CIVIL PROCEDURE

RULES 23 TO 43

Disclaimer: This is just suppletory to your other study materials since this is What is a “deposition”?
basically just the lecture of Justice Aquino. J It is a written testimony of a witness given in the course of a judicial proceeding, in
The coverage of this lecture: Rules 23 to 45 advance of the trial or hearing upon oral examination or in response to written
Please use the photocopies that Justice gives us cause andun yung mas elaborate interrogatories and where an opportunity is given for cross-examination.
explanation ng mga lectures niya.
Deposition Affidavit
RULE 23 to 28 – MODES OF DISCOVERY
In question and answer format, and is
taken under oath. A narrative.
Why is it called “discovery”?
Because its purpose is principally for evidentiary disclosure. It is necessary for the In place of declaration of a witness. It Submitted to throw ground of
preparation of the pre-trial brief. The rule urges lawyers to avail of these modes of is “almost” a trial outside of court, and hearsay.
discovery para maging maayos yung trial. for a justified use.

This is complementary to pre-trial. Example. Example.

“What is your proof?” I. Juan dela Cruz, of legal age
3 means of evidentiary disclosure “How did you become related to each II. Filipino
(1) Bill of particulars; other?” III. Living in Tondo, Manila
(2) Pre-trial; and
(3) Modes of discovery.
Deposition by oral examination
What are the “modes of discovery”
(1) Depositions (Rules 23 and 24) How? A party who desires to take a deposition can give notice that a deposition
(2) Written interrogatories to parties (Rule 25) will be taken and identify the person, the nature of the facts once that notice is
(3) Request for admission by adverse party (Rule 26) given, objection may be submitted to court.
(4) Production or inspection of documents or things (Rule 27)
(5) Physical and mental examination of persons (Rule 28) It may be taken before a?
(1) Member of the judiciary;
3 kinds of depositions (2) Notary public;
(1) Pending action (Rule 23) (3) Anyone under oath, and the mutual parties must have agreed to it; and/or
(2) Before action (Rule 24) (4) Consul, Consulate… if outside the country (basically just check the codal)
(3) Pending appeal (Rule 24)
The officers shall determine the date, time, place, and even give the schedule
2 types of depositions when the deposition by oral examination may be taken. All the parties notified must
(1) Oral examination; and be present if hindi dumating, waived yung right niya. Assuming na all are present,
(2) Written interrogatories. the proceedings will follow. The lawyer, or whoever was asked for deposition may
ask the witness or deponent to answer, and it shall be noted and resolved only by
the court.

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© Murallos 2019-2020
Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

After the Q&A portion is done, the officer shall require the stenographer to The party who is supposed to ask cannot hold the defendant to testify. In trial,
transcribe. Once it is done, it shall be given to the officer, the deponent shall read, pwedeng witness ni plaintiff si defendant.
and will be asked whether or not he agrees that it is a truthful reproduction, after
signing, the officer will prepare the certificate that the deponent is put under oath, Bakit kailangan yung affidavits ng lahat ng witnesses?
it will be signed by the parties, and the transcript and certification will be sealed in Because some witnesses can turn around, or bayaran ba. Unethical yan, false
an envelope. testimony yan, but it happens. So to prevent it, make sure you take affidavits of all
the witnesses.
How about in trials?
No deposition can be offered in court if not present because sub lang naman sa Rule 23 Rule 25
testimony-in-chief ang deposition. Pag may witness na andon, useless yung In itself a deposition Applies only to the opposite party
deposition. Pwede lang ito gamitin kapag ginamit din ng adverse party—patas
patas lang.
Request for admission

The only use of the deposition?

It can be used kapag walang testimony available. The depiction cannot prove Directed only to a party and not a witness.
anything but only the part that is on record. - Without general admission, you have to prove
- The request for admission and answer must be under oath
What if magkaiba yung sinabi sa deposition sa testimony?
The judge will disregard it. It must be noted that all modes of discovery may be availed of cumulatively.

What is the sanction if the party fails to request for admission?

Written deposition
The party shall be denied to submit evidence.

