Civil Procedure: Rule 61 Support

Pendente Lite

Sec. 1. Application. At the commencement of the proper action or proceeding, or at any time
prior to the judgment or final order, a verified application of support pendente lite may be filed
by any party stating the grounds for the claim and the financial conditions of both parties, and
accompanied by affidavits, depositions or other authentic documents in support thereof.

What is support pendente lite?

It is a provisional remedy which grants a person entitled to support an amount enough for his
sustenance, dwelling, clothing, medical attendance, education and transportation (Art. 194,
Family Code) while the action is pending in court. It may be availed of by any of the parties in
the action for support or in a proceeding where one of the reliefs sought is support for the
applicant. The capacity of the person who will provide the support and the needs of the one
entitled to be supported are taken into consideration in setting the amount of support to be
granted.

Support pendente lite can be availed of at the commencement of the action or at any time
before the judgment or final order is rendered in the action or proceeding.

The one claiming for support must establish before the court the relationship between the parties
as to entitle one to receive support from the other.

The following are obliged to support each other:

1. The spouses;

2. Legitimate ascendants and descendants;

3. Parents and their legitimate children and the legitimate and illegitimate children of the latter;

4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter;
and

5. Legitimate brothers and sisters, whether of the full or half-blood. ( Art. 195, Family Code)

Sec. 2. Comment. A copy of the application and all supporting documents shall be served upon
the adverse party, who shall have five (5) days to comment thereon unless a different period is
fixed by the court upon his motion. The comment shall be verified and shall be accompanied by
affidavits, depositions or other authentic documents in support thereof.

The application for support pendente lite is responded to not by an answer but by a verified
comment accompanied by affidavits, depositions or other authentic documents in support of the
facts set forth in the comment.

Sec. 3. Hearing. After the comment is filed, or after the expiration of the period for its filing,
the application shall be set for hearing not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for evidence on motions.

Hearing on the application is mandatory. It shall be held not later than three (3) days from the
receipt of the comment or from the expiration of the period to file the same.

Sec. 4. Order. The court shall determine provisionally the pertinent facts, and shall render
such orders as justice and equity may require, having due regard to the probable outcome of the
case and such other circumstances as may aid in the proper resolution of the question involved.
If the application is granted, the court shall fix the amount of money to be provisionally paid or
such other forms of support as should be provided, taking into account the necessities of the
applicant and the resources or means of the adverse party, and the terms of payment or mode for
providing the support, If the application is denied, the principal case shall be tried and decided
as early as possible.

Ramos v. Court of Appeals

45 SCRA

Held: Where the trial court ruled that the claim of filiation and support has been adequately
proven, alimony pendente lite can be validly granted pending appeal of such decision.

Trial courts refusal to grant support pendente lite does not deprive the appellate court the
authority to grant the same especially so where, in view of the poverty of the child, it would be a
travesty of justice to refuse him support until the decision of the judge is sustained on appeal.

Reyes v. Ines-Luciano

81 SCRA

Facts:

Held: Where petitioner failed to present evidence on the alleged adultery of his wife when the
action for legal separation is heard on the merits, the grant of support pendente lite is valid.
Adultery is a good defense and if properly proved and sustained will defeat the action. However,
the alleged adultery of the wife must be established by competent evidence. Mere allegation
would not suffice to bar her from receiving support pendente lite.
In determining the amount to be awarded as support pendente lite it is not necessary to go fully
into the merits of the case, it being sufficient that the court ascertain the kind and amount of
evidence which it may deem sufficient to enable it to justly resolve the application, one way or
the other, in view of the merely provisional character of the resolution to be entered. Mere
affidavits may satisfy the court to pass upon the application for support pendente lite. It is
enough that the facts be established by affidavits or other documentary evidence appearing in the
record.

Sec. 5. Enforcement of order. If the adverse party fails to comply with an order granting
support pendente lite, the court shall, motu propio or upon motion, issue an order of execution
against him, without prejudice to his liability for contempt.

When the person ordered to give support pendente lite refuses or fails to do so, any third
person who furnished that support to the applicant may, after due notice and hearing in the same
case, obtain a writ of execution to enforce his right of reimbursement against the person ordered
to provide support.

Sec. 6. Support in criminal cases. In criminal actions where the civil liability includes support
for the offspring as a consequence of the crime and the civil aspect thereof has not been waived,
reserved or instituted prior to its filing, the accused may be ordered to provide support pendente
lite to the child born to the offended party allegedly because of the crime. The application
therefor may be filed successively by the offended party, her parents, grandparents or guardian
and the State in accordance with the procedure established under this Rule.

Sec. 7. Restitution. When the judgment or final order of the court finds that the person who has
been providing support pendente lite is not liable therefor, it shall order the recipient thereof to
return to the former the amounts already paid with legal interest from the dates of actual
payment, without prejudice to the right of the recipient to obtain reimbursement in a separate
action from the person legally obliged to give support. Should the recipient fail to reimburse
said amounts, the person who provided the same may likewise seek reimbursement thereof in a
separate action from the person legally obliged to give such support.

JUDGMENTS AND FINAL ORDERS

FORM

Rule 36, Sec. 1. Rendition of final judgements and final orders. A judgement or final order
determining the merits of the case shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and
filed with the clerk of court.

Concept of Final Judgement and Final Order

Rule 41, Sec. 1. Subject of appeal. An appeal may be taken from a judgement 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 judgement;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgement 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 judgement or final order for or against one or more of several parties or in separate
claims, counter-claims, 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 judgement or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule 65.

Ceniza v. CA, 218 SCRA 390

Facts: CA, in a resolution, dismissed petitioner Cenizas appeal on the ground of delayed filing
of appellants brief. Issue here is WON this resolution was a final order?

Held: Yes. A final order or judgment is one w/c either TERMINATES the action itself or
operates to vest some right in such a manner as to put out of the power of the ct. making the
order to place in the parties in their original conditions. A final order disposes of the whole
subject matter or terminates proceedings/action, LEAVING NOTHING TO BE DONE BUT TO
ENFORCE BY EXECUTION. However, a final order is appealable.

KINDS

As to finality

Rendition of Judgement
Rule 36, Sec. 1, supra.

Rule 40, Sec. 2. When to appeal. An appeal may be taken within fifteen (15) days after notice
to the appellant of the judgement or final order appealed from. 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 judgement or final order.

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.

Rule 41, Sec. 3. Period of ordinary appeal The appeal shall be taken within fifteen (15) days
from notice of the judgement or final order appealed from. Where a record on appeal is required,
the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from
notice of the judgement or final order.

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.

Rule 42, Sec. 1. How appeal taken; time for filing A party desiring to appeal from a decision
of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a
verified petition for review with the Court of Appeals, paying at the same time to the clerk of
said court the corresponding docket and other lawful fees, depositing the amount of P 500.00 for
costs, and furnishing the Regional Trial Court and the adverse party with a copy of the
petition. 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 petitioners motion for new trial or
reconsideration filed in due time after judgement. Upon proper motion and the payment of the
full amount of the docket and other lawful fees and the deposit for costs before the expiration of
the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days
only within which to file the petition for review. No further extension shall be granted except for
the most compelling reason and in no case to exceed fifteen (15) days.

