Ateneo Central Bar Operations 2007 Summer Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007
Remedial Law
SUMMER REVIEWER
referred to as the appellant and the adverse party,
the appellee.
APPEALS
Mode of Appeal: by Notice of Appeal
Section 2. When to appeal
Neypes v. CA, G.R. No. 141524, September 14,

2005
FRESH PERIOD RULE: A party litigant may either file
his notice of appeal within 15 days from receipt of the
Regional Trial Courts decision or file it within 15 days
from receipt of the order (the final order) denying his
motion for new trial or motion for reconsideration.
Obviously, the new 15-day period may be availed of
only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the
original appeal period provided in Rule 41, Section 3.
The fresh-period rule applies to:
(a) Rule 40: MTC-RTC
(b) Rule 41: Appeals from RTC
(c) Rule 42: Petitions for review from RTC to CA
(d) Rule 43: Appeals from quasi-judicial agencies
to CA
(e) Rule 45: Appeals by certiorari to the SC
Appeal may be taken within 15 days after NOTICE of

judgment 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 30 days after notice of the judgment or
final order.
The period of appeal shall be interrupted by a timely
Motion for New Trial (MNT) or Motion for
Reconsideration (MR).
No extension of time to file an MNT or MR shall be
allowed.
*
The rule on interruption of the period of appeal

and prohibition of a motion for extension to file a
motion for a new trial or reconsideration is the
same as the rule thereon in the RTC (Rule 41,
Sec 3). This is in consonance with the policy on
uniformity of procedure in both courts.
Section 3. How to appeal
Purpose
In order to standardize the appeal periods provided in
the Rules of Court and to afford litigants fair
opportunity to appeal their cases. The new rule aims to
make the appeal period uniform, to be counted from
receipt of the order denying the MNT or MR(whether
full or partial) or any final order or resolution.
File a NOTICE OF APPEAL with the court that

rendered the judgment or final order appealed from
RULE 40
APPEAL FROM MUNICIPAL
TRIAL COURTS TO
QuickTime and a
TIFF (Uncompressed)
decompressor
THE REGIONAL
TRIAL
COURTS
are needed to see this picture.
RECORD ON APPEAL shall be required only in:

1. Special proceedings
2. Other cases of multiple or separate
appeals
Section 1. Where to appeal
The Notice of appeal should indicate:

(a) Parties to the appeal
(b) Judgment or final order or part thereof
appealed from
(c) Material dates showing the timeliness of the
appeal
An appeal from a judgment or final order of an MTC

may be taken to the RTC exercising jurisdiction over
the area to which the former pertains.
The title of the case shall remain as it was in the court
of origin, but the party appealing shall be further
Copies of the notice on appeal and the

record on appeal (when required) shall be
served on the adverse party.
The last mentioned requirement (c) is the same

as the material data rule applicable to records
on appeal with respect to the contents thereof,
Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan
Criminal Law Summer Reviewer

and for the same reason which impelled the
adoption of this rule.
Difference between an ordinary appeal and petition
for review
ORDINARY APPEAL
PETITION FOR REVIEW
Matter of right
Matter of discretion
All records are elevated
No records are elevated
from the court of origin
unless the court decrees
it
Notice or record on
Filed with the CA
appeal is filed with the
court of origin
Section 4. Perfection of appeal; effect thereof
Governed by Rule 41, Section 9.
(b) Within 15 days from 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 15 days from receipt of the appellants
memorandum, the appellee may file his
MEMORANDUM.
(c) Upon filing of the memorandum, of the
appellee, or the expiration of the period to do
so, the case shall be considered
SUBMITTED FOR DECISION.
Section 5. Appellate court docket and other lawful

fees
The RTC 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.
Within the period for taking an appeal, the appellant

shall pay to the clerk of the court which rendered the
judgment or final order appealed from the full amount
of the appellate court docket and other lawful fees.
NOTE: Failure of the appellant to file a memorandum

shall be a ground for the dismissal of the appeal
Proof of payment shall be transmitted to appellate

court together with the original record or the record on
appeal, as the case may be.
NOTE: Where the party has appealed by counsel in

the inferior court, the notice should be sent to his
attorney; but if the notice is sent to the party himself
and he actually received the same, such notice is
valid and binding.
Payment thereof is not a condition precedent for

perfection of appeal but must nonetheless be paid
within the period for taking appeal, otherwise, it is a
ground for dismissal of the appeal.
Section 8. Appeal from orders dismissing the

case without trial; lack of jurisdiction
While compliance with the requirement for timely

payment of docket fees on appeal is mandatory, the
appellate court is not without power to make
exceptions thereto on justifiable cause, instead of
dismissing the appeal on that sole ground.
Section 6. Duty of the clerk of court
Within 15 days from the perfection of the appeal, the
clerk of court or the branch clerk of court of the lower
court shall transmit the original record on appeal,
together with the transcripts and exhibits, which he
QuickTime
a
shall certify as complete,
to theand
proper
RTC.
TIFF (Uncompressed) decompressor
A copy of his certification shall be furnished the

parties.
Section 7. Procedure in the Regional Trial Court
(a) Upon receipt of the complete record or the
record on appeal, the clerk of court of the RTC
shall notify the parties of such fact.
If an appeal is taken from an order of the lower court

dismissing the case without a trial on the merits,
the RTC may affirm or reverse it.
In case of affirmance (of dismissal) and the
ground of the dismissal is lack of jurisdiction
over the SM, the RTC, it is has jurisdiction,
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 RTC 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.
The first paragraph contemplates the situation

wherein the case was not tried on the merits but was
dismissed on a technical objection or question of law,
Page 77 of 289

as where the case was dismissed for improper venue
on defendants motion or for prescription. No trial
having been held, the RTC on appeal merely affirms or
reverses the order of dismissal and, in the case of
reversal, remands the case to the lower court for
further proceedings.
However, where the question of law involves lack of
jurisdiction over the SUBJECT MATTER and the
Regional Trial Court has jurisdiction thereover, it shall
try the case on the merits as if the case was originally
filed with it.
The same procedure, whereby the Regional Trial
Court assumes original jurisdiction over the case the
case without the need for consent thereto by the
parties, is followed where the case was tried on the
merits by the lower court although it did not have
jurisdiction over the subject matter. However, since
there was an actual trial of the case on the merits,
which normally entailed reception of evidence on
which the judgment of the lower court was based, in
the interest of justice, the parties may be allowed to file
amended pleadings and adduce additional evidence at
the trial of the case in the Regional Trial Court.
complaints, while the main case is pending,

unless the court allows an appeal therefrom
8. An order dismissing an action without
prejudice.
o
The enumeration consists of interlocutory orders from

which no appeal can be taken.
NOTE: In such instances, the aggrieved party may
resort to a special civil action under Rule 65, that is, a
petition for certiorari or prohibition and, in the case of
an order disallowing or dismissing an appeal, a
petition for mandamus.
INTERLOCUTORY ORDER: an order which does
not dispose of the case but leaves something else to
be done by the trial court on the merits of the case.
*
Section 9. Applicability of Rule 41
*
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
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:
(M-PISSED)
1. An order denying an MNT or MR
2. An order denying a petition for relief or any
similar motion seeking relief from judgment
3. An interlocutoryQuickTime
order and a
4. An order disallowing
orpicture.
dismissing an appeal
are needed to see this
5. An order denying a motion to set aside a
judgment
by
consent,
confession
or
compromise on the ground of fraud, mistake,
duress or any other ground vitiating consent
6. An order of execution
7. A judgment of final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
In all the above instances, where a judgment

or final order is not appealable, the aggrieved
party may file an appropriate special civil
action under Rule 65
Where the order is interlocutory, the movant has

to wait for the judgment and the appeal from the
judgment, in the course of which appeal he can
assign as error the said interlocutory order. The
interlocutory order cannot be appealed from
separately from the judgment.
The general rule is that where the interlocutory
order was rendered without or in excess of
jurisdiction or with grave abuse of discretion, the
remedy is certiorari, prohibition or mandamus,
depending on the facts of the case.
Where the order appealed from is interlocutory,
the appellate court can dismiss the appeal even if
no objection thereto was filed by the appellee in
either the trial or appellate court. (Rule 50,
Section 1(i)
Section 2. Modes of appeal

ORDINARY
APPEAL
(APPEAL BY
WRIT OF
ERROR)
Appeal to the CA
in cases decided
by the RTC in its
original
jurisdiction
PETITION
FOR REVIEW
(RULE 42)
APPEAL BY
CERTIORARI
(RULE 45)
Appeal to the
CA in cases
decided by
the RTC in
the exercise
of its
appellate
jurisdiction
In all cases
where only
questions of law
are raised or
involved,
Page 78 of 289

By NOTICE OF
APPEAL with
the court which
rendered the
judgment or final
order appealed
from and serving
a copy thereof
upon the
adverse party
RECORD OF
APPEAL shall
be required only
in:
1. special
proceedings
2. multiple or
separate
appeals
where the
law or there
Rules so
require.
Questions of fact
or
mixed
questions of fact
and law
By PETITION
FOR REVIEW
in accordance
with Rule 42
the appeal shall

be to the SC by
PETITION FOR
REVIEW ON
CERTIORARI in
accordance with
Rule 45.
The period for appeal shall be interrupted by a timely

MNT or MR.
No motion for extension of time to file an MR or MNT
shall be allowed. (same rule as MTC-RTC appeals)
*
Motion for extension of time to file an MNT or MR

is prohibited; such a motion is only available in
cases pending with the SC.
Habaluyas v. Japson, 142 SCRA 208 (1986)

