Rule 37: New Trial or Reconsideration This presupposes that a judgment has already been rendered either for

the plaintiff against the defendant or for the defendant against the plaintiff. Any of them can file a motion for reconsideration. Q. Within what period the motion for new trial or a motion for reconsideration may be filed? A. At any time before the judgment has become final. After the judgment has become final, the remedy is no longer a motion for new trial, it may be another remedy already such as petition for relief under Rule 38 but certainly, not a motion for new trial. There are only two grounds for motion for new trial: 1) Fraud, Accident, Mistake or Excusable negligence (FAME), which resulted in the judgment against the movant; 2) Newly discovered evidence (NDE). Evidence which the movant could not have presented during the trial and which if presented will probably alter the result of the cast. Example: A vs. B The judgment was rendered against B. Q. What was the reason why a judgment was rendered against B? A. Because of FAME. So this FAME resulted in a judgment, which is prejudicial to his interest. He now wants that this judgment against him (B) is set aside and that a new trial be held. Because after a judgment, he discovered evidence which could either be testimonial or documentary and which evidence he could not have presented during the trial because even if he exerted efforts to procure it, he could not procure it. This evidence if presented will probably alter the result of the case. So there are the only two (2) grounds. Procedure now Q. What are the requirements so that B must comply with? A. Of course, he must have to file a motion for reconsideration stating therein the ground(s). Accompanying the motion must be his affidavit of merit. Q. On what facts may this affidavit of merit may be filed? A. Let us say, with respect to the ground, for instance, the ground is FAME, then, the affidavit of merit consists of facts constituting all the fame. If the ground is newly discovered evidence, the motion must be accompanied by the statement of the person with whose testimony the newly discovered evidence is based. Lets say, the newly discovered evidence is the document or a copy of the document must be attached to it. All the grounds for the motion for new trial must be alleged in the motion. Why? Any ground already available at the time the motion is filed but not alleged therein is deemed waived. Q. What now will happen with this motion filed by B? A. This is a litigated motion and therefore should be set for hearing strictly in accordance with Rule 18. (With respect to the affidavit of merit, in case it is the defendant who filed a motion for new trial, he should accompany his motion with a statement of a fact constituting his defense. If it is the plaintiff for instance, who filed, the affidavit of merit shall state the fact constituting his cause of action.) So, the motion now is set for hearing in accordance with Rule 15. So, the court will resolve the motion whether to grant it or to deny it. The motion may if it was established that there were FAME that resulted in the rendition of judgment against B in this example, then the motion will be granted. If the basis is newly discovered evidence and the court finds that the newly discovered evidence, then the court will grant, otherwise the court will deny. Q. What is the effect of the grant of the motion for new trial? A. The judgment already rendered is set aside, as if no judgment at all was rendered. In this example, if the motion for new trial of B is granted, the judgment already rendered against him is set aside.

Q. What now is the effect of the order granting the motion for new trial on the evidence already received? A. In this case, the evidence of the party consisted of the testimonies of X, Y and Z, and exhibits A, B and C. Q. What now becomes the evidence? A. If the motion for new trial is based on FAME, the rule says, the evidence affected by the FAME will be set aside. So if the evidence that is affected by this fraud is that coming from X, this will be set aside, only there, testimonies of Y and Z and exhibits A, B and C will remain. So the court will conduct a trial. The court may render another judgment after conducting the new trial. In deciding this case now, Q. What evidence may the court take into account? A. The testimonies of Y and Z and exhibits A, B and C. It will disregard the testimony of X. So, if another witness will testify and say E, then his testimony will also be taken into account. Q. How about these testimonies affected by B? A. If they are not affected by FAME, they will be taken into account. If there was another witness who testified, it will be taken into account. So the court will render a judgment based on these evidence remaining. This is if the ground is FAME. Newly discovered evidence, thats the basis, lets say, the only evidence consisting of the so-called newly discovered evidence is exhibit I for instance and F testimony. Q. In deciding the case, what evidence should be taken into account? A. All the evidence previously presented by A, all the evidence previously presented by B including exhibit I and testimony of F. Nothing is discovered because they are not affected by these newly discovered evidence. So, in the example the witness who already testified do not have to be recalled anymore. Their testimonies will be considered. If there are additional witnesses, their testimonies will be considered. This is how the motion for new trial is conducted. Q. How many motions for new trial may be filed? A. The general rule is, a party can file only one motion for new trial. Q. Is there an exception to this rule, meaning that more than one motion for new trial may be filed? A. Yes. When the ground of the second motion for new trial was a ground not existing at the time the first motion for new trial was filed. For instance, the motion for new trial is filed on the basis of FAME. While this motion is pending, defendant-movant B found evidence, which qualifies as newly discovered evidence. Q. Can B now file another motion for new trial based now or newly discovered evidence? A. Yes, because at that time the first motion was filed, this second ground was not yet in existence. Q. Is there such a thing as partial new trial? A. Yes. A new trial does not have to cover the entire case. Supposing there are three (3) issues in the case. Q. May a new trial be held only with respect to one of the issues? A. Yes. So, the new trial will be limited to a trial of that only issue. The judgment on the second and third issues will no longer be disturbed. Q. If there are two or more parties in one separate case, may a partial motion for new trial be granted? A. Yes. Supposing the defendants B and C, the plaintiff being A. Q. May a partial new trial be conducted only with respect to B and only with respect to C? A. Yes, because each of these defendants has his own right.

So, a new trial is conducted with respect to B only, then the new trial will be limited between A and B. It will not include C. If the new trial involves only C, then the case will only be between A and C. It will not include B. Q. What is the distinction between a motion for new trial and a motion for reconsideration? A. In a motion for new trial, the grounds are those we already specified. The grounds for a motion for reconsideration are different. They are: 1) when the judgment has awarded damages which are excessive; 2) when the judgment is contrary to law; 3) when the judgment is contrary to the evidence. With respect to the reception of evidence, in the case of a motion for reconsideration, there is no reception of evidence. In the case of a motion for trial, there is a reception of evidence. So these two differ. They, however, share a common point and that is, they can be filed only before the judgment has become final. Q. Why is it, in the case of a motion for reconsideration, there is no trial anymore, all that the court does is to set aside the judgment and amend it? A. Remember the grounds: 1) Excessive Damage all that the court does is to review the evidence and find out whether the damages are excessive or not. 2) Judgment is contrary to law all that the court does is to review the law on that matter. 3) Judgment is contrary to the evidence all that the court does is to review the evidence. Thats why there is no need of trial.

