duty to move ex parte that the case be set for
Pre-Trial
CONCEPT OF PRE-TRIAL
DEFINITION
A mandatory conference and personal confrontation
before the judge between the parties litigant and their
representative counsels, called by the court after the
joinder of issues in a case or after the last pleading has
been filed and before trial, for the purpose of settling
the litigation expeditiously or simplifying the issues
without sacrificing the necessary demands of justice
(Asked in the 1999 Bar Examination, Examiner asked to
compare this with proceedings in the Katarungang
Pambarangay).
NATURE AND PURPOSE
PURPOSE
To consider: [Rule 18, Sec. 2]
(a) Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
(b) Simplification of the issues;
(c) Necessity/desirability of amendments to the
pleadings;
(d) Possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary
proof;
(e) Limitation of the number of witnesses;
(f) Advisability of a preliminary reference of issues to a
commissioner;
(g) Propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action
should a valid ground therefor be found to exist;
(h) Advisability/necessity of suspending the
proceedings; and
(i) Other matters that may aid in the prompt
disposition of the action.
Note:
(a) Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
(b) Thus, to obviate the element of surprise, parties
are expected to disclose at a pre-trial
conference (PTC) all issues of law and fact which
they intend
to raise at the trial, except such as may involve
privileged or impeaching matters. The determination of
issues at a pre-trial conference bars the consideration of
other questions on appeal. [Caltex v. CA (1992)]
(c) When conducted: After the last pleading has
been served and filed, it shall be the plaintiffs
pretrial. [Rule 18, Sec. 1]
(d) A pre-trial cannot validly be held until the last
pleading has been filed, which last pleading may
be the plaintiff's reply, except where the period
to file the last pleading has lapsed.
(e) Discretion to declare a party non-suited in PTC
must not be abused. Unless a party is so
negligent, irresponsible, contumacious, or
dilatory as to provide substantial grounds for
dismissal for non-appearance, the court should
consider lesser sanctions which would still
amount to achieving the end desired. [Calalang
v.
CA (1993)]
NOTICE OF PRE-TRIAL [Rule 18, Sec. 3] Notice of pre-trial
shall be served on counsel, or on the party who has no
counsel.
Counsel served with such notice has a duty to notify the
party he represents.
At the start of the preliminary conference, the judge is
mandated to refer the parties and/or their counsels to
the mediation unit of the Philippine Mediation Center
(PMC) for purposes of mediation. If the mediation fails,
the judge will schedule the continuance of the
preliminary conference. This rule applies to Metro
Manila, Cebu Davao City, and other place where PMC
Units may be further organized and designated. [Admin,
Circular No. 20-2002;
Admin. Circular No. 50-2005, April 26, 2005]
APPEARANCE OF PARTIES; EFFECT OF FAILURE
TO APPEAR
APPEARANCE OF PARTIES [Rule 18, Sec. 4] It is the duty of the
parties and their counsel to appear at the pre-trial.
A partys non-appearance may be excused only if either:
(a) Valid cause is shown for it;
(b) A representative appears in his behalf, fully
authorized in writing: (1) To enter into an
amicable settlement;
(2) To submit to alternative modes of dispute
resolution;
(3) To enter into stipulations/admissions of facts
and of documents.
Citibank v. Chua (1993): SC admonishes the courts
against precipitate orders of default as they have the
effect of denying the party the chance to be heard.

There are instances when parties may properly be
defaulted, but such is the exception rather than the rule
and should be used only in clear cases of obstinate
refusal or inordinate neglect to comply with court
orders.
FAILURE TO APPEAR AT PRE-TRIAL
Who fails to Effect
appear
Plaintiff Cause for dismissal of the action
which will be with prejudice,
unless otherwise
ordered by the court
Defendant Cause to allow plaintiff to
present evidence ex parte, and
court to render judgment on the
basis thereof
Default by defendant As in default
(Rule 9, Sec. 3) (failure to appear by
plaintiff) (Rule 18, Sec. 5)
Upon motion and notice Not required
to defendant.
Requires proof of failure Not required
to answer
Court to render Court to allow plaintiff to
judgment, unless it present evidence ex
requires submission of parte, then the court
evidence shall render judgment
Relief awarded must be Relief awarded may be
the same in nature and of different nature and
amount as prayed for in amount from the relief
the complaint prayed for
(a) A defendant who already filed an answer cannot be
declared in default. Only when the defendant fails
to file an answer to the complaint may the court
proceed to render judgment. [Lesaca v. CA (1992)]
(b) The Revised Rules on Summary Procedure does not
provide that an answer filed after the reglementary
period should be expunged from the records.
(c) As a matter of fact, there is no provision for an entry
of default if a defendant fails to file his answer.
(d) The defense of LOJ may have even been raised by
the defendant in a MTD as an exception to the rule
on prohibited pleadings in the Revised Rule on
Summary Procedure.
(e) Such a motion is allowed under Sec. 19(a) thereof.
[Bayog v. Natino (1996)]
(f) Where the failure to appear at the pre-trial hearing
was uncontrovertedly due to illness, the default
order may be set aside on the ground of accident
over which petitioner had no control.
(g) Also, the order of arrest was illegal as there is
nothing in the ROC which authorizes such a
consequence of a default order. [Malanyaon v.
Sunga (1992)]
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO
APPEAR
PRE-TRIAL BRIEF [Rule 18, Sec. 6]
(a) Parties shall file and serve their respective pretrial
briefs, ensuring receipt by adverse party at least 3 days
before the date of the pre-trial. (b) Pre-trial briefs
contents (Asked in the 2001 Bar Exam):
(1) Statement of their willingness to enter into
amicable settlement or alternative modes of
dispute resolution, indicating the desired
terms thereof;
(2) Summary of admitted facts and proposed
stipulation of facts;
(3) Issues to be tried/resolved;
(4) Documents/exhibits to be presented, stating
the purpose thereof;
(5) Manifestation of their having availed or their
intention to avail themselves of discovery
procedures or referral to commissioners;
(6) Number and names of the witnesses, and the
substance of their respective testimonies.
[AM No. 03-1-09-SC]
Note: Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.
RECORD OF PRE-TRIAL [Rule 18, Sec. 6]
(a) The pre-trial proceedings shall be recorded.
Upon termination of such proceedings, the
court shall issue the pre-trial order.
(b) Pre-trial orders contents:
(1) Matters taken up in the conference;
(2) Action taken thereon;
(3) Amendments allowed on the pleadings;
(4) Agreements/admissions made by the parties
as to any matters considered;
(5) Should the action proceed to trial, the
explicit definition and limit of the issues to be
tried.
(c) Consequence: The contents of the order shall
control the subsequent course of the action,
unless modified before trial to prevent manifest
injustice.
 (d) Upon manifestation of the parties of their Considered the Does not include the
willingness to discuss a compromise, the TC possibility of an considering of the
should order the suspension of the proceedings amicable settlement as possibility of amicable
to allow them reasonable time to discuss and an important objective settlement of ones
conclude an amicable settlement. [Rule 118, Sec. 2(a)] criminal liability as one
(e) If despite all efforts exerted by the TC and the of its purposes [Rule
parties the settlement conference still fails, then 118,
the action should have continued as if no Sec. 1]
suspension had taken place. [Goldloop The arrangements and (Stricter procedure)
Properties v. CA (1992)] admissions in the All agreements or
pretrial are not required admissions made or
Note: AM 03-1-09-SC (No termination of pre-trial for to be signed by both entered during the
failure to settle) parties and their pretrial conference
counsels. shall be
CALENDAR OF CASES
(a) Under the direct supervision of the judge, the clerk Civil Case Criminal Case
of court shall keep a calendar of cases for pre-trial,
for trial, those whose trials were Under the Rules, they reduced in writing and
adjourned/postponed, and those with motions to are instead to be signed by both the
set for hearing. [Rule 20, Sec. 1] contained in the record accused and counsel;
(b) Preference shall be given to habeas corpus cases, of pre-trial and pre-trial otherwise, they cannot
election cases, special civil actions, and those so order [Rule 18, Sec. 7] be used against the
required by law. [Rule 20, Sec. 1] accused. [Rule 118, Sec.
(c) The assignment of cases to the different branches of [AM No. 03-1-09] - 2]
a court shall be done exclusively by raffle. The requires the
assignment shall be done in open session of which proceedings during the
adequate notice shall be given so as to afford preliminary conference
interested parties the opportunity to be to be recorded in the
present. [Rule 20, Sec. 2] Minutes of Preliminary
Conference to be
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND signed by both parties
and/or counsel.
PRE-TRIAL IN CRIMINAL CASE (Bar
(Note: either party or his
1997, Riano) counsel is allowed to
sign)
The sanctions for Sanctions are imposed
Civil Case Criminal Case nonappearance are upon the counsel for
imposed upon the the accused or the
Set when the plaintiff Ordered by the court plaintiff and the prosecutor [Rule 118,
moves ex parte to set and no motion to set defendant [Rule 18, Sec. 3]
the case for pre-trial the case for pre-trial is Sec. 4]
[Rule required from either A pre-trial brief is A pre-trial brief is not
18, Sec. 1] the prosecution or the specifically required to specifically required.
defense [Rule 118, Sec. be submitted [Rule 18,
1] Sec. 6]
Made after the pleading Ordered by the court
has been served and after arraignment and ALTERNATIVE DISPUTE RESOLUTION (ADR) [RA
filed [Rule 18, Sec. 1] within 30 days from the
sate the court acquired 9285] WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM?
jurisdiction over the Means any process or procedure used to resolve a
person of the accused dispute or controversy, other than by adjudication of a
[Rule 118, Sec. 1] presiding judge of a court or an officer of a government
agency, as defined in this Act, in which a neutral third
party participates to assist in the
resolution of issue [RA 9285, Sec. 3]

POLICY BEHIND THE ADR: to actively promote party
autonomy in the resolution of disputes or the freedom
of the party to make their own arrangements to resolve
their disputes [RA 9285,
Sec. 2]
Notes:
At the start of the pre-trial conference, the judge shall
immediately refer the parties and/or their counsel if
authorized by their clients to the PMC mediation unit for
purposes of mediation if available.[AM No. 03-1-09-SC]
The pre-trial briefs of parties must include the parties
statement of their willingness to enter into an amicable
settlement indicating the desired terms thereof or to
submit the case to any of the alternative
modes of dispute resolution [AM No. 03-1-09-SC]
EXCEPTION TO THE APPLICATION OF RA 9285:
(a) labor disputes covered by the Labor Code;
(b) the civil status of persons;
(c) validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts;
(f) future legitime;
(g) criminal liability; and
(h) those which by law cannot be compromised.
MODES OF ALTERNATIVE DISPUTE RESOLUTIONS:
Arbitration [RA, 9285, Section 1]
A voluntary dispute resolution process in which one or
more arbitrators, appointed in accordance with the
agreement of the parties, or rules promulgated
pursuant to this Act, resolve a dispute by rendering
an award\
Note: A court before which an action is brought in a
matter which is the subject matter of an arbitration
agreement shall, if at least one party so requests not
later that the pre-trial conference, or upon the request
of both parties thereafter, refer the parties to
arbitration unless it finds that the arbitration agreement
is null and void, inoperative or incapable
of being performed. [RA 9285, Sec. 24]
Different Kinds:
(a) Domestic Arbitration an arbritration that is not
international; governed by RA 876 (Arbitration Law)
[RA 9285, Sec. 32]
(b) International Arbitration - An arbitration is
international if:
(1) the parties to an arbitration agreement have, at
the time of the conclusion of that agreement,
their places of business in
different States; or
(2) one of the following places is situated outside
the State in which the parties have their places
of business:
(i) the place of arbitration if determined in, or
pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the
obligations of the commercial relationship is to
be performed or the place with which the
subject-matter of the dispute is most closely
connected; or
(3) the parties have expressly agreed that the
subject matter of the arbitration agreement
relates to more than one country [Article 3,
Model Law on International Commercial
Arbritration]
Mediation [RA, 9285, Sec. 1]
(a) a voluntary process in which a mediator,
selected by the disputing parties, facilitates
communication and negotiation, and assist the
parties in reaching a voluntary agreement
regarding a dispute
(b) includes conciliation
Mini-trial [RA, 9285, Sec. 1]
A structured dispute resolution method in which the
merits of a case are argued before a panel comprising
senior decision makers with or without the presence of
a neutral third person after which the
parties seek a negotiated settlement
Early Neutral Evaluation [RA, 9285, Sec. 1]
An ADR process wherein parties and their lawyers are
brought together early in a pre-trial phase to present
summaries of their cases and receive a nonbinding
assessment by an experienced, neutral person, with
expertise in the subject in the substance of the dispute
Combination of Alternative Dispute Resolution [RA,
9285, Sec. 1]
Example: Med-Arb: step dispute resolution process
involving both mediation and arbitration
Intervention
DEFINITION OF INTERVENTION (Asked in the
2003 Bar Exam) [Rule 19, Sec. 1]
A legal remedy whereby a person is permitted to
become a party in a case, by either:
(a) Joining the plaintiff;
(b) Joining the defendant;
(c) Asserting his right against both plaintiff and
defendant, considering that either:
(1) He has a legal interest in the subject matter
of the action;
(2) He has legal interest in the success of either
of the parties
(3) He has legal interest against both of the
parties
(4) He is going to be adversely affected by the
disposition of the property in the custody of
the court
Metropolitan Bank v. Presiding Judge (1990):
Intervention is a proceeding in a suit/action by which a
3rd person is permitted by the court to make himself a
party, either joining plaintiff in claiming what is sought
by the complaint, or uniting with defendant in resisting
the claims of plaintiff, or demanding something
adversely to both of them.
Cario v. Ofilada (1993): It is the act/proceeding by
which a 3rd person becomes a party in a suit pending
between others.
It is the admission, by leave of court, of a person not an
original party to pending legal proceedings, by which
such person becomes a party thereto for the protection
of some right of interest alleged by him to be affected
by such proceedings.
An intervenor is a party to the action as the original
parties are, and to make his right effectual he must
necessarily have the same powers as the original
parties. He is entitled to have the issues raised between
him and the original parties tried and determined.
Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation. Its
purpose is to afford one not an original party, yet having
a certain right/interest in the pending case, the
opportunity to appear and be joined so he could assert
or protect such right/interest.
Hence, the final dismissal of the principal action results
into the dismissal of said ancillary action.
WHO MAY INTERVENE [Rule 19, Sec. 1]
(a) One who has a legal interest in the matter in
litigation;
(b) One who has a legal interest in the success of either
of the parties;
(c) One who has an interest against both parties;
(d) One who is so situated as to be adversely affected by
a distribution/disposition of property in the courts
custody.
MEANING OF LEGAL INTEREST
(a) Interest must be of a direct and immediate
character so that the intervenor will either gain or
lose by the direct legal operation of the judgment.
The interest must be actual and material, a
concern which is more than mere curiosity, or
academic or sentimental desire; it must not be
indirect and contingent, indirect and remote,
conjectural, consequential or collateral.
[Virra Mall Tenants v. Virra Mall (2011)]
(b) When the title to the property if declared void by
final judgment, intervention will not revive or
reinstate the movants title derived from the title
declared void. [Firestone Ceramics v. CA (1999)]
(c) The assignee of a property who assumed payment
of whatever amount may be finally adjudged
against the assignor, may intervene in a
proceeding involving the execution of the
property pursuant to a judgment. [Robles v.
Timario (1962)]
(d) In an action for foreclosure of mortgage, the
alleged owners of the land sought ot be foreclosed
may intervene. [Roxas v. Dinglasan
(1969)]
Note: Notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound
discretion of the court, the exercise of which is limited
by considering "whether or not the intervention will
unduly delay or prejudice the adjudication of the rights
of the original parties and whether or not the
intervenors rights may be fully protected in a separate
proceeding. [Virra Mall
Tenants v. Virra Mall (2011)]
REQUISITES FOR INTERVENTION HOW
INTERVENTION IS DONE
By a motion to intervene, with the pleading- An ancillary action An original action
inintervention attached. Must also serve copy of the Proper in any of the four Presupposes that the
pleading-in-intervention on the original parties. [Rule situations mentioned in plaintiff has no interest in
19, Sec. 2] Rule 19 the subject matter of the
action or has an interest
General rule: Allowance of intervention is discretionary therein, which in whole
with the court. or in part is not disputed
by the other parties to
Exception: When the intervenor is an indispensable the action
party.
There is already a Defendants are being
defendant among the sued precisely to
FACTORS CONSIDERED IN ALLOWING INTERVENTION
original parties to the implead them
(a) WON intervention will unduly delay or prejudice
the adjudication of the rights of the original pending suit
parties.
TIME TO INTERVENE
(b) WON the intervenor's rights may be fully Intervention is allowed any time before TC renders
protected in a separate proceeding. judgment. [Rule 19, Sec. 2]

REMEDY FOR THE DENIAL OF MOTION TO

Carino v Ofilada (1993): The interest must be actual and INTERVENE
material, direct and immediate; not simply contingent REMEDIES
or expectant. (a) For denial of intervention:
(1) Appeal.
It must be in the matter in litigation and of such direct (2) Mandamus, if there is GAD.
and immediate character that the intervenor will either (b) For improper granting of intervention: Certiorari.
gain or lose by the direct legal operation and effect of
the judgment.

