Q: By what authority?
Q: When is appeal perfected? A: Under the residual jurisdiction.
Supposing in a case, Mr. X file a
motion for reconsideration, Mr. Y filed Q: When the record has already been
a Motion for New Trial and Z filed a transmitted, where will you file?
notice of appeal. A: To the Court of appeals, but note,
A: Appeal is not perfected to Mr. X the CA can NEVER issue writ of
and Mr. Y because they did not file a execution but only an order directing
notice of appeal. Appeal is perfected the Trial court to issue a writ of
only as to Z, upon the filing of notice execution.
of appeal in due time, appeal as to Z
is perfected. What is “in due time”? It is incumbent now for the clerk of
Within 15 days from notice or receipt court of the RTC to transmit the
of judgment. record to the CA and therefrom, the
duty shifts to the clerk of court of the
Q: Will appeal be ever be perfected to CA.
X and Y?
A: Yes, only when they file a notice of Q: Rule 40 vs Rule 41
appeal in due time. A: Under Rule 40, the appellant files a
memorandum upon receipt of the
Q: What if a motion for new trial or notice of the order of the court
reconsideration is denied, when will directing him to file the same within
they file? 15 days from receipt. A memorandum
A: Remember the fresh day rule, is a summary of what transpired in
within 15 days from notice of denial. the trial court and does not require a
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format. Under rule 41, appellant files 1. Not meritorious;
an appellant’s brief and the appellee 2. Filed manifestly for delay; or
an appellee’s brief within the period of 3. Issues raised therein is not that
45 days and thereafter an appellant’s substantial which requires
reply brief (discretionary) within the consideration of the court.
same period. The Briefs are
mandatory and non compliance of If it is granted, it will require the
which is a ground for the dismissal of parties to file a comment, not a
an appeal as provided for in Rule 50 motion to dismiss.
Section (f). The substance of the
appellant’s brief is the arguments, RULE 43
discussion in the assignment of Remember that wala ng CTA dyan
errors.
Just remember the five (5) bodies,
NOTE: If you are using the record of CA, CTA, COA, COMELEC and
the case, you do not use your Sandiganbayan.
personal record but rather the record
on the appellate court. In the Civil Service Commission, the
appeal is brought to the CA.
Just remember that Rules 41, 44 and
50 are related to each other. In the National Labor Relations
Commission, the appeal is brought to
RULE 42 the CA under Rule 65. If you would
The Regional Trial Court here is acting recall, there is no really appeal from
or exercising its appellate jurisdiction. the decision of the NLRC, but because
The case started from the MTC, of the St. Martin Funeral Homes case,
appealed to the RTC and a petition for as reiterated in the case of
review with the CA. Examples are Rubberworld, appeal may now be
cases of Unlawful detainer and forcible made to the CA but not as an ordinary
entry. appeal, it is under Rule 65. What is
peculiar about the said rule is that you
Appeal here is by petition for review; can raise pure question of facts.
distinguish the same from certiorari
under Rule 45. Under Rule 42, it is In the cases cognizable by the HLURB,
similar to an original complaint. Errors the same maybe filed before the
committed by the Trial Court (MTC) HLURB arbiter. In case of an appeal, it
and also by the Appellate Court can be made to the HLURB
(RTC). You do not file a notice of Commissioner, then appeal to the
appeal or record on appeal here, what Office of the President. The decision of
you file is a petition for review. It also the Officer of the President is
requires payment of the correct appealable to the CA.
docket fees. Upon the receipt of the
Petition for Review, the Court of In the cases cognizable by the
Appeals may either grant or dismiss DARAB, appeal to the secretary. You
the petition on the ground of: need not make an appeal to the Office
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of the President since it can be argued petition while in the case of the
that the Secretary is the alter ego of respondent, the court acquires
the President. Then from there, you jurisdiction over his person upon
appeal to the CA. receipt of the order directing him to
file a comment.
RULE 45
Section 1 provides that it limits only Q: Suppose the petition is dismiss, is
to three (3) tribunals: it necessary to acquire jurisdiction
1) Sandiganbayan; over the person of the respondent?
