PROVISIONAL REMEDIES PRELIMINARY ATTACHMENT (Mangila vs CA) Preliminary attachment has 3 stages: first, the court issues the

order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant. (Chuidian vs Sandiganbayan) Supervening events which may or may not justify the discharge of the writ are not within the purview of this particular rule. When the writ of attachment is issued upon a ground which is at the same time the applicant's cause of action, the only other way the writ can be lifted or dissolved is by a counterbond, in accordance with Section 12 of the same rule (Du vs Stronghold Insurance) A levy on execution duly registered takes preference over a prior unregistered sale; and that even if the prior sale is subsequently registered before the sale in execution but after the levy was duly made, the validity of the execution sale should be maintained, because it retroacts to the date of the levy; otherwise, the preference created by the levy would be meaningless and illusory. (Wenceslao vs Readycon Trading) If the applicant for a preliminary attachment is found by the court to be entitled as such, then no damages may be recovered by adverse party resulting from such attachment. The attachment debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply availing himself of one way of discharging the attachment writ, instead of the other. Moreover, the filing of a counter-bond is a speedier way of discharging the attachment writ maliciously sought out by the attaching party creditor instead of the other way, which in most instances like in the present case, would require presentation of evidence in a full-blown trial on the merits and cannot easily be settled in a pending incident of the case. PRELIMINARY INJUNCTION (Idolor vs CA) Injunction is a preservative remedy aimed at protecting substantive rights and interests. Before an injunction can be issued, it is essential that the following requisites be present: 1) there must be a right in esse or the existence of a right to be protected; 2) the act against which the injunction is to be directed is a violation of such right. Hence the existence of a right violated, is a prerequisite to the granting of an injunction. Injunction is not designed to protect contingent or future rights. Failure to establish either the existence of a clear and positive right which should be judicially protected through the writ of injunction or that the defendant has committed or has attempted to commit any act which has endangered or tends to endanger the existence of said right, is a sufficient ground for denying the injunction. The controlling reason for the existence of the judicial power to issue the writ is that the court may thereby prevent a threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly investigated and advisedly adjudicated. It is to be resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. It is always a ground for denying injunction that the party seeking it has

insufficient title or interest to sustain it, and no claim to the ultimate relief sought (filed beyond redemption period). The possibility of irreparable damage without proof of actual existing right is not aground for an injunction. (Gustilo vs Real) We do not see how the complainant's exercise of such rights would cause an irreparable injury or violate the right of the losing candidate so as to justify the issuance of a temporary restraining order "to maintain the status quo." We see no reason to disagree with the finding of the OCA that the evident purpose of the second TRO was to prevent complainant from participating in the election of the Liga ng mga Barangay. (OWWA vs Chavez) The status quo should be that existing at the time of the filing of the case. The status quo usually preserved by a preliminary injunction is the last actual, peaceable and uncontested status which preceded the actual controversy. The status quo ante litem is, ineluctably, the state of affairs which is existing at the time of the filing of the case. Indubitably, the trial court must not make use of its injunctive power to alter such status. What is imperative in preliminary injunction cases is that the writ can not be effectuated to establish new relations between the parties. (Limitless Potential vs CA) Malice or lack of good faith is not an element of recovery on the bond. This must be so, because to require malice as a prerequisite would make the filing of a bond a useless formality. The dissolution of the injunction, even if the injunction was obtained in good faith, amounts to a determination that the injunction was wrongfully obtained and a right of action on the injunction bond immediately accrues. Thus, for the purpose of recovery upon the injunction bond, the dissolution of the injunction because of petitioners main cause of action provides the actionable wrong for the purpose of recovery upon the bond. The injunction bond is answerable for all damages suffered by reason only of the issuance of the writ RECEIVERSHIP (Sy Yong Hu vs CA) Receivership, which is admittedly a harsh remedy, should be granted with extreme caution. Sound bases therefor must appear on record, and there should be a clear showing of its necessity. The need for a receivership in the case under consideration can be gleaned from the aforecited disquisition by the Court of Appeals finding that the properties of the partnership were in danger of being damaged or lost on account of certain