1.
Dismissal without trial
Appeals
Let us now go to the last remedy against a final judgment and that
remedy is appeal.
Where do you find the Rules on Appeal? That is 40, 41, 42, 43, 44, 45. So
these are the rules on Appeal.
Rule 40
As preliminary discussion, you look at sec 2. That is the three modes of
appeal.
1. Ordinary appeal
2. Petition for review
3. Review on certiorari (appeal by certiorari)
We are now first discussing ordinary appeal. How do you appeal from a
judgment, considered as ordinary appeal? There are two ways.
1. Notice of appeal - when the judgment is subject to singular appeal
2. Record on appeal - when the case is subject to multiple appeals
A classical example of multiple appeals is, settlement of estate. The term
settlement of estate is very broad. Beginning with Rule 73 - 91. Yun ang
settlement. It all depends whether you begin on probate of a will. That is
testate. In the absence that is a intestate. But what I am concerned here
is it has several parts. Beginning with Rule 73, 74. Each part is complete
by itself therefore that resolution is appealable because it is final order
or resolution.
Halimbawa, the person died with a will. So you probate his will. After
that, tapos na ba ang settlement? Naguumpisa palang yan. Ano susunod.
Now appointment for admin or executor. Then afterwards, kung may
oppositors, you ask for the determination of ownership belonging to the
estate. Then sale in order to pay debts of estate. Lahat ito, the orders
there of the court are final orders. And these are subject to appeal. But d
mode of appeal is not by notice but by record on appeal. You are just
contesting a portion of the entire action kaya nga you do not have to
bring or transmit all the records to the appellate court. They remain in
the trial court. You only transmit records PERTINENT TO the issue you
are raising with the appellate court. So record on appeal.
In special civil actions, you have 67 (expropriation) and (69) partition.
They consist of 2 parts. Determination of the use of property and just
compensation. These 2 parts are complete bu themselves. So the appeal
therefrom is by record on appeal. Kaya nga under the rules ang record on
appeal, it gives you 30 days to prepare the record on appeal. But a
notice, 15 days.
Rules 40 is appeal from the MTC to the RTC. And this is definitely by
record or notice. Bakit record? Pwede ba? Di ba may jurisdiction na ang
mtc sa estate when the value does not exceed the jurisdictional
amount. So pwede nang may record on appeal. Dati wala sila. Ngayon
meron na because of RA 7691.
Where do you file your notice of appeal or record on appeal? You file
that on the trial court. Upon filing of your notice, copy furnished the
adverse party, the clerk of court should prepare now the records of the
case to be transmitted to the RTC.
Which RTC? The RTC within the jurisdictional territory of the court where
you file your notice of appeal. With the mtc of manila, the appeal
cannot be in rtc of qc. Territorial jurisdiction. Must br within the
district.
Once you file your notice of appeal, the court will issue an order,
Granting appeal and upon the granting the appeal, mtc is directed to
transmit the records to the rtc within the period of 15 days. Once the
COC of RtC get hold of the record of mtc, it should send out notice to
appellant that the latter should submit a memorandum of appeal
within another 15 days. Copy furnish the appellee which have the same
period of time to file also a memorandum of appeal or appellee's
memorandum. On the basis of this memoranda, the court can render a
judgment.
Now if the court wants for further clarification, the court can order you.
Pero ordinarily ndi na.
Suppose the appellant did not submit his memorandum of appeal. That
is a ground for dismissal. Suppose the appellee did not submit, that is
not a ground for dismissal. That is a basis of judgment which can be
decided on the basis SOLELY on the appellants memorandum. Okay? So
that is the appeal.
Let me reiterate our discussion in jurisdiction. That is sec 8. Let us go
back to that. That was given in the bar last year. Dismissal due to lack of
jurisdiction.
2. With trial
This is exceptional to the exercise of appellate jurisdiction of the rtc. You
still recall? In this instance, the RTC takes cognizance of the case as if it
was originally filed with it. But when it take cognizance of it, it is
exercising appellate jurisdiction. Any court cannot exercise appellate
jurisdiction when the trial court has no original jurisdiction. In this
section, the trial court has no jurisdiction over the case. But it dismisses
it, the rtc take cognizance of the case in the exercise of appellate
jurisdiction. This is the exception.
