RULE 37- NEW TRIAL OR RECONSIDERATIONS

Sec. 1. Grounds of and period for filing motion for new trial or reconsideration

Garcia v. Court of Appeals, G.R. No. 169005, January 28, 2013

The assailed CA resolution upheld the general rule that the filing of a motion for extension of time to file a motion for reconsideration in the CA does not toll the fifteen-day period to appeal, citing Habaluyas Enterprises, Inc. v. Japson.32However, in previous cases we suspended this rule in order to serve substantial justice.33

The lawyers negligence without any participatory negligence on the part of the petitioner is a sufficient reason to set aside the resolution of the CA. (Barnes v. Padilla)

After a conscientious review, we hold that a suspension of the Rules is warranted in this case since the delay of one week and two days in the filing of the motion for reconsideration was not occasioned by negligence on the part of petitioners lawyer in charge of the case, the latter having a valid excuse to immediately take leave of absence in view of her fathers sudden demise. Additionally, the merits of the case impel us to adopt a more liberal stance. There is likewise no showing that the review sought is merely frivolous and dilatory. As we said in Barnes v. Padilla.

Fraud

Samonte v. Samonte, G.R. No. L-40683, June 27, 1975

The threshold issue in this appeal is whether or not the lower court committed a mistake in denying the motion filed by defendants-appellants Cayetano Samonte, et al. to set aside the judgment of the lower court approving the compromise agreement submitted by the parties-litigants.

A more incisive reading of Section 1, Rule 37 of the Rules of Court will reveal that only when a judgment is not yet final and therefore appealable may the aggrieved party move the trial court to set aside the judgment and grant new trial. However, when the judgment has already become final and executory because the period for perfecting the appeal has already prescribed, the aggrieved party can no longer avail himself of the remedy provided in Rule 37. It is by now a well established doctrine that a judgment of the court approving a compromise agreement is final and immediately executory.14In the words of the Supreme Court it is "right there and then writesfinishto the controversy."15The reason why a judgment based on a compromise agreement is final and immediately executory is that when the parties agree to settle their differences to end up a litigation and request the court to render judgment on the basis of their agreement, there is an implied waiver of their right to appeal from the judgment.16But of course there is an exception to this rule. A party to a compromise agreement may move to set it aside on the ground of fraud, mistake or duress in which case an appeal may be taken from the order denying the motion.17The question then is, under what provision of the Rules of Court can the judgment be set aside? Certainly not under Rule 37 for as earlier expounded said Rule 37 contemplates a judgment that is not yet final and is therefore still appealable.

Granting that defendants-appellants Cayetano Samonte, et al. were on time to set aside the judgment in question they have to show that there was fraud in the procurement of the judgment and not merely fraud in the original cause of action. Fraud in the procurement of a judgment means any trick or device which prevents the adversary from presenting defense or conceals from him pendency of action. The fraud must be perpetrated upon the Court in rendering the judgment, and it must also appear that there is a valid defense to the judgment. In the present case, the fraud was allegedly committed by the defendants-spouses Faustino Samonte and Lourdes Manuel when they made representation and assurances that the lease contract on the fishpond, the "Kay Katwiran" was to expire in 1972 when it actually expired in 1970 and it was because of such representation and assurances that defendants-appellants Cayetano Samonte, et al. entered into a compromise agreement with defendants-spouses Faustino Samonte and Lourdes Manuel. It is evident then that the alleged fraud was not employed in the procurement of the judgment. It was not perpetrated upon the court. It did not prevent the parties from having a trial or from presenting all of their case to court. If at all the alleged fraud could at most be considered intrinsic and not extrinsic. Extrinsic fraud is that where the alleged deceit was not on a matter raised, controverted or decided. The alleged representation and assurances made by the defendants-spouses Faustino Samonte and Lourdes Manuel that the lease on the fishpond the "Kay Katwiran" will expire in 1972 relates to a lease of the fishpond which was a matter raised and controverted in the pleadings of the parties. As a matter of fact, defendants-appellants Cayetano Samonte, et al. in their motion to set aside the judgment in question claim that the matter of lease of the fishpond the "Kay Katwiran" was discussed in the in-chambers meeting of the parties with the trial judge. Besides the claim of defendants-appellants Cayetano Samonte, et al. that they were the victims of fraud and misrepresentations in entering into a compromise agreement with the defendants-spouses Faustino Samonte and Lourdes Manuel appears to be baseless in the face of the admission of defendants-appellants Cayetano Samonte, et al. in their pleadings that they were in partnership with defendants-spouses Faustino Samonte and Lourdes Manuel over the lease of the fishponds, including the "Kay Katwiran" in which partnership defendant-appellant Cayetano Samonte took over as the manager after Raul Samonte died. As manager therefore of the partnership, he had every reason to know the period of the leases of the fishponds covered by the partnership. How could defendants-appellants Cayetano Samonte, et al. allege that they were defrauded in entering into the aforesaid compromise agreement?

Palanca v. American Food, G.R. No. L-22822, August 30, 1986

whether the respondent-appellee Director of Patents had correctly denied the petition to set aside the decision of June 14, 1961

Petitioner-appellant, in support of the first three assigned errors which she discussed jointly, argues that the acts committed by her former counsel, Atty. Bienvenido Medel, constitute fraud that would warrant the setting aside of the decision denying her application to register the controverted trademark. These acts, allegedly, are: his having kept her ignorant of the proceedings of the case; his having failed to file a memorandum after the hearing of the evidence before the Patent Office; his having failed to notify her of the adverse decision after receiving notice of it, of which decision she came to know only after five months from the time it was rendered; his having intentionally kept himself entirely out of her reach, thereby causing her to lose the right to appeal in due time and preventing her from informing counsel of the newly discovered evidence which might have changed the decision had it been timely presented. Petitioner-appellant also claims that the acts of her counsel also prevented her from presenting all her case before the Patent Office and deprived her of other available legal remedies. She claims, furthermore, that the acts and/or behavior of her counsel cannot be considered honest mistakes, but are fraudulent and deliberate lapses or omissions on his part, which cannot bind her as a client. She also claims that the Director of Patents erred in finding that the testimony of Ricardo Monfero during the hearing on the petition to set aside the decision was immaterial, because this witness precisely testified that the invoices relied upon by the Director of Patents in finding that respondent The American Food Manufacturing Company had been using the trademark at least since 1957 referred to the trademark "Lion-Tiger" of said respondent and not to the trademark in question, and so this testimony had directly refuted the basis of the findings of facts of the respondent Director.

