REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
JURISDICTION
When we are talking about jurisdiction about the subject
matter or the nature…. Then prescriptions, statute on
imitation, all other grounds for motion to dismiss are no
longer there…. They have been transferred to rule 8 of the
rules of court.
If there is a proper venue to an answer------interpose it as an
affirmative defense. That “this is an improper venue”
In fact the court does not even have to hear it anymore—the
court can motto proPio issue an order dismissing the
complaint or improper venue. Pero the same ang effect.
Can you state a cause of action?
You have to allege that as an affirmative defense.
One of the major innovation (ito talaga ang pinaka matindi
ang effect) that the grounds for motion to dismiss has been
transposed, in fact yung 4 grounds for motion to dismiss e
andon na sa rule 15 e.
MOTION TO DISMISS
What are prohibited motions?
All the prohibited motion.
Motion to dismiss, except 1234.
So, you cannot file a motion to dismiss on the ground of
improper venue, failure to comply with condition precedence,
lack of capacity, failure to state cause of action. But they are
interposed as an affirmative defense. And if you file a motion
to dismiss on those grounds, pwede pa rin.
Kaya lang they cannot go over the provisions over rule 16 but
go over the provisions of rule 15 of roc.
We said before that there are only 3 pleadings in the rules of
court, it’s no longer 2.
Complaint, answer, reply and rejoinder. That if ever the reply
alleges an actionable document then you will file a rejoinder.
Pero the rule says you can file a rejoinder. The rule does not
require you to file a rejoinder, but it is your option to file or
not to file a rejoinder.
What are the kinds of pleadings?
Lagyan pa rin ninyo ng affirmative defenses pero rule says,
AFFIRMATIVE DEFENCES MAY INCLUDE LACK OF
JURISDICTION, we do not invoke it… diba sabi natin nung
araw, if you do not invoke the grounds for motio to dismiss,
like prescription, statute of limitations, or lack of jurisdiction,
FEBRUARY 7, 2020
if you do not invoke it in a motion to dismiss, you can invoke
them as affirmative defenses. And have the affirmative
defenses set for hearing. Those are the only affirmative
defenses heard by the court.
So pwede gawing affirmative defenses ang lack of jurisdiction
over the subject matter.
What are the affirmative defenses?
Pareho lang ng grounds ng motion to dismiss. The affirmative
defense of waiver, condonation, compromise, and statute of
frauds,
Yun ang nadagdag ay rejoinder, yun ang ginagawa nung araw
e.
Even if there is no rejoinder that is allowable, lawyers still
file, subject to the condition that you file a rejoinder if the
reply alleges an actionable document. But for you to file it or
not, that is optional on your part. Because the rule says you
may file a rejoinder. Because if you are going to file that
rejoinder, the condition is…. Diba complaint – answer – reply,
the reply is already an actionable document. What you have
to file a rejoinder. The say MAY, it is not mandatory.
Tapos yung verification. O inispecify ang signature yung
significance or importance ng signature as Party or lawyer e.
that it certifies that your allegations are true and correct. That
they are warranted by evidence... that your signature as a
lawyer certify that the allegations are supported by law and
jurisprudence. Pero yung contents ng FORUM SHOPPING?
Pareho. They did not have any amendment.
PARTS OF THE COMPLAINT/PLEADING
If you file a complaint, what are the parts of the complaint?
The moment you file a complaint, you already have to make a
summary of the testimony of the proposed witnesses and
there is already an attached judicial affidavit. Pag nagfile ka
kasama na yung JUDICIAL AFFIDAVIT (JA) at document. That
makes your document really fit when you file it. Kasi andon
na ung JA. If you have 5 witnesses, andon na yung 5 JA. That’s
one of the major amendments in rule 7 of the roc.
THE MANNER OF ALLEGATIONS IN THE PLEADING.
Well, not so much on the manner of allegation. Not so much
on rule 9. Nagbago lamang ay yung periods ng rule 11.
RULE 10

