Appeal Rule 40 Flashcards
Rule 40 Section 1
An appeal from a judgment or final order of a Municipal court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains. The title of this case shall remain as it was in the court of origin, but the party appealing the case shall further be referred to as the appellant and the adverse party as the appellee.
What is an Appeal?
It is remedy pursuant to which a decision of the lower court may be reviewed by the appropriate higher court on grounds of perceived errors in the findings and/or conclusion of law.
Is an appeal a constitutional right?
No, it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law.
In general, what is required to elevate the case on appeal?
Only judgments or final orders of the court that completely dispose of the case, or of a particular matter therein, may be elevated on appeal.
What is meant by final judgment, or order or decree ?
It is the one that finally disposes of, adjudicates or determine the rights, or some rights of the parties, either on the entire controversy or some definite and separate branch thereof, and which concludes them until it is reversed or set aside.
What are the orders or judgment where an appeal is not available as a remedy?
1) an order denying a petition for relief or any similar motion seeking relief from judgment;
2) interlocutory order;
3) an order disallowing or dismissing an appeal;
4) 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 vitiating consent;
5) and order of execution
6) 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 on appeal therefrom;
7) an order dismissing the action without prejudice
If a judgment or final order is not appealable, what can the aggrieved party do?
file an appropriate special civil action under Rule 65 (in relation with the last paragraph of rule 41 section 1)
What is the remedy against an order denying a petition for relief or any similar motions seeking relief from judgment?
Appeal is prohibited, but certiorari may be availed of pursuant to the last paragraph of Section 1, Rule 41.
What is an interlocutory order?
An interlocutory order refers to something between the commencement and the end of the suit which decides some point or matter, but it is not a final decision of the whole controversy?
Can mandamus be availed of in cases, where there was a denial of a motion for intervention?
Yes, only in exceptional cases where appeal would not be an adequate and speedy remedy and there is a grave abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled.
What are the examples of an interlocutory order?
1) an order denying/granting a motion for extension of time to file answer
2) an order denying/granting a motion to amend pleading;
3) an order denying/granting a motion for resetting of trial
4) an order on the admissibility of evidence
5) an order setting aside the order of default and the judgment by default
Can an order denying a motion for intervention be a subject of appeal?
Yes, because the order denying such motion for intervention is “final” insofar as the movant or would-be intervenor is concerned, there being nothing left to be done as to him.
(Note: the appeal should be from the order denying the intervention, as he cannot appeal from the decision, not being made a party to the case.
On what instances where certiorari under rule 65 is unavailing as a remedy for denied interlocutory orders?
1) an order denying the affirmative defense
2) an order of the court submitting the case for judgment on the pleadings or summary judgment
3) an order denying the demurrer to evidence
4) an order of the court approving or denying a motion for judgment on the pleadings.
5) an order of the court approving or denying a motion for summary judgment
6) interlocutory orders in cases falling under the revised rules on summary procedure
What is the remedy against an order disallowing or dismissing an appeal?
1) certiorari (last paragraph of section 1, rule 41)
2) mandamus (section 3, rule 65)
3) petition for relief from the denial of appeal (section 2 rule, 38)
What is the remedy against 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?
1) certiorari (last paragraph section 1,rule41)
2) prohibition or mandamus (jurisprudence, in relation to an order of execution)
3) where a party alleges mistake, fraud, violence, intimidation, undue influence, or falsity in the execution of the compromise embodied in a judgment, an action to annul could be brought before the CA (section 9 (2) of BP 129, which gives the court exclusive original jurisdiction over actions for annulment of judgments of RTC)
What is the remedy against an order of execution?
1) certiorari
2) filing a motion with the court which issued the writ of execution questioning the validity of such writ or the implementation thereof
3) filing a third party complaint
4) filing of “appropriate separate action”
What is the remedy against 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?
1) certiorari
On what instances, is a case dismissed without prejudice?
1) first dismissal of the complaint at the instance of the plaintiff, unless the court directs otherwise
2) dismissal of the action for failure to prosecute, or failure to appear at trial, or to comply with the rules or order of the court under Section 3, rule 17 of the amended rules, where the order of dismissal expressly states that the dismissal does not operate as an adjudication on the merits.
3) non-compliance with the requirement anent certification against forum shopping, unless the order of dismissal states that such dismissal is with prejudice
4) dismissal of the case based on affirmative defense that the venue is improperly laid
5) dismissal of the case on the affirmative defense that the plaintiff has no legal capacity to sue
6) dismissal of the case on the affirmative defense that the complaints state no cause of action
7) dismissal of the case based on the affirmative defense that a condition precedent for filing a claim has not been complied with
8) dismissal of the case for non-payment of the correct docket fees
9) dismissal of the case because the complaint is pro forma
What is the remedy for cases that was dismissed without prejudice?
1) refile the case
2) certiorari, granted that there should be grave abuse of discretion
What is the remedy of cases that were dismissed with prejudice?
Appeal
On what instances can a case be dismissed with prejudice, even without a trial?
1) dismissal of the action for failure to prosecute, or failure to appear at trial, or comply with the rules or order of the court under Section 3, Rule 17 Amendment rules, where the order of dismissal does not state that the dismissal does not operate as an adjudication on the merits.
2) dismissal of the case for the repeated failure of the plaintiff to appear in pre-trial
3) dismissal of the case pursuant to the ground of res judicata or prior judgment
4) dismissal of the case pursuant to the ground that the action is barred by statute of limitation
5) dismissal of the case pursuant to the affirmative defenses that the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished
6) dismissal of the case on the ground that the claim on which the action is founded is unenforceable under the provisions of the statutes of fraud.
When to appeal?
An appeal may be taken within 15 days after the 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 record on appeal within 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.
When can multiple appeals be allowed?
1) special proceedings
2) where the court renders “several” or “separate” judgments under section 4 or 5, rule 36 of the rules of court, if the trial court allows the filing of multiple appeals.
3) in action for recovery of property
4) in actions for partition of property with accounting
5) in special civil action for eminent domain
6)foreclosure of mortgage
What is the reckoning point or when shall the 15 days, 30 days, 48 hours period starts to count?
It shall be reckoned with from receipt of notice of decision or final by the party-litigants counsel of records, which is considered notice to the parties. Service of judgment or final order on the party represented by counsel is not considered the official notice and receipt of judgment.
How to appeal?
The appeal is taken by 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 appeal from, and state the material dates showing the timeliness of the appeal.
A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals.
Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party.
What is rule 40 about?
Rule 40 is an appeal from the MTC. Appeal is only allowed in cases where the case is already disposed or adjudicated, but did not attain finality yet.
Does the CA need a trial in their proceedings regarding appeal?
No, they will decide based on the records. (BP129 Section 22)
