Post Judgment Remedies Civ Pro

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Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)

CIVIL PROCEDURE NOTES ON POST JUDGMENT

REMEDIES ACADEMIC YEAR 2011-2012

POST JUDGMENT REMEDIES

The remedies against a judgment may refer to those

remedies BEFORE a judgment becomes final and

executor and AFTER the same becomes executor.

(1) BEFORE a judgment becomes final and

executor, the aggrieved or losing party may

avail of the following:

(a) Motion for Reconsideration (Rule 37)

(b) Motion for New Trial (Rule 37)

(c) Appeal

A judgment becomes final and executor upon the

expiration of the period to appeal therefrom and no

appeal has been perfected (Sec.1, Rule 39, Rules of Court).

(2) AFTER the judgment becomes executor, the

losing party may avail of the following:

(a) Petition for Relief (Rule 38)

(b) Action to annul a judgment (Rule 47)

(c) Certiorari (Rule 65)

(d) Collateral attack of a judgment

RULE 37 NEW TRIAL OR MOTION FOR

RECONSIDERATION

MOTION for NEW TRIAL

Motion for NEW TRIAL of a judgment is a prohibited

motion in a case that falls under summary procedure.

Affidavit of merit must be one showing the facts (not

mere conclusions or opinions) constituting the valid

cause of action or defense which the movant may prove

in case a new trial is granted.

Gross negligence of the counsel is not a ground for new

trial.

MOTION for RECONSIDERATION

The MR under Rule 37 is one that is directed against a

judgment or a final order. It is not the MR of an

interlocutory order which for instance, precedes a

petition for certiorari.

MR of a judgment is a prohibited motion in a case that

falls under summary procedure.

Motion for New Trial

Motion for Reconsideration

Grounds (a) Fraud, Accident, Mistake, Excusable Negligence (FAME)

(b) Newly Discovered Evidence (NDE)

(Sec.1, Rule 37, Rules of Court)

(a) Excessive Damages

(b) Insufficient Evidence

(c) Decision is contrary to Law.


When Within the period for taking an appeal (Sec.1, Rule 37, Rules of Court).

Extension

No motion for extension of time to file a motion for new trial or reconsideration shall be allowed (Sec.2, Rule 40, Sec.3, Rule 41, Rules of Court).

Effect to appeals

The filing of a timely motion for new trial or reconsideration interrupts the period to appeal (Sec.2, Rule 40, Sec.3, Rule 41, Rules of Court).

Contents

The motion shall be: (a) Writing (b) Stating the grounds (c) Send Notice to the adverse party. (Sec.2, Rule 37, Rules of Court)

(d) Supported by affidavits of

(1) Merits (FAME)

(2) The Witnesses (NDE)

(e) Point out specifically the findings which are not supported by the evidence.

(f) Provisions

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of law alleged to be contrary to such findings or conclusions.


Action If granted:

Set aside the judgment or final order and grant a new trial (Trial de Novo). (Sec.3, Rule 37, Rules of Court)

Recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (Sec.6, Rule 37, Rules of Court)

Amend such judgment or final order accordingly. (Sec.3, Rule 37, Rules of Court)

Resolution

Resolved within thirty days from the time it is submitted for resolution (Sec.4, Rule 37, Rules of Court).

Partial If the Grounds affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (Sec.7, Rule 37, Rules of Court)

Second motion

Allowed if the ground was not existing when the first motion was filed. (Sec.5, Rule 37, Rules of Court)

Prohibited (Sec.5, Rule 37, Rules of Court)

Order of Denial

Not appealable, the remedy being an appeal from the judgment or final order (Sec.9, Rule 37, Rules of Court).

RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR

OTHER PROCEEDINGS

It is a legal remedy whereby a party seeks to set aside a

judgment rendered against him by a court whenever he

was unjustly deprived of a hearing or was prevented

from taking an appeal because of FRAUD, ACCIDENT,

MISTAKE, or EXCUSABLE NEGLIGENCE.

A petition for relief from judgment is an equitable

remedy that is allowed only in exceptional cases when

there is no other available or adequate remedy.

GROUNDS:

(a) When a judgment or final order is entered into,

or any other proceeding is thereafter taken against

the petitioner in any court through FRAUD,

ACCIDENT, MISTAKE, or EXCUSABLE

NEGLIGENCE (Sec.1, Rule 38, Rules of Court).

(b) When the petitioner has been prevented from

taking an appeal by FRAUD, ACCIDENT,

MISTAKE, or EXCUSABLE NEGLIGENCE

(Sec.2, Rule 38, Rules of Court).

PRAYER:

(a) In letter (a) the petition shall be filed in such

court and in the same case. The petition shall

pray that the judgment, order or proceeding be

SET ASIDE.

(b) In letter (b) the petition shall likewise be filed in

such court and in the same case but the prayer

this time is that the appeal be given DUE

COURSE.

RULE 37 as distinguished from RULE 38

NEW TRIAL /

RECONSIDERATI

ON

RELIEF FROM

JUDGMENT

When Must be filed within Judgment is final

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the appeal period

Judgment not yet

Final.

within 60 days after

petitioner learns of

the judgment to be

set aside and within

6months after such

judgment is entered.

Right/Pri

nciple

A Legal Right More on Equity

Grounds FAME + NDE FAME only

Relief

from

Judgment on Final

Order

Judgment on Final

order / order on

other proceeding.


See Table in RULE 47, Infra

APPEALS

Appeal, defined: a legal proceeding by which a case is

brought before a higher court for review of the decision

of a lower court.

Rule 40 APPEALS FROM MUNICIPAL TRIAL

COURTS TO THE REGIONAL TRIAL COURTS /

Rule 41 APPEALS FROM THE REGIONAL TRIAL

COURTS.

WHEN:

An appeal may be taken within fifteen (15) days after

notice to the appellant of the judgment or final order

appealed from (Sec. 2, Rule 40, Rules of Court).

*The period of appeal shall be interrupted by a timely

motion for new trial or reconsideration. No motion for

extension of time to file a motion for new trial or

reconsideration shall be allowed. (n) (Sec.2, Rule 40, and

Sec.3, Rule 41, Rules of Court).

Where a record on appeal is required, the appellant shall

file a notice of appeal and a record on appeal within

thirty (30) days after notice of the judgment or final

order (Sec. 2, Rule 40, and Sec.3, Rule 41, Rules of Court).

However, on appeal in habeas corpus cases shall be

taken within forty-eight (48) hours from notice of the

judgment or final order appealed from (Sec.3, Rule 41,

Rules of Court).

HOW:

(a) Filing a notice of appeal with the court that

rendered the judgment or final order appealed

from and by

(b) Serving a copy of the notice to the adverse party.

(c) Within the period for taking an appeal, the

appellant shall pay to the clerk of the court

which rendered the judgment or final order

appealed from the full amount of the appellate

court docket and other lawful fees. Proof of

payment thereof shall be transmitted to the

appellate court together with the original record

or the record on appeal, as the case may be.

(Sec.5, Rule 40, and Sec.4, Rule 41, Rules of Court)

Add’l requirements for Rule 40.