acts of the appointed manager in liquidation. (Larrobis vs Phil Veterans Bank) When a bank is prohibited from continuing to do business by the Central Bank and a receiver is appointed for such bank, that bank would not be able to do new business, i.e., to grant new loans or to accept new deposits. However, the receiver of the bank is in fact obliged to collect debts owing to the bank, which debts form part of the assets of the bank. The receiver must assemble the assets and pay the obligation of the bank under receivership, and take steps to prevent dissipation of such assets. Accordingly, the receiver of the bank is obliged to collect preexisting debts due to the bank, and in connection therewith, to foreclose mortgages securing such debts. Hence, Prescription will still run against the bank under receivership. A bank is bound by the acts, or failure to act of its receiver. However, the bank may go after the receiver who is liable to it for any culpable or negligent failure to collect the assets of such bank and to safeguard its assets. (Aguilar vs Manila Banking)

Besides, it would be absurd to adopt petitioners position that they are not obliged to pay interest on their obligation when respondent was placed under receivership. When a bank is placed under receivership, it would only not be able to do new business, that is, to grant new loans or to accept new deposits. However, the receiver of the bank is in fact obliged to collect debts owing to the bank, which debts form part of the assets of the bank. Thus, petitioners obligation to pay interest subsists even when respondent was placed under receivership. The respondents receivership is an extraneous circumstance and has no effect on petitioners obligation. REPLEVIN (Orosa vs CA) If recovery of personal property is not possible, the applicant may recover its equivalent in money. (Yang vs Valdez) The provisional remedy of replevin is in the nature of a possessory action and the applicant who seeks immediate possession of the property involved need not be holder of the legal title to the property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section 2, Rule 60, "entitled to the possession thereof." Hence, after defendant had been duly represented by counsel even at the inception of the service of summons and a copy of the order of replevin on January 7, 1985, defendant Thomas Yang had already been duly served, especially so, when counsel manifested in their comment to the opposition filed by plaintiffs that Manuel Yap has been duly authorized to represent Thomas Yang. From then on defendant should have been on guard as to the provision of Section 6, Rule 60 of the Rules of Court: the five (5) days period within which to file the counter-replevin for the approval of the court, counted from the actual taking of the property by the officer or the sheriff on January 7, 1985. (Superlines Transportation vs PNC) Following the conduct of an investigation of the accident, the bus was towed by respondents on the request of Lopera. It was thus not distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis. It is true that property held as evidence in a criminal case cannot be replevied. But the rule applies only where the property is lawfully held, that is, seized in accordance with the rule against warrantless searches and seizures or its accepted exceptions. Property subject of litigation is not by that fact alone in custodia legis. As the Court said in Tamisin v. Odejar, "A thing is in custodia legis when it is shown that it has been and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal writ." Only when property is lawfully taken by virtue of legal process is it considered in the custody of the law, and not otherwise. SUPPORT (De Asis vs CA) The right to receive support can neither be renounced nor transmitted to a third person. Future support cannot be the subject of a compromise. The agreement entered into between the petitioner and respondent's mother for the dismissal of the complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise which cannot be countenanced. It violates the prohibition against any compromise of the right to support. (People vs Manahan)

On the matter of acknowledgment and support of the child, a correction of the view of the court a quo is in order. Article 345 of The Revised Penal Code provides that persons guilty of rape shall also be sentenced to "acknowledge the offspring, unless the law should prevent him from doing so," and "in every case to support the offspring." In the case before us, compulsory acknowledgment of the child Melanie Tibigar is not proper there being a legal impediment in doing so as it appears that the accused is a married man. As pronounced by this Court in People v. Guerrero, the rule is that if the rapist is a married man, he cannot be compelled to recognize the offspring of the crime, should there be any, as his child, whether legitimate or illegitimate." Consequently, that portion of the judgment under review is accordingly deleted. In any case, we sustain that part ordering the accused to support the child as it is in accordance with law. (Lopez vs CA) En passant, the dismissal of the petition notwithstanding, petitioner is not without remedy. For as what he seeks to assail is the amount of support he was adjudged to provide, he can file a motion with the trial court for its modification since a judgment granting support never becomes final.