Magsaysay-Labrador v. CA (1989): Interest in the

subject means a direct interest in the cause of action as
pleaded and which would put the intervenor in a legal
position to litigate a fact alleged in the complaint,
without the establishment of which plaintiff could not
recover.
PLEADINGS IN INTERVENTION [Rule 19, Sec. 3] Complaint-in-
intervention If intervenor asserts a claim against either
or all of the original parties.
Answer-in-intervention If intervenor unites with the
defending party in resisting a claim against the latter.
Answer to complaint-in-intervention [Rule 19, Sec. 4] It
must be filed within 15 days from notice of the order
admitting the complaint-in-
intervention, unless a different period is fixed by the
court.
Subpoena
Subpoena is a process issued by court which is either:
TYPES (AND DEFINITION) OF SUBPOENA [Rule 21,
Sec. 1]
(a) Subpoena duces tecum
(b) Subpoena ad testificandum
BY WHOM ISSUED [Rule 21, Sec. 2]
(a) The court before whom the witness is required
to attend;
(b) The court of the place where the deposition is to
be taken;
(c) The officer/body authorized by law to do so in
connection with investigations conducted by
said officer/body;
(d) Any SC/CA Justice in any case or investigation
pending within the Philippines.

Intervention Interpleader FORM AND CONTENTS OF SUBPOENA [Rule 21,

Sec. 3]
 (a) Name of court;
(b) Title of action/investigation;
(c) Directed to a person whose attendance is
required
(d) If subpoena duces tecum, a reasonable
description of the books/documents/things
demanded which must appear to the court
prima facie relevant.
Subpoena for depositions [Rule 21, Sec. 5]
(a) Proof of service of a notice to take a deposition
is sufficient authorization for the issuance of
subpoena ad testificandum for the persons
named in the notice.
(b) Issued by the clerk of court of the place in which
the deposition is to be taken.
(c) However, subpoena duces tecum for
depositions cannot be issued without court
order.
SUBPOENA DUCES TECUM
Process directed to a person, requiring him to bring with
him any books/documents/things under his
control. (Asked in the 1997 Bar Exam)
SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER
FOR PRODUCTION OR INSPECTION See
Annex B.
SUBPOENA AD TESTIFICANDUM
Process directed to a person, requiring him to attend
and to testify at the hearing/trial of an action or at any
investigation conducted by competent authority, or for
the taking of his deposition.
SERVICE OF SUBPOENA [Rule 21, Sec. 6]
(a) Same manner as personal or substituted service of
summons.
(b) The original shall be exhibited and a copy delivered
to person on whom it is served, with tender of fees
for one days attendance and kilometrage.
(c) Exception: Tender not required if subpoena is issued
by or on behalf of the Republic or an officer/agency
thereof.
(d) For subpoena duces tecum, also tender the
reasonable cost of producing the
books/documents/things demanded.
(e) Service must be made so as to allow the witness
reasonable time for preparation and travel to the
place of attendance
COMPELLING ATTENDANCE OF
WITNESSES; CONTEMPT
PERSONAL APPEARANCE IN COURT [Rule 21, Sec. 7]
A person present in court before a judicial officer may
be required to testify as if he were in attendance upon
a subpoena issued by such court/officer.
APPLICATION FOR SUBPOENA TO PRISONER [Rule 21, Sec.
2]
(a) The judge/officer shall examine and study the
application carefully to determine WON it is made
for a valid purpose.
(b) However, no prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is confined
in a penal institution shall be brought outside for
appearance/attendance in any court unless
authorized by the SC.
REMEDY IN CASE OF WITNESS FAILURE TO ATTEND
Upon proof of service of subpoena and of witness
failure to attend, the court/judge issuing the subpoena
may issue a warrant to the sheriff to arrest the witness
and bring him before the court/officer
where his attendance is required. [Rule 21, Sec. 8]
The cost of warrant and seizure shall be paid by the
witness if the court determines that the failure to attend
was willful and without just excuse.
Such failure shall be deemed a contempt of the court
which issued the subpoena. [Rule 21, Sec. 9]
If subpoena was not issued by a court, the disobedience
shall be punished by applicable law or ROC.
Exception: Arrest warrant and contempt not applicable
to: [Rule 21, Sec. 10]
(a) A witness who resides more than 100km from his
residence to the place where he is to testify.
(b) A detention prisoner, if there is no permission from
the court in which his case is pending.
QUASHING OF SUBPOENA [Rule 21, Sec. 4] Upon
motion promptly made, at/before the time specified in
the subpoena.
GROUNDS FOR QUASHING: Subpoena
duces tecum:
(1) It is unreasonable and oppressive;
(2) The relevancy of the books/documents/ things
does not appear;
(3) The person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
production;
 (4) Witness fees and kilometrage were not
tendered when subpoena was served.
Subpoena ad testificandum:
(1) That the witness is not bound thereby;
(2) That witness fees and kilometrage were not
tendered when the subpoena was served.
Modes of Discovery
DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE
ACTION OR PENDING APPEAL [Rules 23 and 24]
DEPOSITIONS UNDER RULE 23
Meaning and purpose of deposition
(a) Deposition is chiefly a mode of discovery, the
primary function of which is to supplement the
pleadings for the purpose of disclosing the real
points of dispute between the parties and
affording an adequate factual basis during the
preparation for trial.
(b) The liberty of a party to avail of such modes of
discovery is unrestricted if the matters inquired
into are relevant and not privileged, and the
inquiry is made in good faith and within the
bounds of the law.
(c) Limitations would arise if the examination is
conducted in bad faith; or in such a manner as
to annoy, embarrass or oppress the person
under examination; or when the inquiry touches
upon the irrelevant or encroaches upon the
recognized domains of privilege.
(d) Under certain conditions and for certain limited
purposes, it may be taken even after trial has
commenced and may be used without the
deponent being actually called to the witness
stand. [Jonathan Landoil v Mangudadatu (2006)]
Scope of examination
Unless otherwise provided by the court, the deponent
may be examined regarding any matter not privileged,
which is relevant to the pending action, whether
relating to the claim or defense of any party
(a) including the existence, description, nature, custody,
condition and location of any books, documents, or
other tangible things and the identity of any persons
having knowledge of
relevant facts. [Rule 23, sec. 2]
Uses of deposition pending action
Dasmarias Garments,Inc. v. Reyes (1993):
General Rule: A deposition is not generally supposed to
be a substitute for the actual testimony in open court of
a party or witness. If the witness is available to testify,
he should be presented in court to testify. If available
to testify, a partys or witness deposition is inadmissible
in evidence for being hearsay.
Exception: [Rule 23, Section 4]
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
(b) The deposition of a party or of any one who at the
time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is a
party may be used by an adverse party for any
purpose;
(c) The deposition of a witness, whether or not a party,
may be used by any party for any purpose if the
court finds: (1) that the witness is dead; or
(2) that the witness resides at a distance more than
one hundred (100) kilometers from the place of
trial or hearing, or is out of the Philippines, unless
it appears that his absence was procured by the
party offering the
deposition; or
(3) that the witness is unable to attend to testify
because of age, sickness, infirmity, or
imprisonment; or
(4) that the party offering the deposition has been
unable to procure the attendance of the witness
by subpoena; or
(5) upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with due
regard to the importance of presenting the
testimony of witnesses orally in open court, to
allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by
a party, the adverse party may require him to
introduce all of it which is relevant to the part
introduced, and any party may introduce any other
parts.
Before whom taken
General Rule: Depositions may be taken before any
judge, notary public, or the person referred to in section
14 (which refers to any person authorized to administer
oaths designated by the parties by stipulation).
Exceptions: In our jurisdiction, depositions in foreign
countries may be taken:
(a) on notice before a secretary of embassy or
legation, consul general, consul, vice consul, or
consular agent of the Republic of the
Philippines;
(b) before such person or officer as may be
appointed by commission or under letters
rogatory; or
(c) before any person authorized to administer
oaths as stipulated in writing by the parties.
Commission Letters Rogatory
Addressed to whom Any authority in a
A judicial authority in the foreign country
foreign country authorized therein to take
down depositions
Rules that govern the deposition Rules laid down by
the Rules laid down by such court issuing
the foreign judicial authority commission
When issued
Preferred over letters Generally resorted to rogatory
since the when there is difficulty or process is simpler
impossibility of obtaining (generally, no need to the
deposition by resort to diplomatic commission
(Regalado) channels unlike in
letters rogatory)
No deposition shall be taken before a person who is:
[Rule 23, sec. 13]
(a) a relative within the sixth degree of
consanguinity or affinity, or
(b) employee or counsel of any of the parties, or
who is a relative within the same degree, or
employee of such counsel; or
(c) who is financially interested in the action.
Procedure
A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in
writing to every party to the action stating the time
and place for taking the deposition and the name and
address of each person to be examined. [Rule 23, Sec.
15]
After the notice is served, the court may make any order
for the protection of the parties and the
deponent. [Rule 23, Sec. 16]
The attendance of the witnesses may be compelled by
the use of subpoenas. [Rule 23, Sec. 1]
The deponent may be examined or cross examined
following the procedures for witnesses in a trial. He
may be asked questions on direct, cross, redirect or re-
cross. He has the same rights as a witness and may be
impeached like a court witness because Sections 3 to
18 of Rule 132 apply
to deponent. [Rule 23, Sec. 3]
The officer before whom the deposition is being taken
has no authority to rule on objections interposed
during the course of the deposition although any
objections shall be noted by him upon the deposition.
Any evidence that is objected to shall still be taken but
subject to the objection.
[Rule 23, Sec. 17]
When may taking of deposition be terminated or its
scope limited
The court in which the action is pending or the RTC of
the place where the deposition is being taken may order
the officer conducting the examination to cease from
taking the deposition, or may limit the scope and
manner of taking the deposition
When: At any time during the taking of the deposition,
on the motion or petition of any party or of the
deponent
Ground: that the examination is being conducted in bad
faith or in such a manner as unreasonably to annoy,
embarrass or oppress the deponent or party
[Rule 23, Sec. 18]
If the order made terminates the examination, it shall
be resumed only upon the order of the court in which
the action is pending.
When may objections to errors and irregularities be
made [Rule 23, sec. 29]
Objection When Made
As to notice to Waived, unless written
parties objection is promptly
served upon party giving
notice
Deposition officer is Waived, unless made
disqualified before the taking of the
deposition or as soon as the
disqualification becomes
known or could be
discovered
Objection When Made
with reasonable certainty
Lack of relevance, NOT waived by failure to
materiality and make them before or
competence of the during the taking of the
deposition to the deposition, unless the
action ground for the objection is
one which might have been
obviated or removed if
presented at that time
Error in the manner Waived, unless reasonable
of taking the objection is made at the
deposition taking of the deposition
Error in the form of Waived, unless served in
written writing upon the party
interrogatories propounding them within
the time allowed for serving
succeeding cross or other
interrogatories and within 3
days after service of the last
interrogatories
Error in the manner Waived, unless a motion to
of preparing the suppress the deposition or
deposition some part thereof is made
with reasonable
promptness after such
defect is, or with
reasonable diligence might
have been, ascertained
Other rules
Effect of substitution of parties [Rule 23, Sec. 5]
(a) Substitution of parties does not affect the right
to use depositions previously taken;
(b) and, when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties or
their representatives or successors in interest,
(c) all depositions lawfully taken and duly filed in
the former action MAY BE USED IN THE LATTER
AS IF ORIGINALLY TAKEN THEREFOR.
Effect of taking deposition [Rule 23, Sec. 7]
A party shall not be deemed to make a person his own
witness for any purpose by taking his deposition.
Effect of using deposition [Rule 23, Sec. 8]
General Rule: Introduction in evidence of deposition or
any part thereof for any purpose makes the deponent
the witness of the party introducing the deposition.
Exception: if the purpose is to contradict or impeach the
deponent.
Leave of court [Rule 23, Sec. 1]
(a) Leave of court is NOT required after an answer has
been served.
(b) It is required before the service of an answer but
after jurisdiction has been acquired over the
defendant or over the property subject of the action.
(c) Only instance when one always needs leave of court
before taking depositions: Where the deponent is in
jail.
WRITTEN INTERROGATORIES UNDER RULE 23
(a) A deposition need not be conducted through an oral
examination. It may be conducted through written
interrogatories which shall be served upon every
other party.
(b) The party served may also serve crossinterrogatories
upon the party proposing to take the deposition
within 10 days from service of the written
interrogatories. The latter may, within 5 days serve
re-direct interrogatories and within 3 days the other
party may serve re-cross
interrogatories [Rule 23, Sec. 25]
(c) Copies of all these interrogatories shall be delivered
to the officer before whom the deposition is taken
and who shall take the responses and prepare the
record. [Rule 23, Sec.
26]
People v. Hubert Webb (1999): DEPOSITION, WHEN
AVAILABLE IN CRIMINAL CASES: A deposition, in keeping
with its nature as a mode of discovery, should be taken
BEFORE AND NOT DURING TRIAL.
In fact, rules on criminal practice - particularly on the
defense of alibi, which is respondents main defense in
the criminal proceedings against him in the court below
- states that when a person intends to rely on such a
defense, that person must move for the taking of the
deposition of his witnesses within the time provided for
filing a pre-trial motion. NOTICE AND SERVICE to each person named in the
petition as an expected adverse party, together with a
copy of the petition, stating that the petitioner will
The use of discovery procedure in criminal cases is
apply to the court, at a time and place named therein,
directed to the sound discretion of the trial judge. The
for the order described in the petition.
deposition taking cannot be based nor can it be denied
on flimsy reasons. Discretion has to be exercised in a
reasonable manner and in consonance with the spirit of
the law.
At least twenty (20) days before the date of the
Dasmarias Garments v. Reyes (1993): Any deposition hearing, the court shall cause notice thereof to be
offered to prove the facts therein at the trial of the case, served on the parties and prospective deponents in the
in lieu of actual testimony of the deponent in court, may manner provided for service of summons.
be opposed and excluded for being hearsay save in
specific instances under the Rules.

ORDER AND EXAMINATION: If the court is satisfied

DEPOSITIONS BEFORE ACTION UNDER RULE 24 Purpose
To perpetuate the testimony of witnesses for probable
use in the event of further proceedings in said court.
Procedure
that the perpetuation of the testimony may prevent a
failure or delay of justice, it shall make an order
designating or describing the persons whose
deposition may be taken and specifying the subject
matter of the examination and whether the
depositions shall be taken upon oral examination or
written interrogatories.

