Mandamus. Rem. Law. 1.

A special civil
action to compel an officer to perform a
ministerial duty but not to compel the
performance of a discretionary duty.
[Calderon v. Sol. Gen., GR 103752-53. Nov.
25, 1992]. 2. A writ which commands an
individual, organization (e.g., government),
administrative tribunal or court to perform
a certain action, usually to correct a prior
illegal action or a failure to act in the first
place. [Duhaime's Legal Dict., 2004]. 3. A
writ by which a court commands the
performance of a particular act. [Jurists
Legal
Dict.,
2004].
Compare
with
Mandatory injunction.
Mandamus, petition for. Rem. Law. When
any tribunal, corporation, board, officer or
person unlawfully neglects the performance
of an act which the law specifically enjoins
as a duty resulting from an office, trust, or
station, or unlawfully excludes another from
the use and enjoyment of a right or office
to which such other is entitled, and there is
no other plain, speedy and adequate
remedy in the ordinary course of law, the
person aggrieved thereby may file a
verified petition in the proper court,
alleging the facts with certainty and
praying that judgment be rendered
commanding the respondent, immediately
or at some other time to be specified by the
court, to do the act required to be done to
protect the rights of the petitioner, and to
pay the damages sustained by the
petitioner by reason of the wrongful acts of
the respondent. [Sec. 3, Rule 65, RoC].
Mandamus; requisites for issuance of
writ. Rem. Law. It is essential for a writ of
mandamus to issue that the applicant has a
well-defined, clear and certain legal right to
the thing demanded and that it is the
imperative duty of defendant to perform
the act required. The corresponding duty of
the respondent to perform the required act
must be clear and specific. [Valmonte v.
Belmonte, GR 74930. Feb. 13, 1989].
Mandamus, writ of. Rem. Law. A writ which
may issue to compel the exercise of
discretion but not to control it. Mandamus
can require action only but not specific
action where the act sought to be
performed
involves
the
exercise
of
discretion [Assoc. of Small Landowners in
the Phil. v. Sec. of Agrarian Reform, 175
SCRA 343, citing Lamb v. Phipps, 22 Phil.
456].

Writ. 1. A judicial order directing a person to do

something. [Glossary of Legal Terms (Pro-Se),
2004]. 2. An official court document, signed
by a judge or bearing an official court seal,
which commands the person to whom it is
addressed, to do something specific. That
person is typically either a sheriff (who may
be instructed to seize property, for example)
or a defendant (for whom the writ is the first
notice of formal legal action. In these cases,
the writ would command the person to
answer the charges laid out in the suit, or else
judgment may be made against him in his
absence).
Writ of attachment. Substantially a writ of
execution except that it emanates at the
beginning, instead of at the termination, of a
suit. It places the attached properties in
custodia legis, obtaining pendente lite a lien
until the judgment of the proper tribunal on
the plaintiff's claim is established, when the
lien becomes effective as of the date of the
levy. [Santos v. Aquino, GR 86181-82. Jan. 13,
1992].
Writ of certiorari. An order issued by the
Supreme Court directing the lower court to
transmit records for a case for which it will
hear on appeal. [Glossary of Legal Terms (ProSe), 2004].
Appeal by certiorari. A mode of appeal upon
questions of law from the judgment of the
Regional Trial Court or the Court of Appeals
and is brought before the Supreme Court
under Rule 45 of the Rules of Court by a
Petition
for
review
on
certiorari.
[Morenos Law Dict., 2000 Ed., p. 32].
Compare with Special civil action for
certiorari.
Certiorari. 1. A writ from a superior court to an
inferior court or tribunal commanding the
latter to send up the record of a particular
case. [Pimentel v. COMELEC, GR L-53581-83.
Dec. 19, 1980, citing 14 CJS 121]. 2. A writ of
review issued by a higher court to a lower
court. A means of getting an appellate court
to review a lower court's decision. If an
appellate court grants a writ of certiorari, it
agrees to take the appeal. [Glossary of Legal
Terms (Pro-Se), 2004].
Certiorari - To be informed by an Appellate
review court.

