You are on page 1of 1

RULE 41: G.R. No. 167631 December 16, 2005 Jenette Marie B. Crisologo, Petitioner, vs.

GLOBE TELECOM INC. and Cesar M. Maureal, Vice President for Human Resources, Respondents. FACTS: 1. CRISOLOGO was an employee of GLOBE and as Director was given a Toyota Camry, but was later separated, causing her to file illegal dismissal and reinstatement before NLRC but was dismissed. Appeal before CA on CERTIORARI GLOBE on RTC: action for recovery of the car: application for a writ of replevin with damages. CRISOLOGO: dismiss Litis pendentia and forum shopping DENIED. Before CA: writ of prohibition to enjoin proceedings in the replevin case GLOBE: motion to declare CRISO in default was GRANTED. TC decision: declaring GLOBE to have the right of possession over the subject motor vehicle and ordering CRISO to pay GLOBE CRISO: SC: CERTIORARI was denied for being a wrong remedy under RC. CRISO: MR on SC: alleging that the filing of said petition is the proper recourse, citing Matute vs. Court of Appeals, 26 SCRA 798 (1969), wherein it was ruled that a defendant declared in default has the remedy set forth in Section 2, paragraph 3 of Rule 41 of the old Rules of Court. Petitioner then cited in her motion, "Section 2, paragraph 3 or (c) of the Rules of Civil Procedure.

2.

2. 3.

3.

accordance with Rule 45." Hence, she directly filed her petition for review on certiorari with the Court. VINTAGE CASE na xa, wont apply coz of New RC old, had already been superseded by the 1997 Rules of Civil Procedure, as amended, and under these new rules, the different modes of appeal are clearly laid down. The filing of the present petition is clearly not the proper remedy to assail the default judgment rendered by the trial court. Petitioner still has the available remedy of filing with the Regional Trial Court a motion for new trial or an ordinary appeal to the Court of Appeals from the trial courts default judgment. Note that petitioner admits that she was "properly declared in default."6 Thus, there is no question of any improvident or improper declaration of default by the trial court, and the remedy of filing a special civil action for certiorari has been effectively foreclosed on petitioner. Her only recourse then is to file an ordinary appeal with the Court of Appeals under Section 2(a), Rule 41 of the 1997 Rules of Civil Procedure, as amended. The remedies available to a party declared in default:

4. 5. 6. 7.

a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]); b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Section 1 (a) of Rule 37; c) If the defendant discovered the default after the judgment has become final and executory, he may file apetition for relief under Section 2 [now Section 1] of Rule 38; and d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41).

ISSUE: WON PET for CERT is the proper remedy to assail RTC judgment HELD: NO 1. Evidently, petitioner misread the provision cited in the Matute case as that pertaining to Section 2(c), Rule 41 of the 1997 Rules of Civil Procedure, as amended, which states: "(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 oncertiorari in

You might also like