Remedial Law: Civil Procedure by Dean Williard Riano

JUDGMENTS
1. When a judgment becomes final and executory, it

becomes immutable and unalterable. The court loses jurisdiction over the judgment to amend (except for clerical errors) or alter the same BUT it retains jurisdiction to EXE TE it during its lifetime (Equatorial Realty Development, Inc. vs. ayfair !heater, ""# $%Ra &"' (#)))*+ ,-. vs. -eirs of Isidro /uivelondo, 0)0 $%R. "1').
2. When the trial court orders payment of attorney

fraud, duress or mistake. ($alvador vs. 2rtoll, 2ctober &1, #)))). %hile a judicial compromise has the effect of res judicata, it cannot be executed, except in compliance 7ith a judicial compromise ("rt. &'(), ivil ode of the *hilippines).
4. The law of the case doctrine means that !hatever

fees ,2! decreed in the judgment such variance !ith the terms of the judgment, renders the order void. (3i4ardo, $r. vs. ontana, ""# $%R. &5")
3. " judgment upon a compromise has all the force

has been irrevocabl# established as the controlling rule of decision bet!een the same parties n the same case continues to be the la! of the case, !hether correct or not, so long as the facts of !hich such decision !as predicated continues to be the facts of the case before the court (Ducat vs. %ourt of .ppeals, "## $%Ra 5').
5. The entry of judgment refers to the ph#sical act

and effect of an# other judgment, hence, conclusive upon the parties and their privies. (/olden Donuts vs. ,3R%, "## $%R. #'0). " judicial compromise, once stamped !ith judicial approval becomes more than a mere contract binding upon them and having the sanction of the court and entered as its determination of the controvers#. $t has the force and effect of an# judgment (6ulienco vs. %., "15 $%R. ")). $t has the effects of res judicata, is immediatel# executor#, and not appealable. The remedy is to file a motion to set aside the compromise on any ground vitiating the consent like
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performed b# cler+ of court in entering the dispositive portion of the judgment in the boo+ of entries of judgment after the same has become final executor#. Under the ,--) .ules of ivil *rocedure ($ec. #, Rule "5), the date of the entry of judgment is the date when the judgment becomes final and executory regardless of the date when the physical act of entry was done.

Remedial Law: Civil Procedure by Dean Williard Riano

REMEDIES G INST

JUDGMENT

!"E#$RE a Judgment "ecomes #inal and E%ecutory&

Motion for Reconsideration

This is filed 7ithin the period of appeal based on an# of the follo!ing grounds/ a) 0amages are excessive1 b) Evidence is insufficient1 or that c# The decision or order is contrar# to la! ($ec. &, Rule "8, Rules of %ourt). The motion shall be in 7riting and notice thereof must be given to the adverse party. $t must also contain a notice of hearing. $n other !ords, it must compl# !ith the rules on motion. $f does not, it !ill be considered onl# a pro9forma motion and !ill not have the effect of suspending or interrupting the period to appeal. The suspension of the period for appeal presupposes that the motion is not pro2forma. The motion shall point out specificall# the findings or conclusions of the judgment not supported b# the evidence or !hich are contrar# to la!. 3ere general assertions that a ground for reconsideration exists !ill not suffice, other!ise the motion shall be deemed a mere pro forma motion. If the motion is granted, the court ma# amend the judgment or final order accordingl#. If the motion is denied, do not appeal from the order den#ing the motion. "n order den#ing a motion for reconsideration is not appealable ($ec. ', Rule "8). The REMED) is to appeal from the judgment or final order pursuant to the provision of $ec. ' of Rule "8.

!Rule '(&

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Remedial Law: Civil Procedure by Dean Williard Riano . second motion for reconsideration is not allo7ed under 4ec. 5 of .ule (). This prohibition applies to a motion for reconsideration of a judgment or final order and does not refer to a motion for reconsideration of an interlocutor# order !here the court ma# allo! even more than one motion for reconsideration. " motion for reconsideration under .ule () cannot be used as a vehicle to introduce ne! evidence. $f #ou !ant to introduce ne! evidence, the remedy is to file a motion for new trial. (%ansino vs. %., 0)', $%R. 0)").