GENERAL RULE: Perfection of appeal within
reglementary period is jurisdictional.
EXCEPTION: when there has been extrinsic fraud,
accident, mistake or excusable negligence (FAME),
resort to Petition for Relief from Judgment under Rule
38 may be had.
Questions of
fact, of law, or
mixed
questions of
fact and law
Question of law
from judgment or
final
order
rendered
by
RTC
in
the
exercise of its
appellate
jurisdiction.
Although the term used in the second mode is petition

for review, just like that in appeals from the quasijudicial agencies under Rule 43, it should not be
confused with the petition for review on certiorari
under the third mode which is a distinct procedure
under Rule 45. Nor should the use of the word
certiorari in the latter be mistaken for the special civil
action for certiorari in Rule 65 which is not a mode of
appeal but an original action.
Section 3. Period of ordinary appeal; appeal in
habeas corpus cases
QuickTime
and a 15 days from notice
The appeal shall
be taken
within
needed
to see this
picture.
of the judgment or are
final
order
appealed
from.
Where a record on appeal is required, the appellant

shall file notice of appeal and record on appeal within
30 days from notice of the judgment or final order.
Appeal in habeas corpus cases shall be taken within
48 hours from notice of judgment or final order
appealed from.
The period of appeal may be extended but such

extension is addressed to the sound discretion of the
court and the mere filing of the motion for extension
of time to perfect the appeal does not suspend the
running of the reglementary period.
If the order granting the extension is issued and
notice thereof is served after the expiration of the
period fixed by law, the extension must be computed
from the date of notice of the order granting it.
Since the filing of motion for extension does not
suspend the running of the appeal period, the
appellant has the duty to ascertain the status of his
motion, for if no action is taken thereon or it is denied
after the lapse of the period, the right to appeal is
lost.
Even if the appeal was filed out of time, the court still
has jurisdiction to admit and give due course to it,
provided there are justifiable reasons therefore. (In
the exercise of the equity jurisdiction of the courts,
where a stringent application of the rule would not
serve the demands of substantial justice).
Where the trial court set aside an order dismissing
the complaint and granted a new trial but thereafter
entered another order of dismissal, the period for
perfecting an appeal runs from the date of the second
dismissal.
The approval by the trial court of the record on
appeal even if the period for the appeal has expired,
is tantamount to a valid order granting the extension
prayed for by the appellant if any motion has been
Page 79 of 289

filed. Consequently, the dismissal of the appeal by the
trial court constitutes a denial of the extension prayed
for, in which case the only question that can arise is
whether or not the trial court had gravely abused its
discretion in denying such extension.
(b) testimonial evidence by the names of the

corresponding witnesses
o
If the whole testimonial and documentary

evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits.
subject index (if the record on appeal

exceeds 20 pages)
Section 4. Appellate court docket and other lawful

fees
Same as Rule 40
Section 5. Notice of appeal
1. indicate the parties to the appeal
2. specify judgment or final order or part thereof
appealed from
3. specify the court to which the appeal is being
taken
4. state the material dates showing the
timeliness of the appeal
Even if no notice of appeal was filed, such defect may
be disregarded if there was a record on appeal duly
filed, as the same is equivalent to a notice of appeal.
Failure to serve a copy of the notice of appeal to the
adverse party, who was however, served with a copy
of the record on appeal wherein such notice of appeal
is embodied, does not impair the right to appeal.
Section 6. Record on appeal; form and contents
thereof
Full names of all the parties to the proceedings shall
be stated in the caption of the record on appeal.
Things that are purely matters of form and which are

correctible by amendment should not be made a
ground for dismissal of the appeal.
Failure of counsel to sign the record on appeal is not
a ground for dismissal of the appeal. The same
should merely be required to be signed by him. (See
however, Rule 7, Sec. 3 on unsigned pleadings) The
same is true where the record on appeal consisting of
more than 20 pages foes not have the requisite
subject index and does not contain the full names of
the parties in the caption as these are purely matters
of form correctible by amendment which the trial
court may order to be done.
Material data rule need not be observed if the trial
court issued an order to the effect that the appeal
was seasonably perfected with the filing of the notice
of appeal, and the record on appeal within the
reglementary period.
Section 7. Approval of record on appeal
It shall include:
1. the judgment or final order from which the
appeal is taken
2. in chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the proper
understanding of the issues involved
3. together with such data as will show that the
appeal was perfected on time. (Material Data
Rule)
o
Upon filing of the record on appeal for

approval AND if no objection is filed by the
appellee within 5 days from receipt of the
copy thereof the trial court may:
approve it as presented OR
upon its own motion or at the instance of
the appellee, may direct its amendment
by the inclusion of any omitted matters
which are deemed essential to the
determination of the issue of law or fact
involved in the appeal.
If the TC orders the amendment thereof,

the appellant shall redraft the record by
including
therein,
in
their
proper
chronological sequence, such additional
matters as the court may have directed him
to incorporate, and shall thereupon submit
the redrafted record for approval, upon notice
QuickTime and a
If an issueareof
fact
isthistopicture.
be raised on appeal,
needed
to see
the record on appeal shall include by
reference all the evidence, testimonial and
documentary, taken upon the issue involved.
Reference shall specify
(a) documentary evidence by the exhibit
numbers or letters by which it was
identified when admitted or offered at the
hearing
Page 80 of 289

to the appellee, in like matter as the original
draft.
4.
5.
A record on appeal does not have to be set for hearing

in the trial court by the appellant, as it is deemed
submitted for approval upon its filing and the rule
merely requires the adverse party to file any objection
thereto within 5 days.
GENERAL RULE: An ordinary appeal stays the
execution of a judgment
EXCEPTION:
1. Decisions of quasi-judicial bodies appealed to
the CA
2. Executions pending appeal
3. Cases covered by Summary Procedure
Section 8. Joint record on appeal
When the
appeal is
deemed
perfected
Effect of
perfection
of appeal
APPEAL BY
NOTICE OF
APPEAL
Deemed
perfected as to
him upon the filing
of the 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 by
of the other
parties.
APPEAL BY
RECORD ON
APPEAL
Deemed
perfected as to
him with respect
to the subject
matter thereof
upon the
approval of the
record of appeal
filed in due time.
The court loses
jurisdiction over
the case only
upon the SM
thereof upon the
approval of the
record on appeal
filed in due time
and the
expiration of the
time to appeal of
the other parties.
QuickTime and a
In either case, prior to the transmittal of the original record

or the record on appeal, the court may still [exercise the
following residual powers]: (IAPOA)
1. Issue orders for the protection and preservation of
the rights of the parties which do not involve any
matter litigated by the appeal
2. Approve compromises
3. Permit appeals of indigent litigants
Order execution pending appeal in accordance

with Sec. 2, Rule 39
Allow the withdrawal of the appeal
Under this section, in an appeal by notice of appeal,

a partys appeal is deemed perfected as to him upon
the filing of his appeal in due time.
While he can withdraw his appeal, he cannot do so in
order to revive the jurisdiction of the trial court and
enable him to take another course of action calling for
the exercise of that jurisdiction, such as the filing of a
motion for new trial or reconsideration. This is so
because by filing his notice of appeal, insofar as he is
concerned, he has perfected his appeal to the
appellate court and it is in that court where he can
pursue any further remedy.
This rule, it should be noted, applies individually and
only to each of the parties so circumstanced since
the timeliness of their recourse to appellate remedy
depends on when they respectively received a copy
of the judgment or final orders. In the meantime, the
trial court still retains jurisdiction over the case.
However, where all the parties have either thus
perfected their appeals by filing their notices of
appeal in due time and the period to file such notice
of appeal has lapsed for those who did not do so,
then the trial court loses jurisdiction over the case as
of the last notice of appeal or the expiration of the
period to do so for all the parties.
Virtually the same rules apply in appeals by record on
appeal, except that a partys appeal is deemed
perfected as to him, upon the approval of his record
on appeal seasonably filed, but only with respect to
the subject matter thereof.
Section 10. Duty of clerk of court of the lower
court upon perfection of appeal
Within 30 days after the perfection of all the appeals,
the clerk of court has the duty:
1. To verify the correctness of the original
record or the record on appeal, and to make
a certification of its correctness
2. To verify the completeness of the records
that will be transmitted to the appellate court
3. If found incomplete, to take such measures
as may be required to complete the records,
availing of the authority that he or the court
may exercise for this purpose
4. To transmit the records to the appellate
court.
Page 81 of 289

If efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or
transcripts not included in the records being
transmitted to the appellate court, the reasons for their
non-transmittal, and the steps taken or that could be
taken to have them available.
The clerk of court shall furnish the parties with copies
of his letter of transmittal of the records to the
appellate court
Section 11. Transcript
(a) Upon the perfection of the appeal, the clerk
shall immediately direct the stenographers
concerned to attach to the record of the case 5
copies of the transcripts of the testimonial
evidence referred to in the record on appeal.
(b) The stenographers concerned shall transcribe
such testimonial evidence and shall prepare
and affix to their transcripts as index
containing the names of the witnesses and the
page wherein their testimonies are found, and
a list of the exhibits and the pages wherein
each of them appears to have been offered
and admitted or rejected by the trial court.
(c) The transcripts shall be transmitted to the
clerk of the trial court who shall thereupon
arrange the same in the order in which the
witnesses testified at the trial, and shall cause
the pages to be numbered consecutively.
court may, motu proprio or on motion, dismiss the

appeal for having been taken out of time or for nonpayment of the docket and other lawful fees within
the reglementary period.
The period to appeal is mandatory and jurisdictional.
Failure to appeal on time makes the decision final
and executory and deprives the appellate court of
jurisdiction.
However, in a few instances, the court has allowed
due course to such appeals on strong and compelling
reasons of justice.
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL
TRIAL COURTS TO THE COURT OF APPEALS
Section 1. How appeal taken; time for filing
o
o
o
o
o
o
Section 12. Transmittal

The clerk of the trial court shall transmit to the
appellate court the original record or the approved
record on appeal within 30 days from the perfection of
the appeal, together with :
o
1. proof of payment of the appellate court docket
and other lawful fees,
2. certified true copy of the minutes of the
proceedings, the order of approval,
3. certificate of correctness,
4. original documentary evidence referred to
therein, and
5. original and 3 copies of the transcripts.
o
QuickTime and a
Copies ofarethe
neededtranscripts
to see this picture. and certified true
copies of the documentary evidence shall
remain in the lower court for the examination
of the parties.
RTC-CA in the exercise the CAs appellate

jurisdiction
VERIFIED PETITION FOR REVIEW
Payment to the clerk of court of the
corresponding docket and other lawful fees
depositing P500 for costs
furnish the Regional Trial Court and the
adverse party with a copy of the petition
The petition shall be filed and served within
15 days from notice of the decision sought to
be reviewed or of the denial of petitioners
MNT or MR filed in due time after judgment.
The CA may grant an additional period of 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 15 days.
NOTE: Rule 41 refers to regular appeals from the