Section 2 of Rule 38 of the Rules of Court provides that a judgment or order entered against a party through fraud, accident, mistake or excusable negligence may be set aside upon proper petition to that effect. Not every kind of fraud, however, is sufficient ground to set aside a judgment. This Court has held that only extrinsic or collateral, as distinguished from intrinsic, fraud is a ground for annulling a judgment.7Extrinsic fraud refers to any fraudulent act of the successful party in a litigation which is committed outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. On the other hand, intrinsic fraud refers to acts of a party in a litigation during the trial, such as the use of forged instruments on perjured testimony, which did not affect the presentation of the case, but did prevent a fair and just determination of the case.

The acts complained of by petitioner-appellant, even if assumed to be true and fraudulent, were all committed by her own counsel, and not by the successful party or opponent in the case. Hence, petitioner-appellant had not shown extrinsic fraud that would warrant the setting aside of the decision.

Negligence, mistake or fraud of one's own attorney is not ground for granting a new trial.

In order to obtain relief on this ground it must appear that the fraud was practiced or participated in by the judgment creditor, or his agent or attorney. The fraud must have been practiced upon the opposite party."

We find that respondent-appellee Director of Patents correctly ruled that the testimony of Ricardo Monfero, a witness presented by the petitioner-appellant during the hearing on the petition to set aside the decision is immaterial to the issue of whether or not the decision should be set aside. This witness did not testify on any matter which would establish extrinsic fraud that would warrant the setting aside of the decision.

Accident

NFD International v. Illescas, G.R. No. 183054, September 29, 2010

Blacks Law Dictionarydefines accident as [a]n unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated, x x x [a]n unforeseen and injurious occurrence not attributable to mistake, negligence, neglect or misconduct.

The Philippine Law Dictionary defines the word accident as [t]hat which happens by chance or fortuitously, without intention and design, and which is unexpected, unusual and unforeseen.

Accident, in its commonly accepted meaning, or in its ordinary sense, has been defined as: [A] fortuitous circumstance, event, or happening, an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens x x x. The word may be employed as denoting a calamity, casualty, catastrophe, disaster, an undesirable or unfortunate happening; any unexpected personal injury resulting from any unlooked for mishap or occurrence; any unpleasant or unfortunate occurrence, that causes injury, loss, suffering or death; some untoward occurrence aside from the usual course of events.

Although respondent may not have expected the injury, yet, it is common knowledge that carrying heavy objects can cause back injury, as what happened in this case. Hence, the injury cannot be viewed as unusual under the circumstances, and is not synonymous with the term accident as defined above.

Soloria v. De la Cruz, G.R. No. L-20738, January 31, 1966

Issues having been joined, the court a quo set the hearing of the case for June 8, 1962, notice of which was each furnished by registered mail to the respective counsels of record of the parties. On this scheduled hearing, neither respondents nor their counsel appeared; hence, the court a quo, upon motion, allowed petitioner De la Cruz to present his evidence ex parte and thereafter considered the case submitted for decision. A copy of this order was sent to respondents' counsel, which he received on August 8, 1962

Three (3) days after receipt of the above decision, counsel for respondents presented a motion to reconsider and set aside said decision and to allow them to cross-examine petitioners' witnesses and to present their own evidence in support of their claims and defenses, claiming that they were deprived of their day in court, because their failure to attend the scheduled hearing on June 8, 1962 was due to an accident since notice thereof was received only on June 14, 1962, which was six (6) days after said trial. This claim was supported by an affidavit, attached to the motion, of Atty. Dario R. Navarro, counsel of respondents, attesting to this fact. Said motion also reiterated and discussed the merits and validity of the special defenses set up in their answer which, if considered, will materially alter or change the result of said decision (Cf. Annex "B", petition, record, pp. 11-14).

We disagree with the above conclusion of the court a quo. It is not disputed that counsel for respondents (petitioners herein) did not receive notice of hearing on or before June 8, 1962, which was the scheduled date of trial; hence, they failed to attend said hearing. This circumstance, i.e. failure to attend trial for lack of advance notice, has been held in previous cases to constitute an "accident" within the meaning of Section 1, Rule 37, of the (old or revised) Rules of Court which, in turn, is a proper and valid ground to grant a new trial (Muerteguy vs. Delgado, 22 Phil. 109; Lavitoria vs. Judge of Court of First Instance of Tayabas, 32 Phil. 204; Villegas vs. Roldan, 76 Phil. 349). This rule (Rule 37) is applicable to cases filed in the Court of Agrarian Relations (Rule 20 of the Rules of Court of Agrarian Relations).

Where the movant has been deprived of his day in court through no fault or negligence on his part and because no notice of hearing was furnished him in advance so as to enable him to prepare for trial, the judgment or order is absolutely null and void for denying him his day in court, a constitutional right. In such case, the judgment or order suffers from an inherent procedural defect and is absolutely void. Under such circumstances, no showing of merits is necessary to support an application to have the order vacated (1 Freeman on Judgments, p. 599). (Valerio vs. Tan, 97 Phil. 558, 561.)

