REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
Classes of execution under the law:
1. As to their NATURE:
a. COMPULSORY—execution as a matter
of right (section)
b. DISCRETIONARY—Execution pending
appeal (section 2)
2. How it is enforced (section 6)
a. Execution by motion
b. Execution by independent action
EXECUTION AS A MATTER OF RIGHT
A.
Section 1, paragraph 1! NO APPEAL;
JUDGMENT BECOMES FINAL AND
EXECUTORY
Section 1— Execution shall issue as a matter of
EXECUTION right:
UPON 1. on motion,
JUDGMENT 2. upon a judgment or order that
S OR FINAL disposes of the action or
ORDERS proceeding
3. upon the expiration of the
period to appeal therefrom if
no appeal has been duly
perfected.
If the appeal has been duly perfected
and finally resolved! the execution
may forthwith be applied for:
1. in the court of origin,
2. on motion of the judgment
oblige (winning party)
3. submitting therewith certified
true copies of the judgment or
judgments or final order or
orders sought to be enforced
and of the entry thereof,
4. with notice to the adverse
party.
The appellate court may, on motion
the same case, when the interest
justice so requires! direct the court
origin to issue the writ
execution.******
Conditions:
1. judgment has disposed
already of the action or
proceeding! it can be
executed because if the
judgment has not yet disposed
of the action or proceeding, it
is called an interlocutory
judgment or order. There is
something more for the court
to do, and as a rule, you
cannot execute. i.e. denial of a
motion to dismiss
2. period to appeal has expired
and no appeal has been filed
or taken from the
judgment! judgment
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
becomes final. As an effect,
under rule 36, prevailing party
is entitled to have judgment
executed as a matter of right.
Principles:
1. EBERO V. CANIZARES!
court cannot refuse to execute
a judgment on the ground that
judgment was wrong or
erroneous. Execution is a
matter of right and the
issuance of the corresponding
writ of execution upon a final
and executor judgment is a
ministerial duty of the court to
execute; compellable by
mandamus. No matter how
erroneous a judgment can
be, so long as judgment is
valid, said judgment is
enforceable by execution
once it becomes final and
executory. If erroneous!
remedy is to APPEAL.
2. RTC cannot refuse to
execute a writ of execution.
3. Only the court of origin can
issue the writ. You may apply
in the appellate court but once
decision has become final, it
will still be the court of origin
who will be directed to issue
the writ.
4. Execution CANNOT be
issued ex-parte; the rules
require that a motion be filed
with notice.
5. Final and executory
judgment! one that finally
disposes of the action on the
merits, leaving nothing to be
done by court
Final judgment! one where
period to appeal has expired
in and no appeal was taken.
of
of 6. GENERAL RULE: judgment is
of enforceable by execution once
it becomes FE.
EXCEPTION:
1. Supervening effect
doctrine! change in the
situation of parties which
makes execution
inequitable
Examples:
a. ejectment case tapos
namortgage ang
property then you
yourself bought it in
an auction sale; of
course, you can’t
eject yourself;
b. bank placed under
receivership; its
properties cannot be
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

disposed of when B. Section 1, Pragraph 2! there is an appeal;

under control of CB! CA AFFIRMS RTC JUDGMENT
so prevailing party - Basis: if the appeal has been duly
cannot insist on perfected……
enforcement of
judgment and levy C. CASES UNDER SECTION 4! Judgments
properties of the bank not stayed by appeal! judgments in actions
c. employee ordered to for:
be reinstated but later 1. Injunction
on convicted of theft; 2. Receivership
execution of 3. Accounting
reinstatement case 4. Support
cannot be had 5. Such other judgments as are now or may
d. unlawful detainer and hereafter be declared immediately
quieting of title executory. (i.e. RTC decisions on MTC
cases falling under the summary
NOTE: for the supervening event to procedure)
apply! SE must happen AFTER the
judgment has become final and D.
Judgments in FORCIBLE ENTRY AND
executory; if it happened while case UNLAWFUL DETAINER CASES
was going on, you must bring it to the DISCRETIONARY EXECUTION: EXECUTION
attention of the court. PENDING APPEAL
Section 2. (a) Execution of a judgment or
2. It appears that Discretionary final order pending appeal.
controversy never been execution. 1. On motion of the
submitted to the judgment prevailing party
of the court 2. with notice to the adverse
3. Judgment novated by party
subsequent agreement 3. filed in the trial court while
of parties! parties enter it has jurisdiction over the
into a compromise case and is in possession
agreement even before, of either the original record
during or while case is on or the record on appeal,
appeal. If you entered into as the case may be,
such, you can no longer 4. at the time of the filing of
execute on the original such motion,
judgment. said court may, in its discretion,
4. Writ of execution order execution of a judgment or
improvidently issued; final order even before the
5. Writ of execution expiration of the period to appeal.
defective in substance
6. WE issued against wrong After the trial court has lost
party and jurisdiction! the motion for
7. Judgment debt has been execution pending appeal may be
paid or satisfied. filed in the appellate court.

NOTE: A Court cannot by injunction or Discretionary execution may only

restraining order stop the execution of a issue upon good reasons to be
judgment of another court. stated in a special order after due
hearing.
Exceptions:
1. Upon the filing of a petition for (b) Execution of
relief form judgment, court several, separate or
may grant preliminary partial judgments.
injunction to preserve the A several, separate or partial
rights of the parties judgment may be executed!
2. When there is an action for under the same terms and
annulment of judgment of the conditions as execution of a
RTC filed in CA! CA may judgment or final order pending
issue writ of PI—annulment of appeal.**********
judgment, certiorari,
prohibition cases where CA Requisites for discretionary
issues PI to stop RTC from execution:
enforcing its judgment pending 1. Motion filed by prevailing
resolution of whether its party
judgment was issued in 2. Notice of the motion given
excess or without jurisdiction. to adverse party AND
3. Good reasons to execute

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

to be stated ina special has juris over case and

order after due hearing. still in possession of
records of the case.
Note: a. Judgment not yet final
1. This is only discretionary b. Still within the 15 day
because court may or may period
not grant the execution c. Court in possession of
depending on your good the records.
reason. This is because
under section 2, you filed 2. APPELATE COURT!
the motion WITHIN THE AFTER trial court lost its
15 DAY period, where jurisdiction.
judgment is not yet final
and executory. Principles:
2. CITY OF BACOLOD V. 1. First judgment may be
ENRIQUEZ! requirement immediately executed
nd
of good reason is while waiting for the 2
important and must not be judgment. GR: court
overlooked because if decides! there has to be
judgment is executed and a good reason.
on appeal, the same is 2. Execution pending appeal
reversed, damages may may be proper for
arise which cannot be fully enforcing collection of
compensated. ACTUAL damages but it is
3. If there are NO GOOD not proper to enforce
REASONS! writ of payment of moral or
execution is VOID. exemplary damages.
4. If judgment is executed Section 3—stay Stay of discretionary execution.
pending appeal and of discretionary — Discretionary execution issued
appeal does not favor execution. under the preceding section may
you! under section 5, be stayed upon approval by the
there will be MUTUAL proper court of a sufficient
RESTITUTION. supersedeas bond:
5. Examples of GOOD 1. filed by the party against
REASONS: whom it is directed,
a. Danger of judgment 2. conditioned upon the
becoming performance of the
INEFFECTUAL;(SCO judgment or order allowed
TTISH UNION V. to be executed in case it
MACADAEG—foreign shall be finally sustained in
corp ending business whole or in part.
in the PI) The bond thus given may be
b. Old age proceeded against on motion with
c. When appeal is for notice to the surety.********
the purpose of delay
(Home insurance v. In order to stop the execution
CA) pending appeal:
d. When the successful 1. apply section 3.
party files a bond 2. Defendant ask court to fix
(additional good the superseadeas bond
reason only but it is which will answer for any
NOT by itself, a good damages that plaintiff may
reason: PNB V. suffer if the defendant’s
PUNO) appeal is not meritorious.
3. When defendant puts up
Not good reasons: ond! court shall withdraw
1. Posting of bond by the execution pending
winning party appeal.
2. Appeal is dilatory
3. Husband of plaintiff is EXCEPTION: Execution
sick and money pending appeal may be
needed for medicine granted if there are
4. Financial distress of SPECIAL AND
corporation COMPELLING REASONS
justifying the same which
Where to file motion for outweigh the security
execution pending appeal: offered by supersedeas
1. TRIAL COURT! while it bond.(i.e. judgment for

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

support) (DE LEON V. b. Execution by

SORIANO) independent
action! within 5-10
Recap: how to stay or stop years.
execution pending appeal: 3. CENTRAL SURETY V.
1. Filing of supersedeas bond PLANTERS! Under rule
by adverse party 39, section 6, a final
2. Certiorari under rule 65 judmgnet may be
Section 4. Judgments in actions for executed by mere motion
Judgments not 1. injunction, within 5 years from the
stayed by appeal. 2. receivership, date of entry of judgment.
3. accounting and However, execution of
4. support, and final judgment by mere
5. such other judgments as motion may be allowed
are now or may hereafter even after the lapse of 5
be declared to be years when the delay in
immediately executory, the execution is caused or
shall be enforceable after their occasioned by the actions
rendition and shall not, be stayed of the judgment debtor
by an appeal taken therefrom, and/or incurred for his
unless otherwise ordered by the benefit.
trial court. 4. CAMACHO V. CA!
Period is deemed
On appeal therefrom, the appellate effectively interrupted
court in its discretion may make an when delay in execution is
order suspending, modifying, occasioned by oppositor’s
restoring or granting the own initiatives in order to
injunction, receivership, accounting, gain an undue advantage.
or award of support.
DORMANT JUDGMENT! one not
The stay of execution shall be upon executed within 5 years. It is
such terms as to bond or otherwise revived by an EXECUTION BY
as may be considered proper for INDEPENDENT ACTION which
the security or protection of the must be filed before it is barred by
rights of the adverse party. the statute of limitations. Basis:
Section 5. Effect Where the executed judgment is 1144 of NCC! judgment may be
of reversal of reversed totally or partially, or enforced only within 10 years. So
executed annulled, on appeal or otherwise! start the civil action for revival of
th
judgment. the trial court may, on motion, judgment between or after the 5
th
issue such orders of restitution or year but before the 10 year!
reparation of damages as equity
and justice may warrant under the Nature of enforcement of a
circumstances. dormant judgment: it is an
Section 6. A final and executory judgment ORDINARY civil action the object of
Execution by or order may be executed on which is to:
motion or by motion ! within five (5) years 1. Revive the dormant
independent from the date of its entry. judgment and
action. After the lapse of such time, and 2. Execute the judgment
before it is barred by the statute of reviving it, if it grants the
limitations! a judgment may be plaintiff any relief.
enforced by action.
Hence, the rights of the judgment
nd
The revived judgment may also creditor depend upon the 2
be enforced! by motion within five judgment. Being an ordinary CA, it
(5) years from the date of its entry is subject to all defenses,
and thereafter by action before it is objections, and counterclaims
barred by the statute of limitations. which judgment debtor may have
******* except that no inquiry can be made
st
as to the merits of the 1 judgment.
NOTE: Therefore, defenses that do NOT
1. File motion for execution go to the merits, i.e. lack of
before same court which jurisdiction, collusion, fraud, or
rendered the judgment prescription, may be set up by the
2. 2 modes under section 6 judgment debtor. (SALVANTE V.
a. Execution by UBI CRUZ)
motion! within 5
years from date of its EXCEPTION to the rule on dormant
entry and judgment: JUDGMENT FOR

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
SUPPORT. It does not become
dormant, nor does it prescribe.
Application:
1. Execution, levy of the
property and auction sale
must also be within the 10
years. Any auction sale
beyond the 10 years is null
and void.
2. “the revived judgment may
also be enforced by
motion within 5 years from
the date of its entry and
thereafter by action before
it is barred by the statute
of limitations”! PNB V.
BONDOC! one you have
nd
secured a 2 judgment,
the revived judgment is
good for another 10 years.
3. ARCENAS V. CA! The
purpose of the action for
revival of a judgment is not
to, modify the original
judgment subject of the
action but is merely to give
a creditor a new right of
enforcement from the date
of revival. The rule seeks
to protect judgment
creditors from wily and
unscrupulous debtors,
who in order to evade
attachment or execution,
cunningly conceal their
assets and wait until the
statute of limitation sets in.
4. TING V. HEIRS OF
LIRIO! Section 6 Rule 39
refers only to civil actions
is NOT applicable to
special proceedings
such as land registration
cases. In a civil action,
failure to act to enforce the
judgment makes
unenforceable against the
losing party. in land
registration cases, the
ownership by a person
of a parcel of land is
sought to be
established. After
ownership has been
proved and confirmed
by judicial declaration,
no further proceeding to
enforce said ownership
is necessary, except the
proceedings to place
winner in possession by
virtue of a writ of
possession. The decision
in a LRC becomes final
without any further action,
upon the expiration of the
period for perfecting an
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
appeal.
Section 7. In case of the death of a party,
Execution in case execution may issue or be enforced
of death of party. in the following manner:
(a) In case of the death of the
judgment oblige! upon the
application of his executor or
administrator, or successor in
interest;
(b) In case of the death of the
judgment obligor! against his
executor or administrator or
successor in interest, if the
judgment be for the recovery of real
or personal property, or the
enforcement of a lien thereon;
(c) In case of the death of the
judgment obligor, after execution
is actually levied upon any of his
property, the same may be sold for
the satisfaction of the judgment
obligation, and the officer making
the sale shall account to the
corresponding executor or
administrator for any surplus in his
hands.
Effects of death of a party in
execution of a judgment:
1. If the obligee/creditor will
die after winning the case,
his executor or admin,
legal rep, heirs or SII can
enforce the judgment.
They will be the one to
collect.
2. If it is the
defendant/obligor who
dies and there is final
judgment which is
recovery of real or
personal prop, judgment is
executed against the
it admininstator or executor
because this is an action
which survives.
3. Under paragraph C, it is
the death of obligor in a
MONEY claim.
a. If before entry of final
judgment, there will
be a substitution of
party and case will
continue until entry of
final judgment. (rule 3,
section 20)
b. If there is final
judgment but before
levy,judgment shall be
enforced in the
manner provided for
by the rules on clams
against the estate of
the deceased under
Rule 86.
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
c. If there is already
levy, auction sale will
proceed as
scheduled. No more
substitution. (section
7 (c ))
Section 8. The writ of execution shall:
Issuance, form (1) issue in the name of the
and contents of a Republic of the Philippines from
writ of execution. the court which granted the motion;
(2) state the name of the court,
the case number and title, the
dispositive part of the subject
judgment or order; and
(3) require the sheriff or other
proper officer to whom it is directed
to enforce the writ according to its
terms, in the manner hereinafter
provided:
(a) If the execution be
against the property of the
judgment obligor, to satisfy
the judgment, with
interest, out of the real or
personal property of such
judgment obligor;
(b) If it be against real or
personal property in the
hands of personal
representatives, heirs,
devisees, legatees,
tenants, or trustees of the
judgment obligor, to satisfy
the judgment, with
interest, out of such
property;
(c) If it be for the sale of
real or personal property
to sell such property
describing it, and apply the
proceeds in conformity
with the judgment, the
material parts of which
shall be recited in the writ
of execution;
(d) If it be for the delivery
of the possession of real
or personal property, to
deliver the possession of
the same, describing it, to
the party entitled thereto,
and to satisfy any costs,
damages, rents, or profits
covered by the judgment
out of the personal
property of the person
against whom it was
rendered, and if sufficient
personal property cannot
be found, then out of the
real property; and
(e) In all cases, the writ
of execution shall
specifically state the
amount of the interest,
costs, damages, rents,
or profits due as of the
date of the issuance of
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
the writ, aside from the
principal obligation
under the judgment. For
this purpose, the motion
for execution shall
specify the amounts of
the foregoing reliefs
sought by the movant.
RULE: when you file motion for
execution, state also how much is
the cost or interest.
Section 9. (a) Immediate payment on
Execution of demand. — The officer shall
judgments for enforce an execution of a judgment
money, how for money by demanding from the
enforced. judgment obligor the immediate
payment of the full amount stated in
the writ of execution and all lawful
fees. The judgment obligor shall
pay in cash, certified bank check
payable to the judgment obligee, or
any other form of payment
acceptable to the latter, the amount
of the judgment debt under proper
receipt directly to the judgment
obligee or his authorized
representative if present at the time
of payment. The lawful fees shall
be handed under proper receipt to
the executing sheriff who shall turn
over the said amount within the
same day to the clerk of court of the
court that issued the writ.
If the judgment obligee or his
authorized representative is not
present to receive payment, the
judgment obligor shall deliver the
aforesaid payment to the executing
sheriff. The latter shall turn over all
the amounts coming into his
possession within the same day to
the clerk of court of the court that
issued the writ, or if the same is not
practicable, deposit said amounts
to a fiduciary account in the nearest
government depository bank of the
Regional Trial Court of the locality.
(What if plaintiff is not there? (see
nd
2 paragraph)! payment is made
to sheriff who will endorse it to the
clerk of court. The latter will look for
the obligee to remit the money.)
The clerk of said court shall
thereafter arrange for the
remittance of the deposit to the
account of the court that issued the
writ whose clerk of court shall then
deliver said payment to the
judgment obligee in satisfaction of
the judgment. The excess, if any,
shall be delivered to the judgment
obligor while the lawful fees shall
be retained by the clerk of court for
disposition as provided by law. In
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

no case shall the executing judgment and lawful fees

sheriff demand that any payment 6. Intangible property
by check be made payable to (stocks, shares, debts) is
him. (this assumes property which subject to levy
as levied is in cotabato but
jdugmetn is one which originated in HOW TO LEVY INTANGIBLES:
davao—clerk to clerk) (c) Garnishment of debts and
credits. — The officer may levy on
(b) Satisfaction by levy. — If the debts due the judgment obligor and
judgment obligor cannot pay all or other credits, including:
part of the obligation in cash, 1. bank deposits,
certified bank check or other mode 2. financial interests,
of payment acceptable to the 3. royalties,
judgment obligee, the officer shall 4. commissions and
levy upon the properties of the other personal property not capable
judgment obligor of every kind and of manual delivery in the
nature whatsoever which may be possession or control of third
disposed, of for value and not parties.
otherwise exempt from execution
giving the latter the option to Levy shall be made by serving
immediately choose which property notice upon the person owing such
or part thereof may be levied upon, debts or having in his possession or
sufficient to satisfy the judgment. If control such credits to which the
the judgment obligor does not judgment obligor is entitled. The
exercise the option, the officer shall garnishment shall cover only such
first levy on the personal properties, amount as will satisfy the judgment
if any, and then on the real and all lawful fees.
properties if the personal properties
are insufficient to answer for the The garnishee shall make a written
judgment. report to the court within five (5)
days from service of the notice of
The sheriff shall sell only a garnishment stating whether or not
sufficient portion of the personal or the judgment obligor has sufficient
real property of the judgment funds or credits to satisfy the
obligor which has been levied upon. amount of the judgment. If not, the
report shall state how much funds
When there is more property of the or credits the garnishee holds for
judgment obligor than is sufficient the judgment obligor. The
to satisfy the judgment and lawful garnished amount in cash, or
fees, he must sell only so much of certified bank check issued in the
the personal or real property as is name of the judgment obligee, shall
sufficient to satisfy the judgment be delivered directly to the
and lawful fees. judgment obligee within ten (10)
working days from service of
Real property, stocks, shares, notice on said garnishee requiring
debts, credits, and other personal such delivery, except the lawful
property, or any interest in either fees which shall be paid directly to
real or personal property, may be the court.
levied upon in like manner and with
like effect as under a writ of In the event there are two or more
attachment. garnishees holding deposits or
credits sufficient to satisfy the
Note: judgment, the judgment obligor, if
1. An auction sale to be valid available, shall have the right to
must be preceded by levy indicate the garnishee or
on the property garnishees who shall be required to
2. Levy is allowed if deliver the amount due, otherwise,
judgment debtor cannot the choice shall be made by the
pay in cash, certified judgment obligee.
check
3. The option to choose The executing sheriff shall observe
theproperty belongs to the the same procedure under
judgment debtor paragraph (a) with respect to
4. If debtor does not, sheriff delivery of payment to the judgment
must first levy on personal, obligee.
before real peroperty
5. Sheriff shall only sell Definition of garnishment
sufficient to satisfy the - A process in which money

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

or goods in the hands of a co-owners)

rd
3 person are attached by
the plaintiff
(c) Delivery or restitution of real
Procedure: property. — The officer shall
1. Sheriff serves notice upon demand of the person against
the person owing such whom the judgment for the delivery
debts (garnishee) or restitution of real property is
2. Garnishee makes a report rendered and all persons claiming
to the court stating rights under him! to peaceably
whether the funds with him vacate the property within three
are sufficient or how much (3) working days, and restore
3. Garnished amount is possession thereof to the judgment
delivered directly to obligee, otherwise, the officer shall
judgment oblige oust all such persons therefrom
with the assistance, if necessary, of
appropriate peace officers, and
EXECUTION OF JUDGMENT OTHER THAN MONEY employing such means as may be
reasonably necessary to retake
Section 10. (a) Conveyance, delivery of possession, and place the
Execution of deeds, or other specific judgment obligee in possession of
judgments for acts; vesting title. — If a judgment such property. Any costs, damages,
specific act. directs a party to execute a rents or profits awarded by the
conveyance of land or personal judgment shall be satisfied in the
property, or to deliver deeds or same manner as a judgment for
other documents, or to perform, any money. (applicable to actions for
other specific act in connection forcible entry, UD, accion
therewith, and the party fails to publiciana,)
comply within the time specified,!
the court may direct the act to be SAN MANUEL V. TUPAS! When
done at the cost of the disobedient the property subject of the
party by some other person execution contains improvements
appointed by the court and the act constructed or planted by the
when so done shall have like effect judgment obligor or his agent, the
as if done by the party. If real or officer shall not destroy, demolish
personal property is situated within or remove said improvements
the Philippines, the court in lieu of except upon special order of the
directing a conveyance thereof may court, issued upon motion of the
by an order divest the title of any judgment oblige after due hearing
party and vest it in others, which and after the former has failed to
shall have the force and effect of a remove the same within a
conveyance executed in due form reasonable time fixed by the court.
of law.
(d) Removal of improvements on
Examples: property subject of execution. —
1. Action for reconveyance of When the property subject of the
property execution contains improvements
2. Pacto de retro. I- constructed or planted by the
repurchase na ang judgment obligor or his agent! the
property but ayaw mo officer shall not destroy, demolish
3. Public land law. Refusal to or remove said improvements
grant the right to except upon special order of the
repurchase court, issued upon motion of the
4. Action for specific judgment obligee after the hearing
performance to compel and after the former has failed to
you to return subject remove the same within a
property. reasonable time fixed by the court.
(writ of execution not sufficient
(b) Sale of real or personal basis for removal of improvements
property. — If the judgment be for in the property; get a special order
the sale of real or personal form the court by filing a petition to
property, to sell such property, authorize destruction or removal of
describing it, and apply the such after defendant is given a
proceeds in conformity with the reasonable time to remove his
judgment. shanty or hosue voluntarily.
(i.e. action for termination of co-
owernship; property ordered sold Requisites for writ of demolition:
and proceeds distributed among 1. Written motion with notice

