Kinds of Provisional Remedies
(1) Preliminary Attachment [Rule 57]
(2) Preliminary Injunction [Rule 58]
(3) Receivership [Rule 59]
(4) Replevin [Rule 60]
(5) Support Pendente Lite [Rule 61]
Preliminary attachment is a
provisional remedy in virtue of which a
plaintiff or other party may, at the
commencement of the action or at any time
thereafter, have the property of the adverse
party taken into the custody of the court as
security for the satisfaction of any judgment
that may be recovered.
Preliminary Injunction is an ancillary or
preventive remedy where a court requires a
person, a party or even a court or tribunal
either to refrain from (prohibitory), or to
perform (mandatory), particular acts during
the pendency of an action. It is only a
temporary remedy.
The receivership under Rule 59 is directed to
the property which is the subject of the action
and does not refer to the receivership
authorized under banking laws and other
rules or laws. Rule 59 presupposes that there
is an action and that the property subject of
the action requires its preservation.
Receivership under Rule 59 is ancillary to the
main action. [Riano]
The guiding principle is the prevention of
imminent danger to the property. If an action
by its nature, does not require such protection
or preservation, said remedy.
Attachment V. Garnishment
Garnishment is considered as a species of
attachment for reaching credits belonging to
the judgment debtor and owing to him from a
stranger to the litigation
The Officer may levy on:
(1) Debts due the judgment obligor and other
credits,
(2) Including bank deposits, financial
interests, royalties, commissions,
(3) And other personal property not capable
of manual delivery in possession and
control of third parties.
GENERAL RULE: Once a judgment
becomes final and executory, such judgment
can no longer be disturbed, altered, or
modified
Under the Doctrine of Immutability of
Judgments, a judgment that has attained
finality can no longer be disturbed. The
reason of two-fold:
(1) To avoid delay in the administration of
justice, and to make orderly the discharge
of judicial business; and
(2) To put an end to judicial controversies at
the expense of occasional errors.
Remedies before Finality of Judgment
(1) Motion for reconsideration [Rule 37]
(2) Motion for new trial [Rule 37]
(3) Appeal [Rules 40-45]
NOTE: The motion for reconsideration under
Rule 37 is directed against a judgment or
final order. It does not refer to one for
interlocutory orders, which often precedes a
petition for certiorari under Rule 65.
These motions are prohibited in cases that
fall under the Rule on Summary Procedure
and those falling under the Rule of Procedure
for Small Claims.
GROUNDS FOR MOTION FOR
RECONSIDERATION [Sec. 1, Rule 37]
(1) Damages awarded are excessive
(2) Evidence is insufficient to justify the
decision or final order
(3) The decision or final order is contrary to
Law.
GROUNDS FOR MOTION FOR NEW TRIAL
[Sec. 1, Rule 37]
(1) Fraud, accident, mistake, excusable
negligence (FAME) – subject to the
following conditions:
(a) Which ordinary prudence could not
have guarded against; and
(b) By reason of which such aggrieved
party has probably been impaired in his
rights.
There must be a valid cause of action or
defense.
NOTE: Fraud must be extrinsic fraud
which is any fraudulent scheme executed
outside of the trial by the prevailing party
against the losing party, who because of
such fraud is prevented from
presenting his side of the case.
(2) Newly discovered evidence – subject to
the following requisites:
(a) It must have been discovered after the
trial
(b) It could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence;
(c) It must be material and not merely
collateral, cumulative, or corroborative;
and;
(d) The evidence is of such weight that if
admitted, would probably alter the
result of the action
Effect of Motions for New Trial and
Reconsideration
Originally, the period to appeal is
interrupted by a timely motion for new trial
and reconsideration. However, with the
Neypes doctrine, a party has a fresh 15-day
period from a denial of the motion to
perfect an appeal.
A petition for relief from judgment is an
equitable remedy allowed only in exceptional
cases when there is no other available or
adequate remedy. When a party has another
remedy available, either motion for new trial
or appeal, and he was not prevented by
FAME from filing such motion or taking such
appeal, he cannot avail himself of this
petition.
An action for annulment of judgment is a
remedy in law independent of the case where
the judgment sought to be annulled was
rendered. The purpose is to have the final and
executory judgment set aside so that there
will be a renewal of litigation. [Alaban v. CA,
G.R. No. 156021 (2005)]
When Proper
The remedy may not be invoked where the
party has availed himself of the remedy of
new trial, appeal, petition for review, or other
appropriate remedy and lost, or where he has
failed to avail himself of those remedies
through his own fault or negligence.