When a party desires to avail himself of this, he will prepare the questions, and the
Example.
questions will be addressed to the opposite party. Only in deposition pwede other
Any allegations should provoke a question from the defendant. If hindi tinanong,
people ang maging deponent. In addition, all prepared questions must be under
he won’t be allowed to prove otherwise. Di na masusubmit yung deed.
oath, with a notice, and it must state the identity of the officer. It is the officer who
will determine the time, place, and date of the taking of the deposition.
It is also important to state in the pre-trial brief yung modes of discovery.

The party asked to answer should be ready with his written answers under oath. It
Inspection and production of documents
must also be furnished.

A written Q&A must be submitted. It must be under oath, and submitted to the
officer who shall read the questions. After everything is furnished, the parties
asking or the adverse party may use such deposition.
What if there is a failure to avail of this remedy?
It shall constitute as a waiver.
Example.
The issue is w/n the plaintiff owns the property for 12 years.
During the examination in court, the other party asked for an ocular inspection but
nung nasa property na sila, nakita nila na wala pang 12 years yung mga halaman.
So it just shows that, wala wala pang 12 years yung ownership.

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Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

Mental and physical examination (f) The parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to adduce
When the issue pertains to the physical condition or mental condition, this is the evidence upon their original case; and
proper mode of discovery. (g) Upon admission of the evidence, the case shall be deemed submitted for
Examples. decision, unless the court directs the parties to argue or to submit their respective
- Legal separation memoranda or any further pleadings.
- Nullity of marriage If several defendants or third-party defendants, and so forth, having separate
- Crime = insanity defenses appear by different counsel, the court shall determine the relative order
of presentation of their evidence.
Must be proven through examination
Evidence-in-chief – It is where the plaintiff proves the cause of action, and where
In rape cases, it would be the inspection of the defense of the accused. But if the the defendant proves his defense.
party refuses, bawal naman siya pilitin kasi right to privacy din. Although, may
presumption na naisubmit na. Rebuttal evidence – It is the one which destroys or negates the evidence of the
other party (plaintiff). The party has the chance to give a sur rebuttal evidence to
TRIAL destroy or negate the other party (defendant).

Object evidence – Anything except documentary evidence.

Trial – The stage in the elementary procedure followed by trial courts in the
conduct of civil cases in which the parties shall adduce their respective evidence
Documentary evidence – Any evidence in written form.
in support of their claims and/or defense.

Testimonial evidence – No need to offer it.

Section 5. Order of trial. — Subject to the provisions of section 2 of Rule 31, and
unless the court for special reasons otherwise directs, the trial shall be limited to
How to formally offer?
the issues stated in the pre-trial order and shall proceed as follows:
(1) Mark it as an exhibit;
(2) Fully notarize it;
(a) The plaintiff shall adduce evidence in support of his complaint;
(3) It must also be fully authorized by the plaintiff or defendant; and
(b) The defendant shall then adduce evidence in support of his defense,
(4) The purpose for proving must also be stated.
counterclaim, cross-claim and third-party complaints;
(c) The third-party defendant if any, shall adduce evidence of his defense,
What do you do in re-cross examinations?
counterclaim, cross-claim and fourth-party complaint;
You repair the damage caused by the evidence.
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
After the evidence is adduced, the court will ask to submit a memorandum. After
(e) The parties against whom any counterclaim or cross-claim has been pleaded,
that, the court will submit a decision. There are 90 days to decide the case. If it is
shall adduce evidence in support of their defense, in the order to be prescribed by
not enough, ask permission from the court administrator. 10 days to extend. It is
the court;
usually approved.

In presentation of evidence, if you’re in doubt? Acquit.

