WHOM RENDERED By members of the court who
RULE 51 PARTICIPATED in the deliberation of the merits of the case BEFORE
JUDGMENT its assignment to a member for writing of decision

SECTION 1 - When case deemed submitted for judgment.A case SECTION 3 - Quorum and voting in the courtThe participation of
shall be deemed submitted for judgment: all three Justices of a division shall be necessary at the
A. In ordinary appeals. deliberation and the unanimous vote of the three Justices shall be
(1) Where no hearing on the merits of the main case is required for the pronouncement of a judgment or final
held, upon the filing of the last pleading, brief, or resolution. If the three Justices do not reach a unanimous vote,
memorandum required by the Rules or by the the clerk shall enter the votes of the dissenting Justices in the
court itself, or the expiration of the period for its record. Thereafter, the Chairman of the division shall refer the
filing. case, together with the minutes of the deliberation, to the
(2) Where such a hearing is held, upon its termination Presiding Justice who shall designate two Justices chosen by raffle
or upon the filing of the last pleading or from among all the other members of the court to sit temporarily
memorandum as may be required or permitted to with them, forming a special division of five Justices. The
be filed by the court, or the expiration of the period participation of all the five members of the special division shall
for its filing. be necessary for the deliberation required in section 2 of this Rule
B. In original actions and petitions for review. and the concurrence of a majority of such division shall be
(1) Where no comment is filed, upon the expiration of required for the pronouncement of a judgment or final resolution.
the period to comment. (2a)
(2) Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the PRONOUNCEMENT OF JUDGMENT OR FINAL ORDER
court, or the expiration of the period for its filing. 1. Participation of all 3 Justices of a Division shall be
(3) Where a hearing on the merits of the main case is necessary at deliberation
held, upon its termination or upon the filing of the 2. Voting in the Decision:
last pleading or memorandum as may be required a. Unanimous vote of the 3 Justices shall be required for
or permitted to be filed by the court, or the pronouncement
expiration of the period for its filing. (n) (1) If unanimous vote, pronouncement of judgment
or final order is proper
WHEN A CASE IS DEEMED SUBMITTED FOR JUDGMENT b. If no unanimous vote:
(1) Clerk shall enter the votes of the dissenting
A. In ORDINARY APPEALS Justices in record
1. If NO hearing on the merits: (2) Proceed to #3
a. Upon filing of last pleading brief, or 3. Chairman of Division shall refer the case to the Presiding
memorandum, required by the Rules or by court, Justice, the Chairman shall refer the following:
b. Or upon expiration of period for filing a. The case, and
2. If there was a HEARING ON THE MERITS of main case b. Together with the minutes of deliberation
a. Upon termination of hearing, or 4. Then, the Presiding Judge shall designate 2 Justices from
b. Upon filing of last pleading, or memorandum as among all other members of the court
may be required or permitted to be filed; or a. Done by raffle
c. Upon expiration of period of filing of (b) b. These 2 Justices will sit temporarily with the Division
to make a Special Division of 5
B. In ORIGINAL ACTIONS and PETITIONS FOR REVIE 5. Proceedings in the Special Division of 5:
1. If NO COMMENT filed upon expiration of period to a. For deliberation participation of all 5 Justices is
comment required
2. If NO HEARING: b. For voting concurrence of majority is necessary for
a. Upon filing of last pleading required or pronouncement
permitted to be filed by court; or
b. Upon expiration of period for filing See Also Rule VI, Internal Rules of the Court of Appeals
3. If there was a HEARING ON MERITS on the main case
a. Upon termination of hearing, or NOTE: To be binding, a judgment must be duly signed and
b. Upon filing of last pleading or memorandum as promulgated during the incumbency of the judge who signed it
may be required or permitted to be filed; or
c. Upon expiration of period for filing of (b) Jurisprudence:
1. Where the decision was promulgated after two of the
Notes: three justices necessary to constitute a quorum in a
- The determination of the date of submission of the case is division had lost their authority to act as justices, said
made doubly important by the fact that under the decision is null and void (Lao v. To-Chip)
Constitution, such date is the reckoning point for periods
for deciding or resolving the case or matter, and which
periods are now mandatory in nature SECTION 4 - Disposition of a case.The Court of Appeals, in the
- See Sec. 15, Art. VIII, 1987 Constitution exercise of its appellate jurisdiction, may affirm, reverse, or
modify the judgment or final order appealed from, and may direct
SECTION 2 - By whom rendered.The judgment shall be a new trial or further proceedings to be had. (3a)
rendered by the members of the court who participated in the
deliberation on the merits of the case before its assignment to a Under Sec. 9, BP 129, the CA has exclusive appellate jurisdiction over
member for the writing of the decision. (n) all final decisions and orders of the RTC.

