June 27 Rule 39

*If appeal is dismissed for having filed out of time, but the appealant can show that he was prevented
from making his appeal by FAME, his remedy is to file fo petition for relief asking the court to give due
course to his petition.

*If the appeal was perfected in time but notithstanding that, the appeal was denied the remedy is
petition for certiorary, because the appeal was filed in time and the dismissal is with grave abuse of
discretion.

*But if it was filed beyond 15 days but the appealant was prevented from filing his appeal by FAME and
his appeal was dissmissed the remedy is to file a petition for relief showing that he was prevented from
filing his appeal on time by FAME and so he will ask the court to give due course to his appeal.

Distinctions between petition for relief from judgement and motion for new trial:

1. A motion for new trial is filed is filed before the judgment becomes fina, a petition for relief is filed
after finality of judgment within 60 days from knowledge of judgment but wihtin 6 nmonths from entry
of judgment.

2.As to the grounds, in Motion for new trial FAME can include newly discored evidence, you cannot file a
petition on grouns of newly discovered evidence.

3. If MNT is denied the remedy is appeal, if PRJ is denied there is no appeal

4.MNT needs no verification, PRJ requires verification.

5. MNT is a legal remedy PRJ is a remedy in equity, whiche means that you can only file this if you have
lost the remedy of new trial or appeal without your own neglect or fault.

EXECUTION

You execute means you enfoce the judgment.

Only a judgment or a final order can be a subject of execution. an interlocutory order can not be
executed.

Final order v. Interlocutory order

A final order puts an end to a case, it finally resolves a case, it disposes of the case.

An interlocutoy order does not end a case.

*An order denying a motion to dismiss is interlocutory, because it does not end the case. An order
dismissing the case is a final oreder, because it ends the case.

*May a final order that is not yet final be the subject of Execution?

Yes, execution pending appeal/ discretionary execution/ exceptional execution.

*If the judgement is final and your going to execute it, what is the kind of execution?
It is compulsory execution or execution as a matter of right.

May an interlocutory order be the subject of execution?

No,except an order for support pendente lite.

*X files a complaint against the Y against support and the relationship is not disputed, and the court
issued an order for support pendente lite(support while the case is pending). Suppose Y did not comply
with the order what are the remedies of X?

1. File a motion for execution

2.File a motion to sight Y in contempt

3. Or file both motions

*The preveailing party asking for execution is called the judgment obligee, the one who has an obligation
to perform on the judgment is called the judgment obligor.

How to execute a Judgement

1. By means of a motion

the judgment obligee files a motion for execution in court, within 5 years from the entry of
judgment.

2. By means of an action

the judgment obligee must file an action to revive the judgment, within 10 years but after 5
years from entry of judgement(Dormant Judgement) the enforcement may be enforce by means of an
action. Then the court will issue a judgment reviving the judgment and when it becomes final it can be
executedby means of motion or an action.

*After 10 years(Stale Judgment) you can not execute the judgment anymore, the judgement obligor can
file a motion to dismiss on the ground that the judgement has prescribed.

*The judgment(dispositive portion, discreta,fallo) of the decision orders the issuance of a writ of
execution, when the clerk of court saw it he issued a writ of execution under the seal of the court and
the writ will be implemented by the sherriff. Is the crek wrong in issuing the writ?

Yea, there are two ways to enforce an execution, by means of a motion/ by means of an action, the part
of the judgment that let a writ of execution be issued is mo correct, because it will now dispense the
requirement that the judgment obligee needs to file a motion for the execution of the judgment. The
issuance of the writ can not be incorporated in the judgment, otherwise that will violate the rules.

*In what court should th e motion be filed?

In the court of origin(trial cout).

X - judgment obligee Y - Judgement obligor

RTC rendered judgment against Y. The motion should be filed in the RTC
X - judgment obligee Y - Judgement obligor

RTC rendered judgment against Y, and Y appeals the judgment to CA. CA rendered a judgment against Y
and the judgment becomes final. Where to file the motion?

The motion should be filed with the court of origin which is the RTC.

When you file the motion for execution it shall be accompanied by a certified copy of the decision of the
CA and certificate of finality(entry of judgment by the CA).

*Suppose the RTC refuses or does not like to issue the writ of execution, what is your remedy?

The judgment obligee files a motion with the appelate court asking the appelate court to issue an order
directing the lower court to issue the writ of execution.

*Suppose the judgment obligee files a motion for execution with the trial court(the decision is not
appealed), but it refuses to issue the writ of execution, what is the remedy?

File a petition with the higher court, a Petition for mandamus compelling the lower court to issue the
writ of execution.

The issuance of the writ of execution is compellabe by mandamus, because it is a matter of right.

*If the judgment obligee files a motion for execution,is the judgment obligor entitled to notice of the
motion?

No the judgment obligor is not entitled to the notice of motion, except:

1. If the judgment is appealed, and the appeal is finally resolved, and the motion for execution is filed in
the court of origin.

2.Motion for execution pending appeal.