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Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

However, kapag may provisional remedy, when you’re in doubt? Sige lang. A: Counted from filing (duty bound na ito to the motion)
Q: What is new trial?
DEMURRER TO EVIDENCE Q: What is the objective of a motion for new trial?
A: Set aside the judgment and set for a new trial – balewala na yung decision.
It is a remedy for criminal and civil cases. After the plaintiff has presented his case Vacate trial order (Sec. 6)
or prosecution. The defendant or the accused can file. Totality of the evidence of Q: When can a motion for new trial may be filed?
the plaintiff or the proof beyond reasonable doubt pero if kulang to, denial to A: Within the time you file an appeal
demurrer to evidence. Q: From when?
A: Judgment
Q: Time?
JUDGEMENT ON PLEADING
A: 15 days from notice of judgment
Q: Grounds for motion for new trial?
A judgment in which the court, before trial or after joinder of issues, determine the
A: Rule 37, Sec 1
material allegations or walang patent issues. Therefore, the court could render a
Q: What do you mean by fraud (panlilinlang in Filipino)?
judgment on pleading. Dismissal of complaint. Judgment determines na walang
A: Extrinsic fraud (deceit is done outside trial)
issue, edi ma-dismiss lang. Otherwise, there’s no general issue. The court, then,
Q: Meaning?
could render partial judgment.
A: The party was prevented to go to court; the deceit was done outside trial

RULES 36 to 39
Intrinsic fraud – Done within or connected to the case

Q: What is a motion for reconsideration? If a judge is bribed and rendered a decision -> extrinsic
Q: Give an example or situation where MR is the proper remedy? If a lawyer sells out a case -> intrinsic kasi manufactured evidence
Q: What is reconsidered?
A: The judgment or final order Q: What is accident?
Q: Can you reconsider an order? Q: Example?
A: MR for order A: When the party failed to testify cause of stroke, but the court rendered a
Q: An order that dismisses a complaint? What do you call that? decision.
A: Final order – terminates a case
Q: Mistake?
A: Mistake of fact
Final orders -> appealable Q: Example
Interlocutory orders -> generally, not appealable Q: Lahat ba ng mistake pwede?
A: NO. The mistake must be of fact and not of law.
Q: What do you call where the situation where the evidence is insufficient? Q: Example?
A: Failure to present prima facie evidence A: Failing to include a notice of hearing of counsel.
Q: When do you file for MR?
A: Immediately after a prejudicial order or judgment is final and is served. Anytime Kapag mistake of law, hindi yun excusable.
for as long as you receive the order against you.
Q: When?

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Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

Q: Excusable negligence (qualified by the word excusable, so if the evidence is Before finality? It cannot be executed except through discretionary execution
excusable, not a ground)
A: Gross negligence Remember that the issuance of a writ of execution is a ministerial duty.
Q: Example?
A: Oversight Contents of a dispositive portion of the case
Q: Effect of granting new trial (1) Granting relief
A: Judgment will be set aside. Parties may show newly discovered evidence. Trial (2) Dismissal of the case
de novo na siya, unless there is an agreement that the evidence will remain. (3) Granting/Denying part of the relief paid for
(4) Order for new trial if there is a necessity
Excusable negligence Inexcusable negligence
Obiter dictum – This is only to support the conclusion collaterally. So, this is not
Any kind of failure to observe norms Can happen to anyone as a really necessary. This is only to fortify the conclusion. According to Justice,
in a serious matter. consequence of failure. “pabebe lang”.

Ratio dissident – Main reason in support of the conclusions of court so if you

Q: What is judgment? remove this, there is no decision.
Q: What does judgment contain?
Stare decisis – When a Supreme Court judgment establishes a juridical doctrine,
Judgment – Totality of the conclusion of courts on the rights and obligations of all lower courts are bound to follow the same. Only the Supreme Court can overturn
parties which regard to the case. the Supreme Court. Lower courts are not in liberty to change it since that would be
gross ignorance of the law.
Q: What is final order?
Requisites of a valid judgment
Final order – Issued by the court to resolve a motion either on merit or technicality (1) There is a valid jurisdiction over the case and the defendant;
(2) There should be a trial with observance of due process;
Q: Example? (3) The court must observe the evidence validly presented; and
A: A final order based on res judicata (4) There must be clear statements of the facts and the applicable law.
Q: Merit? Example?
A: Granting a motion for demurrer to evidence Under the constitution, judgment must be based on facts and law.

Formal requisites of a valid judgment

Doctrine of immutability of final judgment – Once a judgment becomes final, it
(1) It must be in writing;
can no longer be changed except in regard to clerical or typographical errors.
(2) It must be personally prepared by the Judge;
(3) It must be promulgated by the delivery of the signed decision to the clerk of
When does a judgment become final?
court.
After the expiration of 15 days without appeal being perfected.

