Rule 41 Flashcards
When is an appeal not allowed?
Rule 41, Section 1. No appeal may be taken from:
- an order denying a petition for relief or any similar motion seeking relief from judgment;
- an interlocutory order;
- an order dismissing a motion to set aised a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any ground vitiating consent;
- an order of execution;
- 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
- an order dismissing an action without prejudice;
What is the test in determining whether a judgment is final?
The test is does it leave something to be done in the trial court with respect to the merits of the case? If yes, the order is not yet final bt interlocutory.
If a motion to dismiss is granted and the complaint is ordered dismissed. Can the aggrieved party file an appeal?
Since there is nothing more to be done by the court with respect to the merits of the case then yes, an appeal may be filed.
If a motion to dismiss is denied, Can it be appealed?
No, if motion is denied, the defendant will now submit a responsive pleading and the case will proceed therefore there is something more for the court to do.
A motion to intervene was filed but it was denied, may the intervenor appeal the decision?
While it appears that the denial of the motion is interlocutory which is not appealable, the intervenor can however appeal in this case. As far as he (intervenor) is concerned, there is nothing more for the court to do.
What is the effect of perfection of appeal?
The count loses jurisdiction over the case upon perfection of the appeal filed due times and expiration of 1 the time appeal of the other party
Prior to the transmittal of the original record or the record on appeal, what orders may the RTC issue?
A. Orders for the preservation of the rights of the parties which do nit ikvolve any matter litigated by the appeal
B. Approve compromises
C. Permit appeals of indigent litigants
D. Order execution pending appeal
E. Allow withdrawal of appeal
What is the deinition of a i nal judgment or for purpose of appeal?
A: A judgment or order is inal if it disposes of the pending action so that nothing more can be done in the trial court with respect to its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb. 26, 1962; Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
what is an interlocutory judgment or order?
A: An interlocutory order is something which does not completely dispose of the action and there is still something for the court to do after its rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs. Fabrica, 80 Phil. 762) Actually, the law does not prohibit a party from appealing an interlocutory judgment or order, only you cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)
Give examples of dismissal of cases without prejudice.
A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f], [h], [i]):
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(h) That the claim or demand set forth in the plaintif’s pleading has been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;
What is the remedy in case the judgment or final order is not appealable?
A: In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65. (Sec. 1, Rule 41; Crisologo vs. JEWN Agro- Industrial Corp., GR no. 196894, March 3, 2014)
What are the modes of appeal?
- Ordinary appeal 2 petition for review 3. Appeal on certiorari
How is an appeal perfected?
A party’s appeal by notice is deemed perfected as to him upon filing of the notice of appeal in due time. A party’s appeal by record of appeal deemedperfected as to him with respect to the subject matter upon approval record on appeal filed due time!