2) Court of Appeals; A: Yes, otherwise the dismissal order
3) Regional Trial Court; and will not be effective upon the
4) Any other body authorized by law. respondent over which the court did
Issues raised therein are only pure not acquire jurisdiction.
questions of law.
Q: What do you raise here?
Q: Do not confuse this with Rule 65. A: Only pure questions of law. If what
Most Bar questions, they asked you to was raised was facts and law, the
distinguish Rule 45 from Rule 65. The Supreme Court must dismiss it.
two may be distinguish:
A: NOTE: In the Court of Appeals, what
1. Under Rule 45, it is a mode of can be raised are pure questions of
appeal while in Rule 65 it is a fact and law or questions of fact only.
special civil action; In the Supreme Court, questions of
2. Under Rule 45, it needs to law only without facts because the
comply with the requirements of Supreme Court is not a trier of facts
an appeal, you do not change and is not suppose to scrutinize and
the parties involved therein and accept evidence.
you have 15 days to make an
appeal from notice of the RULE 46
judgment or order. While under Original cases filed. Concurrent
Rule 65, this is a separate Jurisdiction. Certiorari Prohibition and
action, hence it need not comply Mandamus, as well as quo warranto
with the requirements of an and annulment of judgment of the
appeal. The parties herein is the RTC is originally filed to the CA. But
court or officer or tribunal and remember, even if it’s concurrent, you
you have 60 days to file a do not have the option, you still have
petition for certiorari from to apply the hierarchy of courts.
notice of the judgment.
RULE 47
Q: Is it necessary for the court to Annulment of Judgment, this is your
acquire jurisdiction over the person of last remedy available. It refers to
the parties? judgment or final order of the RTC. It
A: In the case of the petitioner, the is exclusively cognizable by the CA.
Supreme Court acquires jurisdiction
over his person upon the filing of the
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Q: Suppose B filed a case for a sum of Motion for Reconsideration, same
money in the MTC against A. A ground with Rule 37. Filed only with
decision was rendered in favor of the the CA.
latter. No motion for new trial, no
motion for reconsideration and no RULE 53
appeal was taken therefrom. There is New Trial based only on Newly
extrinsic fraud. He filed an annulment Discovered Evidence. Why? The CA
of judgment, where will he file it? now can receive evidence unlike
A: Not with the CA but to the RTC. before.
Remember, walang didiretso from
MTC to CA or SC.
RULE 55
Q: What are the grounds for the Summons
annulment of judgment?
A: RULE 56
1. Extrinsic Fraud (prescriptive period Amended already, no more automatic
is 4 years from the discovery of appeal.
fraud);
2. Lack of Jurisdiction (no prescriptive
period but may be limited to
estoppel and laches)
RULE 48
Preliminary Conference here is at any
time.
RULE 50
Read Section 1
RULE 52
Q: Why 20 days?
A: It is because this is roughly 3
weeks. And within a 3 week period,
the court must hear whether or not to
grant the writ of preliminary
injunction. The court is a very busy
body and you cannot set it for hearing
immediately because there are other
cases filed before it.
Note: This is the shortest period Note: We’ve studied 3rd party claim in
wherein the sheriff have custody of Rule 39 execution, 3rd party claim in
the property, in attachment from attachment and again here in
application which may be from the replevin. Sec. 16, 14 dito naman 7.
commencement of the action until The same provision, meaning if a 3 rd
final judgment which may last for 10 party claims ownership or entitlement
years. Here, you may even file for of possession of the property subject
receivership kasi baka yung property of replevin then the applicant must
e ginagamit na ng sheriff. And usually file another bond which is not less
you do not assign the sheriff or the than the value of the property. So 3
clerk of court as a receiver. It is even na. This is without prejudice to a
advisable not to assign a party to the possible action for damages filed
case as a receiver. against the 3rd party claimant if the 3rd
party claimant’s claim is found to be
Q: How much the bond be? frivolous or fraudulent. Where do you
A: Twice the value of the property. file it? Either in the same action or a
separate action for damages.
Q: What are the grounds for filing an NOTE: There was an old SC circular
action for mandamus? which provides that the 60 day period
A: includes the filing of a Motion for
1. Neglect in the performance of Reconsideration. However, in 2005
duty imposed by law there was a new circular which states
2. Exclusion from enjoyment of an that the old circular does not apply to
office Rule 65 so the 60 day period is
counted from the notice of receipt of
Q: Doctrine in the case of Lapid V. denial of the motion for
Laurea reconsideration.