There mere act of delivery is considered promulgation (entry) of judgment = FINAL

If final na? It will be executed.

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Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

What constitutes the statement of facts? Different kinds of judgments

(1) Pleadings; When there are two or more plaintiffs or
(2) Admission; defendants and the evidence is complete insofar
(3) Judicial notice; and Several judgment
one is concerned. Then the court can render
(4) Evidence judgment as to that one who is concerned.

Period to decide? Two or more causes of action in one complaint

Supreme Court -> 2 years from the submission when the evidence is complete in one or several
CA and CTA -> 1 year from the submission Separate judgment items. The separate judgment will be rendered to
SB, RTC, and MTC -> 90 days from the submission the one which has evidence. However, trial will
continue to that part which doesn’t have evidence.
Post judgment remedies against judgment
Not immediately executory or applicable. There is
Partial judgment
only one decision for all.
(1) Before the finality of judgment
• Motion for new trial Requires the party to do something or leave
• Motion for reconsideration something other than payment of money, delivery
• Motion for appeal Special judgment of titles or documents. Therefore, when a
• Motion for certiorari or prohibition (for grave abuse of discretion judgment requires a party to deliver a car or other
amounting to lack or excess of jurisdiction) personal property, not money or titles.
(2) After finality of judgment The answer admits of the claims stated in the
Judgment of pleading
• Petition from relief of judgment complaint, raising no issues at all.
• Certiorari, prohibition, and mandamus When there are genuine issues involved, but also
• Annulment of judgment Summary judgment there are issues which shouldn’t be resolved
anymore.
When a judge retires and there is no judgment, but judgment is needed. Who It is an action by a trial court correcting a clerical
gives it? Judgment nunc pro (rather than judicial) error in a prior judgment. It
The incumbent judge tunc may be signed even after the trial court loses its
plenary power.
When a judge is just transferred?
A judgment rendered as a result of an order of a
The same judge, or the incumbent judge Before judgment
court.
Judgment by It is when parties agrees to enforce the amicable
compromise settlement and is agreed upon the court after its
agreement submission.
It is used in small cases. It is issued by the court
Memorandum
on a basis of a template where the court will just
judgment
fill in the blanks.

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Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

What words should be used? Q: Why should fraud be a ground?

Judgment/decision -> “rendered” Q: Is it only with regard to final decisions?
Order -> “issued” A: No.
Q: What else?
What are the usual grounds of technicalities? Q: Remedy the same to the same?
(1) Failure to pay or there is an incomplete docket fee Q: Do you apply this relief only to final judgment?
(2) Failure to file a memorandum when it is required A: No. It can also be applied to occasions which remedy is available (FAME and
(3) Failure to submit the documents required when petitioner is denied appeal for the same decision)
(4) Failure to define issues Q: Example? FAME for failure to appeal?
(5) Failure to make statements of facts and assignments of errors A: There is fraud when the action of the other party tends to manipulate the
(6) Failure to define errors situation. It is the fraud which is the cause of the failure of the appeal.
Q: After the petition, what follows? (for the petition)
Law of the case is not equivalent to case law A: The petition is filed in court, and issue an order to file an answer.
Q: After an answer is filed, what happens?
Law of the case Case law A: Rule 38, Sec. 6
Only one case is involved, but it goes Q: During that hearing, are there other incidents which could happen?
“Jurisprudence” Q: Basic requirement? (writ of preliminary injunction)
through two stages
A: Bond; in addition to a bond?
Q: Function?
Judgment to demurrer to evidence – When there is a motion and the court A: Pay for damages incurred?
resolves it. Q: What are the possible decisions of the court?
A: Deny or grant
If the evidence does not prove = demurrer Q: What is the result if the court sets aside the ruling?
Q: What do you understand by “new trial”?
RULES 38 to 39 A: Trial de novo—all the proceedings will be wiped out.
Q: What are the possible decisions of court relief of judgment in a denial of appeal?
Q: What is this remedy called relief from judgment? A: Rule 38, Sec. 7
Q: Is relief available when judgment is final?
A: Yes, specifically a post final judgment remedy. 2 possible orders
Q: What if it is not final yet? (1) Sustain – Will be given due course and the files and records will be given to
Q: Why is it a post-judgment remedy? the appellate court.
A: Because it can only be availed of if filled after judgment because the rule states (2) Deny (or set aside) – If the decision is to set aside, the party cannot file any
that it cannot (basta yung 60-6 rule, 60 days, 6 months). This period is after the more appeal.
judgment.
Q: What are the grounds? Writ of execution – An order of a court directed to the sheriff to enforce the
A: FAME judgment of the court. The execution of the decision is the last segment of litigation.
Q: What about it? Once satisfied, everything ends.
A: The decision becomes void due to FAME

