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RULE 39 [SECS.

1-7]
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Execution will come in, in cases where judgment is final and executory, correct? And execution shall be done at the court of origin or
the court which actually rendered the judgment. However, is there something which can be done if the case was appealed and the
decision of the appellate court is already final and executory, and the records of the case are not yet transmitted to the court of
origin?

To be honest, you will appreciate the beauty of Rule 1(2), because even if you the appellate court made the decision, and the
decision is already final and executory, sometimes execution cannot be made because the court of origin has to wait daw for the
records of the case. So what will happen is, after entry of judgment was already issued by the CA, the next step would be is to send
the records of the case to the court of origin. And in reality it will take long. To remedy this particular stage, something can be done
on the part of the winning party. And even if the records of the case are not yet transmitted to the court of origin, what would you do
in that particular instance?

ANS: FILE MOTION FOR EXECUTION OF JUDGMENT

And what will he do next in support for this motion for execution of judgment? He must just present to the court:

1. Certified true copy of the decision, subject of the motion AND


2. Entry of judgment

In reality, the appellate court, before it would transmit the records to the court of origin and finding that the decision is final and
executory will automatically issue an entry of judgment. If you are now in possession of these 2 documents, even if the records are
not yet transmitted, you are now allowed to file a motion for execution of judgment. In fact in the last paragraph, the CA, also the
appellate court we direct also the court of origin to issue the corresponding writ of execution. You anchor that on Sec. 1 of Rule 39.

Is the motion for execution be ex-parte? YES. If the motion for execution is a matter of right. If the filing of the motion for execution is
a matter of right, because the decision has been final and executory. Actually the rule is considered as a non-litigated motion. That’s
why there is one comment there that it can be done by means of ex-parte motion. When you talk about ex-parte motion, you need
not serve that to the other party because anyway, the court can take judicial notice na that that decision is final and executory. But if
the motion for execution is a matter of discretion, that is definitely a litigated motion.

If the decision is already final and executory, then the issuance of writ of execution is already a matter of right like what we said that
it can even be done by means of ex-parte motion lang. Are there EXCEPTIONS where writ of execution will not be allowed?
(MEMORIZE) Matter of right, but writ of execution may not lie in any of the following instances:

1. Where judgment turns out to be incomplete or conditional


2. Judgment novated by parties
3. Supervening Fact Doctrine: Equitable grounds like a change in the situation of the parties which makes execution
inequitable
4. Execution is enjoined
5. Judgment has become dormant (XPN: support which can be executed by motion)
6. Execution is unjust or impossible

If you are told to do something so as not to pursue execution, what do you do? The motion of execution is now granted by court and
a writ of execution was now issued but your client insists that you have to do something to prevent that particular execution. What is
the appropriate remedy?

In reality what we do is you file a motion for the issuance of a writ of execution. If the motion is granted, the court issues the writ and
the sheriff implements it. You were told by your client to do something to stop implementation. What is the right remedy for this?

ANS: FILE MOTION TO QUASH THE WRIT OF EXECUTION


What are the grounds to file a motion to quash the writ of execution?

1. A change in the situation of the parties renders execution inequitable – MOST COMMON
2. Issued against the wrong party
3. Issued without authority
4. Improvidently issued
5. Defective in substance
6. Judgment already satisfied
7. The controversy never submitted to the court

If the writ of execution has already been issued and you felt aggrieved, file a motion to quash under these grounds.

What is the remedy if in case the writ of execution is denied by court?

ANS: APPEAL. Don’t file a petition for certiorari.

Execution can be a matter a right / discretion. What is the principle of matter of discretion? When will this happen? That is in
reference to PENDING APPEAL. But the FILING OF MOTION FOR EXECUTION PENDING APPEAL, where do you file this? This refers to
execution while the case is still on appeal – not yet final and executory.

ANS: If the records of the case have been transmitted na to the appellate court, to that appellate court, but if not yet – then with the
trial court that rendered judgment even if the 15-day period has already lapsed but the records of the case were not yet transmitted.
This is not a motion ex-parte, you need to notify the adverse party that the motion will be set for a hearing.

This should be based on what? What ground is it to warrant the issuance of execution pending appeal?

ANS: UPON GOOD REASONS:

1. Where lapse of time would make the ultimate judgment ineffective, as where the debtors were withdrawing their
business and assets from the country
2. Where the appeal is clearly dilatory
3. Where the judgment is for support and the beneficiary is in need thereof
4. Where the articles subject of the case would deteriorate and court can fix the time for notice of execution sale of
perishable property
5. Where defendants are exhausting their income and have no other property aside from the proceeds from the subdivision
lots subject of the action
6. Where judgment debtor is in imminent danger of insolvency or is actually insolvent
7. Where the prevailing party is of advanced age and in a precarious state of health, and the obligation in the judgment is
non-transmittable, being for support
8. Where there is uncontradicted evidence showing that, in order to house machineries which they were forced to place on
a public street, movants were in extreme need of the premises subject of the suit and the possession, and the
corresponding bond to answer for damages in case of reversal on appeal had been posted by them
9. Where the case involved escrow deposits and the prevailing party posts sufficient bond to answer for damages in case of
reversal of the judgment
10. If forcible entry, the court, more often than not grants execution pending appeal.

There’s already a judgment, this judgment is not yet final and executory. The losing party filed an appeal. The winning party filed a
motion for execution pending appeal and was granted by court for good reasons. If you were the counsel for the losing party, how
will you prevent the execution?

ANS: FILE MOTION TO STAY THE EXECUTION, BY FILING THE SUPERSEDEAS BOND

Supersedeas Bond – is to answer for whatever damages which may be incurred by the other party if it should turn out later that the
execution should not have been granted. This is how execution will be stayed (suspended).
We assume that an execution pending appeal was granted. The decision was executed, because the other party had no money to file
a supersedeas bond. However, the decision of the trial court was reversed by the appellate court. There was already an execution.
What should now be done?

ANS: SEC 5: REVERSAL OF EXECUTED JUDGMENT – If reversed totally / partially, or annulled on appeal or otherwise, the trial court
may, on motion, issue orders of restitution or reparation of damages as equity and justice may warrant under the circumstances.

On reversal, the property itself must be returned to the judgment debtor, if the same is still in the possession of the judgment
creditor, plus compensation to the former for the deprivation and use of the property. This can be effected by motion to the trial
court.

MEMORIZE:

If restitution is not possible, then compensation should be made as follows:

a. If the purchaser at the public auction was the judgment creditor, he must pay the full value of the property at the time of
its seizure, plus interest
b. If the purchaser at the public auction was a 3rd person, the judgment creditor must pay the judgment debtor the amount
realized from the sale of said property at the sheriff’s sale, with interest
c. If the judgment award was reduced on appeal, the judgment creditor must return to the judgment debtor only the excess
which he received over and above that to which he is entitled under the final judgment, with interest on such excess

What are the instances or exceptions when even if the other party files a supersedeas bond, the execution will not stay? When will it
be automatic when judgments will not be stayed by appeal?

ANS: SEC. 4: Instances where judgment is immediately executory:

1. Injunction
2. Receivership
3. Accounting
4. Support – immediately needed and delay might prejudice the one in need of it
5. Such other documents declared to be immediately executory unless otherwise ordered by the trial court

If you want to file a motion for execution of judgment, how many years?

ANS: MODES OF ENFORCEMENT:

1. By motion within 5 years from entry of judgment


2. By independent action for REVIVAL OF JUDGMENT after 5 years from entry but within 10 years

The decision is now final and executory, unfortunately the losing party dies. How should execution be done?

MEMORIZE:

ANS: SEC.7: EXECUTION IN CASE OF DEATH OF PARTY:

1. Death of judgment obligee – upon the application of his executor or administrator, or successor in interest
2. Death of judgment obligor – against his executor or administrator or successor in interest, if the judgment be for the
recovery of real or personal property, or enforcement of lien
3. Death of judgment obligor – after execution is actually levied upon any of his property, the same may be sold for the
satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or
administrator for any surplus in his hands

This presupposes though that the judgment was already final and executory. Execution will still proceed.
(Continuation)

Section 7. Execution of Judgment in Case of Death of Party

Paragraph (b) applies only in cases:

- If judgment obligor dies after entry of judgment or order which has become final and executory. If he dies before such
entry in the court where the action is pending, and the action is for contractual money claim, then it will not be dismissed
but shall continue until entry of final judgment. If it is a favorable judgment, it may be enforced as a claim against the
debtor’s estate.

- If the judgment obligor dies after the entry of final judgment but before the levy on his property, execution will issue if it
be for recovery of real or personal property.

- If the judgment is for a sum of money, and the judgment obligor dies before the levy on his property, such judgment
cannot be enforced by writ of execution but must be filed as a claim against his estate.

- If he dies after levy has been made, the execution sale may proceed.

[ JUDGE S: PLEASE TAKE NOTE. MIGHT BE ASKED IN THE FINAL EXAMINATION ]

Section 8. Forms and Content of Execution

- A writ of execution must always conform with the judgment of the court. If it is different from or exceeds the terms of the
judgment, it is a nullity.
Remedy: Motion to quash the writ of execution anchored on that ground that it did not conform/ exceeds with the decision
of the court.

- If writ of execution is denied by the court, remedy is appeal.

- If writ of execution concerns real property, along with this concept is the issuance of a writ of possession to place the
winning party in possession of the land subject of the case. If the losing party refuses to vacate said land, the remedy is to
file a motion for the issuance of a writ of execution.

- However this writ of execution is not available in all cases and only in the following:
a. land registration proceedings which are in rem;
b. extrajudicial foreclosure of a real estate mortgage;
c. judicial foreclosure of a real estate mortgage which is a quasi in rem proceeding, provided that the mortgagor is
in possession of the mortgaged property and no third person, not a party to the foreclosure suit had intervened;
and
d. in execution sales.

Section 9. How can Execution be Made

- It depends on whether it is an execution which calls for judgment for money or not.

If it is an execution for judgment of money:


- Sheriff may demand from judgment obligor the immediate payment of the full amount as stated in the
writ of execution and other lawful fees.
- Upon receipt of payment made to the sheriff, he shall turn over right away the full amount stated in the
writ of execution to the winning party. Other lawful fees shall be turned over to the Clerk of Court on the
said day.
- If it cannot be done because the losing party refuses to pay, the sheriff shall levy the properties of the
judgment obligor of every kind as possible, as long as these properties are not exempt from execution.
(See Section 13. Properties Exempted from Execution)
- Sheriff has to give the judgment obligor the option as to which property he would like to choose. If he
would not avail said option, levy shall first be imposed on his personal properties then on the real
properties.

If it is an execution not for judgment of money:

- Apply the provisions of Section 10 of the same rule.

- Garnishment – the sheriff can exercise this option, garnishing all the deposits of the judgment obligor in the bank to satisfy
the judgment.

Section 12. Levy

- Levy means the actor acts by which an officer sets apart or appropriates a part or the whole of the property of the
judgment debtor for purposes of the prospective execution sale.

Section 14. Return of Writ of Execution

- The sheriff is obligated to make a return of the writ of execution to determine whether the same has been satisfied in part
or in full.
- If judgment cannot be satisfied in full within thirty (30) days after the receipt of the sheriff of the writ, he must inform the
court on that particular aspect and the writ shall continue to be in effect during the period within which the judgment may
be enforced by motion.
a. Within five (5) years after the decision has been final and executory, file a motion for the issuance of a writ of
execution.
b. Beyond five (5) years but less than ten (10) years, file an action for revival of judgment.
c. After ten (10) years, no remedy left, file a new action.

Section 16. Proceedings where Property Claimed by Third-Person

- Even if there is a third party claim on a property levied by the sheriff, the real party can still compel the sheriff to proceed
with the levy but judgment obligee has to file a bond to answer for damages which may be incurred by the third person
claiming the property as a consequence to the execution.
- If sheriff insists on levying the property even if there is a third party claimant and no bond was filed by the winning party,
the sheriff shall be personally liable to the third party if he suffers damages as a consequence to the execution.
- The court has the power to fix the value of the property claimed by a third person for the purpose of determining how
much the bond should be because according to existing rules, the bond should at least be equal to the value posted by the
judgment creditor to indemnify the sheriff of its liability for damages.
Section 19. How Property Sold on Execution

- It must be made at public auction and goes to the highest bidder. If there is no bidder, it goes to the judgment creditor.
- After the bid, the sheriff executes a Certificate of Sale which must be registered at the Registry of Deeds of the province or
city where the property is located.
- There must be Registration so that the losing party shall be entitled to his right to exercise Redemption in a period of one
(1) year from the period of registration of the sheriff’s Certificate of Sale. If no right of redemption is exercised, then the
sheriff will execute a Final Certificate of Sale in favor of the winning party.
- Legal redemption only applies to execution sale involving real properties. Not applied in personal properties.

Section 32. Rents, Earnings, and Income of Property Pending Redemption

- It shall belong to the judgment obligor until the expiration of his period of redemption.

J: LEGAL REDEMPTION on rule 39. On execution stage particularly in judgments involving money, if the judgment obligor could not
pay the amount, the sheriff resorts to other properties but always giving the judgment obligor an option. If the judgment obligor will
not exercise that option, sheriff will first execute on the personal properties of the judgment obligor, if in spite of this the properties
are insufficient then real properties can be executed. But whether real or personal properties, it is not automatic that these
properties will be given to the judgment oblige (winning party) because these particular properties will be sold through public
auction to the highest bidder. In cases where there is no bidder, it goes to the judgment obligee but the sheriff will issue a sheriff’s
certificate of sale so that with the real properties of the judgment obligor, he can exercise the right of legal redemption within a
period of 1 year from the date of registration of the sheriff’s certificate of sale. But there is no legal redemption in cases of sale of
personal properties. Legal redemption is only available in cases of sale of real properties. If no Legal Redemption is exercised by the
judgment obligor within the period, then the sheriff can now execute a final certificate of sale in favor of the judgment obligee.

APPEALS

We are now on appeals, first from the 1st level courts to the RTC.

RULE 40: Appeal from MTC to the RTC

An appeal from the first level court to the RTC is by filing a NOTICE OF APPEAL in the court which rendered its judgment within 15
days from receipt of the judgment of the court , except in cases when the law allows multiple appeals and in special proceedings
where the law requires not only notice of appeal but also record on appeal within 30 days. Including the payment of the appeal fees.
When appellant does not pay the appeal fees required upon filing the notice of appeal, the court will issue an order requiring the
appellant to pay the appeal fees within a certain period, and upon failure of which the court can now dismiss the appeal.