Motion for Ne* Trial

This is filed !ithin the period to appeal based on/ 2 2 2 2 #raud ccident Mista+e or E%cusa,le negligence !# MEN&-

!Rule '(&

6ere the movant alleges that he 7as prevented from fully participating in the proceedings or he 7as prevented from ta:ing an appeal because of any of the grounds mentioned. $f he alleges fraud, he must onl# allege e%trinsic fraud, not intrinsic fraud. This fraud must be one employed to prevent the movant from ventilating his side in the proceedings. The use of forged document b# a part# is not the fraud contemplated as extrinsic and cannot therefore, be a ground for a motion for ne! trial. "nother ground is ne* disco.ered e.idence *hich could not ha.e ,een disco.ered and produced at the trial. %hen the ground is 7"3E8, the motion must be supported by an affidavit of merit. %hen the ground relied upon is ne!l# discovered evidence, no affidavit of merit is required. $nstead, it shall be supported b# affidavits of !itnesses or b# dul# authenticated documents.
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Remedial Law: Civil Procedure by Dean Williard Riano $f the motion for ne! trial is granted, the original judgment shall be vacated and the action shall stand for trial de novo. The recorded evidence in the former trials shall be used at the ne! trial !ithout need for reta+ing the same as long as that evidence is material and competent to establish the issues. $f the motion is denied, do not appeal the order den#ing the motion for ne! trial. This is because the order is not appealable ($ec. ' Rule "8). The REMED) is to appeal from the judgment or final order. (4ec -, .ule ()) The 9fresh period rule: ; $f the motion for reconsideration or motion for ne! trial is denied, the mo.ant has a ne* period of /0 days to file an appeal if he so desires1 counted from receipt of the notice or order denying the motion. 6ence, if he files a motion for reconsideration on the ,'th da# from notice of the judgment and the motion is denied, he does not ha.e only the remainder of the /0 day period to appeal1 ,ut a fresh period of /0 days to file his appeal-

ppeal from Judgment of MT2

"n appeal from a judgment or final order of an 3T exercising jurisdiction over the area.

shall be ta+en to the .T

!Rule 34&

The appeals is ta+en b# filing a notice of appeal !ith the court that rendered the judgment, !hich is the 3T . 0o not file the notice of appeal !ith the .T . In cases involving a special proceeding or in case of multiple appeals, a record on appeal shall be re<uired. opies of the notice of appeal and the record on appeal shall be served on the adverse part#. %ithin the period for appeal, the appellant shall pa# to the cler+ of the 3T the full amount of the appellate doc+et fee and other la!ful fees. ;eriods for appeal/ /0 days in case of b# notice of appeal+ '4 days in case record on appeal is required.

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Remedial Law: Civil Procedure by Dean Williard Riano *eriod is counted from the notice of judgment. " part#=s notice of appeal is deemed perfected upon the filing of notice of appeal in due time. $n appeals b# notice of appeal, the appeal is deemed perfected upon the approval of the record on appeal filed in due time. $n appeals b# notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeal in due time and the expiration of the time to appeal of the other parties. $n appeals b# record on appeal, the court loses jurisdiction onl# over the subject matter thereof upon the approval of the record on appeal filed in due time and the expiration of the time to appeal of the other parties. If the trial loses jurisdiction over the case in accordance with the preceding paragraphs, does this mean that the trial court can no longer issue orders related the case? The court can as long as the orders are done *.$>. to the transmittal of the original records or record on appeal. Thus, under the doctrine of residual jurisdiction, the trial court ma# order/ ,. an execution of the judgment pending appeal, &. approve compromises, (. permit appeals of indigent litigants, or 4. allo! a !ithdra!al of an appeal ($ec. ', Rule 0& as applied to Rule 0) per $ec. 0, Rule 0)). If the !% dismisses a case pursuant to a motion to dismiss for lac: of jurisdiction, the dismissal is made !ithout a trial on the merits. The plaintiff ma# appeal from the order of dismissal because an order dismissing the action is final in character. $f on appeal, the R!% finds that the !% correctly dismissed the complaint because it is the R!%
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Remedial Law: Civil Procedure by Dean Williard Riano 7hich has jurisdiction, the .T shall affirm the dismissal but is mandated to T.? the case on the merits "4 $7 it !as originall# filed !ith it (4ec. @, .ule A'). The same rule as above applies !here the case !as tried on the merits in the lo!er court !ithout jurisdiction over the subject matter. This means that the court shall also assume jurisdiction over the case as if it !as originall# filed !ith it. !he R!% may ho7ever, allo7 amendment of the pleading and admit additional evidence despite the previous trial in the court belo7. The .T !ill re<uire the appellant to file a memorandum. 7ailure to file a memorandum is a ground for dismissal of the appeal (4ec. ), .ule A').