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Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

Final and executory judgment – When a judgment is ready for execution. Lien – It is any official claim or charge against property or funds for payment of a
However, there are decisions which may be final but not executory: debt or an amount owed for services rendered. A lien is usually a formal document
• Certiorari These are not subject to execution because they signed by the party to whom money is owed and sometimes by the debtor who
• Prohibition are all declarations. There is nothing to execute na, agrees to the amount due. A lien carries with it the right to sell property, if
• Declaratory relief self-executory siya. necessary, to obtain the money.

It is the registration of contract to the Register of Deeds. No transaction can be

Final orders – Orders that terminate the proceedings of a case on technical
grounds. It is a dismissal without regard to evidence.
Final order that attains finality – In the words of Justice, ito na yung final order
ng final order.
hand (cause yun ang effect ng custodia legis eh).
Garnishment – The entire process of petitioning for and getting a court order
directing a person or entity (garnishee) to hold funds they owe to someone who
allegedly is in debt to another person, often after a judgment has been rendered.

Entry of judgment – A procedure in court which would indicate finality. Example.

When the defendant is required to pay P1M, the sheriff will look for properties to
Example. levy. The sheriff will get the writ of garnishment, and submit it to the bank manager.
A lost the case Here, the bank becomes a voluntary intervenor.
Received a copy of the decision
He did not appeal Garnishment only applies to a creditor of one’s debtor.
At the end it becomes final
Now it is entered in the book = entry of judgment A debtor is also the creditor of someone else. Always go after the creditor of the
debtor.

Best proof is the certificate of entry of judgment

Terceria (or third-party claim) – As provided in Section 17, Rule 39, by serving on
the officer making the levy an affidavit of his title and a copy thereof upon the
Levy on execution – It is the means of obtaining money by means of a judgment creditor. The officer shall not be bound to keep the property, unless such
government officer (sheriff) taking and selling a debtor's property to satisfy the judgment creditor or his agent, on demand of the officer, indemnifies the officer
debtor's obligation. against such claim by a bond in a sum not greater than the value of the property
levied on. An action for damages may be brought against the sheriff within one
Example. hundred twenty (120) days from the filing of the bond.
The defendant must pay the plaintiff 1M
Sheriff demands payment upon default of D Example.
Ayaw ni D magbayad parin U have a property and one day the sheriff tells you that he will levy U’s property
Can the court sell D’s property? cause the information says that there is a judgment debtor. Thus, U must file an
No. He must first levy = impose a burden only at the consequence of levy can it affidavit and tell the court to cease the levying of the property. Finally, the court
be sold. decides.

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© Murallos 2019-2020
Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

Revival of judgment – Ordinarily, an execution can be effected by a motion for a Summary of an enforcement of judgment
writ of execution (good for 5 years to). After that you can no longer ask for such. A judgment has become final when
What you can do naman is to file a motion for a revival of judgment (ito naman for
10 years to)
The winning party files a motion

Remember that yung 5 years and 10 years, separate yan. Hindi yung 10 years
andun na yung 5 years. Hindi. As in 5 years tapos another 10 years.
The court directs an order of writ of execution
Recognition of a foreign judgment – Judgments of foreign courts do not
generally bind persons of other countries, except if there is an action for recognition
of judgment. Once it is recognized, saka lang siya ma-enforce sa Philippines. The clerk of court prepares and signs the writ of execution and the dispositive