FILE A VERIFIED PETITION IN THE COURT OF THE

PLACE OF THE RESIDENCE OF ANY EXPECTED
ADVERSE PARTY.
The petition shall be entitled in the name of the
petitioner and shall show:
(a) that the petitioner expects to be a party to
an action in a court of the Philippines but
is presently unable to bring it or cause it to
be brought;
(b) the subject matter of the expected action
and his interest therein;
(c) the facts which he desires to establish by
the proposed testimony and his reasons
for desiring to perpetuate it;
(d) the names or a description of the persons
he expects will be adverse parties and
their addresses so far as known; and
(e) the names and addresses of the persons
to be examined and the substance of the
testimony which he expects to elicit from
each, and shall ask for an order
authorizing the petitioner to take the
depositions of the persons to be examined
named in the petition for the purpose of
perpetuating their testimony.
Note: Procedure for taking deposition by oral
examination or written interrogatories will be governed
by Rule 23 on depositions de bene esse.
DEPOSITIONS PENDING APPEAL UNDER RULE 24 J. Regalado
believes that the following procedure is applicable to
civil and criminal cases.
Procedure:
DURING THE PENDENCY OF AN APPEAL, the court in
which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate their
testimony in the event of further proceedings in the
said court.
The party who desires to perpetuate the testimony
may make a motion in the said court for leave to take
the depositions, upon the same notice and service
thereof as if the action was pending therein. The
motion shall state:
 (a) the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and
(b) the reason for perpetuating their testimony.
ORDER ALLOWING THE DEPOSITION: If the court finds
that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an order
allowing the deposition to be taken.
WRITTEN INTERROGATORIES TO ADVERSE
PARTIES [Rule 25]
PURPOSE
This mode of discovery is availed of by the party to the
action for the purpose of eliciting material and relevant
facts from any of the adverse party. [Rule
25, Sec. 1]
PROCEDURE
(a) By leave of court after jurisdiction has been
obtained over any defendant or over property
which is the subject of the action, or
(b) Without such leave after an answer has been
served, any party desiring to elicit material and
relevant facts from any adverse parties shall file
and serve upon the latter written
interrogatories to be answered by the party
served, or if the party served is a public or
private corporation or a partnership or
association, by any officer thereof competent to
testify in its behalf.
Note: Interrogatories under RULE 25 are served directly
upon the adverse party unlike written interrogatories
under RULE 23 which are delivered to the officer before
whom the deposition is to be taken.
ANSWER
(a) The interrogatories shall be ANSWERED FULLY
IN WRITING and shall be SIGNED AND SWORN
TO BY THE PERSON MAKING THEM.
(b) The party upon whom the interrogatories have
been served shall file and serve a copy of the
answers on the party submitting the
interrogatories within fifteen (15) days after
service thereof unless the court on motion and
for good cause shown, extends or shortens the
time.
[Rule 25, Sec. 2]
EFFECT OF OBJECTIONS TO INTERROGATORIES When objections
to any interrogatories is presented to the court within
10 days after service thereof, with notice as in case of a
motion, the answer shall be deferred until the
objections are resolved [Rule 25,
Sec. 3]
NUMBER OF INTERROGATORIES
No party may, without leave of court, serve more than
one set of interrogatories to be answered by the same
party. [Rule 23, Sec. 4]
SCOPE OF INTERROGATORIES Any
matter
(a) not privileged, and
(b) relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and
the identity and location of persons having
knowledge of relevant facts.
USE OF INTERROGATORIES
Same as Rule 23, Sec. 4 mutatis mutandis.
FAILURE TO FILE WRITTEN INTERROGATORIES A party not served
with written interrogatories may not be compelled by
the adverse party to give testimony in open court, or to
give a deposition pending appeal, UNLESS allowed by
the court for good cause shown and to prevent failure
of justice.
CONSEQUENCES OF REFUSAL TO ANSWER
(a) The party serving the interrogatories may apply to
the court for an order to compel an answer.
(b) If court also finds that the refusal to answer was
without substantial justification, it may require the
refusing party or deponent or the counsel advising
the refusal, or both of them, TO PAY THE
PROPONENT THE AMOUNT OF THE REASONABLE
EXPENSES INCURRED IN OBTAINING THE ORDER,
INCLUDING
ATTORNEY'S FEES [Rule 29, Sec. 1].
(c) Refusal to comply with an order of the court to
compel an answer may be considered
CONTEMPT of that court [Rule 29, Sec. 2]
(d) The subject of discovery shall be DEEMED ADMITTED
OR ESTABLISHED [Rule 29 Sec. 3(a)].
(e) The disobedient party shall be prohibited from
introducing CONTRADICTORY EVIDENCE [Rule
29, Sec. 3(b)]
(f) STRIKING OUT OF PLEADINGS OR PARTS
THEREOF [Rule 29, Sec. 3(c)]
(g) STAYING FURTHER PROCEEDINGS UNTIL THE ORDER
IS OBEYED [Rule 29, Sec. 3(c)]
(h) DISMISSING THE ACTION OR PROCEEDING OR ANY
PART THEREOF [Rule 29, Sec. 3(c)]
(i) RENDERING A JUDGMENT BY DEFAULT AGAINST THE
DISOBEDIENT PARTY; AND [Rule
29, Sec. 3(c)]
(j) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or
agent of a party for disobeying any of such
orders [Rule 29, Sec. 3(c)]
REQUEST FOR ADMISSION [Rule 26]
PURPOSE
(a) To allow one party to request the adverse in writing
to admit certain material and relevant matters
which most likely will not be disputed during the
trial.
(b) To avoid unnecessary inconvenience to the parties
in going through the rigors of proof, before the trial,
a party may request the other to:
(1) admit the genuineness of any material and
relevant document described in and exhibited
with the request; or
(2) admit the truth of any material and relevant
matter of fact set forth in the request [Rule 26,
Sec. 1]
WHEN MAY REQUEST BE MADE
At any time after issues have been joined.
Duque v. CA (2002): The request for admission MUST
BE SERVED ON THE PARTY and NOT ON THE
COUNSEL. This is an exception to the general rule that
notices shall be served upon counsel and not upon the
party.
IMPLIED ADMISSION BY ADVERSE PARTY
EACH OF THE MATTERS OF WHICH AN ADMISSION IS
REQUESTED SHALL BE DEEMED ADMITTED
unless,
(a) within a period designated in the request, which
shall not be less than 15 days after service
thereof, or within such further time as the court
may allow on motion,
(b) the party to whom the request is directed files
and serves upon the party requesting the
admission a SWORN STATEMENT either
(1) denying specifically the matters of which an
admission is requested, or
(2) setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters.
DEFERMENT OF COMPLIANCE
To avoid the implied admission, the party requested
may have the compliance of the filing and service of the
sworn statement be deferred by filing with court
objections to the request for admission.
Compliance shall be deferred until such objections are
resolved by the court. [Rule 26, Sec. 2 par. 2]
EFFECT OF ADMISSION
Any admission made by a party pursuant to such
request is for the purpose of the pending action only
and shall not constitute an admission by him for any
other purpose nor may the same be used against
him in any other proceeding. [Rule 26, Sec. 3]
WITHDRAWAL
The court may allow the party making an admission,
whether express or implied under the Rule to withdraw
or amend it upon such terms as may be just.
The admitting party must file a motion to be relieved of
the effects of his admissions.
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION
General rule: The party who fails to file a request shall
not be permitted to present evidence on such facts.
Exception: Unless otherwise allowed by the court for: (a)
good cause shown and
(b) to prevent a failure of justice, a party who fails to
file and serve a request for admission on the adverse
party of material and relevant facts at issue which ARE,
OR OUGHT TO BE,
WITHIN THE PERSONAL KNOWLEDGE OF THE
LATTER [Rule 26, Sec. 5]
PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS [Rule 27]
PROCEDURE
A motion must be filed by the party seeking the (e) Notice must also specify person/s who will make
production or inspection of documents and things and the examination
the motion must show good cause supporting
the same. [Rule 27, Sec. 1] COURT TO ISSUE THE ORDER FOR EXAMINATION IN ITS DISCRETION.

REPORT OF FINDINGS
(a) If requested by the party examined, the party
causing the examination to be made shall
The court in which the action is pending shall issue an
deliver to him a copy of a detailed written report
order:
of the examining physician setting out his
(a) which shall specify the time, place and manner of findings and conclusions.
making the inspection and taking copies and
(b) After such request and delivery, the party
photographs, and
causing the examination to be made shall be
(b) which may prescribe such terms and conditions as entitled upon request to receive from the party
are just. [Rule 27, Sec. 1] examined a like report of any examination,
previously or thereafter made, of the same
mental or physical condition.
WHAT THE COURT MAY ORDER
(c) If the party examined refuses to deliver such
(a) To PRODUCE and PERMIT THE INSPECTION and report, the court on motion and notice may
copying or photographing, by or on behalf of the make an order requiring delivery on such terms
moving party, of any documents, papers, books, as are just
accounts, letters, photographs, objects or tangible (d) If it is the physician who fails or refuses to make
things, not privileged, which constitute or contain such a report the court may exclude his
evidence material to any matter involved in the testimony
action and which are in the possession, custody or if offered at the trial. [Rule 28, Sec. 3]
control of the party to whom the order is addressed.
(b) To PERMIT ENTRY upon designated land or other
WAIVER OR PRIVILEGE
property in the position or control of the party to
By requesting and obtaining a report of the examination
whom the order is addressed for the purpose of
so ordered or by taking the deposition of the examiner,
inspecting, measuring, surveying, or photographing
the party examined waives any privilege he may have in
the property or any designated relevant object or
that action or any other involving the same controversy,
operation thereon. [Rule 27,
regarding the testimony of every other person who has
Sec. 1] examined or may thereafter examine him in respect of
the same mental or physical examination.
Note: This mode of discovery does not mean that the
person who is required to produce the document or the PHYSICIAN-PATIENT PRIVILEGE
thing will be deprived of its possession even
(a) Inapplicable because the results of the
temporarily. It is enough that the requesting party be
examination are intended to be made public.
given the opportunity to inspect or copy or photograph
(b) Such examination is not necessary to treat or
the document or take a look at the
cure the patient but to assess the extent of
thing. (Regalado) (Asked in the 2002 Bar Exam)
injury or to evaluate his physic al or mental
PHYSICAL AND MENTAL condition.
EXAMINATION OF
PERSONS [Rule 28]
CONSEQUENCES OF REFUSAL TO COMPLY WITH
MOTION REQUESTING EXAMINATION
MODES OF DISCOVERY
Requisites
See Annex C.
(a) The physical or mental condition of a party (NOT
A WITNESS!) is in controversy
(b) Motion must be filed showing good cause
(c) Notice given to the party to be examined and to
all other parties
(d) Notice must specify the time, place, manner, Trial
conditions and scope of examination
TRIAL, DEFINED For absence of Affidavit showing:
A trial is the judicial process of investigating and evidence [Rule (a) The materiality/relevancy of
determining the legal controversies, starting with the 30, Sec. 3] such evidence;
production of evidence by the plaintiff and ending with (b) That due diligence has been
his closing arguments [Acosta v. People (1962)]. used to procure the evidence

A hearing is a broader term. It is not confined to the trial But if the adverse party admits
and presentation of the evidence because it actually the facts to be given in
embraces several stages in the litigation. It includes the evidence, trial shall not be
pre-trial and the determination of granting or denying a postponed even if he objects or
motion. [Trocio v. Labayo reserves the right to object to
(1973)] their admissibility.
For illness of Affidavit or sworn certification:
NOTICE OF TRIAL [Rule 30, Sec. 1] Upon entry of a case party/counsel (a) That the presence of such
in the trial calendar, the clerk shall notify parties the [Rule 30, Sec. 4] party/counsel at the trial is
date of its trial, ensuring receipt of the notice at least 5 indispensable;
days before the trial date. (b) That the character of his
illness is such as to render
ADJOURNMENTS AND POSTPONEMENTS [Rule his non-attendance
30, Sec. 2] excusable.
General rule: The court may adjourn a trial from day to
day to any stated time, as the expeditious and SUBPOENA
convenient transaction of business may require. See separate part for Subpoena BUT please take note
that Subpoenas are issued within the context of a Trial
Exception: Court may not adjourn for longer than 1 and taking depositions under Modes of Discovery.
month for each adjournment, nor more than 3 months
in all. AGREED STATEMENT OF FACTS [Rule 30, Sec. 6]
(a) Parties may agree in writing upon the facts
Exception to exception: When authorized in writing by involved in the litigation, and submit the case
the SC Court Administrator. for judgment without introduction of evidence.
(b) If the parties agree to only some of the facts in
Note: Postponement is not a matter of right. It is issue, trial shall be held as to the disputed facts
addressed to the sound discretion of the court. in such order as the court shall prescribe.
[Riano, citing Garces v Valenzuela (1989)]
ORDER OF TRIAL; REVERSAL OF ORDER
REQUISITES OF MOTION TO POSTPONE TRIAL CONDUCT OF TRIAL [Rule 30, Sec. 5]
(a) for absence of evidence General rule: Trial shall be limited to the issues stated in
(b) for illness of party or counsel the pre-trial order.

Ground for Exception:

postponement Requisite for motion to (a) Provisions on separate trials in Rule 31, Sec. 2
of trial postpone (b) When for special reasons the court directs
Ground for otherwise.
postponement Requisite for motion to
of trial postpone GENERAL ORDER OF TRIAL
Plaintiff shall adduce evidence in support of his claim;

Defendant shall adduce evidence in support of his

defense, counterclaim, cross-claim and 3rd-party
complaint;

3rd-party defendant (if any) shall adduce evidence of his
defense, counterclaim, cross-claim and 4th-
party complaint;
4th-party (and so forth) shall adduce evidence of
the material facts pleaded by them;
Parties whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of their
defense, in the order prescribed by the court.
Parties may respectively adduce rebutting evidence
only.
Exception: When the court permits them to adduce
evidence upon their original case, for good reasons
and in furtherance of justice.
Upon admission of evidence, the case shall be deemed
submitted for decision, unless the court directs the
parties to argue or to submit their respective
memoranda or any further pleadings.
If several defendants or 3rd-party defendants having
separate defenses appear by different counsel, the
court shall determine the relative order of presentation
of their evidence.
CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL
CONSOLIDATION OF TRIAL [Rule 31, Sec. 1] When actions
involving common question of law/fact are pending
before the court, it may:
(a) Order a joint hearing/trial of any/all the matters in
issue in the actions;
(b) Order all the actions consolidated;
(c) Make such orders concerning the proceedings as to
avoid unnecessary costs or delay.
Where a case has been partially tried before one judge,
the consolidation of the same with another related case
pending before another judge who had no opportunity
to observe the demeanor of the witness during trial
makes the consolidation not
mandatory. [PCGG v. Sandiganbayan (1992)]
SEVERANCE OF TRIAL [Rule 31, Sec. 2] The court may issue
separate trials for convenience or to avoid prejudice:
(a) Of any claim, cross-claim, counterclaim or
3rdparty complaint;
(b) Of any separate issue;
(c) Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or issues.
STATEMENT OF JUDGE [Rule 30, Sec. 7]
During the hearing/trial of the case, any statement
made by the judge shall be made of record in the TSN if
made with reference to the case/parties/witnesses/
counsels.
SUSPENSION OF ACTIONS [Rule 30, Sec. 8]
Governed by the CC provisions
DELEGATION OF RECEPTION OF EVIDENCE [Rule
30, Sec. 9]
General rule: The judge of the court where the case is
pending shall personally receive the evidence to be
adduced by the parties.
Exception: The court may delegate the reception of
evidence to its clerk of court who is a member of the bar
in:
(a) Default hearings;
(b) Ex parte hearings;
(c) Cases where parties agree in writing.
However, the clerk of court has no power to rule on
objections to any question/admission of exhibits.
Objections shall be resolved by the court upon
submission of the clerks report and TSN within 10 days
from termination of the hearing.
TRIAL BY COMMISSIONERS
COMMISSIONER Includes a referee, an auditor or
an examiner. [Rule 32, Sec. 1]
KINDS OF TRIAL BY COMMISSIONER [Rule 32, Secs. 1 & 2] (a)
Reference by consent of both parties.
(b) Reference ordered on motion when:
(1) Trial of an issue of fact requires the
examination of a long account on either side
 (2) Taking of an account is necessary for the
courts information before judgment, or for
carrying judgment/order into effect.
(3) A question of fact, other than upon the
pleadings, arises in any stage of a case or for
carrying a judgment/order into effect.
REFERENCE BY CONSENT OR ORDERED ON MOTION Order of
reference [Rule 32, Sec. 2 to 12]
ORDER OF REFERENCE: When a reference is made, the
clerk shall furnish the commissioner with a copy of the
order of reference.
MEETING: The commissioner shall set a time/place for
the first meeting and shall notify parties/counsels.
REPORT: Upon completion of the trial/hearing, the
commissioner shall file a written report with the court.
NOTICE: The clerk shall notify parties of the filing of the
report. The parties have 10 days to object to the reports
findings.
HEARING: After the 10 days, the report shall be set for
hearing. The court may issue an order
adopting/modifying/rejecting the report or part of it.
When parties stipulate that the Commissioner's findings
of fact are final, only questions of law shall thereafter be
considered.
POWERS OF THE COMMISSIONER [Rule 32, Sec. 3] When a
reference is made, the clerk shall forthwith furnish the
commissioner with a copy of the order of reference. The
order may: (a) Specify/limit the commissioners power
(b) Direct him to report only upon particular issues, to
do/perform particular acts, or direct him to receive
and report evidence only
(c) May fix the date for beginning and closing the
hearings and for the filing of his report.
Powers of the Commissioner:
(a) Regulate the proceedings in every hearing before
him [subject to other specifications & limitations in
the order]
(b) Power to do all acts and take all measures necessary
or proper for the efficient performance of his duties
under the order [subject to other specifications &
limitations in the order]
(c) He may issue subpoenas and subpoenas duces
tecum, swear witnesses.
(d) He may rule upon the admissibility of evidence,
unless otherwise provided in the order of reference.
The trial or hearing before him shall proceed in all
respects as it would if held before the court.
COMMISSIONERS REPORT; NOTICE TO PARTIES AND
HEARING ON THE REPORT
Report of commissioner [Rule 32, Sec. 9] Upon the
completion of the trial or hearing or proceeding before
the commissioner, he shall file with the court his report
in writing upon the matters submitted to him by the
order of reference.
When his powers are not specified or limited, he shall
set forth his findings of fact and conclusions of law in his
report.
He shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the
testimonial evidence presented before him.
Notice to parties of the filing of report [Rule 32, Sec. 10]
Upon the filing of the report, the parties shall be notified
by the clerk, and they shall be allowed 10 days within
which to signify grounds of objections to the findings of
the report, if they so desire.
Objections to the report based upon grounds which
were available to the parties during the proceedings
before the commissioner, other than objections to the
findings and conclusions therein, set forth, shall not be
considered by the court unless they were made before
the commissioner.
Hearing on the report [Rule 32, Sec. 11] Upon the
expiration of the 10-day period in Rule 32, Sec. 10, the
report shall be set for HEARING.
After which the court shall issue an ORDER:
(a) Adopting (in whole or in part), (b)
Modifying (in whole or in part)
(c) Rejecting the report (in whole or in part),
(d) Recommitting the report with instructions, or
(e) Requiring the parties to present further
evidence before the commissioner or the court.
Demurrer to Evidence
GROUND
DEFINITION: A species of MTD that may be invoked based
on insufficiency of evidence (i.e. upon the facts and the MTD Demurrer
law the plaintiff has shown no right to relief).
[Rule 33, Sec. 1] When to File
Before the service and After the plaintiff rests filing of
It is invoked after the plaintiff has presented all the the answer his case Ground
evidence available to him. Those enumerated in Only ground: The Rule 16
plaintiff has shown no right to relief (i.e.
EFFECT OF DENIAL; EFFECT OF GRANT evidence is insufficient)
Effect
Grant of demurrer Denial of demurrer If a MTD is granted, the
complaint is
likewise
Grant of demurrer Denial of demurrer dismissed. But,
depending on the ground, the
The case shall be The defendant shall complaint may be re-filed
dismissed have the right to present
evidence MTD Demurrer

