Rule 42

Question 1

What is the nature of rule 42?

Answer 1

An appeal coming from the appellate jurisdiction of the RTC.

Question 2

Requirement for perfection

Answer 2

1) file a verified petition for review
2) payment of docket and other lawful fees
3) serving the adverse party a copy
4) Must be filed and served within 15 days
5) extendible of 15 days
6) most compelling reasons can still be extended but must not exceed 15 days

Question 3

What is the reckoning point of filing a petition for review?

Answer 3

from the notice of the decision sought to be reviewed or the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment

15 days

Question 4

Where to file?

Answer 4

CA

Question 5

Appellant filed a petition for review but was delayed due to some circumstances. He also failed to pay the docket fees. May he file a motion for extension?

Answer 5

As a general rule , yes, he may file a motion for extension. however in this case he failed to pay the docket fees

Question 6

When can you file a motion for extension for petition for review?

Answer 6

within the reglementary period of 15 days from the receipt of the notice of the decision sough to be reviewed.

Question 7

Coverage of petition for review

Answer 7

question of fact, questions purely of law, or mixed questions of fact and law

Question 8

Where to file if:
1) rtc in its appellate jurisdiction dealing with pure questions of law

2) rtc in its original jurisdiction dealing with pure questions of law

Answer 8

1) Court of Appeal- petition for review

2) Supreme Court- Appeal by certiorari or petition for review in certiorari

Question 9

Where to pay ?

Answer 9

CA

Question 10

Let’s say for example you filed a petition for certiorari under rule 65 in the RTC. What will be your remedy if such is denied?

Answer 10

Appeal under rule 41 which is an appeal from the judgment of the RTC exercising its original jurisdiction to the Court of Appeals. Provided that Special civil action or certiorari udner rule 65 is an original action.

Question 11

Form and Contents for petition for review

Answer 11

1) 7 legible copies
2) parties of the case, without impleading the judges or the lower courts
3) decision sought to be reviewed, legible duplicate originals or true copies of the judgments or final orders of both lower courts (certified correct by clerk)
4)material dates
5) statement of the matter involved, the issues raised, the specification or errors of fact or law, both, allegedly committed by the RTC, and the reasons or arguments relied upon for the allowance of the appeal
6) certification of forum shopping
7) affidavit of service (copies furnished to the adverse party and the lower court)

if there are other actions he will the court within 5 days

Question 12

Failure to follow the requriements will result to?

Answer 12

dismissal

Question 13

Section 3 rule 42, failure to comply will result in dismissal, What are these?

Answer 13

1) non-payment of docket fees, lawful fees, deposit of P500
2) non verification and no certification of forum shopping
3) no proof of service
4) failure to comply with the content and the requirements
- 7 legible copies
-state the material dates showing the fact of timeliness
-state the full names of the parties, without impleading the trial court, the jduges
- there should be legible original or true copies of judgment or final order of the lower courts
- the concise matters of the issues raised, the specification of errors of fact or law, matters involved, errors allegedly committed by the RTC, reasons or arguments relied upon for the allowance of the appeal

Question 14

Section 4 of rule 42

Answer 14

Court of appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within 10 days from the notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Question 15

Can the appellant force the compel the CA to give due course of the petition for review?

Answer 15

No, he cannot.

It will only be given due course if it shows prima facie merit that there was an error of fact or law that would warrant the reversal or modification of the decision or judgment

Question 16

Can the CA dismiss it outright?

Answer 16

Yes, if it is patently without merit, and was only prosecuted manifestly for delay, or the the questions are too unsubstantial to require consideration

Question 17

How many days is given to the respondent to file a comments?

Answer 17

the respondent is given 10 days to file a comment, and not a motion to dismiss

Question 18

What are the contents of the comment?

Answer 18

• 7 legible copies, accompanied by certified true copies of such material portions, together with support papers
• state whether or not he accepts the statement of matters involved in petition
  -point out such insuffiencies or inaccuracies as he blieves exist in petitioner’s statement of matter involved but without repetition
  -state the reasons why the petition should not be given due course
• copy served to petitioner and the rtc (proved by affidavit of service)

Question 19

upon the filing of the comment, or the filing of the comment will expire, what is the next step?

Answer 19

if ca finds prima facie that the lower court has committed an error of fact or law that will warrant reversal or modification of the appealed decision, it may accordingly give due course to the petititon (sec 6 rule 42)

Question 20

when does elevation of records happen?

Answer 20

if the CA deems the issue substantial to give it due course, the ca may order the clerk of court of the rtc to elevate the original record of the case including the oral and documentary evidence within 15 days

Question 21

What is required to perfect the petition for review?

Answer 21

-payment of docket fees
-filed within the reglementary period

Question 22

RTC loses jurisdiction over the case upon

Answer 22

1) perfection of the appeal
2)expiration of the time to appeal of both parties

Question 23

before the CA may give due course what will happen?

Answer 23

the rtc may have a residual jurisdiction until the original record or the record on appeal is elevated

Question 24

What is the difference between residual powers of the rtc pursuant to rule 41 section 9 and rule 42 section 8?

Answer 24

Rule 41 section 9

• needs to have jurisdiction
  -needs to have the original records or record on appeal to exercise residual jurisdiction

Rule 42 section 8
- rtc may still exercise residual jurisdiction even if it already lost jurisdiction
- until the CA gives the course

Question 25

Rule 42 section 8 b

Answer 25

general rule: execution of judgments are stayed in appeal

exception
1) rule 39 section 4/2
2) rule 70 section 21, or summary procedures

Question 26

What will happen if the petition is given due course? or rule 42 section 9

Answer 26

CA will require both parties to file a memoranda within 15 days