Affidavits of merits are not necessary when 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 of his own (Valerio vs. Tan, et al., G.R. No. L-6446, Sept. 19, 1955). (Navarro vs. Bello, L-11647, January 31, 1958; 54 O.G. 6588)

However, affidavits of merits are not necessary 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 because no notice of hearing was furnished him in advance so as to enable him to prepare for trial (Moran, Rules of Court, 1957 Ed., Vol. 1, p. 515; citing Valerio vs. Tan, G.R. No. L-6446, September 19, 1955). (Gattoe vs. Sarenas, L-11752, July 30, 1958.)

After all, the Rules allow a party to move for a new trial on the ground of unavoidable accident within the period for perfecting an appeal (Rule 37, Sec. 1), as the appellants have done; or even to ask relief within 60 days after learning of a judgment or order against them (Rule 28, sec. 3). That by greater diligence counsel could have avoided the court's rendering, and then setting aside, a decision, is no ground for refusing his clients a relief to which they are entitled. Especially so when the trial court had before it a record clearly showing that appellants herein were not heard through no fault of their own.

Mistake

Viking Industrial v. Court of Appeals, G.R. No. 143794, July 13, 2004

Litigation is a not a trial and error proceeding. A party who moves for a new trial on the ground of honest mistake must show that ordinary prudence could not have guarded against it. A new trial is not a refuge for the obstinate.

Petitioner refused to answer the petition because it was erroneously impleaded as Viking Trading Corporation, instead of Viking Industrial Corporation. Consequently, the court, upon motion of respondent, declared petitioner in default and allowed respondent to present his evidence ex parte.

Petitioner received a copy of the above judgment on August 9, 1996. However it did not interpose an appeal.

Concededly, as the trial court had aptly observed, summons and other court processes, before the amendment in the designation of the corporations name from Viking Trading Corporation to that of Viking Industrial Corporation, were received by agents of Viking Trading Corporation which turned out to be the same employees working for Viking Industrial Corporation.

The core issue in this case is whether petitioner filed its motion for new trial seasonably. Thus, it is imperative to determine whether it received a copy of the judgment by default only on January 9, 1999.

Petitioners honest mistake hardly qualifies as a ground for a new trial. Section 1 of Rule 37 of the 1997 Rules of Civil Procedure, as amended, provides:

SECTION 1, Grounds of and period for filing a motion for new trial or reconsideration. -- Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:

a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or

Definitely, petitioners reliance on honest mistake is misplaced. The mistake referred to above is one which ordinary prudence could not have guarded against. Here, the mistake petitioner committed is a mistake of law. Its lawyer believed that he should not file an answer because his client is erroneously impleaded. Had petitioners counsel reviewed more closely the 1997 Rules of Civil Procedure, as amended, particularly Section 4, Rule 10 and Section 1, Rule 16, he would not have committed a mistake which, unfortunately, binds his client. Those Rules are quoted below:

SEC. 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.

SEC. 1. Grounds. Within the time for but before filing of the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds.

a) That the court has no jurisdiction over the person of the defending party.

Clearly, petitioners counsel, instead of ignoring respondents petition, should have filed a motion to dismiss on the ground that the court has not acquired jurisdiction over its person as the summons (with a copy of the petition) served upon it is defective. Definitely, his invocation of honest mistake is misplaced. He could have prevented such mistake if only he is conversant with the Rules.

What we see in petitioners conduct is its obsession to exalt technicality over actuality. It is willing to close its eyes to reality if only to win its case through a technicality. Hence, in the end, it must suffer for its obstinacy.

Building Care v. Macaraeg, G.R. No. 198357, December 10, 2012 (Supra.)

Petitioners are in the business of providing security services to their clients. They hired respondent as a security guard beginning August 25, 1996, assigning her at Genato Building in Caloocan City.

the main issue for resolution is whether the CA erred in liberally applying the rules of procedure and ruling that respondent's appeal should be allowed and resolved on the merits despite having been filed out of time.

It is, however, an oft-repeated ruling that the negligence and mistakes of counsel bind the client. A departure from this rule would bring about never-ending suits, so long as lawyers could allege their own fault or negligence to support the clients case and obtain remedies and reliefs already lost by the operation of law.15 The only exception would be, where the lawyer's gross negligence would result in the grave injustice of depriving his client of the due process of law.16 In this case, there was no such deprivation of due process. Respondent was able to fully present and argue her case before the Labor Arbiter. She was accorded the opportunity to be heard. Her failure to appeal the Labor Arbiter's Decision cannot, therefore, be deemed as a deprivation of her right to due process.

When the Labor Arbiter's Decision became final, petitioners attained a vested right to said judgment. They had the right to fully rely on the immutability of said Decision. In Sofio v. Valenzuela,26 it was amply stressed that:

The Court will not override the finality and immutability of a judgment based only on the negligence of a partys counsel in timely taking all the proper recourses from the judgment. To justify an override, the counsels negligence must not only be gross but must also be shown to have deprived the party the right to due process.

In sum, the Court cannot countenance relaxation of the rules absent the showing of extraordinary circumstances to justify the same. In this case, no compelling reasons can be found to convince this Court that the CA acted correctly by according respondent such liberality.

Excusable Negligence

Multi-Trans Agency v. Oriental Assurance, G.R. no. 180817, June 23, 2009 One of the grounds for the granting of a new trial under Section 1 of Rule 37 of the 1997 Revised Rules of Civil Procedure is excusable negligence. It is settled that the negligence of counsel binds the client. This is based on the rule that any act performed by a counsel within the scope of his general or implied authority is regarded as an act of his client. Consequently, the mistake or negligence of counsel may result in the rendition of an unfavorable judgment against the client. We have, however, carved out exceptions to this rule; as where the reckless or gross negligence of counsel deprives the client of due process of law; or where the application of the rule will result in outright deprivation of the clients liberty or property; or where the interests of justice so requires and relief ought to be accorded to the client who suffered by reason of the lawyers gross or palpable mistake or negligence. In order to apply the exceptions rather than the rule, the circumstances obtaining in each case must be looked into. In cases where one of the exceptions is present, the courts must step in and accord relief to a client who suffered thereby.

