RULE 38-71

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Civil ProcedurRule 38-7

Revive from Ashes and Rise

By: Unica Amor Mananquil1 of 34

RULE 38: RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS

- Petition is available only to the parties- Available not only against a judgment or final order, it is also available in any other proceeding

Nature of the Petition

- Legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he wasunjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or

excusable neglect

- Equitable remedy that is allowed only in exceptional cases when there is no available or adequate remedy- Last chance given by law to litigants to question a final judgment or order- When a person has another remedy he cannot avail of this petition- Motion for new trial and petition for relief are two remedies exclusive of each other

Grounds for Petition for Relief

1. Judgment or final order is entered into, or any other proceeding is taken against the petitioner in any courtthrough fraud, accident, mistake or excusable negligence

o Filed in the same court with prayer that the judgment be set aside2. The petitioner has been prevented from taking an appeal by fraud, accident, mistake, or excusable negligence

o Filed in the same court with prayer that appeal be given due courseWhen to File

1. Filed within 60days after the petitioner learns of the judgment, final order or proceeding, and2. Not more than 6 months after such judgment was entered or such proceeding was taken- Both non-extendible and never interrupted

Procedure:

- Form of the Petition; Affidavit of Merito Petition must be verified with affidavits showing fraud, accident, mistake and excusable negligence and

the facts constituting the petitioners good and substantial cause of action

- Order to Answero Court in which it is filed shall issue an order requiring the adverse parties to answer within 15 days from

receipt- Hearing of Petition

o After the filing of the answer or the expiration of the period to file an answer, the court shall hear- Action of the Court

o Not True dismiss the petitiono True set aside the judgment; set aside the denial of appeal

Preliminary Injunction Pending the Petition for Relief

- The petitioner may avail of preliminary injunction and the court may grant upon filing a bond in favor of theadverse party

No Petition for Relief in the Supreme Court- Petition for relief from judgment is not included in the list of Rule 56 cases originally cognizable by the SC

RULE 39: EXECUTION OF JUDGMENT

*****please see separate notes*****

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APPEALS

General Principle

- Not part of due process, mere statutory privilege- Not a constitutional or natural right- May be taken only from judgment or final orders that completely disposes of the case- Interlocutory order is not appealable

Judgments or orders not appealable (Rule 41, Sec. 1)1. Order denying petition for relief2. Interlocutory order3. Order disallowing or dismissing an appeal4. Order denying a motion to set aside judgment by consent, confession, or compromise on the ground of fraud,

mistake or duress, or any other ground vitiating consent

5. Order of execution6. Judgment 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

Remedy in case the judgment is not appealable

- Special Civil Action under Rule 65Issues that may be raised on appeal

- Question of law or fact that has been raised in the court below and is within the issues framed by the partiesIssues that the appellate court decides on appeal

GR: The appellate court shall consider no error unless stated in the assignment of errors & raised in the court below

EXPN: court may consider an error not assigned

1. Error affects the jurisdiction over the subject matter2. Error affects the validity of judgment appealed from3. Error which affects proceedings4. Error closely related to or dependent on an assigned error and properly argued in the brief5. Plain and clerical error6. Necessary in arriving at a just decision of the case7. Determine whether or not there is sufficient justification for the award of damages

Appeals in Criminal Cases

- Where an accused appeals the decision against him, he throws open the whole case for review and it thenbecomes the duty of the Supreme Court to correct any error as may be found in the appealed judgment

Payment of Docket

- Payment of docket fee within the prescribed period is mandatory for the perfection of an appeal- Without such, the appellate court will not acquire jurisdiction over the subject matter of the action and the

decision appealed from becomes final and executory

- Mandatory and Jurisdictional- Non-payment of the appellate court docket and other fees within the reglementary period is a ground for thedismissal of an appeal

- Court allows liberal construction of the rules on the manner and periods for perfecting appealsRecord on Appeal

- In case of multiple appeals are allowed, a party may appeal only a particular part and not all of the mattersinvolved in the same case

- Record of Appeal is required so the appellate court may have a record of the proceedings to resolve a separateand distinct issue raised in the appeal

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RULE 40: APPEAL FROM MTC TO THE RTC

Procedure:

- Decision of MTC is appealed to RTC by filing Notice of Appeal- When

o Taken within 15 days after notice to the appellant of the judgment appealed fromo Record on appeal is required, file Notice of Appeal and Record on Appeal, 30 days after notice of order

- Howo By filing a Notice of Appeal with the court that rendered judgment or final order appealed fromo Serving a copy of the Notice to the adverse partyo Within 15 days from perfection of appeal the clerk of court shall transmit the original records

- Perfection of Appealo Deemed perfected upon filing of the notice of appeal

- Duty of Clerk of Courto Clerk shall notify the partieso Within 15 days - appellant should file a memorandum furnish copy to the appelleeo The appellee may file his memorandum within 15 days from receipt of the appellants memorandum

- Submitted for Decisiono Upon filing of the memorandum of the appellee or the expiration of the period to do soo RTC shall decide the case

RULE 41: APPEAL FROM RTC TO THE CA

Modes of Appeals from the decision of the RTC

1. Ordinary appeal (Rule 41)o Exercise of its Original Jurisdictiono To CAo Questions of Fact, Law or Both

2. Petition for Review (Rule 42)o Exercise of its Appellate Jurisdictiono To CAo Questions of Fact, Law or Both

3. Petition for Review on Certiorari/ Appeal by Certiorari (Rule 45)o Exercise of Original Jurisdictiono To SCo Questions of Law

Application of Rule 41 on ordinary appeal

- Applies to appeal from the judgment or final order of the RTC in the exercise of its original jurisdictionProcedure:

- Wheno Within 15 days from notice of judgmento Within 30 days from notice of judgment when record o appeal is required

- Howo Filing a notice of appeal to court which rendered decisiono Serving a copy to adverse partyo Pay to the clerk of the court which rendered decision the feeso Clerk of RTC will transmit the records to appellate court and notify the parties with letter of transmittalo Clerk of CA shall docket the case and notify parties

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Dismissal of the Appeal

1. Failure of the record n appeal to show on its face that the appeal was taken within the period fixed2. Failure to file notice of appeal or the record on appeal within the prescribed period3. Failure of the appellant to pay the docket and other lawful fees4. Unauthorized alterations, omissions, or additions in the approved record in appeal5. Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the

time provided by the Rules

6. Absence of specific assignment of errors in the appellants brief, or of page references to the record7. Failure of the appellant to take the necessary steps for the correction or completion of the record within the tim

limited

8. 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

9. The fact that the order of judgment appealed from is not appealable- Discretionary upon the appellate court- Only directory not mandatory

Residual Jurisdiction

- RTC loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of thetime to appeal, however, despite the perfection of the appeals the RTC may still issue orders for the protection

and preservation of the right of the parties which do not involve any matter litigated by the appeal, approve

compromises, etc.