Rule 41.
Appeal from RTC to CA in the exercise of original jurisdiction. What are
the modes? Same din. Because this still falls under ORDINARY APPEAL.
So upon filing of notice of appeal with rtc, the clerk of rtc must prepare
the record of the case and that includes the TSN. Ito pinakamatagal
magawa ng COC. Ngayon, when all of these are already complete, the
COC shall transmit the records to the CA. 30 days.
Yung from mtc to rtc, 15 days. Rtc to ca 30 days. So, Upon transmittal to
the ca, the COC of CA should send a notice. Ano ang notice dito? To
submit memorandum? NO. The notice tells the appellant and the
appellee that the records have been transmitted to the ca. So you should
investigate whether it is complete. Alam niyo, this is crucial. Not so much
for the bar. But when you get into practice dito malimit sumemplang mga
abugado. Gaya niyan. Dapat ang notice dyan sinasabi sa appellant
nandito na records. Tingnan mo kung tama to kung complete. Most
lawyers dont comply. Hmmm may kopya rin naman ako. You never
bother to check. Dont do that. Go the COc of Ca and try to investigate
whether it is complete. Because those are the OFFICIAL RECORDS. NOT
YOUR RECORDS OR COPY.
You are also directed there to file appellant's brief within the period of
45 days. Copy furnished the appellee who has the same period to submit
appellee's brief copy furnised appellant who may file a reply brief. The
continuation of rule 41 is not rule 42. It is 44. ORDINARY APPEALS. Doon
mo makita ang requirements ng appellant's and appellee's brief. Mahirap
gumawa niyan. As against memorandum required in the rtc in appeal
from mtc. Parang historical presentation lang yan. In brief, under rule 44,
you will find out that the rules provides what should be the contents. If
you missed it, it will be dismissed. Non compliance particularly par f of
rule 50 sec 1. Kapag nagawa ka brief meron ka muna index then
statement of case, facts, assignment of errors, argument then prayer.
Dapat sundin mo.
When you are preparing, you argue then you support it with the
records of the case. And parts of the records of the case is the tsn.
Important yan. Halimbawa nag ku-quote ka. Sabi mo the 2nd witness
testified as follows: tapos kinuha mo sa tsn. You are supposed to get
the record from CA. The transmitted records are numbered
chronologically. Kapag mali quote mo base sa records mo than the
records of the court, that is ground for dismissal. Kapag napunta yan sa
judge mo sa strikto and yoi are quoting, tapos mali, sasabihin niya,
niloloko ako ng batang to. But there are lenient judges. You have to
follow the OFFICIAL RECORDING NOT YOUR RECORD. Kaya ininotify ka ng
COC NG CA. That is ground for dismissal under rule 50.
---- PART 9
Appeals in Rules 40,41 and 42 has the effect of stay of execution. Hindi
mo muna iexecute ang judgment AS A MATTER OF RIGHT. Contrary to
the provisions of rule 43.
Under this rule, this is an appeal from quasi-judicial bodies to court of
appeals. Wala na yung CTA dyan.
In rule 43, look sec 1. These are the quasi judicial bodies. It is neither
exclusive nor conclusive. Yung iba dapat wala na dyan.
Heirs of NESTOR TRIA vs obias in criminal procedure. You look into that
ha. Umabot to sa office of president. Db you start to fiscal office, then
you have petition for review in DOJ. So you never go up to ca from doj on
appeal except GAD. This case, happened in our region, bicol. Yung binaril
si nestor. Sya ay regional director in bicol. Obias was impleaded, but my
point is from the office of DOJ, umakyat pa si obias sa office of the pres
and latter took cognizance of it. Pursuant to rule 43. This should not
apply db? Pero inakyat sa ca from office of president. Atty obias was
exenorated here. There is no probable cause. So unique ito. So I
commend this for you to look into that. Kasi under rule 43 among the
quasi judicial is office of the president. That is the usual.