140
- This refers only to cases appealed to it from the RTC from On Remand for Re-Trial or Further Proceedings
which the case originated - Where the CA directs a new trial or further proceedings,
- Like any other court, it is necessary that the CA must have the case shall ordinarily be remanded to court a quo
jurisdiction over the subject matter, parties, issues, and The CA is not a trier of facts
the res before it can decide the case However, under Sec. 5, EO 33, amending Sec. 9, par. 2,
- As such, it cannot acquire appellate jurisdiction over any of BP 129, the CA shall have power to receive
case not properly brought to it by the parties concerned evidence and perform any and all acts necessary to
resolve factual issues raised on:
Disposition of cases should be read in light of the limitations in: 1. Cases falling within its original jurisdiction, such
1. Sec. 15, Rule 44 on questions that may be raised on appeal as actions for annulment of judgments, and
2. Sec. 8, Rule 51 on questions that may be decided 2. In cases falling within its appellate jurisdiction
wherein a motion for new trial based only on the
Jurisprudence has laid down the rule that the SC has ample authority ground of newly discovered evidence is granted
to review and resolve matters not assigned and specified as errors by it
by either of the parties in the appeal if it finds the consideration and - Should the appellate court find that there was material
determination of the same essential and indispensable in order to error in the action or proceedings of the trial court, it may
arrive at a just decision of the case. direct a re-trial of the case
- However, where the appellate court remanded the case for
EXAMPLE: On appeal, the CA of a decision in an accion publiciana, further hearing, not for retrial, it does not mean that both
the CA may, aside from resolving issue on possession, resolve the parties would again present their respective sets of
issue of ownership if it appears that the land subject of the evidence
possessory action was subsequently sold to one of the defendants by
execution of a judgment in another case Example: Republic v. Garcia During pendency of appeal
- A supervening cause or reason had arisen which has by landowners from the decision fixing the price of land
rendered the decision of the court ordering respondents to for expropriation, a settlement for a higher price was
vacate the land no longer enforceable reached
- The supervening cause was a superior cause, suspending Appellant filed a motion to remand the case for new
the basis of judgment and making execution untenable trial so that additional evidence could be brought to
- See Heirs of Pedro Guminpin v. CA commissioners
Note however the holding in Maramaba v. Lozano The CA granted with instructions to make a new
which held that where petition alleges facts which decision, reaffirming, modifying, or reversing the
occurred after perfection of appeal, they should be existing report and decision accordingly
submitted to and passed upon by the trial court in
connection with the implementation of the order No Affirmative Relief for Appellee
appealed from - A party who does not appeal from the decision may not
obtain any affirmative relief from the appellate court other
ACTIONS OF THE CA: The CA may than what he has obtained from the lower court
1. Affirm the judgment below A party cannot impugn the correctness of a judgment
2. Modify, by eliminating some portion, or by adding not appealed from by him
something to it, leaving the remaining part of the judgment He may make counter-assignment of errors, he can do
below to stand affirmed and in full force and effect from so only to sustain the judgment on other grounds, but
date of original entry or rendition not seek modification or reversal
3. Reverse or entirely vacate the judgment and remand the He must appeal if he wants affirmative relief
case for a new trial - EXCEPTIONS: The appellate court may award
4. If a new trial is not necessary, it may upon reversal, 1. Legal interest in its discretion based on equitable
remand it with directions to enter a particular judgment grounds under Art. 2210
2. Attorneys fees may also be awarded
Preliminary Considerations: 3. Indemnity for death may be increased
- Jurisdiction of the appellate court ends after remand 4. Exemplary damages, in some cases, may be awarded
Where the case had already been remanded to the
trial court which had also rendered its decision, court
no longer has jurisdiction to resolve, by mere motion, SECTION 5 - Form of decision.Every decision or final resolution
issues on the right of the parties in the case of the court in appealed cases shall clearly and distinctly state the
When the case reaches the court again on appeal, only findings of fact and the conclusions of law on which it is based,
then will it regain jurisdiction over the case which may be contained in the decision or final resolution itself,
- Decision may be affirmed on other grounds relied upon by or adopted from those set forth in the decision, order, or
the lower court resolution appealed from. (Sec. 40, BP Blg. 129) (n)
- It is the duty of the court to apply legal provisions
- The court should pass upon all questions of law FORM OF DECISION (for DECISIONS or FINAL resolutions)
- Absent any substantial proof that the trial courts decision 1. Clearly and distinctly state the findings of fact
was grounded entirely on speculations, surmises, or 2. As well as the conclusions of law on which it is based
conjectures, findings of fact must be accorded full
consideration and respect The findings of facts and the conclusions of law:
- The lower courts must respect the final judgment of the SC 1. May be contained in the decision or final resolution itself,
As held in Ang Ping and Carmen Pimentel v. RTC or
Manila, the only function of the lower court when 2. Adopted by reference from those set forth in the decision,
judgment of a higher court is returned to it, is the order, or resolution appealed from (see Memorandum
ministerial one of issuing order of execution Decisions)

141
The above requirements are not required in Minute Resolutions EXCEPTIONS: The appellate court is accorded a broad discretionary
- Note that minute resolutions usually dispose of the case power to waive the lack of proper assignment of errors and to
not on its merits but on procedural or technical consider errors not assigned, in the following instances:
considerations 1. Errors affecting jurisdiction over the subject matter
2. Errors that are evidently plain or clerical errors within
For Petitions for Review and Motions for Reconsideration: contemplation of law
- The Constitution merely requires a statement of the legal 3. Errors not assigned on appeal but consideration of which
basis for the denial thereof or refusal to give due course is necessary in arriving at a just decision and complete
- The court may opt, but not required, to issue an extended resolution of the case, or to serve interests of justice, or to
resolution thereon avoid piece-meal justice
4. Errors not assigned on appeal but raised in the trial court
Memorandum Decisions is one rendered by an appellate court which and are matters of record having some bearing on the
incorporates by reference the findings of fact and conclusions of law issue submitted which the parties failed to raise or which
contained in the decision of the lower court. the lower court ignored
- The SC stressed that memorandum decisions should be 5. Errors closely related to an error assigned
sparingly used lest it becomes addictive excuse for judicial 6. Errors upon which determination of a question properly
sloth assigned is dependent
- May be employed in simple litigations only
Like ordinary collection cases NOTE: The procedure in the SC being generally the same as that in
the CA, unless otherwise indicated (see Sec. 2 and 4 Rule 56) it has
been held that the latter also is closed with ample authority to
SECTION 6 - Harmless error.No error in either the admission or review matters, even if they are not assigned errors on appeal, if it
the exclusion of evidence and no error or defect in any ruling or finds that their consideration is necessary in arriving at a just
order or in anything done or omitted by the trial court or by any decision of the case.
of the parties is ground for granting a new trial or for setting
aside, modifying, or otherwise disturbing a judgment or order, NOTE: This rule do not apply to criminal cases since the whole case
unless refusal to take such action appears to the court is open for review whether assigned or not
inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect which does not
affect the substantial rights of the parties. (5a) SECTION 9 - Promulgation and notice of judgment.After the
judgment or final resolution and dissenting or separate opinions,
The court, at every stage of the proceeding, must disregard any error if any, are signed by the Justices taking part, they shall be
or defect which does not affect the substantial rights of the parties delivered for filing to the clerk who shall indicate thereon the date
Errors such as: of promulgation and cause true copies thereof to be served upon
1. Admission or exclusion of evidence or the parties or their counsel. (n)
2. Those in the ruling or order
PROMULGATION
1. Judgment or final resolution, and dissenting or separate
SECTION 7 - Judgment where there are several parties.In all opinion, if any, are signed by the participating Justices
actions or proceedings, an appealed judgment may be affirmed as 2. These shall be delivered to the clerk
to some of the appellants, and reversed as to others, and the case 3. The clerk shall file the same and indicate the date of
shall thereafter be proceeded with, so far as necessary, as if promulgation
separate actions had been begun and prosecuted; and execution 4. The clerk shall cause true copies thereof to be served upon
of the judgment of affirmance may be had accordingly, and costs the parties OR their counsel
may be adjudged in such cases, as the court shall deem proper. (6)
NOTE: In justifiable situations or by agreement of the division, filing
Judgment were there are several parties: of dissenting or separate opinions may be reserved or the majority
1. Appealed judgment may be affirmed as to some of opinion may be promulgated without prejudice to the subsequent
appellants, reversed as to others issuance of a more extended opinion
a. Case shall proceed with, so far as necessary, as if - PROVIDED that the requisite votes for promulgation of
separate actions judgment have been obtained and recorded
2. Execution of judgment of affirmance may be had
accordingly
SECTION 10 - Entry of judgments and final resolutions.If no
appeal or motion for new trial or reconsideration is filed within
SECTION 8 - Questions that may be decided.No error which does the time provided in these Rules, the judgment or final resolution
not affect the jurisdiction over the subject matter or the validity of shall forthwith be entered by the clerk in the book of entries of
the judgment appealed from or the proceedings therein will be judgments. The date when the judgment or final resolution
considered unless stated in the assignment of errors, or closely becomes executory shall be deemed as the date of its entry. The
related to or dependent on an assigned error and properly argued record shall contain the dispositive part of the judgment or final
in the brief, save as the court may pass upon plain errors and resolution and shall be signed by the clerk, with a certificate that
clerical errors. (7a) such judgment or final resolution has become final and executory.
(2a, R36)
GENERAL RULE: The appellate court can only rule on the basis of
grounds as raised as errors on appeal If no appeal or motion for new trial or reconsideration is filed, entry
- Normally, appellate courts do not consider those errors of judgment shall follow
not properly assigned or specified
- See Sec. 15, Rule 44