The court should set the

date for the reception If the MTD is denied,
of the defendants the defendant shall file
evidence-in-chief his responsive
[Northwest Airlines v. pleading
CA
(1998)] WAIVER OF RIGHT TO PRESENT EVIDENCE
Plaintiff's remedy would xxx If the order granting the demurrer is reversed on appeal,
be to appeal. the defendant loses his right to present
evidence. [Rule 33, Sec .1; Republic v. Tuvera (2007)]
However, if the order
granting the demurrer DEMURRER TO EVIDENCE IN A CIVIL CASE V.
is reversed on appeal,
DEMURRER TO EVIDENCE IN A CRIMINAL CASE
the defendant loses his
right to present
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL CASES
evidence. [Rule 33, Sec
1; Republic v. Tuvera (Asked in the 2003 and 2007 Bar
(2007)] Exams)
Demurrer in civil cases Demurrer in criminal
The appellate court cases
should render Defendant need not ask May be filed with or
judgment on the basis for leave of court without leave of court.
of the evidence
submitted by the Note: Leave of court is
plaintiff. necessary so that the
[Radiowealth Finance v. accused can present his
Del Rosario (2000)] evidence in case the
Equivalent to judgment An interlocutory order demurrer is denied [Rule
(i.e. based on the merits and not appealable. 119, Sec. 23]
of the evidence However, it may be the If the demurrer is The order of dismissal is
presented so far) subject of a petition for granted, the order of not appealable because it
certiorari for GAD under dismissal is appealable will constitute double
Rule 65 [Katigbak v. jeopardy
Sandiganbayan (2003)]
 If a demurrer is denied, The accused may adduce
the defendant may his evidence only if the Judgment upon Judgment by confession
proceed to present his demurrer is field with compromise
evidence leave of court
The provisions and terms An affirmative and
are settled by the parties voluntary act of the
Judgments and Final Orders to the action. The defendant himself. The
judgment is entered in court exercises a certain
JUDGMENT the record by consent of amount of supervision
The final ruling by a court of competent jurisdiction the court. over the entry of
regarding the rights and obligations of the parties or judgment.
other matters submitted to it in an action/proceeding
[Macahilig v. Heirs of Magalit Kinds of judgment by confession:
(2000)] (a) JUDGMENT BY COGNOVIT ACTIONEM After
service, the defendant, instead of entering a plea,
REQUISITES OF A VALID JUDGMENT [Rule 36, Sec. 1; Art. 8, Sec. acknowledged and confessed that the plaintiffs
14, 1987 Constitution] [AJOEWS] cause of action was just and rightful.
(a) Court/tribunal must be with authority to hear and (b) JUDGMENT BY CONFESSION RELICTA
determine the matter before it; VERIFICATIONE After pleading and before trial, the
(b) Court must have jurisdiction over the parties and the defendant both: (a) confessed the plaintiffs cause of
subject matter; action and (b) withdrew his plea or other allegations,
(c) Parties must have been given an opportunity to whereupon judgment was entered against him without
adduce evidence in their behalf; proceeding to trial.
(d) Evidence must have been considered by the tribunal
in deciding the case; [Acosta v. COMELEC (1998)] Remedy against judgment by consent, confession or
(e) Judgment must be in writing, personally and directly compromise is to first file a motion to set it aside; if
prepared by the judge; denied, file the appropriate petition under Rule 65.
(f) Note: A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan (2004)] (3) JUDGMENT UPON THE MERITS - It is one that is
(g) Judgment must state clearly the facts and the law rendered after consideration of the evidence
upon which the decision is based, signed by the submitted by the parties during the trial of the
case. A judgment is on the merits when it
judge and filed with the clerk of court. [Rule
amounts to a legal declaration of the
35, Sec. 1]
respective rights and duties of the parties,
based upon the
A decision need not be a complete recital of the disclosed facts
evidence presented. So long as the factual and legal
bases are distinctly and clearly set forth, the
(4) CLARIFICATORY JUDGMENT - It is rendered to
judgment is valid. [People v. Baring (2002)]
clarify an ambiguous judgment or one difficult
to comply with.
KINDS OF JUDGMENT
(1) JUDGMENT UPON COMPROMISE - It is one
(5) JUDGMENT NUNC PRO TUNC - Literally, now
conferred on the basis of a compromise agreement
for then. It is a judgment intended to enter
entered into between the parties. It is immediately
into the record the acts which had already
executory in the absence of a motion to set aside on
been done, but which do not appear in the
the ground of FAME.
records.
[Lichauco v. Tan Pho (1923)]
(2) JUDGMENT UPON CONFESSION - It is one rendered
by the court when a party expressly agrees to the
other partys claim or acknowledges the validity of (6) JUDGMENT SIN PERJUICIO - It may refer to a
the claim against him. dismissal of a case without prejudice to it being
re-filed.
 (7) CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an event.
Such a judgment is generally void because of
the absence of a disposition [Cu-Unjieng v.
Mabalacat Sugar Co.
(1940)]
(8) SEVERAL JUDGMENT - It is one rendered by a
court against one or more defendants and not
against all of them, leaving the action to
proceed against the others. [Rule 36, Sec. 4] It
is proper when the liability of each party is
clearly separate and distinct from his co-parties
such that the claims against each of them could
have been the subject of separate suits, and
the judgment for or against one of them will
not necessarily affect the other.
(9) SEPARATE JUDGMENT - It is one rendered
disposing of a claim among several others
presented in a case, after a determination of
the issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence that is the subject matter of said
claim. [Rule 36, Sec. 5] It is proper when more
than one claim for relief is presented in an
action for the determination as to the issues
material to the claim has been made.
The judgment shall terminate the action with respect to
the claims disposed of, and shall proceed as to the
remaining claims. The court may stay its enforcement
until rendition of subsequent judgments, and may
prescribe conditions to secure the judgments benefits.
Judgment may be given for/against one or more of
several plaintiffs/defendants. The court may require the
parties on each side to file adversary pleadings as
between themselves. [Rule 36, Sec.
3]
If judgment is rendered against 2 or more persons sued
as an entity without juridical personality, the judgment
shall set out their
individual names (if known). [Rule 36, Sec. 6]
(10) PROMULGATION - The process by which a decision
is published, officially announced, made known to
the public or delivered to the clerk of court for
filing, coupled with notice to the parties or their
counsel.
(11) MEMORANDUM DECISION - A decision of the
appellate court which adopts the findings and
conclusions of the TC.
(a) A judgment is considered rendered upon the
filing of the signed decision.
(b) This includes an amended decision because an
amended decision is a distinct and separate
judgment and must follow the established
procedural rule.
JUDGMENT WITHOUT TRIAL
WHEN TRIAL IS NOT NECESSARY PSADSA (Asked in the 1996
Bar Exams) [Riano]
(a) The pleadings of the parties tender no issue at all
judgment on the pleadings may be directed by the
court [Rule 34]
(b) There is actually no genuine issue from the
pleadings, affidavits, depositions and other papers
court may render a summary judgment [Rule 35]
(c) Parties entered into a compromise or an amicable
settlement either during the pre-trial or during the
trial [Rule 18; Art. 2028 Civil Code]
(d) Complaint has been dismissed with prejudice
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)]
(e) Case falls under the Rules on
Summary Procedure
(f) Agreed statement of facts [Rule 30, Sec. 6]
CONTENTS OF A JUDGMENT
PARTS OF A JUDGMENT
(a) Body, Ratio decidendi, or Opinion of the court
It contains the findings of facts and conclusions
of law;
(b) Fallo, or Disposition of the case It is the
dispositive part of the judgment that actually
settles and declares the rights and obligations of
the parties, finally, definitively, and
authoritatively [Light Rail Transit Authority v.
CA] (2004); The part of the judgment that is
subject to execution
[Riano]
(c) Signature of the judge.
DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE COURT
(ASKED IN THE 2006 BAR EXAM)
(a) A judgment (or FALLO) must be distinguished
from an opinion.
(b) The latter is the informal expression of the views
of the court and cannot prevail against its final
order or decision.
(c) While the two may be combined in one
instrument, the opinion forms no part of the
judgment.
 (d) So there is a distinction between the findings
and conclusions of a court and its judgment.
(e) While they may constitute its decision and
amount to a rendition of a judgment they are
not the judgment itself.
(f) They amount to nothing more than an order for
judgment, which, of course, must be
distinguished from the judgment. [Freeman on
Judgments, Vol. I, 5th Edition, page 6, quoted in
Casilan v. Salcedo (1969)]
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY
OF THE DECISION
Rule: Where there is a conflict between the fallo and the
body of the decision, the fallo controls.
Qualification: This rule applies only when the dispositive
part is definite, clear, and unequivocal
[Union Bank v. Pacific Equipment Corporation (2008)]
Basis: The fallo is the final order. The opinion in the body
is merely a statement ordering nothing [Poland
Industrial Limited v. National Development Company
(2005)]
JUDGMENT ON THE PLEADINGS [Rule 34] (Asked in the
1999 and 2005 Bar Exams)
GROUNDS:
If the answer either
(a) Fails to tender an issue;
Note: An answer fails to tender an issue due to either:
(1) General denial of the material allegations of
the complaint;
(2) Insufficient denial of the material allegations
of the compliant.
(b) Admits the material allegations of the adverse
partys pleading.
CANNOT BE RENDERED MOTU PROPRIO
A judgment on the pleadings can be done only upon
MOTION to that effect filed by the appropriate party.
It cannot be rendered by the court motu proprio.
Exception: If at pre-trial the court finds that a judgment
on the pleadings is proper, it may render
such judgment motu proprio. [Rule 18, Sec. 2(g)]
WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY
(a) Declaration of nullity of marriage;
(b) Annulment of marriage; (c) Legal
separation.
Effect: judgment on the pleadings will not lie and
material facts alleged in the complaint must always be
proved
EFFECTS
(a) By moving for judgment on the pleadings, the
plaintiff waives his claim for unliquidated damages
(because claims for such damages must be alleged
and proved).
(b) One who prays for the judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party an
opportunity to introduce evidence must be
understood to admit all material and relevant
allegations of the opposing party and to rest his
motion for judgment upon those allegations taken
together with such of his own as are admitted in the
pleadings. [Falcasantos v. How Suy Ching (1952)]
SUMMARY JUDGMENTS [Rule 35] (Asked in the
1986, 1989, 1996 and 1999 Bar Exams)
DEFINITION, NATURE
A judgment granted by the court for the prompt
disposition of civil actions, if it clearly appears (after the
issues had been joined and on the basis of the pleadings
and papers filed) that there exists no genuine
issue/controversy as to any material fact, except as to
the amount of damages. [Ley
Construction v. Union Bank (2000); Agbada v InterUrban
Developers (2002); Raboca v. Velez (2000)]
Also called accelerated judgment.
GENUINE ISSUE
(a) An issue of fact which calls for the presentation
of evidence; as distinguished from an issue
which is sham, fictitious, contrived and patently
insubstantial so as not to constitute a genuine
issue for trial.
(b) When the facts as pleaded appear uncontested
or undisputed, then there is no real/genuine
issue as to the facts.
(c) The TC cannot motu propio issue a summary
judgment. A party must move for summary
judgment. [Riano]
PROCEDURE [Rule 35, Sec. 3]
Movant files a motion for summary judgment with
supporting affidavits, depositions or admission
Service to the adverse party at least 10 days the hearing
Adverse party may serve opposing affidavits,
depositions or admissions at least 3 days before the
hearing
Hearing Court shall determine if a genuine issue as to
any material fact exists and if the movant is
entitled to a summary judgment as a matter of law
Judgment
FOR THE CLAIMANT [Rule 35, Sec. 1]
FOR THE DEFENDANT [Rule 35, Sec. 2]
Who may file the When
motion
Claimant May file the motion only after
the answer has been served
Defendant May file the motion any time
Filing of a motion for summary judgment does not
interrupt the running of the period for filing an answer.
Hence, the movant must also file a Motion for Extension
of Time to File Answer.
Bases of summary judgment: When, upon the following,
no genuine issue as to any material fact exists:
(a) Affidavits made on personal knowledge;
(b) Depositions of the adverse or a 3rd party; (Rule
23)
(c) Admissions of the adverse party; (Rule 26)
(d) Answers to interrogatories. (Rule 25)
WHEN THE CASE NOT FULLY ADJUDICATED
Partial summary judgment (Asked in the 2004 Bar Exam)
Applies when for some reason there can be no full
summary judgment. Trial should deal only with the facts
not yet specified or established.
Duty of Court [Rule 35, Sec. 4]
(a) Ascertain what material facts exist without
substantial controversy and what are actually and in
good faith controverted based on:
(1) An examination of the pleadings and evidence
before it
(2) Interrogation of the counsel
(b) Make an order specifying the facts and the extent of
the amount of damages that appear without
substantial controversy
(c) Direct further proceedings as are just
(d) Conduct trial on the
controverted facts accordingly
Effect
A partial summary judgment is not a final judgment, but
merely a pre-trial adjudication that said issues in the
case shall be deemed established for the trial of the
case. [Guevarra v. CA (1983)]
AFFIDAVITS AND ATTACHMENTS
Form of affidavits and supporting papers [Rule 35,
Sec. 5]
(a) Made on personal knowledge
(b) Shall set forth such facts as would be admissible in
evidence
(c) Shall show affirmatively that the affiant is
competent to testify to the matters stated therein.
Attachments [Rule 35, Sec. 5]
Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto OR
served therewith.
Affidavits in bad faith [Rule 35, Sec. 5]
Definition Affidavits presented under this Rule which
appear to the court at any time as presented in bad faith
or solely for the purpose of delay
Effects:
(a) Court shall order the offending party or counsel to
pay the other party amount of reasonable
expenses which the filing of the affidavits caused
him to incur, including attorneys fees
(b) Court may adjudge the offending party or counsel
guilty of contempt, after hearing
JUDGMENT ON THE PLEADINGS VERSUS
SUMMARY JUDGMENTS
Summary Judgment on Judgment by
judgment the pleadings default
 Based on the Based solely Based on the is still subject to amendment if it has not yet been filed
pleadings, upon the complaint and with the clerk of court and before its filing does not yet
depositions, pleadings evidence, if court constitute the real judgment of the court. [Ago v. CA
admissions and requires its (1962)]
affidavits presentation
There is no The answer No issues as no PERIOD WITHIN WHICH DECISION IS TO BE RENDERED [1987
genuine issue fails to tender answer is filed by Constitution, Art. VIII, Sec. 15]
between the an issue or the defending (a) All cases filed must be decided or resolved by the
parties there is an party Supreme Court within 24 months from the date of
admission of their submission for decision.
the material (b) Unless reduced by the SC, within 12 months for
allegations lower collegiate courts and within 3 months for all
other lower courts.
Available to Generally Available to the A case is deemed submitted for resolution upon the
both plaintiff available only plaintiff alone filing of the last pleading, brief or memorandum
and defendant to the
required by the Rules of Court or by the court.
plaintiff,
unless the
defendant An extension of the period may be set by the SC upon
presents request by the judge concerned on account of heavy
a caseload or by other reasonable excuse [Arap v
Mustafa (2002)]
counterclaim
10-day notice 3-day 3-day notice rule
INTERPRETATION OF THE JUDGMENT Where the judgment is
required notic applies
difficult to execute because of ambiguity in its terms,
e required
the remedy of the party is to file a motion for
May be On the merits On the merits clarificatory judgment and not to assail the judgment as
interlocutory void. [Poland Industrial
or on the Limited v National Development Company (2005)]
merits
Usually Available Available in any ENTRY OF JUDGMENT AND FINAL ORDER
available in in any action, except DEFINITION OF ENTRY OF JUDGMENT
actions to actio annulment of The entry of judgment refers to the physical act
recover a debt, n, except marriage or legal performed by the clerk of court in entering the
or for a annulment of separation cases dispositive portion of the judgment in the book of
liquidated sum marriage entries of judgment after the same has become final and
of money, or or executory. [Riano]
for declaratory legal
relief separation
cases Rendition of judgment Entry of judgment

RENDITION OF JUDGMENTS AND FINAL ORDERS

Filing of the judgment
FORM OF JUDGMENT [Rule 36, Sec. 1] Act of clerk of court in
with the clerk of court
(a) In writing entering the dispositive
(b) Personally and directly prepared by the judge portion of the judgment
(c) Stating clearly & distinctly the facts and the law in the book of entries of
on which it is based judgment
(d) Signed by the judged (e) Filed with the clerk of
court. ENTRY OF JUDGMENTS AND FINAL ORDERS[Rule 36, Sec.
2]
DEFINITION OF RENDITION OF JUDGMENT If there is no appeal/MNT/MFR filed within the
It is the filing of the judgment with the clerk of court. It prescribed periods, the clerk of court shall enter the
is not the pronouncement of the judgment in open judgment or final order in the book of entries of
court that constitutes the rendition. Even if the judgments.
judgment has already been put in writing and signed, it