Stay of Judgment

GR: Appeal shall stay the judgment or final order

EXPN: CA or the law shall provide otherwise

RULE 43: APPEALS FROM CTA AND QUASI-JUDICIAL AGENCIES TO THE CA

Procedure:

- Taken to the CA whether the appeal involves a question of fact or question of law or both- By filing a verified petition for review wit the CA- Appeal shall not stay the award, judgment, final, order or resolution sought to be reviewed unless the Court of

Appeals shall direct otherwise upon such terms as it may deem just

Review of decisions of NLRC

- Move for the reconsideration of denied, file special civil action of certiorari under Rule 65, within 60 days fromnotice of the decision

- To the Court of Appeals not to Supreme CourtAppeals from the Sandiganbayan

- Decision of Sandiganbayan shall be appealable to the SC by way of certiorari under Rule 45 raising pure questionof law

Review of the Rulings of the Ombudsman

- In administrative disciplinary cases appealable to the CA- In SC if there is grave abuse of discretion- In criminal cases the decision is elevated to the SC

Appeals from judgments of the CTA

- A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial,may file a petition for review with the CTA en banc

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Review of Judgments of the COMELEC

- May be brought by the aggrieved party to the SC on certiorari under Rule 65Review of Judgments of the Commission on Audit

- May be brought by the aggrieved party to the SC on certiorari under Rule 65Appeals from judgments of the Civil Service Commission

- Taken to the Court of Appeals under Rule 43 of the Rules of CourtAppeals from the judgments of the Office of the President

- Taken to the Court of AppealsPROCEDURE IN THE COURT OF APPEALS

RULE 44: ORDINARY APPEALED CASES

Appellants Brief

- Within 45 days from receipt of the notice of the clerk- In certiorari, prohibition, mandamus, quo warranto and habeas corpus the parties shall file memoranda within

non-extendible period of 30 days

- Content1. 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 wit reference to the pages where they are cited

2. An assignment of errors, separately, distinctly, and concisely stated without repetition and numberedconsecutively

3. Statement of the Case clear and concise statement of the nature of the action and any other mattersnecessary to an understanding of the nature of the controversy

4. Statement of the Facts clear and concise statement in narrative form of the facts admitted by both partiestogether with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible,

with page references

5. Clear and concise statement of the issues of fact or law6. Argument, the appellants argument on each assignment of error, 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

7. Relief a specification of the order or judgment which the appellant seeks8. In cases not brought up by record on appeal, the appellants brief shall contain, as an appendix, a copy of the

judgment or final order appealed from

Appellees Brief

- Within 45 days from receipt of the appellants brief- Contents

1. Subject index of the matter in the brief with a digest of the arguments and page references, and a table ofcases alphabetically arranged, textbooks and statutes cited with references to the pages

2. Statement of Facts the appellee shall state he accepts the statement of facts in the appellants brief orunder Counter-Statement of Facts he shall point out such insufficiencies and inaccuracies3. Argument the appellee shall set forth his arguments in the case on each assignment of error with page

reference to the record, the authorities relied on shall be cited

Appellants Reply Brief

- Within 20 days from receipt of the appellees brief, the appellant may file a reply brief answering points in theappellees brief no covered in his main brief

Questions that can be raised on appeal

- Include in his assignment of errors any question of law or fact that has been raised in the court below and whichis with in the issues framed by the parties

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RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT

- aka : Petition for Review on CertiorariApplication

1. Appeal from judgment of the RTC in exercise of its original jurisdiction on questions of law2. Appeal from judgment of the CA on questions of law3. Appeal from judgment of the Sandiganbayan on questions of law4. Appeal from the decision of the CTA5. Appeals from judgment in a petition for a Writ of Amparo on questions of law, fact or both6. Appeals from judgment in a petition for Writ of Habeas Data on questions of law, fact or both- Penalty imposed is Death, Reclusion Perpetua, or Life Imprisonment Automatic Review of the SC

Provisional Remedies

- Include an application for a writ of preliminary injunction or other provisional remedies- Seek the same by verified motion

Not a Matter of Right

- Sound judicial discretion- Special and Important Reasons which the court may consider in allowing the petition

1. Court below decided a question of substance not yet determined by the SC2. Court below decided a matter of substance in a way that it is not in accord with law or with the applicable

decisions of the SC

3. Court below departed from the accepted and usual course of judicial proceedings, or so far as sanctionedsuch departure by a lower court, as to call for the exercise of the power of supervision of the SC

Questions of Law

- Only legal issues may be raised- SC not trier of facts and not to review or calibrate evidence on record- Not the duty of the SC to review, evaluate and weigh the probative value of the evidence adduced before the

lower courts

- Findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to this Court provided theyare supported by evidence on record

o EXPNS:1. The conclusion of the CA is grounded entirely on speculations, surmises and conjectures2. Inference made is manifestly mistaken, absurd or impossible3. Grave abuse of discretion4. Judgment is based on misapprehension of facts5. Findings of facts are conflicting6. The CA went beyond the issues of the case and the same is contrary to the admissions of both

appellant and appellee

7. The findings are contrary to those of the trial court8. Findings of fact are conclusions without citation of specific evidence on which they are based9. Set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the

respondents

10.Findings of fact of the CA are premised on the supposed absence of evidence and contradicted by thevidence on record

11. In an appeal from judgment or final order of the court in a petition for a writ of Amparo and HabeasData, questions of fact may be raised

12. In an appeal from a judgment or final order of the court in a petition for a writ of Habeas Data

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Certiorari under Rule 45 and Rule 65

RULE 45 RULE 65

Mode of Appeal; part of appellate process Special Civil Action; independent and original action

Review final judgments Review judgments and interlocutory orders

Question of Law Question of Jurisdiction

Filed within 15 days from notice of judgment Filed within 60 days from notice of judgment

Not require prior motion for reconsideration Require motion for reconsideration

Stays the judgment appealed from Not stay the judgment unless enjoined or restrained

Original parties The tribunal, board, officer is the respondent

Filed with the SC Filed with RTC, CA or SC

Procedure:

- When to appealo Within 15 days form notice of judgmento SC for justifiable reasons grant extension for 30 days, if

1. There is motion for extension duly filed and served2. There is full payment of the docket3. Made and paid before expiration of the reglementary period

- How to Appealo Filing of verified petition with the SC within the reglementary period raising therein only questions of lawo Pay to the clerk of court the docket and lawful feeso Proof of service of a copy of the petition on the lower court with the petitiono Petition shall contain

1. Full name of the appealing party and the adverse party as respondent without impleadingthe lower court or judges

2. Indicate the material dates showing when notice of the judgment was received, when amotion for new trial or reconsiderations was filed and when notice of the denial was receive

3. Set forth concisely a statement of the matters involved, and the reasons or arguments reliedon for the allowance of the petition4. Be accompanied by a clearly legible duplicate original or a certified true copy of the judgmen

5. Contain a sworn certification against forum shoppingo The SC may on its own initiative, deny the petition on the ground that

1. The appeal is without merit2. Prosecuted manifestly for delay3. The questions raised therein are too unsubstantial to require consideration

o SC may require the filing of such pleadings, briefs, memoranda, or the submission of the documents itmay deem necessary

o If the petition is given due course, the SC may require the elevation of the complete record of the case ospecified parts thereof within 15 days from notice

RULE 46: ORIGINAL CASES

- Party instituting the action petitioner- Opposing party respondent- Petition shall contain:

o Full names and actual addresses of the petitioners and respondentso Concise statements of the matters involved, factual background of the case and the grounds relied upon

- Determination of factual issueso The court itself may conduct hearings thereon or delegate the reception of the evidence on such issues

to any of its members or the appropriate court

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RULE 47: ANNULMENT OF JUDGMENT OR FINAL ORDERS AND RESOLUTIONS

Nature

- Remedy in law independent of the case where the judgment sought to be annulled was rendered- Purpose of such action is to have final and executory judgment set aside so that there will be a renewal of

litigation

- Resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or otheappropriate remedies are no longer available through no fault of the petitioner

- A recourse equitable in character and allowed only in exceptional casesProcedure

- File a verified petition in the proper court- Treated as an ordinary civil action- But the court may make an outright dismissal of the petition as long as it has specific reasons for its dismissal- Where

o If MTC rendered decision file it with RTC; if RTC rendered petition file it with CA- When

o Based on Extrinsic Fraud within 4 yearso Based on Lack of Jurisdiction before laches and estoppel

- Whoo Petitioner need not be a party to the judgment sought to be annulledo Essential that the petitioner is one who can prove his allegation that the judgment was obtained by the

use of fraud, and collusion and that he was affected thereby

- Only when the court finds a prima facie merit in the petition shall summons been served on the respondentGrounds

1. Extrinsic Fraudo Collateral in charactero It prevents a party from having a trial or from presenting his entire case to the court, or where it operate

upon matters pertaining not to the judgment itself but to the manner in which it is procured

o Prevents the aggrieved party from having a trial or presenting his case to the courto When there is fraudulent act committed by the prevailing party outside of the trial of the case, whereby

the defeated party was prevented from presenting fully his side of the case by deception practiced on

him by the prevailing party

2. Lack of Jurisdictiono Either lack of jurisdiction over the defending party or over the subject mattero Absolute lack of jurisdiction

Effect of Judgment of Annulment

- Annulment based on lack of jurisdiction shall have the effect of setting aside the questioned judgment or finalorder and rendering the same null and void but the judgment of annulment is without prejudice to the refilling o

the original action in the proper court

- Where the judgment or final order is set aside and annulled on the ground of extrinsic fraud, the court may ordethe trial court to try the case as if a motion for new trial was granted- The judgment of annulment may include the award of damages etc.