Entry of judgement

Rule 36, Sec. 2. Entry of judgements and final orders. If no appeal or motion for new trial or
reconsideration is filed within the time provided in these Rules, the judgement or final order shall
forthwith be entered by the clerk in the book of entries of judgements. The date of finality of the
judgement or final order shall be deemed to be the date of its entry. The record shall contain the
dispositive part of the judgement or final order and shall be signed by the clerk, with a certificate
that such judgement or final order has become final and executory.

Rule 38, Sec. 3. Time for filing petition; contents and verification. A petition provided for in
either of the preceding sections of this Rule must be verified, filed within sixty (60) days after
the petitioner learns of the judgement, final order, or other proceeding to be set aside, and not
more than six (6) months after such judgement or final order was entered, or such proceeding
was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts constituting the petitioners good and substantial
cause of action or defense, as the case may be.

Rule 39, Sec. 6. Execution by motion or by independent action. A final and executory
judgement or order may be executed on motion within five (5) years from the date of its
entry. After the lapse of such time, and before it is barred by the statute of limitations, a
judgement may be enforced by action. The revived judgement may also be enforced by motion
within five (5) years from the date of its entry and thereafter by action before it is barred by the
statute of limitations.

Entry of Satisfaction of Judgement

Rule 39, Sec. 44. Entry of satisfaction of judgement by clerk of court. Satisfaction of a
judgement shall be entered by the clerk of court in the court docket, and in the execution book,
upon he return of a writ of execution showing the full satisfaction of the judgement executed and
acknowledged in the same manner as a conveyance of real property by the judgement obligee or
by his counsel unless a revocation of his authority is filed, or upon the endorsement of such
admission by the judgement obligee or his counsel on the face of the record of the judgement.

Sec. 45. Entry of satisfaction with or without admission. Whenever a judgement is satisfied in
fact, or otherwise than upon an execution, on demand of the judgement obligor, the judgement
obligee or his counsel must execute and acknowledge, or indorse, an admission of the
satisfaction as provided in the last preceding section, and after notice and upon motion the court
may order either the judgement obligee or his counsel to do so, or may order the entry of
satisfaction to be made without such admission.

As to process of procuring

Judgement of the Pleadings

Rule 34, Sec. 1. Judgement on the pleadings. Where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse partys pleading, the court may, on
motion of that party, direct judgement on such pleading. However, in actions for declaration of
nullity or annulment of marriage or for legal separation, the material facts alleged in the
complaint shall always be proved.

Judgement on Demurrer to Evidence

Rule 33, Sec. 1. Demurrer to evidence. After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to
present evidence. If the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence.

Summary Judgements
Rule 35

Sec. 1. Summary judgement for claimant. A party seeking to recover upon a claim, counter-
claim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in
answer thereto has been served, move with supporting affidavits, depositions or admissions for a
summary judgement in his favor upon all or any part thereof.

Sec. 2. Summary judgement for defending party. A party against whom a claim, counter-claim,
or cross-claim is asserted or a declaratory relief is sought may, at any time, move with
supporting affidavits, depositions or admissions for a summary judgement in his favor as to all or
any part thereof.

Sec. 3. Motion and proceedings thereon. The motion shall be served at least ten (10) days
before the time specified for the hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the hearing. After the hearing, the
judgement sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions,
and admissions on file, show that, except as to the amount of damages, there is no genuine issue
as to any material fact and that the moving party is entitled to a judgement as a matter of law.

Sec. 4. Case not fully adjudicated on motion. If on motion under this Rule, judgement is not
rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings, and the evidence before it and by
interrogating counsel shall ascertain what material facts exist without substantial controversy and
what are actually and in good faith controverted. It shall thereupon make an order specifying the
facts that appear without substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further proceedings in the action
as are just. The facts so specified shall be deemed established, and the trial shall be conducted
on the controverted facts accordingly.

Sec. 5. Form of affidavits and supporting papers. Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify to the matters stated
therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be
attached thereto or served therewith.

Sec. 6. Affidavits in bad faith. Should it appear to its satisfaction at any time that any of the
affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of
delay, the court shall forthwith order the offending party or counsel to pay to the other party the
amount of the reasonable expenses which the filing of the affidavits caused him to incur,
including attorneys fees. It may, after hearing, further adjudge the offending party or counsel
guilty of contempt.

Rule 29, Sec. 3. Other consequences. If any party or an officer or managing agent of a party
refuses to obey an order made under section 1 of this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce any document or other thing for inspection,
copying, or photographing or to permit it to be done, or to permit entry upon land or other
property, or an order made under Rule 28 requiring him to submit to a physical or mental
examination, the court may make such orders in regard to the refusal as are just, and among
others the following:

(a) An order that the matters regarding which the questions were asked, or the character or
description of the thing or land, or the contents of the paper, or the physical or mental condition
of the party, or any other designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or
defenses or prohibiting him from introducing in evidence designated documents or things or
items of testimony, or from introducing evidence of physical or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a
judgement by default against the disobedient party; and

(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of
any party or agent of a party for disobeying any of such orders except an order to submit to a
physical or mental examination.

Default Judgements

Rule 9, Sec. 3. Default; declaration of. If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in default. Thereupon, the court
shall proceed to render judgement granting the claimant such relief as his pleading may warrant,
unless the court in its discretion requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.

(a) Effect of order of default. A party in default shall be entitled to notice of subsequent
proceedings but not to take part in the trial.

(b) Relief from order of default. A party declared in default may at any time after notice
thereof and before judgement file a motion under oath to set aside the order of default upon
proper showing that his failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such case, the order of default may be set
aside on such terms and conditions as the judge may impose in the interest of justice.

(c) Effect of partial default. When a pleading asserting a claim states a common cause of
action against several defending parties, some of whom answer and the others fail to do so, the
court shall try the case against all upon the answers thus filed and render judgement upon the
evidence presented.

(d) Extent of relief to be awarded. A judgement rendered against a party in default shall not
exceed the amount or be different in kind from that prayed for nor award unliquidated damages.
(e) Where no defaults allowed. If the defending party in an action for annulment or
declaration of nullity of marriage or for legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order to see to it that the evidence submitted is
not fabricated.

Judgements after ex parte presentation of Evidence

Rule 18, Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so
required pursuant to the next preceding section shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the
part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the
court to render judgement on the basis thereof.

Compromise Judgement

Order for Dismissal

Motion to Dismiss (See Rule 16)

Dismissals under Rule 17 (Dismissal of Actions)

Dismissals under Rule 18, Sec. 5

Rule 18, Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so
required pursuant to the next preceding section shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the
part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the
court to render judgement on the basis thereof.