If he does not, one of these days until Dec. 16, 1998, as of Dec. 17, 1998, the court can no longer alter its judgment. The only thing that the court can do after a judgment has become final is to execute it under Rule 39. Of course, there are certain things that a court may do with respect to a judgment that has already become final, but not with respect to the merits thereof. No matter how the judgment is erroneous. So the only thing that can be done after the judgment has become final is to correct the clerical error or in a proper case, may clarify the judgment. These are the only things it can do. So, we said, that beginning Dec. 17, 1998, in our example, A can now execute this judgment. Let us say that the judgment in favor of A declared A the owner of the land. Ordered B to vacate the lot. Commanded B to pay damages of P1M. This is the judgment. Beginning Dec. 17, 1998, A can now execute this judgment under Rule 39. No matter how erroneous this judgment is, there is nothing that can be done but to execute it. However, under Rule 39, the law recognizes the possibility that B may have lost the case by reason of matters not imputable to him. For instance, the judgment was rendered against him by reason of FAME. Then the rule recognizes this. The inequity that may result to be, if this judgment procured under that circumstances will be made. So under Rule 38, the law gives B the opportunity to be relieved from his judgment. Thats why Rule 38 speaks of Petition for Relief. So, under Rule 38, if B files the petition, he will ask that he will be relieved from this judgment. That means to say that he asked that this judgment be set aside. This is the concept of Petition for Relief of Judgment

RENE NOTES: * Fraud must be extrinsic or collateral not intrinsic. * Forgotten evidence is not a ground for new trial. Requisites for newly-discovered evidence a) must have been discovered after trial b) could not have been discovered and produced at the trial c) if presented would alter the result of the action Otherwise, it is called forgotten evidence * A motion suspends or tolls the running of the reglamentary period for appeal except when the same is pro-forma. PRO-FORMA MOTION - when it does not comply with Rule 15 and Rule 37, e.g. it does not point out specifically the findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, ans is merely intended to delay the proceedings or if there is no affidavit of merit.

There is another matter covered by a petition for review and this is a situation where a loosing party was prevented from taking an appeal therefrom. In our example, the judgment was rendered against B. After trial, there was no FAME which gave rise to the judgment. B lost. Nevertheless, he is entitled to appeal, for example, he has until Dec. 16, 1998 within which to file his notice of appeal. But he was prevented from filing the appeal by reason of FAME. So there are two things that can be the subject of petition for relief. 1) A judgment rendered by reason of FAME or a proceeding attended by FAME; or 2) A deprivation of a party of the right to appeal by reason of FAME. Q. In what court should a petition for relief be filed? Lets assume that this case between A and B was filed in the RTC Branch 1 of Manila with Civil Case#2345. Q. In what court and in what case should B file his petition for review. A. He should file his petition for relief in the RTC of Manila Branch 1 and in the same case (Civil Case #2345). It shows that a petition for relief is a continuation in effect of the case wherein the judgment was rendered. So if the case was filed in the MTC, then this petition for relief must be filed in the MTC in the same case. There is an amendment of the old Rule 38 in the present Rule 38. Under the old rule, a judgment rendered by an inferior court (MTC for instance) and which a party thereto desires to file a petition for relief, the petition for relief must be filed with RTC. So, in our example for instance, in 1995, a case was filed against B in the MTC, Civil Case#2345, B now wants to file a petition for relief from the judgment rendered.

Rule 38 : Relief From Judgments, Orders, or Other Proceedings Petition for relief from judgment, this assumes that the judgment has already become final. And the matter of fact that the judgment or final order has already been entered. You know that once a judgment has become final, like in this case . Lets say, you receive the judgment in favor of A. Dec. 1, 1998. He has until Dec. 16, 1998 within which to do any of the following: 1) Motion for new trial; 2) Motion for reconsideration.

Q. Where will he file the case? A. File it in the RTC. So the case will be now B vs. A. This is not so now! The court which rendered the judgment is the court before the petition for relief should be filed. Period within which a petition of relief must be filed within 60 days from the time the petitioner learned of the judgment of the proceedings and in no event beyond six (6) months from entry of judgment. Q. Is this period extendible? A. No, it is not extendible. So, if you file a petition on the 61st day following your knowledge of the judgment, that petition is already filed out of time. Q. Why cannot the period be extended? A. Because Rule 38 is an act of grace on the part of the state in favor of a party. Consequently, the party who desires to avail of this benefit should do so subject to the conditions thereof. But there can be case where this period may be extended. In one case, the defendant after engaging a lawyer never heard anymore from the lawyer. So, he did not know the status of the case. The only time he had learned of the status of the case was when he received a writ of execution against him. Q. So, what did he do? A. He tried to investigate.

Q. Is it mandatory for A to file a comment or opposition on the petition? A. No. Why? If A files a comment or opposition as if he does not file the comment or opposition, but after the period of filing thereof has expired, the court will now set the date for the hearing of the petition. Q. What do you notice here? A. Whether or not there is a comment or opposition, the court will set the petition for hearing to determine whether said petition is meritorious or is not meritorious. So, in our example, B must present evidence in support of his petition. A, if he so desire, may present evidence in opposition, thereafter the court will resolve the petition. Q. What are the possibilities? A. 1) The court may deny the petition. So it says there is no FAME that resulted into a judgment against B. 2) The court found that there is FAME which resulted in the judgment and in the case, the court will grant the petition. Q. What now is the effect of the grant of the petition on the judgment already rendered? A. The judgment previously rendered is set aside. So, theres no longer any judgment to speak of. Q. What follows after that? A. The rule says, thereafter, the court shall hear the case as if a timely motion for new trial are granted. The court will now hear the case anew as if a motion for new trial was granted. So, the court will receive evidence addressed during the hearing so that it may be considered thereafter the court will render a judgment. This case will be the second judgment. Judgment now will be whatever judgment. It may happen that under the second judgment may be in favor of B now or may still be in favor of A. There is such a thing as an injunction that the court may issue while the petition for relief is pending. In our example, the judgment has already become final. A already filed a motion for execution. In the meantime B filed a petition for relief. Q. What is the available remedy to B so that pending the termination of this hearing of the petition for relief, A will not succeed in having that judgment he executed? A. B may file a motion for issuance of an injunction to restrain the execution of the judgment. For the purpose however of protesting also the right of A, B is required to post an injunction bond. So, before the court restrains the sheriff from enforcing his judgment, the court may require B to post a bond in favor of A. Q. For what is this bond responsible? A. In case damages where suffered by A as a result of the issuance of the injunction and after hearing the petition, the petition was denied or after hearing the case, the motion for new trial having been granted, the judgment is nevertheless in favor of A, then whatever damages A may have suffered by reason of the issuance of the writ of injunction, may now be answered by the bond B posted. So that if B does not pay him damages awarded to A, then A can go after the bond. Petition for Relief It is available only when the other remedies against a judgment are no longer available. So, if the motion for reconsideration is still available, or if a motion for new trial is still available: Q. Can you avail a petition for relief? A. No, Why? Because you can still avail of this other remedies. So, this is the last resort that a loosing party can avail of to set aside an unfavorable judgment. Lets see the other aspect of a petition for relief.

