CIVIL PROCEDURE NOTES ON POST JUDGMENT MOTION for RECONSIDERATION

REMEDIES ACADEMIC YEAR 2011-2012

The MR under Rule 37 is one that is directed against a
POST JUDGMENT REMEDIES judgment or a final order. It is not the MR of an
interlocutory order which for instance, precedes a
The remedies against a judgment may refer to those petition for certiorari.
remedies BEFORE a judgment becomes final and
executor and AFTER the same becomes executor. MR of a judgment is a prohibited motion in a case that
falls under summary procedure.
(1) BEFORE a judgment becomes final and
executor, the aggrieved or losing party may Motion for New Motion for
avail of the following: Trial Reconsideration
Grounds (a) Fraud, (a) Excessive
(a) Motion for Reconsideration (Rule 37) Accident, Damages
Mistake,
(b) Motion for New Trial (Rule 37) Excusable (b) Insufficient
Negligence Evidence
(c) Appeal (FAME)

A judgment becomes final and executor upon the (b) Newly (c) Decision is
expiration of the period to appeal therefrom and no Discovered contrary to
appeal has been perfected (Sec.1, Rule 39, Rules of Court). Evidence Law.
(NDE)
(2) AFTER the judgment becomes executor, the
losing party may avail of the following:
(Sec.1, Rule 37, Rules
(a) Petition for Relief (Rule 38) of Court) (Sec.1, Rule 37, Rules
of Court)
(b) Action to annul a judgment (Rule 47) When Within the period for taking an appeal
(Sec.1, Rule 37, Rules of Court).
(c) Certiorari (Rule 65) Extensio No motion for extension of time to file a
n motion for new trial or reconsideration shall
(d) Collateral attack of a judgment be allowed (Sec.2, Rule 40, Sec.3, Rule 41,
Rules of Court).
Effect to The filing of a timely motion for new trial or
appeals reconsideration interrupts the period to
RULE 37 NEW TRIAL OR MOTION FOR appeal (Sec.2, Rule 40, Sec.3, Rule 41, Rules of
RECONSIDERATION Court).
The motion shall be:
MOTION for NEW TRIAL (a) Writing
(b) Stating the grounds
Motion for NEW TRIAL of a judgment is a prohibited (c) Send Notice to the adverse party.
motion in a case that falls under summary procedure. (Sec.2, Rule 37, Rules of Court)
(d) Supported (e) Point out
Affidavit of merit must be one showing the facts (not by affidavits specifically
mere conclusions or opinions) constituting the valid of the findings
cause of action or defense which the movant may prove which are
Contents (1) Merits not
in case a new trial is granted.
(FAME) supported
by the
Gross negligence of the counsel is not a ground for new
(2) The evidence.
trial. Witnesses
(NDE) (f) Provisions
1

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

 of law Order of Not appealable, the remedy being an appeal
alleged to be Denial from the judgment or final order (Sec.9, Rule
contrary to 37, Rules of Court).
such
findings or
conclusions. RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS

(Sec.2, Rule 37, Rules It is a legal remedy whereby a party seeks to set aside a
of Court) judgment rendered against him by a court whenever he
(Sec.2, Rule 37, Rules
was unjustly deprived of a hearing or was prevented
of Court)
Action Set aside the Amend such from taking an appeal because of FRAUD, ACCIDENT,
If judgment or final judgment or final MISTAKE, or EXCUSABLE NEGLIGENCE.
granted: order and grant a order accordingly.
new trial (Trial de A petition for relief from judgment is an equitable
Novo). remedy that is allowed only in exceptional cases when
there is no other available or adequate remedy.
(Sec.3, Rule 37, Rules (Sec.3, Rule 37, Rules
of Court) of Court) GROUNDS:

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

taken upon the or any other proceeding is thereafter taken against
former trial, in so far the petitioner in any court through FRAUD,
as the same is ACCIDENT, MISTAKE, or EXCUSABLE
material and
NEGLIGENCE (Sec.1, Rule 38, Rules of Court).
competent to
establish the issues,
(b) When the petitioner has been prevented from
shall be used at the
new trial without taking an appeal by FRAUD, ACCIDENT,
retaking the same. MISTAKE, or EXCUSABLE NEGLIGENCE
(Sec.2, Rule 38, Rules of Court).
(Sec.6, Rule 37, Rules
of Court) PRAYER:

Resoluti Resolved within thirty days from the time it (a) In letter (a) the petition shall be filed in such
on is submitted for resolution (Sec.4, Rule 37, court and in the same case. The petition shall
Rules of Court). pray that the judgment, order or proceeding be
Partial If the Grounds affect the issues as to only a SET ASIDE.
part, or less than all of the matter in
controversy, or only one, or less than all, of (b) In letter (b) the petition shall likewise be filed in
the parties to it, the court may order a new such court and in the same case but the prayer
trial or reconsideration as to such issues if this time is that the appeal be given DUE
severable without interfering with the
COURSE.
judgment or final order upon the rest.
(Sec.7, Rule 37, Rules of Court)
RULE 37 as distinguished from RULE 38
Second Allowed if the Prohibited
motion ground was not NEW TRIAL / RELIEF FROM
existing when the
RECONSIDERATI JUDGMENT
first motion was
ON
filed.
(Sec.5, Rule 37, Rules (Sec.5, Rule 37, Rules
When Must be filed within Judgment is final
of Court) of Court)

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

 the appeal period within 60 days after However, on appeal in habeas corpus cases shall be
Judgment not yet petitioner learns of taken within forty-eight (48) hours from notice of the
Final. the judgment to be judgment or final order appealed from (Sec.3, Rule 41,
set aside and within Rules of Court).
6months after such
HOW:
judgment is entered.
(a) Filing a notice of appeal with the court that
Right/Pri A Legal Right More on Equity
nciple rendered the judgment or final order appealed
from and by
Grounds FAME + NDE FAME only
(b) Serving a copy of the notice to the adverse party.
Relief Judgment on Final Judgment on Final
from (c) Within the period for taking an appeal, the
Order order / order on
appellant shall pay to the clerk of the court
other proceeding.
which rendered the judgment or final order
appealed from the full amount of the appellate
court docket and other lawful fees. Proof of
RULE 38 as distinguished from RULE 47 payment thereof shall be transmitted to the
appellate court together with the original record
See Table in RULE 47, Infra
or the record on appeal, as the case may be.
(Sec.5, Rule 40, and Sec.4, Rule 41, Rules of Court)

Addl requirements for Rule 40.

