CIVIL PROCEDURE
PART 1: JURISDICTION II. SPECIFIC JURISDICTION
DEFINITION
• Power of the court to hear an action or
proceedings, and to render a judgment thereon
which will bind the parties to such action/
proceeding. [Regalado]
• Judicial power includes the duty of the courts of
justice: [Art 8, Sec. 1, Consti]
1) To settle actual controversies involving
rights which are legally demandable and
enforceable;
2) To determine WON there has been a
GADALEJ on the part of any government
branch/instrumentality.
I. PRESCRIBED JURISDICTION
• Jurisdiction over a particular subject matter.
• Conferred only by the Constitution or by law.
• Determined by the allegations in the complaint.
• An error in jurisdiction can be raised at any
time and even for the first time on appeal.
[David v. Cordova (2005)]
• Cannot be waived; Judgment without
jurisdiction is void.
• Exception: Jurisdiction by estoppel.
[Soliven v. Fastforms (2004)]
• Rationale: To prohibit parties from
accepting judgments of court only if
favorable to them.
• Cannot be the subject of compromise [Art.
2035, CC]
• Once attached to a court, cannot be ousted by
subsequent statute.
• Exception: The statute itself conferring
new jurisdiction expressly provides for
retroactive effect. [Southern Food v. Salas
(1992)]
• The filing of the complaint or appropriate
initiatory pleading and the payment of the
prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the
nature of the action.
• Exception: The court may allow payment
of the fee within a reasonable time, but in
no case beyond the applicable prescriptive
period. [IBP v. Legasto (2006)]
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SUPREME COURT
• The judicial power shall be vested in one SC
and in such lower courts as may be established
by law. [Art. 8, Sec. 1, Consti]
SC’S POWERS [Art. 8, Sec. 5, Consti]
1) Have original jurisdiction over:
a) Cases affecting ambassadors and other
public ministers and consuls;
b) Petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas
corpus.
2) Review/revise/reverse/modify/affirm on appeal
or certiorari, final judgments/orders of lower
courts on:
a) Constitutionality/validity of any treaty,
international or executive agreement, law,
presidential decree/proclamation/order/
instruction, ordinance or regulation;
b) Legality of any tax/impost/assessment/toll,
or any penalty imposed in relation thereto;
c) Any lower court’s jurisdiction;
d) Criminal cases where the penalty imposed
is reclusion perpetua or higher;
e) Only errors/questions of law are involved.
• Exception: [Josefa v. Zhandong
(2003)]
(1) The conclusion is grounded on
speculations/surmises/conjectures;
(2) The inference is manifestly
mistaken/absurd/impossible;
(3) There is GAD;
(4) The judgment is based on a
misapprehension of facts;
(5) The findings of fact are conflicting;
(6) There is no citation of specific
evidence on which the factual
findings are based;
(7) The finding of absence of facts is
contradicted by the presence of
evidence on record;
(8) The CA’s findings are contrary to
those of the trial court;
(9) The CA manifestly overlooked
certain relevant and undisputed
facts that, if properly considered,
would justify a different conclusion;
(10) The CA’s findings are beyond the
issues of the case;
(11) The CA’s findings are contrary to
the admissions of both parties.
3) Temporarily assign judges of lower courts to
other stations as public interest may require,
which shall not 6 six months without the
consent of the judge concerned.
4) Order a change of venue or place of trial to
avoid a miscarriage of justice.
5) Promulgate rules on:
a) Protection and enforcement of constitutional
rights;
b) Pleading/practice/procedure in all courts;
c) Admission to the practice of law;
d) The integrated bar;
e) Legal assistance to the under-privileged.
• Guidelines on the rules:
(1) Simplified and inexpensive procedure
for the speedy disposition of cases;
(2) Uniform for all courts of the same
grade;
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 CIVIL PROCEDURE
(3) Not diminish/increase/modify
substantive rights.
6) Appoint all Judiciary officials/EEs in accordance
with the Civil Service Law.
CONSTITUTIONAL COMMISSSIONS
• General rule: Decisions/orders/rulings of
constitutional commissions (CSC, COMELEC
and COA) may be brought to the SC on
certiorari by the aggrieved party, within 30
days from receipt of copy. [Art. 9-A, Sec. 7,
Consti]
• Exception: If otherwise provided by the
Constitution or by law.
• CSC judgments/decisions/orders are
within the exclusive appellate
jurisdiction of the CA through Rule 43.
[RA 7902]
• CTA judgments/decisions are now
appealable by petition for review on
certiorari to the SC. [RA 9282]
COURT OF APPEALS [Sec. 9, BP 129]
ORIGINAL JURISDICTION
• Mandamus, prohibition, certiorari, habeas
corpus and quo warranto, and auxiliary
writs/processes, WON in aid of its appellate
jurisdiction.
EXCLUSIVE ORIGINAL JURISDICTION
• Annulment of RTC judgments.
EXCLUSIVE APPELLATE JURISDICTION
• Final judgments/decisions/resolutions/orders/
awards of:
1) RTC;
2) Quasi-judicial agencies/instrumentalities/
boards/commissions including:
a) SEC;
b) Social Security Commission;
c) ECC;
d) CSC.
• Exception: Those falling within the
SC’s appellate jurisdiction of the
Supreme Court in accordance with:
(1) The Constitution;
(2) Labor Code;
(3) BP 129;
(4) Sec. 17, Par. 3(1) and Par. 4(4) of
the Judiciary Act of 1948.
• Supposed appeals from the NLRC to the SC are
interpreted and hereby declared to mean and
refer to petitions for certiorari under Rule 65.
All such petitions should henceforth be initially
filed in the CA in strict observance of the
doctrine on the hierarchy of courts as the
appropriate forum for the relief desired. [St.
Martin’s Funeral Home v. NLRC (1998)]
POWERS
1) Try cases;
2) Conduct hearings;
• Trials/hearings must be continuous and
must be completed within 3 months, unless
extended by the Chief Justice.
3) Receive evidence;
4) Any and all acts necessary to resolve factual
issues raised, including the power to grant and
conduct new trials or further proceedings.
REGIONAL TRIAL COURTS
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EXCLUSIVE ORIGINAL JURISDICTION IN CIVIL
CASES [Sec. 19, BP 129]
1) Incapable of pecuniary estimation;
• If the action is primarily for the recovery of
a sum of money, the claim is considered
capable of pecuniary estimation, and
jurisdiction over the action will depend on
the amount of the claim. [RCPI v. CA
(2002)]
• If the basic issue is something other than
the right to recover a sum of money, if the
money claim is purely incidental to, or a
consequence of, the principal relief sought,
the action is one where the subject of the
litigation may not be estimated in terms of
money. [Soliven v. Fastforms (1992)]
• If the thing sought to be deposited or
consigned is a sum of money, the amount
of the debt due is determinable and
capable of pecuniary estimation. [Ascue v.
CA (1991)]
• Action for support is incapable of pecuniary
estimation because the court is asked to
determine first WON the plaintiff is indeed
entitled to support. [Baito v. Sarmiento
(1960)]
• Action for specific performance is incapable
of pecuniary estimation. [Manufacturer’s
Distributor’s v. Yu Siu Liong (1966)]
• The jurisdiction of the respective courts is
determined by the value of the demand
and not the value of the transaction out of
which the demand arose. The alternative
prayer for specific performance is also of
the same value, for the alternative prayers
would not have been made in the complaint
if one was more valuable than the other.
[Cruz v. Tan (1950)]
• Rescission is a counterpart of specific
performance therefore also incapable of
pecuniary estimation. [Lapitan v. Scandia
(1968)]
• Action for declaration of nullity of a deed of
partition is incapable of pecuniary
estimation. [Russel v. Vestil (1999)]
• An action for expropriation is incapable of
pecuniary estimation. [Bardillon v. Masili
(2003)]
2) Title to, or possession of, real property (or any
interest therein) where the property’s assessed
value exceeds P20K or P50K (for civil actions in
Metro Manila);
• Exception: Forcible entry into and
unlawful detainer of lands/buildings.
3) Admiralty and maritime jurisdiction where the
demand/claim exceeds P300K or P400K (in
Metro Manila);
• Maritime and admiralty cases involve trade
and transactions in the sea. Maritime
jurisdiction includes maritime tort. [Negre
v. Cabahug (1966)]
4) Probate (testate and intestate) where the gross
value of the estate exceeds P300K or P400K (in
Metro Manila);
5) Marriage contract and marital relations;
6) GENERAL ORIGINAL JURISDICTION - All
cases not within the exclusive jurisdiction of
any court/tribunal/person/body exercising
judicial or quasi-judicial functions;
7) Within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of
the Court of Agrarian Relations;
8) All other cases where the demand (exclusive of
interest, damages of whatever kind, attorney's
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 CIVIL PROCEDURE
fees, litigation expenses and costs) or the value
of the property in controversy exceeds P300K
or P400K in Metro Manila.
• The exclusion of the term “damages of
whatever kind” in determining the
jurisdictional amount under Sec. 19(8) and
Sec. 33 (1) of BP 129, as amended by RA
7691, applies to cases where the damages
are merely incidental to or a consequence
of the main cause of action. However, if
the claim for damages is the main cause of
action, or one of the causes of action, the
amount of such claim shall be considered in
determining the jurisdiction of the court.
[Admin Circ. 09-94]
• Actions for damages based on quasi-
delicts are primarily and effectively actions
for the recovery of a sum of money for the
damages suffered because of the
defendant’s alleged tortious acts. This
money claim is the principal relief sought,
and is not merely incidental thereto or a
consequence thereof. [Iniego v. Purganan
(2006)]
ORIGINAL JURISDICTION [Sec. 21, BP 129]
1) Certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction which
may be enforced in any part of their respective
regions;
2) Actions affecting ambassadors and other public
ministers and consuls.
APPELLATE JURISDICTION [Sec. 22, BP 129]
• All cases decided by MeTCs/MTCs/MCTCs in
their respective territorial jurisdictions.
METROPOLITAN, MUNICIPAL AND
MUNICIPAL CIRCUIT TRIAL COURTS
EXCLUSIVE ORIGINAL JURISDICTION [Sec. 33, BP
129]
1) Civil actions and probate proceedings (testate
and intestate), including the grant of provisional
remedies, where the value of the personal
property, estate or amount of the demand does
not exceed P300K or P400K (in Metro Manila);
• Interest, damages of whatever kind,
attorney's fees, litigation expenses and
costs shall be included in the determination
of the filing fees.
• If there are several claims or causes of
actions between the same/different parties
in the same complaint, the amount of the
demand shall be the totality of the claims in
all the causes of action, WON the causes of
action arose out of the same/different
transactions.
2) Forcible entry and unlawful detainer;
• If the defendant raises the question of
ownership in his pleadings and the question
of possession cannot be resolved without
deciding the issue of ownership, the issue of
ownership shall be resolved only to
determine the issue of possession.
• That the MeTC has jurisdiction even in
cases where the issue of possession is
closely intertwined with the issue of
ownership is now a settled doctrine in
ejectment proceedings. [Heirs of B.
Hernandez v. Vergara (2006)]
3) All civil actions that involve title to, or
possession of, real property (or any interest
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therein) where the assessed value of the
property (or interest therein) does not exceed
P20K or P50K (in civil actions in Metro Manila).
DELEGATED JURISDICTION IN CADASTRAL AND
LAND REGISTRATION CASES [Sec. 34, BP 129]
1) Lots where there is no controversy/opposition;
2) Contested lots the value of which does not
exceed P100K.
• The value is to be ascertained:
a) By the claimant’s affidavit;
b) By agreement of the respective
claimants, if there are more than one;
c) From the corresponding tax declaration
of the real property.
• MTC decisions in cadastral and land
registration cases are appealable in the same
manner as RTC decisions.
KATARUNGANG PAMBARANGAY
• Purpose: To reduce the number of court
litigations and prevent the deterioration of the
quality of justice which has been brought about
by the indiscriminate filing of cases in the
courts. [Lumbuan v. Republic (2006)]
• General rule: Authority to bring together the
parties actually residing in the same city or
municipality for amicable settlement of all
disputes. [Sec. 480, RA 7160]
• Exception:
1) If one party is the government;
2) If one party is a public officer/EE and
the dispute relates to the performance
of his official functions;
3) Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5K;
4) Offenses with no private offended
party;
5) Real properties located in different
cities/municipalities;
• Exception to exception: Parties
agree to submit their differences to
amicable settlement by an
appropriate lupon.
6) Parties who actually reside in
barangays of different
cities/municipalities;
• Exception to exception: If such
barangay units adjoin each other
and the parties agree to submit
their differences to amicable
settlement by an appropriate lupon.
7) Such disputes which the President may
determine in the interest of justice or
upon the recommendation of the
Secretary of Justice.
VENUE [Sec. 409, RA 7160]
Disputes between persons Their barangay
actually residing in the
same barangay
Disputes between actual Barangay where the
residents of different respondent (or any of the
barangays within the same respondents) actually
city/municipality resides, at the
complainant's election
Disputes on real property Barangay where the real
(or any interest therein) property (or the larger
portion thereof) is situated
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Disputes arising at the Barangay where the

workplace or at the workplace or institution is
PART 2: ORDINARY CIVIL ACTIONS
institution where the parties located
are enrolled
I. PRELIMINARIES
PROCEDURE FOR AMICABLE SETTLEMENT [Sec.
410, RA 7160]
• Any individual who has a cause of action
against another individual may complain (orally A. ACTIONS, IN GENERAL
or in writing) to the barangay’s lupon
chairperson.
• Within the next working day, the lupon DEFINITION
chairperson shall summon the respondents,
with notice to the complainants, for them and • ACTION – An ordinary suit in a court of justice
their witnesses to appear before him for by which one party prosecutes another for the
mediation. If the mediation effort fails within 15 enforcement/protection of a right or the
days from the 1st meeting, he shall set a date prevention/redress of a wrong.
for the constitution of the pangkat.
• While the dispute is under mediation, the KINDS OF ACTIONS
prescriptive periods for offenses and causes of 1) CRIMINAL ACTION – One by which the State
action shall be interrupted upon filing the prosecutes a person for an act/omission
complaint with the punong barangay. Such punishable by law. [Rule 1, Sec. 3(b)]
interruption shall not exceed 60 days from the 2) CIVIL ACTION – One by which a party
filing of the complaint with the punong prosecutes another for the
barangay. enforcement/protection of a right or the
• The prescriptive periods shall resume upon prevention/redress of a wrong. [Rule 1, Sec.
receipt by the complainant of the complaint or 3(a)]
the certificate of repudiation or of the a) Ordinary;
certification to file action issued by the lupon or b) Special.
pangkat secretary.
• The pangkat shall arrive at a Action Special
settlement/resolution of the dispute within 15 Proceeding
days from the day it convenes, extendible for As to parties Involves 2 or Involves at least 1
another period which shall not exceed 15 days, more parties party or 2 or more
parties in proper
except in clearly meritorious cases.
cases
As to cause of Involves a right May involve a
EFFECT [Sec. 416, RA 7160] action and a violation of right, but there
• General rule: Same as a court’s final such right by the need not be a
judgment, upon the expiration of 10 days from defendant which violation of this
the date thereof. causes some right
• Exception: damage/prejudice
1) If the settlement was repudiated: upon the plaintiff
• By any party, within 10 days from the As to Requires the Requires no such
formalities application of formalities, as it
date of the settlement;
legal remedies in may be granted
• By filing with the lupon chairperson a accordance with upon application
statement to that effect, sworn to the prescribed
before him; rules
• Where the consent is vitiated by As to Ordinary rules of Special rules of
fraud/violence/intimidation; governing procedure procedure
• Where there is sufficient basis for the rules
issuance of the certification for filing a As to appeal Cannot be directly Can be
complaint. from an and immediately immediately and
interlocutory appealed to the directly appealed
2) If a petition to nullify the award was filed
order appellate court to the appellate
before the proper city/municipal court. until after final court
judgment on the
EXECUTION [Sec. 417, RA 7160] merits
• By the lupon, within 6 months from the date of
the settlement.
• After the lapse of the 6 months, by action in CLASSIFICATION OF ACTIONS
the appropriate city/municipal court.
• As to nature:

Ordinary civil action Special civil action

Governed by ordinary Also governed by ordinary
rules rules but subject to
specifically prescribed rules
(Rules 62 to 71)

• As to object:

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Action in rem Action in Action

• As to cause:
personam quasi in rem
Directed against Directed against Directed against
Real action Personal Mixed action
the thing itself particular particular
action
persons persons
Ownership or Personal Both real and
Jurisdiction over Jurisdiction over Jurisdiction over
possession of property is personal
the person of the person of the person of
real property is sought to be properties are
the defendant is the defendant is the defendant is
involved recovered or involved not required required not required as
damages for
long as
breach of jurisdiction over
contract are
the res is
sought acquired
Founded on Founded on Founded on
A proceeding to An action to A proceeding to
privity of real privity of both determine the impose subject the
estate contract
state/ responsibility/ interest of a
Filed in the Filed in the The rules on condition of a liability upon a named
court where the court where the venue of real thing person directly defendant over
property (or plaintiff or any actions govern a particular
any portion of the property to an
thereof) is defendants obligation/lien
situated resides, at the burdening it
plaintiff’s option
Judgment is Judgment is Judgment is
Ex: Accion Ex: Action for a Ex: Accion binding on the binding only binding upon
reivindicatoria sum of money publiciana with whole world upon parties particular
a claim for impleaded or persons
damages their successors
in interest
• As to place of filing: Ex: Accion Ex: Action for Ex: Action for
reivindicatoria; specific partition; action
Local action Transitory action annulment of performance; to foreclose real
One that could be One that could be marriage; action to estate
instituted in one specific prosecuted in any one of naturalization recover money mortgage
place several places proceedings or property
(real or
personal)

B. CAUSE OF ACTION man shall be twice vexed for one and

the same cause);
3) To avoid the costs and expenses
DEFINITION incident to numerous suits.

• CAUSE OF ACTION – The act/omission by EFFECTS OF SPLITTING A CAUSE OF ACTION [Rule

which a party violates a right of another. [Rule
2, Sec. 2]
ELEMENTS OF A CAUSE OF ACTION
1) Plaintiff’s legal right;
2) Defendant’s correlative obligation to respect
plaintiff’s right;
3) Defendant’s act/omission in violation of
plaintiff’s right.
• Every ordinary civil action must be based on a
cause of action [Rule 2, Sec. 1]
• A cause of action stems from the sources of
obligations under Art. 1156, CC (law, contract,
quasi-contract, acts and omissions punishable
by law and quasi-delict).
SPLITTING OF CAUSE OF ACTION
• Definition: The act of dividing a single or
indivisible cause of action into several parts or
claims and bringing several actions thereon. It
is not allowed.
• A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3]
• Purpose: [City of Bacolod v. SM Brewery]
1) To prevent repeated litigation between
the same parties in regard to the same
subject or controversy;
2) To protect the defendant from
unnecessary vexation. Nemo debet
vexare pro una et eadem causa (No
2, Sec. 4]
1) Filing of the 1st complaint may be pleaded in
abatement of the 2nd complaint, on the ground
of litis pendentia; or
2) A judgment upon the merits in any of the
complaints is available as a bar in the others,
on ground of bar by former judgment or res
judicata.
3) A MTD under Rule 16 Sec. 1(e) or (f) may be
filed in order that the complaint may be
dismissed.
• A single act/omission can be violative of
various rights at the same time, as when the
act constitutes juridically a violation of several
separate and distinct legal obligations.
However, where there is only one delict/wrong,
there is but a single cause of action regardless
of the number of rights that may have been
violated belonging to one person.
The singleness of a cause of action lies
in the singleness of the delict/wrong violating
the rights of a person. If only 1 injury resulted
from several wrongful acts, only 1 cause of
action arises. [Joseph v. Bautista (1989)]
• For a single cause of action or violation of a
right, the plaintiff may be entitled to several
reliefs. It is the filing of separate complaints for
these several reliefs that constitutes splitting up
of the cause of action which is proscribed by
Rule 2, Sec. 3 and 4. [City of Bacolod v. SM
Brewery (1969)]

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JOINDER OF CAUSES OF ACTION (2) A political party incorporated under Act

1459 [now BP 68 (Corporation Code)];
• If the plaintiff has several causes of action (3) A registered labor union [Sec. 243, PD
against the same defendant, he may join them 442 (Labor Code)], with respect to its
all in a single complaint, although he is not property.
obligated to do so. The joinder of causes of 2) He must have the legal capacity to sue;
action is not compulsory but purely permissive 3) He must be the real party in interest.
as the plaintiff can always file separate actions
for each cause of action. • The rule is that only natural or juridical persons
or entities authorized by law may be parties in
REQUISITES FOR JOINDER OF CAUSES OF ACTION a civil case. A sole proprietorship is not vested
[Rule 2, Sec. 5] with juridical personality and cannot sue or file
1) The party joining the causes of action must or defend an action. There is no law
comply with the rules on joinder of parties; authorizing sole proprietorship to file a suit. A
2) The joinder shall not include special civil actions sole proprietorship does not possess a judicial
or actions governed by special rules; personality separate and distinct from the
3) Where causes of action are between the same personality of the owner of the enterprise.
parties but pertain to different [Berman v. Cheng (2005)]
venues/jurisdictions, the joinder may be • An unlicensed foreign corporation is
allowed in the RTC provided one of the causes nonetheless permitted to bring suit in the
of action are within the RTC’s jurisdiction and Philippines if it is suing on an isolated
the venue lies therein; transaction. Thus, the ascertainment of
4) TOTALITY RULE - Where the claims in all the whether a foreign corporation is merely suing
causes of action are principally for recovery of on an isolated transaction or is actually doing
money, the aggregate amount claimed shall be business in the Philippines requires the
the test of jurisdiction. elicitation of at least a preponderant set of
• Note: The Totality Rule under Rule 2, Sec. facts. [Rimbunan v. Oriental (2005)]
5 seems to be inconsistent with the Totality • Note: A foreign corporation may be party
Rule under BP 129. Under the latter, where to an action in Philippine courts:
there are several claims or causes of actions 1) If licensed to engage in business in the
between the same/different parties, Philippines, it may sue or be sued in
embodied in the same complaint, the our courts;
amount of the demand shall be the totality 2) If not licensed, it cannot sue, but it
of the claims in all causes of actions, may be sued in our courts;
irrespective of whether the causes of action 3) If not engaged in business in the
arose out of the same/different Philippines, it may sue in courts on a
transactions. Remember that in statutory single isolated transaction, but it
construction, in case of conflict, substantive cannot be sued in our courts on such a
law prevails over procedural laws. transaction.
• The Roman Catholic Church has legal capacity
Splitting of cause of Joinder of causes of to sue. [Barlin v. Ramirez]
action action
There is a single cause of Contemplates several Lack of legal capacity to Lack of legal
action causes of action sue personality to sue
Prohibited Encouraged
It causes multiplicity of It minimizes multiplicity of The plaintiff’s general The plaintiff is not the
suits and double vexation suits and inconvenience to disability to sue, such as real party in interest
on the part of the the parties on account of minority,
defendant insanity, incompetence,
lack of juridical personality
MISJOINDER OF CAUSES OF ACTIONS [Rule 2, Sec. or any other general
6] disqualifications
• Misjoinder of causes of action is not a ground
for dismissal of an action. A misjoined cause of It can be a ground for a It can be used a ground
action may, on motion or motu propio, be MTD for a MTD based on the
fact that the complaint’s
severed and proceeded with separately.
face states no cause of
• There is no sanction against non-joinder of action.
separate causes of action since a plaintiff needs
only a single cause of action to maintain an
action.
PARTIES TO A CIVIL ACTION

C. PARTIES 1) PLAINTIFF – One having interest in the matter

of the action or in obtaining the relief
demanded.
REQUIREMENTS FOR A PERSON 2) DEFENDANT – One claiming an interest in the
TO BE A PARTY TO A CIVIL ACTION controversy or the subject thereof adverse to
the plaintiff. The term may also include:
1) He must be either: a) UNWILING CO-PLAINTIFF – A party who
should be joined as plaintiff but whose
a) A natural person;
b) A juridical person; or consent cannot be obtained. He may be
made a defendant and the reason therefore
c) An entity authorized by law.
(1) The estate of a deceased person; shall be stated in the complaint. [Rule 3,
Sec. 10]

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CIVIL PROCEDURE REMEDIAL LAW

b) The original plaintiff becoming a defendant
to the original defendant’s counterclaim;
c) One necessary to a complete determination
or settlement of the questions involved.
CLASSIFICATION OF PARTIES
1) REAL PARTY IN INTEREST - [Rule 3, Sec. 2]
a) The party who stands to be
benefited/injured by the judgment in the
suit;
b) The party entitled to the avails of the suit.
• The party’s interest must be direct,
substantial and material.
• Husband and wife shall sue and be sued
jointly, except as provided by law [Rule 3,
Sec. 4]
• A minor or a person alleged to be
incompetent may sue or be sued, with the
assistance of his father, mother, guardian,
or if he has none, a guardian ad litem. [Rule
3, Sec. 5]
2) REPRESENTATIVE PARTY – [Rule 3, Sec. 3]
• Those acting in fiduciary capacity, such as a
trustee/guardian/executor/administrator or
a party authorized by law or ROC.
• The beneficiary shall be included in the title
of the case and shall be deemed to be the
real party in interest.
• An agent acting in his own name and for the
benefit of an undisclosed principal may sue
or be sued without joining the principal.
• Exception: If the contract involves
things belonging to the principal. [Art.
1883, CC]
• Objections to defects in parties should be made
at the earliest opportunity. The moment such
defect becomes apparent, a motion to strike the
names of the parties must be made. Objections
to misjoinder cannot be raised for the first time
on appeal.
• If a necessary party is not joined, the pleading
shall set forth his name (if known) and shall
state reason why he is omitted. If court finds
the reason for the omission unmeritorious, it
may order the inclusion of the omitted
necessary party if jurisdiction over his person
may be obtained. Failure to comply with the
order for inclusion, without justifiable cause, is
deemed a waiver of the claim against such
party. [Rule 3, Sec. 9]
• Note: In Oposa v. Factoran, the minors
(represented by their parents) were held as real
parties in interest under the principle of
intergenerational responsibility. This doctrine is
inconsistent with Rule 3, Sec. 1 which provides
that only natural or juridical persons may be
parties in a civil action.
KINDS OF JOINDERS OF PARTIES
1) Compulsory joinder of indispensable parties;
[Rule 3, Sec. 7]
2) Permissive joinder of necessary parties; [Rule
3, Sec. 8]
3) Permissive joinder of parties simple (on a
common question of law or fact); [Rule 3, Sec.
6]
4) Class suit. [Rule 3, Sec. 12]
5) Alternative defendants; [Rule 3, Sec. 13]

KINDS OF PARTIES IN INTEREST PERMISSIVE JOINDER [Rule 3, Sec. 6]

• Parties can be joined, as plaintiffs or
Indispensable parties Necessary parties defendants, in one single complaint or may
[Rule 3, Sec. 7] [Rule 3, Sec. 8] themselves maintain or be sued in separate
Must be joined under Should be joined suits.
any and all conditions, whenever possible; the • Requisites:
his presence being a action can proceed even 1) Right to relief arises out of the same
sine qua non for the in their absence
transaction or series of transactions;
exercise of judicial
power
• SERIES OF TRANSACTIONS –
No valid judgment if The case may be Transactions connected with the same
indispensable party is determined in court but subject matter of the suit.
not joined. the judgment therein will 2) There is a question of law or fact common
not resolve the entire to all the plaintiffs or defendants;
controversy if a 3) Such joinder is not otherwise proscribed by
necessary party is not the rules on jurisdiction and venue.
joined
They are those with They are those whose
CLASS SUIT [Rule 3, Sec. 12]
such an interest in the presence is necessary to
controversy that a final adjudicate the whole
• Requisites:
decree would necessarily controversy but whose 1) Subject matter of the controversy is one of
affect their rights so that interests are so far common/general interest to many persons;
the court cannot separable that a final 2) The persons are so numerous that it is
proceed without their decree can be made in impracticable to join them all as parties (i.e.
presence. their absence without impracticable to bring them all before the
affecting them. court);
3) Parties brinqinq the class suit are
• Rule 3, Sec. 2 requires that an action must be sufficiently numerous and representative of
brought in the name of, but not necessarily by, the class and can fully protect the interests
the real party in interest. In fact, the practice is of all concerned;
for an attorney-in-fact to bring an action. 4) The representative sues/defends for the
[Tuason v. Bolanos] benefit of all.
• Neither misjoinder nor non-joinder of parties is • Rule 12, Sec. 3 contemplates an exceptional
ground for dismissal of the action. [Rule 3, Sec. situation where there are numerous persons all
11] in the same plight and all together instituting a
• Non-joinder of an indispensable party is not a constituency whose presence in the litigation is
ground for outright dismissal. Reasonable absolutely indispensable to the administration
opportunity must be given for his inclusion by of justice. The strict application of the rule as to
amendment of the complaint. indispensable parties would require that each

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 CIVIL PROCEDURE
one in the class be present. In the class suit,
representation of class interest which will be
affected by the judgment is indispensable, but
it is not indispensable to make each member of
the class an actual party.
• If a class suit is improperly brought, the action
is subject to dismissal regardless of the cause
of action.
• A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]
• In a class suit, any party in interest shall have
the right to intervene to protect his individual
interest.
Class suit Permissive joinder of
parties
There is a single cause of There are multiple
action pertaining to causes of action
numerous persons. separately belonging to
several persons.
ALTERNATIVE DEFENDANTS [Rule 3, Sec. 13]
• Where the plaintiff is uncertain against whom of
several persons he is entitled to relief, he may
join any or all of them in the alternative,
although a right to relief against one may be
inconsistent with a right to relief against the
other.
UNKNOWN IDENTITY OR NAME OF
DEFENDANT [Rule 3, Sec. 13]
• Rules and requisites:
1) There is a defendant;
2) His identity or name is unknown;
3) A fictitious name may be used because of
ignorance of defendant's true name and
said ignorance is alleged in the complaint;
4) An identifying description may be used
(e.g. as unknown owner/heir/devisee);
5) Pleading is amended when the identity or
true name is discovered;
6) The unknown defendant is the defendant
being sued, not a mere additional
defendant.
• Service of summons upon a defendant whose
identity is unknown may be made by
publication in a newspaper of general
circulation in accordance with Rule 14, Sec. 14.
However, the action must be converted into an
action in rem or quasi in rem by attaching the
defendant's property in the Philippines.
ENTITY WITHOUT JURIDICAL
PERSONALITY AS DEFENDANT [Rule 3, Sec.
15]
• Requisites:
1) There are 2 or more persons not organized
as a juridical entity;
2) They enter into a transaction;
3) A wrong is committed against a 3rd person
in the course of such transaction.
• Persons associated in an entity without juridical
personality may be sued under the name by
which they are generally/commonly known, but
they cannot sue under such name.
The service of summons may be effected upon all
the defendants by serving upon any of them, or
upon the person in charge of the office or place of
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business maintained under such name. [Rule 14,
Sec. 8]
SUBSTITUTION OF PARTIES
1) Death of a party, where the claim is not
extinguished by the death of the party (e.g.
cases involving property and property rights);
[Rule 3, Sec. 16]
• In this case, the heirs will be substituted
for the deceased or if no legal
representative is named, the court will
order the opposing party to procure the
appointment of an executor or
administrator for the estate.
• In case of minor heirs, the court may
appoint a guardian ad litem for them.
• The substitute defendant need not be
summoned. The order of substitution shall
be served upon the parties substituted for
the court to acquire jurisdiction over the
substitute party.
• When a party to a pending action dies and
the claim is not extinguished, it is the
counsel’s duty to:
a) Inform court within 30 days after such
death of the fact thereof;
b) Give the name and address of the legal
representatives.
• Failure to comply with this duty is a
ground for disciplinary action.
2) Death or separation of a party who is a public
officer; [Rule 3, Sec. 17]
• Requisites:
a) Public officer is a party to an action in
his official capacity;
b) During the pendency of the action, he
either dies/resigns or otherwise ceases
to hold office;
c) It is satisfactorily shown to the court by
any party, within 30 days after the
successor takes office, that there is a
substantial need to continue/maintain
the action;
d) The successor adopts/continues (or
threatens to do so) his predecessor’s
action;
e) The party or officer affected was given
reasonable notice of the application
therefore and accorded an opportunity
to be heard.
3) Incompetency/incapacity; [Rule 3, Sec. 18]
• If a party becomes incompetent/
incapacitated during the pendency of the
action, the action survives and may be
continued by/against the incompetent/
incapacitated assisted by his legal guardian
or guardian ad litem.
4) Transfer of interest during the pendency of the
action. [Rule 3, Sec. 18]
• General rule: The rule does not consider
the transferee an indispensable party.
Hence, the action may proceed without the
need to implead him.
• Exception: When the substitution by
or joinder of the transferee is ordered
by court.
• The case will be dismissed if the
plaintiff’s interest is transferred to
defendant unless there are several
plaintiffs, in which case the remaining
plaintiffs can proceed with their own
cause of action.
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 CIVIL PROCEDURE
ACTION ON CONTRACTUAL MONEY
CLAIMS [Rule 3, Sec. 20]
• Requisites:
1) The action must primarily be for recovery
of money/debt or interest thereon;
2) The claim arose from express/implied
contract;
3) Defendant dies before the entry of final
judgment in the court in which the action
was pending.
• The defendant’s death will not result in the
dismissal of the action. The deceased shall be
substituted by his legal representatives in the
manner provided for in Rule 3, Sec. 16, and the
action will continue until the entry of final
judgment.
• However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedent’s estate without
need of proving the claim.
INDIGENT PARTY [Rule 3, Sec. 21]
• INDIGENT – One who has no money or
property sufficient and available for food,
shelter and basic necessities. He need not be a
pauper to entitle him to litigate in forma
pauperis.
• While the authority to litigate as an indigent
party may be granted upon an ex parte
application and hearing, it may be contested by
the adverse party at any time before judgment
is rendered.
• If one is authorized to litigate as an indigent,
the authority shall include an exemption from:
1) Payment of docket fees;
2) Payment of TSN.
• The amount of docket and other lawful fees is a
lien on any judgment rendered in favor of
indigent party, unless court otherwise provides.
NOTICE TO THE SOLICITOR GENERAL [Rule
3, Sec. 21]
• The court may require appearance of the OSG
in actions involving validity of any treaty, law,
ordinance, EO, PD, rules or regulations.
D. VENUE OF ACTIONS
DEFINITION
• VENUE – Place of trial or geographical location
in which an action/proceeding should be
brought.
Venue Jurisdiction
Place where the action is Power of the court to hear
instituted and decide a case
May be waived Jurisdiction over the
subject matter and over
the nature
of the action is conferred
by law and cannot-be
waived
Procedural Substantive
May be changed by the Cannot be the subject of
written agreement of the the agreement of the
parties parties
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PROPER VENUES
1) Real actions – Where the real property (or any
portion thereof) is located. [Rule 4, Sec. 1]
• If the property is located at the boundaries
of 2 places, file the case in either place (at
the plaintiff’s option).
• If the case involves 2 properties located in
2 different places:
• If the properties are the object of the
same transaction, file it in any of the 2
places;
• If they are the objects of 2 distinct
transactions, separate actions should
be filed in each place unless properly
joined.
2) Personal actions – At the plaintiff’s election:
[Rule 4, Sec. 2]
a) Where the plaintiff or any of the principal
plaintiffs resides;
b) Where the defendant or any of the principal
defendants resides;
c) In case of a non-resident-defendant, where
he may be found.
3) Actions against non-residents –
a) Non-resident found in the Philippines –
(1) For personal actions – Where the
plaintiff resides;
(2) For real actions – Where the property
is located.
b) Non-resident not found in the Philippines –
An action may be filed only when the case
involves:
(1) Personal status of plaintiff - Where
plaintiff resides;
(2) Any property of said defendant located
in the Phil. - Where the property (or
any portion thereof) is situated/found.
• Actions in personam/in rem refers to the
binding effect of the judgment. Real/personal
action, on the other hand refers to venue.
• Where several/alternative reliefs are prayed for
in the complaint, the nature of the action as
real or personal is determined by the primary
object of the suit or by the nature of the
principal claim. Thus, where the purpose is to
nullify the title to real property, the venue of
the action is in the province where the property
lies, notwithstanding the alternative relief
sought, recovery of damages, which is
predicated upon a declaration of nullity of the
title.
• The venue of an action for review of an
administrative decision regarding real property
is the court of the province where the officer
who rendered the decision holds office, and not
the province where his real property is situated.
• The Court may not motu propio dismiss an
action on the ground of improper venue.
[Dacoycoy v. IAC]
• Exception: In summary procedures.
• The SC has the power to change the venue to
prevent a miscarriage of justice. [Art. 8, Sec. 5,
Consti]
WAIVER OF VENUE
• Until and unless the defendant objects to the
venue in a motion to dismiss prior to a
responsive pleading, the venue cannot truly be
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 CIVIL PROCEDURE REMEDIAL LAW

said to have been improperly laid since for all II. PLEADINGS
intents and purposes, the venue though
technically wrong may yet be considered
acceptable to the parties for whose convenience
the rules on venue had been devised. Although DEFINITION
venue is mandatory, it is waivable. [Diaz v.
Adiong] • They are the written statements of the
respective claims and defenses of the parties,
MEANS OF WAIVING VENUE submitted to the court for appropriate judgment
1) Affirmative relief sought in the court where the [Rule 6, Sec. 1]
case is filed; • A MTD is not a pleading. However, there are
2) Voluntary submission to the court where the motions that actually seek judgment like a
case is filed; motion for judgment on pleadings (Rule 34)
3) Failure to object via MTD; and motion for summary judgment (Rule 35).
4) Laches.
Pleading Motion
Purpose: To submit a Purpose: To apply for an
INAPPLICABILITY OF THE RULE ON claim/defense for order not included in the
VENUE [Rule 4, Sec. 4] appropriate judgment judgment
May be initiatory Cannot be initiatory as
1) If a specific rule/law provides otherwise (e.g. they are always made in a
case already filed in court.
action for damages arising from libel);
Always filed before May be filed even after
2) If the parties have validly agreed in writing,
judgment judgment
before the filing of the action, on the exclusive Only 9 kinds of pleading Many kinds of motion are
venue thereof. are allowed by the ROC allowed
• In the absence of qualifying restrictive
words (e.g. “only/solely/exclusively in such PLEADINGS ALLOWED [Rule 6, Sec. 2]
court”), venue stipulation is merely 1) Complaint;
permissive; that is, the stipulated venue is 2) Counterclaim;
in addition to the venue provided for in the 3) Cross-claim;
rules. [Polytrade Corp. v. Blanco] 4) 3rd-party Complaint,
5) Complaint-in-intervention;
6) Answer;
7) Reply;
8) Counter-counterclaim;
9) Counter-crossclaim.

PARTS OF A PLEADING [Rule 7]

1) CAPTION – Court’s name, action’s title (i.e.

parties’ names) and docket number.
2) BODY – Pleading’s designation, allegations of
party's claims/defenses, relief prayed for and
pleading’s date.
• Paragraphs must be numbered, and each
paragraph number must contain a single
set of circumstances
• Headings: if more than one cause of action,
use "1st cause of action," 2nd cause of
action," etc.
• Specify relief sought, but it may add a
general prayer for such further/other relief
as may be deemed just/equitable.
• Every pleading shall be dated.
3) Pleading must be signed by the party/counsel.
State address (not PO box) in either case.
• Counsel’s signature is a certification that:
a) He has read the pleading;
b) To the best of his knowledge,
information and belief there is good
ground to support it;
c) It is not interposed for delay.
• An unsigned pleading produces no legal
effect. However, the court may allow such
deficiency to be remedied if it shall appear
that the same was due to inadvertence and
not intended for delay.