Q. What did he find? A. The fact that his own lawyer connived with the plaintiffs for his defeat. A vs B, engaged Atty. C. Atty. C connived with A. Based on these facts, B now filed a petition for relief long after the judgment against him has become final. The court allowed the petition for relief to be given course. He was a victim of a fraud committed by his very own counsel. Q. Is the court truly bound to give due course to a petition for relief? A. No. Let us see why After B for instance has filed his petition for relief, the court will first examine the petition to determine whether it is sufficient in form and substance. If it is not, then the court will dismiss it. If the court finds that the petition was sufficient in form and in substance, it will give it due course, meaning, it agrees to hear it. But if he denies due course, it does not want to hear the petition. Let us assume in this example that the court gave due course to the petition of B. Q. What would the court do in this case? A. It will now issue an order directing A to file a comment on the petition. Q. How would A know that a petition was filed against him by B? A. (Did you notice in our discussion whether B furnish A a copy of his petition. He did not serve the petition to A.) . the court after giving due course to the petition of B, issued an order commanding A to file his comment. Accompanied in this order is a copy of the petition of B. In other words, it is not B, it is the court that serves on A a copy of the petition. Of course the court will grant A a period of time within which to file his comment. In the absence of any period, the period shall not be less than 15 days from service of the order.

It is said, it involves also the failure of a party to appeal because he was so prevented by FAME. So, in our example, B files a petition to be relieve from the fact that he was not able to file the appeal. In our example, B failed to file the appeal. The judgment has become final. He wants now that he be allowed to appeal. Q. What is the remedy? A. File a petition for relief. Q. What is the prayer for that petition for relief? A. That he be allowed to appeal. Q. What could be the reason that would justify the grant of his petition? A. The justification was, he was prevented from appealing because of the FAME. So the procedure to be followed by B would be the same as he would have followed if the petition was to set aside the judgment by reason of FAME. So, the petition to be relieved from failure to appeal is granted. Q. Then what is the relief that the court would grant? A. Then the court will order the appeal to be given due course and that therefore, the court where the petition was filed and which rendered the judgment appealed from will elevate the records tot the appellate court. So in our example, the judgment was rendered by the RTC Br. 1 Manila and petition for relief prayed that the appeal of B from the judgment be allowed. Then when the petition is granted, the RTC of Manila Br. 1 will give due course to the appeal of B. So, the court will now elevate to the appellate court the entire records. RENE NOTES: NEW TRIAL/RECONSIDERATION * must be filed within the appeal period. Judgment not yet final. RELIEF FROM JUDGMENT * Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered. * More on equity (Discretionary) * FAME only * Relief from judgment/order on other proceeding.

A. That is carried out in accordance with Rule 39. Every step that finally leads to the accomplishment or the execution of its judgment is provided for in Rule 39. The sheriff is the officer entrusted by the rules to execute this. In carrying out the judgment, the sheriff must follow strictly Rule 39. This is the concept of Rule 39 (Execution). The sheriff cannot execute this except in the manner Rule 39 provides. Q. What are the matters to be taken up under Rule 39? Q. What kinds of judgment or order can be executed? A. The rule said, only a final judgment or order can be the subject of execution. This means to say that, in a judgment, if an order has not yet become final, it cannot be executed. Q. What is meant by final judgment? By final order? A. Justice Regalado points out in his book the concepts in which a final order or judgment is considered final, considered in the sense with respect to the appealability of the judgment or order. Final with respect to the appealability of the judgment or order. This is how it is distinguished Q. From the point of view of appealability and from the point of view of enforceability what is a final order? A. From the point of view of enforceability, a final order or a final judgment is one which can already be enforced because the period for an appeal therefrom is already without an appeal having been taken. So in our example therefore, if a judgment was received by A on Dec. 1, 1998 and by B by Dec. 2, 1998, A has only until Dec. 16, 1998 and B has only until Dec. 17, 1998 within which to file a notice of appeal, a motion for reconsideration or a motion for new trial. But they have not done this up to this day. Then we say that this judgment is final from the point of view of enforceability. Why? Because effective Dec. 18, 1998, the prevailing party, A in our example, can already enforce this. This is the meaning of a final order or judgment from the point of view of enforceability. From the point of view of appealability. Let us say, A vs. B. B filed a motion to dismiss. The motion to dismiss was denied.

* A legal right. * FAME * Judgment on final order

* Two Hearings (a) hearing to determine the judgment be set aside (b) if yes, a hearing on the merits of the case

Rule 39: Execution, Satisfaction and Effect of Judgments

Q. What is the concept of Rule 39? A. Example: The judgment commanded B to do these things: 1) vacate the land;and 2) pay A P1M. This judgment became final on Dec. 1, 1998. Q. Can this judgment now be altered on Dec. 2, 1998? A. No more, that cannot be altered anymore. Of course this is subject to Rule 38. No matter how erroneous this judgment is, it can no longer be set aside. All that is to be done now is to execute it. Meaning to implement it. When we say, all that is to be done is to implement that judgment, to execute it. We mean to say that B should now be required to vacate the land and pay P1M to A. Q. How will this command of the court be carried out?

Q. Is this order of denial a final order from the point of view of appealability A. No. This is not a final order from the point of view of appealability. Why? An interlocutory order is not appealable. This is the general rule. You cannot appeal from an interlocutory order because by its very nature, it can be set aside at any time. It is always within the control of the court as oppose to a final order. Let us see. Suppose the motion to dismiss was granted and therefore the complaint is dismissed. Form the point of view of appealability Q. Is this order granting the petition appealable? A. Yes, Why? Bec. the order finally disposes the matters involved in the case. Q. What makes an order interlocutory. What makes an order final from the point of view of appeallability? A. In the case of interlocutory order, after its judgment, there is still something to be done with respect to the merits of the case. So, the order does not put an end to a case. In our example, the order denying the motion to dismiss is an interlocutory order. Why? Because after the order has been issued, there is still something to be done with respect to the merits of the case. For instance, B will file the answer. Thereafter, pre-trial and then judgment. This is the essence of an interlocutory order. It does not put an end to a case. There is something else to be done after its issuance.