142
ENTRY OF JUDGMENTS AND FINAL RESOLUTIONS NOTES ON RULE 51
1. Judgment or final resolution shall be entered by the clerk
in the book of entries of judgments
Date of entry = Date that the judgment or final
resolution becomes final and executory
2. The record shall:
a. Contain the dispositive part
b. Be signed by the clerk
c. Contain a certification that such judgment or final
resolution has become final and executory

Importance of Date of Entry


- In the trial courts, date of entry is important for purposes
of reckoning the periods involved in:
a. Petitions for relief of judgment under Rule 38; and
b. Petitions for revival of judgment under Rule 39
- In appellate courts, the entry is important for purposes of
execution of judgment (See Sec. 11)

SECTION 11 - Execution of judgment. Except where the


judgment or final order or resolution, or a portion thereof, is
ordered to be immediately executory, the motion for its execution
may only be filed in the proper court after its entry.
In original actions in the Court of Appeals, its writ of
execution shall be accompanied by a certified true copy of the
entry of judgment or final resolution and addressed to any
appropriate officer for its enforcement.
In appealed cases, where the motion for execution pending
appeal is filed in the Court of Appeals at a time that it is in
possession of the original record or the record on appeal, the
resolution granting such motion shall be transmitted to the lower
court from which the case originated, together with a certified
true copy of the judgment or final order to be executed, with a
directive for such court of origin to issue the proper writ for its
enforcement. (n)

GENERAL RULE: The motion for execution of judgment may only be


filed in the proper court after its entry

EXCEPTION: Where judgment or final order or resolution, or a


portion thereof, is ordered to be immediately executory

Note: Motion for execution may be filed only in the proper court;
hence, writ may be sought and issued by the court of origin:
A. In ORIGINAL ACTIONS in the CA:
1. CA issues the Writ of execution
Accompanied by a certified true copy of the
entry of judgment or final resolution
2. It shall be addressed to any appropriate officer for
enforcement
B. In APPEALED CASES,
1. Motion for discretionary execution of judgment of
trial court may be filed in the CA
PROVIDED that the CA is still in possession of
the original record or record on appeal
2. If the CA grants the Motion:
a. It will NOT issue a writ of execution
b. Instead, it shall be transmitted to the court of
origin
(1) Resolution shall be transmitted together
with a certified true copy of the judgment
or final order to be executed
(2) With directive for such court of origin to
issue the proper writ
3. BUT, where the appealed case has been finally
resolved and judgment has become executory:
a. This is now governed by Sec. 1, Rule 39

143
Effect, Disposition, of, MFR
RULE 52 - The filing of an MFR under Rule 52 does not impose on the
MOTION FOR RECONSIDERATION court the obligation to deal individually and specifically
with the grounds relied upon therefor
The motion contains merely a reiteration or rehash of
SECTION 1 - Period for filing.A party may file a motion for arguments already submitted to and pronounced
reconsideration of a judgment or final resolution within fifteen without merit by the Court in its judgment
(15) days from notice thereof, with proof of service on the - It suffices for the court to deal generally and summarily
adverse party. (n) with the MFR, and merely state a legal ground for its denial

Import of Denial of MFR


PERIOD FOR FILING MFR: 15 days from notice of judgment or final
- This signifies that the grounds relied upon have been
resolution
found to be without merit
- File:
a. The motion itself, with - Meaning, it can no longer be set up in a subsequent motion
or application to overturn the judgment
b. Proof of service on adverse party
- While denial of MFR usually is accompanied by the
modifier final or with finality, the absence of such
SECTION 2 - Second motion for reconsideration.No second
modifier is of no moment
motion for reconsideration of a judgment or final resolution by
the same party shall be entertained. (n) The modifier only stresses that the case is considered
close
SECOND MFR: Prohibited pleading if filed by the SAME party
SECTION 4 - Stay of execution.The pendency of a motion for
reconsideration filed on time and by the proper party shall stay
Note however Sec. 3, Rule 15 of Internal Rules of the SC
the execution of the judgment or final resolution sought to be
- GENERAL RULE: 2nd MFR is prohibited
reconsidered unless the court, for good reasons, shall otherwise
- EXCEPTION: 2nd MFR may be granted in the higher interest
direct. (n)
of justice; Requisites:
1. Must be granted by the SC en banc
2. Upon a vote of at least 2/3 of its actual membership EFFECT OF FILING MFR: Stay of execution
3. It must be for the HIGHER INTEREST OF JUSTICE: - UNLESS the court directs execution
Meaning, the assailed decision is not only legally Always for good reason
erroneous, but likewise patently unjust and
potentially capable of causing unwarranted and PROCEDURAL OUTLINE:
irremediable injury or damage to the parties 1. Court renders judgment or issues final resolution
4. It must be filed before the ruling sought to be 2. Within 15 days from notice of #1, a party may file MFR
reconsidered becomes final 3. Within 90 days from the declaration of the court that it be
Otherwise, it cannot be entertained submitted for resolution, court resolves the MFR
a. Court may grant or deny
Note also Art. VIII, Sec. 4(2) of the 1987 Constitution b. Pendency of MFR stays execution