SPECIAL CIVIL ACTION INTERPLEADER (Eternal Gardens vs IAC) Under the circumstances, there appears to be no plausible reason for petitioner's objections to the deposit of the amounts in litigation after having asked for the assistance of the lower court by filing a complaint for interpleader where the deposit of aforesaid amounts is not only required by the nature of the action but is a contractual obligation of the petitioner under the Land Development Program. As correctly observed by the Court of Appeals, the essence of an interpleader, aside from the disavowal of interest in the property in litigation on the part of the petitioner, is the deposit of the property or funds in controversy with the court. it is a rule founded on justice and equity: that the plaintiff may not continue to benefit from the property or funds in litigation during the pendency of the suit at the expense of whoever will ultimately be decided as entitled thereto. (Wack-wack Golf & Country vs Lee Won) The remedy by interpleader is afforded to protect the party from the annoyance and hazard of two or more actions touching the same property or demand; but one who, with knowledge of all the facts, neglects to avail himself of the relief, or elects to take the chances for success in the actions at law, ought to submit to the consequences of defeat. To permit an unsuccessful defendant to compel the successful plaintiffs to interplead, is to increase instead of to diminish the number of suits; to put upon the shoulders of others the burden which he asks may be taken from his own. (Mesina vs IAC) Considering the aforementioned facts and circumstances, respondent bank merely took the necessary precaution not to make a mistake as to whom to pay and therefore interpleader was its proper remedy. It has been shown that the interpleader suit was filed by respondent bank because petitioner and Jose Go were both laying their claims on the check, petitioner asking payment thereon and Jose Go as the purchaser or owner. Bank filed the interpleader suit not because petitioner sued it but because petitioner is laying claim to the same check that Go is claiming. On the very day that the bank instituted the case in interpleader, it was not aware of any suit for damages filed by petitioner against it as supported by the fact that the interpleader case was first entitled Associated Bank vs. Jose Go and John Doe, but later on changed to Marcelo A. Mesina for John Doe when his name became known to respondent bank. DECLARATORY RELIEF (Velarde vs SJS) The essential requisites: (1) there is a justiciable controversy; (2) the controversy is between persons whose interests are adverse; (3) the party seeking the relief has a legal interest in the controversy; and (4) the issue is ripe for judicial determination. In special civil actions for declaratory relief, the concept of a cause of action under ordinary civil actions does not strictly apply. The reason for this exception is that an action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of rights arising thereunder. Nevertheless, a breach or violation should be impending, imminent or at least threatened. (Tambunting vs Sumabat) Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the court can no longer assume jurisdiction over the action. In other words, a court has no more jurisdiction over an action for declaratory relief if its subject, i.e., the statute, deed, contract, etc., has already been infringed or transgressed before the institution of the

action. Under such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is nothing more for the court to explain or clarify short of a judgment or final order. Hence prescription would still run (Almeda vs Bathala Mktg) Requisites of an action for declaratory relief, as follows: 1) the subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance; 2) the terms of said documents and the validity thereof are doubtful and require judicial construction; 3) there must have been no breach of the documents in question; 4) there must be an actual justiciable controversy or the ripening seeds of one between persons whose interests are adverse; 5) the issue must be ripe for judicial determination; and 6) adequate relief is not available through other means or other forms of action or proceeding. (Kawasaki Port Services vs Amores) It is easy to see in the instant case, that what is sought is a declaration not only that private respondent is a corporation for there is no dispute on that matter but also that it is separate and distinct from C.F. Sharp Kabushiki Kaisha and therefore, not