Rule44 Flashcards
What is a brief? What is its purpose?
The word “BRIEF” is derived from the Latin word “BREVIS” [AND BRUTTHEAD] and the
French word “BREFIE”, and literally means a short or condensed statement.
MOSKOWSKY vs. COURT OF APPEALS 230 SCRA 657
FACTS: The CA here granted the appellant a period of 90 days counted from
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Its purpose is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case, to assist the court to arrive at a just and fair conclusion. It should be prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil. 67; Casilan vs. Chavez, L-17334, Feb. 28, 1962)
Is the 45-day period to ile brief extendible?
YES, that is section 12. The worst violator here is the Solicitor General – extension 30 days, 2nd extension 30 days! Ganyan sila! Sometimes it takes them 18 months to prepare a brief. Sabagay, marami din
what questions may an appellant raise on appeal under rule 44?
Sec. 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. (18, R46)
ACTS: The spouses Martinez sold their house and lot to Rivera. Later, they
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iled a complaint against Rivera declaring the sale as null and void on the ground that the sale is a mortgage. The court dismissed the complaint. So the ruling of the trial court was that the sale was valid. But on the CA, Martinez spouses prayed that they maybe allowed to redeem the property.
The CA reversed the trial court and allowed Martinez spouses to redeem the property. Now, Rivera appealed to the CA, contending that Martinez change the theory of their case because in the original complaint the latter prayed for the annulment of the sale, and in the CA they prayed that they be allowed to redeem the property.
ISSUE: Was there a change of theory of the Martinez spouses?
HELD: There was NO CHANGE of theory. There was no surprise against Rivera or to the CA. The real purpose of the Martinez spouses in asking for the nullity of the contract is to enable them to recover the property from Rivera.
“Prescinding from those allegations and from the prayer all clearly set out in the complaint, it is fair to conclude that the real purpose in asking for the nullity of the contract of sale is to enable the Martinez spouses to recover or redeem the property they deeded in favor of Rivera. It would be absurd to pray for the nullity of an agreement and stop there. There would be a vacuum and the law, like nature, abhors a vacuum.”
“In the CA, they persisted in their claim to entitlement of the right to recover, redeem, or repurchase. This agreement can not be construed as change of theory; it is persistence, plain and simple. It does not leave any interstice in the entire theory of the case. Consistency in the position of the private respondents runs throughout the presentation of their claim.”
Is the appellee required to make assignment of errors?
The APPELLEE is not required to make assignment of errors, except when his purpose is to seek armation of the judgment on other grounds or reasons not stated in the decision.
If the appellee seeks modification of the judgment, is it enough for him to make assignment of errors?
A: In such a case, the appellee must appeal; an assignment of error is not enough. (Oquiñena vs. Canda, 87 Phiil. 120; Gorospe vs. Peñalorida, supra; Dy vs. Kuison, supra)