Gross negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It examines a thoughtless disregard of consequences without exerting any effort to avoid them.

For a claim of counsels negligence to prosper, nothing short of clear abandonment of the clients cause must be shown.

Our pronouncement in Apex Mining, Inc. v. Court of Appealsapplies to this case:

If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the clients, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case. Similarly, when an unsuccessful party has been prevented from fully and fairly presenting his case as a result of his lawyers professional delinquency or infidelity the litigation may be reopened to allow the party to present his side. Where counsel is guilty of gross ignorance, negligence and dereliction of duty, which resulted in the clients being held liable for damages in a damage suit, the client is deprived of his day in court and the judgment may be set aside on such ground.

In view of the foregoing circumstances, higher interests of justice and equity demand that petitioners be allowed to present evidence on their defense. Petitioners may not be made to suffer for the lawyers mistakes and should be afforded another opportunity, at least, to introduce evidence on their behalf. To cling to the general rule in this case is only to condone rather than rectify a serious injustice to a party whose only fault was to repose his faith and entrust his innocence to his previous lawyers.

Spouses Que v. Court of Appeals, G.R. No. 150739, August 18, 2005

Instead, they now claim that since that petition was an offshoot of the trial courts Order declaring them in default for their counsels negligence, petitioners seek excuse from such negligence to avoid being deprived of property without due process of law. Petitioners also raise new matters regarding the merits of the trial courts Decision of 6 September 2000.

The issue is whether the Court of Appeals erred in dismissing petitioners petition.

Petitioners are not Entitled to Relief from Judgment Petitioners Failed to Prove Fraud,Mistake, or Excusable Negligence

Under Section 1, Rule 38[14] (Section 1), the court may grant relief from judgment only [w]hen a judgment or final order is entered, or any other proceeding is taken against a party in any court through fraud, accident, mistake, or excusable negligence xxx. In their petition for relief from judgment in the trial court, petitioners contended that judgment was entered against them through mistake or fraud because they were allegedly under the impression that Atty. Ranot had prepared and filed the necessary pleading. This is not the fraud or mistake contemplated under Section 1. As used in that provision, mistake refers to mistake of fact, not of law, which relates to the case. Fraud, on the other hand, must be extrinsic or collateral, that is, the kind which prevented the aggrieved party from having a trial or presenting his case to the court. Clearly, petitioners mistaken assumption that Atty. Ranot had attended to his professional duties is neither mistake nor fraud.

Admittedly, this Court has relaxed the rule on the binding effect of counsels negligence and allowed a litigant another chance to present his case (1) where [the] reckless or gross negligence of counsel deprives the client of due process of law; (2) when [the rules] application will result in outright deprivation of the clients liberty or property; or (3) where the interests of justice so require.

For a claim of counsels gross negligence to prosper, nothing short of clear abandonment of the clients cause must be shown

The Petition for Relief from Judgment was Filed Out of Time

Newly Discovered Evidence

Ybiernas v. Gabaldon, G.R. No. 178925, June 1, 2011

Finally, we find that a new trial based on newly discovered evidence is warranted. New trial is a remedy that seeks to temper the severity of a judgment or prevent the failure of justice. Thus, the Rules allows the courts to grant a new trial when there are errors of law or irregularities prejudicial to the substantial rights of the accused committed during the trial, or when there exists newly discovered evidence. The grant or denial of a new trial is, generally speaking, addressed to the sound discretion of the court which cannot be interfered with unless a clear abuse thereof is shown. This Court has repeatedly held that before a new trial may be granted on the ground of newly discovered evidence, it must be shown(1) that the evidence was discovered after trial;

(2) that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence;

(3) that it is material, not merely cumulative, corroborative, or impeaching; and

(4) the evidence is of such weight that it would probably change the judgment if admitted. If the alleged newly discovered evidence could have been very well presented during the trial with the exercise of reasonable diligence, the same cannot be considered newly discovered

Sec. 2. Contents of motion for new trial or reconsideration and notice thereof

Pangasinan Five Star Bus v. Spouses Barredo, G.R. No. 152714, August 10, 2006

Meantime, defendants received a copy of the decision of the court on May 19, 1997. They filed an unverified motion for reconsideration thereof, maintaining that the absence of their counsel during the April 22, 1997 trial was beyond their control. They prayed that the decision of the trial court be set aside and, in the interest of justice, that they be allowed to cross-examine the witnesses of the plaintiff and adduce evidence in their behalf.[11] However, defendants failed to append to their motion any affidavit of merit. It is true that when fraud, accident, mistake or excusable negligence is invoked as ground of a motion for new trial, it should be proved in the manner provided for proof of motions, i.e., by affidavits or depositions unless the court should direct that the matter be heard wholly or partly on oral testimony or depositions. It is also required that affidavits of merits be attached to the motion. A motion for new trial grounded on fraud, accident, mistake or excusable negligence should thus ordinarily be accompanied by two (2) affidavits:

1. one, setting forth the facts and circumstances alleged to constitute such fraud, accident, mistake, or excusable negligence; and 2. the other, an affidavit of merits, setting forth the particular facts claimed to constitute the movants meritorious cause of action or defense.

The reason for the first is quite obvious: it is to enable the court to determine if the movants claim of fraud, etc., is not a mere conclusion but is indeed borne out of the relevant facts. The reason for the second is equally evident: it would be useless, a waste of time, to set aside the judgment and reopen the case to allow the movant to adduce evidence when he has no valid cause of action or meritorious defense.

Where, therefore, a motion for new trial on the ground of fraud, etc., is unaccompanied by either or both affidavits, the motion ispro forma a scrap of paper, as it were, and will not interrupt the running of the period of appeal.

Tan v. Court of Appeals, G.R. No. 130314, September 22, 1998 (Supra.)

the main issue to be resolved:Whether xxx the omission [through] inadvertence of a notice of hearing of a motion for reconsideration filed with the trial court xxx is a fatal defect which did not stop the running of the period to appeal[,] thus rendering the assailed decision final [and] executory.

