POST-JUDGMENT REMEDIES  An appeal is being taken by filing a notice of appeal, and
it is perfected upon the expiration of the last day of the
MOTION OFR NEW TRIAL AND RECONSIDERATION
(RULE 37)
What is a MOTION FOR NEW TRIAL?
→ It is a complete retrial of the case after judgment has been
rendered based on the grounds specified under Sec 1 of Rule
37.
What is a MOTION FOR RECONSIDERATION?
→ It is an application filed by the aggrieved party asking to set
aside or reconsider a judgment or final order issued by the
court which is not supported or contrary to by law; or the
findings is not supported by evidence on record.
Constitutional Mandate in making a rule on a Motion for
Reconsideration:
SEC 14, ART VII: “NO petition for review or MOTION FOR
RECONSIDERATION of a decision of the court shall be refused
due course or denied WITHOUT STATING the LEGAL BASIS
therefor.”
SECTION 1 (1st Par). GROUNDS OF AND PERIOD FOR FILING
MOTION FOR NEW TRIAL
Within the period for taking an appeal, the aggrieved party may
move the trial court to set aside the judgment or final order and
grant a new trial for one or more of the following causes
materially affecting the substantial rights of said party:
a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or
b) Newly discovered evidence, which he could not with
reasonable diligence, have discovered and produced at
the trial, and which if presented would probably alter the
result.
Meaning of “within the period for taking an appeal” under the
Rules:
period to appeal by any party.
 When record on appeal is required, appeal is taken by
filing a notice of appeal and the record of appeal; and the
appeal is perfected upon the approval of the record on
appeal.
FRAUD
→ EXTRINSIC FRAUD refers to any fraudulent act of the
prevailing party in the litigation which is committed
outside of the trial of the case, whereby the
unsuccessful party has been prevented from exhibiting
fully his case, by fraud or deception practiced on him by
his opponent. (PTA vs PGDE)
ACCIDENT
→ An event that takes place without one’s foresight or
expectation. An event that proceeded from an unknown
cause.
MISTAKE
→ An incorrect belief held by some concerned about a fact
involved in a transaction or a proceeding, or an incorrect
opinion about the law which governs the transaction of
proceedings.
EXCUSABLE NEGLIGENCE
Negligence is excusable where it is caused:
→ By failure to receive notice of the action or trial
→ By a genuine and excusable mistake or miscalculation
→ By reliance upon assurance given by those upon whom
the party had a right to depend
→ By relying on another person to attend the case for him,
when such other person promised to do so or was
chargeable with that duty
→ By other circumstances not involving fault of the moving
party
 Building Care Corp. vs Macaraeg
As a rule, MISTAKE OF COUNSEL BINDS THE CLIENT. The only
exception would be, where observance of it would result in
outright deprivation of the client’s liberty or property, or where
the interest of justice so requires.
PTA vs PGDE
It is well-settled that the NEGLIGENCE OF COUNSEL BINDS THE
CLIENT. Unless such acts involve gross negligence that the
claiming party can prove, the acts of counsel bind the client as if
it has been the latter’s act.
Heirs of Racaza vs Sps. Abay-Abay
While the Rules of Court allows the introduction by parties of
newly-discovered evidence, as in the motions for new trial under
Rule 37, these are not to be presented for the first time during
an appeal.
Under the Rules of Court, the requisites for newly
discovered evidence are:
a) The evidence was discovered after trial
b) Such evidence could not have been discovered and
produced at the trial with reasonable diligence
c) It is material,corroborative or impeaching, and is of such
that, if admitted, will probably change the judgment.
SECTION 1 (2nd Par). GROUNDS OF AND PERIOD FOR FILING
MOTION FOR RECONSIDERATION
Within the same period, the aggrieved party may also move for
reconsideration upon the grounds:
 that the damages awarded are excessive,
 that the evidence is insufficient to justify the decision or
final order, or
 that the decision or final order is contrary to law.
Siy vs CA
The PURPOSE of a motion for reconsideration is to point out
the findings and conclusions of the decision which, in the
movant’s view, are not supported by law or evidence.
Heirs of Timbol vs PNB
Filing of a Motion for Reconsideration is merely PERMISSIVE
and not mandatory under Rule 37. as such, a party
aggrieved by the trial court’s decision may either move for
reconsideration or appeal to the CA.
No motion for extension of time to file a motion for
new trial or reconsideration shall be allowed. This means
that, within 15days from notice of judgment, a party may
file either an appeal or a motion for reconsideration.
Habaluyas Enterprises Inc. vs Japson
Motion for Extension of time to file Motion for
Reconsideration does NOT TOLL the 15-day period to
appeal. However, the rule may be suspended where the
lawyer’s negligence is without any participatory negligence
on the part of the petitioner.
Jonsay vs Solidbank Corp.
The filing of a motion for reconsideration or new trial
interrupts or suspends the running of the period to appeal,
and prevents the finality of the decision or order from
setting in.
A motion for reconsideration allows the adjudicator
or judge to take a second opportunity to review the case
and to grapple anew with the issues therein, and to decide
again a question previously raised.
No legal proscription imposed against the deciding
body adopting new position contrary to one it had
previously taken.
SEC. 2. CONTENTS of MOTION FOR NEW TRIAL or
RECONSIDERATION and notice thereof.— The motion shall
be:
1) made in writing
2) stating the ground or grounds therefor,
3) a written notice of which shall be served by the
movant on the adverse party.