NOTE: The prohibition against the filing of a 2nd MFR does not apply
to an Interlocutory Order NOTES ON RULE 52
- Sec. 11, BP 129 and Sec. 4 of the Interim Rules prohibits
the filing of a 2nd MFR of a final order or judgment
- The prohibition does not apply to an interlocutory order
A 2nd MFR attacking an interlocutory order may be
filed
- E.g. A 2nd MFR assailing an order suspending resolution on
appeal before the CA pending determination of the issues
in a civil case before the RTC cannot be rejected on the
ground that a 2nd MFR is prohibited since this prohibition
is not applicable to interlocutory orders

SECTION 3 - Resolution of motion..In the Court of Appeals, a


motion for reconsideration shall be resolved within ninety (90)
days from, the date when the court declares it submitted for
resolution. (n)

RESOLUTION OF MFR: 90 DAYS


- Counted from the date when the court declares it
submitted for resolution
This is usually upon the filing of the last pleading
required by the Rules or the Court
- Note also that this time limit applies ONLY to MFRs before
the CA; it does not apply to MFRs in the SC pursuant to the
exception in Sec. 2(b), Rule 56

144
SECTION 4 - Procedure in new trialUnless the court otherwise
RULE 53 directs, the procedure in the new trial shall be the same as that
NEW TRIAL granted by a Regional Trial Court. (3a)

PROCEDURE IN NEW TRIAL: Follow Sec. 37


SECTION 1 - Period for filing; ground.At any time after the
appeal from the lower court has been perfected and before the NOTE: Sec. 4 maintains the same reservation that the CA may direct
Court of Appeals loses jurisdiction over the case, a party may file a such departure from the procedure provided in Sec. 37 where
motion for a new trial on the ground of newly discovered adherence thereto may result in injustice in cases pending before it
evidence which could not have been discovered prior to the trial or in the adjudication thereof
in the court below by the exercise of due diligence and which is of
such a character as would probably change the result. The REMEMBER: The only ground for New Trial before the CA is Newly
motion shall be accompanied by affidavits showing the facts Discovered Evidence, no FAME.
constituting the grounds therefor and the newly discovered - In trial courts, a 2nd motion for new trial may be filed
evidence. (1a) where the ground therefor did not exist at the time the
first motion was filed
PERIOD FOR FILING MFNT: - A 2nd motion would not be possible in the CA where the
1. At any time AFTER the appeal from lower court is only ground is newly discovered evidence
perfected, AND
2. BEFORE the CA loses jurisdiction over the case Review: Rules 52 and 53 in relation to Rule 45

GROUND: Newly Discovered Evidence A. Within 15 days from notice of judgment or final resolution
Said evidence must be that: of the Court of Appeals
a. Which could not have been discovered prior to the trial in 1. A Motion for Reconsideration may be filed
the court below by the exercise of due diligence; and File with the CA with copies served on adverse
b. Which is of such a character as would probably change the party
result 2. A Motion for New Trial may be filed
Note that this motion may be filed at any time
MANNER OF FILING AFTER perfection of appeal from RTC and up to
1. File the motion itself but within 15 days from service of CA judgment
2. Attach an affidavit of merit File with the CA with copies served on adverse
party
Showing the facts constituting the ground therefor
3. A Petition for Review on Certiorari to the SC may also
And the newly discovered evidence
be filed
Unless the party files either of the first 2
NOTE: Rule 53 is NOT applicable to the SC since it is not a trier of
File with the SC with copies served on adverse
facts
party
SECTION 2 - Hearing and order.The Court of Appeals shall
B. If a party files a motion for reconsideration or new trial
consider the new evidence together with that adduced at the trial
1. Remember: File with the CA
below, and may grant or refuse a new trial, or may make such
2. The CA will act on the motion
order, with notice to both parties, as to the taking of further
3. If the CA denies the motion:
testimony, either orally in court, or by depositions, or render such
a. Party has a fresh 15-period from receipt of the
other judgment as ought to be rendered upon such terms as it
resolution denying the motion to appeal by
may deem just. (2a)
certiorari
4. In both instances, the rule on effects of pro forma
HEARING ON THE MOTION: motions shall be observed
1. CA shall consider the new evidence
2. Also the evidence adduced at trial below
C. If a party decides to appeal directly with an appeal by
ORDER OF THE COURT: certiorari under Rule 45
1. CA may grant or refuse a new trial 1. He should comply with all requirements of Rule 45
2. CA may also make such order as to taking of further 2. Within the 15-day period:
testimony (orally or by depositions) a. He must file petition sufficient in form and
3. CA may also render such other judgment as ought to be substance
rendered upon such terms as it may deem just b. He can also file a Motion for Extension upon
compliance with Sec. 2, Rule 45
SECTION 3 - Resolution of motionIn the Court of Appeals, a 3. A party whose motion for new trial or
motion for new trial shall be resolved within ninety (90) days reconsideration as denied and who desires to appeal
from the date when the court declares it submitted for resolution. by Rule 45 may also file a Motion for Extension
(n) Compliance with Sec. 2 still
Preparatory to and for purposes of filing his
RESOLUTION: Resolution within 90 days counted from the date petition
when the court declares it submitted for resolution

NOTE: This time limit is not applicable to the SC since the provisions END OF RULE 53
of Rule 53 are not applicable to the SC

145
RULE 54 NOTES ON RULE 53 and 54

INTERNAL BUSINESS

SECTION 1 - Distribution of cases among divisions.All the cases


of the Court of Appeals shall be allotted among the different
divisions thereof for hearing and decision. The Court of Appeals,
sitting en banc, shall make proper orders or rules to govern the
allotment of cases among the different divisions, the constitution
of such divisions, the regular rotation of Justices among them, the
filing of vacancies occurring therein, and other matters relating to
the business of the court; and such rules shall continue in force
until repealed or altered by it or by the Supreme Court. (1a)

DISTRIBUTION OF CASES
1. All cases of CA shall be allotted among the CA divisions
a. This is for hearing and decision
2. CA en banc shall make proper orders or rules to govern:
a. Allotment of cases
b. Constitution of divisions
c. Regular rotations
d. And other internal matters

See the Internal Rules of the Court of Appeals

SECTION 2 - Quorum of the court.A majority of the actual


members of the court shall constitute a quorum for its sessions en
banc. Three members shall constitute a quorum for the sessions
of a division. The affirmative votes of the majority of the members
present shall be necessary to pass a resolution of the court en
banc. The affirmative votes of three members of a division shall
be necessary for the pronouncement of a judgment or final
resolution, which shall be reached in consultation before the
writing of the opinion by any member of the division. (Sec. 11,
first par. of BP Blg. 129, as amended by Sec. 6 of EO 33). (3a)

