Post Judgment Remedies.docx

POST-JUDGMENT REMEDIES

 An appeal is being taken by filing a notice of appeal, and it is perfected upon the expiration of the last day of the period to appeal by any party.

MOTION OFR NEW TRIAL AND RECONSIDERATION

 When record on appeal is required, appeal is taken by filing a notice of appeal and the record of appeal; and the appeal is perfected upon the approval of the record on appeal.

(RULE 37) What is a MOTION FOR NEW TRIAL? → It is a complete retrial of the case after judgment has been rendered based on the grounds specified under Sec 1 of Rule 37.

What is a MOTION FOR RECONSIDERATION? → It is an application filed by the aggrieved party asking to set aside or reconsider a judgment or final order issued by the court which is not supported or contrary to by law; or the findings is not supported by evidence on record.

FRAUD → EXTRINSIC FRAUD refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent. (PTA vs PGDE)

ACCIDENT Constitutional Mandate in making a rule on a Motion for Reconsideration: SEC 14, ART VII: “NO petition for review or MOTION FOR RECONSIDERATION of a decision of the court shall be refused due course or denied WITHOUT STATING the LEGAL BASIS therefor.”

SECTION 1 (1st Par). GROUNDS OF AND PERIOD FOR FILING MOTION FOR NEW TRIAL Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or b) Newly discovered evidence, which he could not with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result.

Meaning of “within the period for taking an appeal” under the Rules:

→ An event that takes place without one’s foresight or expectation. An event that proceeded from an unknown cause.

MISTAKE → An incorrect belief held by some concerned about a fact involved in a transaction or a proceeding, or an incorrect opinion about the law which governs the transaction of proceedings.

EXCUSABLE NEGLIGENCE Negligence is excusable where it is caused: → By failure to receive notice of the action or trial → By a genuine and excusable mistake or miscalculation → By reliance upon assurance given by those upon whom the party had a right to depend → By relying on another person to attend the case for him, when such other person promised to do so or was chargeable with that duty → By other circumstances not involving fault of the moving party

Building Care Corp. vs Macaraeg

Siy vs CA

As a rule, MISTAKE OF COUNSEL BINDS THE CLIENT. The only exception would be, where observance of it would result in outright deprivation of the client’s liberty or property, or where the interest of justice so requires.

The PURPOSE of a motion for reconsideration is to point out the findings and conclusions of the decision which, in the movant’s view, are not supported by law or evidence.

Heirs of Timbol vs PNB PTA vs PGDE It is well-settled that the NEGLIGENCE OF COUNSEL BINDS THE CLIENT. Unless such acts involve gross negligence that the claiming party can prove, the acts of counsel bind the client as if it has been the latter’s act.

Filing of a Motion for Reconsideration is merely PERMISSIVE and not mandatory under Rule 37. as such, a party aggrieved by the trial court’s decision may either move for reconsideration or appeal to the CA. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. This means that, within 15days from notice of judgment, a party may file either an appeal or a motion for reconsideration.

Heirs of Racaza vs Sps. Abay-Abay While the Rules of Court allows the introduction by parties of newly-discovered evidence, as in the motions for new trial under Rule 37, these are not to be presented for the first time during an appeal. Under the Rules of Court, the requisites for newly discovered evidence are:

Habaluyas Enterprises Inc. vs Japson Motion for Extension of time to file Motion for Reconsideration does NOT TOLL the 15-day period to appeal. However, the rule may be suspended where the lawyer’s negligence is without any participatory negligence on the part of the petitioner.

a) The evidence was discovered after trial b) Such evidence could not have been discovered and produced at the trial with reasonable diligence

Jonsay vs Solidbank Corp.

c) It is material,corroborative or impeaching, and is of such that, if admitted, will probably change the judgment.

The filing of a motion for reconsideration or new trial interrupts or suspends the running of the period to appeal, and prevents the finality of the decision or order from setting in.

SECTION 1 (2nd Par). GROUNDS OF AND PERIOD FOR FILING MOTION FOR RECONSIDERATION Within the same period, the aggrieved party may also move for reconsideration upon the grounds:  that the damages awarded are excessive,  that the evidence is insufficient to justify the decision or final order, or  that the decision or final order is contrary to law.

A motion for reconsideration allows the adjudicator or judge to take a second opportunity to review the case and to grapple anew with the issues therein, and to decide again a question previously raised. No legal proscription imposed against the deciding body adopting new position contrary to one it had previously taken.

SEC. 2. CONTENTS of MOTION FOR NEW TRIAL or RECONSIDERATION and notice thereof.— The motion shall be: 1) made in writing 2) stating the ground or grounds therefor, 3) a written notice of which shall be served by the movant on the adverse party.

A motion for new trial shall be PROVED in the manner provided for proof of motions.

