Civil Procedure: Rules 40 – 56


Rules 40 – 56


Appeal is a matter of right created by statutes. Once denied, one can avail of the constitutional right to due process

Appeal is asking appellate court to correct errors in the exercise of jurisdiction

Errors of jurisdiction corrected by review on certiorari.


Question of fact (Qf): existence of a particular issue of fact.

Issue: which evidence is credible?

Whether or which particular situations exists.

As the case goes higher in court hierarchy, court deal with evidence as part of record, hence becomes farther and farther from the source.   For this reason, Trial courts are accorded high respect in their findings of questions of fact.

Questions of law: characterization of facts as shown by the evidence, correct characterization of fact based on a provision of law.  Which law is applicable given a set of circumstances


Several Modes of Appeal:

1. Mandatory – appellate court must accept

2. Discretionary – appellate court can deny


First appeal – always mandatory; as a matter of statutory right

Second appeal – discretionary

Third appeal – discretionary (however, if originating fr. MTC, may not be discretionary)

Exercise of jurisdiction – subject matter of appeal

Questions of jurisdiction – file an entirely new case; subject matter of special civil actions

In Appeals – title of the case remains the same

Plaintiff/Defendant only  becomes Appellant/Appellee

Issue of jurisdiction – file entirely a different case by filing special civil action attaching as a ground, abuse of discretion

Appeal can focus in the issue of law or fact or both.

Execution, Satisfaction and Effect of Judgments

Rule 39

Special Civil Actions

Rules 62 – 71


Certiorari – means discretion

Appeal by certiorari – Rule 45 – title does not change

Petition for  review on certiorari – title does not change

Special civil action for certiorari – Rule 65 – title does not change because it is an entirely different case

Rule 45 is a mode of appeal while Rule 65 is an entirely different action

Petition for Relief from Judgment – title does not change, judge is not a party


On old rule, the Record on Appeal  are merely summary of proceedings while the new in the rules, the entire records are elevated to the appellate court, esp. if only one appeal is possible.

Remedies where more than 1 appeal is allowed e.g., Special Civil Action of Eminent Domain (Mun of Biñan)

2 orders:

(1) condemnation of the property, Q of just taking,  RTC original and exclusive jurisdiction

(2) order of whether there is just compensation

(final order: right to take and use prop)

(final order: value of prop)

Note: In the appeal of the 1st order, the court cannot elevate the entire records since the court must still rule on the 2nd order. The appellant summarizes records on appeal which must be approved by the RTC then such will be elevated with exhibits and relevant documents. Therefore Record on Appeal (in Eminent Domain) substitutes the entire records.

Effect:  time periods differ

a. elevation of records – after notice, records are elevated in 15 days

b. records on appeal – 30 days appellee can object within 5 days only upon approval of record.

Note: always institute action at the lowest court to maximize appeals

MTC to RTC – Rule 40

Multiple appeals – notice and record of appeal

Go directly to the SC when appeal contains only questions of law.

Start with CA – action to annul and special civil actions

Only one mode of appeal to SC – Appeal by certiorari.

6-9 – Appeal; execution of judgments – Interpleader, declaratory relief; special civil actions

Ordinary civil actions – record on appeal; in situations when you can take multiple appeals

Special civil actions – eminent domain; record on appeal also essential

Record on appeal substitutes for the records.

Ordinary appeals – entire records are elevated


Original  jurisdiction MTC- mode: only appeals by certiorari Rule 45; discretionary on the part of the SC; raise only questions of law


Stay the judgment of the CA; [15] extendible for compelling reasons for 30 days

Gen Rule: All appeals stay execution of judgment

Exception: Rule 43    


Mode: Petition for review by cert; [15] extendible for 15 days and no second extension unless compelling reasons [15 days]; must raise questions of fact with questions of law or questions of fact alone (Habaluyas case: a Bar Q, classmates).