QUORUM OF THE CA
1. Majority of actual members of the CA shall constitute
quorum for en banc sessions
a. Affirmative votes of majority of members present
shall be necessary for a resolution en banc
2. Three members shall constitute quorum for division
sessions
a. Affirmative votes of the three members shall be
necessary for pronouncement
b. This shall be reached in consultation before writing of
decision

See the Internal Rules of Court of Appeals

END OF RULE 54

146
RULE 55 NOTES ON RULE 55

PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS

SECTION 1 - Publication.The judgments and final resolutions of


the court shall be published in the Official Gazette and in the
Reports officially authorized by the court in the language in which
they have been originally written, together with the syllabi
therefor prepared by the reporter in consultation with the writers
thereof. Memoranda of all other judgments and final resolutions
not so published shall be made by the reporter and published in
the Official Gazette and the authorized reports. (1a)

PUBLICATION
1. It shall be published in the OG and in the Reports officially
authorized by the Court
2. In the language in which they have been originally written
3. Together with the syllabi therefor prepared by the
reporter in consultation with the writers thereof
4. Memoranda of all other judgments and final resolutions
not so published shall be made by the reporter and
published in the OG and authorized Reports

SECTION 2 - Preparation of opinions for publication.


The reporter shall prepare and publish with each reported
judgment and final resolution a concise synopsis of the facts
necessary for a clear understanding of the case, the names of
counsel, the material and controverted points involved, the
authorities cited therein, and a syllabus which shall be confined to
points of law. (Sec. 22a, R.A. No. 296) (n)

SECTION 3 - General make-up of volumes.The published


decisions and final resolutions of the Supreme Court shall be
called Philippine Reports, while those of the Court of Appeals
shall be known as the Court of Appeals Reports. Each volume
thereof shall contain a table of the cases reported and the cases
cited in the opinions, with a complete alphabetical index of the
subject matters of the volume. It shall consist of not less than
seven hundred, pages printed upon good paper, well bound and
numbered consecutively in the order of the volumes published.
(Sec. 23a, R.A. No. 296) (n)

Official reports of court decisions which are published by the


Government and therefore constitute primary authority thereon, are
those published in the Philippine Reports, Official Gazette, and Court
of Appeals Reports, all of which are authorized by law.

END OF RULE 55

147
PROCEDURE IN THE B. APPEALED CASES
SECTION 3 - Mode of appealAn appeal to the Supreme Court
SUPREME COURT may be taken only by a petition for review on certiorari, except in
criminal cases where the penalty imposed is death, reclusion
perpetua or life imprisonment. (n)

Mode of Appeal to the SC: Rule 45


RULE 56
PROCEDURE IN THE SUPREME COURT SECTION 4 - Procedure.The appeal shall be governed by and
disposed of in accordance with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections 1, 2, and 5 to 11 of Rule
A. ORIGINAL CASES 51, 52 and this Rule. (n)

SECTION 1 - Original cases cognizable.Only petitions for Procedures followed:


certiorari, prohibition, mandamus, quo warranto, habeas corpus, 1. Applicable provisions of the Constitution
disciplinary proceedings against members of the judiciary and 2. Rule 45
attorneys, and cases affecting ambassadors, other public 3. Rule 48
ministers and consuls may be filed originally in the Supreme 4. Rule 51 Sec. 1, 2 and 5 to 11
Court. (n) Sec. 3 and 4 are not applicable since these refer to
quorum and procedure for voting which is peculiar to
The following cases may be ORIGINALLY filed with the SC the CA and the second is with regard to the
1. Petition for certiorari, prohibition, mandamus, quo disposition of the case by said court which includes a
warranto, habeas corpus granting of new trial which is not exercised by SC
2. Disciplinary proceedings against members of the judiciary 5. Rule 52
and attorneys 6. Rule 56
3. Cases affecting ambassadors, other public ministers, and
consuls, and
4. Petitions for writ of amparo and habeas data SECTION 5 - Grounds for dismissal of appeal.The appeal may be
dismissed motu proprio or on motion of the respondent on the
SECTION 2 - Rules applicable.The procedure in original cases following grounds:
for certiorari, prohibition, mandamus, quo warranto and habeas (a) Failure to take the appeal within the reglementary
corpus shall be in accordance with the applicable provisions of period;
the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, (b) Lack of merit in the petition;
subject to the following provisions: (c) Failure to pay the requisite docket fee and other lawful
(a) All references in said Rules to the Court of Appeals shall fees or to make a deposit for costs;
be understood to also apply to the Supreme Court; (d) Failure to comply with the requirements regarding
(b) The portions of said Rules dealing strictly with and proof of service and contents of and the documents
specifically intended for appealed cases in the Court of which should accompany the petition;
Appeals shall not be applicable; and (e) Failure to comply with any circular, directive or order
(c) Eighteen (18) clearly legible copies of the petition shall of the Supreme Court without justifiable cause;
be filed, together with proof of service on all adverse (f) Error in the choice or mode of appeal; and
parties. (g) The fact that the case is not appealable to the Supreme
The proceedings for disciplinary action against members of the Court. (n)
judiciary shall be governed by the laws and Rules prescribed
therefor, and those against attorneys by Rule 139-B, as amended. DISMISSAL OF APPEAL:
(n) 1. Motu proprio, or
2. On motion of respondent
Rules applicable to the SC:
1. Rule 46 Original actions in the CA GROUNDS FOR DISMISSAL:
2. Rule 48 Preliminary Conference 1. Failure to appeal within reglementary period
3. Rule 49 Oral Argument 2. Lack of merit of petition
4. Rule 51 Judgment 3. Failure to pay docket and lawful fees and deposit
5. Rule 52 Motion for Reconsideration 4. Failure to comply with requirements on proof of service,
6. Rule 56 Procedure in the Supreme Court, contents, and documents accompanying petition
5. Failure to comply with circular, directive, or order of SC
The said rules are subject to the following provisions: without justifiable cause
a) All references to the CA shall be understood to also apply 6. Error in choice of mode of appeal
to the SC 7. The case is not appealable to the SC
b) Portions dealing strictly with and specifically intended for
appealed cases in the CA shall not be applicable; and Note: The grounds for dismissal of appeals in the SC vary in a
c) EIGHTEEN legible copies of the petition shall be filed number of respects from those in Rule 50 for the CA since the appeal
a. Together with PROOF OF SERVICE on all adverse in civil cases to both courts differ in mode and requirements for
parties perfecting appeal, as well as pleadings and proceedings required
thereafter

148
SECTION 6 - Disposition of improper appeal.Except as provided NOTES ON RULE 56
in section 3, Rule 122 regarding appeals in criminal cases where
the penalty imposed is death, reclusion perpetua or life
imprisonment, an appeal taken to the Supreme Court by notice of
appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court
from the Regional Trial Court submitting issues of fact may be
referred to the Court of Appeals for decision or appropriate
action. The determination of the Supreme Court on whether or
not issues of fact are involved shall be final. (n)