Q: What are cases where the law allows the filing of multiple appeals?

A: Partition, Expropriation then Judicial Foreclosure of Mortgage including Settlement of Estate of the Diseased Person. Therefore
notice of appeal, payment of filing fee and record on appeal is required, and it must be done within 30 days.

Note: A timely filing of a motion for reconsideration or new trial interrupts the running. Also apply the FRESH PERIOD RULE of Neypes
Vs. CA.

Appeal period should be strictly construed but, in some cases, the SC allowed the filing of an appeal even on the 16 th day, in the
greater interest of substantial justice.

Motion for extension of time to file appeal is DEFINITELY NOT ALLOWED.


1. Upon receipt of the NOTICE OF APPEAL, the first level court shall transmit all the records of the case to the RTC, and upon receipt
of the entire records by the RTC, the Clerk of Court shall issue a notice to the parties and counsel, informing the parties that the
records of the case were already received by the RTC and order the appellant to file the Appeal Memorandum within 15 days from
receipt of that order, furnishing a copy thereof to the appellee who is given the same time upon receipt of the appellant’s
memorandum, to file the appellee’s memorandum.

2. Failure to file the appeal memorandum on the part of the appellant within 15 days from receipt of the order, it shall be a ground
for the dismissal of the appeal.

3. The appellant’s memorandum shall contain among others mentioned in the book, the so called Assignment of Errors, because this
is where the court will focus when the court renders its decision in connection with the appeal of the appellant.

4. Upon receipt of the Appellee’s memorandum, the case is now deemed submitted for the decision of the Appellate Court.

SECTION 8: Appeal from orders dismissing the case without trial; lack of jurisdiction.

If an appeal is taken from an order of the lower court, dismissing the case without a trial on the merits, the RTC may affirm or reverse
it as the case may be. In case of the affirmance and the ground of dismissal is lack of Jurisdiction over the subject matter, the RTC if
it has jurisdiction thereover , shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall
be remanded (to the first level court) for further proceedings.

-If the ground for dismissing from the first level court is lack of jurisdiction over the subject matter, and the court RTC finds out that
indeed it has jurisdiction, it will decide the case on the merits, as if the case was originally filed before said court. However, in case of
reversal, it will remand the case to the first level court for further proceedings. (from first level court to the RTC)

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.

-even if the case is tried on the merits or not on the merits, in cases of dismissal, on the ground of lack of jurisdiction over the subject
matter, the RTC will acquire jurisdiction and try the case on the merits as if the case was originally filed in said court, however if it is a
dismissal based on the merits of the case, the court may require the parties to submit amended pleadings and additional evidences
which will guide the court in rendering its decision as far as that case is concerned.

RULE 41: Appeal from RTC-CA

Modes to be considered:

1. Determine whether this case was decided by the RTC in its original jurisdiction, or the case was decided by the RTC in its appellate
jurisdiction (from MTC-RTC).

a. If decision was decided by the RTC in the exercise of its ORIGINAL jurisdiction, appeal is done, by means of filing a NOTICE OF
APPEAL, (15 days) payment of appeal fees, except in cases where it is a case which is special proceedings or when the law allows
multiple appeals, because aside from notice of appeal, you also have to file a Record on Appeal (30 days).

Since you are in Tacloban City, our appeal to the CA is in Cebu City, Mindanao is in Mindanao Coart of Appeals in Cagayan, Manila is
in Manila.

You file the appeal in the court which rendered the decision.

b. If decision was decided by the RTC in the exercise of its APPELLATE jurisdiction (MTC->RTC->CA), appeal is done, by means of filing
a PETITION FOR REVIEW under RULE 42, (15 days) payment of appeal fees, except if your appeal is purely on question of law, where
you can go to the SC by way of a PETITION FOR REVIEW ON CERTIORARI under RULE 45. You file the appeal with the CA not in the
RTC.

2. You notice in SEC 1, APPEAL IS NOT ALLOWED, of rule 41, it enumerated 7 cases where appeal is not the proper remedy. Denial of a
motion for execution where in one decision by the SC, the proper remedy is actually appeal. In any of the 7 instances, if you feel
aggrieved the remedy there is Petition for Certiorari under Rule 65 on the ground of Grave Abuse of Discretion amounting to lack or
excess of jurisdiction either by certiorari, mandamus or prohibition.

The 7 instances in section 1 are actually merely Interlocutory Order because in such case the best remedy is RULE 65. Because what
can be appealed are actually final judgements or orders.

3. Final Order-finally disposes of the case, like motion to dismiss is GRANTED.

4. Interlocutory Order-something is still to be done by the court. Like motion to dismiss when DENIED.

5. GR: File a petition for certiorari, mandamus or prohibition based on rule 65 , dapat you have to file a motion for reconsideration, in
order for the court to correct his mistake, otherwise if you will not, the petition for certiorari may be dismissed by the court on a
minute resolution.

XPN: Even without Motion For Recon, you can still go to the SC but we will discuss that when we reach 65.

6. Since you are in Tacloban City, our appeal to the CA is in Cebu City, Mindanao is in Mindanao Court of Appeals in Cagayan, Manila
is in Manila.

7. If you notice that the subject of the case is actually an Interlocutory order, your remedy there is actually , Petition for Certiorari
under Rule 65 and anchor that on the ground of Grave Abuse of Discretion amounting to lack or excess of jurisdiction. Because the
subject of appeal are judgment or final orders. Don’t forget that for your brain damaging final exam which is more difficult that
midterm.

8. In connection with this particular concept, like what I said ha? I just forgot, it is 15 and 30 days lang ha except for habeas corpus
cases where the appeal there must be filed within 48 hours from notice of final order appeared from.

9. When you avail of either Ordinary Appeal, or Petition for Review under Rule 42, Petition for Review on Certiorari under Rule 45, or
Petition for Certiorari under Rule 65, we apply the so called MATERIAL DATA Rule—you have to specify when you have received the
decision as an added requirement by virtue of one SC Circular. Otherwise the petition might be dismissed.

10. you know what, making Record on Appeal is so tedious and so tiring, because you have to enumerate from the start of the
proceedings down to the last. It must comply with certain forms, that’s why the lawyer can ask for more attorney’s fees, in fact the
record on appeal if it is sufficient in form and substance, upon receipt by the appellate court, it has to be approved, even if it is not
set for hearing (as one particular decision by the court) it should be approved. If no objection is filed, it would be approved within 10
days as presented, if there is objection or a need for amendments the court may order for the amendments of the record on appeal.

11. Section 9—perfection of Appeal – as to the appellant, upon the filing of notice of appeal in due time but the court does not lose
jurisdiction simply because it has already approved the notice of appeal. Because the court only loses jurisdiction over the case upon
the expiration of the period to file an appeal. Take note of that. For example:

On the 5th day you file a Notice of Appeal, on the 6th day, it was approved by the court, on the 7th day you file a motion to withdraw
the appeal, can the court still act on the withdrawal> YES. Because the court only loses jurisdiction of the case upon the expiration of
the 15 or 30 day period to appeal. In fact, if the 15 or 30 day period to file appeal is already expired, when the records of the case are
not yet transmitted to the CA, the court can still exercise what we call RESIDUAL JURISDICTION (last paragraph of SECTION 9). (I
always ask this in the FINALS).
This will cover an instance where the appeal period has expired na but the records on appeal has not yet transmitted pa to the CA,
the court may still exercise what we call residual jurisdiction for example to issue mga execution pending appeal, approved
compromise agreement, permit of indigent litigants or even allow withdrawal of the appeal. These are what we call Residual
Jurisdiction of the RTC while the records of the case are still within the court. (last paragraph of Section 9 memorize!! Para perfect)

12. As far as Record on Appeal is concerned it is also deemed perfected upon the approval of the record on appeal filed in Due time.

13. Upon perfection of the appeal with the RTC, the clerk of court has 30 days to verify the correctness of the record, the
completeness of the record on appeal and after that transmit the records to the CA together with the transcript of stenographic
notes of all of the witnesses presented, in 5 legible copies.

14.Section 13, part of the residual powers of the RTC. Prior to the transmittal o Notice of Appeal and Record on Appeal to the Court
of Appeals, the Trial court may dismiss motu proprio or upon motion the appeal made out of time or for non-payment of the docket
and lawful fees within the reglementary perion. But when the records on appeal were already transmitted to the CA, can you file a
motion to dismiss (because of nonpayment of the lawful fees within the reglementary period or made out of time) before the CA?
yes. Before the CA.

RULE 42 Petition For Review from RTC to CA AND RULE 43 Appeals from the Quasi Judicial Agencies to the CA

RULE 42 RULE 43
-Availed of in decisions of the RTC in the exercise of its -Availed of in cases of appeals from decisions of quasi-
appellate jurisdiction. judicial bodies enumerated therein. Rule 43, Sec 1
(Court of Tax Appeals, Civil Service Commission,
Central Board Assessment Appeals, SEC, Office of the
President, Land Registration Authority, Social Security
Commission, Civil Aeronautics Board, Bureau of
Patents, Trademark and Technology Transfer, National
Electrification Administration, Energy Regulatory
Board , National Communications Commission, DAR
under RA 6657, Government Service Insurance
System, Employees Compensation Commission, Phil.
Atomic Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and
Voluntary Arbitrators Authorized by Law.
-Includes decisions of the Office of the Ombudsman,
in Administrative Disciplinary Cases and decisions of
voluntary arbitrators.
Note: Decisions of the NLRC are also with the CA but
NOT under rule 43, but under rule 65 Petition for
Certiorari (ex. Case of illegal dismissal).
-May also be availed of if this is question of law,
question of fact, or mixed question of law and fact.
- Filing of the petition for review is also within 15 days
-May be availed of if this is question of law, question from receipt of the decision or from receipt of the
of fact, or mixed question of law and fact. denial of your motion for reconsideration or motion
-Filing of the petition for review is within 15 days from for new trial. (apply the Neypes Rule on FRESH
receipt of the decision or from receipt of the denial of PERIOD)
your motion for reconsideration or motion for new
trial. (apply the Neypes Rule on FRESH PERIOD)

NOTES:

1. Principle of Hierarchy of Courts - Before you resort to the SC, which is the Court of Last resort, file a petition first before the CA.
(42)
2. A motion for extension of time to file petition for review, may be filed before the CA, before the lapse of the original 15 day period.
Together with the payment of the required appeal and other lawful fees by way of postal money order (as to the amount, you better
pay more than what is required than less). No further extension is allowed unless for a compelling reason (discretionary upon the CA)
but not to exceed 15 days. (42 and 43)

4. As to form, both rules apply the same requirement. (42 and 43, the parties should be included but not the judge which rendered
the particular decision unlike in rule 65)

5. Your petition must always annex original copies of the questioned decisions or certified true copies of the decisions which should
be certified to by the clerk of court of that court which rendered the decision. (photocopy the original copy and do not certify it as a
faithful reproduction of the original but the one who shall certify that should be the clerk of court should certify that)

6. Include the decision of the 1st level court, if there is a motion for reconsideration, the order of the motion for reconsideration, the
decision of the 2nd level court, RTC, if there is a motion for reconsideration, motion for new trial you also have to include therein the
decision of the court in connection to your motion for recon or motion for new trial. If you want to, you can attach in the original
copy

7. Your petition in rule 42 and 43 must consist of 7 copies and you must signify which of this is the original, attached therewith the
original copies of the decisions of the 1st and 2nd level courts or the certified true copy of these decisions as certified by the clerk of
court of the Court which rendered the decision. (7 total copies, 1 is the original copy the other 6 may be a faithful reproduction).

8. Material Data Rule- the rule where you have to mention in your petition when the Judgment was rendered and when you have
received it so that the court will know if you have filed it within the reglementary period as provided for.

9. See to it that you show proof that you furnished copy of the petition to the Court and to the other party. Furnish copy with the
MTC, RTC and to the opposing council.

10. There must be a verification and certification of non-forum shopping, with IBP no. MCLE no. , although the court now would not
dismiss the petition for the absence of the MCLE no., the court in such case shall not punish the party for such instead the council
could be the subject of disciplinary action.

11. Attach in the petition the AFFIDAVIT of service, to attest that you served copies of the petition to the courts as well as the other
party. (copy furnished is NOT sufficient)

Failure to comply with any of these procedural requirements would be a valid ground to dismiss the petition in a minute
resolution.

12. If the court finds that your petition is meritorious, 1. unless it is intended for delay, 2. failed to comply with the required
procedural requirements, or 3. without merit, or 4. not substantial ( grounds for denial), the court will require the respondent to file
a comment not a motion to dismiss, within 10 days from receipt of the order. (DO NOT BE IN A HURRY TO FILE THE COMMENT
WITHIN 10 DAYS upon receipt of the copy of the petition, WAIT FOR THE ORDER OF THE CA REQUIRING YOU TO FILE A COMMENT)
Because the CA may dismiss the petition.

13. The comment should also be in 7 copies, and may also be extended although not mentioned in the provision of the law, in
practice, the extension may be allowed by the court based on justifiable reason.

14. If your petition for review under rule 42 and 43, is given due course, it will stay the execution or decision subject for the review,
unless it is a case for summary procedure, the CA or the law directs otherwise. This is another difference between Petition for
Certiorari under rule 65 which will not stay the decision not unless prayer for preliminary injunction or for the issuance of TRO is
granted otherwise the Judges would be held administratively liable.
15. After submission of the comment, the CA may also require the submission of a reply or even subject the case for oral argument
(like in sensational cases), depending on the case or may just require the parties to submit their respective memorandum then the
case may now be deemed submitted for decision of the court.

Rule 42: Petition for Review from the RTC to the CA& AND
Rule 43: Appeals from the Court of Tax Appeals and Quasi-Judicial agencies to the CA

Rule 42 is availed of in decisions of the Regional Trial Court in the exercise of its appellate Jurisdiction. Rule 43 is availed in cases of
appeals of decision of quasi-judicial bodies to include decisions of the Office of the Ombudsman in administrative disciplinary cases
plus decisions of voluntary arbitrators. You file case before ombudsman, administrative siya and you are not contented with the
decision and you go to CA by way of petition for certiorari under rule 65. Including I repeat, decisions of voluntary arbitration in Labor
cases likewise decisions of the office of the ombudsman in administrative cases involving disciplinary actions involving government
officials/employees. But decisions of NLRC to the CA are also with the CA but it is not under rule 43 but under rule 65, that is grave
abuse of discretion amounting to lack or excess of jurisdiction.