ppeal from the RT2 to the 2

"n appeal from the .T ma# be b#/ a.) ordinar# appeal under .ule A,1 b.) petition for revie! under .ule A&1 or c.) appeal b# certiorariBpetition for revie! on certiorari under .ule A5 The appeal called ordinary appeal is one made from a judgment of the R!% in the exercise of its original jurisdiction. This t#pe of appeal is made b# filing a notice of appeal 7ith the R!% 7ithin fifteen <&=> days from notice of the judgment . $f record on appeal is re<uired, the appeal period is (' da#s.

!Rule 3/&

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Remedial Law: Civil Procedure by Dean Williard Riano

5etition for Re.ie* from RT2 to the 2

This mode of appeal applies !hen the decision of the R!% appealed from is one decided by it in the exercise of its appellate jurisdiction. This means that the case originated from the 3T and appealed to the .T (;osadas9 oya vs. /reenfield Development %orp., 0)" $%R. =")). $n filing a petition for revie!, a notice of appeal is not required. The appeal is done b# filing a verified petition for review directly with the Court of appeals.

!Rule 36&

5etition ,y 2ertiotari7 5etition for Re.ie* on 2ertiorari from the RT2 to the Supreme 2ourt

%hen the appeal raises pure 8uestions of la*, the appeal should be addressed to the $upreme %ourt. " <uestion of la! arises !hen the doubt or difference arises as to !hat the la! is on a certain set of facts. " case, !hich does not raise purel# <uestions of la!, does not merit attention of the 4upreme ourt (%ebu Women?s %lub vs. De le @ictoria, "#8 $%R. =""). Cuestions of fact are not proper subjects of this +ind of appeal (3arena vs. ,o. &05"0&, .ugust 8, #))"). 8ote/ $n a .ule A5 appeal from a decision in a petition for !rit of amparo or habeas data, <uestions of fact ma# be raised. A uestions of law exists !hen there is no doubt or controvers# on !hat the la! is on a certain state of facts. There is uestion of fact !hen the doubt or difference arises from the truth or the falsit# of the allegations of facts (Republic vs. $andiganbayan, /R. ,o. &)#=)1, Aanuary "), #))#). apili, /R.

!Rule 30&

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Remedial Law: Civil Procedure by Dean Williard Riano $n this mode of appeal, the petitioner does not have to pass the %ourt of .ppeals. The Supreme 2ourt re.ie*s only errors of la*, not errors of fact. This is the general rule, unless the ourt finds conflicts in the findings of facts of the ourt of "ppeals and the trial court. $n this case the 4upreme ourt ma# revie! the findings of facts of the courts belo!. 8ote that the right to appeal is not a natural right or a part of due process. $t is merel# a procedural remed# of statutor# origin. There is not right to appeal unless there is a la* *hich authori9es it (,eplum vs. 2rbeso, "10 $%R. 051). "ppellate courts ma# not generall# entertain <uestions of la! or fact not raised in the lo!er courts for that !ould constitute a change of theor# not permissible on appeal (%apacite vs. Baroro, /R ,o. &=0&10, Auly 1, #))").

ppeals from 8uasi: judicial ,odies

"ppeals from judgments and final orders of <uasi2judicial bodiesBagencies are no! re<uired to be brought to the ourt of "ppeals under the re<uirements and conditions set forth in Rule 3'. This rule !as adopted precisel# to provide a uniform rule of appellate procedure from <uasi2judicial bodies (%arpol vs $ulu Resource Development %orp., /R ,o. &01#58, .ugust 1, #))#).

ppeals from the N;R2

Dudgments of the 8E. are to be brought first to the 2 b# !a# of petition for certiorari under !ule "# not under .ule A( of the .ules of ourt ($t. artin Cuneral -omes vs. ,3R%, #'= $%R. 0'0)

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Remedial Law: Civil Procedure by Dean Williard Riano

