RULE 45
or judgment denying an MR is not appealable and even
Sesbreo [A] v CA
A sued B with estafa.
B filed a motion to quash due to lack of JD. [Denied]
After prosecution rested its case, B filed a MTD on
demurrer to evidence [Denied]
B filed a petition for certiorari before CA. CA granted
because the transaction was a loan. A actively
participated in the proceeding in the CA.
A filed a petition assailing the jurisdiction of CA
because the issue is purely a question of law which the
SC has jurisdiciton. A alleged that filing a MTD on
DTE, B admitted the truth and allegation in the info.
The only question left is whether or not, based on the
facts obtained in the case, B is liable.
! CA has no jurisdiction because issue is purely a
question of fact, which is with SCs JD.
QL when the doubt or differences arises as to what
the law is on certain state of facts
QF when the doubt or differences arises as to the
truth or the falsehood of alleged or when the query
necessarily invites calibration of the whole evidence
considering mainly the
credibility of the witness
the existence and relevancy of specific surrounding
circumstances
their relation to each other and to the whole
the probabilities of the situation
BUT since A actively participated in the proceeding in
the CA, he is now estopped from questioning the
jurisdiction of CA.
Republic v Ortigas
O filed a case in RTC to allow the sale of unutilized lot
which were previously reserved by DPWH. No one
opposed from the RP. RTC granted the petition for
authority to sell to RP.
MR was filed by RP saying that the land can only be
conveyed to it through donation DENIED
RP filed a NOA.
CA dismissed the appeal on the ground that the order
if appealable, only raised QL, hence SC has JD.
!An appeal from denial of MR is effectively an appeal
of the final decision or order. However, wrong mode
of appeal.
!Appeal from RTC to CA must raise QF or both QL
and QF, if only QL, it is not reviewable by CA. The
appeal will not be transferred to the proper court but
will be dismissed.
QL does not involve the examination of the probative
value of the evidence. IT rest solely on the application
of a law given the circumstances. QF is required to
examine the truth or falsity presented. IT invites review
of evidence.
Issue here is whether or not the property can only be
conveyed to RP through donation, QL.
Local Superior v Jody King
J filed in RTC for breach of contract and collection
against L in a construction project.
RTC ruled in favor of J.
Appealed to CA, but CA affirmed.
L filed a petition for review of certiorari to SC on the
ff issues:
1. There were indeed changed orders, but all
covered by fixed price
2. No significant alternations
! L is raising QF which is beyond the SCs domain.
Findings of fact of the TC are entitled to great weight
on appeal and should not be disturbed except for
strong and valid reasons because the TC is in better
position to examine the demeanor of the witnesses.
Exception: [CS MMDA- CCRA]
1. Factual findings of CA and the TC are
contradictory
2. Conclusion is a finding grounded entirely on
Speculation, surmises, or conjecture
3. Interference by CA from findings of facts is
manifestly Mistaken, absurd, or impossible
4. When the judgment of CA is premised on
Misapprehension of facts
 5. Grave abuse of Discretion in appreciation of
facts CA denied because it was not accompanied by order
6. When the CA, in making its findings, went denying motion to exempt and the relevant and
beyond the issue of the case and such are pertinent documents such as the motion. MR denied.
contrary to Admissions of both appellant and MR again denied.
appellee
7. Findings of fact are themselves Conflicting SC- T filed 65 again on sole issue that the property was
8. Findings of fact are conclusion without a family home.
Citation of the specific evidence on which they
are based ! First, wrong mode of remedy. Should have filed 45.
9. CA failed to notice certain Relevant fact which, CA decisions are in the nature of final disposition by
if properly considered, would justify a different CA and which are appealable through 45.
conclusion
10. Findings of fact of the CA are premised on Even so, there is still no GADELAJ because the
Absence of evidence but such findings are requirements were not complied with. In order to relax
contradicted by evidence on record. the requirements, the ff must be present:
1. 65 was filed within the relementary period
Perez v CA within which to file a 45
Not present. Wrong reckoning period.
Ejectment case was filed with Provincial DARAB for 2nd MR is not allowed and could not
non-payment of lease rentals and sub-leasing without have tolled the period. Hence, start
consent of the owner. Provincial DARAB dispossessed counting from notice of 1st MR denial.
R. 2. errors of judgment are averred
3. there is sufficient reason to justify the
However, DARAB reversed and set aside saying that relaxation of 45.
there was proper payment and no sub-leasing.
45 65
MR was denied by DARAB Purpose Correction based Correction of
on error of law jurisdiction
Filed Pet for Review in CA. CA affirmed DARAB. or [fact] [GADALEJ}
Manner SC exercises Original
22 days later, filed 65 based on issue on rental payment. of filing appellate JD and jurisdiction and
power of review. independent of the
! Wrong remedy. 65 is not a remedy for lost appeal. In IT is trial that had
this case, there is a plain, speedy, and adequate remedy continuation of resulted in the
through 45. 65 and 45 are mutually exclusive remedies, original suit rendition of
not cumulative. Neglect in choice of remedies merits judgment
outright dismissal. complained of
Parties Original parties Aggrieved party
Nonetheless, determination of rental payment is a against lower
factual issue. court, QJ, and the
prevailing parties
[Q: if no QL, what is your remedy?] Subject Judgment or Judgments or final
matter final orders and orders
Tagle v EPCI those declared Interlocutory
by ROC as orders
RTC T filed Motion to Stop Writ of Possession on appealable
the ground that the property is a Family Home, exempt Period of 15 days from 60 days from
from execution. filing notice of notice of
judgment or judgment, order,
RTC denied. MR denied again. denial of MR or or resolution or
MNT denial of MNT or
CA- T filed 65. MR
 MR No Yes.
needed?
San Miguel v Mandaluyong
RTC S filed specific performance and damages
against M for failure to construct and transfer to them
the houses covered under MOA.
M filed an answer, but it was signed by a private
counsel, not the Office of City Legal Officer.
S filed a Motion to Declare in Default because answer
filed was mere scrap of paper.
RTC denied motion because not clear refusal to
comply with order. MR denied.
CA S filed 65. CA denied because the person who
signed the verification and CNFS was not authorized
by S. MR denied.
SC- S sought issuance of writ against CA
! For 65 to prosper, the ff must be alleged in the
petition:
1. writ is directed against a ribunal, board, or
officer exercising J or QJ functions
2. such tribunal, board, or officer has acted
without, or in excess of JD, or with GADALEJ
3. there is no appeal or any other plain, speedy, or
adequate remedy in the ordinary course of law
CA wanted to nullify orders of dismissal which are
final. Hence, proper remedy is 45, not 65.
If there are other available remedies, 65 is not allowed
unless such remedy is inadequate, insufficient, and not
speedy enough to address the urgency of the matter.
No special circumstance as well to relax the rule on
verification signature.
[Q: denial or grant of motion to declare in default
interlocutory order - 65]
Doa Adela v Trade Investments
RTC D filed a Petition for voluntary insolvency.
Granted.
A motion for parties to enter into compromise
agreement was filed. T and D entered into a dacion en
pago by compromise agreement. RTC approved.
RTC - D filed MR for there is no express waiver of his
part to allow the examination of bank deposits.
Denied.
SC D filed 45 contending that waiver is not required
to be expressed under RA 1405
! Judgment based on compromise agreement is final
and unappealable. However, if the consent is acquired
through fraud. The party can file MNT or MR if within
15 day period.
BUT direct recourse is allowed if pure question of law,
such as in this case.
RULE 38
Que v CA
RTC - R filed annulment of quitclaim against U and Q
claiming she did not sign the quitclaim.
Summons were issued. U appeared and manifested that
Atty L, lawyer of Q, manifested was still preparing the
answer
RTC ordered them in default.
RTC granted annulment
RTC Atty M, new lawyer, filed an MR. RTC denied
because it was pro forma due to lack of affidavit of
merit nor is there merit in substance
RTC Atty N, 3rd lawyer, filed 38. Failure to file answer