How to prove fraud, accident, mistake or excusable negligence? A motion for the cause mentioned in paragraph (a) (fraud, accident, mistake and excusable negligence) of the preceding section shall be supported by AFFIDAVITS OF MERITS which may be rebutted by affidavits.

contrary to law, making express reference to the pertinent evidence or legal provisions, as expressly required by Sec.2, Rule 37.

WHEN IS PRO FORMA MOTION PROHIBITED AND WHEN IT IS NOT:

First-Lepanto-Taisho Insurance vs Chevron Phils. Mere reiteration of the issues passed upon by the court does NOT make it a pro forma motion.

How to prove newly discovered evidence? A motion for the cause mentioned in paragraph (b) (newly discovered evidence) shall be:

Gonzalez vs COMELEC Elements of pro forma motion for reconsideration:

a) supported by AFFIDAVITS OF THE WITNESSES by whom such evidence is expected to be given, or

1) It was a second motion for reconsideration, or

b) by duly AUTHENTICATED DOCUMENTS proposed to be introduced in evidence.

2) It did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence, or

which

are

3) It failed to substantiate the alleged errors, or What are the requirements for the filing of a motion for reconsideration? A motion for reconsideration shall:

4) It merely alleged that the decision in question was contrary to law, or 5) The adverse party was not given notice thereof.

1) point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, 2) making express reference to the testimonial or documentary evidence OR to the provisions of law alleged to be contrary to such findings or conclusions.

A PRO FORMA MOTION for new trial or reconsideration shall NOT TOLL the reglementary period of appeal.

San Juan Jr vs Cruz Prohibition on pro forma APPLIES ONLY to a FINAL ORDER and not to interlocutory order.

SEC. 3. ACTION UPON MOTION FOR NEW TRIAL OR RECONSIDERATION.— The trial court may:

What is a PRO FORMA MOTION? → (Literally a motion in form only) is one which is filed merely for delay and as a matter of form to interrupt the period of appeal.

When is a motion for reconsideration or new trial pro forma? → When it does not specify the findings or conclusions in the judgment which are not supported by evidence or which are

1. SET ASIDE the judgment or final order and grant a new trial, upon such terms as may be just, or 2. may DENY the motion. 3. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may AMEND such judgment or final order accordingly.

SEC. 6. EFFECT OF GRANTING OF MOTION FOR NEW TRIAL. — If a new trial is granted in accordance with the provisions of this Rule,:

→ the court may order a new trial or grant reconsideration as to such issues if SEVERABLE without interfering with the judgment or final order upon the rest.

1) the original judgment or final order shall be VACATED, and 2) the action shall stand for trial de novo; but 3) the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same.

SEC. 8. EFFECT OF ORDER FOR PARTIAL NEW TRIAL. — When less than all of the issues are ordered retried, the court may either: 1) enter a judgment or final order as to the rest, or 2) stay the enforcement of such judgment or final order until after the new trial.

SEC. 5. SECOND MOTION FOR NEW TRIAL.— A MOTION FOR NEW TRIAL shall include all grounds then available and those not so included shall be deemed waived.

A SECOND MOTION FOR NEW TRIAL, based on a ground not existing nor available when the first motion was made,

SEC. 9. REMEDY AGAINST ORDER DENYING A MOTION FOR NEW TRIAL OR RECONSIDERATION.— An order denying a motion for new trial or reconsideration is not appealable, the REMEDY being an APPEAL from the judgment or final order.

→ may be filed within the time herein provided excluding the time during which the first motion had been pending.

No party shall be allowed a SECOND MOTION FOR RECONSIDERATION of a judgment or final order. (SINGLE MOTION RULE)

Jose vs Javellana The court has held that an appeal from an order denying a motion for reconsideration of a final order or judgment is effectively an appeal from the final order or judgment itself; and has expressly clarified that the prohibition against appealing an order denying a motion for reconsideration REFERRED ONLY to a denial of a motion for reconsideration of an INTERLOCUTORY ORDER.

Is an omnibus motion rule applicable in a motion for new trial? → YES. A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. APPEAL FROM MTC TO THE RTC (RULE 40)

APPEAL IN GENERAL What is an APPEAL? SEC. 7. PARTIAL NEW TRIAL OR RECONSIDERATION. — If the grounds for a motion under this Rule appear to the court to affect the issues as to:

→ A civil law procedure whose office is to remove the entire cause and subjects the transcript to a scrutiny of fact and law and is in substance a new trial.

 only a part, or  less than all of the matter in controversy, or  only one, or  less than all, of the parties to it,

When can an appeal be TAKEN? → An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the rules to be appealable.

Zamboanga Forest vs New Pacific Forest NATURE OF RIGHT TO APPEAL Sps. Bergonia vs CA → The right to appeal is not a natural right and is not part of due process. It is merely a STATUTORY PRIVILEGE, and may be exercised only in accordance with the law. → The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is LOST.