RULE 48: PRELIMINARY CONFERENCE

- Anytime during the pendency of the case the court may call the parties and their counsel to a preliminaryconference

1. To consider the possibility of an amicable settlement, except when the case is not allowed by law to becompromised

2. To define, simplify and clarify the issues for determination

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3. To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses tobe presented in cases falling within the original jurisdiction of the court, or those within its appellate

jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence

- Subject to such modifications which may be made to prevent manifest injustice, the resolution shall control thesubsequent proceedings in the case unless, within 5 days from notice any party shall satisfactorily show valid

cause why the same should not be allowed

RULE 49: ORAL ARGUMENTS

- At its own instance, or upon motion, the court may hear the parties in oral argument on the merits of a case, oron any material incident in connection therewith

- The oral argument shall be limited to such matters as the court may specify in its order or resolution- Only one counsel may argue for a party, the sequence of the argumentation, and all other related matters shall

be as directed by the court

RULE 50: DISMISSAL OF APPEAL

Grounds for Dismissal of Appeal

1. Failure of the record n appeal to show on its face that the appeal was taken within the period fixed2. Failure to file notice of appeal or the record on appeal within the prescribed period3. Failure of the appellant to pay the docket and other lawful fees4. Unauthorized alterations, omissions, or additions in the approved record in appeal5. Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the

time provided by the Rules

6. Absence of specific assignment of errors in the appellants brief, or of page references to the record7. Failure of the appellant to take the necessary steps for the correction or completion of the record within the tim

limited

8. 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

9. The fact that the order of judgment appealed from is not appealableDismissal of Improper Appeal

- An appeal under Rule 41 taken from the RTC to CA raising questions of law shall be dismissedo Issues purely of law not being reviewable by CA

- An appeal by notice of appeal instead of by petition for review from the appellate judgment of RTC shall bedismissed

- An appeal erroneously taken to the CA shall not be transferred to the appropriate court but shall be dismissedoutright

Withdrawal of Appeal

- An appeal may be withdrawn as of right at any time before the filing of the appellees brief- The withdrawal may be allowed in the discretion of the court

RULE 51: JUDGMENT

When case deemed submitted for judgment

1. In ordinary appealso 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 period fir its filing

o Were such a hearing is held, upon its termination or upon the filing of the last pleading or memorandumas may be required or permitted to be filed by the court, or the expiration of the period for its filing

2. In original actions and petitions for reviewo Where no comment is filed, upon the expiration of the period to comment

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o Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by thecourt, or the expiration of the period for its filing

o Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the laspleading or memorandum at may be required or permitted to be filed by the court, or the expiration of

the period for its filing

Rendered by whom

- Members of the court who participated in the deliberation on the merits of the case before its assignment to amember for the writing of the decision

- The participation of all three justices of a division shall be necessary at the deliberation and the unanimous voteof the 3 Justices shall be required for the pronouncement of a judgment or final resolution

- If the justices did not reach a unanimous decision the clerk shall enter the votes of the dissenting Justices in therecord, the Chairman of the division shall refer together with the minutes of the deliberation, to the Presiding

Justice who shall designate 3 Justices chosen by raffle from among all the other members of the court to sit

temporarily with them, forming a special division of 5 Justices

o Only the concurrence of the majority of such division shall be required for the pronouncement of thejudgment or final resolution

Form of Decision

- Every decision of the court in appealed cases shall clearly and distinctly state the findings of fact and theconclusions of law on which it is based, which may be contained in the decision or final resolution itself, or

adopted from those set forth in the decision, order, or resolution appealed from

Questions that may be decided

- No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealedfrom or the proceedings therein will be considered unless stated in the assignment of errors, or closely related t

or dependent on an assigned error and properly argued in the brief, save as the court may pass upon plain error

and clerical errors

Promulgation and Notice of Judgment

- After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices takinpart, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and causetrue copies thereof to be served upon the parties or their counsel

RULE 52: MOTION FOR RECONSIDERATION

- A party may file a motion for reconsideration of a judgment or final resolution within 15 days from notice thereowith proof of service on the adverse party

- No second motion for reconsideration of a judgment or final resolution by the same party shall be entered- In CA, motion for reconsideration shall be resolved within 90 days from the date when the court declares it

submitted for resolution

- The pendency of a motion for reconsideration filed on time and by the proper party shall stay the execution ofthe judgment or final resolution sought to be reconsidered unless the court, for good reasons shall otherwise

direct

RULE 53: NEW TRIAL

- Wheno At any time after the appeal from the lower court has been perfected and before the CA loses jurisdictio

over the case

- Whoo a party may file a motion for new trial

- Ground

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o Newly discovered evidence which could not have been discovered prior to the trial in the court below bythe exercise of due diligence and which is of such character as would probably change the result

- The motion shall be accompanied by affidavits showing the facts constituting the grounds therefore and thenewly discovered evidence

- The CA shall consider the new evidence with that adduced at the trial below- The motion for new trial shall be resolved within 90 days from the date when the court declared it submitted for

resolution

- Procedure shall be the same with RTCRULE 54: INTERNAL BUSINESS

RULE 55: PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS

Publication

- Published in the Official Gazette and in the Reports officially authorized by the court in the language in whichthey have been originally written, together with the syllabi therefore prepared by the reporter in consultation

with the writers thereof

- Philippine Reports Supreme Court- Court of Appeals Reports Court of Appeals

PROCEDURE IN THE SUPREME COURT

RULE 56:

ORIGINAL CASES

- Only petitions for certiorari,, prohibition, mandamus, quo warrant, habeas corpus, disciplinary proceedingsagainst members of the judiciary and attorneys and cases affecting ambassadors, other public ministers and

consuls may be filed originally in the SC

- The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and 56 subject t

the following provisions

1. All references in said Rules to the Court of Appeals shall be understood to also apply to the SupremeCourt

2. The portions of said Rules dealing strictly with and specifically intended for appealed cases in the CAshall not be applicable

3. 18 clearly legible copies of the petition shall be filed, together with proof of service on all adverseparties

APPEALED CASES

Mode of Appeal

- An appeal to the SC may be taken only by petition for review on certiorari except in criminal cases where thepenalty imposed is death, Reclusion Perpetua or life imprisonment

Procedure

- The appeal shall be governed by and disposed of in accordance with the applicable provisions of the Constitutionlaws, Rules 45, 48, Rule 51 sec 1,2, and 5-11, 52 and 56

Grounds for Dismissal of Appeal

- The appeal may be dismissed motu proprio or on motion of the respondent1. Failure to take the appeal within the reglementary period2. Lack of merit in the petition3. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs4. Failure to comply with the requirements regarding proof of service and contents of and the documents which

should accompany the petition

5. Failure to comply with any circular, directive or order of the SC without justifiable cause

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6. Error in the choice or mode of appeal7. The fact that the case is not appealable to the SC