Rule 42- file petition not with court of origin but with the CA; summarizes the case, facts, the issues and puts in the arguments.


mode:    file notice of appeal [15]


appeal                                                    Ordinary civil actions- partial new trial

Rule 41  record on appeal [30]                                                   several judgments

No extension; avail only                                                 separate judgments;

Where mult. Appeals are                                                where appeal is allowed

Avail;  raise Q fact & Q law               Special civil actions- eminent domain


now: an appeals bond is not             Special proceedings- only under Rule 109




Rule 43; in cases originating from Quasi-Judicial Agency, the CA having appellate jurisdiction, the CA does not stay the execution of Judgment



Rule 45- Appeal by certiorari (18 copies)

From RTC to SC possible only when questions of law are raised. [15] days extendible for 30 days

Appeals from MTC to RTC – original appellate jurisdiction

Rule 45- errors of exercise of jurisdiction

Rule 65- errors in jurisdiction


Rule 45 Questions of law

Mode: Appeal by cert. Only Ql


Mode: Ordinary appeals

Multiple appeals – notice with record on appeal

Raises Qf/Ql

RTC       (exercises original jurisdiction)

SC – discretionary; may wish not to entertain appeal

Rule 45;  Questions of law

Appeal by certiorari

CA – Court of origin

Or Annulment of judgment

Nullification of judgment

Special civil actions

Habeas corpus


Mode: Appeal by cert.; raise only Ql; [15] extension [30 days;

Rule 45, furnish 18 copies


Rule                             41                                            42                                          45

MTC                                      RTC                                       CA                                          SC


QJA                                        CA                                          SC

43 45


MTC }                   Ordinary appeal by filing notice of appeal with court of origin within

RTC }                    15 days from notice of order Rule 41

Periods not                            a. notice of appeal  [15 days]

Extendible                             b. notice with record on appeal [30 days]

Original and concurrent jurisdiction

SC –        Ordinary civil action – cases involving ambassadors and consuls;

Special civil actions

CA –        Ordinary civil actions          annulments/nullification of judgment

Special civil actions                             cert, mandamus, prohibition, h. corpus

Ordinary appeal

Court of origin – where notice of appeal is filed

Perfection:            when notice is filed

For defendants that did not file an appeal: when the period to                                                                                                                                                 appeal had lapsed

From date of perfection of appeal- court loses jurisdiction over the parties

After appeal is perfected- court of origin may still act prior to transmission of records

Not contentious points

Approve compromises

Permit appeals of indigent litigants

Eg. Subject matter is perishable

Appellate Court – has jurisdiction to dismiss the case only for reasons provided in ROC, it is nor discretionary on their part

MTC to RTC- appellant’s memorandum/ appellee’s memorandum

RTC to CA- appellant’s brief/ appellee’s brief

Petition for review –

Nothing is filed at the court of origin; always filed with the appellate court; summarizes facts

Court has the option to dismiss the petition outright not on the procedural ground but on the merits because grounds are not substantions (Rule 42, Rule 43)

Other parties required to file only a Comment

Rule 42 & 43 period to file memoranda; not extendible

Rule 45 period to file memoranda; extendible

Ordinary Appeal – Record on Appeal

Should be written by the judge; but burden of drafting the record falls on the appellant

TC losses jurisdiction, with respect to the party filing the appeal, upon its approval of the Record of Appeal

Other party may object within 5 days from receipt of record on appeal

After approval; notice, record on appeal, exhibits, etc. are elevated to the appellate court

Concept of Multiple Appeals –

Eminent Domain

Concept of Record of Appeal (Summary of the case, looks like a Pre-Trial Brief)- should be written by the Judge but the burden falls on the appellant, subject to approval of the court.  Period: within 30 days

Court of Origin loses jurisdiction upon the approval of record of appeal


Ordinary Appeal  Notice                    (1 Appeal)

Notice with record of appeal (Multiple Appeal)

Petition for Review              42


Appeal by Certiorari

Notice: Rule 65 is not an Appeal

Concept of an APPEAL

Errors of jurisdiction                           Rule 65

Subject matter

Errors in the exercise           Appeal

Of jurisdiction

Q: When is appeal by cert under rule 65 available?