DISCIPLINARY ACTION ON COUNSEL REGARDING

PLEADINGS
1) Deliberately filing an unsigned pleading;
2) Deliberately signing a pleading in violation of
the Rules;

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 CIVIL PROCEDURE
3) Alleging scandalous/Indecent matter in the
pleading;
4) Failing to promptly report a change of his
address.
VERIFICATION [Rule 7, Sec. 4]
• Pleadings need not be verified, unless otherwise
provided by the law/rules.
HOW A PLEADING IS VERIFIED
• By an affidavit that:
1) That the affiant read the pleading;
2) That the allegations therein are true and
correct of his personal knowledge or based
on authentic documents.
CERTIFICATION OF NON-FORUM
SHOPPING (CNFS) [Rule 7, Sec. 5]
• Definition: The filing of multiple suits in
different courts, simultaneously or successively,
involving the same parties, to ask the courts to
rule on the same/related causes and/or to grant
the same or substantially the same relief.
TEST TO DETERMINE WON THERE IS FORUM
SHOPPING
• WON in the 2 or more cases pending, there is
identity of:
1) Parties;
2) Rights or causes of action;
3) Relief sought.
• CNFS is to be executed by the petitioner, not by
the counsel.
• CNFS is required only for complaints or
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.).
• CNFS is not required in a compulsory
counterclaim. A counterclaim is not an
initiatory pleading. [UST Hospital v. Surla]
• Failure to comply is not curable by mere
amendment of the pleading but shall be cause
for the dismissal of the case, without prejudice
and upon motion and after hearing, unless
otherwise provided.
4)
EFFECT OF SUBMISSION OF FALSE CNFS OR NON-
SUBMISSION OF CNFS
1) Indirect contempt;
2) Administrative and criminal actions.
EFFECT OF WILFUL AND DELIBERATE FORUM
SHOPPING
1) Ground for summary dismissal of the case with
prejudice;
2) Direct contempt and administrative sanctions.
• Pleadings as well as remedial laws should be
liberally construed in order that the litigant may
have ample opportunity to prove their
respective claims, and possible denial of
substantial justice, due to technicalities, may be
avoided. [Gerales v. CA (1993)]
DIFFERENT PLEADINGS
1. COMPLAINT [Rule 6, Sec. 3]
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
• Definition: The pleading alleging the plaintiff’s
cause/s of action. It should contain a concise
statement of the ultimate facts constituting the
plaintiff’s cause/s of action, not evidentiary
facts or legal conclusions.
• It shall contain in a methodical and logical form
a plain, concise and direct statement of
ultimate facts on which the plaintiff relies for his
claim, omitting statement of mere evidentiary
facts. Its function is to inform the defendant
clearly and definitely of claims made against
him so that he may be prepared to meet the
issues at trial. It should inform the defendant of
all material facts on which the plaintiff relies to
support his demand. It should state the theory
of a cause of action which forms the bases of
plaintiff’s claim of liability. [Tantuico v. Republic
(1991)]
• ULTIMATE FACTS – Essential facts
constituting the plaintiff’s cause of action. A fact
is essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient.
• Not ultimate facts:
1) Evidentiary or immaterial facts;
2) Legal conclusions, conclusions or
inferences of facts from facts not
stated, or incorrect inferences or
conclusions from facts stated;
• Conclusions of law alleged in the
complaint are not binding on the
court.
3) The details of probative matter or
particulars of evidence, statements of
law, inferences and arguments.
TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN
THE COMPLAINT
• WON upon the averment of facts, a valid
judgment may be properly rendered.
2. ANSWER [Rule 6, Sec. 4]
• Definition: The pleading where the defendant
sets forth his affirmative/negative defenses. It
may also be the response to a counterclaim or
a cross-claim.
TWO KINDS OF DEFENSES THAT MAY BE SET
FORTH IN THE ANSWER:
1) AFFIRMATIVE DEFENSES – Allegations of
new matters which, while hypothetically
admitting the material allegations in the
claimant’s pleading, would nevertheless
prevent/bar recovery by him. It includes fraud,
prescription, release, payment and any other
matter by way of confession and avoidance.
2) NEGATIVE DEFENSES – Specific denials of the
material facts alleged in the pleading of the
claimant essential to his cause of action.
• Kinds of denial:
a) SPECIFIC DENIAL – Specifies each
material allegation of fact the truth of
which he does not admit, and sets forth
the substance of the matters upon
which he relies to support his denial.
b) DENIAL WITH QUALIFICATION -
Specifes so much of it as is true and
material, and deny the remainder.
c) Specific denial for lack of
knowledge/information sufficient to
form as belief as to the truth of a
Page 11 of 95
 CIVIL PROCEDURE
material averment made in the
complaint.
d) SPECIFIC DENIAL UNDER OATH -
Contests the authenticity or due
execution of an actionable document.
• ACTIONABLE DOCUMENT - A
document which is really the basis
of the cause of action (or defense),
and not merely evidentiary thereof.
• Genuineness and due execution of
an actionable instrument shall be
deemed admitted unless the
adverse party, under oath,
specifically denies them, and sets
forth what he claims to be the
facts. [Rule 8, Sec. 8]
• Exception: the adverse party
does not appear to be a party to
the instrument. [Donato v. CA
(1993)]
• Genuineness is alleged by:
(1) copying a substantial portion of
the document into the pleading;
(2) annexing/incorporating the
document into the pleading;
(3) both copying and annexing
document into the pleading.
e) NEGATIVE PREGNANT – Denial
pregnant with an admission
• It is a denial pregnant with the
admission of the substantial facts in
the pleading responded to which
are not squarely denied. It is in
effect an admission of the averment
it is directed to. [Philamgen v.
Sweet Lines (1993)]
INSUFFICIENT DENIALS OR DENIALS AMOUNTING
TO ADMISSIONS
1) General denial;
2) Negative pregnant.
WAIVER OF DEFENSES
• Defenses and objections not pleaded either in a
MTD or in the answer, are deemed waived.
[Rule 9, Sec. 1]
• Exception:
1) LOJ over the subject matter;
2) Litis pendentia;
3) Res judicata;
4) Prescription
3. COUNTERCLAIM [Rule 6, Sec. 6]
• Definition: Any claim which a defending party
may have against an opposing party.
• A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the
answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the
original complaint. For this reason, it must be
answered 10 days from service.
HOW TO RAISE COUNTERCLAIMS
1) Included in the answer: [Rule 11, Sec. 8]
• A compulsory counterclaim or a cross-claim
that a defending party has at the time he
files his answer shall be contained therein.
• Exception: Pleadings may be amended
under Rule 11, Sec. 10:
a) By leave of court;
b) Before judgment;
c) On the grounds of:
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REMEDIAL LAW
(1) Oversight;
(2) Inadvertence;
(3) Excusable neglect;
(4) When justice requires.
2) After the answer: [Rule 11, Sec. 9]
• Counterclaims/cross-claims arising after the
answer, with the court’s permission, may be
presented as a counterclaim/cross-claim by
supplemental pleading before judgment.
RULES ON COUNTERCLAIMS
• A counterclaim before the MTC must be within
the jurisdiction of said court both as to the
amount and nature.
• In an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7]
• If a counterclaim is filed in the MTC in excess of
its jurisdictional amount, the excess is
considered waived. [Agustin v. Bacalan]
• In Calo v. Ajax, the remedy where a
counterclaim is beyond the jurisdiction of
the MTC is to set off the claims and file a
separate action to collect the balance.
KINDS OF COUNTERCLAIMS
Compulsory Permissive
counterclaim counterclaim
One which arises out of or It does not arise out of
is necessarily connected nor is it necessarily
with the transaction or connected with the
occurrence -that is the subject matter of the
subject matter of the opposing party's claim.
opposing party's claim.
Does not require for its May require for its
adjudication the presence adjudication the
of third parties of whom presence of third parties
the court cannot acquire over whom the court
jurisdiction. cannot acquire
jurisdiction.
Barred if not set up in the Not barred even if not
action. set up in the action.
Need not be answered; Must be answered,
no default. otherwise, the defendant
can be declared in
default.
• A permissive counterclaim requires the
payment of docket fees. [Sun Insurance v.
Asuncion]
• A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared
in default, principally because the issues raised
in the counterclaim are deemed automatically
joined by the allegations in the complaint. [Gojo
v. Goyala]
REQUISITES OF A COMPULSORY COUNTERCLAIM
1) It must arise out of, or be necessarily
connected with, the transaction/occurrence that
is the subject matter of the opposing party's
claim;
2) It does not require for its adjudication the
presence of 3rd parties of whom the court
cannot acquire jurisdiction;
3) It must be within the court’s jurisdiction.
• General rule: A compulsory counterclaim not
set up in the answer is deemed barred.
• Exception: If it is a counterclaim which
either matured or was acquired by a party
after serving his answer. In this case, it
may be pleaded by filing a supplemental
answer or pleading before judgment. [Rule
11, Sec. 9]
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 CIVIL PROCEDURE REMEDIAL LAW

• The filing of a MTD and the setting up of a necessary for the adjudication of said
compulsory counterclaim are incompatible cross-claim. In this case, the cross-
remedies. In the event that a defending party claim is considered permissive.
has a ground for dismissal and a compulsory • The dismissal of the complaint carries with it
counterclaim at the same time, he must choose the dismissal of a cross-claim which is purely
only one remedy. If he decides to file a MTD, he defensive, but not a cross-claim seeking an
will lose his counterclaim. But if he opts to set affirmative relief.
up his counterclaim, he may still plead his
ground for dismissal as an affirmative defense Cross-claim Counterclaim 3rd Party
in his answer. complaint
• If any of the grounds to dismiss under Rule 17, Against a co- Against an Against a person
Sec. 3 arises, the proper recourse for a party opposing party not a party to
the action
defendant who desires to pursue his
Must arise out of May arise out of Must be in
compulsory counterclaim in the same the transaction or be necessarily respect of the
proceeding is not a MTD. Instead, he should that is the connected with opponent’s
only move to have the plaintiff declared non- subject matter of the transaction (plaintiff’s) claim
suited on the complaint so that the latter can the original or the subject
no longer present his evidence thereon, and action or of a matter of the
simultaneously move that he be declared as in counterclaim opposing party’s
default on the compulsory counterclaim, and therein claim
(compulsory
reserve the right to present evidence ex parte
counterclaim), or
on his compulsory counterclaim. [BA Finance v. it may not
Co (1993)] (permissive
• Under Section 3, Rule 17, dismissal of counterclaim)
action due to plaintiff’s fault shall be
without prejudice to the defendant’s right
to prosecute his counterclaim in the 5. COUNTER-COUNTERCLAIMS
same/separate action.
AND COUNTER-CROSS-CLAIMS
TEST TO DETERMINE WHETHER A COUNTERCLAIM [Rule 6, Sec. 9]
IS COMPULSORY OR PERMISSIVE
• LOGICAL RELATIONSHIP TEST – Where • COUNTER-COUNTERCLAIM – A claim
conducting separate trials of the respective asserted against an original counterclaimant.
claims would entail substantial duplication of • COUNTER-CROSS-CLAIM – A claim filed
effort and time and involves many of the same against an original cross-claimant.
factual and legal issues. [Meliton v. CA]
• WON substantially the same evidence to sustain 6. REPLY [Rule 6, Sec. 10]
the counterclaim will refute the cause of action
alleged in the plaintiff's complaint. The cause • Definition: The plaintiff’s response to the
of action and relief prayed for in the complaint defendant's answer, the function of which is to
and in the counterclaim must necessarily be deny or allege facts in denial or in avoidance of
different, but both arise out of the same legal new matters alleged by way of defense in the
relationship. [Leonen] answer and thereby join or make issue as to
such new matters.
REMEDIES
1) For failure to raise a compulsory counterclaim – EFFECT OF FAILURE TO REPLY
None. A compulsory counterclaim not set up is • General rule: Filing a reply is merely optional.
considered barred. [Rule 9, Sec. 2] New facts that were alleged in the answer are
2) Oversight, inadvertence, excusable neglect, etc. deemed controverted should a party fail to
- With leave of court, counterclaim may be set reply thereto.
up by amendment before judgment. [Rule 11, • Exception: Reply is required:
Sec. 10] 1) Where the answer is based on an
3) If the main action fails – Motion to declare actionable document. [Rule 8, Sec. 8]
plaintiff non-suited in the main action and as in 2) Where the answer alleges the defense
default in the counterclaim. [BA Finance v. Co] of usury. [Rule 8, Sec. 11]

4. CROSS-CLAIM [Rule 6, Sec. 8] 7. 3RD – PARTY COMPLAINT [Rule 6,

Sec. 11]
REQUISITES FOR A CROSS-CLAIM
1) A claim by one party against a co-party; • Definition: It is a claim that a defending party
2) It must arise out of the subject matter of the may, with leave of court, file against a person
complaint or of the counterclaim; not a party to the action for contribution,
3) The cross-claimant is prejudiced by the claim indemnity, subroqation or any other relief, in
against him by the opposing party. respect of his opponent's claim. There could
also be a 4th/etc.-party complaint with the same
• A cross-claim is always compulsory. A cross- purpose and function.
claim not set up shall be barred. [Rule 9, Sec.
2] 3rd-party complaint Complaint in
• Exception: intervention
1) When it is outside the court’s Brings into the action a Same
jurisdiction; 3rd person who was not
2) If the court cannot acquire jurisdiction originally a party
over 3rd parties whose presence is Initiative is with the Initiative is with a non-
person already a party to party who seeks to join the

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 CIVIL PROCEDURE REMEDIAL LAW

the action action 7) Official documents/acts.

3rd-party complaint Counterclaim FACTS THAT MUST BE AVERRED PARTICULARLY

Need not be within the Must be within the • Circumstances showing fraud/mistake in all
jurisdiction of the court jurisdiction of the court averments of fraud/mistake.
trying the main case trying the main case
Diminishes/defeats the Need not diminish/defeat
recovery sought by the the recovery sought by the
THREE WAYS OF MAKING A SPECIFIC DENIAL
opposing party opposing party 1) SPECIFIC ABSOLUTE DENIAL – By
Cannot exceed the May exceed in amount or specifically denying the averment and,
amount stated in the be different in kind from whenever practicable, setting forth the
original complaint that sought in the original substance of the matters relied upon for such
complaint denial.
2) PARTIAL SPECIFIC DENIAL – Part admission
TESTS TO DETERMINE WHETHER THE 3RD-PARTY and part denial;
COMPLAINT IS IN RESPECT OF PLAINTIFF'S CLAIM 3) DISAVOWAL OF KNOWLEDGE – By an
1) WON it arises out of the same transaction on allegation of lack of knowledge or information
which the plaintiff's claim is based, or although sufficient to form a belief as to the truth of the
arising out of another/different transaction, is averment in the opposing party's pleading.
connected with the plaintiff’s claim; • This does not apply where the fact as to
2) WON the 3rd-party defendant would be liable to which want of knowledge is asserted is, to
the plaintiff or to the defendant for all/part of the knowledge of the court, so plain and
the plaintiff’s claim against the original necessarily within the defendant's
defendant; knowledge that his averment of ignorance
3) WON the 3rd-party defendant may assert any must be palpably untrue.
defenses which the 3rd-party plaintiff has or
may have to the plaintiff’s claim. • General rule: Allegations not specifically
denied are deemed admitted [Rule 8, Sec. 11]
• Leave of court to file a 3rd-party complaint may • Exceptions:
be obtained by motion under Rule 15. 1) Allegations as to the amount of
• Summons on 3rd (4th/etc.) – party defendant unliquidated damages;
must be served for the court to obtain 2) Allegations immaterial to the cause of
jurisdiction over his person, since he is not an action;
original party. • Allegations of merely evidentiary or
• Where the trial court has jurisdiction over the immaterial facts may be expunged
main case, it also has jurisdiction over the 3rd- from the pleading or may be
party complaint, regardless of the amount stricken out on motion. [Rule 8,
involved as a 3rd-party complaint is merely Sec. 12]
auxiliary to and is a continuation of the main 3) Conclusion of law.
action. [Republic v. Central Surety]
• A 3rd-party complaint is not proper in an action PERIODS TO PLEAD
for declaratory relief.
Responsive pleading When to file
MANNER OF MAKING ALLEGATIONS
Answer to complaint 15 days from service,
unless otherwise provided
IN GENERAL [Rule 8, Sec. 1] by the court
• In a methodical and logical form. xxx 30 days from service, if
• Plain, concise and direct statement of the defendant is a private
ultimate facts on which the party pleading relies juridical entity and
for his claim/defense. summons was served on
• Omit evidentiary facts. the government official
• If defense relied on based on law, cite the designated by law to
provisions and their applicability. receive it
Answer to 10 days from service
FACTS THAT MAY BE AVERRED GENERALLY counterclaim/cross-claim
1) Conditions precedent; but there must still be an Answer to 3rd-party same as that of answer to
allegation that the specific condition precedent complaint complaint
has been complied with, otherwise it will be Answer to amended 15 days from service, if
dismissed for lack of cause of action; complaint/ counterclaim/ amendment is a matter of
2) Capacity to sue or be sued; cross-claim/ complaint- right
in-intervention
3) Capacity to sue or be sued in a representative
capacity; xxx 10 days from service, if
4) Legal existence of an organization ; amendment is not a
matter of right
• A party desiring to raise an issue as to the
legal existence or capacity of any party to Answer to supplemental 10 days from service of
complaint the order admitting the
sue or be sued in a representative capacity supplement, unless
shall do so by specific denial which shall otherwise provided by the
include supporting particulars within the court
pleader's knowledge. Reply 10 days from service
5) Malice/intent/knowledge or other condition of
the mind;
6) Judgments of domestic/foreign courts,
tribunals, boards or officers (without need to
show jurisdiction);

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CIVIL PROCEDURE REMEDIAL LAW

xxx Xxx 1) Full statement

III. ACQUISITION OF JURISDICTION of the date/place of
depositing the mail
in the post office in
a sealed envelope
A. FILING AND SERVICE addressed to the
court
xxx Xxx 2) Postage fully
DEFINITION paid
xxx Xxx 3) Instructions to
• FILING – The act of presenting the pleading or the postmaster to
other paper to the clerk of court. [Rule 13, Sec. return the mail to
2] the sender after 10
days if undelivered
• SERVICE – The act of providing a party or his
counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
2. SERVICE
PAPERS REQUIRED TO BE FILED AND
SERVED [Rule 13, Sec. 4] MODES OF SERVICE [Rule 13, Sec. 5]
1) Pleading subsequent to the complaint;
2) Appearance; 1) Personal service. [Rule 13, Sec. 6]
3) Written Motion; a) Delivering personally a copy to the party or
4) Notice; his counsel.
5) Order; b) Leaving a copy in counsel's office with his
6) Judgment; clerk or with a person having charge
7) Demand; thereof.
8) Offer of Judgment; c) If no person is found in his office, or if his
9) Resolution; office is unknown, or if he has no office –
10) Similar papers. Leaving the copy between 8am and 6 pm
at the party's or counsel's residence (if
1. FILING known) with a person of sufficient age and
discretion then residing therein.
2) Service by (registered) mail. [Rule 13, Sec. 7]
MANNER OF FILING [Rule 13, Sec. 3] • By depositing the copy in the office, in a
sealed envelope, plainly addressed to the
1) Personally. party or his counsel at his office or at his
• By personally presenting the original to the residence (if known), with postage fully
clerk of court. pre-paid, and with instructions to the
• The pleading is deemed filed upon the postmaster to return the mail to the sender
receipt of the same by the clerk of court after l0 days if undelivered.
who shall endorse on it the date and hour • If no registry service is available in the
of filing. locality of either sender or addressee,
• If a party avails of a private carrier, the service may be done by ordinary mail.
date of the court’s actual receipt of the 3) Substituted service. [Rule 13, Sec. 8]
pleading (not the date of delivery to the • By delivering the copy to the clerk of court,
private carrier) is deemed to be the date of with proof of failure of both personal
the filing of that pleading. [Benguet Electric service and service by mail.
Cooperative v. NLRC]
2) By registered mail. completeness of proof of service
• Filing by mail should be through the service
registry service (i.e. by depositing the Personal Upon actual Written admission of
pleading in the post office). service delivery the party served
• The pleading is deemed filed on the date it xxx xxx Official return of the
was deposited with the post office. server; or affidavit
• If registry service is not available in the of the party serving,
locality of either sender or addressee, with a full statement
service may be done by ordinary mail. of the
date/place/manner
of service
PROOF OF FILING [Rule 13, Sec. 12]
Service by 10 days after Affidavit of the
ordinary mailing, unless person mailing,
• Filing is proved by its existence in the record of
mail otherwise showing facts that
the case. provided by the comply with Rule
• If it is not in the record: court 13, Sec. 7
Service by Whichever is Affidavit of the
Xxx when pleading is proof of filing
registered earlier: person mailing,
deemed filed
mail showing facts that
Personally Upon receipt of the Written/stamped comply with Rule
pleading by the acknowledgment 13, Sec. 7
clerk of court by the clerk of
court Xxx 1) Actual receipt Registry receipt
by the addressee issued by the post
By On the date the Registry receipt,
office
registered pleading was and affidavit of the
mail deposited with the person who did the
post office mailing with:

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CIVIL PROCEDURE
Xxx 2) 5 days after xxx
addressee
received 1st
postmaster's
notice
SERVICE OF JUDGMENT, FINAL ORDERS
OR RESOLUTIONS [Rule 13, Sec. 9]
1) By personal service;
2) By registered mail;
3) By publication if party is summoned by
publication and has failed to appear in the
action.
PRIORITY IN MODES OF FILING AND
SERVICE [Rule 13, Sec. 11]
• General rule: Personal filing and service.
Resort to other modes of filing and service
must be accompanied by an explanation why
the service/filing was not done personally.
• If there is no written explanation, the paper
considered not filed.
• Exception: Papers emanating from the
court
NOTICE OF LIS PENDENS [Rule 13, Sec. 14]
• LIS PENDENS - Notice of a pendency of the
action between the parties involving title to or
right of possession over real property.
• Requisites: [AFP Mutual Benefit Association v.
CA]
1) Action affects the title or the right of
possession of the real property;
2) Affirmative relief is claimed;
3) Notice shall contain the name of the parties
and the object of the action/defense and a
description of the property affected
thereby;
4) Action in rem.
• The notice serves as a warning to all persons,
prospective purchasers or encumbrancers of
the property in litigation to keep their hands off
the property in litigation unless they are
prepared to gamble on the result of the
proceedings.
• The defendant may also record a notice of lis
pendens when he claims an affirmative relief in
his answer.
• The notice of cannot be cancelled on an ex
parte motion or upon the mere filing of a bond
by the party on whose title the notice is
annotated, as Sec. 14 provides that such
cancellation may be authorized only upon order
of court, after proper showing that: [Roxas v.
CA (1993)]
1) The notice is for the purpose of molesting
the adverse party; or
2) It is not necessary to protect the rights of
the party who caused it to be recorded.
B. AMENDMENT AND
SUPPLEMENTAL
PLEADINGS
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
1. AMENDMENT
HOW TO AMEND PLEADINGS [Rule 10, Sec.
1]
1) Adding an allegation of a party;
2) Adding the name of a party;
3) Striking out an allegation of a party;
4) Striking out the name of a party;
5) Correcting a mistake in the name of a party;
and
6) Correcting a mistake or inadequate allegation
or description in any other respect.
• Purpose: That the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in the
most expeditious and inexpensive manner.
• As a general policy, liberality in allowing
amendments is greatest in the early stages of a
law suit, decreases as it progresses and
changes at times to a strictness amounting to a
prohibition. This is further restricted by the
condition that the amendment should not
prejudice the adverse party or place him at a
disadvantage. [Barfel Development v. CA
(1993)]
FORM [Rule 10, Sec. 7]
• A new copy of the entire pleading,
incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed.
EFFECT [Rule 10, Sec. 8]
• The amendment supersedes the amended
pleading.
• Claims and defenses in superseded pleading
which are not incorporated in the amended
pleading are deemed waived.
• Admissions made in the superseded pleading
may still be received in evidence against the
pleader.
KINDS OF AMENDMENTS
1) FORMAL AMENDMENTS – A defect in the
designation of the parties and other clearly
clerical errors may be summarily corrected by
the court or by motion:
• At any stage of the action.
• Provided that no prejudice is caused to the
adverse party.
2) SUBSTANTIAL AMENDMENTS
a) If as a matter of right – Made at any time
before a responsive pleading is served. If it
is a reply, at any time within l0 days after it
is served. [Rule 10, Sec. 2]
b) If as a matter of discretion – Amendment
requires leave of court if:
(1) It is substantial; and
(2) A responsive pleading has already been
served. [Rule 10, Sec. 3]
REQUISITES FOR AMENDMENTS BY LEAVE OF
COURT
1) Motion filed in court;
2) Notice to the adverse party;
3) Opportunity to be heard afforded to the
adverse party.
WHEN AMENDMENT BY LEAVE OF COURT MAY NOT
BE ALLOWED
Page 16 of 95
CIVIL PROCEDURE
1) If the cause of action, defense or theory of the
case is changed.
2) If amendment is intended to confer jurisdiction
to the court.
• If the court has no jurisdiction in the
subject matter of the case, the amendment
of the complaint cannot be allowed so as to
confer jurisdiction on the court over the
property. [PNB v. Florendo (1992)]
3) If amendment is for curing a premature or non-
existing cause of action.
4) If amendment is for purposes of delay.
• Admitting an amended complaint in
intervention is a matter addressed to the
court’s discretion, subject only to the
limitations that amendments should not
substantially change the cause of action or
alter the theory of the case or made to delay
the action. Once exercised, it cannot be
disturbed on appeal, except in case of abuse
thereof. [Metropolitan Bank v. Presiding Judge
(1990)]
AMENDMENT TO CONFORM TO EVIDENCE
[Rule 10, Sec. 5]
• If issues not raised by the pleadings are tried
with the express/implied consent of the parties,
they shall be treated as if they had been raised
in the pleadings. Amendment of pleadings as
may be necessary to cause them to conform to
the evidence and to raise these issues, may be
made upon motion of any party, any time
(even after judgment).
• But failure to amend does not affect the
result of the trial on these issues.
• If evidence is objected to at the trial on the
ground that it is not within the issues made by
the pleadings, the court may allow the
pleadings to be amended and shall do so with
liberality if the presentation of the merits of the
action and the ends of substantial justice will
be subserved thereby.
2. SUPPLEMENTAL PLEADINGS
• Definition: One which sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
• It is made upon motion of a party with
reasonable notice and upon terms as are just.
• The cause of action stated in the supplemental
complaint must be the same as that stated in
the original complaint. Otherwise, the court
should not admit the supplemental complaint.
[Asset Privatization Trust v. CA]
AMENDMENTS VIS-À-VIS SUPPLEMENTAL
PLEADINGS
• A supplemental complaint/pleading supplies
deficiencies in aid of an original pleading, not to
entirely substitute the latter. Unlike in an
amended complaint, the original complaint
exists side by side with the supplemental
complaint. [Shoemart v. CA (1990)]
Amendments Supplemental pleadings
Reason for the Grounds for the
amendment is available supplemental pleading
at time of the 1st arose after the 1st
pleading pleading was filed
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
Either as a matter of right Always a matter of
or a matter of discretion discretion
Supersedes the pleading Supplements the pleading
(i.e. Exists side by side
with the original pleading)
When an amended A supplemental pleading
pleading is filed, a new does not require the filing
copy of the entire of a new copy of the entire
pleading must be filed pleading
C. BILL OF PARTICULARS
• Definition: It is a detailed explanation
respecting any matter which is not averred with
sufficient definiteness/particularity in the
complaint as to enable a party to properly
prepare his responsive pleading or to prepare
for trial. [Rule 12, Sec. 1]
• It is filed by the plaintiff pursuant to a court
order issued upon granting a motion for BOP
filed by the defendant before the latter files an
answer. In said motion, the defendant prays for
a more definite statement of matters which are
not averred with sufficient definiteness in the
complaint.
• An action cannot be dismissed on the ground
that the complaint is vague/indefinite. The
remedy of the defendant is to move for a BOP
or avail of the proper mode of discovery.
[Galeon v. Galeon]
• Purpose: To inform the adverse party more
specifically of the precise nature and character
of the cause of action or defense alleged in the
pleading, with the view of enabling him to
prepare properly his responsive pleading or to
prepare for trial.
• The purpose of a BOP is to define/
clarify/particularize/limit/circumscribe the
issues in the case to expedite the trial and
assist the court. The only question to be
resolved in a motion for a BOP is WON the
allegations in the complaint averred with
sufficient definiteness/particularity to
enable the movant to properly prepare his
responsive pleading and to prepare for
trial. [Tantuico, Jr. v. Republic (1991)]
• A BOP becomes part of the pleading for which it
was intended. [Rule 12, Sec. 6]
WHEN APPLIED FOR [Rule 12, Sec. 1]
• Before responding to a pleading
• If the pleading is a reply, within 10 days from
service thereof
WHAT A MOTION FOR BOP SHOULD POINT OUT
[Rule 12, Sec. 1]
1) The defects complained of;
2) The paragraph wherein they are contained;
3) The details desired.
COURT ACTION [Rule 12, Sec. 2]
1) Deny;
2) Grant the motion outright;
3) Allow the parties the opportunity to be heard.
COMPLIANCE WITH ORDER [Rule 12, Sec. 3]
• If motion for BOP is granted wholly/partially:
• Within 10 days from notice of order, BOP or
a more definite statement should be
submitted (unless court fixes a different
period).
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CIVIL PROCEDURE REMEDIAL LAW

• BP or definite statement filed either as a uniting with defendant in resisting the claims of
separate pleading or as an amended plaintiff, or demanding something adversely to
pleading, a copy of which must be served both of them. [Metropolitan Bank v. Presiding
on the adverse party. Judge (1990)]
• It is the act/proceeding by which a 3rd person
EFFECT OF NON-COMPLIANCE [Rule 12, Sec. 4] becomes a party in a suit pending between
1) In case of non-compliance or insufficient with others.
the order for BOP, the court: • It is the admission, by leave of court, of a
a) May order the striking out of the pleading person not an original party to pending legal
(or portion thereof) to which the order is proceedings, by which such person becomes a
directed; party thereto for the protection of some right of
b) Make such order as it may deem just. interest alleged by him to be affected by such
2) If the plaintiff fails to obey, his complaint may proceedings.
be dismissed with prejudice unless otherwise • An intervenor is a party to the action as the
ordered by the court. [Rule 12, Sec. 4; Rule original parties are, and to make his right
17, Sec. 3] effectual he must necessarily have the same
3) If defendant fails to obey, his answer will be powers as the original parties. He is entitled to
stricken off and his counterclaim dismissed, have the issues raised between him and the
and he will be declared in default upon motion original parties tried and determined.
of the plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. • Intervention is never an independent
4; Rule 17, Sec. 4] action, but is ancillary and supplemental to
the existing litigation. Its purpose is to
STAY OF PERIOD TO FILE RESPONSIVE PLEADING afford one not an original party, yet having
[Rule 12, Sec. 5] a certain right/interest in the pending case,
• A Motion for BOP interrupts the period to file an the opportunity to appear and be joined so
answer. he could assert or protect such
1) If the motion is granted: 15 days to file right/interest. [Cariño vs. Ofilada (1993)]
answer. • Intervention is never an independent action,
2) If the motion is denied: File answer within but is ancillary and supplemental to the
the period the movant is entitled to, which existing litigation. Its purpose is to afford one
should not be less than 5 days. not an original party, yet having a certain
right/interest in the pending case, the
Bill of Particulars Intervention opportunity to appear and be joined so he
(BOP) could assert or protect such right/interest.
Purpose is to enable a Purpose is to enable a [Cariño vs. Ofilada (1993)]
party bound to respond to person not yet a party to • Hence, the final dismissal of the principal
a pleading to get more an action, yet having a
action results into the dismissal of said
details about matters certain right or interest in
which are alleged such action, the ancillary action.
generally or which are opportunity to appear and
indefinite and vague, so be joined so he could WHO MAY INTERVENE [Rule 19, Sec. 1]
as to properly guide such assert or protect such 1) One who has a legal interest in the matter in
party in answering the right or interest litigation;
pleading and to avoid 2) One who has a legal interest in the success of
surprise in the trial of the
either of the parties;
case
Available to the defendant Available to any person
3) One who has an interest against both parties;
before he files his not yet a party to the 4) One who is so situated as to be adversely
responsive pleading action at any time after affected by a distribution/disposition of
the commencement of an property in the court’s custody.
action, even during the
proceeding, but not after HOW INTERVENTION IS DONE
the trial has been • By a motion to intervene, with the pleading-in-
concluded
intervention attached. Must also serve copy of
the pleading-in-intervention on the original
parties. [Rule 19, Sec. 2]
D. INTERVENTION • General rule: Allowance of intervention is
discretionary with the court.
• Exception: When the intervenor is an
• Definition: A legal remedy whereby a person indispensable party.
is permitted to become a party in a case, by • Factors considered in allowing intervention:
either: 1) WON intervention will unduly delay or
1) Joining the plaintiff; prejudice the adjudication of the rights of
2) Joining the defendant; the original parties.
3) Asserting his right against both plaintiff and 2) WON the intervenor's rights may be fully
defendant, considering that either: protected in a separate proceeding.
a) He has a legal interest in the subject • The interest must be actual and
matter of the action; material, direct and immediate; not
b) He is going to be adversely affected by simply contingent or expectant. It must
the disposition of the property in the be in the matter in litigation and of
custody of the court such direct and immediate character
• Intervention is a proceeding in a suit/action by that the intervenor will either gain or
which a 3rd person is permitted by the court to lose by the direct legal operation and
make himself a party, either joining plaintiff in effect of the judgment. [Cariño vs.
claiming what is sought by the complaint, or Ofilada (1993)]

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CIVIL PROCEDURE REMEDIAL LAW

• Interest in the subject means a direct • Summons must be directed to the defendant,
interest in the cause of action as signed by the clerk of the court under seal, and
pleaded and which would put the contain:
intervenor in a legal position to litigate 1) Name of the court and names of the
a fact alleged in the complaint, without parties;
the establishment of which plaintiff 2) Direction that the defendant answer within
could not recover. [Magsaysay- the time fixed;
Labrador v. CA] 3) Notice that unless the defendant so
• Intervention is allowed any time before TC answers, plaintiff will take judgment by
renders judgment. [Rule 19, Sec. 2] default and may be granted the relief
• After rendition of judgment, a motion to applied for.
intervene is barred, even if the judgment itself • A copy of the complaint and order for
recognizes the movant’s right. The movant’s appointment of guardian ad litem (if any) shall
remedy is to file a separate action. be attached to the original and each copy of
the summons.
PLEADINGS IN INTERVENTION [Rule 19, Sec. 3]
1) COMPLAINT-IN-INTERVENTION – If SERVICE OF SUMMONS
intervenor asserts a claim against either or all
of the original parties. WHO SERVES THE SUMMONS [Rule 14, Sec. 3]
2) ANSWER-IN-INTERVENTION – If intervenor 1) The sheriff or his deputy;
unites with the defending party in resisting a 2) Other proper court officers;
claim against the latter. 3) For justifiable reasons, any suitable person
authorized by the court issuing the summons.
ANSWER TO COMPLAINT-IN-INTERVENTION [Rule
19, Sec. 4] RETURN OF SUMMONS [Rule 14, Sec. 4]
• It must be filed within 15 days from notice of • When the service has been completed, the
the order admitting the complaint-in- server shall, within 5 days therefrom, serve a
intervention, unless a different period is fixed copy of the return (personally or by registered
by the court. mail) to the plaintiff's counsel, and shall return
the summons to the clerk who issued it,
REMEDIES accompanied by proof of service.
1) For denial of intervention:
a) Appeal. ALIAS SUMMONS [Rule 14, Sec. 5]
b) Mandamus, if there is GAD. • Upon plaintiff’s demand, the clerk may issue an
2) For improper granting of intervention: Certiorari. alias summons if either:
1) If summons is returned without being
served on any/all of the defendants.
Intervention Interpleader • The server shall also serve a copy of
An ancillary action An original action the return on the plaintiff's counsel
Proper in any of the Presupposes that the within 5 days therefrom, stating the
four situations mentioned plaintiff has no interest in reasons for the failure of service.
in Rule 19 the subject matter of the 2) If summons was lost.
action or has an interest
therein, which in whole or
in part is not disputed by MODES OF SERVICE OF SUMMONS
the other parties to the • Any application to the court under Rule 14 for
action leave to effect service in any manner for which
There is already a Defendants are being leave of court is necessary shall be made by
defendant among the sued precisely to implead motion in writing, supported by affidavit of the
original parties to the them plaintiff or some person on his behalf, setting
pending suit forth the grounds for the application. [Rule 14,
Sec. 17]

E. SUMMONS 1. SERVICE IN PERSON ON

• Definition: A coercive force issued by the
court to acquire jurisdiction over the person of
the defendant.
• Purpose:
1) To acquire jurisdiction over the person of
the defendant in a civil case;
2) To give notice to the defendant that an
action has been commenced against him.
ISSUANCE OF SUMMONS
• Upon the filing of the complaint and the
payment of legal fees, the clerk of court shall
issue the corresponding summons to the
defendants. [Rule 14, Sec. 1]
SUMMON’S CONTENTS [Rule 14, Sec. 2]
DEFENDANT [Rule 14, Sec. 6]
1) By handing a copy of summons to him;
2) By tendering it to him, if he refuses to receive
it.
2. SUBSTITUTED SERVICE [Rule 14,
Sec. 7]
• Rationale: Enjoyment of the privileges of
residence within the state, and the attendant
right to invoke the protection of its laws, are
inseparable from the various incidences of state
citizenship. One such incident of domicile is
amenability to suit within the state even during
sojourns without the state, where the state has
provided and employed a reasonable method
for apprising such an absent party of the

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CIVIL PROCEDURE REMEDIAL LAW

proceedings against him. [Northwest v. CA personality either:

(1995)] [Rule 14, Sec. 8] 1) Any/all the defendants;
• For a valid substituted service of summons, the 2) Person in charge of the
office
following must be established in the proof of
service: [Sps. Ventura v. CA (1987)]
• The service does not
1) Impossibility of the personal service of bind individually any
summons within a reasonable time; person whose
2) Efforts made to find the defendant connection with the
personally and the fact that such efforts entity was already
failed; [Laus v. CA (1993)] severed before the
3) Service by leaving copy of summons either: service
a) With some person of suitable age and Service upon minors Serve upon the
and incompetents minor/incompetent and on
discretion then residing in the
[Rule 14, Sec. 10] his legal guardian.
defendant’s residence;
b) With some competent person in charge • If there is no guardian,
of the defendant’s office or regular plaintiff may apply for
place of business. the appointment of a
• For a substituted service to be valid, summons guardian ad litem.
served at the defendant's residence must be • If minor, may serve on
served at his residence at the time of such his parents.
Service upon prisoner Serve upon the officer
service and not at his former place of
[Rule 14, Sec. 9] having management of the
residence. "Dwelling house" or "residence" jail/prison
refer to the place where the person named in Service upon domestic Serve upon either the:
the summons is living at the time when the private juridical entity 1) President
service is made, even though he may be [Rule 14, Sec. 11] 2) Managing partner
temporarily out of the country at the time. 3) General manager
[Sps. Ventura v. CA (1987)] 4) Corporate secretary
• Substituted service must be used only as 5) Treasurer
prescribed and in the circumstances authorized 6) In-house counsel
by statute. Statutes prescribing modes other Service upon foreign Serve upon the resident
than personal service of summons must be private juridical entity agent;
strictly complied with to give the court [Rule 14, Sec. 12]
jurisdiction, and such compliance must appear Otherwise, upon either:
• Government official
affirmatively in the return. [Laus v. CA (1993)]
designated by law;
• Absence in the sheriff's return of a statement • Any officer or agent of
about the impossibility of personal service does the corporation within
not conclusively prove that the service is the Philippines
invalid. Proof of prior attempts at personal Service upon public If the defendant is the
service may be submitted by the plaintiff corporations Republic of the Philippines
during the hearing of any incident assailing the [Rule 14, Sec. 13] – Serve upon the OSG
validity of the substituted service. While the
If the defendant is a
sheriff's return carries with it the disputable
province/city/municipality
presumption of regularity in the sense that the or like public corporations
entries therein are deemed correct, it does not – Serve upon the executive
necessarily follow that an act done in relation head or other officers as
to the official duty for which the return is made the law/court may direct
was not done simply because it is not disclosed Extraterritorial service • Requisites:
therein. [Mapa v. CA (1992)] [Rule 14, Sec. 15] 1) Defendant does not
reside or is not found
in the Philippines;
3. PUBLICATION [Rule 14, Sec. 14] 2) Action either:
a) Affects the plaintiff’s
• Requisites: personal status;
1) The action is in rem or quasi in rem; b) Relates to or the
2) Defendant's identity or whereabouts are subject matter of
unknown and cannot be ascertained by which is property
diligent inquiry; within the Philippines
in which defendant
3) There must be leave of court.
has a lien/interest;
• Summons by publication in a personal action c) Demands a relief
cannot confer upon the court jurisdiction over which consists
the person of the defendant, who does not wholly/partially in
voluntarily submit himself to the authority of excluding the
the court. The proper recourse for the plaintiff defendant from any
is to locate properties of the defendant whose interest in any
address is unknown and cause them to be property within the
Philippines;
attached. [Consolidated Plywood vs. Breve
d) Has defendant’s
(1988)] property in the
Philippines,
SERVICE OF SUMMONS UPON DIFFERENT attached.
ENTITIES
• Modes of service:
a) With leave of court,
Service on person If sued under the name by serve outside the
associated in an entity which they are commonly Philippines by personal
without juridical known – Serve upon service; or

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CIVIL PROCEDURE
b) With leave of court,
serve by publication in
a newspaper of general
circulation, in which
case copy of the
summons and order of
the court must also be
sent by registered mail
to the defendant’s last
known address;
c) Any other manner the
court deems sufficient
• The court order granting
extraterritorial service
shall specify a period of
at least 60 days within
which the defendant
must answer.
Service upon a resident With leave of court, may
temporarily out of the serve extraterritorially
Philippines
[Rule 14, Sec. 16]
Service upon a defendant With leave of court, by
whose identity or publication in a newspaper
whereabouts are of general circulation
unknown [Rule 14, Sec.
14]
• Summons is validly served if it is left with some
person of suitable age and discretion then
residing in the defendant's residence, even if
defendant was abroad at that time. The fact
that the defendant did not actually receive the
summons did not invalidate the service of such
summons. [Montalban v. Maximo]
WAIVER OF SERVICE OF SUMMONS [Rule
14, Sec. 20]
• Defendant's voluntary appearance in the action
shall be equivalent to service of summons;
• Exception: Special appearance to file a
MTD.
• Inclusion in the MTD of grounds other
than LOJ over the defendant’s person,
is not deemed a voluntary appearance.
• Any mode of appearance in court by a
defendant or his lawyer is equivalent to
service of summons, absent any
indication that the appearance of
counsel for petitioner is precisely to
protest the jurisdiction of the court
over the person of the defendant.
[Delos Santos v. Montesa (1993)]
RETURN OF SERVICE [Rule 14, Sec. 4]
• When service has been completed, the server
shall serve a copy of the return within 5 days
(personally or by registered mail) to the
plaintiff's counsel, and shall return the
summons to the clerk who issued it,
accompanied with the proof of service.
• General rule: Return of service of summons
immediately shifts burden of evidence from
plaintiff to defendant since there is a
presumption of regularity.
• Without return of service: Burden is on
plaintiff.
• In the Mapa case, though, while there was
a return, return was patently irregular, thus
no presumption of regularity could be had.
• Exception: Doctrine of substantial
compliance – If defendant actually received
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summons and complaint despite all these
technicalities.
PROOF OF SERVICE
1) If personal or substituted service: In writing by
the server and shall: [Rule 14, Sec. 18]
• Set forth the manner/place/date of service;
• Specify any papers which have been served
with the process and the name of the
person who received the same;
• Be sworn to when made by a person other
than a sheriff or his deputy.
2) If by publication: [Rule 14, Sec. 19]
a) Affidavit of the printer, foreman, principal
clerk, editor, business/advertising
manager, with a copy of the publication
attached.
b) Affidavit showing the deposit of a copy of
the summons and order for publication in
the post office, postage prepaid, directed to
the defendant by registered mail to his last
known address.
EFFECT OF NON-SERVICE OF SUMMONS
• Unless the defendant voluntarily submits to the
jurisdiction of the court, non-service or
irregular service of summons renders null and
void all subsequent proceedings and issuances
in the action from the order of default up to
and including the judgment by default and the
order of execution.
• If the defendant has already been served with
summons on the original complaint, no further
summons is required on the amended
complaint if it does not introduce new causes of
action. [Ong Peng v. Custodio]
• But if the defendant was declared in default on
the original complaint and the plaintiff
subsequently filed an amended complaint, new
summons must be served on the defendant on
the amended complaint, as the original
complaint was deemed withdrawn upon such
amendment. [Atkins v. Domingo]
F. MOTIONS
• Definition: An application for relief other than
by a pleading. [Rule 15, Sec. 1]
Motion Pleading
Contains allegations of Contains allegations of
facts the ultimate facts
Prays for a relief Prays for a relief
Grant of the relief does Grant of relief
not extinguish the action extinguishes the action
(interlocutory relief) (final relief)
Generally in writing (with Always in writing
some exceptions)
• General rule: A motion cannot pray for
judgment.
• Exception:
1) Motion for judgment on the pleadings.
2) Motion for summary judgment.
3) Motion for judgment on demurrer to
evidence.
KINDS OF MOTION
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CIVIL PROCEDURE REMEDIAL LAW

1) MOTION EX PARTE - Made without b) If by personal service: Affidavit or

notification to the other party because the acknowledgment of receipt by the other
question generally presented is not debatable. party.
2) LITIGATED MOTION - Made with notice to • Exception:
the adverse party so that an opposition thereto a) If the motion is one which the court can
may be made. hear ex parte.
3) MOTION OF COURSE - Motion for a kind of b) If the court is satisfied that the rights
relief/remedy to which the movant is entitled to of the adverse parties are not affected
as a matter of right, Allegations contained in by the motion.
such motion do not have to be c) If the party is in default because such a
investigated/verified. party is not entitled to notice.
4) SPECIAL MOTION - Discretion of the court is
involved. An investigation of the facts alleged is MOTION DAY [Rule 15, Sec. 7]
required. • Except for urgent motions, motions are
scheduled for hearing:
MOTION’S FORM [Rule 15, Sec. 2] 1) On Friday afternoons;
• General rule: In writing. 2) Afternoon of the next working day, if Friday
• Exception: Oral motions: is a non-working day.
1) Made in open court;
2) In the course of a hearing/trial. OMNIBUS MOTION RULE [Rule 15, Sec. 8]
• Definition: A motion attacking a
CONTENTS [Rule 15, Sec. 3] pleading/order/judgment/proceeding must
1) Relief sought to be obtained include all objections then available. All
2) Grounds upon which it is based objections not included in the motion are
3) If it is required/necessary to prove facts alleged deemed waived.
in a motion, it shall be accompanied by • Exception: When the court’s jurisdiction is
supporting affidavits and other papers. in issue:
• Motions raising factual issues must be 1) LOJ over subject-matter;
supported by affidavits. 2) Litis pendentia;
3) Res judicata;
REQUISITES OF MOTIONS (NOT MADE IN OPEN 4) Prescription.
COURT OR IN THE COURSE OF HEARING/TRIAL):
1) In writing; [Rule 15, Sec. 2] MOTION FOR LEAVE TO FILE A PLEADING/MOTION
2) Hearing on the motion set by the applicant; [Rule 15, Sec. 9]
• PRO FORMA MOTION – A motion failing • Must be accompanied by the pleading/motion
to indicate time and date of the hearing. sought to be admitted.
3) Notice of hearing shall addressed to all parties
not later than 10 days from the filing of the MOTIONS NOT ACTED UPON
motion. [Rule 15, Sec. 5] • Parties and counsel should not assume that
• Notice must be addressed to the counsels. courts are bound to grant the time they pray
A notice of hearing addressed to the clerk for. After all, a motion that is not acted upon in
of court, and not to the parties, is no notice due time is deemed denied. [Orosa v. CA
at all. Accordingly, a motion that does not (1996)]
contain a notice of hearing to the adverse
party is nothing but a mere scrap of paper,
as if it were not filed; hence, it did not
suspend the running of the period to
appeal. [Provident International Resources
v. CA (1996)]
4) Motion and notice of hearing must be served at
least 3 days before the date of hearing; [Rule
15, Sec. 4]
• Purpose: To prevent surprise upon the
adverse party and to enable the latter to
study and meet the arguments of the
motion.
• Exception:
a) Ex parte motions;
b) Urgent motions;
c) Motions agreed upon by the parties to
be heard on shorter notice, or jointly
submitted by the parties;
d) Motions for summary judgment which
must be served at least 10 days before
its hearing.
5) Proof of service. [Rule 15, Sec. 6]
• A written motion set for hearing will not be
acted upon by the court if there is no proof
of service thereof.
• What may be proof:
a) If by registered mail: Affidavit or
registry receipt or postmark on
envelope or return card, with an
explanation.

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IV. TERMINATING THE ACTION of the complaint to state a cause of action.

When the MTD is based on facts not appearing
BEFORE TRIAL of record, the court may hear the matter on
affidavits/depositions.