Section 4 of Rule 15 of the Rules of Court requires that notice of motion be served by the movant on all parties concerned at least three (3) days before its hearing. Section 5 of the same Rule provides that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion. A motion which does not meet the requirements of Section 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper which the clerk has no right to receive and the court has no authority to act upon. Service of copy of a motion containing notice of the time and place of hearing of said motion is a mandatory requirement and the failure of the movant to comply with said requirements renders his motion fatally defective.

In Sembrano v. Ramirez,[22] we declared that(A) motion without notice of hearing is a mere scrap of paper. It does not toll the running of the period of appeal. This requirement of notice of hearing equally applies to a motion for reconsideration. Without such notice, the motion is pro forma. And a pro forma motion for reconsideration does not suspend the running of the period to appeal.

In fine, the abovecited cases confirm that the requirements laid down in Sec. 5 of Rule 15 of the Rules of Court that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion, are mandatory. If not religiously complied with, they render the motion pro forma. As such the motion is a useless piece of paper that will not toll the running of the prescriptive period.

Sec. 3. Action upon motion for new trial or reconsideration

Sec. 4. Resolution of motion

Sec. 5. Second motion for new trial

See: Sec. 8, Rule 15

Cleofas v. St. Peter Memorial Park, G.R. No. 84905, February 1, 2000

On March 28, 1983, this Court set aside its decision of July 30,1979 and remanded the case to the trial court of Quezon City for new trial. In granting the second motion for new trial, this Court ratiocinated:

"It is neither a valid objection that the petitioners had previously been afforded the opportunity to present evidence which they failed to do during the trial. A second new trial is expressly authorized by the Rules if 'based on a ground not existing nor avoidable when the first motion was made' (Sec. 4, Rule 37, Rules of Court). As pointed out above, the circumstances surrounding the discovery of the evidence which the petitioners desire to present are adequate justification for the failure to make them available during the original trial, or in the new trial previously allowed.

Casalla v. People, G.R. No. 138855, October 29, 2002

For our resolution now is whether or not the Court of Appeals erred in denying the petition for review and the subsequent motion for reconsideration.

We have ruled in a number of cases that the requirements laid down in the Rules of Court, that the notice of hearing shall be directed to the parties concerned and shall state the time and place for the hearing of the motion, are mandatory.If not religiously complied with, they render the motionpro forma.As such the motion is a useless piece of paper that will not toll the running of the prescriptive period.

Under the present rules, the notice of hearing is expressly made a requirement. In the instant case, it is undisputed that the motion for reconsideration filed by petitioner with the Regional Trial Court did not contain any notice of hearing.It was thereforepro forma; hence, it did not suspend the running of the prescriptive period. This defect was not cured by the filing of a second motion for reconsideration, which is prohibited under the rules.

Petitioner claims that the requirement of a notice of hearing did not apply to the motion for reconsideration he filed before the Regional Trial Court, since it was acting only in its appellate jurisdiction.This is error, as the Rules of Court apply to all courts, except as otherwise provided by the Supreme Court.Regional Trial Courts are not precluded from conducting hearings on matters on which the parties need to be heard, even in the exercise of their appellate jurisdiction.

University of the East v. UE Employees Assoc., G.R. No. 179593, September 14, 2011

whether or not UEs second motion for reconsideration(MR)before the NLRC is a prohibited pleading

Indeed, a second MR as a rule, is generally a prohibited pleading.[24]The Court, however, does not discount instances when it may authorize the suspension of the rules of procedure so as to allow the resolution of a second motion for reconsideration, in cases of extraordinarily persuasive reasons[25]such as when the decision is a patent nullity.[26]

Time and again, the Court has upheld the theory that the rules of procedure are designed to secure and not to override substantial justice.[27]These are mere tools to expedite the decision or resolution of cases, hence, their strict and rigid application which would result in technicalities that tend to frustrate rather than promote substantial justice must be avoided.[28]

McBurnie v. Guanzon, G.R. Nos. 178034, 178117, 186984-85, October 17, 2013

At the outset, the Court emphasizes that second and subsequent motions for reconsideration are, as a general rule, prohibited. Section 2, Rule 52 of the Rules of Court provides that "no second motion for reconsideration of a judgment or final resolution by the same party shall be entertained." The rule rests on the basic tenet of immutability of judgments. "At some point, a decision becomes final and executory and, consequently, all litigations must come to an end."58

The general rule, however, against second and subsequent motions for reconsideration admits of settled exceptions. For one, the present Internal Rules of the Supreme Court, particularly Section 3, Rule 15 thereof, provides:

Sec. 3. Second motion for reconsideration. The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Courts declaration.x x x x (Emphasis ours)

In a line of cases, the Court has then entertained and granted second motions for reconsideration "in the higher interest of substantial justice," as allowed under the Internal Rules when the assailed decision is "legally erroneous," "patently unjust" and "potentially capable of causing unwarranted and irremediable injury or damage to the parties." In Tirazona v. Philippine EDS Techno-Service, Inc. (PET, Inc.),59we also explained that a second motion for reconsideration may be allowed in instances of "extraordinarily persuasive reasons and only after an express leave shall have been obtained."60In Apo Fruits Corporation v. Land Bank of the Philippines,61we allowed a second motion for reconsideration as the issue involved therein was a matter of public interest, as it pertained to the proper application of a basic constitutionally-guaranteed right in the governments implementation of its agrarian reform program. In San Miguel Corporation v. NLRC,62the Court set aside the decisions of the LA and the NLRC that favored claimants-security guards upon the Courts review of San Miguel Corporations second motion for reconsideration. In Vir-Jen Shipping and Marine Services, Inc. v. NLRC, et al.,63the Court en banc reversed on a third motion for reconsideration the ruling of the Courts Division on therein private respondents claim for wages and monetary benefits.