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
to adverse party and
hearing of motion
2. Special order issued by
court
3. Reasonable time to
remove)
(e) Delivery of personal property.
— In judgment for the delivery of
personal property,! the officer
shall take possession of the same
and forthwith deliver it to the party
entitled thereto and satisfy any
judgment for money as therein
provided. (this is related to
REPLEVIN, action to recover
personal property)
LANDMARK CASE: ABINUJAR V.
CA
- Facts: ejectment case
which was settled through
a compromise agreement
with a provision that upon
failure to pay
installements, plaintiffs
entitled to writ
execution. Spouses were
ordered to vacate.
- Issue: execution under
section 9 on collection of
sum of money or section
10 on ejectment
- SC: SECTION 9. When
the parties entered into a
compromise agreement,
the original action for
ejectment was set aside
and the action was
changed to a monetary
obligation. As abinuja’s
obligation under the
compromise agreemtn as
approved by the court was
monetary in nature,
plaintiffs can only avail of
the wirt of execution under
section 9 and not that
provided under section 10.
ORDINARY AND SPECIAL JUDGMENTS
2 types:
1. ORDINARY! judgment orders the defendant
to pay money i.e. collection case or delivery
personal or real property
2. SPECIAL! judgment which requires the
defendant to perform an act other than
payment of money or delivery of property. (i.e.
usurpation of government office! quo
warranto proceedings where you will be
ordered to vacate yoru position) this is a
judgment that can ONLY be complied with by
the obligor himself.
DIFFERENCE BETWEEN ORDINARY AND SPECIAL
JUDGMENT
SPECIAL ORDINARY
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
May be enforced It is not a ground for contempt
by contempt if
defendant
refuses to comply
with judgment
Section 11. When a judgment requires the
Execution of performance of any act other than
special those mentioned in the two
judgments preceding sections:
1. a certified copy of the
judgment shall be
attached to the writ of
execution and
2. shall be served by the
officer:
a. upon the party against
whom the same is
rendered, or
b. upon any other
person required
thereby, or by law, to
obey the same, and
c. such party or person
may be punished for
3 contempt if he
disobeys such
of judgment.
Application:
1. Under section 9, if
judgment debtor refuses to
pay debt, you cannot cite
him in contempt because
under the Consti, no
person shall be
imprisoned for debt. Just
look for his properties and
levy it.
2. Under section 10, if
squatter refuses to vacate,
you cannot cite him in
contempt and send to jail.
Just get the polic for back
up
3. Under section 11, if
defendant is ordred to
vacate office, plaintiff can
have him arrested and
brought to jail beause that
is a SPECIAL judgment
which can be enforced by
contempt.
4. Judgment in certiorari,
prohibition or mandamus,
if not complied with is also
punishable by contempt.
(rule 65, section 9)
Section 12. The levy on execution shall create
Effect of levy on a lien in favor of the judgment
execution as to obligee over the right, title and
third person interest of the judgment obligor in
such property at the time of the
levy, subject to liens and
encumbrances then existing.
Application:
1. Land you own was
mortgaged to bank! then
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

levied by a creditor! who

has better rights? BANK’S (f) Provisions for individual or
MORTGAGE LIEN. An family use sufficient for
execution is always four months;
subject to the liens and
encumbrances of the (g) The professional
property then existing. libraries and equipment
Section 13. Except as otherwise expressly of judges, lawyers,
Property exempt provided by law, the following physicians, pharmacists,
from execution property, and no other, shall be dentists, engineers,
exempt from execution: surveyors, clergymen,
teachers, and other
(a) The judgment obligor's professionals, not
family home as exceeding p300,000 in
provided by law, or the value;
homestead in which he
resides, and land (h) One fishing boat and
necessarily used in accessories not
connection therewith; exceeding the total value
of one hundred
(b) Ordinary tools and thousand pesos owned
implements personally by a fisherman and by the
used by him in his trade, lawful use of which he
employment, or earns his livelihood;
livelihood;
(i) So much of the salaries,
PENTAGON SECURITY wages, or earnings of
V. JIMENEZ! The term the judgment obligor for
“tools and implements” his personal services
refer to instruments of within the four months
husbandry or manual labor preceding the levy as are
needed by an artisan necessary for the support
craftsman or laborer to of his family;(salaries,
obtain his living. The wages and earnings of a
exemption contemplates laborer is more than
something that is exempt)
personal, available only to
a natural person. Firearms (j) Lettered gravestones;
can be levied according to
SC. However, there must (k) Monies, benefits,
be prior clearance on the privileges, or annuities
sale of such by the PNP. accruing or in any manner
growing out of any life
(c) Three horses, or three insurance;
cows, or three carabaos,
or other beasts of burden, (l) The right to receive legal
such as the judgment support, or money or
obligor may select property obtained as such
necessarily used by him in support, or any pension or
his ordinary occupation; gratuity from the
Government;
(d) His necessary clothing
and articles for ordinary (m) Properties specially
personal use, excluding exempted by law. (i.e.
jewelry;(so alahas pwede homestead not subject to
ma-levy; but personal claim within 5 years, SS
comb, toothbrush! not) benefits, GSis benefits,
property acquired by
(e) Household furniture and tenant through CARP)
utensils necessary for
housekeeping, and used But no article or species of
for that purpose by the property mentioned in this
judgment obligor and his section shall be exempt from
family, such as the execution issued upon a
judgment obligor may judgment recovered for its price
select, of a value not or upon a judgment of
exceeding one hundred foreclosure of a mortgage
thousand pesos; thereon. (i.e. you bought books

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
worth 500K then wala nimu
nabayaran, you cannot claim that it
cannot be levied upon because of
this last paragraph. Properties
mentioned here are exempt
EXCEPT when that debt arose out
of that property. But if its another
creditor who files a case against
you, such creditor cannot levy on
the books coz they are exempt. But
the creditor from whom the books
were bought can levy on the same
books which gave rise to the
obligation.)
Rationale for this rule: public policy.
In order to be able to invoke the
exemption, invoke it AT THE TIME
OF LEVY or WITHIN
REASONABLE PERIOD thereafter.
Any claim for exemption from
execution under section 12 of Rule
39 must be presented before its
sale on execution by the sheriff
(HONRADO V. CA)
LIFETEIME OF WRIT OF EXECUTION—5 YEARS
Section 14. The writ of execution shall be
Return of writ of returnable to the court issuing it
execution. immediately after the judgment has
been satisfied in part or in full. If the
judgment cannot be satisfied in full
within thirty (30) days after his
receipt of the writ, the officer shall
report to the court and state the
reason therefor. Such writ shall
continue in effect during the period
within which the judgment may be
enforced by motion. The officer
shall make a report to the court
every thirty (30) days on the
proceedings taken thereon until the
judgment is satisfied in full, or its
effectivity expires. The returns or
periodic reports shall set forth the
whole of the proceedings taken,
and shall be filed with the court and
copies thereof promptly furnished
the parties.
RULE: the writ is good for 5 years
and EVERY 30 days, the sheriff
has to make a report with the court.
NOTICE OF SALE
Section 15. Before the sale of property on
Notice of sale of execution, notice thereof must be
property on given as follows:
execution.
(a) In case of perishable
property, by posting
written notice of the time
and place of the sale in
three (3) public places,
preferably in conspicuous
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Ateneo de Davao College of Law
areas of the municipal or
city hall, post office and
public market in the
municipality or city where
the sale is to take place,
for such time as may be
reasonable, considering
the character and
condition of the property;
(b) In case of other personal
property, by posting a
similar notice in the three
(3) public places above-
mentioned for not less
than five (5) days;
(c) In case of real property,
A by posting for twenty (20)
days in the three (3) public
places abovementioned a
similar notice particularly
describing the property
and stating where the
property is to be sold, and
if the assessed value of
the property exceeds fifty
thousand (P50,000.00)
pesos, by publishing a
copy of the notice once a
week for two (2)
consecutive weeks in one
newspaper selected by
raffle, whether in English,
Filipino, or any major
regional language
published, edited and
circulated or, in the
absence thereof, having
general circulation in the
province or city;
(d) In all cases, written notice
of the sale shall be given
to the judgment obligor, at
least three (3) days before
the sale, except as
provided in paragraph (a)
hereof where notice shall
be given the same manner
as personal service of
pleadings and other
papers as provided by
section 6 of Rule 13.
The notice shall specify the place,
date and exact time of the sale
which should not be earlier than
nine o'clock in the morning and not
later than two o'clock in the
afternoon. The place of the sale
may be agreed upon by the parties.
In the absence of such agreement,
the sale of the property or personal
property not capable of manual
delivery shall be held in the office of
the clerk of court of the Regional
Trial Court or the Municipal Trial
Page
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

Court which issued the writ of or Distinctions: THIRD PARTY

which was designated by the CLAIM vs. THIRD-PARTY
appellate court. In the case of COMPLAINT
personal property capable of
manual delivery, the sale shall be 1. As to definition, a Third-
held in the place where the property Party Complaint under
is located. Rule 6 is a PLEADING
filed by a defendant
TERCERIA (THRID PARTY CLAIM) against the third person
not a party to the action
Section 16. If the property levied on is claimed for contribution, indemnity,
Proceedings by any person other than the subrogation, or any other
where property judgment obligor or his agent, and relief in respect of the
claimed by third such person makes an affidavit of plaintiff’s complaint,
person. his title thereto or right to the whereas
possession thereof, stating the
grounds of such right or title, and A Third-Party Claim or
serves the same upon the officer Terceria under Rule 39 is
making the levy and copy thereof, an AFFIDAVIT made by a
upon the judgment obligee, the third person who claims to
officer shall not be bound to keep be entitled to the property
the property, unless such judgment in the custody of a sheriff
obligee, on demand of the officer, by virtue of a writ of
files a bond approved by the execution.
court to indemnity the third-party
claimant in a sum not less than 2. As to the person who
the value of the property levied files, the one who files a
on. In case of disagreement as to Third-Party Complaint is
such value! the same shall be called THIRD-PARTY
determined by the court issuing the PLAINTIFF, whereas
writ of execution. No claim for
damages for the taking or keeping The one who files a Third-
of the property may be enforced Party Claim is technically
against the bond unless the action called THIRD-PARTY
therefor is filed within one hundred CLAIMANT.
twenty (120) days from the date of
the filing of the bond. • A third-party claim is filed
with the sheriff although
The officer shall not be liable for legally, it is considered as
damages for the taking or keeping filed in court because the
of the property, to any third-party sheriff is only an agent of
claimant if such bond is filed. the court.
Nothing herein contained shall • Re other remedies:
prevent such claimant or any “Nothing herein contained
third person from vindicating his shall prevent such
claim to the property in a claimant or any third
separate action, or prevent the person from vindicating
judgment obligee from claiming his claim to the property in
damages in the same or a a SEPARATE ACTION.”
separate action against a third- • Other option: Instead of
party claimant who filed a frivolous filing a third-party claim,
or plainly spurious claim. the third person may file a
case in court where the
When the writ of execution is cause of action is that the
issued in favor of the Republic of sheriff mistakenly or
the Philippines, or any officer duly erroneously levied the
representing it, the filing of such properties not owned by
bond shall not be required, and in obligor because the third
case the sheriff or levying officer is person is the real owner.
sued for damages as a result of the Since there was a
levy, he shall be represented by the mistaken levy, the third
Solicitor General and if held liable person may also ask the
therefor, the actual damages court to declare the levy
adjudged by the court shall be paid as null and void; the
by the National Treasurer out of auction sale should not
such funds as may be appropriated proceed.
rd
for the purpose. (17a) • it is possible that the 3
party claimant is also a

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

frivolous claim, hence, the authorized such

prevailing party has the execution;
right to claim damages 2. Terceria or third
rd
against such 3 party party claim; and
claimant for filing frivolous 3. Any proper action
claims. (basis:..Nothing to vindicate his
herein shall prevent the claim to the
prevent the judgment property,
obligee from claiming meaning a
damages in the same or separate civil
a separate action against action.
a third-party claimant who
filed a frivolous or plainly Section 17. An officer selling without the
spurious claim.) Penalty for notice prescribed by section 15 of
• INTERVENTION is not selling without this Rule shall be:
proper in a third-party notice, or 1. liable to pay punitive
claim because under Rule removing or damages in the amount of
19, an intervention can defacing notice. five thousand (P5,000.00)
only be done at any time pesos to any person
before judgment. Under injured thereby,
Rule 39, however, there is 2. in addition to his actual
already a judgment. damages,
• in Terceria, what court can 3. both to be recovered by
do is limited o the motion in the same action;
determination of whether and a person willfully removing
the sheriff acted rightly or or defacing the notice posted, if
wrongly in the perforanc done before the sale, or before the
eof his dueties in the satisfaction of the judgment if it be
execution of the judgment. satisfied before the sale, shall be:
Court does nto pass upon 1. liable to pay five thousand
the question of title to the (P5,000.00) pesos to any
property, with any person injured by reason
character of finality. thereof,
2. in addition to his actual
Present rule: damages,
1. if sheriff committed a 3. to be recovered by motion
100% mistake of in the same action. (19a)
levying a proerpty Section 18. No At any time before the sale of
rd
belonging to a 3 sale if judgment property on execution,! the
person who is not a and costs paid. judgment obligor may prevent the
defendant, filing sale by paying the amount required
another case would by the execution and the costs that
be tedious. He can have been incurred therein.
seek relief from the
same court RULE: you have to pay ALL. Not
2. but when the issue is just half of it.
WON the property is Section 19. How All sales of property under
owned by defendant property sold on execution must be made at
rd
or the 3 person and execution; who public auction, to the highest
issue is to who is the may direct bidder, to start at the exact time
rightful owner! court manner and fixed in the notice. After sufficient
cannot summarily order of sale. property has been sold to satisfy
decided on this issue. the execution! no more shall be
It should be threshed sold and any excess property or
out in a separate civil proceeds of the sale shall be
action. promptly delivered to the judgment
obligor or his authorized
The remedies of a third person representative, unless otherwise
whose property was seized by the directed by the judgment or order of
sheriff to answer for the obligation the court. When the sale is of real
of the judgment obligor are the property, consisting of several
following: (EVANGELISTA V. known lots,! they must be sold
PENSERGA) separately; or, when a portion of
such real property is claimed by
1. Invoke the a third person! he may require it
supervisory to be sold separately. When the
power of the sale is of personal property
court which capable of manual delivery, it must

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

be sold within view of those is valid, it will be given to

attending the same and in such the real owner because
parcels as are likely to bring the the property you bought
highest price. The judgment obligor, turned out to be someone
if present at the sale, may direct the not your debtor)
order in which property, real or
personal shall be sold, when such Section 22. By written consent of the
property consists of several known Adjournment of judgment obligor and obligee, or
lots or parcels which can be sold to sale. their duly authorized
advantage separately. Neither the representatives,! the officer may
officer conducting the execution adjourn the sale to any date and
sale, nor his deputies, can time agreed upon by them.
become a purchaser, nor be Without such agreement,! he
interested directly or indirectly in may adjourn the sale from day to
any purchase at such sale. (even day if it becomes necessary to do
judges and lawyers of the parties so for lack of time to complete the
cannot be interested in the sale of sale on the day fixed in the notice
real property to prevent conflict of or the day to which it was
interest) adjourned.
Section 20. If a purchaser refuses to pay the
Refusal of amount bid by him for property PROCEDURE FOR SALE
purchaser to pay. struck off to him at a sale under
execution, the officer may again 1. Personal property capable of manual
sell the property to the highest delivery—Sec.23
bidder and shall not be 2. Personal property not capable of MD—
responsible for any loss section 24
occasioned thereby; but the court 3. sale of real property—section 25
may order the refusing purchaser
to pay into the court the amount Section 23. When the purchaser of any
of such loss, with costs, and may Conveyance to personal property, capable of
punish him for contempt if he purchaser of manual delivery, pays the
disobeys the order. The amount of personal property purchase price, the officer making
such payment shall be for the capable of the sale must:
benefit of the person entitled to the manual delivery. 1. deliver the property to the
proceeds of the execution, unless purchaser and,
the execution has been fully 2. if desired, execute and
satisfied, in which event such deliver to him a certificate
proceeds shall be for the benefit of of sale.
the judgment obligor. The officer 3. The sale conveys to the
may thereafter reject any purchaser all the rights
subsequent bid of such purchaser which the judgment obligor
who refuses to pay. had in such property as of
the date of the levy on
Section 21. When the purchaser is the execution or preliminary
Judgment judgment obligee, and no third- attachment.
obligee as party claim has been filed, he need
purchaser not pay the amount of the bid if it Section 24. When the purchaser of any
does not exceed the amount of Conveyance to personal property, not capable of
his judgment. If it does, he shall purchaser of manual delivery, pays the
pay only the excess. personal property purchase price, the officer making
not capable of the sale must:
G.R.: Apply the LAW ON manual delivery. 1. execute and deliver to the
COMPENSATION purchaser a certificate of
Exceptions: sale.
1. When his bid is higher 2. Such certificate conveys
than the judgment, he has to the purchaser all the
to pay the cash for the rights which the judgment
excess; or obligor had in such
2. When the property which property as of the date of
is to be sold is a subject of the levy on execution or
a third party claim; there’s preliminary attachment.
a controversy regarding
the ownership of the NOTE: there is nothing given
property. (your money will physically to you.
be placed on deposit; it 1. In both sections, “the sale
will be returned to you if it conveys to the
turns out the claim is purchaser…” so you
rd
frivolous; if 3 party claim become the owner

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
because you acquire the
judgment obligor’s right of
ownership over the
property.
2. But if he is not the owner
but only has rights, then
you only acquire whatever
rights he has.
3. If you bought his interest
and afterwards develops
that he has none,you are
liable on your bid because
you have offered so much
for his interest in open
market and its for you to
determine what is his
interest in the property.
4. Further, in sheriff’s sale,
the sheriff does nto
warrant the ownership of
the property. Law only
warrants the guarantee,
that you will acquire
whatever interest he has.
NO WARRANTY
AGAINST EVICTION. !
Caveat emptor!
Section 25. Upon a sale of real property, the
Conveyance of officer must give to the purchaser a
real certificate of sale containing:
property; certifica (a) A particular
te thereof given description of the real
to purchaser and property sold;
filed with registry (b) The price paid for
of deeds. each distinct lot or parcel;
(c) The whole price paid
by him;
(d) A statement that the
right of redemption
expires one (1) year from
the date of the
registration of the
certificate of sale.
Such certificate must be registered
in the registry of deeds of the place
where the property is situated.
Conveyance of Property
Acquisition of the ownership of the
property by the highest bidder:
a.) If it is a PERSONAL
PROPERTY, the title is
transferred after payment
of the purchase price and
delivery upon the
purchaser – either
physical or symbolic
delivery;
b.) If it is REAL PROPERTY,
the title is transferred, not
after the auction sale, but
after the expiration of the
right to redeem.
• There is no right
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
redemption under
personal property.
• The right of redemption
(real property) expires
after one year from the
date of the registration of
the certificate of sale in the
office of the ROD and
NOT from the date of
auction sale.
Attacking the validity of an
auction sale:
General Rule: One cannot attack
the validity of an auction sale on the
presumption that every fair sale is
final. There is presumption of
regular performance of duty by the
sheriff.
EXCEPTIONS: When an execution
may be set aside:
1. When it is shown from the
nature of the irregularity or
from intrinsic facts that an
injury resulted therefrom.
There were serious
irregularities committed by the
officer in conducting the sale.
e.g. no publication, no notice,
no prior levy, etc.
2. When the price obtained at
the execution sale is
shockingly inadequate and it
is shown that a better price
can be obtained at a resale.
EXCEPTION TO THE
EXCEPTION:
Questions on the inadequacy of the
price are only applicable when the
property sold is PERSONAL
PROPERTY. The same is not
applicable to real properties
because of the availability of the
right of redemption.(RAMOS V.
PABLO)
Section 26. When a property sold by virtue of a
Certificate of sale writ of execution has been claimed
where property by a third person, the certificate of
claimed by third sale to be issued by the sheriff
person. pursuant to sections 23, 24 and 25
of this Rule shall make express
mention of the existence of such
third-party claim.
Section 27. Who Real property sold as provided in
may redeem real the last preceding section, or any
property so sold. part thereof sold separately, may
be redeemed in the manner
hereinafter provided, by the
following persons:
(a) The judgment obligor; or his
of successor in interest in the whole
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

or any part of the property; properties is greater than

anybody else’s.
(b) A creditor having a lien by 4. The estate of the
virtue of an attachment, judgment deceased is the judgment
or mortgage on the property sold, debtor and the heirs who
or on some part thereof, will eventually acquire that
subsequent to the lien under which estate. They should not be
the property was sold. Such prohibited from doing their
redeeming creditor is termed a share in its preservation.
redemptioner. 5. If the redeeming heir
wants to place the
NOTES: property in his name, the
1. The right to redeem can motion to transfer titles
be sold. cannot prosper at this
2. If there are several levying time. Otherwise, to allow
st
creditors, the 1 levying such would amount to the
credit enjoys full rights and distribution of the estate.
there is no need to respect Instead, the other heirs
other creditors. As to the are given 6 MONTH to
nd
2 levying creditor, h must join as co-redemptioners
st
respect the rights of the 1 in the redemption made by
levying creditor. the redeeming heir before
the motion to transfer titles
Example of Maam: property of 10 to the latter’s name may
million divided to 4 creditors with be granted.
2M credit each. If judgment obligor
redeems within 1 year! the Section 28. Time The judgment obligor, or
redemptioners cannot redeem. If and manner of, redemptioner, may redeem the
judgment debtor does not redeem: and amounts property from the purchaser, at any
1. A can redeem by paying payable time within one (1) year from the
the purchase price. on, successive date of the registration of the
2. If B redeems—purchase redemptions; noti certificate of sale, by:
price + 2M of A (4 million) ce to be given 1. paying the purchaser the
3. C redeems! 6M and filed. amount of his purchase,
4. D redeems! 8M 2. with the per centum per
month interest thereon in
landmark case: PALICTE V. addition, up to the time of
REMOLETE redemption,
facts: only 1 heir redeemed when 3. together with the amount
judgment debtor died; estate under of any assessments or
administration. taxes which the purchaser
1. The HEIR has a right to may have paid thereon
redeem. At the moment of after purchase, and
decedent’s death, heirs interest on such last
start to own the property, named amount at the
subject to the decedent’s same rate; and
liabilities. In fact, they may 4. if the purchaser be also a
dispose even while creditor having a prior lien
property is under admin. If to that of the
it is so, with ore reason redemptioner, other than
should the heirs be the judgment under which
allowed to redeem such purchase was made,
redeemable properties the amount of such other
despite presence of an lien, with interest.
administrator. Property so redeemed may again
2. If 1 heir redeem, the be redeemed within sixty (60)
other co-heirs, days after the last redemption:
administrator and court 1. upon payment of the sum
NEED NOT expressly paid on the last
agree to the redemption. redemption,
3. While it may be true that 2. with two per
the interest of a specific centum thereon in
heir is not yet fixed and addition and
determinate pending order 3. the amount of any
of distribution, assessments or taxes
nonetheless, his interest in which the last
the preservation of the redemptioner may have
estate and recovery of its paid thereon after