You notice, that if the appeal is on pure question of law, you resort to rule 45, petition for review on certiorari. But if you notice even
under rule 42 u can avail even if it only involves question of law, question of facts and both question of facts and law. Would it be
contrary now to our discussion? No, because this is justified by virtue of rules on hierarchy of court. That is to say, before you resort
to SC which is the last resort, dapat you avail yet of lower court.

That is the same with rule 43, it can also on pure question of law, questions of facts and mixed question of facts and law. But if you
are not contented with decision of CA you now go to SC by way of rule 45. That’s hierarchy of courts.

Period is the same with 42 and 43, 15 days from receipt of decision or from denial of motion for recon or motion for new trial
because we apply the Neypes rule on fresh period rule. Although, you can file a motion for extension before the CA and by paying
docket fee. No further extension is allowed unless for most compelling reason but not to exceed 15 days. These compelling reasons
are discretionary to the courts. Its extension only of 15 days file that to CA by attaching the appropriate appeal fees to be attached to
the motion.

Between 42 and 43, they are similar with the requirements as to petition for review. Take note that when you file petition for review
under these two rules, Don’t include the court which renders judgment, but if you file petition for review under rule 65, you include
the judge who render the decision and the parties involved.

(very important in the final exam) Your petition must always annex original copies of the questioned decisions or certifies true copies
of the decision which must certified true by the clerk of court of that court which rendered the decision. You must include decision
of the first level court if there is MR, the order regarding MR, the decision of the 2 nd level court you also have to include the decision
of the court in connection with MR or Motion for New Trial.

When you file in both 42 and 43, your petition must include 7 copies and you must signify which of them is the original to the CA.
The signifying of the original copy must be made by the clerk of court of the said court.

You must comply with material data rule which was explained last meeting. THE MATERIAL DATA RULE is the rule which you have to
mention when the judgment was rendered and when you receive so the court will know if you file it within the reglementary period
ad provided for by the rules. Next, see to it that you must show proof thatyou furnished copy of the petition to the court, although
the court need not be included as party you still have to furnish copy. You have to furnish copy to the MTC, to the RTC and of course
to the opposing party. Of course you know also that you must make a verification and non-forum shopping along with IBP OR no.,
your MCLE no.

In the next section, your failure to comply with following requirements and the failure to file appeal fees shall be a ground for
dismissal of your petition. Minute resolution lang your petition will be dismissed outrightly. Plus, you must also attach in your
petition the proof of service to attest that you have serve copies to the court as well as opposing party. There must be affidavit of
Service attached to the petition.

At the end of the day you have:

 Verification
 Certification of non-forum shopping
 Affidavit of service

all attached to your petition either in 42 or 43.

In rules 42,43 and 45 you need not include the court unlike in rule 65, but you still have furnish copy of the petition to the lower
court even though they are not parties.

If the court finds that your petition is meritorious not unless if it is only intended for delay. The Grounds for denial outrightly of the
petition:

 Delay
 Substantial
Together with non-compliance of the requirements of the law.

If the CA finds that the petition is with due course, it will require the respondent to submit a comment not a motion to dismiss
within 10 days from receipt of the order. Do not file a comment upon receiving the petition, you wait until the CA makes and order
requiring you to submit your comment because who knows the CA immediately dismiss the petition when it fails to comply with
requirements.

Can that be extended( 10days) of submission of the comment? Ans. In actual practice, they still grant extension, although the grant
is not expressly mentioned in the provision.

When your petition for review is given due course, will it stay the decision? Ans. Yes, it will, except if these are cases unde rules of
summary procedure or unless the court directs otherwise but the rulei s the filing of a petition for review will stay.

That is the difference under rule 65, it will not stay the decision not unless you get a TRO which Is issued by the court. You must
always include in your prayer a preliminary injunction or TRO. (2 major differences now, court not included,2, it will not stay decision)

There is an Admin. Circular that under rule 65, tapos the appellate court did not issue TRO, we have to proceed with the hearing of
the case otherwise the judge will be held administratively liable. I give you that when we reach 65.

You notice after submission of the comment, the CA sometimes requires the submission of reply but it depends upon their order. Not
unless this are very sensational cases, the CA has the option whether to call your petition an oral argument or just a submission of
the petition.

Rule 44: Ordinary Appealed Cases

Ordinary Appeals from decisions of RTC to Court of Appeals in the exercise of its original jurisdiction

 For ordinary appeal, file by means of notice of appeal and paying of court fees except in cases which require a record of appeal
which has an appeal period of not only 15 days but rather 30 days

 Once appeal is received by CA, records of the case must be transmitted to the CA. If records on appeal are not transmitted,
remedy is to file a motion before the court of origin for the clerk of court to transmit said record especially if your appeal period
is almost over, you are in a hurry and you are the one aggrieved.
 When records are now with the CA, its clerk of court will now require the appellant to file an appellants brief within 45 days
from receipt of the notice of the clerk of court.

 An appellants brief should be in 7 legible copies, printed mimeographed or typewritten, observing the efficient use of paper rule.
Aside from the facts it must contain an assignment of errors (most important! – these are what are considered by the appellate
court when it reviews your case) among others. Copy furnish the appellee 2 copies, attested to by an affidavit of service.

 Appellee also has the same time within which to submit an appellee’s brief in 7 copies.

 Appellants reply to appelle’s brief is optional. After which the appellate court will require the parties to submit their respective
memorandum.

 Failure to file appellants brief is a ground for dismissal of the appeal

Rule 45: Appeal by Certiorari to the Supreme Court

Petition for Review on Certiotari

Differences between Rule 45 and Rule 65

o Supreme Court here is acting as an appellate court in contrast to Rule 65 Petition for Certiorari where the court acts as if the
case was originally filed there following the hierarchy of courts

o Petition for review on Certiotari is usually limited to pure questions of law whereas in Rule 65 is based on the fact that the
court acted with grave abuse of discretion amounting to lack or excess of its jurisdiction

 Questions of Law – exists when the doubt or difference arises 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 the falsehood of alleged facts, or when
the query necessarily invites calibration of the whole evidence

o In Rule 45 petition for review on certiorari the court is not impleaded, in Rule 65 petition for certiorari the court is
impleaded.

o In Rule 45 petition for review on certiorari it stays the decision subject for review whereas in Rule 65 Petition for Certiorari it
does not stay the decision unless a temporary restraining order is issued

o A motion for reconsideration is not necessary before resorting to Rule 45 but in Rule 65 a prior resort to a motion for
reconsideration is required before resort to said rule is allowed except in given circumstances ( to give the court a chance to
correct its error)

o In Rule 45, 15 day period to file whereas in Rule 65, 60 day period

 This rule contemplates decisions of the Court of Appeals, Court of Tax Appeals, Sandiganbayan and Regional Trial Courts in the
exercise of its original jurisdiction (if appellate jurisdiction of RTC apply Rule 42, either for questions of law or fact or mixed)
(exception is for criminal cases decided by RTC where penalty is death or life imprisonment, appeal is not directly to the SC but
will go through CA first – done through ordinary appeal not petition for review)

 It is the appellate court which ultimately decides whether your petition is one of pure question of law or fact
 File petition in 18 copies within 15 days from receipt of judgment or from notice of denial of the motion for reconsideration or
new trial

 May file a motion for extension of time with the Supreme Court within the 15 day period and must pay the docket and other
lawful fees, show proof of service and always serve a copy of the motion to the opposing party and the court; extension of 30
days maximum (same with rule 42)

 Petition must contain

o Material data

o Original Copy of the assailed decision or the duplicate original copy which must be certified true copy only by the court
which rendered the decision

o Affidavit of Non Forum Shopping

o Affidavit of Service to prove that a copy of the petition was served to the opposing counsel and court involved

o Proof of identity (Any government I.D. , Community Tax Cert no longer allowed)

 Petition may be dismissed by the SC on these grounds: (Memorize! Same with 42, 43!)

o Failure to comply with the requisites

o Manifestly resorted to for the purpose of delay

o Appeal is not meritorious

o Questions raised therein are unsubstantial to require consideration

 In a petition for review on certiorari, they are only limited to questions of law because in this kind of petition the Supreme Court
should not disturb findings of fact by the trial court because the trial court is in the best position to observe the demeanour of
witnesses so they are generally respected. Exceptions include:

 The decision is based on speculations, surmises or conjectures

 Inference made is manifestly mistaken, absurd or impossible

 There is grave abuse of discretion in the appreciation of facts

 Judgment is based on a misapprehension of facts

 When findings of fact of the CA are conflicting

 When 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

 When CA manifestly overlooked certain relevant facts


 When findings of fact of the CA are contrary to those of the trial court

 Petition for review is not a matter of right but rather discretionary

 If petition is sufficient in form and substance the court may require the filing of a comment, reply, rejoinder, briefs and
memoranda as deemed necessary depending on the period provided by the Supreme Court after which the case is deemed
submitted.

i forgot lang to put emphasis, diba on rule 44. each appelant's brief which is filed, i forgot lang to put emphasis, except in certiorari,
prohibition, mandamus, quo warranto and habeas corpus cases, its not appelant's brief we must file

and according to a section in rule 44, it is supposed to be filed within the inextendible period of 30 days.

RULE 46: Original Cases

verona the second, 46 is applicatble to what instances... cases which are originally filed before the court of appeals. diba you can
recall when we had our mga first few meetings of the semester where i gave you the jurisdiction of each of these courts, from the
supreme court down to the first level courts, tapos i made a summary x x x whether its exclusive, concurrent. so these one refers to
cases which are within the original jurisdiction of the court of appeals. meaning to say you want to go to the court of appeals right
away based on its original jurisdiction, then you have to comply with the rules in rule 46.

the law enumerates cases involving what, just among others, not included, certiorari, prohibition, mandamus and quo warranto.
because anyway daw, annulments of judgements which are also within the jurisdiction of the court od appeals, if this is from the rtc,
governed by rule 47

certiorari, prohibition and mandamus are governed by rule 65 but it makes reference to rule 46.

how do you do it? parang the same pa rin no? the same with rules 42, 43 and 45 when you file a petition. how many copies? it is
seven legible copies. and then what should be included in the petition? the matters constituting your cause of action. what else? the
material data rule when you receive the decision. next? service of copy of your petition to the adverse party. next? certification of
non-forum shopping. payment of fees as required by the rules along with the other requirements that we have discussed in 42, 43
and 45. because my dear students if you talk about filing of a petition, whether it is original, whether it is appellate, the rule requires
the same requirement and you notice likewise that failure to comply with any of these particular requirements shall also be a ground
for the immediate dismissal of the petition. clear na tayo on that. that's just very very easy.

now is it correct ba that the moment the petition is filed with the court of appeals tapos it is a requirement that you must furnish a
copy of your petition to the adverse party that automatically the court of appeals acquires jurisdiction over the person of the
respondent? i'm sorry your refer the parties there as petitioner and respondent. when you talk about not a complaint in all rules, if it
talks about the filing of a petition, the parties there are termed petitioner and respondent. but if you talk about a complaint, the
parties there will be plaintiff and defendant. this is the same rule all through out. is it correct? that the moment daw the petition is
filed, even presuming that the petition complied with the requirements of the rules that the court now automatically acquires
jurisdiction over the person of the respondent? no. so when will the court, i'm referring to the court of appeals, acquires jurisdiction
over the person of the respondent xxx 37:54

what is the reason why is it that the court daw only acquires jurisdiction over the person of the respondent not unless he voluntarily
submits himself to the jurisdiction of the court of appeals that the court only acquires jurisdiction over him upon the sending of that
notice of the initial action which is undertaken by the court of appeals. what is the rationale of that particular rule? can you give me
the rationale? because at the end of the day, you have to file talaga a copy to the respondent. but yet that does not mean to say that
the court acquires jurisdiction over his person because you have to wait for the initial action on the part of the court of appeals. like
what i said and the rule said, it is only on the sending of the notice on the initial action of the court of appeals is made where the
court acquires jurisdiction over the person of the respondent. what is the rationale and the justification for that particular rule? not
unless, like what the law says, the respondent voluntarily submits himself to the jurisdiction of the court of appeals. in your own
opinion, mr. verona alfred the second? is it because there might be an instance where the court of appeals outrightly dismiss the
petition? that is the reason. because there can be an instance where the court of appeals if it does not find a merit in the petition, or
if it does not comply with the basic procedural requirements set forth in section two of rule 46, the court of appeals might dismiss
the petition right away. but if it will not, what will happen? what is the next step? yeah it did not dismis because it found merit in the
petition. what is the next step now?
verona: the court will conduct a hearing...
sir: yeah of course, an order there will be issued requiring the respondent to file his comment upon the submission of all the required
documents then the court of appeals may conduct a hearing and make what? in the conduct of the hearing. so remember this is a
case originally filed before the court of appeals. yeah, it may conduct a hearing on the petition. can the court of appeals delegate the
hearing? is it allowable in connection with this particular rule?
verona: the court of appeals may delegate the ..
sir: evidence, to...
verona: to any member of the court...
sir: of the court, or?
verona: rtc.
sir: to the regional trial court. pwede yan. that is very well enstrenched in the provision of this particular rule. so far that is the one
that you have to remember in connection with this concept. remember lang ha the more important ones there is when will the court
of appeals acquire jurisdiction over the person of the respondent. after hearing then submission of documents xxx

RULE 47: Annulment of Judgments or Final Orders and Resolutions AND


RULE 48: Preliminary Conference

Forty.. ito is the most important discussion. forty seven. ito talaga, very very important. gimenez.

xxx this the most important rule talaga. like what i said ha, even if i might not ask questions pertaining to rule 46 but you still have to
read it of course i just have to say but, what is important for me tonight is rule 47. and this will be on annulment of judgements of
the rtc. where will you file it?

gimenez: court of appeals.


sir: court of appeals. what about if it is annulment of judgement of a first level court?
gimenez: the rtc.
sir: ok. wherein that court is within its territorial jurisdiction. the same procedures pa rin ha. whether it is annulment of judgement of
first level court to be filed with the rtc or annulment of judgement of an rtc to the court of appeals. the last section of rule 47 is very
clear. it adopts also the same procedures. ok so clear. but there's a limit there. if you want daw to file an annulment of judgement,
let's say for example, of a decision of an rtc to the court of appeals, is there a limit there? mrs. gimenez? xxx 31:30 that limitation
there, that's why you must prove it before the court of appeals so that your petition will be given due course. i'm not yet talking
about the grounds ha and when to file the same. i'm still talking about, is there a limitation in so far as the filing of an annulment of
judgement. particularly of the regional trial court judgement to the court of appeals? would you agree with me that it should have
been raised either appeal, petition for relief of judgement. because if this xxx30:43 then annulment of judgement could not be
resorted to as a last resort. am i correct on that particular point? yet there's a rule there no? kasi you cannot just ano eh, you cannot
just go right away to the court of appeals and say xxx30:29 maybe because the grounds could have been, your proper remedy could
have been. diba? appeal could have been filing for a petition for a relief of judgement. because this is an extraordinary remedy so to
speak. you have to prove no, that this could not have been part of your appeal, this could not have been part of your petition for
relief of judgement. because if you did not appeal, you did not file a petition for relief of judgement due to the fault of the person
concerned, i doubt if the annulment of judgement will be granted by the court of appeals. diba that's the provision there?
gimenez: section 1.
sir: yes (giminez reading ... inaudible) correct. without fault on the part of the party concerned. kasi for example if it is due to the
negligence of his counsel, the counsel failed to appeal, the counsel failed to file a petition for relief from judgement, i doubt if the
annulment will be given due course by the court of appeals. diba the law is very clear, through no fault of the person concerned.
please, that's the limitation, when you become lawyers, as far as the filing of an annulment of judgement, because this is an
extraordinary remedy because under the law dapat your [appeal] diba? tapos if you were deprived of the right to appeal, you file a
petition for relief of judgement. but your lawyer did not opt to do all of this, tapos he resorted to save himself, he opted for the filing
of an annulment of judgement under rule 47, tapos purely, it was the fault of the lawyer. well, i doubt if that will pass within the
provision of section 1 of rule 47. because remember, mistake of lawyer is mistake of counsel. negligence of lawyer is negligence daw
of client. not unless this one case [picc] v. tiongco where the lawyer was so irresponsible that he deprived the client of the
substantive right due her. parang just a little exception to that particular rule. so please take note of the word no fault of the party
[inaudible]. that's very clear in section 1 of rule 47.

so second, if you eant to file an annulment of judgements, whether it is first level to the rtc, rtc to the court of appeals, i mentioned
this already before, there are only two grounds. number 1?

gimenez: lack of jurisdiction over the defending party or subject matter. then next is extrinsic or collateral.
sir: ok there are only two grounds ha? lack of jurisdiction over the subject matter or over the person of the respondent. then extrinsic
or collateral fraud. nothing more, nothing less. i will just check on miss gimenez again, there is no question about lack of jurisdiction
because that is the easiest ground so far. and you already know whether the court has jurisdiction over the particular case so no
more problem with that. you already know whether the court acquires jurisdiction over the subject matter of the case and when the
court acquires jurisdiction over the person of the respondent. my question now is, what you said, the second ground is extrinsic
fraud or collateral fraud, not intrinsic fraud. what is again extrinsic fraud? which if i'm not mistaken, we have discussed in one of the
rules before the midterm examinations?

gimenez: it is a kind of fraud which is not revealed or deliberately suppressed [inaudible]

sir: simply put, it is a fraud which prevented the party from fairly presenting his case. that is the easiest definition. diba i told you that
before. it is a fraud i reapeat, which prevented the party concerned from fairly presenting his case before the court. that is simply
easier to memorize the concept of what is extrinsic or collateral fraud. i repeat, that is the only ground, not intrinsic fraud. i repeat
for the last time, just to make it easier for you to remember, extrinsic or collateral fraud is a kind of fraud which prevented the party
concerned from fairly presenting his case before the court. along with lack of jurisdiction, those are the only two grounds allowable
for the annulment of judgements. be it first level to the stc or rtc to the court of appeals. ok. when would you file the petition to
annul the judgement? that's the third question. second question, one is what are the grounds, second, the period within which to file
the petition to annul the judgement?

gimenez: if it is due to extrinsic fraud...


sir: and that will be within?
gimenez: four years sir.
sir: within four years...
gimenez: from discovery.
sir: ok. that's easier to remember. if it is based on extrinsic or collateral fraud, you file it within four years from the discovery of the
fraud. what about if this is based on lack of jurisdiction?
gimenez: before it is barred by latches.
sir: before it is barred by latches or estoppel. the latches here is more or less daw... i'm sorry, the estoppel is in the context of what
kind of estoppel according to regalado? estoppel by latches. you have taken up siguro, in some of your subjects no? the concept of
estoppel and likewise latches... diba you have a subject i think in the first year...

what is the difference between latches and estoppel? i don't want to make a conclusion no? kasi the law is not very specific. the law
only says, before it is barred by latches or by estoppel... unlike in extrinsic fraud when the law specifically mentions within four years
from the discovery of the fraud. so latches means... actually, the other word for that in english is delay no?

gimenez: yes, inexcusable delay.


sir: yeah, inexcusable delay. tapos estoppel?
gimenez: ahhh.
sir: failure to prosecute or to file for unreasonable length of time. is that more or less the context of the ...
gimenez: failure to do something which should be done.
sir: yeah, failure to do something that you are supposed to do. you have taken this up. so that is the concept of latches and likewise
estoppel.

dapat part of your obligations and contracts will be the concept of estoppel. but this latches and estoppel are always intertwined no?
this would always go together. because latches, i repeat, and estoppel is always intertwined. at the end of the day, its unreasonable
delay that is the easiest way if you want to remember ... and you do not get a zero in the brain damaging final examination, then i will
ask you what is delay, what is estoppel then at most you can say latches is unreasonable delay. ok. clear na tayo on that particular
point.

you have the two grounds now, missis gimenez, you know the period now, what should you do if you want to file an annulment of
judgement? of the rtc before the court of appeals, what should be done?

giminez: you file a petition...


sir: yeah a petition in how many copies?
gimenez: 7 copies.
sir: 7 copies. and for the court of appeals what are the content of the petition? the same again. like what i said lang, only one
memory work. from 42, 43, 45, 46, 47 like what i said you talk about petition the requirements are all the same. so i will not reiterate
that already. take not of those. the same requirements upto the requirement on certification of non-forum shopping. how many
copies?
gimenez: 7 copies.
sir: and then you have attach diba, the duplicate, a legible duplicate original and then if you don't like, a certified true copy to be
done by the clerk of court or any employee of that particular court which rendered the judgement. so you know these already my
dear students. ok? because again, failure to comply with these particular requirements is a ground for the dismissal of the petition. if
the court of appeals finds merit in your petition for annulment of judgement based upon the allegations in your petition, what
should be done by the court?
gimenez: if the court finds merit, it will be given due course.
sir: yeah, and then because it will be given due course, what is the next step that should be done by the court.
gimenez: it should be served summons.
sir: ok. because this is a case originally filed, there has to be service of summons no, on the respondent mentioned in the petition. of
course if the law says service of summons, it has always to accompany the petition itself. is there a rule there on how many days
should the answer be filed by the respondent? could we find it there? there is none no? it is discretionary, at the end of the day. pero
i notice talaga, the court will just give you lang 10 days. that's what the rule is. always 10 days yan. although usually, the rule is mga
ano lang, mga 15 days, but in the court of appeals it is always 10. when it does not mention of any specific period within which to file
the answer, because there is service of summons here. by the way missis gimenez i forgot, can annulment of judgement be resorted
to even if the decision was already executed by the winning party?
gimenez: yes sir.
sir: yeah it can be done. it can be done. whether the judgement subject of the annulment of judgement has been executed or not yet
executed, it does not matter. of course, as long as you filed the petition within the period of four years for extrinsic and before it is
barred by latches or estoppel. upon receipt of the answer of the respondent, what is the next step missis gimenez to be done by the
court of appeals?

how should an annulment of judgement be treated?


gimenez: should the trial be necessary, the reception...
sir: ah ah. my question is, how should an annulment of judgement be treated by the court of appeals? like what?
gimenez: an ordinary civil case.
sir: that's why upon the receipt of all the pleadings required, like answer, like reply which is being optional, the court of appeals may
conduct trial. and the trial can be done by whom according to that particular provision of law?
gimenez: should the trial be necessary, the reception of evidence may be referred to a member of the court or a judge of the regional
tribunal.
sir: i have one case like this before, before i became a member of the judiciary. yeah, the court of appeals in a petition for annulment
of judgement referred the case to an rtc of tacloban city. and it was the rtc of tacloban city who actually conducted the hearing of the
case. because, like what i said annulment of judgement shall be treated as if it is an ordinary civil case. more often than not talaga, its
not just the member of the court who would actually hear it but they would always delegate the matter to a regional trial court
who's actually task to conduct a hearing in so far as the petition is concerned.

what is the effect, missis gimenez, last for you, if.. no problem, if it is denied. what about if upon after hearing the court of appeals is
satisfied that indeed there is a ground to grant the relief prayed for what will happen here?
gimenez: if the ground is due to lack of jurisdiction, the court...
sir: both ano, both, whether extrinsic fraud or lack of jurisdiction, the judgement is set aside, tama? the basic difference lies only on
whether there has to be refiling or non-refiling depending now on what ground was resorted to. you are now correct on that, when it
is based on lack of jurisdiction, what will happen if the judgement is set caside by the court of appeals?
gimenez: ahhm, may refile...
sir: yeah! ... of course you have no choice no? the judgement is set aside and then the winning party has to refile the case now within
the court of proper jurisdiction. that's very easy. what about if the ground is based on extrinsic fraud, what will happen?
gimenez: if it is due to justifiable grounds...
sir: no need to refile it, but rather, it will be remanded again to the court which rendered the judgement as if a timely motion for new
trial was filed. thank you so much missis gimenez. that is the effect ha? pag lack of juri... both whether on what ground set aside.
pero pag lack of jurisdiction, you have no choice but to refile the case now on the court of proper jurisdiction. but if this is based on
extrinsic fraud, actually, the court will remand the case to the court which rendered the judgement. and for the court to try again the
case as if a motion for new trial was actually filed.

i told you earlier, yodico jannus, that the filing of an annulment of judgement does not matter whether the judgement sought to be
annuled, diba, miss del castillo, has been executed or not yet executed pero actually dapat, if the case is not yet executed, when you
file annulment of judgement and you want to prevent execution , dapat you must also pray for the issuance for a temporary
restraining order. ha? although it is not mentioned in one of the rules, you have to do that. now when you become lawyers, you want
to impress your client no? file annulment of judgement no execution yet, ask for the issuance of a temporary restraining order to
prevent the execution of the judgement. under our rules of court, if the temporary restraining order is issued by the court of appeals,
it is good for 60 days. you will learn that when you get into the special civil actions , 60 days siya. in our rtc lang, 20 lang the most
pero the supreme court is the best, no period. until and unless the supreme court reconsiders it. pero court of appeals 60 days lang.
ok? what will happen, kasi yung 1 month, diba annulment of judgement case, but a judgement was already executed so what is the
effect of this as far as the executed judgement is concerned?
yodico: [inaudible]
sir: i repeat, what will happen, you won, the judgement was annuled by the court of appeals, however, that judgement was already
executed by the rtc which rendered the judgement. like what i told you earlier, it doesn't matter, whether it has been executed or not
as long as it is well within the prescriptive period you may file annulment of judgement. pero take note of the section 1, no fault,
that is the limitation there.
yodico: [inaudible]
sir: i cannot hear your voice mr. yodico jannus, make it louder.
jannus: [inaudible]
sir: the court can make the appropriate resolution. what about if restitution cannot be made because this is a case involving a parcel
of land tapos the land was already sold to a third person. so how can there be restitution now? diba? and that will happen in reality
because remember four years ang extrinsic fraud. it happens there. so what will happen? compensation according to... there is a case
there, you get that case for our discussion tomorrow ha? you know there is a case mentioned by ano.. appropriate compensation
based on the case of [co duqueta]9:09....
and what is that particular compensation here which is mentioned in that particular case if it is [inaudible - 9:00] ... the property pala
subject of the case is already sold to a third person who is considered an innocent purchaser for value. so the says, allows
compensation as to how much is the compensation, that case there will give us. we have to get that case for tomorrow but we will
still continue tonight subject to that particular case...

i repeat ha if it has been executed already, the court may order restitution, but if restitution is not possible, the court may order
compensation. as to how much is the compensation, that is based on that particular case cited by the book of regalado.

this preliminary conference thing is talaga part of the law on speedy trial. before a pretrial conference is conducted, we conduct first
a preliminary conference. and usually, the preliminary conference is done before the branch clerk of court. pero ako, i don't do that. i
do that together kasi my branch clerk of court is lazy. blah blah blah.

the purpose of preliminary conference is actually mge possibility of settlement and more often than not, during preliminary
conference, this is where the markings is done, including proposed stipulation of facts [inaudible]...

ako i would apply this. in cases however, where the case involves voluminous documents ... i will not do that. i will delegate that to
the branch clerk of court. [inaudible] then after that, it goes to the court for pretrial. [inaudible]

but like what i said, sir what will happen if i forgot daw diba... some other exhibits during preliminary conference can you still do that
with the pretrial? yes. you can still do that. or you forgot to list one witness during precon, can you still do that during pretrial? yes.
that is still allowed by the law on speedy trial. and you notice this can be done not only by the rtc, but also by the court of appeals.
but usually a preliminary conference is done before the branch clerk of court.

that's what we have noticed no? instead of disposing the case right away, it will delay. because sometimes lawyer will just call the
clerk of court, can you just postpone our preliminary conference because we are so busy. postponed na naman. but that will not
happen in court. but we have no choice because that is part and parcel of the law on speedy trial in civil cases. even in criminal cases
there is also preliminary conference but like what i said, i do that together na in one instance, precon and pretrial together.

RULE 49
ORAL ARGUMENT

In the last rule, often times before the SC and CA, particularly in the CA because it talks about oral arguments. When you file a
motion of appeal before CA, you need not actually place there the name, whether the motion should be heard (?) because it is for
the CA to determine whether (1:03). But you still have to place there, in compliance of course with receptions of the rule on the
motions. But as to specific thing, you need place that in the motion, because anyway it’s discretionary on the part of CA whether to
accept the motion. No need unless otherwise required. (SEE SEC. 3)

RULE 50
DISMISSAL OF APPEAL
Grounds for dismissal of a motion: (SEC.1)

1. Failure of the record on appeal to show on it’s a face that the appeal was taken within the period fixed by these rules
2. Failure to file the notice of appeal or the record on appeal within the period prescribed by these rules
3. Failure of appellant to pay the docket and other lawful fees
4. Unauthorized alterations, omissions, or additions in the approved record of appeal
5. Failure of appellant to serve and file the required number of copies of his brief or memorandum within the time provided
6. Absence of specific assignment of errors in the appellant’s brief or of page references to the record
7. Failure of appellant to take necessary steps for the correction or completion of the record within the time limited by the
court in its order
8. Failure of the appellant to appear at the preliminary conference or to comply with the orders, circulars or directives of
the court without justifiable cause
9. The fact that the order or judgment appealed is not appealable

You must specifically raise your assignment of errors because this is where the decision of the appellate court is taken into account.