Classification of execution
(1) How is it obtained? The clerk of court orders the sheriff to order judgment
§ Execution by motion
§ Execution by independent action
(2) As to the nature of the action of the court of the final judgment The sheriff goes to the serves the writ of execution, demanding payment, from the
§ Ministerial execution losing party
§ Discretionary execution (execution pending appeal)

Payment of sum
What can be executed?
§ If it fails – levy
(1) Final decisions
§ If the sheriff prepares notice upon both parties
(2) Final orders which have obtained finality
o Any person with interest
(3) Interlocutory orders of support pendente lite
o Posted in 3 conspicuous places
§ Specifies the property to be sold
When does a decision of final order attain finality?
§ If the appeal is perfected there is no exclusion
Who can bid?
§ Decisions, which even in appeal does not forbid execution. However, the
§ The creditor and/or owner
following can be executed even during the pendency of the appeal since the
§ Anyone, basically basta the highest bidder is the awardee
rules consider them as one of those executions which cannot be stayed by
appeal:
Remember that if the amount of the sale is more, the sheriff must return the excess
o Decisions on compromise agreement
to the owner. But if it is less, then a proceeding called deficiency judgment will
o Decisions on injunction
be made. Here, another property of the obligor will be levied upon.
o Decisions on receivership
o Decisions on accounting
Decisions for the delivery of real or personal property is the same as the procedure
above, except when the sheriff goes to the defendant (real property) and deliver

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 CIVIL PROCEDURE
RULES 23 TO 43
such property to the plaintiff, the sheriff must first register to the Register of Deeds
the certificate of sale and ask the defendant to create or issue a deed of sale.
Ministerial execution =/= judge is compelled to grant execution. Hindi yan the
same. Ministerial execution is done when all the requirements are submitted:
§ Motion for execution
§ Service
§ Hearing
§ Presentation of the evidence
Discretionary execution – After a judgment is rendered and appeal is perfected
(or not), the prevailing party can file a motion for execution. A pending appeal can
be filed immediately after judgment rendered cause of good reason.
General Rule: When appeal is perfected, the court who originally rendered
judgment loses jurisdiction.
Exceptions:
- Although, pwede pa if andun pa yung records. Kasi andun pa nga diba. But if
wala na, edi sa appellate court na.
- The motion has been filed before nawala yung jurisdiction.
4 residual powers of the court (despite loss of jurisdiction)
(1) Approved motion of an execution pending appeal
(2) Approved applications for a party to be considered indigent
(3) Approved compromise agreements
(4) Issue orders fort eh protection of the rights of the parties
Suppose that the execution pending appeal has expired, and the RTC has already
transmitted the records to the CA, can the CA act upon that motion? YES.
If the appellate court sustains judgment and a writ of execution. Where to file?
Court a quo (where it originally came from)
How can the court a quo act on a write of execution pending appeal? When the
records are admitted attach nalang a certified true copy and entry of judgment so
it will have basis.
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Lectures of Justice Aquino
What if the judgment obligor dies?
- Recovery of the property – Judgment obligee files a motion of a writ of
execution pending appeal of the obligor (this is the execution stage). Once
the sheriff has levied upon the property, execution continues (selling).
- Payment of money or damages – Judgment debtor dies. Then the obligee
files a money claim with the probate court and if there is no pending probate,
the obligee shall initiate the probate.
What if the obligee dies?
- The execution continues, it will be prosecuted until the end.
Execution of judgment
- Payment
Here, the sheriff goes to the obligor and ask for payment. If 3 days wala aprin, edi
hahanap na ng property yung sheriff para i-put on sale. Siyempre yung personal
property muna. If more than yung value ng personal property, okay personal
property na lahat. Pero kapag kulang parin, dun na papasok yung real property.
Kapag sobra naman, you will only choose alin sa mga real property na yun lang.
Then saka na magkakaroon ng sale sa public auction.
- Restitution
Here, if personal property lang and it shall be personally delivered by the sheriff.
However, if real property naman, levy muna then register sa RD para ma-annotate
sa TCT.
Judgment executes trial improvements to be demolished
- Order of demolition
- Obligor demolishes; if fails edi order of demolition
- This must be with the aid of police officers
 CIVIL PROCEDURE
RULES 23 TO 43

When the terceria claims to be the owner the redemption period expires. Pag tapos na yung redemption period, yung last
redemptioner na yung mayari.