Date of finality of the judgment = Date of its entry in
the book
Note: the periods for filing the following pleadings are
reckoned from the date of entry of judgment
(a) Execution of a judgment by motion (5 years from
entry) [Rule 39, Sec. 6]
(b) Petition for relief (as one of its periods, not more
than 6 months from entry of the judgment or final
order) [Rule 38, Sec. 3]
The record:
(a) Shall contain the judgments dispositive part
REMEDIES BEFORE FINALITY OF JUDGMENT
(a) Motion for Reconsideration
(b) Motion for New Trial
(c) Appeal
MOTION FOR NEW TRIAL OR RECONSIDERATION
MOTION FOR RECONSIDERATION
A motion for reconsideration under Rule 37 is directed
against a judgment or final order. It is not the motion for
reconsideration of interlocutory order, which often
precedes a petition for certiorari under Rule 65. It does
not apply to cases that fall under Summary Procedure.
GROUNDS

(b) Shall be signed by the clerk of court with a

certificate that the judgment has become final Rule 37, Sec.1. Grounds of and period for filing motion
and executory. for new trial or reconsideration.Within the period for
taking an appeal, the aggrieved party may move the trial
AMENDMENTS TO JUDGMENT (Asked in the 2008 Bar Exams) court to set aside the judgment or final order and grant
The power to amend judgments is inherent to the court a new trial for one or more of the following causes
before judgment becomes final and executory. materially affecting the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence
General rule: The court cannot amend the judgment which ordinary prudence could not have guarded
once it has become final and executory. against and by reason of which such aggrieved party
has probably been impaired in his rights; or
Exception: (b) Newly discovered evidence, which could not, with
(a) To make corrections of clerical errors, not reasonable diligence, have discovered and produced
substantial amendments, as by an amendment at the trial, and which if presented would probably
non pro tunc; alter the result.
(b) To clarify an ambiguity which is borne out by
and justifiable in the context of the decision; Within the same period, the aggrieved party may also
(c) In judgments for support, which can always be move for reconsideration upon the grounds that the
amended from time to time. damages awarded are excessive, that the evidence is
insufficient to justify the decision or final order, or that
the decision or final order is contrary law.
Amended/clarified Supplemental decision
judgment
An entirely new decision Does not take the place
and supersedes the of or extinguish the Grounds for a motion for reconsideration
original judgment original judgment (a) The evidence is insufficient to justify the decision;
(b) The damages awarded are excessive;
Court makes a thorough Serves to add to the
(c) The decision or final order is contrary to law.
study of the original original judgment
judgment and renders
the amended and Form and content of a motion for reconsideration
clarified judgment only Motion for reconsideration must be in writing, a written
after considering all the notice of which must be served on the adverse party.
factual and legal issues
It is not sufficient to mention the ground relied upon. It
is necessary for the motion for reconsideration to point
out specifically the findings or conclusions of the
judgment or final order which are not supported by the
evidence or which are contrary to law, making express
Post-Judgment Remedies reference to the testimonial or documentary evidence
or to the provisions of law alleged to be contrary to such
findings or conclusions.
Non-compliance with this requirement would reduce
the motion to a mere pro forma motion, which shall not
toll the period for appeal.
Grounds for motion for new trial
The aggrieved party may move the trial court to set
aside the judgment or final order and grant a new trial
for one or more of the following causes materially
affecting the substantial rights of the said party:
(a) FAME (Extrinsic Fraud, Accident, Mistake or
Excusable Negligence) which ordinary prudence
could not have guarded against and by reason of
which the aggrieved party has probably been
impaired in his rights.
(1) The motion shall be supported by affidavits
of merit. Non-compliance with this
requirement would reduce the motion to a
mere pro forma motion.
(2) The affidavits of merit must show the facts
(not mere conclusions or opinions)
constituting the valid cause of action or
defense which the movant may prove in case
a new trial is granted. Otherwise, if the
complaint is after all groundless or the
defense is ineffective, a new trial would
serve no purpose.
(b) Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.
(1) The motion shall be supported by: affidavits
of the witnesses by whom such evidence is
expected to be given; and/or duly
authenticated documents which are
proposed to be introduced in evidence.
(2) Non-compliance with this requirement
would reduce the motion to a mere pro
forma motion.
Tumang v. CA (1989): Newly discovered evidence may
and does commonly refer to evidence already in
existence prior to or during trial but which could not
have been secured and presented during the trial
despite reasonable diligence on the part of the litigant.
Extrinsic fraud: any fraudulent scheme executed by the
prevailing party outside of the trial against the losing
party who, because of such fraud, was prevented from
presenting his side of the case.
Intrinsic fraud: acts of a party during the trial which does
not affect the presentation of the case.
Accident: an event that occurs without ones foresight
or expectation.
Mistake: generally, mistakes of facts or law where, in
good faith, the defendant was misled in a case.
WHEN TO FILE
The motion must be filed within the period for appeal.
The period for appeal is within 15 days after notice to
the appellant of the judgment or final order appealed
from. The 15-day period is deemed to commence upon
receipt by the counsel of record, which is considered
notice to the parties. Service upon the parties
themselves is prohibited and is not considered as official
receipt of judgment.
No motion for extension of time shall be allowed.
Where a record on appeal is required, the appellant
shall file:
(a) a notice of appeal, and
(b) record on appeal within 30 days from notice of the
judgment or final order.
A record on appeal is required only in:
(a) Special proceedings;
(b) Other cases of multiple or separate appeals.
Resolution of the motion
Rule 37, Sec. 4. Resolution of motion. A motion for
new trial or reconsideration shall be resolved within 30
days from the time it is submitted for resolution.
Effect of filing
The filing of a timely motion interrupts the period to
appeal.
The 30-day period to resolve the motion is held to be
mandatory [Gonzales v. Bantolo (2006)]
Rule 37, Sec. 3. Action upon motion for new trial or
reconsideration.The trial court may set aside the
judgment or final order and grant a new trial, upon such
terms as may be just, or may deny the motion. If the
court finds that excessive damages have been awarded
or that the judgment or final order is contrary to the
evidence or law, it may amend such judgment or final
order accordingly.
DENIAL OF THE MOTION; EFFECT
Denial of motion for reconsideration The
judgment or final order shall stand as is.
Rule 37, Sec. 7. Partial new trial or reconsideration.If
the grounds for a motion under this Rule appear to the
court to affect the issues as to only a part, or less than
all of the matter in controversy, or only one, or less than
all, of the parties to it, the court may order a new trial
or grant reconsideration as to such issues if severable
without interfering with the judgment or final order
upon the rest.
Single motion rule
Rule 37, Sec. 5. Second motion for new trial.A motion
for new trial shall include all grounds then available and
those not so included shall be deemed waived. A second
motion for new trial based on a ground not existing or
available when the first motion was made, may be filed
within the time herein provided excluding the time
during which the first motion had been pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
The prohibition on a second motion does not apply to a
motion for reconsideration of an interlocutory order.
Denial of motion for new trial
The judgment or final order shall stand as is.
Rule 37, Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried, the
court may either enter a judgment or final order as to
the rest, or stay the enforcement of such judgment or
final order until after the new trial.
When there is an order for partial new trial, the court
may either enter a judgment or final order as to the rest,
or stay the enforcement of such judgment or final order
until after the new trial.
When a second motion for new trial is permissible:
When a ground for new trial was not existing or
available when the first motion was made.
GRANT OF THE MOTION; EFFECT
Grant of motion for reconsideration
The court may amend the judgment or final order
accordingly. The amended judgment is in the nature of
a new judgment, which supersedes the original
judgment.
Grant of motion for new trial
The original judgment shall be vacated, and the action
shall stand for trial de novo. The recorded evidence
upon the former trial shall be used at the new trial
without retaking them (if they are material and
competent).
REMEDY WHEN MOTION IS DENIED, FRESH 15-DAY PERIOD RULE
Rule 37, Sec. 9. Remedy against order denying a motion
for new trial or reconsideration. An order denying a
motion for new trial or reconsideration is now
appealable. (As modified by AM 07-7-12)
Remedy if motion is denied
(a) To appeal from the judgment or final order
itself.
(b) The order denying the motion for new trial or
reconsideration may itself be assailed by a
petition for certiorari under Rule 65.
Habaluyas v. Japson (1986): A motion for new trial or
reconsideration is not a prerequisite to an appeal, a
petition for review or a petition for review on certiorari.
And since the purpose is to expedite the final disposition
of cases, a strict but prospective application of said
ruling is in order.
Fresh period rule
Neypes v. CA (2005): If the motion is denied, the movant
has a fresh period of 15 days from receipt or notice of
the order denying the motion for new trial or motion for An order denying motion for new trial or
reconsideration within which to file an appeal. reconsideration is NOW APPEALABLE!

Final Order Interlocutory Order

This fresh period rule shall also apply to:
(a) Rule 40 governing appeals from the Municipal Trial Disposes of the matter in Does not dispose of a
Courts to the Regional Trial Courts; its entirety, leaving case completely but
(b) Rule 42 on petitions for review from the Regional nothing more to be done leaves something more
Trial Courts to the Court of Appeals; but to enforce execution to be decided upon.
(c) Rule 43 on appeals from quasi-judicial agencies to Appealable Not appealable except
the Court of Appeals; and through a petition for
(d) Rule 45 governing appeals by certiorari to the certiorari under Rule 65
Supreme Court. Must clearly and No need to comply with
distinctly state the law such a requirement
The new rule aims to regiment or make the appeal and the facts on which it
period uniform, to be counted from receipt of the order is based
denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final MATTERS NOT APPEALABLE
order or resolution. Not appealable under Rule 41
(a) Order denying motion for new
APPEALS IN GENERAL trial or reconsideration;
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL
(b) Order denying petition for review or any similar
motion seeking relief from judgment;
Rule 41 [as amended by A.M. 07-7-12 (2007)] (c) Interlocutory order;
SECTION 1. Subject of appeal. An appeal may be taken (d) Order disallowing/dismissing appeal;
from a judgment or final order that completely disposes (e) Order denying motion to set aside judgment by
of the case, or of a particular matter therein when consent or confession or compromise on ground
declared by these Rules to be appealable. of fraud or mistake or duress or any other
vitiation of consent;
No appeal may be taken from: (f) Order of execution;
(a) An order denying a petition for relief or any similar (g) While the case is pending, judgment or final
motion seeking relief from judgment; order:
(b) An interlocutory order; (1) For/against one or more of several parties;
(c) An order disallowing or dismissing an appeal; (2) In separate claims, counterclaims, crossclaims,
(d) An order denying a motion to set aside a judgment third-party complaints.
by consent, confession or compromise on the Exception: If court allows appeal.
ground of fraud, mistake or duress, or any other (h) Order dismissing an action without prejudice.
ground vitiating consent;
(e) An order of execution; Note: An interlocutory order is one that does not finally
(f) A judgment or final order for or against one or more dispose of the case, and does not end the court's task of
of several parties or in separate claims, adjudicating the parties contentions and determining
counterclaims, cross-claims and third-party their rights and liabilities as regards each other, but
complaints, while the main case is pending, unless obviously indicates that other things remain to be done.
the court allows an appeal therefrom; and (g) An [BPI v. Lee (2012)]
order dismissing an action without prejudice.
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT
APPEALABLE

In any of the foregoing circumstances, the aggrieved In the 8 cases not appealable under Rule 41, the
party may file an appropriate special civil action as aggrieved party may file a special civil action under
provided in Rule 65. Rule 65. [Rule 41, Sec. 1]