A motion for new trial shall be PROVED in the manner provided
for proof of motions.
How to prove fraud, accident, mistake or excusable negligence?
A motion for the cause mentioned in paragraph (a) (fraud,
accident, mistake and excusable negligence) of the preceding
section shall be supported by AFFIDAVITS OF MERITS which may
be rebutted by affidavits.
How to prove newly discovered evidence?
A motion for the cause mentioned in paragraph (b) (newly
discovered evidence) shall be:
a) supported by AFFIDAVITS OF THE WITNESSES by whom
such evidence is expected to be given, or
b) by duly AUTHENTICATED DOCUMENTS which are
proposed to be introduced in evidence.
What are the requirements for the filing of a motion for
reconsideration?
A motion for reconsideration shall:
1) point out specifically the findings or conclusions of the
judgment or final order which are not supported by the
evidence or which are contrary to law,
2) making express reference to the testimonial or
documentary evidence OR to the provisions of law alleged
to be contrary to such findings or conclusions.
A PRO FORMA MOTION for new trial or reconsideration shall
NOT TOLL the reglementary period of appeal.
What is a PRO FORMA MOTION?
→ (Literally a motion in form only) is one which is filed merely
for delay and as a matter of form to interrupt the period of
appeal.
When is a motion for reconsideration or new trial pro forma?
→ When it does not specify the findings or conclusions in the
judgment which are not supported by evidence or which are
contrary to law, making express reference to the
pertinent evidence or legal provisions, as expressly
required by Sec.2, Rule 37.
WHEN IS PRO FORMA MOTION PROHIBITED AND WHEN IT
IS NOT:
First-Lepanto-Taisho Insurance vs Chevron Phils.
Mere reiteration of the issues passed upon by the court
does NOT make it a pro forma motion.
Gonzalez vs COMELEC
Elements of pro forma motion for reconsideration:
1) It was a second motion for reconsideration, or
2) It did not comply with the rule that the motion must
specify the findings and conclusions alleged to be
contrary to law or not supported by the evidence, or
3) It failed to substantiate the alleged errors, or
4) It merely alleged that the decision in question was
contrary to law, or
5) The adverse party was not given notice thereof.
San Juan Jr vs Cruz
Prohibition on pro forma APPLIES ONLY to a FINAL ORDER
and not to interlocutory order.
SEC. 3. ACTION UPON MOTION FOR NEW TRIAL OR
RECONSIDERATION.—
The trial court may:
1. SET ASIDE the judgment or final order and grant a
new trial, upon such terms as may be just, or
2. may DENY the motion.
3. If the court finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may AMEND such
judgment or final order accordingly.
SEC. 6. EFFECT OF GRANTING OF MOTION FOR NEW TRIAL. — If
a new trial is granted in accordance with the provisions of this
Rule,:
1) the original judgment or final order shall be VACATED, and
2) the action shall stand for trial de novo; but
3) the recorded evidence taken upon the former trial, in so
far as the same is material and competent to establish the
issues, shall be used at the new trial without retaking the
same.
SEC. 5. SECOND MOTION FOR NEW TRIAL.—
A MOTION FOR NEW TRIAL shall include all grounds then
available and those not so included shall be deemed waived.
A SECOND MOTION FOR NEW TRIAL, based on a ground not
existing nor available when the first motion was made,
→ may be filed within the time herein provided excluding the
time during which the first motion had been pending.
No party shall be allowed a SECOND MOTION FOR
RECONSIDERATION of a judgment or final order. (SINGLE
MOTION RULE)
Is an omnibus motion rule applicable in a motion for new trial?
→ YES. A motion for new trial shall include all grounds then
available and those not so included shall be deemed waived.
SEC. 7. PARTIAL NEW TRIAL OR RECONSIDERATION. —
If the grounds for a motion under this Rule appear to the court
to affect the issues as to:
 only a part, or
 less than all of the matter in controversy, or
 only one, or
 less than all, of the parties to it,
→ the court may order a new trial or grant reconsideration
as to such issues if SEVERABLE without interfering with
the judgment or final order upon the rest.
SEC. 8. EFFECT OF ORDER FOR PARTIAL NEW TRIAL. —
When less than all of the issues are ordered retried, the
court may either:
1) enter a judgment or final order as to the rest, or
2) stay the enforcement of such judgment or final order
until after the new trial.
SEC. 9. REMEDY AGAINST ORDER DENYING A MOTION FOR
NEW TRIAL OR RECONSIDERATION.—
An order denying a motion for new trial or reconsideration
is not appealable, the REMEDY being an APPEAL from the
judgment or final order.
Jose vs Javellana
The court has held that an appeal from an order denying a
motion for reconsideration of a final order or judgment is
effectively an appeal from the final order or judgment itself;
and has expressly clarified that the prohibition against
appealing an order denying a motion for reconsideration
REFERRED ONLY to a denial of a motion for reconsideration
of an INTERLOCUTORY ORDER.
APPEAL FROM MTC TO THE RTC (RULE 40)
APPEAL IN GENERAL
What is an APPEAL?
→ A civil law procedure whose office is to remove the
entire cause and subjects the transcript to a scrutiny of
fact and law and is in substance a new trial.
When can an appeal be TAKEN?
→ An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular
matter therein when declared by the rules to be
appealable.
 Zamboanga Forest vs New Pacific Forest

NATURE OF RIGHT TO APPEAL Perfection of Appeal is MANDATORY and

JURISDICTIONAL
Sps. Bergonia vs CA
→ Failure of party to conform to the rules regarding
→ The right to appeal is not a natural right and is not part of appeal will render the judgment FINAL and
due process. It is merely a STATUTORY PRIVILEGE, and may EXECUTORY.
be exercised only in accordance with the law.
→ Once decision attains finality, it becomes the law of the
→ The party who seeks to avail of the same must comply with case irrespective of whether the decision is erroneous
the requirements of the Rules. Failing to do so, the right to or not and no court (not even the SC) has the power to
appeal is LOST. revise, review, change or alter the same.

→ The basic rule of finality of judgment is grounded on

Sps. Elbe vs Mirasol the fundamental principle of public policy and sound
practice that the judgment of courts and the award of
Strict Compliance with the Requirements on Appeal is quasi-judicial agencies must become final at some
REQUIRED. definite date fixed by law.

→ The statutory nature of the right to appeal requires the one

who avails himself of it to strictly comply with the statutes
or rules that are considered indispensable interdictions Catmon Sales vs Yngson Jr.
against needless delays and for an orderly discharge of It is well-settled that a party who failed to appeal from a
judicial business. decision CANNOT seek relief other than what is provided
→ In the ABSENCE of highly exceptional circumstances by the judgment appealed from.
warranting their relaxation, such statutes or rules should
remain inviolable.
Besana vs Mayor

ISSUES NOT RAISED in the lower court or tribunal

Samson vs Judge Fiel-Macaraig CANNOT be RAISED for the first time on appeal.
PURPOSE OF APPEAL → Basic considerations of fairness and due process impel
→ To obtain reversal or modification of the judgment on the this rule. Any issues raised for the first time on appeal
merits. is barred by estoppel.

→ The availability of the right to appeal precludes recourse to

the special civil action for certiorari. Note:

→ Lack of jurisdiction may be raised for the first time on

Aseoche vs Dicdican appeal.

