CIVIL PROCEDURE NOTES ON POST JUDGMENT MOTION for RECONSIDERATION

REMEDIES ACADEMIC YEAR 2011-2012

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

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

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

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

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

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

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

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

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

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

Addl requirements for Rule 40.

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

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

 memorandum shall be a ground for dismissal of *Note: Extension of time for the filing or briefs will
the appeal (Sec.7(b), Rule 40, Rules of Court). be allowed, except for GOOD and SUFFICIENT
CAUSE and only if the MOTION FOR EXTENSION
(g) Upon the filing of the memorandum of the
is filed BEFORE the EXPIRATION of the time
appellee, or the expiration of the period to do so,
sought to be extended (Sec.12, Rule 44, Rules of
the case shall be considered submitted for
Court).
decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the *In petitions for certiorari, prohibition, mandamus,
proceedings had in the court of origin and such quo warranto and habeas corpus cases, briefs are not
memoranda as are filed (Sec.7(c), Rule 40, Rules of filed. Instead the parties shall file their respective
Court). memoranda within a non-extendible period of 30
days from receipt of the notice that all the pieces of
evidence are already attached to the record (Sec.10,
Rule 44, Rules of Court).
Addl requirements for Rule 41.
EXTENSION:
(h) Within 30 days after perfection of all the
appeals, the clerk of court shall verify the Rule 41
CORRECTNESS and COMPLETENESS of the
records and if incomplete, to take such measures The period to file notice of appeal is NOT EXTENDIBLE.
to complete such records, certify to the The extension refers only to filing of briefs only if with:
correctness of the records, to transmit the same
(a) GOOD and
to the appellate court, and to furnish the parties
with copies of his letter of transmittal of the (b) SUFFICIENT CAUSE
records to the appellate court (Sec.10, Rule 41,
Rules of Court). (c) MOTION FOR EXTENSION

(i) Upon receiving the original record on appeal (d) BEFORE the EXPIRATION of the time sought to
and the accompanying documents transmitted be extended.
by the lower court, as well as the proof of
(Sec.12, Rule 44, Rules of Court)
payment of the docket fees, the clerk of court of
the Court of Appeals shall docket the case and Sec.12, Rule 44, Rules of Court
notify the parties (Sec.4, Rule44, Rules of Court).
Sec. 12. Extension of time for filing briefs.Extension of time for the filing
(j) Within 45 days from receipt of the notice of the of briefs will not be allowed, except for good and sufficient cause, and
only if the motion for extension is filed before the expiration of the
clerk of court, the appellant shall file a brief a
time sought to be extended.
brief with proof of service upon the appellee
(Sec.7, Rule 44, Rules of Court). Within 45 days PERFECTION, LOSING of COURTs JURISDICTION,
from the receipt of the appellants brief, the and CONTENTS:
appellee shall file his own brief with proof of
service to the appellant (Sec.8, Rule 44, Rules of Notice of appeal, is deemed perfected as to him upon
Court). Within 20 days from receipt of the the filing of the notice of appeal in due time.
appellees brief, the appellant may file a reply
*Notice of appeal does not require the approval of the
brief answering points in the appellees brief not
court. The function of the notice is merely to notify the
covered in his main brief (Sec.9, Rule 44, Rules of
trial court that the appellant was availing of the right of
Court).
appeal, and not to seek the courts permission that he be
allowed to pose an appeal.

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

*In appeals by notice of appeal, the court loses (c) the expiration of the time to appeal of the parties (Sec. 9,
jurisdiction over the case upon the perfection of the Rule 41, Rules of Court).
appeals filed in due time and the expiration of the time to
appeal of the other parties. (Sec. 9, Rule 41, Rules of
Court).
*Record on appeal; form and contents:
Notice of appeal, the court loses jurisdiction over the case:
a. the Full names of all the Parties
(a) upon the perfection of the appeals
b. the Judgment or final order from which the appeal is
(b) filed in due time and
taken.
(c) the expiration of the time to appeal of the other parties.
c. in chronological order, Copies of such Pleadings,
(Sec. 9, Rule 41, Rules of Court).
petitions, motions, and all interlocutory orders related to
the appealed judgment.