A: After a judgment or final order

It is not available if there is already a final judgment (Eternal Gardens) or a final order

Substitutes for an appeal

Gen Rule: No . MNT/MR is technically not a substitute

Excep’n:  Presco v. CA, SCA by cert.



Preliminary Attachment

Preliminary Injunction/Preliminary Mandatory Injunction



Support Pendente Lite

Purpose To have property of adverse party attached as security for the satisfaction of judgment that may be recovered in cases falling under Sec 1, Rule 57. To require a party or a court, agency or a person to refrain from doing a particular act or acts or to require the performance of a particular act or acts. To place the property subject of an action or proceeding under the control of a third party for its preservation and administration litis pendentia To recover possession of personal property To compel adverse party to provide support while action is pending in court
When applied/granted At the commencement of the action or at any time prior to the entry of judgment At any stage prior to  the judgment or final order At any time prior to satisfaction of judgment At the commencement of the action but before answer is filed At the commencement of the action  or at any time prior to the judgment or final order
How applied for File affidavits and applicant’s bond File verified application and applicant’s bond; if application is included in the initiatory pleading, the adverse party should be served with summons together with a copy of the initiatory pleading and the applicant’s bond File verified application and applicant’s bond; application may also be included in initiatory pleading in actions for foreclosure of mortgage File affidavits and applicant’s bond File verified application; bond not required
Who may grant Court where action is pending, the CA or the SC even if action is pending in the lower court. Only the Court where the action is pending; Lower Court, Ca or SC provided action is pending in the same court which issues the injunction. Court where action is pending, the CA or the SC even if action is pending in the lower court. Appellate court may allow application for receivership be decided by the court of origin. Only in the court where action is pending Court of origin and appellate court. (See Ramos v. CA)
Requisites for granting application
  • Sufficient cause of action
  • Case is covered by section 1 Rule 57
  • No other sufficient security for the claim exists
  • Amount due to applicant or value of property he is entitled to recover is equal to the sum for which the order of attachment is granted
  • Applicant is entitled to the relief demanded
  • Act/s complained of would work injustice to the applicant if not enjoined
  • Acts sought to be enjoined probably violates applicants rights respecting the subject of the action or proceeding
  • Applicant has interest in the property or fund subject matter of the action or proceeding
  • Property or fund is in danger of being lost removed or materially injured
  • Appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation
  • Applicant is the owner of the property claimed or is entitled to the possession of the same
  • Property is wrongfully detained by the adverse party
  • Property is not distrained or taken for a tax assessment or a fine pursuant to law
  • Affidavits, depositions or other documents should show, at least provisionally, that the applicant is entitled to receive support
Where property is claimed by third person When third-party claimant makes an affidavit of his title to the property or his right to the possession thereof, and serves such affidavit to the sheriff and a copy thereof to the attaching party, the sheriff shall not be bound to keep the property unless the attaching party files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. Claim for damages for the taking or keeping the property must be filed within 120 days from filing of the bond. When third-party claimant makes an affidavit of his title to the property or his right to the possession thereof, and serves such affidavit to the sheriff and a copy thereof to the attaching party, the sheriff shall not be bound to keep the property under replevin unless the applicant files a bond approved by the court to indemnify the third-party claimant in a sum not less than double the value of the property levied upon. Claim for damages for the taking or keeping the property must be filed within 120 days from filing of the bond.
Bond requirement Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the granting of provisional remedy prayed for, if the court shall finally adjudge that the applicant was not entitled thereto Bond executed to the adverse party in double the value of the property for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant of the action No bond required
Discharge of remedy By counter-bond: Party against whom the provisional remedy is availed of, may move for the discharge of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or equal to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action                   Not applicable.
Cash deposit may be made in lieu of the counter-bond Filing of counter-bond made only upon showing that the issuance or continuance thereof would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer ; counter-bond alone will not suffice to discharge the injunction. Amount of counter-bond should also be double the value of the property
Other grounds: improper or irregular issuance or enforcement or insufficiency of the bond Insufficiency of the application Appointment was obtained without sufficient cause
Damages in case applicant for any of the provisional remedies not entitled thereto or for any irregularity in the procurement of provisional remedy
  • Owner of property attached must file before trial or before perfection of appeal application for damages
  • Party who availed of provisional remedy and his surety or sureties must be notified , showing right to damages and amount thereof
  • Damages awarded only after proper hearing; included in judgment of the main case