[Republic v. ‘G’ Holdings, Inc., G.R. No. 141241
(2005)]
It is a condition sine qua non that one must
have failed to avail of those remedies,
through no fault attributable to him.
Otherwise, he would benefit from his own
inaction or negligence.
E.1 DEFINITIONS AND DISTINCTIONS
Certiorari is a writ emanating from a
superior court directed against an inferior
court, tribunal, or officer exercising judicial or
quasi-judicial functions, the purpose of which
is to correct errors of jurisdiction—i.e. without
or in excess of jurisdiction, or with grave
abuse of discretion amounting to the same.
[Sec. 1, Rule 65]
Prohibition is a writ issued by a superior
court and directed against an inferior court,
board, officer or other person whether
exercising judicial, quasi-judicial, or
ministerial functions for the purpose of
preventing or restraining the latter from
usurping jurisdiction with which it is not
legally vested. [Sec. 2, Rule 65]
Mandamus is a writ issued in the name of
the State, to an inferior tribunal, corporation,
board, or person, commanding the
performance of an act which the law enjoins.
Two concepts of res judicata [Topacio v.
Banco Savings and Mortgage Bank (2010)]
(1) Bar by prior judgment [Sec. 47(b),
Rule 39]
Judgment on the merits in the first case
constitutes an absolute bar to the
subsequent action not only as to every
matter which was offered and
received to sustain or defeat the claim or
demand, but also to any other
admissible matter which might
have been offered for that purpose and
to all matters that could have been
adjudged in that case.
(2) Conclusiveness of judgment [Sec.
47(c), Rule 39]
The second action is upon a different
claim or demand, the judgment in the first
case operates as an estoppel only with
regard to those issues directly
controverted, upon the determination of
which the judgment was rendered.
TOTALITY RULE
Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the
amount of the demand shall be the
totality of the claims in all the claims
of action, irrespective of whether the causes
of action arose out of the same or different
transactions [Sec. 33[1], BP 129].
TRO V. Status quo
A TRO is issued in order to preserve the
status quo until the hearing of the application
for preliminary injunction. [Bacolod City Water
v. Labayen, G.R. No. 157494 (2004)]
An application for a TRO shall be acted upon
only after all parties are heard in a summary
hearing, which shall be conducted within 24
hours after the sheriff's return of service
and/or the records are received by the branch
selected by raffle. [Sec. 4, Rule 58]
A status quo order is in the nature of a cease
and desist order. It is resorted to when the
projected proceedings in the case made the
conservation of the status quo desirable or
essential, but the affected party neither
sought such relief nor did the allegations in
his pleading sufficiently make out a case for a
temporary restraining order. (Last actual peacable
uncontested situation which precede a controversy.
SIN PERJUICIO JUDGMENT
It is a judgment without a statement of the
facts in support of its conclusion to be later
supplemented by the final judgment.
Judgment sin perjuicio – refers to a
judgment with a dispositive portion only. It
is not allowed and cannot have any effect.
Judgment Nunc Pro Tunc – literally,
“now for then”. It is a judgment intended
to enter into the record the acts which had
already been done, but which do not
appear in the records. [Lichauco v. Tan
Pho (1923)]
It can only be issued when the thing
ordered has previously been made, but by
inadvertence has not been entered.
Question of Law V. Question of Fact
Grave abuse of discretion
Remedy of execution of judgement
Mareva injunction
RULE 45 V. RULE 65
Rule 57 section 2 V. Rule 58 section 5
Attachment V. Garnishment
Schonfield doctrine
Rule 50 section 2

TRO ISSUED BY TRO ISSUED BY

EXECUTIVE JUDGE ORDINARY JUDGE
(MULTI-SALA) OR
ORDINARY JUDGE
(SINGLE-SALA)
Matter is of extreme If it appears that
urgency and that great or irreparable
grave injustice and injury would result
irreparable injury will
arise unless
immediately issued
May be issued ex A summary hearing
parte must be done before
issuance
Good for 72 hours Good for 20 days
including first 72
hours
Issued before raffling Issued after raffling
Issued ex parte Issued after summary
hearing
Upon the expiration of the non-extendible
period, the TRO is automatically terminated.
No judicial declaration necessary.