APPEALS
(d) Within fifteen (15) days from the perfection of
Appeal, defined: a legal proceeding by which a case is
the appeal, the clerk of court or the branch clerk
brought before a higher court for review of the decision
of court of the lower court shall transmit the
of a lower court.
original record or the record on appeal, together
Rule 40 APPEALS FROM MUNICIPAL TRIAL with the transcripts and exhibits, which he shall
COURTS TO THE REGIONAL TRIAL COURTS / certify as complete, to the proper Regional Trial
Rule 41 APPEALS FROM THE REGIONAL TRIAL Court. A copy of his letter of transmittal of the
COURTS. records to the appellate court shall be furnished
the parties (Sec.6, Rule 40, Rules of Court).
WHEN:
(e) Upon receipt of the complete record on appeal,
An appeal may be taken within fifteen (15) days after the clerk of court of the Regional Trial Court
notice to the appellant of the judgment or final order shall notify the parties of the fact (Sec.7(a),
appealed from (Sec. 2, Rule 40, Rules of Court). Rule40, Rules of Court).

*The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration shall be allowed. (n) (Sec.2, Rule 40, and
Sec.3, Rule 41, Rules of Court).
Where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within
thirty (30) days after notice of the judgment or final
order (Sec. 2, Rule 40, and Sec.3, Rule 41, Rules of Court).
(f) Within 15 days from such notice, it shall be the
duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to
the lower court, a copy of which shall be
furnished by him to the adverse party. Within
fifteen (15) days from receipt of the appellants
memorandum, the appellee may file his
memorandum. Failure of the appellant to file a
3