(d) Within fifteen (15) days from the perfection of

the appeal, the clerk of court or the branch clerk

of court of the lower court shall transmit the

original record or the record on appeal, together

with the transcripts and exhibits, which he shall

certify as complete, to the proper Regional Trial

Court. A copy of his letter of transmittal of the

records to the appellate court shall be furnished

the parties (Sec.6, Rule 40, Rules of Court).

(e) Upon receipt of the complete record on appeal,

the clerk of court of the Regional Trial Court

shall notify the parties of the fact (Sec.7(a),

Rule40, Rules of Court).

(f) Within 15 days from such notice, it shall be the

duty of the appellant to submit a memorandum

which shall briefly discuss the errors imputed to

the lower court, a copy of which shall be

furnished by him to the adverse party. Within

fifteen (15) days from receipt of the appellant’s

memorandum, the appellee may file his

memorandum. Failure of the appellant to file a

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memorandum shall be a ground for dismissal of

the appeal (Sec.7(b), Rule 40, Rules of Court).

(g) Upon the filing of the memorandum of the

appellee, or the expiration of the period to do so,

the case shall be considered submitted for

decision. The Regional Trial Court shall decide

the case on the basis of the entire record of the

proceedings had in the court of origin and such

memoranda as are filed (Sec.7(c), Rule 40, Rules of

Court).

Add’l requirements for Rule 41.

(h) Within 30 days after perfection of all the

appeals, the clerk of court shall verify the

CORRECTNESS and COMPLETENESS of the

records and if incomplete, to take such measures

to complete such records, certify to the

correctness of the records, to transmit the same

to the appellate court, and to furnish the parties

with copies of his letter of transmittal of the

records to the appellate court (Sec.10, Rule 41,

Rules of Court).

(i) Upon receiving the original record on appeal

and the accompanying documents transmitted

by the lower court, as well as the proof of

payment of the docket fees, the clerk of court of

the Court of Appeals shall docket the case and

notify the parties (Sec.4, Rule44, Rules of Court).

(j) Within 45 days from receipt of the notice of the

clerk of court, the appellant shall file a brief a

brief with proof of service upon the appellee

(Sec.7, Rule 44, Rules of Court). Within 45 days

from the receipt of the appellant’s brief, the

appellee shall file his own brief with proof of

service to the appellant (Sec.8, Rule 44, Rules of

Court). Within 20 days from receipt of the

appellees brief, the appellant may file a reply

brief answering points in the appellee’s brief not

covered in his main brief (Sec.9, Rule 44, Rules of

Court).

*Note: Extension of time for the filing or briefs will

be allowed, except for GOOD and SUFFICIENT

CAUSE and only if the MOTION FOR EXTENSION

is filed BEFORE the EXPIRATION of the time

sought to be extended (Sec.12, Rule 44, Rules of

Court).

*In petitions for certiorari, prohibition, mandamus,

quo warranto and habeas corpus cases, briefs are not

filed. Instead the parties shall file their respective

memoranda within a non-extendible period of 30

days from receipt of the notice that all the pieces of

evidence are already attached to the record (Sec.10,

Rule 44, Rules of Court).

EXTENSION:

Rule 41

The period to file notice of appeal is NOT EXTENDIBLE.

The extension refers only to filing of briefs only if with:

(a) GOOD and

(b) SUFFICIENT CAUSE

(c) MOTION FOR EXTENSION

(d) BEFORE the EXPIRATION of the time sought to

be extended.


Sec.12, Rule 44, Rules of Court

Sec. 12. Extension of time for filing briefs.—Extension of time for the filing

of briefs will not be allowed, except for good and sufficient cause, and

only if the motion for extension is filed before the expiration of the

time sought to be extended.

PERFECTION, LOSING of COURT’s JURISDICTION,

and CONTENTS:

Notice of appeal, is deemed perfected as to him upon

the filing of the notice of appeal in due time.

*Notice of appeal does not require the approval of the

court. The function of the notice is merely to notify the

trial court that the appellant was availing of the right of

appeal, and not to seek the court’s permission that he be

allowed to pose an appeal.

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*In appeals by notice of appeal, the court loses

jurisdiction over the case upon the perfection of the

appeals filed in due time and the expiration of the time to

appeal of the other parties. (Sec. 9, Rule 41, Rules of

Court).

Notice of appeal, the court loses jurisdiction over the case:

(a) upon the perfection of the appeals

(b) filed in due time and

(c) the expiration of the time to appeal of the other parties.

(Sec. 9, Rule 41, Rules of Court).

*Notice of appeal shall indicate:

a. the Parties to the appeal

b. specify the Judgment or final order or part thereof

appealed from,

c. specify the Court to which the appeal is being taken,

and

d. state the Material dates showing the timeliness of the

appeal.

Sec.3, Rule 40, and Sec.5, Rule 41, Rules of Court

Record on appeal, is deemed perfected as to him with

respect to the subject matter thereof upon the approval

of the record on appeal filed in due time.

*A record on appeal shall be required only in special

proceedings and in cases of multiple or separate appeals


*In appeals by record on appeal, the court loses

jurisdiction over the subject matter thereof upon the

approval of the records on appeal filed in due time and the

expiration of the time to appeal of the parties (Sec. 9, Rule

41, Rules of Court).

*In appeals by record on appeal, the court loses

jurisdiction over the subject matter:

(a) upon the approval of the records on appeal


(c) the expiration of the time to appeal of the parties (Sec. 9,


*Record on appeal; form and contents:

a. the Full names of all the Parties

b. the Judgment or final order from which the appeal is

taken.

c. in chronological order, Copies of such Pleadings,

petitions, motions, and all interlocutory orders related to

the appealed judgment.

d. data as will show that the appeal was perfected on

time.

e. ALL evidence, testimonial, documentary, etc. If an

Issue of Fact is raised on appeal.

f. if the whole testimonial and documentary evidence is

to be included, a Statement to that effect is sufficient

without mentioning the names of the witnesses.

g. Subject index if record on appeals exceeds 20 pages.


MODES:

Rule 41

Sec.2, Rule 41, Rules of Court.

SEC. 2. Modes of appeal.—

a. Ordinary appeal.—The appeal to the Court of Appeals in cases

decided by the Regional Trial Court in the exercise of its original

jurisdiction shall be taken by filing a notice of appeal with the court

which rendered the judgment or final order appealed from and serving

a copy thereof upon the adverse party. No record on appeal shall be

required except in special proceedings and other cases of multiple or

separate appeals where the law or these Rules so require. In such cases,

the record -on appeal shall be filed and served in like manner.

b. Petition for review.—The appeal to the Court of Appeals in cases

decided by the Regional Trial Court in the exercise of its appellate

jurisdiction shall be by petition for review in accordance with Rule 42.

c. Appeal by certiorari.—In all cases where only questions of law are

raised or involved, the appeal shall be to the Supreme Court by

petition for review on certiorari in accordance with Rule 45. (n)

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QUESTIONS TO BE RAISED:

The appellant may include in his assignment of errors

any QUESTION OF LAW or FACT that has been raised

in the court below and which is within the issues raised

by the parties (Sec.15, Rule 44, Rules of Court).