Before the 1997 Rules of Civil Procedure, the remedy was wrong. For example, if this was a decision of the RTC, in its original
jurisdiction – appeal; if it was in it was in its appellate jurisdiction – petition for review under Rule 42. Before, if you appeal that, it
could not be dismissed, but rather it shall be referred to. But now, if your remedy is wrong, like for example, Sec. 2 is very clear that
your appeal will be dismissed by the RTC.

You can withdraw your appeal anytime as a matter of right before the submission of the appellant’s brief. However, you can still
dismiss your appeal even after the submission of appellant’s brief but is already discretionary on the part of the court.

RULE 51
JUDGMENT
When is a case deemed submitted for judgment? It depends whether it resorted to ordinary appeal or petition for review or in
original actions in the CA. We are talking about judgment where the case is already on appeal before the CA.

In ordinary appeals, when no hearing on the merits – upon the filing of the last pleading and usually the last pleading is the
submission of your respective memorandum.

Hearing is held – upon termination or upon the filing of last pleading or memorandum as may be required or permitted to be filed by
the court, or expiration of its filing.

Just take note of the other sections nalang.

The unanimous vote of 3 justices shall be required for the pronouncement for the judgment. However, if the 3 did not reach the
unanimous vote, the clerk shall enter the vote of the dissenting justice on the record. Thereafter, the chairman of that particular
division shall refer the case together with the deliberation, to the presiding justice, who shall designate 2 justices chosen by raffle
from among all the other members of the court to sit temporarily with them, forming a special division of 5 justices.

SEC. 10: Entry of judgment and final decision:

If no appeal or motion for new trial or reconsideration is filed within the time provided, the judgment or final resolution shall be
entered by the clerk in the book of entries of judgments. The date when the judgment becomes executory shall be deemed as date
of entry. The record shall contain the dispositive part of the judgment and shall be signed by the clerk, with a certificate that such
judgment has become final and executory.

Before we can move for execution of judgment, you have to wait for the issuance of entry of judgment. In Rule 39, it does not
automatically mean that just because the appeal earlier has already lapsed – I’m talking about CA: you waited for 15 days but no
appeal or petition was filed to the SC, for a petition for certiorari / review on certiorari – and then you immediately filed a motion for
execution – that is not yet proper. Why? Because the finality of the judgment depends or takes place from the time when the
judgment is entered into in the book of judgments. That’s why before you file a motion for execution to execute a particular
judgment, see to it that the court of appeals has already issued an entry of judgment. Because in the entry of judgment, it will
contain the dispositive portion of the decision and it will also specify therein that the decision has already become final and
executory. Judgment or final resolution becomes executory as of the day of its entry.

SEC. 11: EXECUTION OF JUDGMENT:

Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, you can file it
anytime.

However if it is not, the motion for execution may only be filed in the proper court after its entry.

In cases of original actions in the CA, the writ of execution shall be accompanied by a certified true copy of the entry of judgment and
addressed to any appropriate officer for its enforcement. However, in appeal cases, the motion for execution should only be filed in
the court which rendered the decision. That’s why sometimes, although not required, you have to wait until the records of the case
from the CA will be transmitted to the appropriate court concerned – but not always mandatory. In rule 39, even if the records of the
case are not yet forwarded to the court of origin, you can still file a motion for execution. What you do is attach the certified true
copy of the decision including entry of judgment.

What we usually do is wait until all records are transmitted from the appellate court. If the records are now transmitted, then we will
now resolve for a motion of execution – to avoid errors.

Where can you file a motion for execution pending appeal?

ANS: You can file it before RTC. If before the records are forwarded to the appellate court. But if the record has already been
transmitted to the appellate court, the motion for execution pending appeal shall be filed in that particular court. According to the
last paragraph, where the motion for execution pending appeal, is filed in the CA at the time that it is in session of the original
record for the record on appeal, the resolution shall be transmitted to the lower court from where it originated together with the
certified true copy of the judgment or final order to be executed with the proper directive for that court of origin to issue the
proper writ of execution for its enforcement.

By virtue of this particular provision, the CA may grant your motion for execution pending appeal, but it cannot issue a writ of
execution because the latter shall be issued the court of origin.

RESIDUAL JURISDICTION: even if the court has already approved the appeal, but the records of the case were not yet transmitted to
the appellate court, the court can still entertain motions for execution pending appeal.

There is no oral argument for the 1st and 2nd level courts. These are only for SC and CA. These are not mandatory, these are only
optional. Only in very sensational cases, will the CA and SC call for oral arguments. But for ordinary cases, they need not have oral
arguments. Upon submission of last pleading, the case is already submitted for decision of CA or SC.

RULE 52

MOTION FOR RECONSIDERATION

Rule 52 is Motion for Reconsideration before the Court of Appeals. The same rule, you can file a motion for Reconsideration
from whatever the decision of the C.A. within 15 days from receipt of the decision. And diba I told you already na the same for First
Level, Second Level and the C.A., only ONE motion for reconsideration lang is allowed ha EXCEPT lang SUPREME COURT.
 If you want to file a SECOND MOTION FOR RECONSIDERATION before the SC you must:

1. file a MOTION FOR LEAVE to allow the filing of the same

2. attach the Second Motion for Reconsideration

Kami, before the RTC and First Level Courts, we are only given 30 days to resolve Motion for Reconsiderations from the time
the court issues an order that the case is already submitted for decision but in C.A., they are given 90 days. While the Motion for
Recon in pending, the decision is STAYED until finality of judgment, unless the C.A. directs otherwise.

RULE 53

NEW TRIAL

Time of filing in RTC and MTC is within 15 days from notice of Judgment but before the C.A., at any time after the appeal
from the lower court has been perfected and before the C.A. loses jurisdiction over the case . Unlike in the RTC, rule 53 there is only
ONE GROUND ALLOWED and that is Newly Discovered Evidence.

 There are 3 requisites of Newly Discovered Evidence.

1) Must have been discovered after the trial

2) Could not have been discovered or produced at trial despite due diligence

3) If presented, would probably alter the result of the action

 The Motion must contain:

1) An Affidavit of Merit, showing the facts constituting the grounds and;

2) The Newly Discovered Evidence.

In your book on Regalado, pls check on the distinctions between Rules 52 and 53 in relation to rule 45 on appeals on
certiorari from the C.A. to the S.C.

 Distinctions:

1) Motion for Recon may be filed within 15 days from notice of Judgment or Final Resolution of CA

2) Motion for New Trial may be filed at any time after perfection of the appeal from RTC & up to but within 15 days
from service of copy of Judgment or Final Resolution of CA

3) In rule 45, it may also be filed within 15 days from notice of judgment of CA, unless party files either of the
aforementioned two motions

4) Accordingly, within the 15 day period, aggrieved party may file Motion for Recon or New Trial, if proper, or petition
for Review on Certiorari to the SC. The said 2 Motions shall be filed before the CA and the Petition under rule 45
before the SC, with copies served on the adverse party

5) If the Motion for Recon or New Trial was seasonably filed in CA, the period to appeal is set aside and shall have
another 15 days from receipt of resolution denying the same within which to appeal by certiorari. In both
instances, the rule on the effects of Pro Forma motions shall be observed

6) If party desires to proceed directly with an appeal on certiorari, he should comply with the requirements or rule 45
and file his petition within 15 days, or a motion to extension of that period upon compliance with sec 2, rule
portipayb. The party whose motion was denied and who desires to appeal to the SC may also move for such
extension upon the same terms, preparatory to and for purposes of the filing of his petition.

Well, motions for reconsideration is 15 days, no problem with that. Motion for New Trial it is not 15 days because the law
says that you can file that at any time after the RTC has perfected the appeal and up to but within 15 days from service of copy of the
judgment or final resolution of the CA that’s very clear take note of that because in the RTC, miss Ting, the same lang diba? Its 15
days and you have the option whether you will file a motion for recon or new trial but here there is a difference between the filing of
the motions for recon or new trial before the CA. Then, in petition for review on certiorari you also file within the 15 day period from
notice of judgment unless party files the aforementioned motions. You have an option di ba? Remember, if you receive a decision of
the CA you have an option either to file motion for recon or new trial or you can go directly to the CA and file Petition for certiorari
under rule 45.

The same also in Motion for New Trial, it shall be resolved within 90 days. Take note nalang. Procedure is the same of that of
the RTC. Take note nalang.

RULE 54

INTERNAL BUSINESS

Internal Business, take note nalang my dear students. But you notice noh, that in so far as Internal Business is concerned, its
actually how cases must be decided. Di ba the CA may sit en banc. In cases where it is en banc, majority daw of the members of the
court shall constitute a quorum. 3 members shall constitute the quorum for a session of a division. Tapos, the affirmative votes of the
majority of the members present shall be necessary to pass the resolution of the court en banc. Parehas parin but for division, the
Law requires the votes of 3 members of division. Remember, they will choose 2 more justices diba? Para they will make it 5 to form a
new special division. Diba I told you this already? It requires 3 justices to vote with the division.

RULE 55

PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS

Then publications of judgments take note nalang. Diba more on tayo sa SCRA diba? But we also have here what we call
Court of Appeals Reports. Have you seen a SCAD? If you see SCAD, those are decisions of the CA.

PRODEDURE IN THE SUPREME COURT

RULE 56

A. ORIGINAL CASES

Diba we also have original cases before the CA remember that. Excluded lang Habeas Corpus. In the SC pwede. Certiorari,
the one that I have also told you before, can you recall? when we started with our subject? diba I told you mga Exclusive Original
jurisdiction, concurrent jurisdiction, this are still the same noh? Here very clear, pwede ma file before the SC certiorari, prohibition,
mandamus quo warranto, pwede. Habeas corpus, but that is out na diba with the CA. disciplinary proceedings against the members
of the judiciary and attorneys because remember if you want to file a suspension or disbarment proceedings against lawyers you can
file that diba directly before the SC in your legal ethics. If you want to file an administrative complaint against a judge, you also have
to file that before the SC including cases involving Ambassador or other public Ministers and Consuls this are those cases which can
originally be filed before the SC my dear students. Ok take note, certioreray (certiorari), prohibition, mandamus, quo warranto,
habeas corpus, disciplinary proceedings against judges, not only judges but also members of the judiciary to include CA justices,
Sandiganbayan justices, if you want to file a complaint against any one of us then that can be before the SC or if you want to file a
case against a lawyer for suspension or disbarment you can also go to the SC or you have another option diba you notice in your legal
ethics, file that before the IBP and at the end of the day, the decision of the IBP is subject to the decision also of the SC ok. Then
cases involving Ambassadors, Public Ministers and Consuls can also be filed before the SC. Ok?

All of this cases if you want to file, 18 copies. 18 clear and legible copies which shall be filed together with a proof of service
on all adverse parties. Ok? However, for members of the judiciary shall be govern by the laws, and for lawyers, of course, you have
the provisions of the Rules of Court in which you have taken in your legal ethics tama ba ako? Ok so please take note of that ok? Now
mode of appeal, as a rule lang you already know that, petition for review on certiorari under rule 45 but it is a mode of appeal, even
before the RTC in its original jurisdiction to the SC, still a petition for review on certiorari but only on pure question of Law kasi this is
RTC in its appellate jurisdiction, its not ha, SC but it is CA under rule 42 pero if this is pure questions of Law, from the decision of the
RTC in the exercise of its original jurisdiction, you are allowed to go to the SC directly for a petition for review on certiorari under rule
45 but if this is a decision of the CA in the exercise of its appellate jurisdiction whether question of Law or Facts or mixed question of
facts and law, you know that already, you go to the CA on petition for review under rule 42. There is an exception here, except in
Criminal Cases where the penalty impose is Death, Reclusion Perpetua or Life imprisonment, take note this has been taken already
by the case of PEOPLE vs MATEO because appeal now will not be before the SC but actually before the CA. But! If you are not
contented with the decision of the CA, you can still go to the SC now not on appeal but for a petition for review on certiorari under
Rule 45. If you go to Sec 3 of Rule 56, diba, all would always be by virtue of 45 but there is an exception here, cases punishable by
death xxx kasi before naman diba, automatic appeal man tayo with the SC but this is not the rule anymore because according to the
case of People vs Mateo in cases of decisions of the RTC where the penalty is death xxx automatic appeal goes to the CA and what
you will do lang is file a notice of appeal however if you are still not contented of the decision of the CA then you can go now to the
SC via rule 45 already. The rationale, remember, why is it that this is none of the SC is para to give an ample opportunity talaga to
check, study the case thoroughly because the penalty is death or perpetua unlike imprisonment, rather than go to the SC, remember
the SC is not a applier of facts. The SC is only limited to questions of Law. Atleast if that is brought to the CA, there is that rationale in
the case of Mateo, at least the facts of the case can likewise be studied thoroughly and carefully be assessed by the CA.

Procedures, take note nalang. Then grounds for dismissal of appeal, its in section 5, basically pare-pareho for grounds for
dismissal of an appeal before the CA, failure to take an appeal within the reglementary period, lack of merits, failure to pay the
requisite docket fee, xxx and error in the choice of mode of appeal kasi if in the CA, if your mode is wrong dismiss kaagad, diba before
if your remedy is wrong it will not be dismissed but now it will be dismissed immediately, that’s reiterated by Sec 6.

Then Section 7, when court en banc is equally divided in option or the necessary majority cannot be had, the case shall again
be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed;
in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion
shall be denied.

Rule 57
Attachment
Attachment is of 3 stages
1. Order for the issuance of the writ of preliminary attachment
2. Issuance of the writ
3. Implementation of the writ (by the sheriff)
-requires that the court has to acquire jurisdiction over the person of the respondent/defendant; such jurisdiction
not required in the 1st and 2nd stages.
Reason: it is only when the writ is already implemented by the sheriff (in the implementation of the writ), where
the summons should be served by the sheriff contemporaneously, together w/ it is the complaint, and it must also
include the order granting the writ, the writ of course, and the bond.