A. MOTION TO DISMISS (MTD) GROUNDS [Rule 16, Sec. 1]

1) LOJ over the defendant’s person;

2) LOJ over the subject matter of the claim;
DEFINITION
3) Improper venue;
4) Plaintiff’s lack of legal capacity to sue;
• MOTION TO DISMISS – A remedy of the 5) Litis pendentia;
defendant, or the responding party in general, 6) Res judicata;
which attacks the entire pleading and seeks its 7) Prescription;
dismissal based on: 8) Failure to state a cause of action;
1) Grounds which are patent on the face of 9) Extinguished claim;
the complaint; 10) Unenforceable claim under the Statute of
2) Defenses available to the defendant at the Frauds;
time of the filing of the complaint. 11) Non-compliance with a condition precedent for
• It hypothetically admits the facts stated in the filing claim.
complaint.
• It is not a responsive pleading. It is not a
1. LOJ OVER THE DEFENDANT’S
pleading at all. It is subject to the omnibus
motion rule since it is a motion that attacks a PERSON
pleading. Hence, it must raise all objections
available at the time of the filing thereof. • The objection of LOJ over the person on
• General rule: A court may not motu propio account of lack of service or defective service
dismiss a case, unless a motion to that effect is of summons, must be raised:
filed by a party. • At the very first opportunity;
• Exception: • Before any voluntary appearance is made.
1) Cases where the court may dismiss a • If a defendant had not been properly
case motu propio; [Rule 9, Sec. 1] summoned, the period to file a MTD for
2) Failure to prosecute; [Rule 17, Sec. 3] LOJ over his person does not
3) Sec. 4, Revised Rule on Summary commence to run until he voluntarily
Procedure. submits to the jurisdiction of the court.
[Laus v. CA (1993)]
TYPES OF DISMISSAL OF ACTION: • Appearance of counsel is equivalent to
summons, unless such is made to
1) MTD before answer under Rule 16; protest the jurisdiction of the court
2) MTD under Rule 17: over the person of the defendant. If
a) Upon notice by plaintiff; grounds other than invalid service of
b) Upon motion by plaintiff; summons are raised, it cannot be
c) Due to fault of plaintiff. considered as a special appearance.
3) Demurrer to evidence after plaintiff has [De los Santos v. Montesa (1993)]
completed the presentation of his evidence
under Rule 33; 2. LOJ OVER THE SUBJECT MATTER
4) Dismissal of an appeal.
OF THE CLAIM
MTD under Rule 16 MTD under Rule 33
(Demurrer to • If the complaint shows on its face LOJ, the
evidence) court may dismiss the case outright instead of
Based on preliminary Based on insufficiency of hearing the motion.
objections evidence • A MTD on the ground of LOJover the subject
May be filed by any May be filed only by the matter may be raised either:
defending party against defendant against the 1) Before answer;
whom a claim is asserted complaint of the plaintiff
2) After answer is filed;
in the action
3) After hearing had commenced;
Should be filed within the May be filed only after
time for, but prior to, the the plaintiff has 4) At any stage of the proceeding, even for
filing of the defending completed the the first time on appeal and even if no such
party’s answer to the presentation of his defense is raised in the answer.
pleading asserting the evidence
claim against him 3. IMPROPER VENUE
If denied, defendant If denied, defendant may
answers; else, he may be present evidence.
declared in default. If granted, plaintiff • Unless and until the defendant objects to the
If granted, plaintiff may appeals and the order of venue in a MTD prior to a responsive pleading,
appeal or if a subsequent the dismissal is reversed; the venue cannot truly be said to have been
case is not barred, he the defendant loses his improperly laid since, for all practical intents
may re-file the case right to present evidence. and purposes, the venue though technically
wrong may yet be considered acceptable to the
• A MTD shall be proved/disproved according to parties for whose convenience the rules on
the rules of evidence. The hearing shall be venue had been devised. Improper venue may
conducted as an ordinary hearing and the be waived and such waiver may occur by
parties shall be allowed to present evidence, laches. [Diaz v. Adiong (1993)]
except when the motion is based upon failure

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CIVIL PROCEDURE
• A stipulation between the parties as to venue
does not preclude the filing of suits in the
residence of plaintiff/defendant under Rule 4,
Sec. 2(b). In the absence of
qualifying/restrictive words which would
indicate that a specific place alone is the venue,
an agreement as to venue is merely permissive
and there is no waiver of right to pursue
remedy in other courts. [HSBC v. Sherman
(1989)]
• If the court erroneously denies the MTD, the
remedy is prohibition.
4. PLAINTIFF’S LACK OF LEGAL
CAPACITY TO SUE
• The plaintiff lacks legal capacity to sue:
1) When he does not possess the necessary
qualification to appear at the trial (e.g.
when he plaintiff is not in the full exercise
of his civil rights);
2) When he does not have the character which
he claims, which is a matter of evidence
(e.g. when he is not really a duly appointed
administrator of an estate).
• Lack of legal capacity to sue refers to plaintiff’s
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real
party in interest, in which case the ground for
dismissal would be that the complaint states no
cause of action.
5. LITIS PENDENTIA
• Requisites: [Anderson Group v. CA (1997)]
1) Identity of parties;
2) identity of rights asserted and relief prayed
for;
3) Relief founded on the same facts and the
same basis;
4) Identity in the 2 proceedings should be
such that any judgment which may be
rendered in the other action will amount to
res judicata on the action under
consideration.
• It is not required to allege that there be a prior
pending case. It is sufficient to allege and
prove the pendency of another case, even if
same had been brought later.
• It does not require that the later case be
dismissed in favor of the earlier case. To
determine which case should be abated, apply:
1) The More Appropriate Action Test;
2) The Interest of Justice Test, taking into
account:
a) Nature of the controversy;
b) Comparative accessibility of the court
to the parties;
c) Other similar factors.
In both tests, the parties’ good faith shall be
taken into consideration. The 1st case shall be
abated if it is merely an anticipatory action or
defense against an expected suit. The 2nd case
will not be abated if it is not brought to harass.
[Vitrionics Computers v. RTC (1993)]
6. RES JUDICATA
• Requisites:
1) Former judgment rendered by a court
having jurisdiction over the subject matter
and over the parties;
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2) Judgment must be a final judgment;
3) Judgment must be on the merits;
• There can be res judicata without a
trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
4) There must be identity of parties, of subject
matter and of the causes of action.
• For res judicata to apply, absolute
identity of parties is not required
because substantial identity is
sufficient. Inclusion of additional parties
will not affect the application of the
principle of res judicata.
The test of identity of cause of
action lies not in the form of the action
but on WON the same evidence would
support and establish the former and
the present causes of action. [DBP v.
Pundogar (1993)]
• Rationale: The sum and substance of the
whole doctrine is that a matter once judicially
decided is finally decided because of: [Nabus v.
CA (1991)]
1) Public policy and necessity makes it the
interest of the State that there should be
an end to litigation;
2) The hardship on the individual that he
should be vexed twice for the same cause.
TWO CONCEPTS OF RES JUDICATA [Abalos v. CA
(1993)]
1) BAR BY PRIOR JUDGMENT – Judgment on
the merits in the 1st case constitutes an
absolute bar to the subsequent action not only
as to every matter which was offered and
received to sustain or defeat the
claim/demand, but also to any other admissible
matter which might have been offered for that
purpose and to all matters that could have
been adjudged in that case.
2) CONCLUSIVENESS OF JUDGMENT – Where
the 2nd action between the parties is upon a
different claim/demand, the judgment in the
1st case operates as an estoppel only with
regard to those issues directly controverted,
upon the determination of which the judgment
was rendered.
7. STATUTE OF LIMITATIONS
• Prescription applies only when the complaint on
its face shows that indeed the action has
already prescribed.
• If the fact of prescription is not indicated on the
face of the complaint and the same may be
brought out later, the court must defer decision
on the motion until such time as proof may be
presented on such fact of prescription.
Prescription Laches
Concerned with the fact Concerned with the effect
of delay of delay
A matter of time A matter of equity
Statutory Not statutory
Applies in law Applies in equity
Based on fixed time Not based on fixed time
8. COMPLAINT STATES NO CAUSE OF
ACTION
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CIVIL PROCEDURE
• Failure to state a cause of action (not lack of
cause of action) is the ground for a MTD. The
former means there is insufficiency in the
allegations in the pleading. The latter means
that there is insufficiency in the factual basis of
the action.
• The failure to state a cause of action must be
evident on the face of the complaint itself.
• Test: Assuming the allegations and statements
to be true, does the plaintiff have a valid cause
of action?
• A MTD based upon the ground of failure to
state a cause of action imports a hypothetical
admission by the defendant of the facts alleged
in the complaint. If the court finds the
allegations of the complaint to be sufficient but
doubts their veracity, it must deny the MTD
and require the defendant to answer and then
proceed to try the case on its merits.
• A complaint containing a premature cause of
action may be dismissed for failure to state a
cause of action.
• If the suit is not brought against the real party-
in-interest, a motion to dismiss may be filed on
the ground that the complaint states no cause
of action. [Tanpinco v. IAC (1992)]
9. EXTINGUISHED CLAIM
• That the claim/demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned or otherwise extinguished.
10. UNENFORCEABLE CLAIM UNDER
THE STATUTE OF FRAUDS
11. NON-COMPLIANCE WITH A
CONDITION PRECEDENT
• Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of
the case on the ground of non-compliance with
a condition precedent.
PLEADING THE GROUNDS AS AFFIRMATIVE
DEFENSES [Rule 16, Sec. 6]
• If no MTD was filed, the grounds in Rule 16,
Sec. 1 may be pleaded as an affirmative
defense and the court may conduct a
preliminary hearing thereon as if a MTD was
filed.
HEARING AND ORDER
• During the hearing of the motion, parties shall
submit: [Rule 16, Sec. 2]
1) Their arguments on questions of law;
2) Their evidence on questions of fact.
• Exception: Those not available at that
time.
• If the case goes to trial, such evidence
presented shall automatically be part of
the evidence of the party who
presented them.
• After the hearing, the court may either: [Rule
16, Sec. 3]
1) Dismiss the action/claim;
2) Deny the MTD;
3) Order the amendment of pleadings.
• The court’s resolution on the MTD must clearly
and distinctly state the reasons therefor.
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• The court cannot defer the resolution of the
MTD for the reason that the ground relied upon
is not indubitable.
EFFECTS
1) Of dismissal: [Rule 16, Sec.5]
• General rule: The action/claim may be re-
filed.
• Exception: The action cannot be re-
filed (although subject to appeal) if it
was dismissed on any of the following
grounds:
a) Res judicata;
b) Prescription;
c) Extinguishment of the
claim/demand;
d) Unenforceability under the Statute
of Frauds.
2) On periods for pleading: [Rule 16, Sec.4]
a) If MTD is denied – Movant must file his
answer within the balance of the period
under Rule 11 to which he was entitled at
the time of serving his MTD (but not less
than 5 days).
b) If pleading is ordered to be amended –
Movant must file his answer within the
period under Rule 11, counted from service
of the amended pleading (unless the court
gives a longer period).
3) On other grounds and omnibus motion rule:
• MTD based on the following grounds may
be filed even after filing an answer: [Rule
9, Sec. 1]
1) LOJ over subject-matter;
2) Litis pendentia;
3) Res judicata;
4) Prescription.
• Dismissal of the complaint under Rule 16, Sec.
6 is without prejudice to the prosecution (in the
same or in a separate action) of a counterclaim
pleaded in the answer.
B. DISMISSAL OF ACTIONS
1. DISMISSAL UPON PLAINTIFF’S
NOTICE [Rule 17, Sec. 1]
• Dismissal here is effected not by motion but by
mere notice before the service of either:
1) The answer;
2) A motion for summary judgment.
• Upon plaintiff’s filing of notice, the court shall
issue an order dismissing the case. (i.e. the
court has no discretion on WON to dismiss the
case).
• The dismissal is without prejudice.
• Exception:
1) If the notice of dismissal provides that
it is with prejudice.
• The dismissal is still with prejudice
even it the notice of dismissal does
not so provide, where such notice is
premised on the fact of payment by
the defendant of the claim
involved. [Serrano v. Cabrera]
2) TWO-DISMISSAL RULE – If the
plaintiff has previously dismissed an
action based on or including the same
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CIVIL PROCEDURE REMEDIAL LAW

claim, the notice operates as an Dismissal is without Dismissal is without

adjudication on the merits. prejudice to the prejudice to the
defendant’s right to defendant’s right to
prosecute his prosecute his
2. DISMISSAL UPON counterclaim in a counterclaim in the same
PLAINTIFF’S MOTION [Rule 17, separate action (unless or in a separate action
Sec. 2] within 15 days from
notice of the motion he
manifests his intention to
• Here, dismissal of the complaint is subject to have his counterclaim
the court’s discretion and upon such terms and resolved in the same
conditions as may be just. action)
• Leave of court for the dismissal is necessary
because the motion is made after a responsive
pleading or a motion for summary judgment DISMISSAL OF COUNTERCLAIMS/CROSS-
has been served. CLAIMS/3RD-PARTY COMPLAINTS [Rule 17,
• If defendant pleaded a counterclaim prior to Sec. 4]
the service upon him of the plaintiff’s motion
for dismissal, the dismissal shall be without • Rule 17 applies to the dismissal of
prejudice to the defendant’s right to either: counterclaims, cross-claims or 3rd-party
1) Prosecute his counterclaim in a separate complaints.
action; • Where a counterclaim is made the subject of a
2) Have the counterclaim resolved in the same separate suit, it may be abated upon a plea of
action, by manifesting such preference auter action pendentia and/or dismissal on the
within 15 days from being notified of ground of res judicata. Res judicata, however,
plaintiff’s motion for dismissal. is not applicable since the court held that it did
• Dismissal here is without prejudice, unless not acquire jurisdiction due to non-payment of
otherwise provided in the order. docket fees. Dismissal on the ground of LOJ
• Court approval of the court is necessary in the does not constitute res judicata, there being no
dismissal/compromise of a class suit. consideration and adjudication of the case on
the merits. Neither is there litis pendentia.
3. DISMISSAL DUE TO [Meliton v. CA (1992)]
PLAINTIFF’S FAULT [Rule 17,
Sec. 3]
C. DEFAULTS [Rule 9, Sec. 3]
• If, without justifiable cause, plaintiff fails
either:
1) To appear on the date of the presentation • Definition: Failure of the defendant to answer
of his evidence-in-chief on the complaint; within the proper period. It is not his failure to
• The plaintiff’s failure to appear at the appear nor his failure to present evidence.
trial after he has presented his
evidence and rested his case does not Order of default Judgment by default
warrant the dismissal of the case on Issued by the court on Rendered by the court
the ground of failure to prosecute. It is plaintiff’s motion, for following a default order
merely a waiver of his right to cross- failure of the defendant to or after it received ex
examine and to object to the file his responsive parte plaintiff’s
pleading seasonably evidence
admissibility of evidence. [Jalover v.
Interlocutory – Not Final – Appealable
Ytoriaga]
appealable
2) To prosecute his action for an unreasonable
length of time (nolle prosequi);
ELEMENTS OF A VALID DECLARATION OF DEFAULT
• The test for dismissal of a case due to
1) Court validly acquired jurisdiction over the
failure to prosecute is WON, under the
defendant’s person, either by service of
circumstances, the plaintiff is
summons or voluntary appearance;
chargeable with want of due diligence
2) Defendant fails to answer within the time
in failing to proceed with reasonable
allowed therefor;
promptitude. [Calalang v. CA (1993)]
3) Motion to declare the defendant in default;
3) To comply with the ROC or any court order.
4) Notice to the defendant by serving upon him a
• Here, the case may be dismissed motu propio
copy of such motion;
or upon the defendant’s motion.
5) Proof of such failure to answer.
• The dismissal has the effect of an adjudication
on the merits, unless the court declares
CASES WHERE NO DEFAULTS ARE ALLOWED
otherwise.
1) Annulment of marriage; Declaration of nullity of
marriage; Legal Separation;
Rule 17, Sec. 2 Rule 17, Sec. 3
• Here, the court shall order the prosecuting
Dismissal is at the Dismissal is not procured
plaintiff’s instance by plaintiff, although attorney to investigate WON parties are
justified by causes colluding and, if there is no collusion, to
imputable to him intervene from the State to ensure that
Dismissal is a matter of Dismissal is a matter of evidence is not fabricated.
procedure, without evidence, an adjudication 2) Special civil actions of certiorari, prohibition
prejudice unless on the merits and mandamus, where comment (instead of an
otherwise stated in the answer) is required to be filed.
court order or on
plaintiff’s motion for
dismissal of his own
EFFECT OF ORDER OF DEFAULT
complaint.

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CIVIL PROCEDURE REMEDIAL LAW

1) Party in default loses standing in court as a

party litigant. His failure to answer operates as who fails to appear effect
a waiver of right to take part in the trial, of
being heard, and of presenting evidence in his Plaintiff Cause for dismissal of the
action which will be with
favor.
prejudice, unless
• If the defendant was declared in default otherwise ordered by the
upon an original complaint, the filing of the court
amended complaint resulted in the
Defendant Cause to allow plaintiff to
withdrawal of the original complaint. present evidence ex
Hence, the defendant was entitled to file parte, and court to render
answer to the amended complaint as to judgment on the basis
which he was not in default. thereof
2) The court shall proceed to render judgment
granting the claimant relief as his pleading may
warrant, unless the court in its discretion
Default As in default
requires the claimant to submit evidence. Such
(Rule 9, Sec. 3) (Rule 18, Sec. 5)
reception of evidence may be delegated to the Upon motion and notice to Not required
clerk of court. defendant.
3) The party in default shall be entitled to notice Requires proof of failure Not required
of subsequent proceedings but not to take part to answer
in the trial. Court to render judgment, Court to allow plaintiff to
• A defendant declared in default cannot take unless it requires present evidence ex
part in the trial, but he cannot be submission of evidence parte, then the court
disqualified from testifying as a witness in shall render judgment
favor of non-defaulting defendants. [Cavili Relief awarded must be Relief awarded may be of
the same in nature and different nature and
v. Florendo]
amount as prayed for in amount from the relief
• A party in default is entitled to notice of: the complaint prayed for
a) Motion to declare him in default;
b) Order declaring him in default; • A defendant who already filed an answer
c) Subsequent proceedings; cannot be declared in default. Only when the
d) Service of final orders and judgments. defendant fails to file an answer to the
complaint may the court proceed to render
RELIEF FROM ORDER OF DEFAULT judgment. [Lesaca v. CA (1992)]
• Before judgment, a party declared in default • The Revised Rules on Summary Procedure does
may file a motion under oath to set aside the not provide that an answer filed after the
order of default upon proper showing that: reglamentary period should be expunged from
1) His failure to answer was due to fraud, the records. As a matter of fact, there is no
accident, mistake or excusable negligence; provision for an entry of default if a defendant
2) He has a meritorious defense. fails to file his answer. The defense of LOJ may
• In such case, the order of default may be set have even been raised by the defendant in a
aside on terms and conditions as justice MTD as an exception to the rule on prohibited
requires. pleadings in the Revised Rule on Summary
Procedure. Such a motion is allowed under Sec.
EFFECT OF PARTIAL DEFAULT 19(a) thereof. [Bayog v. Natino (1996)]
• If the pleading asserting a claim states a • Where the failure to appear at the pre-trial
common cause of action against several hearing was uncontrovertedly due to illness,
defending parties, and some of the defending the default order may be set aside on the
parties answer while the others fail, the court ground of accident over which petitioner had no
shall try the case against all defendants upon control. Also, the order of arrest was illegal as
the answers filed and render judgment upon there is nothing in the ROC which authorizes
the evidence presented. such a consequence of a default order.
• Exception: If the defense is personal to [Malanyaon v. Sunga (1992)]
the one who answered; in which case, it
will not benefit those who did not answer. REMEDIES
• Pleadings, as well as remedial laws, should be
EXTENT OF RELIEF TO BE AWARDED liberally construed in order that litigants may
• The award shall not exceed the amount or be have ample opportunity to prove their
different in kind from that prayed for; nor respective claims, and possible denial of
award unliquidated damages. substantial justice. [Gerales v. CA]
• Rationale: It is presumed that where the relief
demanded is greater or different in kind,
defendant would not have allowed himself to be
declared in default.
• In a judgment based on evidence presented ex
parte, judgment should not exceed the amount
or be different in kind from that prayed for. On
the other hand, in a judgment where an answer
was filed but defendant did not appear at the
hearing, the award may exceed the amount or
be different in kind from that prayed for. [Datu
Samad Mangelen v. CA (1992)]

FAILURE TO APPEAR AT PRE-TRIAL

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CIVIL PROCEDURE REMEDIAL LAW

Motion to set aside At any time after the file a motion to set aside the declaration of
order of default [Rule 9, discovery of default and default, he has the right to appeal the default
Sec. 3(b)] before judgment, judgment. But in the appeal, only the evidence
defendant may file a of the petitioner may be considered,
motion under oath to set
respondent not having adduced any defense
aside order of default on
the ground that his failure evidence. [Boticano v. Chu (1987)]
to file an answer or
appear on the date set for
the pre-trial was due to
fraud, accident mistake of
D. JUDGMENT ON THE
law, and excusable PLEADINGS [Rule 34]
negligence and that he
has a meritorious defense

MNT [Rule 37, Sec. If the judgment has • Grounds: If the answer either:
1(a)] already been rendered 1) Fails to tender an issue;
when the defendant 2) Admits the material allegations of the
discovered the default, adverse party’s pleading.
but before the same • An answer fails to tender an issue due to
became final and
either:
executor.
1. General denial of the material allegations of
It should be filed within the complaint;
the period for perfecting 2. Insufficient denial of the material
an appeal. Timely filing allegations of the compliant.
thereof interrupts the 15- • A judgment on the pleadings can be done only
day reglementary period upon motion to the effect filed by the
for an appeal. It is appropriate party. It cannot be rendered by the
required that defendant
court motu propio.
file first a motion to lift
order of default to regain • Exception: If at pre-trial the court finds
his standing. [Tan v. CA that a judgment on the pleadings is proper,
(1997)] it may render such judgment motu propio.
Petition for relief from If the defendant [Rule 18, Sec. 2(g)]
order [Rule 38, Sec. 1 discovered the default • In the following cases, judgment on the
and 2] after the judgment has pleadings will not lie and material facts alleged
become final and in the complaint must always be proved:
executory
1) Declaration of nullity of marriage;
Appeal from the RTC The defendant may also 2) Annulment of marriage;
[Rule 41, Sec. 1] appeal from the judgment 3) Legal separation.
rendered against him as
• By moving for judgment on the pleadings, the
contrary to the evidence
or the law, even if he did
plaintiff waives his claim for unliquidated
not present a petition to damages (because claims for such damages
set aside the order of must be alleged and proved).
default • One who prays for the judgment on the
pleadings without offering proof as to the truth
[Dulos v. CA (1990)]
of his own allegations and without giving the
opposing party an opportunity to introduce
• An order of default is an interlocutory order
evidence, must be understood to admit all
which is not appealable. A judgment by default
material and relevant allegations of the
is a final disposition of the case and is
opposing party and to rest his motion for
appealable. [MERALCO v. La Campana Food
judgment upon those allegations taken
Products (1995)]
together with such of his own as are admitted
• A petition for certiorari under Rule 65, although
in the pleadings. [Falcasantos v. How Suy
not a substitute for an available or lost appeal,
Ching]
may be invoked while the orders of the lower
court are issued without or in excess of
jurisdiction. Judgment by default being
appealable, appeal should be perfected within E. SUMMARY JUDGMENTS
15 days from receipt of copy of order denying
MFR of default judgment. [Oriental Media v. CA
(1995)] • Definition: A judgment granted by the court
• A satisfactory showing by the movant of the for the prompt disposition of civil actions, if it
existence of fraud, accident, mistake or clearly appears that there exists no genuine
excusable neglect is an indispensable issue/controversy as to any material fact,
requirement for the setting aside of a judgment except as to the amount of damages.
of default or the order of default. A meritorious • Also called accelerated judgment.
defense is only one of the two conditions. The • GENUINE ISSUE – An issue of fact which calls
meritorious defense must concur with the for the presentation of evidence; as
satisfactory reason for the non-appearance of distinguished from an issue which is sham,
the defaulted party. If there is no such reason, fictitious, contrived and patently insubstantial
the appropriate remedy is an ordinary appeal so as not to constitute a genuine issue for trial.
under Rule 41, Sec. 2. [Ramnani v. CA (1993)] • When the facts as pleaded appear uncontested
• The jurisdiction was properly acquired by the or undisputed, then there is no real/genuine
TC over the defendant’s person; he was issue as to the facts.
therefore properly declared in default for not
having filed any answer. Despite his failure to

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CIVIL PROCEDURE REMEDIAL LAW

• The TC cannot motu propio issue a summary V. MODES OF DISCOVERY

judgment. A party must move for summary
judgment.

who may file motion when A. DEPOSITIONS UNDER

for summary
judgment RULE 23
Plaintiff May file the motion only
after the answer has been
served 1. GENERAL RULES
Defendant May file the motion any
time • PRIMARY FUNCTION OF A DEPOSITION -
Deposition is chiefly a mode of discovery, the
• Filing of a motion for summary judgment does primary function of which is to supplement the
not interrupt the running of the period for filing pleadings for the purpose of disclosing the real
an answer. Hence, the movant must also file a points of dispute between the parties and
Motion for Extension of Time to File Answer. affording an adequate factual basis during the
• Bases of summary judgment: When, upon the preparation for trial. The liberty of a party to
following, no genuine issue as to any material avail of such modes of discovery is unrestricted
fact exists: if the matters inquired into are relevant and not
1) Affidavits made on personal knowledge; privileged, and the inquiry is made in good
2) Depositions of the adverse or a 3rd party; faith and within the bounds of the law.
(Rule 23) Limitations would arise if the examination is
3) Admissions of the adverse party; (Rule 26) conducted in bad faith; or in such a manner as
4) Answers to interrogatories. (Rule 25) to annoy, embarrass or oppress the person
under examination; or when the inquiry
PARTIAL SUMMARY JUDGMENT touches upon the irrelevant or encroaches upon
• Applies when for some reason there can be no the recognized domains of privilege. Under
full summary judgment. Trial should deal only certain conditions and for certain limited
with the facts not yet specified or established. purposes, it may be taken even after trial has
The court shall direct further proceedings in the commenced and may be used without the
action as are just. deponent being actually called to the witness
• Effect of partial summary judgment: A partial stand. [Jonathan Landoil v Mangudadatu
summary judgment is not a final judgment, but (2006)]
merely a pre-trial adjudication that said issues • General Rule: A deposition is not generally
in the case shall be deemed established for the supposed to be a substitute for the actual
trial of the case. [Guevarra v. CA (1983)] testimony in open court of a party or witness.
If the witness is available to testify, he should
be presented in court to testify. If available to
Summary Judgment on Judgment by testify, a party’s or witness’ deposition is
judgment the pleadings default inadmissible in evidence for being hearsay.
Based on the Based solely Based on the [Dasmariñas Garments,Inc. v. Reyes (1993)]
pleadings, upon the complaint and • Exception: The exceptions however to the
depositions, pleadings evidence, if court inadmissibility of such deposition are
admissions and requires its provided for in Rule 23, Section 4, as
affidavits presentation
follows:
There is no The answer fails No issues as no
genuine issue to tender an answer is filed
between the issue or there is by the defending 1) Any deposition may be used by any
parties an admission of party party for the purpose of contradicting
the material or impeaching the testimony of
allegations deponent as a witness;
Available to Generally Available to the
both plaintiff available only to plaintiff alone 2) The deposition of a party or of any
and defendant the plaintiff,
one who at the time of taking the
unless the
defendant
deposition was an officer, director, or
presents a managing agent of a public or private
counterclaim corporation, partnership, or association
which is a party may be used by an
10-day notice 3-day notice 3-day notice rule adverse party for any purpose;
required required applies
May be On the merits On the merits 3) The deposition of a witness, whether
interlocutory or or not a party, may be used by any
on the merits
party for any purpose if the court finds:
Usually Available in any Available in any
available in action, except action, except
actions to annulment of annulment of a) that the witness is dead; or
recover a debt, marriage or marriage or legal
or for a legal separation separation cases b) that the witness resides at a
liquidated sum cases distance more than one hundred
of money, or (100) kilometers from the place of
for declaratory trial or hearing, or is out of the
relief Philippines, unless it appears that
his absence was procured by the
party offering the deposition; or

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CIVIL PROCEDURE REMEDIAL LAW

c) that the witness is unable to 3) before any person authorized to

attend to testify because of age, administer oaths as stipulated in
sickness, infirmity, or writing by the parties.
imprisonment; or
COMMISSION LETTERS
d) that the party offering the ROGATORY
deposition has been unable to ADDRESSED Any authority in A judicial
procure the attendance of the TO WHOM a foreign country authority in the
witness by subpoena; or authorized foreign country
therein to take
down depositions
e) upon application and notice, that
RULES THAT Rules laid down Rules laid down
such exceptional circumstances by the court by such foreign
GOVERN THE
exist as to make it desirable, in the issuing the judicial authority
DEPOSITION
interest of justice and with due commission
regard to the importance of WHEN Preferred over Generally
presenting the testimony of ISSUED letters rogatory resorted to when
witnesses orally in open court, to since the process there is difficulty
allow the deposition to be used; is simpler or impossibility
and (generally, no of obtaining the
need to resort to deposition by
diplomatic commission (J.
4) If only part of a deposition is offered in channels unlike Regalado)
evidence by a party, the adverse party may in letters
require him to introduce all of it which is rogatory)
relevant to the part introduced, and any TONE OF Usually In the form of a
party may introduce any other parts. COMMUNICA authoritative in request, it being
TION the sense that it issued to a
orders the representative of
2. BEFORE WHOM TAKEN commissioned another
officer to take sovereign state.
• General Rule: Depositions may be taken the deposition in
before any judge, notary public, or the person accordance with
referred to in section 14 (which refers to any the rules laid
person authorized to administer oaths down by the
issuing court
designated by the parties by stipulation).
• Exceptions: In our jurisdiction, depositions
in foreign countries may be taken: • No deposition shall be taken before a person
who is:
1) on notice before a secretary of 1) a relative within the sixth degree of
embassy or legation, consul general, consanguinity or affinity, or
consul, vice consul, or consular agent
of the Republic of the Philippines; 2) employee or counsel of any of the
parties, or who is a relative within the same
2) before such person or officer as may degree, or employee of such counsel; or
be appointed by commission or under
letters rogatory; or 3) who is financially interested in the
action.

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CIVIL PROCEDURE REMEDIAL LAW

3. PROCEDURE FOR TAKING DEPOSITIONS DE BENE ESSE UNDER RULE 23

Af ter jurisdiction has been obtained over any defendant or
over the property subject of the action, but bef ore the answ er
is f iled, FILE A MOTION TO TAKE DEPOSITION AND
SERVE REASONABLE NOTICE IN WRITING TO EV ERY
OTHER PARTY IN THE ACTION
Af ter an answ er has been f iled, no leave of court is
required thus, the party seeking to take deposition may
FILE A NOTICE TO TAKE DEPOSITION AND SERVE
REASONABLE NOTICE IN WRITING TO EV ERY
OTHER PARTY IN THE ACTION

PROOF OF SERVICE OF A NOTICE TO TAKE A DEPOSITION, AS PROVIDED I N

SECTIONS 15 AND 25 OF RUL E 23, shall constitute suff icient authorization for the
issuance of subpoenas f or the persons named in said notice by the clerk of the court of the
place in w hich the deposition is to be taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person w ithout an order of the court. (RUL E 21,
SECTION 5)

Upon court approval f or the taking of deposition,
the court upon motion seasonally made by any
party or the by the person to be examined f or good
cause show n (under Section 16), may issue orders
f or the protection of parties and deponents f rom
annoyance, embarrassment or oppression.
The court upon motion seasonally made by
any party or the by the person to be
examined f or good cause show n (under
Section 16), may issue orders f or the
protection of parties and deponents f rom
annoyance, embarrassment or oppression.

SCOPE OF EXAMINATION. Unless otherw ise ordered by the court as

provided by se ction 16 or 18 of this Rule, the deponent may be examined
regarding any m atter, not privilege d, w hic h is relevant to the subject of the
pending action.

DEPOSITION BY ORAL EXAMINATION: The of f ic er bef ore DEPOSITION BY WRITTEN INTERROGATORIES:

w hom the deposition is to be taken shall put the w itness on
oath and shall personally, or by some one acting under his
direction and in his presence, record the testimony of the
w itness. The testimony shall be taken stenographically unless
the parties agree otherw ise. All objections made at the time of
the examination to the qualif ications of the off icer taking the
deposition, or to the manner of talking it, or to the evidence
presented, or to the conduct of any party, and any other
objection to the proceedings, shall be noted by the officer
upon the deposition. Evidence objected to shall be taken
subject to the objections. IN L IEU OF PARTICIPATING IN
THE ORAL EXAMINATION, PARTIES SERV ED WITH
NOTICE OF TAKING A DEPOSITION MAY TRANSMIT
WRITTEN INTERROGATORIES TO THE OFFICERS, WHO
SHALL PROPOUND THEM TO THE WITNESS AND
RECORD THE ANSWERS VERBATIM. (Section 17)
A party desiring to take the deposition of any
person upon w ritten interrogatories shall serve
them upon every other party w ith a notice stating
the name and address of the person w ho is to
answ er them and the name or descriptive title and
address of the off ic er bef ore w hom the deposition
is to be taken. Within ten (10) days thereafter, a
party so served may serve cross-interrogatories
upon the party proposing to take the deposition.
Within f ive (5) days thereaf ter, the latter may serve
re-direct interrogatories upon a party w ho has
served cross-interrogatories. Within three (3) days
af ter being served w ith re-direct interrogatories, a
party may serve re cross-interrogatories upon the
party proposing to take the deposition.

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CIVIL PROCEDURE REMEDIAL LAW

A copy of the notice and copies of all interrogatories

Examination and cross-examination of deponents
may proceed as permitted at the trial under
sections 3 to 18 of Rule 132.
served shall be delivered by the party taking the
deposition to the officer designated in the notice, who
shall proceed promptly, in the manner provided by
sections 17 (i.e., questions are read to deponent
subject to objections), 19 and 20 of Rule 23.

MOTION TO LIMIT OR TERMINATE EXAMINATION: At any time during the taking of the deposition,
on motion or petition of any party or of the deponent, and upon a showing that the examination is
being conducted IN BAD FAITH OR IN SUCH MANNER AS UNREASONABLY TO ANNOY,
EMBARRASS, OR OPPRESS THE DEPONENT OR PARTY, the court in w hich the action is pending
or the Regional Trial Court of the place where the deposition is being taken may order the officer
conducting the examination to cease forthw ith from taking the deposition, or may limit the scope and
manner of the taking of the deposition, as provided in section 16 of this Rule.

SUBMISSION TO WITNESS, CHANGES, SIGNING: When the testimony is fully transcribed, the
deposition shall be submitted to the w itness for examination and shall be read to or by him, unless such
examination and reading are waiv ed by the witness and by the parties. Any changes in form or substance
which the w itness desires to make shall be entered upon the deposition by the officer with a statement of
the reasons giv en by the w itness for making them. The deposition shall then be signed by the w itness,
unless the parties by stipulation w aiv e the signing or the w itness is ill or cannot be found or refuses to sign.
If the deposition is not signed by the w itness, the officer shall sign it and state on the record the fact of the
waiver or of the illness or absence of the witness or the fact of the refusal to sign together w ith the reason
be given therefor, if any, and the deposition may then be used as fully as though signed, UNLESS ON A
MOTION TO SUPPRESS UNDER SECTION 29 (F) OF THIS RUL E, THE COURT HOLDS THAT THE
REASONS GIV EN FOR THE REFUSAL TO SIGN REQUIRE REJECTION OF T HE DEPOSITION IN
WHOLE OR IN PART.

CERTIFICATION, AND FILING BY OFFICER. The deposition offic er shall certify on

the deposition that the witness was duly sworn to by him and that the deposition is a
true record of the testimony given by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of the action and marked "Deposition
of (here insert the name of witness)" and shall promptly file it w ith the court in w hich the
action is pending or send it by regis tered mail to the clerk thereof for filing

NOTICE OF FILING. The officer taking the

deposition shall give prompt notice of its
filing to all the parties

FURNISHING COPIES. Upon payment of reasonable

charges therefor, the officer shall furnis h a copy of the
deposition to any party or to the deponent.

4. OTHER RULES TAKING A DEPOSITION. It in effect preserves

• RULE 23 Section 5. Effect of substitution of
parties. Substitution of parties does not affect
the right to use depositions previously taken;
and, when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties or
their representatives or successors in interest,
all depositions lawfully taken and duly filed in
the former action MAY BE USED IN THE LATTER
AS IF ORIGINALLY TAKEN THEREFOR.
• According to Professor Avena, the title of this
section notwithstanding, this SECTION
ACTUALLY ENUNCIATES THE EFFECT OF
testimony of a person subject to the limitations
of its use under Section 4 of the rule.
• A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition (Section 7).
• General Rule: Introduction in evidence of
deposition or any part thereof for any purpose
makes the deponent the witness of the party
introducing the deposition.
• Exception: if the purpose if to contradict
or impeach the deponent.
• ONLY INSTANCE WHEN ONE ALWAYS NEEDS
LEAVE OF COURT BEFORE TAKING
DEPOSITIONS: Where the deponent is in jail.
• DEPOSITION, WHEN AVAILABLE IN CRIMINAL
CASES: A deposition, in keeping with its nature

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CIVIL PROCEDURE REMEDIAL LAW

as a mode of discovery, should be taken

BEFORE AND NOT DURING TRIAL. In fact,
rules on criminal practice - particularly on the
defense of alibi, which is respondent’s main
defense in the criminal proceedings against him
in the court below - states that when a person
intends to rely on such a defense, that person
must move for the taking of the deposition of
his witnesses within the time provided for filing
a pre-trial motion. The use of discovery
procedure in criminal cases is directed to the
sound discretion of the trial judge. The
deposition taking can not be based nor can it
be denied on flimsy reasons. Discretion has to
be exercised in a reasonable manner and in
consonance with the spirit of the law. [People
v. Hubert Webb (1999)]
GROUNDS FOR QUESTIONING THE DEPOSITION
BEFORE DURING AFTER
DEPOSITION DEPOSITION DEPOSITION
e) the names and addresses of the persons to
be examined and the substance of the
testimony which he expects to elicit from
each, and shall ask for an order authorizing
the petitioner to take the depositions of the
persons to be examined named in the
petition for the purpose of perpetuating
their testimony.
2) NOTICE AND SERVICE to each person named in
the petition as an expected adverse party,
together with a copy of the petition, stating
that the petitioner will apply to the court, at a
time and place named therein, for the order
described in the petition. At least twenty (20)
days before the date of the hearing, the court
shall cause notice thereof to be served on the
parties and prospective deponents in the
manner provided for service of summons.

-Lack of notice to -Deposition -Manner of 3) ORDER AND EXAMINATION: If the court is

parties officer is preparing the satisfied that the perpetuation of the testimony
-Deposition disqualified deposition may prevent a failure or delay of justice, it
officer is -Error in the shall make an order
disqualified manner of taking
-Lack of the deposition 1) designating or describing the persons
relevance, -Error in the form
whose deposition may be taken and
materiality and of the deposition
competence of
specifying the subject matter of the
the deposition to examination and
the action
2) whether the depositions shall be taken
upon oral examination or written
• DASMARINAS GARMENTS VS. REYES (1993): interrogatories
Any deposition offered to prove the facts
therein at the trial of the case, in lieu of actual 4) Procedure for taking deposition by oral
testimony of the deponent in court, may be examination or written interrogatories will be
opposed and excluded for being hearsay save governed by Rule 23 on depositions de bene
in specific instances under the Rules. esse.
[Dasmariñas Garments v. Reyes (1993)]

C. DEPOSITIONS PENDING
B. DEPOSITIONS BEFORE
APPEAL UNDER RULE 24
ACTION UNDER RULE 24

• J. Regalado and Prof. Avena both believe that

• Purpose: To perpetuate the testimony of the following procedure is applicable to civil and
witnesses for probable use in the event of criminal cases.
further proceedings in said court. • Procedure:

• Procedure: 1) DURING THE PENDENCY OF AN APPEAL, THE

1) FILE A VERIFIED PETITION IN THE COURT OF
THE PLACE OF THE RESIDENCE OF ANY
EXPECTED ADVERSE PARTY. The petition shall
be entitled in the name of the petitioner and
shall show:
a) that the petitioner expects to be a party to
an action in a court of the Philippines but is
presently unable to bring it or cause it to
be brought;
b) the subject matter of the expected action
and his interest therein;
COURT IN WHICH THE JUDGMENT was
rendered may allow the taking of depositions of
witnesses to perpetuate their testimony in the
event of further proceedings in the said court.
In such case the party who desires to
perpetuate the testimony may make a motion
in the said court for leave to take the
depositions, upon the same notice and service
thereof as if the action was pending therein.
The motion shall state (a) the names and
addresses of the persons to be examined and
the substance of the testimony which he
expects to elicit from each, and (b) the reason
for perpetuating their testimony

c) the facts which he desires to establish by
the proposed testimony and his reasons for
desiring to perpetuate it;
d) the names or a description of the persons
he expects will be adverse parties and their
addresses so far as known; and
2) ORDER ALLOWING THE DEPOSITION: If the
court finds that the perpetuation of the
testimony is proper to avoid a failure or delay
of justice, it may make an order allowing the
deposition to be taken.