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

 memorandum shall be a ground for dismissal of
the appeal (Sec.7(b), Rule 40, Rules of Court).
(g) Upon the filing of the memorandum of the
appellee, or the expiration of the period to do so,
the case shall be considered submitted for
decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the
proceedings had in the court of origin and such
memoranda as are filed (Sec.7(c), Rule 40, Rules of
Court).
Addl requirements for Rule 41.
(h) Within 30 days after perfection of all the
appeals, the clerk of court shall verify the
CORRECTNESS and COMPLETENESS of the
records and if incomplete, to take such measures
to complete such records, certify to the
correctness of the records, to transmit the same
to the appellate court, and to furnish the parties
with copies of his letter of transmittal of the
records to the appellate court (Sec.10, Rule 41,
Rules of Court).
(i) Upon receiving the original record on appeal
and the accompanying documents transmitted
by the lower court, as well as the proof of
payment of the docket fees, the clerk of court of
the Court of Appeals shall docket the case and
notify the parties (Sec.4, Rule44, Rules of Court).
(j) Within 45 days from receipt of the notice of the
clerk of court, the appellant shall file a brief a
brief with proof of service upon the appellee
(Sec.7, Rule 44, Rules of Court). Within 45 days
from the receipt of the appellants brief, the
appellee shall file his own brief with proof of
service to the appellant (Sec.8, Rule 44, Rules of
Court). Within 20 days from receipt of the
appellees brief, the appellant may file a reply
brief answering points in the appellees brief not
covered in his main brief (Sec.9, Rule 44, Rules of
Court).
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
*Note: Extension of time for the filing or briefs will
be allowed, except for GOOD and SUFFICIENT
CAUSE and only if the MOTION FOR EXTENSION
is filed BEFORE the EXPIRATION of the time
sought to be extended (Sec.12, Rule 44, Rules of
Court).
*In petitions for certiorari, prohibition, mandamus,
quo warranto and habeas corpus cases, briefs are not
filed. Instead the parties shall file their respective
memoranda within a non-extendible period of 30
days from receipt of the notice that all the pieces of
evidence are already attached to the record (Sec.10,
Rule 44, Rules of Court).
EXTENSION:
Rule 41
The period to file notice of appeal is NOT EXTENDIBLE.
The extension refers only to filing of briefs only if with:
(a) GOOD and
(b) SUFFICIENT CAUSE
(c) MOTION FOR EXTENSION
(d) BEFORE the EXPIRATION of the time sought to
be extended.
(Sec.12, Rule 44, Rules of Court)
Sec.12, Rule 44, Rules of Court
Sec. 12. Extension of time for filing briefs.Extension of time for the filing
of briefs will not be allowed, except for good and sufficient cause, and
only if the motion for extension is filed before the expiration of the
time sought to be extended.
PERFECTION, LOSING of COURTs JURISDICTION,
and CONTENTS:
Notice of appeal, is deemed perfected as to him upon
the filing of the notice of appeal in due time.
*Notice of appeal does not require the approval of the
court. The function of the notice is merely to notify the
trial court that the appellant was availing of the right of
appeal, and not to seek the courts permission that he be
allowed to pose an appeal.
*In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to
appeal of the other parties. (Sec. 9, Rule 41, Rules of
Court).
Notice of appeal, the court loses jurisdiction over the case:
(a) upon the perfection of the appeals
(b) filed in due time and
(c) the expiration of the time to appeal of the other parties.
(Sec. 9, Rule 41, Rules of Court).
*Notice of appeal shall indicate:
a. the Parties to the appeal
b. specify the Judgment or final order or part thereof
appealed from,
c. specify the Court to which the appeal is being taken,
and
d. state the Material dates showing the timeliness of the
appeal.
Sec.3, Rule 40, and Sec.5, Rule 41, Rules of Court
Record on appeal, is deemed perfected as to him with
respect to the subject matter thereof upon the approval
of the record on appeal filed in due time.
*A record on appeal shall be required only in special
proceedings and in cases of multiple or separate appeals
(Sec. 2, Rule 40, Rules of Court).
*In appeals by record on appeal, the court loses
jurisdiction over the subject matter thereof upon the
approval of the records on appeal filed in due time and the
expiration of the time to appeal of the parties (Sec. 9, Rule
41, Rules of Court).
*In appeals by record on appeal, the court loses
jurisdiction over the subject matter:
(a) upon the approval of the records on appeal
(b) filed in due time and
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
(c) the expiration of the time to appeal of the parties (Sec. 9,
Rule 41, Rules of Court).
*Record on appeal; form and contents:
a. the Full names of all the Parties
b. the Judgment or final order from which the appeal is
taken.
c. in chronological order, Copies of such Pleadings,
petitions, motions, and all interlocutory orders related to
the appealed judgment.
d. data as will show that the appeal was perfected on
time.
e. ALL evidence, testimonial, documentary, etc. If an
Issue of Fact is raised on appeal.
f. if the whole testimonial and documentary evidence is
to be included, a Statement to that effect is sufficient
without mentioning the names of the witnesses.
g. Subject index if record on appeals exceeds 20 pages.
Sec.6, Rule 41, Rules of Court
MODES:
Rule 41
Sec.2, Rule 41, Rules of Court.
SEC. 2. Modes of appeal.
a. Ordinary appeal.The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such cases,
the record -on appeal shall be filed and served in like manner.
b. Petition for review.The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its appellate
jurisdiction shall be by petition for review in accordance with Rule 42.
c. Appeal by certiorari.In all cases where only questions of law are
raised or involved, the appeal shall be to the Supreme Court by
petition for review on certiorari in accordance with Rule 45. (n)
5
QUESTIONS TO BE RAISED:
The appellant may include in his assignment of errors
any QUESTION OF LAW or FACT that has been raised
in the court below and which is within the issues raised
by the parties (Sec.15, Rule 44, Rules of Court).
Sec.15, Rule 44, Rules of Court
Sec. 15. Questions that may be raised on appeal.-Whether or not the
appellant has filed a motion for new trial in the court below, he may
include in his assignment of errors any question of law or fact that has
been raised in the court below and which is within the issues framed by the
parties.
DISMISSAL:
Rule 40
Sec.8, Rule 40, Rules of Court
SEC. 8. Appeal from orders dismissing case without trial; lack of
jurisdiction.If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case may be. In case of
affirmance and the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover,
shall try the case on the merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on appeal
shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without
prejudice to the admission of amended pleadings and additional
evidence in the interest of justice. (n) (SEC. 8., Rule 40, Rules of Court)
Lack of Jurisdiction
1. A case may be dismissed in the Municipal Trial
Court without a trial on the merits. This occurs
when a motion to dismiss is filed and granted in
accordance with Rule 16 of the Rules of Court,
the Regional Trial Court may affirm or reverse
it. If the order is affirmed, then it is a declaration
of the merits of the dismissal.
However, if the dismissal is made on the ground
of lack of jurisdiction over the subject matter,
and the Regional Trial Court affirms the
dismissal, the action of the latter court shall not
be confined to a mere affirmation of the
dismissal. Instead, the rule obligates the
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
Regional Trial Court to try the case on the merits
as if the case was originally filed with it.
2. The same rule prevails if the case was tried on
the merits in the lower court without
jurisdiction over the subject matter and was
subsequently dismissed on such ground. On the
appeal, the Regional Trial Court, if it has
original jurisdiction shall not dismiss the case,
but shall decide the case in the same manner as
dismissed by the lower court without trial on
the merits. The Regional Trial Court may allow
amendment of the pleadings and may receive
additional evidence in the interest of justice
(Sec.8, Rule 40, Rules of Court).
*When a case is dismissed from lack of jurisdiction, the
order of dismissal is one without prejudice because the
plaintiff may simply refile the complaint in the court
with the proper jurisdiction. By the terms of Sec.1 (g),
Rule 41 as amended, the order dismissing an action
without prejudice is not appealable. Sec.8, Rule 40, on
the other hand allows an appeal from an order of the
MTC dismissing a case for lack of jurisdiction. Sec.8,
Rule 40 hence, should be considered as an exception to
Sec.1, Rule 41, Rules of Court.
Rule 41
Sec.13, Rule 41, Rules of Court.
SEC. 13. Dismissal of appeal.Prior to the transmittal of the original
record or the record on appeal to the appellate court, the trial court
may motu proprio or on motion dismiss the appeal for having been
taken out of time, or for non-payment of the docket and other lawful
fees within the reglementary period. (13a)
Non-payment of docket fees the court acquires no
jurisdiction over the subject matter of the case.
Appeal taken out of time.
Sec.2, Rule 50, Rules of Court
Sec. 2. Dismissal of improper appeal to the Court of Appeals.An appeal
under Rule 41 taken from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed, issues purely
of law not being reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed outright.
(3a)
Appeals to be dismissed:
Raising only questions of law
Erroneously Taken
APPEAL, SUBJECT, INTERRUPTION, and
PROHIBITION:
The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration of the judgment or final order (Sec.2,
Rule 40, and Sec.3, Rule 41, Rules of Court).
Sec.1, Rule 41, Rules of Court.
SECTION 1. Subject of appeal.An appeal may be taken from a
judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion seeking
relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress,
or any other ground vitiating consent.
(f) An order of execution;
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and third-
party complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65. (n)
*Take note of the above cited explanation of Sec.1, Rule
41.
RESIDUAL JURISDICTION:
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
The concept of residual jurisdiction is available at a stage
in which a court is normally deemed to have LOST
JURISDICTION over the case or the subject matter
involved in the appeal. There is no residual jurisdiction
to speak of where no appeal or petition has ever been
filed (Fernandez vs. C.A. 458SCRA454).
Sec.2(a), Rule 39, Rules of Court
Sec. 2. Discretionary execution.
(a) Execution of a judgment or final order pending appeal. On
motion of the prevailing party with notice to the adverse party filed in
the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as the
case may be, at the time of the filing of such motion, said court may, in
its discretion, order execution of a judgment or final order even before
the expiration of the period to appeal.
Sec.9, Rule 41, Rules of Court
Xxx x
In either case, prior to the transmittal of the original record or the
record on appeal, the court may issue orders for the protection and
preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals
of indigent litigants, order execution pending appeal in accordance
with section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
SEC.8(a), Rule 42, Rules of Court
Xxx
However, before the Court of Appeals gives due course to the petition,
the Regional Trial Court may issue orders for the protection and
preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve corn-promises, permit appeals
of indigent litigants, order execution pending appeal in accordance
with section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41)
The term refers to the:
i. authority of as trial court to issue orders for the
protection and preservation of the rights of the
parties which do not involve any matter
litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order
execution pending appeal in accordance with
Sec.2, Rule 39, and
ii. allow withdrawal of the appeal provided these
are done prior to the transmittal of the original
record or the record on appeal even if the
7
 appeals have already been perfected despite the iii. EXPIRATION of the period for its filing
approval of the record on appeal (Sec.9, Rule 41,
Sec.1(a), Rule 51, Rules of Court
Rules of Court) or
Sec. 1. When case deemed submitted for judgment.A case shall be
iii. in case of a petition for review under Rule 42 deemed submitted for judgment:
before the Court of Appeals gives due course to
A. In ordinary appeals.
the petition (Sec.8, Rule 42, Rules of Court).
1) Where no hearing on the merits of the main case is held, upon the
Residual Rule 41 Rule 42 filing of the last pleading, brief, or memorandum required by the Rules
or by the court itself, or the expiration of the period for its filing.
Jurisdiction
2) Where such a hearing is held, upon its termination or upon the filing
When Before transmittal of Before the court of the last pleading or memorandum as may be required or permitted to
be filed by the court, or the expiration of the period for its filing.
the original record gives due course.