Sec. 15. Questions that may be raised on appeal.-Whether or not the

appellant has filed a motion for new trial in the court below, he may

include in his assignment of errors any question of law or fact that has

been raised in the court below and which is within the issues framed by the

parties.

DISMISSAL:

Rule 40


SEC. 8. Appeal from orders dismissing case without trial; lack of

jurisdiction.—If an appeal is taken from an order of the lower court

dismissing the case without a trial on the merits, the Regional Trial

Court may affirm or reverse it, as the case may be. In case of

affirmance and the ground of dismissal is lack of jurisdiction over the

subject matter, the Regional Trial Court, if it has jurisdiction thereover,

shall try the case on the merits as if the case was originally filed with it.

In case of reversal, the case shall be remanded for further proceedings.

If the case was tried on the merits by the lower court without

jurisdiction over the subject matter, the Regional Trial Court on appeal

shall not dismiss the case if it has original jurisdiction thereof, but shall

decide the case in accordance with the preceding section, without

prejudice to the admission of amended pleadings and additional

evidence in the interest of justice. (n) (SEC. 8., Rule 40, Rules of Court)

Lack of Jurisdiction

1. A case may be dismissed in the Municipal Trial

Court without a trial on the merits. This occurs

when a motion to dismiss is filed and granted in

accordance with Rule 16 of the Rules of Court,

the Regional Trial Court may affirm or reverse

it. If the order is affirmed, then it is a declaration

of the merits of the dismissal.

However, if the dismissal is made on the ground

of lack of jurisdiction over the subject matter,

and the Regional Trial Court affirms the

dismissal, the action of the latter court shall not

be confined to a mere affirmation of the

dismissal. Instead, the rule obligates the

Regional Trial Court to try the case on the merits

as if the case was originally filed with it.

2. The same rule prevails if the case was tried on

the merits in the lower court without

jurisdiction over the subject matter and was

subsequently dismissed on such ground. On the

appeal, the Regional Trial Court, if it has

original jurisdiction shall not dismiss the case,

but shall decide the case in the same manner as

dismissed by the lower court without trial on

the merits. The Regional Trial Court may allow

amendment of the pleadings and may receive

additional evidence in the interest of justice


*When a case is dismissed from lack of jurisdiction, the

order of dismissal is one without prejudice because the

plaintiff may simply refile the complaint in the court

with the proper jurisdiction. By the terms of Sec.1 (g),

Rule 41 as amended, the order dismissing an action

without prejudice is not appealable. Sec.8, Rule 40, on

the other hand allows an appeal from an order of the

MTC dismissing a case for lack of jurisdiction. Sec.8,

Rule 40 hence, should be considered as an exception to


Rule 41


SEC. 13. Dismissal of appeal.—Prior to the transmittal of the original

record or the record on appeal to the appellate court, the trial court

may motu proprio or on motion dismiss the appeal for having been

taken out of time, or for non-payment of the docket and other lawful

fees within the reglementary period. (13a)

Non-payment of docket fees the court acquires no

jurisdiction over the subject matter of the case.

Appeal taken out of time.


Sec. 2. Dismissal of improper appeal to the Court of Appeals.—An appeal

under Rule 41 taken from the Regional Trial Court to the Court of

Appeals raising only questions of law shall be dismissed, issues purely

of law not being reviewable by said court. Similarly, an appeal by

notice of appeal instead of by petition for review from the appellate

judgment of a Regional Trial Court shall be dismissed. (n)

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An appeal erroneously taken to the Court of Appeals shall not be

transferred to the appropriate court but shall be dismissed outright.

(3a)

Appeals to be dismissed:

Raising only questions of law

Erroneously Taken

APPEAL, SUBJECT, INTERRUPTION, and

PROHIBITION:

The period of appeal shall be interrupted by a timely

motion for new trial or reconsideration. No motion for

extension of time to file a motion for new trial or

reconsideration of the judgment or final order (Sec.2,

Rule 40, and Sec.3, Rule 41, Rules of Court).


SECTION 1. Subject of appeal.—An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a

particular matter therein when declared by these Rules to be

appealable.

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking

relief from judgment;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent,

confession or compromise on the ground of fraud, mistake or duress,

or any other ground vitiating consent.

(f) An order of execution;

(g) A judgment or final order for or against one or more of several

parties or in separate claims, counterclaims, cross-claims and third-

party complaints, while the main case is pending, unless the court

allows an appeal therefrom; and

(h) An order dismissing an action without prejudice.

In all the above instances where the judgment or final order is not

appealable, the aggrieved party may file an appropriate special civil

action under Rule 65. (n)

*Take note of the above cited explanation of Sec.1, Rule

41.

RESIDUAL JURISDICTION:

The concept of residual jurisdiction is available at a stage

in which a court is normally deemed to have LOST

JURISDICTION over the case or the subject matter

involved in the appeal. There is no residual jurisdiction

to speak of where no appeal or petition has ever been

filed (Fernandez vs. C.A. 458SCRA454).

Sec.2(a), Rule 39, Rules of Court

Sec. 2. Discretionary execution.—

(a) Execution of a judgment or final order pending appeal.— On

motion of the prevailing party with notice to the adverse party filed in

the trial court while it has jurisdiction over the case and is in

possession of either the original record or the record on appeal, as the

case may be, at the time of the filing of such motion, said court may, in

its discretion, order execution of a judgment or final order even before

the expiration of the period to appeal.


Xxx x

In either case, prior to the transmittal of the original record or the

record on appeal, the court may issue orders for the protection and

preservation of the rights of the parties which do not involve any

matter litigated by the appeal, approve compromises, permit appeals

of indigent litigants, order execution pending appeal in accordance

with section 2 of Rule 39, and allow withdrawal of the appeal. (9a)

SEC.8(a), Rule 42, Rules of Court

Xxx

However, before the Court of Appeals gives due course to the petition,

the Regional Trial Court may issue orders for the protection and

preservation of the rights of the parties which do not involve any

matter litigated by the appeal, approve corn-promises, permit appeals

of indigent litigants, order execution pending appeal in accordance

with section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41)

The term refers to the:

i. authority of as trial court to issue orders for the

protection and preservation of the rights of the

parties which do not involve any matter

litigated by the appeal, approve compromises,

permit appeals of indigent litigants, order

execution pending appeal in accordance with

Sec.2, Rule 39, and

ii. allow withdrawal of the appeal provided these

are done prior to the transmittal of the original

record or the record on appeal even if the

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appeals have already been perfected despite the

approval of the record on appeal (Sec.9, Rule 41,

Rules of Court) or

iii. in case of a petition for review under Rule 42

before the Court of Appeals gives due course to

the petition (Sec.8, Rule 42, Rules of Court).

Residual

Jurisdiction

Rule 41 Rule 42

When Before transmittal of

the original record

Before the court

gives due course.

SUBMITTED for DECISION:

Rule 40

The case shall be considered submitted for decision:

(a) Upon the filing of the memorandum of the

appellee, OR

(b) The expiration of the period to do so, the case

shall be considered submitted for decision.