Disposition of Improper Appeal

- Except as provided in Rule 122, Sec 3 (Automatic Review) notice of appeal shall be dismissed- An appeal by certiorari taken to the SC from the RTC submitting issues of fact may be referred to the Ca for

decision or appropriate action

- The determination of the SC on whether or not issues of fact are involved shall be finalPROVISIONAL REMEDIES

Nature of Provisional Remedies

- Means temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation ofhis rights while the main action is pending

- The court which grants provisional remedies is the court which has jurisdiction over them main actionPurpose of Provisional Remedies

1. Preserve and protect their rights or interest whole the main action is pending2. Secure the judgment3. Preserve the status quo4. Preserve the subject matter of the action

Kinds of Provisional Remedies

- Not exclusive enumeration1. Preliminary Attachment2. Preliminary Injunction3. Receivership4. Replevin5. Support Pendente Lite

RULE 57: PRELIMINARY ATTACHMENT

Nature

- Preliminary Attachment is a provisional remedy issued upon order of the court where an action is pending to belevied upon the property of the defendant so the property may be held by the sheriff as security for the

satisfaction of whatever judgment may be rendered in the case

- Not a distinct proceeding and is availed of with principal action- Attachment places the property under the custody of the court (custodia legis)- Quasi In Rem jurisdiction over the person of the defendant is not required as long as the court acquires

jurisdiction over the res

o The court may validly proceed with the action as long as jurisdiction over the property is acquired- Purely statutory remedy, cannot exist without a statute

Purpose

1. Seize the property of the debtor before final judgment and put the same in custodia legis2. To enable the court to acquire jurisdiction over the defendant cannot be effectedKinds of Attachment

1. Preliminary Attachmento Issued at the commencement of the action or at anytime before entry of the judgment as security for th

satisfaction of ay judgment that may be recovered in the cases provided for by the rules

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2. Garnishmento Kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the

hands of a third person called the garnishee to his claim or the money which said third person owed the

defendant

o Plaintiff reaches credits belonging to the defendant and owing to him from a third person who is astranger to the litigation

3. Levy on Executiono Writ issued by the court after judgment by which the property of the judgment obligor is taken into the

custody of the court before the sale of the property on execution for the satisfaction of a final judgmento Preliminary step to the sale on execution of the property of judgment debtor

Grounds for Preliminary Attachment

1. In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on acause of action arising from law, contract, quasi-contract, delict, or quasi-delict against a party who is about to

depart from the Philippines with intent to defraud his creditors

2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a publicofficer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such,

or by any other person in a fiduciary capacity, or for a willful violation of duty

3. In an action to recover the possession or property unjustly or fraudulently taken, detained or converted, whenthe property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or

taken by the applicant or an authorized person

4. In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upowhich the action is brought, or in the performance thereof

5. In an action against a party who has removed or disposed of his property, or is about to do so, with intent todefraud his creditors

6. In an action against a party who hoes not reside and is not found in the Philippines, or on whom summons maybe served by publication

Procedure

- When to apply1. At the commencement of the action2. Any time before entry of judgment

- Whoo A plaintiff or any proper party may have the property of the adverse party attached

Ex parte issuance of the writ

- Granted upon motion and notice and hearing by the court in which the action is pending and may even be issueby the CA or the SC

- Issued ex parte and even before summons is served upon the defendant- It is possible that during the course of the hearing, the party against whom the writ is sought may dispose of the

property or abscond before the writ is issued

Stages in the grant of preliminary attachment1. The court issues the order granting the application2. Writ of attachment issues pursuant to the order granting the writ3. Writ is implemented

Contemporaneous Service not required

1. Where the summons could not be served personally or by substituted service despite diligent efforts2. Defendant is a resident of the Philippines who is temporarily out of the country3. Defendant is non-resident4. The action in rem or quasi in rem

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Requisites for Issuance of Writ of Preliminary Attachment is proper

1. The case must be any of those where preliminary attachment is proper2. The applicant must file a motion (ex parte or with notice and hearing)3. Applicant must show affidavit that there is no sufficient security for the claim ought to be enforced4. Applicant must post a bond executed to the adverse party (attachment bond)- Attachment will not be issued if there is a real estate mortgage to secure obligation

Strict Construction

- Strictly Construed in favor of the defendant- Granted only on concrete and specific grounds and nor merely on general averments

Discharge Attachment

- File a motion to discharge the attachment- With notice and hearing- File a counter-bond

o Replacements of the property formerly attached- Mere posting of the counter-bond does not automatically discharge the attachment, hearing and order of the

judge is necessary

- May not file counter-bond, but should prove in the hearing that1. The attachment is improperly or irregularly issued2. That the bond of the attaching creditor is insufficient, or3. The attachment is excessive and must be discharged as to the excess4. That the property is exempt from execution and preliminary attachment

Damages for a wrongful attachment

- Awarded on account of irregular, improper and excessive attachment- Must be filed

1. Before trial2. Before appeal is perfected3. Before the Judgment becomes executory

Attachment of Property in Custodia Legis- Property in custodia legis may be subject to a writ of preliminary attachment- Requires that the copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency and

notice of the attachment served upon the custodian of said property

Proceedings where the property is claimed by a third person

1. Terceria2. Summary Hearing3. Separate Action

Sale of Property covered by Writ of Preliminary Attachment

GR: cannot sell property under attachmentEXPN: Sec 11, Rule 57 perishable; interest all parties will be subserved

RULE 58: PRELIMINARY INJUNCTION

Nature

- Ancillary or preventive remedy were a court requires a person, a party or even a court or tribunal either to refrafrom or to perform particular acts during the pendency of an action

- Merely a temporary remedy

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- Prevent threatened or continuous irreparable injury to parties before their claims can be thoroughly studied andadjudicated. Its sole objective is to preserve the status quo until the merits of the case can be heard fully

- Preservative remedy for the protection of substantive rights or interests- May be granted at any stage of the proceedings prior to the judgment or final order- Preliminary Injunction must be applied for and issued by the court where the action is pending- Discretionary and is generally not interfered with except in cases of manifest abuse

Requisites

1. Verified application2. Establish that he has a right to relief, a right in esse or a right to be protected3. Establish that there is a need to restrain the commission or continuance of the acts complained of and if not

enjoined would work injustice to the applicant

4. Post a bond unless exempted by the court, amount fixed by court5. Notice to the party sought to be enjoined, and service of summons upon the defendant6. Establish that he or she has a present and unmistakable right to be protected that the facts against which

injunction is directed violate such right

The following should be first established before Preliminary Injunction

1. The applicant is entitled to the relief consists in restraining the commission or continuance of the act or actscomplained of, or in requiring the performance of an act or acts, either for a limited period or perpetually

2. That the commission, continuance or nonperformance of the act or acts complained of during the litigationwould probably work injustice to the applicant

3. That a party, court, agency, or a person is doing threatening, or is attempting to do, or is procuring or suffering tbe done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action

or proceeding and tending to render the judgment ineffectual

4. A petition for a writ of preliminary injunction rests upon an alleged existence of an emergency or of a specialreason for such a writ before the case can be regularly tried

- Prove or establish that he or she has a present and unmistakable right to be protectedMain Action for Injunction vs. Preliminary Injunction

Main Action for Injunction Preliminary Injunction

Independent Action Incident to a Preliminary Action

Embodying a final injunctionPreserve the status quo until the merits can be

heard

Ex. Art 26 NCC

Purpose

- Preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rightsduring the pendency of the action

- Status Quo last actual, peaceable, and uncontested situation which precedes a controversy; situation existing athe time of the filing of the case

- When mandatory - Commands the performance of specific acts and is issued only in cases of extreme urgencyand where the right of the applicant is clear

Preliminary Injunction vs. Final Injunction

- Preliminary Injunction writ secured before the finality of the judgment- Final Injunction issued as a judgment making the injunction permanent; perpetually restrains a persons from

the continuance or commission of an act and confirms the previous preliminary injunction