NATIONAL LABOR RELATIONS COMM. The commission divided into
several commissions. Yung dito sa labor na ito, you are familiar with st
martin funeral homes? There is no appeal from nlrc. The remedy is
certiorari under 65. Never on rule 45. GAD lang ground mo. Yan ang rule
sa labor. From nlrc, then CA.
On Rule 65, you will note that the constitution provides concurrent
jurisdiction of sc, ca and rtc.
We removed RTC as far as labor disputes are concerned. Kasi sabi nga
nila equal footing ang nlrc at rtc.
From there under st martin funeral homes, it was decided that it must
go first to ca than sc because of heirarchy of courts.
Suppose there is a question where petitioner went up to sc. Can sc take
cognizance of it? Yes. Although it may likewise dismiss pursuant to st
martin funeral homes. Ang rational nito is precisely because it is
concurrent, applying principle of heirarchy of courts, it must be filed with
the CA. It is also stated in rule 43.
Another point, unlike in rule 40, 41 and 42, appeal the judgment, the
execution is stayed. But not so in rule 43. In otherwords, so what is the
use of appealing if it will not stay the execution?
The rule provides you the remedy, your appeal under rule 43, you have
to avail rule 58 which is preliminary injuction. Otherwise, the judgment
can be executed.
Suppose you did not get your injuction, but your appeal was given due
course and there was a reversal on the judgment, what will happen now?
CLAIM FOR DAMAGES. In a separate action? NOT NECESSARILY. But can
a separate action prosper? YES.
Alright.
Okay. Rule 44 is mere continuation of rule 41. Napagusapan na natin yan.
The distinction between 40 and 41 in relation to 44 is that the pleading
required in 40 is MEMORANDUM. While the pleading required in 41,
APPELLANT's BRIEF which is very long. Usually the prevailing market
price is 50,000 per brief.
Rule 45
Appeal as amended by 07-07-12. Included na dapat court of tax appeals
and SB. Dapat nandyan na yan sa sec 1. Dito you go up to the SC. What
you have to watch out there which is not included in general is the RTC.
From the rtc you have to go to ca. But under rule 45, it goes up to SC.
Ano ang qualification? When you raise PURE QUESTION OF LAW. Yan ang
tatandaan niyo. If you mix a q of law with certain facts, it will be
dismissed. Wala na ngayon TRANSMITTAL OR REMAND. An erroneous
appeal must be DISMISSED, outright.
Be sure you are raising PURE QUESTION OF LAW.
So what is that? It is separate from question of facts. When your purpose
in appealing is for the court to determine as to won applied by the court
is correct in this particular situation. Another criterion, if it would not
require presentation of evidence. Because the court will only
determine, WHAT IS THE LAW APPLICABLE IN THIS PARTICULAR CASE. It
must be brought to the SC then. Another principle we are always
discussing is that the supreme court is NOT A TRIER OF FACTS. You are
asking the court, was the law applied by the lower court correct?
Because if you ask the supreme the court to look into factual situations,
it is not a pure question of law. It is beyond its jurisdiction. THAT IS THE
GENERAL RULE!!! Take note of the exceptions!
Dami niyan. Ang isipin niyo na lang para hindi kayo mahirapan - THE
SUPREME COURT IS NOT GOVERNED BY THE RULES. Yan ang general
frame of mind niyo. Ito ang napakahirap sa examinees. Kasi kaya nga
nagaaral tayo jurisprudence. Kung dere derecho lang sana ang SC, hindi
tayo mahirapan. Nag iiba iba. Isa pa is IN THE INTEREST OF SUBSTANTIAL
JUSTICE. That is a catch all. But Rule 45 is very clear that is must only be
PURE QUESTIONS OF LAW.
But there are rules which provides that factual issues may be raised
before the SC. So exceptional. Ano yun?
1. Amparo
2. Habeas data
3. Kalikasan
In these cases, the appeal is pursuant to rule 45 where you can question
both law and facts. This is the LAST KIND OF APPEAL.