and MR was due to excusable negligence of previous
counsel. In addition, they claim that there was mistake
and fraud because they thought Atty L was preparing
the necessary pleading. 38 denied.
CA filed 65. Denied for failure to file within 60 day
period.
! Sec 1, Rule 38. Judgment taken against a party through
FAME
Mistake mistake of fact, not of law.
Fraud extrinsic or collateral fraud which prevented
the aggrieved party from having a trial or presenting his
case to courts.
Negligence must be excusable and generally
imputable to the party, not the counsel. GR, negligence
of counsel is binding to the client. Exception:
1. reckless or gross negligence of counsel that
deprives the client of due process of law
This case, mere simple negligence
 2. when the rules application will result in
outright deprivation of the clients liberty or
property
3. interest of justice so require
38 was filed out of time. The MR did not suspend the
running of the period for 38 because the MR was filed
out of time, hence, did not toll the period.
Also, the date of receipt of copy of decision was not
specified.
38 is an equitable remedy, a remedy of last resort. Only
when no other remedy could have been availed of.
[What if MR was not mere scrap of paper more so
not available because there is another remedy available]
Mesina v Meer
R is the owner of land. Discovered that it was already
in the name of B
MTC R filed cancellation of TCT, with notice of lis
pendens
TCT was transferred by B to M
B never appeared and was declared in default. M
participated actively in defense.
MTC in favor of M, as purchaser in good faith
MTC R filed MR. Denied
Appealed to RTC
RTC reversed. Not purchaser in good faith.
CA M appealed. But CA affirmed RTC
CA M filed 38 after the 15 day period to appeal has
lapsed due to fraud and mistake.
1. Fraud there was collusion between R and B
in MTC. Had B testified as to the authenticity
of the DOS, could have been in their favor.
2. Mistake delay of counsel
! 38 must be filed in the same court which rendered the
decision. MTC can not decide petition on 38.
38 does not apply to decision of CA. 38 only covers
MTC and RTC. CA and SC procedure is different.
! they should have questioned the alleged collusion at
earliest opportunity
! negligence of counsel binds M.
[if within appeal period, mag MNT ka]
LBP v Natividad
RTC N filed for determination of just compensation.
RTC rendered in favor of N and ordered DAR to pay
RTC DAR filed MR. Denied because pro forma due
to lack of notice of hearing.
Appeal period lapsed.
RTC DAR filed 38 alleging excusable negligence
attaching two affidavits of merit claiming that failure to
include notice of hearing was due to accident or
mistake because the lawyer merely scanned and signed
the MR. Denied.
SC filed petition for review. Excusable negligence
and should have exhausted admin remedy.
! The mayabang lawyer. Negligence must be excusable.
Must be one which ordinary diligence and prudence
could not have guarded against.
Gomez v Montalban
RTC G filed collection of sum of money against M.
M failed to answer and was declared in default.
RTC in favor of G.
Received decision in 05/14/2004
RTC M filed 38 in RTC in 05/28/2004 [14 days after
receipt] saying that no proper service of summons
because there was no personal service.
Hearing was conducted. But again, M did not appear.
38 was dismissed.
RTC MR was filed. Failure to appear was due to
human shortcomings for counsel. Granted and set
aside the decision due to lack of JD
SC filed 45
!Question of jurisdiction is a QL Here, he was not even prevented to file his appeal, in
Aptness of 38 QL fact he filed one.
Hence, direct appeal to SC was proper
Mere farmer, but failed to point to any circumstance.
RTC erred in granting 38. 38 can only be a remedy for
final judgment or order. In this case, the 15 day appeal
period has not yet lapsed. Therefore, not yet final.
Furthermore, there are other remedies available in case
declared in default: Dela Cruz v Quizon
1. Before judgment - Motion under oath to set
aside order of default on FAME and Provincial DARAB Q filed complaint for
meritorious defense nonpayment of rent in leasehold contract. Dismissed
2. Rendered but not yet final MNT because no abandonment
3. If final Rule 38, Sec 1
4. Or appeal PDARAB MR. Denied
5. Certiorari if GADALEJ
Alleging that she just knew that her counsel died. Filed
No COA to file 38. 38.