One of the amendments provided for in rule 10 came from
jurisprudence.
Can you prove a factual issue that was not alleged in the
pleading?
Yes. But subject to amendment of the pleading to conform to
evidence. But if the factual matter was tried with the consent
of the parties, if neither expressed. Even if that factual matter
was not alleged, but it was tried and proven with the consent
of the parties… you need not amend the pleading to conform
to the evidence because that is deemed amended. It is now
written in the rules.
But where did that rule come from? it came from DELA CRUZ
VS. CONCEPTION.
Dela Cruz v. Conception
That if a factual matter is proven during trial even if
not alleged in the pleading, I borrowed 10 million
from you with acceleration clause, but when the
obligation became due and demandable, I did not
pay you. You sued me for only 5 million. What is the
issue? Payment of the other 5 million. During trial
with your consent, there was evidence to show that
there was 10million. Do you need to amend the
pleading? To conform evidence to allege 10? Ito
naaaa.. IT IS DEEMED AMENDED.
That is why I told you there are two scenarios there:
If there was an objection, but it was allowed by the
court? Then, amend the pleading to conform to
evidence.
RULE 13
If you file a pleading and…. I will furnish a copy to the other
party, how do I furnish? PERSONAL.
Can it be done by registered mail? YES.
What about ordinary mail? There is nothing to worry about
that, they are there in the rules e. they’re maintained in the
rules. Kaya lang may bagong jurisprudence..
“Can you send a copy of your answer through LBC, or
whatever private courier? YES! But remember that private
courier must be certified/accredited. But if ever if it is not
credited, then it is like an ordinary mail.
If there is accreditation, edi pwede, mas mabilis yon e. basta
may accreditation, basta halimbawa, binigay mo sa kanya.
Today is the deadline, he was able to receive. Edi you are able
to meet the deadline. Kasi if it is accredited private courier,
syempre meron syang receipt na narecieve by him or it as the
case may be. The date of delivery to the private courier is the
date of filling. So if it will be received by Monday, then you
were able to meet the deadline.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
CAN YOU SENT BY EMAIL? Yes! Sabi nung isa you can send it
pala by FAC-SMILE... hahah Kasi diba kung babasahin mo yun
ganon? ANONG FAC-SMILE?! HAHAH  so that’s it... these
are the means.
Ayun. Yung:
1. PRIVATE CARRIER;
2. EMAIL; and……
How do you pronounce that? Fac-smile? Haha 
FAC-SMILE DAW E.
3. FACSIMILE.
Proof of Service
Lahat yon may affidavit na e.
If it is a case of private courier. AFFDAVIT OF THE ONE WHO
DELIVERED IT TO THE PRIVATE COURIER. Ganon din dun sa
iba. 1. That you were the one who sent it by ordinary mail. 2.
That you were the one who brought it to LBC, 2. MERON DIN
RECIEPT. Meron din nung for pick up. Yung Tracking number.
Service of Summons
Can a plaintiff serve SERVICE OF SUMMONS to the
defendants?
Yes! But there must be authority from the court. Pwede na
yon. It came from jurisprudence.
Example: you file motion to dismiss on the ground
that the court does not have jurisdiction over the
person of the defendant. You are the lawyer of a
foreign corporation, doing business but not
registered in the Philippines. (Kasi kung ikaw ay
foreign corp, doing business, registered, may agent.)
But you filed a motion to dismiss on the ground that
the court does not acquire jurisdiction over the
foreign corp. improper service of summons.
Minsan nangyari yan sa manila. A foreign
corporation, doing business, but not registered. Ki-
nwestyon ang jurisdiction, nung lawyer. Sabi ni judge
calanog, manila:
”are you under oath?”
“Yes your Honor”
“Are you an officer of the court?”
“Yes your Honor”
“Ah you know that… and you are
questioning the order of this Court? It was
according to your motion that there was
improper serving of summons.”
“Yes your Honor”

“Who is the agent of the corporation? You
are under oath. Is your law office the agent
of the corporation?”
“Yes your Honor”
“Oh, wag kang aalis ha. I-prepare yung
Summons. You give it to him.”
Because the court will now deputize the counsel to serve the
summons upon the agents. BAGO YAN. That is a new one. Edi
tapos. That is the easiest way. I encountered that same
situation in Manila.
Prohibited Motions
Yung mga non litigious motions ah... yung:
1. Motions for extension.
2. Motion for alias summons…
You just file them. You do not have to schedule them
for hearing. But there are prohibited motions like,
motion to dismiss... except yung 1, 2, 3, 4, .other
than those... you can invoke them as affirmative
defenses.
If there is an affirmative defense, you cannot even
set them for hearing. The only affirmative defenses
that you can set for hearing are those found in the
provisions of the rule a……..
Lack of jurisdiction? Asset mo for hearing yan.
Tendency of another action? Set for hearing.
Res judicata? Set for hearing!
Prescription? Set for hearing.
But other than those, the motion to set it for hearing…
Improper venue, for example, hindi mo na kailangan yan e.
because the rule says, the court can issue the order motio
propio.
Improper venue, failure to state cause of action. Automatic
na yon. Di na kailangan iset for hearing yan e. discretionary
on the part of the court. Pero pag nag file ka ng ganyan...
pwede rin!
If there is a complaint, there as an answer with an affirmative
defense of improper venue. How can the court determine if it
is proper or improper? Pero discretion on the part of the
court to set it or not to set it for hearing kasi kung maliwanag
na don, diba?
At saka sa summons, under SECTION 1 RULE 14, if upon the
face of the pleading, then the complaint is dismissible. Then
the rule says that the summons will not be issued anymore.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
Situation Where the Court Can Dismiss Even Without
Hearing.
Even without service of summons. Example:
1. Actions for unlawful detainer file before the
RTC. Apparent! Kita. The only power the court
has is to dismiss it.
2. Action before any court but it is apparent that it
has already prescribed.
3. Legal separation. What is the period file legal
separation? 5 years. From the time the cause of
action accrued, 5 years. Suppose the allegation
is like this…..”Plaintiff caught her spouse in
flagrante delicto having sexual intercourse with
the paramour on December 1, 2000. Filed the
case on 2019.” Kailangan mo pa ba mag serve ng
summons? Pursuant to sec 1, rule 14. Upon the
face of the pleading, dismissible. Prescription is
Apparent!
Suppose that the period when that man was
caught was not stated in the pleading. Sumagot
ka ngayon defendant. “Defendant admits that
he was caught in flagrante delicto”…But in the
affirmative defense of prescription… “that I was
caught on DECEMBER 1, 2019. The action was
file only, December 1, 2020.” Yun ang isset mo
for hearing. That is an affirmative defense set for
hearing.
Madali yon. Sa hearing..
“Does my husband admit that he was caught in
flagrante delicto on December 1? Yes.
Does my WIFE also admit that I was caught
December 1? Yes.
That this case was filed December 1, 2019. Yes.
Oh edi tapos ang kaso.
Other than those four.. di na kailangan. Improper venue. Di
na kailangan yon. Pero the safer thing to do is ipa-set para
malaman. Either way, the court will not set it for hearing.
Sinet mo for hearing.. dumating resolution ng korte..
“affirmative defense of improper venue. It is apparent that
the venue is that….” Edi dismiss.
Modes of Discovery
SITUATION
may na convict sa Indonesia for illegal drug
trafficking. Illegally recruited. dinala sa Malaysia. Ang
problema, wala pala yung recruiters don. So dinala
sa Malaysia. Pero yung mga siraulong nagrecruit sa
kanya, sinaksakan bag nya ng drugs. Nahuli.