Decisions and final orders of the Sandigan,ayan

0ecisions and final orders of the 4andiganba#an shall be appealable to the $upreme %ourt by 7ay of petition for review on certiorari under !ule $# raising pure uestions of law. ertiorari under .ule F5 is not the remed# (;eople vs. Espinosa, /R. ,os &="8&0, .ugust &=, #))")

!Remedies #TER the Judgment "ecomes #inal and E%ecutory&

5etition for Relief

!Rule '<&

This remed# is availed onl# 7hen the petition can no longer appeal because the period for appeal has already elapsed. This is a .erified petition filed *ithin si%ty !=4& days after the petitioner learns of the judgment ND not more than si% !=&months after such judgment or final order *as entered. These period must concur. The petitioner should invo:e any of C. E,. >f course, an affidavit of merit is indispensable here. $t serves as the jurisdictional basis for the court to entertain the petition. This is filed in the same court and in the same case not in a higher court because this is not a mode of appeal. .emember that the petition for relief is filed after the period for appeal has lapsed, hence, the judgment is at that point, alread# final and executor. The mere filing of a petition for relief does not stay the e%ecution of the judgment- $t does not sta# the execution of the judgment. This is because the judgment is alread# final and executor# and can be subject to execution b# mere motion. To Stay E%ecution, A %!IT &' (!)*I+I,A!- I,./,CTI&, 01&/*2 3) A4AI*)2 &' &! A T)+(&!A!- !)0T!AI,I,5 &!2)! under .ule 5@ (4ec 5, .ule (@)

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Remedial Law: Civil Procedure by Dean Williard Riano " petition for relief !ill not be entertained !here the failure of the petitioner to appeal is due to his fault or negligence.

nnulment of Judgment

!Rule 3(&

This remed# is a.aila,le only *here the ordinary remedies of new trial, appeal, petition for relief or appropriate remedies are no longer a.aila,le through no fault of the petitioner ($ec. &, Rule 08). 6ence, if such remedies !ere not availed of due to the petitioner=s fault, the petition !ill be dismissed. Grounds>
a.# E%trinsic fraud1 and

b.) ;ac+ of jurisdiction.

$f based on extrinsic fraud, the action must be filed !ithin four (A) #ears from its discover#. $f based on lac: of jurisdiction, it must be brought before the action is barred by laches or estoppels. ($ec. #, $ec, 0. Rule 08, Rules of %ourt).

2ertiorari !Rule

=0&

alled " 9$upervisory 2r $uperintending Writ:, This .emed# $s .ailed $f To nnul $r Modify The 5roceedings $f Tri,unal1 "oard $r $fficer E%ercising Judicial $r E%tra:Judicial #unctions ?hich @as cted ?ithout $r n E%cess $f Jurisdiction1 $r ?ith Gra.e ,use $f Discretion mounting To ;ac+ $f Jurisdiction. 7or This *etition To *rosper, It Is ,ecessary !o .llege .nd $ho7 !hat !here Is ,o ore .ppeal, 2r .ny 2ther ;lain, $peedy, .nd .dequate Remedy In !he 2rdinary %ourse 2f 3a7. "s " .ule, %here "ppeal $s "vailable, ertiorari annot Be "vailed >f Unless, $t an Be 4ho!n That "ppeal $s 8ot 4peed#, >r "de<uate. 6ence, The Basic Cuestion