Erroneous Appeal means error in the choice of mode of appeal


- E.g. where appeal taken to SC is by notice of appeal instead
of a petition for review on certiorari
- First paragraph

Improper Mode of Appeal means the choice or mode of appeal is


correct but the appellant raises issues which the court could not
resolve
- E.g. where a petition for review on certiorari was taken but
factual issues are invoked for resolution
- Note: determination of the SC on WON issues of fact are
involved are final
- Second paragraph

ACTION OF THE SC:


1. In Improper Mode of Appeal, the case may be:
a. Referred to the CA, or
b. Dismissed
2. In Erroneous Appeal, the case is dismissed outright

SECTION 7 - Procedure if opinion is equally divided.Where the


court en banc is equally divided in opinion, or the necessary
majority cannot be had, the case shall again be deliberated on,
and if after such deliberation no decision is reached, the original
action commenced in the court shall be dismissed; in appealed
cases, the judgment or order appealed from shall stand affirmed;
and on all incidental matters, the petition or motion shall be
denied. (11a)

PROCEDURE IF OPINION IS EQUALLY DIVIDED


- This procedure is followed if:
a. SC en banc is equally divided in opinion, or
b. Necessary majority cannot be had
1. The case shall again be deliberated on
2. If after such deliberation no decision is reached:
a. If Original Action it shall be dismissed
b. If Appealed Case judgment or order appealed from
shall stand affirmed
(1) On incidental matters, petition or motion shall
be denied

END OF RULE 56

149
COMPARATIVE TABLE OF THE MODES OF APPEAL
Based on the codal provisions of Rule 40, 41, 42, 43, and 45
Supplement this with the procedural provisions of Rules 44, 46, 50, 56 as applicable

WHEN PROPER
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
ORDINARY APPEAL PETITIONS FOR REVIEW
Matter of Right; Filed with the court of origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of origin Filed with the appellate court
Appeal from a decision of the RTC Appeals to the SC from a judgment
Appeal from a judgment or final
in the exercise of its original or final order or resolution of the
order of a MTC
jurisdiction CA, Sandiganbayan, CTA en banc,
RTC (original jurisdiction) or such
Appeals from awards, judgments,
other courts as may be authorized
Appeal from a decision of the RTC final orders or resolution of or
by law
rendered in the exercise of its authorized by any quasi-judicial
Decisions, final orders, or
Rule 41 provisions shall apply to Rule 40 if not consistent with Rule 40 appellate jurisdiction agency in the exercise of its quasi-
resolutions of the CA in any case,
provisions judicial functions
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by filing
a petition for review,
WHERE TO FILE
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Filed with the MTC Filed with the RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to the CA Appeal to the CA Appeal to the CA Appeal to the SC
Questions of fact or mixed Questions of fact or mixed Questions of fact, Questions of law, Questions of fact, Questions of law, Only Questions of Law
questions of fact and law questions of fact and law or Mixed questions of both or Mixed questions of fact and law

TIME FOR FILING


RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Within 15 days from:
1. Notice of judgment, final
Within 15 days from: order, or resolution
BY NOTICE OF APPEAL Within 15 days from notice of 1. Notice of award, judgment, appealed from, or
Within 15 days after notice of judgment or final order decision, or final order, or resolution OR 2. Notice of denial of
Within 15 days from notice of 2. Date of publication, if motion for new trial or
BY RECORD ON APPEAL denial of petitioners motion for publication is required by law reconsideration filed in
Within 30 days from notice of judgment or final order by filing a notice of new trial or reconsideration for its effectivity, OR due time after notice of
appeal and a record on appeal 3. Denial of petitioners MNT or judgment
MFR (only one MFR allowed)

150
EXTENSION OF TIME FOR FILING
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45

The CA may grant an additional 15


The SC may grant an extension of
days within which to file the Extension of an additional 15 days
30 days, upon:
petition for review provided: 1. Extension is granted upon:
1. Motion duly filed and served;
1. There was a motion filed to a. Motion for extension and
and
this effect b. Payment of full docket fees
Period to appeal may be extended by filing MOTION FOR EXTENSION 2. Payment of docket and lawful
2. Payment in full of docket fees c. BOTH within the
Extension must be done within reglementary period to appeal fees and deposit for costs
and other lawful fees as well reglementary period
But such extension is addressed to the sound discretion of the court 3. And for justifiable reasons
as deposit for costs 2. No further extension shall be
Motion does not suspend running of period for perfecting appeal 4. He must show:
3. To be done within the granted
If no action is taken thereon or it is denied after the lapse of the period, a. Good cause
reglementary period a. EXCEPT for the most
right to appeal is lost b. The requisite proof of
compelling reasons
service of motion on
After that, no further extension (1) In such case, additional
respondents
may be granted EXCEPT for the extension shall not
c. As well as payment of
most compelling reason and in no exceed 15 days
fees
case to exceed 15 days

FORM OF PETITION AND MANNER OF FILING


RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Ordinary Appeal Ordinary Appeal Petition for Review Verified Petition Verified Petition
BY NOTICE OF APPEAL 1. Original copy is filed 1. File a VERIFIED petition for 1. File VERIFIED petition
1. File a notice of appeal with court that rendered the judgment or final intended for the court review with the CA a. Filed in 18 copies
order appealed from 2. Petition shall also be in 7 a. File it in 7 legible copies b. Original copy intended
2. The notice of appeal must indicate legible copies b. Attach proof of service of for the court and
a. Parties 3. Accompanied by clearly a copy to adverse party. indicated as such
b. Judgment or final order or part thereof legible duplicate originals or And court or agency a quo 2. To accompany the filing of
c. Material date showing timeliness true copies of judgments or c. Original copy of petition the VERIFIED petition
3. A copy served on the adverse party; and final orders of both lower is for CA as indicated a. Payment of docket and
4. Payment in full of docket fees and other lawful fees courts 3. Upon filing, pay the docket other lawful fees and
a. Proof of payment to be transmitted with original records a. Certified correct by the and lawful fees as well as a deposit of P500 for costs
RTC clerk P500 deposit for costs b. Proof of service of the
BY RECORD ON APPEAL b. Also with pleadings and a. Where? To the CA Clerk petition to adverse party
1. Form and contents of the record on appeal shall be as provided in other material portions b. Exemption from payment and lower court
Sec. 6, Rule 41 of record as would may be granted by the CA:
2. A copy served on the adverse party; and support the allegations (1) File VERIFIED
3. Payment in full of docket fees and other lawful fees of the petition motion for
a. Proof of payment to be transmitted with record on appeal 4. Pay the corresponding exemption setting
docket fee and other forth the valid
lawful fees and grounds therefor
depositing P500 for costs (2) If CA denies motion,
5. Furnish the RTC and the party must pay
adverse party a copy of within 15 days from
the petition notice of denial
The appellant shall pay MTC Clerk Appellant shall pay to RTC Clerk
full amount of the appellate court full amount of the appellate court
docket and other lawful fees. docket and other lawful fees Note: In petitions for review under Rules 42, 43, and 45, the corresponding docket fee is paid in the appellate
Proof of payment shall be Proof of payment of said fees shall courts
transmitted to RTC together with be transmitted to CA together with
the original record or the record the original record or record on
on appeal, as the case may be appeal
151
CONTENTS OF PETITION
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
IF BY NOTICE OF APPEAL