Mistake not apply to judicial error which the court She knew the death and should have filed MR.
might have committed in the trial. Such may be
corrected on appeal
Fraud extrinsic

The certificate of service of summons is prima facie

evidence

Redena v CA

RTC R filed partition case. RTC rendered decision

RTC R filed NOA

CA directed R to file an appellants brief. Despite

extension, R failed. So the appeal was considered
abandoned and was dismissed

8 months after.

CA R filed MR denied

CA R filed 38 (2) Denied because 38 is not proper

in CA

! based on Sec 7, only lower court can entertain 38(2).

Remedies available to CA are 47, 52, 53 BUT not 38

Sec 2 presupposes that no appeal was taken. Hence,

cannot be taken in CA because CA exercises appellate
JD. It should be filed in where the case from which
petition arose.
RULE 47
Alma v Strata
RTC - S filed a collection case against A. Summons
were served to Atty. B
No answer was filed. In default. RTC in favor of S.
RTC A filed 38 because they just received the
summons pass the appeal period. Atty B was not
authorized to receive summons for them
RTC 38 dismissed for filing out of time and there is
presumption that they knew of the summons
CA filed 65. [proper remedy for denial of 38, one
carved out in 41]
CA A filed 47. Denied because they have already
availed of 38.
! The ground was lack of JD over the persons, not
extrinsic fraud. It is only extrinsic fraud which is
excluded as a valid ground for annulment if it was
availed of, or could have been availed of in MNT or
38.
[filing of 38 before does not bar 47, unless ground is
EF]
Ramos v Combong
RTC declared R to be half owner.
CA affirmed
SC affirmed.
CA filed 47. Denied for failure to state material dates
and attach affidavit.
! If based on EF 4 years from discovery. If LJD
before laches or estoppel sets in. In this case the basis
was alleged EF because they cannot understand
Spanish. This is EF. They were not deprived of their
day in court.
While Rule 47 does not explicitly require that a
statement of material dated accompany petition, there
must be a manifest showing in the petition that it was
filed within the 4 year period. Otherwise, can be
dismissed.
Alaban v CA
RTC allowed the probate filed by P on the will
RTC 4 months later, filed motion to reopen due to
LJD for non payment of docket fee, no publication,
lack of notice to heirs.
RTC denied motion to reopen.
CA filed 47 due to feining interest in participating in
compromise agreement so that they will not participate
in the probate. Hence due to EF and LJD, the decision
is void
CA denied for failure to show that they have not
availed of other remedies through no fault of their
own.
! They even availed of MNT in 3 months, they could
have availed of 38 as well. Also, failure to notify them
is not a jurisdictional requisite, but a mere procedural
convenience because they were not specified as heirs.
Only executor, devisee, legatee named in the will and
other person interested in the will needs specific notice.
There was publication as general notice that covered
them. As nephews and nieces, they are not compulsory
not testate heirs. Hence, no EF.
[if discovered within 60/6 = file 38 first unless they
are not parties to the case]
[they are parties to the case, hence they can file 38]
Ancheta v Ancheta
RTC H field annulment of marriage. Indicated a
wrong address of wife, with his knowledge. W was
declared in default. Marriage was annulled.
CA W filed 47. Denied for failure to state that no
other remedies available due to no fault of her.
! EF subject to condition that no other remedies,
hence, must be alleged and must also explain why not
availed of.
BUT petition was also based on LJD for failure to
acquire JD over her person since no summons were
received. If LJD no need to allege that no other
remedies because it may be invoked anytime, unless
barred by laches.
RP v G Holdings
RTC G filed specific performance against RP to close
sale. RTC ruled in Gs favor.
CA filed NOA on CA. Dismissed because wrong.
Nothing happened.
CA filed 47. Failure to file NOA in proper forum is
EF and also LJD because RTC decided the case even
prior to RP submitting formal offer of evidence
CA denied 47. They are claiming for GADALEJ, not
lack of JD.
! For 47, not GADALEJ but pure absence of
jurisdiction.
JD is not the same with exercise of JD. JD is the
authority to decide the cause, not the decision rendered
therein. The decision is but an exercise of JD. Errors
that may be committed is mere errors of judgment
subject to appeal.
Furthermore, no GADALEJ. Even those not formally
offered but attached in the pleadings can be part of
evid. No EF
Senatiro v Cuyos
RTC filed for compromise agreement as to the
partition of estate of father. It was stated that Atty. T
that in the compromise agreement arrived at, 3 of the
9 heirs were not present because they could not be
located. In the compromise agreement, lot was sold to
B.
CA filed 47 due to lack of due process. CA granted
and annulled the order
! proper annulment due to LACK OF DUE
PROCESS. Nothing in the records show that the
telegrams were indeed sent. No evidence that they
indeed convened because no proof as to this.
A void JG never acquires finality, unless barred by
laches. 24 years is not laches as long as years were
accounted for.
Gregorio v RTC