WITHDRAWAL OF APPEAL:

SUBMITTED for DECISION:
Rule 40
The case shall be considered submitted for decision:
(a) Upon the filing of the memorandum of the
appellee, OR
(b) The expiration of the period to do so, the case
shall be considered submitted for decision.
The Regional Trial Court shall decide the case on the
basis of the entire record of the proceedings had in the
court of origin and such memoranda as are filed
(Sec.7(c), Rule 40, Rules of Court).
Rule 41
Sec.1(a), Rule 51, Rules of Court provides for the
submission of cases for decision under Rule 41.
In ordinary appeals:
(a) No Hearing on the merits
i. Filing of the LAST PLEADING, OR
The Court may, upon its discretion allow withdrawal of
the appeal by the appellant before the transmittal of the
original record or record on appeal (Sec.9, Rule 41, Rules
of Court).
Sec.9, Rule 41, Rules of Court
Xxx x
In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal. (9a)
RULE 42 PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE COURT OF
APPEALS
APPLICATION:
Rule 42 applies to an appeal from the judgment or final
order of the Regional Trial Court to the Court of Appeals
in cases decided by the former in the exercise of its
appellate jurisdiction.

ii. EXPIRATION of the period for its filing WHEN:

(b) Hearing on the merits The petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be reviewed
i. Upon its TERMINATION, or or of the denial of petitioners motion for new trial or
reconsideration filed in due time after judgment (Sec.1,
ii. Filing of the LAST PLEADING, or
Rule 42, Rules of Court).

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

HOW:
A party desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of its
appellate jurisdiction may:
(a) file a VERIFIED petition for review with the
Court of Appeals,
(b) paying at the same time to the clerk of said court
the corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs, and
(c) furnishing the Regional Trial Court and the
adverse party with a copy of the petition.
(Sec.1, Rule 42, Rules of Court)
(d) The Court of Appeals may dismiss the petition if
it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration (Sec.4, Rule 42, Rules of
Court).
(e) If the Court of Appeals does not dismiss the case
it may require the respondent to file a comment
on the petition, not a motion to dismiss, within
ten (10) days from notice (Sec.4, Rule 42, Rules of
Court).
(f) If the Court of Appeals finds prima facie that the
lower court has committed an error of fact or
law that will warrant a reversal or modification
of the appealed decision, it may accordingly
give due course to the petition (Sec.6, Rule 42,
Rules of Court).
(g) If the petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within
a period of fifteen (15) days from notice. The
case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
court itself(Sec.9, Rule 42, Rules of Court).
EXTENSION:
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
The Court may grant an additional 15 days only within
which to file the petition for review:
(a) Upon proper motion and
(b) the payment of the full amount of the docket
and other lawful fees and the deposit for costs
(c) before the expiration of the reglementary period.
*No further extension shall be granted except for the
most compelling reason and in no case to exceed fifteen
(15) days. (n)
(Sec.1, Rule 42, Rules of Court)
PERFECTION, LOSING of COURTs JURISDICTION,
and CONTENTS:
The appeal is perfected as to the petitioner upon the
timely filing of a petition for review and the payment of
the corresponding docket and other lawful fees, the
appeal is deemed perfected as to the petitioner (Sec.8,
Rule 42, Rules of Court).
Sec.8(a), Rule 42, Rules of Court.
Sec. 8. Perfection of appeal; effect thereof
(a) Upon the timely filing of a petition for review and the payment of
the corresponding docket and other lawful fees, the appeal is deemed
perfected as to the petitioner.
*The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
(Sec. 8, Rule 42, Rules of Court).
The Regional Trial Court loses jurisdiction over the case:
(a) upon the perfection of the appeals
(b) filed in due time and
(c) the expiration of the time to appeal of the other
parties. (Sec. 8, Rule 42, Rules of Court).
Sec.8(a), Rule 42, Rules of Court.
Sec. 8. Perfection of appeal; effect thereof
(a) Xxx
The Regional Trial Court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the
time to appeal of the other parties.
Form and contents.
(a) FULL NAMES of the PARTIES to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents;
(b) SPECIFIC MATERIAL DATES showing that it was
filed on time;
(c) STATEMENT OF THE MATTERS involved, the
issues raised, the specification of errors of fact or law, or
both, allegedly committed by the Regional Trial Court,
and the reasons or arguments relied upon for the
allowance of the appeal;
(d) Accompanied by CLEARLY LEGIBLE DUPLICATE
ORIGINALS or TRUE COPIES of the JUDGMENTS or
FINAL ORDERS of both lower courts, certified correct
by the clerk of court of the Regional Trial Court, the
requisite number of plain copies thereof and of the
pleadings and other material portions of the record as
would support the allegations of the petition.
(e) CERTIFICATE of NON-FORUM SHOPPING.
(Sec.2, Rule 42, Rules of Court)
RESIDUAL JURISDICTION:
*See Explanation, Supra
QUESTIONS TO BE RAISED:
The appellant may include in his assignment of errors
any QUESTION OF LAW or FACT, or BOTH, allegedly
committed by the Regional Trial Court.
(a) Pure questions of LAW
(b) Questions of Fact
(c) Mixed Both law and fact
Sec.2(c), Rule 42, Rules of Court
Sec. 2. Form and contents.Xxx
(c) set forth concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both, allegedly
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
committed by the Regional Trial Court, and the reasons or arguments
relied upon for the allowance of the appeal;
Xxx
DISMISSAL:
Sec.1, Rule 50, Rules of Court
Sec.1. Grounds for dismissal of appealAn appeal may be dismissed by
the Court of Appeals, on its own motion or on that of the appellee, on
the following grounds:
(a) Failure of the record on appeal to show on its face that the appeal
was taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within
the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees as
provided in section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved
record on appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the appellants brief, or
of page references to the record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited by the
court in its order;
(h) Failure of the appellant to appear at the preliminary conference
under Rule 48 or to comply with orders, circulars, or directives of the
court without justifiable cause; and
(i) The fact that order or judgment appealed from is not appealable.
(1a)
Sec.2, Rule 50, Rules of Court
Sec. 2. Dismissal of improper appeal to the Court of Appeals.An appeal
under Rule 41 taken from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed, issues purely
of law not being reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed outright.
(3a)
SUBMITTED for DECISION
10
The case shall be deemed submitted for decision upon
the filing of the last pleading or memorandum required
by these Rules or by the court itself. (Sec. 9, Rule 42, Rules
of Court).
Sec. 9, Rule 42, Rules of Court
Sec. 9. Submission for decision.If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the
parties to submit memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision upon the filing
of the last pleading or memorandum required by these Rules or by the
court itself. (n)
Sec.1 (B), Rule 51, Rules of Court
As a matter of Discretion:
(a) If the appellee has already filed its answer, the
court may allow the withdrawal of the case
upon its discretion.
Sec.9, Rule 41, Rules of Court
Xxx x
In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal. (9a)

Sec 1. When case deemed submitted for judgment.A case shall be deemed
submitted for judgment: Xxx
Sec.8, Rule 50, Rules of Court
Xxx
Sec. 3. Withdrawal of appeal.An appeal may be withdrawn as of right
B. In original actions and petitions for review. at any time before the filing of the appellees brief. Thereafter, the
withdrawal may be allowed in the discretion of the court. (4a)
1) Where no comment is filed, upon the expiration of the period to
comment.