It is also recognized that in some instances, the prudent action towards a just resolution of a case is for the Court to suspend rules of procedure, for "the power of this Court to suspend its own rules or to except a particular case from its operations whenever the purposes of justice require it, cannot be questioned."64In De Guzman v. Sandiganbayan,65the Court, thus, explained:The rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Even the Rules of Court envision this liberality. This power to suspend or even disregard the rules can be so pervasive and encompassing so as to alter even that which this Court itself has already declared to be final, as we are now compelled to do in this case. x x x.

Sec. 6. Effect of granting of motion for new trial

Sec. 7. Partial new trial or reconsideration

Sec. 8. Effect of order for partial new trial

Sec. 9. Remedy against order denying a motion for new trial or reconsideration

Javellana, G.R. No. 158239, January 25, 2012 (Supra.) the denial of Javellanas motion for reconsideration left nothing more to be done by the RTC because it confirmed the dismissal of Civil Case No. 79-M-97. It was clearly a final order, not an interlocutory one. The Court has distinguished between final and interlocutory orders inPahila-Garrido v. Tortogo,[22]thuswise:

The distinction between a final order and an interlocutory order is well known. The first disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing more to be done except to enforce by execution what the court has determined, but the latter does not completely dispose of the case but leaves something else to be decided upon.An interlocutory order deals with preliminary matters and the trial on the merits is yet to be held and the judgment rendered.Thetesttoascertainwhetheror not an order or a judgment isinterlocutory or final is:does the order or judgment leave something to be done in the trial court with respect to the merits of the case?If it does, the order or judgment is interlocutory; otherwise, it is final.

And, secondly, whether an order is final or interlocutory determines whether appeal is the correct remedy or not. A final order is appealable, to accord with thefinal judgment ruleenunciated in Section 1, Rule 41 of theRules of Courtto the effect that appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable;[23]but the remedy from an interlocutory one is not an appeal but a special civil action forcertiorari. The explanation for the differentiation of remedies given inPahila-Garrido v. Tortogois apt:

xxx The reason for disallowing an appeal from an interlocutory order is to avoid multiplicity of appeals in a single action, which necessarily suspends the hearing and decision on the merits of the action during the pendency of the appeals. Permitting multiple appeals will necessarily delay the trial on the merits of the case for a considerable length of time, and will compel the adverse party to incur unnecessary expenses, for one of the parties mayinterpose as many appeals as there are incidental questions raised by him and as there are interlocutory orders rendered or issued by the lower court. An interlocutory order may be the subject of an appeal, but only after a judgment has been rendered, with the ground for appealing the order being included in the appeal of the judgment itself. The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action under Rule 65, provided that the interlocutory order is rendered without or in excess of jurisdiction or with grave abuse of discretion. Then iscertiorariunder Rule 65 allowed to be resorted to. Indeed, the Court has held that an appeal from an order denying a motion for reconsideration of a final order or judgment is effectively an appeal from the final order or judgment itself; and has expressly clarified thattheprohibitionagainstappealinganorderdenyingamotionfor reconsideration referred only to a denial of a motion for reconsideration of an interlocutory order.[24]

RULE 38- RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

Sec. 1.Petition for relief from judgment, order, or other proceedings

Samonte v. Naguiat, G.R. No. 165544, October 2, 2009 Ex. of other proceedings- order of writ of execution, order dismissing an appeal The Court of Appeals did not err in ruling that no grave abuse of discretion was committed by the RTC in dismissing the petition for relief from judgment filed by petitioner therewith.

Sections 1 and 3 of Rule 38 of the Rules of Court provide the requirements for a petition for relief from judgment, thus:

SEC. 1.Petition for relief from judgment, order, or other proceedings. When ajudgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file apetition in such court and in the same case praying that thejudgment, order or proceeding be set aside.

SEC.3.Time for filing of petition;contents and verification. A petition for in either of the preceding sections of this rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, order, or other proceeding to be set aside, and not more than six (6) months after such judgment or order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. Relief from judgment under Rule 38 of the Rules of Court is a remedy provided by law to any person against whom a decision or order is entered into through fraud, accident, mistake or excusable negligence.The relief provided for is of equitable character, allowed only in exceptional cases as where there is no other available or adequate remedy.[6]When a party has another remedy available to him, which may either be a motion for new trial or appeal from an adverse decision of the lower court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking the appeal, he cannot avail himself of the relief provided in Rule 38. The rule is that relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence or a mistaken mode of procedure, otherwise the petition for relief will be tantamount to reviving the right of appeal which has already been lost either because of inexcusable negligence or due to a mistake in the mode of procedure by counsel.[7]

The mistake contemplated by Rule 38 of the Rules of Court pertains generally to mistake of fact, not of law, which relates to the case.[8]The word mistake which grants relief from judgment, does not apply and was never intended to apply to a judicial error which the court might have committed in the trial.[9]Such error may be corrected by means of an appeal.

He cannot be allowed to assail the RTC decision which had become final in a petition for relief from judgment when there was no allegations of fraud, accident, mistake, or excusable negligence which prevented him from interposing an appeal. Such appeal could have corrected what he believed to be an erroneous judicial decision.To reiterate, petition for relief is an equitable remedy that isallowed only in exceptional cases where there is no other available or adequate remedy[11]which is not present in petitioners case.Thus, petitioner's resort to a petition for relief under Rule 38 was not proper and the CA correctly ruled that the RTC did not commit grave abuse of discretion in denying the petition for relief from judgment.

Section 3, Rule 38 of the Rules of Court requires that the petition must be accompanied with affidavits of merits showing the fraud, accident, mistake, or excusable negligence relied upon by petitioner and the facts constituting the petitioner's good and substantial cause of action or defense as the case maybe. While a petition for relief without a separate affidavit of merit is sufficient where facts constituting petitioners substantial cause of action or defense, as the case may be, are alleged in a verified petition since the oath elevates the petition to the same category as a separate affidavit,[12]the petition for relief filed by petitioner was not even verified.Thus, the CA did not err in no longer considering the merits of the case.