Kind of Injunction

1. Prohibitory Injunctiono When its purpose is to prevent a person from the performance of a particular act

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o Act has not been yet performedo Status Quo is preserved

2. Mandatory Injunctiono Purpose is to require a person to perform a particular acto The act has already been performed and this act haw violated the rights of anothero Commands performance of an act not the status quo

Prohibitory Injunction vs. Prohibition

- Prohibitory Injunctiono Provisional remedyo Directed to a litigant, not to a tribunal, and is issued to require said party from particular act

- Prohibitiono Special civil actiono A judgment commanding a tribunal, corporation, board, or officer, to desist from further proceedings in

the action because it has no jurisdiction, is acting in excess of jurisdiction of has gravely abused its

discretion amounting to lack of jurisdiction

Mandatory Injunction vs. Mandamus

- Mandatory Injunctiono Director to a party litiganto Issued to require a party to perform an act to restore the last peaceable uncontested status preceding

the controversy

- Mandamuso Special civil actiono Seeking a judgment commanding a tribunal, board, officer, or person o perform a ministerial duty

required to be performed by law

Quantum of Evidence Required

- Plaintiffs are required to show that they have an ostensible right to the final relief prayed for in their complaint- Generally based solely on initial or incomplete evidence- Such evidence need only be a sampling intended merely to give the court an evidence of justification for a

preliminary injunction pending the decision on the merits of the case and is not conclusive on principal action

- Mere prima facie evidence is needed- Merely provisional until after the trial on the merit of the case shall have been concluded

Notice and Hearing

- Writ of preliminary injunction cannot be issued without prior notice and hearing- Cannot be issued ex parte- Summary hearing

Temporary Restraining Order

- If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injurywould result to the applicant before the matter can be heard on notice, the court in which the application for

preliminary injunction was made may issue a temporary restraining order ex parte for a period not exceeding 20days from service to the party sought to be enjoined

- TRO is issued to preserve the status quo until the hearing of the application for preliminary injunction- Automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being

necessary

- Non-extendibility is absolute- If issued by the CA: Effective for 60 days from service on the party sought to be enjoined

o Non-extendible period of 60 days****see pp. 583 588 for the examples****

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How to dissolve a writ of preliminary injunction or restraining order

- The party enjoined may file a motion to dissolve the injunction or TRO with notice and hearing of the motionupon showing by affidavits tat the person enjoined would suffer irreparable damage

- Must also file a bond conditioned on the payment of all damages which the applicant may suffer by thedissolution of the injunction or restraining order

RULE 59: RECEIVERSHIP

Nature- Protect and preserve the right of the parties during the pendency of the main action, during the pendency of an

appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied

- Aimed at preservation of and at making more secure, existing rights- Like injunction, may also be a principal action

Procedure

- May be granted by the court in which the action is pending, by the CA or the SC or any member thereof- Verified application must be filed by the party applying for the appointment of a receiver- The applicant must have an interest in the property or funds subject of the action- The applicant must show that the property or funds is in danger of being lost, wasted or dissipated- Application must be with notice and must be set for hearing- Require the applicant to post a bond in favor of the adverse party- If the receiver is appointed the receiver shall take his oath but before doing so shall file a bond

o Two Bonds: Applicants Bond and Receivers BondPowers of a Receiver

1. Bring and defend, actions in his own name in his capacity as a receiver2. Keep and take possession of the property subject of the controversy3. To receive rents4. To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which

he is the receiver

5. To compound for and to compromise the same6. Make transfers7. To pay outstanding debts; to divide the money and the property that shall remain among the persons legally

entitle to receive the same

8. Generally to so do such acts respecting the property as the court may authorize- Receiver may not invest funds without an order from the court and without consent of the parties to the action- No action may be filed against a receiver without leave of the court which appointed him- A receiver is supposed to be a disinterested party

o Neither party to the litigation should be appointed as a receiver without the consent of the otherRULE 60: REPLEVIN

Nature- May be a main action or a provisional remedy- Ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person- Primarily possessory in nature and generally determines nothing more than the right of possession- Writ of Replevin is a preliminary step for the foreclosure

Procedure

- File an application for a writ of Replevino His application for the writ must be filed at the commencement of the action or at any time before the

defendant answers

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o Contain an affidavit where the applicant particularly describes the property that he is the owner of theproperty or that he is entitled to the possession thereof

- Applicant need not be the owner of the property, enough that he has a right of possession- State that the property is wrongfully detained by the adverse party, alleging therein the cause of the detention- The affidavit must state that the property has not been distrained or taken for tax assessment or a fine pursuant

to law, or seized under a writ of execution or preliminary attachment, or otherwise placed in custodia legis

o Replevin not available when property is in custodia legis- The affidavit must state the actual market value of the property- The applicant must give a bond executed to the adverse party and double the value of the property

o For the payment to the adverse party of such sum as he may recover from the applicant in the action- Order of the court

o Court approves the application - court shall issue an order and the corresponding writ of Replevindescribing the property alleged to be wrongfully detained

o Require the sheriff to take the property into his custody, sheriff must Serve the copy to the adverse party Take custody of the property Keep it in a secure place Sheriff shall wait for 5 days - adverse party did not object property shall be delivered to the

applicant

How adverse party can seek the return of he property

- Within 5 days from the taking of the property by the sheriff, the adverse party decides to have the property bache may require the return thereof

o File a bond (redelivery bond), in double the value of the propertyo Serving a copy of such bond on the applicant

- If the bond is sufficient and proper form, the adverse property gets the property backReplevin vs. Preliminary Attachment

Replevin Preliminary Attachment

Purpose is to recover personal property capable

of manual delivery

Purpose is to put the property in the custody of

the court to secure the satisfaction of the

judgment that may be rendered in favor of theplaintiff

Property belong to the plaintiff or has a right of

possession

Property foes not belong to the plaintiff but to

the defendant

Availed of only when the defendant is in actual or

constructive possessionAvailed even if in the custody of 3rd person

Only to personal property capable of manual

deliveryAll kinds of property

Without showing that the property is being

concealed or disposed of to the prejudice of the

plaintiff

Need to show that the property is being

removed, concealed or disposed of

Property under custodia legis cannot be object of

Replevin

Property under custodia legis can be subject of

attachment

RULE 61: SUPPORT PENDENTE LITE

Nature

- An amount of support provisionally filed by the court in favor of the person or persons entitled thereto during thpendency of an action for support

- The main action is support and support pendent elite is the provisional remedy- Maybe granted in rape cases for the offspring- Availed in two instances:

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1. Action for Support2. Rape

Procedure

- Filed at the commencement of an action or at anytime prior to the judgment or final order- Application must be verified- Adverse party shall be asked to comment on the application within 5 days from service upon him of a copy of th

application and supporting documents

- Application shall be set for hearing and a hearing shall be conducted- Application is granted issue an order where it shall fix the amount of money to be paid as support- Application is denied principal case shall be tried and decided as early as possible

o Amount fixed is only provisional and can be modified depending on the changing conditions affecting thability of the obligor to pay the amount fixed for support

Enforcement of the Order

- The adverse party has to comply with the order to give support pendente lite- Order of execution shall be issued- If he did not comply may be held in contempt

Restitution

- The person giving support is not liable therefore, the court shall order the recipient to make a restitution of whahas been received with legal interest from the date of actual payment

- Recipient fail to do so, the person who gave the support may file an action against the person legally obliged togive such support

SPECIAL CIVIL ACTIONS

Nature

- In general, one by which a party sues another for the enforcement or protection of a right or the preventionKinds of Special Civil Actions

A. Initiated by Filing A Petition1. Declaratory Relief and Similar Remedies (Rule 63)2. Review of judgments of the COMELEC and COA (Rule 64)3. Certiorari, Prohibition and Mandamus (Rule 65)4. Quo Warranto (Rule 66)5. Contempt (Rule 71)