The third person shall file an affidavit stating interest and title
How will it be effective?
- Notice
Here, the redemptioner cannot refuse
- Payment
The affidavit shall be submitted to the sheriff
Revival of judgment – 2 kinds of execution
- By motion – execution effective for 5 years (pero kapag hindi na-approve,
The sheriff will submit the affidavit to court (it is NOT the sheriff's duty to keep the certiorari)
property, unless there is a bond)
- By independent action – 10 years naman to, after neto wala na

The auction for injunction must be in a separate case. Remember na separate itong dalawang ito. Different ang 5 years sa 10 years.

Redemption – After the sale of public auction RULES 40 to 43

The sheriff will execute a writ of sale 2 remedies for review

(1) Appeal
These are the two remedies that a defeated party can avail of
(2) Certiorari
Proceedings on redemption will follow
A party who lost a case shall have another chance to be reviewed by a higher court
because judges are just human beings, thus they are fallible. This is also done in
Right of the former owner to redeem from the buyer of the auction
order to give justice.

Who can redeem? Appeal – A remedy to have a decision of a lower court be reviewed and
- Owner of the property reevaluated to see whether errors of facts or law or both were committed.
- Redemptioners (those who has lien, subsequent to the sale by public auction.
So these are the lien holder, mortgagee 2 types of appeal
- Matter of right – The first appeal
The owner shall redeem from the buyer everything: - Matter of discretion – 2nd appeal and onwards
- Fees
- Taxes Example.
- Magkano exactly binayad 1st – MTC -> RTC = matter of right, you can never reject this
- Interest 2nd – RTC -> CA = mater of discretion, dapat may good reason for denial

Once the owner redeems, that finishes the redemption period. But if the redeemer General Rule: The first appeal cannot be declined
is a subsequent lien holder, other redemptioners can buy it within 6 months before Exception: When it is filed to the CA originally or at its first instance

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© Murallos 2019-2020
Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

Can appeal be waived? Yes. motion for reconsideration, so as to standardize the appeal periods provided in the
(1) When the appeal is withdrawn Rules of Court and do away with the confusion as to when the 15-day appeal
(2) When the appeal is abandoned period should be counted.

Bartolome vs. CA What if there is an execution pending appeal?

The moment you withdraw your appeal, you can no longer file for a motion for new Another proceeding for restitution.
trial or reconsideration. Judgment is deemed final. If no more -> pay nalang

- Ordinary appeal (original jurisdiction) Q: What are the different modes of appeal?
This is initiated by filing a notice of appeal Q: When can someone apply for appeal?
- Petition for review (second appeal na to, usually appellate jurisdiction) Q: What is required of you to do once you file the modes of appeal?
Q: What is the consequence of that?
Review for certiorari (Rule 45) Q: What becomes of the appeal?
CTA, CA, SB -> SC Q: What is the consequence of the perfection of the appeal?
A: When an appeal is perfected, it can no longer seek relief from the same court.
Extent of the review powers of the appellate court Q: When is it deemed perfected?
- Review the matters assigned as errors in ordinary appeals (matters of fact). If Q: When is it finally perfected as an entire case?
no errors, decision is affirmed. A: When the appellee files or does not file (expiration)
- Rule 45 -> SC will determine if the basis of law has GADALEJ (grave abuse) Q: Significance of the perfection of the appeal for the entire case?
A: The Court loses jurisdiction
General Rule: Sa pre-trial idedefine yung issues Q: Consequence?
Exceptions: A: The court can no longer change the decision or continue with the case
- Issues not defined but necessarily connected Q: What are the residual powers of the court?
- Matter which are not discusses, and to be able to resolve them it is necessary Q: Is an appeal perfected with just a notice of appeal?
to serve the ends of justice Q: Record of appeal? When perfected?
- Matters specifically raised in the assignment of errors, except if those errors Q: What is the period?
appear in the case A: 30 days from the receipt of notice
Q: 2 kinds of appeal?
2 grounds for the court a quo to refuse or give due course to an appeal Q: What other cases would require multiple or separate appeals
- Appeal docket fee is not paid A: In cases which fall under the category of special proceedings
- Appeal is time-barred
Separate judgment – 2 or more causes of action, court can render a partial
Notice of appeal – Executed and filed by the appealing party with the decision of judgment
the court and with the compliance of the material dates rule.
Several judgment - 2 or more defendants, complete na yung evidence
Fresh period rule – The Supreme Court declared that a party-litigant should be
allowed a fresh period of 15 days within which to file a notice of appeal in the RTC,
counted from receipt of the order dismissing or denying a motion for new trial or