Francisco v. Puno, G.R. No. L-55694, October 23, 1981

In other words, where, as in this case, another remedy is available, as, in fact, private respondent had filed a motion for new trial and/or reconsideration alleging practically the same main ground of the petition for relief under discussion, which was denied, what respondent should have done was to take to a higher court such denial. A party who has filed a timely motion for new trial cannot file a petition for relief after his motion has been denied. These two remedies are EXCLUSIVE of each other. It is only in appropriate cases where a party aggrieved by a judgment has not been able to file a motion for new trial that a petition for relief can be filed.

We hold that notice to counsel of the decision is notice to the party for purposes of Section 3 of Rule 38. The principle that notice to the party, when he is represented by a counsel of record, is not valid is applicable here in the reverse for the very same reason that it is the lawyer who is supposed Lo know the next procedural steps or what ought to be done in law henceforth for the protection of the rights of the client, and not the latter.

Redea v. Court of Appeals, G.R. No. 146611, February 6, 2007 (Supra.)

The present case will have to be decided in accordance with existing rules of procedure.We apply the settled principle that petition for relief under Rule 38 of the Rules of Court is of equitable character, allowed only in exceptional cases as when there is no other available or adequate remedy.[14]Hence, a petition for relief may not be availed of where a party has another adequate remedy available to him, which is either a motion for new trial or appeal from the adverse decision of the lower court, and he is not prevented from filing such motion or taking the appeal.The rule is that relief will not be granted to a party who seeks to be relieved from the effect of the judgment when the loss of the remedy at law is due to his own negligence, or a mistaken mode of procedure; otherwise, the petition for relief will be tantamount to reviving the right of appeal which has already been lost either because of inexcusable negligence or due to a mistake in the mode of procedure taken by counsel.[15]

Under Section 2 of Rule 38,supra,of the Rules of Court, a party prevented from taking an appeal from a judgment or final order of a court by reason of fraud, accident, mistake or excusable negligence, may file in the same court and in the same case a petition for relief praying that his appeal be given due course. This presupposes, of course, that no appeal was taken precisely because of any of the aforestated reasons which prevented him from appealing his case. Hence, a petition for relief under RULE 38 CANNOT BE AVAILED OF IN THE CA, the latter being a court of appellate jurisdiction. For sure, under the present Rules, petitions for relief from a judgment, final order or other proceeding rendered or taken should be filed in and resolved by the court in the same case from which the petition arose. Thus, petition for relief from a judgment, final order or proceeding involved in a case tried by a municipal trial court shall be filed in and decided by the same court in the same case, just like the procedure followed in the present Regional Trial Court.

Admittedly, this Court has relaxed the rule on the binding effect of counsels negligence and allowed a litigant another chance to present his case (1) where the reckless or gross negligence of counsel deprives the client of due process of law; (2) when application of the rule will result in outright deprivation of the clients liberty or property; or (3) where the interests of justice so require. None of these exceptions obtains here.

For a claim of counsels gross negligence to prosper, nothing short of clear abandonment of the clients cause must be shown. Here, petitioners counsel failed to file the appellants brief. While this omission can plausibly qualify as simple negligence, it does not amount to gross negligence to justify the annulment of the proceedings below.

To recapitulate, petitioner is not entitled to relief under Rule 38, Section 2 of the Rules of Court. He was not prevented from filing his notice of appeal by fraud, accident, mistake or excusable negligence, as in fact he filed one. The relief afforded by Rule 38 will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy of law was due to his own negligence, or a mistaken mode of procedure for that matter; otherwise, the petition for relief will be tantamount to reviving the right of appeal which has already been lost, either because of inexcusable negligence or due to a mistake of procedure by counsel. The Rules allow a petition for relief only when there is no other available remedy, and not when litigants, like the petitioner, lose a remedy by negligence.Spouses Dela Cruz v. Spouses Andres, G.R. No. 161864, April 27, 2007

Can petitioners avail of a petition for relief under Rule 38 of the1997 Rules of Civil Procedurefrom a judgment of the Court of Appeals due to their counsels negligence when he signed the Certification ofNon-Forum Shopping? A petition for relief from judgment under Rule 38 of the 1997 Rules of Civil Procedure is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy.[7] It may be availed of only after a judgment, final order or other proceeding was taken against the petitioner in any court through fraud, accident, mistake, or excusable negligence. While the law uses the phrase any court, it refers only to Municipal/Metropolitan and Regional Trial Courts. The procedure in the Court of Appeals and this Court are governed by separate provisions of the Rules of Court and may, from time to time, be supplemented by additional rules promulgated by this Court through resolutions or circulars. As it stands, neither the Rules of Court nor the Revised Internal Rules of the Court of Appeals allows the remedy of petition for relief in the Court of Appeals. For a claim of counsels gross negligence to prosper, nothing short of clear abandonment of the clientscausemust be shown.[12]The negligence of counsel must be so gross that the client is deprived of his day in court, the result of which is that he is deprived of his property without due process of law.Thus, where a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process.[13]Here, the case underwent a full-blown trial. Both parties were adequately heard, and all issues were ventilated before the decision was promulgated. It should be pointed out that in petitions for relief from judgment, meritorious defenses must be accompanied by the ground relied upon, whether it is fraud, accident, mistake, excusable negligence, extrinsic fraud or lack of jurisdiction.[14]In the instant case, there being neither excusable nor gross negligence amounting to a denial of due process, meritorious defenses cannot alone be considered.

Sec. 2. Petition for relief from denial of appeal

Redea v. Court of Appeals, G.R. No. 146611, February 6, 2007

See: Section 7, Rule 38

Sec. 3. Time for filing petition; contents and verification

Madarang v. Spouses Morales, G.R. No. 199283, June 9, 2014

A petition for relief from judgment is an equitable relief granted only under exceptional circumstances.1 To set aside a judgment through a petition for relief, parties must file the petition within 60 days from notice of the judgment and within six (6) months after the judgment or final order was entered; otherwise, the petition shall be dismissed outright.