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

required or permitted to be filed by the court, or the expiration of the RULE 43APPEALS FROM THE QUASI-JUDICIAL
period for its filing. AGENCIES TO THE COURT OF APPEALS
3) Where a hearing on the merits of the main case is held, upon its
termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration
RULE 42 as distinguished from RULE 43
of the period for its filing. (n)

Rule 42 Rule 43

WITHDRAWAL: Scope Applies to an appeal Applies to awards,

from the judgment or judgments, final
As a matter of Right: final order of the orders or resolutions
Regional Trial Court of or authorized by
(a) The original records are still within the court a
to the Court of any quasi-judicial
quo (MTC/RTC)
Appeals in cases agency in the
Before the transmittal of the original record or decided by the exercise of its quasi-
record on appeal, the court may allow the former in the exercise judicial functions.
withdrawal (Sec.9, Rule 41, Rules of Court). of its appellate
jurisdiction.
(b) Records are transmitted in the appellate court
(RTC/CA) How (a) VERIFIED Same as Rule 42,
appeal petition for Rules of Court
Before the appellee files its answer, the court is taken review,
may allow the withdrawal as a matter of right (Sec.5, Rule 43, Rules
(Sec.3, Rule 50, Rules of Court). (b) Payment of of Court).
docket and

11

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

 other lawful Effect of The failure of the Same as Rule 42,
fees, failure petitioner to comply Rules of Court.
depositing to with any of the
comply (Sec.7, Rule 43, Rules
the amount requirements shall be
with the of Court.)
of P500.00 sufficient ground for
for costs, and reqs. dismissal.

(c) Furnish a Content See Sec.2, Rule 42, Same as Rule 42,
copy of the s of Rules of Court, Supra Rules of Court
petition to petition
RTC and (Sec.6, Rule 43, Rules
adverse of Court)
party.
Content (a) State (a) Insufficiencie
Where Court of Appeals Court of Appeals s of whether or s or
to commen not he inaccuracies
Appeal ts accepts the in
statement of petitioners
Questio Questions of Fact or Questions of Fact or the matters statement of
ns to be Law, or Both, Law, or Both, involved. facts and
raised allegedly committed allegedly committed issues.
by the RTC (Sec.2(c), by the quasi-judicial (b) Insufficiencie
Rule 43, Rules of authorities (Sec.3, s or (b) Reasons why
Court). Rule 43, Rules of inaccuracies petition shall
Court). in be denied or
petitioners dismissed.
Period Within fifteen (15) Within fifteen (15) statement of
days from notice of days from notice of (Sec.9, Rule 43, Rules
facts and
the decision sought the award, judgment, of Court).
issues.
to be reviewed or of final order or
the denial of resolution, or from (c) Reasons why
petitioners motion the date of its last, or petition shall
for new trial or of the denial of be denied or
reconsideration filed petitioners motion dismissed.
in due time after for new trial or
Due the Court of Appeals Court of Appeals
judgment reconsideration filed
course finds prima facie that finds prima facie that
in accordance with
governing law of the the lower court has the court or agency
court or agency a quo. committed an error concerned has
of fact or law that committed errors of
(Sec.4, Rule 43, Rules will warrant a fact or law that
of Court) reversal or would warrant
modification of the reversal or
Extensio See Sec.1, Rule 42, Same as Rule 42, appealed decision, it modification of the
n Rules of Court, Supra Rules of Court may accordingly give award, judgment,
due course to the final order or
(Sec.4, Rule 43, Rules
petition. resolution sought to
of Court).
be reviewed, it may

12

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

 (Sec.6, Rule 42, Rules give due course to Rules of Court)
of Court) the petition;
otherwise, it shall
dismiss the same.
The findings of fact
of the court or
agency concerned, Table of Appeals
when supported by
FROM APPEAL HOW?
substantial evidence,
TO
shall be binding on MTC RTC File a notice of
the Court of Appeals. appeal with the
court (MTC) and
(Sec.10, Rule 43, Rules serve a copy of the
of Court) notice to the
adverse party.
Submitt The case shall be Same as Rule 42, Rule 40
ed for deemed submitted Rules of Court. RTC CA File a notice of
decision for decision upon the -exercise of its -only appeal with the
(Sec.13, Rule 43, Rules original jurisdiction. questions court (RTC) and
filing of the last
of Court). of fact or serve a copy of the
pleading or
law notice to the
memorandum
adverse party.
required by the Rules Rule 41
of Court (Sec.9, Rule RTC SC File a petition for
42, Rules of Court) -exercise of its -only review on
original jurisdiction. questions Certiorari with the
Cases Cases decided by the This Rule shall not of law Supreme Court
not RTC in its original apply to judgments (SC) under Rule
covered jurisdiction. or final orders issued 45.
under the Labor RTC CA File a petition for
-exercise of its - review with the
Code of the
appellate jurisdiction questions CA under Rule 42.
Philippines (Sec.2, of fact law
Rule 43, Rules of or both
Court). Quasi-judicial CA File a petition for
bodies - review with the
Stay Except in civil cases The appeal shall not -exercising its quasi- questions Court of Appeals
decided under the stay the award, judicial power of fact law (CA) under Rule
Rule on Summary judgment, final order or both 43.
Procedure, the of resolution sought Ombudsman File a petition for
review with the
appeal shall stay the to be reviewed
-administrative CA Court of Appeals
judgment or final unless the Court of disciplinary case (CA) under Rule
order unless the Appeals shall direct 43.
Court of Appeals, the otherwise upon such File a petition for
law, or these Rules terms as it may deem -Criminal case SC review with the
shall provide other- just. Supreme Court
wise. (SC) under Rule
(Sec.12, Rule 42, Rules 65.
(Sec.8(b), Rule 42, of Court) NLRC CA File a petition for
review on