Administrative Case against erring Judges is NOT a Remedy if → Party cannot change the theory of his case on appeal.
APPEAL is AVAILABLE.

→ Where some other judicial means is available, an Sumipat vs Banga

administrative complaint is not the appropriate remedy for
every act of a judge deemed abberant or irregular. Grounds where the Court can review issues not assigned
on appeal:

Our rules recognize the broad discretionary power of an

appellate court to waive the lack of proper assignment of
errors and to consider errors not assigned.

a) Grounds not assigned as errors but affecting

jurisdiction over the subject matter
 b) Matters not assigned as errors on appeal but are
evidently plain or clerical errors within contemplation of
law
c) Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a just
decision and complete resolution of the case or to serve
the interests of justice or to avoid dispensing piece-meal
justice.
d) Matters not specifically assigned as errors on appeal but
raised in the trial court and are matters of record having
some bearing on the issue submitted which the parties
failed to raise or which the lower court ignored.
e) Matters not assigned as errors on appeal but closely
related to an error assigned
f) Matters not assigned as errors on appeal but upon which
the determination of a question properly assigned, is
dependent.
MODES OF APPEAL (RULE 40-45)
1st mode: ORDINARY APPEAL under Rule 41
→ Brought to the CA from the RTC in the exercise of its
original jurisdiction
→ Resolves questions of fact or mixed questions of fact
and law
2nd mode: PETITION FOR REVIEW under Rule 42
→ Brought to the CA from the RTC, acting in the exercise of
its appellate jurisdiction
→ Resolves questions of fact or mixed questions of fact or
law
3rd mode: APPEAL BY CERTIORARI under Rule 45
→ Brought to the SC
→ Resolves questions of law
SECTION 1. WHERE TO APPEAL.—
An appeal from a judgment or final order of a Municipal Trial
Court may be taken to the REGIONAL TRIAL COURT exercising
jurisdiction over the area to which the former pertains.
The title of the case shall remain as it was in the court of
origin, but the party appealing the case shall be further
referred to as the appellant and the adverse party as the
appellee. (n)
SEC. 2. WHEN TO APPEAL.—
An appeal may be taken within fifteen (15) days AFTER
NOTICE to the appellant of the judgment or final order
appealed from.
Where a RECORD ON APPEAL is required, the appellant
shall file a notice of appeal and a record on appeal within
thirty (30) days AFTER NOTICE of the judgment or final
order.
The period of appeal shall be INTERRUPTED by a timely
motion for new trial or reconsideration.
NO motion for extension of time to file a motion for new
trial or reconsideration shall be allowed.
Neypes vs CA
NEYPES DOCTRINE or FRESH PERIOD RULE.
→ The Court has deemed it practical to allow a fresh
period of 15 days within which to file the notice of
appeal, to be counted from the RECEIPT of the ORDER
DENYING the motion for new trial, motion for
reconsideration or any final order or resolution.
→ This is to standardize the appeal periods provided in
the Rules and to afford litigants fair opportunity to
appeal their cases.
Jocson vs San Miguel
The appeal from a decision of the Provincial Adjudicator
to the Department of Agrarian Reform Adjudication
Board (DARAB) as provided in the 2003 DARAB Rules of
Procedure, is not judicial but administrative in nature. As
such, the Fresh Period Rule finds NO APPLICATION
therein.
 Duarte vs Duran
→ Litigants must be given a fresh period of 15 days within
which to appeal counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration under Rule 40, 41, 42, 43 and 45 of the
Rules of Court.
→ The ruling retroactively applies even to cases pending prior
to the promulgation of Neypes on Sept. 14, 2005, there
being no vested rights in the rules of court.
SEC. 3. HOW TO APPEAL.— The appeal is taken by:
1) filing a NOTICE OF APPEAL with the court that rendered the
judgment or final order appealed from.
The notice of appeal shall indicate:
 the parties to the appeal,
 the judgment or final order or part thereof
appealed from, and
 state the material dates showing the timeliness of
the appeal.
2) A RECORD ON APPEAL shall be required only in special
proceedings and in other cases of multiple or separate
appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal
where required, shall be SERVED on the ADVERSE PARTY.
SEC. 4. PERFECTION OF APPEAL; EFFECT THEREOF. — The
perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41.
When will an appeal be deemed PERFECTED? (SEC. 9. Rule 41)
 A party’s appeal by notice of appeal is deemed
perfected as to him upon — the FILING of the notice of
appeal in due time.
 A party’s appeal by record on appeal is deemed
perfected as to him with respect to the subject matter
thereof upon — the APPROVAL of the record on appeal
filed in due time.
What is the EFFECT of perfection of appeal? (SEC. 9. Rule
41)
 In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time
to appeal of the other parties.
 In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due time
and the expiration of the time to appeal of the other
parties.
What are the RESIDUAL POWERS of the court? (SEC. 9.
Rule 41)
In either case, prior to the transmittal of the original
record or the record on appeal, the court may issue:
1) orders for the protection and preservation of the
rights of the parties which do not involve any
matter litigated by the appeal
2) approve compromises,
3) permit appeals of indigent litigants,
4) order execution pending appeal in accordance with
section 2 of Rule 39, and
5) allow withdrawal of the appeal.
SEC. 7. PROCEDURE IN THE REGIONAL TRIAL COURT. —
a) Upon receipt of the complete record or the record on
appeal,
→ the CLERK OF COURT of the Regional Trial Court
shall NOTIFY the parties of such fact.
b) Within fifteen (15) days from such notice, it shall be the
duty of the appellant
→ to SUBMIT a memorandum which shall briefly discuss
the errors imputed to the lower court, a COPY of which
shall be furnished by him to the adverse party.
→ Within fifteen (15) days from receipt of the appellant’s
memorandum, the appellee may FILE his memorandum.
→ FAILURE of the APPELLANT to file a memorandum shall
be a ground for DISMISSAL OF THE APPEAL.
c) Upon the filing of the memorandum of the appellee or the
expiration of the period to do so,
→ the case shall be considered submitted for decision.
→ The Regional Trial Court shall decide the case on the
basis of the entire record of the proceedings had in the
court of origin and such memoranda as are filed.
SEC. 8. APPEAL FROM ORDERS DISMISSING CASE WITHOUT
TRIAL; LACK OF JURISDICTION.—
 If an appeal is taken from an order of the lower court
dismissing the case WITHOUT a TRIAL ON THE MERITS,
→ the Regional Trial Court may AFFIRM or REVERSE it, as
the case may be.
 In case of affirmance and the ground of dismissal is lack
of jurisdiction over the subject matter,
→ the Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as if the
case was originally filed with it.
 In case of reversal,
→ the case shall be REMANDED for further
proceedings.
 If the case was tried on the merits by the lower court
WITHOUT JURISDICTION OVER THE SUBJECT MATTER,
→ the Regional Trial Court on appeal shall not dismiss the
case if it has original jurisdiction thereof,
→ but shall decide the case in accordance with the
preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the
interest of justice.
SEC. 9. APPLICABILITY OF RULE 41. — The other
provisions of Rule 41 shall apply to appeals provided for
herein insofar as they are not inconsistent with or may
serve to supplement the provisions of this Rule.
APPEAL FROM THE RTC TO THE CA (RULE 41)
When appeal may be taken? Orders NOT APPEALABLE?
SECTION 1. SUBJECT OF APPEAL.—
An appeal may be taken from a judgment or final order
that completely disposes of the case, OR of a particular
matter therein when declared by these Rules to be
APPEALABLE.
NO APPEAL may be taken from:
a) An order denying a motion for new trial or
reconsideration;
b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
c) An interlocutory order;
d) An order disallowing or dismissing an appeal;
e) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating
consent;
f) An order of execution;
g) A judgment or final order for or against one or more of
several parties or in separate claims, counterclaims,
cross-claims and third-party complaints, while the
MAIN CASE is pending, UNLESS the court allows an
appeal therefrom; and
h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final
order is NOT APPEALABLE, the aggrieved party may file
an appropriate SPECIAL CIVIL ACTION under Rule 65.
 Supreme Court by PETITION FOR REVIEW ON
CERTIORARI in accordance with Rule 45.
Abadilla Jr vs Sps. Obrero