RTC exercising original jurisdiction, while this Rule
contemplates that said court is exercising appellate
jurisdiction. In the first situation, an appeal on pure
questions of law cannot be taken to the CA and such
improper appeal will be dismissed pursuant to Rule
50, Sec 2. However, as hereafter explained, appeals
to the CA from the RTC under Rules 42 and 43 may
be made solely on questions of law.
Section 2. Form and contents
Section 13. Dismissal of appeal

o
Prior to the transmittal of the original record or the
record on the appeal to the appellate court, the trial
The petition shall be filed in 7 legible copies,

with the original copy intended for the court
Page 82 of 289

being indicated as such by the petitioner, and

shall:
(a) state the full names of the parties to the
case, without impleading the lower courts
or judges thereof either as petitioners or
respondents;
(b) indicate the specific material dates
showing that it was filed on time
(c) set forth concisely a statement of the
matters involved, the issues raided, the
specification or 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) be accompanied by clearly legible
duplicate originals or true copies of
judgments or final orders of both lower
courts, certified correct by the clerk of
court of the RTC, 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.
The petitioner shall also submit together with
the petition a certification against forum
shopping.
The appeal under this Rule may be on either questions

of fact or of law or on mixed questions of fact and law.
It further specifically states that the lower courts or
judges that rendered the judgment or final order
complained of should not be impleaded as parties. The
same prohibition is now provided in petitions for review
on certiorari under Rule 45, since these are petitions
for purposes of appeal and not petitions in original
actions.
Section 3. Effect of failure to comply with
requirements
The failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for
the dismissal thereof:
1. payment of the docket and other lawful fees,
2. the deposit for costs
3. proof of service of the petition
4. contents of andQuickTime
the documents
which should
and a
accompany
petition
arethe
needed
to see this picture.
Purpose
To eliminate the causes of judicial backlog and delay
in light of the experience of the appellate courts.
Section 4. Action on the petition

The CA may:
o require the respondent to file a comment on
the petition, not a motion to dismiss, within
10 days from notice OR
o dismiss the petition if it finds the same to be:
1. patently without merit,
2. prosecuted manifestly for delay, or
3. that the questions raised therein are too
unsubstantial to require consideration.
Section 5. Contents of comment
o 7 legible copies
o accompanied by certified true copies of such
material portions of the record referred to
therein together with other supporting papers
and shall:
(a) state whether or not he accepts the
statement of matters involved in the
petition
(b) point
out
such
insufficiencies
or
inaccuracies as he believes exists in
petitioners statement of matters involved
but without repetition; and
(c) state the reasons why he petition should
not be given due course.
o
A copy of the comment shall be served on

the petitioner
Section 6. Due Course

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.
NOTE: Petition for review is not a matter of right but
discretionary on the CA. IT may only give due course
to the petition if it shows on its face that the lower
court has committed an error of fact and/or law that
will warrant reversal or modification of the decision or
judgment sought to be reviewed.
Section 7. Elevation of record
It is merely discretionary on the CA to order the
elevation of the records. This is because until the
petition is given due course, the trial court may still
issue a warrant of execution pending appeal and in
some cases such as ejectment and those of
Summary Procedure, the judgments are immediately
executory. It is only when the CA deems it necessary
Page 83 of 289

that the clerk of the RTC will be ordered to elevate the
records of the case.
prejudice to a further appeal that may be taken

therefrom.
The CA may dismiss the petition outright or require a

comment thereon. Depending on the complexity or
ambiguity of the issues for resolution, it could also
require subsequent exchanges by the parties, such as
the filing of a reply.
Section 9. Submission for decision

o If the petition is given due course, the CA
may:
set the case for oral argument or
require the parties to submit memoranda
within a period of 15 days from notice.
A rejoinder (to the reply) is no longer required under

AM No. 99-2-04-SC, which took effect on March 15,
1999. Upon the filing of the reply, the Court shall
resolve either to
(a) give due course to the petition and either
consider the case submitted for decision
based on the pleadings OR require the parties
to submit their respective memoranda or
(b) deny or dismiss the petition
No new issues may be raised by a party in the
Memorandum. Issue raised by a party in previous
pleadings but not included in the Memorandum shall
be deemed waived or abandoned. Being a summation
of the parties previous pleadings, the Memoranda
alone may be considered by the Court in deciding or
resolving the petition.
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 RTC 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.
However, before the CA gives due course to the
petition, the RTC may still exercise residual powers
(IAPOA).
Except in civil cases decided under the Rule on
Summary Procedure, the appeal shall stay the
judgment or final order, UNLESS the CA, the law, or
the Rules provide otherwise.
QuickTime and a
GENERAL RULE: a perfected appeal stays the

challenged judgment or final order.
EXCEPTION: this is not applicable to civil cases under
the Rule on Summary Procedure which provides that
the decision of the RTC in civil cases governed by said
Rule, including forcible entry and unlawful detainer
cases, shall be immediately executory without
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.
The appellate court may, motu proprio or on motion,

set the case on certain specified issues thereof for
oral argument. It may require further memoranda
after such oral argument or allow the submission of
memoranda in lieu of oral argument.
RULE 43
APPEAL FROM QUASI JUDICIAL AGENCIES TO
THE COURT OF APPEALS
Section 1. Scope
Decisions of the Court of Tax Appeals are not
appealable to the Supreme Court by petition for
review on certiorari under Rule 45, pursuant to RA
9282 which amended RA 1125.
Voluntary arbitrarors authorized by law include
the voluntary arbitrators appointed and accredited
under the Labor Code or pursuant to the provisions
of RA 876 as they are considered included in the
term quasi-judicial instrumentalities
The Office of the Prosecutor is NOT a quasi-judicial
body and its action approving the filing of an
information is not appealable to the CA under Rule
43.
Fabian v. Desierto 295 SCRA 470 (1998)
Appeals from decisions of the office of the
Ombudsman in administrative disciplinary cases
should be taken to the CA under Rule 43.
* However, the remedy prescribed in Rule 43 is
inapplicable when there is an allegation that the
resolution is patently illegal and issued with grave
abuse of discretion
* Take note also of A.M. No. 99-2-02-SC
(promulgated February 9, 1999), which states
that:
In light of the decision in Fabian v.
Page 84 of 289

Ombudsman (G.R. No. 129742, 16 September
1998), any appeal by way of petition for review
from a decision or final resolution or order of the
Ombudsman in administrative cases, or special
civil action relative to such decision, resolution or
order filed with the Court after 15 March 1999 shall
no longer be referred to the Court of Appeals, but
must be forthwith DENIED or DISMISSED
respectively.
Fortich v. Corona 289 SCRA 624 (1998)
An ERROR OF JUDGMENT is one which the
court may commit in the exercise of its jurisdiction, and
which error is reviewable only by an appeal.
On the other hand, an ERROR OF JURISDICTION is
one where the act complained of was issued by the
court, officer or a quasi-judicial body without or in
excess of jurisdiction, or with grave abuse of discretion
which is tantamount to lack or in excess of jurisdiction.
This error is correctable only by the extraordinary writ
of certiorari.
It is true that under Rule 43, appeals from
awards, judgments, final orders or resolutions of any
quasi-judicial
agency
exercising
quasi-judicial
functions, including the Office of the President, may
be taken to the Court of Appeals by filing a verified
petition for review within fifteen (15) days from notice
of the said judgment, final order or resolution, whether
the appeal involves questions of fact, of law, or mixed
questions of fact and law.
However, in this particular case, the remedy
prescribed in Rule 43 is inapplicable considering that
the present petition contains an allegation that the
challenged resolution is patently illegal and was
issued with grave abuse of discretion and beyond
his (respondent Secretary Renato C. Coronas)
jurisdiction when said resolution substantially modified
the earlier OP Decision of March 29, 1996 which had
long become final and executory. In other words, the
crucial issue raised here involves an error of
jurisdiction, not an error of judgment which is
reviewable by an appeal under Rule 43. Thus, the
appropriate remedy to annul and set aside the
assailed resolution is an original special civil action for
QuickTime
and a the petitioners have
certiorari under Rule
65,
as what
are needed
see this picture. Rule 43/42; Error
correctly done. (Error
of tojudgment
of jurisdiction Rule 65)
Nevertheless, the SC still took cognizance of the
case in the interest of speedy justice and to avoid
future litigations so as to promptly put an end to the
present controversy which, as correctly observed by
petitioners, has sparked national interest because of
the magnitude of the problem created by the issuance
of the assailed resolution, stating that the Court has

the power to set aside its own rules in the higher
interests of justice.
Section 2. Cases not covered
Judgments or final orders issued under the Labor
Code of the Philippines.
*
Judgments and final orders or resolutions of the

NLRC are now reviewable in the first instance, by
the CA on certiorari under Rule 65, but those of
the Employees Compensation Commission
should be brought to the CA through a petition for
review under this Rule.
Special rules of procedure have also been
adopted for cases formerly within the jurisdiction
and adjudicatory processes of the SEC. (See
Regalado 10th ed. P. 573)
Section 3. Where to appeal

An appeal under this Rule may be taken to the CA
within the period and in the manner herein provided,
whether the appeal involves questions of fact, of law,
or mixed questions of fact and law.
*
This is another instance where an appellate

review solely on a question of law may be
brought to the CA instead of the SC. The same
procedure obtains in appeals from the RTC
where it decided the case in the exercise of its
appellate jurisdiction as regulated by Rule 42.
The 2 exceptions to the general rule that
appeals on pure questions of law are brought
to the SC (based on Art VIII Sec 5(2)(e)) are
Rule 42 Sec and 43.
Section 4. Period of appeal

15 days from notice of the award, judgment, final
order or resolution, or from the date of its last
publication, if publication is required by law for its
effectivity, or of the denial of petitioners MNT or MR
duly filed in accordance with the governing law of the
court or agency a quo.
Only one MR shall be allowed.
Upon proper motion and the payment of the full
amount of the docket fee before the expiration of the
reglementary period, the CA may grant an additional
period of 15 days only within which to file the petition
for review.
Page 85 of 289

No further extension shall be granted except for the
most compelling reason and in no case to exceed 15
days.
Section 5. How appeal taken
o By filing a VERIFIED PETITION FOR
REVIEW in 7 legible copies with the CA, with
proof of service of a copy thereof on the
adverse party and on the court or agency a
quo.
o The original copy of the petition intended for
the CA shall be indicated as such by the
petitioner.
o
Upon the filing of the petition, the petitioner

shall pay to the clerk of court of the CA the
docketing and other lawful fees and deposit
the sum of P500 for costs.
Exemption from payment of docketing and
other lawful fees and the deposit for costs
may be granted by the CA upon verified
motion setting forth valid grounds
therefore.
If the CA denies the motion, the petitioner
shall pay the docketing and other lawful
fees and deposit for costs within 15 days
from notice of denial.
In view of the nature, subject matter and procedure in

cases before the quasi-judicial agencies under their
different governing laws, the appellate procedure and
requirements in this Rule are somewhat different from
those in regular appeals. Thus, the periods and
requirements for the appeal are more stringent and
specific provisions are made for motions for
reconsideration and extension of time.
Section 6. Contents of the petition
(a) full names of the parties to the case, without
impleading the court or agencies wither as
petitioners or respondents
(b) concise statement of the facts and issues
involved and the grounds relied upon for the
review
(c) accompanied by a clearly legible duplicate
QuickTime true
and a copy of the award,
original or a certified
neededorder
judgment, arefinal
or resolution appealed
from together with certified true copies of such
material portions of the record referred to
therein and other supporting papers.
(d) Sworn certification against forum shopping
(e) Material dates showing that it was filed within
the period fixed therein.
Jaro v. CA 377 SCRA 282 (2002)

