REMEDIES

Basis
Rule
37 of
the
Rules
of
Court

Remedy
New trial or reconsideration
Affidavits of merit
-A motion for new trial should ordinarily
be accompanied by 2 affidavits:
1. one, setting forth the facts and
circumstances alleged to constitute the
ground.
2. other, an affidavit setting forth the
particular facts claimed to constitute the
movant’s meritorious cause of action or
defense.
Q. When is it not necessary?
A. If the granting of the motion for new
trial is not discretionary with the court
but is demandable as of right, as where
the movant has been deprived of his day
in court through no fault or negligence
on his part xxx.

When Filed
within
period
for
taking, not perfecting
an appeal.

Requisites
Grounds are:
(a) FAME
Fraud,
accident,
mistake or excusable
negligence.

*an appeal may be
taken within 15 days
after notice to the
appellant
of
the
judgment or final order
appealed from. Where
a record on appeal is
required, the appellant
shall file a notice of
appeal and a record on
appeal within 30 days
after notice of the
judgment
or
final
order.

(b) Newly discovered
evidence
Within the same period,
the aggrieved party may
also
move
for
reconsideration, upon
the grounds that the
damages awarded are
excessive, that the
evidence is insufficient
to justify the decision
or final order or that
decision or final order
is contrary to law.

1

Notes

Cases

(1) Fraud – must be extrinsic, committed
outside the trial of a case, where a trick or
devise was employed to prevent the
adversary from presenting his defense.
(2) Accident – it must appear that there was
accident or surprise which ordinary
prudence could not have guarded against,
and by reason of which the party applying has
probably been impaired in his rights.

i.e. Illness over which a
party has no control.

(3) Mistake – unintentional act, omission, or
error arising from ignorance, surprise,
imposition or misplaced confidence.

i.e.
unconsciousness,
forgetfulness or belief that
there is no need to appear
during the trial because
there was already a
compromise agreement.

(4) Excusable neglect - means a failure to take
the proper steps at the proper time, not in
consequence of the party’s own carelessness,
inattention, or willful disregard of the process
of the court, but in consequence of some
unexpected or unavoidable hindrance or
accident, or reliance on the care and
vigilance of his counsel or on promises made
by the adverse party.

i.e.
The
failure
of
defendant’s attorney to file
his answer on time may be
excused where such failure
was due to the fact that the
employee
who
was
commissioned to file the
answer which he had
prepared on time was

mistake or excusable negligence contemplated by the Ruled of Court. 2 . and does not constitute the accident.suddenly taken ill and said attorney was not informed of the failure to file the answer until it was too late. But counsel’s alleged failure to note the notice of hearing in his calendar is flimsy.