d. data as will show that the appeal was perfected on

*Notice of appeal shall indicate:
time.
a. the Parties to the appeal
e. ALL evidence, testimonial, documentary, etc. If an
b. specify the Judgment or final order or part thereof Issue of Fact is raised on appeal.
appealed from,
f. if the whole testimonial and documentary evidence is
c. specify the Court to which the appeal is being taken, to be included, a Statement to that effect is sufficient
and without mentioning the names of the witnesses.

d. state the Material dates showing the timeliness of the g. Subject index if record on appeals exceeds 20 pages.
appeal.
Sec.6, Rule 41, Rules of Court
Sec.3, Rule 40, and Sec.5, Rule 41, Rules of Court
MODES:
Record on appeal, is deemed perfected as to him with
Rule 41
respect to the subject matter thereof upon the approval
of the record on appeal filed in due time. Sec.2, Rule 41, Rules of Court.

*A record on appeal shall be required only in special SEC. 2. Modes of appeal.

proceedings and in cases of multiple or separate appeals a. Ordinary appeal.The appeal to the Court of Appeals in cases
(Sec. 2, Rule 40, Rules of Court). decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
*In appeals by record on appeal, the court loses which rendered the judgment or final order appealed from and serving
jurisdiction over the subject matter thereof upon the a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
approval of the records on appeal filed in due time and the
separate appeals where the law or these Rules so require. In such cases,
expiration of the time to appeal of the parties (Sec. 9, Rule the record -on appeal shall be filed and served in like manner.
41, Rules of Court).
b. Petition for review.The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its appellate
*In appeals by record on appeal, the court loses jurisdiction shall be by petition for review in accordance with Rule 42.
jurisdiction over the subject matter:
c. Appeal by certiorari.In all cases where only questions of law are
(a) upon the approval of the records on appeal raised or involved, the appeal shall be to the Supreme Court by
petition for review on certiorari in accordance with Rule 45. (n)

(b) filed in due time and

5

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

QUESTIONS TO BE RAISED: Regional Trial Court to try the case on the merits
as if the case was originally filed with it.
The appellant may include in his assignment of errors
any QUESTION OF LAW or FACT that has been raised 2. The same rule prevails if the case was tried on
in the court below and which is within the issues raised the merits in the lower court without
by the parties (Sec.15, Rule 44, Rules of Court). jurisdiction over the subject matter and was
subsequently dismissed on such ground. On the
Sec.15, Rule 44, Rules of Court
appeal, the Regional Trial Court, if it has
Sec. 15. Questions that may be raised on appeal.-Whether or not the original jurisdiction shall not dismiss the case,
appellant has filed a motion for new trial in the court below, he may but shall decide the case in the same manner as
include in his assignment of errors any question of law or fact that has dismissed by the lower court without trial on
been raised in the court below and which is within the issues framed by the
parties.
the merits. The Regional Trial Court may allow
amendment of the pleadings and may receive
DISMISSAL: additional evidence in the interest of justice
(Sec.8, Rule 40, Rules of Court).
Rule 40
*When a case is dismissed from lack of jurisdiction, the
Sec.8, Rule 40, Rules of Court
order of dismissal is one without prejudice because the
SEC. 8. Appeal from orders dismissing case without trial; lack of plaintiff may simply refile the complaint in the court
jurisdiction.If an appeal is taken from an order of the lower court with the proper jurisdiction. By the terms of Sec.1 (g),
dismissing the case without a trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case may be. In case of
Rule 41 as amended, the order dismissing an action
affirmance and the ground of dismissal is lack of jurisdiction over the without prejudice is not appealable. Sec.8, Rule 40, on
subject matter, the Regional Trial Court, if it has jurisdiction thereover, the other hand allows an appeal from an order of the
shall try the case on the merits as if the case was originally filed with it. MTC dismissing a case for lack of jurisdiction. Sec.8,
In case of reversal, the case shall be remanded for further proceedings.
Rule 40 hence, should be considered as an exception to
If the case was tried on the merits by the lower court without Sec.1, Rule 41, Rules of Court.
jurisdiction over the subject matter, the Regional Trial Court on appeal
shall not dismiss the case if it has original jurisdiction thereof, but shall Rule 41
decide the case in accordance with the preceding section, without
prejudice to the admission of amended pleadings and additional
Sec.13, Rule 41, Rules of Court.
evidence in the interest of justice. (n) (SEC. 8., Rule 40, Rules of Court)
SEC. 13. Dismissal of appeal.Prior to the transmittal of the original
Lack of Jurisdiction record or the record on appeal to the appellate court, the trial court
may motu proprio or on motion dismiss the appeal for having been
1. A case may be dismissed in the Municipal Trial taken out of time, or for non-payment of the docket and other lawful
Court without a trial on the merits. This occurs fees within the reglementary period. (13a)
when a motion to dismiss is filed and granted in
Non-payment of docket fees the court acquires no
accordance with Rule 16 of the Rules of Court,
jurisdiction over the subject matter of the case.
the Regional Trial Court may affirm or reverse
it. If the order is affirmed, then it is a declaration Appeal taken out of time.
of the merits of the dismissal.
Sec.2, Rule 50, Rules of Court
However, if the dismissal is made on the ground
Sec. 2. Dismissal of improper appeal to the Court of Appeals.An appeal
of lack of jurisdiction over the subject matter, under Rule 41 taken from the Regional Trial Court to the Court of
and the Regional Trial Court affirms the Appeals raising only questions of law shall be dismissed, issues purely
dismissal, the action of the latter court shall not of law not being reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review from the appellate
be confined to a mere affirmation of the
judgment of a Regional Trial Court shall be dismissed. (n)
dismissal. Instead, the rule obligates the