Service of summons cannot be done in the first two stages (only on the 3 rd stage), because the by doing so, the respondent might be
able to abscond with his properties.
It is preliminary because it can be part and parcel of the prayer.

When can preliminary attachment be sought/issued? (period)


= at the commencement or at any stage of the complaint before entry of judgement
=cannot be after entry of judgement
Reason: PA can only be availed of at any time before entry of judgement because when there is already entry of
judgement, the appropriate remedy is execution. (file a motion for execution)

PA is for security purposes.


Grounds for the issuance of a writ of PA
The writ of PI may be issued in the ff cases: (Sec. 1, Rule 57-memorize)
1. Actions for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict
against a party who is about to depart from the Philippines with intent to defraud his creditors
2. Actions for money or property embezzled or fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or
by other person in a fiduciary capacity, or for a willful violation of duty
3. Actions to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or an authorized person
4. Actions against a party who has been guilty of a fraud in contracting the debt or incurring or
performance the obligation upon which the action is brought
5. Actions against a party who has removed or disposed of his property, or is about to do so, with
intent to defraud his creditors
6. Actions against non-residents not found in the Philippines, or person upon whom summons may be
served by publication

If your case is not one of the 6 enumerated, you cannot ask for the issuance of a writ of PA
Common to all of those grounds enumerated:
= there is intent on the part of the defendant to defraud creditors, or with intent to abscond
That is why you can ask for preliminary attachment as a sort of security for whatever judgement which might be rendered in
your favor, at least you can run after these particular properties which are attached.

This can be part and parcel of the complaint, and this should be. So when you file a complaint, for example for collection of sum of
money, you can ask there, a prayer for the issuance of a writ of PA.

So that the prayer for the issuance of a writ of PA will be granted by the court, it must comply with the following requirements:
1. Cause of action must be stated in an affidavit.
Contents of the affidavit: (memorize)
1. The facts which constitute the cause of action
2. The fact that it is one of those enumerated and allowed by Sec.1, Rule 57
3. That there is no sufficient security, or no other means to fulfil the obligation.
Judge S: Could I issue a writ of PA in a case where the debt is covered by a real estate
mortgage, but the plaintiff-creditor instead of foreclosing the real estate mortgage opted to file a
collection of a sum of money case with the prayer for the issuance of a writ of PA? As a judge, would I be
correct if I will grant the writ of PA prayed for? Yes or No?
=No, because in the prayer for the issuance of a writ of PA, there must
be no sufficient securities for that particular debt. That debt is already secured by the
real estate mortgage; hence the prayer for the issuance of a writ of PA is improper under the
circumstances.

And aside from this particular affidavit, what is another requirement before the court
issues a writ of PA? = Bond

2. Bond
How much is the amount of the bond?
=the amount is based upon the amount as ordered by the court or equivalent to
the value of the property sought to be attached
In fact, when the writ of PA will now be served by the sheriff, the summons, the complaint, the order, the
affidavit and the bond must likewise be served upon the defendant- debtor or obligor.

Why is it that the summons, the complaint, must contain the order granting the writ, the writ itself and the bond? (served all upon
the person of the defendant-debtor-obligor) Aside from the fact that the court must acquire jurisdiction over the person of the
defendant, what is the justification? Particularly on the aspect of the bond?
=so that you will know how much is your counter bond
On the part of the defendant-debtor-obligor, what can be resorted to by him aside from questioning the fact that the bond posted by
the plaintiff-creditor-obligee is not sufficient to the value of the property prayed for to be attached, he can question that, what is it?
You are the defendant-debtor, tapos you received the summons, the complaint, the order, the affidavit and the bond. To protect
yourself, what will you do?
= file a counter bond
Can you post a counter bond? =Yes.
What is the reason why you can post a counter bond? =so that your property can be discharged.
(Judge S: pwedeeee> ) The property attached can be discharged because you have filed a counter bond. That’s what we do. If you
don’t want that your property is attached while the case is pending, you post a counter bond equivalent to the amount of the bond
granted by the court.

Why is it that there has to be a bond if you pray for the issuance of a writ of PA?
=because the bond is to answer for whatever damages which might be suffered by the defendant-debtor-obligor if it turned
out that the plaintiff is not entitled to the property attached because at the end of the day, he might have lost in the case.

The counter bond is for what?


=To answer for damages which might be incurred by the plaintiff-creditor-obligee if it turns out that talaga he is entitled to
the property prayed for in the attachment.

What are the grounds where the writ of PA can be dissolved?(discharged)-memorize


1. Filing of a counter bond
2. In case of excessive attachment, partial discharge can be done
3. Bond was irregularly issued by the court
4. When judgement was issued in favour of the defendant
5. Property attached is exempt from execution

In the issuance of a writ of PA, it should not be upon a property exempt from execution.
What are these properties which are exempt from execution? (see Rule 39) Can you give me at least 3 properties which are exempt
from execution?
1. Family home
How much? = 200,000 for rural areas; 300,000 for urban
(might increase depending on the changes in the currency)
2. Tools for occupation
It is your responsibility to take note of these properties exempt from execution. Properties which should be part of a prayer for the
issuance of a writ of PA must be properties which are not exempted from execution.

What are the obligations of the sheriff in the implementation of a writ?


1. To serve the summons, the complaint, the order, the writ, and the bond
2. To make a return (no period provided)

How should the writ be implemented? How is it done? How will the sheriff do it?
= It depends on what kind of property is attached. (see Sec. 7, Rule 57 **memorize**)
Real Property = by submitting a copy of the writ of PA issued by the court to the office of the Registry
of Deeds of the place or city where the property is located; Registry of Deeds should annotate the writ of PA in
the title of the property.
Personal Property = taking and safely keeping it in his custody
Shares of stocks = by leaving a copy of the writ and a notice that such is attached in pursuance
of the writ with the president or managing agent of the corporation or company
Money in the Bank= garnishment
The property subject of the writ of PA is claimed by a third person
= he files an affidavit of his title thereto; third party becomes a forced intervenor
What will happen? Will the sheriff still proceed with the implementation of the writ of PA if the property is claimed by a third
person?
= it depends.
Something has to be done on the part of that third person and what is that?
=third party claim must be filed with the sheriff.
What must he prove there so that the sheriff will not proceed with the implementation of the writ?
= that he has interest over the property
What else? Yun lang ba? Time na ba? Sige we will stop there lang muna. 

Effects when property claimed by third person

Q:What must the 3rd person do if he has claim on that property?


A: the 3rd person must make an affidavit stating or alleging his title and right to possession to the sheriff. The sheriff need not to proceed to the attachment,
however, if the attaching party or his agent files a bond in favor of the 3rd party, but the period to claim the bond must be filed within 120 days from the
institution of the bond. The sheriff should not be liable for whatever damages for not continuing with the writ of attachment issued by the court.

Q: if plaintiff own in the case, how should the procedure be, what is the first that has to be done to the satisfy the judgement awarded by the court?
A: sales, proceeds of the sale, if the proceeds of the sale of the property is insufficient he can run after the attach real or personal property, if still not
sufficient he can run after the credits of the debtor-defendant- obligor towards the 3rd person, and after applying this , if there is an excess, return the
excess to the defendant-debtor-obligor.

Q:In the context of counter bond, when can this be taken into account by the plaintiff-creditor- obligee.
A: liability counter-bond is attached, is when the judgment is rendered and an execution was made, and judgment remains unsatisfied- the counterbond
should answer automatically whatever judgment in favor of the plaintiff-creditor- obligee.

Q:what if the plaintiff loses and defendant won?


A: the whole money or sum which were taken into possession by the sheriff should be turn over to the defendant obligor.

Q:the plaintiff is not entitled to the writ of attachment prayed for, how will the defendant run after the bond?
A: application for damages can be done before trial, before appeal is perfected, or before the judgment becomes executory. His claim should be in the same
case and same action.
Except.
a) Where the principal case was dismissed for lack of jurisdiction by the trial court without giving an opportunity to the party whose property was attached
to apply for and prove his claim for damages; and (b) Where the damages by reason of the attachment was sustained by a third person who was not a party
to the action wherein such writ was issued.
Rule 58 preliminary injunction

Jurisdiction- all courts can now issue the writ of preliminary injunction
Can only be filed on the place or court where you prayed for.

Can be a main action, it can also be an ancillary remedy,

Q:what is injunction?
A:Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a particular act. However, it can also be a writ to
compel a person to do an act, and it is called a preliminary mandatory injunction.

In the context of P.I. the act should not be done yet but is about to be done by the defendant. Exception if the act is continuing in nature for example a case
of forcible entry.

A mandatory injunction is an extraordinary remedy and will be granted only on a showing that (a) the invasion of the right is material and substantial, (b) the
right of the complainant is clear and unmistakable, and (c) there is an urgent and paramount necessity for the writ to prevent serious damage (d) it should
not create a new relation between the parties which was arbitrarily interrupted by the defendant.

Instances where RTC CANNOT issue P.I. Read page 725-726


1 labor disputes
2 must be limited within the courts territorial jurisdiction
3 cannot issue on quasi judicial agencies
4 court of co-equal jurisdiction
5 R.A, 8975 government infrastructure

You can ask for P.I. while the case is going on, but it can also be done a final injunction, where a person / defendant is perpetually prevented from doing
something.

Limitation- cannot issue a writ of P.I. on


1 disputed property
2 prevent an issuance of an ordinance.

Requisites for the issuance of P.I.


1 there must be a verified application
2 constituting the ground why you are asking for a P.I. (Memorize Sec.3)
3 unless exempted by the court, file a bond.
Amount of the bond- discretion of the court.

In Multiple sala court


Issuance of the writ of P.I. if there is an extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court within 72 hours
conduct a hearing. In no case shall the total period of effectivity of the TRO exceed 20 days, including the original 72 hours provided herein.

Q: what is irreparable?
A: if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law.

Distinction between injunction and prohibition

a. Injunction is generally directed against a party in the action, while prohibition is directed against a court, tribunal or person exercising judicial powers.
b. Injunction does not involve the jurisdiction of the court, whereas prohibition may be on the ground that the court against whom the writ is sought acted
without or in excess of jurisdiction.
c. Injunction may be the main action itself, or just a provisional remedy in the main action, whereas prohibition is always a main action. Hence, for
temporary restraint in a proceeding for prohibition, preliminary injunction must be sought therein.

Rule 59-60: Preliminary Injunction continuation

If there is a distinct emergency tapos it will cause an irreparable damage to the applicant if not granted by the court, what’s to be done is the court grants a
72-hour temporary restraining order. Will that be contemporaneously served with the summons and the complaint on the defendant? Yes.

What are the grounds for dissolution of the writ of preliminary injunction?

1. The complaint is insufficient;

2. The defendant is permitted to post a counter-bond, it appearing that he would sustain great damage while the plaintiff can be amply
compensated; and/or

3. On other grounds, as where the bond posted by the applicant turned out to be insufficient or defective.

The procedure on how to run after...for damages is the same procedure as in Section 20 of the rule on the issuance of preliminary attachment. The rule on
how you can claim for damages arising from the bond posted by the applicant. Memorize it.

Receivership

What is a receiver? Receiver is a person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in
the suit and to protect the rights of all the parties under the direction of the court.

Can a party to a case be appointed as receiver? Not, unless there is consent of all the parties concerned.
Preliminary injunction can be a principal action or an ancillary remedy, is it the same with receivership? Yes. Receivership can be a principal action or an
ancillary remedy.

In the issuance of the writ of preliminary injunction, diba it is only available while the case is going on. Is it the same rule in the appointment of a receiver?
No, because appointment of receiver can be done in any stage of the proceedings even if the decision is already final and executor and even if it’s on appeal.

If the case is on appeal, where do you ask for the appointment of a receiver? Appellate court or the court of origin? CA or RTC? Answer is the court of origin
(RTC) because it has residual jurisdiction.

When you ask for a receiver, what do you do? The party will file a verified petition. If the receivership is an ancillary remedy, it can be done by motion but
the motion must be (verified?).

What are the grounds for the appointment of a receiver? Section 1 of Rule 59. Memorize.

In a case for recovery of possession with damages, can you pray for the appointment of a receiver? Or in a case for the quieting of title or recovery of
ownership, can you pray for the appointment of a receiver through a verified motion? As a rule, in cases which involve titles or the issue on who truly owns
the property, receivership is not allowed, unless the applicant can prove that the non- appointment of a receiver will cause serious injuries on his part. This
can be considered an exception to the rule.

What are the other requirements in asking for receivership? Filing of a bond by the applicant. The bond shall be determined by the court.

The court has granted a motion, what should the receiver do? The receiver will take his oath and will also file a bond.

What is the extent of the power of the receiver? (Enumeration from the book) Are they all acts of administration? Can the receiver sell the property? The
extent of the power of the receiver is up to administration and preservation of the property. Before there can be sale or mortgage, there must be leave of
court and order issued by the court.

Can we compel a person to comply with this order? Yes. What happens if the person refuses to comply with this order? He can be punished for direct or
indirect contempt.

What is this power of the receiver wherein even if he is not a party to the case, he can still consult. This is an exception to the rule daw that even if he’s not a
party to the case, he has the power to intervene.

Can there be posting of counter-bond on the part of the person who is ______ with the appointment of the receiver? If there is a counter-bond, what is the
effect?

What are the grounds for the dissolution of receivership? Section 8 of Rule 59.

Can you ask for a second issuance of a writ of preliminary injunction? As a general rule, the law does not allow the second issuance of a writ of preliminary
injunction; however, when there are facts which are unknown during the litigation and became known during the second application, the court can allow
the second issuance of the writ of preliminary injunction.

Replevin

Replevin is the writ itself, what is the main case? The main case is for the recovery of possession of personal property with prayer for the issuance of writ of
replevin. The application for the writ of replevin should be done before the defendant files his answer. It is always an ancillary remedy.

What are the requisites for the issuance of writ of replevin? Affidavit and bond (Section 2).

How much is the bond? The bond must be double the value of the property sought to be recovered. Purpose of the bond is to answer for damages.

CONTINUATION REPLEVIN….