Convicted. Through DFA, the president… indonesia,
granted an indefinite reprieve. Ang problema, nahuli
na yung mga illegal recruiters ditto. Now there are
cases pending, estafa, illegal recruitment, violation
of migrant worker’s act. Pero sino ang witness sa
illegal recruitment? Yung tatay mo? Ay bakit?
Knowledge of the transaction? Wala e. basically the
only witness is the victim. Ang problema. Di sya
makaalis ng Indonesia. So there was a motio for
leave to take the deposition in Indonesia. But
pursuant on the provision of RULE 119, there must
be a personal appearance in order for that fellow to
be cross examined.
Pero ang argument ng prosecutor “how can that
fellow be brought in the Philippines e naka detained
sya don.” So there was a motion of leave to take the
deposition in indonesia. Ang problema ditto e, the
provision of rules DEPOSITION ARE APPLICABLE IN
CASES OF CIVIL.
ARE THE RULES APPLICABLE IN CRIMINAL? That is a
novel situation.
RULE 37
What are the remedies against a judgment?
1. MOTION FOR NEW TRIAL on the grounds of:
Fraud, Accidents, Excusable Negligence, newly
discovered evidence.
Newly discovered evidence must be existing at the
time of the presentation of evidence. It must even
be existing PRIOR to it.
1. It already existed at the time you presented
your evidence Or prior to the presentation.
2. But despite the existence, you were not able to
discover it, even with the diligence of a good
father of a family.
3. That evidence is so material, that if ever there’d
be a new trial, its presentation will change the
tenor of the judgment.
If it is a TESTIMONIAL EVIDENCE, and you filed a motion for
new trial, what do you do?
You prepare an affidavit of the proposed witness.
“That if the testimonies of the witness be allowed, your
honor. Then this will be the testimony based on the affidavit”
and furnish a copy to the other parties. That is why this is a
litigious motion. MOTION FOR NEW TRIAL ON THE GROUND
OF NEWLY DISCOVERED EVIDENCE.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
Sasabihin naman ng kalaban mo, “your honor, this is not a
newly evidence. Because he is one of the listed witnesses…..
In fact your honor meron na syang JUDICIAL AFFIDAVIT.
Then that is not newly discovered evidence.
Assuming that it is so, as newly discovered evidence. You
look at the affidavit and the testimony of one of the
witnesses; you can tell that they are the same.
Corroborative. Will it change the tenor of the judgment if it
is corroborative to other testimonies? NO WAY. Kaya ihhear
yan. That is a litigious motion.
If the newly discovered evidence is a document? Attach it.
And furnish other party a copy. So that during the hearing,
the other party may say “your honor, this is not newly
discovered.. Why? Because this document proposed to be
presented as newly discovered evidence, is the same
document I presented. This is my exhibit a your honor. How
can it be newly discovered? Yun ang opposition.
If ever motion for new trial is granted, then there will be
TRIAL DE NOVO / NEW TRIAL. So you present your newly
discovered evidence.
MOTION FOR RECONSIDERATION
What are the grounds for motion for reconsideration?
1. The judgment is not supported by the facts and the
evidence.
You cite the law. The basis for the judgment. And the
supposed law for the judgment. If the court can be
convincing, it will consider.
Convince the court.
2. The judgment is not supported by law.
3. Excessive damages.
CASE 1:
Di ka pinasakay sa eroplano. May VIP kasi. “Boss, 2
oras pa ah” sarado na po. Bat sarado na? E kasi
yung upuan mo, binigay na kay VIP. You discovered
that later on. Can you sue? Yes!
Inaward yung value ng airplane as damages. Can
you file a motion for reconsideration? Yes! Because
that is excessive award of damages.