Let us take the case of order of dismissal granting the motion to dismiss. Q. What is the effect? A. We said that the complaint is dismissed. Q. Is there anything else to be done in the case after the complaint is already dismissed? A. No more. There is nothing else to be done on the merits of the case. That is why it can now be a subject of the appeal. So, this is the difference between a final order from the point of view of appeallability and from the point of view of enforceability. What we are talking about in Rule 39 is a final order from the point of view of enforceability. Example: A vs. B. The judgment has already become final in the RTC. This judgment because final on Dec. 1, 1998. Our assumption is, there was no appeal from this judgment. So, it became final Dec. 1, 1998. Q. A wants a writ of execution to be issued. Within what period can A file a motion for the issuance of a writ of execution? A. He has five (5) years from finality of judgment which is equivalent to entry of judgment within which to do so. So, he (A) has up to Dec. 1, 2003 within which to execute this judgment by mere motion. Let us suppose that Dec. 1, 2003 is the last day of the filing period. This judgment was not executed by motion within his five (5) years. Q. Dec. 2, 2003, can this judgment now against B be enforced by motion? A. No more. Q. Is there a remedy by which A can still enforce this judgment after Dec. 1, 2003? A. Yes, by action. Example: Within this five-year period from Dec. 1, 1998 to Dec. 1, 2003, all that A does to secure this writ of execution is to file a motion on the same case Civil Case #2345 RTC Manila Br. 1. So, A will file this motion for execution in the same court. Dec. 1, 2003, this judgment can no longer be enforced by motion. It can now be enforced by action.

So this judgment rendered in Civil Case #2345 can no longer be enforced by mere motion. You can enforce it if you can procure a judgment in this RTC of Sulu or Batanes. Q. If you were A here, what would you allege in your complaint? A. Your allegation would be this That you received a judgment in your favor in Civil Case # 2345. That the judgment was not executed by motion within five (5) years from its finality of judgment. Q. What is now your prayer? A. You now pray that the judgment rendered in that case be revived. Q. What do you associate revival? Q. Do you revive a dead man? A. No. Q. What do you do with it? A. You resurrect him if you can. Q. Who then is revived? A. He who is unconscious. Q. Why do we call this action to enforce the judgment rendered in the civil case, an action to revive? A. Because after the 5-year period during which the judgment was not enforced that judgment in a sense fell into a coma. Q. What do you do? A. Revive so it can be enforced. Q. Within what period should an action to revive be filed? A. The rule says, it must be filed before the action is barred. Q. Where do you find the rule to apply whether the action is barred or not? A. Civil code provisions state the periods during which actions may be filed. In certain actions, there are periods fixed. So, in our example, the action to revive the judgment should be filed within 10 years from the day the judgment in Civil Case #2345 has become final or when it was entered. Our assumption here is, the judgment became final Dec. 1, 1998. For the purpose of filing the action for revival, you have 10 years from Dec. 1, 1998. In effect therefore, A has a period of five years from the expiration of the original 5 years within which to file the action for revival. In this example, the five year period ended Dec. 1, 2003. You now can file the action within five years again, Dec 1, 2003. Let us assume that the judgment for revival is granted. Q. Can you now execute the judgment of revival? A. Yes. Q. Within what period? A. By motion also within 5 years from entry of judgment in the revival action. Q. You did not execute the judgment in that revived action within the 5-year period from its entry. Can you now execute it? A. Yes. Q. How? A. By motion again. So you can revive the revived judgment if it was not executed within the 5-year period. We are talking of a judgment, which can be enforced or executed only after it has become final and that it can be executed in the court where the judgment was rendered. Lets take the second possibility

Q. What does this mean? A. Let us assume that the land is located in Zambales. A is a resident Sulu. B is a resident of Batanes. Starting Dec. 1, 2003, A can file this action. Q. Within what period can A file his action? A. He has a period ending five (5) years from Dec. 2, 2003 or Dec. 2, 2003 within which to file the action. Q. Where will the action be filed? A. Sulu or Batanes. Q. Why not Zambales? A. Because an action to revive a judgment is a personal action. It is not a real action. This being a personal action, it will be governed by Rule 4, the venue could be the residence of the plaintiff or the residence of the defendant at the option of the plaintiff. A now file an action against B for revival of judgment in the RTC of Sulu or Batanes at the option of A. Q. What do you notice? A. A separate action.

A vs. B RTC of Manila, Civil Case #2345. B appealed to CA. CA rendered a judgment affirming the RTC judgment of the CA became final Dec. 1, 1998. You are A who would want the judgment of CA be executed. Q. Where will you file the motion for execution? A. Here are the possibilities.. This case is still with the CA but the judgment already became final Dec. 1, 1998. But the records are still there. You now want that judgment in CA affirming the judgment of RTC executed. Q. If you were A, in what court may you now file the motion for execution? A. You can file in the RTC. Q. But the records of the case are not yet in the RTC, in what case then will you now file the motion in the RTC? A. The remedy A will secure a certified copy of the CA judgment, he will now get a copy of entry of judgment duly certified by the CA. Q. What will A do with these two? A. He will now attach them to the motion for execution. This motion for execution is now accompanied by these two certified copies so that although the records are still in the CA, the RTC can now act on the motion. Q. Can the RTC now enforce this judgment of CA although the records are still there? A. Yes. File in the RTC a motion for execution. Attached to that motion, certified copy of: 1) CA judgment; and 2) Entry of judgment Of course the motion for execution filed in the RTC should be heard in accordance with Rule 15. That means to say that B must be notified. Why? Because this is a litigated motion. Q. May not A file in the CA the motion for execution while the records are still with the CA? A. Yes, A can file with the CA the motion for execution. Q. Will the CA issue the writ? A. No.

Q. May a judgment or order, which has not yet become final be the subject of execution? A. Yes, but then this is the exception. Example: A vs. B , A receive the judgment favorable to him on Dec. 1, 1997; B received the judgment on Nov. 28, 1997. So A has until Dec. 16, 1997. B has Dec. 13, 1997 within which to do any of the following: 1) Motion for reconsideration; 2) Motion for new trial; or 3) Notice of appeal. This is what happens On Dec. 11, 1997, B filed a notice of appeal. Q. What is the effect of this notice of appeal filed by B in so far as he is concerned? A. Insofar as B is concerned, the court can no longer touch the judgment. It cannot modify anymore the judgment insofar as B is concerned. Q. But can the court still modify this judgment insofar as A is concerned after Dec. 11? A. Yes, because A has until Dec. 16 within which to do any of the above-stated. In other words, the appeal here of B does not affect the rights of A up to Dec. 16. So, if A files a motion for reconsideration on this judgment lets say on Dec. 15 or four (4) days after the appeal of B has been filed. Q. Can the court still reconsider this judgment insofar as A is concerned? A. Yes, but it can no longer change the judgment insofar as B is concerned. On Dec. 15, 1997, A file a motion for execution. Q. Can A still file his motion for execution considering that the judgment is not yet final insofar as A is concerned because this will become final only as to him on Dec. 16? A. Yes, he can still file. Look Is this judgment already final insofar as A is concerned? Not yet. Insofar as B is concerned, this is an appeal to the judgment, which is not yet final, also as to him. Q. Can this judgment nevertheless be executed? A. Yes. Meaning. Can the court rule on this motion of A for execution is filed, the court has not yet lost jurisdiction of the case insofar as A is concerned. Supposing the records however, were elevated to the CA on Dec. 20, 1997.