The Regional Trial Court shall decide the case on the

basis of the entire record of the proceedings had in the

court of origin and such memoranda as are filed

(Sec.7(c), Rule 40, Rules of Court).

Rule 41

Sec.1(a), Rule 51, Rules of Court provides for the

submission of cases for decision under Rule 41.

In ordinary appeals:

(a) No Hearing on the merits

i. Filing of the LAST PLEADING, OR

ii. EXPIRATION of the period for its filing

(b) Hearing on the merits

i. Upon its TERMINATION, or

ii. Filing of the LAST PLEADING, or

iii. EXPIRATION of the period for its filing

Sec.1(a), Rule 51, Rules of Court

Sec. 1. When case deemed submitted for judgment.—A case shall be

deemed submitted for judgment:

A. In ordinary appeals.—

1) Where no hearing on the merits of the main case is held, upon the

filing of the last pleading, brief, or memorandum required by the Rules

or by the court itself, or the expiration of the period for its filing.

2) Where such a hearing is held, upon its termination or upon the filing

of the last pleading or memorandum as may be required or permitted to

be filed by the court, or the expiration of the period for its filing.

WITHDRAWAL OF APPEAL:

The Court may, upon its discretion allow withdrawal of

the appeal by the appellant before the transmittal of the

original record or record on appeal (Sec.9, Rule 41, Rules

of Court).


Xxx x

In either case, prior to the transmittal of the original record or the record on

appeal, the court may issue orders for the protection and preservation of

the rights of the parties which do not involve any matter litigated by

the appeal, approve compromises, permit appeals of indigent litigants,

order execution pending appeal in accordance with section 2 of Rule

39, and allow withdrawal of the appeal. (9a)

RULE 42 PETITION FOR REVIEW FROM THE

REGIONAL TRIAL COURTS TO THE COURT OF

APPEALS

APPLICATION:

Rule 42 applies to an appeal from the judgment or final

order of the Regional Trial Court to the Court of Appeals

in cases decided by the former in the exercise of its

appellate jurisdiction.

WHEN:

The petition shall be filed and served within fifteen (15)

days from notice of the decision sought to be reviewed

or of the denial of petitioner’s motion for new trial or

reconsideration filed in due time after judgment (Sec.1,


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HOW:

A party desiring to appeal from a decision of the

Regional Trial Court rendered in the exercise of its

appellate jurisdiction may:

(a) file a VERIFIED petition for review with the

Court of Appeals,

(b) paying at the same time to the clerk of said court

the corresponding docket and other lawful fees,

depositing the amount of P500.00 for costs, and

(c) furnishing the Regional Trial Court and the

adverse party with a copy of the petition.


(d) The Court of Appeals may dismiss the petition if

it finds the same to be patently without merit,

prosecuted manifestly for delay, or that the

questions raised therein are too unsubstantial to

require consideration (Sec.4, Rule 42, Rules of

Court).

(e) If the Court of Appeals does not dismiss the case

it may require the respondent to file a comment

on the petition, not a motion to dismiss, within

ten (10) days from notice (Sec.4, Rule 42, Rules of

Court).

(f) If the Court of Appeals finds prima facie that the

lower court has committed an error of fact or

law that will warrant a reversal or modification

of the appealed decision, it may accordingly

give due course to the petition (Sec.6, Rule 42,

Rules of Court).

(g) If the petition is given due course, the Court of

Appeals may set the case for oral argument or

require the parties to submit memoranda within

a period of fifteen (15) days from notice. The

case shall be deemed submitted for decision

upon the filing of the last pleading or

memorandum required by these Rules or by the

court itself(Sec.9, Rule 42, Rules of Court).

EXTENSION:

The Court may grant an additional 15 days only within

which to file the petition for review:

(a) Upon proper motion and

(b) the payment of the full amount of the docket

and other lawful fees and the deposit for costs

(c) before the expiration of the reglementary period.

*No further extension shall be granted except for the

most compelling reason and in no case to exceed fifteen

(15) days. (n)


PERFECTION, LOSING of COURT’s JURISDICTION,

and CONTENTS:

The appeal is perfected as to the petitioner upon the

timely filing of a petition for review and the payment of

the corresponding docket and other lawful fees, the

appeal is deemed perfected as to the petitioner (Sec.8,


Sec.8(a), Rule 42, Rules of Court.

Sec. 8. Perfection of appeal; effect thereof —

(a) Upon the timely filing of a petition for review and the payment of

the corresponding docket and other lawful fees, the appeal is deemed

perfected as to the petitioner.

*The Regional Trial Court loses jurisdiction over the case

upon the perfection of the appeals filed in due time and

the expiration of the time to appeal of the other parties.


The Regional Trial Court loses jurisdiction over the case:

(a) upon the perfection of the appeals


(c) the expiration of the time to appeal of the other

parties. (Sec. 8, Rule 42, Rules of Court).

Sec.8(a), Rule 42, Rules of Court.

Sec. 8. Perfection of appeal; effect thereof —

(a) Xxx

The Regional Trial Court loses jurisdiction over the case upon the

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perfection of the appeals filed in due time and the expiration of the

time to appeal of the other parties.

Form and contents.—

(a) FULL NAMES of the PARTIES to the case, without

impleading the lower courts or judges thereof either as

petitioners or respondents;

(b) SPECIFIC MATERIAL DATES showing that it was

filed on time;

(c) STATEMENT OF THE MATTERS involved, the

issues raised, the specification of errors of fact or law, or

both, allegedly committed by the Regional Trial Court,

and the reasons or arguments relied upon for the

allowance of the appeal;

(d) Accompanied by CLEARLY LEGIBLE DUPLICATE

ORIGINALS or TRUE COPIES of the JUDGMENTS or

FINAL ORDERS of both lower courts, certified correct

by the clerk of court of the Regional Trial Court, the

requisite number of plain copies thereof and of the

pleadings and other material portions of the record as

would support the allegations of the petition.

(e) CERTIFICATE of NON-FORUM SHOPPING.


RESIDUAL JURISDICTION:

*See Explanation, Supra


The appellant may include in his assignment of errors

any QUESTION OF LAW or FACT, or BOTH, allegedly

committed by the Regional Trial Court.

(a) Pure questions of LAW

(b) Questions of Fact

(c) Mixed – Both law and fact

Sec.2(c), Rule 42, Rules of Court

Sec. 2. Form and contents.—Xxx

(c) set forth concisely a statement of the matters involved, the issues

raised, the specification of errors of fact or law, or both, allegedly

committed by the Regional Trial Court, and the reasons or arguments

relied upon for the allowance of the appeal;

Xxx

DISMISSAL:


Sec.1. Grounds for dismissal of appeal—An appeal may be dismissed by

the Court of Appeals, on its own motion or on that of the appellee, on

the following grounds:

(a) Failure of the record on appeal to show on its face that the appeal

was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within

the period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as

provided in section 4 of Rule 41;

(d) Unauthorized alterations, omissions or additions in the approved

record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of

copies of his brief or memorandum within the time provided by these

Rules;

(f) Absence of specific assignment of errors in the appellant’s brief, or

of page references to the record as required in section 13, paragraphs

(a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the

correction or completion of the record within the time limited by the

court in its order;

(h) Failure of the appellant to appear at the preliminary conference

under Rule 48 or to comply with orders, circulars, or directives of the

court without justifiable cause; and

(i) The fact that order or judgment appealed from is not appealable.