CASE 2:
Physical injury. SLIGHT. Nag award ng damages. 5
million. Bili ka lang ng alcohol tapos na yon.
Excessive award of damages.
Can you file a 2nd motion for reconsideration?
Mtc, rtc, ca, you cannot.
But meron bago jan e, PAL stewards’ case….. pag 2 nd
MR from division by a vote of a majority of that division (kasi
diba vote of 3), that can be brought to En Bank. If the en bank
will reverse the judgment by way of MR. what is the vote
required? Justice bersamin penned this decision, 2/3 of the
members of the Supreme court, di lang majority para ma
reverse.
If your MR is denied, you APPEAL from the judgment. What
period do you apply there?
The NEYPES PRINCIPLE.
…..it is no longer the remaining period but it is now a
fresh period of 15 days.so if you receive a copy an order
denying the MR or New trial, dati it was only the balance. If
you receive today meron ka na ngayong 15 days for you to
appeal.
What is the purpose of 15 day period?
Kasi dati meron ng circular providing a fresh 60 day period
dati under rule 65. Yan ang basis. TO MAKE IT UNIFORM. To
have you more time to perfect the appeal.
Is (NEYPES PRINCIPLE) 15 day period applicable to criminal
case?
Yes. JUDITH YU VS. judge TATAD (2011).
“Convicted yung tao. Nagfile ng mr.. Denied.
Narecieve today. May balance na 3 days.
Pinalampas muna yung 3 days bago ng appeal.
“Your honor, the judgment has already become final
and executor. The period to appeal has already
lapse”
But I’m invoking the neypas principle your honor
How can you use neypas, it is a civil case?
Sc: Why? Is there a rule that prohibits it in the criminal case?
There is none! In a criminal case, what are at stake is life and
liberty. In civil case, what are at stake is right to money and
property. If that is the case, it is with more reason it is
applicable to a criminal case.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
I said those 6 years before the decision before Judith you
came out. Idedemanda ko ang SC for plagiarism.  . siguro
kung nabasa nung judge yung decision, sabihin nya tama ako.
Is (NEYPES PRINCIPLE) 15 day period applicable to
administrative case?
No. san Lorenzo ruiz builder vs. banya.
And pursuant to the neypes principle, Fresh 15 day period
applies only to judicial proceedings from MTC, TO RTC, TO CA,
SC, and from quasi-judicial bodies to CA. Not to
administrative proceedings.
So what is the period to appeal?
GEN: 15 days. Except if law provides for another period.
EXC:
a. HABEAS CORPUS? DI 15 DAY period yan. Diba appeal
is only 48 hours. That is an exception.
b. MULTIPLE APPEALS? 30 DAYS.
c. LAND REGISTRATION CASES? 30 DAYS
Remember that appeal is not a constitutional right. It is a
mere statutory right. Bakit? Wala sa constitution. It is only a
provision of law, not provision of constitution. But remember
that if the rule provides for a period of appeal that is
jurisdictional in nature.
Bakit jurisdictional yung period?
Because if ever you file the notice appeal beyond the
provided for by the rule…. Oh for example lumampas ka na,
oh meron ka na lang fresh 15 day period pero nadelay ka pa
rin. That is jurisdictional. Meaning the appellate court does
not acquire jurisdiction over the subject matter of the appeal
if, the appeal was not perfected within the reglementary
period provided by the law. Because it was out of time. It has
already lapse.
CASE:
A file a complaint against B before the MTC. But B
filed a motion to dismiss on the ground of lack of
jurisdiction over the subject matter. Then the court
granted the motion to dismiss.
What is the effect if the motion to dismiss is denied?
What is the rule? Can you appeal from it? No.
because that is a mere interlocutory order.
What should you do then?

File answer. Go to trial and if judgment will be
rendered against you, appeal from the judgment and
Invoke as one of the errors of the court, the denial of
the motion to dismiss.
RULE 65
65 is an exceptional remedy.
You receive a copy … file answer.. go to trial.. if judgment is
against you, you can appeal from it and invoke as error of the
court the denial of the motion to dismiss..
CASE 1
You file an answer. You went to trial. When both
parties presented both pieces of evidence, the court
said” tama pala sya wala jurisdiction of the court”.
Kasi at the mind of the court, the mtc has no
jurisdiction. Ano ginawa ng court? Dinismiss without
rendering the judgment.
What is the effect if the case is dismiss on the
ground of lack of jurisdiction? That is a final order.
Can you appeal from it? In appeal,, yung order ng
dismissal.
But both parties already presented evidence.
Complete na yon. Suppose the RTC will say, yes tama
ka you have no jurisdiction. What should the rtc do?
Should it remand the case? Or should it decide the
case?
PEREZ VS. CA. sc said… do not remand it. Render the
judgment to prevent delay, since the evidence is
already complete. Even if, the mtc decided it has no
jurisdiction.
CASE 2
Complaint was filed by a against b. mtc motion to
dismiss was granted. What is the effect? That is a
final order. Is that appealable? Yes.
Pero sabi ng court. Why did you grant it? You have
jurisdiction. So mtc granted it on the ground of lack
of jurisdiction…. But when it was appealed before
the RTC. You (mtc) has jurisdiction. What should the
rtc do?
--- RTC MUST REMAND THE CASE FOR TRIAL.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
What’s the difference between case 1 and 2? In case
1, there was already evidence complete. In the 2 nd
there is no evidence yet. So, for purposes of trial,
remand the case.
CASE 3
A filed a case against B. but B filed a motion to
dismiss on the ground of lack of jurisdiction. Mtc
grants. What is the nature of the order again? Final.
Is it appealable? Yes.
So when an order of dismissal was appealed to the
RTC. The RTC ruled… ah yes, you mtc have no
jurisdiction. But I have jurisdiction. What should the
rtc do?
- Assume jurisdiction as if it was filed originally
with the RTC.
Those are the 3 scenarios of RULE 40 together with PEREZ VS.
CA.
What are those that you cannot appeal?
You have to pay docket fees.
What are the duties of the clerk of court? Rule 40. Andon
duties mo e.
What are those that you cannot appeal?
1. If a motion to dismiss is denied. that is an
interlocutory order. Can you appeal? No. you cannot
appeal an interlocutory order. An interlocutory order
does not determine with finality the rights of the
parties. Something has yet to be done.
What will you do? That is an important question!
If there is a judgment, that is a final judgment. can
you file a motion for reconsideration (MR)?
“judgment is to deliver blah blah blah…”
You file an MR. but if that MR is denied. What is the
nature of that order of denial?
2. Order denying a motion for reconsideration for new
trial.
3. Order denying a petition from relief of judgment.
4. Interlocutory order.