13

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

 Certiorari with the committed on the
Court of Appeals same occasion or
(CA) under Rule which arose out of
65. the same occurrence
CSC CA File a petition for that gave rise to the
-Judgment or Final review with the offense punishable by
order or resolution. Court of Appeals Death, RP, or LI.
(CA) under Rule
COMELEC SC File a petition for
-Judgment or Final review on RULE 45 APPEAL BY CERTIORARI TO THE
order or resolution. Certiorari with the SUPREME COURT
Supreme Court
(SC) under Rule An appeal for review on certiorari under Rule 45 may
65 as provided by include an application for a writ of preliminary
Rule 64.
injunction or other provisional remedies. The petitioner
COA SC File a petition for
-Judgment or Final review on may seek the same provisional remedies by verified
order or resolution. Certiorari with the motion filed in the same action or proceeding at any
Supreme Court time during its pendency (Rule 1, Rule 45, Rules of
(SC) under Rule Court, as amended by A.M. No. 07-7-12-SC, December 12,
65 as provided by 2007.)
Rule 64.
CA SC File a petition for An appeal under Rule 45 is not a matter of right, but of
-exercising its review on sound judicial discretion, and will be ground only when
original/appellate Certiorari with the special and important reasons could justify the petition.
jurisdiction Supreme Court
(SC) under Rule The following are examples of reasons which the Court
45. may consider in allowing the petition:
CTA CTA File a petition for
-En Banc review on (a) Question of substance not yet determined by the
Certiorari with the
Supreme Court.
CTA En Banc.
CTA SC File a petition for (b) Court below decided a matter of substance in a
-En Banc review on
way that is not in accord with the law.
Certiorari with the
SC under Rule 45.
(c) Court below has departed from the accepted
Sandiganbayan SC File a petition for
-exercise of its review on and usual course of judicial proceedings.
original/appellate Certiorari under
Exception:
jurisdiction. Rule 45.
-imposing a penalty
The penalty of death or reclusion perpetua where an
other than Death,
reclusion perpetua, appeal is a matter of right leaving the reviewing court
or life imprisonment. without any discretion
Sandiganbayan SC File a notice of
-exercise of its appeal with the QUESTIONS TO BE RAISED:
original jurisdiction Sandiganbayan
-penalty imposed is and serve a copy The petition shall raise ONLY QUESTIONS OF LAW.
reclusion perpetua or of the notice to the The rule is that before the Supreme Court, only legal
life imprisonment, or adverse party. issues may be raised in a petition for review on certiorari.
where a lesser The Supreme Court is not a trier of facts, and is not to
penalty is imposed review or calibrate the evidence on record. Moreover,
for offenses

14

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

the findings of the trial court, as affirmed by the Court of
Appeals are conclusive on the Court.
Exceptions:
(a) Question of substance not yet determined by the
Supreme Court.
(b) Court below decided a matter of substance in a
way that is not in accord with the law.
(c) Court below has departed from the accepted
and usual course of judicial proceedings.
(Sec.6, Rule 45, Rules of Court)
(d) Conclusion of the CA is grounded entirely on
speculations.
(e) Inference made is manifestly mistaken.
(f) Grave abuse of discretion.
(g) Misapprehension of facts.
(h) Facts are conflicting.
(i) The CA went beyond the issues of the case.
(j) Findings of the CA are contrary to that of the
trial court.
(k) Findings of fact are conclusions without citation
of specific evidence on which they are based.
(l) Facts set forth by in the petition by the petitioner
are not disputed by the respondents.
(m) The findings of fact by the CA are premised on
the supposed absence of evidence and
contradicted by the evidence on record.
(n) In appeal from a judgment or final order of the
court in a petition for writ of amparo or habeas
data questions of fact may be raised.
Sec.6, Rule 45, Rules of Court
Sec. 6. Review discretionary.A review is not a matter of right, but of
sound judicial discretion, and will be granted only when there are
special and important reasons therefor. The following, while neither
controlling nor fully measuring the courts discretion, indicate the
character of the reasons which will be considered:
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
(a) When the court a quo has decided a question of substance, not
theretofore determined by the Supreme Court, or has decided it in a
way probably not in accord with law or with the applicable decisions
of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned such
departure by a lower court, as to call for an exercise of the power of
supervision.
WHEN:
The petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be reviewed
or of the denial of petitioners motion for new trial or
reconsideration filed in due time after judgment (Sec.2,
Rule 45, Rules of Court).
EXTENSION:
The Court may grant an additional 30 days only within
which to file the petition for review:
(a) Upon proper motion and
(b) the payment of the full amount of the docket
and other lawful fees and the deposit for costs
(c) before the expiration of the reglementary period.
Sec.2, Rule 45, Rules of Court
Sec. 2. Time for filing; extension.The petition shall be filed within
fifteen (15) days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioners motion for
new trial or reconsideration filed in due time after notice of the
judgment. On motion duly filed and served, with full payment of the
docket and other lawful fees and the deposit for costs before the
expiration of the reglementary period, the Supreme Court may for
justifiable reasons grant an extension of thirty (30) days only within
which to file the petition.
CONTENTS:
See Sec.2, Rule 42, Rules of Court, Supra
DISMISSAL:
Sec. 5, Rule 45, Rules of Court
Sec. 5. Dismissal or denial of petition.The failure of the petitioner to
comply with any of the foregoing requirements regarding the payment
of the docket and other lawful fees, deposit for costs, proof of service
of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal
thereof.
15
The Supreme Court may on its own initiative deny the petition on the excess of jurisdiction.
ground that the appeal is without merit, or is prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial to Filed within 15days from Filed within 60 days from
require consideration.
notice of judgment. notice of judgment.
SUBMITTED for DECISION:
Does not require a prior Requires a prior Motion
Sec. 1(B), Rule 51, Rules of Court Motion for for Reconsideration.
Reconsideration.
Sec.1. When case deemed submitted for judgment.A case shall be deemed
submitted for judgment:
Stays the judgment Does not appeal the
Xxx appealed. judgment or order of the
B. In original actions and petitions for review. petition unless enjoined or
restrained.
1) Where no comment is filed, upon the expiration of the period to
comment.
Parties as the original Tribunal, board, officer
2) Where no hearing is held, upon the filing of the last pleading parties with the appealing exercising judicial or
required or permitted to be filed by the court, or the expiration of the
party as the petitioner and quasi-judicial functions in
period for its filing.
the adverse party as impleaded as respondent.
3)Where a hearing on the merits of the main case is held, upon its respondent.
termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration
Only Filed in SUPREME Filed with the:
of the period for its filing.
COURT.
(a) RTC (Sec.21, BP
129 as amended)
RULE 45 as distinguished from RULE 65
(b) CA (Sec.9, BP 129
Rule 45 Rule 65 as amended)

A Mode of appeal. A Special civil action that (c) SC (Sec.5[1], Art.

is an original action. VIII)

Continuation of the Not a part of the appellate Rule 45 and Rule 65 are mutually exclusive and not
appellate process over the process. alternative or cumulative.
original case.
Court may set aside technicality for justifiable reasons as
Seeks to review final May be directed against an when the petition before the court is clearly meritorious
orders and final interlocutory order or and filed on time both under Rules 45 and 65. In
judgments. matters where no appeal accordance with the liberal interest of justice, the Court
may be taken from. may treat the petition as having been filed under Rule 45
(Intl Corporate Bank vs. CA, G.R.No.129910, Sept. 5, 2006).
Raises questions of law. Raises questions of
jurisdiction because a
tribunal, board or officer
RULE 46 ORIGINAL CASES
exercising judicial or extra-
judicial functions has acted APPLICATION:
without or in excess of
jurisdiction or with grave This Rule shall apply to all cases ORIGINALLY filed in
abuse of discretion the Court of Appeals for ORIGINAL ACTIONS for
amounting to lack or