Section 6 of Rule 43 does not require that all of
the supporting papers or annexes accompanying the
petition should be certified true copies or duplicate
originals. What is mandatory is to attach the clearly
legible duplicate originals or certified true copies of
the judgment or final orders of the lower courts
Under Rule 42, only judgments or final orders of the
lower courts need to be certified true copies or
duplicate originals.
The same is true with respect to a similar
requirement in Rule 45 and in original actions for
certiorari under Rule 65 in relation to Rules 46 and
56.
Section 7. Effect of failure to comply with
requirements
Same as Rule 42. Sufficient ground for dismissal.
Section 8. Action on the petition
Same as Rule 42.
Section 9. Contents of comment
The comment shall be filed within 10 days from
notice in 7 legible copies and accompanied by clearly
legible certified true copies of such material portions
of the record referred to therein together with other
supporting papers.
The comment shall
(a) Point out insufficiencies and inaccuracies in
petitioners statement of fact and issues and
(b) State the reasons why the petition should be
denied or dismissed.
A copy thereof shall be served on the petitioner, and
proof of such service shall be filed with the CA.
The appellate court may also require the filing of a
reply, but further submissions are governed by the
resolution in AM No. 99-2-04.
Section 10. Due course
If CA finds prima facie that the court or agency
concerned has committed errors of fact or law that
would warrant reversal or modification of the award,
judgment, final order or resolution sought to be
reviewed, it may give due course to the petition
otherwise, it shall dismiss the same.
Page 86 of 289

The findings of fact of the court or agency concerned,
when supported by substantial evidence, shall be
binding on the CA.
NOTE: What bears specific notice in this section is the
jurisprudential rule that the findings of fact of the court
or agency a quo are binding on the appellate court has
now been made a specific rule of procedure. This is
similar to the rule on the findings of fact of the CA vis-vis the SC on appeal to the latter, and, under
appropriate circumstances, the case law creating
exceptions to that rule may very well apply to the
similar provision of this section.
or correction of the title of the case on appeal,

indicating in its decision the reason for doing so.
Section 2. Counsel and guardians
The counsel and guardians ad litem of the parties in
the court of origin shall be respectively considered as
their counsel and guardians ad litem in the Court of
Appeals.
When others appear or are appointed, notice thereof
shall be served immediately on the adverse party and
filed with the court.
Section 3. Order of transmittal of record
Section 11. Transmittal of record

Section 4. Docketing of case
Within 15 days from notice that the petition has been
given due course, the CA may require the court or
agency concerned to transmit the original or a legible
certified true copy of the entire record of the
proceeding under review.
Section 5. Completion of record

Section 6. Dispensing with complete record
Section 7. Appellants brief
The record to be transmitted may be abridged by

agreement of all parties to the proceeding.
The CA may require or permit subsequent correction
of or addition to the record.
Within forty-five (45) days from receipt of the notice of

the clerk that all the evidence are attached to the
record, with proof of service of two (2) copies thereof
upon the appellee.
Section 12. Effect of appeal
Section 8. Appellees brief
The appeal shall not stay the award, final order, or

resolution sought to be reviewed UNLESS the CA
shall direct otherwise upon such terms as it may deem
just.
Within forty-five (45) days from receipt of the

appellants brief with proof of service of two (2)
copies thereof upon the appellant.
Section 9. Appellants reply brief
Section 13. Submission for decision

Same as Rule 42
NOTE: Sec 12 of this Rule has been interpreted to
mean that the appeal will not stay the award,
judgment, final order or resolution unless the
governing law directs otherwise.
Within twenty (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.
Failure to file appellants brief on time is a ground for
dismissal of the appeal.
The failure to file the appellees brief does not affect
the appeal.
RULE
44
QuickTime
and a
ORDINARY
APPEALED
are needed
to see this picture. CASES
The filing of the reply brief is optional on the part of

the appellant.
Section 1. Title of cases

DBP v. CA 358 SCRA 501 (2001)
If the title of the case commenced in the trial court is
erroneous as where a non-party is impleaded, such as
the public respondent or the trial judge or a nominal
party who should not be a party to the appeal, the
appellate court may effect the corresponding change
DISTINCTION BETWEEN:
(1) Failure to file notice of appeal within the
reglementary period: failure of the court to
acquire jurisdiction over the appealed decision
Page 87 of 289

resulting in its becoming final and executory upon
failure of appellant to move for reconsideration.
(2) Failure to file brief within the period granted by
the appellate court: abandonment of the appeal
which would lead to its dismissal upon failure to
move for reconsideration, in which case the
appealed decision would also become final and
executory but prior thereto, appellate court shall
have obtained jurisdiction of the appealed
decision.
Section 10. Time for filing memoranda in special
cases
In certiorari, prohibition, mandamus, quo warranto
and habeas corpus cases, the parties shall file, in
lieu of briefs, their respective MEMORANDA within a
non-extendible period of 30 days from receipt of the
notice issued by the clerk that all the evidence, oral
and documentary, is already attached to the record.
The failure of the appellant to file his memorandum
within the period therefor may be a ground for
dismissal of the appeal.
Section 11. Several appellants or appellees or
several counsel for each party
Where there are several appellants or appellees, each
counsel representing one or more but not all of them
shall be served with only one copy of the briefs.
When several counsel represent one appellant or
appellee, copies of the brief may be served upon any
of them.
Section 12. Extension of time for filing briefs
GENERAL RULE: will not be allowed,
EXCEPTION: for good and sufficient cause, and only
if the motion for extension is filed before the expiration
of the time sought to be extended.
Section 13. Contents of appellants brief
(a)
(b)
(c)
(d)
(e)
QuickTime and a
subject index
areof
needed
assignment
errors
Statement of the Case
Statement of Facts
clear and concise statement of the issues of
fact or law to be submitted to the court for its
judgment
(f) Argument: arguments on each assignment of
error with page references to the record.
(g) Relief
(h) In cases not brought up by record on appeal,

the appellants brief shall contain, as an
appendix, a copy of the judgment or final
order appealed from.
The failure of the appellant to make a specific
assignment of errors in his brief or of page references
to the record as required in this section is a ground
for the dismissal of his appeal.
See however, Philippine Coconut Authority v. Corona
International, Inc. directing a liberal interpretation of
this ground.
Philippine Coconut Authority v. Corona Intl 341
SCRA 519 (2000)
In this case, the absence of page references
were not considered fatal omissions.
The requirements laid down in Rule 43, Sec 13
are intended to aid the appellate court in arriving at a
just and proper conclusion of the case.
Despite its deficiencies, appellants brief is
sufficient in form and substance to as to apprise the
appellate court of the essential facts and nature of
the case as well as issues raised and the laws
necessary for the disposition of the case.
GENERAL RULE: Only errors assigned in the brief
may be considered on appeal
EXCEPTIONS:
1. Grounds not assigned as errors but affecting
the jurisdiction over the subject matter
2. Matters not assigned as errors on appeal but
are evidently plain or clerical errors within the
contemplation of law
consideration of which is necessary in
arriving at a just decision and complete
resolution of the case or to serve the interest
of justice or to avoid dispensing piecemeal
justice
4. Matters not specifically assigned ass errors
on appeal but raised in the trial court and are
matters of record having some bearing on
the issue submitted which the parties failed
to raise or which the lower court ignored.
closely related to an error assigned
upon which the determination of a question
properly assigned is dependent
Section 14. Contents of appellees brief
1. Subject index
Page 88 of 289

2. Statement of Facts or Counter-Statement of
Facts
3. Argument,
GENERAL RULE: An appellant may only include

errors of law raised in the court a quo and that which
is within the issues framed by the partied.
GENERAL RULE: Appellees brief need NOT contain

an assignment of errors because he is seeking no
affirmative relief, his purpose is only to uphold the
ruling of the lower court
EXCEPTION: When there is a question of lack of

jurisdiction over the subject matter.
EXCEPTIONS:
1. When his purpose is to maintain the judgment
on other grounds
2. When ha has also appealed
An appellee who has not also appealed cannot make
assignments of errors in his brief but he may make a
counter-assignment of errors in order to sustain the
judgment.
Difference between brief and memorandum
BRIEF
MEMORANDUM
Ordinary appeals
Certiorari,
prohibition,
mandamus, quo warranto
and
habeas
corpus
cases
Filed within 45 days
Filed within 30 days
Contents specified by Shorter, only one issue
Rules
involved,
no
subject
index or assignment of
errors- just facts and law
applicable.
GENERAL RULE: A change of theory by the party is

not allowed, but a change in emphasis is allowed.
EXCEPTION: When the factual bases of the theory
would not require the presentation of additional
evidence by the adverse party to enable him to meet
the issues raised in the new theory.
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME
COURT
Section 1. Filing of petition with the Supreme
Court
o
o
o
Section 15. Questions that may be raised on

appeal.
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 framed by the
parties.
The reversal of a judgment on appeal is generally
binding only on the parties in the appealed case and
does not affect or inure to the benefit of those who did
not join or were not made parties to the appeal.
However, where a judgment cannot be reversed as to
the party appealing without affecting the rights of the
QuickTime or
and awhere the rights and
co-party who didTIFFnot
appeal,
(Uncompressed) decompressor
are needed
to see this
liabilities of the parties
who
didpicture.
not appeal and those
who appealed are so interwoven and dependent on
each other as to be inseparable, a reversal as to one
operates as a reversal as to all because of the
community of their interests (Tropical Homes, Inc. vs.
Fortun, et al., G.R. No. 51554 Jan. 13, 1989)
From a judgment or final order of:

1. Court of Appeals
2. Sandiganbayan
3. Regional Trial Court
4. other courts whenever authorized by law
VERIFIED PETITION FOR REVIEW ON
CERTIORARI
The petition shall raise only questions of law,
which must be distinctly set forth.
Appeals to the SC are made only by verified petitions

for review on certiorari, except only in appeals from
judgments of the RTC in criminal cases wherein the
penalty imposed is life imprisonment or reclusion
perpetua, which shall be elevated by ordinary appeal,
or wherein the death penalty is imposed which is
subject to automatic review.
All other appeals to the SC can be taken from a
judgment or final order or resolution of the CA, the
Sandiganbayan, the RTC, or such other courts as
may be authorized by law, only by a verified petition
for review on certiorari on questions of law.
Re: Criminal Cases (See also Rule 122)
People v. Pajo 348 SCRA 603 (2000)
Re: dismissal of PAJO (principal): Under Section
1(b) Rule 122 of the ROC (Now 3(b)), the appeal of a
judgment rendered by the RTC in its original
jurisdiction sentencing the accused to other than life
imprisonment or death must be taken to the CA by
Page 89 of 289

filing of a notice of appeal with the Court which
rendered the judgment or order appealed from, and by
serving a copy thereof on the adverse party.
The SC also dismissed the appeal of PAJOs coaccused, LIQUIGAN, for the reason that she similarly
failed to file a notice of appeal of the judgment
convicting her as an accomplice to the crime of rape.
The appeal to the SC in cases where the penalty
imposed is life imprisonment or where a lesser penalty
is imposed but involving offenses committed on the
same occasion or arising out of the same occurrence
that gave rise to the more serious offence for which
the penalty of death or life imprisonment is imposed
shall be by filing a notice of appeal with the court
which rendered the judgment or order appealed from
and by serving a copy thereof to the adverse party.
Inasmuch as both PAJO and LIQUIGAN have not
appealed with respect to these cases, they become
final and executory after the lapse of 15 days, the
period for perfecting an appeal.
On the other hand, the cases on automatic review in
view of the imposition of the death penalty were
allowed. It is only where the accused is sentenced to
death when the appeal of the decision to the SC is
automatic.
People v. Mateo 433 SCRA 640 (2004)
Up until now, the SC has assumed the direct
appellate review over all criminal cases in which the
penalty imposed is death, reclusion perpetua or life
imprisonment (or lower but involving offenses
committed on the same occasion or arising out of the
same occurrence that gave rise to the more serious
offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed).
If only to ensure utmost circumspection before the
penalty of death, reclusion perpetua or life
imprisonment is imposed, the Court now deems it wise
and compelling to provide in these cases a review by
the CA before the case is elevated to the SC.
Where life and liberty are at stake, all possible
QuickTime
avenues to determine
his guiltandora innocence must be
are needed
to see
picture. in the evaluation of
accorded an accused,
and
nothiscare
the facts can be overdone. A prior determination by
the CA on, particularly, the factual issues, would
minimize the possibility of an error of judgment. If the
CA should affirm the penalty of death, reclusion
perpetua or life imprisonment, it could then render
judgment imposing the corresponding penalty as the
circumstances so warrant, refrain from entering the
judgment and elevate the entire records of the case

to the SC for its final disposition.
The appeal under this Rule contemplates that the
RTC rendered the judgment or final order or
resolution acting in its original jurisdiction.
If it rendered the same in the exercise of its appellate
jurisdiction, in the instances provided for in Rules 42
and 43, the appeal shall be taken to the CA even if
only questions of law are raised by the petitioner.
QUESTION OF LAW
Exists when there is a doubt or controversy as to
what the law is on a certain state of facts.
QUESTION OF FACT
Exists when the doubt or difference arises as to the
truth or falsehood of facts, or as to the probative
value of the evidence presented.
One test is whether the court can determine the issue
raised without reviewing or evaluating the evidence,
in which case it is a question of law; otherwise it will
be a question of fact. The question must not involve
the examination of the probative value of the
evidence presented.
Whether an appeal involves only questions of law or
both questions of law and fact is best left to the
determination of an appellate court and not by the
court which rendered the decision appealed from.
When the facts are undisputed, the question of
whether or not the conclusion drawn therefrom by the
CA is correct is a question of law cognizable by the
SC.
GENERAL RULE: Only questions of law may be
raised in a petition for review under Rule 45 of the
Rules of Court.
EXCEPTIONS:
1. When the factual findings of the CA and the
trial court are contradictory
2. When the conclusion is a finding grounded
entirely on speculation, surmises or
conjectures
3. When the inference made by the CA from its
findings of facts is manifestly mistaken,
absurd or impossible
4. When there is grave abuse of discretion in
the appreciation of facts
5. When the appellate court in making its
findings, went beyond the issues of the case,
Page 90 of 289

and such findings are contrary to the
admissions of both appellant and appellee
6. When the judgment of the CA is premised on
misapprehension of facts
7. When the CA failed to notice certain relevant
facts which, if properly considered, would
justify a different conclusion
8. When the findings of fact are themselves
conflicting
GENERAL RULE: the findings of fact of the CA are
final and conclusive and cannot be reviewed on appeal
to the SC provided that they are borne out by the
record or are based on substantial evidence.
EXCEPTIONS:
1. When the conclusion is a finding grounded
entirely on speculations, surmises or
conjectures
2. When the inference made is manifestly
mistaken, absurd or impossible
3. Where there is grave abuse of discretion in the
appreciation of facts
4. When the judgment is based on a
misapprehension of facts
5. When the findings of fact are conflicting
6. When the CA, in making its findings, went
beyond the issues of the case and the same is
contrary to the admissions of both appellant
and appellee.
7. When the CA manifestly overlooked certain
relevant facts not disputed by the parties and
which, if properly considered, would justify a
different conclusion.
8. Where the findings of fact of the CA are
contrary to those of the trial court, or are mere
conclusions without citation of specific
evidence, or where the facts set forth by the
petitioner are not disputed by the respondent,
or where the findings of fact of the CA are
premised on absence of evidence but are
contradicted by the evidence of record.
9. When the findings of fact are conclusions
without citation of specific evidence in order to
arrive at the correct findings based on the
record.
10. When the factsQuickTime
set forth
and ain the petition as well
as in the petitioners
main
are needed to see this
picture.and reply briefs are
not disputed by the respondents.
11. When the findings of fact of the CA is
premised on supposed evidence and is
contradicted by the evidence on record.
Certiorari as a mode of appeal under this Rule
should be distinguished from certiorari as an
original special civil action (Rule 65), under the

following considerations:
APPEAL BY
CERTIORARI AS AN
CERTIORARI
ORIGINAL ACTION
Petition based on
Petition raises the issue
questions of law which
as to whether the lower
the appellant desires the
court acted without or in
appellate court to resolve excess of jurisdiction or
with grave abuse of
discretion
Involves review of the
May be directed against
judgment, award or final
an interlocutory order of
order on the merits
the court prior to appeal
from the judgment or
where there is no appeal
or any other plain,
speedy or adequate
remedy
Must be made within the
May be filed not later
reglementary period for
than 60 days from notice
appeal
of the judgment, order or
resolution sought to be
assailed
Stays the judgment,
Does not stay the
award or order appealed
challenged proceeding
from
unless a writ of
preliminary injunction or
a temporary restraining
order shall have been
issued.
The petitioner and
The parties are the
respondent are the
aggrieved party against
original parties to the
the lower court or quasiaction, and the lower
judicial agency and the
court or quasi-judicial
prevailing parties, who
agency is not to be
thereby respectively
impleaded
become the petitioner
and respondents
The prior filing of a
A motion for
motion for
reconsideration is a
reconsideration is not
condition precedent.
required
The appellate court is in
The higher court
the exercise of its
exercises original
appellate jurisdiction and jurisdiction under its
power of review
power of control and
supervision over the
proceeding of lower
courts.
Delsan v. CA 268 SCRA 597 (1997)
The SC, in accordance with the liberal spirit
pervading the Rules of Court and in the interest of
justice, may decide to treat a petition for certiorari as
Page 91 of 289

having been filed under Rule 45, especially if it is filed
within the reglementary period for the same.
Ybaez v. CA 253 SCRA 540 (1996)
The SC cannot tolerate the practice of
categorizing a petition to be both under Rule 65 and
Rule 45, Rules of Court, as the petition cannot be
subsumed simultaneously under Rule 45 and Rule 65,
and neither may petitioners delegate upon the court
the task of determining under which rule the petition
should fall. Under Circular 2-9, wrong or inappropriate
mode of appeal, merits an outright dismissal.
Banco Filipino v. CA 334 SCRA 305
A petition for certiorari seeks to correct errors of
judgment committed by the court. Errors of judgment
include errors of procedure or mistakes in the courts
ruling.
The remedies of appeal and certiorari are mutually
exclusive and not alternative or successive.
Although it is true that the SC may treat a petition
for certiorari as having been filed under Rule 45 to
serve the higher interest of justice, it cannot be availed
of when the petition is filed well beyond the
reglementary period for filing a petition for review and
without offering any reason therefore.
Section 2. Time for filing; extension
The reglementary period to appeal is 15 days from
service of the judgment, final order or resolution.
However, within that period, the aggrieved party may
file a motion for new trial or reconsideration and, if
denied, he shall have the entire 15 days all over again
from notice of such denial within which to file his
petition for review on certiorari in the SC.
In either case, within such 15-day period, he may for
good cause file a motion with the SC for extension of
time within which to file his petition for review on
certiorari, but he must within that period submit the
requisite proof of service of such motion on the
respondents, pay the docket and other lawful fees in
full, as well as deposit the costs of suit.
QuickTime and a
It will be noted that this is a special procedure adopted

in the interest of procedural due process and to afford
sufficient opportunity to the appealing party to file his
petition for review on certiorari which may very well be
his last chance for obtaining full appellate review of his
case.
Section 3. Docket and other lawful fees; proof of
service of petition
The phrase unless he has theretofore done so

refers to the situation in the next preceding section
wherein a motion for extension of time to file the
petition for review was filed, in which case the
petitioner had already paid the docket and other
lawful fees and made the deposit for costs as
requisites therefore.
Although a copy of the petition is served on the lower
court concerned, it is only for the purpose of giving
notice that its judgment should not be entered since it
is not yet executory because of the pending petition
for review thereof.
The lower court does not become a party to the case
since Rule 45 provides a mode of appeal, as
explained in the following section.
Section 4. Contents of petition
The petition shall be filed in 18 copies, with the
original copy intended for the court being indicated as
such by the petitioner
Contents same as Sec. 2, Rule 42
Section 5. Dismissal or denial of petition
Failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for
the dismissal thereof:
1. payment of the docket and other lawful fees
2. deposit for costs
3. proof of service of the petition
4. contents of and the documents which should
accompany the petition
The Supreme Court may, on its own initiative deny
the petition on the ground that
the appeal is without merit
prosecuted manifestly for delay or
the questions raised therein are too
unsubstantial to require consideration.
Section 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:
Page 92 of 289