You cannot file an appeal from an order denying a motion for
reconsideration or new trial.
What does it mean when you file a motion for recon or new
trial?
That means that there is already a final judgment.
Final in the sense that it is not executor. But final in a
sense that it determines the rights of the parties.
Motion to dismiss if Denied? It is INTEROCUTORY.
Motion to dismiss if Granted? It Is APPEALABLE.
What is your remedy if you cannot appeal from an
interlocutory order?
If you cannot appeal from it, but there is grave abuse
of discretion, amounting to lack or excess jurisdiction, the
remedy is RULE 65 (Special Civil Action for Certiorari) KUNG
THERE IS A SHOWING AH. Because appeal is not the remedy.
Appeal is a very slow remedy.
Azucena Go case.
Ejectment suit was filed in Iloilo. During the
pendency of the ejectment…. Filed an action to nullify the
title of azuce na go and that was brought to the RTC. After it
was filed, the plaintiff went to the MTC , and ask for the
suspension of the unlawful detainer case. On the ground that
there is a pending ……. Case. Ano ginawa ng mtc. Sinuspend.
What is the nature of the suspension order? INTERLOCUTORY
order.
Can you appeal from an interlocutory? No, under rule 41.
Can you file a special civil action for certiorari under summary
procedure? You cannot. That is prohibited.
Ano remedy? NOTICE OF APPEAL. This is contrary to rule 41,
because it is interlocutory.
Sabi ng kabila, you cannot appeal because it is interlocutory.
It cannot be a subject of appeal.
Ano sabi ng SC? CORRECT! But that is deemed as special civil
action for certiorari.. prohibited rin!
Can you prohibit the sc from doing that? ? Hindi.
But it is considered as special civil action for certiorari
because of the DOCTRINE OF PROCEDURAL VOID. If there is
no remedy under the law, then always think and convince the
court that the remedy is rule 65. That is the last remedy.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
Can you appeal from an order denying a relief from
judgment?
Par 1, sec 1, rule 41. You cannot. Because that is already final
and executor as you have seen in the provisions of rule 38.
Eh diba, yung period provided in rule 38. Yung period are
suggestive that the judgment is a final and executor
judgment. 60 day period. 6 month period. After 15 days, You
did not appeal, the judgment is final and executor. Ano pa
kaya yung 60 day, 6 months. There is nothing to appeal from
the order. What is the last recourse? RULE 65! If you can
convince the court that the trial court denied it with grave
abuse of discretion, then rule 65 is applicable remedy.
CASE
POLI LAW. The sole judge of all contest pertaining to
the qualification, election of the members of the
congress are the two tribunals.. sole means
exclusive. No remedy of appeal. Because it becomes
final and executor there. But why are there cases
that go to SC. Because they are brought there by rule
65 provisions.
CASE
Yung kay bongbong and vp leni.. kanino ka
magaappeal kung sakali? Remember that the PET is
also the SC din. Tinanong yan sa bar.
The law does not provide for a remedy. But if the law
does not provide for a remedy, apply special civil
action for certiorari rule 65 from PET to SC. But will
the court change its mind? Malay mo. Haha. 
because PET is acting as PET. While the SC act as the
SC.  there are independently of one another.
Motion for execution. Granted. Can you appeal? You cannot!
If you can, where does litigation end? There is public policy
consideration there.
SC SAID, if you can appeal a motion for execution, where does
litigation end. But if it is denied. That is appealable. But if
granted, it is not appealable.
Although there are instances when you question a motion
for execution. When can you question it?
When there is a change in the relationship between
the parties. After the judgment was rendered,