Dismissals under Rule 29, Sec. 5

Rule 29, Sec. 5. Failure of party to attend or serve answers. If a party or an officer or
managing agent of a party wilfully fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or fails to serve answers to interrogatories submitted
under Rule 25 after proper service of such interrogatories, the court on motion and notice, may
strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any
part thereof, or enter a judgement by default against that party, and in its discretion, order him to
pay reasonable expenses incurred by the other, including attorneys fees.

As to parties

As against one or more several parties

Rule 36, Sec. 3. Judgement for or against one or more of several parties. Judgement may be
given for or against one or more of several plaintiffs, and for or against one or more of several
defendants. When justice so demands, the court may require the parties on each side to file
adversary pleadings as between themselves and determine their ultimate rights and obligations.

Several Judgement

Rule 36, Sec. 4. Several judgements. In an action against several defendants, the court may,
when a several judgement is proper, render judgement against one or more of them, leaving the
action to proceed against the others.

Rule 9, Sec. 3 (c). Effect of partial default. When a pleading asserting a claim states a common
cause of action against several defending parties, some of whom answer and the others fail to do
so, the court shall try the case against all upon the answers thus filed and render judgement upon
the evidence presented.

Against entity without juridical personality

Rule 36, Sec. 6. Judgement against entity without juridical personality. When judgement is
rendered against two or more persons sued as an entity without juridical personality, the
judgement shall set out their individual or proper names, if known.

As to claims

At various stages or separate judgements

Rule 36, Sec. 5. Separate judgements. When more than one claim for relief is presented in an
action, the court, at any stage, upon a determination of the issues material to a particular claim
and all counter-claims arising out of the transaction or occurrence which is the subject matter of
the claim, may render a separate judgement disposing of such claim. The judgement shall
terminate the action with respect to the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgement is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgement or judgements and may prescribe such
conditions as may be necessary to secured the benefit thereof to the party in whose favor the
judgement is rendered.

Rule 31. Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid
prejudice, may order a separate trial of any claim, cross-claim, counter-claim, or third-party
complaint, or of any separate issue or of any number of claims, cross-claims, counter-claims,
third-party complaints or issues.

Rule 41, Sec. 1 (g). No appeal may be taken from: x x x x A judgement or final order for or
against one or more of several parties or in separate claims, counter-claims, cross-claims and
third-party complaints, while the main case is pending, unless the court allows an appeal
therefrom; and x x x x
As to how executed

Judgements not stayed on appeal

Rule 39, Sec. 4. Judgements not stayed by appeal. Judgements in actions for injunction
receivership, accounting, support, and such other judgements as are now or may hereafter be
declared to be immediately executory, shall be enforceable after their rendition and shall not be
stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership, accounting, or award of support.

The stay of execution shall be upon such terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the adverse party.

Judgements for money

Rule 39, Sec. 9. Execution of judgements for money, how enforced.

(a) Immediate payment on demand. The officer shall enforce an execution of a judgement for
money by demanding from the judgement obligor the immediate payment of the full amount
stated in the writ of execution and all lawful fees. The judgement obligor shall pay in cash,
certified bank check payable to the judgement obligee, or any other form of payment acceptable
to the latter, the amount of the judgement debt under proper receipt directly to the judgement
obligee or his authorized representative if present at the time of payment. The lawful fees shall
be handed under proper receipt to the executing sheriff who shall turn over the said amount
within the same day to the clerk of court of the court that issued the writ.

(b) If the judgement obligee or his authorized representative is not present to receive payment,
the judgement obligor shall deliver the aforesaid payment to the executing sheriff. The latter
shall turn over all the amounts coming into his possession within the same day to the clerk of
court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a
fiduciary account in the nearest government depository bank of the Regional Trial Court of the
locality. .
The clerk of said court shall thereafter arrange for the remittance of the deposit to the
account of the court that issued the writ whose clerk of court shall then deliver said payment to
the judgement obligee in satisfaction of the judgement. The excess, if any, shall be delivered to
the judgement obligor while the lawful fees shall be retained by the clerk of court for disposition
as provided by law. In no case shall the executing sheriff demand that any payment by check be
made payable to him.

(b) Satisfaction by levy. If the judgement obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode of payment acceptable to the judgement obligee, the
officer shall levy upon the properties of the judgement obligor of every kind and nature
whatsoever which may be disposed of for value and not otherwise exempt from execution giving
the latter the option to immediately choose which property or part thereof may be levied upon,
sufficient to satisfy the judgement. If the judgement obligor does not exercise the option, the
officer shall first levy on the personal properties, if any, and then on the real properties if the
personal properties are insufficient to answer for the judgement.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgement
obligor which has been levied upon.

When there is more property of the judgement obligor than is sufficient to satisfy the judgement
and lawful fees, he must sell only so much of the personal or real property as is sufficient to
satisfy the judgement and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, may be levied upon in
like manner and with like effect as under a writ of attachment.

(c) Garnishment of debts and credits. The officer may levy on debts due the judgement
obligor and other credits, including bank deposits, financial interests, royalties, commissions and
other personal property not capable of manual delivery in the possession or control of third
parties. Levy shall be made by serving notice upon the person owing such debts or having in his
possession or control such credits to which the judgement obligor is entitled. The garnishment
shall only cover such amount as will satisfy the judgement and all lawful fees.

The garnishee shall make a written report to the court within five (5) days from service of the
notice of garnishment stating whether or not the judgement obligor has sufficient funds or credits
to satisfy the amount of judgement. If not, the report shall state how much funds or credits the
garnishee holds for the judgement obligor. The garnished amount in cash, or certified bank
check issued in the name of the judgement obligee, shall be delivered directly to the judgement
obligee within ten (10) working days from service of notice on the said garnishee requiring such
delivery, except the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the
judgement, the judgement obligor, if available, shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made
by the judgement obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with respect to
delivery of payment to the judgement obligee.

Judgements for specific acts

Rule 39, Sec. 10. Execution of judgements for specific acts.

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. If a judgement directs a
party to execute a conveyance of land or personal property, or to deliver deeds or other
documents, or to perform any other specific act in connection therewith, and the party fails to
comply within the time specified, the court may direct the act to be done at the cost of the
disobedient party by some other person appointed by the court and the act when so done shall
have like effect as if done by the party. If real or personal property is situated within the
Philippines, the court in lieu of directing conveyance thereof may by an order divest the title of
any party and vest it in others, which shall have the force and effect of a conveyance executed in
due form of law.

(b) Sale of real or personal property. If the judgement be for the sale of real or personal
property, to sell such property, describing it, and apply the proceeds in conformity with the
judgement.

(c) Delivery or restitution of real property. The officer shall demand of the person against
whom the judgement for the delivery or restitution of real property is rendered and all persons
claiming rights under him to peaceably vacate the property within three (3) working days, and
restore possession thereof to the judgement obligee; otherwise, the officer shall oust all such
persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing
such means as may be reasonably necessary to retake possession, and place the judgement
obligee in possession of such property. Any costs, damages, rents or profits awarded by the
judgement shall be satisfied in the same manner as a judgement for money.