(1a)


Sec. 2. Dismissal of improper appeal to the Court of Appeals.—An appeal

under Rule 41 taken from the Regional Trial Court to the Court of

Appeals raising only questions of law shall be dismissed, issues purely

of law not being reviewable by said court. Similarly, an appeal by

notice of appeal instead of by petition for review from the appellate

judgment of a Regional Trial Court shall be dismissed. (n)

An appeal erroneously taken to the Court of Appeals shall not be

transferred to the appropriate court but shall be dismissed outright.

(3a)

SUBMITTED for DECISION

11


The case shall be deemed submitted for decision upon

the filing of the last pleading or memorandum required

by these Rules or by the court itself. (Sec. 9, Rule 42, Rules

of Court).

Sec. 9, Rule 42, Rules of Court

Sec. 9. Submission for decision.—If the petition is given due course, the

Court of Appeals may set the case for oral argument or require the

parties to submit memoranda within a period of fifteen (15) days from

notice. The case shall be deemed submitted for decision upon the filing

of the last pleading or memorandum required by these Rules or by the

court itself. (n)

Sec.1 (B), Rule 51, Rules of Court

Sec 1. When case deemed submitted for judgment.—A case shall be deemed

submitted for judgment: Xxx

Xxx

B. In original actions and petitions for review.—

1) Where no comment is filed, upon the expiration of the period to

comment.

2) Where no hearing is held, upon the filing of the last pleading

required or permitted to be filed by the court, or the expiration of the

period for its filing.

3) Where a hearing on the merits of the main case is held, upon its

termination or upon the filing of the last pleading or memorandum as

may be required or permitted to be filed by the court, or the expiration

of the period for its filing. (n)

WITHDRAWAL:

As a matter of Right:

(a) The original records are still within the court a

quo (MTC/RTC)

Before the transmittal of the original record or

record on appeal, the court may allow the

withdrawal (Sec.9, Rule 41, Rules of Court).

(b) Records are transmitted in the appellate court

(RTC/CA)

Before the appellee files its answer, the court

may allow the withdrawal as a matter of right


As a matter of Discretion:

(a) If the appellee has already filed its answer, the

court may allow the withdrawal of the case

upon its discretion.


Xxx x

In either case, prior to the transmittal of the original record or the record on

appeal, the court may issue orders for the protection and preservation of

the rights of the parties which do not involve any matter litigated by

the appeal, approve compromises, permit appeals of indigent litigants,

order execution pending appeal in accordance with section 2 of Rule

39, and allow withdrawal of the appeal. (9a)


Sec. 3. Withdrawal of appeal.—An appeal may be withdrawn as of right

at any time before the filing of the appellee’s brief. Thereafter, the

withdrawal may be allowed in the discretion of the court. (4a)

RULE 43APPEALS FROM THE QUASI-JUDICIAL

AGENCIES TO THE COURT OF APPEALS


Rule 42 Rule 43

Scope Applies to an appeal

from the judgment or

final order of the

Regional Trial Court

to the Court of

Appeals in cases

decided by the

former in the exercise

of its appellate

jurisdiction.

Applies to awards,

judgments, final

orders or resolutions

of or authorized by

any quasi-judicial

agency in the

exercise of its quasi-

judicial functions.

How

appeal

is taken

(a) VERIFIED

petition for

review,

(b) Payment of

docket and

Same as Rule 42,

Rules of Court

(Sec.5, Rule 43, Rules

of Court).

12


other lawful

fees,

depositing

the amount

of P500.00

for costs, and

(c) Furnish a

copy of the

petition to

RTC and

adverse

party.

Where

to

Appeal

Court of Appeals Court of Appeals

Questio

ns to be

raised

Questions of Fact or

Law, or Both,

allegedly committed

by the RTC (Sec.2(c),

Rule 43, Rules of

Court).

Questions of Fact or

Law, or Both,

allegedly committed

by the quasi-judicial

authorities (Sec.3,

Rule 43, Rules of

Court).

Period Within fifteen (15)

days from notice of

the decision sought

to be reviewed or of

the denial of

petitioner’s motion

for new trial or

reconsideration filed

in due time after

judgment

Within fifteen (15)

days from notice of

the award, judgment,

final order or

resolution, or from

the date of its last, or

of the denial of

petitioner’s motion

for new trial or

reconsideration filed

in accordance with

governing law of the

court or agency a quo.


of Court)

Extensio

n

See Sec.1, Rule 42,

Rules of Court, Supra

Same as Rule 42,

Rules of Court


of Court).

Effect of

failure

to

comply

with the

reqs.

The failure of the

petitioner to comply

with any of the

requirements shall be

sufficient ground for

dismissal.

Same as Rule 42,

Rules of Court.


of Court.)

Content

s of

petition

See Sec.2, Rule 42,

Rules of Court, Supra

Same as Rule 42,

Rules of Court


of Court)

Content

s of

commen

ts

(a) State

whether or

not he

accepts the

statement of

the matters

involved.

(b) Insufficiencie

s or

inaccuracies

in

petitioner’s

statement of

facts and

issues.

(c) Reasons why

petition shall

be denied or

dismissed.

(a) Insufficiencie

s or

inaccuracies

in

petitioner’s

statement of

facts and

issues.

(b) Reasons why

petition shall

be denied or

dismissed.


of Court).

Due

course

the Court of Appeals

finds prima facie that

the lower court has

committed an error

of fact or law that

will warrant a

reversal or

modification of the

appealed decision, it

may accordingly give

due course to the

petition.

Court of Appeals

finds prima facie that

the court or agency

concerned has

committed errors of

fact or law that

would warrant

reversal or

modification of the

award, judgment,

final order or

resolution sought to

be reviewed, it may

13



of Court)

give due course to

the petition;

otherwise, it shall

dismiss the same.

The findings of fact

of the court or

agency concerned,

when supported by

substantial evidence,

shall be binding on

the Court of Appeals.


of Court)

Submitt

ed for

decision

The case shall be

deemed submitted

for decision upon the

filing of the last

pleading or

memorandum

required by the Rules

of Court (Sec.9, Rule

42, Rules of Court)

Same as Rule 42,

Rules of Court.


of Court).

Cases

not

covered

Cases decided by the

RTC in its original

jurisdiction.

This Rule shall not

apply to judgments

or final orders issued

under the Labor

Code of the

Philippines (Sec.2,

Rule 43, Rules of

Court).

Stay Except in civil cases

decided under the

Rule on Summary

Procedure, the

appeal shall stay the

judgment or final

order unless the

Court of Appeals, the

law, or these Rules

shall provide other-

wise.

(Sec.8(b), Rule 42,

The appeal shall not

stay the award,

judgment, final order

of resolution sought

to be reviewed

unless the Court of

Appeals shall direct

otherwise upon such

terms as it may deem

just.


of Court)

Rules of Court)

Table of Appeals

FROM APPEAL TO

HOW?