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CIVIL PROCEDURE
3) RULE 23 APPLIES ON THE MANNER OR
CONDUCT OF THE DEPOSITION.
D. INTERROGATORIES TO
PARTIES UNDER RULE 25
• Procedure:
1) Either:
1) BY LEAVE OF COURT AFTER
JURISDICTION HAS BEEN OBTAINED
OVER ANY DEFENDANT OR OVER
PROPERTY WHICH IS THE SUBJECT OF
THE ACTION, or
2) WITHOUT SUCH LEAVE AFTER AN
ANSWER HAS BEEN SERVED,
any party desiring to elicit material and
relevant facts from any adverse parties shall
file and serve upon the latter written
interrogatories to be answered by the party
served or, if the party served is a public or
private corporation or a partnership or
association, by any officer thereof competent to
testify in its behalf.
2) ANSWER. The interrogatories shall be
ANSWERED FULLY IN WRITING and shall be
SIGNED AND SWORN TO BY THE PERSON
MAKING THEM. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party
submitting the interrogatories within fifteen
(15) days after service thereof unless the court
on motion and for good cause shown, extends
or shortens the time.
3) ANSWER DEFERRED when objections to any
interrogatories is presented to the court within
ten (10) days after service thereof, with notice
as in case of a motion.
• NUMBER OF INTERROGATORIES. No party
may, without leave of court, serve more than
one set of interrogatories to be answered by
the same party (Section 4, Rule 23).
• SCOPE OF INTERROGATORIES: any matter, (1)
not privileged and which is (2) relevant to the
subject of the pending action, whether relating
to the claim or defense of any other party,
including the existence, description, nature,
custody, condition, and location of any books,
documents, or other tangible things and the
identity and location of persons having
knowledge of relevant facts
• USE OF INTERROGATORIES: Same as Rule 23
Section 4 mutatis mutandis.
• CONSEQUENCE OF FAILURE TO SERVE
WRITTEN INTERROGATORIES. A party not
served with written interrogatories may not be
compelled by the adverse party to give
testimony in open court, or to give a deposition
pending appeal unless thereafter allowed by
the court for good cause shown and to prevent
a failure of justice. (RULE 25, section 6)
• CONSEQUENCES OF REFUSAL TO ANSWER THE
SET OF INTERROGATORIES:
1) The party serving the interrogatories may
apply to the court for an order to compel
an answer. If it also finds that the refusal
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
to answer was without substantial
justification, it may require the refusing
party or deponent or the counsel advising
the refusal, or both of them, TO PAY THE
PROPONENT THE AMOUNT OF THE
REASONABLE EXPENSES INCURRED IN
OBTAINING THE ORDER, INCLUDING
ATTORNEY'S FEES (Rule 29, section 1).
2) CONTEMPT for refusal to comply with an
order of the court to compel an answer
(According to Prof. Avena, the basis is Rule
71, Section 3b, not Rule 29.2 which refers
only to depositions)
3) Subject of discovery DEEMED ADMITTED
OR ESTABLISHED (RULE 29 SECTION 3a).
4) Party prohibited from introducing
CONTRADICTORY EVIDENCE (RULE 29,
SECTION 3b)
5) STRIKING OUT PLEADINGS OR PARTS
THEREOF (RULE 29, SECTION 3c)
6) STAYING FURTHER PROCEEDINGS UNTIL
THE ORDER IS OBEYED, or DISMISSING
THE ACTION OR PROCEEDING OR ANY
PART THEREOF(RULE 29, SECTION 3c), or
7) RENDERING A JUDGMENT BY DEFAULT
AGAINST THE DISOBEDIENT PARTY; AND
(RULE 29, SECTION 3c)
8) In lieu of any of the foregoing orders or in
addition thereto, an order directing the
arrest of any party or agent of a party for
disobeying any of such orders (RULE 29,
SECTION 3c)
E. REQUEST FOR ADMISSION
UNDER RULE 26
1) AT ANY TIME AFTER ISSUES HAVE BEEN
JOINED, a party may file and serve upon any
other party may file and serve upon any other
party a written request for the admission by
the latter of
a) the GENUINENESS OF ANY MATERIAL AND
RELEVANT DOCUMENT DESCRIBED IN AND
EXHIBITED WITH THE REQUEST or
b) of the TRUTH OF ANY MATERIAL AND
RELEVANT MATTER OF FACT SET FORTH IN
THE REQUEST.
2) EACH OF THE MATTERS OF WHICH AN
ADMISSION IS REQUESTED SHALL BE DEEMED
ADMITTED unless, within a period designated in
the request, which shall not be less than fifteen
(15) days after service thereof, or within such
further time as the court may allow on motion,
the party to whom the request is directed files
and serves upon the party requesting the
admission a SWORN STATEMENT either
a) denying specifically the matters of which an
admission is requested or
b) setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters.
3) OBJECTIONS TO ANY REQUEST FOR
ADMISSION SHALL BE SUBMITTED TO THE
COURT BY THE PARTY REQUESTED WITHIN
THE PERIOD FOR AND PRIOR TO THE FILING
OF HIS SWORN STATEMENT as contemplated in
the preceding paragraph and his compliance
therewith shall be deferred until such
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CIVIL PROCEDURE REMEDIAL LAW

objections are resolved, which resolution shall SUBPOENA ORDER FOR

be made as early as practicable. DUCES THE
TECUM PRODUCTION
• EFFECT OF ADMISSION. Any admission made OR
by a party pursuant to such request is for the INSPECTION
purpose of the pending action only and shall evidence
not constitute an admission by him for any Note the term material to any
other purpose nor may the same be used ALSO in Rule matter
against him in any other proceeding. 21, section1. involved in the
• WITHDRAWAL. The court may allow the party This for her is action and
making an admission under the Rule, whether an inherent which are in
express or implied, to withdraw or amend it limitation of his possession,
upon such terms as may be just. subpoena. This custody or
• EFFECT OF FAILURE TO FILE AND SERVE she believes is control, or
REQUEST FOR ADMISSION. Unless otherwise the reason why
allowed by the court for (1) good cause shown Rule 27 (b) order any
and (2) to prevent a failure of justice, a party becomes party to permit
who fails to file and serve a request for relevant. entry upon
admission on the adverse party of material and designated
relevant facts at issue which ARE, OR OUGHT land or other
TO BE, WITHIN THE PERSONAL KNOWLEDGE property in his
OF THE LATTER, SHALL NOT BE PERMITTED TO possession or
PRESENT EVIDENCE ON SUCH FACTS. control for the
• The request for admission MUST BE SERVED purpose of
ON THE PARTY and NOT ON THE COUNSEL. inspecting,
This is an exception to the general rule that measuring,
notices shall be served upon counsel and not surveying, or
upon the party. [Duque v. CA (2002)] photographing
the property or
any designated
F. PRODUCTION OR relevant object
or operation
INSPECTION OF thereon.
DOCUMENTS OR THINGS
TO WHOM To any person Only to a party
DIRECTED
• This mode of discovery does not mean that the
person who is required to produce the
WHEN IT Only during Before and/or
document or the thing will be deprived of its
MAY BE trial during trial
possession even temporarily. It is enough that
ASKED
the requesting party be given the opportunity
to inspect or copy or photograph the document
or take a look at the thing. ISSUED BY Issued by a Issued by the
WHOM court before court where
whom the the action is
witness is pending
SUBPOENA ORDER FOR
required to
DUCES THE
attend, or
TECUM PRODUCTION
court where
OR
the deposition
INSPECTION
is to be taken
NATURE Process (a) order any
or clerk or
requiring a party to
body
person to bring produce and
authorized by
with him any permit the
law or any
books, inspection and
justice of the
documents, copying or
Supreme Court
documents, or photographing,
or CA in any
other things by or on behalf
case or
under his of the moving
investigation
control or party, of any
pending within
possession. designated
the Philippines
documents,
WHEN Issued upon Issued upon
papers, books,
ISSUED request motion
accounts,
(Request to (application
AVENA letters,
the clerk, no with notice to
NOTES: photographs,
notice) the other
Subpoena objects or
party)
duces tecum tangible
WHETHER NO YES
CANNOT BE things, not
IT IS
ISSUED privileged,
NECESSARY
without a prior which
TO SHOW
subpoena ad constitute or
GOOD
testificandum contain

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CIVIL PROCEDURE REMEDIAL LAW

SUBPOENA ORDER FOR • WAIVER OF PRIVILEGE. By requesting and

DUCES THE obtaining a report of the examination so
TECUM PRODUCTION ordered or by taking the deposition of the
OR examiner, the party examined waives any
INSPECTION privilege he may have in that action or any
CAUSE other involving the same controversy,
GROUNDS Unreasonable, No good cause regarding the testimony of every other person
FOR oppressive, shown who has examined or may thereafter examine
QUASHAL irrelevant, or him in respect of the same mental or physical
examination.
The person in
whose behalf • PHYSICIAN-PATIENT PRIVILEGE, INAPPLICABLE
the subpoena because the results of the examination are
is issued fails intended to be made public. Such examination
to advance the is not necessary to treat or cure the patient but
reasonable to assess the extent of injury or to evaluate his
costs of the physic al or mental condition.
production
thereof
CONSE- Constitutes See Section 3, H. CONSEQUENCES OF
QUENCE OF contempt of Rule 29
DISOBE- the court from REFUSAL UNDER RULE 29
DIENCE which the
subpoena is
issued.

PROVISION HIGHLIGHTS APPLICABILITY

G. PHYSICAL AND MENTAL
Section 1. REFUSAL TO
EXAMINATION OF A PARTY ANSWER. If a party or other
UNDER RULE 28 deponent refuses to answer PARTY OR
any question upon oral DEPONENT
examination, /WITNESS IN
• Procedure:
(1) the examination may be RULE 23
completed on other matters (depositions de
1) MOTION FOR THE ISSUANCE OF AN ORDER
or bene esse),
FOR EXAMINATION, requisites
(2) adjourned as the RULE 24
a) the lis mota of the case is the physical or
proponent of the question (depositions in
mental condition of a party (NOT A
may prefer. perpetuam rei
WITNESS!!!)
memoriam)
(3) The proponent may
b) good cause
thereafter apply (i.e., by RULE 25.
MOTION FOR THE ISSUANCE INTERROGATORIES
c) notice to the party to be examined
OF AN ORDER TO COMPEL TO PARTIES
AN ANSWER- Prof. Avena) to
d) must specify physician
the proper court of the place
where the deposition is
e) scope of examination
being taken, for an order to
compel an answer.
2) COURT IN WHICH THE ACTION IS PENDING
MAY IN ITS DISCRETION issue the order for
• IF THE APPLICATION IS
examination.
GRANTED, the court shall
require the refusing party
3) REPORT OF FINDINGS. If requested by the
or deponent to answer the
party examined, the party causing the
question or interrogatory
examination to be made shall deliver to him a
and if it also finds that the
copy of a detailed written report of the
refusal to answer was
examining physician setting out his findings
without substantial
and conclusions. After such request and
justification, it may require
delivery, the party causing the examination to
the refusing party or
be made shall be entitled upon request to
deponent or the counsel
receive from the party examined a like report
advising the refusal, or
of any examination, previously or thereafter
both of them, to pay the
made, of the same mental or physical
proponent the amount of
condition. If the party examined refuses to
the reasonable expenses
deliver such report, the court on motion and
incurred in obtaining the
notice may make an order requiring delivery on
order, including attorney's
such terms as are just, and if a physician fails
fees.
or refuses to make such a report the court may
exclude his testimony if offered at the trial.
• IF THE APPLICATION IS
DENIED and the court finds

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CIVIL PROCEDURE REMEDIAL LAW

PROVISION HIGHLIGHTS APPLICABILITY PROVISION HIGHLIGHTS APPLICABILITY

that it was filed without taken to be established for (depositions de

substantial justification, the purposes of the action in bene esse),
the court may require the accordance with the claim of
proponent or the counsel the party obtaining the RULE 24
advising the filing of the order; (depositions in
application, or both of perpetuam rei
them, to pay to the (b) An order memoriam)
refusing party or deponent (1) refusing to allow
the amount of the the disobedient RULE 25
reasonable expenses party to support or (Interrogatories to
incurred in opposing the oppose designated parties)
application, including claims or defenses
attorney's fees. or RULE 27 (Motion for
production or
(2) prohibiting him inspection of
Section 2. Contempt of from introducing in documents or
court. If a party or other evidence designated things)
witness PARTY OR WITNESS documents or
IN things or items of RULE 28 (Physical
(1) refuses to BE testimony, or and mental
SWORN OR RULE 23 examination of
(2) REFUSES TO (depositions de (3)from introducing persons)
ANSWER ANY bene esse), evidence of physical
QUESTION AFTER or mental condition;
(APPLIES TO all
BEING DIRECTED TO RULE 24 modes of discovery
DO SO (c) An order
(depositions in except RULE 26 ON
(1) striking out
perpetuam rei REQUEST FOR
by the court of the place in pleadings or parts
memoriam) ADMISSION BY AN
which the deposition is being thereof, or
ADVERSE PARTY)
taken, the refusal may be Prof. Avena believes
considered a contempt of (2) staying further
that Section 2 DOES
that court. proceedings until the
NOT CONTEMPLATE
order is obeyed, or
Rule 25 on
interrogatories
(3) dismissing the
because of the
action or proceeding
phrase “by the
or any part thereof,
court of the place in
which the
(4) or rendering a
deposition is being
judgment by default
taken.” How then
against the
will you cite a party
disobedient party;
or witness for
and
contempt? The
answer is to apply
(d) IN LIEU OF ANY OF THE
for an order to
FOREGOING ORDERS OR IN
compel an answer
ADDITION THERETO, an
and once an order
order directing the arrest of
is issued, you can
any party or agent of a party
use Rule 71.3b as
for disobeying any of such
basis for holding a
orders except an order to
party or other
submit to a physical or
witness for
mental examination.
contempt.
Section 4. Expenses on PARTY SERVED
Section 3. Other refusal to admit. WITH A REQUEST
consequences
PARTY OR AN If a party after being served RULE 26
AGGRIEVED PARTY MAY OFFICER OR with a request under Rule 26 ADMISSION BY AN
APPLY FOR: MANAGING AGENT to admit the genuineness of ADVERSE PARTY
OF A PARTY IN 23, any document or the truth of
(a) An order that the 24, 25 IN RELATION any matter of fact Prof. Avena: Pay
matters regarding which the TO RULE 29.1 ON
attention to the
questions were asked, or the ORDER TO COMPEL (1) SERVES A distinction between
character or description of AN ANSWER SWORN DENIAL Rule 26.5 and this
the thing or land, or the THEREOF and Section. Rule 26.5
contents of the paper, or the PARTY IN 27, 28 (2) IF THE PARTY applies to party who
physical or mental condition REQUESTING THE fails to file and
of the party, or any other RULE 23 ADMISSIONS serve request for
designated facts shall be

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CIVIL PROCEDURE REMEDIAL LAW

PROVISION HIGHLIGHTS APPLICABILITY PROVISION HIGHLIGHTS APPLICABILITY

THEREAFTER admission while this Republic of the Philippines represents the

PROVES THE section applies to under this Rule Republic in an
GENUINENESS OF the party being official capacity) to
SUCH DOCUMENT served with a pay.
OR THE TRUTH request. Both
OF ANY SUCH provisions have a
MATTER OF FACT, common objective,
that is, to help
he may apply to the court expedite court
for an order requiring the proceedings.
other party to pay him the
reasonable expenses
incurred in making such
proof, including attorney's
fees. Unless the court finds
THAT THERE WERE GOOD
REASONS FOR THE DENIAL
OR THAT ADMISSIONS
SOUGHT WERE OF NO
SUBSTANTIAL IMPORTANCE,
SUCH ORDER SHALL BE
ISSUED.

SECTION 5. FAILURE OF PARTY OR AN

PARTY TO ATTEND OR OFFICER OR
SERVE ANSWERS. MANAGING AGENT
OF A PARTY
If a party or an officer or
managing agent of a party RULE 23
(depositions de
(1) wilfully fails to bene esse),
appear before the officer
who is to take his RULE 24
deposition, after being (depositions in
served with a proper perpetuam rei
notice, or memoriam)

(2) fails to serve RULE 25.

answers to INTERROGATORIES
interrogatories TO PARTIES
submitted under Rule 25
after proper service of
such interrogatories,

THE COURT ON MOTION

AND NOTICE, MAY

(1) strike out all or any

part of any pleading of
that party, or

(2) dismiss the action or

proceeding or any part
thereof, or

(3) enter a judgment by

default against that
party,

(4) and in its discretion,

order him to pay
reasonable expenses
incurred by the other,
including attorney's fees
SECTION 6. EXPENSES Applies to all
AGAINST THE REPUBLIC OF provisions in Rule
THE PHILIPPINES. Expenses 29 requiring a
and attorney's fees are not noncompliant party
to be imposed upon the or witness (who

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CIVIL PROCEDURE
VI. PRE-TRIAL
• Definition: A mandatory conference and
personal confrontation before the judge
between the parties litigant and their
representative counsels, called by the court
after the joinder of issues in a case or after the
last pleading has been filed and before trial, for
the purpose of settling the litigation
expeditiously or simplifying the issues without
sacrificing the necessary demands of justice.
• Purpose: To consider: [Rule 18, Sec. 2]
1) Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
2) Simplification of the issues;
3) Necessity/desirability of amendments to
the pleadings;
4) Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
5) Limitation of the number of witnesses;
6) Advisability of a preliminary reference of
issues to a commissioner;
7) Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
8) Advisability/ecessity of suspending the
proceedings; and
9) Other matters that may aid in the prompt
disposition of the action.
• Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised. Thus, to obviate the
element of surprise, parties are expected to
disclose at a pre-trial conference (PTC) all
issues of law and fact which they intend to
raise at the trial, except such as may involve
privileged or impeaching matters. The
determination of issues at a pre-trial
conference bars the consideration of other
questions on appeal. [Caltex v. CA (1992)]
• When conducted: After the last pleading has
been served and filed, it shall be the plaintiff’s
duty to move ex parte that the case be set for
pre-trial. [Rule 18, Sec. 1]
• A pre-trial cannot validly be held until the
last pleading has been filed, which last
pleading may be the plaintiff's reply, except
where the period to file the last pleading
has lapsed. Discretion to declare a party
non-suited in PTC must not be abused.
Unless a party is so negligent,
irresponsible, contumacious, or dilatory as
to provide substantial grounds for dismissal
for non-appearance, the court should
consider lesser sanctions which would still
amount to achieving the end desired.
[Calalang v. CA (1993)]
NOTICE OF PRE-TRIAL [Rule 18, Sec. 3]
• Notice of pre-trial shall be served on counsel,
or on the party who has no counsel.
• Counsel served with such notice has a duty to
notify the party he represents.
APPEARANCE OF PARTIES [Rule 18, Sec. 4]
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
• It is the duty of the parties and their counsel to
appear at the pre-trial.
• A party’s non-appearance may be excused only
if either:
1) Valid cause is shown for it;
2) A representative appears in his behalf, fully
authorized in writing:
a) To enter into an amicable settlement;
b) To submit to alternative modes of
dispute resolution;
c) To enter into stipulations/admissions of
facts and of documents.
• Note: See the section on default for the effects
of failure to appear in the pre-trial.
• SC admonishes the courts against precipitate
orders of default as they have the effect of
denying the party the chance to be heard.
There are instances when parties may properly
be defaulted, but such is the exception rather
than the rule and should be used only in clear
cases of obstinate refusal or inordinate neglect
to comply with court orders. [Citibank v. Chua
(1993)]
PRE-TRIAL BRIEF [Rule 18, Sec. 6]
• Parties shall file and serve their respective pre-
trial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
• Pre-trial brief’s contents:
1) Statement of their willingness to enter into
amicable settlement or alternative modes
of dispute resolution, indicating the desired
terms thereof;
2) Summary of admitted facts and proposed
stipulation of facts;
3) Issues to be tried/resolved;
4) Documents/exhibits to be presented,
stating the purpose thereof;
5) Manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners;
6) Number and names of the witnesses, and
the substance of their respective
testimonies.
• Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.
RECORD OF PRE-TRIAL [Rule 18, Sec. 7]
• The pre-trial proceedings shall be recorded.
Upon termination of such proceedings, the
court shall issue the pre-trial order.
• Pre-trial order’s contents:
1) Matters taken up in the conference;
2) Action taken thereon;
3) Amendments allowed on the pleadings;
4) Agreements/admissions made by the
parties as to any matters considered;
5) Should the action proceed to trial, the
explicit definition and limit of the issues to
be tried.
• Consequence: The contents of the order shall
control the subsequent course of the action,
unless modified before trial to prevent manifest
injustice.
• Upon manifestation of the parties of their
willingness to discuss a compromise, the TC
should order the suspension of the proceedings
to allow them reasonable time to discuss and
conclude an amicable settlement. If despite all
efforts exerted by the TC and the parties the
Page 39 of 95
CIVIL PROCEDURE REMEDIAL LAW

settlement conference still fails, then the action VII. TRIAL

should have continued as if no suspension had
taken place. [Goldloop Properties v. CA (1992)]
NOTICE OF TRIAL [Rule 30, Sec. 1]
• Note: AM 03-1-09-SC
• Upon entry of a case in the trial calendar, the
clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
CALENDAR OF CASES before the trial date.

• Under the direct supervision of the judge, the

clerk of court shall keep a calendar of cases for A. ADJOURNMENTS AND
pre-trial, for trial, those whose trials were POSTPONEMENTS [Rule 30,
adjourned/postponed, and those with motions Sec. 2]
to set for hearing. [Rule 20, Sec. 1]
• Preference shall be given to habeas corpus • General rule: The court may adjourn a trial
cases, election cases, special civil actions, and from day to day to any stated time, as the
those so required by law. [Rule 20, Sec. 1] expeditious and convenient transaction of
• The assignment of cases to the different business may require.
branches of a court shall be done exclusively by • Exception: Court may not adjourn for
raffle. The assignment shall be done in open longer than 1 month for each adjournment,
session of which adequate notice shall be given nor more than 3 months in all.
so as to afford interested parties the • Exception to exception: When
opportunity to be present. [Rule 20, Sec. 2] authorized in writing by the SC Court
Administrator.

Ground for Requisite for motion to

postponement of trial postpone
For absence of evidence Affidavit showing:
[Rule 30, Sec. 3] 1) The
materiality/relevancy of
such evidence;
2) That due diligence has
been used to procure the
evidence

But if the adverse party

admits the facts to be
given in evidence, trial
shall not be postponed
even if he objects or
reserves the right to
object to their
admissibility.

For illness of Affidavit or sworn

party/counsel [Rule 30, certification:
Sec. 4] 1) That the presence of
such party/counsel at the
trial is indispensable;
2) That the character of
his illness is such as to
render his non-
attendance excusable.

B. SUBPOENA

TYPES OF SUBPOENA [Rule 21, Sec. 1]

1) SUBPOENA AD TESTIFICANDUM - Process
directed to a person, requiring him to attend
and to testify at the hearing/trial of an action
or at any investigation conducted by competent
authority, or for the taking of his deposition.
2) SUBPOENA DUCES TECUM – Process
directed to a person, requiring him to bring
with him any books/documents/things under
his control.

BY WHOM ISSUED [Rule 21, Sec. 2]

1) The court before whom the witness is required
to attend;
2) The court of the place where the deposition is
to be taken;

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CIVIL PROCEDURE
3) The officer/body authorized by law to do so in
connection with investigations conducted by
said officer/body;
4) Any SC/CA Justice in any case or investigation
pending within the Philippines.
APPLICATION FOR SUBPOENA TO PRISONER [Rule
21, Sec. 2]
• The judge/officer shall examine and study the
application carefully to determine WON it is
made for a valid purpose.
• However, no prisoner sentenced to death,
reclusion perpetua or life imprisonment and
who is confined in a penal institution shall be
brought outside for appearance/attendance in
any court unless authorized by the SC.
SUBPOENA’S FORM AND CONTENTS [Rule 21, Sec.
3]
1. Name of court;
2. Title of action/investigation;
3. Directed to a person whose attendance is
required
4. If subpoena duces tecum, a reasonable
description of the books/documents/things
demanded which must appear to the court
prima facie relevant.
QUASHING A SUBPOENA [Rule 21, Sec. 4]
• Upon motion promptly made, at/before the
time specified in the subpoena.
• Grounds for quashing:
1) Subpoena duces tecum:
a) It is unreasonable and oppressive;
b) The relevancy of the
books/documents/things does not
appear;
c) The person in whose behalf the
subpoena is issued fails to advance the
reasonable cost of production;
d) Witness fees and kilometrage were not
tendered when subpoena was served.
2) Subpoena ad testificandum:
a) That the witness is not bound thereby;
b) That witness fees and kilometrage were
not tendered when the subpoena was
served.
SUBPOENA FOR DEPOSITIONS [Rule 21, Sec. 5]
• Proof of service of a notice to take a deposition
is sufficient authorization for the issuance of
subpoena ad testificandum for the persons
named in the notice.
• Issued by the clerk of court of the place in
which the deposition is to be taken.
• However, subpoena duces tecum for
depositions cannot be issued without court
order.
SERVICE OF SUBPOENA [Rule 21, Sec. 6]
• Same manner as personal or substituted
service of summons.
• The original shall be exhibited and a copy
delivered to person on whom it is served, with
tender of fees for one day’s attendance and
kilometrage.
• Exception: Tender not required
subpoena is issued by or on behalf of the
Republic or an officer/agency thereof.
• For subpoena duces tecum, also tender the
reasonable cost of producing the
books/documents/things demanded.
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
• Service must be made so as to allow the
witness reasonable time for preparation and
travel to the place of attendance
PERSONAL APPEARANCE IN COURT [Rule 21, Sec.
7]
• A person present in court before a judicial
officer may be required to testify as if he were
in attendance upon a subpoena issued by such
court/officer.
REMEDY IN CASE OF WITNESS’ FAILURE TO
ATTEND
• Upon proof of service of subpoena and of
witness’ failure to attend, the court/judge
issuing the subpoena may issue a warrant to
the sheriff to arrest the witness and bring him
before the court/officer where his attendance is
required. [Rule 21, Sec. 8]
• The cost of warrant and seizure shall be
paid by the witness if the court determines
that the failure to attend was willful and
without just excuse.
• Such failure shall be deemed a contempt of the
court which issued the subpoena. [Rule 21,
Sec. 9]
• If subpoena was not issued by a court, the
disobedience shall be punished by
applicable law or ROC.
• Exception: Arrest warrant and contempt not
applicable to: [Rule 21, Sec. 10]
1) A witness who resides more than 100km
from his residence to the place where he is
to testify.
2) A detention prisoner, if there is no
permission from the court in which his case
is pending.
C. CONDUCT OF TRIAL [Rule 30,
Sec. 5]
• General rule: Trial shall be limited to the
issues stated in the pre-trial order.
• Exception:
1) Provisions on separate trials.
2) When for special reasons the court
directs otherwise.
GENERAL ORDER OF TRIAL
1) Plaintiff shall adduce evidence in support of his
claim;
2) Defendant shall adduce evidence in support of
his defense, counterclaim, cross-claim and 3rd-
party complaint;
3) 3rd-party defendant (if any) shall adduce
evidence of his defense, counterclaim, cross-
claim and 4th-party complaint;
4) 4th-party (and so forth) shall adduce evidence
of the material facts pleaded by them;
5) Parties whom any counterclaim or cross-claim
has been pleaded, shall adduce evidence in
support of their defense, in the order
prescribed by the court.
6) Parties may then respectively adduce rebutting
if
evidence only.
• Exception: When the court permits them
to adduce evidence upon their original
case, for good reasons and in furtherance
of justice.
7) Upon admission of evidence, the case shall be
deemed submitted for decision, unless the
Page 41 of 95
CIVIL PROCEDURE
court directs the parties to argue or to submit
their respective memoranda or any further
pleadings.
• If several defendants or 3rd-party defendants
having separate defenses appear by different
counsel, the court shall determine the relative
order of presentation of their evidence.
AGREED STATEMENT OF FACTS [Rule 30, Sec. 6]
• Parties may agree in writing upon the facts
involved in the litigation, and submit the case
for judgment without introduction of evidence.
• If the parties agree to only some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
STATEMENT OF THE JUDGE [Rule 30, Sec. 7]
• During the hearing/trial of the case, any
statement made by the judge shall be made of
record in the STN if made with reference to the
case/parties/witnesses/counsels.
SUSPENSION OF ACTIONS [Rule 30, Sec. 8]
• Governed by the CC provisions.
RECEPTION OF EVIDENCE [Rule 30, Sec. 9]
• General rule: The judge of the court where
the case is pending shall personally receive the
evidence to be adduced by the parties.
• Exception: The court may delegate the
reception of evidence to its clerk of court
who is a member of the bar in:
a) Default hearings;
b) Ex parte hearings;
c) Cases where parties agree in writing.
• However, the clerk of court has no power
to rule on objections to any
question/admission of exhibits.
• Objections shall be resolved by the court
upon submission of the clerk’s report and
TSN within 10 days from termination of the
hearing.
D. TRIAL BY COMMISSIONER
• COMMISSIONER – Includes a referee, an
auditor or an examiner. [Rule 32, Sec. 1]
KINDS OF TRIAL BY COMMISSIONER [Rule 32, Sec.
1 and 2]
1) Reference by consent of both parties.
2) Reference ordered on motion when:
a) Trial of an issue of fact requires the
examination of a long account on either
side
b) Taking of an account is necessary for the
court’s information before judgment, or for
carrying judgment/order into effect.
c) A question of fact, other than upon the
pleadings, arises in any stage of a case or
for carrying a judgment/order into effect.
ORDER OF REFERENCE [Rule 32, Sec. 2 to 12]
• When a reference is made, the clerk shall
furnish the commissioner with a copy of the
order of reference. The order may specify/limit
the commissioner’s power, and may direct him
to report only upon particular issues, or to
do/perform particular acts, or to receive and
report evidence only.
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
• The commissioner shall set a time/place for the
first meeting and shall notify parties/counsels.
• Upon completion of the trial/hearing, the
commissioner shall file a written report with the
court.
• The clerk shall notify parties of the filing of the
report. The parties 10 days to object to the
report’s findings.
• After the 10 days, the report shall be set for
hearing. The court may issue an order
adopting/modifying/rejecting the report or part
of it.
• When parties stipulate that the Commissioner's
findings of fact are final, only questions of law
shall thereafter be considered.
E. CONSOLIDATION AND
SEVERANCE
CONSOLIDATION OF TRIAL [Rule 31, Sec. 1]
• When actions involving common question of
law/fact are pending before the court, it may:
1) Order a joint hearing/trial of any/all the
matters in issue in the actions;
2) Order all the actions consolidated;
3) Make such orders concerning the
proceedings as to avoid unnecessary costs
or delay.
• Where a case has been partially tried before
one judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation not mandatory. [PCGG v.
Sandiganbayan (1992)]
SEVERANCE OF TRIAL [Rule 31, Sec. 2]
• The court may issue separate trials for
convenience or to avoid prejudice:
1) Of any claim, cross-claim, counterclaim or
3rd-party complaint;
2) Of any separate issue;
3) Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or
issues.
F. DEMURRER TO EVIDENCE
• Definition: A specie of MTD that may be
invoked based on insufficiency of evidence (i.e.
upon the facts and the law the plaintiff has
shown no right to relief). [Rule 33, Sec. 1]
• It is invoked after the plaintiff has presented all
the evidence available to him.
Grant of demurrer Denial of demurrer
The case shall be The court should set the
dismissed date for the reception of
the defendant’s evidence-
in-chief [Northwest
Airlines v. CA]
Page 42 of 95
CIVIL PROCEDURE REMEDIAL LAW

Plaintiff's remedy would Xxx

be to appeal.
VIII. JUDGMENTS, FINAL ORDERS
AND ENTRY OF JUDGMENT
However, if the order
granting the demurrer is
reversed on appeal, the
defendant loses his right • JUDGMENT - The final ruling by a court of
to present evidence. competent jurisdiction regarding the rights and
[Rule 33, Sec .1; obligations of the parties or other matters
Republic v. Tuvera] submitted to it in an action/proceeding.

The appellate court PARTS OF A JUDGMENT

should render judgment
1) OPINION OF THE COURT - It contains the
on the basis of the
evidence submitted by findings of facts and conclusions of law;
the plaintiff. [Radiowealth 2) DISPOSITION OF THE CASE – The final and
Finance v. Del Rosario]X actual disposition of the rights litigated (i.e. the
dispositive part);
3) Signature of the judge.
Equivalent to judgment An interlocutory order and
(i.e. based on the merits not appealable. However,
of the evidence presented it may be the subject of a REQUISITES OF A VALID JUDGMENT [Rule 36, Sec.
so far) petition for certiorari for 1; Art. 8, Sec. 14, Consti]
GAD under Rule 65 1) Court/tribunal must be with authority to hear
[Katigbak v. and determine the matter before it;
Sandiganbayan] 2) Court must have jurisdiction over the parties
and the subject matter;
3) Parties must have been given an opportunity to
MTD Demurrer adduce evidence in their behalf;
When to File Before the service After the plaintiff 4) Evidence must have been considered by the
and filing of the rests his case tribunal in deciding the case; [Acosta v.
answer COMELEC]
Ground Those Only ground: The 5) Judgment must be in writing, personally and
enumerated in plaintiff has directly prepared by the judge;
Rule 16 shown no right to • A verbal judgment is, under the law,
relief (i.e. ineffective. [Corpus v. Sandiganbayan]
evidence is 6) Judgment must state clearly the facts and the
insufficient) law upon which the decision is based, signed by
Effect If a MTD is the judge and filed with the clerk of court.
granted, the
• A decision need not be a complete recital of
complaint is
likewise
the evidence presented. So long as the
dismissed. But, factual and legal bases are distinctly and
depending on the clearly set forth, the judgment is valid.
ground, the [Chan v. CA]
complaint may be
re-filed
INTERPRETATION OF THE JUDGMENT
If the MTD is
• Where the judgment is difficult to execute
denied, the
defendant shall
because of ambiguity in its terms, the remedy
file his responsive of the party is to file a motion for clarificatory
pleading judgment and not to assail the judgment as
void.
• Where there is a conflict between the body and
Demurrer in civil cases Demurrer in criminal the dispositive portion (fallo) of the decision,
cases the dispositive portion controls.
Defendant need not ask May be filed with or • Exception: Where the inevitable
for leave of court without leave of court. conclusion from the body of the decision is
so clear that there was a mistake in the
Leave of court is dispositive portion, the body of the decision
necessary so that the will prevail. [Poland Industrial v. National
accused can present his
Dev’t Co.]
evidence in case the
demurrer is denied
KINDS OF JUDGMENT
If the demurrer was 1) JUDGMENT UPON COMPROMISE – It is one
without leave, the conferred on the basis of a compromise
accused can no longer agreement entered into between the parties.
present his evidence; the • It is immediately executory in the absence
case is deemed submitted of a motion to set aside on the ground of
for decision based on
FAME.
prosecution’s evidence
[Rule 119, Sec.23] 2) JUDGMENT UPON CONFESSION – It is one
rendered by the court when a party expressly
If the demurrer is The order of dismissal is agrees to the other party’s claim or
granted, the order of not appealable because it acknowledges the validity of the claim against
dismissal is appealable will constitute double him.
jeopardy
Judgment upon Judgment by
compromise confession

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CIVIL PROCEDURE
The provisions and terms An affirmative and
are settled by the parties voluntary act of the
to the action. The defendant himself. The
judgment is entered in court exercises a certain
the record by consent of amount of supervision
the court. over the entry of
judgment.
• Kinds of judgment by confession:
a) JUDGMENT BY COGNOVIT
ACTIONEM – After service, the
defendant, instead of entering a plea,
acknowledged and confessed that the
plaintiff’s cause of action was just and
rightful.
b) JUDGMENT BY CONFESSION
RELICTA VERIFICATIONE – After
pleading and before trial, the defendant
both: (a) confessed the plaintiff’s cause
of action and (b) withdrew his plea or
other allegations, whereupon judgment
was entered against him without
proceeding to trial.
• Remedy against judgment by consent,
confession or compromise is to first file a
motion to set it aside; if denied, file the
appropriate petition under Rule 65.
3) JUDGMENT UPON THE MERITS – It is one
that is rendered after consideration of the
evidence submitted by the parties during the
trial of the case.
4) CLARIFICATORY JUDGMENT – It is rendered
to clarify an ambiguous judgment or one
difficult to comply with.
5) JUDGMENT NON PRO TUNC - Literally, “now
for then”. It is a judgment intended to enter
into the record the acts which had already been
done, but which do not appear in the records.
6) JUDGMENT SIN PERJUICIO – It may refer to
a dismissal of a case without prejudice to it
being re-filed.
7) CONDITIONAL JUDGMENT – It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an event.
8) SEVERAL JUDGMENT – It is one rendered by
a court against one or more defendants and not
against all of them, leaving the action to
proceed against the others. [Rule 36, Sec. 4]
• It is proper when the liability of each party
is clearly separate and distinct from his co-
parties such that the claims against each of
them could have been the subject of
separate suits, and the judgment for or
against one of them will not necessarily
affect the other.
9) SEPARATE JUDGMENT – It is one rendered
disposing of a claim among several others
presented in a case, after a determination of
the issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence that is the subject matter of said
claim. [Rule 36, Sec. 5]
• It is proper when more than one claim for
relief is presented in an action for the
determination as to the issues material to
the claim has been made.
• The judgment shall terminate the action
with respect to the claims disposed of, and
shall proceed as to the remaining claims.
• The court may stay its enforcement until
rendition of subsequent judgments, and
may prescribe conditions to secure the
judgment’s benefits.
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
• Judgment may be given for/against one or
more of several plaintiffs/defendants. The court
may require the parties on each side to file
adversary pleadings as between themselves.
[Rule 36, Sec. 3]
• If judgment is rendered against 2 or more
persons sued as an entity without juridical
personality, the judgment shall set out their
individual names (if known). [Rule 36, Sec. 6]
• PROMULGATION – The process by which a
decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel.
• MEMORANDUM DECISION – A decision of the
appellate court which adopts the findings and
conclusions of the TC.
• A judgment is considered rendered upon the
filing of the signed decision. This includes an
amended decision because an amended
decision is a distinct and separate judgment
and must follow the established procedural
rule.
AMENDMENTS TO JUDGMENTS
• The power to amend judgments is inherent to
the court before judgment becomes final and
executory.
• General rule: The court cannot amend the
judgment once it has become final and
executory.
• Exception:
1) To make corrections of clerical errors,
not substantial amendments, as by an
amendment non pro tunc;
2) To clarify an ambiguity which is borne
out by and justifiable in the context of
the decision;
3) In judgments for support, which can
always be amended from time to time.
Amended/clarified Supplemental decision
judgment
An entirely new decision Does not take the place of
and supersedes the or extinguish the original
original judgment judgment
Court makes a thorough Serves to add to the
study of the original original judgment
judgment and renders the
amended and clarified
judgment only after
considering all the factual
and legal issues
ENTRY OF JUDGMENTS AND FINAL ORDERS [Rule
36, Sec. 2]
• If there is no appeal/MNT/MFR filed within the
prescribed periods, the clerk of court shall
enter the judgment or final order in the book of
entries of judgments.
• Date of finality of the judgment – Date of its
entry in the book.
• The record shall contain the judgment’s
dispositive part, shall be signed by the clerk of
court, and certified that the judgment has
become final and executor.
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CIVIL PROCEDURE REMEDIAL LAW

IX. POST-JUDGMENT REMEDIES • No appeal may be taken from an order denying

a MNT/MFR. [Rule 37, Sec. 9; Rule 41, Sec.
1(a)]
• Remedy if motion is denied:
Remedies against a judgment
1) To appeal from the judgment or final order
A. Before a judgment becomes final and executory: itself. [Rule 37, Sec. 9].
1) MFR;
2) The order denying the MNT/MFR may itself
2) MNT;
3) Appeal.
be assailed by a petition for certiorari under
Rule 65.
B. After the judgment becomes final and executory: • A MNT or MFR is not a prerequisite to an
1) Petition for relief from judgment; appeal, a petition for review or a petition for
2) Action to annul a judgment; review on certiorari. And since the purpose is to
3) Certiorari;
expedite the final disposition of cases, a strict
4) Collateral attack of a judgment that is void on
its face. but prospective application of said ruling is in
order. [Habaluyas v. Japson (1986)]

MOTION FOR RECONSIDERATION

A. REMEDIES BEFORE A • MFR under Rule 37 is directed against a
JUDGMENT HAS BECOME judgment or final order. It is not the MFR of an
interlocutory order, which often precedes a
FINAL AND EXECUTORY petition for certiorari under Rule 65.
• It does not apply to cases that fall under
Summary Procedure. [Sec. 19(c), Revised
PROVISIONS COMMON TO MNT/MFR Rules on Summary Procedure]

WHEN TO FILE GROUNDS [Rule 37, Sec. 1(2)]

• Motion must be filed within the period for 1) The evidence is insufficient to justify the
appeal. [Rule 37, Sec. 1] decision;
• The period for appeal is within 15 days 2) The damages awarded are excessive;
after notice to the appellant of the 3) The decision or final order is contrary to law.
judgment or final order appealed from.
[Rule 40, Sec. 2; Rule 41, Sec. 3; Rule 45, FORM AND CONTENT
Sec. 2] • MFR must be in writing, a written notice of
• The 15-day period is deemed to commence which must be served on the adverse party.
upon receipt by the counsel of record, • It is not sufficient to mention the ground relied
which is considered notice to the parties. upon. It is necessary for the MFR to point out
Service upon the parties themselves is specifically the findings/conclusions of the
prohibited and is not considered as official judgment or final order which are not
receipt of judgment. supported by the evidence or which are
• No motion for extension of time shall be contrary to law, making express reference to
allowed. [Rule 37, Sec. 2; Rule 41, Sec. 3] the testimonial/documentary evidence or to the
• Where a ROA is required, the appellant shall provisions of law alleged to be contrary to such
file a (1) NOA and a (2) ROA within 30 days findings or conclusions. [Rule 39, Sec. 2]
from notice of the judgment or final order. • Non-compliance with this requirement would
[Rule 41, Sec. 3] reduce the motion to a mere pro forma motion,
• A ROA is required only in: which shall not toll the period for appeal.
1) Special proceedings;
2) Other cases of multiple or separate EFFECT
appeals. [Rule 40, Sec. 3]
Grant of MFR Denial of MFR
EFFECT OF FILING The court may amend the The judgment or final
• The filing of a timely motion interrupts the judgment or final order order shall stand as is
period to appeal. [Rule 40, Sec. 2; Rule 41, accordingly. [Rule 37,
Sec. 3] Sec. 3] The amended
judgment is in the nature
FRESH PERIOD RULE of a new judgment, which
• If the motion is denied, the movant has a supersedes the original
judgment
“fresh period” of 15 days from receipt or notice
of the order denying the MNT/MFR within which If the court finds that a XXX
to file an appeal. This applies to Rules 40, 41, motion affects less than
42, 43 and 45. [Neypes v. CA (2005)] all of the matters in
controversy or less than
• Note: Prior to Neypes v. CA, if a party filed
all of the parties to it, the
a MNT/MFR, he only had the remaining order may grant a
time of the 15-day appeal period to file his reconsideration as to
appeal. such issues if severable
without interfering with
RESOLUTION OF THE MOTION the judgment or final
• The motion shall be resolved within 30 days order upon the rest [Rule
from the time it is submitted for resolution. 37, Sec. 7]
[Rule 37, Sec. 4]
• An order denying a MFR is not appealable.
[Rule 37, Sec. 9]

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CIVIL PROCEDURE REMEDIAL LAW

• SINGLE MOTION RULE – A party shall not be EFFECT

allowed to file a 2nd MFR of a judgment or
final order. [Rule 37, Sec. 5]
• The prohibition on a 2nd motion does not
apply to a MFR of an interlocutory order.
MOTION FOR NEW TRIAL (MNT)
GROUNDS [Rule 37, Sec. 1]
• The aggrieved party may move the TC 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 the said party:
1) FAME (Extrinsic Fraud, Accident, Mistake or
Excusable Negligence) which ordinary
prudence could not have guarded against
and by reason of which the aggrieved party
has probably been impaired in his rights.
• The motion shall be supported by
affidavits of merit. Non-compliance with
this requirement would reduce the
motion to a mere pro forma motion.
[Rule 37, Sec. 2]
• The affidavits of merit must show the
facts (not mere conclusions or
opinions) constituting the valid cause of
action or defense which the movant
may prove in case a new trial is
granted. Otherwise, if the complaint is
after all groundless or the defense is
ineffective, a new trial would serve no
purpose.
• EXTRINSIC FRAUD – Any fraudulent
scheme executed by the prevailing
party outside of the trial against the
losing party who, because of such
fraud, was prevented from presenting
his side of the case.
• INTRINSIC FRAUD – Acts of a party
during the trial which does not affect
the presentation of the case.
• ACCIDENT - An event that occurs
without one’s foresight or expectation.
• MISTAKE - Generally, mistakes of
facts or law where, in good faith, the
defendant was misled in a case.
• What constitutes excusable negligence
depends upon the circumstances of
each case.
2) Newly discovered evidence, which he could
not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter the
result.
• The motion shall be supported by:
a) Affidavits of the witnesses by whom
such evidence is expected to be
given; and/or
b) Duly authenticated documents
which are proposed to be
introduced in evidence.
• Non-compliance with this requirement
would reduce the motion to a mere pro
forma motion. [Rule 37, Sec. 2]
• Newly discovered evidence may and
does commonly refer to evidence
already in existence prior to or during
trial but which could not have been
secured and presented during the trial
despite reasonable diligence on the part
of the litigant. [Tumang v. CA]
Grant of MNT Denial of MNT
The original judgment The judgment or final
shall be vacated, and the order shall stand as is
action shall stand for trial
de novo. The recorded
evidence upon the former
trial shall be used at the
new trial without retaking
them (if they are material
and competent) [Rule 37,
Sec. 6]
If the court finds that a XXX
motion affects the issues
of the case as to only a
part or less than all of the
matters in controversy, or
only one or less than all
of the parties to it, the
order may grant a
reconsideration as to such
issues if severable
without interfering with
the judgment or final
order upon the rest [Rule
37, Sec. 7]
The effect of this order is
a partial new trial.
When there is an order
for partial new trial, the
court may either enter a
judgment or final order as
to the rest, or stay the
enforcement of such
judgment or final order
until after the new trial
[Rule 37, Sec. 8]
WHEN A 2ND MNT IS PERMISSIBLE
• A MNT shall include all grounds then available.
Those not so included are deemed waived.
However, when a ground for new trial was not
existing/available when the 1st motion was
made, a 2nd MNT may be filed. [Rule 37, Sec.
5]
MNT Motion for reopening
of the trial
Legal Expressly Not mentioned in the
Basis provided for in ROC but is nevertheless
the ROC a recognized procedural
recourse deriving
validity and acceptance
from long established
usage
Note: It is referred to
in the Rules of Criminal
Procedure (Rule 119,
Sec. 24)
When Only after May be presented after
Proper promulgation either or both the
of judgment parties have formally
offered and closed their
evidence, but before
judgment

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CIVIL PROCEDURE REMEDIAL LAW

Grounds Civil cases: Controlled by no other
Rule 37; rule than the
Criminal cases: paramount interest of
Rule 121 justice, relying solely
upon the sound
discretion of the TC.
The exercise of such
discretion may not be
reviewed on appeal
unless a clear abuse
thereof is shown
so long as the facts required to be set out
also appear in the verified petition.
• When an affidavit of merit is not necessary:
a) When there is LOJ over the defendant;
b) When there is LOJ over the subject
matter;
c) When judgment was taken by default;
d) When judgment was entered by
mistake or was obtained by fraud; or
e) Other similar cases.

TWO HEARINGS
1) Hearing to determine WON the judgment
B. REMEDIES AFTER A should be set aside;
JUDGMENT HAS BECOME 2) If #1 in the affirmative, hearing upon the
merits of the case.
FINAL AND EXECUTORY
PRELIMINARY INJUNCTION PENDING
PROCEEDINGS.
RELIEF FROM JUDGMENTS, • The court in which the action is filed may grant
such preliminary injunction as may be
ORDERS OR OTHER PROCEEDINGS
necessary for the preservation right of the
parties, upon the filing of the petitioner of a
• Definition: It is a legal remedy whereby a bond in favor of the adverse party. [Rule 38,
party seeks to set aside a judgment rendered Sec. 5]
against him by a court whenever he is unjustly • A petition for relief is a remedy available after
deprived of a hearing or was prevented from the judgment or final order has become final
taking an appeal because of FAME. and executory. Hence, the judgment is
• A party who has filed a timely MNT/MFR can no susceptible to being the subject of a writ of
longer file a petition for relief from judgment execution.
after his motion has been denied. These
remedies are mutually exclusive. It is only in Rule 37 Rule 38
appropriate cases where a party aggrieved by When Before judgment After judgment
the judgment has not been able to file a available becomes final and becomes final
MNT/MFR that a petition for relief can be filed. executory and executory
[Francisco v. Puno]
Period to file Within the time to Within 60 days
GROUNDS [Rule 38, Sec. 1 and 2] petition appeal from knowledge
1) When a judgment or final order is entered into, of judgment
AND within 6
or any other proceedings is taken against the
months from
petitioner in any court through FAME. entry of
2) When the petitioner has been prevented from judgment
taking an appeal by FAME.
Scope of Applies to Judgments, final
• Under both grounds, the petition shall be filed application judgments and final orders, and
in the same court which rendered the judgment orders only other
and in the very same case. proceedings:
- Land
Registration;
PRAYER - Special
1) That the judgment/order/proceeding be set Proceedings;
aside; - Order of
2) That the appeal be given due course. Execution.