Sps. Elbe vs Mirasol Strict Compliance with the Requirements on Appeal is REQUIRED. → The statutory nature of the right to appeal requires the one who avails himself of it to strictly comply with the statutes or rules that are considered indispensable interdictions against needless delays and for an orderly discharge of judicial business. → In the ABSENCE of highly exceptional circumstances warranting their relaxation, such statutes or rules should remain inviolable.

Perfection of JURISDICTIONAL

Appeal

is

MANDATORY

and

→ Failure of party to conform to the rules regarding appeal will render the judgment FINAL and EXECUTORY. → Once decision attains finality, it becomes the law of the case irrespective of whether the decision is erroneous or not and no court (not even the SC) has the power to revise, review, change or alter the same. → The basic rule of finality of judgment is grounded on the fundamental principle of public policy and sound practice that the judgment of courts and the award of quasi-judicial agencies must become final at some definite date fixed by law.

Catmon Sales vs Yngson Jr. It is well-settled that a party who failed to appeal from a decision CANNOT seek relief other than what is provided by the judgment appealed from.

Besana vs Mayor Samson vs Judge Fiel-Macaraig PURPOSE OF APPEAL

ISSUES NOT RAISED in the lower court or tribunal CANNOT be RAISED for the first time on appeal.

→ To obtain reversal or modification of the judgment on the merits.

→ Basic considerations of fairness and due process impel this rule. Any issues raised for the first time on appeal is barred by estoppel.

→ The availability of the right to appeal precludes recourse to the special civil action for certiorari.

Note:

Aseoche vs Dicdican Administrative Case against erring Judges is NOT a Remedy if APPEAL is AVAILABLE. → Where some other judicial means is available, an administrative complaint is not the appropriate remedy for every act of a judge deemed abberant or irregular.

→ Lack of jurisdiction may be raised for the first time on appeal. → Party cannot change the theory of his case on appeal.

Sumipat vs Banga Grounds where the Court can review issues not assigned on appeal: Our rules recognize the broad discretionary power of an appellate court to waive the lack of proper assignment of errors and to consider errors not assigned. a) Grounds not assigned as errors but affecting jurisdiction over the subject matter

b) Matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law c) Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piece-meal justice.

The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (n)

SEC. 2. WHEN TO APPEAL.—

d) Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored.

An appeal may be taken within fifteen (15) days AFTER NOTICE to the appellant of the judgment or final order appealed from.

e) Matters not assigned as errors on appeal but closely related to an error assigned

Where a RECORD ON APPEAL is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days AFTER NOTICE of the judgment or final order.

f) Matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent.

The period of appeal shall be INTERRUPTED by a timely motion for new trial or reconsideration.

MODES OF APPEAL (RULE 40-45) 1st

mode: ORDINARY APPEAL under Rule 41 → Brought to the CA from the RTC in the exercise of its original jurisdiction → Resolves questions of fact or mixed questions of fact and law

2nd mode: PETITION FOR REVIEW under Rule 42 → Brought to the CA from the RTC, acting in the exercise of its appellate jurisdiction

NO motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Neypes vs CA NEYPES DOCTRINE or FRESH PERIOD RULE. → The Court has deemed it practical to allow a fresh period of 15 days within which to file the notice of appeal, to be counted from the RECEIPT of the ORDER DENYING the motion for new trial, motion for reconsideration or any final order or resolution.

→ Resolves questions of fact or mixed questions of fact or law 3rd mode: APPEAL BY CERTIORARI under Rule 45 → Brought to the SC

→ This is to standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases.

→ Resolves questions of law Jocson vs San Miguel SECTION 1. WHERE TO APPEAL.— An appeal from a judgment or final order of a Municipal Trial Court may be taken to the REGIONAL TRIAL COURT exercising jurisdiction over the area to which the former pertains.

The appeal from a decision of the Provincial Adjudicator to the Department of Agrarian Reform Adjudication Board (DARAB) as provided in the 2003 DARAB Rules of Procedure, is not judicial but administrative in nature. As such, the Fresh Period Rule finds NO APPLICATION therein.

Duarte vs Duran → Litigants must be given a fresh period of 15 days within which to appeal counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration under Rule 40, 41, 42, 43 and 45 of the Rules of Court.

→ The ruling retroactively applies even to cases pending prior to the promulgation of Neypes on Sept. 14, 2005, there being no vested rights in the rules of court.

SEC. 3. HOW TO APPEAL.— The appeal is taken by: 1) filing a NOTICE OF APPEAL with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate:  the parties to the appeal,  the judgment or final order or part thereof appealed from, and  state the material dates showing the timeliness of the appeal.

2) A RECORD ON APPEAL shall be required only in special proceedings and in other cases of multiple or separate appeals.

The form and contents of the record on appeal shall be as provided in section 6, Rule 41.

 A party’s appeal by notice of appeal is deemed perfected as to him upon — the FILING of the notice of appeal in due time.  A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon — the APPROVAL of the record on appeal filed in due time.

What is the EFFECT of perfection of appeal? (SEC. 9. Rule 41)  In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.  In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties.

What are the RESIDUAL POWERS of the court? (SEC. 9. Rule 41) In either case, prior to the transmittal of the original record or the record on appeal, the court may issue: 1) orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal 2) approve compromises, 3) permit appeals of indigent litigants,

Copies of the notice of appeal, and the record on appeal where required, shall be SERVED on the ADVERSE PARTY.

4) order execution pending appeal in accordance with section 2 of Rule 39, and 5) allow withdrawal of the appeal.

SEC. 4. PERFECTION OF APPEAL; EFFECT THEREOF. — The perfection of the appeal and the effect thereof shall be governed by the provisions of section 9, Rule 41.

SEC. 7. PROCEDURE IN THE REGIONAL TRIAL COURT. — a) Upon receipt of the complete record or the record on appeal,

When will an appeal be deemed PERFECTED? (SEC. 9. Rule 41)

→ the CLERK OF COURT of the Regional Trial Court shall NOTIFY the parties of such fact.

b) Within fifteen (15) days from such notice, it shall be the duty of the appellant → to SUBMIT a memorandum which shall briefly discuss the errors imputed to the lower court, a COPY of which shall be furnished by him to the adverse party. → Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may FILE his memorandum.

SEC. 9. APPLICABILITY OF RULE 41. — The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule.

→ FAILURE of the APPELLANT to file a memorandum shall be a ground for DISMISSAL OF THE APPEAL. APPEAL FROM THE RTC TO THE CA (RULE 41) c) Upon the filing of the memorandum of the appellee or the expiration of the period to do so, → the case shall be considered submitted for decision. → The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed.

SEC. 8. APPEAL FROM ORDERS DISMISSING CASE WITHOUT TRIAL; LACK OF JURISDICTION.—  If an appeal is taken from an order of the lower court dismissing the case WITHOUT a TRIAL ON THE MERITS, → the Regional Trial Court may AFFIRM or REVERSE it, as the case may be.  In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, → the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it.  In case of reversal, → the case shall proceedings.

When appeal may be taken? Orders NOT APPEALABLE?

SECTION 1. SUBJECT OF APPEAL.— An appeal may be taken from a judgment or final order that completely disposes of the case, OR of a particular matter therein when declared by these Rules to be APPEALABLE.

NO APPEAL may be taken from: a) An order denying a motion for new trial or reconsideration; b) An order denying a petition for relief or any similar motion seeking relief from judgment; c) An interlocutory order; d) An order disallowing or dismissing an appeal; e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; f) An order of execution;

be

REMANDED

for

further

 If the case was tried on the merits by the lower court WITHOUT JURISDICTION OVER THE SUBJECT MATTER, → the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, → but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice.

g) 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; and h) An order dismissing an action without prejudice.

In all the above instances where the judgment or final order is NOT APPEALABLE, the aggrieved party may file an appropriate SPECIAL CIVIL ACTION under Rule 65.

Abadilla Jr vs Sps. Obrero

Supreme Court by PETITION FOR REVIEW ON CERTIORARI in accordance with Rule 45.

An order of dismissal of an INJUNCTION CASE is APPEALBALE. Mandaue Realty vs CA Korea Technologies vs Lerma Rationale of the non-appealable character of interlocutory order. → it would result in the “sorry spectacle” of a case being subject of counterproductive ping-pong to and from the appellate court as often as a trial court is perceived to have made an error in any of its interlocutory rulings. → Where the assailed interlocutory order was issued with grave abuse of discretion or patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court allows certiorari as a mode of redress.

SEC. 2. MODES OF APPEAL.— a) Ordinary appeal— The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken:

QUESTION OF LAW

QUESTION OF FACT

 Exists when there is doubt or controversy as to what the law is on a certain state of facts.

 Exists when the doubt or difference arises as to the truth or falsehood of facts.

 No examination of probative value of the evidence is necessary to resolve the question of law.

 Requires examination of probative value of the evidence.

 Test: whether the appellate court can determine the issue raised without reviewing or evaluating the evidence and would only limit itself to the inquiry of whether the law was properly applied given the facts and supporting evidence.

 Otherwise, it is a question of fact.

→ by FILING a NOTICE OF APPEAL with the court which rendered the judgment or final order appealed from and → SERVING a COPY thereof upon the adverse party.

No record on appeal shall be required EXCEPT in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in .like manner.

b) Petition for review.— The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be: → by PETITION FOR REVIEW in accordance with Rule 42.

c) Appeal by certiorari.—- In all cases where only Questions of law are raised or involved, the appeal shall be to the

SEC. 3. PERIOD OF ORDINARY APPEAL.— The appeal shall be taken:  within fifteen (15) days from notice of the judgment or final order appealed from.  Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order.

The period of appeal shall be INTERRUPTED by a timely motion for new trial or reconsideration.