RULE 60: Replevin and


Rule 61: Support Pendente Lite

JS: Recap. According to section 1 that the writ of replevin is anchored in principal case of recovert of possession of personal property. but the writ
of replevin must be secure before an answer. The last we have discussed is the 2 requisites in connection with the writ of replevin, first file a verify
application which contain an affidavit alleging the grounds thereof and second you have to give a bond double the value of the property. We have
no more question.
Ms. Peque. Give the distinctions between writ of replevin vs preliminary attachment. Kim: In replevin the principal action is recovery of personal
property while in attachment the recovery of personal property is only incidental to ther main action. In replevin the action is limited only to
recovery of personal property while in attachment is it not limited to recovery only personal property But also to real and other personal property.
In replevin can be sought if the property is in the possession of the defendant while in attachment it not only limited if the possession is in the
defendant it can still be sought even if the possession is in the hands of a third person. In replevin the property need not be in custodia legis while in
attachment it must be in custodia legis. In replevin it is available even if the property is not concealed while attachment is available if the personal
property is unjustly or fraudulently detained.

JS: What is the duty of the sheriff after the requisites for replevin is complied with? Kim: To serve the application together with to the person named
therewith for the purpose of taking possession of the property subject of the writ of replevin.

JS: On the part of the defendant. what should he do so the property will not be subjected to the writ of replevin? Kim: The defendant may post a
redelivery bond.

JS: Is there a required days?

Kim: 5 Days.

JS: aside from posting a redelivery bond. Can there be other grounds?

Kim: When the bond of applicant is insufficient and where the property was not returned to the plaintiff for no reason whatsoever.

JS: what about if it is claim by a third person?

Kim: the same procedure in attachment if property is claimed by third person. The third person must file an affidavit containing his right as far as
property is concerned and it must be served with sheriff and once it is complied the sheriff is not bound to return the property to the plaintiff and
shriff iis not bound for whatever damages that plaintiff will sustain.

JS: Diba the third person was able to prove that he has a right on the property. Can there be an instance that the plaintiff may still require the sheriff
to deliver the property? what should he do?

Kim: Give a bond for whatever damage the third person may sustain he can require now the sheriff for the delivery of the property.

JS: It should be filed within 12o days from the time the property is claimed by 3rd person.

JS: Thank you Ms. Peque. Ms. Diolola. I think there is a 10 day period there what is the 10 day period on the part of the sheriff? Not ready? DE DIOS
EDUARD

JS: After the sheriff executed the writ of replevin, what is his obligation? EDUARD: There must be return to the court within 10 days. JS: How will the
court render judgment? EDUARD: in Alternative.

JS: What is this alternative judgment?

EDUARD: It's either you compel the defendant to return the property or if return is not possible return the value of the property.

JS: What is support Pendente Lite? Diba you have taken persons and family relations law. This is just a review. The main action here is?

EDUARD: Support.

JS: Support with a prayer for issuance of support pendente lite. How this is done?

EDUARD: File a verified application for issuance of support pendente lite on commence of the action until before final judgment.

JS: Diba you remember attachment, injunction and support pendente lite has similar instance when can be sought for? at commencement of the
action but before final judgment. In receivership it can still be applied even if after final judgment and replevin before an answer. Okay. in
connection to your application. What should you attached there?

EDUARD: Depositions, affidavits and other documents which must be attached in the verified application.

JS: After filing of verified application. What should the court do?
EDUARD: Shall require the defendant to submit a comment which shall also be accompanied by affidavits, depositions and other documents and
should be submitted 5 days from receipt of the order and after filing of the comment there must be a hearing.

JS: DE DIOS what are the basis of the court to grant Support pendente lite?

DE DIOS: Financial condition. JS: Is this support only to support given to children? or can the wife also ask for support?

DE DIOS: No. The wife can also ask for support under the family code.

JS: What can be the best legal ground wherein the defendant may raise so he cannot extend support pendente lite to the wife?

DE DIOS: If the wife committed adultery.

JS: Correct. Now. Clear na tayo on that. The court granted support pendente lite while the case for support was pending. and it was found out that
that the wife is not entitled for support after the full blown trial? DE DIOS: restitution plus legal interest. JS: What is the other remedy?

DE DIOS: File an separate action the person who is supposed to give legally support.

JS: In crimes of seduction, rape, abduction. One of the orders which can be sought for is support the offspring. But this one only happened in
criminal case. But this one can only be granted in criminal case if what?

DE DIOS: That the civil action is not reserved in the criminal action.

JS: Thank you Mr. DE DIOS.

Special Civil Action Introduction

Jill. Intro SCA rule 62:

JS: Adrales. Can you just enumerate lang muna.

Jill:

1. Interpleader
2. Expropriation
3. Foreclosure of real estate mortgage
4. Forcible entry and unlawful detainer
5. Partition
6. Declaratory Relief
7. Review of judgment of the COMELEC/COA
8. Certiorari
9. Prohibition
10. Mandamus
11. Quo warranto
12. Contempt

JS: Can you enumerate special civil actions which are commenced by complaint and by petition.

Jill: Special Civil action initiated by complaint:

1. Interpleader
2. Foreclosure of real estate mortgage
3. Forcible entry and unlawful detainer
4. Partition
5. Expropriation
Special Civil action initiated by petition:

1. Declaratory Relief
2. Review of judgment of the COMELEC/COA
3. Certiorari
4. Prohibition
5. Mandamus
6. Quo warranto
7. Contempt
JS: So we will start with you tom. Interpleader and declaratory relief.

JS: Diba if you are married to a foreigner and he was able to obtain a valid divorce decree abroad what will you do in order to remarry in the Philippines?
Diba the law says that automatically the Filipino spouse can remarry again. It is also applicable to Filipino citizens who became an American citizen and
obtain a foreign divorce. You just have to file recognition of valid divorce but the Supreme Court said in one case that the right action is declaratory relief.
You will know that tomorrow. Thank you.

Rule 62: Interpleader and


Rule 63: Declaratory Relief and Similar Remedies
 Which of these special civil actions are commenced by complaint and by filing petition?
 Even in the first level courts, they can actually issue some of these special civil actions, provided that the amount is within
the jurisdiction of the first level courts.
o Amount for first level courts – 300,000.00

INTERPLEADER

What is an interpleader?

Remedy whereby a person who has a property in his possession or has an obligation to render wholly or partially, without claiming
any right or interest in both, comes to court and asks that defendants who have conflicting claims thereon or who consider
themselves entitled to demand compliance with the obligation, be required to litigate among themselves to determine who is entitled
to the property or payment or obligation.

Procedurally speaking, it is filed:

- Person who has the property files in court an action to compel the defendants to prove among themselves who is entitled;
- After receipt of summons together with complaint, defendants file answer and serve copies of their answers to their co-
defendants. (Rationale: Because they are the ones who are going to prove as to who among them is/are entitled to the
property, payment or obligation.)
- Motion to dismiss instead of answer? YES. But lawyers must observe restraint in filing MTDs. Raise the grounds for MTD as
affirmative defenses as per agreement of the Supreme Court and the IBP.
- If MTD is denied, Fresh Period Rule shall apply to file the answer.

DECLARATORY RELIEF AND SIMILAR REMEDIES

Similar remedies:

- Action to quiet title


- Action for the reformation of an instrument (remedy when one of the parties was led to believe that he was signing a
mortgage, but was actually a deed of absolute sale; vitiated consent on the ground of mistake; presupposes the contract is
valid but did not express true intent of parties)
- Action to consolidate ownership (sale with right to repurchase)

Requisites of an action for declaratory relief:

- Subject matter: must be a deed, will, contract or any written instrument; or statute, executive order or regulation, or
ordinance;
- Terms of said documents and the validity thereof are doubtful & require judicial construction;
- No other available relief which may be resorted to;
- No breach of the document in question – no violation has been committed yet. (If there was a violation committed,
declaratory relief is no longer proper. It shall be converted to an ordinary civil action.) EMPHASIZED OVER & OVER AGAIN.
- Ripe for judicial determination – “ripening seeds” of the particular controversy

Actions or instances which will give rise to filing of an action for declaratory relief: (Section 1)

- Any person interested in a contract, will, deed or other written instrument


- Rights are affected by a statute, executive order or regulation, or ordinance, or any other governmental regulation
The Supreme Court said in one case that if you want to remarry, because your foreign husband has already filed a divorce abroad, the
proper remedy is DECLARATORY RELIEF.

Issue in declaratory relief: Validity and construction of the document involved.

Entry or notice on the Solicitor General:

- Special civil action involves the validity or construction of a statute, EO, or any governmental regulation;
- Ordinance: corresponding prosecutor or attorney of the local government unit involved shall be similarly notified & entitled
to be heard. If such ordinance is alleged to be unconstitutional, SG shall be notified and entitled to be heard. (Section 4)

Court action is discretionary.

- Court may refuse to exercise the power to declare rights & construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction
is not necessary or proper.

Rule 64: Review of Judgments and Final Orders or Resolutions of the ComElec and COA

*Rule 64 applies only to final decisions of COA and COMELEC because as far as CSC is concerned, reviews in court of appeals, Petition
for review under rule 43 is applied. It is included in quasi-judicial bodies.

* The review here is by means of petition for certiorari under rule 65 to the Supreme Court.

*period for filing is 30 days from except of the decision of said agency. Neypes rule Applies in this rule.

*how many copies? Ans. same rules are applied in rule 42,43,45 and 64 in terms of number of copies served.
1. it must be verified
2. attached original copy and 17 other copies making it 18 copies. Certified true copy must be certified by the clerk of court of the
court which rendered the decision, in this case the COC of Coa or Comelec.
3. material data rule
4. Affidavit of non-forum shopping
5. payment of docket or other lawful fees
6. proof of service to the party ( defendants and to the court included)

* Unlike petition for review under rule 45, rule 65 is an INDEPENDENT ACTION in itself.
* Unlike rule 45, it’s an appeal from the decision of the lower court.
* If the court finds out that there is merit in your petition, the court will file his comment in 18 copies. Attach docket fees, the same
as filing a petition.
Aside from the fact the petition did not comply with the requirements enumerated, what other grounds may warrant an outright
dismissal of the petition under rule 64?
Ans. 1. Failure to comply with the enumerated requisites above.
3. the petition is only filed for delay
4. the petition is unsubstantial to warrant for proceedings.
Case is dismissed on a minute resolution if it fails to comply.

Will it prevent execution of judgment if the court finds out that the petition is with merit under rule 65?
Ans. No. it will stay the decision not unless the SC say so. They will do the stay of decision by means of issuance of TRO.
Is a reply required here? -- not a mandatory requirement
What is one mandatory requirement before you can petion on certiorari under rule 65?
--there must be a filing first of motion for Reconsideratoin to give the court or quasi agency conderned a chance to correct its error. It
is not a mnadtory under rule 45.

RULE 66QUO WARRANTO

Q: Quo warranto is a remedy to what?


A: It is a remedy by the court to try disputes involving the right to office. In the case cited by Regalado, ruled that if there are no
disputes whatsoever as far as that particular position is concerned but another person actually claims a right to that particular office,
then the remedy is not quo warranto but rather Mandamus under Rule 65 of the 1997, Rules on Civil Procedure.

1. Be that as it may Quo warranto is available in 3 grounds as provided for in Section 1 of Rule 66.

a. against a person who usurps or induces into office;

b. against a public officer who commits an act which constitutes a forfeiture of his office; and

c. an association in the Philippines which is announced as such but is not legally incorporated (applies to de-facto corporation—a
corporation which did not fully comply with the requisites for incorporation, under the Corporation Code of the Philippines. And
under the said law, you are not allowed to attack the existence of a corporation collaterally , what you will do is file a quo warranto
proceedings questioning that corporation as a de-facto corporation through a Petition for quo warranto)

2. Quo warranto distinguished from election protest.

In quo warranto proceedings the applicant is disqualified from holding the office by reason of ineligibility or disloyalty while in
election contests, there has been irregularity in the conduct of the election that’s why you resort to election protest.

In quo warranto, the respondent will be ousted but then the petitioner will not resume the position of the respondent. In election
protest, if the respondent is indeed ousted the petitioner is placed in that same position.

3. Quo warranto proceeding involving an elective office distinguished from quo warranto proceeding involving an appointive office

In Quo warranto proceeding involving an elective office, the issue is the eligibility of the respondent to hold office while in quo
warranto proceeding involving an appointive office, the issue is the validity of the appointment of that particular person subject of
that quo warranto proceeding.

When the petitioner in a quo warranto proceeding in an elective position won in the case, and the respondent who was declared
ineligible in elective position was ordered to vacate said position, the petitioner does not resume the position vacated. In an
appointive position, if it turns out that the appointment is not valid, then the petitioner there can be placed into that particular
position.

So that in reference to that particular concept, as a general rule, the only person who can file a quo warranto proceeding will be the
Government through the Office of the Solicitor General or the public prosecutor’s office questioning particularly when it comes to
elective position. Except in quo warranto proceeding involving an appointive position wherein any person or individual claims a
better right to that particular position so under the law he is allowed to file a quo warranto proceeding against the one who is
actually sitting in that position which he claimed to be rightfully his.

4. What is the period for the filing of a quo warranto proceeding?

A: 1 year after the cause which gave rise to the filing of the quo warranto proceedings. If it turns out that you are indeed entitled to
that particular office, there can also another claim for damages against the one in possession of that particular office which is
actually belongs to you which also is to be filed within 1 year otherwise the cause of action has already prescribed.

5. Case of Cristobal vs. Melchor?

GR: 1year period is mandatory, so failure to file a quo warranto proceeding and claim for damages arising out of that particular cause
of action, which will give rise to the filing of that quo warranto proceeding, his right to file and question the same is already
prescribed.

XPN: SC allowed the filing of the quo warranto proceeding even beyond the 1 year mandatory period for filing such, (Cristobal vs.
Melchor) on the basis of equitable consideration because, petitioner in this case did not join the other petitioners because he was
promised of reinstatement from the very start, believing all alone in that promise, he did not join the other petitioners who were
actually later reinstated. It took him time to actually file the quo warranto proceeding and claim for damages, and the SC allowed him
based on the principle of EQUITABLE CONSIDERATION.

6. Aside from filing by the SolGen, or public prosecutor, or the individual claiming the right over the position, who else may file the
petition Quo warranto Proceeding?

A: Upon request of another person towards the Solicitor General and the Public Prosecutors Office, even without the consent of the
Republic of the Philippines.

7. What will happen after the filing of the quo warranto proceeding?

A: Petition should be verified, there must be a hearing as part of due process, and in connection with the hearing, there must be
notice to the respondent (the period not provided however it depends on the period granted to them by the Court) , then they must
be served with summons attaching therewith the complaint and the petition. The respondent is given 15 days to file his answer.