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

An appeal erroneously taken to the Court of Appeals shall not be The concept of residual jurisdiction is available at a stage
transferred to the appropriate court but shall be dismissed outright. in which a court is normally deemed to have LOST
(3a)
JURISDICTION over the case or the subject matter
Appeals to be dismissed: involved in the appeal. There is no residual jurisdiction
to speak of where no appeal or petition has ever been
Raising only questions of law filed (Fernandez vs. C.A. 458SCRA454).

Erroneously Taken Sec.2(a), Rule 39, Rules of Court

Sec. 2. Discretionary execution.

APPEAL, SUBJECT, INTERRUPTION, and
PROHIBITION: (a) Execution of a judgment or final order pending appeal. On
motion of the prevailing party with notice to the adverse party filed in
The period of appeal shall be interrupted by a timely the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as the
motion for new trial or reconsideration. No motion for
case may be, at the time of the filing of such motion, said court may, in
extension of time to file a motion for new trial or its discretion, order execution of a judgment or final order even before
reconsideration of the judgment or final order (Sec.2, the expiration of the period to appeal.
Rule 40, and Sec.3, Rule 41, Rules of Court).

Sec.1, Rule 41, Rules of Court. Sec.9, Rule 41, Rules of Court

SECTION 1. Subject of appeal.An appeal may be taken from a Xxx x

judgment or final order that completely disposes of the case, or of a
In either case, prior to the transmittal of the original record or the
particular matter therein when declared by these Rules to be
record on appeal, the court may issue orders for the protection and
appealable.
preservation of the rights of the parties which do not involve any
No appeal may be taken from: matter litigated by the appeal, approve compromises, permit appeals
of indigent litigants, order execution pending appeal in accordance
(a) An order denying a motion for new trial or reconsideration; with section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
(b) An order denying a petition for relief or any similar motion seeking
relief from judgment;
SEC.8(a), Rule 42, Rules of Court
(c) An interlocutory order;
Xxx
(d) An order disallowing or dismissing an appeal;
However, before the Court of Appeals gives due course to the petition,
(e) An order denying a motion to set aside a judgment by consent,
the Regional Trial Court may issue orders for the protection and
confession or compromise on the ground of fraud, mistake or duress,
preservation of the rights of the parties which do not involve any
or any other ground vitiating consent.
matter litigated by the appeal, approve corn-promises, permit appeals
(f) An order of execution; of indigent litigants, order execution pending appeal in accordance
with section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41)
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and third- The term refers to the:
party complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
i. authority of as trial court to issue orders for the
(h) An order dismissing an action without prejudice. protection and preservation of the rights of the
In all the above instances where the judgment or final order is not
parties which do not involve any matter
appealable, the aggrieved party may file an appropriate special civil litigated by the appeal, approve compromises,
action under Rule 65. (n) permit appeals of indigent litigants, order
execution pending appeal in accordance with
*Take note of the above cited explanation of Sec.1, Rule
Sec.2, Rule 39, and
41.
ii. allow withdrawal of the appeal provided these
RESIDUAL JURISDICTION:
are done prior to the transmittal of the original
record or the record on appeal even if the
7