Certiorari, petition for. A verified petition

filed in the proper court by the person

aggrieved by the action of any tribunal,

board,
or
officer
exercising
judicial
functions, without or in excess of its or his
jurisdiction, or with grave abuse of
discretion, and there is no appeal, nor any
plain, speedy, and adequate remedy in the
ordinary course of law, such petition
alleging the facts with certainty and
praying that judgment be rendered
annulling or modifying the proceedings, as
the law requires, of such tribunal, board or
officer. [Sec. 1, Rule 65, RoC].
Certiorari, petition for. Elements: (a) That
it is directed against a tribunal, board or
officer exercising judicial functions; (b) that
such tribunal, board or officer has acted
without or in excess of jurisdiction or with
grave abuse of discretion; and (c) that
there is no appeal nor any plain, speedy
and adequate remedy in the ordinary
course of law. [Sec. 1, Rule 65, RoC].
Certiorari, writ of. A writ the function of
which is to keep an inferior Court within the
bounds of its jurisdiction or to prevent it
from committing such a grave abuse of
discretion
amounting
to
excess
of
jurisdiction [Central Bank v. CA, GR 41859.
8 Mar. 1989, 171 SCRA 49].
Writ of error. The method of appealing
criminal cases where the appellate court
can only consider errors assigned by the
appellant and can not consider the facts
further than is necessary to reach a
conclusion upon the errors assigned by the
appellant. [US v. Padilla, GR 1883. May 1,
1905].
Writ of execution. An order of the court
evidencing debt of one party to another
and commanding the court officer to take
property in satisfaction of the debt.
[Glossary of Legal Terms (Pro-Se), 2004].
Writ of execution, quashing of. A writ
may be quashed or recalled only when: (a)
it appears that it has been improvidently
issued, (b) the writ is defective in
substance, or (c) it is issued against the
wrong party, or (d) the judgment debt has
been paid, or (e) the writ has been issued
without authority, or (f) there is a change in
the situation of the parties which makes
such execution inequitable, or (g) the
controversy was never submitted to the
judgment of the court [ Intl. School v. Min.

of Labor and Employment, GR 54243, July 21,

1989].
Writ of garnishment. An order of the court
whereby property, money, or credits in the
possession of another person may be seized
and applied to pay a debtor's debt. It is used
as an incident to or auxiliary of a judgment
rendered in a principal action. [Glossary of
Legal Terms (Pro-Se), 2004].
Writ of habeas corpus. A writ or order
directed to the person detaining another and
commanding him to produce the body of the
prisoner at a certain time and place, with the
day and cause of his detention, to do, submit
to, and receive whatsoever the court or judge
awarding the writ shall consider in that behalf.
[Suarez, Pol. Law Reviewer, 1st Ed., 2002, pp.
222-223, citing Blacks Law Dict., 837 (1951)].
Writ of possession. An order whereby the
sheriff is commanded to place a person in
possession of a real or personal property,
such as when a property is extrajudicially
foreclosed. [AG Devt Corp. v. CA, GR 111662.
Oct. 23, 1997, citing Moreno, Phil. Law Dict.,
1972 and Sec. 7, Act 3135, as amended].
Writ
of
preliminary
attachment.
A
provisional remedy issued upon order of the
court where an action is pending to be levied
upon the property or properties of the
defendant therein, the same to be held
thereafter by the sheriff as security for the
satisfaction of whatever judgment might be
secured in said action by the attaching
creditor against the defendant (Adlawan v.
Tomol, 184 SCRA 31 [1990] citing Virata v.
Aquino, 53 SCRA 30-31 [1973]).
Writ of preliminary injunction. 1. A
provisional remedy in the form of an order
issued by a judge before whom the action is
pending at any stage thereof prior to final
judgment requiring a person to refrain from a
particular act. It may also require the
performance of a particular act in which case
it shall be known as preliminary mandatory
injunction. 2. At times referred to as the
strong arm of equity, the writ of preliminary
injunction, whether prohibitory or mandatory,
is sought for the protection of the rights of a
party before the final determination of his
rights vis--vis others' in a pending case
before the court. [Heirs of Roxas v. IAC, GR
2
78618. May 29, 1989]