B. Initiated by Complaint1. Interpleader (Rule 62)2. Expropriation (Rule 67)3. Foreclosure of Real Estate Mortgage (Rule 68)4. Partition (Rule 69)5. Forcible Entry and Unlawful Detainer (Rule 70)

RULE 62: INTERPLEADER- A special civil action filed by a person against whom two conflicting claims are made upon the same subject

matter and over which he claims no interest to compel the claimants among themselves

- File with MTC if personal property - not exceed 300K outside Metro Manila, 400K in Metro Manila- File with MTC if real property not exceed 20K outside Metro Manila, 50K in Metro Manila

Requirements

1. There must be 2 or more claimants with adverse or conflicting interests to a property in the custody ofpossession of the plaintiff

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2. Plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has ininterest at all, such interest is not disputed by the claimants

3. The subject matter of the adverse claims must be one and the sameProcedure

- Complaint for interpleader is filed by the person against whom the conflicting claims are madeo Person who files the complaint shall pay the docketo Such fees shall become a lien on the subject matter

- Clerk shall issue summons to the defendant, parties shall interplead with one another- Within the time for filing an answer, each claimant may file a motion to dismiss- The period to file an answer is interrupted tolled by the filing of the motion to dismiss

o If denied file within the period left but not less than 5 days- Answer filed within 15 days from the service of summon upon him- Claimants fail to answer court upon motion may declare claimant in default

o Judgment shall then be rendered barring him from any claim in respect to the subject matter of theaction

- Not authorize a motu proprio declaration of default- Parties may also file counter-claims, cross-claim, third-party complaints and responsive pleadings- Pre-trial shall be conducted in accordance with the Rules of Court

Interpleader vs. Intervention

Interpleader Intervention

Special civil action Not original but only ancillary

Commenced by the filing is a complaintCommenced by a motion to intervene filed in a

pending case

Filed by a person who has no interest in the

subject matter of the action

Filed by a person who has legal interest in any of

the following:

a. Subject matter of the litigationb. Success of either of the partiesc. Success of both partiesd. Adversely affected by the dispositionDefendants are brought into the action only

because they are impleaded as such in the

complaint

Defendants are already parties to an existing suit

not because of the intervention

RULE 63: DECLARATORY RELIEF AND OTHER SIMILAR REMDIES

Two types

1. Declaratory Relief2. Similar Remedies

a.

Action for reformation of an instrumentb. Action for quieting of titlec. Action to consolidate ownership

Nature

- Court has discretion to act or not to act on the petition, choose not to construe the instrument sought to beconstrued or could refrain from declaring the rights of the petition under the deed or the law

- The court motu proprio or upon motion, may refuse to exercise the power to declare rights and to construeinstruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to

the action, or in any case where the declaration or construction is not necessary

- RTC has jurisdiction

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Grounds for dismissal (not in Rule 16 or 17)

1. Where a decision on the petition would not terminate the uncertainty, or controversy which gave rise to theaction

2. Where the declaration or construction is not necessary and proper under the circumstances as when theinstrument or the statute has already been breached

Subject matter in a Petition for Declaratory Relief- Enumeration is exclusive1. Deed2. Will3. Contract or Other written instrument4. Statute5. Executive Order or Regulation6. Ordinance7. Other Governmental Regulation

Purpose

- Brought to secure an authoritative statement of the rights and obligations of the parties under a contract or astatute for their guidance in the enforcement or compliance with the same

- Ask the court to determine any question of construction or validity arising from the subject matter and for thedeclaration of rights and duties therein

Requisite

1. Justiciable controversy2. Controversy between persons whose interests are adverse3. The party seeking the relief must have a legal interest in the controversy4. Issue is ripe for judicial determination

Filing before any breach

- The petition is filed before there occurs any breach or violation of the deed, contract, statute, ordinance, orexecutive order or regulation

- Not prosper when brought after a contract or statue has already been breached or violated- The court can no longer acquire jurisdiction over the action for declaratory relief if its subject, that statute, deed

or contract, etc has already been infringed or transgressed before the institution of the action

Reformation of an Instrument

- Action brought not to reform the contract but to reform the instrument evidencing the contract- The contract is to be reformed because despite the meeting of the minds of the parties as to the object and cau

of the contract, the instrument which is supposed to embody the agreement of the parties foes not reflect their

true agreement by reason of mistake, fraud, inequitable conduct or accident

- Cannot reform:o Donation Inter Vivoso Willso Agreement is void

Consolidation of Ownership

Quieting of Title

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RULE 64: REVIEW OF JUDGMENTS AND FINAL ORDERS, RESO OF THE COMELEC AND THE COMMISSIONS ON AUDIT

- Governs the review of judgments of the Commission on Elections and Commission on Audit- The mode of review is a petition for certiorari (Rule 65) which must be anchored on jurisdiction- Not applicable to Civil Service Commission- Rule 64 using Rule 65 cannot question the findings of fact of the commission involved where such findings are

supported by substantial evidence

- Filed within 30 days from notice of judgment shorter than Rule 65 which prescribes 60 daysMotion for New Trial or Motion for Reconsideration

- If allowed by the commission concerned, file a petition that would interrupt the running of the 30 days- If petition is denied remaining period but should not be less than 5 days

Petition

- Verified and in 18 copies- Accompanied by duplicate- Name the aggrieved party as petitioner; join the commission concerned and all persons interested- State the facts with certainty- Filed within the period fixed (30 days)- Proof of service of a copy- Timely payment of the docket- Sworn certification against forum-shopping- Pray for a judgment annulling or modifying the questioned judgment

Outright Dismissal

1. Petition is not sufficient in form and substance2. Petition is filed manifestly for delay3. The question raised is too unsubstantial to warrant further proceedings- File comment within 10 days from notice

Filing of Petition will not stay execution (proceed)

- You can file Rule 65 with temporary restraining order or writ of preliminary injunctionOral Arguments, Memoranda and Submission for Decision

- Upon the filing of the comments on the petition, or upon the expiration of the period to do so, the case shall bedeemed submitted for decision except when the court ordered for oral arguments

RULE 65: CERTIORARI, PROHIBITION, MANDAMUS

Certiorari

- Not mode of appeal- Independent from the principal action- Not intended to review the errors of judgment of the trial court- Remedy for the correction of errors of jurisdiction, not errors of judgment

Correction of Errors of Jurisdiction

- Remedy designed for the correction of errors of jurisdiction and not errors of judgment as when a court or bodyacted with grave abuse of discretion amounting to lack of jurisdiction

Injunction is still needed

- There must be a writ of injunction to stay judgment, certiorari is not sufficientDuty of the Court when Certiorari is filed

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- The public respondent has the duty to proceed with the principal case within 10 days from the filing of thepetition for certiorari with a higher court

Requisites for a Petition for Certiorari

1. Petition is directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions2. Such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion3. There is neither appeal nor any plain, speedy and adequate remedy in the purpose of annulling or modifying the

proceeding

o There must be capricious, arbitrary , and whimsical exercise of power- There must be an allegation that the respondent court or tribunal acted without or in excess of its jurisdiction, o

with grave abuse of discretion

- The burden of proof is on the petitioner to prove grave abuse of discretionCertiorari vs. Appeal

CERTIORARI APPEAL

Correct error of jurisdiction Error of law or fact which is a mistake of judgment

Invokes original jurisdiction Invokes appellate jurisdiction

Period of filing is 60 days Period of Appeal (usually 15 days or 30 days)

Original and independent action Continuation of the original case

Implead the tribunal, court, board or officer Original parties to the case

No petition for certiorari in a summary proceeding

- In a summary proceeding, petitions for certiorari, prohibition and mandamus against an interlocutory order ofthe court are not allowed

- The court in one case allowed the petition because the trial court gravely abused its discretion by indefinitelysuspending the proceedings in ejectment cases this action contrary to the purposes of the Rules on Summary