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Remedial Law: Civil Procedure by Dean Williard Riano To Be onsidered $s/ 2oes The (etitioner 1ave The !emedy To Appeal &r Any &ther !emedy Available? If The Answer Is -)0, Certiorari Is ,ot Available1 "s " .ule. 6o!ever, Even $f "ppeal $s "vailable, $f $t $s 8ot "de<uate, 4peed# >r E<uall# Beneficial "s ertiorari, 5etition #or 2ertiorari May,e .ailed $f (3andban: @s. %., 0)' $%R. 0==). $n >ther %ords, " 5etitioner Must #irst )xhaust All &ther !emedies Available 3efore !esorting To Certiorari. 7or example, if he can file a motion for reconsideration, then he must do so instead of certiorari. (;ilipino !el. %orp., vs ,!%, /R ,o. &"1#'=, .ugust #1, #))"). ertiorari is not a substitute for a lost appeal. The remedies of appeal and certiorari are mutually e%clusi.e and not alternati.e or successi.e (%onejos vs. %., "15 $%R. &0#). The tas+ of a court in a certiorari proceeding is to determine 7hether the lo7er court committed grave abuse of discretion ( arcopper ining vs. $olidban: %orporation, 0"0 $%R. &"0). $t is a remed# narro! in scope. $t is not a general utilit# tool in the legal !or+shop. $ts function is to raise onl# <uestions of jurisdiction and not other. $t cannot be used for an# other purpose (3anban: of the ;hilippines. @s %., 0)' $%R. 0==). 0o not file certiorari if #our purpose is to raise a factual issue or to as: a re9 evaluation of the facts and the evidence (;I3!E3 vs ,!%, 0&) $%R. 1#) because this is not a mode of appeal *here you raise errors of judgment of a court. The petition shall be filed not later than F' da#s from notice of the judgment, order or resolution. In case of a motion for reconsideration 7as filed, the =4:day period starts from notice of the denial of the motion for reconsideration and not from the notice of judgment (Docena vs. 3apesura, "== $%R. 5=1). ertiorari cannot be availed of !here the facts complained of merel# constitute errors of judgment. Even if the order of judgment is erroneous as long as the court acted !ithin the bounds of its authorit#, certiorari is not the remed# ( icrosoft %orp. vs.
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Remedial Law: Civil Procedure by Dean Williard Riano Best Deal %omputer %enter %orp., "1' $%R. 5&=) Errors of judgments are correcti,le ,y appeal. In filing for a petition for certiorari1 the hierarchy of courts must ,e o,ser.ed. 6ence, even though the 4upreme ourt has concurrent jurisdiction !ith the " and the .T to issue a !rit of mandamus, prohibition or certiorari, litigants are advised against ta+ing direct recourse to the 4 !ithout initiall# see+ing proper relief from the lo!er courts. (%arpio vs. sulu Resources Dev. %orp., "15, $%R. &#1). The filing of a petition for certiorari, does not interrupt the proceedings in the lo!er courts if no preliminary injunction or a temporary restraining order is obtained enjoining the said court from further proceeding !ith the case. In the a,sence of an injunction or a TR$1 the pu,lic respondent !court or tri,unal& shall proceed *ith the principal case *ithin ten !/4& days from the filing of the petition#ailure to proceed may ,e a ground for an administrati.e charge. ($ec. 8, Rule 5= as amended by . ,o )8989&#9$%). 0o not confuse certiorari under !ule $# from certiorari under !ule "#. follo!ing are some of the distinctions.
.UEE A5 raises pure <uestions of la! is a mode of appeal is directed against a final judgment or orders is filed !ithin fifteen (,5) da#s from notice of judgment re<uires no prior motion for reconsideration .UEE F5 raises <uestions of jurisdiction a special civil action ma# be directed against interlocutor# orders is filed !ithin sixt# (F') da#s does re<uite it as a rule

The

" motion for reconsideration is re<uired before filing a petition for certiorari under .ule F5. This is a !ell2settled rule. %ithout a motion for reconsideration, the
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Remedial Law: Civil Procedure by Dean Williard Riano petition ma# be outrightl# denied. There are exceptions to this rule. Under the exceptions, a motion for reconsideration !ill not be re<uired. Examples/ a.) !hen the order is a patent nullit#1 b.) !here the issue raised has been passed upon the court belo!1 c.) in case of urgenc# because an# dela# !ould prejudice the rights of the petitioner1 d.) !here the subject matter is perishable.

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Remedial Law: Civil Procedure by Dean Williard Riano

EAE2UTI$N $# JUDGMENTS
E%ecution shall issue as a matter of right *hen the judgment ,ecomes final and e%ecutory. motion for e%ecution has to ,e filed ,y the pre.ailing party. ($ec. & Rule "', rules of %ourt). %hen a judgment becomes final and executor#, it is the ministerial duty of the court to issue a !rit of execution (!orres vs. ,3R%, "") $%R. "&& (#))))*).
1.

issue an order of restitution or reparation as e<uit# and justice ma# !arrant ($ec. 0, Rule "'). -o7 does a final and executory judgment executedG $f !ithin five (5) #ears from the date of entr#, the judgment ma# be executed b# mere motion.
3.

ay a judgment be executed pending appealG $t ma# be executed despite the pendenc# of the appeal as long as there are good reasons to be stated in the special order and after due hearing. This execution pending appeal is called discretionary execution. ($ec. #, Rule "'+ Cuture /uarantee and Insurance %orporation vs. %ourt of .ppeals, /R ,o. &&&)8)&, arch &#, #))#>.
2.

