RULE 42 Flashcards
(10 cards)
HOW MAY AN APPEAL VIA RULE 42 TAKEN UNDER THE ROC
the party desiring to appeal from a decision of the RTC rendered in the exercise of its appellate jurisidiction may:
- file a verified petition for review with the CA
a. within 15 days from notice of its decision
b. within 15 days from denial of petitioner’s motion for New Trial or MR - Pay the corresponding docket and other lawful fees and depositing 500 for cost; and
- furnish the RTC and the adverse party with a copy of the petition and together with the petition proof of such service
What are the forms and content of petition for review
the verified petition shall be filed in one original copy and two copies with their annexes and shall:
1. state the full names of the parties to the case, without impleading the lower courts or judges either as petitioners or respondents
2. indicate the specific material dates showing that it was filed on time
3. set forth concisely a statement of the
a. matter involved
b. issues raised
c. specifications of errors of fact or law, or both, allegedly committed by the rtc; and
d. reasons or arguments relied upon for the allowance of the appeal
4. accompanied by clearly legible duplicate originals or true copies of the judgment or final orders of both lower court, certified correct by the clerk of court of RTC, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition.
5. contain a certificate of forum shopping
What may be the actions of the CA on the Petition under Rule 42?
The CA may:
1. Require the respondent to file a comment on the petition, not a motion to dismiss, within 10 days from the notice
2.Dismiss the petition if it finds the same to be:
a. patently without merit
b.prosecuted manifestly for delay
c. if the questions to be raised therein are too unsubstantial to require consideration.
what are the contents of the comment of the respondent?
comment of the respondent shall be filed in one original copy and two copies, accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and shall:
1. shall state whether or not he accepts the statement of matters involved in the petition
2. point out of such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters but without petition
3. state the reasons why the petition should not be given due course
when is appeal deemed perfected as to the petitioner?
upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner
when does the RTC loses jurisdiction over the case?
upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties
when will the RTC retain residual jurisdiction despite perfection of appeal under rule 42
BEFORE the CA gives due course to the petition, the RTC has residual jurisdiction issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permits appeal of indigent litigants, order execution pending appeal and allow withdrawal of appeal.
what is the effect if the petition is given due course?
if the petition given due course:
1. the case may be set for oral argument
2. the parties may be required to submit memoranda within 15 days from notice
May the CA consider issues not raised on appeal?
NO. Issues raised for the first time on appeal will not be entertained because to so would be anathema to the rudiments of fairness and due process
Cite instances where the court consider issues not raised on appeal in these instances:
Thus, an appellate court is clothed with ample authority to review rulings even if they are not assigned as errors in the appeal in these instances:
(a) grounds not assigned as errors but affecting jurisdiction over the subject matter;
(b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law;
(c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice;
(d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored;
(e) matters not assigned as errors on appeal but closely related to an error assigned; and
(f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent
