CIVIL PROCEDURE The remedies against a final judgment are: 1. Motion for reconsideration 2.

Motion for new trial 3. Appeals The remedies against an executory judgment are: 1. Petition for relief 2. Annulment of judgment The remedies against a final judgment are found under Rule 37, as well as Rule 40-45. The remedies against an executory judgment are found under Rule 38 and Rule 47. Cases: 12 cases (doctrines) Rule 40 Appeals from MTC to RTC Rule 41 Appeals from RTC to the C.A When the appeals from the RTC to the C.A. the RTC exercises appellate jurisdiction it is governed by Rule 42. In Rule 40 and 41, the appeal there is may be by notice on appeal of by record on appeal which includes notice of appeal and the record on appeals includes notice of appeal. But the appeal you find under Rule 42, 43 and 45 are not by notice on appeal, but by Petition on Review. Notice of Appeal 15 days to do it. Petition for review similar to a complaint. Rules 42 43 45 a section provides for the content of what must constitute, what comprises petition for review. There are certain distinguishing facts of appeal. Either by notice of appeal or by record of appeal under Rules 40 to 41 Rule 40 since it is an appeal to the lower court to the regional trial court we have only 15 days to do that and also 15 days with in which to transmit the records to the RTC and 15 days within which to file the required memorandum as far as the appellant is concern copy furnish the appellee who has the same number of days with in which to prepare his appellees memorandum.

While is Rule 41 it is an appeal from the RTC to the C.A. you have also 15 days if it is a Notice of Appeal or 30 days if it is a Record on Appeal which includes a notice of appeal. But here the transmittal is not 15 days but rather 30 days from the RTC to the C.A. transmitted with in the period of 30days and as we said the continuation of Rule 41 is not Rule 42 but go to the ordinary appeal under Rule 44 where in from the time of transmittal of the records of the RTC to the C.A. the C.A. clerk of court will now direct or notify the appellant to submit within a period of 45 days a appellants brief. The content of which if found on Rule 44, which are the following: 1. Subject index 2. If the appellants brief is composed of more than 20pages , then you have the statement of facts, the statement of the case, assignment of errors, then you have argumentation and discussion followed by the last part it is the prayer. This is mandatory under Rule 44. If you do not comply with that then it is a ground for dismissal, under Rule 50 Section 1. The grounds of dismissal particularly paragraph F. That you have to comply with your preparation of your appellants brief, you have to comply with the chronological order as found in the official records transmitted from the RTC to the C.A. Rule 42 is an appeal from the RTC to the C.A. But this time the RTC is not exercising original jurisdiction but appellate jurisdiction. Kinds of actions that are exclusively and originally cognizable by the MTC. 1. Unlawful detainer 2. Forcible Entry 3. Summary Procedure If the appeal from the actions above, are definitely cognizable by the RTC under Rule 42, because in that instance considering the action is originally cognizable by the lower court and the appeal is from the RTC to the C.A. then its clear that the RTC is exercising appellate jurisdiction. In Rule 43 the appeal as from specific bodies, the quasijudicial bodies, the enumeration under section 1 of Rule 43 is not exclusive because every now and then. By process of elimination, just remember the five tribunals from which appeals directly go to the Supreme

Court and the rest to the C.A. so that would under Rule 43. 1. Court of Appeals 2. Court of Tax Appeals 3. Commission on Audit (COA) 4. Commission on Election (COMELEC) 5. Sandiganbayan When you file an appeal from these bodies, you go up to the Supreme Court. So all the rest it will be the Court of Appeals. So Rule 43 other than the regular courts therefore, the appeals must always be pursuant to Rule 43. Rule 43 is not by Notice of Appeal, it is by Petition for Review. Rule 44 is a continuation of Rule 41

because it is limited to pure questions of Law. One of the characteristics of pure questions of law, there is no need for presentation of evidence. If there is no need for presentation of evidence, no need for trial. The Supreme Court is not a triar of facts and because it is not a triar of facts it concerns only to the determination of what law will applies is a particular situation. The appeal from the RTC when it raises pure questions of law is not to the C.A. but to the Supreme Court. The Supreme Court being not a triar of facts. If you mix your questions of fact and question of law under Rule 45, your appeal is dismissible under Section 2 of Rule 50- That in cases of improper appeals there is no more transmittal or remanded cases under the 1997 Rules of Court. The only thing that the court should do is dismissed the appeal. Rule 46 is already a Original Action