1. When the court a quo has decided a question
of substance, not therefore determined by the
SC, or has decided it in a way probably not in
accord with law or with the applicable
decisions of the SC
2. 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.
Section 7. Pleadings and documents that may be
required; sanctions
For the purposes of determining whether the petition
should be dismissed or denied pursuant to Section 5
of this rule, or where the petition is given due course
under Section 8 hereof, the SC may
1. require or allow the filing of such pleadings,
briefs, memoranda, or documents as it may
deem within such periods and under such
conditions as it may consider appropriate, and
2. impose the corresponding sanctions in case of
non-filing or unauthorized filing of such
pleadings and documents or non-compliance
with the conditions therefor.
Section 8. Due course; elevation of records
If the petition is given due course, the SC may require
the elevation of the complete record of the case or
specified parts thereof within 15 days from notice.
Section 9. Rule applicable to both civil and
criminal cases
EXCEPT in criminal cases where the penalty imposed
is (1) death, (2) reclusion perpetua or (3) life
imprisonment
RULE 46
ORIGINAL CASES
Section 1. Title of cases
QuickTime and a
Section 2. To what
applicable
are actions
needed to see this
picture.
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.
Petitions for habeas corpus have been excluded from

the coverage of the present revised Rule since they
are actually special proceedings and the
corresponding procedural rules governing the same
are provided for in the Rules on special proceedings
and in Rule 41, Sec 3.
Section 3. Contents and filing of petition; effect of
non-compliance with requirements
The original copy of the petition intended for the court
shall be marked or indicated as such, since among
others, it must be accompanied by a clearly legible
duplicate original or certified true copy of the
adjudicatory issuance complained of whereas the
other copies may be accompanied by only plain
copies thereof.
If the original copy of the petition intended for the
court is accompanied by only plain copies of said
documents, the same may be dismissed outright.
OSM Shipping Philippines, Inc. v. NLRC, et al.,
G.R. No. 138193, Mar. 5, 2003
Rule 46 Sec 3 does not require that all
supporting papers and documents accompanying a
petition be duplicate originals or certified true copies.
Even under Rule 65, petitions are required to be
accompanied only by duplicate originals or certified
true copies of the questioned judgment, order or
resolution. Other relevant documents and pleadings
attached to it may be mere machine copies thereof.
CERTIFIED TRUE COPY such other copy furnished
to a party at his instance or in his behalf, by the
authorized officers or representatives of the issuing
entity.
The certified true copy must comply with all the
regulations therefore of the issuing entity and it is the
authenticated original of such certified true copy, and
not a mere xerox copy thereof, which shall be
attached as an annex to the petition or other initiatory
pleading.
Section 4. Jurisdiction
respondent, how acquired
over
person
of
Section 5. Action by the court

o Dismiss the petition outright or require the
respondent to file a comment
o Only pleadings required by the court shall be
allowed. All other pleadings and papers may
be filed only with leave of court.
Page 93 of 289

Reason
Aside from the fact that no summons or other coercive
process is served on the respondent, his response to
the petition will depend on the initial action of the court
thereon.
This Rule shall govern the annulment by the CA if

judgments of the RTC for which the ordinary
remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available
through no fault of the petitioner.
Under Section 5, the court may dismiss the petition

outright, hence, no reaction is expected from the
respondent and, under the policy adopted in this Rule,
he is not deemed to have been brought within the
courts jurisdiction until after service on him of the
dismissal order or resolution.
Islamic DaWah Council of the Phil v. CA, et a.,

G.R. No. 80892, Sept. 29, 1989
Annulment of a judgment is a remedy in law
independent of the case where the judgment sought
to be annulled was rendered. The judgment may be
annulled on the ground of extrinsic or collateral fraud.
A person who is not a party to the judgment may sue
for its annulment provided he can prove that the
same was obtained through fraud or collusion and
that he would be adversely affected thereby. An
action for annulment of judgment may be availed of
even if the judgment to be annulled had already been
fully executed or implemented.
Should the petition appear to have complied with the

requirements in the next preceding section and the
court considers the issue raised worthy of judicial
consideration, it will require only a comment initially
and any other pleading filed by the parties without
leave of court will not be allowed. Such unauthorized
pleadings may either be noted without action or
expunged from the record.
Section 6. Determination of factual issues
Section 7. Effect of failure to file comment
The case may be decided on the basis of the record,
without prejudice to any disciplinary action which the
court may take against the disobedient party.
The failure of the respondent to file the required
comment does not result in a sanction similar to
defaults in the trial courts since the appellate court
may just decide the case on the basis of the record
before it, specifically the petition and its attachments
but sans the comment or any representation in behalf
or the respondent.
On the other hand, when the court believes, either in
the interest of substantial justice, or that the case
could be justly resolved only with revelatory data which
may be obtained from the respondent, or that his
counsel is not acting with due diligence or competence
in protecting the respondents interest, it may require
the submission of such comment under pain of
sanctions for indirect contempt.
QuickTime and a
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL ORDERS
AND RESOLUTIONS
Section 1. Coverage
One important condition for the availment of this

remedy is that the petitioner failed to move for new
trial in, or appeal from, or file a petition for relief
against, or take other appropriate remedies assailing
the questioned judgment or final order or resolution
through no fault attributable to him.
If he failed to avail of those other remedies without
sufficient justification, he cannot resort to the action
for annulment provided in this Rule, otherwise, he
would benefit from his own inaction or negligence.
Section 2: Grounds for annulment
o Extrinsic fraud and lack of jurisdiction
o Extrinsic fraud shall not be a valid ground if it
was availed of or could have been availed of,
in an MNT or petition for relief.
INTRINSIC FRAUD is found in the cause of action
or the matter put in issue and presented for
adjudication.
NOTE: It is not a ground for annulment of judgment,
even if the correctness of such judgment has been
affected by the mistaken reliance on the fact
constituting an intrinsic fraud, since the matter was
brought to the attention of the court and the parties,
and could have been the subject of their
corresponding
submissions,
objections
or
evaluations.
EXTRINSIC FRAUD OR COLLATERAL FRAUD is
any fraudulent act of the prevailing party in the
litigation which is committed outside of the trial of the
case, whereby the defeated pasty has been
Page 94 of 289

prevented from exhibiting fully and fairly presenting his
side of the case.
reasonable and proper period, which warrants the

presumption that a party has waived his right.
ELEMENTS:
1. committed by the prevailing party
2. collateral act depriving the losing party of his
day in court
3. not discovered when judgment was made.
Since this was not revealed to or was even

deliberately suppressed from the opposing party and
the court, relief under this rule is available subject to
certain conditions.
Extraneous evidence may be considered to determine
the existence of collateral fraud.
LACK OF JURISDICTION
Refers to either lack of jurisdiction over the person of
the defending party or over the subject-matter of the
claim, since in either case the judgment or final order
and resolution are void.
Only evidence in the records of the case may be
considered.
Ancheta v. Ancheta, G.R. No. 145370, Mar. 4, 2004
A party must justify the failure to avail of the
appropriate remedies, in order to avoid abuse of the
remedy provided in Rule 47.
However, a judgment or final order issued without
jurisdiction is null and void and may be assailed
anytime without complying with the pre-conditions in
Rule 47.
Section 3. Period for filing action
Section 7. Effect of judgement
Period for
filing
action
Effect
of
judgment
EXTRINSIC
FRAUD
4 years from
discovery
LACK OF
JURISDICTION
Before it is barred by
laches or estoppel
the court may on set

aside
the
motion order the questioned judgment or
trial court to try final order or resolution
QuickTime and a
the TIFF
case
as if adecoand
(Uncompressed)
mpressorrender the same
needed to see this picture.
timelyareMNT
had null and void, without
been
granted prejudice to the original
therein.
action being refiled in
the proper court.
LACHES such inexcusable delay in the assertion of

rights or a failure to prosecute a claim, within a
For procedural purposes, the estoppel referred to

here is actually estoppel by laches.
ESTOPPEL BY LACHES that failure to do

something which should be done or to claim or
enforce a right at a proper time or a neglect to do
something which one should do or to seek or enforce
a right at a proper time.
Section 4. Filing and contents of petition
The verified petition for annulment under this section
must state with particularity the facts and law
sustaining the ground therefore, and those supporting
the petitioners good and substantial cause of action
or defense.
The first is the fundamental requirement, but the
second is just as important in order to convince the
court that something may indeed be achieved should
the petition be given due course. This second
requirement must further be supported by affidavits
or documents showing, at least prima facie, the
validity of petitioners claim.
Section 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.
Should prima facie merit be found in the petition, the
same shall be given due course, and summons shall
be served on the respondent
Section 6. Procedure
The procedure in ordinary civil cases shall be
observed.
Should the trial be necessary, the reception of the
evidence may be referred to a member of the court or
a judge of the RTC.
*
2 stages:
o A preliminary evaluation of the petition
for prima facie merit therein and,
o in the affirmative, the issuance of
summons as in ordinary civil cases and
such appropriate proceedings thereafter
as contemplated in Se 6.
Section 8. Suspension of prescriptive period

Page 95 of 289

The prescriptive period for refiling of the aforesaid
original action shall be deemed suspended from the
filing of such original action until the finality of the
judgment of annulment.
The prescriptive period shall not be suspended where
the extrinsic fraud is attributable to the plaintiff in the
original action.
The resulting balance of the prescriptive period may
be availed of by the aggrieved party for the refilling of
the same action.
Section 9. Relief available
The judgment of annulment may include the award of
damages, attorneys fees and other relief.
If the questioned judgment or final order or
resolution had already been executed, the court
may issue such orders of restitution or other relief as
justice and equity may warrant under the
circumstances.
Section 10. Annulment of judgments or final
orders of Municipal Trial Courts
o An action to annul a judgment or final order of
a Municipal Trial Court shall be filed in the
RTC having jurisdiction over the former.
o 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.
The RTC cannot dismiss outright the petition, unlike
the CA, which may do so under Sec 5 of this Rule.
falling within the original jurisdiction of the

court, or those within its appellate jurisdiction
where an MNT is granted on the ground of
newly discovered evidence
(d) To take up such other matters which may aid
the court in the prompt disposition of the
case.
Section 2. Record of the conference
Section 3. Binding effect of the results of the
conference
The new Rule has adopted most of the grounds for
pre-trial in the trial courts and with virtually the same
objective, that is, to explore and utilize all such
appropriate means as may assist in the early
disposition of the case.
The minor difference is that in the CA, this procedural
device may not only be availed of in original actions
but also in cases on appeal wherein a new trial was
granted on the ground of newly discovered evidence.
While it may appear that the preliminary conference
is initiated by a call for that purpose by the court, it is
not prohibited or improper for either or both of the
parties to suggest the same to the court on motion
and for valid reasons.
RULE 49
ORAL ARGUMENT
Section 1. When allowed
Section 2. Conduct of oral argument
RULE 48
PRELIMINARY CONFERENCE
Section 1. Preliminary conference
At any time during the pendency of a case, the court
may call the parties and their counsel to a preliminary
conference:
QuickTime and a
Section 3. No hearing or oral argument for

motions
Motions in the SC and the CA do not contain notices
of hearing as no oral arguments will be heard in
support thereof; and if the appellate court desires to
hold a hearing thereon, it will itself set the date with
notice to the parties.