liable for the latter's indebtedness. It is evident that monetary obligations does not, in any way, refer to status, lights and obligations. Obligations are more or less temporary, but status is relatively permanent. But more importantly, as cited in the case of (Dy Poco v. Commissioner of Immigration, et al., 16 SCRA 618 [1966]), the prevailing rule is that "where a declaratory judgment as to a disputed fact would be determinative of issues rather than a construction of definite stated rights, status and other relations, commonly expressed in written instrument, the case is not one for declaratory judgment." Thus, considering the nature of a proceeding for declaratory judgment, wherein relief may be sought only to declare rights and not to determine or try issues, there is more valid reason to adhere to the principle that a declaratory relief proceeding is unavailable where judgment would have to be made, only after a judicial investigation of disputed issues. In fact, private respondent itself perceives that petitioners may even seek to pierce the veil of corporate identity. (Dy Poco vs Commissioner of immigration) Where a declaratory judgment as to a disputed fact would be determinative of issues rather than a construction of definite stated rights, status, and other relations, commonly expressed in written instruments, the case is not one for declaratory judgment. And, here, the material issues are the citizenship of the mother and the illegitimacy of the petitioner, and the rights and status of the latter which are sought to be declared are dependent upon those disputed issues. A declaratory relief proceeding is unavailable where the judgment would have to be made only after a judicial investigation of disputed facts. (Adlawan vs IAC) This action was initiated on a petition for declaratory relief, ostensibly for a declaration of the rights and obligations of the parties under the laws and ordinances involved therein or invoked by them. Consequently, in such special civil action the judgment does not essentially entail an executory process since generally, other than a declaration of such rights and duties, other affirmative reliefs, as these are understood in ordinary civil actions, are not sought by the proponent. However, the Court has held that although the action is for a declaratory judgment but the allegations in the complaints are sufficient to make out a case for specific performance or recovery of property with claims for damages, and the defendants did not raise an issue in the trial court to challenge the remedy or form of the action availed of, the court can grant such

affirmative relief as may be warranted by the evidence. This decisional rule applies to the case at bar. CERTIORARI (Llamzon vs Logronio) While the general rule is that before certiorari may be availed of, petitioner must have filed a motion for reconsideration of the act or order complained of, the Court has dispensed with this requirement in several instances. Thus, a previous motion for reconsideration before the filing of a petition for certiorari is necessary unless: (i) the issue raised is one purely of law; (ii) public interest is involved; (iii) there is urgency; (iv) a question of jurisdiction is squarely raised before and decided by the lower court; and (v) the order is a patent nullity. (Insular Life vs Serrano) The courts do not interfere with the discretion of the public prosecutor in determining the specificity and adequacy of the averments in a criminal complaint. The determination of probable cause for the purpose of filing an information in court is an executive function which pertains at the first instance to the public prosecutor and then to the Secretary of Justice. The duty of the Court in appropriate cases is merely to determine whether the executive determination was done without or in excess of jurisdiction or with grave abuse of discretion. Resolutions of the Secretary of Justice are not subject to review unless made with grave abuse. At any rate, not every erroneous conclusion of law or fact is an abuse of discretion. Erroneous inferences of fact or conclusions of law are correctable by certiorari only if they are of such a degree as to amount to a clear case of abuse of discretion of the grave and malevolent kind. (Tuazon vs Register of Deeds of Caloocan) These acts may thus be properly struck down by the writ of certiorari, because done by an officer in the performance of what in essence is a judicial function, if it be shown that the acts were done without or in excess of jurisdiction, or with grave