Q. What will it (CA) issue? A. It will merely issue an order directing the trial court, the RTC in our example, to issue the writ of execution. Now, you distinguish between the order directing the issuance of a writ of execution and the writ of execution itself. In this example, what is issued by the CA is the resolution directing the trial court to issue the writ. What RTC issues is the writ itself. Supposing these records are already turned over to the RTC and thats already final. Q. May A file still with the CA a motion for execution? (The records are already in the RTC.) May the CA nevertheless issue an order directing the RTC to issue the writ considering the records are already in the RTC, no longer with the CA? A. Justice Regalado, a recognized writer in Remedial Law opines that the CA may still issue the order directing the RTC to issue the writ although the records are already with the RTC. *This is not a decided case. That is only the view of Mr. Regalado. Dont be misled by this comment on this as you may find in his book you can opine otherwise and be sustained by the SC. So far we have been talking of execution of judgments.

Q. Can the court now rule on this motion for execution on Dec. 21? A. No more. Why? The records are no longer with the court. Q. What would be the justification for the court to issue an execution against B while the case is pending appeal? A. The rule says simply that the court may issue execution for a special reason to be stated in a special order. Q. Do you find any enumeration in the rules particularly Rule 39 on what constitutes special reason which justifies the issuance of the writ of execution pending appeal? A. None. The court then will determine whether there is or there is no special reason for the issuance of a writ pending the appeal. (It is the court that determines on a case-to-case basis.) Now if the court issues a writ of execution pending appeal, the law requires that the order must state the special reason why the writ of execution was issued. In the absence of the statement in the order of what constitutes a special reason, there will be a violation by the trial court of this Rule 39. Q. What is a special reason? A. The rule does not say so. So this is a matter that is left to the discretion of the court to determine.

A judgment is rendered against the defendant B to pay a sum of money. B is already on the verge of bankruptcy. While the case was pending, the period for appeal has not yet expired, he started disposing his properties. Evidently, to place them beyond the reach of the plaintiff A who obtained a judgment in his favor. Q. Should A file a motion for execution based on this ground? A. The imminent bankruptcy of B and the fact that he was disposing his properties with evident intention of depriving A of the benefits of the judgment may be considered a specified reason. Why? Because if you wait until the judgment become final, there will be nothing left already on the assets of B which can be levied upon to satisfy the judgment. Q. Will this be a good reason? A. Its up to the court. If it thinks that it is a good reason to execute the judgment is affirmed on appeal, and the judgment become final, the plaintiff is already assured of payment. Q. Supposing the judgment ordered the defendant to deliver A a quantity of perishable goods, lets say meat for instance, what will happen to these perishable goods if you still wait until the judgment become final to execute it. A. By that time, they may have already been spoiled. Q. So, may it now be a special reason that because of the nature of the goods, the execution of a judgment is proper to avoid these goods being lost? A. Whether the reason is good or not, special or otherwise, it is the court that determines. Q. Is it only in the trial court that the motion for execution pending appeal may be filed? A. No. When a case is pending in the appellate court, the prevailing party may also file therein a motion for execution. So, in our example, the case has been appealed by B to the CA. So the case is pending now in the CA. Q. Can A file in the CA a motion for execution of the judgment pending resolution of the case by CA? A. Yes, a motion can be filed by A in CA. Q. What is the lifetime of a writ of execution? A. 5 years Q. What is a writ? A. A writ is a command of the court addressed to a proper officer normally the sheriff commanding him to execute the judgment.

A. Whereas on Jan. 2, 1998, a judgment was rendered by this court the dispositive portion which read, ( the dispositive portion of the judgment is quoted). Whereas this judgment has become final on this date (put the date) hence the court in its order dated so directed that a writ be issued. Wherefore, you are commanded to execute the foregoing judgment. (There is another directive there) of the properties of B you are commanded to make up the sum of so much to pay the amount adjudged in the decision. Q. Is it addressed to B? A. No. It is addressed to the court personnel. Q. What is a lifetime of a writ of execution? A. Under the old Rule 39, a writ has only a lifetime of 60 days counted from the day the sheriff received it. This means to say that if the judgment is not executed within that 60-day period, that writ can no longer be enforced after the 60th day. Q. What then was the result under the old Rule 39? A. If the writ was not executed within the 60-day period, it automatically lost its force beginning the 61st day. Therefore, any service of the writ after the 60th day would be already be an invalid service. Consequently, the party who prevailed and who wants the judgment executed must again file a motion for the issuance of another writ of execution. So, under the old rule, there could be as many writs of execution issued within the five-year period for as long as the writ was not implemented within the 60-day period, another writ can be issued such that by the end of the 5th year, all the writs have not been implemented, there can be no more writ to be issued thereafter. Why? Because you now have to file an action to revive the judgment. Q. What is the modification now? A. Under the new rule, we now have a longer lifetime of a writ of execution. The lifetime corresponds to the period within which a judgment may be executed by mere motion. It means to say further that during this five-year period, no other writ of execution is required to be issued. The sheriff can enforce that within this five-year period for as long as the judgment is not satisfied within the 5-year period. There are several kinds of judgments that may be the subject of execution. We have a judgment for instance which calls for a judgment involving special one. Q. Where lies the difference? A. A judgment commanding specific acts to be done may involve any of the following: 1) payment of money 2) delivery of property 3) execution of deed conveyance These are among the judgments calling for specific acts. These are not the only acts involve in a judgment. (Let us just take them for illustrative purposes). And we could have a judgment called special judgment secured by A against B provided that B should tear down a concrete fence with B erected on a lot belonging to A. So, this kind of judgment is not any of this judgment for specific acts. So, there may be a judgment commanding the loosing party to turn over the prevailing party the piece of land; there may be a judgment commanding a party to execute a deed of conveyance. This is the final judgment that Judge Laggui would like to discuss to us Example: Supposing in this example, A vs. B, the court rendered judgment the dispositive portion of which commanded the following: 1) A is the declared owner of the lot in question covered by TCT No. 2345 Registry of Deeds Province of Rizal. 2) B is ordered to execute a deed of transfer of this lot in favor of A. 3) The Registry of Deeds, Province of Rizal is so ordered to cancel the title and issue another in the name of A.