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
redemption by him, with
interest on such last
named amount, and
4. in addition, the amount of
any liens held by said last
redemptioner prior to his
own, with interest.
The property may be again, and as
often as a redemptioner is so
disposed, redeemed from any
previous redemptioner within sixty
(60) days after the last
redemption:
1. on paying the sum paid on
the last previous
redemption,
2. with two per
centum thereon
addition, and
3. the amounts of any
assessments or taxes
which the last previous
redemptioner paid after
the redemption thereon,
with interest thereon, and
4. the amount of any liens
held by the last
redemptioner prior to his
own, with interest.
Written notice of any redemption
must be given to the officer who
made the sale and a duplicate filed
with the registry of deeds of the
place, and if any assessments or
taxes are paid by the redemptioner
or if he has or acquires any lien
other than that upon which the
redemption was made, notice
thereof must in like manner be
given to the officer and filed with
the registry of deeds; if such notice
be not filed, the property may be
redeemed without paying such
assessments, taxes, or liens.
NOTES:
st
1. Judgment obligor and 1
redemptioner are given 1
year from the date of
registration of the cert of
sale to redeem and after
that, subsequent
redemptioners are given
60 days.
2. Suppose the debtor or the
nd
2 redemptioner would
like to redeem it from the
st
1 redemptioner, under
section 28 the redemption
price= bid price + 1%
interest PER MONTH. In
other words, if you redeem
AFTER 1 year! bid price
+ 12% of the bid price.
3. SY V. CA! within the 1
year redemption period,
how much interst will be
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
imposed? Ung 2% as
stipulated + 1% imposed
by law during the
redemption period or ung
1% lang?
SC: 3% a month stipulated
under the mortgage
contract prevails. Basis:
Section 78 of the General
Banking Act, RA 337. The
bank rate prevails.
Section 29. If the judgment obligor
Effect of redeems! he must make the
redemption by same payments as are required to
judgment effect a redemption by a
obligor, and a redemptioner, whereupon, no
in certificate to be further redemption shall be allowed
delivered and and he is restored to his estate.
recorded The person to whom the
thereupon; to redemption payment is made must:
whom payments 1. execute and deliver to him
on redemption a certificate of redemption
made. acknowledged before a
notary public or other
officer authorized to take
acknowledgments of
conveyances of real
property.
2. Such certificate must be
filed and recorded in the
registry of deeds of the
place in which the property
is situated and
3. the registrar of deeds must
note the record thereof on
the margin of the record of
the certificate of sale.
The payments mentioned in this
and the last preceding sections
may be made to the purchaser or
redemptioner, or for him to the
officer who made the sale.
Section 30. A redemptioner must produce to
Proof required of the officer, or person from whom he
redemptioner. seeks to redeem, and serve with
his notice to the officer:
1. a copy of the judgment or
final order under which he
claims the right to redeem,
2. certified by the clerk of the
court wherein the
judgment or final order is
entered,
or, if he redeems upon a
mortgage or other lien:
1. a memorandum of the
record thereof,
2. certified by the registrar of
deeds, or
3. an original or certified
copy of any assignment
necessary to establish his
claim; and
4. an affidavit executed by
him or his agent, showing
the amount then actually
due on the lien.
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

expiration of his period of

NOTE: if it is the Original owner redemption
who wants to redeem, there is no .
need to prove is right as a judgment Section 33. If no redemption be made within
debtor. He has that automatic right Deed and one (1) year from the date of the
to redeem. But if it is B, C or D possession to be registration of the certificate of sale:
(redemptioners), they must prove to given at 1. the purchaser is entitled to
sheriff that they are qualified to expiration of a conveyance and
redeem. redemption possession of the
period; by whom property; or,
Section 31. Until the expiration of the time executed or 2. if so redeemed whenever
Manner of using allowed for redemption, the court given. sixty (60) days have
premises may, as in other proper cases, elapsed and no other
pending restrain the commission of waste redemption has been
redemption; wast on the property by injunction, on made, and notice thereof
e restrained the application of the purchaser or given, and the time for
the judgment obligee, with or redemption has expired,
without notice; but it is not waste for the last redemptioner is
a person in possession of the entitled to the conveyance
property at the time of the sale, or and possession;
entitled to possession afterwards,
during the period allowed for but in all cases the judgment
redemption, to continue to use it in obligor shall have the entire
the same manner in which it was period of one (1) year from the
previously used, or to use it in the date of the registration of the
ordinary course of husbandry; or to sale to redeem the property. The
make the necessary repairs to deed shall be executed by the
buildings thereon while he occupies officer making the sale or by his
the property. successor in office, and in the latter
case shall have the same validity
NOTE: during the 1 year redemp as though the officer making the
period, debtor is in possession of sale had continued in office and
the property. If before that, he executed it.
decides to destroy the property, the
purchaser has a remedy. Upon the expiration of the right
of redemption! the purchaser or
Remedy: Ask the court to issue a redemptioner shall be substituted to
writ of injunction according to and acquire all the rights, title,
Section 31 – an injunction to interest and claim of the judgment
restrain the commission of waste obligor to the property as of the
on the property. time of the levy. The possession of
the property shall be given to the
Nature of the right of purchaser or last redemptioner by
PURCHASER: the same officer unless a third party
1. Takes effect only after adversely to the judgment obligor.
expiration of redemption
period NOTES: The sheriff will now
2. Not entitled to possession execute in favor of the highest
of the property bidder or purchaser what is known
3. Not entitled to receive as the final deed of sale or DEED
rents OF CONVEYANCE.
4. As to rights acquired,
retroacts to date of levy TWO DOCUMENTS which the
sheriff executes in case of real
Section 32. The purchaser or a redemptioner property:
Rents, earnings shall:
and income of 1. not be entitled to receive 1. CERTIFICATE OF SALE.
property pending the rents, earnings and After the auction sale, the
redemption. income of the property sheriff shall execute in favor
sold on execution, or of the highest bidder or
2. the value of the use and purchaser the certificate of
occupation thereof when sale under Section 25. By
such property is in the the time the same is
possession of a tenant. registered, the counting of
All rents, earnings and income one year shall run;
derived from the property pending
redemption shall belong to the 2. DEED OF CONVEYANCE. If
judgment obligor until the after one year there is no

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

redemption, a deed of the date of the revival and no more.

conveyance is executed
under Section 33. Only the REMEDIES of purchaser if
same transfers title to the property removed from him:
property. 1. recover the money from
the obligee (assuming
• Suppose the debtor obligee is different from
refuses to vacate, there is the purchaser)
no more need of filing 2. have the judgment revived
another action to eject the in your name and look for
former owner. The properties of debtor to
purchaser can ask the execute because:
court to ISSUE A WRIT a. he lost possession of
OF POSSESSION under property
the Property Registration b. he’s evicted
Decree to take over the c. there was irregularity
property. in the proceedings
• GOMEZ V. GEALONE! d. judgment reversed or
Claims for exemption from set aside on appeal
execution of properties e. property sold was
under Section 13 must be exempt form
presented BEFORE ITS execution or
rd
SALE ON EXECUTION by f. 3 person has validity
the sheriff. You can raise of his claim of the
the issue of exemption at property.
the time of levy but NOT
later than the auction sale. Section 35. When property liable to an
Right to execution against several
Section 34. If the purchaser of real property contribution or persons is sold thereon, and more
Recovery of price sold on execution, or his reimbursement. than a due proportion of the
if sale not successor in interest: judgment is satisfied out of the
effective; revival 1. fails to recover the proceeds of the sale of the property
of judgment. possession thereof, or of one of them, or one of them
2. is evicted therefrom, in pays, without a sale, more than his
consequence of proportion, he may compel a
irregularities in the contribution from the others; and
proceedings concerning when a judgment is upon an
the sale, or obligation of one of them, as
3. because the judgment has security for another, and the
been reversed or set surety pays the amount, or any part
aside, or thereof, either by sale of his
4. because the property sold property or before sale, he may
was exempt from compel repayment from the
execution, or principal.
5. because a third person
has vindicated his claim to
the property, REMEDIES IN AID OF EXECUTION (Section 36 and
he may: 37)
1. on motion in the same
action or in a separate Section 36. When the return of a writ of
action recover from the Examination of execution issued against property
judgment obligee the judgment obligor of a judgment obligor, or any one of
price paid, with interest, or when judgment several obligors in the same
so much thereof as has unsatisfied. judgment, shows that the judgment
not been delivered to the remains unsatisfied, in whole or in
judgment obligor, or part, the judgment obligee, at any
2. he may, on motion, have time after such return is made,
the original judgment shall be entitled to an order from
revived in his name for the court which rendered the said
the whole price with judgment, requiring such judgment
interest, or so much obligor to appear and be examined
thereof as has been concerning his property and income
delivered to the judgment before such court or before a
obligor. commissioner appointed by it at a
specified time and place; and
The judgment so revived shall have proceedings may thereupon be had
the same force and effect as an for the application of the property
original judgment would have as of and income of the judgment obligor

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
towards the satisfaction of the
judgment. But no judgment obligor
shall be so required to appear
before a court or commissioner
outside the province or city in which
such obligor resides or is found.
Section 37. When the return of a writ of
Examination of execution against the property of a
obligor of judgment obligor shows that the
judgment obligor. judgment remain unsatisfied, in
whole or in part, and upon proof to
the satisfaction of the court which
issued the writ, that a person,
corporation, or other juridical entity
has property of such judgment
obligor or is indebted to him, the
court may, by an order, require
such person, corporation, or other
juridical entity, or any officer, or
member thereof, to appear before
the court or a commissioner
appointed by it, at a time and place
within the province or city where
such debtor resides or is found, and
be examined concerning the same.
The service of the order shall bind
all credits due the judgment obligor
and all money and property of the
judgment obligor in the possession
or in the control of such person
corporation, or juridical entity from
the time of service; and the court
may also require notice of such
proceedings to be given to any
party to the action in such manner
as it may deem proper.
REMEDIES IN AID OF
EXECUTION
Examination of judgment obligor
when judgment unsatisfied
The obligee can ask the court to
render judgment to allow him to
subpoena the obligor and take the
witness stand subject to
questioning so that he can discover
where his properties are.
(deposition taking)
Examination of obligor of
judgment obligor
This time, it is the “obligor” of the
judgment obligor who will be
examined. If there are people
whom you believe owe the obligor
something, such as his debtors,
those holding his property. You can
ask them to be examined. In this
case, oblige can ask the court to
garnish the money.
Appointment of receiver
The court may appoint a receiver
who is an officer of the court who
will manage the property of the
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
litigants pending litigation. (Rule 59
on Receivership) The purpose of
receivership is to preserve the
property by placing it in the hands
of the court to remove it from the
control of a party because the latter
may dispose of the same.
Section 38. A party or other person may be
Enforcement of compelled, by an order or
attendance and subpoena, to attend before the
conduct of court or commissioner to testify as
examination. provided in the two preceding
sections, and upon failure to obey
such order or subpoena or to be
sworn, or to answer as a witness or
to subscribe his deposition, may be
punished for contempt as in
other cases. Examinations shall
not be unduly prolonged, but the
proceedings may be adjourned
from time to time, until they are
completed. If the examination is
before a commissioner, he must
take it in writing and certify it to the
court. All examinations and
answers before a court
commissioner must be under oath,
and when a corporation or other
juridical entity answers, it must be
on the oath of an authorized officer
or agent thereof.
Section 39. After a writ of execution against
Obligor may pay property has been issued, a person
execution against indebted to the judgment obligor
obligee. may pay to the sheriff holding the
writ of execution the amount of his
debt or so much thereof as may be
necessary to satisfy the judgment,
in the manner prescribed in section
9 of this Rule, and the sheriff's
receipt shall be a sufficient
discharge for the amount so paid or
directed to be credited by the
judgment obligee on the execution.
Note: this is a case where there is
change of the party creditor. i.e.
garnishment from a bank. B as
debtor of judgment tobligor will
directly pay the bank instead of
paying the judgment obligor. So B
no longer indebted to the latter.
Section 40. The court may order any property
Order for of the judgment obligor, or money
application of due him, not exempt from
property and execution, in the hands of either
income to himself or another person, or of a
satisfaction of corporation or other juridical entity,
judgment. to be applied to the satisfaction of
the judgment, subject to any prior
rights over such property.
If, upon investigation of his current
income and expenses, it appears
that the earnings of the judgment
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

obligor for his personal services are of such order as for

more than necessary for the contempt.
support of his family, the court Such order may be modified or
may order that he pay the vacated at any time by the court
judgment in fixed monthly which issued it, or by the court in
installments, and upon his failure which the action is brought, upon
to pay any such installment when such terms as may be just.
due without good excuse, may
punish him for INDIRECT Power of the court issuing order
CONTEMPT. of execution:
1. cannot determine
Note: if you are earning a lot, more ownership of disputed
than sufficient for your family, the property
excess of your income can be 2. can only authorize creditor
garnished under section 40. to sue
3. can prohibit transfer within
Section 41. The court may appoint a receiver of 120 days.
Appointment of the property of the judgment
receiver obligor; and it may also forbid a Notes: if naa ka nahibal-an na
transfer or other disposition of, or debtor of the obligor,you can ask
any interference with, the property the court that you be allowed to file
of the judgment obligor not exempt a collection case against such
from execution. person on behalf of the obligor. You
are considered a real party in
Section 42. Sale If it appears that the judgment interest in the case as a
of ascertainable obligor has an interest in real REPRESENTATIVE party under
interest of estate in the place in which rule 3, section 3.
judgment obligor proceedings are had, as mortgagor
in real estate. or mortgagee or other- wise, and
his interest therein can be SATISFACITON OF JUDGEMENT
ascertained without controversy!
the receiver may be ordered to sell Section 44. Satisfaction of a judgment shall be:
and convey such real estate or the Entry of 1. entered by the clerk of
interest of the obligor therein; and satisfaction of court in the court docket,
such sale shall be conducted in all judgment by clerk and in the execution book,
respects in the same manner as is of court 2. upon the return of a writ of
provided for the sale of real state execution showing the full
upon execution, and the satisfaction of the
proceedings thereon shall be judgment, or
approved by the court before the 3. upon the filing of an
execution of the deed. admission to the
satisfaction of the
Note: here, if obligor has interest in judgment executed and
real property, the oblige can LEVY 4. acknowledged in the same
on these rights because these are manner as a conveyance
property rights by themselves. This of real property by the
time, it is NOT the property which is judgment obligee or by his
sold but the interest. counsel unless a
revocation of his authority
Section 43. If it appears that a person or is filed, or
Proceedings corporation, alleged to have 5. upon the endorsement of
when property of the judgment obligor or such admission by the
indebtedness to be indebted to him, claims an judgment obligee or his
denied or another interest in the property adverse to counsel, on the face of the
person claims the him or denied the debt! the court record of the judgment.
property. may authorize, by an order made
to that effect, the judgment obligee Section 45. Whenever a judgment is satisfied in
to: Entry of fact, or otherwise than upon an
1. institute an action against satisfaction with execution on demand of the
such person or corporation or without judgment obligor, the judgment
for the recovery of such admission obligee or his counsel must execute
interest or debt, and acknowledge, or indorse an
2. forbid a transfer or other admission of the satisfaction as
disposition of such interest provided in the last preceding
or debt within one hundred section, and after notice and upon
twenty (120) days from motion the court may order either
notice of the order, and the judgment obligee or his counsel
3. may punish disobedience to do so, or may order the entry of

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
satisfaction to be made without
such admission.
Execution vs. Satisfaction
EXECUTION is the method of
enforcement of a judgment.
SATISFACTION OF JUDGMENT
is the compliance with or fulfillment
of the mandate of judgment.
Satisfaction of judgment may be
compelled by the judgment-
creditor by means of execution, or
by the judgment-debtor by means
of voluntary payment.
VITAL-GOSON V. CA: can plaintiff
appeal from the judgment and at
the same time move for execution o
the same?
• Where the judgment is
INDIVISIBLE, acceptance
of full satisfaction of the
judgment annihilates the
right to further prosecute
the appeal; and that even
partial execution by
compulsory legal process
at the instance of the
prevailing party, places
said party in estoppels to
ask that the judgment be
amended.
• When the judgment is
DIVISIBLE, estoppel
should not operate against
the judgment creditor who
causes implementation of
a part of the decision by
writ of execution.
Section 46. When a judgment is rendered
When principal against a party who stands as
bound by surety for another, the latter is also
judgment against bound from the time that he has
surety. notice of the action
proceeding, and an opportunity
at the surety's request to join in
the defense.
PRINCIPLE OF RES JUDICATA
Section 47. The effect of a judgment or final
Effect of order rendered by a court of the
judgments or Philippines, having jurisdiction to
final orders. pronounce the judgment or final
order, may be as follows:
(Res judicata in judgment in rem or
at least quasi in rem)
(a) In case of a judgment or final
order against a specific thing, or
in respect to the probate of a will,
or the administration of the
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
estate of a deceased person, or
in respect to the personal,
political, or legal condition or
status of a particular person or his
relationship to another! the
judgment or final order is
conclusive upon the title to the
thing, the will or administration or
the condition, status or relationship
of the person, however, the probate
of a will or granting of letters of
administration shall only be prima
facie evidence of the death of the
testator or intestate;
(paragraphs b and c only on
judgments in personam; binding
only on the parties)
BAR BY A FORMER JUDGMENT
(b) In other cases, the judgment or
final order is, with respect to the
matter directly adjudged or as to
any other matter that could have
been missed in relation thereto!
conclusive between the parties
and their successors in interest,
by title subsequent to the
commencement of the action or
special proceeding, litigating for the
same thing and under the same title
and in the same capacity; and
CONCLUSIVENESS OF
JUDGMENT
(c) In any other litigation between
the same parties or their
successors in interest, that only is
deemed to have been adjudged in
a former judgment or final order
which appears upon its face to
have been so adjudged, or which
was actually and necessarily
included therein or necessary
thereto.
RES ADJUDICATA; requisites
1. The judgment or order
invoked as res adjudicate
or must be final;
2. The court rendering the
same must have
jurisdiction over the
subject matter and of the
parties;
3. The judgment or order
must be upon the merits;
4. There must be, between
the two cases, identity of
the parties, identity of
subject matter, and
identity of cause of action.
FIRST REQUISITE: JUDGMENT
OR ORDER MUST BE FINAL
• Judgment must be FINAL
AND EXECUTORY (which
is after the lapse of 15
days) not final and
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

appealable. ensued, for as long as

• Because if there is a parties had full opportunity
judgment and before it to be heard on their
becomes executory, you respective claims and
filed another case, it is not contentions. The judgment
res judicata but litis thereon is on the merits.
st
pendentia because 1
TH
case is still pending 4 REQUISITE: IDENTITY OF
• Important thing is when PARTIES, SUBJECT MATTER
st
you invoke res judicata, 1 AND CAUSE OF ACTION
st
judgment is already final. . • When 1 case filed by
nd
union then 2 case filed
nd
2 REQUISITE: JURIS OVER SM by employees, there are
AND PARTIES identity of parties.
• Court must have acquired • Identity of SM;
jurisdiction over the SM a. Action for recovery of
and parites. There must large tract then
have been proper service subsequent case
of summons or voluntary involving a smaller
appearance of the parties. parcel included in the
• A voidable judgment can large tract
be invoked as res judicata b. Accounting of certain
because such is binding funds then action for
upon parties until partition of same
annulled. funds
c. Case for recovery of
rd
3 REQUISITE: JUDGMENT property then
MUST BE UPON THE MERITS recovery of the value
• Judgment upon the of the property.
merits! oen finally • Identity of causes of
settling the issues raised action:
in the pleadings. a. Same evidence test
• Not upon the merits! b. Inconsistency test
dismissal of case d/t lack
of juris or imporper venue. Rare instance wehre SC refuses to
Plaintiff can still refile allow res judicata despite its
case. existence: EQUITY CASES.
• Generally, a dismissal
without a trial is not
adjudication upon the
merits EXCEPT in Rule BAR BY CONCLUSIVENESS OF
17, Section 3 when the FORMER JUDGMENT
case was dismissed for JUDGMENT
failure of the plaintiff to Merger or bar; Collateral estoppels; issue
appear during the Claim preclusion preclusion
st
presentation of his 1 judgment Conclusive only on mattes actually
st
evidence, or to prosecute constitute an litigated and adjudged in the 1
his action for an absolute bar to action
unreasonable period of all matters
time, or failed to comply directly adjudged
with the rules or order of as well as
the court. There is no trial matters that
but the dismissal shall might have been
have the effect of adjudged
adjudication upon the There must be It is not necessary that there is
merits. identity of paties, identity of causes of action.
• PEREZ V. CA! A SM and cause of
judgment or order is on action
the merits when it i.e. compulsory Payment of loan in 3 installments
st
determines the rights and counterclaim. and debtor sued on 1 installement,
liabilities of the parties rasing the defense of forgery of the
nd
based on the ultimate PN. When the 2 installment falls
facts as disclosed by the due, issue of forgery already
pleadings or issues ajudged as genuine and therefore
nd
presented for trial. Its not res judicata in the 2 installment.
necessary that an actual
hearing or argument on CARANDANG V. VENTURANZA
the facts of the case - When you sue the party

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

with whom you entered conclusive upon the title to the

st
into a simulated sale; 1
case to annul the same
was dismissed but it was
against another party. co-
st
defendants mo in the 1
case
- SC: THERE IS NO RES
JUDICATA. First, there is
no identity of parties. RJ
only applicable between
adverse parties in the
former suit and not
between parties. Co
parties for the judgment
ttherein ordinarily settle
claims as to their relative
rights and liabilities as co-
plaintifffs or co-
nd
defendants perse. 2 ,
cause of action is
completely differet and
therefore, the judgment in
st
the 1 case is conclusive
only in so far as rights of
B1 is concerned. It cannot
be conclusive as to rights
of B2 and X because it is a
separate cause of action.
LAW OF THE that legal conclusions announced
CASE on a first appeal, whether on the
general law or the law as applied to
the concrete facts, not only
prescribed the duty and limit the
power of the trial court to strict
obedience and conformity thereto,
but they become and remain the
law of the case in all after steps
below or above on subsequent
appeal.
Note: right or wrong, that will be the
controlling principle affecting the
parites. It cannot be thereafter
changed or reopened.
STARE DECISIS Decision of a court should stand as
precedents for future guidance.
RES JUDICATA STARE DECISIS
Operates Refers to case between different
between 2 parties
actions involving
same parties and
same cause of
action
Refer to all courts Refers only to decision of the SC
MTC-SC
thing, and
(b) In case of a judgment or final
order against a person, the
judgment or final order is
presumptive evidence of a right
as between the parties and their
successors in interest by a
subsequent title.
In either case, the judgment or
final order may be repelled by:
1. evidence of a want of
jurisdiction,
2. want of notice to the party,
3. collusion, fraud, or clear
mistake of law or fact.
Notes:
1. in enforcing foreign
judgment! file case v.
defendant here and cuase
of action is the
enforcement of the foreign
judgment. Philippine court
will render judgment
enforcing it and then you
can execute.
2. Philippine court can
declare a decision of a
foreign court under section
48 on the ground of “clear
mistake of the law”
3. Foreign judgment need
not comply with the consti
requirement of stating the
facts and law for so long
as such is a valid
judgment in such foreign
court.
AMENDMENTS TO RULES 41 and 45 under A.M. No.
07-7-12-SC (effective December 27, 2007) have already
been incorporated.
Rules on Appeals; Legal Basis; BP 129.
Sec. 39. Appeals.
The period for appeal from final orders, resolutions,
awards, judgments or decisions of any court in all cases
shall be fifteen (15) days counted from the notice of
the final order, resolution, award, judgment or decision
appealed from; Provided, however, That in habeas
corpus cases, the period for appeal shall be forty-eight
(48) hours from the notice of the judgment appealed
from.

Section 48. The effect of a judgment or final No record on appeal shall be required to take an
Effect of foreign order of a tribunal of a foreign appeal. In lieu thereof, the entire original record shall be
judgments or country, having jurisdiction to transmitted with all the pages prominently numbered
final orders. render the judgment or final order is consecutively, together with an index of the contents
as follows: thereof.