ordering the ejectment/vacate the premises. You
bought the property from the lessor.. can you still
execute? You won’t. The person who is sought to be
evicted is now the owner. Can you evict the owner of
the property? no.
CASE
There are two lots, lot A is 700sq.m, lot B is
100 sq. the lessor, owner of lot b, filed an ejectment
against owner of lot A. pretrial pa lang, sabi ni lot A
owner, benta mo na lang lote mo sakin…
Sabi ni Lot B owner,, yoko. Ako bili lote mo.
Magpaptayo ako ng high rise building e. kasi tinapos
na pala yung plano e. loko loko….. they were not
able to settle. Nag file ng conference bago ang
execution. Pano? Mag execute tayo today. What are
we gonna do? Repeat uli ng drama sa pretrial. For
176 sq. binentang 7 million. Sige bilhin mo….
Sigurado ka? Oo. Edi BINILI! Pinanindigan yung sinabi
nya e.
Yung sheriff, di na inexecute. Because there was a
relationship that was changed materially.
Kung igrant mo pa rin yung motion for execution?
Questionable na yan. Di mo iaappeal yan. Pero special civil
action for certiorari na yon.
WHEN IS AN APPEAL DEEMED PERFECTED?
it is perfected after the lapse of all the periods to which all
the parties will appeal from the judgment. That is the general
principle. (15 days after receipt of copy)
BAR QUESTION:
Judgment was rendered December 10. The
defendant was furnished the copy, December 15.. plaintiff
was furnished the copy on December 20.
1. Compute period of appeal.
2. When is appeal deemed perfected?
3. What is the meaning of appeal deemed perfected.
ANSWER:
IN COMPUTING THE PERIOD, there are 2 codes to
consider, art. 2 of civil code and rule 22. In computing the
period, first must be excluded and the last included. That
is the rule.
As for the defendant. Who received Dec 15. let’s count.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
We start counting 16, 17, 18, 19, 20, 21, 22, 23, 24,
25, 26, 27, 28, 29, 30, ….
Meron bang opisina pag Dec 30? That’s a holiday,
what’s the rule? Next working day
31? Also a holiday.
Jan 1? Holiday.
Jan 2? Saturday
Jan 3? Sunday.
So, January 4 ang period. Because of the provision of
civil code and rule of court.
As for the plaintiff, Who received Dec 20…
We start 21, 22,23,24,25,26,27,28,29,30,31,
Jan 1,2,3,4, they have the same period of January 4.
But you have to explain why January 4. Because the
period falls on Dec 31.. the rule next working day,
but the next working day is…is..is..is…. kaya umabot
ng January 4. I-explain nyo.
When is appeal deemed perfected?
AFTER January 4. Because the appeal is perfected
after the lapse of all the periods over which the
parties are entitled to appeal.
What is the meaning of the perfection of the appeal?
It simply means that the court has lost jurisdiction
has lost jurisdiction over the subject matter after the
perfection of the appeal.
Is the rule that the trial court is going to loss
jurisdiction? Or has lost jurisdiction after perfection
of the appeal absolute?
No. that is not absolute. The general rule is … if you
lost your jurisdiction already because of lack of
jurisdiction… then the rule is that you cannot do
anything anymore. A court origin has no more power
to act on the case anymore as a rule. That is the
meaning of the perfection of the appeal. The court
losses jurisdiction over the subject matter.
Except under the doctrine of RESIDUAL POWERS…
RESIDUAL MEANS…They remain with the court even
after the perfection of the appeal but subject to 2
conditions… for those powers to remain with the
court… those are found in sec 9, rule 41,
EXAMPLE.
Defendant filed a notice of appeal on Dec 20, is the
appeal perfected as far as him is concerned? Yes. but
the appeal for plaintiff has not yet started because
he has not yet receive the decision. Pero si
defendant, filed a notice of appeal. Paid the docket
fee, etc. to him it is perfected. But the following day,

plaintiff received the decision, on December 27.
Plaintiff filed a motion of execution pending appeal
citing a good reason.
Defendant “ your honor I have perfected filed an
appeal. The court has already lost jurisdiction”
Is defendant correct?
No. as far as the plaintiff I concerned, the period to
has not yet lapse.
DOCTRINE OF RESIDUAL POWERS
1. MOTION FOR EXECUTION PENDING APPEAL
Pwede pa bang mag file ng motion for execution
pending appeal? Yes!
Can the court act on the said motion for the
execution pending appeal on February 1?
Yes. under the doctrine of residual power.
What are the things that can be filed under the
doctrine of residual powers? Ano ba yung
composition non?
-Motion for execution pending appeal citing a good
reason.
Can it be filed after the lapse of January 4?
After January 4, the period to appeal has already
lapse on both parties. General rule is that no more
action on the part of…. But this is an exception..
What are the 2 conditions for the court to act upon it
on feb 1?
Let us put the requirements into 2 questions. (1)Did
you file motion for execution pending appeal during
the period of appeal. Yes! that is the condition.
(2) was the record of the case still in the possession
of the trial court? Yes! these are the 2 condition.
Can the court act upon the motion for execution
pending appeal on February 1? Yes.
For a s long as the 2 condition that were mentioned
are present. Because by that time naman, the
records are still with the court. It will take time
before that is forwarded to the appellate court,
2. MOTION FOR APPROVAL OF COMPROMISE AFTER THE
JUDGMENT WAS RENDERED.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
Suppose there was a motion for Approval of compromise
after the judgment was rendered? You filed it within the
period appeal, and if acted upon on February 1? Yes!
DOCTRINE OF RESIDUAL POWER!
3. MOTION FOR ISSUANCE OF AN ORDER TO PRESERVE
THE RIGHTS OF THE PARTIES. YES!
For as long as the 2 conditions are present.
4. Motion for dismissal of the appeal?
Yes! If the 2 conditions are present.
Can you move for a dismissal of the appeal? Yes!
Can this motion be acted upon even if the appeal has already
been perfected? Yes because of the doctrine of residual
power. Because is the power that remains with the court
even after the perfection of the appeal. But subject to the 2
conditions.
Remember that whenever you appeal for a judgment. You
must have assign the errors of the court. That is a ground for
dismissal of an appeal.
MODES OF APPEAL
What are the modes of appeal from…Mtc to rtc,
Rtc to ca, up to the SC?
If it is from the mtc to rtc? ORDINARY NOTICE.
If mtc to rtc to ca? PETITION FOR REVIEW UNDER RULE 42.
Mtc..rtc.. ca.. from court of appeals… ordinary petition for
review, under certiorari. Ordinary appeal.
Do not file a special civil action for certiorari from any
decision of the ca, no matter or for any manner it was
brought to ca. go to supreme court by way of rule 65. From
the decision of the court of the ca. kasi exceptional remedy
lang yon e. that is a wrong mode of appeal.
If the court who has original jurisdiction is RTC in the petition
for review under rule 42, that is an ordinary
Appeal. Mag notice ka lang. then go to SC by way of 45.
In any manner that the case was brought to the CA, even if it
was as a special civil action for certiorari in the CA, that
decision cannot be questioned also by way of rule 65 to the
SC. 45! ALL CASES decided by CA, are brought to SC by way of
RULE 45. Kung maconvince mo SC ng 65, magaling ka.
MAGALiNG KA kung maconvice mo na it is a 65.
RULE 42