An order of dismissal of an INJUNCTION CASE is APPEALBALE.

Mandaue Realty vs CA

QUESTION OF LAW QUESTION OF FACT

Korea Technologies vs Lerma
 Exists when there is doubt or  Exists when the doubt or
Rationale of the non-appealable character of interlocutory
controversy as to what the difference arises as to the
order.
law is on a certain state of truth or falsehood of facts.
→ it would result in the “sorry spectacle” of a case being facts.
subject of counterproductive ping-pong to and from the
 No examination of probative  Requires examination of
appellate court as often as a trial court is perceived to have
value of the evidence is probative value of the
made an error in any of its interlocutory rulings.
necessary to resolve the evidence.
→ Where the assailed interlocutory order was issued with question of law.
grave abuse of discretion or patently erroneous and the
 Test: whether the appellate  Otherwise, it is a question of
remedy of appeal would not afford adequate and
court can determine the fact.
expeditious relief, the Court allows certiorari as a mode of
issue raised without
redress.
reviewing or evaluating the
evidence and would only
limit itself to the inquiry of
whether the law was
properly applied given the
SEC. 2. MODES OF APPEAL.—
facts and supporting
a) Ordinary appeal— The appeal to the Court of Appeals in evidence.
cases decided by the Regional Trial Court in the exercise of
its original jurisdiction shall be taken:

→ by FILING a NOTICE OF APPEAL with the court which

rendered the judgment or final order appealed from and

→ SERVING a COPY thereof upon the adverse party.

No record on appeal shall be required EXCEPT in special
proceedings and other cases of multiple or separate
appeals where the law or these Rules so require.
In such cases, the record on appeal shall be filed and
served in .like manner.
b) Petition for review.— The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of
its appellate jurisdiction shall be:
SEC. 3. PERIOD OF ORDINARY APPEAL.— The appeal shall
be taken:
 within fifteen (15) days from notice of the judgment
or final order appealed from.
 Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal
within thirty (30) days from notice of the judgment
or final order.

→ by PETITION FOR REVIEW in accordance with Rule 42. The period of appeal shall be INTERRUPTED by a timely
motion for new trial or reconsideration.

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

of law are raised or involved, the appeal shall be to the No motion for extension of time to file a motion for new
trial or reconsideration shall be allowed.

SEC. 4. APPELLATE COURT DOCKET AND OTHER LAWFUL
FEES.—
Within the period for taking an appeal, the appellant shall:
 PAY to the clerk of the court which rendered the judgment
or final order appealed from, the full amount of the
appellate court docket and other lawful fees.
 Proof of payment of said fees shall be transmitted to the
appellate court together with the original record or the
record on appeal.
Sps. Lee vs LBP
Procedural requirement of payment of docket fees and other
legal fees within the prescribed period is BOTH MANDATORY
and JURISDICTIONAL.
→ The payment of the full amount of the docket fee is an
indispensable step for the perfection of an appeal.
→ In both original and appellate, the court acquires
jurisdiction over the case only upon the payment of the
prescribed docket fees, otherwise the Decision sought to be
appealed from becomes final and executory.
SEC. 5. NOTICE OF APPEAL.— The notice of appeal shall:
 indicate the parties to the appeal,
 specify the judgment or final order or part thereof appealed
from,
 specify the court to which the appeal is being taken, and
 state the material dates showing the timeliness of the
appeal.
SEC. 6. RECORD ON APPEAL; FORM AND CONTENTS
THEREOF.—
1) The full names of all the parties to the proceedings shall be
stated in the caption of the record on appeal and
2) it shall include the judgment or final order from which the
appeal is taken and,
3) in chronological order, copies of only such pleadings,
petitions, motions and all interlocutory orders as are related
to the appealed judgment or final order for the proper
understanding of the issue involved,
4) together with such data as will show that the appeal
was perfected on time.
5) If an issue of fact is to be raised on appeal, the record
on appeal shall include by reference all the evidence,
testimonial and documentary, taken upon the issue
involved.
6) The reference shall specify the documentary evidence
by the exhibit numbers or letters by which it was
identified when admitted or offered at the hearing, and
the testimonial evidence by the names of the
corresponding witnesses.
7) If the whole testimonial and documentary evidence in
the case is to be included, a statement to that effect
will be sufficient without mentioning the names of the
witnesses or the numbers or letters of exhibits.
8) Every record on appeal exceeding twenty (20) pages
must contain a subject index.
SEC. 7. APPROVAL OF RECORD ON APPEAL.—
Upon the filing of the record on appeal for approval and if
no objection is filed by the appellee within five (5) days
from receipt of a copy thereof, the trial court may:
 APPROVE it as presented or
 upon its own motion or at the instance of the
appellee, may direct its AMENDMENT by the
inclusion of any omitted matters which are deemed
essential to the determination of the issue of law or
fact involved in the appeal.
If the trial court orders the AMENDMENT of the record,
the appellant, within the time limited in the order, OR
such extension thereof as may be granted, OR if no
time is fixed by the order within ten (10) days from
receipt thereof, shall:
 redraft the record by including therein, in their
proper chronological sequence, such additional
matters as the court may have directed him to
incorporate, and
 shall thereupon submit the redrafted record for
approval, upon notice to the appellee, in like
manner as the original draft.
SEC. 8. JOINT RECORD ON APPEAL.— Where both parties are
appellants, they may FILE A JOINT RECORD ON APPEAL within
the time fixed by section 3 of this Rule, or that fixed by the
court.
SEC. 13. DISMISSAL OF APPEAL.—
Prior to the transmittal of the original record or the record on
appeal to the appellate court,
→ the trial court may MOTU PROPRIO or on MOTION
dismiss the appeal for having been TAKEN OUT OF TIME.
copies of the judgments or final orders of both lower
courts, certified correct by the clerk of court of the
Regional Trial Court, the requisite number of plain copies
thereof and of the pleadings and other material portions
of the record as would support the allegations of the
petition.The petitioner shall also submit together with the
petition a certification under oath that he has not
theretofore commenced any other action involving the
same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency;
if there is such other action or proceeding, he must state
the status of the same; and if he should thereafter learn
that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals,
or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5)
days therefrom. (n)