(d) Removal of improvements on property subject of execution. When the property subject of
the execution contains improvements constructed or planted by the judgement obligor or his
agent, the officer shall not destroy, demolish or remove said improvements except upon special
order of the court, issued upon motion of the judgement oblige after due hearing and after the
former has failed to remove the same within a reasonable time fixed by the court.

(e) Delivery of personal property. In judgements for the delivery of personal property, the
officer shall take possession of the same and forthwith deliver it to the party entitled thereto and
satisfy any judgement for money as therein provided.

Special Judgements

Rule 39, Sec. 11. Execution of special judgements. When a judgement requires the
performance of any act other than those mentioned in the two preceding sections, a certified copy
of the judgement shall be attached to the writ of execution and shall be served by the officer
upon the party against whom the same is rendered, or upon any other person required thereby, or
by law, to obey the same, and such party or person may be punished for contempt if he disobeys
such judgement.

Effect of Judgements and Final Orders

Local

Rule 39, Sec. 47. Effect of judgements or final orders. The effect of a judgement or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgement or final
order, may be as follows:
(a) In case of a judgement or final order against a specific thing, or in respect to the probate of a
will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another, the
judgement or final order is conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the testator or
intestate.

(b) In other cases, the judgement or final order is, with respect to the matter directly adjudged or
as to any other matter that could have been raised in relation thereto, conclusive between the
parties and their successors in interest by title subsequent to the commencement of the action or
special proceeding, litigating for the same thing and under the same title and in the same
capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgement or final order which appears upon its
face to have been so adjudged, or which was actually and necessarily included therein or
necessary thereto.

Foreign

Rule 39, Sec. 48. Effect of foreign judgements or final orders. The effect of a judgement or
final order of a tribunal of a foreign country, having jurisdiction to render the judgement or final
order is as follows:

(a) In case of a judgement or final order upon a specific thing, the judgement or final order is
conclusive upon the title of the thing; and

(b) In case of a judgement or final order against a person, the judgement or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.

In either case, the judgement or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.

NOTES ON JUDGMENT AND FINAL ORDERS:

Rule 36 1. Rendition of judgment and final orders. A judgment or final order determining the
merits of the case shall be:

(1) in writing

(2) personally and directly prepared by the judge

(3) stating clearly and distinctly the facts and the law on which it is based.
(4) Signed by him

(5) And filed with the Clerk of Court.

Rule 36 3. Judgment for or against one or more of several parties.

Judgment is rendered in favor of party A; based on particular judgment is rendered only against

Final order Court has nothing else to do.

Order granting a MTD a Final Order

Only final orders and judgment are subjects of appeal. Interlocutory orders are not subject of
appeal.

Rendition of judgment upon the clerk receiving the copy

Book of entry of judgment date of the lapse of the fifteen (15) days; not on the date of entry.

Book of satisfaction of judgment

Entry of judgment important for counting of petition for entry of judgment, among others.

First Sense terminates action

Second Sense of finality final and executory.

Final judgment under new rules that which can already be executed

Nunc pro tunc then as now

Final & executory even if ground is substantial can no longer be modified, except:

1. Clerical errors

2. Nunc pro tunc

3. Annulment of judgment based on extrinsic fraud (Jep Management Co.)

4. Void judgment (Paluwagan and Vda de Macoy) a void judgment never prescribes.

Difference between Motion for Re-open and MNT (taken within the period for taking appeal):

To re-open trial make use of ordinary prudence, rules on motions

MNT extrinsic fraud basis of the cause of action, performance of a contract

Content of the action itself.

Extrinsic Fraud one of the parties prevented the other by fraudulent acts to be given his day in
court.

Amendment of judgment

Before it becomes final and executory

Eternal Gardens Memorial v. IAC

165 SCRA 439

Facts: A Land Development Agreement was executed between Eternal & Mission. Mission
owned the property & Eternal was to develop it into a memorial park. Thereafter, a Deed of
Absolute Sale w/ mortgage was executed. BUT Maysilo claimed ownership over the land. Thus,
Eternal filed w/ the CFI a complaint for interpleader vs. Mission & Maysilo Estate. It alleged
that, in view of the conflicting claims & to protect its interests, defendants should be required to
interplead & litigate between themselves.

Mission filed a Motion for placing on judicial deposit the amounts due & unpaid fr. Eternal.
Motion was DENIED. The contract was declared ineffective on the ground that the subject
matter of the sale was not existing.

Mission then filed a Motion to Dismiss the Interpleader. TC ordered Eternal to comply w/ the
contract EXCEPT w/ regard to the interpleader of Maysilo Estate. Maysilo filed Motion for
Recon w/c was GRANTED by the TC. Hearings on the merits were ordered BUT Mission filed
for Writ of Execution. This was DENIED. On appeal, CA dismissed & this was affirmed by the
SC. The order became final & executory.

In 1983, heirs of Singson spouses filed an action for quieting of title where Eternal & Mission
were defendants. This case is still pending.

In the present case, Mission filed a petition for certiorari w/ the CA for the setting aside of RTC
orders regarding the setting of the hearing on the merits. CA dismissed BUT later on reversed.
Eternal filed a Motion for Recon w/c was again DENIED.

Held: Courts have the power to amend their judgments, to make them conformable to the
applicable jurisprudence PROVIDED said judgments ARE NOT YET FINAL. In the CAB,
Eternal admitted it still has to pay whoever will be declared as owner. Therefore, there was no
plausible reason for petitioners objections to the deposit order after having asked the ct. by
complaint for interpleader whose deposit is not only required but is a contractual obligation.

Finally, there is no res judicata here bec. there was no judgment on the merits. Also, there was
no identity of issues. One case involved the propriety of motion for recon w/o a hearing & the
denial of the motion for execution. The other case involved the propriety of a CA order that
Eternal shall deposit what was required of it pending the trial on the merits.

After it becomes final and executory

David v. CA< 214 SCRA 644

Facts: SUPRA

Held: The filing of the petition for relief fr. judgment w/ the TC was an unequivocal admission
on Afables part that his period to appeal fr. the decision had already expired. When a final
judgment has become executory, it thereby becomes immutable & unalterable. The judgment
MAY NO LONGER BE MODIFIED in any respect even if the modification is meant to correct
what is perceived to be an erroneous conclusion of fact or law, & regardless of whether the
modification is attempted to be made by the ct. rendering it or by the highest ct. of the land.

The only recognized EXCEPTIONS are:

1. Correction of clerical errors

2. Judgment Nunc Pro Tunc

3. Where the judgment is VOID

These are entries w/c cause NO INJURY to any party.