Proceeding

Certiorari is not substitute for lost appeal

- It would be erroneous- The existence and availability of the right to appeal prohibits the resort to certiorari because one of the

requirements for certiorari is that there is no appeal

- The remedies of appeal and certiorari are mutually exclusive and not alternative or successiveWhen certiorari is available despite the loss of appeal

GR: Certiorari is not available when the period for appeal has lapsed

EXPN:

1. When public welfare and the advancement of public policy dictates2. When the broader interest of justice so requires3. When the writs issued are null and void4. When the questioned order amounts to an oppressive exercise of judicial authority

Respondent must exercise judicial or quasi-judicial functions

- Petition for certiorari is directed against a tribunal board or officer exercising judicial or quasi-judicial functions- Quasi- judicial act refers to the acts of public administration officers or bodies required to investigate facts or

ascertain the existence of facts, hold hearings, and draw conclusions from them, as basis for their official actions

and to exercise discretion of judicial nature

o Applies to the action of discretion- Tribunal must be clothed with power and authority to pass judgment or render a decision on the controversy

construing and applying the laws to that end

- Power to determine what the law is and what the legal rights of the parties are, and then undertakes todetermine these questions and adjudicate upon the rights of the parties

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Jurisdictional Issue

- Based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error committedby him or it in the exercise whereof will amount to nothing more than an error of judgment which may be

reviewed or corrected by appeal

- Where the act complained of was issued by the court, officer, or a quasi-judicial body without or in excess ofjurisdiction or wit grave abuse of discretion which is tantamount to lack or in excess of jurisdiction

Excess of Jurisdiction vs. Absence of Jurisdiction

Excess of Jurisdiction Absence of Jurisdiction

Though within the general power of a tribunal,

board, or officer, is not authorized and invalid with

respect to the particular proceeding because the

conditions which alone authorize the exercise of the

general power in respect of it are wanting

Lack or want of legal power, right, or authority o

hear and determine a cause or causes, considered

either in general or with reference to a particular

matter

Grave Abuse of Discretion

- Such kind of abuse must be grave-

Mere abuse of discretion is not enough- It is grave when it is exercised arbitrarily, or despotically by reason of passion or personal hostility- There must be a proof that the act of tribunal or court emanated from the capricious and whimsical exercise of

judgment

- Such capricious and whimsical exercise of judgment by the tribunal exercising judicial or quasi-judicial functionsas to amount to lack of power

Necessity for a motion for reconsideration

- The filing of motion for reconsideration is a condition sine qua non to the filing of a petition for certiorari to allowthe court an opportunity to correct its imputed errors

- Failure to file motion for reconsideration before certiorari could be a ground for outright dismissal of a petitionfor certiorari

- EXPN:1. Order is patent nullity, court a quo has no jurisdiction2. Questions raised have been duly raised and passed by the lower court3. There is urgent necessity for the resolution of the question and delay would prejudice the government4. Subject matter of the action is perishable5. MR would be useless6. Petitioner was deprived of dues process ad there is extreme urgency for relief7. In criminal cases, relief from order of arrest is urgent and the granting of such relief by the trial is improbabl8. Proceedings in the lower court are a nullity for lack of due process9. Where the proceedings was ex parte or in which the petitioner had no opportunity to object10. Issue raised in one purely of law

Procedure

- Filed a verified petitiona. Certified true copy of the judgmentb. Copies of all relevant pleadingsc. Sworn certification of non-forum shopping

- Filed within 60 days from notice of judgment order or resolution- Where

o RTC if MTC is respondento CA on quasi-judicial agencies

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o Sandiganbayano COMELEC

- Parties: party in the proceeding before the lower court; private respondent should appear- Public respondent shall not appear in or file an answer or comment to the petition or any pleading therein unles

the court directed the public respondent

- Order to Commento No summons is issued but an order requiring the respondent to comment on the petition within 10 days

from receipt thereof

- After the comment or other pleadings are filed, the court may hear the case or require the parties to submitmemoranda

- After such hearing or submission of memoranda the court funds the allegations of the petition are true, it shallrender judgment for the relief prayed for or to which the petitioner is entitled

- Certified copy of the judgment rendered in the certiorari proceedings shall be served upon the public respondenconcerned

Material Date Rule

- 3 Dates must be stated1. Date when the judgment or final order or resolution was received2. The date when a motion for new trial or a motion for reconsideration when one was filed3. The date when notice of the denial thereof was received

Sanction in case in unmeritorious petitions

- If it is patently without merit, prosecuted merely for delay or the question is too unsubstantial- The court may award in favor of the respondent treble costs solidarily against the petitioner and counsel

PROHIBITION

- Extraordinary writ commanding a tribunal, corporation, board or person, whether exercising functions that arejudicial, quasi-judicial or ministerial, to desist from further proceedings when said proceedings are without or in

excess of its jurisdiction, or with grave abuse of discretion, there being no appeal or any other plain, speedy and

adequate remedy in the ordinary course of law

- Purpose: prevent encroachment, excess, usurpation or assumption of jurisdiction on the part of tribunal,corporation, board or officer

Requites of Prohibition

1. Petition must be directed against a tribunal, corporation, board or person exercising judicial, quasi-judicial, orministerial functions

2. Tribunal acted without or in excess of jurisdiction or with grave abuse of discretion3. Appeal or any other plain, speedy and adequate remedy in the ordinary course of law4. Accompanied by a certified true copy of the judgment or order subject of the petition, copies of all pleadings and

documents relevant and pertinent thereto

Prohibition vs. Injunction

Prohibition InjunctionDirected to the court or tribunal directing it to

refrain from the performance of acts which it has no

jurisdiction

Directed against party to the action

Prohibition vs. Certiorari

Prohibition Certiorari

Directed not only to judicial or quasi-judicial act bit

even to a ministerial actAnnul a judicial or a quasi-judicial act

Directed to the court itself to restrain it from further Directed to the action of the court which is sought to

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proceeding with the case be annulled

Purpose is to command the respondent to desist

from further proceedings

To annul or modify the judgment, order, resolution

or proceedings of the public respondent

MANDAMUS

- Principal function is to command not to inquire, expedite or to adjudicate- An extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done:

a. When it or he unlawfully neglects the performance of an act which the law specifically enjoins as aduty and there is no other plain, speedy and adequate remedy in the ordinary course of law

b. It is also available when one unlawfully excludes another from the use and enjoyment of a right oroffice to which such offer is entitled

- Commands the performance of ministerial dutyo When it demands no special judgment, discretion, or skillo Not only ministerial but must also be a duty enjoined by law, a duty which the tribunal or person

unlawfully neglects to perform

- Discretionary acts are not compellable- Mandamus cannot be availed of as a remedy to enforce the performance of contractual obligations

Mandamus vs. Quo WarrantoMandamus Quo Warranto

Brought against the person responsible for excluding

the petitioner

Brought against the holder of the office, who is the

person claiming the offense as against the petitioner

Requisites for Mandamus

1. Plaintiff has a clear legal right to the act demanded and not in doubtful cases2. It must be the duty of the defendant to perform the act because the same is mandated by law3. Defendant is unlawfully neglects the performance of the duty enjoined by law4. The act to be performed is ministerial, not discretionary5. There is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law

RULE 66: QUO WARRANTO

Nature

- by what authority- Object is to determine the right of a person to the use or exercise of a franchise or office and to oust the holder

from forfeited his right to enjoy the office

Procedure

- Verified petition against1. Person who usurps a public office, position or franchise2. Public officer who performs an act constituting the Philippines without being legally incorporated or

without lawful authority to do so3. An association which acts as a corporation within the Philippines without being legally incorporated

or without lawful authority to do so

- Petitioner:o Solicitor General, public prosecutor, private person

- Jurisdiction and Venue SC, CA, RTC, Sandiganbayan- Period: within 1 year after the cause of the petitioner to hold such office or position arose