PETITION FOR REVIEW FROM THE RTC TO THE CA

(RULE 42)

SECTION 1. How appeal taken; time for filing. — A party

desiring to appeal from a decision of the Regional Trial Court
rendered in the exercise of its appellate jurisdiction may file a
verified petition for review with the Court of Appeals, paying at
the same time to the clerk of said court the corresponding
docket and other lawful fees, depositing the amount of
P500.00 for costs, and furnishing the Regional Trial Court and
the adverse party with a copy of the petition. The petition shall
be filed and served within fifteen (15) days from notice of the
decision sought to be reviewed or of the denial of petitioner’s
motion for new trial or reconsideration filed in due time after
judgment. Upon proper motion and the payment of the full
amount of the docket and other lawful fees and the deposit for
costs before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15)
days only within which to file the petition for review. No
further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days.
(n)

SEC. 2. Form and contents.— The petition shall be filed in

seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a)
state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the specific material
dates showing that it was filed on time; (c) set forth concisely a
statement of the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and the reasons or
arguments relied upon for the allowance of the appeal; (d) be
accompanied by clearly legible duplicate originals or true
SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE
UNLESS otherwise directed by the court, the number of court
bond papers that a party is required or desired to file shall be
as follows:
b) In the CA and Sandiganbayan, 1 original (properly
marked) and 2 copies with their annexes.
SEC. 3. EFFECT OF FAILURE TO COMPLY WITH
REQUIREMENTS.— The failure of the petitioner to comply with
any of the foregoing requirements regarding:
 the payment of the docket and other lawful fees,
 the deposit for costs,
 proof of service of the petition, and
 the contents of and the documents which should
accompany the petition
→ shall be sufficient ground for the DISMISSAL thereof.
Mathaeus vs Sps. Medequiso
Notarization of verification and certification on non-forum
shopping on the petition for review by a Clerk of Court is NOT
VALID and amounts to NON-COMPLIANCE with the
requirements.
→ Notarizing complaints, answers, petitions, or any other
pleadings on a regular basis is a responsibility well relegated
to commissioned notary public.
SEC. 5. CONTENTS OF COMMENT.— The comment of the
respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions
of the record referred to therein together with other
supporting papers and shall:
a) state whether or not he accepts the statement of
matters involved in the petition;
b) point out such insufficiencies or inaccuracies as he
believes exist in petitioner’s statement of matters
involved but without repetition; and
c) state the reasons why the petition should not be given
due course.
A copy thereof shall be served on the petitioner.
SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE
UNLESS otherwise directed by the court, the number of
court bond papers that a party is required or desired to
file shall be as follows:
b) In the CA and Sandiganbayan, 1 original (properly
marked) and 2 copies with their annexes.
SEC. 6. DUE COURSE.—
If upon the filing of the comment or such other pleadings
as the court may allow or require OR after the expiration
of the period for the filing thereof without such comment
or pleading having been submitted,
→ the Court of Appeals finds prima facie that the
lower court has committed an error of fact or law
that will warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition.
SEC. 8. PERFECTION OF APPEAL; EFFECT THEREOF. —
 Upon the timely filing of a petition for review and
 the payment of the corresponding docket and other
lawful fees
→ the APPEAL is deemed PERFECTED as to the
petitioner.
The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
(Effect of perfection)
However, before the Court of Appeals gives due course to
the petition, the Regional Trial Court may: (Residual Powers
of the RTC)
1) issue orders for the protection and preservation of
the rights of the parties which do not involve any
matter litigated by the appeal,
2) approve compromises,
3) permit appeals of indigent litigants,
4) order execution pending appeal in accordance with
section 2 of Rule 39, and
5) allow withdrawal of the appeal.