A:
1. Requirement preparatory to the Q: Doctrine of UP Board of Regeants
filing of petition for certiorari Case
General Rule: Filing of a A: In mandamus rights must be very,
motion for reconsideration is very clear so that if the right is
mandatory to give the tribunal a doubtful, mandamus will not lie.
chance to correct itself
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Q: Distinguish mandamus from quo
warranto. For example: Mayor Atienza
has a city attorney which is Atty. X
whom he replaced with Atty. Y with no RULE 66 QUO WARRANTO
valid reason. Against whom may Atty. Q: What is the doctrine in the
X file mandamus and against whom Mendoza Case?
may he file quo warranto? A: Quo warranto is directed against
A: Atty. X can file mandamus against the person and not against the office.
Mayor Atienza because by the latter's Also plaintiff is not entitled to
act he was excluded from the backwages.
enjoyment of his office. Atty. X can
file quo warranto against Atty. Y Q: Who initiates Quo warranto?
because he is a usurper of Atty. X's A: Office of the Solicitor General,
office. public prosecutors and relators.
Q: Jurisdiction?
A: Concurrent SC, CA or RTC but
never in Sandiganbayan except in aid
of appellate jurisdiction
Q: Doctrine in Javellosa V. CA
A: Distinction between Unlawful
detainer (UD) and Forcible Entry (FE)
UNLAWFUL FORCIBLE
DETAINER ENTRY
Possession was Possession is
lawful at the illegal from the
beginning and beginning
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became illegal
thereafter
There is a need to There is no need
establish prior to establish prior Q: A is the lessor and B is the lessee
possession possession who was not able to pay rentals for
Illegal detention of Deprivation of the several months. A filed a case of
the property right of unlawful detainer against B. Judgment
possession of was rendered in favor of B. Is the
property judgment in favor of B immediately
There is a need No need for a executory?
for demand demand A: No because he was already in
Action must be Action must be possession of the property.
filed from period filed 1 year from
of 1 year from the accrual of action Q: What is immediately executory in
last demand the judgment as provided under
Possession was Not applicable sec.19?
acquired by force, A: The return of the property.
threat, Restoration or restitution to the one
intimidation or who is entitled to possession.
stealth
Q: How is execution stayed?
Q: Who are the aggrieved parties? A: Requisites for stay of execution
A: Vendor, vendee, lessor or any 1. Perfection of appeal by filing a
other person deprived of possession notice of appeal
2. Supersedeas bond
Q: Is the lessee included? 3. Deposit of the amount for the use
A: Generally no because the lessee is and occupancy of the premises
assumed to be in possession. He may
be included under those other persons Q: What is a supersedeas bond?
deprived of possession. A: Unpaid rentals. If there are no
unpaid rentals there is no
Q: In ejectment the only issue is supercedeas bond.
possession de facto. Can you raise the
issue of ownership? If so what is the Q: How much is the supersedeas
effect? bond?
A: It will not divest the court of its A:
jurisdiction. The court shall resolve 1. In accordance with judgment
the issue of ownership only to resolve 2. If there is no judgment, in
the issue of possession. Resolution as accordance with the contract
to ownership in ejectment cases is 3. In the absence of contract,
only provisional. according to what was paid as
NOTE: Old rule prior to BP 129 rentals
provides that if issue of ownership is
raised, the court is divested of its Q: What is the amount for use and
jurisdiction. occupancy?
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A: Payment of rental during the
pendency of the appeal. Q: Doctrine in Refugia Case
A: Motion for reconsideration is a
Q: How much? prohibited pleading only in the MTC
A: Same as supersedeas bond. under summary procedure. When the
case has already been appealed to the
Q: Where do you file notice of appeal? RTC, MR is already allowed.
A: In the municipal trial court
Q: When?
A: General rule on or before the 10th
day of each succeeding month. For
example the rent due for the month of
april should be paid on or before May
10.
Exception: When payment of rental
must be paid in advance in
accordance with the contract.
NOTE: Non-compliance with even one
month would render the judgment
immediately executory.