Notice of Appeal must specify the following matters:


1. Parties to the appeal
2. Judgment or final order or part thereof appealed from
3. The court to which the appeal is being taken; and
4. The material dates showing the timeliness of the appeal

IF BY RECORD ON APPEAL
1. Contents:
a. Full names of all the parties stated in the caption 1. State full names of the parties
b. Judgment or final order from which the appeal is taken, a. Appealing party = as
c. In chronological order, copies of only such pleadings, petitions, Petitioner
1. Statement of full names of
motions, and all interlocutory orders as are related to the b. Adverse party = as
parties to the case
appealed judgment or final order for the proper understanding of Respondent
a. Without impleading court
the issue involved c. Do not implead lower
or agencies
d. Together with such data as will show that the appeal was 1. Full names of the parties courts or judges
2. Concise statement of facts
perfected on time a. Without impleading the 2. Indicate material dates
and issues involved and
2. If an issue of fact is to be raised on appeal: lower courts or judges showing:
grounds relied upon for
a. Record on appeal shall include by reference all the evidence, thereof a. When notice of judgment
review
testimonial and documentary, taken upon the issue involved 2. Specific material dates or final order or resolution
3. Accompanied by:
b. Reference shall specify the documentary evidence by: showing timeliness of appeal was received
a. Clearly legible duplicate
(1) Exhibit numbers or letters by which it was identified when 3. Concise statement of: b. When a motion for new
original or a certified true
admitted or offered at hearing a. Matters involved trial or reconsideration, if
copy of award, judgment,
(2) And the testimonial evidence by the names of the b. Issues raised any, was filed
final order, or resolution
corresponding witnesses c. Specification of errors of (1) When a denial thereof
appealed from
3. If the whole testimonial and documentary evidence in the case is to fact or law, or both was received
b. Certified true copies of
be included d. Reasons or arguments 3. Concise statement of:
such material portions of
a. A statement to that effect will be sufficient without mentioning relied upon a. The matters involved
record referred to in the
the names of the witnesses or numbers or letters of exhibits 4. A certificate of non-forum b. Reasons or arguments
petition and other
4. Every record on appeal exceeding 20 pages must contain a subject shopping must also be relied on
supporting papers
index attached 4. Accompanied by a clearly
4. Certificate of non-forum
5. Then the record is submitted for approval legible duplicate original, or a
shopping
certified true copy of the
5. Statement of specific material
Upon filing of record on appeal for approval and if no objection is filed by judgment or final order or
dates showing timeliness of
appellee within 5 days from receipt of a copy thereof resolution certified by the
appeal
1. Trial court may: clerk of court and court a quo
a. Approve it as presented; or 5. Certificate of non-forum
b. Direct its amendment shopping
(1) Upon its own motion, or
(2) At the instance of the appellee
2. If trial court orders amendment of record:
3. Appellant shall redraft the record
a. Within the time limited in the order
b. Or such extension as may be granted
c. If no time fixed, within 10 days from receipt
4. He shall then submit the redrafted record for approval
a. With notice to appellee
b. Same manner as in original draft

152
GROUNDS FOR DENIAL
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
NOTE: An order disallowing or dismissing an appeal is not appealable as provided under Sec. 1, Rule 41
If proper appeal is disallowed, remedy is MANDAMUS
WHEN THE COURT OF ORIGIN CAN DISMISS THE APPEAL Failure to comply with any of the following requirements shall be sufficient ground for DISMISSAL:
1. Prior to transmittal of original record to appellate court, or 1. Payment of docket and lawful fees
2. Prior to transmittal of record on appeal to appellate court 2. Deposit for costs
HOW? The Court, motu proprio; or On motion to dismiss appeal by party 3. Proof of service of petition
GROUNDS: 4. Contents of petition
1. Appeal was taken out of time 5. Documents which should accompany the petition
2. Non-payment of docket and lawful fees within reglementary
period

Note: These are the only grounds when the court of origin can dismiss the
appeal. Grounds under Rule 50 may only be invoked by the appellate
The CA (Rule 43) or SC (Rule 45) will not give it due course and dismiss the petition if it finds the same to be:
court
a. Patently without merit
b. Prosecuted manifestly for delay; or
Note also that under Rule 40, failure to file the mandatory appellants
The questions raised therein are too unsubstantial to require consideration
brief is a ground for dismissal.
Note further that under Ordinary Appeal, appeal is a matter of right so
there is no provision on the appellate court giving due course to the
appeal
FOR GROUNDS OF DISMISSAL
SEE RULE 50
COMMENT OR BRIEF BY ADVERSE PARTY
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
FORM OF COMMENT
1. Comment filed in 7 legible
FORM OF COMMENT
copies
1. Filed within 10 days from
2. Accompanied by certified
notice In 7 legible copies
true copies of such material
2. Accompanied by the
Upon receipt of complete record or portions of the record
following documents:
record on appeal: referred to therein
a. Clearly legible certified
1. RTC Clerk shall notify the 3. Together with other
true copies of such
parties of such fact supporting papers
material portions of the
2. Within 15 days from such 4. Copy of the comment served
record referred to therein
notice There is no similar provision as on petitioner
b. And such other Depends on the discretion of the
a. Duty of appellant to submit that under Rule 40 but it would
supporting documents SC; The SC may require pleadings
memorandum seem that a similar procedure will CONTENTS: The comment shall:
3. Copy of Comment served on and documents pursuant to Sec. 7,
b. Copy of which shall be be followed 1. State whether or not he
petitioner Rule 45
furnished to the adverse See Rule 44 accepts the statement of
3. Within 15 days from receipt matters involved in the
CONTENTS OF COMMENT: The
of appellants memorandum petition
Comment shall:
a. Appellee may file his 2. Point out such insufficiencies
1. Point insufficiencies or
memorandum or inaccuracies as he believes
inaccuracies in petitioners
exist in petitioners statement
statement of facts and issues
of matters but without
2. State reasons why petition
repetition
should be denied or
3. Reasons why the petition
dismissed
should not be given due
course