No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

SEC. 4. APPELLATE COURT DOCKET AND OTHER LAWFUL FEES.— Within the period for taking an appeal, the appellant shall:  PAY to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees.  Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal.

Sps. Lee vs LBP

to the appealed judgment or final order for the proper understanding of the issue involved, 4) together with such data as will show that the appeal was perfected on time. 5) If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved. 6) The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses.

Procedural requirement of payment of docket fees and other legal fees within the prescribed period is BOTH MANDATORY and JURISDICTIONAL.

7) If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits.

→ The payment of the full amount of the docket fee is an indispensable step for the perfection of an appeal.

8) Every record on appeal exceeding twenty (20) pages must contain a subject index.

→ In both original and appellate, the court acquires jurisdiction over the case only upon the payment of the prescribed docket fees, otherwise the Decision sought to be appealed from becomes final and executory.

SEC. 7. APPROVAL OF RECORD ON APPEAL.— Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may:  APPROVE it as presented or

SEC. 5. NOTICE OF APPEAL.— The notice of appeal shall:  indicate the parties to the appeal,  specify the judgment or final order or part thereof appealed from,

 upon its own motion or at the instance of the appellee, may direct its AMENDMENT by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal.

 specify the court to which the appeal is being taken, and  state the material dates showing the timeliness of the appeal.

SEC. 6. RECORD ON APPEAL; FORM AND CONTENTS THEREOF.— 1) The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and 2) it shall include the judgment or final order from which the appeal is taken and, 3) in chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related

If the trial court orders the AMENDMENT of the record, the appellant, within the time limited in the order, OR such extension thereof as may be granted, OR if no time is fixed by the order within ten (10) days from receipt thereof, shall:  redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and  shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft.

SEC. 8. JOINT RECORD ON APPEAL.— Where both parties are appellants, they may FILE A JOINT RECORD ON APPEAL within the time fixed by section 3 of this Rule, or that fixed by the court.

SEC. 13. DISMISSAL OF APPEAL.— Prior to the transmittal of the original record or the record on appeal to the appellate court, → the trial court may MOTU PROPRIO or on MOTION dismiss the appeal for having been TAKEN OUT OF TIME.

PETITION FOR REVIEW FROM THE RTC TO THE CA (RULE 42) SECTION 1. How appeal taken; time for filing. — A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n) SEC. 2. Form and contents.— The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true

copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition.The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (n)

SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE

SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE

UNLESS otherwise directed by the court, the number of court bond papers that a party is required or desired to file shall be as follows:

UNLESS otherwise directed by the court, the number of court bond papers that a party is required or desired to file shall be as follows:

b) In the CA and Sandiganbayan, 1 original (properly marked) and 2 copies with their annexes.

b) In the CA and Sandiganbayan, 1 original (properly marked) and 2 copies with their annexes.

SEC. 3. EFFECT OF FAILURE TO COMPLY WITH REQUIREMENTS.— The failure of the petitioner to comply with any of the foregoing requirements regarding:  the payment of the docket and other lawful fees,  the deposit for costs,  proof of service of the petition, and  the contents of and the documents which should accompany the petition

SEC. 6. DUE COURSE.— If upon the filing of the comment or such other pleadings as the court may allow or require OR after the expiration of the period for the filing thereof without such comment or pleading having been submitted, → the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition.

→ shall be sufficient ground for the DISMISSAL thereof. SEC. 8. PERFECTION OF APPEAL; EFFECT THEREOF. — Mathaeus vs Sps. Medequiso Notarization of verification and certification on non-forum shopping on the petition for review by a Clerk of Court is NOT VALID and amounts to NON-COMPLIANCE with the requirements. → Notarizing complaints, answers, petitions, or any other pleadings on a regular basis is a responsibility well relegated to commissioned notary public.

SEC. 5. CONTENTS OF COMMENT.— The comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and shall: a) state whether or not he accepts the statement of matters involved in the petition; b) point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters involved but without repetition; and

 Upon the timely filing of a petition for review and  the payment of the corresponding docket and other lawful fees → the APPEAL is deemed PERFECTED as to the petitioner.

The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. (Effect of perfection)

However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may: (Residual Powers of the RTC)

1) issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, 2) approve compromises,

c) state the reasons why the petition should not be given due course.

3) permit appeals of indigent litigants,

A copy thereof shall be served on the petitioner.

4) order execution pending appeal in accordance with section 2 of Rule 39, and 5) allow withdrawal of the appeal.