WHEN TO FILE [Rule 38, Sec. 3] Grounds 1) FAME; FAME

1) 60 days from knowledge of 2) Newly discovered
judgment/order/proceedings to be set aside; evidence
Nature Legal remedy Equitable
2) 6 months from the entry of such
remedy
judgment/order/proceeding. Verification Motion need not be Petition must be
verified verified
• Both periods must concur. They are also non-
extendible and never interrupted. • Rule 38 is of equitable character and is allowed
only in exceptional cases, when there is no
FORM AND CONTENT OF PETITION other available/adequate remedy. A petition for
1) Must be verified; relief is not regarded with favor and judgment
2) Must be accompanied by an affidavit showing will not be disturbed where the party
the FAME relied upon; complaining has or by exercising proper
3) The affidavit of merit accompanying the diligence would have had, an adequate remedy
petition must also show the facts constituting at law. Relief will not be granted to a party
the petitioner’s good and substantial cause of when loss of remedy at law was due to his own
action or defense. negligence or mistaken mode of procedure;
• An affidavit of merit serves as the otherwise, the petition for relief will be
jurisdictional basis for the court to entertain tantamount to reviving the right of appeal
a petition for relief. However, it is not a which had already been lost. [Meralco v. CA
fatal defect to warrant denial of the petition (1990)]

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CIVIL PROCEDURE REMEDIAL LAW

X. APPEAL
• Required only in:
1) Special proceedings;
2) Multiple or separate appeals where the
THREE MODES OF APPEAL [Rule 41, Sec. 2]
law/ROC so requires.

mode of appeal applicability

FRESH PERIOD RULE [Neypes v. CA (2005)]
Ordinary appeal Rule 40 Appeal to RTC of MTC
judgment/final order
Rule 41 Appeal to CA of RTC
• Definition: Period of appeal is interrupted by a
judgment/final order timely MNT/MFR. Motion for extension of time
rendered in exercise of to file MNT or MFR is not allowed. [Rule 40,
RTC's original Sec. 2]
jurisdiction • Applicability:
Petition for review Rule 42 Appeal to CA of RTC 1) Rule 40 on appeals from MTC to RTC.
judgment/final order 2) Rule 42 on petitions for review from RTC to
rendered in exercise of CA.
RTC's appellate
3) Rule 43 on appeals from QJA to CA.
jurisdiction
Rule 43 Appeal to CA of QJA 4) Rule 45 on appeals by certiorari to SC.
judgments/final • Rationale: To standardize the appeal periods
orders/awards/ provided in the ROC and to afford litigants fair
resolutions rendered in opportunity to appeal their cases, the court
exercise of quasi- deems it practical to allow a fresh period of 15
judicial functions days within which to file the notice of appeal
Appeal by Rule 45 Appeal to SC where (NOA) in the RTC, counted from receipt of the
certiorari (petition only questions of law
order dismissing a MNT/MFR.
for review on are raised/involved
certiorari)
ORDINARY APPEAL FROM RTC TO CA [Rule
41]
PERFECTION OF APPEAL
• Perfection of an appeal in the manner and APPLICABILITY [Rule 41, Sec. 1]
within the period laid down by law is • Appeal of judgment or final order that
mandatory and jurisdictional. [Balgami v. CA completely disposes of either:
(2004)] 1) The case;
• Rationale: Appeal is merely a statutory 2) A particular matter in the case, when
privilege, and may be exercised only in the declared by ROC to be appealable.
manner and in accordance with the • Not appealable under Rule 41:
provisions of the law. It is not a natural 1) Order denying PFR or any similar motion
right nor a part of due process. seeking relief from judgment;
• Effect of failure to perfect appeal: 2) Interlocutory order;
• Defeats a party’s right to appeal. 3) Order disallowing/dismissing appeal;
• Precludes appellate court from acquiring 4) Order denying motion to set aside
jurisdiction. judgment buy consent/confession/
• Failure to pay the appellate court docket fee compromise on ground of fraud/mistake/
within the reglementary period confers only a duress or any other vitiation of consent;
discretionary (not mandatory) power to dismiss 5) Order of execution;
the proposed appeal. Such discretion should 6) While the case is pending, judgment or
consider all attendant circumstances and must final order:
be exercised with a view to substantial justice. a) For/against one or more of several
[Camposagrado v. Camposagrado (2005)] parties;
b) In separate claims, counterclaims,
COGNIZABLE JUDGMENTS/ISSUES cross-claims, 3rd-party complaints.
• Appellate court has no jurisdiction to review • Exception: If court allows appeal.
a judgment which is immediately final and 7) Order dismissing an action without
executory by express provision of law. prejudice.
[Republic v. Bermudez-Lorino (2005)] • Note: AM 07-7-12-SC (December 4, 2007)
• Rationale: Appeal is merely a privilege amended Rule 41 by taking out, from the
conferred by law upon the litigants. above list of non-appealable cases, orders
• A party cannot change the theory on appeal. denying MNT/MFR.
Only issues pleaded in the lower court and • In the cases not appealable under Rule 41, the
properly raised may be resolved by the aggrieved party may file a special civil action
appellate court. [Medina v. CA (1992)] under Rule 65.
• However, issues which are inferred from
or necessarily connected with the issue INTERLOCUTORY ORDER
properly raised and pleaded may be • Definition: If it does not dispose of the case
resolved by the appellate court. [Espina but leaves something else to be done by the TC
v. CA (1992)] on the merits of the case. [Investments, Inc. v.
CA (1987)]
• For purposes of appeal, an order is final if it
disposes of the entire case.
A. ORDINARY APPEAL • An order for partial summary judgment is an
interlocutory order which cannot be appealed
from. The TC had not yet rendered a complete
RECORD ON APPEAL (ROA)

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CIVIL PROCEDURE REMEDIAL LAW

final judgment. [GSIS v. Philippine Village Hotel 12) Department of Agrarian Reform (DAR under
(2004)] RA 6657)
13) Government Service Insurance System
MULTIPLE APPEALS (GSIS);
• Civil cases which admit of multiple appeals: 14) Employees Compensation Commission
1) Judgment in an action for recovery or for (ECC);
partition of property is separately 15) Agricultural Inventions Board (AIB);
appealable from the proceedings on that 16) Insurance Commission;
part of the judgment wherein accounting 17) Philippine Atomic Energy Commission
for receipts from the property is ordered as (PAEC);
a primary or incidental relief. When such 18) Board of Investments (BOI);
accounting is submitted and either 19) Construction Industry Arbitration
approved or rejected by the TC, another Commission;
appeal lies therefrom. 20) voluntary arbitrators authorized by law.
2) Special civil actions:
a) Expropriation; (Rule 67) • Rule 43 shall not apply to judgments or final
b) Judicial partition; (Rule 69) orders issued under the Labor Code. [Rule 43,
c) Judicial foreclosure of mortgage; (Rule Sec. 2]
68) • NLRC judgments and final orders or
• Special proceedings also admit of multiple resolutions are now reviewable, in the first
appeals. instance, by the CA on certiorari under Rule
• The order of dismissal due to failure to 65, but those of the ECC should be brought
prosecute is appealable by NOA under Rule 41. to the CA through a petition for review
[Ko v. PNB (2006)] But an order of dismissal under this Rule. Also, appeals from the
without prejudice is not appealable under Rule Office of the Ombudsman in administrative
41. [Philexport v. PI (2004)] disciplinary cases are now covered by this
rule. [Fabian v. Desierto (1998)]
• RA 9282: Decisions of the CTA are now
B. PETITION FOR REVIEW appealable to the SC by petition for review on
certiorari under Rule 45.
• Resolution of DOJ Secretary is not appealable
under Rule 43. Recourse should be to the
PETITION FOR REVIEW FROM RTC TO CA President, instead of the CA, under the
[Rule 42] established principle of exhaustion of
administrative remedies. [Orosa v. Roa (2006)]
APPLICABILITY • EXHAUSTION OF ADMINISTRATIVE
• Appeal of RTC decision rendered in exercise of REMEDIES – If an appeal/remedy obtains
appellate jurisdiction. [Rule 42, Sec. 1] or is available within the administrative
machinery, this should be resorted to
CNFS before resort can be made to the courts.
• Petitioner in a petition for review in CA/SC • Under Rule 43, Sec. 4 the petition should be
must submit a CNFS with the petition. filed within 15 days from: [Villorente v. Laiya
However, this rule is relaxed where there is (2005)]
need to conduct a review. In those instances, 1) Notice of the final order;
petitioner may comply with the requirement 2) The date of its last publication, if
after he has filed the petitions. [Rule 42, Sec. publication is required by law for its
1] effectivity;
3) The denial of the petitioner’s MFR duly filed
PETITION FOR REVIEW FROM QJA TO CA according to the governing law of the court
[Rule 43] or agency a quo.
• Under Rule 43, there is no need to implead the
APPLICABILITY lower court or agency which rendered the
• Appeals from judgments or final orders of the assailed decision. [Basmayor v. Atencio
CTA and from awards, judgments, final orders (2005)]
or resolutions of or authorized by any quasi- • Submission of the duplicate original or certified
judicial agency (QJA) in the exercise of its true copy of judgment/order/resolution/ruling
quasi-judicial functions: [Rule 43, Sec. 1] subject of a petition for certiorari is essential to
1) Civil Service Commission (CSC); determine WON the court/body/tribunal which
2) Central Board of Assessment Appeals rendered the same indeed committed
(CBAA); GAD. Either a legible duplicate original or
3) Securities and Exchange Commission certified true copy thereof shall be
(SEC); submitted. If what is submitted is a copy, then
4) Office of the President (OP); it is required that the same is certified by the
5) Land Registration Authority (LRA); proper officer of the
6) Social Security Commission (SSC); court/tribunal/agency/office involved. This is
7) Civil Aeronautics Board (CAB); to assure that such copy is a faithful
8) Bureau of Patents, Trademarks and reproduction of the
Technology Transfer (BPTTT); judgment/order/resolution/ruling subject of the
9) National Electrification Administration petition. [Coca-cola v. Cabalo (2006)]
(NEA);
10) Energy Regulatory Board (ERB);
11) National Telecommunications Commission
(NTC);

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CIVIL PROCEDURE
C. APPEAL BY CERTIORARI
TO SC
• Where only questions of law are
raised/involved. [Rule 41, Sec. 2(c)]
• Appeal by certiorari from a judgment or final
order or resolution of CA/Sandiganbayan/RTC
or other courts whenever authorized by law.
[Rule 45, Sec. 1]
• Rule 45, Sec. 1 was amended by AM 07-7-12-
SC (December 4, 2007) by adding judgments,
final orders or resolutions of the Court of Tax
Appeals to the cases appealable under Rule 45.
• AM 07-7-12-SC also added that a Rule 45
petition may include an application for a writ of
preliminary injunction or other provisional
remedies. Further, the petitioner may seek the
same provisional remedies by verified motion
filed in the same action/proceeding at any time
during its pendency.
APPLICABILITY [Rule 45, Sec. 9]
• Applicable to both civil and criminal cases.
• Exception: Criminal cases where the
penalty imposed is death, reclusion
perpetua or life imprisonment.
FILING OF PETITION
• File with the SC a verified petition for review on
certiorari. [Rule 45, Sec. 1]
• In 18 copies, with the original copy
intended for the court being indicated as
such by the petitioner. [Rule 45, Sec. 4]
• Petition shall raise only questions of law which
must be distinctly set forth. [Rule 45, Sec. 1]
• Contents of petition: [Rule 45, Sec. 4]
1) Full name of the appealing party
(petitioner) and the adverse party
(respondent).
• Without impleading the lower court or
judges as petitioners/respondents.
2) Material dates:
a) When notice of the judgment or final
order or resolution subject thereof was
received;
b) When a MNT/MFR (if any) was filed and
when notice of the denial thereof was
received.
3) Concise statement of the matters involved,
and the reasons/arguments relied on for
the allowance of the petition;
4) A clearly legible duplicate original, or a
certified true copy of the judgment or final
order or resolution certified by the clerk of
court of the court a quo and the requisite
number of plain copies thereof, and such
material portions of the record as would
support the petition;
5) CNFS.
• File within 15 days from notice of the judgment
or final order or resolution appealed from, or of
the denial of the petitioner's MNT/MFR filed in
due time after notice of the judgment. [Rule
45, Sec. 2]
• On motion duly filed and served, with full
payment of the docket and other lawful fees
and the deposit for costs before the expiration
of the reglementary period, the SC may for
justifiable reasons grant an extension of 30
days only within which to file the petition.
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REMEDIAL LAW
PAYMENT OF DOCKET AND OTHER LAWFUL FEES
• Unless he has theretofore done so, the
petitioner shall pay the docket and other lawful
fees to the SC clerk of court and deposit P500
for costs at the time of the filing of the
petition. [Rule 45, Sec. 3]
PROOF OF SERVICE OF PETITION
• Proof of service of a copy on the lower court
and on the adverse party shall be submitted
together with the petition. [Rule 45, Sec. 3]
DISMISSAL/DENIAL OF PETITION [Rule 45, Sec. 5]
• Failure of the petitioner to comply with any of
the requirements regarding the payment of the
docket and other lawful fees, deposit for costs,
proof of service of the petition, and the
contents of and the documents which should
accompany the petition, shall be sufficient
ground for the dismissal thereof.
• SC may on its own initiative deny the petition
on the ground that:
1) The appeal is without merit;
2) The appeal is prosecuted manifestly for
delay;
3) The questions raised therein are too
unsubstantial to require consideration.
DISCRETIONARY REVIEW [Rule 45, Sec. 3]
• A review is not a matter of right, but of sound
judicial discretion, and will be granted only
when there are special and important reasons
therefor.
• The following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of reasons which will be considered:
a) When the court a quo has decided a
question of substance, not theretofore
determined by the SC, or has decided it in
a way probably not in accord with law or
with the applicable decisions of the SC; or
b) When the court a quo has so far departed
from the accepted and usual course of
judicial proceedings, or so far sanctioned
such departure by a lower court, as to call
for an exercise of the power of supervision.
MAY REQUIRE PLEADINGS AND DOCUMENTS [Rule
45, Sec. 7]
• For purposes of determining WON the petition
should be dismissed or denied pursuant to Rule
45, Sec. 5, or where the petition is given due
course under Sec. 8 hereof, the SC may
require/allow the filing of
pleadings/briefs/memoranda/documents as it
may deem necessary, and impose the
sanctions in case of non-filing or unauthorized
filing of such pleadings and documents or non-
compliance with the conditions therefor.
DUE COURSE AND ELEVATION OF RECORDS [Rule
45, Sec. 8]
• If the petition is given due course, the SC may
require the elevation of the complete record of
the case or specified parts thereof within 15
days from notice.
QUESTION OF LAW [Agote v. Lorenzo (2005)]
• A question of law does not involve an
examination of the probative value of the
evidence presented by any of the litigants.
• There is a question of law in a given case when
the doubt or difference arises as to what the
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CIVIL PROCEDURE
law is on a certain state of facts; there is a
question of fact when the doubt or difference
arises as to the truth or the falsehood of the
facts alleged.
• General rule: CA’s findings of fact are final
and conclusive and cannot be reviewed on
appeal to the SC, [Amigo v. Teves] provided
they are borne out by the record or are based
on substantial evidence. [Alsua-Betts v. CA
(1979)]
• Exception: CA’s findings of fact may be
reviewed by the SC on appeal by certiorari
when:
1) Conclusion is a finding grounded
entirely on speculations/surmises/
conjectures. [Joaquin v. Navarro]
2) Inference made is manifestly
mistaken/absurd/impossible. [Luna v.
Linatok]
3) There is GAD in the appreciation of
facts. [Buyco v. People]
4) Judgment is based on a clerk of court 7 clearly legible copies of the
misapprehension of facts. [De la Cruz
v. Sosing]
5) CA’s findings of fact are conflicting.
[Casica v. Villaseca]
6) CA, in making its findings, went beyond
the issues of the case and the same is
contrary to the admissions of both
appellant and appellee. [Nakpil and
Sons v. CA (1986)]
7) CA manifestly overlooked certain
relevant facts not disputed by the
parties and which, if properly
considered, would justify a different
conclusion. [Abellana v. Dosdos
(1965)]
8) CA’s findings of fact are contrary to
those of the TC, or are mere
conclusions without citation of specific
evidence, or where the facts set forth
by the petitioner are not disputed by
the respondent, or where the findings
of fact of the CA are premised on
absence of evidence but are
contradicted by the evidence of record.
[Manlapaz v. CA (1987)]
• Rule 65 cannot cure the failure to appeal thru
Rule 45. [Perez-Rosario v. CA (2006)]
D. PROCEDURE IN CA
ORDINARY APPEALED CASES [Rule 44]
APPLICABILITY [Rule 44, Sec. 1]
• Cases appealed under R41.
CASE TITLE [Rule 44, Sec. 1]
• Same as that in the court of origin; but
appealing party shall be further referred to as
appellant and adverse party as appellee.
COUNSELS AND GUARDIANS [Rule 44, Sec. 2]
• The counsel and guardians ad litem of the
parties in the court of origin shall be
respectively considered as their counsel and
guardians ad litem in the CA.
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• When others appear or are appointed, notice
thereof shall be served immediately on the
adverse party and filed with the court.
ORDER OF TRANSMITTAL OF RECORD [Rule 44,
Sec. 3]
• If the original record or the record on appeal is
not transmitted to CA within 30 days after the
perfection of the appeal, either party may file a
motion with the TC, with notice to the other,
for the transmittal of such record or ROA.
CASE DOCKETING [Rule 44, Sec. 4]
• Upon receiving the original record or ROA and
the accompanying documents and exhibits
transmitted by the lower court, as well as the
proof of payment of the docket and other lawful
fees, the clerk of the CA shall docket the case
and notify the parties thereof.
• Within 10 days from receipt of said notice, the
appellant, in appeals by ROA, shall file with the
approved ROA, together with the proof of
service of 2 copies thereof upon the appellee.
• Any unauthorized alteration/omission/addition
in the approved ROA shall be a ground for
dismissal of the appeal.
RECORD COMPLETION [Rule 44, Sec. 5]
• Where the record of the docketed case is
incomplete, the clerk of the CA shall so inform
said court and recommend to it measures
necessary to complete the record. It shall be
the duty of said court to take appropriate
action towards the completion of the record
within the shortest possible time.
• Where the completion of the record could not
be accomplished within a sufficient period
allotted for said purpose due to insuperable or
extremely difficult causes, the court may
declare that the record and its accompanying
transcripts and exhibits so far available are
sufficient to decide the issues raised in the
appeal, and shall issue an order explaining the
reasons for such declaration. [Rule 44, Sec. 6]
APPELLANT’S BRIEF [Rule 44, Sec. 7]
• It shall be the duty of the appellant to file with
the court, within 45 days from receipt of the
notice of the clerk that all the evidence are
attached to the record, 7 copies of his legibly
typewritten/mimeographed/printed brief, with
proof of service of 2 copies thereof upon the
appellee.
• Contents of appellant’s brief: [Rule 44, Sec.
13]
a) SUBJECT INDEX – Digest of the
arguments and page references, and a
tables of: (1) cases alphabetically
arranged; and (2) books and statutes cited,
with references to the pages where they
are cited.
b) ASSIGNMENT OF ERRORS – Errors urged
separately, distinctly and concisely; stated
without repetition and numbered
consecutively.
• WON appellant has filed a MNT in the
court below, he may include in his
assignment of errors any question of
law/fact that has been raised in the
court below and which is within the
issues framed by the parties. [Rule 44,
Sec. 15]
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CIVIL PROCEDURE
c) STATEMENT OF THE CASE – Clear and
concise statement of the nature of the
action, a summary of the proceedings, the
appealed court rulings and orders, the
nature of the judgment and any other
matters necessary to an understanding of
the nature of the controversy, with page
references to the record.
d) STATEMENT OF FACTS – Clear and
concise narrative statement of the facts
admitted by both parties and of those in
controversy, together with the substance of
the related proof, in sufficient detail to
make it clearly intelligible and with page
references to the record.
e) ISSUES – Clear and concise statement of
issues of fact/law submitted to the court for
its judgment.
f) ARGUMENT – Appellant’s arguments on
each assignment of error, with page
references to the record. The authorities
relied upon shall be cited by the page of
the report at which the case begins and the
page of the report on which the citation is
found.
g) RELIEF – Specification of the
order/judgment which the appellant seeks.
In cases not brought up by record on
appeal, the appellant’s brief shall contain
(as an appendix) a copy of the judgment or
final order appealed from.
h) Attachment: Certified true copy of the
decision or final order appealed from. [Rule
124, Sec. 7]
APPELLEE’S BRIEF [Rule 44, Sec. 8]
• Within 45 days from receipt of appellant's brief,
the appellee shall file with the court 7 copies of
his legibly typewritten/mimeographed/printed
brief, with proof of service of 2 copies thereof
upon the appellant.
• Contents of appellee’s brief: [Rule 44, Sec. 14]
a) Subject index.
b) STATEMENT OF FACTS – Statement that
appellee accepts the statement of facts in
the appellant’s brief; or COUNTER-
STATEMENT OF FACTS – Points out the
insufficiencies/inaccuracies appellee
believes to exist in the appellant’s
statement of facts, with references to the
supporting pages of the record. Matters in
the appellant’s statement of facts should
not be repeated.
c) ARGUMENT – Appellee’s arguments on
each assignment of error, with page
references to the record. The authorities
relied upon shall be cited by the page of
the report at which the case begins and the
page of the report on which the citation is
found.
REPLY BRIEF [Rule 44, Sec. 9]
• Within 20 days from receipt of appellee's brief,
the appellant may file a reply brief answering
points in appellee's brief not already covered in
his main brief.
MEMORANDA IN SPECIAL CASES [Rule 44, Sec. 10]
• In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties
shall be file (in lieu of briefs) their respective
memoranda within a non-extendible period of
30 days from receipt of the notice issued by the
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clerk that all the evidence is already attached
to the record.
• The failure of the appellant to file his
memorandum within the period therefor may
be a ground for dismissal of the appeal.
SEVERAL/PLURALITY OF
APPELLANTS/APPELLEES/COUNSELS [Rule 44, Sec.
11]
• Where there are several appellants/appellees,
each counsel representing one or more but not
all of them shall be served with only one copy
of the briefs.
• When several counsel represent one appellant
or appellee, copies of the brief may be served
upon any of them.
EXTENSION OF TIME FOR FILING BRIEFS [Rule 44,
Sec. 12]
• Extension of time for the filing of briefs will not
be allowed, except for good and sufficient
cause, and only if the motion for extension is
filed before the expiration of the time sought to
be extended.
BRIEF [De Liano v. CA (2001)]
• Purpose: To present to the court in concise
form the points and questions in controversy,
and by fair argument on the facts and law of
the case to assist the court in arriving at a just
and proper conclusion.
• The brief should be so prepared as to minimize
the labor of the court in the examination of the
record upon which the appeal is heard and
determined.
• Failure to comply with required contents of
appellant’s brief is cause for dismissal of the
petition.
ORIGINAL CASES [Rule 46]
APPLICABILITY [Rule 46, Sec. 2]
• Original actions for certiorari, prohibition,
mandamus and quo warranto.
• Except as otherwise provided, the actions for
annulment of judgment shall be governed by
Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto
by Rule 66.
• Rule 46 primarily governs original actions for
certiorari filed in, CA but Rule 65 generally
serves to supplement the same. Rules 46 and
65 co-exist with each other and should be
construed so as to give effect to every
provision of both rules. Under Rule 46, mere
duplicate originals of the assailed orders are
allowed. [Republic v. Carmel (2002)]
CASE TITLE [Rule 46, Sec. 1]
• In all cases originally filed in the CA, the party
instituting the action shall be called the
petitioner and the opposing party the
respondent.
CONTENTS OF PETITION [Rule 46, Sec. 3]
1) Full names and actual addresses of all the
petitioners and respondents;
2) Concise statement of the matters involved;
3) Factual background of the case;
4) Grounds relied upon for the relief prayed for.
FILING OF PETITION [Rule 46, Sec. 3]
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CIVIL PROCEDURE
• It shall be filed in 7 clearly legible copies
together with proof of service thereof on the
respondent with the original copy intended for
the court indicated as such by the petitioner,
and shall be accompanied by a clearly legible
duplicate original or certified true copy of the
judgment/order/resolution/ruling subject
thereof, such material portions of the record as
are referred to therein, and other documents
relevant/pertinent thereto. The certification
shall be accomplished by the proper clerk of
court or by the proper officer of the
court/tribunal/agency/office involved. The other
requisite number of copies of the petition shall
be accompanied by clearly legible plain copies
of all documents attached to the original.
• The petitioner shall also submit together with
the petition a sworn certification that he has
not theretofore commenced any other action
involving the same issues in the SC/CA or
different divisions thereof or any other
tribunal/agency. If there is such other
action/proceeding, he must state the status of
the same; and if he should thereafter learn that
a similar action/proceeding has been filed or is
pending before the SC/CA or different divisions
thereof or any other tribunal/agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal/agency thereof within
5 days therefrom.
PAYMENT OF DOCKET AND LAWFUL FEES [Rule 46,
Sec. 3]
• The petitioner shall pay the docket and other
lawful fees to the clerk of court and deposit
P500 for costs at the time of the filing of the
petition.
• The failure of the petitioner to comply with any
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition. [Rule
46, Sec. 3]
JURISDICTION OVER RESPONDENT’S PERSON
[Rule 46, Sec. 4]
1) By the service on him of its order/resolution
indicating its initial action on the petition;
2) By his voluntary submission to such
jurisdiction.
COURT ACTION [Rule 46, Sec. 5]
• The court may either:
1) Dismiss the petition outright with specific
reasons for such dismissal;
2) Require the respondent to file a comment
on the same within 10 days from notice.
• Only pleadings required by the court shall be
allowed. All other pleadings and papers may be
filed only with leave of court.
DETERMINATION OF FACTUAL ISSUES [Rule 46,
Sec. 6]
• Whenever necessary to resolve factual issues,
the court may either:
1) Conduct hearings thereon;
2) Delegate the reception of the evidence on
such issues to any of its members or to an
appropriate court/agency/office.
FAILURE TO COMMENT [Rule 46, Sec. 7]
• When no comment is filed by any of the
respondents, the case may be decided on the
basis of the record, without prejudice to any
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disciplinary action which the court may take
against the disobedient party.
PRELIMINARY CONFERENCE
• Matters to be taken up: At any time during the
pendency of a case, the court may call the
parties and their counsel to a preliminary
conference: [Rule 48, Sec. 1]
1) To consider the possibility of an amicable
settlement, except when the case is not
allowed by law to be compromised;
2) To define/simplify/clarify the issues for
determination;
3) To formulate stipulations of facts and
admissions of documentary exhibits, limit
the number of witnesses to be presented in
cases falling within the original jurisdiction
of the court, or those within its appellate
jurisdiction where a MNT is granted on the
ground of newly discovered evidence;
4) To take up such other matters which may
aid the court in the prompt disposition of
the case.
• The proceedings at the preliminary conference
shall be recorded. Upon the conclusion thereof,
a resolution shall be issued embodying all: (1)
the actions taken therein, (2) the stipulations
and admissions made, and (3) the issues
defined. [Rule 48, Sec. 2]
• The resolution in the preliminary conference
shall control the subsequent proceedings in the
case. [Rule 48, Sec. 3]
• Exception:
1) Modifications may be made to prevent
manifest injustice;
2) Within 5 days from notice thereof, any
party may satisfactorily show valid
cause why the resolution should not be
followed.
ORAL ARGUMENT
• The court may hear the parties in oral
argument on the merits of a case or on any
material incident in connection therewith. The
oral argument shall be limited to such matters
as the court may specify in its order/resolution.
[Rule 49, Sec. 1]
• Unless authorized by the court, only one
counsel may argue for a party. The duration
allowed for each party, the sequence of the
argumentation, and all other related matters
shall be as directed by the court. [Rule 49, Sec.
2]
• Motions shall not be set for hearing. Unless the
court otherwise directs, no hearing or oral
argument shall be allowed in support of
motions. The adverse party may file objections
to the motion within 5 days from service. Upon
the expiration of the 5 days, the motion shall
be deemed submitted for resolution. [Rule 49,
Sec. 3]
DISMISSAL OF APPEAL
• Grounds: [Rule 50, Sec. 1]
1) Failure of the record on appeal to show on
its face that the appeal was taken within
the period fixed by ROC;
2) Failure to file the NOA/ROA within the
period prescribed by ROC;
3) Failure of the appellant to pay the docket
and other lawful fees under Rule 41, Sec.
4;
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CIVIL PROCEDURE
4) Unauthorized alterations/omissions/
additions in the approved ROA under Rule
44, Sec. 4;
5) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
the ROC;
6) Absence of specific assignment of errors in
the appellant's brief, or of page references
to the record as required in Rule 44, Sec.
13, paragraphs (a), (c), (d) and (f);
7) Failure of the appellant to take the
necessary steps for the
correction/completion of the record within
the time limited by the court in its order;
8) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with court
orders/circulars/directives without
justifiable cause;
9) The fact that the order/judgment appealed
from is not appealable.
• CA has discretion to dismiss or not to dismiss
appeal. Although said discretion must be a
sound one, to be exercised in accordance with
the tenets of justice and fair play, having in
mind the circumstances obtaining in each case,
the presumption is that it has been so
exercised. [PNB v. Philippine Milling (1969)]
• Failure to file appellant’s brief within the
reglementary period need not necessarily cause
dismissal of appeal where the same was due to
force majeure. [Padasas v. CA (1974)]
DISMISSAL OF IMPROPER APPEAL [Rule 50, Sec. 2]
• An appeal under Rule 41 taken from the RTC to
the CA raising only questions of law shall be
dismissed; issues purely of law not being
reviewable by said court. Similarly, an appeal
by NOA instead of by petition for review from
the appellate judgment of a RTC shall be
dismissed.
• An appeal erroneously taken to the CA shall not
be transferred to the appropriate court but
shall be dismissed outright.
• It is true that Circular No. 2-90 now prohibits
the transfer of appeals erroneously taken to the
SC/CA to whichever of these tribunals has
appropriate appellate jurisdiction. But where SC
believes that there are factual issues which
must be resolved, it may, in the exercise of its
sound discretion and considering the attendant
circumstances, either itself take cognizance of
and decide such issues or refer them to CA for
determination. [Atlas Consolidated v. CA
(1991)]
• Nonpayment of the appellate court docket and
other lawful fees within the reglementary
period as provided under Rule 41, Sec. 4 is a
ground for the dismissal of an appeal under
Rule 50, Sec. 1(c). SC has invariably sustained
the CA’s dismissal on technical grounds under
the aforequoted provision unless considerations
of equity and substantial justice present cogent
reasons to hold otherwise. True, the rules may
be relaxed but only for persuasive and weighty
reasons, to relieve a litigant of an injustice
commensurate with his failure to comply with
the prescribed procedure. [Cu-unjieng v. CA
(2006)]
WITHDRAWAL OF APPEAL [Rule 50, Sec. 3]
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• An appeal may be withdrawn as of right at any
time before the filing of the appellee's brief.
Thereafter, the withdrawal may be allowed in
the discretion of the court.
STAY OF EXECUTION
• General rule: In ordinary appeals, execution
is stayed.
• Exception:
1) Decision in forcible entry and unlawful
detainer.
• Exception to exception: If
appellant stays immediate
execution by filing a NOA,
supersedeas bond and depositing
in court a monthly rental or
compensation for the occupation as
fixed by the court which rendered
the decision. [Rule 70, Sec. 19]
2) Decision of the MeTC/MTC/MCTC or the
RTC where execution pending appeal
has been granted by the court of origin
or in a proper case by the appellate
court upon good reasons to be stated
in the order. [Rule 39, Sec. 2]
3) Decision of the RTC rendered in the
exercise of its appellate jurisdiction on
cases tried and decided by the court of
origin under Summary Procedure.
[Sec. 21, Revised Rules on Summary
Procedure]
4) Decision of QJA under the Rule 43,
Sec. 12, unless otherwise provided by
the CA;
5) Decision in cases of injunction,
receivership, support and accounting.
[Rule 39, Sec. 4]
WHEN CASE IS SUBMITTED FOR JUDGMENT [Rule
51, Sec. 1]
A. In ordinary appeals.
1) Where no hearing on the merits of the main
case is held, upon the filing of the last
pleading/brief/memorandum required by
the ROC or by the court itself, or the
expiration of the period for its filing.
2) Where such a hearing is held, upon its
termination or upon the filing of the last
pleading/memorandum required/permitted
to be filed by the court, or the expiration of
the period for its filing.
B. In original actions and petitions for review.—
1) Where no comment is filed, upon the
expiration of the period to comment.
2) Where no hearing is held, upon the filing of
the last pleading required/permitted to be
filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the main
case is held, upon its termination or upon
the filing of the last pleading/memorandum
required/permitted to be filed by the court,
or the expiration of the period for its filing.
JUDGMENT
• It is rendered by the members of the court who
participated in the deliberation on the merits of
the case before its assignment to a member for
the writing of the decision. [Rule 51, Sec. 2]
• The participation of all 3 Justices of a division
shall be necessary at the deliberation. The
unanimous vote of the 3 Justices shall be
required for the pronouncement of a judgment
or final resolution. If the 3 Justices do not
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CIVIL PROCEDURE
reach a unanimous vote, the clerk shall enter
the votes of the dissenting Justices in the
record. Thereafter, the Chairman of the
division shall refer the case (together with the
minutes of the deliberation) to the Presiding
Justice who shall designate 2 Justices chosen
by raffle from among all the other members of
the court to sit temporarily with them, forming
a special division of 5 Justices. The
participation of all the 5 members of the special
division shall be necessary for the deliberation
and the concurrence of a majority of such
division shall be required for the
pronouncement of a judgment or final
resolution. [Rule 51, Sec. 3]
• The CA, in the exercise of its appellate
jurisdiction, may affirm/reverse/modify the
judgment or final order appealed from, and
may direct a new trial or further proceedings to
be had. [Rule 51, Sec. 4]
• Every decision or final resolution of the CA in
appealed cases shall clearly and distinctly state
the findings of fact and the conclusions of law
on which it is based, which may be contained in
the decision or final resolution itself, or adopted
from those set forth in the
decision/order/resolution appealed from. [Sec.
40, BP 129; Rule 51, Sec. 5]
• HARMLESS ERROR RULE — No error in the
admission/exclusion of evidence and no
error/defect in any ruling/order or in anything
done/omitted by the TC or by any of the parties
is ground for granting a new trial or for setting
aside, modifying or otherwise disturbing a
judgment/order, unless refusal to take such
action appears to the court inconsistent with
substantial justice. The court at every stage of
the proceeding must disregard any error/defect
which does not affect the substantial rights of
the parties. [Rule 51, Sec. 6]
• In all actions/proceedings, an appealed
judgment may be affirmed as to some of the
appellants and reversed as to others, and the
case shall thereafter be proceeded with as if
separate actions had been begun and
prosecuted. Execution of the judgment of
affirmance may be had accordingly, and costs
may be adjudged in such cases, as the court
shall deem proper. [Rule 51, Sec. 7]
• No error which does not affect the jurisdiction
over the subject matter or the validity of the
judgment appealed from or the proceedings
therein will be considered unless stated in the
assignment of errors, or closely related to or
dependent on an assigned error and properly
argued in the brief. [Rule 51, Sec. 8]
• Exception: The court may pass upon plain
errors and clerical errors.
• After the judgment or final resolution and and
dissenting/separate opinions are signed by the
Justices taking part, they shall be delivered for
filing to the clerk. The clerk shall indicate
thereon the date of promulgation and cause
true copies thereof to be served upon the
parties or their counsel. [Rule 51, Sec. 9]
ENTRY OF JUDGMENT AND FINAL RESOLUTIONS
[Rule 51, Sec. 10]
• If no appeal/MNT/MFR is filed within the
reglementary period, the judgment or final
resolution shall be entered by the clerk in the
book of entries of judgments.
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REMEDIAL LAW
• The date when the judgment or final resolution
becomes executory shall be deemed as the
date of its entry.
• The record shall contain the dispositive part of
the judgment or final resolution and shall be
signed by the clerk, with a certificate that such
judgment or final resolution has become final
and executory.
EXECUTION OF JUDGMENT [Rule 51, Sec. 11]
• Motion for execution of the judgment or final
order or resolution may only be filed in the
proper court after its entry.
• Exception: If the judgment or final order
or resolution (or a portion thereof) is
ordered to be immediately executory,
• In original actions in the CA, its writ of
execution shall be accompanied by a certified
true copy of the entry of judgment or final
resolution and addressed to any appropriate
officer for its enforcement.
• In appealed cases, where the motion for
execution pending appeal is filed in the CA at a
time that it is in possession of the original
record or ROA, the resolution granting such
motion shall be transmitted to the lower court
from which the case originated, together with a
certified true copy of the judgment or final
order to be executed, with a directive for such
court of origin to issue the proper writ for its
enforcement.
MFR
• A party may file a MFR of a judgment or final
resolution within 15 days from notice thereof,
with proof of service on the adverse party.
[Rule 52, Sec. 1]
• No 2nd MFR of a judgment or final resolution
by the same party shall be entertained. [Rule
52, Sec. 2]
• A MFR in the CA shall be resolved within 90
days from the date when the court declares it
submitted for resolution. [Rule 52, Sec. 3]
• Pendency of a MFR filed on time and by the
proper party shall stay the execution of the
judgment or final resolution sought to be
reconsidered, unless the court directs otherwise
for good reasons. [Rule 52, Sec. 4]
NEW TRIAL
• Any time after the appeal from the lower court
has been perfected and before the CA loses
jurisdiction over the case, a party may file a
MNT on the ground of newly discovered
evidence which could not have been discovered
prior to the trial in the court below by the
exercise of due diligence and which is of such a
character as would probably change the result.
The MNT shall be accompanied by affidavits
showing the facts constituting the grounds
therefor and the newly discovered evidence.
[Rule 53, Sec. 1]
• The CA shall consider the new evidence
together with that adduced at the trial below,
and may: [Rule 53, Sec. 2]
1) Grant/refuse a new trial;
2) Make such order as to the taking of further
testimony, either orally in court or by
depositions;
3) Render such other judgment as ought to be
rendered upon such terms as it may deem
just.
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CIVIL PROCEDURE REMEDIAL LAW

• The CA shall resolve a MNT within 90 days from

the date when the court declares it submitted
for resolution. [Rule 53, Sec. 3]
• Unless the court otherwise directs, the
procedure in the new trial shall be the same as
that granted by a RTC. [Rule 53, Sec. 4]
PUBLICATION OF JUDGMENTS AND FINAL
RESOLUTIONS
• Judgments and final resolutions of the CA shall
be published in the OG and in the Reports
officially authorized by the court in the
language in which they have been originally
written, together with the syllabi therefor
prepared by the reporter in consultation with
the writers thereof. Memoranda of all other
judgments and final resolutions not so
published shall be made by the reporter and
published in the OG and the authorized reports.
[Rule 55, Sec. 1]
E. PROCEDURE IN SC
ORIGINAL CASES [Rule 56.A]
COGNIZABLE ORIGINAL CASES
• Only petitions for: [Rule 56, Sec. 1]
1) Certiorari;
2) Prohibition;
3) Mandamus;
4) Quo warranto;
5) Habeas corpus;
6) Disciplinary proceedings against members
of the judiciary and attorneys;
7) Cases affecting ambassadors, other public
ministers and consuls.
APPLICABLE RULES [Rule 56, Sec. 2]
1) The procedure in original cases for certiorari,
prohibition, mandamus, quo warranto and
habeas corpus shall be in accordance with the
applicable provisions of the Constitution, laws,
and Rules 46, 48, 49, 51, 52 and this Rule.
• All references in said Rules to the CA shall
be understood to also apply to the SC;
• The portions of said Rules dealing strictly
with and specifically intended for appealed
cases in the CA shall not be applicable;
• 18 clearly legible copies of the petition shall
be filed, together with proof of service on
all adverse parties.
2) The proceedings for disciplinary action against
members of the judiciary shall be governed by
the laws and Rules prescribed therefor, and
those against attorneys by Rule 139-B, as
amended.
GROUNDS FOR DISMISSAL OF APPEAL [Rule 56,
Sec. 5]
1) Failure to take the appeal within the
reglementary period;
2) Lack of merit in the petition;
3) Failure to pay the docket and other lawful fees
or to make a deposit for costs;
4) Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
5) Failure to comply with any SC
circular/directive/order without justifiable
cause;
6) Error in the choice/mode of appeal;
7) The fact that the case is not appealable to SC.
IMPROPER APPEAL [Rule 56, Sec. 6]
• An appeal taken to the SC by NOA shall be
dismissed.
• Exception: Rule 122, Sec. 3 regarding
appeals in criminal cases where the penalty
imposed is death, reclusion perpetua or life
imprisonment.
• An appeal by certiorari taken to the SC from
the RTC submitting issues of fact may be
referred to the CA for decision or appropriate
action. The determination of the SC on WON
issues of fact are involved shall be final.
EQUALLY DIVIDED SC [Rule 56, Sec. 7]
• Where the court en banc is equally divided
in opinion, or the necessary majority
cannot be had, the case shall again be
deliberated on. If after such deliberation no
decision is reached:
1) The original action commenced in the court
shall be dismissed.
2) In appealed cases, the judgment/order
appealed from shall stand affirmed;
3) On all incidental matters, the
petition/motion shall be denied.

APPEALED CASES [Rule 56.B]

MODE OF APPEAL [Rule 56, Sec. 3]

• Only by a petition for review on certiorari.
• Exception: Criminal cases where the
penalty imposed is death, reclusion
perpetua or life imprisonment.

PROCEDURE [Rule 56, Sec. 4]

• Governed by and disposed of in accordance
with the applicable provisions of the
Constitution, laws, Rules 45, 48, Sec. 1, 2 and
5 to 11 of Rule 51, 52 and this Rule.

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CIVIL PROCEDURE
XI. EXECUTION OF JUDGMENTS
A. EXECUTION AS A MATTER
OF RIGHT
If no appeal has been perfected, or the
period of appeal has expired
Prevailing Party applies (by motion) for a
w rit of execution, w hic h is granted by the
judge since it is a matter of right
General rule: When the judgment or order
becomes executory, the court cannot refuse to
issue a writ of execution
• Exceptions: The issuance of a writ of
execution which issues as a matter of right
can be countered in any of the following
cases (R-I-N-S-E-D):
1) When a PETITION FOR RELIEF or an
action to enjoin judgment is filed and a
preliminary injunction is prayed for and
granted (Rule 38.5);
2) When the judgment turns out to be
INCOMPLETE OR IS CONDITIONAL
since as a matter of law, such
judgment CANNOT BE FINAL;
3) When the judgment has been NOVATED
BY THE PARTIES
4) When SUBSEQUENT FACTS AND
CIRCUMSTANCES transpire as to render
such execution unjust or impossible
5) On EQUITABLE GROUNDS as when
there has been a change in the
situation of the parties which makes
execution INEQUITABLE.
6) When the judgment becomes
DORMANT, the 5-year period under
Rule39.6 having expired without the
judgment having been revived.
• General rule: An ex parte motion for the
issuance of the writ of execution would suffice
since the trial court may take judicial notice of
the record of the case to determine the
propriety of the issuance thereof.
• Exception: However when the losing party
shows that subsequent facts had taken
place which would render the execution
unjust, a hearing on the motion should be
held. [Luzon Surety v. Beson (1976)]
• General rule: An appeal seasonably perfected
shall stay the execution of the judgment,
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REMEDIAL LAW
JUDGMENT OR FINAL ORDER (order
that disposes of the action or proceeding)
If an appeal has been perfected and duly
resolved, there are two ways by which
execution can be carried out
Prevailing party files a The appellate court
motion in the court of may, on motion in the
origin, submitting same case, when the
therewith certified true interest of justice so
copies of the judgment or requires, direct the
judgments or final order court of origin to issue
or orders sought to be the writ of execution.
enforced and of the entry
thereof, with notice to
the adverse party1.
unless discretionary execution is granted by the
court.
• Exceptions: However, judgments in the
following action, despite perfection of an
appeal, shall be executed, unless the court
orders otherwise:
1) injunction
2) receivership
3) accounting
4) support
5) such other judgments as shall now or
may hereafter be declared to be
immediately executory
Judgments in these actions shall be
enforceable after their rendition and shall
not, be stayed by an appeal taken
therefrom, UNLESS OTHERWISE ORDERED
BY THE TRIAL COURT. On appeal
therefrom, the appellate court in its
discretion may make an order suspending,
modifying, restoring or granting the
injunction, receivership, accounting, or
award of support.
• General rule: According to Rule 39, Section 6:
A final and executory judgment or order may
be executed on motion within five (5) years
from the date of its entry. After the lapse of
such time, and before it is barred by the
statute of limitations, a judgment may be
enforced by action. The revived judgment may
also be enforced by motion within five (5)
years from the date of its entry and thereafter
by action before it is barred by the statute of
limitations. According to Prof. Avena’s textual
analysis of this provision, the maximum period
within which a final and executory judgment
may be executed is 20 years.
• Exceptions:
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CIVIL PROCEDURE REMEDIAL LAW

1) judgment for support WHICH DO NOT

BECOME DORMANT AND WHICH CAN BE
EXECUTED BY MOTION [Canonizado v. Benitez]
except for support in arrears beyond 10 years
from the date they become due;

2) contempt orders by reason of unauthorized

reentry on the land by the ejected defendant
[Azotes v. Blanco];

3) issuance of writs of possession in

FORECLOSURE CASES within the statute of
limitations;

4) land registration proceedings (and other

special proceedings), hence the right to ask for
a WRIT OF POSSESSION THEREIN NEVER
PRESCRIBES

B. DISCRETIONARY
EXECUTION

Situation 1: Trial Court still has Situation 2: Trial court has lost
jurisdiction over the case and is in jurisdiction
possession of either the original record
or the record on appeal, as the case
may be.