(a) In case of a judgment or final This section shall not apply in appeals in special
order upon a specific thing, the proceedings and in other cases wherein multiple
judgment or final order, is

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
appeals are allowed under applicable provisions of the
Rules of Court.
" Requisites for appeal.
Period to appeal Requirements
Civil actions
15 days Notice of appeal
Special proceedings and civil actions which allow
multiple appeals
30 days Notice of appeal
Record on appeal
Habeas corpus cases
48 hours Notice of appeal
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
REGIONAL TRIAL COURTS
SECTION 1. Where to appeal.—An appeal from a
judgment or final order of a Municipal Trial Court may be
taken to the Regional Trial Court 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 as the appellee.
1. RTC’s appellate jurisdiction; Legal basis; BP 129.
Sec. 22. Appellate jurisdiction. Regional Trial
Courts shall exercise appellate jurisdiction over all
cases decided by the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts
in their respective territorial jurisdictions. Such cases
shall be decided on the basis of the entire record of the
proceedings had in the court of origin such memoranda
and/or briefs as may be submitted by the parties or
required by the Regional Trial Courts. The decision of
the Regional Trial Courts in such cases shall be
appealable by petition for review to the Court of Appeals
which may give it due course only when the petition
shows prima facie that the lower court has committed an
error or fact or law that will warrant a reversal or
modification of the decision or judgment sought to be
reviewed.
2. Any MTC final order or decision is appealable to the
RTC which exercises territorial jurisdiction over the
said MTC.
3. This is the reason why under BP 129, every RTC
has a designated territorial jurisdiction.
4. Indicate in the caption who the appellants and the
appellees are.
SEC. 2. When to appeal.—An appeal may be
taken within fifteen (15) days after notice to the
appellant of 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 thirty (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.
Page
 25
 of
 57
RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
1. The 15-day period to appeal cannot be extended.
BUT it can be interrupted by a timely motion for—
a. New trial, or
b. Reconsideration
2. Note, however, that no extension to file either of
those two motions may be allowed.
3. Strict construction – the right to appeal is a
statutory right
4. The 30-day period to submit a record on appeal is
extendible because the preparation takes a longer
period of time.
a. The motion for extension must be filed within
the original 30-day period though.
b. The movant has no right to expect that the
motion for extension will be granted.
5. Motion for extension of time to file MNT or MR is
absolutely prohibited. If MNT or MR is fied,
appellant will have a FRESH PERIOD OF 15 DAYS
from receipt of denial to appeal. (NEYPES V. CA) It
is the denial of the MR of an order of dismissal of a
complaint which constitutes the final order as it is
what ends the issues raised in the action.
6. Fresh period rule can be applied retroactively.
Cases where period to appeal lapsed prior to sept.
14, 2005 can be given retroactive effect.
SEC. 3. How to appeal—The appeal is taken by
filing a notice of appeal with the court that rendered the
judgment or final order appealed from. 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.
A record on appeal shall be required only in
special proceedings and in other cases of multiple or
separate appeals.
The form and contents of the record on appeal
shall be as provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on
appeal where required, shall be served on the adverse
party.
NOTICE OF APPEAL
1. Procedure.
a. File a notice of appeal
b. With the MTC which rendered the judgment or
final order appealed from
c. Serve copy upon the adverse party
2. Contents of the notice of appeal:
a. Parties to the appeal,
b. The judgment or final order or part thereof
appealed from, and
c. The material dates showing the timeliness of
the appeal (i.e. date of the decision/order and
its receipt)
RECORD ON APPEAL
3. Required only in special proceedings and cases
where multiple appeals are allowed
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

SEC. 4. Perfection of appeal; effect thereof.— SEC. 5. Appellate court docket and other lawful
The perfection of the appeal and the effect thereof shall fees.—Within the period for taking an appeal, the
be governed by the provisions of section 9, Rule 41. appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed from the
1. Rule 41, Sec. 9. Perfection of appeal; effect full amount of the appellate court docket and other
thereof— lawful fees. Proof of payment thereof shall be
transmitted to the appellate court together with the
A party’s appeal by notice of appeal is deemed original record or the record on appeal, as the case may
perfected as to him upon the filing of the notice of be.
appeal in due time.
1. Failure to pay within the reglementary period will
A party’s appeal by record on appeal is deemed not automatically cause the dismissal of the appeal
perfected as to him with respect to the subject matter since it is not a requirement for appeal (although it
thereof upon the approval of the record on appeal is still an obligation).
filed in due time. " Exception: When the failure to pay affects
jurisdiction
In appeals by notice of appeal, the court loses " Dismissal is discretionary upon the appellate
jurisdiction over the case upon the perfection of the court; hence, it should be exercised wisely
appeals filed in due time and the expiration of the time (Santos vs. CA [1996])
to appeal of the other parties. 2. BUT the clerk of court may refuse to transmit the
records to the RTC until the appeal fees are paid.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon the SEC. 6. Duty of the clerk of court.—Within
approval of the records on appeal filed in due time and fifteen (15) days from the perfection of the appeal, the
the expiration of the time to appeal of the other parties. clerk of court or the branch clerk of court of the lower
court shall transmit the original record or the record on
In either case, prior to the transmittal of the original appeal, together with the transcripts and exhibits, which
record or the record on appeal, the court may issue he shall certify as complete, to the proper Regional Trial
orders for the protection and preservation of the rights of Court. A copy of his letter of transmittal of the records to
the parties which do not involve any matter litigated by the appellate court shall be furnished the parties.
the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in " Duties of the COC within 15 days from perfection of
accordance with section 2 of Rule 39, and allow the appeal:
withdrawal of the appeal. a. Transmit the original record or the record on
appeal, as the case may be
2. Summary b. Transmit also the transcripts and exhibits
Notice of Appeal Record on appeal c. Certify that those documents are complete, to
How an appeal is perfected the proper RTC
As to the appellant, upon As to the appellant with d. Furnish parties of the letter of transmittal of the
his filing of the notice of respect to the subject records
appeal generally within 15 matter thereof, upon the
days approval of the record on SEC. 7. Procedure in the Regional Trial
appeal filed in due time Court.—(a) Upon receipt of the complete record or the
When jurisdiction over the case is lost record on appeal, the clerk of court of the Regional Trial
1. Upon the 1. Upon the Court shall notify the parties of such fact.
perfection of the appeals approval of the records
filed in due time, and on appeal filed in due (b) Within fifteen (15) days from such notice, it
2. Upon the time, and shall be the duty of the appellant to submit a
expiration of the time to 2. Upon the memorandum which shall briefly discuss the errors
appeal of the other expiration of the time to imputed to the lower court, a copy of which shall be
parties appeal of the other furnished by him to the adverse party. Within fifteen (15)
parties days from receipt of the appellant’s memorandum, the
By fiction of law, jurisdiction is automatically appellee may file his memorandum. Failure of the
transferred to the RTC. appellant to file a memorandum shall be a ground for
Powers of the court prior to the transmittal of— dismissal of the appeal.
the original record the record on appeal
The court may: (c) Upon the filing of the memorandum of the
1. Issue orders for the protection and appellee, or the expiration of the period to do so, the
preservation of the rights of the parties which case shall be considered submitted for decision. The
do not involve any matter litigated by the Regional Trial Court shall decide the case on the basis
appeal, of the entire record of the proceedings had in the court
2. Approve compromises, of origin and such memoranda as are filed.
3. Permit appeals of indigent litigants,
4. Order execution pending appeal (Rule 39, Sec. " Outline:
2), and 1. RTC clerk of court shall notify the parties of the
5. Allow withdrawal of the appeal. receipt of the records.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

2. Appellant must file his appeal memorandum b. Introduction of additional evidence

within 15 days from receipt of the notice
" Briefly discuss the errors imputed to the
MTC
" Furnish adverse party a copy
" Failure to file shall warrant dismissal of the
appeal
3. Appellee may file memorandum within 15 days
from receipt of the appellant’s memorandum
4. Upon submission of appellee’s memorandum
or the lapse of the 15-day period within which
to file the same, the case shall be deemed
submitted for resolution
5. RTC to decide on the basis of—
" Entire record of the proceedings, and
" Memoranda filed
SEC. 9. Applicability of Rule 41.—The other
provisions of Rule 41 shall apply to appeals provided for
herein insofar as they are not inconsistent with or may
serve to supplement the provisions of this Rule.
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
SECTION 1. Subject of appeal. An appeal may
be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
No appeal may be taken from:

SEC. 8. Appeal from orders dismissing case a.
without trial; lack of jurisdiction.—If an appeal is
taken from an order of the lower court dismissing the b.
case without a trial on the merits, the Regional Trial c.
Court may affirm or reverse it, as the case may be. In d.
case of affirmance and the ground of dismissal is
lack of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction thereover, shall
try the case on the merits as if the case was originally e.
filed with it. In case of reversal, the case shall be f.
remanded for further proceedings.
If the case was tried on the merits by the lower
court without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss the g.
case if it has original jurisdiction thereof, but shall decide
the case in accordance with the preceding section,
without prejudice to the admission of amended
pleadings and additional evidence in the interest of aggrieved party may file an appropriate special civil
justice. action as provided in Rule 65.
An order denying a petition for relief or any
similar motion seeking relief from judgment;
An interlocutory order;
An order disallowing or dismissing an appeal;
An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or any
other ground vitiating consent;
An order of execution;
A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
An order dismissing an action without
prejudice.
In any of the foregoing circumstances, the

1. First situation: MTC dismisses a case on the 1. Take note that Rule 41 also applies to appealed
ground of lack of jurisdiction without trial on the cases from the MTC to the RTC, insofar as there
merits, and the losing party appeals to the RTC. are no conflicts.

# If the Order of Dismissal is correct, the RTC may 2. Item (a) has been omitted by the latest amendment:
either—
a. Affirm it, and order the dismissal of the case, or “xxx An order denying a motion for new trial or
b. Affirm it, but, if it has jurisdiction over the case, reconsideration; xxx”
try the case as if it was originally filed with it.
3. Only FINAL judgments or orders may be appealed,
# If the Order of Dismissal is wrong, the RTC should
as opposed to interlocutory judgments or orders (c),
order the remand of the case to the MTC and order
which may not be appealed.
the latter to proceed with the trial.
4. FINAL; meanings.
2. Second situation: MTC tries a case over which it
has no jurisdiction (over the subject matter) and the
Concept
same is appealed to the RTC.
It is already executory, It is not merely
# If the RTC has original jurisdiction, it should not which happens if there is interlocutory, which
no appeal taken happens if the final
dismiss the case, and should decide the case as if
it was originally filed with it. order/judgment completely
o In this case, the RTC shifts from its appellate to disposes of the case OR a
original jurisdiction; instead of outrightly particular matter therein
dismissing the appeal. and there is nothing more
o The purpose is to prevent double payment of for the court to do with
docket fees. respect to its merits
What rule to apply
# The RTC, in the interest of justice, may still allow Rule 39 Rule 41 (or rules on
the— appeals)
a. Admission of amended pleadings, and

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

5. Interlocutory order/judgment An order denying any Appeal from the judgment

– Something which does not completely dispose of “similar motion seeking of default
the action and there is still something for the court relief from judgment” (e.g.
to do after its rendition order denying a motion to
set aside the judgment of
# Examples: default)
1
a. A defendant files a motion to dismiss and it is An order disallowing or Mandamus – if appeal is
denied. The order denying the motion is dismissing an appeal on time
interlocutory (hence, not appealable) since, the
said defendant thereafter is still required to file his Petition for relief from
answer and so on. Meaning, the case before the judgment/order denying
court will still proceed. the appeal – if there is
FAME (rule 38, section 2)
b. A defendant files a motion to dismiss and it is An order denying a motion Annulment of judgment
granted. The order is already final and not merely to set aside a judgment by (Rule 47) alleging vice/s of
interlocutory, since it has already disposed of the consent, confession or consent
case and there is nothing left for the court to do. compromise
The plaintiff may appeal the case. Remedy against
compromise entered
c. In a case between A and B, C files a motion to through vitiated consent:
intervene, which is denied by the court. The order is 1. Motion to set
already final; hence, appealable. As far as the aside
rights of C are concerned, the court has nothing left 2. MR or MNT
to do. Take note that in this case, it is not the case 3. Relief from
which is appealed, but rather only a particular judgment
matter therein (whether or not C should be allowed 4. Annulment of
to intervene). judgment
An order of execution Certiorari (Rule 65) – if the
– The law actually does not prohibit appeal of an order of execution
interlocutory order/judgment. Only, he Separate changes the tenor of the
case for annulment of judgment cannot appeal it judgment upon which it is
immediately as he must wait for the decision of the based
court respecting the case.
Judgment or order where General Rule: No remedy.
there are several Pag-hulat. $
– Reasons for the prohibition: claims/parties,
o To avoid multiple appeals in one civil case counter/cross-claims and Exception: Appeal may
o To give the court time to realize its error and third-party complaints be allowed if the court
opportunity to correct it (partial summary allows an appeal
o The court still continues to try the case judgment) therefrom.
An order dismissing an Re-file
6. Day vs. RTC of Zamboanga: “An order which action without prejudice
decides an issue or issues in a complaint is final Certiorari (Rule 65)
and appealable, although the other issue or issues
have not been resolved, if the latter issues are
distinct and separate from the others.”
SEC. 2. Modes of appeal.—
7. Republic vs. Tacloban City Ice Plant: “A court
order is final in character if it puts an end to the (a) Ordinary appeal.—The appeal to the Court of
particular matter resolved or settles definitely the Appeals in cases decided by the Regional Trial Court in
matter therein disposed of, such that no further the exercise of its original jurisdiction shall be taken by
question can come before the court except the filing a notice of appeal with the court which rendered
execution of the order. Such an order or judgment the judgment or final order appealed from and serving a
may validly refer to the entire controversy or to copy thereof upon the adverse party. No record on
some definite and separate branch thereof.” appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where
the law or these Rules so require. In such cases, the
8. The following are UNAPPEALABLE: record on appeal shall be filed and served in like
Order that cannot be Proper remedy manner.
appealed
An order granting or Rule 65 (choose CPM) (b) Petition for review.—The appeal to the Court
denying a petition for relief of Appeals in cases decided by the Regional Trial Court
from judgment in the exercise of its appellate jurisdiction shall be by
petition for review in accordance with Rule 42.

                                                                                                                       
1 The court has a ministerial duty to give due course to the

appeal, if the same is filed on time.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

(c) Appeal by certiorari.—In all cases where only

questions of law are raised or involved, the appeal shall
be to the Supreme Court by petition for review on
certiorari in accordance with Rule 45.

1. ORDINARY APPEAL
– Mode of appeal used if the case is decided by 1. Interruption of the period to appeal; example.
either the MTC or RTC pursuant to its original
jurisdiction Consumed only 9 days, since
January 31 – receipt of
– “first appeal” – the case is originally filed in the MTC judgment
Feb. 10 is excluded (the day of
or RTC and the losing party wants to elevate the interruption of the reglementary
period)
case on appeal for the first time February 10 – filed MFR
– Governing rules are those under Rules 40 and 41
February 20 – receipt of The 15-day period is
– Record on appeal is required only in special
order of SUSPENDED.
proceedings or in cases where multiple appeals are
denial of MFR
allowed. The remaining 6 days is
counted from Feb. 21, which is
2. PETITION FOR REVIEW February 26 – last day to file the day after the notice of the
– Mode used if the case is decided by the RTC appeal cessation of the interruption.
pursuant to its appellate jurisdiction
– “second appeal” (MTC-RTC-CA)
– This is governed by Rule 42. However: TAKE NOTE OF NEYPES CASE. PERIOD
TO APPEAL IS NOW RECKONED FORM THE
3. APPEAL BY CERTIORARI RECEIPT OF THE ORDER DENYING THE MNT OR
– Mode used if only pure questions of law are raised MR!
– This is the only mode of appeal to the SC as the
latter, generally, cannot review factual errors. Civil Code
“Art. 13. xxx In computing a period, the first day
shall be excluded, and the last day included.”

Direct route to Rules of Court

Supreme Court SC is for purely “Rule 22, Sec. 2. Effect of interruption.—Should
legal questions
only an act be done which effectively interrupts the running
of the period, the allowable period after such interruption
Petition for review
on certiorari
RULE 45
x   shall start to run on the day after notice of the cessation
of the cause thereof.

The day of the act that caused the interruption

Petition for shall be excluded in the computation of the period.”
Court of Appeals review
RULE 43
2. Motion for extension of time to file a notice of
Petition for review Ordinary appeal
RULE 42 RULE 41 appeal is NOT allowed. The perfection of an appeal
Quasi-Judicial within the period and in the manner prescribed by
Regional Trial Court Bodies and law is jurisdictional and non-compliance with such
VAs legal requirements is fatal and has the effect of
Ordinary appeal rendering judgment final and executory.
RULE 40
x   3. Distinction.
MTC/MTCC/MCTC Rule 40 and 41 Rule 42
Ordinary Appeal Petition for Review
(1 step) (2 steps)
Effect of the filing of a motion for new trial or
SEC. 3. Period of ordinary appeal, appeal in reconsideration
habeas corpus cases.—The appeal shall be taken It shall interrupt the period There is no interruption.
within fifteen (15) days from notice of the judgment within which to file the BUT the reglementary
or final order appealed from. Where a record on appeal. period is re-set.
appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days When period to file appeal resumes
from notice of the judgment or final order. However, an It commences to run again Also the day after the
appeal in habeas corpus cases shall be taken within the day after the order of order of denial is received.
forty-eight (48) hours from notice of the judgment or final denial is received.
order appealed from.

The period of appeal shall be interrupted by a Remaining period after denial of MFNT/MFR
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.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

Remainder of the 15 days Fresh 15 days Material date rule

SEC. 5. Notice of appeal.—The notice of appeal
shall indicate the parties to the appeal, specify the
Extendibility judgment or final order or part thereof appealed
Non-extendible Extendible for another 15 from, specify the court to which the appeal is being
days (file motion for taken, and state the material dates showing the
2
extension with the CA) timeliness of the appeal .

SEC. 6. Record on appeal; form and contents

As to whether it may be entertained as a matter of
thereof.—The full names of all the parties to the
right
proceedings shall be stated in the caption of the record
So long as the docket fees Even if the fees are paid, on appeal and it shall include the judgment or final order
are fully paid, the appeal is the petition may still be from which the appeal is taken and, in chronological
entertained by the RTC or dismissed (discretionary) order, copies of only such pleadings, petitions, motions
the CA and all interlocutory orders as are related to the
appealed judgment or final order for the proper
4. Rubio vs. MTCC of CDO understanding of the issue involved, together with such
Facts: The court issued an interlocutory order. Two data as will show that the appeal was perfected on time.
months later, the party aggrieved by it filed an MFR. If an issue of fact is to be raised on appeal, the record
on appeal shall include by reference all the evidence,
Issue: Can the MFR be opposed on the ground that the testimonial and documentary, taken upon the issue
15-day period had already elapsed? involved. The reference shall specify the documentary
evidence by the exhibit numbers or letters by which it
Ruling: No. “The period subject to interruption by a was identified when admitted or offered at the hearing,
motion for reconsideration is the period to appeal. An and the testimonial evidence by the names of the
interlocutory order is not appealable. Accordingly, there corresponding witnesses. If the whole testimonial and
is no period to suspend or interrupt.” documentary evidence in the case is to be included, a
statement to that effect will be sufficient without
An interlocutory order cannot be appealed; hence, mentioning the names of the witnesses or the numbers
the 15-day period does not apply. The MFR may be filed or letters of exhibits. Every record on appeal exceeding
anytime for as long as the court still has jurisdiction over twenty (20) pages must contain a subject index.
the case.
1. Record on appeal
SEC. 4. Appellate court docket and other lawful – Practically a reproduction of all the pertinent
fees.— Within the period for taking an appeal, the pleadings and motions filed by the parties,
appellant shall pay to the clerk of the court which orders issued by the court and the final
rendered the judgment or final order appealed from, the judgment rendered by the court
full amount of the appellate court docket and other – The filing of the record on appeal without a
lawful fees. Proof of payment of said fees shall be notice of appeal will not warrant a dismissal of
transmitted to the appellate court together with the the case. The filing of the record on appeal is
original record or the record on appeal. more expressive of the desire of the party to
appeal. (Peralta vs. Solon)
" Distinction.
Rule 40 Rule 41 2. Distinction.
MTC to RTC RTC to CA Notice of Appeal Record on Appeal
Effect of non-payment of appeal fees etc The clerk of the court of The entirety of the records
during the appeal period origin transmits all the is not elevated as what is
Santos ruling: The Either the RTC or the CA records of the case to the transmitted is merely the
appeal may not be can dismiss the appeal, appellate court upon record on appeal
dismissed outrightly, depending on who has perfection of the appeal. submitted by an appellant.
unless the jurisdiction of custody of the records.
the court is affected. The Approval is not required It is required
clerk, however, can refuse
transmittal of the records
3. Form and contents of the record on appeal
to the RTC.
a. State the full names of all the parties in the
Payment is not a requisite It is a requisite under: caption
to perfect the appeal. - Rule 41, Sec. 13 and b. State the material dates
- Rule 50, Sec. 1. c. Include the following:
i. Judgment or final order appealed
NOTE: ii. Copies of only such pleadings, petitions,
1. Court has no obligation to notify appellant to motions and all interlocutory orders as
pay the docket fee. are related to the appealed judgment or
2. Party’s failure to pay the appellate court the final order
docket fee within the reg. period confers only a # Arrange these in chronological order.
DISCRETIONARY and not mandatory power to
dismiss the proposed appeal.                                                                                                                        
2 If the date of receipt of the order/decision is not stated, it is