MTC RTC File a notice of appeal with the court (MTC) and

serve a copy of the notice to the

adverse party. Rule 40

RTC -exercise of its

original jurisdiction.

CA -only

questions of fact or

law

File a notice of appeal with the court (RTC) and

serve a copy of the notice to the

adverse party. Rule 41

RTC -exercise of its

original jurisdiction.

SC -only

questions of law

File a petition for review on

Certiorari with the Supreme Court (SC) under Rule

45. RTC

-exercise of its appellate jurisdiction

CA -

questions of fact law

or both

File a petition for review with the

CA under Rule 42.

Quasi-judicial bodies

-exercising its quasi-judicial power

CA -

questions of fact law

or both


Court of Appeals (CA) under Rule

43.

Ombudsman

-administrative disciplinary case

-Criminal case

CA



43.

SC File a petition for

review with the Supreme Court (SC) under Rule

65.

NLRC CA File a petition for review on

14


Certiorari with the Court of Appeals (CA) under Rule

65. CSC

-Judgment or Final order or resolution.

CA File a petition for review with the


COMELEC -Judgment or Final order or resolution.

SC File a petition for review on


65 as provided by Rule 64.

COA -Judgment or Final order or resolution.



65 as provided by Rule 64.

CA -exercising its

original/appellate jurisdiction



45.

CTA CTA -En Banc

File a petition for review on

Certiorari with the CTA En Banc.

CTA -En Banc


Certiorari with the SC under Rule 45.

Sandiganbayan -exercise of its

original/appellate jurisdiction.

-imposing a penalty other than Death,

reclusion perpetua, or life imprisonment.


Certiorari under Rule 45.

Sandiganbayan -exercise of its

original jurisdiction -penalty imposed is

reclusion perpetua or life imprisonment, or

where a lesser penalty is imposed

for offenses

SC File a notice of appeal with the Sandiganbayan

and serve a copy of the notice to the

adverse party.

committed on the same occasion or

which arose out of the same occurrence that gave rise to the

offense punishable by Death, RP, or LI.

RULE 45 APPEAL BY CERTIORARI TO THE

SUPREME COURT

An appeal for review on certiorari under Rule 45 may

include an application for a writ of preliminary

injunction or other provisional remedies. The petitioner

may seek the same provisional remedies by verified

motion filed in the same action or proceeding at any

time during its pendency (Rule 1, Rule 45, Rules of

Court, as amended by A.M. No. 07-7-12-SC, December 12,

2007.)

An appeal under Rule 45 is not a matter of right, but of

sound judicial discretion, and will be ground only when

special and important reasons could justify the petition.

The following are examples of reasons which the Court

may consider in allowing the petition:

(a) Question of substance not yet determined by the

Supreme Court.

(b) Court below decided a matter of substance in a

way that is not in accord with the law.

(c) Court below has departed from the accepted

and usual course of judicial proceedings.

Exception:

The penalty of death or reclusion perpetua where an

appeal is a matter of right leaving the reviewing court

without any discretion


The petition shall raise ONLY QUESTIONS OF LAW.

The rule is that before the Supreme Court, only legal

issues may be raised in a petition for review on certiorari.

The Supreme Court is not a trier of facts, and is not to

review or calibrate the evidence on record. Moreover,

15


the findings of the trial court, as affirmed by the Court of

Appeals are conclusive on the Court.

Exceptions:

(a) Question of substance not yet determined by the

Supreme Court.

(b) Court below decided a matter of substance in a

way that is not in accord with the law.

(c) Court below has departed from the accepted

and usual course of judicial proceedings.


(d) Conclusion of the CA is grounded entirely on

speculations.

(e) Inference made is manifestly mistaken.

(f) Grave abuse of discretion.

(g) Misapprehension of facts.

(h) Facts are conflicting.

(i) The CA went beyond the issues of the case.

(j) Findings of the CA are contrary to that of the

trial court.

(k) Findings of fact are conclusions without citation

of specific evidence on which they are based.

(l) Facts set forth by in the petition by the petitioner

are not disputed by the respondents.

(m) The findings of fact by the CA are premised on

the supposed absence of evidence and

contradicted by the evidence on record.

(n) In appeal from a judgment or final order of the

court in a petition for writ of amparo or habeas

data questions of fact may be raised.


Sec. 6. Review discretionary.—A review is not a matter of right, but of

sound judicial discretion, and will be granted only when there are

special and important reasons therefor. The following, while neither

controlling nor fully measuring the court’s discretion, indicate the

character of the reasons which will be considered:

(a) When the court a quo has decided a question of substance, not

theretofore determined by the Supreme Court, or has decided it in a

way probably not in accord with law or with the applicable decisions

of the Supreme Court; or

(b) When the court a quo has so far departed from the accepted and

usual course of judicial proceedings, or so far sanctioned such

departure by a lower court, as to call for an exercise of the power of

supervision.

WHEN:

The petition shall be filed and served within fifteen (15)

days from notice of the decision sought to be reviewed

or of the denial of petitioner’s motion for new trial or

reconsideration filed in due time after judgment (Sec.2,


EXTENSION:

The Court may grant an additional 30 days only within

which to file the petition for review:

(a) Upon proper motion and

(b) the payment of the full amount of the docket

and other lawful fees and the deposit for costs

(c) before the expiration of the reglementary period.


Sec. 2. Time for filing; extension.—The petition shall be filed within

fifteen (15) days from notice of the judgment or final order or

resolution appealed from, or of the denial of the petitioner’s motion for

new trial or reconsideration filed in due time after notice of the

judgment. On motion duly filed and served, with full payment of the

docket and other lawful fees and the deposit for costs before the

expiration of the reglementary period, the Supreme Court may for

justifiable reasons grant an extension of thirty (30) days only within

which to file the petition.

CONTENTS:

See Sec.2, Rule 42, Rules of Court, Supra

DISMISSAL:

Sec. 5, Rule 45, Rules of Court

Sec. 5. Dismissal or denial of petition.—The failure of the petitioner to

comply with any of the foregoing requirements regarding the payment

of the docket and other lawful fees, deposit for costs, proof of service

of the petition, and the contents of and the documents which should

accompany the petition shall be sufficient ground for the dismissal

thereof.

16


The Supreme Court may on its own initiative deny the petition on the

ground that the appeal is without merit, or is prosecuted manifestly for

delay, or that the questions raised therein are too unsubstantial to

require consideration.


Sec. 1(B), Rule 51, Rules of Court

Sec.1. When case deemed submitted for judgment.—A case shall be deemed

submitted for judgment:

Xxx



comment.




3)Where a hearing on the merits of the main case is held, upon its



of the period for its filing.


Rule 45 Rule 65

A Mode of appeal. A Special civil action that

is an original action.

Continuation of the

appellate process over the

original case.

Not a part of the appellate

process.

Seeks to review final

orders and final

judgments.

May be directed against an

interlocutory order or

matters where no appeal

may be taken from.

Raises questions of law. Raises questions of

jurisdiction because a

tribunal, board or officer

exercising judicial or extra-

judicial functions has acted

without or in excess of

jurisdiction or with grave

abuse of discretion

amounting to lack or

excess of jurisdiction.