Except in civil cases decided under the Rule on Summary
Procedure,
→ the appeal shall STAY the judgment or final order
→ UNLESS the Court of Appeals, the law, or these Rules
shall provide otherwise. (Effect of perfection)
SEC. 9. SUBMISSION FOR DECISION.—
If the petition is given due course, the Court of Appeals may:
1) set the case for oral argument or
2) require the parties to submit memoranda within a
period of fifteen (15) days from notice.
3) The case shall be deemed submitted for decision upon
the filing of the last pleading or memorandum required
by these Rules or by the court itself.
APPEALS FROM THE QUASI-JUDICIAL AGENCIES TO
THE CA (RULE 43)
What is a QUASI-JUDICIAL POWER?
→ The action, discretion, etc. Of public administrative officers
or bodies, who are required to investigate facts, or ascertain
the existence of facts. Hold hearings, and draw conclusions
from them, as a basis for their official action and to exercise
discretion of a judicial nature.
SECTION 1. SCOPE.— This Rule shall apply to appeals from
judgments or final orders of the:
1) Court of Tax Appeals and
2) from awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its
quasi-judicial functions. Among these agencies are:
 the Civil Service Commission,
 Central Board of Assessment Appeals,
 Securities and Exchange Commission,
 Office of the President,
 Land Registration Authority,
 Social Security Commission,
 Civil Aeronautics Board, Bureau of Patents,
 Trademarks and Technology Transfer,
 National Electrification Administration,
 Energy Regulatory Board,
 National Telecommunications Commission,
 Department of Agrarian Reform under Republic Act No,
6657,
 Government Service Insurance System,
 Employees Compensation Commission,
 Agricultural Inventions Board,
 Insurance Commission,
 Philippine Atomic Energy Commission,
 Board of Investments,
 Construction Industry Arbitration Commission, and
 voluntary arbitrators authorized by law.
Wong vs Wong
Enumeration under Rule 43 are NOT EXCLUSIVE.
Gupilan-Aguilar vs Ombudsman
Nature of the case in Ombudsman determines the proper
remedy available to the aggrieved party. In administrative
disciplinary cases, an appeal from the OMB’s decision is
APPEALABLE to the CA under Rule 43, unless the decision
is not appealable owing to the penalty imposed.
Golden Cane vs Steelpro Phils.
Decisions of the RTC in CORPORATE REHABILITATION
CASE is APPEALABLE to the CA via Rule 43.
SEC. 2. CASES NOT COVERED.— This Rule shall not apply
to judgments or final orders issued under the LABOR
CODE of Philippines.
SEC. 3. WHERE TO APPEAL. — An appeal under this Rule
taken to the COURT OF APPEALS within the period and in
the manner herein provided, whether the appeal involves
questions of fact, of law, or mixed questions of fact and law.
SEC 4. PERIOD OF APPEAL.— The appeal shall be taken within
fifteen (15) days:
 from notice of the award, judgment final order or
resolution, or
 from the date of its last publication, if publication is
required by law for its effectivity, or
 of the denial of petitioner’s motion for new trial or
reconsideration duly filed in accordance with the
governing law of the court or agency a quo.
ONLY one (1) motion for reconsideration shall be ALLOWED.
Upon proper motion and the payment of the full amount of
the docket fee BEFORE the expiration of the reglementary
period,
→ the Court of Appeals may GRANT an additional period of
fifteen (15) days only within which to file the petition
for review.
→ No further extension shall be granted EXCEPT for the
most compelling reason and in no case to exceed fifteen
(15) days.
SEC. 5. HOW APPEAL TAKEN.— Appeal shall be taken by:
1) filing a verified petition for review in seven (7) legible
copies with the Court of Appeals,
2) with proof of service of a copy thereof on the adverse
party and on the court or agency a quo.
3) The original copy of the petition intended for the Court
of Appeals shall be indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall: (Duty of the
Petitioner)
 pay to the clerk of court of the Court of Appeals the
docketing and other lawful fees and
 deposit the sum of P500.00 for costs.
EXEMPTION from payment of docketing and other lawful fees
and the deposit for costs may be:
→ GRANTED by the Court of Appeals upon a VERIFIED
MOTION setting forth valid grounds therefor.
→ If the Court of Appeals denies the motion, the
petitioner shall PAY the docketing and other lawful
fees and deposit for costs within fifteen (15) days
from notice of the denial.
SEC. 6. CONTENTS OF THE PETITION.— The petition for
review shall
a) state the full names of the parties to the case,
without impleading the court or agencies either as
petitioners or respondents;
b) contain a concise statement of the facts and issues
involved and the grounds relied upon for the
review;
c) be accompanied by a clearly legible duplicate
original or a certified true copy of the award,
judgment, final order or resolution appealed from,
together with certified true copies of such material
portions of the record referred to therein and other
supporting papers; and
d) contain a sworn certification against forum
shopping as provided in the last paragraph of
section 2, Rule 42.
e) The petition shall state the specific material dates
showing that it was filed within the period fixed
herein.
SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE
UNLESS otherwise directed by the court, the number of
court bond papers that a party is required or desired to
file shall be as follows:
b) In the CA and Sandiganbayan, 1 original (properly
marked) and 2 copies with their annexes.
SEC. 7. EFFECT OF FAILURE TO COMPLY WITH
REQUIREMENTS.— The failure of the petitioner to comply
with any of the foregoing requirements regarding:
 the payment of the docket and other lawful fees,
 the deposit for costs,
 proof of service of the petition, and
  the contents of and the documents which should
accompany the petition
→ shall be sufficient ground for the DISMISSAL thereof.
SEC. 8. ACTION ON THE PETITION.— The Court of Appeals
may:
1) require the respondent to FILE A COMMENT on the
petition, not a motion to dismiss, within ten (10) days
from notice, or
2) DISMISS the petition if it finds the same to be patently
without merit, prosecuted manifestly for delay, or
3) that the questions raised therein are too unsubstantial
to require consideration.
SEC. 9. CONTENTS OF COMMENT.— The comment shall be:
 filed within ten (10) days from notice
 in seven (7) legible copies and
 accompanied by clearly legible certified true copies of
such material portions of the record referred to therein
together with other supporting papers.
The comment shall:
a) point out insufficiencies or inaccuracies in -petitioner’s
statement of facts and issues; and
b) state the reasons why the petition should be denied or
dismissed.
c) A copy thereof shall be served on the petitioner, and proof
of such service shall be filed with the Court of Appeals.
SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE
UNLESS otherwise directed by the court, the number of court
bond papers that a party is required or desired to file shall be
as follows:
b) In the CA and Sandiganbayan, 1 original (properly
marked) and 2 copies with their annexes.
SEC. 10. DUE COURSE.—
 If upon the filing of the comment or such other
pleadings or documents as may be required or allowed
by the Court of Appeals or
 upon the expiration of the period for the filing thereof,
and
 on the basis of the petition or the records
the Court of Appeals finds prima facie that the court or
agency concerned has committed errors of fact or law
that would warrant reversal or modification of the award,
judgment, final order or resolution sought to be reviewed,
→ it may give due course to the petition;
→ otherwise, it shall dismiss the same.
The findings of fact of the court or agency concerned,
when supported by substantial evidence, shall be
BINDING on the Court of Appeals.
SEC. 12. EFFECT OF APPEAL.—
The 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.
SEC. 13. SUBMISSION FOR DECISION.—
If the petition is given due course, the Court of Appeals
may:
 set the case for oral argument or
 require the parties to submit memoranda within a
period of fifteen (15) days from notice.
The case shall be deemed submitted for decision upon
the FILING of the LAST PLEADING or MEMORANDUM
required by these Rules or by the Court of Appeals.
APPEAL BY CERTIORARI TO THE SC (RULE 45)
Constitutional Basis:
SEC 5, ART VIII, par. 2: provides the power of the SC to review by law, may file with the Supreme Court a verified
cases decided by the lower courts. petition for review on certiorari.