(a) To consider the possibility of an amicable

settlement, EXCEPT when the case is not
allowed by the law to be compromised
(b) To define, simplify and clarify the issues for
determination
(c) To formulate stipulations of facts and
admissions of documentary exhibits, limit the
number of witnesses to be presented in cases
RULE 50
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of appeal
Page 96 of 289

(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 5 of
Rule 40 and section 4 of Rule 41
(d) Unauthorized alterations,
omissions
or
additions in the approved record on appeals
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, par
(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
(i) The fact that the order or judgment appealed
from is not appealable.
Other grounds for the dismissal of an appeal are:
(j) By agreement of the parties, as where the case
was amicably settled by them
(k) Where the appealed case has become moot or
academic
(l) Where the appeal is frivolous or dilatory
NOTE: With the exception of Sec. 1(b), the foregoing
grounds for the dismissal of an appeal are directory
and not mandatory, and it is not the ministerial duty of
the court to dismiss the appeal.
Section 2. Dismissal of improper appeal to the
Court of Appeals
An appeal under Rule QuickTime
41 taken
and afrom the RTC to the
CA raising only questions
ofthislaw
are needed to see
picture.shall be dismissed,
issued 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 an
RTC shall be dismissed.
An appeal erroneously taken to the CA shall not be

transferred to the appropriate court but shall be
dismissed outright.
CA may dismiss the appeal outright even without
motion. The remedy if dismissed for improper appeal
is to re-file it in the proper forum within the prescribed
period.
Heirs of Ramon Pizarro, Sr. vs. Consolacion, et
al., G.R. No. 51278, May 8, 1988
It is within the competence of the trial court to
determine whether the appeal interposed is based on
pure questions of law or mixed questions of law and
fact, for the purpose of deciding the correctness of
the procedural mode of appeal adopted by the
appellant, the court to which the appeal is to be taken
and, consequently, whether to give due course
thereto.
Rule 50, Sec 2 applies only when the appeal is
already brought to the CA at which time it will
determine whether the appeal was brought to the
correct appellate court.
Section 3. Withdrawal of appeal
o As a matter of right at any time before the
filing of the appellees brief.
o Thereafter in the discretion of the court.
RULE 51
JUDGMENT
Section 1. When case deemed submitted for
judgment
A. In ordinary appeals
1) Where no hearing
on the merits of the
main case is held,
upon the filing of the
last pleading, brief,
or
memorandum
required by the Rules
or by the court itself,
or the expiration of
the period for its filing
2) When
such
a
hearing
is
held,
upon its termination
or upon the filing of
B. In original actions
and petitions for review
1) When no comment
is filed, upon the
expiration of the
period to comment
2) Where no hearing is
held, upon the filing
of the last pleading
required or permitted
to be filed by the
court,
or
the
expiration of the
period for its filing.
3) Where a hearing on
the merits of the
main case is held,
upon the filing of the
Page 97 of 289

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.
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 determination of the date of submission of the

case is made doubly important by the fact that under
the Constitution such date is the reckoning point for
the periods for deciding or resolving the case or
matter, and which periods are now mandatory in
nature.
Ramos vs. IAC, et al., G.R. No. 72686, Mar. 8, 1989
When an appellate court has once declared the
law in the case, such declaration continues to be the
law of that case even on subsequent appeal.
The rule made by an appellate court, while it may
be reversed in other cases, cannot be departed from in
subsequent proceedings in the same case.
The rule is necessary as a matter of policy in order
to end litigation; otherwise, it would be impossible for
an appellate court to perform its duties efficiently if a
question, already considered and decided by it, were
to be litigated anew in the same case upon any and
every subsequent appeal.
Jarantilla v. CA, et al., G.R. No. 80194, Mar. 21,
1989
The LAW OF THE CASE has been defined as the
opinion delivered on a former appeal.
It means that whatever is once irrevocably
established, as the controlling legal rule or decision
between the same parties in the same case, continues
to be the law of the case, whether correct on general
principles or not, so long as the facts on which such
decision between the same parties in the same case,
continues to be the law of the case, whether correct on
general principles or not, so long as the facts on which
such decision was predicated continue to be the facts
before the court.
Under
such
circumstances,
no
question
necessarily involved and decided on that appeal will
be considered on a second appeal or writ of error in
QuickTime and a
the same case. TIFF (Uncompressed)
decompressor
The rule on the
law of the case does not apply to
resolutions rendered in connection with the case but
wherein no rationale has been expounded on the
merits of that action.
Section 2. By whom rendered
The judgment shall be rendered by the members of

the court who participated in the deliberation on the
merits of the case before its assignment to a member
for the writing of the decision.
Section 3. Quorum and voting in the court
o For deliberation: participation of all 3
justices of a division
o For pronouncement of a judgment or final
resolution: unanimous vote of all 3
o
If the 3 judges do not reach a unanimous

vote:
1. clerk shall enter the votes of the
dissenting Justices in the record.
2. the Chairman of the division shall refer
the case, together with the minutes of the
deliberation, to the Presiding Justice
3. The Presiding Justice shall designate 2
other Justices chosen by raffle, forming a
special division of 5 Justices.
For deliberation: participation of all
5 justices of a special division
For pronouncement of judgment
or final resolution: concurrence of a
majority of such special division
Lao v. To-Chip, et al., G.R. No. 76594, Feb. 26,

1988
To be binding, a judgment must be duly signed
and promulgated during the incumbency of the judge
who signed it.
Where the decision was promulgated after two of
the three justices necessary to constitute a quorum in
a division had lost their authority to act as justices by
reason of the presidential acceptance of their
resignations of which they were informed before such
promulgation, said decision is null and void.
Section 4. Disposition of a case
Section 5. Form of decision
It will be noted that the requirement for the statement
of the facts and the law refers to a decision or, for
that matter, a final resolution. The same does not
apply to minute resolution since these usually
dispose of the case not on its merits but on
procedural or technical considerations, although the
court may, if it deems it necessary, briefly discuss the
matter on the merits in an extended resolution.
With respect to petitions for review (and this is broad
enough to apply to the ordinary petition for review,
petition for review on certiorari, or petition for
certiorari) and motions for reconsideration, the
Page 98 of 289

Constitution merely requires a statement of the legal
basis for the denial thereof or refusal of due course
thereto. Again, the court may opt, but it is not required,
to issue an extended resolution thereon.
MEMORANDUM DECISION - one rendered by an
appellate court which incorporates by reference the
findings of fact and conclusions of law contained in the
decision of the lower court.
Section 6. Harmless errors
The court at every stage of the proceedings must
disregard any error or defect which does not affect the
substantial rights of the parties.
HARMLESS ERROR- error either in admitting or
excluding evidence or a defect in the ruling, or error
which does not affect the substantial rights of the
parties
Section 7. Judgment where there are several
parties
Section 8. Questions that may be decided
Only errors claimed and assigned by a party will be
considered by the court, except errors affecting its
jurisdiction over the subject matter. To this exception
has now been added errors affecting the validity of the
judgment appealed from or the proceedings therein.
Even if the error complained of by a party is not
expressly stated in his assignment of errors but the
same is closely related to or dependent on an
assigned error and properly argued in his brief such
error may now be considered by the court.
The execution of a judgment or final execution may

be applied for only after its entry, EXCEPT where the
same is ordered immediately executory.
The motion for execution may be filed only in the
proper court, and the general rule is that the writ
therefore may be sought in and issued by the court
from which the action originated, that is, the court of
origin or a quo.
In cases pending on appeal in the CA, a motion for
discretionary execution of the judgment of the trial
court may be filed in the CA provided it is in
possession of the original record or record on appeal.
o If it grants the motion, it will not issue a writ of
execution but shall order the resolution
granting the motion therefore.
o A copy of such resolution and a certified true
copy of the judgment or final order to be
executed shall forthwith be transmitted to
said trial court.
Where the appealed case has finally resolved and
the judgment has become executory, the situation is
governed by the amended and amplified provisions of
Rule 29, Sec 1.
RULE 52
MOTION FOR RECONSIDERATION
Section 1. Period of filing
15 days from notice thereof, with proof of service on
the adverse party.
Section 9. Promulgation and notice of judgment
Section 2. Second motion for reconsideration
Section 10. Entry of judgment and final resolutions
No MR of a judgment or final resolution by the same

party shall be entertained.
In justifiable situations or by agreement in the division,

the filing of dissenting or separate opinions may be
reserved or the majority opinion may be promulgated
without prejudice to the subsequent issuance of a
more extended opinion,
provided
QuickTime
and a the requisite votes
for promulgation ofarejudgment
have
needed to see this
picture. been obtained and
recorded.
Section 3. Resolution of motion

In the CA, an MR shall be resolved within 90 days
from the date when the court declares it submitted for
resolution.
The date of entry is important in appellate courts for

the purposes of execution of judgment.
NOTE: This time limit applies only to MRs in the CA.