 Social Security Commission,

Except in civil cases decided under the Rule on Summary Procedure,

 Civil Aeronautics Board, Bureau of Patents,  Trademarks and Technology Transfer,

→ the appeal shall STAY the judgment or final order

 National Electrification Administration,

→ UNLESS the Court of Appeals, the law, or these Rules shall provide otherwise. (Effect of perfection)

 Energy Regulatory Board,  National Telecommunications Commission,

SEC. 9. SUBMISSION FOR DECISION.—

 Department of Agrarian Reform under Republic Act No, 6657,

If the petition is given due course, the Court of Appeals may:

 Government Service Insurance System,

1) set the case for oral argument or 2) require the parties to submit memoranda within a period of fifteen (15) days from notice. 3) The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself.

 Employees Compensation Commission,  Agricultural Inventions Board,  Insurance Commission,  Philippine Atomic Energy Commission,  Board of Investments,  Construction Industry Arbitration Commission, and  voluntary arbitrators authorized by law.

APPEALS FROM THE QUASI-JUDICIAL AGENCIES TO THE CA (RULE 43)

Wong vs Wong Enumeration under Rule 43 are NOT EXCLUSIVE.

What is a QUASI-JUDICIAL POWER? → The action, discretion, etc. Of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts. Hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature.

SECTION 1. SCOPE.— This Rule shall apply to appeals from judgments or final orders of the: 1) Court of Tax Appeals and 2) from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are:  the Civil Service Commission,  Central Board of Assessment Appeals,

Gupilan-Aguilar vs Ombudsman Nature of the case in Ombudsman determines the proper remedy available to the aggrieved party. In administrative disciplinary cases, an appeal from the OMB’s decision is APPEALABLE to the CA under Rule 43, unless the decision is not appealable owing to the penalty imposed.

Golden Cane vs Steelpro Phils. Decisions of the RTC in CORPORATE REHABILITATION CASE is APPEALABLE to the CA via Rule 43.

SEC. 2. CASES NOT COVERED.— This Rule shall not apply to judgments or final orders issued under the LABOR CODE of Philippines.

 Securities and Exchange Commission,  Office of the President,  Land Registration Authority,

SEC. 3. WHERE TO APPEAL. — An appeal under this Rule taken to the COURT OF APPEALS within the period and in the manner herein provided, whether the appeal involves

questions of fact, of law, or mixed questions of fact and law.

SEC 4. PERIOD OF APPEAL.— The appeal shall be taken within fifteen (15) days:  from notice of the award, judgment final order or resolution, or

→ GRANTED by the Court of Appeals upon a VERIFIED MOTION setting forth valid grounds therefor. → If the Court of Appeals denies the motion, the petitioner shall PAY the docketing and other lawful fees and deposit for costs within fifteen (15) days from notice of the denial.

 from the date of its last publication, if publication is required by law for its effectivity, or

SEC. 6. CONTENTS OF THE PETITION.— The petition for review shall

 of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo.

a) state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents;

ONLY one (1) motion for reconsideration shall be ALLOWED.

Upon proper motion and the payment of the full amount of the docket fee BEFORE the expiration of the reglementary period, → the Court of Appeals may GRANT an additional period of fifteen (15) days only within which to file the petition for review. → No further extension shall be granted EXCEPT for the most compelling reason and in no case to exceed fifteen (15) days.

b) contain a concise statement of the facts and issues involved and the grounds relied upon for the review; c) be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papers; and d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. e) The petition shall state the specific material dates showing that it was filed within the period fixed herein.

SEC. 5. HOW APPEAL TAKEN.— Appeal shall be taken by: 1) filing a verified petition for review in seven (7) legible copies with the Court of Appeals,

SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE

2) with proof of service of a copy thereof on the adverse party and on the court or agency a quo.

UNLESS otherwise directed by the court, the number of court bond papers that a party is required or desired to file shall be as follows:

3) The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner.

b) In the CA and Sandiganbayan, 1 original (properly marked) and 2 copies with their annexes.

Upon the filing of the petition, the petitioner shall: (Duty of the

SEC. 7. EFFECT OF FAILURE TO COMPLY WITH REQUIREMENTS.— The failure of the petitioner to comply with any of the foregoing requirements regarding:

Petitioner)

 pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and  deposit the sum of P500.00 for costs.

 the payment of the docket and other lawful fees,  the deposit for costs,  proof of service of the petition, and

EXEMPTION from payment of docketing and other lawful fees and the deposit for costs may be:

 the contents of and the documents which should accompany the petition → shall be sufficient ground for the DISMISSAL thereof.

 If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of Appeals or  upon the expiration of the period for the filing thereof, and

SEC. 8. ACTION ON THE PETITION.— The Court of Appeals may: 1) require the respondent to FILE A COMMENT on the petition, not a motion to dismiss, within ten (10) days from notice, or 2) DISMISS the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or 3) that the questions raised therein are too unsubstantial to require consideration.

SEC. 9. CONTENTS OF COMMENT.— The comment shall be:

 on the basis of the petition or the records the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, → it may give due course to the petition; → otherwise, it shall dismiss the same.

The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be BINDING on the Court of Appeals.

 filed within ten (10) days from notice  in seven (7) legible copies and  accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers.