QUESTION OF LAW QUESTION OF FACT

The petition shall raise only questions of law which
 arises when there is a doubt  when doubt arises as to the
as to what the law is on a truth or falsity of the alleged must be distinctly set forth.
certain state of facts facts.

 it must not involve an
examination of the probative
value of the evidence
presented by the litigants.
 Once it is clear that the issue
invites a review of the
evidence presented
Alta Vista vs City of Cebu
RTC judgment on pure questions of law may be
DIRECTLY APPEALED to the SC via Petition for Review
on Certiorari.

 The resolution of the issue

must rest solely on what the Agustin-Se vs Office of the President
law provides on the given set
What is the test in determining whether the question
of facts and circumstances
is one of law or fact?
Test of whether a question is one of law or of fact:

whether the appellate court can determine the issue without

examining or evaluating the evidence,
→ in which case, it is a question of law; otherwise, it is a question
of fact.
“(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
a) All cases in whichthe constitutionality or validity of
any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in
relation thereto.
c) All cases in which the jurisdiction of any lower court
is in issue.
d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher
Heirs of Cadlina vs Cadiz
The right recourse against the dismissal of petitioners’
appeal with the CA is an appeal by certiorari under
Rule 45, not certiorari under Rule 65.
Special People Inc vs Canda
It is a settled rule that in the exercise of our power of
review, the SC is not a trier of facts and does not
normally undertake the re-examination of the evidence
presented by the contending parties during the trial of the
case. The Court relies on the findings of fact of the CA or
of the TRIAL COURT, and accepts such findings as
conclusive and binding unless any of the following
EXCEPTIONS obtains, namely:
a) when the findings are grounded entirely on speculation,
surmises or conjectures;
b) when the inference made is manifestly mistaken, absurd or
impossible;

e) All cases in which only an error or question of law c) when there is grave abuse of discretion;
is involved.”
d) when the judgment is based on a misapprehension of facts;

e) when the findings of facts are conflicting;