abuse of discretion. Since Mr. Marcos was never vested with judicial power, such power, as everyone knows, being vested in the Supreme Court and such inferior courts as may be established by law, the judicial acts done by him were in the circumstances indisputably perpetrated without jurisdiction. The acts were completely alien to his office as chief executive, and utterly beyond the permissible scope of the legislative power that he had assumed as head of the martial law regime. (Torres vs Aguinaldo) By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. MANDAMUS (Licaros vs Sandiganbayan) Mandamus is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when mandated by the Constitution. To reiterate, the right of the accused to the speedy disposition of a case is a right guaranteed under the fundamental law. Correlatively, it is the bounden duty of a court, as mandated by the Constitution, to speedily dispose of the case before it. Thus, a party to a case may demand, as a matter mandated by the Constitution, expeditious action from all officials who are tasked with the administration of justice. Ideally, a petition for mandamus lies to compel the performance of

a ministerial but not of a discretionary duty. More specifically, persons or public officials may be directed to act with or to exercise discretion, but not as to how that discretion should be exercised. However, our jurisprudence is replete with exceptions in this matter. Thus, it has been held that in a case where there is "gross abuse of discretion, manifest injustice or palpable excess of authority," the writ may be issued to control precisely the exercise of such discretion. (UP Board of Regents vs Ligot-Telan) Mandamus is never issued in doubtful cases, a showing of a clear and certain right on the part of the petitioner being required. It is of no avail against an official or government agency whose duty requires the exercise of discretion or judgment. (Lacson vs Perez) When there are surfeit of other remedies which can be availed of, prohibition and mandamus are improper. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award QUO WARRANTO (Calleja vs Panday) Section 1(a) of Rule 66 of the present Rules no longer contains the phrase "or an office in a corporation created by authority of law" which was found in the old Rules. Clearly, the present Rule 66 only applies to actions of quo warranto against persons who usurp a public office, position or franchise; public officers who forfeit their office; and associations which act as corporations without being legally incorporated despite the passage of R.A. No. 8799. It is, therefore, The Interim Rules of Procedure Governing IntraCorporate Controversies Under R.A. No. 8799 (hereinafter the Interim Rules) which applies to the petition for quo warranto filed by respondents before the trial court since what is being questioned is the authority of herein petitioners to assume the office and act as the board of directors and officers of St. John Hospital, Incorporated. (Mendoza vs Allas) Ordinarily, a judgment against a public officer in regard to a public right binds his successor in office. This rule, however, is not applicable in quo warranto cases. A judgment in quo warranto does not bind the respondent's successor in office, even though such successor may trace his title to the same source. This follows from the nature of the writ of quo warranto itself. It is never directed to an officer as such, but always against the person to determine whether he is constitutionally and legally authorized to perform any act in, or exercise any function of the office to which he lays claim. In the case at bar, the petition for quo warranto was filed by petitioner solely against respondent Allas. What was threshed out before the trial court was the qualification and right of petitioner to the contested position as against respondent Ray Allas, not against Godofredo Olores. The Court of Appeals did not err in denying execution of the trial court's decision. EXPROPRIATION (City of Manila vs Serrano) Thus, a writ of possession may be issued by a court upon the filing by the government of a complaint for expropriation sufficient in form and substance and upon deposit made by the government of the amount equivalent to the assessed value of the property subject to expropriation. Upon compliance with these requirements, the issuance of the writ of possession becomes ministerial. In this case, these requirements were satisfied and, therefore, it became the ministerial duty of the court to issue the writ of possession.