In Situat ion1, prevailing party f iles a MOTION WITH

NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situation2, prevailing party f iles the motion
for execution pending appeal in the appellate court.

Discretionary execution may be

granted only f or GOOD REASONS to
be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper
court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against w hom it is
directed, conditioned upon the performance of the judgment or order allow ed to be executed
in case it shall be finally sustained in w hole or in part. The bond thus given m ay be
procee ded against on motion with notice to the s urety

IN CASE the judgment w hich w as executed pending appeal is reversed

totally or partially, or annulled, on appeal or otherw ise, the trial court may, on
motion, issue such orders of res titution or reparation of dam ages as
equity and justice m ay w arrant unde r the circumstances

General rule: Under the Rule on Discretionary
Execution, the court rendering the judgment, if it
still has jurisdiction, may exercise discretion and
order execution pending appeal.
• Exception: This rule, however,
inapplicable in the case of the Court of
Appeals. The Rule on Discretionary
Execution contemplates a situation where a
judgment or final order rendered in the
exercise of its original jurisdiction and the
prevailing party in said decision seeks
immediate execution during the pendency
of an appeal. The CA has no authority to
issue IMMEDIATE EXECUTION PENDING
APPEAL OF ITS OWN DECISIONS THEREIN.
Discretionary execution is allowed pending
appeal of judgment or final order of the
trial court upon good reasons to be stated
in a special order. A JUDGMENT OF THE CA
is CANNOT BE EXECUTED PENDING APPEALIt
is acquired either by the arrest of the
accused or by his voluntary appearance in
court. [Heirs of Justice J.B.L. Reyes v. CA
(2000)]
• General rule: The filing of a supersedeas bond
is sufficient to stay the enforcement of a
discretionary execution.
• Exception: However, according to J.
Regalado, THE FILING OF SUPERSEDEAS

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CIVIL PROCEDURE
BOND does not entitle the judgment debtor
to the suspension of execution as a
MATTER OF RIGHT. Where the needs of the
prevailing party are URGENT, the Court can
order immediate execution despite such
SUPERSEDEAS BOND.
C. EXECUTION OF
JUDGMENTS FOR MONEY
1. IMMEDIATE PAYMENT ON
DEMAND
• Procedure:
1) The sheriff or executing officer demands
from the judgment obligor the immediate
payment of the full amount stated in the
writ of execution and all lawful fees.
2) The judgment obligor shall pay in cash,
certified bank check payable to the
judgment obligee, or ANY OTHER FORM OF
PAYMENT ACCEPTABLE TO THE LATTER
(e.g., dacion en pago), the amount of the
judgment debt under proper receipt directly
to the judgment obligee or his authorized
representative if present at the time of
payment. The lawful fees shall be handed
under proper receipt to the executing
sheriff who shall turn over the said amount
within the same day to the clerk of court of
the court that issued the writ.
3) If the judgment obligee or his authorized
representative is not present to receive
payment, the judgment obligor shall deliver
the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possession within
the same day to the clerk of court of the
court that issued the writ, or if the same is
not practicable, deposit said amounts to a
fiduciary account in the nearest
government depository bank of the
Regional Trial Court of the locality.
4) The clerk of said court shall thereafter
arrange for the remittance of the deposit to
the account of the court that issued the
writ whose clerk of court shall then deliver
said payment to the judgment obligee in
satisfaction of the judgment. The excess, if
any, shall be delivered to the judgment
obligor while the lawful fees shall be
retained by the clerk of court for disposition
as provided by law. In no case shall the
executing sheriff demand that any payment
by check be made payable to him.
2. SATISFACTION BY LEVY
• Nature: LEVY MEANS THE ACT OR ACTS by
which an officer sets apart or appropriates a
part or the whole of the property of the
judgment debtor for purposes of the
prospective execution sale [Llenares v.
Vandevella (1966)]. If susceptible of
appropriation, the officer REMOVES AND TAKES
THE PROPERTY FOR SAFEKEEPING; otherwise
the same is placed under sheriff’s guards.
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REMEDIAL LAW
Without valid levy having been made, ANY
SALE OF THE PROPERTY THEREAFTER is void.
• Procedure:
1) If the judgment obligor cannot pay all or
part of the obligation in cash, certified bank
check or other mode of payment acceptable
to the judgment obligee, the officer shall
levy upon (1) the properties of the
judgment obligor of every kind and nature
whatsoever which may be disposed, of for
value and (2) not otherwise exempt from
execution
2) The sheriff gives the judgment obligor the
option as to which of the property or part
thereof may be levied upon, sufficient to
satisfy the judgment
3) If the judgment obligor does not exercise
the option, the officer shall first levy on the
personal properties, if any, and then on the
real properties if the personal properties
are insufficient to answer for the judgment.
4) The sheriff shall sell only a sufficient
portion of the personal or real property of
the judgment obligor which has been levied
upon.
5) When there is more property of the
judgment obligor than is sufficient to
satisfy the judgment and lawful fees, he
must sell only so much of the personal or
real property as is sufficient to satisfy the
judgment and lawful fees.
3. GARNISHMENT OF DEBTS
AND CREDITS
• Scope: The officer may levy on debts due the
judgment obligor and other credits, including
bank deposits, financial interests, royalties,
commissions and other personal property not
capable of manual delivery in the possession or
control of third parties. The process of levying
shall be called garnishment if the property
involved is money, stocks, or other incorporeal
property in the HANDS OF THIRD PERSONS.
Garnishment merely sets apart such funds but
does not constitute the creditor as owner of the
garnished property. In Chinabank v. Ortega,
the Court held that garnishment is not a
violation of RA 1405 on the secrecy of bank
deposits.
• Procedure:
1) Levy shall be made by SERVING NOTICE
UPON THE PERSON OWING SUCH DEBTS
OR HAVING IN HIS POSSESSION OR
CONTROL SUCH CREDITS TO WHICH THE
JUDGMENT OBLIGOR IS ENTITLED. The
garnishment shall cover only such amount
as will satisfy the judgment and all lawful
fees.
2) The garnishee shall make a WRITTEN
REPORT to the court within five (5) days
from service of the notice of garnishment
stating whether or not the judgment obligor
has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report
shall state how much funds or credits the
garnishee holds for the judgment obligor
3) The garnished amount in cash, or certified
bank check issued in the name of the
judgment obligee, shall BE DELIVERED
DIRECTLY TO THE JUDGMENT OBLIGEE
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CIVIL PROCEDURE
within ten (10) working days from service
of notice on said garnishee requiring such
delivery, except the lawful fees which shall
be paid directly to the court.
4) In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have
the right to indicate the garnishee or
garnishees who shall be required to deliver
the amount due, otherwise, the choice shall
be made by the judgment obligee.
5) The executing sheriff shall observe the
same procedure under IMMEDIATE
PAYMENT ON DEMAND with respect to
delivery of payment to the judgment
obligee.
D. EXECUTION OF
JUDGMENTS FOR
SPECIFIC ACTS
1. CONVEYANCE, DELIVERY OF
DEEDS, OR OTHER SPECIFC
ACTS
• Under this situation, there is a judgment which
directs a party to execute a conveyance of land
or personal property, or to deliver deeds or
other documents, or to perform, any other
specific act IN CONNECTION THEREWITH. If
the party so ordered fails to comply within a
specified period, there are two possible
remedies. Either:
1) the court may DIRECT THE ACT TO BE
DONE AT THE COST OF THE DISOBEDIENT
PARTY by some other person appointed by
the court and the act when so done shall
have like effect as if done by the party, or
2) if real or personal property is situated
within the Philippines, the court in lieu of
directing a conveyance thereof may by an
order divest the title of any party and vest
it in others, which shall have the force and
effect of a conveyance executed in due
form of law.
2. SALE OF REAL OR PERSONAL
PROPERTY
• If judgment is rendered ordering the sale of
real or personal property, an order for
execution shall be issued describing such
property as may be ordered sold, selling it, and
applying the proceeds in conformity with the
judgment’s instructions.
3. DELIVERY OR RESTITUTION
OF REAL PROPERTY
• The officer shall demand of the person against
whom the judgment for the delivery or
restitution of real property is rendered and all
persons claiming rights under him to peaceably
vacate the property within three (3) working
days, and restore possession thereof to the
judgment obligee, otherwise, the officer shall
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oust all such persons therefrom with the
assistance, if necessary, of appropriate peace
officers, and employing such means as may be
reasonably necessary to retake possession, and
place the judgment obligee in possession of
such property. ANY COSTS, DAMAGES, RENTS
OR PROFITS AWARDED BY THE JUDGMENT
SHALL BE SATISFIED IN THE SAME MANNER
AS A JUDGMENT FOR MONEY.
• According to Prof. Avena, The writ of execution
directing the sheriff to cause the defendant to
vacate is in the nature of HABERE FACIAS
POSSESSIONEM and authorizes the sheriff
WITHOUT NEED OF SECURING A BREAK OPEN
ORDER to break open the premises where
there is no occupant therein. When a party
refuses to yield possession of a property as
ordered by a writ of execution, contempt IS
NOT THE REMEDY. The sheriff must oust said
party from the property; but if demolition is
involved, there must be a hearing on motion
and due notice for the issuance of special
order.
4. REMOVAL OF
IMPROVEMENTS ON
PROPERTY SUBJECT OF
EXECUTION
• When the property subject of the execution
contains improvements constructed or planted
by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove
said improvements except upon special order
of the court, issued upon motion of the
judgment obligee after the hearing and after
the former has failed to remove the same
within a reasonable time fixed by the court.
5. DELIVERY OF PERSONAL
PROPERTY
• In judgment for the delivery of personal
property, the officer shall take possession of
the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for
money as therein provided.
E. EXECUTION OF SPECIAL
JUDGMENTS
• When a judgment requires the performance of
ANY ACT OTHER THAN THOSE MENTIONED IN
THE TWO PRECEDING SECTIONS (EXECUTION
OF JUDGMENT FOR MONEY AND SPECIFIC
ACTS), a certified copy of the judgment shall
be attached to the writ of execution and shall
be served by the officer upon the party against
whom the same is rendered, or upon any other
person required thereby, or by law, to obey the
same, and such party or person may be
punished for contempt if he disobeys such
judgment.
• Special judgments are those which can be
complied with by the judgment obligor because
of his personal qualifications or circumstances
(e.g., a judgment ordering a partner to render
an accounting, a judgment ordering a party to
comply with his recording contract otherwise,
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CIVIL PROCEDURE
pay damages). Note the difference with
sections 9 and 10 (on execution of money
judgments and specific acts) where contempt is
not a remedy against disobedience by a party.
F. GENERAL RULES
GOVERNING EXECUTIONS
1. PROPERTY EXEMPT FROM
EXECUTION
• General rule: Except as otherwise expressly
provided by law, the following property, and no
other, shall be exempt from execution:
(FOTNUP-LBS-GMRE)
(a) The judgment obligor's family home as
provided by law, or the homestead in which he
resides, and land necessarily used in connection
therewith;
(b) Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos,
or other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
(f) Provisions for individual or family use sufficient
for four months;
(g) The professional libraries and equipment of
judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and
other professionals, not exceeding three hundred
thousand pesos in value;
(h) One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of
the judgment obligor for his personal services
within the four months preceding the levy as are
necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any life
insurance;
(l) The right to receive legal support, or money or
property obtained as such support, or any pension
or gratuity from the Government;
(m) Properties specially exempted by law. (e.g.,
property mortgaged to the DBP [Section 26, CA
458]; savings of national prisoners deposited with
the POSTAL SAVINGS BANK [Act 2489]; benefits
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from private retirement systems of companies and
establishments with limitations [RA 4917];
laborer’s wages except for debts incurred for food,
shelter, clothing and medical attendance [ART
1708, CIVIL CODE]; benefit payments from SSS
[Section 16, RA 1161 AS AMENDED])
• Exception: However, no article or species of
property mentioned in this section shall be
exempt from (1) execution issued upon a
judgment recovered for its price or (2) upon a
judgment of foreclosure of a mortgage thereon.
• The exemptions MUST BE CLAIMED, otherwise
they are deemed waived. It is not the duty of
the sheriff to set off the exceptions on his own
initiative. [Herrera v. Mcmicking]
2. RETURN OF WRIT OF
EXECUTION
• The writ of execution shall be returnable to the
court issuing it immediately after the judgment
has been satisfied in part or in full. If the
judgment cannot be satisfied in full within
thirty (30) days after his receipt of the writ, the
officer shall report to the court and state the
reason therefor. Such writ shall continue in
effect during the period within which the
judgment may be enforced by motion. The
officer shall make a report to the court every
thirty (30) days on the proceedings taken
thereon until the judgment is satisfied in full, or
its effectivity expires. The returns or periodic
reports shall set forth the whole of the
proceedings taken, and shall be filed with the
court and copies thereof promptly furnished the
parties. [Section 12, Rule 39]
3. NOTICE REQUIREMENT
• Before the sale of property on execution, notice
thereof must be given as follows:
(a) In case of perishable property, by posting
written notice of the time and place of the sale
in three (3) public places, preferably in
conspicuous areas of the (CPM) municipal or
city hall, post office and public market in the
municipality or city where the sale is to take
place, for such time as may be reasonable,
considering the character and condition of the
property;
(b) In case of other personal property, by
posting a similar notice in the three (3) public
places above-mentioned for not less than five
(5) days;
(c) In case of real property, by posting for
twenty (20) days in the three (3) public places
abovementioned a similar notice particularly
describing the property and stating where the
property is to be sold, and if the assessed value
of the property exceeds fifty thousand
(P50,000.00) pesos, by publishing a copy of
the notice once a week for two (2) consecutive
weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major
regional language published, edited and
circulated or, in the absence thereof, having
general circulation in the province or city;
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CIVIL PROCEDURE REMEDIAL LAW

(d) In all cases, written notice of the sale shall In case of disagreement as to such value of the
be given to the judgment obligor, at least three bond, the same shall be determined by the court
(3) days before the sale, except as provided in issuing the writ of execution. No claim for damages
paragraph (a) hereof where notice shall be for the taking or keeping of the property may be
given the same manner as personal service of enforced against the bond unless the action
pleadings and other papers as provided by therefor is filed within one hundred twenty (120)
section 6 of Rule 13. days from the date of the filing of the bond.
The officer shall not be liable for damages for the
• The notice shall specify the place, date and taking or keeping of the property, to any third-
exact time of the sale which should not be party claimant if such bond is filed
earlier than nine o'clock in the morning and not
later than two o'clock in the afternoon (9am- • The proceedings set forth above SHALL NOT
2pm). The place of the sale MAY BE AGREED PREVENT SUCH CLAIMANT OR ANY THIRD
UPON BY THE PARTIES. In the absence of such PERSON FROM VINDICATING HIS CLAIM TO
agreement, the sale of the property or personal THE PROPERTY IN A SEPARATE ACTION, OR
property not capable of manual delivery shall PREVENT THE JUDGMENT OBLIGEE FROM
be held in the office of the clerk of court of the CLAIMING DAMAGES IN THE SAME OR A
Regional Trial Court or the Municipal Trial Court SEPARATE ACTION AGAINST A THIRD-PARTY
which issued the writ of or which was CLAIMANT WHO FILED A FRIVOLOUS OR
designated by the appellate court. In the case PLAINLY SPURIOUS CLAIM.
of personal property capable of manual
delivery, the sale shall be held in the place • Apart from Rule 39, the only other provisions of
where the property is located. [Section 15, the Rules of Court dealing with terceria or third
Rule 39] party claims are Rule 57.14 on preliminary
attachment and Rule 60.7 on replevin.
PENALTIES
(Selling without notice and defacing notice) • In Sierra v. Rodriguez and Northern Motors v.
An officer selling without A person willfully Coquia, the Court held that the third party
the notice prescribed by removing or defacing claimant CANNOT APPEAL NOR AVAIL OF
section 15 of this Rule the notice posted CERTIORARI AS A REMEDY in the event that his
claim was denied since HE IS A NONPARTY to
pay punitive damages in if done before the sale, the original action.
the amount of five or before the
thousand (P5,000.00) satisfaction of the 5. PREVENTING EXECUTION
pesos to any person judgment if it be
injured thereby, IN satisfied before the sale, SALE
ADDITION TO HIS shall be liable to pay
ACTUAL DAMAGES, five thousand • At any time before the sale of property on
BOTH TO BE (P5,000.00) pesos to execution, the judgment obligor may prevent
RECOVERED BY MOTION any person injured by the sale by paying the amount required by the
IN THE SAME ACTION reason thereof, in execution and the costs that have been
addition to his actual incurred therein. [Section 18, Rule 39] This is
damages, to be akin to the equitable right of redemption under
recovered by motion in Rule 68, which is available to the judgment
the same action obligor in judicial foreclosure of mortgage. The
difference lies in the fact that under Rule 68, a
definite period is given.
4. RULES REGARDING
6. CONCLUDING THE
TERCERIA (THIRD-PARTY
EXECUTION SALE
CLAIMS)

• When the purchaser is the judgment obligee,

The third person whose property was levied on
must make an
(1) affidavit of his title thereto or right to the
possession thereof,
(2) stating the grounds of such right or title, and
(3) serves the same upon the officer making the
levy and copy thereof, upon the judgment oblige;
The officer shall not be bound to keep the property,
as a general rule
Sheriff is bound to keep the property when the
judgment obligee, on demand of the officer, files a
bond approved by the court to indemnity the third-
party claimant in a sum not less than the value of
the property levied on.
and no third-party claim has been filed, he
need not pay the amount of the bid if it does
not exceed the amount of his judgment. If it
does, he shall pay only the excess. [Section 21,
Rule 39]
• By written consent of the judgment obligor and
obligee, or their duly authorized
representatives, the officer may adjourn the
sale to any date and time agreed upon by
them. Without such agreement, he may
adjourn the sale from day to day if it becomes
necessary to do so for lack of time to complete
the sale on the day fixed in the notice or the
day to which it was adjourned [Section 22, Rule
39]. Written consent is essential, otherwise the
adjournment will be void [Abrozar v. IAC
(1988)]
• Upon a sale of real property , the officer must
give to the purchaser a certificate of sale

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CIVIL PROCEDURE REMEDIAL LAW

containing: (a) A particular description of the

real property sold; (b) The price paid for each
distinct lot or parcel; (c) The whole price paid
by him; (d) A statement that the right of
redemption expires one (1) year from the date
of the registration of the certificate of sale.
Such certificate must be registered in the
registry of deeds of the place where the
property is situated. [Section 25, Rule 39]
• How property is sold on execution:

All sales of property under execution must be made at public auction, to

the highest bidder, to start at the exact time f ixed in the notice. The
judgment obligor, if present at the sale, may direct the order in w hic h
property, real or personal shall be sold, w hen such property consists of
several know n lots or parcels w hich can be sold to advantage
.separately.

When the sale is of real When the sale is of

property, consisting of several personal property capable of
know n lots, they must be sold manual delivery, it must be
separately ; or, when a portion sold w ithin view of those
of such real property is claimed attending the same and in
by a third person, he may such parcels as are likely to
require it to be sold separately bring the highest price

Af ter suff ic ient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of the sale
shall be promptly delivered to the judgment obligor or his authoriz ed
representative, unless otherw is e directed by the judgment or order of
the court.

Se ction 20. Refusal of purchaser to pay. If a purchaser ref uses to pay the amount bid by
him f or property struck off to him at a sale under execution, the off icer may again sell the
property to the highest bidder and shall not be responsible f or any loss occasioned
thereby; but the court may (1) order the ref using purchaser to pay into the court the
amount of such loss1, w ith costs, and may punish him for contempt if he disobeys the
order. The amount of such payment shall be for the benef it of the person entitled to the
proceeds of the execution, unless the execution has been fully satisfied, in which event
such proceeds shall be f or the benef it of the judgment obligor. (2) The officer m ay

Section 24. CONVEYANCE TO PURCHASER OF Section 23. CONVEYANCE TO PURCHASER

PERSONAL PROPERTY NOT CAPABLE OF
MANUAL DELIVERY. When the purchaser of any
personal property, not capable of manual delivery,
pays the purchase pric e, the off icer making the sale
must execute and deliver to the purchaser a
certificate of sale. Such certif icate conveys to the
purchaser all the rights w hich the judgment obligor
had in such property as of the date of the levy on
execution or preliminary attachment
OF PERSONAL PROPERTY CAPABLE OF
MANUAL DELIVERY. When the purchaser of
any personal property, capable of manual
delivery, pays the purchase price, the off ic er
making the sale must deliver the property to the
purchaser and, if desired, execute and deliver to
him a certif icate of sale. The sale conveys to the
purchaser all the rights w hic h the judgment
obligor had in such property as of the date of the
levy on execution or preliminary attachment.

RULES GOVERNING REDEMPTION

1) Real property sold as provided in the last

preceding section, or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following persons:

a) The judgment obligor; or his successor in

interest in the whole or any part of the
property;

b) A creditor having a lien by virtue of an

attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor
is termed a redemptioner. [Section 27,
Rule 39]

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CIVIL PROCEDURE
2) Redemption can be made by either person:
a) JUDGMENT OBLIGOR, Within one year from
the date of REGISTRATION OF THE
CERTIFICATE OF SALE
b) REDEMPTIONER, Within one year FROM
THE DATE OF REGISTRATION OF THE
CERTIFICATE OF SALE; or within 60 days
from the LAST REDEMPTION BY ANOTHER
REDEMPTIONER.
BUT IN ALL CASES, the judgment obligor shall
have the entire period of 1 YEAR from the date
of registration of the sale to redeem the
property.
IF THE JUDGMENT OBLIGOR REDEEMS, no
further redemption is allowed and he is
restored to his estate.
THE PERIOD FOR REDEMPTION IS NOT
SUSPENDED BY AN ACTION TO ANNUL THE
FORECLOSURE SALE.
3) A right of redemption cannot be levied upon by
a judgment creditor. The creditor may not
deprive the debtor of any further rights to the
property [Lichauco v. Olegario]
4) Redemption price varies depending on who the
redemptioner is:
a) If judgment obligor:
i. Purchase price
ii. 1 % interest thereon up to the time of
redemption
iii. Any amount of assessments or taxes
which the purchaser may have paid
thereon after purchase and interest on
such last named amount at the same
rate.
iv. If the purchaser be also a creditor
having prior lien to that of the
redemptioner, other than the judgment
under which such purchase was made,
the amount of such other lien, with
interest.
b) If redemptioner
i. Amount paid on the last redemption
ii. 2% interest thereon.
iii. Any amount of assessments or taxes
which the last redemptioner may have
paid thereon after redemption by him
with interest on such last named
amount;
iv. Amount of any liens held by said last
redemptioner prior to his own with
interest
5) Effects of redemption
a) If the judgment obligor redeems he must
make the same payments as are required
to effect a redemption by a redemptioner,
whereupon, no further redemption shall be
allowed and he is restored to his estate.
The person to whom the redemption
payment is made must execute and deliver
to him a certificate of redemption
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acknowledged before a notary public or
other officer authorized to take
acknowledgments of conveyances of real
property. Such certificate must be filed and
recorded in the registry of deeds of the
place in which the property is situated and
the registrar of deeds must note the record
thereof on the margin of the record of the
certificate of sale. The payments mentioned
in this and the last preceding sections may
be made to the purchaser or redemptioner,
or for him to the officer who made the sale.
[Section 29, Rule 39]
b) A redemptioner must produce to the
officer, or person from whom he seeks to
redeem, and serve with his notice to the
officer
i. a copy of the judgment or final order
under which he claims the right to
redeem, certified by the clerk of the
court wherein the judgment or final
order is entered, OR,
ii. if he redeems upon a mortgage or
other lien, a memorandum of the
record thereof, certified by the registrar
of deeds, OR
iii. an original or certified copy of any
assignment necessary to establish his
claim; AND
iv. an affidavit executed by him or his
agent, showing the amount then
actually due on the lien. [Section 30,
Rule 39]
c) Until the expiration of the time allowed for
redemption, the court may, as in other
proper cases, restrain the commission of
waste on the property by injunction, on the
application of the purchaser or the
judgment obligee, with or without notice;
but it is not waste for a person in
possession of the property at the time of
the sale, or entitled to possession
afterwards, during the period allowed for
redemption, to continue to use it in the
same manner in which it was previously
used, or to use it in the ordinary course of
husbandry; or to make the necessary
repairs to buildings thereon while he
occupies the property. [Section 31, Rule
39]
d) The purchaser or a redemptioner shall not
be entitled to receive the rents, earnings
and income of the property sold on
execution, or the value of the use and
occupation thereof when such property is in
the possession of a tenant. All rents,
earnings and income derived from the
property pending redemption shall belong
to the judgment obligor until the expiration
of his period of redemption. In all, the
judgment debtor shall exercise the
following rights:
i. Remain in possession of the property
ii. He cannot be ejected;
iii. Use the property in the same manner it
was previously used;
iv. Make Necessary repairs to buildings
thereon while he occupies the property
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CIVIL PROCEDURE REMEDIAL LAW

v. Use it in the ordinary course of THE JUDGMENT IS SATISFIED OUT OF THE

husbandry
vi. Collect rents, earnings and income
derived from the property until the
expiration of peiord of redemption.
e) If no redemption be made within one (1)
year from the date of the registration of the
certificate of sale, the purchaser is entitled
to a conveyance and possession of the
property; or, if so redeemed whenever
sixty (60) days have elapsed and no other
redemption has been made, and notice
thereof given, and the time for redemption
has expired, the last redemptioner is
entitled to the conveyance and possession ;
but in all cases the judgment obligor shall
have the entire period of one (1) year from
the date of the registration of the sale to
redeem the property. The deed shall be
executed by the officer making the sale or
by his successor in office, and in the latter
case shall have the same validity as though
the officer making the sale had continued in
office and executed it. Upon the expiration
of the right of redemption, the purchaser or
redemptioner shall be substituted to and
acquire all the rights, title, interest and
claim of the judgment obligor to the
property as of the time of the levy. The
possession of the property shall be given to
the purchaser or last redemptioner by the
same officer unless a third party IS
ACTUALLY HOLDING THE PROPERTY
adversely to the judgment obligor. [Section
33, Rule 39]
PROCEEDS OF THE SALE OF THE PROPERTY
OF ONE OF THEM, or one of them pays,
without a sale, more than his proportion,
he may compel a contribution from the
others; and when a judgment is upon an
obligation of one of them, as security for
another, and the surety pays the amount,
or any part thereof, either by sale of his
property or before sale, he may compel
repayment from the principal. [Section 35,
Rule 39].
8. REMEDIES OF JUDGMENT
CREDITOR IN AID OF
EXECUTION (Sections 36-43)
1. If the execution is returned unsatisfied, he may
cause the EXAMINATION OF THE JUDGMENT
DEBTOR AS TO HIS PROPERTY AND INCOME
[Section 36]
2. He may cause examination of the DEBTOR OF
THE JUDGMENT DEBTOR as to any debt owed by
him or to any property of the judgment debtor in
his possession [Section 37].
3. If after examination, the court finds the property
of the judgment debtor either in his own hands or
that of any person, the court may order the
property applied to the satisfaction of the
judgment. A party or other person may be
COMPELLED BY AN ORDER OR SUBPOENA TO
ATTEND BEFORE THE COURT OR COMMISSIONER
TO TESTIFY as provided in Sect 36-37.

f) Recovery of purchase price and revival 4. If the court finds the earnings of the judgment
of judgment: debtor are more than sufficient for his family’s
needs, it may ORDER PAYMENT IN INSTALLMENTS
[Section 40]
WHEN PURCHASER MAY REMEDIES IN CASE
RECOVER PURCHASE THE SALE IS NOT
PRICE EFFECTIVE
5. The court may appoint a receiver for the
property of the judgment debtor not exempt from
1. The purchaser or his 1. Bring an action execution or FORBID a transfer or disposition or
successors in interest against the interference with such property [Section 41]
fails to recover judgment creditor.
possession of the
property, or 2. File a MOTION FOR 6. If the COURT FINDS THE JUDGMENT DEBTOR
REVIVAL OF HAD AN ASCERTAINABLE INTEREST IN REAL
2. Is evicted due to: JUDGMENT in the PROPERTY EITHER AS MORTGAGOR, MORTGAGEE
name of judgment OR OTHERWISE, AND HIS INTEREST CAN BE
creditor against ASCERTAINED WITHOUT CONTROVERSY, THE
a. irregularities in the judgment COURT MAY ORDER A SALE OF SUCH INTEREST
the proceedings debtor [Section 42].
concerning the
sale
3. Bring an action to 7. If the person alleged to have the property of the
b. judgment has judgment debtor or be indebted to him, claims an
recover possession
been reversed adverse interest in the property or denies the
of property.
or set aside
DEBT, THE COURT MAY AUTHORIZE THE
c. the property JUDGMENT CREDITOR TO INSTITUTE AN ACTION
sold was TO RECOVER THE PROPERTY, FORBID ITS
exempt from TRANSFER AND MAY PUNISH DISOBEDIENCE FOR
execution. CONTEMPT [Section 43]

d. A third person 9. ENTRY OF SATISFACTION

has vindicated
his claim to the
property 1. Satisfaction of a judgment shall be entered by
the clerk of court in the court docket, and in the
execution book, upon the return of a writ of
execution showing the full satisfaction of the
g) When property liable to an execution judgment, or upon the filing of an admission to the
against several persons is sold thereon, satisfaction of the judgment executed and
and MORE THAN A DUE PROPORTION OF acknowledged in the same manner as a

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CIVIL PROCEDURE REMEDIAL LAW

conveyance of real property by the judgment

obligee or by his counsel unless a revocation of his
BAR BY FORMER CONCLUSIVENESS OF
authority is filed, or upon the endorsement of such JUDGMENT (RES JUDGMENT
admission by the judgment obligee or his counsel, JUDICATA)
on the face of the record of the judgment. [Section
44, Rule 39]
There is identity of Identity of parties and
2. Whenever a judgment is satisfied in fact, or parties, subject matter subject matter.
otherwise than upon an execution on demand of and causes of action
the judgment obligor, the judgment obligee or his
The first judgment The first judgment is
counsel must execute and acknowledge, or indorse
constitutes an absolute conclusive only as to
an admission of the satisfaction as provided in the bar to all matters matters directly adjudged
last preceding section, and after notice and upon directly adjudged and and actually litigated in
motion the court may order either the judgment those that might have the first action. Second
obligee or his counsel to do so, or MAY ORDER THE been adjudged. action can be prosecuted.
ENTRY OF SATISFACTION TO BE MADE WITHOUT
SUCH ADMISSION. [Section 45, Rule 39]
• Res Judicata vs. “law of the case”. Law of
the case refers to legal conclusions announced
on a first appeal, whether on the general law or
G. EFFECTS OF JUDGMENTS the law as applied to the concrete facts, not
OR FINAL ORDERS only prescribe the duty and limit the power of
the trial court to strict obedience and
conformity thereto, but they become and
1. RES JUDICATA IN remain the law of the case in all other steps
JUDGMENTS IN REM whether in the lower court or in the appellate
court on a subsequent appeal [Zarate vs.
Director of Lands].
JUDGMENTS OR FINAL CONCLUSIVE AS TO • Law of the case designates the principle that if
ORDER an appellate court has passed on a legal
question and remanded the cause to the court
Against a specific thing Title of the thing below for further proceedings, the legal
question thus determined by the appellate
Probate of a will or the will or administration. court will not be differently determined on a
administration of the
subsequent appeal in the same case where the
estate of a deceased However, the probate of a
person will or granting of letters of facts remain the same. It is a doctrine which
administration shall only be provides that an appellate court’s
prima facie evidence of the determination on a legal issue is binding on
death of the testator or both the trial court on remand and an appellate
intestate; court on a subsequent appeal given the same
case and substantially the same facts. The
in respect to the personal, condition, status or doctrine of "law of the case" is one of policy
political, or legal condition relationship of the person,
only and will be disregarded when compelling
or status of a particular
circumstances call for a redetermination of the
person or his relationship
to another determination of point of law on prior appeal,
and this is particularly true where intervening
or contemporaneous change in law has
2. RES JUDICATA IN occurred by overruling former decisions or
establishment of new precedent by controlling
JUDGMENTS IN PERSONAM
authority.

• In other cases, the judgment or final order is, 4. EFFECT OF FOREIGN

with respect to the matter directly adjudged or
JUDGMENTS
as to any other matter that could have been
missed in relation thereto, conclusive between
the parties and their successors in interest, by • In case of a judgment or final order upon a
title subsequent to the commencement of the specific thing , the judgment or final order, is
action or special proceeding, litigating for the conclusive upon the title to the thing.
same thing and under the same title and in the
same capacity. • In case of a judgment or final order against a
person, the judgment or final order is
3. CONCLUSIVENESS OF presumptive evidence of a right as between the
parties and their successors in interest by a
JUDGMENT/ PRECLUSION OF
subsequent title.
ISSUES (AUTER ACTION
PENDANT) • IN EITHER CASE, THE JUDGMENT OR FINAL
ORDER MAY BE REPELLED BY EVIDENCE OF A
WANT OF JURISDICTION, WANT OF NOTICE TO
• In any other litigation between the same
THE PARTY, COLLUSION, FRAUD, OR CLEAR
parties or their successors in interest, that only
MISTAKE OF LAW OR FACT.
is deemed to have been adjudged in a former
judgment or final order which appears upon its
• Such limitation on the review of foreign
face to have been so adjudged, or which was
judgment is adopted in all legal systems to
actually and necessarily included therein or
avoid repetitive litigation on claims and issues,
necessary thereto.

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CIVIL PROCEDURE
prevent harassment of the parties and avoid
undue imposition on the courts. This policy of
preclusion rests on principles of comity, utility
and convenience of nations. As a generally
accepted principle of international law, it is part
of the law of the Philippines by virtue of the
Incorporation Clause (Section 2, Article II) of
the 1987 Constitution [Regalado].
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REMEDIAL LAW
XII. SUMMARY PROCEDURE
1991 REVISED RULES ON SUMMARY
PROCEDURE
SCOPE [Sec. 1]
• This governs the summary procedure in the
MeTCs/MTCs/MCTCs in the following cases
falling within their jurisdiction:
1) All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered. Where attorney's fees are
awarded, the same shall not exceed P20K.
2) All other civil cases, except probate
proceedings, where the total amount of the
plaintiff's claim does not exceed P10K,
exclusive of interest and costs.
DETERMINATION OF APPLICABILITY [Sec. 2]
• Upon the filing of a civil action, the court shall
issue an order declaring WON the case shall be
governed by this Rule.
• A patently erroneous determination to avoid
the application of the Rule is a ground for
disciplinary action.
THE ONLY PLEADINGS ALLOWED [Sec. 3]
1) Complaints;
2) Compulsory counterclaims and cross-claims
pleaded in the answer;
3) Answers thereto.
• All pleadings shall be verified.
COURT DUTY [Sec. 4]
• After the court determines that the case falls
under summary procedure, from an
examination of the allegations therein and such
evidence as may be attached thereto, it may
dismiss the case outright on any of the grounds
apparent therefrom for the dismissal of a civil
action.
• If no ground for dismissal is found it shall
forthwith issue summons which shall state that
the summary procedure under this Rule shall
apply.
ANSWER [Sec. 5]
• Within 10 days from service of summons, the
defendant shall file his answer to the complaint
and serve a copy thereof on the plaintiff.
• Affirmative and negative defenses not pleaded
therein shall be deemed waived,
• except for LOJ over the subject matter.
• Cross-claims and compulsory counterclaims
not asserted in the answer shall be considered
barred. The answer to counterclaims or cross-
claims shall be filed and served within ten 10
days from service of the answer in which they
are pleaded.
EFFECT OF FAILURE TO ANSWER [Sec. 6]
• The court shall render judgment as may be
warranted by the facts alleged in the complaint
and limited to what is prayed for therein.
• However, the court may reduce the amount of
damages and attorney's fees claimed for being
excessive or otherwise unconscionable.
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CIVIL PROCEDURE
• This is without prejudice to the applicability of
Rule 15, Sec. 4, ROC if there are 2 or more
defendants.
PRELIMINARY CONFERENCE [Sec. 7]
• Not later than 30 days after the last answer is
filed, a preliminary conference shall be held.
• The rules on pre-trial in ordinary cases shall
be applicable to the preliminary conference
unless inconsistent with the provisions of this
Rule.
• The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the
dismissal of his complaint.
• The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Sec. 6. All
cross-claims shall be dismissed.
• If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with Sec. 6.
• Exception: This Rule shall not apply
where one of 2 or more defendants sued
under a common cause of action who had
pleaded a common defense shall appear at
the preliminary conference.
RECORD OF PRELIMINARY CONFERENCE [Sec. 8]
• Within 5 days after the termination of the
preliminary conference, the court shall issue an
order stating the matters taken up therein,
including but not limited to:
1) WON the parties have arrived at an
amicable settlement and the terms thereof;
2) Stipulations or admissions entered into by
the parties;
3) WON based on the pleadings and
stipulations and admissions made by the
parties, judgment may be rendered without
the need of further proceedings, in which
event the judgment shall be rendered
within 30 days from issuance of the order;
4) A clear specification of material facts which
remain controverted;
5) Other matters intended to expedite the
disposition of the case.
SUBMISSION OF AFFIDAVITS AND POSITION
PAPERS [Sec. 9]
• Within 10 days from receipt of the order, the
parties shall submit the affidavits of their
witnesses and other evidence on the factual
issues defined in the order, together with their
position papers setting forth the law and the
facts relied upon by them.
RENDITION OF JUDGMENT [Sec. 10]
• Within 30 days after receipt of the last
affidavits and position papers, or the expiration
of the period for filing the same, the court shall
render judgment.
• However should the court find it necessary to
clarify certain material facts, during the said
period it may issue an order specifying the
matters to be clarified, and require the parties
to submit affidavits or other evidence on the
said matters within 10 days from receipt of said
order. Judgment shall be rendered within 15
days after the receipt of the last clarificatory
affidavits, or the expiration of the period for
filing the same.
• The court shall not resort to the clarificatory
procedure to gain time for the rendition of the
judgment.
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REMEDIAL LAW
REFERRAL TO LUPON [Sec. 18]
• Cases requiring referral to the Lupon for
conciliation under PD 1508 where there is no
showing of compliance with such requirement,
shall be dismissed without prejudice and may
be revived only after such requirement shall
have been complied with.
• Exception: Criminal cases where the
accused was arrested without a warrant.
PROHIBITED PLEADINGS AND MOTIONS [Sec. 19]
1) MTD the complaint or to quash the
complaint/information except on the ground of
LOJ over the subject matter, or failure to
comply with the preceding section;
2) Motion for a BOP;
3) MNT/MFR of a judgment, or motion for opening
of trial;
4) Petition for relief from judgment;
5) Motion for extension of time to file
pleadings/affidavits;
6) Memoranda;
7) Petition for certiorari/mandamus/prohibition
against any interlocutory order;
8) Motion to declare the defendant in default;
9) Dilatory motions for postponement;
10) Reply;
11) 3rd party complaints;
12) Interventions.
AFFIDAVITS [Sec. 20]
• The affidavits required to be submitted under
this Rule shall state only facts of direct
personal knowledge of the affiants which are
admissible in evidence, and shall show their
competence to testify to the matters stated
therein.
• A violation of this requirement may subject the
party or the counsel who submits the same to
disciplinary action, and shall be cause to
expunge the inadmissible affidavit or portion
thereof from the record.
APPEAL [Sec. 21]
• The judgment or final order shall be appealable
to the RTC which shall decide the same in
accordance with Sec. 22, BP 129.
• The RTC decision in civil cases governed by this
Rule, including forcible entry and unlawful
detainer, shall be immediately executory,
without prejudice to a further appeal that may
be taken therefrom.
• Rule 70, Sec. 10 shall be deemed repealed.
APPLICABILITY OF THE REGULAR RULES [Sec. 22]
• The regular procedure prescribed in the ROC
shall apply suppletorily.
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CIVIL PROCEDURE
PART 3: PROVISIONAL REMEDIES
DEFINITION
• Writs and processes available during the
pendency of the action which may be resorted
to by a litigant for the preservation or
protection of their rights and interests therein
pending rendition, and for purposes of the
ultimate effects, of a final judgment in the
case; also known as ancillary or auxiliary
remedies.
• They are applied to a pending litigation, for the
purpose of securing the judgment or preserving
the status quo, and in some cases after
judgment, for the purpose of preserving or
disposing of the subject matter. [Calo vs.
Roldan, 1946]
• All inferior courts can grant appropriate
provisional remedies provided that the main
action is within their jurisdiction. [B.P. 129]
• Orders granting or denying provisional
remedies are merely interlocutory and cannot
be the subject of an appeal. They may however
be challenged before a superior court through a
petition for certiorari under Rule 65.
I. PRELIMINARY ATTACHMENT
DEFINITION
• A provisional remedy issued upon order of the
court where an action is pending to be levied
upon the property or properties of the
defendant therein, the same to be held
thereafter by the sheriff as security for the
satisfaction of whatever judgment might be
secured in said action by the attaching creditor
against the defendant. [Cuartero vs. CA, 1992]
PURPOSES
1. To seize the property of the debtor in advance
of final judgment and to hold it for purposes of
satisfying the said judgment.
2. To enable the court to acquire jurisdiction over
the action by the actual or constructive seizure
of the property in those instances where
personal service of summons on the creditor
cannot be effected. [Quasha vs. Juan, 1982]
GROUNDS [Rule 57.1]
1. Action for recovery of a specified amount of
money or damages EXCEPT moral and
exemplary, on a cause of action against a party
who is about to depart from the Philippines
with intent to defraud his creditors;
2. Action for money or property embezzled or
fraudulently misapplied or converted to his own
use by a public officer, or an officer of a
corporation, or an attorney, factor, broker,
agent, or clerk, in the course of his
employment as such, or by any other person in
a fiduciary capacity, or for a willful violation of
duty;
3. Action to recover the possession of property
unjustly or fraudulently taken, detained or
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REMEDIAL LAW
converted, when the property, or any part
thereof, has been concealed, removed, or
disposed of to prevent its being found or taken
by the applicant or an authorized person;
4. Action against a party who has been guilty of a
fraud in contracting the debt or incurring the
obligation upon which the action is brought, or
in the performance thereof;
5. Action against a party who has removed or
disposed of his property, or is about to do so,
with intent to defraud his creditors; or
6. Action against a party who does not reside and
is not found in the Philippines, or on whom
summons may be served by publication.
STAGES IN THE GRANT OF PRELIMINARY
ATTACHMENT
1. The court issues the order granting the
application
2. The writ of attachment issues pursuant to the
order granting the writ
3. The writ is implemented
• For the first two stages, jurisdiction over the
person of the defendant is NOT necessary.
However, once the implementation of the writ
commences, the court must have acquired
jurisdiction over the defendant. [Cuartero,
supra]
ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT [Rule 57.2]
• may be issued ex parte upon motion with
notice and hearing by the court in which the
action is pending, or by the Court of Appeals or
the Supreme Court.
• must require the sheriff of the court to attach
so much of the property in the Philippines of
the party against whom it is issued, not exempt
from execution, as may be sufficient to satisfy
the applicant's demand
o EXCEPT if such party makes deposit or
gives bond in an amount equal to that fixed
in the order.
CONTENTS OF AFFIDAVIT OF APPLICANT
[Rule 57.3]
1. a sufficient cause of action exists
2. the case is one of those mentioned in sec. 1
(grounds)
3. there is no other sufficient security for the
claim sought to be enforced by the action
4. the amount due to the applicant or the value of
the property the possession of which he is
entitled to recover, is as much as the sum for
which the order is granted above all legal
counterclaims.
• The affidavit and the bond must be filed with
the court before the order issues.
CONDITION OF APPLICANT'S BOND [Rule
57.4]
• Applicant must give a bond executed to the
adverse party in the amount fixed by the court
in its order granting the issuance of the writ
conditioned that the applicant will pay:
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CIVIL PROCEDURE
1. all the costs which may be adjudged to the
adverse party and
2. all damages which the adverse party may
sustain by reason of the attachment if the
court shall finally adjudge that the
applicant was not entitled thereto.
MANNER OF ATTACHING PROPERTY [Rule
57.5]
• The sheriff enforcing the writ shall attach only
so much of the property in the Philippines of
the adverse party not exempt from execution
as may be sufficient to satisfy the applicant’s
demand.
• The levy on attachment shall be preceded or
contemporaneously accompanied by service on
the defendant within the Philippines of:
1. summons
2. copy of complaint
3. application for attachment
4. affidavit and bond of applicant
5. order and writ of attachment.
o EXCEPT if:
1. Summons could not be served personally or
by substituted service despite diligent
efforts, or
2. Defendant is a resident of the Philippines
temporarily absent therefrom, or
3. Defendant is a non-resident, or
4. The action is in rem or quasi in rem.
• Manner of attachment of real and personal
property [Rule 57.7]:
1. Real property, or growing crops
thereon, or any interest therein - by
filing with the registry of deeds a copy of
the order, together with a description of the
property attached, and a notice that it is
attached, or that such real property and
any interest therein held by or standing in
the name of such other person are
attached, and by leaving a copy of such
order, description, and notice with the
occupant of the property, if any, or with
such other person or his agent if found
within the province. Where the property
has been brought under the operation of
either the Land Registration Act or the
Property Registration Decree, the notice
shall contain a reference to the number of
the certificate of title, the volume and page
in the registration book where the
certificate is registered, and the registered
owner or owners thereof.
2. Personal property capable of manual
delivery - by taking and safely keeping it
in the sheriff’s custody, after issuing the
corresponding receipt therefor;
3. Stocks or shares, or an interest in
stocks or shares, of any corporation or
company - by leaving with the president
or managing agent thereof, a copy of the
writ, and a notice stating that the stock or
interest of the party against whom the
attachment is issued is attached in
pursuance of such writ;
4. Debts and credits, including bank
deposits, financial interest, royalties,
commissions, and other personal
property not capable of manual
delivery - by leaving with the person
owing such debts, or having in his
possession or under his control, such
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REMEDIAL LAW
credits or other personal property, or with
his agent, a copy of the writ, and notice
that the debts owing by him to the party
against whom attachment is issued, and
the credits and other personal property in
his possession, or under his control,
belonging to said party, are attached in
pursuance of such writ;
5. Interest of the party whom attachment
is issued in property belonging to the
estate of the decedent - by serving the
executor or administrator or other personal
representative of the decedent with a copy
of the writ and notice that said interest is
attached. A copy of said writ of attachment
and of said notice shall also be filed in the
office of the clerk of the court in which said
estate is being settled and served upon the
heir, legatee or devisee concerned.
• If the property sought to be attached is in
custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-
judicial agency, and notice of the attachment
served upon the custodian of such property.
• After enforcing the writ, the sheriff must make
a return thereon to the court from which the
writ issued, with a full statement of his
proceedings under the writ and a complete
inventory of the property attached, together
with any counter-bond given by the party
against whom attachment is issued, and serve
copies thereof on the applicant. [Rule 57.6]
EFFECTS OF ATTACHMENT
1. attachment of debts, credits and all other
similar personal property [Rule 57.8] - All
persons having in their possession or under
their control any credits or other similar
personal property belonging to the adverse
party, or owing any debts to him, at the time of
service upon them of the copy of the writ of
attachment and notice shall be liable to the
applicant for the amount of such credits, debts
or other similar personal property, until the
attachment is discharged, or any judgment
recovered by him is satisfied, unless such
property is delivered or transferred, or such
debts are paid, to the clerk, sheriff, or other
proper officer of the court issuing the
attachment.
• Garnishment - a species of attachment for
reaching the property or credits pertaining
or payable to a judgment debtor;
• Service of summons upon the garnishee is
not necessary. All that is necessary is the
service upon him of the writ of
garnishment, as a consequence of which he
becomes a virtual party or a forced
intervenor in the case. [Perla Compania v.
Ramolete, 1991]
2. attachment of interest in property
belonging to the estate of a decedent [Rule
57.9] - The attachment of the interest of an
heir, legatee, or devisee in the property
belonging to the estate of a decedent shall not
impair the power of the executor,
administrator, or other personal representative
of the decedent over such property for the
purpose of administration. Such personal
representative, however, shall report the
attachment to the court when any petition for
distribution is filed, and in the order made upon
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CIVIL PROCEDURE REMEDIAL LAW