RTC cancelled Gs TCT due to nullity of the
compromise agreement.
CA filed 47 due to LJD because RTC decision was a
collateral attack on his title of the land. Dismissed
because because RTC has JD to annul. It was G
himself who intervened and submitted the case as
subject matter. He is barred by laches.
! Affirmed CA. If court already has JD, ruling upon it
are mere errors of judgment reviewable by appeal, not
47.
[Lack of JD:
1. Over persons summons and permutations
2. Over subject matter BP 129
3. Cases where procedure is necessary to acquire
JD [publication in spec pro cases]
Grande v UP
RTC dismissed the action for recoveyance filed by G
because UP was an innocent purchaser for value.
Became final
A year later...
SC G filed 47 because allegedly they were not able to
appeal because their counsel neglected to inform them
of the denial.
! 47 only applies for nullification of judgments of RTC
decisions in civil cases and can only be filed with the
CA. It does not pertain to nullification of judgment of
CA.
The only mode of appeal cognizable by SC is 45.
It cannot treat petition as 65 because it was even filed
out of time for filing 65.
Genato v Barrientos
Treasurer of Caloocan sold land of G in public auction
for failure to pay RPT. G was not aware of the
proceedings. Records show that there were no posting
nor notices set to G.
RTC consolidated title and issued WP.
A notice to vacate was received by G.
CA filed 47. But was denied because they should have
filed an action for reconveyance on ground of fraud
! 47 should have been granted. GR, final orders can no
longer be disturbed, except if 38 or 47. Only available
remedy here is 47
Cannot file reconveyance because to do so would
require court to modify decision of co-equal courts.
[LJD 3rd type]
Taeo v Navotas
Treasurer assessed T for RPT. T claimed that already
prescribed. N issued warrant of levy.
RTC filed motion to quash. RPT imposed was
violative of right to due process for being
unconscionable.
RTC dismissed the case for lack of JD. Should have
appealed to LBAA, then CBAA
RTC T filed MR. RTC reversed and said prescribed
already
RTC T filed Motion to Clarify judgement. RTC said,
not quashed, but only liable for years not prescribed.
RTC T filed MR. Denied
CA filed 47. But was dismissed for:
1. No grounds of EF or LJD
2. Not state date receivd
3. No affidavit of service
4. Position paper not attached
CA T filed MR. T said that they properly resorted to
65 when they actually filed as 47
! belated submission of documents will not cure the
defect. They even admitted the mix up on remedies,
Doctrine of immutability
1. To avoid delay in admin of justice
2. To put an end to judicial controversies
No need to stat exact words of EF or LJD, but must
be crafted in such a manner that you can establish the
ground.
[even a non-party can go to 47]
[if 47 denied > 45 but only if QL, if only QF thats
the end of it]
[47 is an original action]
[kalikasan]
[prescriptive period is suspended, unless it is plaintiff
in orig actions fault]
[if MTC error file in RTC]
RULE 121 and 122
Pobre v CA
Order granting bail is an interlocutory order which can
is proper subject of 65. However, even if the ROC
provides that no person charged with capital offense
shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal
prosecution does not mean that the ROC on 65 as to
the 60 day period will no longer be followed.
Here it was filed 13 days late.
Tamayo v CA
RTC convicted T of arson with PM-RT penalty
CA T appealed by filing NOA. CA ordered to file
brief, but failed, so dismissed due to abandonment.
CA T filed MR and asked for extension
CA denied because 41 days have already lapsed since
filing of MR, yet still failed to submit appellants brief
! but he was waiting for the resolution of the MR.
[NOA is jurisdictional; no brief abandonment of
appeal]
People v Latayada
RTC convicted L for carnapping with homicide and
was sentenced to suffer death. Before judgment, he
escaped from jail.
GR: appeal should be dismissed if:
1. Non filing of appellants brief, except if
represented by counsel de officio
 2. Accused escaped pending appeal, of jumps of
bail or flee to foreign country, or did not appear Order granting or denying probation is not appealable
to court

Exception: automatic review in case of death penalty

Vitto v CA

RTC convicted V of homicide with penalty of PM

RT

CA filed an appeal. But ever since, they have

remained at large for failure to post bail on appeal.
Issued an order to explain why the appeal should not
be dismissed due to failure to file appellants brief

CA dismissed for failure to file AB

CA filed motion for leave of court to file AB. Not

appear because from farm in Mindoro and no money
to go to Manila. CA denied

SC filed 65.

CA has right to dismiss. Reasoning is not warranted.

Quesada v DOJ

An complaint charging estafa was filed.

Prosecutor found probable cause

DOJ Q filed Pet for Review. DOJ dismissed. MR

denied

RTC pending case in RTC, Q filed 65 to SC alleging

that SOJ acted GADALEJ

! violated hierarchy of courts. Should have filed 65 to

CA then 45 to SC.

[If below RP, D, or LI no need to appeal to OP]

Yu v Tatad

Neypes rule apply in criminal cases similarly to 40, 42,

43, 45.

If not apply then civil cases will be better than criminal

cases

Tan v People

If pure question of law CA has JD.