APPEAL IN CRIMINAL CASES
When there is an appeal in criminal cases, it opens the entire case. In
civil cases, it is wrong for the appellate court to discuss matters which
were not raised in the appeal.
See? Notice of appeal, walang record on appeal. Kasi wala naman
multiple appeals in criminal case. There is also no appeal to the SC
EXCEPT FOR PETITION FOR REVIEW. Mali yon! Mali. You can go up also to
SC upon notice of appeal. When? It is laid down in people vs mateo.
- before the abolition of death penalty
- Sc created another review
- Called now intermediate review
- Prior you cannot go up to the sc
- In effect automatic review then , you cannot go directly. That is People
vs Mateo
- Then from the intermmediate review, un ung automatic to the SC.
Ginawa raw ng SC yon because it wants to be very sure that when it
imposed death penalty, hindi sila nagkamali. Mahirap yan death penalty
yan eh.
That was before when there is death penalty. Ngayon, what remains is
RECLUSION PERPETUA AND LIFE IMPRISONMENT. No automatic review.
When decided by RTC, go up to SB / CA. When the CA, for example
affirms conviction, reclusion perpetua or life imprisonment, no automatic
review. Kaya kapag hindi mo inakyat sa SC, kalaboso na yung client mo.
So how? NOTICE OF APPEAL. Okay? With that we end appeals.
Designed Posts:
1. Final Judgement (rendered)
- new trial
- Recon
- Appeal
Wala ng iba. Forget all about others. In between, it is always 65. Either
PROHIBITION, mandamus or certiorari.
2. Executory Judgment (entered)
- relief (38)
- Annulment (47)
RELIEF FROM JUDGMENT OR FINAL ORDERS
SEC1 and 2 are two forms of relief.
Sec 1 - relief from judgment which has been entered
Sec 2 - relief from denial of appeal
So you take note - WHAT KIND OF PLEADING YOU ARE APPLYING HERE? -
When you speak of Petition for relief, you usually think of a separate
action. Petition kasi yan eh. Pero it clearly states that IT MUST BE FILED
IN THE SAME COURT. It is a continuation of the case. So it has given you
the civil life pursuant to judgment contrary to you. You have to file it with
the court that entered the judgment. It should also be docketed in the
same number.
One important here is Sec 3. The time frame within which is to file a
petition for relief of judgment or order denying the appeal within 60
DAYS FROM KNOWLEDGE AND 6 MONTHS FROM ENTRY. There are 2
periods here. The max period and min period.
Max period - 6 months counted from entry
Min period - 60 days from knowledge
Note that both must be complied with. Lets consider
- january 1 as date of entry
- 6 months therefrom is june 30, so by july, you can no longer file a
petition for relief
- But that is only the maximum limit
- Suppose you came to know judgment in march 10, you count 60 days,
roughly may 10. Can you apply for petition? NO!
- Suppose you came to know of judgment June 15, so you have until
august 15? NO! You only have until JUNE 30.
- So the maximum and minimum
- Both must be complied with
So my next question is, when the party came to know of the judgment?
Just ask this to yourself? WHEN YOU RECEIVE THE NOTICE. So ngayon,
pag-na-receive mo yung notice, ano remedy mo? Judgment is not yet
final. So remedy mo not petition for relief. Your remedy is either MR, NT
or APPEAL. Judgment is just received. So forget about petition for relief.
So ano ibig sbhin non?
The meaning there is COMING TO KNOW THE JUDGMENT IN SOME WAYS
OTHER THAN OFFICIAL NOTIFICATION FROM THE COURT.
A vs B, trial sila dito. A tells his lawyer X, atty aalis po ako ppnta po ako ng
America. Eh nakatestify na ako sa court, so okay na. Hindi na ako
kailangan, bahala ka na. Sabi, sige ako na bahala dito. Magpresent na ako
iba. Magiwan ka nalang ng pera for expenses.
Here goes A, leaving his case to lawyer. After 2 years bumalik na sya. He
wants to find out what happens to his case. Then was met by other. Sabi
si ATTY X? Patay na sya. So pumunta sya sa court. Ano nangyari sa kaso?