Judgments nunc pro tunc

Cardoza v. Singson, 181 SCRA 45

Annulment of judgment

Top Management Programs v. CA

222 SCRA 763

Facts: Gregorio promised to give a large tract of land to Trinidad & Fajardo if a case bet.
Greggy & Velasquez regarding the lot will be successful. Trini & Fajards then filed an action to
ENFORCE the agreement & the TC ruled in their favor. Trini & Fajards then filed a motion for
the issuance of a writ of execution w/c was granted by the TC. The Register of Deeds, however,
informed the ct. that the deed of conveyance cannot be issued in favor of Trini & Fajards bec. the
land had already been sold to other persons. However, the TC directed the Register of Deeds to
issue separate titles in favor of the two. Top Management then filed this petition to annul the
orders of the TC on the ground of extrinsic fraud. It claimed the it has title to the same parcel of
land w/c was being levied upon since it bought the same fr. the heirs of Greggy. The CA
dismissed the petition for annulment.
HELD: Extrinsic fraud is one the effect of w/c PREVENTS a party fr. having a trial or real
contest or fr. presenting all of his case to the ct. or where it operates upon matters pertaining
NOT TO THE JUDGMENT ITSELF but of the MANNER in w/c it was procured so that there is
not a fair submission of the controversy.

In other words, EXTRINSIC FRAUD refers to any fraudulent act of the prevailing party in the
litigation w/c is committed OUTSIDE OF THE TRIAL of the case, whereby the defeated party
has been PREVENTED fr. exhibiting FULLY his side of the case, by fraud, deception or
deception practiced upon him by his opponent.

The relief is granted on the theory that by reason of the extrinsic fraud preventing a party fr. fully
trying his case, there has never been a real contest before the ct. on the subject matter of the
action.

The allegations that the judge had no jurisdiction to order the sheriff to levy on execution since
the judge had full knowledge that Top Management & not Greggy who owned the land, that the
writ vs. the prop. was not justified bec. Top Management was not a party to the caseThese DO
NOT CONSTITUTE FRAUD.

Top Management has not pointed to any act w/c prevented it form fully ventilating its case. If
ever there was any failure in the presentation of its case, it was caused by its own inaction.

Paluwagan ng Bayan v. King, 172 SCRA 60

Vda. De Macoy v. CA, 206 SCRA 244

Motion for New Trial/Reconsideration

Grounds and nature, Rule 37, Sec. 1

Motion for new trial, Rule 37, Sec. 1, par 1

Distinguished from Motion to reopen trial

Agulto v. CA, 181 SCRA 30

Facts: Agulto was convicted of bigamy. He filed a motion to reopen trial due to newly
discovered evidence AFTER THE PARTIES HAD RESTED BUT BEFORE JUDGMENT. His
new evidence was a photocopy of a marriage certificate of his second wife to another man. (His
theory was that if his second wife had been previously married, he could not have validly
married her, therefore, no bigamy).

Held: The MNT may be filed AFTER judgment but w/in the period of perfecting an appeal for
the grounds stated in S1,R37 & S2R121.
A Motion to Reopen Trial may be presented only after either or both parties have formally
offered & closed their evidence but BEFORE judgment. The reopening of a trial for the
reception of new evidence is not a grant of a new trial. There is no specific provision in the rules
w/c governs. It is only a recognized procedural recourse deriving validity fr. long established
rules. The governing rule is paramount interests of justice resting entirely on the sound judicial
discretion of the trial ct.. Therefore, the grant/denial is not subject to certiorari under grave
abuse of discretion.

On the merits, the SC decided that the new evidence had defects & it failed to show that the 2nd
wifes marriage was still existing when she married Agulto.

Grounds

Velasco v. Ortiz, 184 SCRA 303

Facts: The ward of the spouses Velasco was able to w/draw money of the dead husband of P
Velasco (the latter was diagnosed as disabled). The ward argued that she was instructed by the
decedent to w/draw money. The TC ruled in favor of Velasco. Copy of the decision was given
to the 1st counsel of the ward. The NEW counsel filed an MNT based on newly discovered
evidence (a certification fr. a doctor that the decedent can still properly communicate)

Held: For Velasco. There is no dispute that at the time the MNT was filed, the reglementary
period to appeal had lapsed, & the decision had become final & executory. A judgment w/c has
become final & executory can no longer be altered & modified, mush less set aside by the ct. w/c
rendered it since such ct. has already lost jurisdiction over the case. Thereafter, the power &
prerogative to order suspension of the rules of procedure is reposed, not in the ct. w/c had
rendered such decision but rather in an appellate ct. & ultimately in the SC, & then only upon a
showing that otherwise the imperious demands of substantial justice will be thwarted.

Where the reglementary period to appeal had expired, the remedy is an MNT. If it has become
final & executory, one can file a petition for relief under R 38 or a petition for annulment of
judgment.

An MNT upon the ground of newly discovered evidence is properly granted where there is
concurrence of the following requisites:

1. the evidence had been discovered after trial;

2. the evidence could not have been discovered & produced during trial even w/ exercise of
reasonable diligence

3. the evidence is material & not merely corroborative, cumulative or impeaching.

What is essential is not so much the time when the evidence offered first sprang into existence
not the time when it first came to the knowledge of the party now submitting it; what is essential
is, rather, that the offering party had exercised reasonable diligence in seeking to locate such
evidence before or during trial but had not nonetheless failed to secure ( it must have been
searched for but not found during trial. )

In the CAB, the new evidence was already presented as evidence in a criminal case vs. the ward
for falsification. Therefore, she had already come across that evidence before.

Moreover, it is in the nature of an impeaching evidence for it seeks merely to weaken or

controvert previous evidence; it is not material or corroborative.

Tumang v. CA 172 SCRA 332

Facts: Tumang filed for an annulment of a deed of sale bec. there was no consideration. The
trial ct. rule for her. The defendant filed an MFR & an MNT based on the ground that the
decision was based on insufficiency of evidence & that it was contrary to law. As evidence, D
presented receipts proving consideration. Tumang assails the decision of the CA w/c granted the
motion of D by saying that it was FORGOTTEN EVIDENCE (it had existed at trial & w/c could
have been discovered by D if due diligence was exercised.

Held: NEWLY DISCOVERED EVIDENCE: need not be newly created evidence. May &
does commonly refer to evidence already in existence prior or during the trial but w/c could not
have been secured & presented during the trial despite reasonable diligence.

FORGOTTEN EVIDENCE: evidence already in existence or available before or during the trial,
w/c was known to & obtainable by the party offering it w/c could have been presented
seasonably were it not for the oversight or forgetfulness of such party or his counsel.

In the case at bar, the receipts were found during a gen. cleaning, w/c goes to show that the it
could hardly have been located w/ the exercise of reasonable/average diligence.

The receipts are MATERIAL bec. they are of such import that a reasonably prudent man
would have searched for them. There would be a great benefit to D if he presents it in trial,
therefore, there is no reason why did not try to locate it.

Motion for reconsideration, Rule 37, Sec. 1, par. 2

Periods. Rule 37, Sec. 1

For filing

Effect of Motion for Extension of Time to File

See also Rule 41, Sec. 3, par. 2; Rule 40, Sec. 2, par. 2

Habaluyas v. Japson, 142 SCRA 208

This a resolution on a Motion for Reconsideration on the SCs 2nd division decision.
Held: In S 39 of BP 129, the period of appeal in the RTC was reduced fr. 30 to 15 days for
appeals fr. final orders, resolution, awards, judgment or decision. But only 48 hours for habeas
corpus cases.