CASE:
How does the court acquire jurisdiction over the defendant,
of the respondent of the … or the appellee? Kung rule 42?
Ang gagawin ng ca is this. Finding the petition for review, to
be proper because it is proper in substance. In form and
substance. The respondent is hereby ordered to file a
comment and not a motion to dismiss. Remember that the CA
do not issue summons. It merely issues the first resolution
that in finding the petition to be proper in substance and
form, “the respondent is hereby ordered to file a comment
and not a motion to dismiss within a certain period of time.
Let the copy of this resolution/order be furnished the
respondent”
So the moment you receive a copy of the these then the CA
acquired jurisdiction over the person of the respondent but
not a way of a summon. Walang summon sa CA or SC. Di sila
nagiissue ng summon. Resolution yan. File your comment and
answer the same.
Kung ordinary appeal, you are required to file a brief.
The neypes principle is also applicable.
From the mtc to rtc, to the ca, to the SC, the neypes principle
of fresh 15 day period is applicable.
whenever you appeal from judgment, you must have to cite
the errors of the court. That the court committed the
following errors.. 1.2.3.4.5. why? Because if you did not cite
any error, the effect is a ground of dismissal of the appeal.
Because the very error that you are going to cite are the very
issues that the court will decide.
You cannot just leave it to the court for the court to do
something to the case, if you do not tell the court that “ this
rtc committed the following errors”.
GONZAGA CASE… whenever you appeal from judgment. You
must have to cite the errors that the trial court omitted.
Because the errors you cite are the very issues that the court
will decide.
Maganda sabi ng court…
The court, the appellate court will not roam around at will
and render a judgment at an issue that was not been raised.
Because what is not juridically presented cannot juridically
decided. If you did not raised it as an issue that will not be a
subject of the rendition of judgment. What does the
appellant want the court to do? You tell the court what to do.
But the rule is not absolute.
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
But if you did not assign any error, the court will not open
your record. It will dismiss your appeal. It will not go 1 page to
the other and look “ ano bang gusto nito? Di naman sinabi
kung bakit.”
Example..
THE COURT erred in awarding 5m, inaward yung
value ng eroplano. Kasi namura lang ng konti. The
court erred in awarding excessive damages. So the
court will now review the pieces of evidence. That is
the matter that will be reviewed
The court, the appellate court will not roam around
at will and render a judgment at an issue that was
not been raised. Because what is not juridically
presented cannot juridically decided. If you did not
raised it as an issue, which will not be a subject of
the rendition of judgment. What does the
appellant want the court to do? You tell the court
what to do. But the rule is not absolute.
(inulit ulit nya to.)
Suppose you did not raised the issue of lack of
jurisdiction of the court of origin, but it is apparent in the
records of the case. Can the court decide it?
YES!!
1. When it is apparent. you don’t even have to raised
that. It will decide the case that since the court of
origin do not have jurisdiction, then everything is
void, including our decision if we will decide. The
only decision the court will render is DISMISSAL OF
THE CASE on the issue that was not raised on the
ground of lack of jurisdiction of the court of origin.
2. TRANSCENDENTAL IMPORTANCE. Pag
transcendental wala ka ng pagasa na ma reconsider
yan. We have to decide it even if it was not raised on
appeal.
3. If you raised several issues but 1 issue is supposed
to be decided by the court although it wasn’t
raised. Because it is an issue related of
INTERTWINED/INTERELATED WITH THE ISSUES
ALREADY RAISED. Then the court will decide it in
order to prevent multiplicity of action. To promote
judicial economy. Kasi kung hindi mo idecide yan,
magdedemanda na naman yan. Splitting of actions
will not promote judicial economy.
General rule: raise those issues for the court to determine.
GROUND FOR DISMISSAL OF APPEAL.
1. PAYMENT OF DOCKET FEE.