presumed that the date when it was handed down is the date of receipt.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
d. If factual issues are raised, include by
reference all the evidence taken upon the issue
involved, to wit:
i. DOCUMENTARY EVIDENCE – specify
the exhibit numbers/letters used at the
time of admission or offer
ii. TESTIMONIAL EVIDENCE – specify the
names of the corresponding witnesses
# If the whole testimonial/documentary
evidence will be used, a statement to
that effect will suffice, without
mentioning the names of the witnesses
or the number/letters of the exhibits.
e. If the record on appeal exceeds 20 pages,
there must be a subject index.
4. Municipality of Biñan vs. Garcia
Facts: In an expropriation case against several
landowners, A filed a motion for separate trial. There
was a judgment in that separate trial.
Issue: Can A appeal? What are required?
Ruling: Yes, he may appeal as the order was already
final as against him. A notice of appeal and a record on
appeal are required in this case because the entire
records of the case cannot as yet be elevated on appeal
pending hearing of the other cases.
Issue: Suppose there was only one trial and there was a
decision. Will a record on appeal be required?
Ruling: No need. A notice of appeal will suffice because
there is only one decision and there are no more
proceedings in the trial court.
5. Roman Catholic Archbishop of Manila vs. Court
of Appeals (1996): “Multiple appeals are
allowed in:
a. Special proceedings;
b. Actions for recovery of property with
accounting;
c. Actions for partition of property with
accounting;
d. Special civil actions of eminent domain
(expropriation);
e. Special civil actions for foreclosure of
mortgage.”
Rationale behind allowing more than 1 appeal in same
case: enable the rest f the case to priceed in the event
that a separate and distinct case is resolved by the court
and held to be final.
NTOE: If you filed a record of appeal without a notice of
appeal, appeal should NOT be dismissed because filing
of the record on appeal is harder to comply.
SEC. 7. Approval of record on appeal —Upon
the filing of the record on appeal for approval and if no
objection is filed by the appellee within five (5) days
from receipt of a copy thereof, the trial court may
approve it as presented or upon its own motion or at the
instance of the appellee, may direct its amendment by
the inclusion of any omitted matters which are deemed
essential to the determination of the issue of law or fact
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Ateneo de Davao College of Law
involved in the appeal. If the trial court orders the
amendment of the record, the appellant, within the time
limited in the order, or such extension thereof as may be
granted, or if no time is fixed by the order within ten (10)
days from receipt thereof, shall redraft the record by
including therein, in their proper chronological
sequence, such additional matters as the court may
have directed him to incorporate, and shall thereupon
submit the redrafted record for approval, upon notice to
the appellee, in like manner as the original draft.
1. The appellee is given 5 days from receipt of the
copy of the record on appeal to file his objections.
Otherwise, the court may approve the same as
presented by the appellant.
2. The court may also motu propio direct its
amendment by the inclusion of any omitted matters
which are deemed essential to the determination of
the issue of law or fact involved in the appeal.
3. If the order to amend is silent, the appellant has 10
days to amend or re-draft.
Note: if the law requires you to file a record of appeal,
suchmust be approved by the court because the other
party is given the right to object your record on appeal.
Grounds for objections:
1. Necessary pleadings were not produced
2. ;ester the other party and just to block the
approval
SEC. 8. Joint record on appeal.—Where both
parties are appellants, they may file a joint record on
appeal within the time fixed by section 3 of this Rule, or
that fixed by the court.
" If both sides are appealing the case, they may file a
joint record on appeal. Hati sila sa gastos.
SEC. 9. Perfection of appeal; effect thereof—A
party’s appeal by notice of appeal is deemed perfected
as to him upon the filing of the notice of appeal in due
time.
A party’s appeal by record on appeal is deemed
perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal filed
in due time.
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time
to appeal of the other parties.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon the
approval of the records on appeal filed in due time and
the expiration of the time to appeal of the other parties.
In either case, prior to the transmittal of the original
record or the record on appeal, the court may issue
orders for the protection and preservation of the rights of
the parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
accordance with section 2 of Rule 39, and allow
withdrawal of the appeal.
1. There is a marked distinction between the following
questions—
How do you perfect an When is the appeal
appeal? deemed perfected?
This is answered by Sec. This is answered by Sec.
9, paragraphs 1 and 2. 9, paragraphs 3 and 4.
What “perfect” in the question means
It pertains to one It pertains to all the parties
party/side only; hence, the to the case; hence, the
use of the phrase “as to use of the phrases—
him” in the rules. #“upon the perfection of
the appeals filed in due
time,” and
#“the expiration of the
time to appeal of the
other parties.”
Effect on jurisdiction of the court of origin
Perfection of appeal by Perfection of appeals on
one party alone does not both sides divests the
necessarily mean that the court of origin of its
court now loses jurisdiction over the case.
jurisdiction (or that the Elevation of the court
“appeal is already deemed records is now proper.
perfected”). The appeal Exception: In cases
period also of the other where a record on appeal
party has to lapse first is required, approval of the
before case may be court must also be
elevated. obtained before elevation.
2. WHEN ONLY NOTICE OF APPEAL IS REQUIRED
a. How is the appeal perfected?
# As to the person filing, by his filing of a
notice of appeal within the 15-day period.
b. When is the appeal deemed perfected?
# Upon the perfection of the appeals filed in
due time and upon the expiration of the time
to appeal of the other parties.
3. WHEN A RECORD OF APPEAL IS ALSO
REQUIRED
a. How is the appeal perfected?
# As to the person filing, upon the approval of
the record on appeal.
b. When is the appeal deemed perfected?
# Upon the approval of the records on appeal
filed in due time and the expiration of the
time to appeal of the other parties.
" Look at the case from the viewpoint of
both parties.
" Otherwise, if it is only one party who has
perfected his appeal (e.g. by filing his
notice of appeal) and the other party’s
reglementary period has not yet lapsed,
the appeal can only be considered
perfected up to 50%; hence, it is not yet
ripe for elevation.
" The 15-day reglementary period of parties
is not the same since the final
order/judgment may not be received by
them on the same day.
4. Universal Far East Corp. vs. Court of Appeals
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Ateneo de Davao College of Law
Facts: Both parties received the decision on the same
date, March 31. A filed his notice of appeal on April 5.
On April 13, B filed a motion to execute pending appeal.
Issue: The court granted the motion to execute pending
appeal only on April 25 (way after the perfection of all
the parties’ appeals), can this be done?
Ruling: Yes. The important point is the date of filing.
Thus, even if the court acts beyond the 15-day period,
the order is still valid.
“It may be argued that the trial court should
dispose of the motion for execution within the
reglementary fifteen-day period. Such a rule would be
difficult, if not impossible, to follow. It would not be
pragmatic and expedient and could cause injustice.
The motion for execution has to be set for
hearing. The judgment debtor has to be heard. The
good reasons for execution pending appeal have to be
scrutinized. These things cannot be done within the
short period of fifteen days, or in this case, two days.”
5. So long as the records have not been elevated yet,
the following are the things which an RTC can do
even if technically it has lost jurisdiction over the
case:
a. To issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated in the
appeal;
b. To approve compromises between the parties;
c. To permit appeals to indigent parties;
d. To order executions pending appeal in
accordance with Rule 39, Sec. 2;
e. To allow the withdrawal of the appeal; and
f. To order the dismissal of an appeal under Rule
41, Sec. 13.
6. Parties can settle the case amicably despite the
fact that case is already on appeal. To appove ti,
trial court can still approve the same. Suppose
records are already transmitted to the CA, submit
the compromise agreement before the CA.
Administrative provisions
SEC. 10. Duty of clerk of court of the lower
court upon perfection of appeal.—Within thirty (30)
days after perfection of all the appeals in accordance
with the preceding section, it shall be the duty of the
clerk of court of the lower court:
(a) To verify the correctness of the original record
or the record on appeal, as the case may be, and to
make a certification of its correctness;
(b) To verify the completeness of the records that
will be transmitted to the appellate court;
(c) If found to be incomplete, to take such
measures as may be required to complete the records,
availing of the authority that he or the court may
exercise for this purpose; and
(d) To transmit the records to the appellate court.
 REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or
transcripts not included in the records being transmitted
to the appellate court, the reasons for their non-
transmittal, and the steps taken or that could be taken to
have them available.
The clerk of court shall furnish the parties with
copies of his letter of transmittal of the records to the
appellate court.
SEC. 11. Transcript.—Upon the perfection of the
appeal, the clerk shall immediately direct the
stenographers concerned to attach to the record of the
case five (5) copies of the transcripts of the testimonial
evidence referred to in the record on appeal. The
stenographers concerned shall transcribe such
testimonial evidence and shall prepare and affix to their
transcripts an index containing the names of the
witnesses and the pages wherein their testimonies are
found, and a list of the exhibits and the pages wherein
each of them appears to have been offered and
admitted or rejected by the trial court. The transcripts
shall be transmitted to the clerk of the trial court who
shall thereupon arrange the same in the order in which
the witnesses testified at the trial, and shall cause the
pages to be numbered consecutively.
SEC. 12. Transmittal.—The clerk of the trial court
shall transmit to the appellate court the original record or
the approved record on appeal within thirty (30) days
from the perfection of the appeal, together with the proof
of payment of the appellate court docket and other
lawful fees, a certified true copy of the minutes of the
proceedings, the order of approval, the certificate of
correctness, the original documentary evidence referred
to therein, and the original and three (3) copies of the
transcripts. Copies of the transcripts and certified true
copies of the documentary evidence shall remain in the
lower court for the examination of the parties.
SEC. 13. Dismissal of appeal.—Prior to the
transmittal of the original record or the record on appeal
to the appellate court, the trial court may motu proprio or
on motion dismiss the appeal for having been taken out
of time, or for non-payment of the docket and other
lawful fees within the reglementary period.
1. Grounds for dismissal of an appeal by an RTC:
a. Filed out of time,
b. Non-payment of docket fees within the
reglementary period.
The only condition for the exercise of the foregoing
power is that the records should still be with the RTC. It
may do so MOTU PROPRIO, even without motion or on
motion of the appelle.
2. The trial court has no power to say that the appeal is
dilatory. Such question can only be passed upon by
the appellate court. Otherwise, trial courts can easily
forestall review or reversal of their decisions no
matter how erroneous such decisions may be.
(Dasalla vs. Caluag, 1963)
On granting the motion for execution pending
appeal:
" Also, when the RTC is asked to pass upon the
question of whether or not a motion for
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
execution pending appeal should be granted
(Rule 39, Sec. 2) on the ground that the “appeal
is dilatory,” it cannot rule on the same.
" While it is not the appeal which is being
questioned but rather whether there is a ground
for execution pending appeal, still the RTC has
no jurisdiction to rule over the said issue as it
touches upon the question of whether the
appeal indeed is dilatory or not. The power
belongs to the CA.
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL
TRIAL COURTS TO THE COURT OF APPEALS
(appellate jurisdiction)
SECTION 1. How appeal taken; time for filing.—
A party desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of its
appellate jurisdiction may file a verified petition for
review with the Court of Appeals, paying at the same
time to the clerk of said court the corresponding docket
and other lawful fees, depositing the amount of P500.00
for costs, and furnishing the Regional Trial Court and
the adverse party with a copy of the petition. 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 petitioner’s motion for new trial or
reconsideration 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
Court of Appeals may grant an additional period of
fifteen (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
fifteen (15) days.
1. Do not presume that Rules 41 and 42 are identical.
Rule 41 is ordinary appeal from RTC to CA; notice
of appeal only. Rule 42! RTC acted in its appellate
jurisdiction. (MTC-RTC-CA). In rule 41, file notice of
appeal to RTC. In rule 42, file petition for review
with CA.
2. Petition for review
" This is the second mode of appeal to the CA.
" Availed of when the decision of the RTC was
rendered pursuant to the latter’s appellate
jurisdiction (2 steps)
" This must be verified and filed directly to the
CA. The docket fees must also be paid to the
CA.
" Furnish both the RTC and the adverse party
with copies of the petition.
" Period to file: 15 days from receipt of the
decision or order denying the MFR/MFNT. This
period is extendible for another 15 days,
provided the docket fees are paid.
" After that, no further extension may be granted,
EXCEPT for the most compelling reasons.
" Failure to verify! only a FORMAL defect. Cout
may order the correction of the pleading.
SEC. 2. Form and contents.—The petition shall
be filed in seven (7) legible copies, with the original copy
intended for the court being indicated as such by the
petitioner, and shall (a) state the full names of the
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

parties to the case, without impleading the lower courts for costs, proof of service of the petition, and the
or judges thereof either as petitioners or respondents; contents of and the documents which should
(b) indicate the specific material dates showing that it accompany the petition shall be sufficient ground for the
was filed on time; (c) set forth concisely a statement of dismissal thereof.
the maters involved, the issues raised, the specification
of errors of fact or law, or both, allegedly committed by SEC. 4. Action on the petition.—The Court of
the Regional Trial Court, and the reasons or arguments Appeals may require the respondent to file a comment
relied upon for the allowance of the appeal; (d) be on the petition, not a motion to dismiss, within ten (10)
accompanied by clearly legible duplicate originals or days from notice, or dismiss the petition if it finds the
true copies of the judgments or final orders of both lower same to be patently without merit, prosecuted manifestly
courts, certified correct by the clerk of court of the for delay, or that the questions raised therein are too
Regional Trial Court, the requisite number of plain unsubstantial to require consideration.
copies thereof and of the pleadings and other material
portions of the record as would support the allegations SEC. 5. Contents of comment.—The comment of
of the petition. the respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material
The petitioner shall also submit together with the portions of the record referred to therein together with
petition a certification under oath that he has not other supporting papers and shall (a) state whether or
theretofore commenced any other action involving the not he accepts the statement of matters involved in the
same issues in the Supreme Court, the Court of petition; (b) point out such insufficiencies or
Appeals or different divisions thereof, or any other inaccuracies as he believes exist in petitioner’s
tribunal or agency; if there is such other action or statement of matters involved but without repetition; and
proceeding, he must state the status of the same; and if (c) state the reasons why the petition should not be
he should thereafter learn that a similar action or given due course. A copy thereof shall be served on the
proceeding has been filed or is pending before the petitioner.
Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he SEC. 6. Due course.—If upon the filing of the
undertakes to promptly inform the aforesaid courts and comment or such other pleadings as the court may
other tribunal or agency thereof within five (5) days allow or require, or after the expiration of the period for
therefrom. the filing thereof without such comment or pleading
having been submitted, the Court of Appeals finds prima
1. Format: facie that the lower court has committed an error of fact
a. The RTC judge is not to be impleaded as a or law that will warrant a reversal or modification of the
party-defendant. This is only done in certiorari appealed decision, it may accordingly give due course
cases. to the petition.
b. State the full names of the parties either as
petitioners or respondents. SEC. 9. Submission for decision.—If the petition
c. State the material dates showing timeliness of is given due course, the Court of Appeals may set the
the appeal. case for oral argument or require the parties to submit
d. State briefly the facts, issue/s, errors imputed memoranda within a period of fifteen (15) days from
to the RTC (which may be both factual and notice. The case shall be deemed submitted for decision
3
legal ) and the arguments therefor upon the filing of the last pleading or memorandum
required by these Rules or by the court itself.
2. Other requirements:
a. Legible duplicate originals or true copies of the 1. The CA may:
judgments or final orders of both the MTC and a. Require the respondent to file his comment
the RTC, certified correct by the RTC clerk of (not a motion to dismiss), within 10 days from
court. notice, or
b. Certification against forum-shopping signed by
the petitioner himself (failure of which means b. Dismiss the petition if—
DISMISSAL of the case) i. Patently without merit,
c. Proof of service of the petition ii. Prosecuted manifestly for delay, or
d. The petition should be filed in 7 legible copies, iii. The questions raised are too
with the original copy intended for the CA. unsubstantial to require consideration.
3. Errors of fact, law or both can be raised. Usually,
if RTC decided it pursuant to tis original jurisdiction, 2. After receipt of the comment or if none is filed within
appeals on errors of law can be filed directly with the period given, the CA may give due course to
SC. But if appellate jurisdiction already, appeal the petition if:
should be to the CA. # It finds prima facie that the RTC has committed
an error of fact or law that will warrant a reversal
SEC. 3. Effect of failure to comply with or modification of the appealed decision.
requirements.—The failure of the petitioner to comply
with any of the foregoing requirements regarding the 3. After the petition is given due course, the CA may—
payment of the docket and other lawful fees, the deposit a. Require the parties to submit their respective
memoranda within 15 days from notice, or
                                                                                                                        b. Set the case for oral argument
3 Even if the question is purely of law, the petition should still be

filed with the CA because the RTC in this case decided the case based on its
appellate jurisdiction. Rule 45 is available only when the case is decided by
the RTC based on its original jurisdiction.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
4. The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum
required by these Rules or by the court itself.
SEC. 7. Elevation of record.—Whenever the
Court of Appeals deems it necessary, it may order the
clerk of court of the Regional Trial Court to elevate the
original record of the case including the oral and
documentary evidence within fifteen (15) days from
notice.
SEC. 8. Perfection of appeal; effect thereof. —
(a) Upon the timely filing of a petition for review
and the payment of the corresponding docket and other
lawful fees, the appeal is deemed perfected as to the
petitioner.
The Regional Trial Court loses jurisdiction over the
case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other
parties.
However, before the Court of Appeals gives due
course to the petition, the Regional Trial Court may
issue orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending
appeal in accordance with section 2 of Rule 39, and
allow withdrawal of the appeal.
(b) Except in civil cases decided under the Rule on
Summary Procedure, the appeal shall stay the judgment
or final order unless the Court of Appeals, the law, or
these Rules shall provide otherwise.
1. So long as the CA has not yet given due course to
the petition, the following are the things which an
RTC can do even if technically it has lost
jurisdiction over the case:
c. To issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated in the
appeal;
d. To approve compromises between the parties;
e. To permit appeals to indigent parties;
f. To order executions pending appeal in
accordance with Rule 39, Sec. 2; and
g. To allow the withdrawal of the appeal.
2. Take note that unlike in Rule 41, where the RTC
may dismiss an appeal on the ground of non-
payment of docket fees, Rule 42 does not give the
same power to the RTC. This is because the docket
and other lawful fees are paid directly to the CA and
not to the RTC.
3. General Rule: A petition for review shall stay the
execution of the decision.
Exceptions:
a. When the law, the ROC, or the CA provides
otherwise, and
b. When the civil case is decided under the Rule
on Summary Procedure (e.g. ejectment)
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Ateneo de Davao College of Law
RULE 43
APPEALS FROM THE (COURT OF TAX APPEALS
AND) QUASI-JUDICIAL AGENCIES TO THE COURT
OF APPEALS
SECTION 1. Scope.—This Rule shall apply to
appeals from judgments or final orders of the Court of
4
Tax Appeals and from awards, judgments, final orders
or resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals,
Securities and Exchange Commission, Office of the
President, Land Registration Authority, Social Security
Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board,
National Telecommunications Commission, Department
of Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and
voluntary arbitrators authorized by law.
SEC. 2. Cases not covered.—This Rule shall not
apply to judgments or final orders issued under the
Labor Code of the Philippines.
" Sec. 2 is deemed modified by the ruling in St.
Martin’s Funeral Home vs. NLRC. Labor cases
should now pass thru CA; hence, Rule 43 applies.
" SORIANO V. CABAIS! remedy of aggrieved
parties from resolution of the offie of the
ombudsmand:
1. Criminal cases or non-admin cases! when
tainted with grave abuse of discretion!
original action for certiorari with the SC
under rule 65.
2. Administrative cases! petition for review
with CA under rule 43
SEC. 3. Where to appeal.—An appeal under this
Rule may be taken to the Court of Appeals within the
period and in the manner herein provided, whether the
appeal involves questions of fact, of law, or mixed
questions of fact and law.
1. Issues that may be raised on appeal under Rule
43—
a. Purely errors of fact,
b. Purely errors of law, or
c. Mixed.
2. If the case is decided by a quasi-judicial body, even
purely legal questions may not be raised directly to
the Supreme Court, since Rule 43 provides for the
remedy.
3. This allowance for by-passing the CA (on purely
legal questions) applies only to decisions of
4 Please note the recent amendment to the law creating the
CTA. RA 9282. As it now stands, the CTA is a co-equal of the CA; hence,
cases decided by the CTA are no longer appealable to the CA. Follow Rule
45. ☺ Moreover, Central board of assessment appeals, now appealed to CTA
first.
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
RTCs, never to decisions of MTCs and quasi-
judicial bodies.
SEC. 4. Period of appeal.—The appeal shall be
taken within fifteen (15) days from notice of the award,
judgment, final order or resolution, or from the date of its
last publication, if publication is required by law for its
effectivity, or of the denial of petitioner’s motion for new
trial or reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only one (1)
motion for reconsideration shall be allowed. Upon
proper motion and the payment of the full amount of the
docket fee before the expiration of the reglementary
period, the Court of Appeals may grant an additional
period of fifteen (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 fifteen (15) days.
" The appeal should be filed within 15 days—
a. From notice of the award, judgment, final order
or resolution, or
b. From the date of its last publication, if
publication is required by law for its effectivity,
or
c. From the date of the denial of MFNT or MFR.
SEC. 5. How appeal taken.—Appeal shall be
taken by filing a verified petition for review in seven (7)
legible copies with the Court of Appeals, with proof of
service of a copy thereof on the adverse party and on
the court or agency a quo. The original copy of the
petition intended for the Court of Appeals shall be
indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall
pay to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the sum of
P500.00 for costs. Exemption from payment of
docketing and other lawful fees and the deposit for costs
may be granted by the Court of Appeals upon a verified
motion setting forth valid grounds therefor. If the Court
of Appeals denies the motion, the petitioner shall pay
the docketing and other lawful fees and deposit for costs
within fifteen (15) days from notice of the denial.
SEC. 6. Contents of the petition.—The petition
for review shall (a) state the full names of the parties to
the case, without impleading the court or agencies
either as petitioners or respondents; (b) contain a
concise statement of the facts and issues involved and
the grounds relied upon for the review; (c) be
accompanied by a clearly legible duplicate original or a
certified true copy of the award, judgment, final order or
resolution appealed from, together with certified true
copies of such material portions of the record referred to
therein and other supporting papers; and (d) contain a
sworn certification against forum shopping as provided
in the last paragraph of section 2, Rule 42. The petition
shall state the specific material dates showing that it
was filed within the period fixed herein.
SEC. 7. Effect of failure to comply with
requirements.—The failure of the petitioner to comply
with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit
for costs, proof of service of the petition, and the
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contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof.
SEC. 8. Action on the petition.—The Court of
Appeals may require the respondent to file a comment
on the petition, not a motion to dismiss, within ten (10)
days from notice, or dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly
for delay, or that the questions raised therein are too
unsubstantial to require consideration.
SEC. 9. Contents of comment.—The comment
shall be filed within ten (10) days from notice in seven
(7) legible copies and accompanied by clearly legible
certified true copies of such material portions of the
record referred to therein together with other supporting
papers. The comment shall (a) point out insufficiencies
or inaccuracies in petitioner’s statement of facts and
issues; and (b) state the reasons why the petition should
be denied or dismissed. A copy thereof shall be served
on the petitioner, and proof of such service shall be filed
with the Court of Appeals.
SEC. 10. Due course.—If upon the filing of the
comment or such other pleadings or documents as may
be required or allowed by the Court of Appeals or upon
the expiration of the period for the filing thereof, and on
the basis of the petition or the records the Court of
Appeals finds prima facie that the court or agency
concerned has committed errors of fact or law that
would warrant reversal or modification of the award,
judgment, final order or resolution sought to be
reviewed, it may give due course to the petition;
otherwise, it shall dismiss the same. The findings of fact
of the court or agency concerned, when supported by
substantial evidence, shall be binding on the Court of
Appeals.
" As a rule, the findings of fact of the court or agency
concerned, when supported by substantial
evidence, shall be binding on the CA. (Exceptions
are found in your Administrative Law)
" This provision does not appear in Rule 42, since
Rule 43 does not deal with civil cases.
SEC. 11. Transmittal of record.—Within fifteen
(15) days from notice that the petition has been given
due course, the Court of Appeals may require the court
or agency concerned to transmit the original or a legible
certified true copy of the entire record of the proceeding
under review. The record to be transmitted may be
abridged by agreement of all parties to the proceeding.
The Court of Appeals may require or permit subsequent
correction of or addition to the record.
SEC. 12. Effect of appeal—The appeal shall not
stay the award, judgment, final order of resolution
sought to be reviewed unless the Court of Appeals shall
direct otherwise upon such terms as it may deem just.
" General Rule: The award, judgment, final order of
resolution of the quasi-judicial body is immediately
executory.
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
Exception: If the CA shall direct stay of execution
pending appeal (upon such terms as it may deem
just).
SEC. 13. Submission for decision.—If the
petition is given due course, the Court of Appeals may
set the case for oral argument or require the parties to
submit memoranda within a period of fifteen (15) days
from notice. The case shall be deemed submitted for
decision upon the filing of the last pleading or
memorandum required by these Rules or by the Court
of Appeals.
PROCEDURE IN THE COURT OF APPEALS
RULE 44
ORDINARY APPEALED CASES
3. Procedure in the CA is likewise found in its Revised
Internal Rules of the Court of Appeals (RIRCA).
4. Rule 44 is merely a continuation of Rule 41 on
ordinary appeals (RTC to CA), where cases are
decided based on RTC’s original jurisdiction.
5. Recall that the last step under Rule 41 is—
SEC. 12. Transmittal.—The clerk of the
trial court shall transmit to the appellate court
the original record or the approved record on
appeal within thirty (30) days from the perfection
of the appeal, together with the proof of payment
of the appellate court docket and other lawful
fees, a certified true copy of the minutes of the
proceedings, the order of approval, the
certificate of correctness, the original
documentary evidence referred to therein, and
the original and three (3) copies of the
transcripts. Copies of the transcripts and
certified true copies of the documentary
evidence shall remain in the lower court for the
examination of the parties.
SECTION 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 the case shall be further referred
to as the appellant and the adverse party as the
appellee.
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.
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 thirty (30) days after the
perfection of the 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.
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" Remedy if within 30 days after the perfection of the
appeal the records have not been transmitted by
the RTC:
o Either party may file a motion for the transmittal
of the original records or record on appeal
o With notice to the adverse party.
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 ten (10) days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file with
the clerk of court seven (7) clearly legible copies of the
approved record on appeal, together with the proof of
service of two (2) copies thereof upon the appellee.
Any unauthorized alteration, omission or
addition in the approved record on appeal shall be a
ground for dismissal of the appeal.
" Procedure upon receipt of the record on appeal,
etc. by the CA clerk of court:
1. The clerk shall docket the case and notify the
parties of such receipt.
2. The appellant, within 10 days from notice, shall file
with the CA:
a. Seven (7) legible copies of the approved
record on appeal, and
b. Proof of service of 2 copies thereof upon the
appellee.
3. The appellant shall also serve 2 copies of the
approved record on appeal upon the appellee.
# NOTE THAT THE ABOVE PROCEDURE
APPLIES ONLY IF THE APPEAL REQUIRES A
RECORD ON APPEAL.
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 said court
and recommended 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.
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
causes, the court, on its own motion or on motion of any
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.
SEC. 7. Appellant’s brief.—It shall be the duty of
the appellant to file with the court, within forty-five (45)
days from receipt of the notice of the clerk that all the
evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten,
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
mimeographed or printed brief, with proof of service of
two (2) copies thereof upon the appellee.
SEC. 8. Appellee’s brief—Within forty-five (45)
days from receipt of the appellant’s brief, the appellee
shall file with the court seven (7) copies of his legibly
typewritten, mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the appellant.
SEC. 9. Appellant’s reply brief.—Within twenty
(20) days from receipt of the appellee’s brief, the
appellant may file a reply brief answering points in the
appellee’s brief not covered in his main brief.
SEC. 10. Time of filing 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 thirty (30) days from receipt of
the notice issued by the clerk that all the evidence, oral
and documentary, is already attached to the record.
The failure of the appellant to file his memorandum
within the period therefor may be a ground for dismissal
of the appeal.
1. Ordinary appealed cases
" 45 days to file appellant’s brief (extendible)
2. Special cases (certiorari, prohibition, mandamus,
quo warranto and habeas corpus cases)
" 30 days to file memorandum
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.
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.
SEC. 13. Contents of appellant’s brief.—The
appellant’s 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
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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 the facts
admitted by both parties and of those in controversy,
together with the substance of the 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 appellant’s
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 or judgment which the appellant seeks; and
(h) In cases not brought up by record on
appeal, the appellant’s brief shall contain, as an
appendix, a copy of the judgment or final order
appealed from.
SEC. 14. Contents of appellee’s brief.—The
appellee’s 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) Under the heading “Statement of Facts,” the
appellee shall state that he accepts the statement of
facts in the appellant’s brief, or under the heading
“Counter-Statement of Facts,” he shall point out such
insufficiencies or inaccuracies as he believes exist in the
appellant’s statement of facts with references to the
pages of the record in support thereof, but without
repetition of matters in the appellant’s 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.
Notes:
1. BRIEF! derived form latin word “brevis” and
French workd “brefie”! meaning short or
condensed statement.
2. Purpose: to present to court in concise form
the points and questions in controversy, and by
fair argument ont eh facts and law of the case,
to assist the corut to arrive at a just and fair
conclusion.
3. 45-day to file brief is EXTENDIBLE. File the
moiton for extension of time to file brief
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