Example: On motion of A, the court issued an order directing that a writ be issued for the execution. Q. Who carries this (writ) into effect? A The clerk of court. Q. What will the clerk of court do? A. The clerk of court will issue in the name of the court the so-called writ of execution. So, the clerk of court issues this writ. Q. To whom is this writ directed? A. To the sheriff. Q. What does this writ command the sheriff do? A. The rule says, the writ must recite the dispositive portion of the decision and thereafter command the sheriff to implement it. In our example, the judgment ordered B to deliver the land to A. To pay A so much money Q. What will the writ say?

Q. How will this judgment be carried out? Let us suppose in our example, B refused to comply with this order, commanding him to execute a deed of transfer in favor of A. Q. What is the remedy under this rule? A. The remedy is this The court will commission a third person to execute the deed in favor of A. Q. What is the effect of this deed executed not by B but by C? A. The rule says, the deed executed by this third person C is just as good as if it were B. So that when A, the prevailing party, presents to the Registrar of Deeds, Province of Rizal, this deed signed by C (not by B), the Registrar of Deeds will register that and cancel the title of B. Theres another remedy, if B does not execute the deed. Q. What can the court do? A. The court will simply say, the Registrar of Deeds, Province of Rizal is ordered to cancel the title No. 2345 in the name of B and issue another in the name of A. In the case of a special judgment Q. How does this differ from a judgment involving specific acts. A. The difference lies in this fact. That in the case of judgment involving specific acts, the writ of execution issued to the sheriff is not accompanied by a copy of judgment. But in the case of a special judgment, the writ of execution addressed to the sheriff is accompanied with a certified copy of the judgment. In the enforcement of this writ of execution, involving special judgment, Q. Who will execute the judgment? Is it the sheriff? A. No. It is the party. In our example, defendant here. Why? Because he must obey the judgment. Meaniing since he was commanded to tear down that concrete fence, B must do it himself. Q. Can he (B) order the sheriff to do it? A. No. He himself must do it. But he might say, I cannot do it. Bahala ka sa sarili mo! Tear it down. B says, I will not. Q. What is the remedy? A Declare him in contempt of court. So he does not want to tear it down, arrest him! Send him to jail. Q. Will you release him? A. No. Q. When will you release him? A. When he has obeyed tearing down. If he does not tear it down, he will rot in jail. RENE NOTES: *A Writ of Execution to be valid, must conform strictly to the decision or judgment which gives it life. It cannot vary the terms of the judgment it seeks to enforce. General Rule: Court cannot refuse execution UNLESS: (UCNID) 1. Execution is UNJUST or IMPOSSIBLE 2. Equitable grounds like a CHANGE IN SITUATION 3. Judgment NOVATED by parties 4. Execution is enjoined 5. Judgment has become DORMANT

5. issued without authority *Remedies of the Losing Party 1.Petition for relief (Rule 38) or 2. Direct or Collateral Attack against judgment SUPERSEDEAS BOND - one filed by a petitioner and approved by the court before the judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. * Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal, not other things like damage to property pending the appeal. * The court may, in its discretion, order an execution before the expiration of the time within which to appeal provided. 1. There is a motion for execution filed by the winning party 2. There is a notice of said motion to the adverse party; and 3. There are good reasons stated in a special order after due hearing. GENERAL RULE: an order of execution is not appealable otherwise there would be no end to the litigation between the parties. EXCEPTIONS: 1. When the terms of the judgment are not very clear; 2. When the order of execution varies with the tenor of the judgment * A revived judgment is a new judgment thus another 5/10-year period to execute and revive is given the party. Rule 39 Sec. 47: Effects of Judgment rendered by a Philippine Court The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: a) In case of a judgment or final order against a specified thing, or in respect to the probate of a will, or against the administration of the estate of a deceased person, 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 will of the administration, or to the condition, status or relationship of the person, however, the probate of a will granting a letter of administration shall only be prima facie evidence of the death of the testator or intestate. b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest of title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity. c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. You will note that Sec. 47 of Rule 39 groups into three (3) the actions covered by the section. The first section covers: 1) cases involving title to specific property; 2) cases involving probate of a will; 3) cases involving the administration of the estate of the decedent; 4) cases involving the political, legal and personal condition or status of a person; and 5) cases involving the relation of a person to another. Q. What does the rule say with respect to the judgment that may be rendered in these cases? A. The rule says (1) the judgment is with respect to the specific property, conclusive on the title to the property; (2) the judgment is conclusive on the probate of the will; (3) the judgment is conclusive to the administration of the

*Quashal of writ proper when: 1. Improvidently issued 2. Defective in substance 3. Issued against the wrong party 4. Judgment already satisfied

estate; (4) the judgment is conclusive on the personal, political or legal condition of a person; and (5) the judgment is conclusive on the relation of a person to another. There is only one exception to this rule that judgment is not conclusive, and that is when it comes to the probate of a will or the administration of the estate. The judgment here is merely prima facie evidence that the testator or the person whose estate is under administration, is dead. It can be proven that he is alive. Example: A filed an application for registration of title to a lot. Only B opposed. After the trial, judgment was rendered confirming the title of A. The judgment became final. The LRA issued the decree of registration pursuant thereto, a corresponding certificate of title OCT #1234. This title now is in the name of A. Let us assume that this judgment became final on 1978. In 1998, C now files a case against A for recovery of this lot. C said, I am the owner. A said, No, I am the owner. Q. What is the issue? A. Who is the owner? During the trial, A now the defendant, presented in evidence the judgment of the court in that Registration case, the certificate of title issued in that case, and the decision, Exhibits A, B and C respectively. A says, I offer your honor Exhibits A, B and C to prove that I am the registered owner. Court: What does B says? C: I object on the ground that I was not a party to the case. The parties thereto being only A and B. Therefore, I am not bound by the judgment. Court: Objection overruled. Exhibits A, B and C are admitted. Q. Is the ruling of the court correct? A. Yes. Why? Because under Sec. 47 (a) Rule 39, the judgment in that registration case is pertaining to as it does to a specific property is conclusive on the title. So, this being a proceeding in res, the judgment binds not only A and B but the whole world including C who was not a party. That means to say that C cannot be declared the owner of that land. Why? Because the ownership was already decided with finality in that case. If C has any claim over this lot, he should have filed his claim during the registration proceeding. He should have intervened. He did not. Then all claims over this land that were not presented were deemed extinguished when the judgment was rendered. This what is meant by conclusiveness of title. Of course, this does not mean to say that C may not be able to recover this lot. No! He may recover, but in another cause of action. Supposing that he can show that the ownership of the land later on pass from A to him, then he can recover. But if he simply says, I am the owner. On his own right deriving his title from A, that title of A cannot be challenge anymore in any proceeding. This is what is meant by conclusiveness of the judgment in a case involving title to specific property. Probate of Will The rule says, a judgment in a probate case is conclusive as to the probate. Q What is meant by this? A. Example: Here is the will of J. Here now is A who filed a petition for the probate of the will. The court admitted the will in probate. The judgment becomes final on Dec. 1, 1999. (Dont forget that what is decided in a probate case is not the merits or validity of the dispositions in the will.) What is decided in the probate of the will is merely the question of whether or not the will was executed in accordance with the formalities required by law. You know that under the New Civil Code, there are certain formalities that must be followed by the testator so that the will will not be valid. So for instance, the law says, the will must be signed by the testator at the end thereof and on every page on the left side; each page if the will consists of more than one page be numbered and that the will must be attested by three attesting witnesses; they must be acknowledged by the testator and the attesting witnesses before a notary public. These are among the many formalities that the testator must have to follow, so that the will he executes shall be valid.