RULE 67: EXPROPRIATION

- Power of eminent domain

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o A right to take or reassert dominion over property within the state for public use or to meet a publicexigency and is said to be an essential part of governance even in its most primitive form and this

inseparable from the sovereignty

o Limits: only for public use and upon payment of just compensationo Scope is plenary and is as broad as the police powero May be delegated to local political subdivisions and public utilities

Requisite for Local Government

1. An ordinance is enacted by the local legislative council authorizing the local chief executive2. For public use, purpose, welfare, or for the benefit of the poor and landless3. Payment of just compensation4. Valid and definite offer and said offer was not accepted

Stages in the Expropriation Process

1. Determination of the authority of the plaintiff to expropriateo Include the inquiry on the propriety of the expropriation its necessity for public use

2. Determination of just compensation through the court-appointed commissioners

Procedure

- Verified complaint with the RTC (an action incapable of pecuniary estimation)o Certainty the right of the plaintiff to expropriation and the purposeo Describe the real property sought to be expropriatedo Join as defendants all persons owning or claiming to own, or occupying, any part of the property or

interest therein showing as far as practicable the interest of each defendant

- Defendant shall be served with summons- Defendant shall serve an answer of he has an objection to the filing of the complaint

o Specifically designate or identify the property in which he claims to have an interest and to state thenature and extent of the interest claimed

o Allege all his objections and defenseso File a leave to amend the answer within 10 days when failed to state the defenses and not to waive it

- Defendant may file an answer with counterclaim, cross-claim, or with leave of court file a third-party complainto Answer is not required when he does not have a defense to the action or to the taking, he may file

1. Notice of Appearance2. Manifestation

- Plaintiff should pay the deposit in money unless the court required a certificate of deposit- Notice is required to be sent to the defendant before placing the plaintiff in possession of the property- Court shall order the sheriff to place plaintiff in the possession of the property- Order of Expropriation will be issued declaring that the plaintiff has a lawful right to take the property for the

public use purpose described in the complaint upon the payment of just compensation in the event the

objections of the defendant are overruled or when no party appears to object to or to defend against

expropriation- May be appealed from by any party- If on appeal, the trial court was reversed and the court determined that there was no right there would be

restoration of the property to the defendant

Just Compensation

- Full and fair equivalent of the property sought to be expropriated- The measure is not the takers gain but the owners loss- To be just, must be fair and only to the owner but also to the taker

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- The market value of the property is the price that may be agreed upon by the parties willing but not compelled tenter onto the contract of sale

- Determined as of the date of the taking of the property or the filing of the complaint, whichever came first- Non-payment does not entitle the private landowner to recover possession

o Failed to pay in 5 years from finality of judgment - the owners shall have the right to recover possessionRULE 68: FORECLOSURE OF REAL ESTATE MORTGAGE

- Real Estate Mortgage (REM) an accessory contract- Constituted on either immovables or inalienable real rights- REM creates a real right which follows the property whoever the owner may become- Dragnet Clause or Blanket Mortgage Clause security for past, present, and future indebtedness

Pactum Commissiorium

- Agreement where the property will be automatically be owned by the mortgagee once there was non-payment- Null and void- Alternative remedies

1. File an action for collection of sum of money2. Foreclosure of mortgage, if one has been constituted

o Election of one operates as waiver of the other

Death of Mortgagor

- Mortgagee may avail of these remedies1. Abandon or waive the mortgagor security and claim the entire debt from the estate of the mortgagor in

accordance with Rule 86

2. Foreclosure of the mortgage judicially, making the executor or administrator a party defendant and claim andeficiency

3. Rely on the mortgageModes of Foreclosure of REM

1. Judicial Foreclosure - Rule 682. Extra-judicial Foreclosure Act No. 3135 amended by Act No 4118

Procedure

- Same as the ordinary civil action- Complaint

o Date and due executiono Assignment of the mortgage if anyo Names and residences of the mortgagoro Description of the mortgaged propertyo Statement of the date of the note and other documentary evidence of the obligation secured by themortgageo The amount claimed to be unpaido Names and residence of all persons having or claiming an interest in the property subordinate in right to

that of the holder of the mortgage, all of whom shall be made defendants in the action

- After trial court will render judgmentEquity of Redemption 90 -120 days from final judgment

- Right to extinguish the mortgage and retain ownership of the property by paring the debt

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- Period mentioned in the judgment of the court is the period within which the mortgagor may exercise equity ofredemption

- May be exercised even after the foreclosure sale provided it is made before the sale is confirmed by order of thecourt

- May also exist in favor of the encumbrancers

Right of Redemption 1 year from the date of sale (registration of the sale

- Right granted to mortgagor to repurchase the property even after the confirmation of the sale and even after thregistration on the certificate of sale

- Exist only in extra-judicial foreclosure- When mortgagor is juridical personredemption is until, nut not after the registration of the certificate of sale

and in no case be more than 3 months

- GR: No right of redemption in Judicial ForeclosuresEXPN: Banks are the mortgagees there is right of redemption 1 year from the date of registration

Confirmation of the Sale

- After the foreclosure sale h as been effected, the mortgagee should file a motion for the confirmation of the sal- If mortgagor was not notified of the hearing, the subsequent confirmation sale is vitiated and consequently it is

as of not confirmation ever took place

- Divest the rights in the property of all the parties to the action and shall vest their rights in the purchaser- Order of confirmation is appealable and if not appealed within the period for appeal becomes final- Registration of the Sale

Deficiency Judgment

- Execution may issue immediately- Rendered upon motion of a party- Accommodation Mortgagor not liable for deficiency

RULE 69: PARTITION

- Partition separation, division, and assignment of a thing held in common among hose to whom it may belongNature

- Presupposes the existence of a co-ownership over a property between two or more persons- May not demand for partition

1. An agreement among the co-owners to keep property undivided not exceeding 10 years2. Prohibited by the donor or testator not exceeding 20 years3. Partition is prohibited by law (Art. 494, NCC)4. Property is not subject to a physical division5. Condition imposed upon voluntary heirs is not yet fulfilled

- No time limit to demand partition on the part of the co-owner as long as co-ownership is presentModes of Partition

1. By agreement of the parties or Extra-judicialo Court shall still confirm the partition agreed upon by all parties

2. By judicial proceedingso If the parties cannot agree, court will appoint 3 commissionerso Commissioners shall make a full and accurate report to the court of all their proceedingso Court may accept the report and render judgment in accordance with such report

Procedure

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- Action shall be brought by the person who has a right to compel the partition of real estate composed ofpersonal property or of both real and personal

- During the trial, the court shall determine whether or not plaintiff is truly a co-owner- The primary issue then to he determined in an action for partition boils down to the issue whether or not a

plaintiff has the right to partition, an issue incapable of pecuniary estimation, filed in RTC

- The partition of the commissioners is not binding unless approved by the court- The whole estate must be settled first including all the expenses

RULE 70: FORCIBLE ENTRY AND UNLAWFUL DETAINER

Actions to recover possession of real property

1. Accion Interdictal (Ejectment) MTCo Summary in nature to provide expeditious means of protecting actual possession or the right to

possession

a. Forcible entry (detentacion) One is deprived of physical possession of real property by means of force, intimidation, strategy

threats or stealth

b. Unlawful Detainer (desahuico) One illegally withholds possession after the expiration or termination of his right to hold

possession under any contract, express or implied

2. Accion Publicianao Plenary action to recover the right of possession which should be brought when dispossession has lasted

for more than one year

3. Accion Reivindicatoriao Not only possession but also the ownership

Forcible Entry vs. Unlawful Detainer

Forcible Entry Unlawful Detainer

Possession of the defendant is illegal from the very

beginning having deprived the actual possessor of his

possession by force, intimidatio

Documents

RULE 38-71