Rule 45 is also known as appeal by Certiorari, it is not a separate action, it is a continuation of an action. While Rule 65 it is also called Certiorari is not a continuation of an action. It is totally a separate and distinct action which is Certiorari as a special civil action. Appeal under Rule 45, the trial courts under this rule are the following: 1. RTC 2. CA 3. Court of Tax Appeals 4. Sandiganbayan As amended by the amendatory Circular 07-7-12 Took effect last 2007 Rule 43 has eliminated Court of Tax Appeals and also under Rule 45 Court of Tax Appeals must be included. When you appeal by Certiorari under Rule 45 it cannot but be into the Supreme Court and the judgment and final order must emanate from the following bodies only. But under Rule 45, the appeal from the RTC is to the Supreme Court. With all the other four bodies, no problem because there is nowhere to go. Its only the RTC which appeal there from goes directly to the Supreme Court under Rule 45 because the usual procedure is to the Court of Appeals. The reason is

The Supreme Court, the Court of Appeals, the Regional Trial Courts can take cognizance of cases under their concurrent jurisdiction. Certiorari, Prohibition, Mandamus, Quo warranto and Habeas corpus, because under Rule 102. Rule 102 Habeas Corpus is concurrently cognizable by the Supreme Court. Can you file a petition for review under the Supreme Court, Yes, but it is not a matter of right. The decision of the Supreme Court from the Habeas Corpus case is implementable throughout the country as well as the C.A. But if it is under the RTC, it is only implementable within the jurisdictional region of the RTC. Rule 47 Remedy against an executory Judgment Rule 38 and Rule 47 are equitable remedies. The principle of equity is that if there is a law with so provides you will not apply the principle of equity. Only apply it if there is no specific provision of law. Now, why is it that this two particular remedies against an executory judgment are known as equitable remedies? Because you cannot avail of them even against an executory judgment had you had the chance to avail of Rule 37 and Rule 40 to 45. If it is your fault

that you did not go for new trial and reconsideration you cannot avail a petition for relief or annulment of judgment. This is only the instance, when the rule provides you a remedy against a executory judgment because it was not your fault not to avail of new trial, reconsideration under Rule 37 and appeal under Rules 40 to 45. But had you the chance and did not. The prescriptive period in Rule 38 is 6 months from entry or 60days from knowledge. When do you come to know of the judgment? You come to know of the judgment when you receive a copy of the judgment. So meaning when you received a copy of the judgment, you will wait for at least 60 days, you will not file an appeal, because you will file a petition for relief. No you cannot do that. Because your remedy against a final judgment is not a remedy against an executory judgment. And a remedy against an executory judgment is not a remedy against a final judgment. That is why Rule 47 is the ultimate remedy. Had you not have the chance to avail of the other remedies not because of your fault, but if you can be faulted yes you cannot avail of Rule 47 neither that Rule 38. Petition for relief of Judgment They have the same grounds: 1. Fraud 2. Accident 3. Mistake 4. Excusable negligence with ordinary prudence could have guard it against. In Rule 47; you are limited only to two which is: 1. Lack of jurisdiction 2. Extrinsic Fraud It is also a remedy for new trial under Rule 37 as well as petition for relief under Rule 38. Why because it is known as an equitable remedy Because lack of jurisdiction does not prescribed therefore. Lack of Jurisdiction does not prescribed, however it can be barred by the principle of laches, under Rule 47