Filed within 15days from

notice of judgment.

Filed within 60 days from

notice of judgment.

Does not require a prior

Motion for

Reconsideration.

Requires a prior Motion

for Reconsideration.

Stays the judgment

appealed.

Does not appeal the

judgment or order of the

petition unless enjoined or

restrained.

Parties as the original

parties with the appealing

party as the petitioner and

the adverse party as

respondent.

Tribunal, board, officer

exercising judicial or

quasi-judicial functions in

impleaded as respondent.

Only Filed in SUPREME

COURT.

Filed with the:

(a) RTC (Sec.21, BP

129 as amended)

(b) CA (Sec.9, BP 129

as amended)

(c) SC (Sec.5[1], Art.

VIII)

Rule 45 and Rule 65 are mutually exclusive and not

alternative or cumulative.

Court may set aside technicality for justifiable reasons as

when the petition before the court is clearly meritorious

and filed on time both under Rules 45 and 65. In

accordance with the liberal interest of justice, the Court

may treat the petition as having been filed under Rule 45

(Int’l Corporate Bank vs. CA, G.R.No.129910, Sept. 5, 2006).

RULE 46 ORIGINAL CASES

APPLICATION:

This Rule shall apply to all cases ORIGINALLY filed in

the Court of Appeals for ORIGINAL ACTIONS for

17


Certiorari, Prohibition, Mandamus, Quo Warranto,

Annulment (CPMQA).

Rule 65- CPM

Rule 66-Q

Rule 47-A

Sec. 2. To what actions applicable.—This Rule shall apply to original

actions for certiorari, prohibition, mandamus and quo warranto.

Except as otherwise provided, the actions for annulment of judgment

shall be governed by Rule 47, for certiorari, prohibition and

mandamus by Rule 65, and for quo warranto by Rule 66. (n)


Sec.1. Title of cases.—In all cases originally filed in the Court of

Appeals, the party instituting the action shall be called the petitioner

and the opposing party the respondent. (1a)

RULE 47 ANNULMENT OF JUDGMENTS OR FINAL

ORDERS AND RESOLUTIONS

APPLICATION:

The purpose of such action is to have final and executor

judgment set aside so that there will be a renewal of

litigation.

It is resorted to in cases where the ordinary remedies of

new trial, appeal, petition for relief from judgment, or

other appropriate remedies are no longer available

through no fault of the petitioner, and is based only two

grounds: Extrinsic Fraud, and Lack of Jurisdiction or

denial of due process (Alaban vs. CA, 470 SCRA 697).

GROUNDS for ANNULMENT:

A petition for annulment is an extraordinary action. By

virtue of its exceptional character, the action is restricted

exclusively to the grounds specified in the rules:

(a) EXTRINSIC FRAUD

Exists when there is a fraudulent act committed by the

prevailing party outside of the trial of the case, whereby

the defeated party was prevented from presenting fully

his side of the case by deception practiced by the

prevailing party (Alba vs. CA, 465 SCRA 495).

(b) LACK OF JURISDICTION

Refers to either lack of jurisdiction over the person of the

defending party or over the subject matter of the claim.

Petitioner must show an absolute lack of authority to

decide the case.

EFFECT of JUDGMENT OF ANNULMENT:

(a) EXTRINSIC FRAUD

1) Where the judgment or final order is set aside,

and annulled on the ground of EF, the court,

upon motion, may order the trial court to try the

case as if a motion for new trial was granted


Sec.7. Rule 47, Rules of Court

Sec. 7. Effect of judgment- Xxx

However, where the judgment or final order or resolution is set aside

on the ground of extrinsic fraud, the court may on motion order the

trial court to try the case as if a timely motion for new trial had been

granted therein.

(b) LACK OF JURISDICTION

A judgment of annulment based on LOJ shall

have the effect of setting aside the questioned

judgment or final order and rendering the same

null and void but the judgment of annulment is

without prejudice to the refilling of the original

action in the proper court(Sec.7, Rule 47, Rules of

Court).


Sec. 7. Effect of judgment- A judgment of annulment shall set aside the

questioned judgment or final order or resolution and render the same

null and void, without prejudice to the original action being refiled in

the proper court. Xxx

(c) Judgment may include award of damages,

attorney’s fees, and other relief (Sec.9, Rule 47,

Rules of Court).


Sec.9. Relief available.—The judgment of annulment may include the

18


award of damages, attorney’s fees and other relief.

If the questioned judgment or final order or resolution had already

been executed, the court may issue such orders of restitution or other

relief as justice and equity may warrant under the circumstances. (n)

ANNULMENT of the MTC:


Sec. 10. Annulment of judgments or final orders of Municipal Trial

Courts.—An action to annul a judgment or final order of a Municipal

Trial Court shall be filed in the Regional Trial Court having jurisdiction

over the former. It shall be treated as an ordinary civil action and

sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)

INTERRUPTION and PROHIBITION:

The prescriptive period of the original action shall be

deemed suspended from the filing of the original action

until its finality (Sec.8, Rule 47, Rules of Court).


Sec.8. Suspension of prescriptive period.—The prescriptive period for the

refiling of the aforesaid original action shall be deemed suspended

from the filing of said original action until the finality of the judgment

of annulment. However, the prescriptive period shall not be

suspended where the extrinsic fraud is attributable to the plaintiff in

the original action. (n)

Only pleadings allowed by the Court shall be allowed,

otherwise, a leave of court is necessary (Sec.5, Rule 46,

Rules of Court).


Sec. 5. Action by the court.—Xxx

Only pleadings required by the court shall be allowed. All other

pleadings and papers, may be filed only with leave of court. (n)

DISMISSAL:


Sec.3. Contents and filing of petition; effect of non-compliance with

requirements.-Xxx

Xxx

The failure of the petitioner to comply with any of the foregoing

requirements shall be sufficient ground for the dismissal of the

petition. (n)


Sec.5. Action by the court.—The court may dismiss the petition outright

with specific reasons for such dismissal or require the respondent to

file a comment on the same within ten (10) days from notice. Xxx


Sec.5. Action by the court.—Should the court find no substantial merit

in the petition, the same may be dismissed outright with specific

reasons for such dismissal. Xxx



Sec.7. Effect of failure to file comment.—When no comment is filed by any

of the respondents, the case may be decided on the basis of the record,

without prejudice to any disciplinary action which the court may take

against the disobedient party. (n)

Sec.1(B), Rule 50, Rules of Court

Sec 1. When case deemed submitted for judgment.—A case shall be deemed

submitted for judgment: Xxx

Xxx



comment.




3) Where a hearing on the merits of the main case is held, upon its



of the period for its filing. (n)


Rule 38 Rule 47

Scope Available not only

against a judgment

or final order, it is

(a) Rule shall

govern the

annulment

19


also available when

―any other

proceeding is

thereafter taken

against then

petitioner in any

other COURT

through Fraud,

Accident, Mistake,

Excusable negligence


of Court).

by the Court

of Appeals of

judgments

or final

orders and

resolutions

in civil

actions of

Regional

Trial Courts

for which

the ordinary

remedies of

new trial,

appeal,

petition for

relief or

other

appropriate

remedies are

no longer

available

through no

fault of the

petitioner.


of Court)

(b) Annulment

of

judgments

or final

orders of

Municipal

Trial Courts.


of Court)

Who ONLY the PARTIES

of the case.