Writ of preliminary injunction, issuance

of. Requisites: (a) There must be a right in
esse or the existence of a right to be
protected; and (b) the act against which the
injunction is to be directed is a violation of
such right. [Cagayan de Oro City Landless
Residents Assoc. v. CA, GR 106043, Mar. 4,
1996 citing Sales v. SEC, 169 SCRA 109
(1989)].
Writ of sequestration. Essentially a
conservatory measure, somewhat in the
nature of a judicial deposit. It is a process
which may be employed as a conservatory
writ whenever the right of the property is
involved, to preserve, pending litigation,
specific property subject to conflicting claims
of ownership or liens and privileges. [Bataan
Shipyard Engg. Co. Inc. v. PCGG, GR 75885.
May 27, 1987, citing 79 CJS, 1047
Motion. Rem. Law. 1. An application for relief
other than by a pleading. It must be in
writing except those made in open court or
in the course of a hearing or trial. A motion
shall state the relief sought to be obtained
and the grounds upon which it is based,
and if required by the Rules of Court or
necessary to prove facts alleged therein,
shall be accompanied by supporting
affidavits and other papers. [Sec. 1-3, Rule
15, RoC]. 2. An application made to a court
or judge which requests a ruling or order in
favor of the applicant. [Glossary of Legal
Terms (Pro-Se), 2004].
Motion day. Rem. Law. Except for motions
requiring immediate action, all motions
shall be scheduled for hearing on Friday
afternoons, or if Friday is a non-working
day, in the afternoon of the next working
day. [Sec. 7, Rule 15, RoC].
Motion ex parte. Rem. Law. A motion made
to the court in behalf of one or the other of
the parties to the action, in the absence
and usually without the knowledge of the
other party or parties. [Claridades, A.,
Compilation of Notes, 2001-2006].
Motion for new trial. Rem. Law. Requisites:
(a) That the evidence was discovered after
the trial; (b) that such evidence could not
have been discovered and produced at the
trial even with the exercise of reasonable
diligence; and (c) that it is material, not
merely corroborative or impeaching; and of
such weight that it could probably change
the judgment if admitted. [People v. de la

Cruz, 207 SCRA 632, 641 (1992); People v.

Ducay, 225 SCRA 1, 18 [1993]; People v.
David, 230 SCRA 541, 547 (1994)].
Motion for reconsideration. Rem. Law. A
motion which is in the category of a litigated
motion which requires a notice of hearing and
proof of service. A remedy which an aggrieved
party may resort in law to point out defects or
errors in decision. [Morenos Law Dict., 2000
Ed., p. 300].
Motion in limine. Rem. Law. A motion made
by counsel requesting that information which
might be prejudicial not be allowed to be
heard in a case. [Glossary of Legal Terms (ProSe), 2004].
Motion of course. Rem. Law. A motion where
the movant is entitled to relief or remedy
sought as a matter of discretion on the part of
the court. [Claridades, A., Compilation of
Notes, 2001-2006].
Motion to dismiss. Rem. Law. A motion which
is generally interposed before trial to attack
the action on the basis of insufficiency of the
pleading, of process, venue, joinder, etc.
[Blacks Law Dict., Abr. 5th Ed. (1983), p. 526].
Motion to dismiss. Rem. Law. Grounds. Within
the time for but before filing the answer to the
complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the
following grounds: (a) That the court has no
jurisdiction over the person of the defending
party; (b) that the court has no jurisdiction
over the subject matter of the claim; (c) that
venue is improperly laid; (d) That the plaintiff
has no legal capacity to sue; (e) that there is
another action pending between the same
parties for the same cause; (f) that the cause
of action is barred by a prior judgment or by
the statute of limitations; (g) that the pleading
asserting the claim states no cause of action;
(h) that the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished; (i) that
the claim on which the action is founded is
unenforceable under the provisions of the
statute of frauds; and (j) that a condition
precedent for filing the claim has not been
complied with. [Sec. 1, Rule 16, RoC].
Motion to quash. Rem. Law. A motion in
writing signed by the accused or his counsel
3
specifying distinctly its factual and legal
grounds and the court shall consider no
grounds other than those stated in the