Here, the will was admitted for probate. This means to say that the will was validly executed as to the form. This means to say therefore that his will was signed by the testator. This is the meaning. But, as to whether the dispositions in the will are valid or not, that is not decided. So, in the will, the testator said, I have all these properties described as follows to my #2 for services rendered Q. Will the court decide that in the probate? A. No, because that was into the intrinsic validity. This is not decided. After his will was admitted on probate, A now was sued involving this will now. B now says that this will was a forgery because the signature was affixed by X without the knowledge of T. Q. Can the question of forgery of this will be raised later on? A. No more. Because the judgment in the probate proceeding is conclusive that this will was validly executed. This means therefore that the testator signed the will. But supposingly, the truth is, as contended by B, that the will was signed by X? Never mind. The law says, the will was signed by T. (even if it was actually signed by X. Never mind!) Under Sec. 47 Rule 39, I signed it!!! Whether he did actually or not, no longer matters!!! This is the meaning. However, there is a qualification here, and i. E., the admission of the will in probate is merely prima facie evidence that T died. Q. So, can it later be proven that T is still alive? A. Yes. Why? Because the presumption is that T is dead is rebutted by his appearance. A judgment involving the political, legal or personal condition of a person, or his relation to another is conclusive as to such personal condition, legal or political condition, status or relation. Example: A sues B for compulsory recognition as a natural son of B. B denied the claim of A that he is his son. So the issue is: Is A the son or not of B? After trial, the court said, B is the father of A. Years later, B died succeeded by his several children. Since B has an estate, A sued the heirs of B. A alleged that he is the natural son of B. But the heirs of B alleged that A is not a son of B. Q. Can the relationship of A as a natural son be litigated anew? A. No more. A is the son of B. This question cannot be litigated again. There is logic here Supposing the heirs of B if allowed to prove that A is not the son of B, they may now introduce evidence that A is the son of C and the court believes that C is the father of A. Q. How many fathers now does A have? A. Two. This is the evil sought to be avoided by this rule. You cannot place the status of a person in a state of uncertainty because if he (A) is now the son of B, tomorrow he will be the son of C, now, where will this end? So there can be as many fathers as can be proven This is not allowed. This is what is meant by the conclusiveness by the judgment in a case involving the relation of a person. Q. What do we learn from this? A. The judgment in any of these cases mentioned, in Sec. 47 (a) Rule 39 is binding, conclusive and cannot be altered. Sec. 47 (b) Rule 39 In other cases, that which has been adjudged in a case or any matter that could have been raised in relation to that matter that has been adjudged is conclusive between or among the parties and their successors in interest by title subsequent to the commencement of the action or proceeding litigating for the same thing under the same capacity under the same title and in the same capacity. Q. What is meant by this? A. It simply means that where an issue has already been decided in one case, that issue cannot be litigated again. Why? Because that judgment toward this issues which has been raised and decided is already conclusive and can never be

changed anymore insofar as the same parties or their successors in interests are involved. This is the so-called rule involving res judicata. That which have been decided in another case involving the same subject matter, involving the same causes of action. Example: If you kill a cow or a carabao and you want to eat the flesh, what do you do? You skin the carabao or the cow. Can you skin the same animal twice? You can skin it only once. You can litigate an issue only once. You cannot litigate again for the same issue. And if a litigation is brought involving the same issue, the judgment rendered in the first case may now be pleaded in the second case. Res judicata is a ground for motion to dismiss.

A. No. Why? Because the money represents the value of the lot. Q. What is the basis now of the claim of B or the heirs of B in recovery of P1M? A. Their ownership of the land, because if they were not the owner, he/they would not recover. Q. But was not this question of ownership already decided? A. Yes. It was decided. Q. What is the cause of action in the first? A. Ownership. A says, I am the owner. B says, I am the owner. Q. What is the cause of action in the second case? A. Their claim of ownership. So, you have here, identity of parties, identity of causes of action, identity of subject matter, then you have here res judicata. Q. What does this example illustrate? A. That the effects of res judicata cannot be avoided by simply changing the nature of the action. Q. What is the nature of the action in the first case? A. Reivindicacion.

Example: A vs. B for reindivicacion. What is the issue? A says, I a m the owner. B says, I am the owner. So, the issue is: Who is the owner? Trial A presents evidence to prove his ownership. B presents his evidence to prove his ownership. Judgment: A is the owner. The judgment became final on Dec. 10, 1994. In 1995, B now or if he (B) is dead, the heirs of B, file a case against A or if A is not alive, As heirs. So, its either heirs of B against A or Heirs of B against heirs of A. Q. What is the nature of the action? A. Reindivicacion Why? Bs heirs wants to recover. As heirs wants to recover. Bs heirs said We are the owners. As heirs said, We are the owners. Issue: Who are the owners? Q. What did you notice here? A. In both cases, the parties are the same. A vs. B or heirs of B vs. heirs of A. Q. Why are the parties the same when A and B are dead and the parties litigating are just their respective heirs? A. Because their heirs merely stepped into the shoes of A or B respectively. The subject matter is the same the land. The cause of action is the same. Issue: same ownership. Q. Can this be decided in this case? A. No more. The judgment rendered in the first case on the issue of ownership is binding on all the parties in the second case. Q. If these were the situation, what is the remedy available to A or the heirs of A, in order that this second case will not be tried anymore on the merits? A. What the defendant A or heirs of A can do is to file a motion to dismiss under Rule 16 on the ground or res judicata. This is a very simple form of res judicata. Q. What are the other rules with respect to res judicata? A. Here are the rules The effects of res judicata cannot be avoided or evaded simply by changing the nature of the subsequent cause of action. Example: You will note that this case between A and B, the issue is: Who is the owner of the land? That judgment was rendered in favor of A. So, he was declared the owner. The judgment became final. B now sued A for recovery of damages representing the value of this lot, lets say P1M. Can this suit for recovery of damages be maintained by B? Look Q. What is the subject matter of the first case? A. A lot. Q. What is the subject matter of the second case? A. Money. (So, they are not the same!) Q. Lot and money is that so?