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ACTION OF THE COURT ON THE PETITION
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
CA may give due course if CA finds The SC may require pleadings and
Remember: Under this Rule,
In these cases, appeal is a matter of right prima facie that court or agency documents for purposes of:
appeal is discretionary on the CA
It becomes ministerial for the court to follow the procedures if a party has committed errors of fact or law 1. Sec. 5 -- Determining
which may give its due course only
seeks to appeal that would warrant reversal or whether the petition
when the petition shows prima
modification should be dismissed or
facie that the lower court has
However, the court of origin can dismiss the case prior to transmittal of 1. Upon filing of comment or denied; or
committed error
the records to the appellate court on the 2 grounds specified such other pleadings or 2. Sec. 8 where petition is
documents as may be given due course
The CA may give due course ONLY
Appellate court will also proceed accordingly, following Rule 40, Sec.8 required or allowed by the
when the petition shows prima
CA
facie that the RTC has committed
2. Or upon expiration of such
error of fact or law that will
period of filing
warrant reversal or modification
The CA may also dismiss the same
The CA may:
1. Require respondent to file a comment on the petition within 10 days
from notice; or
2. Dismiss the petition if it finds the same to be:
a. Patently without merit
b. Prosecuted manifestly for delay; or
c. The questions raised therein are too unsubstantial to require
consideration

154
PROCEDURE AFTER GIVEN DUE COURSE OR PERFECTION OF APPEAL
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Within 15 days from perfection of
Duty of Clerk Upon Perfection
appeal:
Within 30 days after perfection of
1. MTC Clerk shall transmit to
all appeals, the RTC clerk shall:
the proper RTC:
1. Direct the stenographers to
a. The original record or
do the transcripts which will
record on appeal
then be delivered to the RTC
b. Together with the
Clerk
transcripts and exhibits
2. Verify and Certify
c. Clerk shall certify as
completeness of original
complete PROCEDURE FOR TRANSMITTAL
record or record on appeal
2. Clerk shall also furnish the OF RECORD
3. Verify completeness of
parties a copy of his letter of 1. Within 15 days from notice
records that will be
transmittal of the records to that petition has been given
transmitted to appellate
the appellate court due course
court
2. CA may require court or
4. If found to be incomplete:
Upon receipt of complete record or Elevation of Record Only when the agency concerned to transmit
(1) Take such measures to
record on appeal: CA deems it necessary original or legible certified
complete
1. RTC Clerk shall notify the 1. CA may order the RTC true copy of entire record of
(2) If efforts to complete fail:
parties of such fact Clerk to elevate the proceeding under review
(a) Indicate in letter of
2. Within 15 days from such original record of the a. This may be abridged by
transmittal exhibits
notice case the agreement of all parties
or transcripts not
a. Duty of appellant to submit 2. Including the oral and to the proceedings
included Elevation of Records
memorandum documentary evidence 3. CA may also require or
(b) Reasons If petition is given due course , The
b. Copy of which shall be 3. Within 15 days from permit subsequent correction
(c) Steps taken or that SC MAY require the elevation of
furnished to the adverse notice or addition to record
could be taken the complete record or specified
3. Within 15 days from receipt
5. Transmit records to parts within FIFTEEN DAYS from
of appellants memorandum It is merely discretionary on the CA PROCEDURE UP TO SUBMISSION
appellate court notice
a. Appellee may file his to order elevation of the records FOR DECISION
(1) Furnish parties with
memorandum because until petition is given due 1. If petition is given due course
copies letter of
4. Upon filing of memorandum course, RTC may still issue a 2. CA may:
transmittal
of appellee, or expiration of warrant of execution pending a. Set the case for oral
(2) The following shall
period to do so appeal and in some cases such as argument, or
accompany the
5. Case considered submitted ejectment and Summary b. Require parties to submit
transmittal:
for decision Procedure, judgments are memoranda within 15
a. Proof of payment of
immediately executory days from notice
CA docket fees
3. Upon filing of last pleading or
b. Certified true copy of
memorandum required, case
minutes of
is deemed submitted for
proceedings
decision
c. Order of approval
d. Certificate of
correctness
e. Original documentary
evidence referred to
f. Original transcripts
plus 3 copies of such
g. Transcripts
h. Certified true copies of
documentary
evidence

155
EFFECT OF APPEAL
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
GENERAL RULE: Perfected appeal GENERAL RULE: Appeal shall not
stays the challenged judgment or stay the award, judgment, final
final order order or resolution sought to be
reviewed
EXCEPTIONS:
1. Unless the CA, law, or Rules, EXCEPTION: When the CA shall
provide otherwise direct otherwise upon such terms
2. Also in civil cases decided as it may deem just
under the Rule on Summary
Procedure
Appeal is deemed perfected as to
petitioner upon:
1. Timely filing of petition and
2. Payment of docket and lawful
fees
IF BY NOTICE OF APPEAL: Court loses jurisdiction over the case upon
perfection of appeal filed in due time and expiration of the time to appeal
RTC loses jurisdiction over the
of the other parties
case upon
1. Perfection of appeals filed in
IF BY RECORD ON APPEAL: Court loses jurisdiction over the subject
due time; and
matter of the case upon approval of the records on appeal filed in due
2. Expiration of the time to
time and expiration of time to appeal of other parties
appeal of the other parties
3. RTC may exercise its residual
jurisdiction before the CA
gives due course to the
petition
If lower court dismissed case without trial on the merits, the RTC may: If petition is given due course
If the petition is given due course:
1. Affirm, if ground of dismissal is lack of jurisdiction over subject CA may:
1. Case may be set for oral
matter 1. Set the case for oral
argument, or
a. The RTC, if it has jurisdiction, shall try case on the merits argument, or
2. The parties may be required
2. Reverse, and remand the case for further proceedings 2. Require parties to submit
to submit memoranda within
memoranda within 15 days
15 days from notice
If the case was tried on the merits by lower court without jurisdiction from notice
3. Case shall be deemed
over subject matter: 3. Upon filing of last pleading
submitted for decision upon
1. RTC shall not dismiss if it has original jurisdiction or memorandum required,
filing of last pleading or
It shall decide the case, and shall admit amended pleadings or additional case is deemed submitted
memoranda
evidence for decision

156
END OF PART 2

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