Laches the period of time, and you simply slept on your right. The second ground for annulment of judgment which is extrinsic fraud, there is a prescription, and that is 4 years from discovery of fraud. Rule 47 is not a continuation of the action, unlike Petition from relief. The word petition is a misnomer, it refers to a separate action, a petition for relief should be called motion, because you have to filed it under the same docket number, under the same court but not annulment of judgment because in annulment of judgment it is a totally separate and distinct action. That is why upon filling of a petition for annulment of judgment, the court where you file it will issue summons. That is only annulment of judgment, solely limited to RTC, which is exclusively and originally cognizable by the C.A. So if you seek to annul a judgment of a quasi-judicial body, can you file an annulment of judgment? NO. the remedy is the Rule 43, which is limited to the prescriptive period. Annulment of judgment is only available against the Regional Trial Court. MTC, yes under section 10 Rule 47 judgment rendered by the MTC can be annulled as well, but the action must be filed to the RTC and not to the C.A. Rule 48 Preliminary Conference The preliminary conference here is with the C.A. Mediation and conciliation proceedings applies as well before the C.A. Rule 49 Oral Argument. It is matter of discretion on the part of the C.A. to call on Oral Argument, it is not a matter of right. A party cannot file a motion and setting the case for Oral argument. Both in the Court of Appeals and Supreme Court. Rule 50 is about Dismissal. Section 2 is improper appeal, no more remand or transmittal but dismissal.

Rule 51 Judgment refers to the Judgment of C.A. under Rule 51, section 6 harmless error means errors of the judgment that does not prejudice the substantial rights of the parties, which is correctible by amendment. If the errors are typographical errors which were sought to be corrected, that is harmless errors. Section 20, as discuss on section 2 second sentence of Rule 36 that is repeated on the second sentence of Section 10 of Rule 51. The date of finality shall be deemed to be the entry thereof. New Trial Reconsideration before the C.A. Starting with 49, that is already has reference to the C.A. to the Court of Appeals, New trial and Reconsideration. Rule 54 Internal Business is not a business at all, that is for the court, and they may have their specific rules. Rule 55 Publication there are certain, well that in all cases for Special proceedings the way the court may acquire jurisdiction over the subject matter is to publication. Now there are personal actions, that the court requires publication, the importance of Rule 55 if summons is thru publication, the judgment in that action would only become final after publication as well. Without a publication, if the court acquire jurisdiction over the person of the party thru publication then a judgment there from can only become executory after publication. Rule 56 has something to do with the Supreme Court. The Supreme Court can take cognizance as well of actions in its original jurisdiction. Section 5 Article 8 Constitution. The Court of Tax Appeals, Court of Appeals, Supreme Court and the Sandiganbayan, these are collegial bodies. But more importantly under rule 56, is discussed the collegiality of the Supreme Court, that the Supreme Court, can act in bank or it can act by division. In the court of appeals there is no in bank division. There is an inbanc decision in the Court of Tax Appeals, pursuant to the republic act 9242. But there is no inbanc in the Sandiganbayan as well as the Court of Appeals. In the Supreme Court it is compose of 3 divisions of 5 justices each, unlike in the C.A. any judgment in the C.A. must be not by majority but absolute conformity, the 3 justices in the division must agree. So that if there is a dissent in the C.A. then the presiding Justice in the C.A.