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© Murallos 2019-2020
Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

Cases which allow multiple appeals To perfect the appeal, you have to file a notice and record of appeal 30 days from
- Expropriation cases the receipt.
- Partition Notice of appeal – Does not need to be approved
- Extrajudicial partition Record on appeal – Needs to be approved

Q: After a notice of appeal is filled, what is/are the cause/s of action of the court of If there is a motion for reconsideration, the aggrieved party is given a fresh 15-day
origin? period.
Q: Is there a need to approve the modes of appeal?
A: No. Notice lang yun eh. MTC -> RTC
Q: On what grounds can the court deny due course? - Affirm
Lack of jurisdiction
A: (1) Docket fee is not paid during the reglementary period; (2) Appeal is time- - Reverse
barred
Q: Contents of a notice of appeal If the court affirms it will not return the case to the court of origin.
Q: Contents to a record of appeal
Example.
Remember that you can only appeal parts of the decision. MTC dismisses a case by reason of lack of jurisdiction over subject matter. So, the
plaintiff appeals. The RTC has only 3 causes of action:
Perfection of appeal - Affirm – Agrees with the MTC
- Reverses – Disagrees with the MTC
- Remands – For further proceedings
Losing party appeals
When the it is affirmed
- It will be determined w/n RTC has jurisdiction over the case and if there is, the
Losing party files a notice of appeal 15 days from the notice of judgment (this is Rules require the proceedings to be continued.
different from service of judgment because the latter is the actual receipt)
Why should the RTC try?
Can that 15 days be suspended? Because it has jurisdiction now. In addition, it is to avoid multiplicity of suits.
Yes. MR or motion for new trial
However, if there is a reversal the RTC will return the case to the MRC for further
proceedings. The decision of the RTC is appealable to the CA under petition to
If the court gives due course -> the appellant loses relief from that court and such
decision automatically becomes final and executory. review.

When is a record of appeal required? Q: What should the clerk of the MTC do?
(1) In cases where multiple appeals are allowed A: Transmit the records to the RTC together with the receipt of payment to the
(2) Special proceedings appellate court
(3) Special civil actions
There should be an instruction as to what is to be done. But what should the
instruction contain?

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© Murallos 2019-2020
Lectures of Justice Aquino
 CIVIL PROCEDURE
RULES 23 TO 43

- The alleged errors committed by the court Once these QJ agencies tender decisions, these decisions are reviewable by the
- The evidence must also be pointed out CA.

What is the remedy of the opposite party? Q: Does the MTC have appellate jurisdiction?
- Motion for reconsideration A: Yes. Tax decisions of the barangay treasurer
- Petition for review with the CA -> Here, the issues must be discussed Q: Review decisions of the COA and COMELEC?
especially those involving the decision of the RTC A: Rule 64 and not by petition by certiorari

After the filing of the petition -> file a comment

In the petition there are no longer the appellant or the appellee, they are now the
petitioners and respondents, respectively. Here, the Court a quo should no longer
be impleaded.

Where should the docket fee be paid?

To the court where it should be appealed

Once the briefs are before the court, the court should examine:
- The prima facie evidence
- The issue of an order giving due course to appeal

Quasi-judicial agencies – Agency of the government granted by the statue with

the power of investigation and adjudication (decide controversies involving
decisions of quasi-judicial agencies).

QJ agencies =/= DOJ

They are not of the same level

Q: Is the Office of the President a QJ agency?

A: Yes. Kasi pwede mag adjudicate ang OP

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© Murallos 2019-2020
Lectures of Justice Aquino