"fter five (5) #ears, the judgment ma# be enforced onl# b# filing an action to revive the judgment ($ec. 5, Rule "'>. 8ormall#, an appeal sta#s a judgment. Under the .ules, the follo7ing judgments shall be immediately executory and shall be enforceable after their rendition and shall not be stayed by an appeal ta:en therefrom/
4.

-o7 can a discretionary execution be stayedG The part# against !hom the discretionar# execution is directed should file a supersedeas ,ond conditioned upon the performance of the judgment allo!ed to be executed in case it is finall# sustained. ($ec. ", Rule "'). .ssume that the judgment executed pending appeal is reverse totally or partially on appeal, 7hat shall the trial court doG The trial court, upon motion, shall

2 2
2 5.

Dudgments in injunction .eceivership "ccounting and support ($ec. ", Rule "')

"n erroneous judgment is a valid judgment if the errors are not brought to the attention of a higher court through appeal. Errors of judgment are correcti,le ,y appeal. !here is an error of judgment !here the error is in the appreciation of the facts and the evidence. ?here the error is one of jurisdiction1 appeal is not the remedy, but certiorari.
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Remedial Law: Civil Procedure by Dean Williard Riano n order of e%ecution is not appeala,le ($ec. &<e>, rule 0&). " part# !ho desires to assail an order of execution ma# instead file the appropriate special civil action under .ule F5 li+e certiorari ($ec. &, last par., Rule 0&).
".

vacatA the propert# !ithin three (() !or+ing da#s ($ec. &) 'c>, Rule "'>. The officer cannot re<uire the occupant to vacate on the same da# the !rit is executed even if a judgment in ejectment is immediatel# executor#. Immediacy of e%ecution doe not mean instant e%ecution. If the occupant does not vacate despite the three9day notice, it is not correct to file contempt proceedings against the occupant. ontempt is not a means of enforcing a judgment as a rule. The !rit is not directed to the occupant but to the sheriff. 3y not vacating, the occupant did not violate the writ6 %hat he violated was the notice to the 0heriff6 The remedy of the sheriff is to oust the occupant with the aid, if necessary, of law enforcement officers6 (Barete vs. .mila, #") $%R. #&'+ ;ascua vs. -eirs of $egundon $imeon, &5& $%R. &). If ho7ever, after being ejected from the property, the occupant later attempts to enter, actuallyenters or induces another to enter the property from 7hich he 7as ejected he may ,e lia,le for indirect contempt ($ec. "<b> Rule 8&, Rules of %ourt). 8ote that, !hen the judgment directs the judgment obligor to perform an act other than the pa#ment of mone# or the deliver# of personal or real propert#, this judgment is categoriHed as a special judgments and if not complied 7ith ma# be a basis
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$n executing a judgment for money, the sheriff shall demand from the judgment obligor the full amount in cash or certified chec+ pa#able to the judgment debtor.
$.

$f the judgment debtor has no cash or chec+, the officer shall lev# upon his properties but the judgment debtor has the option to choose !hich propert# shall be levied upon. $f the option is not exercised, the officer shall first lev# on the personal properties and then other properties if the personal properties are not sufficient ($ec. '<b>, Rule "'). The officer ma# also lev# upon the ban: deposits of the debtor, royalties, commissions, or his credits and others not capable of manual delivery b# serving notice upon the person in possession of the same. This is called garnishment ($ec. 'D, Rule "'). If the judgment is one for the delivery of real property li:e in unla7ful detainer or forcible entry, the officer shall demand upon the occupant to
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Remedial Law: Civil Procedure by Dean Williard Riano for contempt ($ec &&, Rule "'). Thus, if an officer disobe#s a !rit of mandamus, he ma# be punished for contempt. ?ou are advised to loo+ into those properties exempt from execution under 4ec. ,( of .ule (-. 8ote ho!ever, that although the properties enumerated there are exempt from execution, they are not e%empt if they are su,ject to e%ecution ,ecause of non:payment of their price if ac8uired through a sale or if they are su,ject to forclosure of a mortgage on the property.
1&.