MODES OF APPEAL
Significance of the amendment
Ordinary appeal
Procedure in the Court of Appeals
Ordinary appealed cases
Rule 44, Sec. 1. Title of cases. In all cases appealed to
the Court of Appeals under Rule 41, the title of the case
shall remain as it was in the court of origin, but the party
appealing shall be further referred to as the appellant
and the adverse party as the appellee.
Counsels and guardians
Rule 44, Sec. 2. Counsel and guardians. The counsel
and guardians ad litem of the parties in the court of
origin shall be respectively considered as their counsel
and guardians ad litem in the Court of Appeals. When
others appear or are appointed, notice thereof shall be
served immediately on the adverse party and filed with
the court.
Order of transmittal of record
Rule 44, Sec. 3. Order of transmittal of record. If the
original record or the record on appeal is not
transmitted to the Court of Appeals within 30 days after
the perfection of appeal, either party may file a motion
with the trial court, with notice to the other, for the
transmittal of such record or record on appeal.
Case docketing
Rule 44, Sec. 4. Docketing of case. Upon receiving the
original record or the record on appeal and the
accompanying documents and exhibits transmitted by
the lower court, as well as the proof of payment of the
docket and other lawful fees, the clerk of court of the
Court of Appeals shall docket the case and notify the
parties thereof.
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file
with the clerk of court approved record on appeal
Any unauthorized alteration, omission or addition in the
approved record in appeal shall be a ground for
dismissal of the appeal.
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is required
or desires to file In the Court of Appeals, one original
(properly marked) and two copies with their annexes
[Efficient Use of Paper Rule, AM 11-94-SC, Section 5]
A party required by the rules to serve a copy of his
court-bound on the adverse party need not enclose
copies of those annexes that based on the record of the
court such party already has in his possession. In the
event a party requests a set of the annexes actually filed
with the court, the part who filed the paper shall comply
with the request within five days from receipt. [Efficient
Use of Paper Rule, AM 11-9-4-
SC, Section 6]
Record completion
Rule 44, Sec. 5. Completion of record. Where the
record of the docketed case is incomplete, the clerk of
court of the Court of Appeals shall so inform the court
and recommend to it measures necessary to complete
the record. It shall be the duty of said court to take
appropriate action towards the completion of the
record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record.
Where the completion of the record could not be
accomplished within a sufficient period allotted for said
purpose due to insuperable or extremely difficult cases,
the court, on its own motion or on motion of an of the
parties, may declare that the record and its
accompanying transcripts and exhibits so far available
are sufficient to decide the issues raised in the appeal,
and shall issue an order explaining the reasons for such
declaration.
The failure of appellant to take the necessary steps for
the correction or completion of the record within the
time limited by the court in its order is a ground for
dismissal of the appeal.
Appellants brief
Rule 44, Sec.7. Appellants brief. It shall be the duty
of the appellant to file with the court, within 45 days
from receipt of the notice of the clerk that all the
evidence, oral and documentary, are attached to the
record
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is required
or desires to file In the Court of Appeals, one original
(properly marked) and two copies with their annexes
[Efficient Use of Paper Rule, AM 11-94-SC, Section 5]
A party required by the rules to serve a copy of his
court-bound on the adverse party need not enclose
copies of those annexes that based on the record of the
court such party already has in his possession. In the
event a party requests a set of the annexes actually filed
with the court, the part who filed the paper shall comply
with the request within five days from receipt. [Efficient
Use of Paper Rule, AM 11-9-4SC, Section 6]
Contents of appellants brief
Rule 44, Sec. 13. Contents of appellants brief. The
appellants brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief with a
digest of the arguments and page references, and a
table of cases alphabetically arranged, textbooks
and statutes cited with references to the pages
where they are cited;
(b) An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely
stated without repetition and numbered
consecutively;
(c) Under the heading Statement of the Case, a clear
and concise statement of the nature of the action, a
summary of the proceedings, the appealed rulings
and orders of the court, the nature of the judgment
and any other matters necessary to an
understanding of the nature of the controversy, with
page references to the record;
(d) Under the heading Statement of Facts, a clear and
concise statement in a narrative form of facts
admitted by both parties and of those in
controversy, together with the substance of proof
relating thereto in sufficient detail to make it clearly
intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or
law to be submitted to the court for its judgment;
(f) Under the heading Argument, the appellants
arguments on each assignment of error with page
references to the record. The authorities relied upon
shall be cited by the page of the report at which the
case begins and the page of the report on which the
citation is found.
(g) Under the heading Relief, a specification of the
order of judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellants brief shall contain, as an appendix, a
copy of the judgment or final order appealed from.
Rule 44, Sec. 15. Questions that may be raised on
appeal. Whether or not the appellant has filed a
motion for new trial in the court below, he may include
in his assignment of errors any question of law or fact
that has been raised in the court below and which is
within the issues framed by the parties.
Rule 124, Sec. 7. Contents of brief. The briefs in
criminal cases shall have the same contents as provided
in sections 13 and 14 of Rule 44. A certified true copy of
the decision or final order appealed from shall be
appended to the brief of the appellant.
Appellees brief
Rule 44, Sec. 8. Appellees brief. Within 45 days from
receipt of the appellants brief, the appellee shall file
with the court copies of his legibly typewritten,
mimeographed or printed brief, with proof of service of
2 copies thereof upon the appellant.
Note: Rules that apply, as regards the number of copies
to be filed, with the appellants brief apply with the
appellees brief.
Contents of appellees brief
Rule 44, Sec. 14. Contents of appellees brief. The
appellees brief shall, in the order herein indicated, the
following:
(a) A subject index of the matter in the brief with a
digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
(b) Under the heading Statement of Facts, the
appellee shall state that the accepts the
statement of facts in the appellants brief, or
under the heading Counter-Statement of
Facts, he shall point out such insufficiencies or
inaccuracies as he believes exist in the
appellants statement of facts with references
to the pages of the record in support thereof,
but without repetition of matters in the
appellants statement of facts; and
(c) Under the heading Argument, the appellee
shall set forth his arguments in the case on each
assignment of error with page references to the
record. The authorities relied on shall be cited
by the page of the report at which the case
begins and the page of the report on which the
citation is found.
Rule 44, Sec. 9. Appellants reply brief. Within 20 days
from receipt of the appellants brief, the appellee shall
file with the court copies of his legibly typewritten,
mimeographed or printed brief, with proof of service
upon the appellant.
Note: Note: Rules that apply, as regards the number of
copies to be filed, with the appellants brief apply in this
case.
Memoranda in special cases
Rule 44, Sec. 10. Time for memoranda in special cases.
In certiorari, prohibition, mandamus, quo warranto
and habeas corpus cases, the parties shall file, in lieu of
briefs, their respective memoranda within a non-
extendible period of 30 days from receipt of the notice
issued by the clerk that all the evidence, oral or
documentary, is already attached to the record.
The failure of the appellant to file his memorandum
within the period therefore may be a ground for
dismissal of the appeal.
Several or plurality of appellants, appellees and/or
counsel
Rule 44, Sec. 11. Several appellants or appellees or
several counsel for each party.Where there are
several appellants or appellees, each counsel
representing one or more but not all of them shall be
served with only one copy of the briefs. When several
counsel represent one appellant or appellee, copies of
the brief may be served upon any of them.
Extension of time for filing briefs
Rule 44, Sec. 12. Extension of time for filing briefs.
Extension of time for the filing of briefs will not be
allowed, except for good and sufficient cause, and only
if the motion for extension is filed before the expiration
of the time sought to be extended.
The Brief
De Liano v. CA (2001): The purpose of the brief is to
present to the court in concise form the points and
questions in controversy, and by fair argument on the
facts and law of the case to assist the court in arriving at
a just and proper conclusion.
The brief should be so prepared as to minimize the labor
of the court in the examination of the record upon
which the appeal is heard and determined.
Failure to comply with required contents of appellants
brief is cause for dismissal of the petition.
Rule 50, Sec. 1. Grounds for dismissal of appeal. An
appeal may be dismissed by the Court of Appeals, on its
own motion or on that of appellee, on the following
grounds:
(a) Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by these Rules;
(b) Failure to file the notice of appeal of the record
on appeal within the period prescribed by these
Rules;
(c) Failure of the appellant to pay the docket and
other lawful fees as provide in section 5 of Rule
40 and Section 4 of Rule 41;
(d) Unauthorized alterations, omission or additions
in the approved record on appeal as provided in
section 4 of Rule 44;
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules;
(f) Absence of specific assignment of errors in the
appellants brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.
PNB v. Philippine Milling (1969): CA has discretion to
dismiss or not to dismiss appeal. Although said
discretion must be a sound one, to be exercised in
accordance with the tenets of justice and fair play,
having in mind the circumstances obtaining in each
case, the presumption is that it has been so exercised.
Padasdas v. CA (1974): Failure to file appellants brief
within the reglementary period need not necessarily
cause dismissal of appeal where the same was due to
force majeure.
Dismissal of improper appeal
Rule 50, Sec. 2. Dismissal of improper appeal to the
Court of Appeals. An appeal under Rule 41 taken from
the Regional Trial Court to the Court of Appeals raising
only questions of law shall be dismissed, issues purely of
law not being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by petition for
review from the appellate judgment of a Regional Trial
Court shall be dismissed.
An appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but
shall be dismissed outright.
Atlas Consolidated v. CA (1991): Circular No. 2-90 now
prohibits the transfer of appeals erroneously taken to
the SC or CA to whichever of these tribunals has
appropriate appellate jurisdiction. But where SC
believes that there are factual issues which must be
resolved, it may, in the exercise of its sound discretion
and considering the attendant circumstances, either
itself take cognizance of and decide such issues or refer
them to CA for determination.
Cu-unjieng v. CA (2006): Nonpayment of the appellate
court docket and other lawful fees within the
reglementary period as provided under Rule 41, Sec. 4
is a ground for the dismissal of an appeal under Rule 50,
Sec. 1(c). The Supreme Court has invariably sustained
the Court of Appeals dismissal on technical grounds
under the afore-quoted provision unless considerations
of equity and substantial justice present cogent reasons
to hold otherwise. True, the rules may be relaxed but
only for persuasive and weighty reasons, to relieve a
litigant of an injustice commensurate with his failure to
comply with the prescribed procedure.
Rule 50, Sec. 3. Withdrawal of appeal. An appeal may
be withdrawn as of right at any time before the filing of
the appellees brief. Thereafter, the withdrawal may be
allowed in the discretion of the court.
Stay of execution See
next page.
General rule: If judgment is rendered against the
defendant, execution shall issue immediately upon
motion.
Exception: Immediate execution of judgment may be
stayed if the following requisites concur:
(a) an appeal has been perfected
(b) the defendant files a sufficient supersedeas
bond, approved by the MTC and executed in
favor of the plaintiff to pay the rents, damages
and costs accruing down to the time of the
judgment appealed from
(c) during the pendency of the appeal, the
defendant deposits with the appellate court
the amount of rent due from time to time
under the contract; in the absence of a
contract, he shall deposit with the RTC the
reasonable value of the use and occupation of
the premises for the preceding month or
period at the rate determined by the judgment
of the lower court on or before the 10th day of
each succeeding month or period
The supersedeas bond shall be transmitted by the MTC,
with the other papers, to the clerk of the RTC
to which the action is appealed.
All amounts so paid to the appellate court shall be
deposited with said court or authorized government
depositary bond, and shall be held there until the final
disposition of the appeal, UNLESS the court:
(a) by agreement of the interested parties, or
(b) in the absence of reasonable grounds of
opposition to a motion to withdraw, or
(c) for justifiable reasons, shall decree otherwise.
Should the defendant fail to make the payments, the
appellate court, upon motion of the plaintiff, and upon
proof of such failure, shall order the execution of the
judgment appealed from with respect to the
restoration of possession, but such execution shall not
be a bar to the appeal taking its course until the final
disposition thereof on the merits.
After the case is decided by the Regional Trial Court,
any money paid to the court by the defendant for
purposes of the stay of execution shall be disposed of
in accordance with the provisions of the judgment of
the Regional Trial Court.
In any case wherein it appears that the defendant has
been deprived of the lawful possession of land or
building pending the appeal by virtue of the execution
of the judgment of the Municipal Trial Court, damages
for such deprivation of possession and restoration of
possession may be allowed the defendant in the
judgment of the Regional Trial Court disposing of the
appeal.
Habere Facias Possessionem; definition
The name of the process commonly resorted to by the
successful party in an action for ejectment, for the
purpose of being placed by the sheriff in the actual
possession of the land recovered.
San Pedro v. CA (1994): Judgments in ejectment cases
which are favorable to the plaintiff are immediately
executory. They can be stayed by the defendant only by:
(a) perfecting an appeal;
(b) filing a supersedeas bond; and
(c) making a periodic deposit of the rental or the
reasonable compensation for the use and
occupation of the property during the pendency of
the appeal.
These requisites must concur.
Puncia v. Gerona (1996): A stay of execution may also be
warranted once the writ is issued:
(a) where the delay in the deposit is due to fraud,
accident, mistake, or excusable negligence; or,
(b) where supervening events occurring subsequent to
the judgment bring about a material change in the
situation of the parties which makes execution
inequitable
(c) where there is no compelling urgency for the
execution because it is not justified by the prevailing
circumstances
Rule 39, Sec. 2. Discretionary execution.
(a) Execution of a judgment or a final order pending
appeal.On motion of the prevailing party with
notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in
possession of either the original record or the record
on appeal, as the case may be, at the time of the
filing of such motion, said court may, in its
discretion, order execution of a judgment or final
order even before the expiration of the period to
appeal.
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate
court.
Discretionary execution may only issue upon good
reasons to be stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments.
A several, separate or partial judgment may be
executed under the same terms and conditions as
execution of a judgment or final order pending
appeal.
Sec. 21, Revised Rules on Summary Procedure. Appeal.
The judgment or final order shall be appealable to the
appropriate RTC which shall decide the same in
accordance with Sec. 22 of BP 129. The decision of the
regional trial court in civil cases governed by this Rule,
including forcible entry and unlawful detainer, shall be
immediately executory, without prejudice to a further
appeal that may be taken therefrom. Section 10 of Rule
70 shall be deemed repealed.
Rule 43, Sec. 12. Effect of appeal.The appeal shall not
stay the award, judgment, final order or resolution
sought to be reviewed unless the Court of Appeals shall
direct otherwise upon such terms as it may deem just.
Rule 39, Sec. 4. Judgments not stayed by appeal.
Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as
are not or may hereafter be declared to be immediately
executory shall be enforceable after their rendition and
shall not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion may
make an order suspending, modifying, restoring or
granting the injunction, receivership, accounting, or
award of support.
General rule: In ordinary appeals, execution is stayed.
Exceptions
 (a) Decision in forcible entry and unlawful detainer.
Exception to exception: If appellant stays
immediate execution by filing a notice of appeal,
supersedeas bond and depositing in court a
monthly rental or compensation for the
occupation as fixed by the court which rendered
the decision.
(b) Decision of the MeTC, MTC or MCTC or the RTC
where execution pending appeal has been
granted by the court of origin or in a proper case
by the appellate court upon good reasons to be
stated in the order.
(c) Decision of the RTC rendered in the exercise of
its appellate jurisdiction on cases tried and
decided by the court of origin under Summary
Procedure.
(d) Decision of a quasi-judicial agency under the
Rule 43, Sec. 12, UNLESS otherwise provided by
the Court CA;
(e) Decision in cases of injunction, receivership,
support and accounting.
Service Specialists v. Sheriff of Manila (1986): An appeal
from the order denying the petition for relief does not
stay the judgment from which relief is sought. In order
to stay execution, it is necessary to obtain a writ of
preliminary injunction.
When case is submitted for judgment
Rule 51, Sec. 1. When case deemed submitted for
judgment.A case shall be deemed submitted for
judgment:
A. In ordinary appeals.
Where no hearing on the merits of the main case is held,
upon the filing of the last pleading, brief, or
memorandum required by the Rules or by the court
itself, or the expiration of the period for its filing.
When such hearing 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.
B. In original actions and petitions for review.
Where no comment is filed, upon the expiration of the
period to comment.
Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the court,
or the expiration of the period for its filing.
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.
Rule 51, Sec. 2. By whom rendered. The judgment
shall be rendered by the members of the court who
participated in the deliberation on the merits of the case
before its assignment to a member for the writing of the
decision.
Rule 51, Sec. 3. Quorum and voting in the court. The
participation of all three Justices of a division shall be
necessary at the deliberation and the unanimous vote
of the three Justices shall be required for the
pronouncement of a judgment or final resolution. If the
three Justices do not reach a unanimous vote, the clerk
shall enter the votes of the dissenting Justices in the
record. Thereafter, the Chairman of the division shall
refer the case, together with the minutes of the
deliberation, to the Presiding Justice who shall
designate two Justices chosen by raffle from among the
other members of the court to sit temporarily with
them, forming a special division of five Justices. The
participation of all the five members of the special
division shall be necessary for the deliberation required
in section 2 of this Rules and the concurrence of a
majority of such division shall be required for the
pronouncement of a judgment or final resolution.
Rule 51, Sec. 4. Disposition of a case.The CA, in the
exercise of its appellate jurisdiction, may affirm,
reverse, or modify the judgment or final order appealed
from, and may direct a new trial or further proceedings
to be had.
Sec.40, BP 129. Form of decision in appealed cases.
Every decision or final resolution of a court in appealed
cases shall clearly and distinctly state the findings of fact
and the conclusion of law on which it is based, which
may be contained in the decision or final resolution
itself, or adopted by reference from those set forth in
the decision, order, or resolution appealed from.
Rule 51, Sec. 5. Form of decision.Every decision or
final resolution of the court in appealed cases shall
clearly and distinctly state the finding of fact and the
conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or
adopted from those set forth in the decision, order, or
resolution appealed from.

