rule 40 [🍎] + some rule 41 (based on galeon notes)

Question 1

What is an appeal?

Answer 1

Appeal is a remedy pursuant to which a decision of the lower court maybe reviewed by the appropriate higher court on grounds of perceived errors in the findings of facts and/or conclusions of law

Question 2

Is the right of appeal a natural right?

Answer 2

No, nor is it a part of due process. It is merely a statutory privilege and may be exercised only in the manner in accordance with the provisions of the law (Spouses Lee vs. LBP)

Question 3

Can Congress withhold the remedy of appeal?

Answer 3

No. Congress cannot withhold remedy of appeal pursuant to Sec. 5, Article XIII of the 1987 Constitution.

Question 4

To what court will appeal be directed from the MTC under Rule 40?

Answer 4

RTC.

Section 1 of Rule 40. 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.

Question 5

Section 22, BP 129

Answer 5

Sec. 22 Appellate Jurisdiction. Regional Trial Courts shall exercise appellate jurisdiction over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions. Such cases shall be decided on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Courts. The decision of the Regional Trial Courts in such cases shall be appealable by petition for review to the Intermediate Appellate Court which may give it due course only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed.

Question 6

Final judgments

Answer 6

These finally dispose of, adjudicate, or determine the rights or some rights of the parties either on the entire controversy or some definite and separate branch thereof, which concludes them until it is reversed or set aside

As a rule, 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

Question 7

Final order

Answer 7

an order which decides an issue or issues in the complaint is final and appealable, although the other issue or issues have not been resolved, if the latter issues are distinct and separate from the others (Day vs. RTC Zamboanga)

As a rule, 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

Question 8

Interlocutory Order

Answer 8

If the judgment or order of the MTC, inter alia, does not completely dispose of the case, or a particular matter therein, the same is therefore not appealable

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

Question 9

No appeal may be taken from these (Section 1, Rule 41)

Answer 9

a. an order denying a petition for relief or any similar motion seeking relief from judgment
b. an interlocutory order
c. an order disallowing or dismissing an appeal
d. an order denying a motion to set aside a judgement by consent, confession, or compromise on the ground of fraud mistake or duress or any other ground vitiating consent
e. an order of execution
f. 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)
g. an order dismissing an action without prejudice

Question 10

What is the remedy of these unappealable judgments/orders?

Answer 10

certiorari under rule 65

Question 11

Remedy against an ORDER DENYING A PETITION FOR RELIEF or any similar motion seeking relief from judgment

Answer 11

Certiorari under rule 65 (pursuant to Sec. 1, Rule 41)

Question 12

Remedies against interlocutory order

Answer 12

1. Certiorari under Rule 65 (pursuant to Sec. 1, Rule 41)
2. Appeal (for an order denying motion for intervention)
3. Mandamus (for an order denying motion for intervention – while generally a writ of mandamus will not prosper to compel a discretionary act, but 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, mandamus may lie)

Question 13

What are examples of interlocutory orders?

Answer 13

• an order denying/granting a motion for extension of time to file answer
• order denying/granting a motion to amend pleading
• an order denying/granting a motion for resetting of trial
• an order on the admissibility of evidence
• an order setting aside the order of default
• judgment of default

Question 14

Interlocutory orders where certiorari under Rule 65 is unavailing as a remedy?

Answer 14

1. an order denying the affirmative defenses pleaded in the answer
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

Question 15

What is the remedy for interlocutory orders where certiorari under 65 is unavailable?

Answer 15

A party aggrieved by an interlocutory may just have to wait for the rendition of the final judgment in the case, appeal therefrom and question therein, as one of the assignments on appeal, such interlocutory order.

Question 16

Remedy against an order disallow or dismissing appeal

Answer 16

• certiorari under rule 65
• mandamus
• petition for relief

Question 17

Remedy against an order denying A MOTION DENYING A MOTION TO ST ASIDE A JUDGMENT BY CONSENT, CONFESSION OR COMPROMISE ON THE GROUND OF FRAUD, MISTAKE, OR ANY OTHER GROUND VITIATING CONSENT

Answer 17

• petition for relief of judgment
• prohibition
• mandamus
• certiorari under rule 65
• annulment of judgment to CA

Question 18

Remedy against an ORDER OF EXECUTION

Answer 18

• certiorari
• motion to question validity for the issuance of a writ of execution or the implementation thereof
• filing third party claim (terceria), stating a claim to the property seized by sheriff
• appropriate separate action to recovery of possession

Question 19

Remedy against a judgment or final order for or against one or more of several parties or in separate claims, counterclaims, third party claims, counterclaims, cross-claims while the main case is pending

Answer 19

• wait for separate judgments and appeal (unless court allows appeals when the main case is pending)

Question 20

Remedies against AN ORDER DISMISSING AN ACTION WITHOUT PREJUDICE

Answer 20

• certiorari
• refile the case

Question 21

Instances where dismissal of the case may be WITHOUT prejudice

Answer 21

1. first dismissal of the complaint at the instance of the plaintiff, unless the court directs otherwise (Section 1, Rule 17)
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 (Section 3, Rule 17 of the Amended Rules);
3. Non-compliance with the requirement anent certification against forum shopping, unless the order of dismissal states that such dismissal is with prejudice (Section 5, Rule 7 of the Amended Rules);
4. Dismissal of the case based on the affirmative defense that the venue is improperly laid (Section 12, Rule 8 of the Amended Rules, in relation to Section 13, Rule 15, thereof);
5. Dismissal of the case on the affirmative defense that the plaintiff has no legal capacity to sue (Section 12, Rule 8 of the Amended Rules, in relation to Section 13, Rule 15, thereof);
6. Dismissal of the case on the affirmative defense that the complaints states no cause of action (Section 12, Rule 8 of the Amended Rules, in relation to Section 13, Rule 15, thereof);
7. Dismissal of the case based on the affirmative defense that a condition precedent for filing a claim has not been complied with (Section 12, Rule 8 of the Amended Rules, in relation to Section 13, Rule 15, thereof);
8. Dismissal of the case for non-payment of the correct docket fees;
9. Dismissal of the case because the complaint is pro forma (e.g., unsigned pleading).