BEFORE the expriation fo the time sought to

be extended.
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.
1. General Rule: An appellant cannot raise on appeal
any question that has not been raised in the lower
court and not within the issues framed by the
parties.
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.
1. Rule 45; names.
" Appeal by certiorari
" Petition for review on certiorari

Exception: Lack of jurisdiction 2. This is the ONLY mode of appeal to the SC from—
a. Court of Appeals
Exception: When estoppel b. Court of Tax Appeals (new)
sets in (Tijam vs. c. Sandiganbayan
Sibonghanoy) d. RTC
e. Other courts authorized by law
2. General Rule: When a winning party’s purpose is
to seek affirmation of the judgment on other 3. Distinction.
grounds not stated in the decision (Saenz vs. Question of Law Question of Fact
Mitchell), a mere assignment of errors will suffice. Issue
The law on a certain set of The truth or falsehood of
Exception: If a winning party thinks he is entitled facts alleged facts
for more (e.g. when he seeks modification of the Review of evidence
judgment), he must appeal the decision as a mere The case can be decided The case has to be
assignment of errors is not enough. without reviewing the resolved by going over the
evidence evidence
In other words:
GR: if winning party ka, appeal the decision if you think
4. Cunanan vs. Lazatin: The following are questions
you are entitled for more.
of law—
Exception: you may state assignment of errors ot
a. Construction or interpretation of documentary
support the decision—to support, not to change the
evidence,
decision. If gusto mo ma-change talaga! APPEAL.
b. The case submitted is based on an agreed
statement of facts,
RULE 45
c. All the facts are stated in the judgment and the
APPEAL BY CERTIORARI TO THE SUPREME
only issue is the correctness of the conclusion.
COURT
(CA-SC)
5. General Rule: Only questions of law may be raised
(since the CA’s findings of fact are final and
SECTION 1. Filing of petition with Supreme conclusive upon the SC).
Court. A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Exceptions:
Appeals, the Sandiganbayan, the Court of Tax Appeals, a. When the findings of fact are manifestly
the Regional Trial Court or other courts, whenever absurd, mistaken or impossible (Luna vs.
authorized by law, may file with the Supreme Court a Linatoc)
verified petition for review on certiorari. The petition b. When there is grave abuse of discretion in the
may include an application for a writ of preliminary appreciation of facts (Buyco vs. People)
injunction or other provisional remedies and shall raise c. When the findings are not supported by
only questions of law, which must be distinctly set forth. substantial evidence, but are based purely on
The petitioner may seek the same provisional remedies speculations, surmises and conjectures
by verified motion filed in the same action or (Joaquin vs. Navarro)
proceeding at any time during its pendency. d. When the judgment is premised on a
misappreciation of facts (Cruz vs. Sosing)
SEC. 2. Time for filing; extension.—The petition e. When the findings (of the lower courts) are
shall be filed within fifteen (15) days from notice of the conflicting (Cosico vs. Villaseca)
judgment or final order or resolution appealed from, or f. When the findings go beyond the issues and
of the denial of the petitioner’s motion for new trial or are contrary to the admission of the parties
reconsideration filed in due time after notice of the (Evangelista vs. Alto Surety)
judgment. On motion duly filed and served, with full g. When the findings are without citation of
payment of the docket and other lawful fees and the specific evidence in which they are based.
deposit for costs before the expiration of the
reglementary period, the Supreme Court may for 6. The petition must be verified.
justifiable reasons grant an extension of thirty (30) days
only within which to file the petition.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
7. General Rule: It must be filed within 15 days from
receipt of notice of the judgment/final
order/resolution appealed from, or of the denial of
the petitioner’s MFNT or MFR.
Exception: Within 30 days, upon grant of extension
and full payment of the docket fees
# The motion for extension must be filed within
the reglementary period.
8. Additional provisions under the amendments:
a. The petition may include an application for a
writ of preliminary injunction or other
provisional remedies.
b. The said provisional remedies may be sought
by verified motion at any time during the
pendency of the petition.
Note; FRESH PERIOD RULE OF NEYPES V. CA
applies to:
1. Rule 40—MTC to RTC
2. Rule 42—petitions for review from RTC to CA
3. Rule 45—appeals from quasi-judicial agencies
to the CA and
4. Rule 45—appeals by certiorari to SC
SEC. 4. Contents of petition—The petition shall
be filed in eighteen (18) copies, with the original copy
intended for the court being indicated as such by the
petitioner, and shall (a) state the full name of the
appealing party as the petitioner and the adverse party
as respondent, without impleading the lower courts or
judges thereof either as petitioners or respondents; (b)
indicate the material dates showing when notice of the
judgment or final order or resolution subject thereof was
received, when a motion for new trial or reconsideration,
if any, was filed and when notice of the denial thereof
was received; (c) set forth concisely a statement of the
matters involved, and the reasons or arguments relied
on for the allowance of the petition; (d) be accompanied
by 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; and
(e) contain a sworn certification against forum shopping
as provided in the last paragraph of section 2, Rule 42.
Notes:
1. Petition is filed with 18 copies because you do
not know whether your petition will be heard en
banc
2. Under rule 45, you do NOT implead the SB or
the CA. you only do that under rule 65.
3. Although courts not impleaded as respondents,
they must be furnished with a copy of the
petition so that they will not make an entry of
judgment since their decision is being
appealed.
4. There must be a CERTICIATION OF NON-
FORM SHOPPING
5. A certification signed by counsel is Defective. It
should be the party who should sign it. (FAR
EASTERN SHIPPING V. CA)
SEC. 5. Dismissal or denial of petition.—The
failure of the petitioner to comply with any of the
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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 Supreme Court may on its own initiative deny
the petition on the ground that the appeal is without
merit, or is prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to require
consideration.
# Grounds for dismissal of appeal
a. Under Rule 45, Sec. 5
" Failure to comply with the formal
requirements and non-payment of the
appeal fees within the reglementary period
" The appeal is without merit
" It is prosecuted manifestly for delay
" The questions raised therein are too
unsubstantial to require consideration
b. Under Rule 56, Sec. 5
" Failure to take the appeal within the
reglementary period
" Lack of merit in the petition
" Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs
" Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition
" Failure to comply with any circular,
directive or order of the Supreme Court
without justifiable cause
" Error in the choice or mode of appeal, and
" The case is not appealable to the
Supreme Court.
SEC. 6. Review 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 therefor. The following, while neither
controlling nor fully measuring the court’s discretion,
indicate the character of the reasons which will be
considered:
(a)When the court a quo has decided a question of
substance, not theretofore determined by the Supreme
Court, or has decided it in a way probably not in accord
with law or with the applicable decisions of the Supreme
Court; or
(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.
1. Review by the Supreme Court is discretionary.
Thus, even if there are no grounds for dismissal,
the Court is not obligated to entertain the appeal.
2. Encarnacion vs. Court of Appeals (1993): “In a
petition for review under Rule 45, Rules of Court,
invoking the usual reason, i.e., that the Court of
Appeals had decided a question of substance not in
accord with law or with applicable decisions of the
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
Supreme Court, a mere statement of the
ceremonial phrase is not sufficient to confer merit
on the petition. The petition must specify the law or
prevailing jurisprudence on the matter and the
particular ruling of the appellate court violative of
such law or previous doctrine laid down by the
Supreme Court.”
3. If the parties are asked to submit their memoranda,
it means that the Court is giving due course to the
petition and is going to deliberate on the case.
Otherwise, the petition will just be dismissed thru a
minute resolution.
4. Minute resolution – considered a judgment on the
merits; hence, it constitutes res adjudicata
5. Smith Bell and Co. vs. Court of Appeals (1991):
“This Court has discretion to decide whether a
‘minute resolution’ should be used in lieu of a full-
blown decision in any particular case and that a
minute Resolution of dismissal of a Petition for
Review on Certiorari constitutes an adjudication on
the merits of the controversy or subject matter of
the Petition.”
6. Under the present judicial system, a party is
allowed one appeal as a matter of right and the
second appeal as a matter of discretion. Example:
From the MTC to RTC, it is a matter of right. Then
from the RTC to CA, under Rule 42, it is
discretionary.
SEC. 7. Pleadings and documents that may be
required; sanctions.—For purposes of determining
whether the petition should be dismissed or denied
pursuant to section 5 of this Rule, or where the petition
is given due course under section 8 hereof, the
Supreme Court 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 non-filing or
unauthorized filing of such pleadings and documents or
noncompliance with the conditions thereof.
1. The Court may require or allow the filing of such
pleadings, briefs, memoranda or documents as it
may deem necessary in order to determine whether
to dismiss the petition or to give the same due
course.
2. Sanctions may be imposed on the following—
a. Non-filing and unauthorized filing of pleadings
and documents
b. Non-compliance with the conditions in the
Court’s order
SEC. 8. Due course; elevation of records.—If
the petition is given due course, the Supreme Court may
require the elevation of the complete record of the case
or specified parts thereof within fifteen (15) days from
notice.
SEC. 9. Rule applicable to both civil and
criminal cases.—The mode of appeal prescribed in this
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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.
" General Rule: RTC/CA/Sandiganbayan to
Supreme Court –Rule 45 whether it is a civil or
criminal case
Exception: In a criminal case where the penalty
imposed by the RTC is—
- (Death,)
- Reclusion perpetua, or
- Life imprisonment,
where the mode of appeal is an Ordinary Appeal
under Rule 41. This is a direct appeal to the SC by
simply filing a notice of appeal.
TIBLE AND TIBLE CO V. ROYAL SAVINGS AND
LOAN ASSN
April 8, 2008
Appeal and Certiorari Distinguished
Between an appeal and a petition for certiorari, there
are substantial distinctions which shall be explained
below.
As to the Purpose. Certiorari is a remedy designed for
the correction of errors of jurisdiction, not errors of
judgment. In Pure Foods Corporation v. NLRC, we
explained the simple reason for the rule in this light:
"When a court exercises its jurisdiction, an error
committed while so engaged does not deprive it of the
jurisdiction being exercised when the error is
committed. If it did, every error committed by a court
would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. This cannot be
allowed. The administration of justice would not survive
such a rule. Consequently, an error of judgment that
the court may commit in the exercise of its jurisdiction is
not correctable through the original civil action
of certiorari."
The supervisory jurisdiction of a court over the issuance
of a writ ofcertiorari cannot be exercised for the purpose
of reviewing the intrinsic correctness of a judgment of
the lower court - on the basis either of the law or the
facts of the case, or of the wisdom or legal soundness of
the decision. Even if the findings of the court are
incorrect, as long as it has jurisdiction over the case,
such correction is normally beyond the province
of certiorari. Where the error is not one of jurisdiction,
but of an error of law or fact - a mistake of judgment -
appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA
exercises its appellate jurisdiction and power of review.
Over a certiorari, the higher court uses its original
jurisdiction in accordance with its power of control and
supervision over the proceedings of lower courts. An
appeal is thus a continuation of the original suit, while a
petition for certiorari is an original and independent
action that was not part of the trial that had resulted in
the rendition of the judgment or order complained of.
The parties to an appeal are the original parties to the
action. In contrast, the parties to a petition
for certiorari are the aggrieved party (who thereby
becomes the petitioner) against the lower court or quasi-
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

judicial agency, and the prevailing parties (the public against judges and
and the private respondents, respectively). lawyers, cases against
ambassadors.
As to the Subject Matter. Only judgments or final
orders and those that the Rules of Court so declare are RULE 46
appealable. Since the issue is jurisdiction, an original ORIGINAL CASES in the Court of Appeals
action for certiorari may be directed against an
interlocutory order of the lower court prior to an appeal SECTION 1. Title of cases.—In all cases
from the judgment; or where there is no appeal or any originally filed in the Court of Appeals, the party
plain, speedy or adequate remedy. instituting the action shall be called the petitioner and
the opposing party the respondent.
As to the Period of Filing. Ordinary appeals should be
filed within fifteen days from the notice of judgment or SEC. 2. To what actions applicable.—This Rule
final order appealed from. Where a record on appeal is shall apply to original actions for certiorari, prohibition,
required, the appellant must file a notice of appeal and a mandamus and quo warranto.
record on appeal within thirty days from the said notice
of judgment or final order. A petition for review should Except as otherwise provided, the actions for
be filed and served within fifteen days from the notice of annulment of judgment shall be governed by Rule 47,
denial of the decision, or of the petitioner's timely filed for certiorari, prohibition and mandamus by Rule 65, and
motion for new trial or motion for reconsideration. In an for quo warranto by Rule 66.
appeal by certiorari, the petition should be filed also
within fifteen days from the notice of judgment or final 1. CA’s original jurisdiction; Legal basis; BP 129.
order, or of the denial of the petitioner's motion for new
trial or motion for reconsideration.
“Sec. 9. Jurisdiction.—The Court of Appeals shall
exercise:
On the other hand, a petition for certiorari should be
filed not later than sixty days from the notice of
(1) Original jurisdiction to issue writs of
judgment, order, or resolution. If a motion for new trial
mandamus, prohibition, certiorari, habeas corpus, and
or motion for reconsideration was timely filed, the period
quo warranto, and auxiliary writs or processes, whether
shall be counted from the denial of the motion.
or not in aid of its appellate jurisdiction;
As to the Need for a Motion for Reconsideration. A
(2) Exclusive original jurisdiction over actions for
motion for reconsideration is generally required prior to
annulment of judgments of Regional Trial Courts; xxx
the filing of a petition forcertiorari, in order to afford the
tribunal an opportunity to correct the alleged errors.
The Court of Appeals shall have the power to try
Note also that this motion is a plain and adequate
cases and conduct hearings, receive evidence and
remedy expressly available under the law. Such motion
perform any and all acts necessary to resolve factual
is not required before appealing a judgment or final
[17] issues raised in cases falling within its original and
order.
appellate jurisdiction, including the power to grant and
conduct new trials or further proceedings. Trials or
With these distinctions, it is plainly discernible why a
hearings in the Court of Appeals must be continuous
party is precluded from filing a petition
and must be completed within three (3) months, unless
for certiorari when appeal is available, or why the two
extended by the Chief Justice.”
remedies of appeal andcertiorari are mutually exclusive
[18]
and not alternative or successive. Where appeal is
available, certiorari will not prosper, even if the ground 2. Distinction.
availed of is grave abuse of discretion.
[ Rule 44 Rule 46
Exclusive appellate Concurrent original
OUTLINE OF THE RULES jurisdiction: jurisdiction:
- Cases decided by - Extraordinary writs (c.ref.
APPEALED A.TO THE CA: RTC Rules 65-66)
CASES 1. Petition for review (rules 42
& 43) Exclusive original jurisdiction:
2. Ordinary appeal (rule 44) - Annulment of RTC
judgments (c.ref. Rule 47)
B.TO THE SC
1. Appeal by certiorari (rule Appellant vs. Appellee Petitioner vs. Respondent
45)

ORIGINAL A.COURT OF APPEALS

CASES 2. Certiorari, prohibition,
mandamus, quo warranto
(rule 46)
3. Annulment of judgment
(rule 47)
B.SUPREME COURT
1. CPMQH, admin
SEC. 3. Contents and filing of petition; effect of
non-compliance with requirements.—The petition
shall contain the full names and actual addresses of all
the petitioners and respondents, a concise statement of
the matters involved, the factual background of the
case, and the grounds relied upon for the relief prayed
for.
cases

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
In actions filed under Rule 65, the petition shall
further indicate the material dates showing when notice
of the judgment or final order or resolution subject
thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of the
denial thereof was received.
It shall be filed in seven (7) clearly legible copies
together with proof of service thereof on the respondent
with the original copy intended for the court indicated as
such by the petitioner, and shall be accompanied by a
clearly legible duplicate original or certified true copy of
the judgment, order, resolution, or ruling subject thereof,
such material portions of the record as are referred to
therein, and other documents relevant or pertinent
thereto. The certification shall be accomplished by the
proper clerk of court or by his duly authorized
representative, or by the proper officer of the court,
tribunal, agency or office involved or by his duly
authorized representative. The other requisite number
of copies of the petition shall be accompanied by clearly
legible plain copies of all documents attached to the
original.
The petitioner shall also submit together with the
petition a sworn certification that he has not theretofore
commenced any other action involving the same issues
in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; 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 Supreme Court, the Court of
Appeals, or different divisions thereof, 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.
The petitioner shall pay the corresponding docket
and other lawful fees to the clerk of court and deposit
the amount of P500.00 for costs at the time of the filing
of the petition.
The failure of the petitioner to comply with any of
the foregoing requirements shall be sufficient ground for
the dismissal of the petition.
SEC. 4. Jurisdiction over person of
respondent, how acquired.—The court shall acquire
jurisdiction over the person of the respondent by the
service on him of its order or resolution indicating its
initial action on the petition or by his voluntary
submission to such jurisdiction.
SEC. 5. Action by the court.—The court may
dismiss the petition outright with specific reasons for
such dismissal or require the respondent to file a
comment on the same within ten (10) days from notice.
Only pleadings required by the court shall be allowed.
All other pleadings and papers, may be filed only with
leave of court.
SEC. 7. Effect of failure to file comment.—When
no comment is filed by any of the respondents, the case
may be decided on the basis of the record, without
prejudice to any disciplinary action which the court may
take against the disobedient party.
Page
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
1. Normally, upon the filing of the action, the petitioner
already furnishes the respondent with a copy of the
petition (re: proof of service). Then the CA may
either—
a. Dismiss the petition outright with specific
reasons therefor, or
b. Issue a resolution requiring the respondent to
comment within 10 days.
2. Effects of failure to file comment:
a. The case will be decided based on the record,
and
b. There may be disciplinary sanctions against
the disobedient party.
3. Except in the case of annulment of judgment, there
is no more need of summons because the copy of
the petition has already been served. So, the CA
acquires jurisdiction over the respondent—
a. By serving upon him a copy of the
order/resolution indicating its initial action, or
b. By his voluntary submission to such
jurisdiction.
4. General Rule: Only pleadings required by the CA
may be filed.
Exception: With leave of court
SEC. 6. Determination of factual issues—
Whenever necessary to resolve factual issues, the court
itself may conduct hearings thereon or delegate the
reception of the evidence on such issues to any of its
members or to an appropriate court, agency or office.
" Determination of factual issues is done by the CA
itself.
" But reception of evidence may be delegated to—
o Any of its members,
o An appropriate court, agency or office.
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL ORDERS
AND RESOLUTIONS of the RTC
SECTION 1. Coverage.—This Rule shall govern
the annulment by the Court of Appeals of judgments or
final orders and resolutions in civil actions of Regional
Trial Courts for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies
are no longer available through no fault of the petitioner.
1. Annulment of judgment – a remedy against a
judgment which is already final and executory,
where the remedies of new trial, appeal, petition for
relief and other remedies are already lost
2. Distinction.
Appeal Annulment of judgment
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

The judgment appealed The judgment is being
from is valid and the asked to be declared void.
appellant is not asking its
declaration of nullity.
3. Requisites to avail of the remedy:
a. There is a judgment/final order or resolution in
a civil action,
b. Which was rendered by an RTC,
c. The ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies
are no longer available, and
d. The petitioner is without fault.
4. PADUA V. CA! Rule 47 may be availed of against
final judgments and orders either by RTC in civil
actions or MTC. Hwoever, final judgments of quasi-
judicial tribunals such as NLRC, Ombudsman, CSC
, OP, order of the DAR secretary are beyond the
reach of Rule 47.
SEC. 2. Grounds for annulment.—The
annulment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction.
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.
1. Grounds; The judgment is void because of—
a. EXTRINSIC FRAUD
" This ground cannot be used if, it was availed of or
could have been availed of, in a MFNT or petition
for relief.
Ruling: Yes. “Emanating as it did from a void
compromise agreement, the trial court had no
jurisdiction to render a judgment based thereon.
The highly reprehensible conduct of attorney-
in-fact in the civil case constituted an extrinsic or
collateral fraud by reason of which the judgment
rendered thereon should have been struck down.
Thus, completely unaware of its agent’s
artifice, petitioner was not accorded even a fighting
chance to repudiate the settlement so much so that the
judgment based thereon became final and executory.
Fraud may assume different shapes and be
committed in as many different ways and here lies the
danger of attempting to define fraud. For man, in his
ingenuity and fertile imagination, will always contrive
new schemes to fool the unwary.”
b. JUDGMENT IS VOID FOR LACK OF
JURISDICTION
" Note that where there is lack of due process, lack of
jurisdiction also results; hence, the judgment is
void.
" Manner of attacking a void judgment:
1. DIRECT ATTACK
- this is done where the judgment is void,
whether on its face or not
- file an action to declare the nullity of the
judgment (e.g. Rule 47)
2. COLLATERAL ATTACK
- this may be done only if the judgment is void
on its face
- there is no need to file a case because the
nullity may be invoked anytime

notes:
1. when judgment N/v on its fce, file a direct
" Distinction.
action to annul under rule 447 or attack
Extrinsic Fraud Intrinsic Fraud collaterally. On the latter, hayaan mo lang;
Fraud done by the Fraud which was an issue raise the issue during execution. If you move
adverse party which in the litigation, e.g. for execution, I will oppose raising lack of
prevented a party from perjury, false testimony, jurisdiction.
having a trial or from concealment of evidentiary 2. But if judgment’s nullity is INTRINSIC! file a
presenting his case fully. facts, but did not prevent direct action for its annulment which must be
the party from presenting done BEFORE the action is barred by laches
his case or estoppel.
3. Certiorari is also a ground for attacking a
judgment.
A ground for annulment of Not so
judgment " Distinction.
Rule 47 Rule 65
Annulment of Judgment Certiorari
" Cosmic Lumber Corp. vs. Court of Appeals
While both are methods of attacking a void judgment,
(1996)
they differ in the following aspects—
Facts: An agent was tasked to evict the squatters in the
principal’s land by filing an ejectment case. While Grounds
pending, the agent concluded a compromise agreement Extrinsic fraud, lack of Lack of jurisdiction, excess
with the squatters, without the principal’s knowledge. It jurisdiction of jurisdiction, grave abuse
was approved by the court. of discretion

Issue: Can the judgment based on the compromise Time within which to file
agreement be annulled by the CA, where the fraud was
inflicted by the agent and not by the adverse parties?