will create a special division consisting of 5 justices where a valid judgment, where a majority decision will comprise a valid judgment, otherwise it will not be a valid judgment. But in the Supreme Court there is no absolute conformity, a majority decision will validate a judgment considering that there are 5 justices in every division in the Supreme Court, the agreement between and among 3 of the 5 will render a valid judgment. There is no such thing as appeal in banc. All appeals to the Supreme Court is by petition for review not by notice of appeal except in Criminal cases where the impost penalty is death, reclusion perpetua or life imprisonment. Provisional Remedies Rule 57 Preliminary Attachment Rule 58 Preliminary Injunction Rule 59 Receivership Rule 60 Replevin Rule 61 Support Pendente Lite Overview: To remember use the acronym AIRRS Specific Characteristics of the Provisional Remedies: The word provisional speaks it up. Because it is a provisional remedy it cannot stand alone, it is therefore contingent, it is dependent, it will die a natural death and there is no such particular action of attachment because precisely it is provisional, it has to depend on a principal action they cannot stand alone they have to adhere to or depend on the principal action every provisional remedy must always go with or together with a principal action. So what is the principal action in the provisional remedy of Preliminary attachment? It is recovery of either real or personal property, that is the principal action, and it cannot stand alone, it must always adhere to or depend upon the principal action of recovery of real or personal property. How about preliminary injunction? The principal action is Injunction. There is an action for injunction as stated in section 4 of rule 39. An action for injunction is immediately executory. But it is already settled matter that there is a principal action of injunction to which the provisional remedy of preliminary injunction adheres.

Receivership it is both a principal action and provisional remedy, but to be literally true about it the provisional remedy is not receivership but rather is the appointment of a receiver. The principal action is Receivership and the provisional remedy is appointment of a receiver. Replevin is a provisional remedy, what is the principal action? The principal action to which it is attach is the recovery of possession of personal property. Support Pendente Lite, the principal action is for support. Second Characteristics of these provisional remedies Fundamentally the requirements in this provisional remedy is the posting of a Bond and the execution of the affidavit of merits, that is why we start at Rule 57 not with Section 1 but with Section 3. The only exception is Support Pendente Lite, because by its very nature, it contradicts the nature of the requirement of Bond posting. All the rest requires the posting of the bond. Which court has jurisdiction over provisional remedies? Because it adhere to a principal action, any court that take cognizance of the principal action then the provisional remedy goes with it. How about damages, can damages be claimed in provisional remedies? Yes pursuant to Section 20 of Rule 57. The issuance of the writ of a particular provisional remedy ordinarily must require notice and hearing but there are exceptions. Nuances of the specific Provisional Remedies: Under section 3 of Rule 57, the title is Affidavit of Bond. What are the requirements in availing of a writ or preliminary attachment , it requires the execution as affidavit of merits as well as the posting of the bond. Under Section 3 the affidavit must necessarily and mandatorily allege or required as well the following: 1. There must be a valid cause of action 2. There must be a valid ground (Section 1 Rule 57) 3. There must be no other security

4. That the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. What is the purpose for applying for a writ of preliminary attachment? In case there is a favorable judgment, there is no more writ of execution. Immediately go to sale on attachment. Sale of Attachment A writ of preliminary attachment is applied for, for the purpose of securing the satisfaction of a favorable judgment. Ordinarily how do you satisfy a favorable judgment? By motion for execution under rule 39, Under preliminary attachment go immediately to sale on attachment, because this property is already in custodial egis. What is the principal action? The recovery either real or personal property, the only principal action the preliminary may attach is an action for recovery of real or personal property. A files a case against B for recovery a sum of money in the amount of 20M. A may apply for a writ of preliminary attachment , property of B for the purpose to secure the favorable judgment. Can you always apply for preliminary attachment? No there are requirements. 1. There must be a valid cause of action 2. There must be a valid ground (Section 1 Rule 57) 3. There must be no other security That the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. What is the other purpose aside to secure the satisfaction of a favorable judgment? To enable the court to acquire jurisdiction over the RES of the action.

It is not necessary to acquire jurisdiction to the RES but since the court has no jurisdiction over the person of the defendant, then you convert the action quasi in rem. When the action is converted into an action quasi in rem, then the court does not have to acquire jurisdiction over the person of the defendant the case can continue. The limitation is that when you have a favorable judgment you are limited only to the RES, you cannot go beyond that. If you are able to attach the property because it is a personal action there must be summons, you cannot apply publication, so you have to attach the property. The common denominator is Fraud except paragraph 6. Ground for Preliminary Attachment 1. An action for specified amount of money or damages other than moral and exemplary on a cause 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. An action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer or an officer 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 a willful fiduciary capacity or a willful violation of duty. 3.