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

 appeals have already been perfected despite the iii. EXPIRATION of the period for its filing
approval of the record on appeal (Sec.9, Rule 41,
Sec.1(a), Rule 51, Rules of Court
Rules of Court) or
Sec. 1. When case deemed submitted for judgment.A case shall be
iii. in case of a petition for review under Rule 42 deemed submitted for judgment:
before the Court of Appeals gives due course to
A. In ordinary appeals.
the petition (Sec.8, Rule 42, Rules of Court).
1) Where no hearing on the merits of the main case is held, upon the
Residual Rule 41 Rule 42 filing of the last pleading, brief, or memorandum required by the Rules
or by the court itself, or the expiration of the period for its filing.
Jurisdiction
2) Where such a hearing is held, upon its termination or upon the filing
When Before transmittal of Before the court of the last pleading or memorandum as may be required or permitted to
be filed by the court, or the expiration of the period for its filing.
the original record gives due course.

WITHDRAWAL OF APPEAL:

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

ii. EXPIRATION of the period for its filing WHEN:

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

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

HOW: The Court may grant an additional 15 days only within
which to file the petition for review:
A party desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of its (a) Upon proper motion and
appellate jurisdiction may:
(b) the payment of the full amount of the docket
(a) file a VERIFIED petition for review with the and other lawful fees and the deposit for costs
Court of Appeals,
(c) before the expiration of the reglementary period.
(b) paying at the same time to the clerk of said court
the corresponding docket and other lawful fees, *No further extension shall be granted except for the
depositing the amount of P500.00 for costs, and most compelling reason and in no case to exceed fifteen
(15) days. (n)
(c) furnishing the Regional Trial Court and the
adverse party with a copy of the petition. (Sec.1, Rule 42, Rules of Court)

(Sec.1, Rule 42, Rules of Court) PERFECTION, LOSING of COURTs JURISDICTION,

and CONTENTS:
(d) The Court of Appeals may dismiss the petition if
it finds the same to be patently without merit, The appeal is perfected as to the petitioner upon the
prosecuted manifestly for delay, or that the timely filing of a petition for review and the payment of
questions raised therein are too unsubstantial to the corresponding docket and other lawful fees, the
require consideration (Sec.4, Rule 42, Rules of appeal is deemed perfected as to the petitioner (Sec.8,
Court). Rule 42, Rules of Court).

(e) If the Court of Appeals does not dismiss the case Sec.8(a), Rule 42, Rules of Court.

it may require the respondent to file a comment Sec. 8. Perfection of appeal; effect thereof
on the petition, not a motion to dismiss, within
(a) Upon the timely filing of a petition for review and the payment of
ten (10) days from notice (Sec.4, Rule 42, Rules of the corresponding docket and other lawful fees, the appeal is deemed
Court). perfected as to the petitioner.

(f) If the Court of Appeals finds prima facie that the *The Regional Trial Court loses jurisdiction over the case
lower court has committed an error of fact or upon the perfection of the appeals filed in due time and
law that will warrant a reversal or modification the expiration of the time to appeal of the other parties.
of the appealed decision, it may accordingly (Sec. 8, Rule 42, Rules of Court).
give due course to the petition (Sec.6, Rule 42,
Rules of Court). The Regional Trial Court loses jurisdiction over the case:
(a) upon the perfection of the appeals
(g) If the petition is given due course, the Court of
Appeals may set the case for oral argument or (b) filed in due time and
require the parties to submit memoranda within
(c) the expiration of the time to appeal of the other
a period of fifteen (15) days from notice. The
parties. (Sec. 8, Rule 42, Rules of Court).
case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
court itself(Sec.9, Rule 42, Rules of Court). Sec.8(a), Rule 42, Rules of Court.