16

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

Certiorari, Prohibition, Mandamus, Quo Warranto,
Annulment (CPMQA).
Rule 65- CPM
Rule 66-Q
Rule 47-A
Sec. 2. To what actions applicable.This Rule shall apply to original
actions for certiorari, prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of judgment
shall be governed by Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto by Rule 66. (n)
Sec.1, Rule 46, Rules of Court
Sec.1. Title of cases.In all cases originally filed in the Court of
Appeals, the party instituting the action shall be called the petitioner
and the opposing party the respondent. (1a)
RULE 47 ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
APPLICATION:
The purpose of such action is to have final and executor
judgment set aside so that there will be a renewal of
litigation.
It is resorted to in cases where the ordinary remedies of
new trial, appeal, petition for relief from judgment, or
other appropriate remedies are no longer available
through no fault of the petitioner, and is based only two
grounds: Extrinsic Fraud, and Lack of Jurisdiction or
denial of due process (Alaban vs. CA, 470 SCRA 697).
GROUNDS for ANNULMENT:
A petition for annulment is an extraordinary action. By
virtue of its exceptional character, the action is restricted
exclusively to the grounds specified in the rules:
(a) EXTRINSIC FRAUD
Exists when there is a fraudulent act committed by the
prevailing party outside of the trial of the case, whereby
the defeated party was prevented from presenting fully
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
his side of the case by deception practiced by the
prevailing party (Alba vs. CA, 465 SCRA 495).
(b) LACK OF JURISDICTION
Refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Petitioner must show an absolute lack of authority to
decide the case.
EFFECT of JUDGMENT OF ANNULMENT:
(a) EXTRINSIC FRAUD
1) Where the judgment or final order is set aside,
and annulled on the ground of EF, the court,
upon motion, may order the trial court to try the
case as if a motion for new trial was granted
(Sec.7, Rule 47, Rules of Court).
Sec.7. Rule 47, Rules of Court
Sec. 7. Effect of judgment- Xxx
However, where the judgment or final order or resolution is set aside
on the ground of extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for new trial had been
granted therein.
(b) LACK OF JURISDICTION
A judgment of annulment based on LOJ shall
have the effect of setting aside the questioned
judgment or final order and rendering the same
null and void but the judgment of annulment is
without prejudice to the refilling of the original
action in the proper court(Sec.7, Rule 47, Rules of
Court).
Sec.7, Rule 47, Rules of Court
Sec. 7. Effect of judgment- A judgment of annulment shall set aside the
questioned judgment or final order or resolution and render the same
null and void, without prejudice to the original action being refiled in
the proper court. Xxx
(c) Judgment may include award of damages,
attorneys fees, and other relief (Sec.9, Rule 47,
Rules of Court).
Sec.9, Rule 47, Rules of Court
Sec.9. Relief available.The judgment of annulment may include the
17
award of damages, attorneys fees and other relief. petition. (n)

If the questioned judgment or final order or resolution had already

been executed, the court may issue such orders of restitution or other
relief as justice and equity may warrant under the circumstances. (n)
Sec.5, Rule 46, Rules of Court

ANNULMENT of the MTC: Sec.5. Action by the court.The court may dismiss the petition outright
with specific reasons for such dismissal or require the respondent to
Sec.10, Rule 47, Rules of Court file a comment on the same within ten (10) days from notice. Xxx

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

Courts.An action to annul a judgment or final order of a Municipal
Trial Court shall be filed in the Regional Trial Court having jurisdiction
over the former. It shall be treated as an ordinary civil action and
sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)
Sec.5, Rule 47, Rules of Court
Sec.5. Action by the court.Should the court find no substantial merit
in the petition, the same may be dismissed outright with specific
reasons for such dismissal. Xxx

INTERRUPTION and PROHIBITION:

The prescriptive period of the original action shall be SUBMITTED for DECISION:
deemed suspended from the filing of the original action
Sec.7, Rule 46, Rules of Court
until its finality (Sec.8, Rule 47, Rules of Court).
Sec.7. Effect of failure to file comment.When no comment is filed by any
Sec.8, Rule 47, Rules of Court of the respondents, the case may be decided on the basis of the record,
without prejudice to any disciplinary action which the court may take
Sec.8. Suspension of prescriptive period.The prescriptive period for the against the disobedient party. (n)
refiling of the aforesaid original action shall be deemed suspended
from the filing of said original action until the finality of the judgment
of annulment. However, the prescriptive period shall not be
suspended where the extrinsic fraud is attributable to the plaintiff in Sec.1(B), Rule 50, Rules of Court
the original action. (n)
Sec 1. When case deemed submitted for judgment.A case shall be deemed
submitted for judgment: Xxx

Xxx
Only pleadings allowed by the Court shall be allowed,
otherwise, a leave of court is necessary (Sec.5, Rule 46, B. In original actions and petitions for review.

Rules of Court). 1) Where no comment is filed, upon the expiration of the period to
comment.
Sec.5, Rule 46, Rules of Court
2) Where no hearing is held, upon the filing of the last pleading
Sec. 5. Action by the court.Xxx required or permitted to be filed by the court, or the expiration of the
period for its filing.
Only pleadings required by the court shall be allowed. All other
pleadings and papers, may be filed only with leave of court. (n) 3) Where a hearing on the merits of the main case is held, upon its
termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration
of the period for its filing. (n)
DISMISSAL:

Sec.3, Rule 46, Rules of Court

RULE 38 as distinguished from RULE 47
Sec.3. Contents and filing of petition; effect of non-compliance with
requirements.-Xxx
Rule 38 Rule 47
Xxx
Scope Available not only (a) Rule shall
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the against a judgment govern the
or final order, it is annulment
18

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

 also available when by the Court taken PETITION. PETITION.
any other of Appeals of
proceeding is judgments (b) Accompanie (b) FACTS
thereafter taken or final d with constituting
against then orders and affidavits the
petitioner in any resolutions showing petitioners
other COURT in civil FAME. GOOD and
through Fraud, actions of SUBSTANTI
(c) FACTS AL cause of
Accident, Mistake, Regional
constituting action or
Excusable negligence Trial Courts
the Defense.
(Sec.1, Rule 38, Rules for which
petitioners
of Court). the ordinary
GOOD and (c) LAW relied
remedies of
SUBSTANTI upon
new trial,
AL cause of annulment.
appeal,
action or
petition for (d) Accompanie
Defense.
relief or d with
other (Sec.3, Rule 38, Rules affidavits of
appropriate of Court) Witnesses.
remedies are
no longer (d) CERTIFICA
available TE of NON-
through no FORUM
fault of the SHOPPING.
petitioner.
(Sec.4, Rule 47, Rules
(Sec.1, Rule 47, Rules of Court)
of Court)
Where In the Court where Court of Appeals if
(b) Annulment the judgment, order, what is sought to be
of or resolution was annulled is a
judgments rendered (Secs.1 and decision of the RTC
or final 2, Rule 38, Rules of (Sec.1, Rule 47, Rules
orders of Court). of Court).
Municipal
(a) MTC RTC if what is
Trial Courts.
sought to be
(b) RTC annulled is a
(Sec.1, Rule 47, Rules
of Court) decision of the MTC
Not available in CA
(Sec.10, Rule 47, Rules
and SC.
Who ONLY the PARTIES ANY PERSON as of Court).
of the case. long as there is a
showing that he was (a) RTC
affected by the
(b) CA
judgment.
Period (a) within sixty (a) If based on
How (a) File a (a) File a
(60) days extrinsic
appeal is VERIFIED VERIFIED after the fraud, the
19