The body of the judgment must contain the reasons or
conclusions of the court to serve as a guide or
enlightenment to determine the ratio decidendi. But
what actually constitutes the resolution of the court
which is the subject of the execution is the dispositive
portion of the fallo. [Olac v. CA]
Rule 51, Sec. 6. Harmless error.No error in either the
admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every
stage of the proceedings must disregard any error or
defect which does not affect the substantial rights of the
parties.
Rule 51, Sec. 7. Judgment where there are several
parties.In all actions or proceedings, an appealed
judgment may be affirmed as to some of the appellants,
and revered as to others, and the case shall thereafter
be proceeded with, so far as necessary, as of separate
actions had been begun and prosecuted; and execution
of the judgment of affirmance may be had accordingly,
and costs may be adjudged in such cases, as the court
shall deem proper.
Rule 51, Sec. 8. Questions that may be decided.No
error which does not affect the jurisdiction over the
subject matter or the validity of the judgment appealed
from or the proceedings therein will be considered
unless stated in the assignment of errors, or closely
related to or dependent on an assigned error
Rule 51, Sec. 9. Promulgation and notice of judgment.
After the judgment or final resolution and dissenting or
separate opinions, if any, are signed by the Justices
taking part, they shall be delivered for filing to the clerk
who shall indicate thereon the date of promulgation and
cause true copies thereof to be served upon the parties
or their counsel.
Petition for review [Rule 42]
Mode of appeal in cases decided by the Regional Trial
Court in the exercise of its appellate jurisdiction
[Rule 41, Sec. 2]
Procedure:
Time for filing [Rule 42, Sec. 1]: The petition shall be filed
and served within fifteen (15) days from notice of the
decision sought to be reviewed or of the denial of
petitioners motion for new trial or reconsideration filed
in due time after judgment.
Note: Time for filing the petition may be extended
(additional 15 days) by the CA upon proper motion and
the payment of the full amount of the docket and other
lawful fees and the deposit for costs before the
expiration of the reglementary period. However, no
further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15)
days.
Amount of costs: Php 500 [Rule 42, Sec. 1]
Petition for Review Form and Content [Rule 42, Sec. 2]:
Petition must state:
(a) full names of the parties to the case w/o impleading
the lower courts or the judges
(b) indicate material dates showing filed on time
(c) set forth statement of the matters involved and the
issues raised, specification of errors of fact/law/both
and the reasons or arguments
relied upon for the allowance of the appeal
It must also be accompanied by legible duplicate
original/true copies of the judgments/orders, certified
correct by the CoC, the requisite number of copies and
of the pleadings and other material portions of the
record supporting the allegations of
the petition
Copies to be filed:
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is required
or desires to file In the Court of Appeals, one original
(properly marked) and two copies with their annexes
[Efficient Use of Paper Rule, AM 11-9-4SC, Section 5]
A party required by the rules to serve a copy of his
court-bound on the adverse party need not enclose
copies of those annexes that based on the record of the
court such party already has in his possession. In the
event a party requests a set of the annexes actually filed
with the court, the part who filed the paper shall comply
with the request within five days from receipt. [Efficient
Use of Paper Rule, AM 11-9-4SC, Section 6]
A Certification under oath shall also be submitted. The
certification must state:
 (a) that he has not theretofore commenced any
other action involving the same issues in the SC,
CA, or any other tribunal or agency;
(b) if there is such other action or proceeding, he
must state the status of the same; and if he
should thereafter learn that a similar action or
proceeding has been filed or is pending before
the SC, CA, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof
within five (5) days therefrom
Note: Failure to comply with the requirements shall
be a ground for dismissal [Rule 42, Sec. 3]
Action of the Court [Rule 42, Sec. 4]: Court may
REQUIRE RESPONDENT TO SUBMIT COMMENT
within 10 days from notice or DISMISS the petition
Possible Grounds for dismissal:
(a) patently without merit,
(b) prosecuted manifestly for delay, or
(c) questions raised are too unsubstantial to
require consideration
Form and Content of Comment [Rule 42, Sec. 5]:
Comment must be in one original (properly marked) and
two copies with their annexes (Efficient Use of Paper
Rule, Section 5), accompanied by certified true copies of
such material portions of the record; stating:
(a) whether or not he accepts the statement of
matters involved in the petition
(b) point out such insufficiencies or inaccuracies as
he believes exist in petitioners statement of
matters involved but without repetition
(c) reasons why the petition should not be given
due course
If the CA finds that there is a prima facie that the lower
court has committed an error of fact or law that will
warrant a reversal or modification of the appealed
decision, it may accordingly give due course to the
petition. [Rule 42, Sec. 6]. The CA may also order the
elevation of the original record from the RTC to the CA.
Effect of Perfection of Appeal [Rule 42, Sec. 8]:
(1) RTC loses jurisdiction
Note: Before the CA gives due course to the petition, the
RTC has authority to do the following:
(a) issue orders for the protection and preservation
of the rights of the parties which do not involve
any matter litigated by the
appeal
(b) approve compromises
(c) permit appeals of indigent litigants
(d) order execution pending appeal in accordance
with Sec. 2 of Rule 39, and
(e) allow withdrawal of the appeal
(2) Appeal shall stay the judgment or final order
Exceptions:
(a) In civil cases decided under the Summary
Procedure
(b) CA, law or ROC provided otherwise
Action of the Court after petition is given due course
[Rule 42, Sec. 9]: CA may:
(a) Set the case for oral argument; or
(b) Require parties to submit memoranda within a
period of fifteen (15) days from notice
When case is deemed submitted for decision: upon filing
of the last pleading/memorandum [Rule 42,
Sec. 9]
Petition for review on certiorari
Procedure in the Supreme Court (Appealed Cases)
Mode of appeal
Rule 56, Sec. 3. Mode of appeal. An appeal to the
Supreme Court may be taken only by a petition for
review on certiorari, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
Rule 56, Sec. 4. Procedure. The appeal shall be
governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws, Rules 45,
48, sections 1, 2 and 5 to 11 of Rules 51, 52 and this Rule.
Grounds for dismissal of appeal
Rule 56, Sec. 5. Grounds for dismissal of appeal. The
appeal may be dismissed motu proprio or on motion of
the respondent on the following grounds: (a) Failure to
take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
 (e) Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the
Supreme Court.
Rule 56, Sec. 6. Disposition of improper appeal. Except
as provided in section 3, Rule 122 regarding appeals in
criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, an appeal
taken to the Supreme Court by notice of appeal shall be
dismissed.
An appeal by certiorari taken to the Supreme Court from
the Regional Trial Court submitting issues of fact may be
referred to the Court of Appeals for decision or
appropriate action. The determination of the Supreme
Court on whether or not issues of facts are involved shall
be final.
Rule 122, Sec. 3. How appeal taken. (a) The appeal
to the Regional Trial Court, or to the Court of Appeals
in cases decided by the
Regional Trial Court in the exercise of its original
jurisdiction, shall be by notice of appeal filed with the
court which rendered the judgment or final order
appealed from and by serving a copy thereof upon the
adverse party.
(b) The appeal to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by
petition for review (c)
under Rule 42.
(d) The appeal in cases where the penalty imposed
by the Regional Trial Court is reclusion perpetua
or life imprisonment, or where a lesser penalty
is imposed but for offenses committed on the
same occasion or which arose out of the same
occurrence that gave rise to the more serious
offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall
be by notice of appeal to the Court of Appeals in
accordance with paragraph (a) of this Rule.
(e) No notice of appeal is necessary in cases where
the Regional Trial Court imposed the death
penalty. The Court of Appeals shall
automatically review the judgment as provided
in Section 10 of this Rule.
(f) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review on
certiorari under Rule 45.
General rule: An appeal taken to the Supreme Court by
notice of appeal shall be dismissed.
Exception: Appeals in criminal cases where the penalty
imposed is death, reclusion perpetua or life
imprisonment.
Equally divided
Rule 56, Sec. 7. Procedure if opinion is equally divided.
Where the court en banc is equally divided in opinion,
or the necessary majority cannot be had, the case shall
again be deliberated on, 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.
Questions of Fact v. Questions of Law
Agote v. Lorenzo (2005): A question of law does not
involve an examination of the probative value of the
evidence presented by any of the litigants.
There is a question of law in a given case when the
doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact when
the doubt or difference arises as to the truth or the
falsehood of the facts alleged.
Alsua-Betts v. CA (1979):
General rule: CAs findings of fact are final and
conclusive and cannot be reviewed on appeal to the SC,
provided they are borne out by the record or are based
on substantial evidence.
Exception: CAs findings of fact may be reviewed by the
SC on appeal by certiorari when:
(1) Conclusion is a finding grounded entirely on
speculations, surmises or conjectures [Joaquin v.
Navarro (1953)].
(2) Inference made is manifestly mistaken, absurd or
impossible [Luna v. Linatok (1942)].
(3) There is grave abuse of discretion in the appreciation
of facts [Buyco v. People (1954)].
(4) Judgment is based on a misapprehension of facts [De
la Cruz v. Sosing (1953).
(5) The Court of Appeals findings of fact are conflicting
[Casica v. Villaseca (1957)].
(6) The Court of Appeals, in making its findings, went
beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
(7) The Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties and which,
if properly considered, would justify a different
conclusion [Abellana v. Dosdos (1965)].
(8) The Court of Appeals findings of fact are contrary to
those of the trial court, or are mere conclusions
without citation of specific evidence, or where the
facts set forth by the petitioner are not disputed by
the respondent, or where the findings of fact of the
Court of Appeals are premised on absence of
evidence but are contradicted by the evidence of
record [Manlapaz v. CA (1987)].
Perez-Rosario v. CA (2005): Rule 65 cannot cure the
failure to appeal thru Rule 45.
ISSUES TO BE RAISED ON APPEAL
Cognizable judgments/issues
The appellate court has no jurisdiction to review a
judgment which is immediately final and executory by
express provision of law. [Republic v. BermudezLorino
(2005)]
Rationale: Appeal is merely a privilege conferred by law
upon the litigants.
A party cannot change the theory on appeal. Only issues
pleaded in the lower court and properly raised may be
resolved by the appellate court. [Medina v.
CA (1992)]
However, issues which are inferred from or necessarily
connected with the issue properly raised and pleaded
may be resolved by the appellate court.
[Espina v. CA (1992)]
Notice of appeal
The notice of appeal shall indicate the parties to the
appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing
the timeliness of the appeal.
Record of appeal Required
only in:
(a) Special proceedings;
(b) Multiple or separate appeals where the law or
the Rules of Court so requires.
Rule 40, Sec.2. When to appeal.The appeal is taken by
filing a notice of appeal with the court that rendered the
judgment or final order appealed from. Where a record
on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within 30 days after
notice of the judgment or final order.
The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration shall be allowed.
Neypes v. CA (2005) on the fresh period rule: Definition:
Period of appeal is interrupted by a timely motion for
new trial or reconsideration. Motion for extension of
time to file motion for new trial or reconsideration is not
allowed.
Applicability:
(a) Rule 40 on appeals from MTC to RTC.
(b) Rule 42 on petitions for review from RTC to CA.
(c) Rule 43 on appeals from QJA to CA.
(d) Rule 45 on appeals by certiorari to SC.
Rationale: To standardize the appeal periods provided
in the Rules of Court and to afford litigants fair
opportunity to appeal their cases, the court deems it
practical to allow a fresh period of 15 days within which
to file the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a motion
for new trial or reconsideration.
PERIOD OF APPEAL
From MTC to RTC and from RTC (original) to CA
(a) By notice of appeal: 15 days from notice of the
judgment or final order
(b) By record of appeal: 30 days from notice of the
judgment or final order
(c) From MTC to RTC (appellate) to CA: 15 days from
notice of the judgment or final order but the Court
of Appeals may grant a 15 day extension. No further
extension shall be granted except for the most
compelling reasons and in no case longer than 15
days.
From RTC (original) to CA to SC and from MTC to RTC
(appellate) to CA to SC and from CA to SC and from QJA
to CA to SC
15 days from notice of judgment or final order or from
denial of petitioners motion for reconsideration or new
trial. The SC may grant a 30 day extension for justifiable
reasons.
From QJA to CA
15 days from notice of the award, judgment, final order
or resolution or from date of last publication if required
by law. The CA may grant a 15 day extension. No further
Distinctions between Rule 45 and
Rule 65 Based on J. Regalados Commentary
Rule 45 Appeal by Certiorari Rule 65 Original Action
for Certiorari
(1) Issues Raised Grave Abuse of
Questions of Law Discretion Amounting to
Lack or Excess of
Jurisdiction
(2) Against What Court Directed Against an
Action Directed Interlocutory Order of
Review of the judgment, the court prior to appeal
award or final order on from the judgment, or
the merits where there is no appeal
or any other plain speedy
and adequate remedy
(3) Reglementary Period Not later than sixty (60)
Must be filed within the days from notice of the
reglementary period for judgment, order or
appeal. resolution sought to be
assailed.
(4) Effect on the Proceedings No effect (i.e., (Asked in the 1999 and 2008 Bar Exams)
Below proceedings below
Judgment, award or order continue) unless a writ of
appealed from is stayed by preliminary injunction or
Periods
the Appeal a temporary restraining
order has been issued
extension shall be granted except for the most
compelling reasons and in no case longer than 15 days.
Rule 45 Appeal by Certiorari Rule 65 Original Action
for Certiorari
(5) Parties Involved The parties are the
Original Parties to the action aggrieved party against
remain the same during the lower
appeal (albeit with the court/Quasijudicial
corresponding appellation of agency and the prevailing
appellant and appellee), the parties, who thereby
lower court or quasi-judicial respectively become the
agency is not to be petitioner and the
impleaded. respondents.
(6) Requirement of Motion MR is a CONDITION
for Reconsideration For PRECEDENT subject only
purposes of appeal, to certain exceptions.
MR is not required
(7) Exercise of Jurisdiction Higher Court exercises
The Appellate Court original jurisdiction under
exercises its appellate its power of control and
jurisdiction and power of supervision over the
review proceedings of lower
courts.
Matrix
of

Period to Appeal Extensions Effect of MR or MNT

By notice of appeal - 15 days No extensions allowed Interrupts the period to

from notice of the judgment or appeal
final order
MTC to RTC
By record of appeal 30 days
from notice of the judgment or
final order
By notice of appeal - 15 days No extensions allowed Interrupts the period to
from notice of the judgment or appeal
final order
RTC to CA
By record of appeal 30 days
from notice of the judgment or
final order
15 days from notice of the The CA may grant a 15 day Fresh period to appeal
judgment or final order OR extension. No further extension from denial MR or MNT
MTC to RTC to
from denial of MR or MNT shall be granted except for the
CA

15 days from notice of the
award, judgment, final order or
QJA to CA resolution or from date of last
publication if required by law
OR from denial of MR or MNT
RTC to SC 15 days from notice of judgment
RTC to CA to or final order OR from denial of
SC petitioners MR or MNT.
CA to SC
This fresh period rule shall also apply to:
(a) Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts;
(b) Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals;
(c) Rule 43 on appeals from quasi-judicial agencies to
the Court of Appeals; and
(d) Rule 45 governing appeals by certiorari to the
Supreme Court. The new rule aims to regiment or
make the appeal period uniform, to be counted
from receipt of the order denying the motion for
new trial, motion for reconsideration (whether full
or partial) or any final order or resolution. [Neypes
v. CA, (2005)]
A party litigant may now file his notice of appeal
either within fifteen days from receipt of the original
decision or within fifteen days from the receipt of the
order denying the motion for reconsideration.
Being procedural in nature, Neypes is deemed to be
applicable to actions pending and undetermined at
the time of its effectivity and is thus retroactive in that
sense and to that extent. [First Aqua Sugar v.
BPI (2007)]
PERFECTION OF APPEAL
Perfection of an appeal in the manner and within the
period laid down by law is mandatory and
jurisdictional. [Balgami v. CA (2004)]
Rationale: Appeal is merely a statutory privilege, and
may be exercised only in the manner and in
accordance with the provisions of the law. It is neither
a natural right nor a part of due process.
most compelling reasons and in
no case longer then 15 days.
The CA may grant a 15 day Fresh period to appeal
extension. No further extension from denial MR or MNT
shall be granted except for the
most compelling reasons and in
no case longer then 15 days.
The SC may grant a 30 day Fresh period to appeal
extension for justifiable reasons. from denial MR or MNT
Effect of failure to perfect appeal (a)
Defeats a partys right to appeal.
(b) Precludes appellate court from
acquiring jurisdiction.
Camposagrado v. Camposagrado (2005): Failure to
pay the appellate court docket fee within the
reglementary period confers only a discretionary (not
mandatory) power to dismiss the proposed appeal.
Such discretion should consider all attendant
circumstances and must be exercised with a view to
substantial justice.
Republic v. Bermudez-Lorino (2005): Appellate court
has no jurisdiction to review a judgment which is
immediately final and executory by express provision
of law.
Medina v. CA (1992): A party cannot change the
theory on appeal. Only issues pleaded in the lower
court and properly raised may be resolved by the
appellate court.
Espina v. CA (1992): However, issues which are
inferred from or necessarily connected with the issue
properly raised and pleaded may be resolved by the
appellate court.
Appeal from MTC to RTC: the rules on perfection of
appeal from RTC to CA applies.
From the Regional Trial Court to CA:
(a) By notice of appeal: perfected as to party who
filed notice upon filing of the same in due time
The court loses jurisdiction over the case upon
perfection of appeal AND expiration of time to appeal
of the other parties.
(b) By record on appeal: perfected as to the party who
filed appeal and with respect to the subject matter
thereof upon approval of the record filed
in due time

The court loses jurisdiction upon approval of the

records on appeal AND expiration of the time to
appeal of the other parties

From MTC to RTC (appellate jurisdiction) to CA: upon

timely filing of a petition for review and the payment
of the corresponding docket and other lawful fees.

The RTC loses jurisdiction upon perfection of appeals

filed in due time AND the expiration of time to appeal
of other parties.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC MTC

to RTC

Rule 40, Sec.1. Where to appeal. An appeal from a

judgment or final order of a MTC may be taken to the
RTC exercising jurisdiction over the area to which the
former pertains. The title of the case shall remain as it
was in the court of origin, but the party appealing the
case shall be further referred to as the appellant and
the adverse party the appellee.

The other provisions governing appeal from RTC to CA

so long as they are not inconsistent are applicable to
appeal from MTC to RTC.

MTC to RTC to CA
File a verified petition for review with the CA,
paying at the same time to the clerk of said court
the corresponding docket and other lawful fees,
depositing the amount of P500 for costs and
furnishing the RTC and the adverse party with a
copy of the petition.
The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the
denial of petitioners MNT or MR filed in due time after judgment.

Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit
for costs before the expiration of the reglementary period, the CA may grant an additional period of 15 days
only within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to
exceed 15 days. [Rule 42, Sec. 1]

(Asked in the 1999 and 2002 Bar Exam)

Petition for review from RTC to CA [Rule 42] Applicability. Appeal of RTC decision rendered in exercise of appellate
jurisdiction [Rule 42, Sec. 1]

Certificate of Non-Forum Shopping (CNFS). Petitioner in a petition for review in CA/SC must submit a CNFS with
the petition. However, this rule is relaxed where there is need to conduct a review. In those instances, petitioner
may comply with the requirement after he has filed the petitions. [Rule 42,
Sec.1]

MTC to RTC to CA to SC

Rule 41. Sec.2(c). Appeal by certiorari.In all cases where only questions of law are raised or involved, the appeal
shall be to the SC by petition for review on certiorari in accordance with Rule 45.

Rule 45, Sec.1. Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a judgment or
final order or resolution of the CA, the Sandiganbayan, the RTC or other courts whenever authorized by law, may
file with the SC a verified petition for review on certiorari. The petition may include an application for a writ of
preliminary injunction or other provisional remedies and shall raise only questions of law which must be distinctly
set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or
proceeding at any time during its pendency.

(Asked in the 2002 Bar Exams)

Applicability of Rule 45

Rule 45, Sec.9. Rule applicable to both civil and criminal cases.The mode of appeal prescribed in this Rule
shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment.

Filing of Petition
(a) File with the SC a verified petition for review on certiorari.

(b) Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to
file In the Supreme Court, one original (properly marked) and four copies, unless the case is referred to the Court
 En Banc, in which event, the parties shall file ten additional copies. For the En Banc, the parties need to submit
only two sets of annexes, one attached to the original and an extra copy. For the Division, the parties need to
submit also two sets of annexes, one attached to the original and an extra copy. All members of the Court shall
share the extra copies of annexes in the interest of economy of paper.

Parties to cases before the Supreme Court are further required, on voluntary basis for the first six months
following the effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit,
simultaneously with their court-bound papers, soft copies of the same and their annexes (the latter in PDF
format) either by email to the Courts e-mail address or by compact disc (CD). This requirement is in preparation
for the eventual establishment of an e-filing paperless system in the judiciary. (Efficient Use of
Paper Rule, Section 5)

(c) Petition shall raise only questions of law which must be distinctly set forth.

Contents of Petition [Rule 45, Sec. 4]

(a) Full name of the appealing party (petitioner) and the adverse party (respondent).
(b) Without impleading the lower court or judges as petitioners/respondents.
(c) Material dates:
(1) When notice of the judgment or final order or resolution subject thereof was received;
(2) When a motion for new trial or reconsideration (if any) was filed and when notice of the denial thereof was
received.
(d) Concise statement of the matters involved, and the reasons/arguments relied on for the
allowance of the petition;
(e) A clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified
by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material
portions of the record as would support the petition; (f) Certificate of non-forum shopping.

File petition within 15 days from notice:

(a) of the judgment or final order or resolution appealed from, or
(b) of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the
judgment.

On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for
costs before the expiration of the reglementary period, the SC may for justifiable reasons grant an extension of
30 days only within which to file the petition. [Rule
45, Sec. 2]

Rule 45, Sec.3. Docket and other lawful fees; proof of service of petition. Unless he has theretofore done so, the
petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and
deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof
on the lower court concerned and on the adverse party shall be submitted together with the petition.