Sec. 8. Perfection of appeal; effect thereof

EXTENSION:
(a) Xxx

The Regional Trial Court loses jurisdiction over the case upon the

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

perfection of the appeals filed in due time and the expiration of the committed by the Regional Trial Court, and the reasons or arguments
time to appeal of the other parties. relied upon for the allowance of the appeal;

Xxx

Form and contents. DISMISSAL:

(a) FULL NAMES of the PARTIES to the case, without Sec.1, Rule 50, Rules of Court

impleading the lower courts or judges thereof either as Sec.1. Grounds for dismissal of appealAn appeal may be dismissed by
petitioners or respondents; the Court of Appeals, on its own motion or on that of the appellee, on
the following grounds:
(b) SPECIFIC MATERIAL DATES showing that it was
(a) Failure of the record on appeal to show on its face that the appeal
filed on time;
was taken within the period fixed by these Rules;

(c) STATEMENT OF THE MATTERS involved, the (b) Failure to file the notice of appeal or the record on appeal within
issues raised, the specification of errors of fact or law, or the period prescribed by these Rules;
both, allegedly committed by the Regional Trial Court, (c) Failure of the appellant to pay the docket and other lawful fees as
and the reasons or arguments relied upon for the provided in section 4 of Rule 41;
allowance of the appeal;
(d) Unauthorized alterations, omissions or additions in the approved
record on appeal as provided in section 4 of Rule 44;
(d) Accompanied by CLEARLY LEGIBLE DUPLICATE
ORIGINALS or TRUE COPIES of the JUDGMENTS or (e) Failure of the appellant to serve and file the required number of
FINAL ORDERS of both lower courts, certified correct copies of his brief or memorandum within the time provided by these
Rules;
by the clerk of court of the Regional Trial Court, the
requisite number of plain copies thereof and of the (f) Absence of specific assignment of errors in the appellants brief, or
of page references to the record as required in section 13, paragraphs
pleadings and other material portions of the record as
(a), (c), (d) and (f) of Rule 44;
would support the allegations of the petition.
(g) Failure of the appellant to take the necessary steps for the
(e) CERTIFICATE of NON-FORUM SHOPPING. correction or completion of the record within the time limited by the
court in its order;
(Sec.2, Rule 42, Rules of Court)
(h) Failure of the appellant to appear at the preliminary conference
RESIDUAL JURISDICTION: under Rule 48 or to comply with orders, circulars, or directives of the
court without justifiable cause; and
*See Explanation, Supra (i) The fact that order or judgment appealed from is not appealable.
(1a)
QUESTIONS TO BE RAISED:

The appellant may include in his assignment of errors

any QUESTION OF LAW or FACT, or BOTH, allegedly Sec.2, Rule 50, Rules of Court
committed by the Regional Trial Court. Sec. 2. Dismissal of improper appeal to the Court of Appeals.An appeal
under Rule 41 taken from the Regional Trial Court to the Court of
(a) Pure questions of LAW Appeals raising only questions of law shall be dismissed, issues purely
of law not being reviewable by said court. Similarly, an appeal by
(b) Questions of Fact notice of appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed. (n)
(c) Mixed Both law and fact
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed outright.
Sec.2(c), Rule 42, Rules of Court
(3a)

Sec. 2. Form and contents.Xxx

SUBMITTED for DECISION
(c) set forth concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both, allegedly