The comment shall:

SEC. 12. EFFECT OF APPEAL.— The appeal shall NOT STAY the award, judgment, final order or resolution sought to be reviewed

UNLESS the Court of Appeals shall direct otherwise upon such terms as it may deem just.

a) point out insufficiencies or inaccuracies in -petitioner’s statement of facts and issues; and b) state the reasons why the petition should be denied or dismissed. c) A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court of Appeals.

SEC.5, AM 11-9-4: EFFICIENT USE OF PAPER RULE UNLESS otherwise directed by the court, the number of court bond papers that a party is required or desired to file shall be as follows: b) In the CA and Sandiganbayan, 1 original (properly marked) and 2 copies with their annexes.

SEC. 10. DUE COURSE.—

SEC. 13. SUBMISSION FOR DECISION.— If the petition is given due course, the Court of Appeals may:  set the case for oral argument or  require the parties to submit memoranda within a period of fifteen (15) days from notice.

The case shall be deemed submitted for decision upon the FILING of the LAST PLEADING or MEMORANDUM required by these Rules or by the Court of Appeals.

APPEAL BY CERTIORARI TO THE SC (RULE 45) Constitutional Basis:

SEC 5, ART VIII, par. 2: provides the power of the SC to review cases decided by the lower courts.

by law, may file with the Supreme Court a verified petition for review on certiorari.

QUESTION OF LAW

QUESTION OF FACT

 arises when there is a doubt as to what the law is on a certain state of facts

 when doubt arises as to the truth or falsity of the alleged facts.

The petition shall raise only questions of law which must be distinctly set forth.

 it must not involve an examination of the probative value of the evidence presented by the litigants.

 Once it is clear that the issue invites a review of the evidence presented

Alta Vista vs City of Cebu

 The resolution of the issue must rest solely on what the law provides on the given set of facts and circumstances

RTC judgment on pure questions of law may be DIRECTLY APPEALED to the SC via Petition for Review on Certiorari.

Agustin-Se vs Office of the President What is the test in determining whether the question is one of law or fact?

Test of whether a question is one of law or of fact: whether the appellate court can determine the issue without examining or evaluating the evidence, →

in which case, it is a question of law; otherwise, it is a question of fact. “(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: a) All cases in whichthe constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

Heirs of Cadlina vs Cadiz The right recourse against the dismissal of petitioners’ appeal with the CA is an appeal by certiorari under Rule 45, not certiorari under Rule 65.

Special People Inc vs Canda It is a settled rule that in the exercise of our power of review, the SC is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case. The Court relies on the findings of fact of the CA or of the TRIAL COURT, and accepts such findings as conclusive and binding unless any of the following EXCEPTIONS obtains, namely:

c) All cases in which the jurisdiction of any lower court is in issue.

a) when the findings are grounded entirely on speculation, surmises or conjectures;

d) All criminal cases in which the penalty imposed is reclusion perpetua or higher

b) when the inference made is manifestly mistaken, absurd or impossible;

e) All cases in which only an error or question of law is involved.”

c) when there is grave abuse of discretion; d) when the judgment is based on a misapprehension of facts; e) when the findings of facts are conflicting;

SECTION 1. FILING OF PETITION WITH SUPREME COURT. — A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized

f) when in making its findings the Court of Appeals or the trial court went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; g) when the findings are contrary to the trial court;

h) when the findings are conclusions without citation of specific evidence on which they are based;

impleading the lower courts or judges thereof either as petitioners or respondents;

i) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent;

b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received;

j) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and k) when the Court of Appeals or the trial court manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.

c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition;

SEC. 2. TIME FOR FILING; EXTENSION. — The petition shall be filed within fifteen (15) days:

d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and

 from notice of the judgment or final order or resolution appealed from, or  of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment.

e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42.

SEC.5 (a) AM 11-9-4: EFFICIENT USE OF PAPER RULE On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs BEFORE the EXPIRATION of the REGLEMENTARY PERIOD, → the Supreme Court may for justifiable reasons GRANT an extension of thirty (30) days only within which to file the petition.

SEC. 3. DOCKET AND OTHER LAWFUL FEES; PROOF OF SERVICE OF PETITION. — Unless he has theretofore done so, the petitioner shall: 1) pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and 2) deposit the amount of P500.00 for costs at the time of the filing of the petition. 3) Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition.

UNLESS otherwise directed by the court, the number of court bond papers that a party is required or desired to file shall be as follows: a. In the SC, 1 original (properly marked) and 4 copies, UNLESS the case is referred to the Court En Banc, in which event, the parties shall file 10 additional copies.

For the En Banc, the parties need to submit only 2 sets of annexes, 1 attached to the original and an extra copy.

For the Division, the parties need to submit also 2 sets of annexes, 1 attached to the original and an extra copy.