motion, except lack of jurisdiction over the

offense charged. [Sec. 2, Rule 117, RoC].
Motion to quash. Rem. Law. Grounds. The
accused may move to quash the complaint
or information on any of the following
grounds: (a) that the facts charged do not
constitute an offense; (b) that the court
trying the case has no jurisdiction over the
offense charged (c) that the court trying
the case has no jurisdiction over the person
of the accused; (d) that the officer who has
filed the information had no authority to do
so; (e) that it does not conform
substantially to the prescribed form; (f) that
more than one offense is charged except
when a single punishment for various
offenses is prescribed by law; (g) that the
criminal action or liability has been
extinguished; (h) that it contains averments
which, if true, would constitute a legal
excuse or justification; and (i) that the
accused has been previously convicted or
acquitted of the offense charged, or the
case against him was dismissed or
otherwise terminated without his express
consent. [Sec. 3, Rule 117, RoC].
Motion to reopen. Rem. Law. A motion
which may properly be presented only after
either or both parties have formally offered,
and closed their evidence, but before
judgment. Unlike a motion for new trial, it is
not specifically mentioned and prescribed
as a remedy by the Rules of Court. [Alegre
v. Reyes, GR L-56923. May 9, 1988].
Petition. 1. Rem. Law. The formal, written
document submitted to a court, and which
asks for the court to redress what is
described in the petition as being an
injustice of some kind. Petitions set out the
facts, identifies the law under which the
court is being asked to intervene, and ends
with a suggested course of action for the
court to consider (e.g., payment of
damages to the plaintiff). [Duhaime's Legal
Dict., 2004]. 2. Elec. Laws. The written
instrument containing the proposition and
the required number of signatories. It shall
be in a form to be determined by and
submitted to the Commission on Elections.
[Sec. 3, RA 6735].
Petitioner. The person filing an action in a
court of original jurisdiction. Also, the
person who appeals the judgment of a
lower court. [Glossary of Legal Terms (ProSe), 2004]. See Respondent.

Petition for relief from judgment. Rem. Law.

A special remedy in which equity and justice
justify the grant to give the petitioner a last
chance to defend his right or protect his
interest. It is available only after a decision or
judgment from which relief is sought has
became final and executory. [Garcia v. CA, GR
96141. Oct. 2, 1991].
Prohibition, petition for. 1. When the
proceedings of any tribunal, corporation,
board, or person, whether exercising functions
judicial or ministerial, are without or in excess
of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other
plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved
thereby may file a verified petition in the
proper court alleging the facts with certainty
and praying that judgment be rendered
commanding the defendant to desist from
further proceedings in the action or matter
specified therein. [Sec. 2, Rule 65, RoC]. 2.
Preventive action intended to stop the court,
corporation, board or person exercising
judicial or ministerial functions from the
usurping or exercising jurisdiction which it/he
does not have. Prohibition does not undo
action but restraints further proceedings. An
aggrieved party may file this petition if there
is no appeal or any other plain, speedy or
adequate remedy in the ordinary course of
law which will prevent the performance of
some act. [Claridades, A., Compilation of
Notes, 2001-2006].
Prohibitive laws, rule on. The rule that
prohibitive laws concerning persons, their acts
or property, and those which have for their
object public order, public policy and good
customs shall not be rendered ineffective by
laws, or judgments promulgated, or by
determinations or conventions agreed upon in
a foreign country. [Art. 17, CC].
Prohibitory injunction. Rem. Law. An
injunction that operates to restrain the
commission or continuance of an act and to
prevent threatened injury. It commands a
person to refrain from doing an act. Its sole
objective is to preserve the status quo until
the merits can be heard. [Morenos Law Dict.,
2000 Ed., p. 369]. 2. The relief demanded in
the plaintiff's complaint which consists in
4
restraining the commission or continuance of
the act complained of, either perpetually or
for a limited period, and the other conditions

required by Sec. 3, Rule 58 of the Rules of

Court are present. The purpose of this
provisional remedy is to preserve the status
quo of the things subject of the action

during the pendency of the suit. [Calo v.

Roldan, GR L-252. Mar. 30, 1946]. Compare
with Mandatory injunction.