ANY PERSON as

long as there is a

showing that he was

affected by the

judgment.

How

appeal is

(a) File a

VERIFIED

(a) File a

VERIFIED

taken PETITION.

(b) Accompanie

d with

affidavits

showing

FAME.

(c) FACTS

constituting

the

petitioner’s

GOOD and

SUBSTANTI

AL cause of

action or

Defense.


of Court)

PETITION.

(b) FACTS

constituting

the

petitioner’s

GOOD and

SUBSTANTI

AL cause of

action or

Defense.

(c) LAW relied

upon

annulment.

(d) Accompanie

d with

affidavits of

Witnesses.

(d) CERTIFICA

TE of NON-

FORUM

SHOPPING.


of Court)

Where In the Court where

the judgment, order,

or resolution was

rendered (Secs.1 and

2, Rule 38, Rules of

Court).

(a) MTC

(b) RTC

Not available in CA

and SC.

Court of Appeals if

what is sought to be

annulled is a

decision of the RTC


of Court).

RTC if what is

sought to be

annulled is a

decision of the MTC


of Court).

(a) RTC

(b) CA

Period (a) within sixty (60) days after the

(a) If based on extrinsic fraud, the

20


petitioner learns of the judgment, final order, or other proceeding to be set aside, and

(b) not more than six (6) months after such judgment or final order was entered, or such proceeding was taken.


of Court)

action must be filed within four (4) years from its discovery; and

(b) If based on lack of jurisdiction, before it is barred by laches or estoppel.


of Court)

Grounds Fraud, Accident,

Mistake, Excusable

Negligence (FAME).

(a) Judgment or

Final order

is entered

through

FAME. or

(b) Any other

proceeding

is thereafter

taken

against a

party

through

FAME. or


of Court)

(c) Judgment or

Final order

is entered

and a party

by FAME

was

(a) Extrinsic

Fraud; and

(b) Lack of

Jurisdiction


of Court)

prevented

from taking

an appeal.


of Court)

Availabi

lity

(a) After the

judgment or

final order

has become

final or

executory

and that no

other

remedy is

available.

(b) Any other

proceeding

is thereafter

taken

against then

petitioner in

any other

COURT

through

Fraud,

Accident,

Mistake,

Excusable

negligence.


of Court).

(a) After the

judgment or

final order

has become

final or

executory

and that no

other

remedy is

available.


of Court)

RULE 65 CERTIORARI, PROHIBITION,

MANDAMUS

*only Certiorari of Rule 65 will be discussed as this topic

is compared to Rule 45.

CERTIORARI:

Called a ―supervisory or superintending writ,‖ this

remedy is availed of to annul or modify the proceedings

of a tribunal, board or officer exercising judicial or

21


extrajudicial functions which has acted without or in

excess of jurisdiction, or with grave abuse of discretion

amounting to lack or excess of jurisdiction.

As a rule, where appeal is available, certiorari cannot be

availed of unless it can be shown that appeal is not

speedy, or adequate.

The task of the court in a certiorari proceeding is to

determine whether the lower court committed grave

abuse of discretion (Marcopper Mining vs. Solidbank

Corporation, GR No. 134049). Its function is to raise

questions of jurisdiction and no other. It cannot be used

for any other purpose (Landbank vs. CA, 409 SCRA 455).

Do not file certiorari if your purpose is to raise a factual

issue or to ask for re-evaluation of the facts and the

evidence (PILTEL vs. NTC, 410 SCRA 82).

The phrase ―grave abuse of discretion‖ has a precise

meaning in law, denoting abuse of discretion ―too patent

and gross as to amount to an evasion of a positive duty,

or a virtual refusal to perform the duty enjoined or act in

contemplation of law, or where the power is exercised in

an arbitrary and despotic manner by reason of passion

and personal hostility.

MOTION for RECONSIDERATION

The general rule is that before filing a petition for

certiorari under Rule 65 of the Rules of Court, the

petitioner is mandated to comply with the condition

precedent:

(1) The filing of a Motion for Reconsideration, and

(2) The subsequent denial of the court a quo.

However, the rule is subject to the following recognized

exceptions:

(a) The court a quo has no jurisdiction

(b) Questions raised in the certiorari proceeding

have been duly raised and passed upon by the

lower court, or are the same as those raised and

passed upon in the lower court.

(c) Urgent necessity for the resolution of the

questions and any further delay would

prejudice the interest of the petitioner.

(d) Motion for reconsideration is useless.

(e) Petitioner was deprived of due process and

there is extreme urgency for relief.

(f) In criminal case, relief from an order of arrest is

urgent.

(g) The proceeding was ex parte or in which the

petitioner had no opportunity to object.

(h) Issue raised is one purely of law or public

interest is involved.


See Table in RULE 45, Supra

Distinction between a DIRECT from a COLLATERAL

ATTACK

A DIRECT ATTACK of a judgment is made through an

action or proceeding the main object of which is to

annul, set aside or enjoin the enforcement of such

judgment if not yet carried into effect; or if the property

has been disposed of, the aggrieved party may sue

recovery.

A COLLATERAL ATTACK is made when, in another

action to obtain a different relief, an attack on the

judgment is made as an incident in said action. This is

proper only when the judgment, on its face, is null and

void, as where it is patent that the court which rendered

said judgment has no jurisdiction (Co vs. C.A., 196 SCRA

705).

Examples: A petition for certiorari under Rule 65 is a

direct attack. It is filed primarily to have an order

annulled. An action for annulment of a judgment is

likewise a direct attack on a judgment is likewise a direct

attack on a judgment. A motion to dismiss a complaint

for collection of a sum of money filed by a corporation

against the defendant on the ground that the plaintiff

has no legal capacity to sue is a collateral attack on the

22


corporation. A motion to dismiss is incidental to the

main action for a sum of money. It is not filed as an

action intended to attack the legal existence of the

plaintiff (Macabingkil vs. PHHC, 72 SCRA 326; Co vs. C.A.,

196 SCRA 705).

References:

Riano, William B., Civil Procedure (A

Restatement of the Bar) Rules 1-71, Manila:

Central Bookstore, Inc., 2002

Lakas Atenista Civil Procedure Reviewer I and

II 2007

Ateneo University Civil Procedure Reviewer

2001

Rules on Civil Procedure, Rules of Court,

Manila: Rex Bookstore, Inc., 2009

DISCLAIMER:

The views or opinions presented in this reviewer are

solely those of the author and do not necessarily

represent those of the authors in the given reference.

The author accepts no liability for the content of this

reviewer, or for the consequences of the usage, abuse, or

any actions taken by the user on the basis of the

information given.

The reviewer is a compilation of different law books/

reviewers and not an original creation of the author. The

references may vary from different reviewers. Thus, the

user is tasked to be vigilant on any discrepancies on the

given information.

Post Judgment Remedies Civ Pro

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