If the petition for relief is filed on the ground of excusable negligence of counsel, parties must show that their counsels negligence could not have been prevented using ordinary diligence and prudence.2 The mere allegation that there is excusable negligence simply because counsel was 80 years old is a prejudicial slur to senior citizens. It is based on an unwarranted stereotype of people in their advanced years. It is as empty as the bigotry that supports it.

Whether the failure of petitioners former counsel to file the notice of appeal within the reglementary period is excusable negligence; Section 3, Rule 38 of the 1997 Rules of Civil Procedure states:Sec. 3. Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits, showing the fraud, accident, mistake or excusable negligence relied upon and the facts constituting the petitioners good and substantial cause of action or defense, as the case may be. (Emphasis supplied) The DOUBLE PERIOD required under Section 3, Rule 38 is jurisdictional and should be strictly complied with.26A petition for relief from judgment filed beyond the reglementary period is dismissed outright. This is because a petition for relief from judgment is an exception to the public policy of immutability of final judgments.27 This court set aside the order granting the petition for relief from judgment for having been filed beyond the double period required under Section 3, Rule 38 of the 1997 Rules of Civil Procedure. This court explained: A party filing a petition for relief from judgment must strictly comply with two (2) reglementary periods: (a) the petition must be filed within sixty (60) days from knowledge of the judgment, order or other proceeding to be set aside; and (b) within a fixed period of six (6) months from entry of such judgment, order or other proceeding. Strict compliance with these periods is required because provision for a petition for relief from judgment is a final act of liberality on the part of the State, which remedy cannot be allowed to erode any further the fundamental principle that a judgment, order or proceeding must, at some definite time, attain finality in order at last to put an end to litigation. In Turqueza v. Hernando, this Court stressed once more that:

. . . the doctrine of finality of judgments is grounded on fundamental considerations of public policy and sound practice that at the risk of occasional error, the judgments of courts must become final at some definite date fixed by law. The law gives an exception or last chance of a timely petition for relief from judgment within the reglementary period (within 60 days from knowledge and 6 months from entry of judgment) under Rule 38, supra, but such grave period must be taken as absolutely fixed, in extendible, never interruptedand cannot be subjected to any condition or contingency. Because the period fixed is itself devised to meet a condition or contingency (fraud, accident, mistake or excusable neglect), the equitable remedy is an act of grace, as it were, designed to give the aggrieved party another and last chance and failure to avail of such last chance within the grace period fixed by the statute or Rules of Court is fatal . . . .29 (Emphasis in the original)

It should be noted that the 60-day period from knowledge of the decision, and the 6-month period from entry of judgment, are both inextendible and uninterruptible. We have also time and again held that because relief from a final and executory judgment is really more of an exception than a rule due to its equitable character and nature, strict compliance with these periods, which are definitely jurisdictional, must always be observed.

Sec. 4. Order to file an answer

Sec. 5. Preliminary injunction pending proceedings

Mayuga v. Court of Appeals, G.R. No. 123899, August 30, 1996

Execution proceedings are not automatically stayed by the filing of a petition for relief from judgment. To stay execution, a writ of preliminary injunction should be obtained in accordance with Section 5 of Rule 38 which reads as follows:

"Sec. 5. Preliminary injunction pending proceedings.-- The court in which the petition is filed, or a judge thereof, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties pending the proceedings, upon the filing by the petitioner of a bond to the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner."

Indeed, the filing of a petition for relief from judgment presupposes that the judgment sought to be set aside is already final and executory. Unless restrained, it is the ministerial duty of the trial court to issue the writ of execution.

Neither are execution proceedings stayed by the perfection of the appeal from the order denying relief from judgment. In ordinary appeals, perfection of an appeal under Section 9 of Rule 41 divests the trial court of jurisdiction over its judgment and execution proceedings because the judgment has not yet attained finality.[26] An appeal from an order denying relief from judgment under Rule 38 is different. Here, the judgment is already final and executory and as aforestated, the only way by which execution could be suspended is by the issuance of a writ of preliminary injunction. No injunction was secured by petitioners.

Sec. 6. Proceedings after answer is filed

Miraflor v. Hon. Carpio-Morales, G.R. No. L-77568, December 14, 1988 Whether or not a Petition for Relief from Judgment filed under Rule 38, of the Rules of Court, can be grantedmotu propiowithout the necessity of a proper hearing as mandated by Section 6, Rule 38 of the same Rule. The Petition for Relief was definitely filed within the reglementary period but it was wanting in form and substance, as it lacked the required affidavit or affidavits of merit showing fraud, accident, mistake or excusable negligence. This fact is clearly confirmed by the respondent court in its Order (Annex "A") granting said petition, when it miserably tried to justify the same by invoking justice, fairness and trial on the merits instead on account of fraud, accident, mistake or excusable negligence. But even assuming that the Petition for Relief was sufficient in form and substance, the respondent Judge should have conducted the necessary hearing to determine the truth of the allegation contained in the petition as required by Sec. 6 of Rule 38 which reads:Sec. 6. Proceedings after the answer is filed.Once the answer is filed, or the time for its filing has expired, the court shall hear the petition and if after such hearing, the court finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall order the judgment, order or other proceeding complained of to be set aside, upon such terms as may be just, and thereafter the case shall stand as if the judgment, order or other proceeding set aside had never been issued or taken. The respondent Judge therefore committed an error inmotu propio, granting the Petition for Relief of private respondents and outrightly setting aside her decision and ordering plaintiff to turn over the proceeds of the sale at public auction of the levied upon property to the private respondents on the basis of said petition alone without the benefit of hearing as mandated by the Rules.

Sec. 7. Procedure where the denial of an appeal is set aside