If judgment of appellate court is favorable to the party against whom provisional remedy was effected:

  • Application must be filed with the appellate court before the judgment of the appellate court becomes executory
  •  Appellate court may allow application to be heard and decided by the trial court

If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award:

  • Adverse party may recover damages in the same action
When judgment or final order finds the person who has been providing support pendente lite not liable therefor:

  • Court shall order  the recipient to return the amounts already received with interest from the dates of actual payment
  • Recipient may obtain reimbursement from the person legally obliged to give support (separate action must be filed for the purpose)
  • If recipient fails to reimburse the amount, person who provided the same may seek reimbursement from the person legally obliged to give the support (separate action must be filed for the purpose)



Declaratory Relief

Certiorari (COMELEC and COA)

Certiorari Prohibition


Quo Warranto


Foreclosure of Real Estate Mortgage


Forcible Entry



Purpose Compel conflicting claimants to litigate their claims among themselves Declaration of rights and duties (reformation of instrument, quieting of title, consolidation of ownership)

Correcting errors of jurisdiction

Remove a usurper Taking of private property for public use Satisfy creditor based upon security Division of real property among the parties claiming rights thereto

Recover possession in fact

Protect judicial system from unwarranted intrusion
  • Conflicting claims exist upon the same subject matter
  • Such claims are made upon a person who claims no interest in the subject matter
  • Person has interest under a deed, will, contract or other written instrument
  • Person’s rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation
  • No breach or violation of the rights has yet occurred
  • Judgment or final order has been rendered by the COMELEC or the COA
  • Aggrieved party wants the judgment or final order reviewed by a higher court

  • Any tribunal, board or officer exercising judicial or quasi judicial functions has rendered judgment
  • Such tribunal, etc. has acted without or in excess of its jurisdiction


  • Proceedings in a tribunal, corporation, board, officer or person exercising judicial, quasi judicial or ministerial functions are conducted without or in excess of its jurisdiction


  • When any tribunal, corporation, board, officer or person unlawfully neglects performance of an act which the law specifically enjoins

Common requisite:

  • There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law
  • A person usurps, intrudes into, or unlawfully holds or exercises office, position, or franchise
  • A public officer does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office;
  • An association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act
  • Property  owned by a private party
  • Taking by government for public use
  • Just compensation
  • A person owes another a loan
  • Loan is secured by mortgage of real property
  • Debtor defaulted in payment
  • Final demand has been made
  • Real property is owned by several persons
  • Person claiming right to the property does not want co-ownership to continue
  • A person enjoys lawful possession of the property
  • Another person acquires possession of the same property by force, intimidation, threat, strategy or stealth
  • A person lawfully takes possession of the land at the beginning
  • Such lawful possession has ended
  • A demand to vacate has been made
Direct contempt:

  • A person behaved improperly in the presence or so near a court
  • Such misbehavior obstructed or interrupted court proceedings

Indirect contempt:

  • Misbehavior in performance of official functions
  • Disobe-dience to lawful court orders
  • Abuse or unlawful interference with court processes
  • Improper conduct which tends to impede administration of justice
  • Pretending to be a lawyer or officer
  • Failure to obey subpoena
  • Complaint is filed
  • Summons served upon parties
  • Parties files motion to dismiss or answers the complaint
  • Pre-trial
  • Court determines parties’ respective rights and adjudicate their several claims

Note: Docket fees paid by complainant constitute a lien upon subject matter of the action

  • Action is brought before appropriate RTC
  • All persons affected made parties
  • Notice to Sol Gen if validity of a statue, executive order or regulation of any other governmental regulation is involved
  • Notice to prosecutor or attorney of LGU if involving validity of a local ordinance
  • Court acts on application
  • If during pendency of action there occurs breach or  violation, action is converted into an ordinary action
  • 18 copies of verified petition shall be filed within 30 days from notice of the judgment or final order
  • If motion for new trial or recon-sideration is allowed, period to file petition is interrupted. If motion is denied, petition shall be filed within remaining period, in no case less than 5 days.
  • Pay docket and other lawful fees and deposit of P500 for costs
  • SC either orders respon-dents to file their comment if it finds petition sufficient in form and substance or dismisses the petition if it was filed manifestly for delay or the questions raised are too unsubstantial
  • Respondents file comment
  • SC either sets case for oral argument or requires submission of memoranda or decides the case based on submit-ted documents
  • Petition must be filed within 60 days from notice of judgment
  • Court orders respondents to file comment within 10 days from receipt of order
  • Court may order filing of reply or other responsive pleadings
  • Court may hear the case or require parties to submit memoranda
  • Court either grants petition or dismisses the same if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised are too insubstantial to require consideration
  • Certified copy of judgment is served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person and disobedience thereto shall be punished as contempt.
  • Verified petition in the name of the RP is filed (Person claiming to be entitled to a public office or position usurped by another may bring action in his own name)
  • Person at whose instance the petition is brought pays costs and expenses
  • Respondent is notified
  • Court may reduce periods for filing pleadings to secure most expeditious determination of matters involved in the action
  • Judgment is rendered. Court may render judgment for costs against petitioner, relator or person/s claiming to be a corporation
  • Person adjudged entitled to public office may demand of the respondent to deliver all books and papers to him
  • Verified complaint filed, stating right and purpose of expropriation
  • Persons owning or claiming to own any interest pertaining to the property must be joined as defendants
  • Plaintiff may enter property after filing complaint and depositing with a government depositary amount equivalent to assessed value of property
  • Defendants allowed to file objections
  • Court rules on the issue of expropriation, granting or denying the same
  • If expropriation is granted, court appoints notmore than 3 commisioners
  • Objections to appointment of commisioners may be filed within ten days from service
  • Commissioners take oath before assuming function
  • Commissioners ascertain and report the just compensation for the property
  • Clerk of court serves copies of commissioners’ report to all interested parties
  • Interested parties allowed to file objections within ten days
  • Court renders judgment on the issue of just compensation
  • Judgment is recorded in registry of property
  • Complaint filed
  • Court ascertaines amount due to plaintiff and renders judgment ordering defendant to pay within a within a period not less than 90 days but not more than 120 days
  • If defendant fails to pay, foreclosure sale ensues
  • Costs deducted from proceeds of sale, mortgagee paid amount due; if there is excess in the proceeds, same is turned over to mortgagor
  • If proceeds of sale is not sufficient to cover entire indebtedness, deficiency judgment is rendered: execution immediately issues if whole debt is due, otherwise, mortagor entitled to execution upon original terms of the contract
  • Certified copy of final order confirming the sale is registered in the registry of deeds
Jurisdiction RTC RTC SC SC, CA, RTC, Sandiganbayan SC, CA, RTC


Reference:  University of the Philippines


About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on December 19, 2011, in Civil Procedure and tagged . Bookmark the permalink. 1 Comment.

  1. Great Article. Thanks for the info. Does anyone know where I can find a blank special civil form to fill out?

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