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

 petitioner action must prevented
learns of the be filed from taking
judgment, within four an appeal.
final order, (4) years
or other from its (Sec.2, Rule 38, Rules
proceeding discovery; of Court)
to be set and
aside, and Availabi (a) After the (a) After the
(b) If based on
lity judgment or judgment or
(b) not more lack of
than six (6) jurisdiction, final order final order
months after before it is has become has become
such barred by final or final or
judgment or laches or executory executory
final order estoppel. and that no and that no
was entered,
other other
or such
proceeding (Sec.3, Rule 47, Rules remedy is remedy is
was taken. of Court) available. available.
(Sec.3, Rule 38, Rules
(b) Any other (Sec.1, Rule 45, Rules
of Court)
proceeding of Court)
Grounds Fraud, Accident, (a) Extrinsic is thereafter
Mistake, Excusable Fraud; and taken
Negligence (FAME). against then
(b) Lack of petitioner in
(a) Judgment or Jurisdiction any other
Final order COURT
is entered (Sec.2, Rule 47, Rules
through
through of Court)
Fraud,
FAME. or Accident,
Mistake,
(b) Any other
Excusable
proceeding
negligence.
is thereafter
taken (Sec.1, Rule 38, Rules
against a of Court).
party
through
FAME. or
RULE 65 CERTIORARI, PROHIBITION,
(Sec.1, Rule 38, Rules MANDAMUS
of Court)
*only Certiorari of Rule 65 will be discussed as this topic
(c) Judgment or is compared to Rule 45.
Final order
CERTIORARI:
is entered
and a party Called a supervisory or superintending writ, this
by FAME remedy is availed of to annul or modify the proceedings
was of a tribunal, board or officer exercising judicial or

20

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

extrajudicial functions which has acted without or in
excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
As a rule, where appeal is available, certiorari cannot be
availed of unless it can be shown that appeal is not
speedy, or adequate.
The task of the court in a certiorari proceeding is to
determine whether the lower court committed grave
abuse of discretion (Marcopper Mining vs. Solidbank
Corporation, GR No. 134049). Its function is to raise
questions of jurisdiction and no other. It cannot be used
for any other purpose (Landbank vs. CA, 409 SCRA 455).
Do not file certiorari if your purpose is to raise a factual
issue or to ask for re-evaluation of the facts and the
evidence (PILTEL vs. NTC, 410 SCRA 82).
The phrase grave abuse of discretion has a precise
meaning in law, denoting abuse of discretion too patent
and gross as to amount to an evasion of a positive duty,
or a virtual refusal to perform the duty enjoined or act in
contemplation of law, or where the power is exercised in
an arbitrary and despotic manner by reason of passion
and personal hostility.
MOTION for RECONSIDERATION
The general rule is that before filing a petition for
certiorari under Rule 65 of the Rules of Court, the
petitioner is mandated to comply with the condition
precedent:
(1) The filing of a Motion for Reconsideration, and
(2) The subsequent denial of the court a quo.
However, the rule is subject to the following recognized
exceptions:
(a) The court a quo has no jurisdiction
(b) Questions raised in the certiorari proceeding
have been duly raised and passed upon by the
lower court, or are the same as those raised and
passed upon in the lower court.
Alpha Phi Omega Notes By: JayArhSals (USJ-R Cebu)
(c) Urgent necessity for the resolution of the
questions and any further delay would
prejudice the interest of the petitioner.
(d) Motion for reconsideration is useless.
(e) Petitioner was deprived of due process and
there is extreme urgency for relief.
(f) In criminal case, relief from an order of arrest is
urgent.
(g) The proceeding was ex parte or in which the
petitioner had no opportunity to object.
(h) Issue raised is one purely of law or public
interest is involved.
RULE 45 as distinguished from RULE 65
See Table in RULE 45, Supra
Distinction between a DIRECT from a COLLATERAL
ATTACK
A DIRECT ATTACK of a judgment is made through an
action or proceeding the main object of which is to
annul, set aside or enjoin the enforcement of such
judgment if not yet carried into effect; or if the property
has been disposed of, the aggrieved party may sue
recovery.
A COLLATERAL ATTACK is made when, in another
action to obtain a different relief, an attack on the
judgment is made as an incident in said action. This is
proper only when the judgment, on its face, is null and
void, as where it is patent that the court which rendered
said judgment has no jurisdiction (Co vs. C.A., 196 SCRA
705).
Examples: A petition for certiorari under Rule 65 is a
direct attack. It is filed primarily to have an order
annulled. An action for annulment of a judgment is
likewise a direct attack on a judgment is likewise a direct
attack on a judgment. A motion to dismiss a complaint
for collection of a sum of money filed by a corporation
against the defendant on the ground that the plaintiff
has no legal capacity to sue is a collateral attack on the
21
corporation. A motion to dismiss is incidental to the
main action for a sum of money. It is not filed as an
action intended to attack the legal existence of the
plaintiff (Macabingkil vs. PHHC, 72 SCRA 326; Co vs. C.A.,
196 SCRA 705).

References:

Riano, William B., Civil Procedure (A

Restatement of the Bar) Rules 1-71, Manila:
Central Bookstore, Inc., 2002

Lakas Atenista Civil Procedure Reviewer I and

II 2007

Ateneo University Civil Procedure Reviewer

2001

Rules on Civil Procedure, Rules of Court,

Manila: Rex Bookstore, Inc., 2009

DISCLAIMER:

The views or opinions presented in this reviewer are

solely those of the author and do not necessarily
represent those of the authors in the given reference.

The author accepts no liability for the content of this

reviewer, or for the consequences of the usage, abuse, or
any actions taken by the user on the basis of the
information given.

The reviewer is a compilation of different law books/

reviewers and not an original creation of the author. The
references may vary from different reviewers. Thus, the
user is tasked to be vigilant on any discrepancies on the
given information.

22

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