Only notice of appeal is required. Record is not required except in (a) appeals in spl. proc.; (2)
where multiple appeals are allowed. In these cases, the period is 30 days. According to the
Interim Rules, no appeal bond in necessary for appeal. Its S 4 disallows a second MFR of a final
order or judgment.

The purpose of such is to avoid procedural delays. But the Rules does not expressly prohibit a
motion for extension of time to file a MFR of a final order or judgment.

The interest of justice would be better served if the ruling in the original decision (denying
extension) were applied prospectively fr. the time herein stated. It would be unfair to deprive
parties of their right to appeal simply bec. they availed themselves of a procedure w/c was not
expressly prohibited or allowed by the law or Rules.

On the other hand, an MNT or MFR is not a prerequisite to an appeal, a petition for review or a
petition for review on certiorari, & since the purpose is to expedite the final disposition of cases,
a strict but prospective application of said ruling is in order

From June 30, 1986, the rule shall be strictly enforced that no motion for extension of time to file
an MNT or MFR, may be filed w/ the MeTC, MTC, RTC, & IAC. Such a motion may be filed
only in cases pending w/ the SC as the ct. of last resort, w/c may in its sound discretion either
grant or deny the extension requested.

In appeals in spl. proc. under R 109 & in other cases wherein multiple appeals are allowed, a
motion for extension of time to file the record on appeal may be filed w/in the reglementary
period of 30 days. If the ct. denies the motion for extension, the appeal must be taken w/in the
original period since such a motion does not suspend the period for appeal.

The TC may grant said motion after the expiration of the period for appeal provided it was filed
w/in the original period.

Not required for appeal

Director of Lands v. Aquino, 192 SCRA 296

Facts: Abra Industrial applied for registration of a piece of land w/c was granted. The Director
opposed saying that the land was mineral & unalienable. Within one year fr. the issuance of the
registration decree, Director filed a petition for review the decrees of registration.

Held: An MNT or MFR is not a pre-requisite to an appeal for review or petition for review on
certiorari. The reglementary period for filing a petition for review on certiorari in the instant
case was 30 days fr. notice of order or judgment subject of review w/c period, parenthetically, is
now 15 days pursuant to S 39 of BP129. The Director having been granted a total of 60 days
w/in w/c to file the petition, the same was timely filed.

Second Motion for New Trial, Rule 37, Sec. 5, par. 1

Second Motion for Reconsideration, Rule 37, Sec. 5, par. 2

For Resolution, Rule 37, Sec. 4

Contents of Motion for New Trial, Rule 37, Sec. 2

In general, Rule 37, Sec. 2; see also Rule 15

Motion for New Trial, Rule 37, Sec. 2, par. 2

Motion for Reconsideration, Rule 37, Sec. 2, par. 3

Pro forma motion and its effects, Rule 37, Sec. 2, par. 4

Pojas v. Gozo-Dadole, 192 SCRA 575

Facts: The plaintiff filed a complaint for recovery of possession. The TC ruled for the plaintiff
& ordered the defendant to vacate. The defendant filed an MFR BUT IT FAILED TO
MENTION THE DAY THE MOTION IS TO BE RESOLVED (no notice of hearing). Later, the
defendant filed a notice of appeal.

Held: Notice of appeal denied. The MFR was a mere scrap of paper & therefore, pro forma. It
did not contain the day when the motion is to be heard, violating S5 R15. As such it does not
suspend the running of the period of appeal. The notice of appeal filed out of time.

Action upon Motion for New Trial

Options in general, Rule 37, Sec. 3

Granting, Rule 37, Sec. 6

Effect in general, Rule 37, Sec. 5

Fernan v. CA, 142 SCRA 208

Facts: Fernan was suspected of having stolen a wallet. The TC ruled against the plaintiff store &
awarded damages to Fernan. The CA affirmed the TC but upon the MFR of the plaintiff, the TC
was reversed.

Held. The appeal of the store raises no question of law but of fact Review of facts is not a
function of the CA. An exception to this rule is when manifestly correct findings has been
unwarrantedly rejected or reversed. In the CAB, the CA reversed the TC. These instances of
conflict of findings between the CA & TC is a basis of recourse to the SC.

There must be a showing on the face of the record of gross or extraordinary misperception or
manifest bias.

In the CAB, there was no substantial reason given by Fernan refuting the assessment of the CA
w/c ruled that her testimony had contradictions & inconsistencies.

Partial New Trials, Rule 37, Sec. 6, 7

Denying

Remedies, Rule 37, Sec. 9; Rule 41, Sec. 1 (a)

NOTES ON MOTION FOR NEW TRIAL & MOTION FOR RECONSIDERATION:

Judgment is vacated.

On appeal accept evidence as it is; attach the evidence as it is.

New trial is not de novo, only those affected

Denial of MNT appeal the judgment within the remaining time to file an appeal even if less
than five (5) days.

MNT- not supported by evidence, not supported by law, damages are excessive.

There can be a second MNT only when ________

Order granting MNT first judgment is vacated for purposes of entering new evidence.

When judgment may be vacated in part in case of separate and several judgments.

Motion to Re-open governed by rules on Motions.

Options after judgment: but not yet final & executory:

1. Appeal

2. Motion for new trial FAME/good & substantial grounds for saying so

Discovery after J is ren

Newly discovered evidence Not discovered with reasonable evidence

Not merely colorative

3. Motion for reconsideration

(a) evidence

(b) law

(c) award of damages is excessive

After final & executory:

1. Nunc pro tunc

2. Petition for relief from judgment

3. Annulment of judgment

4. Remedies during execution

Final judgment 16th day after notice

No prescriptive period in actions to nullify

Estoppel by act

Laches by negligence

Petition for relief from judgment- equitable remedy; only very highly discretionary on the part of
the court.

Action to annul separate action. Res judicata may be raised.

Any kind of order for Petition for relief, if granted, not appealable.

If not granted, not appealable only special civil actions

Relief from Judgments, Orders or other Proceedings

Grounds and nature, Rule 38, Secs. 1, 2

Grounds

Garcia v. CA, 202 SCRA 228

Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the
Certificate of Title to a land actually owned by the spouses Garcia. He did this by misinforming
the ct. of the spouses address so that the notices wont reach them thereby depriving them of the
opportunity to participate in the trial. Garcia further made further recovery of the land difficult
by conveying the land to another. The couple filed a petition for relief (PFR) fr. said judgment
but failed to categorically allege extrinsic fraud in their affidavit of merit. The PFR was
dismissed by CA saying that extrinsic fraud should be expressly alleged in the affidavit of merit
for the petition to lie. The SC said that since in case at bar, the spouses were able to allege facts
leading to extrinsic fraud, express allegation of such is not necessary.

Held: Where fraud is the ground, the fraud must be extrinsic or collateral & the facts upon w/c
the extrinsic fraud is based must have not been controverted or resolved in the case where the
judgment sought to be annulled was rendered. For this purpose, fraud is regarded as extrinsic or
collateral where it has prevented a party fr. having a trial or fr. presenting all of his case to the
ct.. Intrinsic fraud takes the form of acts of the party in a litigation during the trial, such as the
use of forged instruments of perjured testimony w/c did not affect the presentation of the case but
did prevent a fair & just determination of the case.