such petition, distribution may be awarded to
such heir, legatee, or devisee, but the property
attached shall be ordered delivered to the
sheriff making the levy, subject to the claim of
such heir, legatee, or devisee, or any person
claiming under him.
SALE OF ATTACHED PROPERTY
• Whenever it shall be made to appear to the
court in which the action is pending, upon
hearing with notice to both parties, that (1) the
party attached is perishable, or that (2) the
interests of all the parties to the action will be
will be subserved by the sale thereof, the court
may order such property to be sold at public
auction in such manner as it may direct, and
the proceeds of such sale to be deposited in
court to abide the judgment in the action. [Rule
57.11]
DISCHARGE OF ATTACHMENT
• After a writ of attachment has been enforced,
the party whose property has been attached, or
the person appearing on his behalf, may move
for the discharge of the attachment wholly or in
part on the security given.
• Grounds for discharge:
1. Debtor has posted a counter-bond or has
made the requisite cash deposit [Rule
57.12];
2. Attachment was improperly or irregularly
issued [Rule 57.13] as where there is no
ground for attachment, or affidavit and/or
bond filed therefore are defective or
insufficient;
3. Attachment is excessive but the discharge
shall be limited to the excess [Rule 57.13];
4. Property attached is exempt from execution
[Rules 57.2 and 57.5];
5. Judgment is rendered against the attaching
creditor [Rule 57.19].
• If the judgment is in favor of the party against
whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee. [Rule 57.18]
• If judgment be rendered against the attaching
party, all the proceeds of sales and money
collected or received by the sheriff, under the
order of attachment, and all property attached
remaining in any such officer's hands, shall be
delivered to the party against whom
attachment was issued, and the order of
attachment discharged. [Rule 57.19]
IMPROPER, IRREGULAR OR EXCESSIVE
ATTACHMENT
• An application for damages must be filed before
the trial, or before appeal is perfected, or
before the judgment becomes executory.
• Such damages may be awarded only after
hearing and shall be included in the judgment
on the main case. [Rule 57.20]
• Procedure for claiming damages is EXCLUSIVE.
Such claims for damages cannot be the subject
of an independent action.
o EXCEPTIONS:
1. Where the principal case was dismissed
for lack of jurisdiction by the trial court
without giving opportunity to the party
whose property was attached to apply
for and prove his claim; and
2. Where the damages by reason of the
attachment was sustained by a third
person who was not a party to the
action wherein such writ was issued.
[Santos v. CA, 95 Phil 360]

PROCEEDINGS WHERE ATTACHED

PROPERTY CLAIMED BY THIRD PERSON
[Rule 57.14]

• The same procedure as Rule 39.16 (execution).

RECOVERY UPON THE COUNTER-BOND;

DISPOSITION OF DEPOSIT/ATTACHED
PROPERTY AFTER JUDGMENT

• When the judgment has become executory, the

surety or sureties on any counter-bond given to
secure the payment of the judgment shall
become charged on such counter-bond and
bound to pay the judgment obligee upon
demand the amount due under the judgment,
which amount may be recovered from such
surety or sureties after notice and summary
hearing in the same action. [Rule 57.17]
• Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under
the direction of the court to the satisfaction of
any judgment rendered in favor of the
attaching party, and after satisfying the
judgment the balance shall be refunded to the
depositor or his assignee.

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CIVIL PROCEDURE
II. PRELIMINARY INJUNCTION
DEFINITION
• An order granted by the court where the
action/proceeding is pending at any stage of an
action/proceeding prior to the judgment
requiring a party or a court, agency or a person
to refrain from a particular act or acts
(“preliminary preventive injunction”). [Rule
58.1 and 58.2]
• When preventive injunction does not lie:
1. To restrain collection of taxes (Valley
Trading vs CA), except where there are
special circumstances that bear the
existence of irreparable injury. (Churchill &
Tait vs Rafferty, 1915)
2. To restrain the sale of conjugal properties
where the claim can be annotated on the
title as a lien, such as the husband’s
obligation to give support. (Saavedra vs
Estrada, 1931)
3. To restrain a mayor proclaimed as duly
elected from assuming his office. (Cereno
vs Dictado, 1988)
4. To restrain registered owners of the
property from selling, disposing and
encumbering their property just because
the respondents had executed Deeds of
Assignment in favor of petitioner. (Tayag
vs. Lacson, 2004)
5. Against consummated acts. (PNB vs Adi;
Rivera v. Florendo, 1986; Ramos, Sr. v.
CA, 1989; Zabal vs CA)
EXCEPTION: If the act is of continuing
nature and in derogation of plaintiff’s right
at the outset.
6. Against disposing of the case on the merits
(Ortigas and Company Limited Partnership
vs CA, 1988)
7. To stop the execution of judgment where
the judgment was already executed.
(Meneses vs Dinglasan)
8. But where the lower court enforced its
judgment before a party against whom the
execution was enforced could elevate her
appeal in an injunction suit, which was
instituted to prevent said execution, an
independent petition for injunction in the
Court of Appeals is justified. (Manila Surety
and Fidelity vs Teodoro, 1967)
9. The CFI has no power to issue a writ of
injunction against the Register of Deeds if
its effect is to render nugatory a writ of
execution issued by the National Labor
Relations Commission. (Ambrosio vs
Salvador, 1978)
10. Transfer of possession of property to party
with disputed legal title via preliminary
injunction
EXCEPTIONS:
a) Forcible entry and unlawful detainer
cases in which the court may issue
preliminary mandatory injunction [Rule
70.15]
b) Property covered by Torrens Title when
there is a clear finding of ownership
and possession of the land. (GSIS vs
Florendo)
• “Preliminary mandatory injunction” - requires
the performance of a particular act or acts.
[Rule 58.1]
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• Requisites of mandatory injunction:
1. Invasion of the right is material and
substantial
2. Right of the complainant is clear and
unmistakable
3. Urgent and paramount necessity for the
writ to prevent serious damages [Bautista
v. Barcelona, 100 Phil 1078]
4. The effect would not be to create a new
relation between the parties [Alvaro v.
Zapata, 1982]
• Mandatory injunction does not lie in the
following instances:
1. to compel cohabitation [Arroyo v.
Vasquez,1921]
2. cancellation of attachment [Levy Hermanos
v. Lacson, 1940]
3. release imported goods pending hearing
before the Commissioner of Customs.
[Commissioner of Customs v. Cloribel,
1967]
4. to take property out of the possession or
control of one party and place it into that of
another whose title has not clearly been
established [Pio v. Marcos, 1974]
INJUNCTION PROHIBITION
Generally directed against Directed against a
a party in the action court/tribunal/person
exercising judicial powers
Does not involve the may be on the ground
court’s jurisdiction that the court against
whom the writ is sought
acted without/in excess
of jurisdiction
May be the main action Always a main action
itself, or just a provisional
remedy in the main action
PURPOSE
• To prevent future injury and maintain the
status quo (i.e. the last actual, peaceable,
uncontested status which preceded the pending
controversy.) [Kencht vs CA, 1993]
GROUNDS
1. Applicant is entitled to the relief demanded,
and the relief consists in restraining the
commission or continuance of the acts or acts
complained of, or in requiring performance of
an act or acts;
2. Commission, continuance or non-performance
of the acts complained of during the litigation
would probably work injustice to the applicant;
or
3. A party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding, and tending to render the
judgment ineffectual. [Rule 58.3]
REQUIREMENTS
1) The application for injunction must be verified,
and must show facts entitling the applicant to
the relief demanded;
2) Unless exempted by the court, the applicant
must file with the court where the
action/proceeding is pending a bond executed
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CIVIL PROCEDURE
to the party or person enjoined, in an amount
to be fixed by the court. [Rule 58.4]
o Note: Rule 58, Sec. 4 as amended by AM
07-7-12-SC (December 4, 2007):
o Petition must be filed within 60 days
from notice of the
judgment/order/resolution.
o If MFR/MNT is timely filed (WON such
MNT/MFR is required), petition shall be
filed within 60 days from denial of the
MFR/MNT.
o If petition relates to the act of a
MTC/corporation/board/officer/person,
file with the RTC exercising jurisdiction
over the territorial area. May also file
with the CA/Sandiganbayan, WON in
aid of appellate jurisdiction.
o If petition involves QJA’s act/omission,
file only with CA, unless otherwise
provided by law/ROC.
o If election cases involving act/omission
of MTC/RTC, file exclusively with
COMELEC in aid of its appellate
jurisdiction.
3) Hearing and prior notice to the party/person
sought to be enjoined.
EXCEPTIONS:
a) Great or irreparable injury would result to
the applicant before the matter can be
heard on notice.
i) The court may issue a TRO effective for
20 days from service on the party
sought to be enjoined.
ii) Injury is “irreparable” if it is of such
constant and frequent recurrence that
no fair or reasonable redress can be
had therefore in court of law or where
there is no standard by which their
amount can be measured with
reasonable accuracy.
b) Matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury
i) Judge may issue ex parte a TRO
effective for 72 hours from issuance.
o However, must comply with Rule
58, Sec. 4 provisions on service of
summons and documents. [as
amended by AM 07-7-12-SC
(December 4, 2007)]
ii) Within 72 hours, judge shall conduct a
summary hearing to determine whether
the TRO shall be extended until the
application for preliminary injunction
can be heard.
iii) Maximum period of effectivity of
TRO=20 days.
o Within the 20-day period, court must order
the restrained party/person to show cause
at a specified time and place, why the
injunction should not be granted. Within
the same period, court shall determine
WON preliminary injunction shall be
granted, and issue the corresponding
order. [AM 07-7-12-SC (December 4,
2007)]
o If the application for preliminary injunction
is denied or not resolved within the said
period, the TRO is deemed automatically
vacated.
o The effectivity of a TRO is not extendible
and no court shall have authority to extend
or renew the same on the same ground for
which it was issued.
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
o However, if issued by the Court of Appeals
or a member thereof, the TRO shall be
effective for 60 days from service on the
party or person sought to be enjoined.
o A TRO issued by the Supreme Court or a
member thereof shall be effective until
further orders. [Rule 58.5]
TEMPORARY RESTRAINING ORDER (TRO)
• TRO vs. Injunction. A TRO is intended as a
restraint upon the defendant until the propriety
of granting an injunction pendente lite can be
determined, and it goes no further than to
preserve the status quo until such
determination. [Anglo-Fil Trading v. Lazaro,
1983]
• Same requirements for application as
preliminary injunction.
• An application for a TRO shall be acted upon
only after all parties are heard in a summary
hearing, which shall be conducted within 24
hours after the sheriff's return of service and/or
the records are received by the branch selected
by raffle. [Rule 58.4]
OBJECTION TO/MOTION FOR
DISSOLUTION OF
INJUNCTION/RESTRAINING ORDER
• Grounds:
1. Insufficiency of application
2. other grounds (e.g. applicant’s bond is
insufficient/defective), upon affidavits of
the party or person enjoined
3. if it appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or
continuance thereof would cause
irreparable damage to the party/person
enjoined, while the applicant can be fully
compensated for such damages as he may
suffer, provided the former files a bond
• If it appears that the extent of the preliminary
injunction or restraining order granted is too
great, it may be modified. [Rule 58.6]
EXPEDITING PROCEEDINGS [Rule 58, Sec. 7
as amended by AM 07-7-12-SC (December 4,
2007)]
o Court may issue orders expediting the
proceedings. May also grant TRO or writ of
preliminary injunction.
o Petition shall not interrupt the principal case,
unless TRO or writ of preliminary injunction
was issued.
o Public respondent shall proceed with the
principal case within 10 days from the filing of
a certiorari petition with a higher
court/tribunal, absent a TRO or preliminary
injunction, or upon its expiration.
PROCEEDINGS AFTER COMMENT IS FILED
[Rule 58, Sec. 8 as amended by AM 07-7-12-SC
(December 4, 2007)]
o After comment/pleadings are filed, or the time
for their filing has expired, court may require
parties to submit memoranda. If court finds
that the petition’s allegations are true, it shall
Page 73 of 95
CIVIL PROCEDURE
render judgment for such reliefs to which
petitioner is entitled.
o But court may dismiss petition (and award
respondent treble costs solidarily against
petitioner and counsel) if:
o Based on res ipsa loquitur, court may motu
propio impose disciplinary measures for
patently dilatory and unmeritorious petitions.
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
III. RECEIVERSHIP
NATURE
• A receiver is a person appointed by the court in
behalf of all the parties to the action for the
purpose of preserving and conserving the
property in litigation and prevent its possible
destruction or dissipation, if it were left in the
possession of any of the parties.
• The appointment of a receiver is not a matter
of absolute right. It depends upon the sound
discretion of the court and is based on facts
and circumstances of each particular case.
• The guiding principle is the prevention of
imminent danger to the property. If an action
by its nature, does not require such protection
or preservation, said remedy cannot be applied
for and granted. (Commodities Storage v. CA,
1997)
• Receivership is aimed at the preservation of,
and at making more secure, existing rights; it
cannot be used as an instrument for the
destruction of those rights. (Arranza v. B.F.
Homes, 2000)
APPOINTMENT OF RECEIVER
• Requirements:
1. verified application [Rule 59.1]
2. bond [Rule 59.2 and 59.5]
• Who appoints:
1. court where the action is pending
2. CA
3. SC
4. During the pendency of an appeal, the
appellate court may allow an application for
the appointment of a receiver to be filed in
and decided by the court of origin. [Rule
59.1]
• When receiver can be appointed:
1. When it appears from the verified
application and other proof that the
applicant has an interest in the property or
fund which is the subject of the action or
proceeding, and that such property or fund
is in danger of being lost, removed, or
materially injured unless a receiver be
appointed to administer and preserve it;
2. When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger of
being wasted or dissipated or materially
injured, and that its value is probably
insufficient to discharge the mortgage debt,
or that the parties have so stipulated in the
contract of mortgage;
3. After judgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the judgment, or
to aid execution when the execution has
been returned unsatisfied or the judgment
obligor refuses to apply his property in
satisfaction of the judgment, or otherwise
to carry the judgment into effect;
4. Whenever in other cases it appears that the
appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing of
the property in litigation. [Rule 59.1]
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CIVIL PROCEDURE REMEDIAL LAW

• Specific situations when a receiver may be LIABILITY FOR REFUSAL OR NEGLECT TO

appointed
DELIVER PROPERTY TO RECEIVER
1. If a spouse without just cause abandons
the other or fails to comply with his/her
1. Contempt
obligations to the family, the aggrieved
2. Be liable to the receiver for the money or the
spouse may petition the court for
value of the property and other things so
receivership. [Family Code, Article 101]
refused or neglected to be surrendered
2. The court may appoint a receiver of the
together with all damages that may have been
property of the judgment obligor; and it
sustained by the party or parties entitled
may also forbid a transfer or other
thereto as a consequence of such refusal or
disposition of, or any interference with, the
neglect. [Rule 59.7]
property of the judgment obligor not
exempt from execution. [Rule 39.41]
3. After the perfection of an appeal, the trial TERMINATION OF RECEIVERSHIP
court retains jurisdiction to appoint a
receiver of the property under litigation • motu proprio or on motion of either party
since this matter does not touch upon the • when court determines that the necessity for a
subject of the appeal. [Rule 41.9; Acuña v. receiver no longer exists
Caluag, 1957] • requires notice to all interested parties and
4. After final judgment, a receiver may be hearing [Rule 59.8]
appointed as an aid to the execution of
judgment. (Philippine Trust Company v.
Santamaria, 1929)
5. Appointment of a receiver over the
property in custodia legis may be allowed
when it is justified by special
circumstances, as when it is reasonably
necessary to secure and protect the rights
of the real owner. (Dolar v.
Sundiam, 1971)
• The general rule is that neither party to the
litigation should be appointed as a receiver
without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas,
1963)
• A clerk of court should not be appointed as a
receiver as he is already burdened with his
official duties. (Abrigo v. Kayanan, 1983).

DENIAL OF APPLICATION OR DISCHARGE

OF RECEIVER

1. If the appointment sought or granted is without

sufficient cause
2. Adverse party files a sufficient bond to answer
for damages [Rule 59.3]
3. Bond posted by the applicant for grant of
receivership is insufficient
4. Bond of receiver is insufficient

GENERAL POWERS OF RECEIVER

1. Bring and defend in such capacity actions in his

own name with leave of court
2. Take and keep possession of the property in
controversy
3. Receive rents
4. Collect debts due to himself as receiver or to
the fund, property, estate, person, or
corporation of which he is the receiver
5. Compound for and compromise the same
6. Make transfers
7. Pay outstanding debts
8. Divide the money and other property that shall
remain among the persons legally entitled to
receive the same’
9. Generally, to do such acts respecting the
property as the court may authorize
10. Invest funds in his hands, ONLY by order of the
court upon the written consent of all the
parties. [Rule 59.6]

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CIVIL PROCEDURE REMEDIAL LAW

IV. REPLEVIN seized, that it is exempt from such seizure or

NATURE
• Available where the principal action is to
recover possession of personal property.
custody; and
(d) The actual market value of the property.
[Rule 60.2]
2. bond
• The applicant must also give a bond, executed
to the adverse party in double the value of the
property as stated in the affidavit. [Rule 60.2]

REPLEVIN
Available only where the
principal relief sought in
the action is recovery of
personal property, the
other reliefs (e.g.
damages) being merely
incidental thereto.
Can be sought only where
the defendant is in actual
or constructive possession
of the personalty
involved.
Extends only to personal
property capable of
manual delivery.
Available to recover
personal property even if
the same is not
concealed, removed or
disposed of.
Cannot be availed of if the
property is in custodia
legis (e.g. under
attachment, seized under
a search warrant).
EXCEPT:
a. when the seizure is
illegal; (Bagalihog v.
Fernandez, 1991) and
b. where there is
reason to believe that
the seizure will not
anymore be followed
by the filing of the
criminal action in
court or there are
conflicting claims.
(Chua v. CA, 1993)
PRELIMINARY
ATTACHMENT
Available even if the
recovery of personal
property is only an
incidental relief sought in
the action.
May be resorted to even
if the personalty is in the
custody of a third person.
Extends to all kinds of
property, whether real,
personal or incorporeal.
To recover the possession
of personal property
unjustly detained
(presupposed that the
same is being concealed,
removed or disposed of
to prevent its being found
or taken by the applicant.
Can still be resorted to
even if the property is in
custodia legis.
ORDER OF REPLEVIN
• Upon the filing of affidavit and approval of the
bond, the court shall issue an order and the
corresponding writ of replevin describing the
personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to
take such property into his custody. [Rule
60.3]
• A writ of replevin may be served anywhere in
the Philippines.
DISPOSITION OF PROPERTY BY SHERIFF
• The sheriff shall retain the property for 5 days.
The adverse party may object to the sufficiency
of the bond or surety or he may file a
redelivery bond.
• After 5 days and the adverse party failed to
object or his redelivery bond is insufficient, the
sheriff shall deliver the property to the
applicant. [Rule 60.6]
• The defendant is entitled to the return of the
property under a writ of replevin if:
1. He seasonably posts a redelivery bond
[Rule 60.5]
2. Plaintiff’s bond is found to be insufficient or
defective and is not replaced with proper
bond
3. Property is not delivered to the plaintiff for
any reason [Rule 60.6]
WHERE PROPERTY CLAIMED BY THIRD
PERSON
• The same procedure as Rules 39.16 (execution)
and 57.14 (preliminary attachment).

REQUIREMENTS

1. application
• Who may apply: party praying for the recovery
of possession of personal property. [Rule 60.1]
• When: (1) at the commencement of the action
or (2) before the answer [unlike attachment,
injunction and support pendent elite (anytime
before final judgment) and receivership
(anytime even after final judgment)].
• The applicant must show by his own affidavit or
that of some other person who personally
knows the facts:
(a) That the applicant is the owner of the
property claimed, particularly describing it, or
is entitled to the possession thereof;
(b) That the property is wrongfully detained by
the adverse party, alleging the cause of
detention thereof according to the best of his
knowledge, information, and belief;
(c) That the property has not been distrained
or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of
execution or preliminary attachment, or
otherwise placed under custodia legis, or if so

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CIVIL PROCEDURE REMEDIAL LAW

V. SUPPORT PENDENTE LITE the same case, obtain a writ of execution to

enforce his right of reimbursement against the
person ordered to provide such support. [Rule
61.5]
NATURE
REMEDIES OF A PARTY WHO WAS
• Support pendente lite can be granted by the
court in two (2) instances: ERRONEOUSLY COMPELLED TO GIVE
1. civil action for support; and SUPPORT
2. criminal action where civil liability includes
support for the offspring as a consequence of 1. Apply for an order for such reimbursement by
the crime. the recipient on motion in the trial court in the
• Where the right to support is put in issue by same case, unless such restitution is already
the pleadings or the fact from which the right included in the judgment, or
to support arises is in controversy or has not 2. Failing therein, file a separate action for
been established, the court cannot grant reimbursement against the person legally
support pendente lite (Francisco v. Zandueta, obliged to give support. [Rule 61.7]
1929)
• Judgment for support does not become
final. The right to support is of such nature that
its allowance is essentially provisional; for
during the entire period that a needy party is
entitled to support, his or her alimony may be
modified or altered, in accordance with his
increased or decreased needs, and with the
means of the giver. It cannot be regarded as
subject to final determination. (Lam v. Chua,
2004)

REQUIREMENTS

1. verified application [Rule 61.1]

• Who may apply: any party
• When: (1) at the commencement of the
proper action or proceeding, or (2) at any
time prior to the judgment or final order
• Contents:
o Grounds for the claim
o Financial conditions of both parties
o Affidavits, depositions or other
authentic documents in support
thereof.
2. verified comment [Rule 61.2]
• A copy of the application and all supporting
documents shall be served upon the adverse
party, who shall have 5 days to comment
thereon, unless a different period is fixed by
the court upon his motion.
3. hearing [Rule 61.3]
• Within 3 days after the comment is filed or
after the expiration of the period for its filing.

ORDER OF SUPPORT

• If the application is granted, the court shall fix

the amount of money to be provisionally paid
or such other forms of support as should be
provided, taking into account the necessities of
the applicant and the resources or means of
the adverse party, and the terms of payment or
mode for providing the support.
• If the application is denied, the principal case
shall be tried and decided as early as possible.
[Rule 61.4]
• If the adverse party fails to comply with an
order granting support pendente lite, the court
shall, motu proprio or upon motion, issue an
order of execution against him, without
prejudice to his liability for contempt.
• When the person ordered to give support
pendente lite refuses or fails to do so, any third
person who furnished that support to the
applicant may, after due notice and hearing in

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CIVIL PROCEDURE REMEDIAL LAW

PART 4: SPECIAL CIVIL ACTIONS which should be resolved in an ordinary action

for specific performance or other relief [Beltran,
supra].
• Rules on ordinary civil actions shall apply to
special civil actions insofar as they are not PROCEDURE
inconsistent with or may supplement the rules
governing the latter. [Rule 1.3]
• How commenced: Complaint
1. complaint
a. interpleader
Is it filed within a Dismissed –
b. expropriation reasonable time after N barred by laches (Wack
c. foreclosure of real estate mortgage the dispute arose? Wack Golf vs. Lee Won
d. partition 1976)
e. forcible entry and unlawful detainer
2. petition Y
a. declaratory relief
b. review of adjudications of
Constitutional commissions Are the docket fees,
c. certiorari etc. paid by
complainant ?
d. prohibition
e. mandamus
f. quo warranto Y
g. contempt
• Venue is governed by the general rules on
venue, except as otherwise indicated in the Order to interplead
particular rules for special civil actions.
• Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas corpus Service of summons
issued by RTCs are enforceable within their
respective judicial regions. [B.P. 129]
• 3 special civil actions within the jurisdiction of Motion to Dismiss
inferior courts: 15
1. interpleader, provided the amount involved days
is within its jurisdiction [Makati
Development Corp. v. Tanjuatco, 1969] MTD granted? Y
2. ejectment suits [Rule 70]
3. contempt [Rule 71]
Dismissed
N

I. INTERPLEADER
Filing of answer and
other pleadings
DEFINITION

A remedy whereby a person who has property in

his possession or has an obligation to render wholly Service of pleadings to
or partially, without claiming any right in both, co-defendants
comes to court and asks that the defendants who
have made conflicting claims upon the same
property or who consider themselves entitled to Pre-trial
demand compliance with the obligation be required
to litigate among themselves in order to determine
who is entitled to the property or payment or the Decision
obligation [Beltran v. PHHC, 1969]

PURPOSE 1. Complaint filed by the person against whom

• To compel conflicting claimants to interplead
and litigate their several claims among
themselves. [Rule 62.1]
• To protect a person against double vexation in
respect of one liability [Beltran, supra]
WHEN PROPER
• Whenever conflicting claims upon the same
subject matter are or may be made against a
person who claims no interest in the subject
matter or an interest which is not disputed by
the claimants. [Rule 62.1]
• Cannot be availed of to resolve the issue of
breach of undertakings made by defendants,
conflicting claims are or may be made. [ibid]
o The docket and other lawful fees paid by
the complainant, and costs and litigation
expenses shall constitute a lien or charge
upon the subject matter of the action,
unless otherwise ordered by the court.
[R62.7]
2. Court order requiring the conflicting claimants
to interplead with one another. If the interests
of justice so require, the court may direct that
the subject matter be paid or delivered to the
court. [Rule 62.2]
3. Summons, copy of complaint and order served
upon the conflicting claimants. [Rule 62.3]
4. Each claimant shall file his answer within 15
days from service of the summons, serving a

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CIVIL PROCEDURE
copy thereof upon each of the other conflicting
claimants, who may file their reply thereto.
a) If claimant fails to plead within the time
herein fixed, the court may, on motion,
declare him in default and render judgment
barring him from any claim in respect to
the subject matter.
b) Within the time for filing an answer, each
claimant may file a motion to dismiss.
o Grounds:
a. impropriety of the interpleader
action, or
b. other appropriate grounds specified
in Rule 16.
o The period to file the answer shall be
tolled.
o If the motion is denied, an answer may
be filed within the remaining period, in
no case less than 5 days (reckoned
from notice of denial) [Rule 62.4].
5. The parties may file counterclaims, cross-
claims, third-party complaints and responsive
pleadings thereto. [Rule 62.5]
6. Pre-trial
7. Court shall determine conflicting claimants’
respective rights and adjudicate their several
claims. [Rule 62.6]
100% UP LAW UP BAROPS 2008
REMEDIAL LAW
II. DECLARATORY RELIEF
REQUISITES
1. subject matter of the controversy must be a
deed, will, contract or other written instrument,
statute, executive order or regulation, or
ordinance [Rule 63.1];
2. the terms of said documents and the validity
thereof are doubtful and require judicial
construction [Santos v. Aquino, 94 Phil 65]
3. no breach of the documents in question.
[Reparations Commission v. Northern Lines,
1970] Otherwise, an ordinary civil action is the
remedy.
o Concept of a cause of action in ordinary civil
actions does not apply.
o If before the final termination of the case, a
breach or violation of an instrument or a
statute, etc. should take place, the action
may be converted into an ordinary action.
[Rule 63.6]
4. actual justiciable controversy [Edades v.
Edades, 99 Phil 675]
5. adverse interests between the parties
o A declaratory relief is not available for a
declaration of citizenship (Villa-Abrille vs.
Republic, 1956) or the validity of a
registration certificate (Obiles vs. Republic,
1953) as they are unilateral in nature and
without conflicting adverse interests.
6. issue must be ripe for judicial determination
[Tolentino v. Board of Accountancy, 90 Phil 83]
7. adequate relief is not available through other
means or other forms of action or proceedings.
[Ollada v. Central Bank, 1962]
o A court decision cannot be the subject of a
declaratory relief since there exists other
remedies, i.e., appeal or a motion for
clarificatory judgment (Tanda vs. Aldaya,
1956)
WHO MAY FILE
1. a person interested under a deed, will, contract
or other written instrument
2. a person whose rights are affected by a
statute, executive order or regulation,
ordinance or any other governmental regulation
[Rule 63.1]
PARTIES
• all persons who have or claim any interest
which would be affected by the declaration
[Rule 63.2]
• If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor General
shall be notified. [Rule 63.3]
• If action involves the validity of a local
government ordinance, the prosecutor/attorney
of the LGU involved shall be notified. [Rule
63.4]
Subject Matter Notice Given To
Validity of a statute, EO or Sol Gen
regulation, or any
governmental regulation
Validity of a local Prosecutor or attorney
government ordinance of the LGU
Constitutionality of a local Sol Gen
Page 79 of 95
CIVIL PROCEDURE REMEDIAL LAW

government ordinance

• Non-joinder of interested persons is not a Action for Declaratory

Relief Parties - all persons
jurisdictional defect; but persons not joined By whom filed – (1) any who have or claim
shall not be prejudiced in their interests unless person interested under a any interest which
otherwise provided by the Rules (R63.2; deed, will, contract or other would be affected by
Baguio Citizens Action vs. CityCouncil of WRITTEN instrument, or the declaration;
(2) any persn whose rights Rights of persons
Baguio, 1983) are affected by a statute, NOT parties shall
• third-party complaint not available in a executive order or NOT be prejudiced.
declaratory relief (Commission of Customs vs. regulation, ordinance or (SEC. 2)
Cloribel, 1977); but a compulsory counterclaim any other governmental
regulation Solicitor General –
may be set up (Visayan Packing vs. shall be notified and
Reparations Commission, 1987) When – BEFORE breach be heard whenever:
or violation thereof Filing of (1) an action
WHERE FILED Petition involves the
Where – RTC validity of a
statute,
• in the proper RTC [Rule 63.1] Why – (1) to determine any executive
question of construction or order or
• not within the original jurisdiction of the validity arising, and (2) for regulation, or
Supreme Court, even if pure questions of law a declaration of rights or any other
are involved. [Remotigue vs. Osmeña, 1967] duties, thereunder governmental
regulation
Action for (SEC. 3)
WHEN COURT MAY REFUSE TO DECLARE Reformation/Quiet (2) an action
Title/Consolidate alleges a
RIGHTS/CONSTRUE INSTRUMENTS Ownership LGU
ordinance to
1. where a decision would not terminate the (SEC. 1) be
unconstitution
uncertainty or controversy which gave rise to
al (SEC. 4)
the action, or
2. where the declaration or construction is not Exercise Prosecutor or LGU
necessary and proper under the circumstances. of Court’s attorney – shall be
[Rule 63.5] power notified and heard in
any action involving
the validity of local
SIMILAR REMEDIES COVERED BY RULE 63 ordinance. (SEC. 4)

1. Action to quiet title (Arts. 476-481 Civil Code)

2. Action for reformation of instrument (Arts. Court, motu proprio
1359-1369 Civil Code) or upon motion, may When – a
refuse to exercise the
3. Action to consolidate ownership (Art. 1607 Civil power to declare
breach or
Code) [Rule 63.1 par. 2] rights and to
NO YES violation
should take
construe instruments
place
– grounds
BEFORE
(1) where it would the
not terminate termination
the uncertainty of the case
or controversy
(SEC. 6)
which gave
rise to the
action
(2) where it is not
necessary and
proper under
the Conversion
circumstances into
EXCEPTION: action ordinary
for reformation/quiet action
title/consolidate
ownership
(SEC. 5)

Termination
of Case

RULE 63 –
DECLARATORY
RELIEF AND
SIMILAR REMEDIES

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CIVIL PROCEDURE REMEDIAL LAW

III. REVIEW OF JUDGMENTS AND • Failure to comply with foregoing requirements

shall be sufficient ground for dismissal.
FINAL ORDERS OR 2. Order to Comment [Rule 64.6]
• If the SC finds the petition sufficient in form
RESOLUTIONS OF THE and substance, it shall order the respondents to
COMELEC AND COA file their comments on the petition within 10
days from notice thereof.
• Grounds for dismissal:
SCOPE a. Petition not sufficient in form and
substance
b. Petition was filed manifestly for delay
• Applicable only to judgments and final orders of
c. the questions raised are too unsubstantial
the COMELEC and COA [Rule 64.1]
to warrant further proceedings.
• Judgments/orders of the Civil Service
3. Comments of Respondents [Rule 64.7]
Commission are now reviewable by the Court of
• Requirements:
Appeals under Rule 43, eliminating recourse to
a. original copy with
the Supreme Court (SC). [RA 7902; SC Revised
1) certified true copies of such material
Administrative Circular No. 1-95]
portions of the record as are referred to
• An aggrieved party may bring the questioned
in the comment
judgment, etc. directly to the SC on certiorari
2) certified true copies of other supporting
under Rule 65. [Rule 64.2]
papers
o such petition for certiorari shall not stay the
b. 18 legible copies with plain copies of all
execution of the judgment, etc. sought to
documents attached to the original.
be reviewed unless otherwise directed by
• a copy of the comment shall be served on the
the Supreme Court [Rule 64.8]
petitioner.
4. Decision [Rule 64.9]
PROCEDURE • Case is deemed submitted for decision upon:
a. filing of the comments on the petition, and
1. File petition for review. such other pleadings or papers as may be
• When [Rule 64.3]: required or allowed.
o Within 30 days from notice of b. expiration of the period to file the
judgment/final order/resolution sought to pleadings.
be reviewed o EXCEPTIONS: SC sets case for oral
o Filing of motion for reconsideration/new argument or requires parties to submit
trial with Constitutional commission memoranda,
interrupts the 30-day period. If motion is
denied, aggrieved party may file petition
within remaining period, which shall not be
less than 5 days from notice of denial.
• Form [Rule 64.5]:
a. verified and accompanied by (annexes):
1. a clearly legible duplicate original or
certified true copy of the subject
judgment, etc.
2. certified true copies of such material
portions of the record referred to in the
petition
3. other documents relevant and pertinent
to the petition
4. proof of service of a copy of the petition
on the Commission and the adverse
party
5. proof of the timely payment of the
docket and other lawful fees
b. 18 legible copies (containing plain copies of
all documents attached to the original copy
of the petition)
• Contents [Rule 64.5]:
a. name of aggrieved party (petitioner)
b. respondents: Commission concerned and
person(s) interested in sustaining the
judgment a quo
c. facts
d. issues involved
e. grounds and brief arguments relied upon
for review
f. prayer for judgment annulling or modifying
the question judgment, etc.
g. material dates showing that it was filed on
time
h. certification against non-forum shopping
• Findings of fact of the Commission supported
by substantial evidence shall be final and non-
reviewable.

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 CIVIL PROCEDURE REMEDIAL LAW

Those Those exercising Those exercising

IV. CERTIORARI, PROHIBITION exercising judicial and/or judicial and/or
AND MANDAMUS judicial or non-judicial non-judicial
quasi-judicial functions functions
functions
FORM OF PETITION
Certiorari Prohibition Mandamus -verified -verified -verified
GROUNDS
When any When the When any -alleging the -alleging the -alleging the
tribunal, board proceedings of tribunal, facts with facts with facts with
or officer any tribunal, corporation, certainty certainty certainty
exercising corporation, board, officer or
judicial or board, officer or person -PRAYER: that -PRAYER: that -PRAYER: that
quasi-judicial person, judgment be judgment be judgment be
functions has whether a. unlawfully rendered rendered rendered
acted: exercising neglects the annulling / commanding the commanding the
judicial, quasi- performance of modifying the respondent to respondent,
judicial, or an act which the proceedings of desist from immediately or
ministerial law specifically such tribunal, further some other time
functions, are enjoins as a etc., and proceedings in to be specified
duty resulting granting such the action or by the court, to
a. without or in a. without or in from an office, incidental matter specified do the act
excess of its excess of its or trust or station; reliefs as law therein, or required to be
jurisdiction; or his jurisdiction; or and justice otherwise done to protect
or may require. granting such the rights of the
b. unlawfully incidental reliefs petitioner, and
b. with grave b. with grave excludes as law and to pay the
abuse of abuse of another from justice may damages
discretion discretion the use and require. sustained by the
amounting to amounting to enjoyment of a petitioner by
lack or excess lack or excess right or office to reason of the
of its or his of its or his which such wrongful acts of
jurisdiction 1 jurisdiction other is entitled the respondent.