Dismissal or denial of petition

Rule 45, Sec.5. Dismissal or denial of petition. The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the
petition, and the contents of and the documents which should accompany the petition shall be sufficient ground
for the dismissal thereof.
The SC may on its own initiative deny the petition on the ground that the appeal is without merits, or is prosecuted
manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Review is discretionary
A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special
and important reasons therefore.

The following, while neither controlling nor fully measuring the court's discretion, indicate the
character of reasons which will be considered:
(a) When the court a quo has decided a question of substance, not theretofore determined by the SC, or has
decided it in a way probably not in accord with law or with the applicable decisions of the SC; or
(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so
far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

May Require Pleadings and Documents

Rule 45, Sec. 7. Pleadings and documents that may be required; sanctions. For purposes of determining
whether the petition should be dismissed or denied pursuant to sec.5 of this Rule, or where the petition is given
due course under Sec.8 hereof, the SC may require or allow the filing of such pleadings, briefs, memoranda or
documents as it may deem necessary within such periods and under such conditions as it may consider
appropriate, and impose the corresponding sanctions in case of nonfiling or unauthorized filing of such
pleadings and documents or non-compliance with the conditions therefor.

Due Course and Elevation of Records

Rule 45, Sec. 8. Due course; elevation of records. If the petition is given due course, the SC may require the
elevation of the complete record of the case or specified parts thereof within 15 days from notice.

MTC to SC
(a) The remedy is a petition for certiorari under Rule
65.
(b) This is not an appeal.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC RTC to CA

Under Rule 41, an appeal of judgment or final order under that completely disposes of either:
(a) The case;
(b) A particular matter in the case, when declared by ROC to be appealable.

Not appealable under Rule 41

(a) Order denying motion for new trial or reconsideration;
(b) Order denying petition for review or any similar motion seeking relief from judgment;
(c) Interlocutory order;
(d) Order disallowing/dismissing appeal;
(e) Order denying motion to set aside judgment by consent or confession or compromise on ground of fraud or
mistake or duress or any other vitiation of consent;
(f) Order of execution;
(g) While the case is pending, judgment or final order:
 (1) For/against one or more of several parties;
(2) In separate claims, counterclaims, crossclaims, third-party complaints.
Exception: If court allows appeal.
(h) Order dismissing an action without prejudice.

In the 8 cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65.

Interlocutory order
Definition: If it does not dispose of the case but leaves something else to be done by the trial court on the merits of
the case. [Investments, Inc. v. CA
(1987)]

For purposes of appeal, an order is final if it disposes of the entire case. An order for partial summary judgment is
an interlocutory order which cannot be appealed from. The trial court had not yet rendered a complete final
judgment. [GSIS v. Phil. Village Hotel
(2004)]

Multiple appeals
Civil cases which admit of multiple appeals:
(a) Judgment in an action for recovery or for partition of property is separately appealable from the proceedings on
that part of the judgment wherein accounting for receipts from the property is ordered as a primary or incidental
relief. When such accounting is submitted and either approved or rejected by the trial court, another appeal lies
therefrom.
(b) Special civil actions:
(1) Expropriation; (Rule 67)
(2) Judicial partition; (Rule 69)
(3) Judicial foreclosure of mortgage; (Rule 68)

Special proceedings also admit of multiple appeals.

Ko v. PNB (2006): The order of dismissal due to failure to prosecute is appealable by notice of appeal under Rule 41.

Philexport v. PI (2004): But an order of dismissal without prejudice is not appealable under Rule 41.
Lanaria v. Planta (2007): Submission of a document together with the motion for reconsideration constitutes
substantial compliance with compliance with Section 2, Rule 42 or the requirement that relevant or pertinent
documents be submitted along with the petition, and calls for the relaxation of
procedural rules

RTC to CA to SC
The remedy is a petition for review on certiorari under Rule 45.

RTC to SC
(a) The remedy is a petition for certiorari under Rule
65.
(b) This is not an appeal.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CA CA to SC

The remedy is a petition for review on certiorari under Rule 65.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA RA 9282: Decisions of the CTA are now appealable to the SC by
petition for review on certiorari under Rule 45.

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

COA
The remedy is a petition for certiorari under Rule 65.
[Rule 64, Section 2]

Time to file: petition shall be filed within thirty (30) days from notice of the judgment or final order or
resolution

Note: If allowed under the Rules of the Commission concerned, the filing of a motion for new
trial/reconsideration shall interrupt the period

Copies to be filed: Unless otherwise directed by the court, one original (properly marked) and four copies,
unless the case is referred to the Court En Banc, in which event, the parties shall file ten additional copies. [AM
11-9-4-SC, Section 5(a)]

Contents:
(a) State the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments
relied upon for review, and pray for judgment annulling or modifying the questioned judgment, final order or
resolution. Findings of fact of the Commission supported by substantial evidence shall be final and non-
reviewable.

(b) Accompanied by a clearly legible duplicate original or certified true copy of the judgment, final order or
resolution subject thereof, together with certified true copies of such material portions of the record as are
referred to therein and other documents relevant and pertinent thereto.

For the Division, the parties need to submit also two sets of annexes, one attached to the original and an extra copy.
All members of the Court shall share the extra copies of annexes in the interest of economy of paper. Parties to
cases before the Supreme Court are further required, on voluntary basis for the first six months following the
effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with
their courtbound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the
Courts e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment
of an e-filing paperless system in the judiciary.

(a) State the specific material dates showing that it was filed within the period fixed herein, and shall contain a
sworn certification against forum shopping as provided in the third paragraph of section 3, Rule 46.

(b) Accompanied by proof of service of a copy thereof on the Commission concerned and on the adverse party, and
of the timely payment of docket and other lawful fees.

Note: The failure of petitioner to comply with any of the foregoing requirements shall be sufficient ground for the
dismissal of the petition.

Effect of Filing: The filing of a petition for certiorari shall not stay the execution of the judgment or final order or
resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem
just.

If the SC finds finds the petition sufficient in form and substance, it shall order the respondents to file their
comments on the petition within ten (10) days from notice; otherwise, it may dismiss the petition
outright. [Rule 64, Section 6]
Aside from the comment, No other pleading may be filed by any party unless required or allowed by the
Court. [Rule 64, Section 7]

Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be
deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers
as may be required or allowed, or the expiration of the period to do so.
[Rule 64, Section 9]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

COMELEC
[same with COA (Rule 64)]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

CSC
The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof
under Rule 43 of the Rules of Court within fifteen days from notice of the resolution. [DECS v.
Cuanan (2008)]

OREVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

OMBUDSMAN

When CA has Jurisdiction

In administrative cases: Where the respondent is absolved of the charge, and in case of conviction where the
penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent
to one month salary , the decision shall be unappealable. In all other cases, the decision may be appealed to
the CA on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules
of Court, within 15 days from receipt of the written Notice of the Decision or Order denying the Motion for
Reconsideration. [AO 7, Rule III, Section 7]

Note: An appeal shall not stop the decision from being executory.

When the SC has Jurisdiction

In cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack
or excess of jurisdiction, a special civil action of certiorariunder Rule 65 may be filed with this Court to set aside
the Ombudsmans order or resolution. [Nava v. NBI (2005)]

Court has jurisdiction over such petitions questioning resolutions or orders of the Office of the Ombudsman in
criminal cases. [Kuizon v. Desierto
(2001)]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC

Rule 43, Sec.2. Cases not covered.This Rule shall not apply to judgments or final orders issued under the Labor
Code of the Philippines.

NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of Appeals on
certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the Court of
Appeals through a petition for review under this Rule. Also, appeals from the Office of the Ombudsman in
administrative disciplinary cases are now covered by this Rule.
[Fabian v. Desierto (1998)]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF
QUASI-JUDICIAL AGENCIES

QJA to CA
Applicability
Appeals from judgments or final orders of the CTA and from awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial
functions: (arranged alphabetically)

(a) Agricultural Inventions Board (AIB);

(b) Board of Investments (BOI);
(c) Bureau of Patents, Trademarks and Technology Transfer (BPTTT);
(d) Central Board of Assessment Appeals (CBAA);
(e) Civil Aeronautics Board (CAB);
(f) Civil Service Commission (CSC);
(g) Construction Industry Arbitration Commission;
(h) Department of Agrarian Reform (DAR under RA
6657)
(i) Employees Compensation Commission (ECC); (j) Energy Regulatory Board (ERB);
(k) Government Service Insurance System (GSIS);
(l) Insurance Commission;
(m) Land Registration Authority (LRA);
(n) National Electrification Administration (NEA);
(o) National Telecommunications Commission
(NTC);
(p) Office of the President (OP);
(q) Philippine Atomic Energy Commission (PAEC);
(r) Securities and Exchange Commission (SEC); (s) Social Security Commission (SSC); (t) Voluntary arbitrators
authorized by law.

A resolution of the DOJ Secretary is not appealable under Rule 43. Recourse should be to the President, instead of
the CA, under the established principle of exhaustion of administrative remedies. [Orosa v. Roa
(2006)]

Exhaustion of Administrative Remedies

If an appeal/remedy obtains or is available within the administrative machinery, this should be resorted to before
resort can be made to the courts.

Under Rule 43, Sec. 4 the petition should be filed within 15 days from: (a) Notice of the final order; or
(b) The date of its last publication, if publication is required by law for its effectivity; or
(c) The denial of the petitioners MFR duly filed according to the governing law of the court or
agency a quo. [Villorente v. Laiya (2005)]

Under Rule 43, there is no need to implead the lower court or agency which rendered the assailed decision.
[Basmayor v. Atencio (2005)]

Submission of the duplicate original or certified true copy of judgment, order, resolution or ruling subject of a
petition for certiorari is essential to determine whether or not the court, body or tribunal which rendered the
same indeed committed grave abuse of discretion. Either a legible duplicate original or certified true copy
thereof shall be submitted. If what is submitted is a copy, then it is required that the same is certified by the
proper officer of the court, tribunal, agency or office involved. This is to assure that such copy is a faithful
reproduction of the judgment, order, resolution or ruling subject of the
petition. [Coca-cola v. Cabalo (2006)]

Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy.
Nonetheless, there are exceptions to this rule:
(a) when public welfare and the advancement of public policy dictates;
(b) when the broader interest of justice so requires;
(c) when the writs issued are null and void; or
(d) when the questioned order amounts to an oppressive exercise of judicial authority. [DECS v.
Cuanan (2008)]

QJA to CA to SC
Remedy is a petition for review on certiorari under Rule 45.

QJA to SC
Remedy is a petition for certiorari under Rule 65, which is not an appeal.

RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS

Definition: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court
whenever he is unjustly deprived of a hearing or was prevented from taking an appeal because of fraud,
accident, mistake or excusable negligence.

Francisco v. Puno (1981): A party who has filed a timely motion for new trial or motion for reconsideration can
no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually
exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a
motion for new trial or motion for reconsideration that a petition for relief can be filed.

GROUNDS FOR AVAILING OF THE REMEDY

Rule 38, Sec. 1. Petition for relief from judgment, order, or other proceedings. When a judgment or final order is
entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake,
or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order
or proceeding be set aside.

The relief provided for by Rule 38 is of equitable character and is only allowed in exceptional cases, that is where
there is no other available or adequate remedy. A petition for relief is not regarded with favor and judgment will
not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate
remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment.
[Manila Electric v. CA (1990)]

Petition for relief under Rule 38 is an admission that the period to appeal from the decision had already
expired. [David v. CA (1992)]

TIME TO FILE PETITION

Rule 38, Sec.3. Time for filing petition; contents and verification. A petition provided for in either of the preceding
sections of this Rules must be verified, filed within 60 days after the petitioner learns of the judgment, final order,
or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered,
or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts constituting the petitioners good and substantial cause of action or
defense, as the case may be.
Both periods must concur. They are also nonextendible and never interrupted.

CONTENTS OF PETITION

Rule 38, Sec.2. Petition for relief from denial of appeal.When a judgment of final order is rendered by any court
in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking
an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course.

Under both grounds, the petition shall be filed in the same court which rendered the judgment and in the very
same case.

Prayer in Petition for Relief from Judgment

(a) That the judgment/order/proceeding be set aside;
(b) That the appeal be given due course.

Form and content of petition

(a) Must be verified;
(b) Must be accompanied by an affidavit showing the fraud, accident, mistake or excusable negligence relied
upon;
(c) The affidavit of merit accompanying the petition must also show the facts constituting the petitioners good
and substantial cause of action or defense.

An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it
is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in
the verified petition.

When an Affidavit of Merit is Not Necessary

(a) When there is lack of jurisdiction over the defendant;
(b) When there is lack of jurisdiction over the subject matter;
(c) When judgment was taken by default;
(d) When judgment was entered by mistake or was obtained by fraud; or (e) Other similar cases.

Two Hearings an a Petition for Relief from Judgment

(a) Hearing to determine whether or not the judgment should be set aside;
(b) If option a) is in the affirmative, hearing upon the merits of the case.

Other Remedies After Finality of Judgment

(a) Action to Annul a Judgment
(b) Certiorari
(c) Collateral Attack of a Judgment that is Void on its Face

ANNULMENT OF JUDGMENTS OR FINAL

ORDERS AND RESOLUTIONS

GROUNDS FOR ANNULMENT [Rule 47, Section 2]

Grounds for Annulment

Extrinsic Fraud
Extrinsic fraud - any fraudulent act of the prevailing party in the litigation which is committed outside of the trial
of the case, whereby the unsuccessful party has been prevented from exhibiting fully his case.
[Tolentino v. Leviste (2004)]

Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the
court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is
procured. [Tolentino v. Leviste
(2004)]

Rationale: Party is prevented from having his day in

court [Tolentino v. Leviste (2004)]

Note: Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for
new trial or petition for relief. [Rule 47,
Sec. 2]

Lack of Jurisdiction
General Rule: Before a party can avail of the reliefs provided for by Rule 47, it is a condition sine qua non that one
must have failed to move for new trial in, or appeal from, or file a petition for relief against said issuances or take
other appropriate remedies thereon, through no fault attributable to him. If he failed to avail of those cited remedies
without sufficient justification, he cannot resort to the action for annulment, for otherwise he would benefit from
his own inaction or negligence. [Lazaro v. Rural Bank of Francisco Balagtas (2003)]

Exception: Stringent rules of procedures may be relaxed to serve the demands of substantial justice and in the
Court's exercise of equity jurisdiction
[Almelor v. RTC of Las Pias (2008)]

PERIOD TO FILE ACTION [Rule 47, Sec. 3] The period to file action for annulment of judgment is dependent on the
grounds:
(a) If it is based on extrinsic fraud, the action must be filed within 4 years from its discovery
(b) If it is based on lack of jurisdiction, the action must be filed before it is barred by laches or estoppels

EFFECTS OF JUDGMENT OF ANNULMENT [Rule 47, Sec. 7] Effect: The judgment of annulment shall:
(a) set aside the questioned judgment or final order or resolution; and
(b) render the same null and void

Note: The judgment is without prejudice to the original action being refiled in the proper court. Also, where the
judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order
the trial court to try the case as if a timely motion for new trial had been granted therein.

COLLATERAL ATTACK OF JUDGMENTS

REMEDIES FROM A VOID JUDGMENT (Asked in the 2004
Bar Exams)

WHAT IS A VOID JUDGMENT?

A void judgment is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All
acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become
final and any writ of execution based on it is void. [Polystyrene
Manufacturing v. Privatization Management (2007)]

A void judgment may be likened to a lawless thing which can be treated as an outlaw and slain at sight, or
ignored wherever and whenever it rears its head.
[Banco Espanol-Filipino v. Palanca (1918)]

A judgment may be void for lack of due process of

law. [Spouses Benatiro v. Heirs of Cuyos (2008))

HOW DO YOU ATTACK A VOID JUDGMENT?

It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any
action or proceeding whenever it is invoked, unless barred by laches. [Spouses Benatiro v. Heirs of
Cuyos (2008))

WHAT ARE YOUR REMEDIES?

If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief, and Other Appropriate Remedies such as Certiorari may also be
used.

If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and
extraordinary remedy of Petition for Annulment of Judgment may be resorted to.

When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a
Main Action for Injunction. [See Barrameda v. Moir (1913)]

SOME JURISPRUDENTIAL BASIS

Remedial Law Jurisprudence such as Spouses Benatiro v. Heirs of Cuyos, (2008) and Agustin v. Bacalan, (1985)
on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy,
however, should be availed of only when the appropriate remedies are no longer available without fault on the
part of the petitioner.

Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC
may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of
due process as additional ground therefore (Spouses Benatiro Case).

Montinola v. Judge Gonzales (1989): a void judgment is like an outlaw which may be slain at sight wherever or
whenever it exhibits its head. The proper remedy in such case, after the time for appeal or review has passed, is for
the aggrieved party to bring an action to enjoin the judgment.

Assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by
an original proceeding and not by motion in the cause" [Banco Espanol v. Palanca (1918)]. A final judgment may be
annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law.
[Panlilio v. Garcia (1982)]