Conde v. IAC, 144 SCRA 144

Facts: Petitioners alleged fraud. Gutierrez was able to make it appear that he was the son
of Esteban & Fermina Gutierrez & as a necessary consequence of such filiation, was the
absolute owner by succession of the prop. in Q.

Held: Petition should be dismissed for lack of merit bec. the fraud allegedly perpetuated by G is
only intrinsic in nature & not extrinsic. Fraud is regarded as extrinsic or collateral where it has
prevented a party fr. having a trial or fr. presenting all of his case to the ct.. In the case at bar, the
fraud was in the nature of documents allegedly manufactured by G to make it appear he was the
rightful heir of the disputed property. Hence the fraud is intrinsic in nature.

Meralco v. CA, 187 SCRA 200

Facts: Meralco, after failing to appear at a pre-trial conference, was declared in

default. Thereafter, Meralco made the following steps: 1) Filed a MFR to Lift Order of Default
& to Vacate Judgment by Default bec. of counsels influenza. Denied. 2) Petition for Relief
fr. Judgment . Dismissed. 3) Petition for Certiorari. Propriety of this last action is the issue in this
case.

Held: Certiorari is not proper. Such remedy had already been lost bec. of Meralcos neglect or
error in the choice of remedies. Certiorari shall not lie to shield Meralco fr. the adverse
consequences of such neglect or error. Relief under Rule 38 is of equitable character & is
allowed only in exceptional cases where there is no other available or adequate remedy. Meralco
could have proceeded by appeal to vacate or modify the default judgment. Relief will not be
granted when the loss of remedy at law was due to his own negligence or a mistaken mode of
procedure, otherwise the petition for relief will be tantamount to the right of appeal
already. Further, when other lawyers could have appeared & moved for postponement, sickness
of counsel is not excusable.

Requires final judgment or loss of appeal

Villa Rey Transit v. Far East Motor Co., 81 SCRA 298

Facts: Villa Rey failed to answer w/in the reglementary period even after denial of its motion to
extend time to answer. Hence, & order of default was rendered. Thereafter it filed a MTQ
Service of Summons, Motion to Lift Order of Default & To Set Aside Judgment. This was
denied. The 30-day appeal period expired w/o any appeal. Villa Rey contends the motion it
filed should be considered as Petition for Relief.

Held: This is untenable. A petition for relief presupposes a final & unappealable judgment. In
this case, judgment has not yet become final & unappealable at the time of the filing of the
motion.

David v CA, 214 SCRA 644

Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date for the
computation of the interest to be awarded. This was done after denying the petitioners relief fr.
judgment.

Held: CA. In sustaining the RTC decision to deny the petition for relief fr. judgment the
respondent Court cannot at the same time modify the decision sought to be overturned by such a
petition. The filing of the petition for relief fr. judgment w/ the trial ct. was an unequivocal
admission on the private respondents that his period to appeal fr. the decision had already
expired. A petition for relief fr. judgment under Rule 38 presupposes a final judgment or loss of
the right to appeal. The affirmance of the CA of the denial of the petition is a confirmation of
the existence of a final & executory judgment. CA can neither amend nor modify it. When a
final judgment becomes executory it becomes immutable & unalterable, even if modification is
meant to correct an erroneous conclusion of fact or law. Only corrections of clerical errors or the
making of so-called NUNC PRO TUNC entries & other judgment w/c cause no prejudice to any
party are the exceptions to this rule, otherwise any other modifications of a final & executory
judgment is VOID.

Time for Filing, Rule 38, Sec. 3

Strictly followed

First Integrated Bonding v. Hernando, 199 SCRA 796

Facts: FIB was impleaded as the insurance agency of defendant who figured in an accident
killing one person. FIB failed to answer so it was declared in default. FIB took no positive step
to vacate the order of default. Instead it chose to file a petition for relief fr. judgment almost five
months fr. its receipt of copy of the amended decision.
Held: The petition for relief fr. judgment was filed out of time. The rules require that such
petition should be filed w/in 60 days after receipt of judgment & not more than six months after
entry of judgment. Period required by R 38 is non-extendible & never interrupted. It is not
subject to any cond. or contingency, bec. it is itself devised to meet a condition or
contingency. The remedy under the Rule 38 was an act of grace, designed to give the party one
last chance. Being in the position of one who begs, such partys privilege is not to impose
conditions, haggle, or dilly-dally, but to grab what is offered him.

Contents

Affidavit of Merit, Rule 38, Sec. 3

Garcia v. CA, 202 SCRA 228

Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the
Certificate of Title to a land actually owned by the spouses Garcia. He did this by misinforming
the ct. of the spouses address so that the notices wont reach them thereby depriving them of the
opportunity to participate in the trial. Garcia further made further recovery of the land difficult
by conveying the land to another. The couple filed a petition for relief fr. said judgment but
failed to categorically allege extrinsic fraud in their affidavit of merit. The PFR was dismissed
by CA saying that extrinsic fraud should be expressly alleged in the affidavit of merit for the
petition to lie. The SC said that since in case at bar, the spouses were able to allege facts leading
to extrinsic fraud, express allegation of such is not necessary.

Held: CA denied PFR for want of express allegation of extrinsic fraud. SC reversed saying that
since Rule 38 Sec 3 (FAME as ground in affidavit of merit for PFR) & that in case at bar,
petitioners were able to show extrinsic fraud, affidavit is not necessary. HELD: The affidavit of
merit serves as a jurisdictional basis for a ct. to entertain a petition for relief. But it admits of
exceptions, i.e. Where the attachment of the affidavit of merit in the petition for relief is
unnecessary. The affidavit of merit is essential bec. a new trial would be a waste of courts time
if the complaint turned out to be groundless. Thus, where there was no jurisdiction over the
defendant on the subject matter of the action, where a judgment was taken by default before
defendants time to answer had expired, where it was entertained by mistake, or was obtained by
fraud & other similar cases, as when the applicant had no notice of the trial, we ruled that an
affidavit is not necessary.

When motion for reconsideration considered as petition for relief

Dulos v. CA, supra

Facts: Nocom spouses filed forcible entry case v Dulos spouses in the MTC Las Pias. Pre-trial
was set but the Nocoms still filed another case for annulment & a writ of preliminary injunction
in Makati. Dulos motion for suspension on forcible entry case was dismissed there being no
prejudicial question. Pre-trial saw that the Dulos spouses were in default despite the presence of
a purported representative (Rectra) who held a special power of attorney executed by said
spouses. Judgment on forcible entry case for the Nocoms. The Dulos filed a motion for
reconsideration of said judgment w/c was denied & the aggrieved spouses went to the Supreme
Court via special civil action for certiorari, w/c the Supreme Court dismissed. Nocoms filed for
a writ of demolition w/c was countered by petitioner spouses by filing for a petition for
certiorari, prohibition & preliminary injunction, w/c was granted by the CA. Hence, this appeal.