Non-payment of docket fee is not a ground for dismissal. The
court will just order you “pay the correct docket fee.”
2. PERIOD TO APPEAL HAS LAPSE.
Kasi kung kaso is appeal, but it needs record of
appeal, mag rerecord on appeal ka e.
Now that the record of appeal has already been
approved, you cannot just insert anything without
the approval of the court. Dapat meron motion for
leave to amend the record on appeal.
3. DID NOT COMPLY WITH THE ORDER OF THE COURT
Example. You are required to file a brief, and you did
not comply with the order of the court. DISMISSAL
YAN.
4. DID NOT FILE MEMORANDUM ON APPEAL.
After the filing of the briefs, then you are required to
file your memorandum on appeal. If you do not
comply. Another dismissal.
5. DID NOT ATTEND PRELIMINARY CONFERENCE ON
APPEAL.
It is like pre-trial conference, if you do not appear
mr. defendant? DISMISSAL YAN OF THE APPEAL.
NOTE: NON PAYMENT OF DOCKET FEE. Ire require ka lang
magbayad.
RULE 45
DISTINGUISH RULE 45 FROM RULE 65
As to the issues you are going to raise.
45 - issues of law
65 – issue/issues of jurisdiction
As to the parties
45 – the same parties from MTC to SC…
A vs. B
65 – it is no longer A vs. B,
but A vs. the court/quasi-judicial/judicial, or
A vs. JUDGE so and so.
The parties are no longer the same, because you are
not questioning the act of the party anymore. You are
questioning the judicial/quasi-judicial body performing
judicial and quasi-judicial functions.
Is the petition under rule 45 a continuation of the
original action? Yes!
REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020
65? No. that is a different proceeding.
As to the period.
45 – fresh 15 days
65 – fresh 60 days.
If you file motion for reconsideration in both, then the MR
was denied, if you want to appeal in 45? Fresh 15 days. If
you want to file a special civil action for 65? Fresh 60 days.
Counted from the day of receipt of the order denying the MR
in both situations. NEYPES PRINCIPLE.
IS NEYPES PRINCIPLE APPLICABLE IN:
CRIMINAL CASE? YES. Because fresh period applies
on to cases involving judicial proceeding. Not admin
proceedings. You raise question of law and fact sa
45. The moment you file it on appeal, then the court
will render judgment on the basis of the record.
If you go 1 page to another… rule 45. Appeal cross
open the record of the court of origin to the review
by the said court.
ADMIN CASE? NO.
Can you file a complex petition for 45 and 65?
CASE
(Chua vs. Santos)
Tinatago nya yung loss ng 45, yung 1st sentences
palang ng petition “this is a petition under rule 45
and 65” if you are the ponente? Will you read the 2nd
sentence?
DISMISS THE CASE. 45 and 65 are not cumulative
remedies….. not alternative remedies… they are
remedies exclusive of one another. They are
remedies that are antithetical. The moment you fail
in 45, you cannot avail of the other.
EXCEPTION:
1. Transcendental issue.
2. Interest of justice.
3. Due process.
4. Residual power. That is a matter of discretion of
SC.
5. Doctrine of procedural void.
What should you attach?
 REMEDIAL LAW
DEAN ALBANO LECTURE NOTES
FEBRUARY 7, 2020

CERTIFIED TRUE COPY of the complaint, answer,
reply important order and decision you are
questioning.
Dapat READABLE. Kasi minsan kahit readable,
sasabihin di readable. Walangyang SC tinatamad lang
e.
*kwento ulit ng Marcos case sa Singapore
RULE 47
GROUNDS FOR YOU TO ANNUL JUDGMENT OF RTC
OR NULLIFY.
You have to attach an affidavit of merit stating in
particular F.A.M.E.
If Relief for judgment is filed, in what court do you file it?
You file it with MTC, because it was decided MTC.
You file it with RTC, because it was decided RTC.
That is why it is known as the uniform rule on
petition on relief of judgment.
But one time the rule was relaxed and was treated as
special civil action for certiorari because of the
doctrine of Procedural void
.

IF IT IS TO NULLIFY… Suppose the petition from relief of judgment was granted?

Lack of jurisdiction What happens?
Lack of due process Court set aside the judgment it vacates the judgment
PERIOD. and conducts a new trial as if a timely petition for
IF IT IS VOIDABLE, TO BE ANNULED BECAUSE OF new trial/motion for new trial was filed. Kasi wala na
FRAUD … 4 YRS. yung judgment e.

JURISDICTIONAL ISSUE? IMPRESCIPTIBLE. Petition for relief from judgment, it means that the judgment
is final and executor. Suppose it is void, Because of lack of
due process, so the petition is granted… so the judgment is
RULE 38 vacated… so the court will now conduct new trial.

Rule 38 simply means that the judgment is already final and

executor. DOCTRINE OF IMMUTABILITY OF JUDGEMENT?
There must be an end to every litigation.
PETITION FOR RELIEF OD JUDGMENT

Within what period should you file?

1. 60 day from time of knowledge of judgment; or
2. 6 month from time of entry.

If you file the petition for relief from judgment,

BEYOND the two periods, PETITION WILL BE DENIED.
Because this 2 periods are jurisdictional in nature.
They are not subject to any condition, because they
are conditions themselves. If you do not file within
60 days from time of knowledge and 6 months from
time of entry of judgment, the court will tell you..”
the period has already lapse, petition for relief are
denied”

Ano ba grounds from relief of judgment?

1. Fraud
2. Accident
3. Mistake
4. Excusable neglect.