RULE 38: RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS

Question 1

Petition for Relief from Judgment is among the so-called post judgment remedies. Please elaborate.

Answer 1

It is a remedy provided by law to any person against whom a decision or order is entered through fraud, accident, mistake or excusable negligence. This remedy is equitable in character, allowed only in exceptional cases where there is no other available or adequate remedy provided by law or by the rules.

Question 2

Petition for Relief is directed at the following:

Answer 2

1. Judgment or final order disposing of a case
2. Other proceedings, such as orders of execution
3. Denial of an appeal

Question 3

Is petition for relief a separate case?

Answer 3

No. A petition for relief is not a separate case. It must be filed in the same court and in the same case.

Question 4

A petition for relief must be based on FAME, depending on the attendant circumstances:

Answer 4

1. Upon service of the order of default but before judgment upon default is rendered, the defaulted party can file a motion to set aside the order of default
2. If there is already a default judgment, the aggrieved party may file a motion for new trial under Rule 37 of the Rules of Court on the grounds of FAME, within the period to appeal or before the judgment becomes final and executory
3. If the judgment is already final and executory, the remedy is to file a petition for relief from judgment under Rule 38 based on the ground of FAME

Question 5

Explain Motion for New Trial versus Petition for Relief.

Answer 5

In a Motion for New Trial,
1. it may also be based on newly discovered evidence; and
2. it is availed of before the judgment or final order disposing of the case attains finality.

While Petition for Relief,
1. it can only be availed of after the judgment or order complained of has already become final and executory.

Question 6

Cases where petition of relief is prohibited:

Answer 6

1. Civil cases falling under the Rules on Summary Procedure
2. Unlawful detainer cases
3. Forcible entry cases
4. Small claims cases
5. In cases before the Court of Appeals or the Supreme Court

Question 7

When must the petition for relief be filed?

Answer 7

The petition for relief must be filed within sixty (60) days after 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, and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense. Most importantly, it should be filed with the same court which rendered the decision.

The sixty-day calendar period shall begin to run from the date the petitioner’s counsel of record is notified of the judgment or final order or other proceeding to be set aside. In instances where the petitioner is not represented by a counsel, it shall be reckoned from his receipt of such judgment, or final order, as the case may be.

The six-month period shall be counted from:
1. The date of entry of judgment
2. If the petition is directed against an order of execution, or an order denying due to course to the appeal, from the rendition of the order or the taking of the proceeding or from date of occurrence
3. If the petition for relief is directed against a judgment upon compromise, it shall run from the rendition thereof, it being immediately executory

Question 8

The petition must be verified and should be supported with affidavits namely:

Answer 8

1. An affidavit setting forth the facts and circumstances constituting FAME
2. Affidavit of merits, setting forth the particular facts claimed to constitute the movant’s meritorious cause of action or defense.

Question 9

The affidavit of merits is demandable as a right in the following instances:

Answer 9

1. Where the movant has been deprived of his day in court through fault or negligence on his part
2. Where the judgment by default was rendered before the period to answer
3. When the attack is on the jurisdiction of the court
4. Where the petition is verified and the merits of petitioner’s case are apparent from the recitals of the petition and the petition was under oath
5. Where the sworn petition merely alleged that defendant has a meritorious defense as shown in the answer that was filed

Question 10

Does the court have to issue summons to the adverse parties?

Answer 10

No. The court does not have to issue summons to the adverse parties.

Question 11

The failure to file an answer to the petition for relief does not constitute default. Even without such answer, the court will have to conduct to two hearings on the petition for relief, to wit:

Answer 11

1. Hearing to determine whether the judgment, order or proceeding should be set aside
2. If the result is in the affirmative, a hearing on the merits of the case will be had