8. If it turns out that the petitioner won in the case the respondent can be ordered likewise to turnover books, documents in his
possession, and if turns out that he does not comply with this particular order, the Court may declare him in contempt of Court.

For purposes of your brain damaging final examination, please take consideration whether in the question, I am referring to a quo
warranto proceeding involving an elective position (filed only by the Office of the SolGen by virtue of the authority granted to them
by law) or quo warranto proceeding in an appointive position (filed by and private individual claiming a right over that particular
appointive office).

9. Very important—don’t presume that you know. Where can you file a co-warranto proceeding?

A: Jurisdiction is concurrent with the SC, CA or the RTC exercising territorial jurisdiction where the petitioner is actually residing.
ALWAYS Observe the hierarchy of Courts. RTCCASC

RULE 67EXPROPRIATION

Is expropriation a right? Or a power?

A: Expropriation is a right, the power is the Eminent Domain (one of the inherent powers of the Government). Another term for
expropriation, in the US may also be used in the Philippines—CONDEMNATION proceedings.

1. If the National Government or a Local government wants to expropriate a private land, how will the Government go about the
process of expropriation?

A: The Gov’t should file a verified petition in the place where the property is situated (containing the particular description of the
property sought to be expropriated and also particularly describe the ground or reason for the expropriation, why it is resorted to).

2. When the verified petition for expropriation was filed in the RTC where the property sought to be expropriated is located, is it
necessary that the applicant petitioner must deposit an amount equivalent to the value as provided for by the court?

A: YES. (10%) gin correct na niya next day which is 15% of the assessed value of the property sought to be expropriated. Take note: If
the local government is exercising its right to expropriation, there must be an Ordinance authorizing the Mayor to file a petition for
expropriation proceedings otherwise the proceedings may be dismissed right away.

Is it the same when the expropriation proceeding is filed by the National Government?
A: No. In the case of Republic of the Philippine vs. Piatco(?) The reason why a deposit (15%) has to be made with any Government
Depository Bank which is usually the Landbank is for the petitioner to acquire the Right to Enter Possession of the property sought to
be expropriated. In filing by the National Government, the deposit required is not only 15% of the assessed value of the property
sought to be expropriated but the total value of that property too enter possession. (Republic of the Philippines vs. Piatco(?)

3. If the verified petition complied with all the requirement is now filed, attached therewith a proof that you have deposited the
required 15% of the assessed value for local government or the total value of the property sought to be expropriated for National
Government, with the Government Depository Bank, and the Government wants to enter possession right away, what should the
Government do?

A: A motion for the Issuance of Writ of Possession should be filed and as long as the petitioner has complied with the required
deposit, it is already ministerial duty of the court to issue a writ of possession for the petitioner-applicant can enter possession of the
property sought to be expropriated. But even it is ministerial on the part of the Court to grant the motion for the issuance of the Writ
of Possession, there is a required Notice to the Defendant. That’s why you do that by motion and copy furnish the property owner of
the property sought to be expropriated for the issuance of the Writ of Possession.

4. Expropriation is an example of a case which is a kind of a Multiple Appeals. Aside from filing a Notice of Appeal and payment of
appeal fees (in cases of ordinary appeal), there must also be Record on Appeal and file it within 30 days. Therefore when you want to
appeal the decision of the RTC, you must file a notice of appeal, payment of the appeal fees as well as the filing of the Record on
Appeal within 30 days from the time you received a copy of the questioned decision.

5. What can be appealed in expropriation proceedings? What can be subjected to appeal? What can be appealed here?

A: Orders of the court which could be a subject of multiple appeal: a) order of the court whether the applicant-petitioner is indeed
entitled to expropriate the property, and b) order of the court on Just Compensation

Note: The matter of determining of Just Compensation is a matter of judicial prerogative that’s why there is a need to assign
commissioner. (Epsa vs. Dulay(?))

Continuation Rule 67…. And

Rule 68: Foreclosure of Real Estate Mortgage

JS: In connection with our discussion last night the power of Local Government to expropriate is governed by sec. 19 of Local
government code and the deposit shall be 15% not 10% and there must be an order granting the chief executive to expropriate and
100% for National government pursuant to the case of Epsa vs Dulay. So the purpose of the deposit is for the plaintiff to enter into
the possession of the property subject for expropriation and if they already entered the possession they have the right to retain the
property. As long as the petitioner complied with the deposit it becomes ministerial on part of the court to grant the motion for
issuance of writ of possession.

Diolola. What will the rule if they enter into possession. Diba you will just notify the court. If there is an objection?

Diolola: If there is no objection the defendant from the receipt of summons he must file manifestation to the court. If there is none
defendant must file an answer.

JS: The court will determine if the petitioner has the right to expropriate and issue an order granting the expropriation. And the order
is appealable and even if there is an appeal it will not prevent the court from continuing the case. And that will be?

Diolola: appointment of not more than 3 commissioner.


JS: For the purpose of?

Diolola: to determine how much is the just compensation on property sought to be expropriated.

JS: And in determining the just compensation? What factor is considered? The decree regarding the value declared by assessor and
value declared by the owner what ever is lower will be the basis of just compensation is declared null and void because just
compensation is a matter of judicial discretion. So what are the factors in determining just compensation?

Diolola: Assessed value + consequential damages – Consequential benefits

JS: and the commissioner are required to submit what?

Diolola: report

JS: Yes. Because upon submitting the report by the commission it will help the court in determining the just compensation. Okay this
order of the court is likewise appealable. What wil happen if the decision of the lower court granting the expropriation be reversed
by appellate court?

Diolola: There is restoration plus payment of damages.

JS: What about if affirmed by appellate court?

Diolola: they will now enter the possession of property or if there is already an entry they will have the right to retain the property.

JS: That winds up expropriation. Take note that in expropriation there can be multiple appeals. And the orders that can be appealed
are the order granting expropriation and the order granting just compensation.

Travieza Dennis! This rule on foreclosure of mortgage. Listen ha! Diba your taking credit transaction. This rule refers to what kind of
foreclosure?

Pastor: JUDICIAL FORCLOSURE.

JS: So we are talking here real estate mortgage and it will apply only to judicial foreclosure and extrajudicial foreclosure is governed
by credit transaction and governed by the provisions of republic act 3135. But anyway I will give you more explanation. She is my
student in UP and she is a good student 100% sure.

Now. So that you can resort to extrajudicial foreclosure what is the requirement?

What did atty. Mari tell you? The major requirement. The most important requirement?

You must specify in your stipulations that in case of non-payment or breach of condition extrajudicial foreclosure shall be resorted to
pursuant to RA 3135. Non inclusion in the stipulation you cannot resort to extrajudicial foreclosure.

JS: Now. Okay. Itong real estate mortgage is just one of the remedy which can be resorted? What is the usual ground so it can be
resorted?

Pastor: Non payment of loan.

JS: is it only non-payment of the loan which will warrant extrajudicial or judicial foreclosure?

Is it always the case?

Pastor: Yes.

JS: Yes. Usually it is non-payment because it is a collateral for the loan. But there are instances where you can resort to foreclosure if
there is a violation of the condition of the real estate mortgage.
JS: These are options. Its either you can file claim for money or resort to foreclosure. What will happen daw if the mortgagor creditor
opted to file for collection of sum of money but unfortunately he was unsuccessful and then he resorted to foreclosure? Is it
allowed?

Pastor: No.

JS: Yes. It is not allowed because the filing of collection of sum of money means a waiver of your right to resort to foreclosure. Take
note of that. If you become a lawyer resort to foreclosure.

Clear?

You file a verified petition? Where?

Pastor: RTC.

JS: RTC of what city?

Pastor: RTC where the property is located.

JS: I love that! Mr. Travieza can still remember our discussion on venue.

JS: How about if the mortgage is located in several location or different city or municipality.

Pastor: You can file in any RTC where the property is situated.

JS: So you have an option where to file anywhere where the land is situated.

JS: what should be included. You have to aver the acts that constitute cause of action if you want to resort to judicial foreclosure of
real estate mortgage.

I’m taking on important matters. So who should be included as respondent?

Pastor: owners and those in actual possession and persons interested to the property.

JS: Is this foreclosure petition or complaint?

Pastor: complaint.

JS: are you sure? Diba we enumerated that when we started special civil actions. Why? Because there is a difference like the name of
the parties and etc. Take note nalang of that ha!

JS: Foreclosure of mortgage also allowed multiple appeals. Diba in expropriation it is the order granting expropriation and order
granting the just compensation. In judicial foreclosure what can be appealed? Just like expropriation 30 days to appeal there must
always be record on appeal + payment of appeal fees. What can be appealed in judicial foreclosure? What orders?

Pastor: Order of…….

JS: okay. It’s in the book of regalado tama ba? Mr. Josol tama ba? Ms. Varona?

And the first of course is? The order granting the foreclosure. What else?

Pastor. Order granting confirmation of sale.

JS: what else? The order of sale of deficiency.

Okay now! We presumed that after we comply with the proceeding. If the court grants the foreclosure what will happen? What is the
next step?

Pastor: property shall be sold to public auction.


JS: the property shall be sold to public auction and it will go to the highest bidder and if there is no bidder it will go to mortgagee
creditor. In case of non-payment ownership automatically transfer to the creditor? Is it a valid stipulation?

Pastor: No.

JS: What do you call that? Pactum Commisorrium. It is an invalid stipulation that’s why there is a public auction. Diba the
confirmation come in last stage na yan. My next question is? Is there a legal redemption? Yes or No?

Pastor: N0

JS: What do we have in judicial foreclosure is?

Pastor:…….

JS: EQUITY of REDEMPTION. When there can be legal redemption and equity redemption? In case mortgage in bank and quasi-
banking institution.

Legal redemption is only allowed in extrajudicial foreclosure of mortgage and it is 1yr from registration of sale in the registry of
property where the property is located.

In judicial foreclosure it is Equity of redemption. Except if mortgage Bank and Quasi-banking institution and allowed legal and equity
of redemption.

When can the mortgagor debtor exercise the equity of redemption? Pactum commissorium and T-PO(Diri ak sure hahahahaahha) are
not valid stipulation. T-PO an stipulation that if the property will be sold at public auction it will only be sold to a particular person.

Now. If you can answer Mr. travieza you will be exempted in the finals. But I only count 1-5. Where can the mortgagor debtor exercise
equity of redemption?

Travieza: It can be done before confirmation of certificate of sale.

JS: The question is there is a period. I will give you a choice. 90, 60, 120.

Pastor: 90.

JS: But within 120 it can be extended as long as it is done before the confirmation of certificate of sale. Question? When will you
commence counting the 90 to 120 day period?

I will allow you to read. I’m very kind. You know what teachers would be active practicing lawyers and judges.

Pastor: reeeeeeaaaaaaaaading………. (Section 2)

Thank you Mr. Travieza! Pastor.

Take note ha! Legal redemption 1 yr from date of registration of certificate of sale of the office of the registry of deeds of where the
property is located. And take note about the foreclosure of mortgage on banks and other quasi banking it is allowed to have legal
redemption and equity of redemption. So if he did not avail of equity of redemption he can still avail legal redemption within the 1 yr
period. Thank you Mr. travieza!s

CONTINUATION RULE 68…….

Rule 68: Foreclosure of Real Estate Mortgage


Foreclosure of Real Estate Mortgage

 Extrajudicial Foreclosure – must have a stipulation that in case of non payment, extrajudicial foreclosure of mortgage must
be resorted to otherwise only judicial foreclosure is allowed.
 Legal Redemption – only available in extrajudicial foreclosure of mortgage
 Equity of Redemption – available only in judicial foreclosure of mortgage except in the instances where the law allows or
grants both equity of and legal redemption in cases of loans made to Banks and Quasi Banking Institutions
 The period for exercise of Equity of Redemption may be extended as long as it is done before the confirmation of the sale,
90 – 120 days where he can pay off the amount plus interests.
 For the parties who should be included, when filing a petition for judicial foreclosure of mortgage, it must include the 2 nd
mortgagee or the junior encumbrancer if there were subsequent mortgages made using the same property.
 Foreclosure sale becomes automatic and does not require a motion to be filed in cases when the mortgager-debtor cannot
pay off the debt.
 However, after foreclosure sale is done in public auction, there is a need for the court to confirm the sale. This order
confirming the sale is an appealable order.
 Mortgagee-Creditor must file a motion to set hearing on his prayer to confirm the sale. There must be a notice to the
mortgagor-debtor to give him opportunity to question the foreclosure sale such as when the proper procedure was not
followed or the price was not adequate.
 If the amount of the proceeds of the sale is not sufficient to pay off the liability of the mortgagor-debtor, recovery of
deficiency judgment is allowed except if there is a third party involved who was the one who secured the mortgage of the
debtor and in case of a deceased mortgagor

 In foreclosure sale, it includes both real and personal.


 Where personal property is mortgaged and mortgagee-creditor opts the third of the three remedies that is Demand that the
buyer pay (a.k.a. specific performance), Cancel or rescind the sale ,Foreclose the mortgage on the property bought he is
precluded from recovering any deficiency judgment and any stipulation between the parties in violation of that is
considered null and void. This is known as the Recto Law!!
 After the equity of redemption has already expired and there was no redemption on the part of the mortgagor-debtor
under the law the sale which was confirmed by the court for which a final sale shall be issued it shall be registered with the
register of deeds of the city or province where the property is located
 Registration is important because it is the basis for the transfer of title, because after such a new title will be issued in favour
of the mortgagee-creditor and the previous title will be cancelled.

Rule 69: Partition

Partition
 One common feature between expropriation and partition is that appointment of commissioners is mandatory
 A case for partition is filed where any of the property or portion thereof is situated (it’s a real action)
 This also allows multiple appeals. Orders that may be appealed are (very noisy, indistinct, diri naiintindihan, I am so sorry)
the order confirming partition after submission of the report of the commissioners , ownership issue already passed upon
by the court
 After trial the parties may agree to make the partition among themselves. The parties are encouraged by the court to
partition among themselves
 If they do not agree among themselves the court now will appoint not more than three commissioners who will make the
partition, visit and conduct an ocular inspection of the property subject to partition and then submit a report. After
submission of report, the clerk of court shall serve copies of the report to the interested parties with notice that they are
allowed ten (10) days within which to file objections
 After the lapse of the 10 day period or even before expiration but after the parties filed their objections the court may
confirm the report and render judgment, reject it or assign new commissioners
 After the said confirmation of the court, it may render judgment based on said report and the actual partition shall be
registered before the register of deeds in the province or city where it is located.