!he remedy of debtor then is to file an action against the sheriff such as an action for damages !ith preliminar# injunction or a T.> or an action for injunction as a main action to protect his rights to the propert#. This action !ill not be deemed to be an interference !ith the court that issued the !rit of execution because the suit is against the sheriff performing an illegal act and not directed against the po!er of the court. The rule allo!s the third part# claimant to vindicate his claim to the propert# levied upon even in a separate action ($ec. &5, Rule "', Rules of %ourt). When the real is property is sold on execution, the judgment obligor has one (,) #ear from the date of the registration of the sale to redeem the propert# from the purchaser ($ec. #1, Rule "'). This purchaser is not entitled to the rents, fruits or income of the propert# pending the redemption and shall belong to the judgment debtor until the expiration of his period of redemption ($ec. "#, Rule "').
12.

If the property levied upon the sheriff is o7ned or claimed by a third person, the claimant ma# ma+e an affidavit of his title to the propert# levied upon stating therein the grounds for his claim or assertion of right.
11.

The affidavit shall be served upon the officer ma+ing the lev# !ith cop# of the same given to the judgment. This process is called terceria. Epon receipt of the affidavit, the officer shall discontinue !ith the lev#. 6o!ever, the officer ma# proceed if the judgment oblige protects the officer b# posting a bond in a sum not less than the value of the propert#. $f this bond is approved b# the court, the officer can continue !ith the lev#.

When the return of the 7rit of execution sho7s that the judgment remains unsatisfied, the judgment creditor ma# as+ from the court an order re<uiring the judgment debtor to appear so he ma# be examined as to his properties ($ec. "5, Rule "'). The court ma# also re<uire the appearance of person or corporation !ho holds propert# for the judgment debtor or is a debtor of the latter ($ec. "8, Rule "').
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Remedial Law: Civil Procedure by Dean Williard Riano There is ho!ever, a limitation to this remed#. The judgment o,ligor cannot ,e re8uired to appear ,efore a court *hich is outside the pro.ince or city *here the de,tor resides. Thus, a CueHon it# court cannot re<uire the appearance of a debtor residing in Bulacan ($ec. "5, Rule "'). "lso the debtors of the judgment debtor or a corporation or person !ho holds propert# of the debtor cannot be re<uired to appear outside the cit# or province of hisBits residence ($ec. "8, Rule "'). !he purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof 7hen such property is in the possession of a tenant. "ll rents, earnings and income derived from the propert# pending redemption shall belong to the judgment obligor until the expiration of his period of redemption ($ec. "#, Rule "').
14.

In case of a judgment or final order against a specific thing or in respect to the person, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the !ill or administration, or the condition, status or relationship of the person1 ho!ever, the probate of a !ill or granting of letters of administration shall onl# be prima facie evidence of the death of the testator or intestate.
'a#

$n other cases, the judgment or final order is, 7ith respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive bet!een the parties and their successors in interest b# title subse<uent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacit#1 and
'b#

When a judgment is rendered against a party 7ho stands as a surety for another, the latter is also bound from the time he has notice of the action or proceeding, and an opportunit# at the suret#=s re<uest to join in the defense ($ec. 05, Rule "').
15.

&5. !he effect of a judgment or final rendered by a court of the ;hilippines, having jurisdiction to pronounce the judgment or final order, may be as follo7sF
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In any other litigation bet7een the same parties or their successors in interest, that onl# is deemed to have been adjudged in a former judgment or final order !hich appears upon its face to have been so adjudged, or !hich !as actuall# and necessaril# included therein or necessar# thereto ($ec. 08, Rule "').
'c#

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Remedial Law: Civil Procedure by Dean Williard Riano !he effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render judgment or final order is as follo7sF
1$.

in case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing1 and
'a#

in case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as bet!een the parties and their successors in interest b# a subse<uent title.
'b#

$n either case, the judgment or final order ma# be repelled b# evidence of a !ant of jurisdiction, !ant of notice to the part#, collusion, fraud, or clear mista+e of la! or fact ($ec. 01, Rule "').

BE

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