10

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

The case shall be deemed submitted for decision upon As a matter of Discretion:
the filing of the last pleading or memorandum required
by these Rules or by the court itself. (Sec. 9, Rule 42, Rules (a) If the appellee has already filed its answer, the
of Court). court may allow the withdrawal of the case
upon its discretion.
Sec. 9, Rule 42, Rules of Court
Sec.9, Rule 41, Rules of Court
Sec. 9. Submission for decision.If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the Xxx x
parties to submit memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision upon the filing In either case, prior to the transmittal of the original record or the record on
of the last pleading or memorandum required by these Rules or by the appeal, the court may issue orders for the protection and preservation of
court itself. (n) the rights of the parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal. (9a)
Sec.1 (B), Rule 51, Rules of Court

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

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

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

Rule 42 Rule 43

WITHDRAWAL: Scope Applies to an appeal Applies to awards,

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

11

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

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

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

12

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

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

13

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

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

14

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

the findings of the trial court, as affirmed by the Court of (a) When the court a quo has decided a question of substance, not
Appeals are conclusive on the Court. theretofore determined by the Supreme Court, or has decided it in a
way probably not in accord with law or with the applicable decisions
of the Supreme Court; or
Exceptions:
(b) When the court a quo has so far departed from the accepted and
(a) Question of substance not yet determined by the usual course of judicial proceedings, or so far sanctioned such
Supreme Court. departure by a lower court, as to call for an exercise of the power of
supervision.

(b) Court below decided a matter of substance in a

WHEN:
way that is not in accord with the law.
The petition shall be filed and served within fifteen (15)
(c) Court below has departed from the accepted
days from notice of the decision sought to be reviewed
and usual course of judicial proceedings.
or of the denial of petitioners motion for new trial or
(Sec.6, Rule 45, Rules of Court) reconsideration filed in due time after judgment (Sec.2,
Rule 45, Rules of Court).
(d) Conclusion of the CA is grounded entirely on
EXTENSION:
speculations.

(e) Inference made is manifestly mistaken. The Court may grant an additional 30 days only within
which to file the petition for review:
(f) Grave abuse of discretion.
(a) Upon proper motion and
(g) Misapprehension of facts.
(b) the payment of the full amount of the docket
(h) Facts are conflicting. and other lawful fees and the deposit for costs

(i) The CA went beyond the issues of the case. (c) before the expiration of the reglementary period.

(j) Findings of the CA are contrary to that of the Sec.2, Rule 45, Rules of Court
trial court.
Sec. 2. Time for filing; extension.The petition shall be filed within
fifteen (15) days from notice of the judgment or final order or
(k) Findings of fact are conclusions without citation resolution appealed from, or of the denial of the petitioners motion for
of specific evidence on which they are based. new trial or reconsideration filed in due time after notice of the
judgment. On motion duly filed and served, with full payment of the
(l) Facts set forth by in the petition by the petitioner docket and other lawful fees and the deposit for costs before the
are not disputed by the respondents. expiration of the reglementary period, the Supreme Court may for
justifiable reasons grant an extension of thirty (30) days only within
which to file the petition.
(m) The findings of fact by the CA are premised on
the supposed absence of evidence and
CONTENTS:
contradicted by the evidence on record.
See Sec.2, Rule 42, Rules of Court, Supra
(n) In appeal from a judgment or final order of the
court in a petition for writ of amparo or habeas DISMISSAL:
data questions of fact may be raised.
Sec. 5, Rule 45, Rules of Court
Sec.6, Rule 45, Rules of Court Sec. 5. Dismissal or denial of petition.The failure of the petitioner to
comply with any of the foregoing requirements regarding the payment
Sec. 6. Review discretionary.A review is not a matter of right, but of
of the docket and other lawful fees, deposit for costs, proof of service
sound judicial discretion, and will be granted only when there are
of the petition, and the contents of and the documents which should
special and important reasons therefor. The following, while neither
accompany the petition shall be sufficient ground for the dismissal
controlling nor fully measuring the courts discretion, indicate the
thereof.
character of the reasons which will be considered:

15

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

The Supreme Court may on its own initiative deny the petition on the excess of jurisdiction.
ground that the appeal is without merit, or is prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial to Filed within 15days from Filed within 60 days from
require consideration.
notice of judgment. notice of judgment.
SUBMITTED for DECISION:
Does not require a prior Requires a prior Motion
Sec. 1(B), Rule 51, Rules of Court Motion for for Reconsideration.
Reconsideration.
Sec.1. When case deemed submitted for judgment.A case shall be deemed
submitted for judgment:
Stays the judgment Does not appeal the
Xxx appealed. judgment or order of the
B. In original actions and petitions for review. petition unless enjoined or
restrained.
1) Where no comment is filed, upon the expiration of the period to
comment.
Parties as the original Tribunal, board, officer
2) Where no hearing is held, upon the filing of the last pleading parties with the appealing exercising judicial or
required or permitted to be filed by the court, or the expiration of the
party as the petitioner and quasi-judicial functions in
period for its filing.
the adverse party as impleaded as respondent.
3)Where a hearing on the merits of the main case is held, upon its respondent.
termination or upon the filing of the last pleading or memorandum as
may be required or permitted to be filed by the court, or the expiration
Only Filed in SUPREME Filed with the:
of the period for its filing.
COURT.
(a) RTC (Sec.21, BP
129 as amended)
RULE 45 as distinguished from RULE 65
(b) CA (Sec.9, BP 129
Rule 45 Rule 65 as amended)

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

is an original action. VIII)

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

16

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

Certiorari, Prohibition, Mandamus, Quo Warranto, his side of the case by deception practiced by the
Annulment (CPMQA). prevailing party (Alba vs. CA, 465 SCRA 495).

Rule 65- CPM (b) LACK OF JURISDICTION

Rule 66-Q Refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Rule 47-A Petitioner must show an absolute lack of authority to
Sec. 2. To what actions applicable.This Rule shall apply to original
decide the case.
actions for certiorari, prohibition, mandamus and quo warranto.
EFFECT of JUDGMENT OF ANNULMENT:
Except as otherwise provided, the actions for annulment of judgment
shall be governed by Rule 47, for certiorari, prohibition and (a) EXTRINSIC FRAUD
mandamus by Rule 65, and for quo warranto by Rule 66. (n)
1) Where the judgment or final order is set aside,
and annulled on the ground of EF, the court,
Sec.1, Rule 46, Rules of Court upon motion, may order the trial court to try the
case as if a motion for new trial was granted
Sec.1. Title of cases.In all cases originally filed in the Court of
Appeals, the party instituting the action shall be called the petitioner
(Sec.7, Rule 47, Rules of Court).
and the opposing party the respondent. (1a)
Sec.7. Rule 47, Rules of Court

Sec. 7. Effect of judgment- Xxx

RULE 47 ANNULMENT OF JUDGMENTS OR FINAL However, where the judgment or final order or resolution is set aside
ORDERS AND RESOLUTIONS on the ground of extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for new trial had been
APPLICATION: granted therein.

The purpose of such action is to have final and executor (b) LACK OF JURISDICTION
judgment set aside so that there will be a renewal of
A judgment of annulment based on LOJ shall
litigation.
have the effect of setting aside the questioned
It is resorted to in cases where the ordinary remedies of judgment or final order and rendering the same
new trial, appeal, petition for relief from judgment, or null and void but the judgment of annulment is
other appropriate remedies are no longer available without prejudice to the refilling of the original
through no fault of the petitioner, and is based only two action in the proper court(Sec.7, Rule 47, Rules of
grounds: Extrinsic Fraud, and Lack of Jurisdiction or Court).
denial of due process (Alaban vs. CA, 470 SCRA 697).
Sec.7, Rule 47, Rules of Court
GROUNDS for ANNULMENT:
Sec. 7. Effect of judgment- A judgment of annulment shall set aside the
questioned judgment or final order or resolution and render the same
A petition for annulment is an extraordinary action. By
null and void, without prejudice to the original action being refiled in
virtue of its exceptional character, the action is restricted the proper court. Xxx
exclusively to the grounds specified in the rules:
(c) Judgment may include award of damages,
(a) EXTRINSIC FRAUD
attorneys fees, and other relief (Sec.9, Rule 47,
Exists when there is a fraudulent act committed by the Rules of Court).
prevailing party outside of the trial of the case, whereby
Sec.9, Rule 47, Rules of Court
the defeated party was prevented from presenting fully
Sec.9. Relief available.The judgment of annulment may include the

17

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

award of damages, attorneys fees and other relief. petition. (n)

If the questioned judgment or final order or resolution had already

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

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

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

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

INTERRUPTION and PROHIBITION:

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

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

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

Sec.3, Rule 46, Rules of Court

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

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

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

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

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

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

extrajudicial functions which has acted without or in (c) Urgent necessity for the resolution of the
excess of jurisdiction, or with grave abuse of discretion questions and any further delay would
amounting to lack or excess of jurisdiction. prejudice the interest of the petitioner.