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

Fraud – 4 years 60 days only judgment, but that could be barred by laches or
Lack of jurisdiction – estoppel.
anytime before
laches/estoppel sets in
What are attacked SEC. 4. Filing and contents of petition.—The
Final judgments Normally, interlocutory action shall be commenced by filing a verified petition
orders alleging therein with particularity the facts and the law
relied upon for annulment, as well as those supporting
the petitioner’s good and substantial cause of action or
BAYOG V. NATINO: it is a settled rule that a final and
defense, as the case may be.
executory judgment may be set aside in 3 ways:
1. By petition for relief from judgment under urle
The petition shall be filed in seven (7) clearly
38
legible copies, together with sufficient copies
2. When judgment is void for want of jurisdiction,
corresponding to the number of respondents. A certified
by direct attack, certiorari, annulment of
true copy of the judgment or final order or resolution
judgment or by collateral attack and shall be attached to the original copy of the petition
3. When judgment obtained by fraud and rule 38 intended for the court and indicated as such by the
cannot be applied anymore.
petitioner.
" Islamic Davao Counsel vs. Court of Appeals: “A
The petitioner shall also submit together with the
person who is not a part of the judgment may sue 6
petition affidavits of witnesses or documents supporting
for its annulment, provided he can prove that—
the cause of action or defense and a sworn certification
o The judgment was obtained thru fraud and
that he has not theretofore commenced any other action
collusion, and involving the same issues in the Supreme Court, the
o He would be adversely affected thereby.” Court of Appeals or different divisions thereof, or any
5 other tribunal or agency; if there is such other action or
- If the judgment had been fully executed and proceeding, he must state the status of the same, and if
implemented, the execution may also be he should thereafter learn that a similar action or
annulled. proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different
- If no execution yet, the proper remedy normally divisions thereof, or any other tribunal or agency, he
is to file an action for annulment with prayer for undertakes to promptly inform the aforesaid courts and
the issuance of a writ of preliminary injunction. other tribunal or agency thereof within five (5) days
therefrom.
2. SUMMARY OF REMEDIES OF A DEFENDANT
DECLARED IN DEFAULT SEC. 5. Action by the court.—Should the court
Remedy Ground/s find no substantial merit in the petition, the same may
Pending trial be dismissed outright with specific reasons for such
Motion to lift order of FAME dismissal.
default [Rule 9, Sec. 3(b)]
Judgment not yet final Should prima facie merit be found in the petition,
Motion for new trial [Rule FAME the same shall be given due course and summons shall
37] be served on the respondent.
Appeal [Rules 40-41] Default judgment is
" Upon receipt, the CA may—
contrary to law or
a. DISMISS the petition outright with specific
evidence
reasons therefor (if there is no substantial
Judgment final merit), or
Petition for relief [Rule 38] FAME
b. GIVE DUE COURSE to the petition and
Annulment of judgment Extrinsic fraud summons shall be served upon the respondent
[Rule 47] (if there is prima facie merit).
Certiorari [Rule 65] Lack or excess of
jurisdiction or grave abuse Note: under rule 47, summons will be served. Unlike in
of discretion rule 46, no summons duon.

SEC. 6. Procedure.—The procedure in ordinary

SEC. 3. Period for filing action.—If based on civil cases shall be observed. Should a trial be
extrinsic fraud, the action must be filed within four (4) necessary, the reception of the evidence may be
years from its discovery; and if based on lack of referred to a member of the court or a judge of a
jurisdiction, before it is barred by laches or estoppel. Regional Trial Court.

SEC. 7. Effect of judgment.—A judgment of

" Note that under Art. 1144 of the Civil Code: The
annulment shall set aside the questioned judgment or
period is really 10 years for any action on a
final order or resolution and render the same null and

                                                                                                                       
                                                                                                                        6 Affidavit of merits (c.ref. Rule 37, Sec. 2 and Rule 38, Sec.3)
5 See Rule 47, Sec. 9.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

void, without prejudice to the original action being re-
filed in the proper court. However, 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.
" Effects of judgment of annulment:
1. If based on lack of jurisdiction—
a. Questioned judgment, final order, or
resolution is SET ASIDE and declared null
and void
b. The original action may be re-filed in the
proper court.
jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions; xxx”
GRANDE V. UP! Rule 47 does not govern jurisdiction
to annul judgment of the CA by the supreme court. It
does not pertain to nullification of decisions of CA but
only in civil actions of RTC.
RULE 48
PRELIMINARY CONFERENCE
This is like a pre-trial in the CA. purpose is the same
with rule 18 on pre-trial.

2. If based on extrinsic fraud— SECTION 1. Preliminary conference.—At any

a. The court, on motion, may order the trial time during the pendency of a case, the court may call
court to try the case as if a timely MFNT the parties and their counsel to a preliminary
had been granted. conference.

SEC. 8. Suspension of prescriptive period.— (a) To consider the possibility of an amicable

The prescriptive period for the re-filing of the aforesaid settlement, except when the case is not allowed by law
original action shall be deemed suspended from the to be compromised;
filing of said original action until the finality of the
judgment of annulment. However, the prescriptive (b) To define, simplify and clarify the issues for
period shall not be suspended where the extrinsic fraud determination;
is attributable to the plaintiff in the original action.
(c) To formulate stipulations of facts and
" General Rule: The prescriptive period for re-filing admissions of documentary exhibits, limit the number of
the original action is deemed SUSPENDED from witnesses to be presented in cases falling within the
the filing of the suit for annulment of judgment until original jurisdiction of the court, or those within its
the finality of the judgment of annulment. appellate jurisdiction where a motion for new trial is
granted on the ground of newly discovered evidence;
Exception: and
It is not suspended if the extrinsic fraud is
attributable to the plaintiff in the original action. (d) To take up such other matters which may aid
the court in the prompt disposition of the case. (Rule 7,
SEC. 9. Relief available.—The judgment of CA Internal Rules)
annulment may include the award of damages,
attorney’s fees and other relief. SEC. 2. Record of the conference.—The
proceedings at such conference shall be recorded and,
If the questioned judgment or final order or upon the conclusion thereof, a resolution shall be issued
resolution had already been executed, the court may embodying all the actions taken therein, the stipulations
issue such orders of restitution or other relief as justice and admissions made, and the issues defined.
and equity may warrant under the circumstances.
SEC. 3. Binding effect of the results of the
conference.—Subject to such modifications which may
SEC. 10. Annulment of judgments or final
be made to prevent manifest injustice, the resolution in
orders of Municipal Trial Courts.—An action to annul
the preceding section shall control the subsequent
a judgment or final order of a Municipal Trial Court shall
proceedings in the case unless, within five (5) days from
be filed in the Regional Trial Court having jurisdiction
notice thereof, any party shall satisfactorily show valid
over the former. It shall be treated as an ordinary civil
cause why the same should not be followed.
action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall
be applicable thereto.
" Distinction.
Pre-trial conference Preliminary conference
Annulment of judgment of MTC fall under the
"
Rule 18 Rule 48
jurisdiction of the RTC.
" This provision finds basis in Sec. 19 [1] and [6] of Trial courts CA
B.P. 129. They provide— Mandatory Optional
Sec. 19. Jurisdiction in Civil Cases.—Regional It is the plaintiff who has It is discretionary upon the
Trial Courts shall exercise exclusive original jurisdiction: the duty to move ex parte court to call for a
that the conference be set conference at any time
(1) In all civil actions in which the subject of the prior to the trial. during the pendency of the
litigation is incapable of pecuniary estimation; case.
xxx Failure to appear shall Failure to appear shall
cause the dismissal of the cause the dismissal of the
(6) In all cases not within the exclusive jurisdiction of case with prejudice, appeal or original action.
any court, tribunal, person or body exercising unless otherwise directed

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
by the court.
RULE 49
ORAL ARGUMENT
SECTION 1. When allowed.—At its own instance
or upon motion of a party, the court may hear the parties
in oral argument on the merits of a case, or on any
material incident in connection therewith.
The oral argument shall be limited to such matters
as the court may specify in its order of resolution.
SEC. 2. Conduct of oral argument—Unless
authorized by the court, only one counsel may argue for
a party. The duration allowed for each party, the
sequence of the argumentation, and all other related
matters shall be as directed by the court.
SEC. 3. No hearing or oral argument for
motions.—Motions shall not be set for hearing and,
unless the court otherwise directs, no hearing or oral
argument shall be allowed in support thereof. The
adverse party may file objections to the motion within
five (5) days from service, upon the expiration of which
such motion shall be deemed submitted for resolution.
" Distinction between Motions filed in the RTC and
CA
In the trial courts In the CA
Rule 15 Rule 49
Requires a notice of No need
hearing attached to the
moiton; otherwise, it will
be denied
As a rule, a written motion Heard only when the court
is required to be heard directs it
GENERAL CREDIT V. ALSONS DEVELOPMENT!
CA may deny a motion for oral argument. It is not a
violation of appellant’s right to due process.
Basis; CA INTERNAL RULES; appellate corut may tap
any of the 3 alternatives provided to aid corut in
resolving appealed cases before it:
1. It may rely on available records alone
2. Require the submission of memoranda or
3. Set the case for oral argument.
RULE 50
DISMISSAL OF APPEAL in the CA
SECTION 1. Grounds for dismissal of appeal—
An appeal may be dismissed by the Court of Appeals,
on its own motion or on that of the 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 or the record
on appeal within the period prescribed by these Rules;
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
(c) Failure of the appellant to pay the docket and
other lawful fees as provided in section 4 of Rule 41;
(d) Unauthorized alterations, omissions 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
appellant’s 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 order or judgment appealed from is
not appealable.
4. Material date rule (appeal filed on time but record
on appeal does nto show that it was filed on time)
- The record on appeal must show on its face
that the appeal was filed on time.
- State the date of the decision and the date of
the receipt thereof; otherwise, it will be
presumed that the date of the decision is the
date of receipt.
- It is possible that the appeal was filed on time
but it was not stated explicitly; thus,
dismissible.
5. Filed out of time
- This ground may be raised even in the trial
court level.
- Failure to raise this ground in the trial court
level will not even put the appellee in estoppel.
When raised in the CA, this becomes a
jurisdictional challenge because at that point,
the lower court decision shall have become
final and executory. A decision that has
become final can no longer be changed by the
CA; hence, the latter has no jurisdiction to
entertain the appeal.
6. Failure to pay the docket and other fees
- If RTC to CA! within the 15 day period, pay
the docket fee in the rTC clerk of court. If not, it
is a ground for dismissal. (Rule 41, section 4)
- Rule 40, section 5! failure to pay appeal fee in
the MTC before transmitting to the RTC! not a
ground for dismissal by the CA. wala man ang
kaso sa kanila!
7. Unauthorized alterations in the approved record
on appeal
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
- When record on appeal is approved, you have
to reproduce it and you are not allowed to
make alterations, etc.
8. Failure to file and serve the required number of
copies of appellant’s brief or memorandum
- Failure to file brief of APPELLEE!case will
NOT be dismissed but the case be submitted
for decision without the appellee’s brief. CA will
make resolution that case was submitted
without the appellee’s brief.
9. Failure to comply with the formal requirements
(e.g. assignment of errors, page references etc.)
" Del Rosario vs. Court of Appeals(1995):
“Petitioner’s plea for liberality in applying these
rules in preparing Appellant’s brief does not
deserve any sympathy. Long ingrained in our
jurisprudence is the rule that the right to appeal is a
statutory right and a party who seeks to avail of the
right must faithfully comply with the rules.
Deviations from the rules cannot be tolerated. The
rationale for this strict attitude is not difficult to
appreciate. These rules are designed to facilitate
the orderly disposition of appealed cases. In an age
where courts are bedevilled by clogged dockets,
these rules need to be followed by appellants with
greater fidelity. Their observance cannot be left to
the whims and caprices of appellants.”
10. Failure to make the necessary corrections on
the record within the required period
11. Failure to appear at the preliminary conference
and to comply with the court’s orders without
justifiable cause
12. The order/judgment appealed from is not
appealable.
“Rule 41, Sec. 1. Subject of appeal. xxx
No appeal may be taken from:
(a) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other
ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or more
of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
(g) An order dismissing an action without prejudice.
xxx"
# A default judgment is appealable because it is
a final judgment and not merely interlocutory.
# MINDANAO SAVIGNS V. VDA DE FLORES:
1. Failure to file notice of appeal on time!
court has no jurisdiction over appeal
2. Failure to file brief! abandonment of
appeal leading to dismissal.
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
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.
1. Appeal to the right court and using the correct
mode of appeal; otherwise, it shall be dismissed.
2. Under the old rules, when an appeal appears to be
only concerned with pure questions of law, the CA
will not dismiss the appeal but rather just transfer it
to the SC. But in the case of Morillo vs. Consul, it
was ruled—
“There is no longer any justification for allowing
transfers of erroneous appeals from one court to
the other, much less for tolerating continued
ignorance of the law on appeals.”
SEC. 3. Withdrawal of appeal.—An appeal may
be withdrawn as of right at any time before the filing of
the appellee’s brief. Thereafter, the withdrawal may be
allowed in the discretion of the court.
1. You can withdraw the appeal in the RTC
level! prior to transmittal of the original record
or the record on appeal.
2. Where to file:
a. RTC! if records are still in the RTC
b. CA! if records already with CA.
File it at ANYTIME BEFORE FILING OF
APPELLEE’S BRIEF! withdrawal is a matter
of right. If may appellee’s brief na, it can be
allowed in the discretion of the court.
RULE 51
JUDGMENT
SECTION 1. When case deemed submitted for
judgment.—A case shall be deemed submitted for
judgment:
A. In ordinary appeals.—
1) 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.
2) Where such a 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.—
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
1) Where no comment is filed, upon the expiration
of the period to comment.
2) Where no hearing is held, upon the filing of the
last pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
3) Where a hearing on the merits of the main case
is held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of the
period for its filing.
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.
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 all
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 Rule and the concurrence of a
majority of such division shall be required for the
pronouncement of a judgment or final resolution.
" Procedure
1. The case will be assigned to a division of 3 justices.
2. The 3 will deliberate on the merits on the case.
3. A unanimous vote is required to arrive at a
decision.
4. If unanimity is not reached, the clerk shall enter the
dissenting votes in the record.
5. The division chairman shall refer the case and the
minutes of the deliberation to the Presiding Justice.
6. The Presiding Justice shall choose 2 other justices
by raffling to sit temporarily with the 3; hence,
forming a special division of 5.
7. A majority of the 5 shall be required to arrive at a
decision.
8. After the deliberation, the writing of the decision
shall be assigned to a member therein.
SEC. 4. Disposition of a case.—The Court of
Appeals, 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. 5. Form of decision.—Every decision or
final resolution of the court in appealed cases shall
clearly and distinctly state the findings of fact and the
conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
adopted from those set forth in the decision, order, or
resolution appealed from.
1. Every decision or resolution of a court shall clearly
and distinctly state the facts and the law upon
which it is based. This rule applies to all courts.
2. Effect of failure to follow the rule: The judgment
is called a SIN PERJUICIO JUDGMENT, which is
void.
3. Manner of compliance with the rule:
a. The CA may state the facts and the law in the
decision/resolution itself, or
b. It may adopt those set forth in the
decision/order/resolution appealed from
(MEMORANDUM DECISION).
4. On memorandum decisions, the SC said in the
case of Francisco vs. Permskul—
“The Court finds it necessary to emphasize that the
memorandum decision should be sparingly used
lest it becomes an addictive excuse for judicial
sloth. It is an additional condition for its validity that
this kind of decision may be resorted to only in
cases where the facts are in the main accepted by
both parties or easily determinable by the judge and
there are no doctrinal complications involved that
will require an extended discussion of the laws
involved. The memorandum decision may be
employed in simple litigations only, such as
ordinary collection cases, where the appeal is
obviously groundless and deserves no more than
the time needed to dismiss it.”
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 proceeding must disregard any error or
defect which does not affect the substantial rights of the
parties.
# General Rule: The CA must DISREGARD any
error or defect in the appealed decision/order,
which does not affect the substantial rights of the
parties. (HARMLESS ERRORS)
" Non-correctible errors of the trial court:
a. Admission or the exclusion of evidence,
and
b. Error or defect in any ruling/order or in
anything done or omitted by the trial court
or by any of the parties
Exception: Where the refusal to take such action
appears to the court inconsistent with substantial
justice
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,
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

and reversed as to others, and the case shall thereafter in modern-day procedure is to accord the courts
be proceeded with, so far as necessary, as if separate broad discretionary power such that the appellate
actions had been begun and prosecuted; and execution court may consider matters bearing on the issues
of the judgment of affirmance may be had accordingly, submitted for resolution which the parties failed to
and costs may be adjudged in such cases, as the court raise or which the lower court ignored.
shall deem proper.
Technicality should not be allowed to stand in the
1. General Rule: An appeal by one party will not way of equitably and completely resolving the rights
benefit his co-parties, and the judgment becomes and obligations of the parties.”
final as to his co-parties who did not join the appeal
(even if the appealed judgment is wrong). b. Plain errors

Exception: When the liabilities of the parties are so " PRINCIPLES

intertwined that it would be absurd that one of them 1. It is the appellant who assigns errors.
will win and the other/s will lose 2. The appellee does not assign errors EXCEPT
if his purpose is to sustain or defend the
8
2. Universal Motors Corp. vs. Court of Appeals decision on another ground .
(1992): “It is erroneous to rule that the decision of 3. Otherwise, if the appellee also wants to change
the trial court could be reversed as to the appealing the decision, then he must also appeal and
private respondent and continue in force against make his own assignment of errors.
the other private respondents. The latter could not
remain bound after the former had been released; " Santos vs. Court of Appeals (1993):
although the other private respondents had not Issue: Can an appellate court pass upon a matter which
joined in the appeal, the decision rendered by the is neither raised by the parties?
respondent court inured to their benefit. When the
obligation of the other solidary debtors is so Ruling: Yes. It is true that the rule is well-settled that a
dependent on that of their co-solidary debtor, the party cannot impugn the correctness of a judgment not
release of the one who appealed, provided it be not appealed from by him, and while he may make counter-
on grounds personal to such appealing private assignment of errors, he can do so only to sustain the
respondent, operates as well as to the others who judgment on other grounds but not to seek modification
did not appeal. It is for this reason, that a decision or reversal thereof for in such a case he must appeal. A
or judgment in favor of the private respondent who party who does not appeal from the decision may not
appealed can be invoked as res judicata by the obtain any affirmative relief from the appellate court
other private respondents.” other than what he has obtained from the lower court, if
any, whose decision is brought up on appeal.
3. Cayaba vs. Court of Appeals (1993): “A reversal HOWEVER, the Rules of Court and jurisprudence
of a judgment on appeal is binding on the parties to authorize a tribunal to consider errors, although
the suit but does not inure to the benefit of the unassigned, if they involve
parties who did not join in the appeal (as a general (1) errors affecting the lower court's jurisdiction
rule). The recognized exception is when their rights over the subject matter,
and liabilities and those of the parties appealing are (2) plain errors not specified, and
so interwoven and dependent so as to be (3) clerical errors.”
inseparable, in which case a reversal as to one
operates as a reversal to all.” c. Clerical errors

SEC. 8. Questions that may be decided.—No d. Unassigned errors but which are closely related
error which does not affect the jurisdiction over the to or dependent on an assigned error
subject matter or the validity of the judgment appealed
from or the proceedings therein will be considered " Abejaron vs. Court of Appeals(1992): “An
unless stated in the assignment of errors, or closely unassigned error closely related to the error
related to or dependent on an assigned error and properly assigned, or upon which the determination
properly argued in the brief, save as the court may pass of the question raised by the error properly
upon plain errors and clerical errors. assigned is dependent, will be considered by the
appellate court notwithstanding the failure to assign
# General Rule: Only errors which are stated in the it as error.
7
appellant’s brief should be considered.
While an assignment of error which is required by
Exceptions: law or rules of court has been held essential to
appellate review, and only those assigned will be
a. Jurisdiction over the subject matter of the case considered, there are a number of cases which
appear to accord to the appellate court a broad
" Casa Filipino Royalty Corp. vs. Office of the discretionary power to waive this lack of proper
President (1995): “While the rule is that no error assignment of errors and consider errors not
which does not affect jurisdiction will be considered assigned.”
unless stated in the assignment of errors, the trend