Question 22

Remedy of a case dismissed WITH prejudice

Answer 22

Appeal, as it amounts to an adjudication on the merits

Question 23

Instances wherein the dismissal of the cause, even WITHOUT TRIAL, is a dismissal WITH PREJUDICE

Answer 23

1. 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 DOES NOT state that the dismissal does not operate as an adjudication on the merits (Section 3, Rule 17 of the Amended Rules);
2. Dismissal of the case for the repeated failure of the plaintiff to appear in the pre-trial. The dismissal here is deemed to be with prejudice, unless the court deems otherwise (Section 5, Rule 18 of the Amended Rules). A dismissal with prejudice is an adjudication on the merits; hence, appealable (Chingkoe vs. Republic, G.R. No. 183608, July 31, 2013);
3. Dismissal of the case pursuant to the ground of res judicata or prior judgment (See Section 12, Rule 15 of the Amended Rules, in conjunction with Section 13, thereof);
4. Dismissal of the case on the ground that the action is barred by the statute of limitations (See Section 12, Rule 15 of the Amended Rules, in conjunction with Section 13, thereof);
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 (Section 13, Rule 15 of the Amended Rules); or
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 frauds (Section 13, Rule 15 of the Amended Rules).

Question 24

Exception to the rule that dismissal without prejudice is not appealable

Answer 24

Dismissal of the case on the ground that the trial court has NO JURISDICTION OVER THE SUBJECT MATTER of the case, although is a dismissal without prejudice, is APPEALABLE, so long as the decree of dismissal is issued by a FIRST LEVEL COURT (Sec. 8, Rule 40)

Question 25

Can you cause the execution of the judgement even while you are appealing therefrom?

Answer 25

Generally, a party who caused the execution of the judgement cannot anymore take an appeal therefrom, as by enforcing the judgment he is deemed to have accepted the same.

By way of exception, a party can cause the execution of the judgment he is appealing therefrom where such execution is done pursuant to Section 2 (Discretionary execution) and Section 4 (Judgments not stayed by appeal) of Rule 39

Question 26

Sec. 2, Rule 39

Answer 26

Discretionary Execution –

(a) Execution of a judgment or final order pending appeal. — On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

After the trial court has lost jurisdiction the motion for execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

(b) Execution of several, separate or partial judgments. — A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal.

Question 27

Section 4, Rule 39

Answer 27

Judgments not stayed by appeal –

Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not, be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support.

Question 28

When can a judgment creditor be estopped from appealing or seeking modification of a judgment which as been executed at his instance?

Answer 28

This is dependent upon the nature of the judgment as being indivisible or not.

A. Where the judgment is indivisible, the acceptance of the full satisfaction of the judgment annihilates the right to further prosecute the appeal. Here, estoppel will apply insofar as the judgment creditor is concerned.

B. Where the judgment is divisible, estoppel should not operate against the judgment creditor who causes implementation of a part of the decision of writ of execution. (a)cceptance of payment of . . only the uncontroverted part of the claim . . should not preclude the plaintiff from prosecuting his appeal, to determine whether he should not have been allowed more,”

Question 29

Period of appeal

Answer 29

Notice of appeal - 15 days from receipt of counsel OF RECORD of notice of judgment

Record on appeal - 30 days from receipt of counsel on record of notice of judgment

Habeas Corpus cases - within 48 hours

Question 30

Cases where multiple appeals are allowed

Answer 30

1) In special proceedings (Section 3, Rule 40; Rule 109 of the Rules of Court);

2) Where the court renders “several” or “separate” judgments under Sections 4 or 5, Rule 36 of the Rules of Court, if the trial court allows the filing of multiple appeals;

3) In actions for recovery of property with accounting (Miranda vs. Court of Appeals, G.R. No. 33007, June 18, 1976);

4) In actions for partition of property with accounting (Section 2, Rule 69 of the Rules of Court; De Guzman vs. Court of Appeals, G.R. No. 44446, November 29, 1976);

5) In the special civil action for eminent domain (Rule 67 of the Rules of Court; Tan vs. Republic, 523 SCRA 203);

6) Foreclosure of mortgage (Rule 68 of the Rules of Court; Roman Catholic Archbishop of Manila vs. Court of Appeals, G.R. No. 111354, July 5, 1996).

Question 31

Fresh Period Rule (Neypes Rule)

Answer 31

A fresh period of 15 days shall be given to the party litigant after receipt of notice of the order denying a motion for reconsideration or a motion for new trial, if one was filed

This will hold true only if the motion for new trial or motion for reconsideration is not pro forma; otherwise, the remedy of appeal can no longer be availed for being time-barred.