Q. What is the nature now of the second action? A. Recovery of money. There was a mere change in the nature of action, but both actions are founded in the same facts. Another rule The fact that the parties in the subsequent case may not be exactly be the same as the parties in the prior case does not affect the application of the rule of res judicata. So long as the parties in the subsequent case represents substantially the same interest as represented in the prior case. Example: In the first case the defendant was only B. In the second case, B and S are now the main plaintiffs. Why S? Because S is the wife of B. B and S now filed an action to recover the value of the land. Naturally A filed a motion to dismiss on the ground of res judicata. But B and S argued that the rule on res judicata does not apply. Why? Because the parties in the first case and the parties in the second case are not the same. So, they argued that in the first case, the parties thereof are A, as plaintiff and B, as defendant. In the second case, the parties are B and S as plaintiffs and A as defendant. S was never a party. So there is no identity. Q. Is the contention of the plaintiffs B and S, correct? A. No. Why? Because S being merely a spouse was not an indispensable or even a necessary party in the first case. If she were sued then, she could have been sued merely as a nominal party. With her addition as a plaintiff in the subsequent case, that will not strengthen the case of the husband because with or without the wife impleaded in the first case, the judgment will have been applied equally to S. Here is an illustration of what we said earlier that in the subsequent case, there is or there are parties who were not parties in the prior case, will not affect the application of the rule on res judicata, the additional parties, in our example, were not indispensable parties in the prior case. The third part of Sec. 47 (c) Rule 39 presupposes that there was a prior case between parties and that judgment in the prior case is invoked in a subsequent case between the same parties. Example: A vs. B in Civil Case # 1234. A judgment was rendered in that case. Subsequent to that, there is another case between A and B or between B and A. Under this set of cases, that judgment rendered in the first case is introduced as evidence in the second case. But with the introduction in evidence of the judgment in the first case, will not be a res judicata in the second case. Why? Because under this rule (Sec. 47 (c) Rule 39), only those matters that have been decided in that prior case is deemed res judicata in the second case . Therefore, there is still a part of the case in the second case, which can now be decided. Can no longer be decided in the second case. That is why, the rule says, the

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other cases involving the same parties, that has been adjudged in a prior case which appear on its face to have been directly adjudged or this could have been necessarily included therein. Example: A vs. B for forcible entry. The issue is, Who has the right of possession of the land? Let us say that the judgment was in favor of A. So, A was declared the lawful possessor. The court having found that A had been in possession of the land for 20 years continuously until B ejected him therefrom. Q. What do you recall about forcible entry? A. The only issue in forcible entry in , involving possession. So, what is settled in the forcible entry case is the question of possession. The question of ownership is not decided in forcible entry. Although you will recall that in BP 129 as now included in Rule 70 that, in a forcible entry case, the question of ownership may be decided. But the decision is only for the purpose of determining who is the lawful possessor. So, the law says, When the question of ownership is raised and the question of possession cannot be decided without deciding the question of ownership, then the question of ownership may be decided. But only for this purpose. To allow the Municipal Trial Court to determine who is the lawful possessor. But then the findings of the MTC as to who is the owner is not final. It is only good in that case. The question of ownership can again be litigated. After the judgment in favor of A has become final, B sued A, this time for reivindicacion. So B says, I am the owner. Q. So, what is the issue here? A. Ownership. This is what A did. He filed a motion to dismiss this second case. What is his basis? He now argued that the judgment in the forcible entry case is already res judicata. Since the question of possession has already been decided in that forcible entry case, this action for reindivicacion can no longer be litigated. This is his (A) contention. Q. Is the contention of A correct? A. No. Under the par. C of Sec. 47 Rule 39, the rule says, In other cases involving the same parties that is deemed decided in the prior case which appears on its face to have been directly adjudged. Q. What was adjudged in a forcible entry? A. Only the question of possession the question of ownership here can still be decided. Q. But can there be now a dispute as to the question of possession, so that if the question of possession can still be disputed, B can prove that A was not in possession of the lot? A. No more. Why? Because the question of possession was already settled in the forcible entry case. So in the reindivicacion, the question of possession is res judicata. That cannot be litigated anymore. It is already res judicata. Q. So, what do you notice here? A. Par (c) of Sec. 47 of Rule 39 involves partial res judicata. That is what is meant by par (c) of Sec. 47 Rule 39. Sec. 48 Rule 39: Effect of Judgment rendered by a Foreign Court The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In a case of judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title of the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact. A judgment rendered by a foreign court cannot be enforced in the Philippines except by action.

If a foreign judgment rendered in an action involving title to specific property, or the action in connection which a judgment may have been rendered is a personal action. Example: A vs. B involving specific property or personal action. This case was filed in the USA. Lets say that the judgment was rendered in any case in favor of A. So, in the case of specific property, he is declared the owner. In the case of personal action, B was ordered to pay A money. The trouble was, although this judgment has already became final in the USA, it was not enforced or executed in USA. A and B came to the Philippines. A now files a motion in court for the execution of that judgment in USA. Q. Can that be done? A. No. it cannot be done. Our courts do not enforce foreign judgment. Q. What is the remedy available to A so that he can enforce this judgment? A. He must file an action in the Philippine courts for the enforcement of that judgment. He (A) now files in the Philippines, RTC of Manila for the enforcement of an action involving title or he will now file an action to enforce his judgment. Q. What is the effect of this judgment of the US court on the title on that property? What is the effect of this judgment of the US court with respect to his money? A. The rule says, In the case of title to specific property, that judgment is conclusive on the title to that property. In the case of personal judgment, that judgment is merely a presumptive evidence that A has a claim against B. That is why under the last paragraph, the rule says, In any case, B may repel the judgment by proof of lack of jurisdiction of the US court to render the judgment. Lack of notice a clear mistake of fact or of law committed by US court. Q. What is strange here is this In the case of title to specific property, the law says, the judgment of the US court is conclusive to the title. But in the last part, a party against whom the judgment is sought to be enforced in the Philippines can still question the judgment because it says here, in either case, meaning, whether the judgment involves title to specific property or whether the judgment involves personal action, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact. Whereas under par (a), the judgment of US court insofar as title to the property is concerned is final; yet under the last paragraph, it can be repelled by proof of want of jurisdiction, lack of notice, fraud, collusion, clear mistake of fact or of law. Q. What is strange here? A. Final, but it can be repelled. With respect to the second case, the action for money, well, since this is merely a presumptive evidence of right of A against B, the right can be contested by showing lack of jurisdiction of the court, lack of notice, fraud, collusion, clear mistake of law or fact. So that is something strange about this

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