All members of the Court shall share the extra copies of annexes in the interest of economy of papers. SEC. 4. CONTENTS OF PETITION.— The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall: a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without

SEC. 5. DISMISSAL OR DENIAL OF PETITION.— The failure of the petitioner to comply with any of the foregoing requirements regarding:

 the payment of the docket and other lawful fees,  deposit for costs, proof of service of the petition, and  the contents of and the documents which should accompany the petition → shall be sufficient ground for the DISMISSAL thereof.

The Supreme Court may on its OWN INITIATIVE:  DENY the petition on the ground that the

 impose the corresponding SANCTIONS in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefore.

SEC. 8. DUE COURSE; ELEVATION OF RECORDS. — If the petition is given due course, the Supreme Court may require the ELEVATION of the complete record of the case or specified parts thereof within fifteen (15) days from notice.

→ appeal is without merit, or → is prosecuted manifestly for delay, or → that the questions raised therein are too unsubstantial to require consideration.

SEC. 6. REVIEW DISCRETIONARY.— A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor.

SEC. 9. RULE APPLICABLE TO BOTH CIVIL AND CRIMINAL CASES.— The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.

RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS (RULE 38)

The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

SEC. 7. PLEADINGS AND DOCUMENTS THAT MAY BE REQUIRED; SANCTIONS.— For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or where the petition is given due course under section 8 hereof, the Supreme Court may:  require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and

What is PETITION FOR RELIEF? → A legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of hearing or was prevented from taking an appeal because of

Samonte vs S.F. Naguiat NATURE → The relief provided for is of equitable character, alllowed only in exceptional cases as where there is no other available or adequate remedy to him. → When a party has another remedy available to him, which may either be a motion for new trial or appeal from an adverse decision of the lower court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking the appeal, he cannot avail himself of the relief provided in Rule 38.

GROUND SECTION 1. PETITION FOR RELIEF from, JUDGMENT, ORDER, OR OTHER PROCEEDINGS — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside.

City of Dagupan vs Maramba

fraud can be committed by a counsel against his client when the latter is prevented from presenting his case to the court.

MISTAKE as used in Rule 38 means mistake of fact and not mistake of law. A wrong choice in legal strategy or mode of procedure will not be considered a mistake for purposes of granting a petition for relief from judgment. Mistake as a ground also "does not apply and was never intended to apply to a judicial error which the court might have committed in the trial since such error may be corrected by means of an appeal."

Courts may set aside final and executory judgments provided that any of the grounds for their grant are present.

The presence of "fraud, accident, mistake or excusable negligence" must be assessed from the circumstances of the case.

EXCUSABLE NEGLIGENCE as a ground for a petition for relief requires that the negligence be so GROSS "that ordinary diligence and prudence could not have guarded against it." This excusable negligence must also be imputable to the party-litigant and not to his or her counsel whose negligence binds his or her client. Nevertheless, this court has relaxed this rule on several occasions such as: " 1) where the reckless or gross negligence of counsel deprives the client of due process of law; 2) when the rule's application will result in outright deprivation of the client's liberty or property; or 3) where the interests of justice so require." Certainly, excusable negligence must be proven.

FRAUD as a ground for a petition for relief from judgment pertains to extrinsic or collateral fraud.

The extrinsic or collateral fraud that invalidates a final judgment must be such that it prevented the unsuccessful party from fully and fairly presenting his case or defense and the losing party from having an adversarial trial of the issue. There is extrinsic fraud when a party is prevented from fully presenting his case to the court as when the lawyer connives to defeat or corruptly sells out his client's interest. Extrinsic

Mistake can be of such nature as to cause substantial injustice to one of the parties. It may be so palpable that it borders on extrinsic fraud.

SEC. 2. PETITION FOR RELIEF from DENIAL OF APPEAL. — When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course.

SEC. 3. TIME FOR FILING PETITION; CONTENTS AND VERIFICATION.— A petition provided for in either of the preceding sections of this Rule must be: 1. verified, 2. filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and 3. must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and 4. the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be.

SEC. 4. ORDER TO FILE AN ANSWER.— If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall:

1) issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof. 2) The order shall be served in such manner as court may direct, together with copies of the petition and the accompanying affidavits.

SEC. 6. PROCEEDINGS AFTER ANSWER IS FILED. — After the filing of the answer or the expiration of the period therefor, the court shall: 1. hear the petition and 2. if after such hearing, it finds that the allegations thereof are NOT TRUE, the petition shall be DISMISSED; but 3. if it finds said allegations to be TRUE, it shall SET ASIDE the judgment or final order or other proceeding complained of upon such terms as may be just. (Effect if Petition is Granted)

 Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken.  The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it.

SEC. 7. PROCEDURE where the DENIAL OF AN APPEAL IS SET ASIDE.— Where the denial of an appeal is set aside, the lower court shall be required TO GIVE DUE COURSE TO THE APPEAL and to elevate the record of the appealed case as if a timely and proper appeal had been made.