Ay nako talo ka. Ganon ba? Hindi ko alam. Hindi sinabi ni attorney X. Ano How about quasi judicial agencies? THERE IS NO SUCH REMEDY under
gawin ko dito? Magapela ako? Sabi ng clerk, hindi na pwede. Ung entry the rule. So what is the remedy? You are only limited to Rule 43.
eh January. Ngayon ay March na. PETITION FOR RELIEF FROM
JUDGMENT na.
So March 10, until MAY 10. After May 10, can you file still? NO!! Because
you are limited to 60 days from knowledge.
Suppose he visited the court June 15. And he came to know June 15. Can
he go beyond June 30? NO! Only up to June 30 counted from entry which
was January 1. Yun ang petition for relief. Under sec 3.
What grounds?
Similar to NEW TRIAL: FAME. In my example I gave, ano possible ground
don? Pwedeng excusable negligence. Though neglect lawyer, is binding
to the client, you can always establish that the negligence should not be
attributed to you.
Being in the nature of a motion, the court may grant or deny it. Now, if
granted - it is as if a motion for NT was granted. Uulitin. If denied - what
do you do? Go back to which are NOT APPEALABLE. In this case, it is not
the one appellable. What is your remedy? Certiorari altho ito lagi
depensa ng lawyers. Dont abuse that kind of remedy. It is exceptional.
Basic here, you are not the cause of FAME. Halimbawa, you came to the
court July 5 na. Nagpetiks ka muna. Hindi yan pwede.
You cannot avail of this had you the opportunity to avail MR, NT OR
APPEAL and you did not. If you are at fault, you cannot avail. That
principle holds true with the other remedy in RULE 47. Annulment of
Judgments.
Rule 47. sec 1 - you will find out that this is available against an executory
judgment on 2 grounds only:
1. Lack of jurisdiction
2. Extrinsic fraud -
Is there prescriptive period? In extrinsic fraud, you only have 4 years
from discovery of fraud. In lack of J, no prescription. But limited by
principle of LACHES. Jurisdictional LACHES. THAT LONG PERIOD OF TIME
WHERE YOU COULD HAVE AVAILED OF THE REMEDY BUT YOU DID NOT
LIFT A FINGER, you are bound by the principle of LACHES. So these are
the only limitations.
Unlike in Petition for Relief which must be docketed in the same court,
annulment is a SEPARATE ACTION. Whether it is a judgment of mtc or rtc,
IT IS AN ACTION INCAPABLE OF PECUNIARY ESTIMATION. Annulment of
judgment of lower court must be brought to the RTC. But annulment of J
of RTC must be brought to the CA. It is only the CA which has original
jurisdiction over Rule 47. Exclusive and original jurisdiction.
CASE: DIONA VS BALANGUE
- Balangue was declare in default for sum of money.
- Utang maliit lang eh.
- Judgment by def was rendered
- In the prayer of the complaint, it was prayed for the payment of interest
at 12% pa
- Granted but 5% per month
- There was no notice on the part of balangue
- When he found out, there was already entry
- What he did was to file a motion to set aside the judgment
- Hindi pwede yon! Saan mo ifa-file yon?
- Executory na
- He filed a case of certiorari claiming that there was error which the CA
said that indeed there was GAD in the case. Settled is the rule, judgment
by def it is only limited in the prayer. Hindi pwede tumaas. Accdgly, the
proper remedy is not set aside. Must be ANNULMENT OF JUDGMENT ON
THE GROUND OF GAD.
- When it reached sc, nagkaroon ng idea sila balangue
- Pwede pala tayo magfile ng annulment
- SC: yes it is proper. Not on the ground stipulated under rule 47 but on
another which is LACK OF DUE PROCESS. So there is this 3rd ground.
Why? The records show, all were due to the fault of his lawyer. So no due
process.
Are these remedies available in criminal cases?
1. Petition for relief - available but only if it refers to CIVIL ASPECT OF THE
CASE
2. Annulment of Judgment - ABSOLUTELY NOT! There is no such remedy
in criminal cases.
How about annulment of judgment of MTC?, it is available but file it in
RTC.