Valencia v.

CA

G.R. No. 119118

February 19, 2001
 FACTS

In an action for cancellation of

OCT of RCBM, the RTC rendered a
judgment upholding the formers
title of the disputed property.

Pending the appeal of the said judgment, Valencia

filed a petition for relief from the portion of the
judgment dismissing his counterclaim alleging that
his failure to move for reconsideration was due to a
mistaken belief of his former counsel that he was no
longer interested to pursue the counterclaim.
 ISSUES

WON the petition for relief should be allowed

NO
 RULING
A petition for relief under Rule 38 is only
available against a final and executory
judgment.

The trial court's judgment subject of the petition

for relief has not yet attained finality because of
the timely appeal by private respondents.