It does not apply to MRs in the SC, pursuant to the
exception in Sec 2(b), Rule 56
Section 11. Execution of judgment
Section 4. Stay of execution
Page 99 of 289

The pendency of an MR filed on time and by the
proper party shall stay the execution of the judgment
or final resolution sought to be reconsidered UNLESS
the court, for good reasons, shall otherwise direct
RULE 53
NEW TRIAL
Section 1. Period for filing; ground
Period: at any time after the appeal from the lower
court has been perfected and before the CA loses
jurisdiction over the case,
Ground: newly discovered evidence
If the party seasonably files an MR in the CA, the

period to appeal is set aside and he shall have
another 15 days from receipt of the resolution of
said court denying such motion within which to
appeal by certiorari. If he files an MNT, the same
procedure shall apply in the event of its denial. In
both instances, the rule on the effects of pro
forma motions shall be observed.
If the party decides to proceed directly with an
appeal by certiorari, he should comply with all the
requirements of Rule 45 and file his petition,
sufficient in form and substance within the 15 day
period. The party whose MR or MNT was denied
and who desires to appeal to the SC may also
move for such extended period upon the same
terms, preparatory to and for purposes of the
filing of his petition.
The motion shall be accompanied by affidavits

showing the facts constituting the grounds therefore
and the newly discovered evidence
Section 2. Hearing and orders
REQUISITES
FOR
NEWLY
DISCOVERED
EVIDENCE:
1. must be of such nature that it would not have
been discovered prior to the trial even with the
exercise of due diligence
2. if admitted, would probably change the result
of the case.
Within 90 days from the date when the court declares

it submitted for resolution.
Difference between MR and MNT

An MR must be filed only after entry of judgment, while
an MNT may be filed even before the judgment at any
time after the appeal has been perfected.
Rules 52 and 53 regarding MRs and MNTs, in
relation to Rule 45 on appeals by certiorari from
the CA to the SC may be recapitulated as follows:
* An MR may be filed within 15 days from notice of
the judgment or final resolution of the CA
* An MNT may be filed at any time after perfection
of the appeal from the RTC and up to but within 15
days from service of a copy of the judgment or
final resolution of the CA.
* A PETITION FOR REVIEW ON CERTIORARI to
the SC may also be filed within such 15 day period
from notice of the QuickTime
judgment
and a or final resolution of
the CA, unless
theto seeparty
are needed
this picture.files either of the
aforementioned two motions.
* Accordingly, within that reglementary period, the
aggrieved party may file a motion for
reconsideration; or a motion for new trial, if proper;
or a petition for review on certiorari to the SC. The
said 2 motions shall be filed in the CA, and the
petition with the SC, with copies served on the
adverse party in all instances.
Section 3. Resolution of motion
Section 4. Procedure in new trial

In the trial courts, a second MNT may be filed where
the ground therefore did not exist at the time the first
motion for new trial was filed. This would not be
possible in the CA where the only ground for an MNT
is newly discovered evidence.
RULE 54
INTERNAL BUSINESS
Section 1. Distribution of cases among divisions
Section 2. Quorum of the court
RULE 55
PUBLICATION OF JUDGMENTS AND FINAL
RESOLUTIONS
Section 1. Publication
CA 638, Sec. 1 provides for the publication in the OG
of only such decisions of the SC and the CA as may
be deemed by said courts of sufficient importance to
be so published.
Section 2. Preparation of opinions for publication
Page 100 of 289

SYLLABUS an abstract, a headnote, or a note
prefixed to the report of an adjudged case, containing
an epitome or brief statement of the rulings of the court
upon the points decided in the case.
Section 3. General make-up of volumes
The published decisions and final resolutions of the
SC shall be called Philippine Reports while those of
the CA shall be known as the Court of Appeals
Reports.
CA can entertain and grant a motion for new trial on

the ground of newly discovered evidence, this is
justified by the fact that it can resolve factual
questions and for that matter, can conduct hearings
for that purpose. The SC on the other hand, cannot
entertain such motions as only questions of fact are
involved therein and it is not a trier of facts. Besides,
the findings of fact of the CA are generally binding on
the SC.
B. APPEALED CASES
Section 3. Mode of appeal
PROCEDURE IN THE SUPREME COURT
GENERAL RULE: only by petition for review on

certiorari
RULE 56
A. ORIGINAL CASES
EXCEPTIONS: in criminal cases where the penalty

imposed is death, reclusion perpetua or life
imprisonment.
Section 1. Original cases cognizable

1. certiorari,
prohibition,
mandamus,
quo
warranto, habeas corpus,
2. disciplinary proceedings against members of
the judiciary and attorneys, and
3. cases affecting ambassadors, other public
ministers and consuls
Section 2. Rules applicable
In original cases for certiorari, prohibition,
mandamus, quo warranto, habeas corpus:
applicable provisions of the Constitution, laws, and
Rules 46, 48, 49, 51, 52 and this Rule, subject to the
following provisions:
(a) All references in said Rules to the CA shall be
understood to also apply to the SC.
(b) The portions of said Rules dealing strictly with
and specifically intended for appealed cases in
the CA shall not be applicable
(c) 18 clearly legible copies of the petition shall be
filed, together with proof of service on all
adverse parties.
Disciplinary action QuickTime
against
of the
and a members
judiciary shall bearegoverned
needed to see this by
picture.the laws and rules
prescribed therefore
Disciplinary action against attorneys: Rule 139-B
as amended.
It will be noted that Rule 53 on MNTs is NOT
applicable to and cannot be availed of in the SC in civil
cases therein. The apparent reason is that while the
Appeals to the SC in civil cases may be made only by

petition for review on certiorari from the CA (Rule 45)
and from the RTC(Rule 45 in relation to RA 296, Sec
17).
Even in criminal cases, appeal to the SC shall be by
petition for review on certiorari, except where the
penalty imposed by the lower court is death,
reclusion perpetua or life imprisonment.
o
o
The death penalty shall be subject to

automatic review
In the case of reclusion perpetua or life
imprisonment, they may be elevated by
ordinary appeal.
Section 4. Procedure
The appeal shall be governed by and disposed of in
accordance with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections 1, 2, and 5
to 11 of Rules 51, 52 and this Rule.
Section 5. Grounds for dismissal of appeal
(a) Failure to take the appeal within the
reglementary period
(b) Lack of merit in the petition
(c) Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs
(d) Failure to comply with the requirements
requiring proof of service and contents of and
the documents which should accompany the
petition
Page 101 of 289

(e) Failure to comply with any circular, directive or
order of the SC without justifiable cause
(f) Error in the choice or mode of appeal
(g) The fact that the case is not appealable to the
SC.
in appealed cases, the judgment or order

appealed from shall stand affirmed; and
on all incidental matters, the petition or
motion shall be denied.
The grounds for dismissal of appeals in the SC may

vary in a number of respects from those in the CA
(Rule 50) since the appeal in civil cases to both courts
differ in the mode and requirements for perfecting the
appeal, as well as the pleadings and proceedings
required thereafter.
Section 6. Disposition of improper appeal
Except as provided in section 3, Rule 122 regarding
appeals in criminal cases where the penalty imposed
is death, reclusion perpetua or life imprisonment, an
appeal taken to the SC by notice of appeal shall be
dismissed.
An appeal by certiorari taken to the SC from the RTC
submitting issues of fact may be referred to the CA for
decision or appropriate action. The determination of
the SC on whether or not issues of fact are involved
shall be final.
IMPROPER APPEAL- the choice or mode of appeal is
correct but the appellant raises issues which the court
cannot resolve.
Example: where petition for review on certiorari but
factual issues are invoked for resolution.
* In this instance, the case may be referred to the

CA, although the SC may also dismiss the appeal.
ERRONEOUS APPEAL- error in the choice or mode
of appeal.
Example: where appeal taken to the SC by notice of
appeal except that provided in Sec 3, Rule 122.
* In this instance, the appeal shall be dismissed

outright.
Section 7. Procedure if opinion is equally
QuickTime and a
divided
Where the court en banc is equally divided in

opinion, or the necessary majority cannot be had:
the case shall again be deliberated on.
If after such deliberation no decision is reached,
the original action commenced in the court
shall be dismissed;
Page 102 of 289

Ateneo Central Bar Operations 2007 Summer Reviewer

Transféré par

Informations du document

Description originale:

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Ateneo Central Bar Operations 2007 Summer Reviewer

Transféré par

Droits d'auteur :

Formats disponibles

ATENEO CENTRAL BAR OPERATIONS 2007

Mode of Appeal: by Notice of Appeal

Section 2. When to appeal

Neypes v. CA, G.R. No. 141524, September 14,

Appeal may be taken within 15 days after NOTICE of

The rule on interruption of the period of appeal

Section 3. How to appeal

File a NOTICE OF APPEAL with the court that

RECORD ON APPEAL shall be required only in:

Section 1. Where to appeal

The Notice of appeal should indicate:

An appeal from a judgment or final order of an MTC

Copies of the notice on appeal and the

The last mentioned requirement (c) is the same

Criminal Law Summer Reviewer

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

Section 5. Appellate court docket and other lawful

The RTC shall decide the case on the basis

Within the period for taking an appeal, the appellant

NOTE: Failure of the appellant to file a memorandum

Proof of payment shall be transmitted to appellate

NOTE: Where the party has appealed by counsel in

Payment thereof is not a condition precedent for

Section 8. Appeal from orders dismissing the

While compliance with the requirement for timely

A copy of his certification shall be furnished the

If an appeal is taken from an order of the lower court

The first paragraph contemplates the situation

Criminal Law Summer Reviewer

complaints, while the main case is pending,

The enumeration consists of interlocutory orders from

Section 9. Applicability of Rule 41

In all the above instances, where a judgment

Where the order is interlocutory, the movant has

Section 2. Modes of appeal

Criminal Law Summer Reviewer

the appeal shall

The period for appeal shall be interrupted by a timely

Motion for extension of time to file an MNT or MR

Habaluyas v. Japson, 142 SCRA 208 (1986)

Although the term used in the second mode is petition

Where a record on appeal is required, the appellant

The period of appeal may be extended but such

Criminal Law Summer Reviewer

(b) testimonial evidence by the names of the

If the whole testimonial and documentary

subject index (if the record on appeal

Section 4. Appellate court docket and other lawful

Things that are purely matters of form and which are

Upon filing of the record on appeal for

If the TC orders the amendment thereof,

Criminal Law Summer Reviewer

A record on appeal does not have to be set for hearing

The court loses

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

Order execution pending appeal in accordance

Under this section, in an appeal by notice of appeal,

Criminal Law Summer Reviewer

court may, motu proprio or on motion, dismiss the

Section 12. Transmittal

RTC-CA in the exercise the CAs appellate

NOTE: Rule 41 refers to regular appeals from the