(NAPOCOR vs CA) Ordinarily, the dismissal of the expropriation case restores possession of the expropriated land to the landowner. However, when possession of the land cannot be turned over to the landowner because it is neither convenient nor feasible anymore to do so, the only remedy available to the aggrieved landowner is to demand payment of just compensation. The Property is worthless to Pobre and is now useful only to NPC. Pobre has completely lost the Property as if NPC had physically taken over the entire 68,969 squaremeter Property. This case ceased to be an action for expropriation when NPC dismissed its complaint for expropriation. Since this case has been reduced to a simple case of recovery of damages, the provisions of the Rules of Court on the ascertainment of the just compensation to be paid were no longer applicable. A trial before commissioners, for instance, was dispensable. We have held that the usual procedure in the determination of just compensation is waived when the government itself initially violates procedural requirements. NPC's taking of Pobre's property without filing the appropriate expropriation proceedings and paying him just compensation is a transgression of procedural due process. (Republic vs Phil-Ville Dev.) To stress, payment of just compensation is not a condition sine qua non to the issuance of an order of expropriation. In expropriation proceedings, it is the transfer of title to the land expropriated that must wait until the indemnity is actually paid. (Republic vs Andaya) "Taking," in the exercise of the power of eminent domain, occurs not only when the government actually deprives or dispossesses the property owner of his property or of its ordinary use, but also when there is a practical destruction or material impairment of the value of his property. FORECLOSURE OF REAL ESTATE MORTGAGE (Dayot vs Shell Chemical) The obligation of a court to issue a writ of possession in favor of the purchaser in an extrajudicial foreclosure sale of a mortgaged property ceases to be ministerial once it is shown that there is a third party in possession of the property who is claiming a right adverse to that of the mortgagor and that such third party is a stranger to the foreclosure proceedings in which the exparte writ of possession was applied for. (Servicewide Specialist vs CA) The mortgagor must be impleaded in a replevin suit for recovery of mortgaged property and not just the possessor. Mortgagee must establish a clear right first before he may be entitled to possession of property and this is only possible when mortgagor is impleaded. Hence, the mortgagor is an indispensable party. (UnionBank vs CA) It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. Consolidation took place as a matter of right since there was no redemption of the foreclosed property. Notice to the mortgagors, and with more reason, to private respondents who are not even parties to the mortgage contract nor to the extra judicial sale, is not necessary. (Ardiente vs Provincial Sheriff) It is settled that personal notice to the mortgagor in extra-judicial foreclosure proceedings is not necessary, hence, not a ground to set aside the foreclosure sale. (BPI vs Veloso)

Bona fide redemption necessarily implies a reasonable and valid tender of the entire repurchase price, otherwise the rule on the redemption period fixed by law can easily be circumvented. In order to effect a redemption, the judgment debtor must pay the purchaser the redemption price composed of the following: (1) the price which the purchaser paid for the property; (2) interest of 1% per month on the purchase price; (3) the amount of any assessments or taxes which the purchaser may have paid on the property after the purchase; and (4) interest of 1% per month on such assessments and taxes. Redemption within the period allowed by law is not a matter of intent but a question of payment or valid tender of the full redemption price within said period. PARTITION (Heirs of Teves vs CA) Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. FORCIBLE ENTRY AND UNLAWFUL DETAINER (CGR Corp vs Treyes) An independent action may be filed for actions for damages arising from incidents occurring after dispossession (Larano vs Calendacion) In unlawful detainer, 2 requisites must be present: (a) there must be failure to pay the installment due or comply with the conditions of the Contract to Sell; and (b) there must be demand both to pay or to comply and vacate within the periods specified in Section 2 of Rule 70. (Raymundo vs Bandong) Only possession is the issue in an ejectment suit (Refugia vs CA) An ejectment suit is limited only to the issue of possession, even when appealed to the RTC (Javelosa vs CA) The issue of ownership is different from the issue of possession, hence, the filing of a case before the RTC questioning ownership does not preclude the filing before the MTC of an ejectment suit questioning possession. CONTEMPT (Judge Espanol vs Formoso) A person accused of indirect contempt may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel (Montenegro vs Montenegro) When the act which the trial court ordered the petitioner to do has already been performed, albeit belatedly and not without delay for an unreasonable length of time, the penalty of imprisonment may no longer be imposed despite the fact that its non-implementation was due to petitioners absence. (Sison vs Caoibes Jr.) Contempt is improper if issued against a person that has no interest or relation to a case, especially if such person is not a party to the case. (Yasay vs Recto) Contempt partakes of the nature of a criminal offense. The exoneration of the contemner from the charge amounts to an acquittal from which an appeal would not lie.