                                                                                                                                                                                                                                               
This is just an extension of the rule that objections and defenses
7 8 This happens when a party agrees with a decision, but not with

not pleaded are deemed waived. its reason. In which case, he also makes a counter-assignment of errors.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
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.
SEC. 10. Entry of judgments and final
resolutions.—If no appeal or motion for new trial or
reconsideration is filed within the time provided in these
Rules, the judgment or final resolution shall forthwith be
entered by the clerk in the book of entries of judgments.
The date when the judgment or final resolution
becomes executory shall be deemed as the date of
its entry. The record shall contain the dispositive part
of the judgment or final resolution and shall be signed
by the clerk, with a certificate that such judgment or final
resolution has become final and executory.
SEC. 11. Execution of judgment.— Except
where the judgment or final order or resolution, or a
portion thereof, is ordered to be immediately executory,
the motion for its execution may only be filed in the
proper court after its entry.
In original actions in the Court of Appeals, its writ
of execution shall be accompanied by a certified true
copy of the entry of judgment or final resolution and
addressed to any appropriate officer for its enforcement.
In appealed cases, where the motion for execution
pending appeal is filed in the Court of Appeals at a time
that it is in possession of the original record or the
record on appeal, the resolution granting such motion
shall be transmitted to the lower court from which the
case originated, together with a certified true copy of the
judgment or final order to be executed, with a directive
for such court of origin to issue the proper writ for its
enforcement.
1. Original actions in the CA
- The writ of execution shall be accompanied by
a certified true copy of the entry of judgment or
final resolution and addressed to any
appropriate officer for its enforcement.
2. Appealed cases
a. Executions pending appeal
- If the motion for execution pending appeal is
filed with the court of origin (even prior to the
end of the reglementary period to appeal), the
said court may grant the same and issue the
writ. (Rule 39, Sec. 2)
- If the motion for execution pending appeal is
filed with the CA, the Resolution granting it
shall be transmitted to the court of origin. Then
the lower court issues the writ.
- NOTE THAT IN THESE CASES THE CA
NEVER ISSUES THE WRIT.
b. Execution after finality of judgment
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
- General Rule: The motion for its execution
may only be filed in the proper court after its
entry (not in the CA).
*There is no need to wait for the records to be
returned to the court of origin. The basis is—
Rule 39, Sec. 1, par. 2. “xxx If the appeal has
been duly perfected and finally resolved, the execution
may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or
final order or orders sought to be enforced and of the
entry thereof, with notice to the adverse party.
Exception: Where the judgment or final order
or resolution, or a portion thereof, is ordered to
be immediately executory
RULE 52
MOTION FOR RECONSIDERATION in the CA
SECTION 1. Period for filing.—A party may file a
motion for reconsideration of a judgment or final
resolution within fifteen (15) days from notice thereof,
with proof of service on the adverse party. (you can file
MR of a CA decision)
SEC. 2. Second motion for reconsideration.—
No second motion for reconsideration of a judgment or
final resolution by the same party shall be entertained.
SEC. 3. Resolution of motion.—In the Court of
Appeals, a motion for reconsideration shall be resolved
within ninety (90) days from, the date when the
court declares it submitted for resolution.
SEC. 4. Stay of execution.—The pendency of a
motion for reconsideration filed on time and by the
proper party shall stay the execution of the judgment or
final resolution sought to be reconsidered unless the
court, for good reasons, shall otherwise direct.
RULE 53
NEW TRIAL in the CA
SECTION 1. Period for filing; ground.—At any
time after the appeal from the lower court has been
perfected and before the Court of Appeals loses
jurisdiction over the case, a party may file a motion for a
new trial on the ground of newly discovered evidence
which could not have been discovered prior to the trial in
the court below by the exercise of due diligence and
which is of such a character as would probably change
the result. The motion shall be accompanied by
affidavits showing the facts constituting the grounds
therefor and the newly discovered evidence.
1. Distinction.
Rule 37: In the trial Rule 53: In the CA
courts
Grounds
FAME; newly discovered Newly discovered
evidence evidence
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

Period for resolution RULE 55

30 days from the time it is 90 days from the time it is PUBLICATION OF JUDGMENTS AND FINAL
submitted for resolution submitted for resolution RESOLUTIONS

2. Navarra vs. Court of Appeals: The Rules of Court
allows only two (2) occasions where a party may
file a motion for new trial on the ground of newly
discovered evidence. That motion may be filed only
with the trial court under Rule 37 or with the CA
under Rule 52 but never with the SC.
“Time and again, We have stressed that the SC is
not a trier of facts. It is not a function of the SC to
analyze or weigh all over again the evidence
already considered in the proceedings below. Its
jurisdiction is limited to reviewing only errors of law
that may have been committed by the lower courts.”
SEC. 2. Hearing and order.—The Court of
Appeals shall consider the new evidence together with
that adduced at the trial below, and may grant or refuse
a new trial, or may make such order, with notice to both
parties, as to the taking of further testimony, either orally
in court, or by depositions, or render such other
judgment as ought to be rendered upon such terms as it
may deem just.
SEC. 3. Resolution of motion—In the Court of
Appeals, a motion for new trial shall be resolved within
ninety (90) days from the date when the court declares it
submitted for resolution.
SEC. 4. Procedure in new trial—Unless the court
otherwise directs, the procedure in the new trial shall be
the same as that granted by a Regional Trial Court.
SECTION 1. Publication.—The judgments and
final resolutions of the court shall be published in the
Official Gazette and in the Reports officially authorized
by the court in the language in which they have been
originally written, together with the syllabi therefor
prepared by the reporter in consultation with the writers
thereof. Memoranda of all other judgments and final
resolutions not so published shall be made by the
reporter and published in the Official Gazette and the
authorized reports.
SEC. 2. Preparation of opinions for
publication.—The reporter shall prepare and publish
with each reported judgment and final resolution a
concise synopsis of the facts necessary for a clear
understanding of the case, the names of counsel, the
material and controverted points involved, the
authorities cited therein, and a syllabus which shall be
confined to points of law.
SEC. 3. General make-up of volumes.—The
published decisions and final resolutions of the
Supreme Court shall be called “Philippine Reports,”
while those of the Court of Appeals shall be known as
the “Court of Appeals Reports.” Each volume thereof
shall contain a table of the cases reported and the
cases cited in the opinions, with a complete alphabetical
index of the subject matters of the volume. It shall
consist of not less than seven hundred, pages printed
upon good paper, well bound and numbered
consecutively in the order of the volumes published.

Under section 4, CA can receive evidence and act as a Powers of the functions of the SC:
trial court. It can conduct the new trial itself. 1. ADJUDICATION
a. Action
RULE 54 1.1. Civil—ordinary or special
INTERNAL BUSINESS 1.2. Criminal
b. Special proceeding
SECTION 1. Distribution of cases among
divisions.—All the cases of the Court of Appeals shall 3. DISCIPLINE
be allotted among the different divisions thereof for a. Judges/court employees
hearing and decision. The Court of Appeals, sitting en b. Lawyers (disbarment)
banc, shall make proper orders or rules to govern the
allotment of cases among the different divisions, the 4. RULE-MAKING
constitution of such divisions, the regular rotation of a. Rules of court
Justices among them, the filing of vacancies occurring b. Others: circulars/directives
therein, and other matters relating to the business of the
court; and such rules shall continue in force until PROCEDURE IN THE SUPREME
repealed or altered by it or by the Supreme Court. COURT
SEC. 2. Quorum of the court.—A majority of the RULE 56
actual members of the court shall constitute a quorum ORIGINAL AND APPEALED CASES
for its sessions en banc. Three members shall
constitute a quorum for the sessions of a division. The A. Original Cases
affirmative votes of the majority of the members present
shall be necessary to pass a resolution of the court en
SECTION 1. Original cases cognizable.—Only
banc. The affirmative votes of three members of a
petitions for certiorari, prohibition, mandamus, quo
division shall be necessary for the pronouncement of a
warranto, habeas corpus, disciplinary proceedings
judgment or final resolution, which shall be reached in
against members of the judiciary and attorneys, and
consultation before the writing of the opinion by any
cases affecting ambassadors, other public ministers and
member of the division.
consuls may be filed originally in the Supreme Court.

SUPREME CORUT ORIGINAL JURISDICTION:

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

A. Concurrent original
a. Certiorari
b. Prohibition
c. Mandamus
d. Quo warranto
e. Habeas corpus
f. Cases affecting ambassadors and
consuls (RTC)
g. (writ of amparo)
B. EXCLUSIVE ORIGINAL
c. Discipline of court personnel
d. Discipline of lawyers
e. As electoral tribunal, Prsidential and
VP election contests
f. Challenges to declaration of martial
law and suspension of the privilege of
habeas corpus
SEC. 2. Rules applicable.—The procedure in
original cases for certiorari, prohibition, mandamus, quo
warranto and habeas corpus shall be in accordance with
the applicable provisions of the Constitution, laws, and
Rules 46, 48, 49, 51, 52 and this Rule, subject to the
following provisions:
a) All references in said Rules to the Court of
Appeals shall be understood to also apply to the
Supreme Court;
b) The portions of said Rules dealing strictly with
and specifically intended for appealed cases in the
Court of Appeals shall not be applicable; and
c) Eighteen (18) clearly legible copies of the
petition shall be filed, together with proof of service on
all adverse parties.
The proceedings for disciplinary action against
members of the judiciary shall be governed by the laws
and Rules prescribed therefor, and those against
attorneys by Rule 139-B, as amended.
1. First filing – 18 copies (minimum)
2. Subsequent pleadings – depending on whether the
case is heard en banc (18 copies) or by division (9
copies)
B. Appealed Cases
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.
" A petition for review on certiorari under Rule 45 is
the only mode of appeal to the SC.
(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.
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 fact are involved
shall be final.
" Distinction.
Rule 50, Sec. 2 Rule 56, Sec. 6
CA SC
Effect of appeal erroneously taken
If only legal questions are If there are factual
raised, it is dismissed questions raised in the
outright. petition for review (on
certiorari), the SC may or
may not dismiss the
appeal.
It will not be endorsed to If not dismissed, it may be
the SC. referred to the CA.
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.

SEC. 4. Procedure.—The appeal shall be 1. Sec. 7 applies to either hearing by division or en

governed by and disposed of in accordance with the banc, where the majority/necessary vote cannot be
applicable provisions of the Constitution, laws, Rules 45, reached.
48, sections 1, 2, and 5 to 11 of Rule 51, 52 and this
Rule. 2. Original cases
a. First deliberation – re-deliberate
SEC. 5. Grounds for dismissal of appeal.—The b. Second deliberation – if still no majority vote is
appeal may be dismissed motu proprio or on motion of reached, the case is DISMISSED
the respondent on the following grounds:

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

3. Appealed cases
1991 Revised Rule on
a. First deliberation – re-deliberate
Summary Procedure for
b. Second deliberation – if still no majority vote is
Municipal Trial Courts
reached, the appealed case is AFFIRMED

4. All other incidental matters

a. First deliberation – re-deliberate " The cases covered are no longer governed by the
b. Second deliberation – if still no majority vote is ROC. The latter only applies in a suppletory
reached, the petition/motion is DENIED capacity insofar as they are not inconsistent with
each other.
5. The following are the cases that are heard en banc: " This Rule (no “s” ☺) took effect on November 15,
a. Cases in which the constitutionality or validity 1991.
of any treaty, international or executive
agreement, law, executive order, presidential RULE I
decree, proclamation, order, instruction, APPLICABILITY
ordinance or regulation is in question
Section 1. Scope.—This rule shall govern the
b. Criminal cases where the penalty imposed is summary procedure in the Metropolitan Trial courts, the
9
death , where a change of venue is required to Municipal Trial Courts in Cities, the Municipal Trial
avoid miscarriage of justice Courts, and the Municipal Circuit Trial Courts in the
following cases falling within their jurisdiction :
c. Cases raising novel questions of law
A. Civil Cases:
d. Cases affecting ambassadors, other public (1) All cases of forcible entry and unlawful
ministers or consuls detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered. Where attorney’s
e. Decisions, resolutions or orders of the fees are awarded, the same shall not exceed twenty
COMELEC, COA, Ombudsman, thousand pesos (P20,000.00).
Sandiganbayan in administrative disciplinary
cases (2) All other cases, except probate proceedings,
where the total amount of the plaintiff’s claim does not
f. Cases in which the penalty involved is exceed One hundred thousand pesos (P100,000.00) or
dismissal of the judge, officer or employee of Two hundred thousand pesos (P200,000.00) in
the judiciary; disbarment of a lawyer; or even Metropolitan Manila, exclusive of interest and costs (as
suspension of any of them for a period of more of 2002). xxx
than 1 year or fine exceeding P10,000
This Rule shall not apply to a civil case where the
g. Cases where a doctrine laid down by the Court plaintiff’s cause of action is pleaded in the same
(division/en banc) may be modified or reversed complaint with another cause of action subject to the
ordinary procedure; xxx”
h. Cases assigned in a division which, in the
opinion of at least 3 members thereof, merit the 1. The ROSP applies only to MTC, MCTC, MTCC and
attention of the Court en banc, and which is MeTCs, never to the RTC.
acceptable to the majority of the actual
members of the Court en banc 2. It applies only to certain types of cases in the MTC
etc. So, some cases in the MTC are still governed
i. All other cases as the Court en banc, by its by the regular rules.
majority of actual members, may deem of
sufficient importance to merit its attention 3. Cases covered:
a. All forcible entry and unlawful detainer cases, no
6. BAR QUESTION: A lost in an appealed decision. exceptions.
He filed an MFR insisting that the same be heard
by the Court en banc. Can he insist that his MFR be b. All other civil cases where the claim does not
heard en banc, when he lost in a division? exceed P100,00.00 or P200,00.00, as the case
may be, except probate proceedings.
NO. The SC en banc is not a separate court
from any of its divisions. The proper remedy is to 4. The ROSP shall not apply where the plaintiff’s
convince the division to refer the matter to the Court cause of action is pleaded with another cause of
en banc and to convince the majority of the latter to action covered by the regular rules.
accept it. ☺
Rule 2, SEC. 5. Joinder of causes of action.—A
party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have
against an opposing party, subject to the following
conditions: xxx

                                                                                                                        (b)The joinder shall not include special civil

9 Reclusion perpetua is not heard en banc. actions or actions governed by special rules;

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

may in its discretion reduce the amount of damages and

(c)Where the causes of action are between the attorney’s fees claimed for being excessive or otherwise
same parties but pertain to different venues or unconscionable. This is without prejudice to the
jurisdictions, the joinder may be allowed in the Regional applicability of Section 4, Rule 18 of the Rules of Court,
Trial Court provided one of the causes of action falls if there are two or more defendants.
within the jurisdiction of said court and the venue lies
therein xxx” 1. Distinction.
ROSP Regular Rules
It is the court’s duty to look There is no such duty.
Sec. 2. Determination of applicability.—Upon for grounds for dismissal at
the filing of a civil or criminal action, the court shall issue the onset.
an order declaring whether or not the case shall be Hence, the court may As a rule, the court cannot
governed by this Rule. dismiss the complaint dismiss the case without a
outright even without any motion to dismiss from the
A patently erroneous determination to avoid the motion from the defendant. defendant.
application of the Rule of Summary Procedure is a
ground for disciplinary action.
Summons is served only Summons is served
when it cannot find any immediately upon the
" Procedure:
ground for dismissing the filing of the complaint and
a. Upon the filing of the complaint, the court shall
complaint. upon payment of the filing
determine whether it is covered by the ROSP
fees.
or not.
b. It shall then issue an order indicating its 10 days to answer 15 days to answer
determination. If no answer, the plaintiff If there is no answer, the
should not move that the defendant may be
defendant be declared in declared in default.
Sec. 3. Pleadings.— default. Rather, he should
A. Pleadings, allowed.—The only pleadings file a motion for immediate
allowed to be filed are the complaints, compulsory decision.
counterclaims and cross-claims pleaded in the answer,
However, in case there are several defendants, the
and the answers thereto.
answer of one benefits all. (Rule 9, Sec. 3(c)) In effect,
there can be no partial default.
B. Verification.—All pleadings shall be verified.
If there is no answer, there is no presentation of
" Permissive counter-claim, reply, third-party evidence ex parte. The court shall decide based on the
complaint, intervention, etc. are prohibited. complaint.

Sec. 4. Duty of court.—After the court determines
that the case falls under summary procedure, it may,
from an examination of the allegations therein and such
evidence as may be attached thereto, dismiss the case
outright on any of the grounds apparent therefrom for
the dismissal of a civil action.
If no ground for dismissal is found it shall forthwith
issue summons which shall state that the summary
procedure under this Rule shall apply.
Sec. 5. Answer.—Within ten (10) days from
service of summons, the defendant shall file his answer
to the complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except for lack of
jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer
shall be considered barred. The answer to
counterclaims or cross-claims shall be filed and served
within ten (10) days from service of the answer in which
they are pleaded.
Sec. 6. Effect of Failure to answer.—Should the
defendant fail to answer the complaint within the period
above provided, the court, motu propio, or on motion of
the plaintiff, shall render judgment as may be warranted
by the facts alleged in the complaint and limited to what
is prayed for therein: Provided, however, That the court
However, under the ROC, the court may still require the
presentation of evidence ex parte. (optional)
The court may award Award of damages shall
damages even without not exceed the amount or
trial, but it may reduce be different from that
whatever is pleaded for prayed for.
being excessive or
unconscionable.
Sec. 7. Preliminary conference; appearance of
parties.—Not later than thirty (30) days after the last
answer is filed, a preliminary conference shall be held.
The rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the
dismissal of his complaint. The defendant who appears
in the absence of the plaintiff shall be entitled to
judgment on his counterclaim in accordance with
Section 6 hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff
shall be entitled to judgment in accordance with Section
6 hereof. This Rule shall not apply where one of two or
more defendants sued under a common cause of action
who had pleaded a common defense shall appear at the
preliminary conference.

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REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO
Sec. 8. Record of preliminary conference.—
Within five (5) days after the termination of the
preliminary conference, the court shall issue an order
stating the matters taken up therein, including but not
limited to:
a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
b) The stipulations or admissions entered into by
the parties;
c) Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of further
proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the
order;
d) A clear specification of material facts which
remain controverted;
e) Such other matters intended to expedite the
disposition of the case.
2. A preliminary conference is similar to a pre-trial,
and thereafter, the court also issues a pre-trial
order.
Sec. 9. Submission of affidavits and position
papers.—Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties
shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order,
together with their position papers setting forth the law
and the facts relied upon by them.
Sec. 10. Rendition of judgment.—Within thirty
(30) days after receipt of the last affidavits and position
papers, or the expiration of the period for filing the
same, the court shall render judgment.
However should the court find it necessary to
clarify certain material facts, it may, during the said
period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or
other evidence on the said matters within ten (10) days
from receipt of said order. Judgment shall be rendered
within fifteen (15) days after the receipt of the last
clarificatory affidavits, or the expiration of the period for
filing the same.
The court shall not resort to the clarificatory
procedure to gain time for the rendition of the judgment.
1. This is the deviation from the ordinary rules. After
receipt of the pre-trial order, the parties are required
to submit within 10 days their respective position
papers.
2. There is no more trial and the case shall be decided
based on affidavits (similar to Summary Judgment
under Rule 35).
3. If the affidavits are not clear, clarificatory affidavits
shall be required.
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RIZADA, RESCI ANGELLI
Ateneo de Davao College of Law
4. Bayubay vs. Court of Appeals (1993)
Issue: After the preliminary conference, the judge
immediately rendered judgment. In effect, he skipped
Sections 8 and 9 of the Rule. Can this be done?
Ruling: NO. The order is an important part of the
summary procedure because it is its receipt by the
parties that begins the ten-day period to submit the
affidavits and other evidence mentioned in Section 9.
In this case, there was no order to this effect
nor was there an indication of when the position papers
were to be submitted for the purpose of discussing the
factual questions raised. While the municipal judge may
be commended for his zeal in speeding up the
resolution of the case, he nevertheless cannot be
sustained for his non-observance of the Rule on
Summary Procedure.
5. Rural Bank of Malalag vs. Maniwang (1994)
Facts: The plaintiff filed its position paper, while the
defendants did not.
The judge denied the plaintiff's motion to resolve
arguing that there was a need to conduct “a hearing’ in
order to resolve the factual issues.
Ruling: Section 10 cannot be applied without complying
with Section 9.
“It is clear from said provisions, that a court cannot
resort to "clarificatory procedure," when the parties fail
to submit their affidavits and position paper as required
by Section 9 of the Rule.
It is only after evaluating the affidavits and position
papers submitted by the parties that the court can
determine whether he should resort to the "clarificatory
procedure" provided in Section 10 of the Rule.
If any of the parties fail to submit their evidence
and position paper within the reglementary period, the
court cannot thereby set the "clarificatory procedure"
into motion. Otherwise, a party can derail the
proceedings and defeat the purpose of the summary
procedure by not filing the affidavits of his witnesses
and his position paper, thus forcing the court to resort to
said procedure.”
There is nothing to clarify under Section 10, if
there are no affidavits filed by the parties. ☺
Sec.18 Referral to Lupon.—Cases requiring
referral to the Lupon for conciliation under the provisions
of Presidential Decree No. 1508 (now, RA 7160) where
there is no showing of compliance with such
requirement, shall be dismissed without prejudice and
may be revived only after such requirement shall have
been complied with. This provision shall not apply to
criminal cases where the accused was arrested without
a warrant.
1. Effects of non-referral to Lupon:
a. Case shall be dismissed without prejudice
b. May be re-filed only after compliance thereto
REVIEWER FOR CIVIL PROCEDURE –FINAL EXAM RIZADA, RESCI ANGELLI
Prof: ATTY. MELISSA SUAREZ/ DEAN HILDEGARDO INIGO Ateneo de Davao College of Law

2. This covers only those which require referral to the

Lupon under RA 7160. 4. Motion for extension of time to file pleadings,
affidavits or papers – periods are non-extendible

Sec. 19. Prohibited pleadings and motions.—
The following pleadings, motions or petitions shall not
be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the
complaint or information except on the ground of lack of
jurisdiction over the subject matter, or failure to comply
with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints;
(l) Interventions.
1. Motion to dismiss
" As a rule, the grounds for dismissal should be
invoked as affirmative defenses in the answer, and
not in a motion to dismiss.
Exceptions:
i. Lack of jurisdiction over the subject matter,
ii. Failure to refer case to the Lupon.
" Heirs of Ricardo Olivas vs. Flor (1988)
Issue: The defendant filed his answer. Then later, he
filed a motion to dismiss, in the guise of a position
paper. Can this be done?
Ruling: Yes. “While this is, indeed, a prohibited pleading
it should be noted that the Motion was filed after an
Answer had already been submitted within the
reglementary period.
In essence, therefore, it is not the pleading
prohibited by the Rule on Summary Procedure. What
the Rule proscribes is a Motion to Dismiss, which would
stop the running of the period to file an Answer and
cause undue delay.”
5. Memoranda – state the arguments in the position
paper
6. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court
7. Motion to declare the defendant in default – the
proper remedy is to file a motion for immediate
judgment
8. Dilatory motions for postponement
9. Reply, third-party complaints, interventions
Sec. 20. Affidavits.—The affidavits required to be
submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible
in evidence, and shall show their competence to testify
to the matters stated therein.
A violation of this requirement may subject the
party or the counsel who submits the same to
disciplinary action, and shall be cause to expunge the
inadmissible affidavit or portion thereof from the record.
Sec. 21. Appeal.—The judgment or final order
shall be appealable to the appropriate Regional Trial
Court which shall decide the same in accordance with
Section 22 of Batas Pambansa Blg. 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.
1. The decision of the MTC is appealable to the RTC.
2. The RTC decision is immediately executory, without
prejudice to any appeal that may be taken
therefrom.
3. Remedy to stay the execution of the RTC decision:
File a TRO or injunction with the CA, not a motion
to stay the execution

The motion to dismiss prohibited under the ROSP

is one which is filed in lieu of an answer because with
that the defendant succeeds in delaying the filing of an
answer.

2. Motion for a bill of particulars – the proper remedy

is to file an unclear answer..hehe ☺

3. Motion for new trial/reconsideration of a judgment,

or for reopening of trial, or petition for relief from
judgment

" The proper remedy is to appeal immediately.

" If the court issues an interlocutory order, an MFR

may be filed. The Rule only prohibits MFR on
judgments, not orders.

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