Held: A motion for reconsideration of a judgment of default may be considered a petition for
relief fr. judgment under R38 S2 only if it is a)verified, b) filed w/in 60 days fr. time petitioner
learns of the decision but not more than 6 months fr. entry of judgment & c) if in case of failure
to file an answer the motion must be accompanied by an affidavit of merit. It may be considered
as a motion for new trial under R27 S2 only if it is accompanied by an affidavit of merit.

Action of Court before Answer

Power to Deny, Rule 37, Sec. 4

Remedies after denial, see Rule 41, Sec. 1(b)

Service Specialists v. Sheriff of Manila, 145 SCRA 139

Facts: Service Specialists & counsel failed to appear at a pre-trial & was declared in
default. Service filed a petition for relief fr. judgment. The lower ct. dismissed the petition for
relief for lack of jurisdiction to hear & determine the same. Service filed a notice of appeal to
the IAC.

Held: Service filed its petition for relief also w/ the RTC Manila but not in the same case but in
another case. This is erroneous. A judgment or order denying relief under Rule 38 is final & not
appealable, unlike an order granting such relief w/c is interlocutory. However, in such an appeal,
the appellate ct. is only to determine the existence of any of the grounds relied upon (fraud,
accident, mistake or excusable negligence) & the merit of the petitioners cause of action or
defense, as the case may be. Moreover, Service merely filed a notice of appeal to the IAC fr. the
order of the lower ct. w/c dismissed his petition for relief. The appeal should have been made to
this Court through a petition for review on certiorari.

Prelimnary Injunction pending proceedings, Rule 38, Sec. 5

Order to file an answer, Rule 38, Sec. 4

Procedure

Order to file an answer, Rule 38, Sec. 4

Availability of preliminary injunction, Rule 38, Sec. 5

Proceedings after answer is filed, Rule 38, Sec. 6

Where denial of appeal is set aside, Rule 38, Sec. 7

Action of court after giving due course

Granting of petition for relief, Rule 38, Sec. 7

Remedies

David v. CA, 214 SCRA 644

Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date of
computing interest. This was done after denying the petitioners relief fr. judgment.

Held: The remedy under R41 w/c provides that a judgment denying relief under R38 is subject
to appeal, & in the course thereof, a party may also assail the judgment on the merits, upon the
ground that it is not supported by the evidence or it is contrary to law. This provision, however,
cant be construed as allowing the review of the decision on the specific ground therein
indicated, if the denial of the petition for relief by the TC is sustained by the Appellate Court. It
may only be done if the appellate ct. overturns such denial. The CA, after sustaining the trial
courts denial of the petition for relief should have dismissed the appeal & to declare the lower
courts decision as firm, final & executory.

Cheesman v. IAC, 193 SCRA 93

Facts: Thomas Cheesman attempted to annul the sale by his Filipino wife of a residential lot &
building to Padilla. The sale was declared void ab initio. However, judgment was set aside as
regards Padilla on a petition for relief filed by her ground on fraud, accident, mistake or
excusable negligence w/c had seriously impaired her right to present her case adequately. The
petition for relief fr. judgment was given due course & a new judge presided over the case.
Padilla filed a motion for summary judgment w/c was granted. The judgment declared sale as
valid. Cheesman questions the propriety of such judgment.

Held: An order of the CFI granting a petition for relief under Rule 38 is interlocutory & is not
appealable. Once the petition for relief is granted & the judgment subject thereof set aside, &
further proceedings are thereafter had, the ct. in its judgment on the merits may properly grant
the relief sought in the petitioners basic pleadings, although different fr. that stated in his
petition for relief. Therefore, since both CFI & IAC found that the facts adequately proved
fraud, mistake or excusable negligence by w/c Padillas rights have been substantially impaired,
the sale was declared valid.

Denying petition for relief, Rule 41, Sec. 1 (b)

Service Specialists v. Sheriff of Manila, supra

Facts: Petitioner filed an action for replevin & damages against private respondents. A pre-trial
conference was set but private respondent & counsel failed to appear w/c resulted in the issuance
of an order & judgment of default against respondents. Private respondent then moved for relief
fr. judgment & order of default. This motion was opposed by a motion to dismiss filed by
petitioner. The Lower ct. dismissed the petition for relief on the ground of lack of
jurisdiction. Respondent filed a notice of appeal but a writ of execution was nevertheless
filed. This case stems fr. the deputy sheriffs refusal to proceed w/ the auction of respondents
properties.

Held: A judgment or order denying relief under Rule 38 is final & appealable, unlike an order
granting such relief w/c is interlocutory. However, in the appeal the ct. may not reverse or
modify the judgment on the merits. The judgment fr. w/c relief is sought is already final &
executory. This remedy only enables the appellate ct. to determine not only the existence of any
of the grounds relied upon whether it be fraud, accident, mistake or excusable negligence, but
also & primarily, the merit of the petitioners cause of action or the defense, as the case may
be. If the appellate ct. finds that one of the grounds exist & that the petitioner has a good cause
of action or importance, it will reverse the denial or dismissal, set aside the judgment in the main
case & remand the case to the lower ct. for a new trial in accordance w/ Sec 7 Rule 38. Finally, a
notice of appeal fr. the order of the lower ct. w/c dismissed his petition for relief fr. judgment
for lack of jurisdiction to hear & determine the same should have been made to the SC through
a petition for review on certiorari & not to the IAC.

Remedies after petition for relief expires

Ramirez v. CA, 187 SCRA 153

Facts: Ramirez, as a plaintiff in a suit over an airstrip failed to do the following: furnish a copy
of the notice of hearing to other party; appear at the pre-trial; file appeal instead of seeking relief;
& seasonably file a motion for reconsideration. After the judgment in (favor of Ramirezs
opponent) had become final & executory. Ramirez filed a petition for relief fr. judgment even if
the period for filing the same had expired.

Held: There is no means whereby the defeated party may procure a final & executory judgment
to be set aside w/ a view to the removal of the litigation beyond the period for seeking relief, fr. a
final order of judgment under Rule 38 unless A) judgment is void for want of jurisdiction or for
lack of due process of law or B) it has been fraud. (In other words, period for filing of PFR is
mandatory but admits of exceptions lack of J & fraud.)

Reopening not allowed

Alvendia v. IAC, 181 SCRA 252

Facts: Alvendia defaulted on his obligation to pay Bonamy. Alvendia did not do anything fr. the
filing of the complaint against him up to the time that the judgment became final & executory.
Execution has been ordered & his property has been levied. He moved for extension of time to
file petition for review.

Held: It is axiomatic that there is no justification in law & in fact for the reopening of a case w/c
has long become final & w/c in fact has been executed. Time & again this ct. has said that the
doctrine of finality of judgment is grounded on fundamental considerations of public policy &
sound practice that at the risk of occasional error, the judgments of cts. must become final at
some definite date fixed by law Alvendia cannot invoke equity to reopen case since they have
been given opportunity but failed.