f) when in making its findings the Court of Appeals or the trial

SECTION 1. FILING OF PETITION WITH SUPREME COURT. — A
party desiring to appeal by certiorari from a judgment or final
order or resolution of the Court of Appeals, the Sandiganbayan,
the Regional Trial Court or other courts whenever authorized
court went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the
appellee;
g) when the findings are contrary to the trial court;
 h) when the findings are conclusions without citation of specific
evidence on which they are based;
i) when the facts set forth in the petition as well as in the
petitioner’s main and reply briefs are not disputed by the
respondent;
j) when the findings of fact are premised on the supposed absence
of evidence and contradicted by the evidence on record; and
k) when the Court of Appeals or the trial court manifestly
overlooked certain relevant facts not disputed by the parties,
which, if properly considered, would justify a different
conclusion.
SEC. 2. TIME FOR FILING; EXTENSION. — The petition shall be
filed within fifteen (15) days:
 from notice of the judgment or final order or resolution
appealed from, or
 of the denial of the petitioner’s motion for new trial or
reconsideration filed in due time after notice of the
judgment.
On motion duly filed and served, with full payment of the
docket and other lawful fees and the deposit for costs BEFORE
the EXPIRATION of the REGLEMENTARY PERIOD,
→ the Supreme Court may for justifiable reasons GRANT an
extension of thirty (30) days only within which to file the
petition.
SEC. 3. DOCKET AND OTHER LAWFUL FEES; PROOF OF SERVICE
OF PETITION. — Unless he has theretofore done so, the
petitioner shall:
1) pay the corresponding docket and other lawful fees to
the clerk of court of the Supreme Court and
2) deposit the amount of P500.00 for costs at the time of
the filing of the petition.
3) Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted
together with the petition.
SEC. 4. CONTENTS OF PETITION.— The petition shall be filed in
eighteen (18) copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall:
a) state the full name of the appealing party as the
petitioner and the adverse party as respondent, without
impleading the lower courts or judges thereof either
as petitioners or respondents;
b) indicate the material dates showing when notice of
the judgment or final order or resolution subject
thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of
the denial thereof was received;
c) set forth concisely a statement of the matters
involved, and the reasons or arguments relied on for
the allowance of the petition;
d) be accompanied by a clearly legible duplicate original,
or a certified true copy of the judgment or final
order or resolution certified by the clerk of court of
the court a quo and the requisite number of plain
copies thereof, and such material portions of the
record as would support the petition; and
e) contain a sworn certification against forum shopping
as provided in the last paragraph of section 2, Rule
42.
SEC.5 (a) AM 11-9-4: EFFICIENT USE OF PAPER RULE
UNLESS otherwise directed by the court, the number of
court bond papers that a party is required or desired to
file shall be as follows:
a. In the SC, 1 original (properly marked) and 4 copies,
UNLESS the case is referred to the Court En Banc, in
which event, the parties shall file 10 additional
copies.
For the En Banc, the parties need to submit only 2
sets of annexes, 1 attached to the original and an
extra copy.
For the Division, the parties need to submit also 2
sets of annexes, 1 attached to the original and an
extra copy.
All members of the Court shall share the extra copies
of annexes in the interest of economy of papers.
SEC. 5. DISMISSAL OR DENIAL OF PETITION.— The failure
of the petitioner to comply with any of the foregoing
requirements regarding:
  the payment of the docket and other lawful fees,
 deposit for costs, proof of service of the petition, and
 the contents of and the documents which should
accompany the petition
→ shall be sufficient ground for the DISMISSAL thereof.
The Supreme Court may on its OWN INITIATIVE:
 DENY the petition on the ground that the
→ appeal is without merit, or
→ is prosecuted manifestly for delay, or
→ that the questions raised therein are too unsubstantial to
require consideration.
SEC. 6. REVIEW DISCRETIONARY.— A review is not a matter of
right, but of sound judicial discretion, and will be granted only
when there are special and important reasons therefor.
The following, while neither controlling nor fully measuring the
court’s discretion, indicate the character of the reasons which
will be considered:
a) When the court a quo has decided a question of
substance, not theretofore determined by the Supreme
Court, or has decided it in a way probably not in accord
with law or with the applicable decisions of the
Supreme Court; or
b) When the court a quo has so far departed from the
accepted and usual course of judicial proceedings, or so
far sanctioned such departure by a lower court, as to call
for an exercise of the power of supervision.
SEC. 7. PLEADINGS AND DOCUMENTS THAT MAY BE
REQUIRED; SANCTIONS.—
For purposes of determining whether the petition should be
dismissed or denied pursuant to section 5 of this Rule, or
where the petition is given due course under section 8 hereof,
the Supreme Court may:
 require or allow the filing of such pleadings, briefs,
memoranda or documents as it may deem necessary
within such periods and under such conditions as it may
consider appropriate, and
 impose the corresponding SANCTIONS in case of
non-filing or unauthorized filing of such pleadings
and documents or non-compliance with the
conditions therefore.
SEC. 8. DUE COURSE; ELEVATION OF RECORDS. — If the
petition is given due course, the Supreme Court may
require the ELEVATION of the complete record of the
case or specified parts thereof within fifteen (15) days
from notice.
SEC. 9. RULE APPLICABLE TO BOTH CIVIL AND CRIMINAL
CASES.— The mode of appeal prescribed in this Rule shall
be applicable to both civil and criminal cases, except in
criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment.
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS (RULE 38)
What is PETITION FOR RELIEF?
→ A legal remedy whereby a party seeks to set aside a
judgment rendered against him by a court whenever
he was unjustly deprived of hearing or was prevented
from taking an appeal because of
Samonte vs S.F. Naguiat
NATURE
→ The relief provided for is of equitable character,
alllowed only in exceptional cases as where there is no
other available or adequate remedy to him.
→ When a party has another remedy available to him,
which may either be a motion for new trial or appeal
from an adverse decision of the lower court, and he
was not prevented by fraud, accident, mistake or
excusable negligence from filing such motion or taking
the appeal, he cannot avail himself of the relief
provided in Rule 38.
GROUND
SECTION 1. PETITION FOR RELIEF from, JUDGMENT, ORDER,
OR OTHER PROCEEDINGS —
When a judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he
may file a petition in such court and in the same case praying
that the judgment, order or proceeding be set aside.
City of Dagupan vs Maramba
Courts may set aside final and executory judgments provided
that any of the grounds for their grant are present.
The presence of "fraud, accident, mistake or excusable
negligence" must be assessed from the circumstances of the
case.
EXCUSABLE NEGLIGENCE as a ground for a petition for relief
requires that the negligence be so GROSS "that ordinary
diligence and prudence could not have guarded against it."
This excusable negligence must also be imputable to the
party-litigant and not to his or her counsel whose negligence
binds his or her client.
Nevertheless, this court has relaxed this rule on several
occasions such as: "
1) where the reckless or gross negligence of counsel
deprives the client of due process of law;
2) when the rule's application will result in outright
deprivation of the client's liberty or property; or
3) where the interests of justice so require."
Certainly, excusable negligence must be proven.
FRAUD as a ground for a petition for relief from judgment
pertains to extrinsic or collateral fraud.
The extrinsic or collateral fraud that invalidates a final
judgment must be such that it prevented the unsuccessful
party from fully and fairly presenting his case or defense and
the losing party from having an adversarial trial of the issue.
There is extrinsic fraud when a party is prevented from fully
presenting his case to the court as when the lawyer connives
to defeat or corruptly sells out his client's interest. Extrinsic
fraud can be committed by a counsel against his client
when the latter is prevented from presenting his case to
the court.
MISTAKE as used in Rule 38 means mistake of fact and
not mistake of law. A wrong choice in legal strategy or
mode of procedure will not be considered a mistake for
purposes of granting a petition for relief from judgment.
Mistake as a ground also "does not apply and was never
intended to apply to a judicial error which the court might
have committed in the trial since such error may be
corrected by means of an appeal."
Mistake can be of such nature as to cause substantial
injustice to one of the parties. It may be so palpable that
it borders on extrinsic fraud.
SEC. 2. PETITION FOR RELIEF from DENIAL OF APPEAL. —
When a judgment or final order is rendered by any court
in a case, and a party thereto, by fraud, accident, mistake,
or excusable negligence, has been prevented from taking
an appeal, he may file a petition in such court and in the
same case praying that the appeal be given due course.
SEC. 3. TIME FOR FILING PETITION; CONTENTS AND
VERIFICATION.— A petition provided for in either of the
preceding sections of this Rule must be:
1. verified,
2. filed within sixty (60) days after the petitioner
learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6)
months after such judgment or final order was
entered, or such proceeding was taken; and
3. must be accompanied with affidavits showing the
fraud, accident, mistake, or excusable negligence
relied upon, and
4. the facts constituting the petitioner’s good and
substantial cause of action or defense, as the case
may be.
SEC. 4. ORDER TO FILE AN ANSWER.— If the petition is
sufficient in form and substance to justify relief, the court
in which it is filed, shall:
 1) issue an order requiring the adverse parties to answer
the same within fifteen (15) days from the receipt
thereof.

2) The order shall be served in such manner as court may

direct, together with copies of the petition and the
accompanying affidavits.

SEC. 6. PROCEEDINGS AFTER ANSWER IS FILED. — After the

filing of the answer or the expiration of the period therefor,
the court shall:

1. hear the petition and

2. if after such hearing, it finds that the allegations thereof

are NOT TRUE, the petition shall be DISMISSED; but

3. if it finds said allegations to be TRUE, it shall SET ASIDE

the judgment or final order or other proceeding
complained of upon such terms as may be just.
(Effect if Petition is Granted)

 Thereafter the case shall stand as if such judgment, final

order or other proceeding had never been rendered, issued
or taken.

 The court shall then proceed to hear and determine the

case as if a timely motion for a new trial or reconsideration
had been granted by it.

SEC. 7. PROCEDURE where the DENIAL OF AN APPEAL IS SET

ASIDE.—

Where the denial of an appeal is set aside, the lower court

shall be required TO GIVE DUE COURSE TO THE APPEAL and to
elevate the record of the appealed case as if a timely and
proper appeal had been made.