As a rule, where appeal is available, certiorari cannot be (d) Motion for reconsideration is useless.
availed of unless it can be shown that appeal is not
speedy, or adequate. (e) Petitioner was deprived of due process and
there is extreme urgency for relief.
The task of the court in a certiorari proceeding is to
determine whether the lower court committed grave (f) In criminal case, relief from an order of arrest is
abuse of discretion (Marcopper Mining vs. Solidbank urgent.
Corporation, GR No. 134049). Its function is to raise
(g) The proceeding was ex parte or in which the
questions of jurisdiction and no other. It cannot be used
petitioner had no opportunity to object.
for any other purpose (Landbank vs. CA, 409 SCRA 455).
(h) Issue raised is one purely of law or public
Do not file certiorari if your purpose is to raise a factual
interest is involved.
issue or to ask for re-evaluation of the facts and the
evidence (PILTEL vs. NTC, 410 SCRA 82). RULE 45 as distinguished from RULE 65

The phrase grave abuse of discretion has a precise See Table in RULE 45, Supra
meaning in law, denoting abuse of discretion too patent
and gross as to amount to an evasion of a positive duty,
or a virtual refusal to perform the duty enjoined or act in
Distinction between a DIRECT from a COLLATERAL
contemplation of law, or where the power is exercised in
ATTACK
an arbitrary and despotic manner by reason of passion
and personal hostility. A DIRECT ATTACK of a judgment is made through an
action or proceeding the main object of which is to
MOTION for RECONSIDERATION
annul, set aside or enjoin the enforcement of such
The general rule is that before filing a petition for judgment if not yet carried into effect; or if the property
certiorari under Rule 65 of the Rules of Court, the has been disposed of, the aggrieved party may sue
petitioner is mandated to comply with the condition recovery.
precedent:
A COLLATERAL ATTACK is made when, in another
(1) The filing of a Motion for Reconsideration, and action to obtain a different relief, an attack on the
judgment is made as an incident in said action. This is
(2) The subsequent denial of the court a quo. proper only when the judgment, on its face, is null and
void, as where it is patent that the court which rendered
However, the rule is subject to the following recognized said judgment has no jurisdiction (Co vs. C.A., 196 SCRA
exceptions: 705).
(a) The court a quo has no jurisdiction Examples: A petition for certiorari under Rule 65 is a
(b) Questions raised in the certiorari proceeding direct attack. It is filed primarily to have an order
annulled. An action for annulment of a judgment is
have been duly raised and passed upon by the
lower court, or are the same as those raised and likewise a direct attack on a judgment is likewise a direct
attack on a judgment. A motion to dismiss a complaint
passed upon in the lower court.
for collection of a sum of money filed by a corporation
against the defendant on the ground that the plaintiff
has no legal capacity to sue is a collateral attack on the

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

corporation. A motion to dismiss is incidental to the
main action for a sum of money. It is not filed as an
action intended to attack the legal existence of the
plaintiff (Macabingkil vs. PHHC, 72 SCRA 326; Co vs. C.A.,
196 SCRA 705).

References:

Riano, William B., Civil Procedure (A

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

Lakas Atenista Civil Procedure Reviewer I and

II 2007

Ateneo University Civil Procedure Reviewer

2001

Rules on Civil Procedure, Rules of Court,

Manila: Rex Bookstore, Inc., 2009

DISCLAIMER:

The views or opinions presented in this reviewer are

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

The author accepts no liability for the content of this

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

The reviewer is a compilation of different law books/

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

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