AND there is no -contains a

other plain, certificate of
AND there is no AND there is no speedy and -accompanied non-forum
appeal, or any appeal or any adequate by a certified shopping.
plain, speedy, other plain, remedy in the -accompanied true copy of the
and adequate speedy, and ordinary course by a certified subject
remedy2 in the adequate of law true copy of judgment, etc.,
ordinary course remedy in the (R65.3) the subject copies of all
of law ordinary course judgment, etc., relevant
(R65.1) of law copies of all pleadings and
(R65.2) relevant documents, and
PURPOSE pleadings and a certification of
To correct an To prevent the To compel the documents, non-forum
act performed commission or performance of and a shopping.
by the carrying out of the act desired certification of
respondent an act non-forum
ACT SOUGHT TO BE CONTROLLED shopping.
Discretionary Discretionary Ministerial acts
acts and ministerial • The original action of certiorari not a substitute
acts
for appeal (Lobite vs. Sundiam 1983).
PETITIONER
Exceptions:
Aggrieved Aggrieved Aggrieved
person person person a. the appeal is not a speedy and adequate
RESPONDENT 3 remedy (Salvadores vs. Pajarillo 1947)
b. the orders were issued either in excess of
or without jurisdiction (Aguilar vs. Tan
1
1970)
Without If respondent do not have the legal c. special considerations, i.e., public welfare
jurisdiction power to determine the case or public policy (Jose vs. Zulueta 1961)
Excess of If respondent has the legal power to d. the order is a patent nullity (Marcelo vs. De
jurisdiction determine the case but oversteps
Guzman 1982)
such power
e. the decision in the certiorari case will avoid
Grave abuse of If respondent has the legal power to
discretion determine the case but acts in a future litigations (St. Peter Memorial Park
capricious, whimsical, arbitrary or vs. Campos 1975)
despotic manner in the exercise of
his judgment

2 interested in sustaining the proceedings in the court; and

A remedy is plain, speedy and adequate if it will
promptly relieve the petitioner from the injurious effects
of the judgment and the acts of the lower court or
agency. (Silvestre vs. Torres, 1946)
3
When the petition filed relates to the acts or omissions
of a judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner shall
join, as private respondent or respondents with such
public respondent or respondents, the person or persons
it shall be the duty of such private respondents to appear
and defend, both in his or their own behalf and in behalf
of the public respondent or respondents affected by the
proceedings. xxx
If the case is elevated to a higher court by either party,
the public respondents shall be included therein as
nominal parties. However, unless otherwise specifically
directed by the court, they shall not appear or participate
in the proceedings therein. [Rule 65.5]

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CIVIL PROCEDURE
• A motion for reconsideration must first be
availed of before certiorari – to enable the
lower court to correct its mistakes without the
intervention of the lower courts (BA Finance vs.
Pineda 1982)
Exceptions:
a. the order is a patent nullity (Vigan Elec.
Light vs. Public Service Commission 1964)
b. the questions raised in the certiorari have
been duly raised and passed upon by the
lower court (Fortich-Celdran vs. Celdran
1967) or are the same as those raised and
passed upon in the lower court (Pajo vs.
Ago 1960)
c. there is an urgent necessity for the
resolution of the question and delay would
prejudice the interests of the government
(Vivo vs.Cloribel 1966)
d. the MR would be useless (People vs. Palacio
1960)
e. the petitioner was deprived of due process
and there is extreme urgency for relief
(Luzon Surety vs. Marbella 1960)
f. the proceeding was ex parte in which the
petitioner had no opportunity to object
(Republic vs. Maglanoc 1963)
g. the issue raised is purely a question of law
or where the public interest is involved
(PALEA vs. PAL 1982)
• Questions of fact cannot be raised in an original
action for certiorari. Only established or
admitted facts may be considered. [Suarez v.
NLRC, 1998]
• Findings of fact of CA are not binding upon SC
in an original action for certiorari (Medran vs.
CA, 1949)
• Prohibition is a preventive remedy. However, to
prevent the respondent from performing the
act sought to be prevented during the
pendency of the proceedings for the writ, the
petitioner should obtain a restraining order
and/or writ of preliminary injuction. [Regalado]
• Prohibition is the remedy where a motion to
dismiss is improperly denied. [Enriquez v.
Macadaeg, 84 Phil 674]
• A writ of mandamus will not issue to control the
exercise of official discretion or judgment, or to
alter or review the action taken in the proper
exercise of the discretion of judgment, for the
writ cannot be used as a writ of error or other
mode of direct review. However, in extreme
situations generally in criminal cases,
mandamus lies to compel the performance of
the fiscal of discretionary functions where his
actuations are tantamount to a wilful refusal to
perform a required duty. [Regalado]
• General Rule: In the performance of an official
duty or act involving discretion, such official
can only be directed by mandamus to act but
not to act in one way or the other.
EXCEPTION: gross abuse of discretion,
manifest injustice, palpable excess of authority
[Kant Wong v. PCGG, 1987]
• Mandamus can be availed of only by the party
who has direct legal interest in the right sought
to be enforced. HOWEVER, if the question is
one of public right, it is sufficient to show that
the petitioner is a citizen. [Tanada v. Tuvera,
1985]
PROCEDURE
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REMEDIAL LAW
1. File petition for certiorari / prohibition /
mandamus.
• When filed:
o Not later than 60 days from notice of
judgment/order/resolution
o If a motion for reconsideration/new trial is
filed, the 60-day period shall be counted
from notice of denial of motion.
o Extension may be granted for compelling
reasons, not exceeding 15 days. [Rule
65.4]
• Where filed:
1) Supreme Court
2) Court of Appeals
o If it involves the acts of a quasi-judicial
agency, the petition shall be filed only
in the CA, unless otherwise provided by
law or the Rules.
3) Regional Trial Court, it it relates to acts /
omissions of a lower court / corporation /
board / officer / person.
4) Sandiganbayan, if it is in aid of its appellate
jurisdiction. [Rule 65.4]
2. Order to comment
• If the petition is sufficient in form and
substance to justify such process, the court
shall issue an order requiring the respondent(s)
to comment on the petition within 10 days from
receipt of a copy thereof.
• Such order shall be served on the respondents
in such manner as the court may direct,
together with a copy of the petition and any
annexes thereto. [Rule 65.6]
3. Hearing or Memoranda
• After the comment or other pleadings required
by the court are filed, or the time for the filing
thereof has expired, the court may hear the
case or require the parties to submit
memoranda. [Rule 65.8]
4. Judgment
• If after such hearing or submission of
memoranda or the expiration of the period for
the filing thereof, the court finds that the
allegations of the petition are true, it shall
render judgment for the relief prayed for or to
which the petitioner is entitled.
• The court, however, may dismiss the petition if
it finds the same to be (1) patently without
merit, (2) prosecuted manifestly for delay, or
that (3) the questions raised therein are too
unsubstantial to require consideration. [Rule
65.8]
5. Service and enforcement of order or
judgment.
• A certified copy of the judgment rendered shall
be served upon the court, quasi-judicial
agency, tribunal, corporation, board, officer or
person concerned in such manner as the court
may direct, and disobedience thereto shall be
punished as contempt.
• An execution may issue for any damages or
costs awarded in accordance with section 1 of
Rule 39. [Rule 65.9]
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CIVIL PROCEDURE
V. QUO WARRANTO
• Quo warranto is the remedy to try disputes
with respect to the title to a public office.
QUO WARRANTO ELECTION CONTEST
Basis: the occupant is Challenges the right of a
disqualified from holding person to hold office on
the office by reason of the ground
ineligibility or disloyalty irregularities in the
conduct of the elections
If proceeding succeeds, Successful protestant will
respondent will be assume the office if he
ousted but petitioner will obtained a plurality of the
not assume the office valid votes
QUO WARRANTO ACTIONS
ELECTIVE OFFICE APPOINTIVE OFFICE
Issue: eligibility of the Issue: validity of the
respondent appointment
Occupant declared Court will oust the person
ineligible/disloyal will be illegally appointed and will
unseated but petitioner order the seating of the
will not be declared the person who was legally
rightful occupant of the appointed and entitled to
office the office.
HOW COMMENCED
• By a verified petition [Rule 66.1]
BY WHOM/AGAINST WHOM
a. By Government, brought in the name of the
Republic of the Philippines, against:
a. A person who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position or franchise
b. A public officer who does not or suffers an
act which, by the provision of law,
constitutes a ground for the forfeiture of
his office
c. An association which acts as a corporation
within the Phils without being legally
incorporated or without lawfully authority
so to act [Rule 66.1]
• When Solicitor General or public prosecutor
MUST commence action:
1. when directed by the President of the
Phils.
2. when upon complaint or otherwise, he
has good reason to believe that any
case specified in Sec. 1 can be
established by proof. [Rule 66.1]
3. at the request and upon the relation if
another person (ex relatione), but
leave of court must first be obtained.
[Rule 66.3]
• When Solicitor General or public prosecutor
MAY commence action:
o with permission of the court
o at the request and upon the relation of
another person
o officer bringing such action may first
require an indemnity for the expenses
and costs of the action in an amount
approved by and deposited in court.
[Rule 66.3]
2. By a person claiming to be entitled to a public
office or position, brought in his own name, against
another who usurped or unlawfully held or
exercised such public office or position [Rule 66.5]
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REMEDIAL LAW
CONTENTS OF PETITION
• Action against a person for usurping a public
office, position or franchise
(1) name of the person who claims to be
entitled thereto
(2) averment of his right to the same and that
the respondent is unlawfully in possession
of thereof.
• All persons who claim to be entitled to the
public office/position/franchise may be made
parties. [Rule 66.6]
VENUE
1. Supreme Court
2. Court of Appeals
3. RTC exercising jurisdiction over the territorial
area where the respondent or any of the
respondents resides
4. Where Sol Gen commences action– RTC in
Manila, CA or SC [Rule 66.7]
WHEN FILED
• action against a public officer or employee for
his ouster from office – within one year after
the cause of such ouster, or the right of the
petitioner to hold office or position, arose
• action for damages sustained by reason of
usurpation – within one year after the entry
of the judgment establishing the petitioner’s
right to the office in question [Rule 66.11]
• The one-year period is not interrupted by the
prosecution of any administrative remedy as, in
quo warranto proceedings, no one is compelled
to resort to administrative remedies since
public interest requires that the right to public
office should be determined as speedily as
possible. [Fernandez v. Dela Paz, 1988]
JUDGMENT
• When the respondent is found guilty of
usurping, intruding into, or unlawfully holding
or exercising a public office, position or
franchise, judgment shall be rendered that
such respondent be ousted and altogether
excluded therefrom, and that the petitioner or
relator recover his costs. [Rule 66.9]
• If judgment be rendered in favor of the person
averred in the complaint to be entitled to the
public office he may, after taking the oath of
office and executing any official bond required
by law, take upon himself the execution of the
office, and may immediately thereafter demand
of the respondent all the books and papers in
the respondent's custody or control
appertaining to the office to which the
judgment relates. The person adjudged entitled
to the office may also bring action against the
respondent to recover the damages sustained
by such person by reason of the usurpation.
[Rule 66.10]
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CIVIL PROCEDURE
VI. EXPROPRIATION
CONCEPT AND BASIS OF EXPROPRIATION
• Eminent domain is defined as the power of the
nation or a sovereign state to take, or to
authorize the taking of, private property for a
public use without the owner’s consent,
conditioned upon payment of just
compensation.
• The exercise of the power of eminent domain is
constrained by two constitutional provisions:
(1) that private property shall not be taken for
public use without just compensation under
Article III (Bill of Rights), Section 9; and (2)
that no person shall be deprived of his/her life,
liberty, or property without due process of law
under Art. III, Sec. 1. (Barangay Sindalan etc.
et al. v. CA et al., 2007)
• Rule 67 primarily governs the exercise of the
right of eminent by the State acting through
the national government. (Regalado)
Expropriation by local government units is
governed by the Local Government Code of
1991 (R.A. 7160)
• Two stages in expropriation proceedings:
1. Determination of the authority of the
plaintiff to exercise the power of
eminent domain and the propriety of
its exercise in the context of the facts.
This stage is terminated by either an order
of dismissal of the action or order of the
condemnation declaring that expropriation
is proper and legal. These orders are final
and therefore appealable. (Municipality of
Biñan v. Garcia, 1989)
2. Determination of just compensation.
This is done with the assistance of not
more than three (3) commissioners. The
order fixing just compensation is also final
and appealable. (Ibid). Just compensation
is to be determined as of the date of the
taking of the propriety or the filing of the
complaint, whichever comes first.

There is taking when the owner is actually
deprived or dispossessed of his property; when
there is a practical destruction or a material
impairment of the value of his property or
when he is deprived of the ordinary use
thereof. (Ansaldo v. Tantuico, 1990)

An expropriation suit is incapable of pecuniary
estimation. Accordingly, it falls within the
jurisdiction of RTCs, regardless of the value of
the subject property. (Bardillon v. Bgy. Masili,
2003)
PROCEDURE
• See appended flowcharts.
COMPLAINT FOR EXPROPRIATION
• The complaint for expropriation must be
VERIFIED.
• CONTENTS:
1. The right and purpose of expropriation
2. Description of the real or personal property
sought to be expropriated;
3. The complaint shall join as defendants all
persons owning or claiming to own, or
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REMEDIAL LAW
occupying any part thereof or any interest
therein, showing as far as practicable the
separate interest of each defendant.
4. The following must be clearly stated in the
complaint , if applicable:
a. If the title to any property sought
to be expropriated appears to be in
the Republic of the Philippines,
although occupied by private
individuals;
b. If the title is otherwise obscure or
doubtful so that the plaintiff cannot
with accuracy or certainty specify
who are the real owners. [Rule
67.1]
ENTRY OF PLAINTIFF UPON PROPERTY
• The plaintiff shall have the right to take or
enter upon the possession of the real property
involved upon:
1. filing of complaint for expropriation
2. service of notice to the defendant
3. Deposit with the authorized government
depositary an amount equivalent to the
assessed value of the property for purposes
of taxation to be held by such bank subject
to the orders of the court. Deposits shall be
in money (legal tender) or, if the court
authorizes it, certificate of deposit of a
government bank payable on demand to
the authorized government depositary.
o If personal property is involved, its
value shall be provisionally ascertained
and the amount to be deposited shall
be promptly fixed by the court.
o After deposit, the court shall order the
sheriff or other proper officer to place
the plaintiff in possession of the
property and promptly submit a report
thereof to the court with service of
copies to the parties. [Rule 67.2]
• If the ownership of the property taken is
uncertain, or there are conflicting claims to any
part thereof, the court may order any sum(s)
awarded as compensation for the property to
be paid to the court for the benefit of the
person adjudged in the same proceeding to be
entitled thereto. But the judgment shall require
the payment of the sum(s) awarded to either
the defendant or the court before the plaintiff
can enter upon the property, or retain it for the
public use or purpose if entry has already been
made. [Rule 67.9]
ANSWER
IF THE PLAINTIFF HAS IF THE PLAINTIFF HAS
NO OBJECTION OR OBJECTION OR
DEFENSE TO THE DEFENSE TO THE
EXPROPRIATION OR EXPROPRIATION OR
TAKING OF THE TAKING OF THE
PROPERTY PROPERTY
Defendant may file and Defendant shall serve his
serve notice of ANSWER within the time
appearance and a stated in the summons.
manifestation that he has
no objection or defense,
specifically designating or
identifying the property in
which he claims to be
interested within the time
stated in the summons.
Thereafter, the defendant
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CIVIL PROCEDURE
shall be entitled to notice
of all proceedings
affecting the same.
• GENERAL RULE: All defenses or objections not
alleged in the answer are deemed waived.
o EXCEPTION: The court, in the interest of
justice, may allow the answer to be
amended not later than 10 days from filing.
• At the trial of the issue of compensation,
whether or not the defendant has
previously appeared or answered, he may
present evidence as to the amount of the
compensation to be paid for his property, and
he may share in the distribution of the award.
• The answer to the complaint for expropriation
shall:
1. Specifically designate or identify the
property in which he claims to have an
interest;
2. State the nature and extent of the interest
claimed; and
3. Adduce all of defendant’s objections or
defenses to the taking of his property
• No counterclaim, cross-claim or third-party
complaint shall be alleged or allowed in the
answer or any subsequent pleading. [Rule
67.3]
ORDER OF EXPROPRIATION
• It declares that the plaintiff has a lawful right
to take the property sought to be expropriated
for the public use or purpose described in the
complaint, upon payment of just compensation
to be determined as of the date of the taking of
the property or the filing of the complaint
whichever is earlier.
• It is issued by the court in which the complaint
for expropriation is filed when:
o objections or defenses of the defendant
have been overruled, or
o the defendant raised no such defense or
objection, or
o no party appears to defend. [Rule 67.4]
COMPENSATION

Just compensation is defined as the full and
fair equivalent of the property taken from its
owner by the expropriator. The measure is not
the taker’s gain, but the owner’s loss. To
compensate is to render something which is
equal in value to that taken or received. The
word “just” is used to intensify the meaning of
the word “compensation”; to convey the idea
that the equivalent to be rendered for the
property taken shall be real, substantial, full,
ample. In eminent domain or expropriation
proceedings, the general rule is that the just
compensation which the owner of condemned
property is entitled to is the market value.
Market value is “that sum of money which a
person desirous but not compelled to buy, and
an owner willing but not compelled to sell,
would agree on as a price to be given and
received therefor.” (BPI v. CA, 2004)

Upon the rendition of the order of
expropriation, the court shall appoint not more
than 3 competent and disinterested persons as
commissioners to ascertain and report to the
court the just compensation for the property
sought to be taken. [Rule 67.5]
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REMEDIAL LAW

Powers and duties of commissioners:
1. Parties can present evidence before the
commissioners and the latter have the
power to administer oaths or hearings
before them;
2. They can, after due notice to the parties to
attend, view and examine the property
sought to be expropriated and its
surroundings and may measure the same;
EXCEPTION: when the parties agrees
otherwise, the commissioners cannot view
and examine the property
3. The commissioners shall assess the
consequential damages to the property
taken and deduct from such consequential
damages the consequential benefits derived
by the owner from the public use or
purpose of the property taken, the
operation of its franchise by the corporation
or person taking the property. In no case
shall the consequential benefits assessed
exceed the consequential damages
assessed, or the owner be deprived of the
actual value of his property so taken. [Rule
67.6]
4. The commissioners shall make full and
accurate report to the court of all their
proceedings.

The report shall be filed within 60 days from
the date the commissioners were notified of
their appointment.

Upon filing of the report, the clerk of court shall
serve copies thereof on all interested parties,
with notice that they are allowed ten (10) days
within which to file objections to the findings of
the report, if the parties desire. [Rule 67.7]

After the 10-day period for objecting to the
commissioners’ report, the court, after hearing,
may:
1. ACCEPT the report and render JUDGMENT
in accordance therewith;
2. RECOMMIT the report to the commissioners
for further report of facts;
3. SET ASIDE the report and APPOINT new
commissioners;
4. ACCEPT the report IN PART and REJECT it
IN PART;
5. Make such order or render judgment s shall
secure to the plaintiff the property essential
to the exercise of his right of expropriation
and to the defendant just compensation for
the property so taken. [Rule 67.8]
JUDGMENT
• The judgment entered in expropriation
proceedings shall state definitely, by an
adequate description, the particular property or
interest therein expropriated, and the nature of
the public use or purpose for which it is
expropriated. When real estate is expropriated,
a certified copy of such judgment shall be
recorded in the registry of deeds of the place in
which the property is situated, and its effect
shall be to vest in the plaintiff the title to the
real estate so described for such public use or
purpose. [Rule 67.13]
• Upon payment by the plaintiff to the defendant
of the compensation fixed by the judgment,
with legal interest thereon from the taking of
the possession of the property, or after tender
to him of the amount so fixed and payment of
the costs, the plaintiff shall have the right to
Page 86 of 95
CIVIL PROCEDURE
enter upon the property expropriated and to
appropriate it for the public use or purpose
defined in the judgment, or to retain it should
he have taken immediate possession thereof
under Sec. 2. [Rule 67.10]
• The right of the plaintiff to enter upon the
property of the defendant and appropriate the
same for public use or purpose shall not be
delayed by an appeal from the judgment. But if
the appellate court determines that plaintiff has
no right of expropriation, judgment shall be
rendered ordering the RTC to forthwith enforce
the restoration to the defendant of the
possession of the property, and to determine
the damages which the defendant sustained
and may recover by reason of the possession
taken by the plaintiff. [Rule 67.11]
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REMEDIAL LAW
VII. FORECLOSURE OF REAL
ESTATE MORTGAGE
• The cause of action in a foreclosure suit is
generally the non-payment of the mortgage
loan, but it may be on other grounds which
under the contract warrant the foreclosure,
such as the violation of the other conditions
therein.
• Foreclosure may be made:
1. judicially – governed by Rule 68
2. extrajudicially – proper only when so
provided in contracts in accordance with
Act. No. 3135; governed by A.M. No. 99-
10-05-0.
• A foreclosure action must be brought in the
RTC of the province where the land or any part
thereof is situated. If a mortgage contract
covers several distinct parcels of land situated
in different provinces, the action may be
brought in the RTC of any of the provinces and
the judgment will be enforceable against any of
the parcels of land involved. [Monte de Piedad
v. Rodrigo, 56 Phil 301]
COMPLAINT’S CONTENTS
1. Date and due execution of the mortgage;
2. Date of assignment of mortgage, if any;
3. The names and residences of the mortgagor
and mortgagee;
4. Description of the mortgaged property;
5. Statement of the date of the note or other
documentary evidence of the obligation secured
by the mortgage;
6. Amount claimed to be unpaid;
7. The names and residences of all persons having
or claiming an interest in the property
subordinate in right to that of the holder of the
mortgage, all of whom shall be made
defendants in the action. [Rule 68.1]
JUDGMENT
• If upon the trial, the court shall find the facts
set forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff upon
the mortgage debt or obligation, including
interest and other charges as approved by the
court, and costs, and shall render judgment for
the sum so found due and order that the same
be paid to the court or to the judgment obligee
within a period of not less than 90 days
nor more than 120 days from the entry of
judgment (“equity of redemption”).
• In default of such payment the property shall
be sold at public auction to satisfy the
judgment. [Rule 68.2]
• When the defendant, after being directed to do
so, fails to pay the amount of the judgment
within the period specified therein, the court,
upon motion, shall order the property to be
sold in the manner and under the provisions of
Rule 39 and other regulations governing sales
of real estate under execution.
• Such sale shall not affect the rights of persons
holding prior encumbrances upon the property
or a part thereof, and when confirmed by an
order of the court, also upon motion, it shall
operate to divest the rights in the property of
all the parties to the action and to vest their
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rights in the purchaser, subject to such rights • A CERTIFIED COPY of the final order confirming
of redemption as may be allowed by law. the sale shall be registered in the Registry of
• Upon the finality of the order of confirmation or Deeds.
upon the expiration of the period of redemption
when allowed by law, the purchaser at the IF NO RIGHT OF IF A RIGHT OF
auction sale or last redemptioner, if any, shall REDEMPTION EXISTS REDEMPTION EXISTS
be entitled to the possession of the property, The Certificate of Title in The Certificate of Title in
unless a third party is actually holding the the name of the the name of the
mortgagor shall be mortgagor shall NOT be
same adversely to the judgment obligor.
cancelled, and a new cancelled, but the
• The said purchaser or last redemptioner may one issued in the name Certificate of Sale and the
secure a writ of possession, upon motion, from of the purchaser. order confirming the sale
the court which ordered the foreclosure. [Rule shall be registered and a
68.3] brief memorandum
thereof shall be made by
the Registrar of Deeds
DISPOSITION OF THE PROCEEDS OF THE
upon the certificate of
SALE title

• Claims to be satisfied by the proceeds of the IF THE PROPERTY IS IF THE PROPERTY IS

public sale of mortgaged property (in order): REDEEMED NOT REDEEMED
1. Costs incurred in the sale of property The Deed of Redemption The FINAL Deed of Sale
2. Claim of the person foreclosing the shall be registered with executed by the sheriff in
the Registry of Deeds favor of the purchaser at
property
and a brief memorandum the foreclosure sale shall
3. Claims of junior encumbrancers in the thereof shall be made by be registered with the
order of their priority the Registrar of Deeds Registry of Deeds.
on said certificate of The Certificate of Title in
• If proceeds of the sale exceeds the cost of the title. the name of the
sale as well as the claims of the person mortgagor shall be
foreclosing the property and junior cancelled and a new one
encumbrancers, if any  the residual amount shall be issued in the
name of the purchaser.
shall be given to the mortgagor or his agent, or
to the person entitled to it. [Rule 68.4]
• If the proceeds of the sale is less than the • Right of redemption is the right granted to the
amount of the claims to be satisfied  the debtor-mortgagor, his successor-in-interest or
person foreclosing the property may move for a any judicial creditor of said debtor-mortgagor
DEFICIENCY JUDGMENT from the court or any person having a lien in the property
confirming the foreclosure sale, to recover the subsequent to its mortgage or deed of trust,
amount of the deficiency in his claim. under which the property is sold, to redeem the
property within one (1) year from the
registration of the sheriff’s certificate of
DEFICIENCY JUDGMENT foreclosure sale. (De Castro v. Intermediate
Appellate Court, 1988)
• Definition. A judgment against a debtor for the • The right of redemption in relation to a
unpaid balance of the debt if a foreclosure sale mortgage is understood in the sense of a
or a sale of repossessed personal property fails prerogative to re-acquire mortgaged property
to yield the full amount of the debt due; also after registration of the foreclosure sale. It
termed a deficiency decree. (Black’s Law exists only in the case of the extrajudicial
Dictionary) foreclosure of the mortgage. No such right is
• Sec. 6 provides for a deficiency judgment which recognized in a judicial foreclosure, except
shall be rendered, on motion, when the only where the mortgagee is the Philippine
foreclosure sale did not produce proceeds National Bank or a bank or banking institution.
sufficient to satisfy the judgment. (Huerta Alba Resort, Inc. v. CA, 2000)
o In extrajudicial foreclosure, the mortgagee However, the mortgagor has the “equity of
can also recover by action any deficiency in redemption.”
the mortgage account which was not • Equity of Redemption is the right of the
realized in the foreclosure sale. [PNB v. CA, defendant mortgagor to extinguish the
1999] mortgage and retain ownership of the property
• A motion for deficiency judgment may be made by paying the amount fixed in the decision of
only after the sale and after it becomes known the court within 90 to 120 days after entry of
that a deficiency exists. (Governor of the judgment or even after the foreclosure sale but
Philippine Islands v. Torralba Vda. de Santos, prior to its confirmation. (Limpin v.
1935) Intermediate Appellate Court, 1988)
• No deficiency judgment may be rendered
against the owner who is not a mortgagor and
has not assumed personal liability for the debt.
The remedy is an ordinary action against the
debtor. (Philippine Trust Co. v. Echaus Tan
Siua, 1929)
• If the debtor dies, the deficiency may be filed
as a claim against his estate. (Rule 86.7)

REGISTRATION [Rule 68.7]

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CIVIL PROCEDURE
VIII. PARTITION
• Partition of property may be:
1. Extrajudicial – by agreement
2. Judicial – compulsory; governed by Rule 69
• Even if the parties resorted to judicial partition,
they may still make an amicable partition of the
property. [Secs. 2 and 12]
• Rule 69 applicable to partitions of estates
composed of personal property, or of both real
and personal property. [Sec. 13]
• Stages in an Action for Partition:
1. Determination of the propriety of
partition. This involves a determination of
whether the subject property is owned in
common and whether all the co-owners are
made parties in the case. The order may
also require an accounting of rents and
profits recovered by the defendant. This
order of partition is appealable. (Miranda v.
Court of Appeals, 1976) If not appealed,
then the parties may partition the common
property in the way they want. If they
cannot agree, then the case goes into the
second stage. However, the order of
accounting may in the meantime be
executed. (De Mesa v. CA, 1994)
2. The actual partitioning of the subject
property. This is also a complete
proceeding and the order or decision is
appealable.
• When there was a prior partition, the fact that
the share of each co-heir has not been
technically described and the title over the
whole lot remains uncancelled does not negate
such partition. There can be no partition again
because there is no more common property.
(Noceda v. CA, 1999)
• Oral partition of land when the same is fully
consummated is valid and binding upon the
parties thereto. (Crucillo v. IAC, 1999)
• All persons considered as co-owners and
interested in the property to be partitioned are
indispensable parties to the action and must be
impleaded. (Sepulveda v. Pelaez, 2005)
• Parties to a partition proceeding, who elected
to take under partition, and who took
possession of the portion allotted to them, are
estopped to question title to portion allotted to
another party. A person cannot claim both
under and against the same instrument. In
other words, they accepted the lands awarded
them by its provisions, and they cannot accept
the decree in part, and repudiate it in part.
They must accept all or none. Parties who had
received the property assigned to them are
precluded from subsequently attacking its
validity of any part of it. (Maglucot-aw et al. v.
Maglucot et al., 2000)
• Partition may be inferred from circumstances
sufficiently strong to support the presumption.
Thus, after a long possession in severalty, a
deed of partition may be presumed. It has been
held that recitals in deeds, possession and
occupation of land, improvements made
thereon for a long series of years, and
acquiescence for 60 years, furnish sufficient
evidence that there was an actual partition of
land either by deed or by proceedings in the
probate court, which had been lost and were
not recorded. And where a tract of land held in
common has been subdivided into lots, and one
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of the lots has long been known and called by
the name of one of the tenants in common, and
there is no evidence of any subsequent claim of
a tenancy in common, it may fairly be inferred
that there has been a partition and that such
lot was set off to him whose name it bears.
(Maglucot-aw et al. v. Maglucot et al., supra)
COMPLAINT
• Filed by person having the right to compel the
partition of real estate.
• Contents:
1. Nature and extent of the complainant’s title
2. Adequate description of the real estate of
which the partition is demanded
3. All other persons interested in the property
must be impleaded. [Rule 69.1]
VENUE
• Actions for partition should be filed in the RTC
of the province where the property or part
thereof is situated. If several dintinct parcels of
land are situated in different provinces, venue
may be laid in the RTC of any of said provinces.
[Pancho v. Villanueva, 99 Phil 611]
WHEN TO FILE
• The right of action to demand partition does
not prescribe [De Castro v. Echarri, 20 Phil 23],
EXCEPT where one of the interested parties
openly and adversely occupies the property
without recognizing the co-ownership [Cordova
v. Cordova, 102 Phil 1182] in which case,
acquisitive prescription may set in.
• If a co-owner repudiates the co-ownership and
makes known such repudiation to the other co-
owners, then partition is no longer a proper
remedy of the aggrieved co-owner. He should
file an accion reivindicatoria, which is
prescriptible. (Roque v. IAC, 1988)
ORDER OF PARTITION
• After trial, if the court finds that the plaintiff
has the right to the property subject of
partition, it shall issue an order demanding the
partition of the real estate among all the
parties in interest.
PARTITION BY AGREEMENT
After the issuance of the order of partition,
the parties will then be asked if they agree
to make partition of the property among
themselves.
If they agree, proper instruments of
conveyance will be executed to effect the
partition.
After the execution of instruments of
conveyance, the court shall confirm the
partition through a final order.
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2. RECOMMIT the report to the

The final order of partition and the
commissioners for further report of
instruments of conveyance shall be
registered with the Registry of Deeds where facts if there is cause to do the same
the property is situated. [Rule 69.2] 3. SET ASIDE the report and APPOINT
new commissioners
4. ACCEPT the report IN PART and REJECT
• A party shall recover from another his just it IN PART
share of rents and profits received by such 5. Make such order and render such
other party from the real estate in question, judgment as shall effectuate a fair and
and the judgment shall include an allowance for just partition of the real estate or of its
such rents and profits. [Rule 69.8] value, if the property is assigned or
• A final order decreeing partition and accounting sold between the several owners
may be appealed by any party aggrieved thereof. [Rule 69.7]
thereby. [Rule 69.2]
JUDGMENT
PARTITION BY COMMISSIONERS
CONTENTS OF EFFECTS OF
• If the parties are unable to agree upon the JUDGMENT JUDGMENT
partition, the court shall appoint not more than IF ACTUAL Judgment shall Judgment shall
3 competent and disinterested persons as PARTITION state definitely, vest in each
commissioners to make the partition, IS PROPERLY by metes and party to the
MADE bounds and action in
commanding them to set off to the plaintiff and
adequate severalty the
to each party in interest such part and description, the portion of the
proportion of the property as the court shall particular portion real estate
direct. [Rule 69.3] of the real estate assigned to him.
• Duties of Commissioners [Rule 69.4]: assigned to each
1. view and examine the real estate, after due party.
notice to the parties to attend at such view IF THE Judgment shall Judgment shall
and examination WHOLE state the fact of vest in the party
PROPERTY IS such payment making the
2. hear the parties as to their preference in
ASSIGNED and of the payment the
the portion of the property to be set apart TO ONE OF assignment of whole of the real
to them and the comparative value thereof THE PARTIES the real estate to estate free from
3. set apart the same to the parties in lots or AFTER the party making any interest on
parcels as will be most advantageous and PAYMENT the payment. the part of the
equitable, having due regard to the other parties.
improvements, situation and quality of the IF PROPERTY Judgment shall Judgment shall
different parts thereof. IS SOLD AND state the name vest the real
• If the commissioners should determine that the SALE IS of the purchaser estate in the
CONFIRMED or purchasers purchaser(s),
real estate cannot be divided without prejudice
BY THE and a definite making the
to the interests of the parties, the court may COURT description of payment(s) free
order that the property be assigned to one of the parcels of from the claims
the parties willing to take the same PROVIDED real estate sold of any parties to
he pays to the other parties such amounts as to each the action.
the commissioners deem equitable purchaser
O EXCEPTION: if one of the parties asks that
the property be sold instead of being so
assigned, then the court shall ORDER the • A certified copy of the judgment shall in either
commissioners to sell the real estate at case be recorded in the registry of deeds of the
pubic sale under such conditions and place in which the real estate is situated. [Rule
within such time as the court may 69.11]
determine. [Rule 69.5]
• The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the parties
or the sale of the same.
• Upon filing the report, the clerk of court shall
serve copies thereof on all interested parties
with notice that they are allowed 10 days
within which to file objections to the findings of
the report, if they so desire.
• No proceeding had before or conducted by the
commissioners shall pass the title to the
property or bind the parties until the court
accepts the commissioners’ report and
rendered judgment thereon. [Rule 69.6]
• Upon the expiration of the 10-day period, or
even before the expiration of such period but
after the interested parties filed their objections
to the report/statement of agreement, the
court, upon hearing, may:
1. ACCEPT the commissioners’ report and
render JUDGMENT based upon it.

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CIVIL PROCEDURE
IX. FORCIBLE ENTRY AND
UNLAWFUL DETAINER
ACTIONS FOR THE RECOVERY OF
POSSESSION OF REAL PROPERTY
1. Accion Interdictal –the summary action for
forcible entry (detentacion) where the
defendant’s possession of property is illegal ab
initio, or the summary action for unlawful
detainer (desahucio) where the defendant’s
possession was originally lawful but ceased to
be so by the expiration of his right to possess,
both of which must be brought within one
year from the date of actual entry to the land,
in case of forcible entry, and from the date of
last demand, in case of unlawful detainer, in
the proper municipal trial court or
metropolitan trial court.
- Nature:
a. special civil action involving realty;
b. subject to the Rules on Summary
Procedure; [Rule 70.3]
c. under the original exclusive jurisdiction of
first level courts;
d. nature of the action is determined by the
allegation of the complaint and the
character of the relief sought; (Abrin v.
Campos, 1991)
e. one co-owner may institute the action.
2. Accion Publiciana - is a plenary action for
recovery of the right to possess and which
should be brought in the proper regional trial
court when the dispossession has lasted for
more than one year.
3. Accion Reivindicatoria - or accion de
reivindicacion, seeks the recovery of ownership
and includes the jus utendi and the jus fruendi,
which must be brought in the proper regional
trial court. It is thus an action whereby
plaintiff alleges ownership over a parcel of land
and seeks recovery of its full possession.
[Javier v. Veridiano, 1994]
FORCIBLE ENTRY
• resorted to when a person is deprived of
possession of any land or building by (1) force,
(2) intimidation, (3) strategy, (4) threat, or (5)
stealth. (FISTS)
• must be brought at any time within 1 year after
such unlawful deprivation in the proper
Municipal Trial Court against the person
unlawfully depriving him of possession or
against any person or persons claiming under
them.
• action must be for the restitution of possession
of property together with damages and costs.
[Rule 70.1]
• The owners of a property have no authority to
use force and violence to eject alleged usurpers
who were in prior physical possession of it.
They must file the appropriate action in court
and should not take the law into their own
hands. (Laurora v. Sterling Technopark, 2003)
UNLAWFUL DETAINER
• resorted to when a lessor, vendor, vendee, or
other person against whom the possession of
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any land or building is unlawfully withheld,
after the expiration or termination of the right
to hold possession by virtue of an express or
implied contract.
• may also be brought by the legal
representative or assigns of any such lessor,
vendor, vendee, or other persons.
• must be brought at any time within 1 year after
the unlawful withholding of possession in the
proper Municipal Trial Court against the person
unlawfully withholding possession or persons
claiming under them.
• action must be for the restitution of possession
of property together with damages and costs.
[Rule 70.1]
• commenced by lessor only after (1) demand to
pay or comply with the conditions of the lease
and to vacate is made upon the lessee, or (2)
by serving written notice of such demand upon
the person found on the premises, or (3) by
posting such notice on the premises if no
person be found thereon, and the lessee fails to
comply therewith after 15 days in the case of
land or 5 days in the case of buildings. [Rule
70.2]
o EXCEPTIONS (prior demand not required):
a. Where purpose of the action is to
terminate the lease by reason of the
expiry of its term, and is not for failure
to pay rentals or comply with the terms
of the lease contract. [De Santos v.
Vivas, 96 Phil 538]
b. When the purpose of the suit is not for
ejectment but for the enforcement of
the terms of the contract. [Guanson v.
Ban, 77 Phil 7]
c. When the defendant is not a tenant but
a mere intruder. [id]
• Demand upon a tenant may be oral. (Jakihaca
v. Aquino, 1990)
• A person who occupies the land of another at
the latter's tolerance or permission, without
any contract between them is necessarily
bound by an implied promise that he will
vacate upon demand, failing which, an action
for unlawful detainer may be instituted against
him. (Dakudao v. Consolacion, 1983)
• This rule as to tolerance does not hold true in a
case where there was forcible entry at the
start, but the lawful possessor did not attempt
to oust the intruder for over 1 year, and only
thereafter filed forcible entry suit following
demand to vacate. (Muñoz v. CA, 1992)
• Tolerance must be presented right from the
start of possession sought to be recovered to
categorize a cause of action as one of unlawful
detainer. (Refugia v. CA, 1996)
• When failure to pay rent or comply with the
condition of lease is the ground for ejectment,
plaintiff should give 2 demands (which may be
embodied in 1 demand letter):
1. demand to pay rental or comply with
conditions of the lease, and if this is not
complied with,
2. demand to vacate (Zobel v. Abreu, 1956)
• Notice and demand to vacate is required on a
lease on a month-to-month period to render
effective the termination of the lease upon the
expiration of the month, and prevent an
implied renewal of the lease. (Rivera v.
Florendo; Yap v. Cruz, 1992)
• An alternative demand to either renew the
expired lease contract at a higher rental rate or
vacate is not a definite demand to vacate and
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CIVIL PROCEDURE REMEDIAL LAW

therefore, insufficient basis for the filing of an 2. After the court has examined the allegations in
action for unlawful detainer. (Penas, Jr. v. CA, the complaint and supporting evidence attached to
1994) the same, the court may:
• Refusal to collect or accept rentals is not a a. DISMISS the case outright based on the
defense. There must be consignation. (Uy v. grounds for dismissal for ordinary civil
CA, 1989) actions apparent in the complaint, or
b. ISSUE SUMMONS, if the no ground for
FORCIBLE ENTRY UNLAWFUL DETAINER dismissal is found. [Rule 70.5]
Possession becomes Possession was lawful at • Cases requiring referral to conciliation, where
unlawful right from the first but later becomes there is no showing of compliance with such
very start (i.e. from the illegal, as when the lease requirement, shall be dismissed without
time of entry) as he contract has expired and
prejudice, and may be revived only after that
acquires possession by the lessee refuses to
FISTS. vacate the premises requirement have been complied with. [Rule
despite demand. 70.12]
The deprivation of The unlawful withholding 3. The defendant shall file his ANSWER and serve
physical possession of of possession is made a copy of it to the plaintiff within 10 days from
land and building is after the expiration or service of summons. [Rule 70.6]
effected through force, termination of the right to • Failure of the defendant to answer within the
intimidation, strategy, hold possession under any period provided above shall give power to the
threat or stealth contract, express or
court, motu propio or on motion, to render
(FISTS). implied.
judgment as may be warranted by the facts
The issue centers on The issue centers on
who was in prior whether the defendant’s alleged in the complaint and limited to what is
possession de facto. right to possess has prayed for therein. [Rule 70.7]
expired or not. • Affirmative and negative defenses not pleaded
Previous demand upon Previous demand to in the answer are deemed waived.
defendant to vacate not vacate required o EXCEPTION: lack of jurisdiction over the
required. (jurisdictional). subject matter.
The plaintiff must allege The plaintiff need not be • Cross-claims and compulsory counterclaims not
and prove that he was in prior physical
pleaded in the answer shall be barred.
in prior physical possession.
possession of the
o Answers to the counterclaims or cross-
premises until deprived claims shall be served and filed within 10
thereof. days from service of the answer in which
1-year period counted 1-year period counted they are pleaded.
from date of actual from date of last demand • When the defendant raises the defense of
entry on the land. or last letter of demand. ownership in his pleadings, and the question of
possession cannot be resolved without deciding
the issue of ownership, the issue of ownership
PLEADINGS shall be resolved ONLY to determine the issue
of possession. [Rule 70.16]
• Must be verified. [Rule 70.4] • Where there is a defense of tenancy, there
• Allowed pleadings [Rule 70.4]: must be a preliminary hearing on the question
1. Complaint of tenancy relations. (Bayog v. Natino, 1996) If
2. Compulsory Counterclaim pleaded in the there is a prima facie showing of tenancy, the
answer court should dismiss the case for lack of
3. Cross-claim pleaded in the answer jurisdiction (jurisdiction belongs to the DARAB).
4. Answer (Baranda v. Padios, 1987)
• Prohibited pleadings and motions [Rule 70.13]: 4. Not later than 30 days after the last answer is
1. Motion to dismiss filed, a PRELIMINARY CONFERENCE shall be held.
EXCEPTIONS: • Rule 18 applicable.
a. Motion to dismiss based on lack of • Effects of failure to appear:
jurisdiction over the subject-matter
b. Motion to dismiss for failure to comply WHEN THE
WHEN THE PLAINTIFF
DEFENDANT DOES
with section 12 (referral to conciliation) DOES NOT APPEAR
NOT APPEAR
2. Motion for a Bill of Particulars
It shall be a cause for
3. Motion for New Trial the dismissal of his
4. Motion for reconsideration of a judgment complaint.
5. Motion for reopening of trial All cross-claims shall be
6. Petition for relief from judgment dismissed.
7. Motion for extension to file pleadings, The defendant who The plaintiff shall be
affidavits or other papers appears in the absence entitled to judgment.
8. Memoranda of the plaintiff shall be (This is true when there
entitled to the judgment is only one defendant or
9. Petition for Certiorari, Mandamus or
on his counterclaim. when all of the
Prohibition against any interlocutory order defendants did not
issued by the court appear.)
10. Motion to declare defendant in default
11. Dilatory motion for postponement • GENERAL RULE: No postponement of the
12. Reply preliminary conference shall be granted.
13. Third-party complaints o EXCEPTION: Highly meritorious grounds
14. Interventions and without prejudice to such sanctions as
the court in the exercise of sound discretion
PROCEDURE may impose on the movant. [Rule 70.8]
5. The court shall issue an ORDER stating matters
1. Filing of complaint. taken up during the preliminary conference

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CIVIL PROCEDURE
within 5 days after the termination of the
same.
• Contents of the Order:
a. Whether the parties have arrived at an
amicable settlement, and if so, terms
thereof;
b. The stipulations or admissions entered into
by the parties;
c. Whether, on the basis of the pleadings and
the stipulations and admissions made by
the parties, judgment may be rendered
without the need of further proceedings, in
which event the judgment shall b rendered
within 30 days from issuance of the order;
d. A clear specification of material facts which
remain controverted;
e. Such other matters intended to expedite
the disposition of the case. [Rule 70.9]
6. The parties shall submit affidavits of their
witnesses and other evidence on the factual issues
defined in the order, together with their position
papers setting forth the law and the facts relied
upon by them within 10 days from receipt of
the order. [Rule 70.10]
• Affidavits required to be submitted shall state
only facts of direct personal knowledge of
the affiants which are admissible in evidence,
and shall show their competence to testify to
the matters stated therein.
• Violation of this requirement may subject the
party or the counsel who submits the same to
disciplinary action and shall be cause to
expunge the inadmissible affidavit or portion
thereof from the records. [Rule 70.14]
7. Judgment
• GENERAL RULE: The court shall render
judgment within 30 days from the date of its
receipt of the affidavits and position papers OR
the expiration of the period for filing the same.
[Rule 70.11]
o EXCEPTION: Should the court find it
necessary to clarify certain material facts, it
may during the 30-day period issue an
ORDER specifying the matters to be
clarified and require the parties to submit
affidavits or other evidence on the said
matters within 10 days from receipt of said
order. Judgment shall be rendered within
15 days after receipt of the last affidavit or
the expiration of the period for filing the
same. [Ibid.]
o The court shall not resort to the foregoing
procedure just to gain time for the
rendition of the judgment. [Id.]
• If the trial court finds that the allegations of the
complaint are TRUE, it shall render judgment in
favor of the plaintiff for the:
a. restitution of the premises,
b. the just sum due as arrears of rent or
reasonable compensation for the use and
occupation of the premises.
c. attorney’s fees and costs. [Rule 70.17]
• If the court finds that the allegations of the
plaintiffs are NOT TRUE, it shall render
judgment for the defendant to recover his
costs. [Ibid.]
• The judgment rendered in an action for forcible
entry shall be conclusive with respect to the
possession only, and it shall not in any way
affect the title or ownership of the land or
building. Hence, such judgment shall not bar an
action between the same parties with respect
to the title of the land or building.
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• The judgment or final order shall be appealable
to the appropriate RTC. [Rule 70.18]
8. Execution of judgment
• GENERAL RULE: If judgment is rendered
against a defendant, execution shall issue
immediately. [Rule 70.19 and 70.21]
o EXCEPTION: Appeal has been duly
perfected by the defendant and bond has
been posted.
• Although immediately executory, the judge
should not order immediate execution in his
decision. (Lu v. Siapno, 2000) There must be
notice of the judgment (Dy v. CA, 1991) and a
motion with notice to the adverse party. (Kaw
v. Anunciacion, 1995)
• Procedure for staying the execution of
judgment:
a. defendant perfects his appeal in due time;
b. defendant files a sufficient supersedeas
bond approved by the Municipal Trial
Court; and
c. during the pendency of the appeal, he
deposits with the appellate court the
amount of rent due from time to time
under the contract, if any, on or before the
10th day of each succeeding month. [Rule
70.19]
o BUT upon motion of the plaintiff within 10
days from the perfection of the appeal to
the RTC, the court may still issue a
preliminary mandatory injunction to restore
the plaintiff in possession if the court is
satisfied that the defendant’s appeal is
frivolous or dilatory, or that the appeal of
the plaintiff is prima facie meritorious.
[Rule 70.20]
PRELIMINARY INJUNCTION
• The court may grant preliminary injunction in
accordance with Rule 58 to prevent the
defendant from committing further acts of
dispossession against the plaintiff.
• A possessor deprived of his possession may
moved for a preliminary mandatory
injunction within 5 days to restore him in hi
possession of the property. The court then shall
decide the motion within 30 days from the
filing thereof. [Rule 70.15]
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DIRECT CONTEMPT INDIRECT

X. CONTEMPT CONTEMPT
How Can be committed Can be committed
Committed only in the presence anywhere as long as
DEFINITION of or so near a court the acts mentioned
or judge. in Sec. 3 are done.
• Contempt of court is a defiance of the
Nature of The person guilty of The person guilty of
authority, justice or dignity of the court, such
Proceedings misbehavior is misbehavior may be
conduct as tends to bring the authority and summarily adjudged punished only after
administration of the law into disrespect of, to by the court against charge in writing has
interfere with, or prejudice parties litigant or which the contempt been filed, and an
their witnesses during litigation. It is defined as was committed at opportunity given to
a disobedience to the court by setting up an the very moment of the accused to be
opposition to its authority, justice and dignity. the perpetration. heard by himself or
It signifies not only a willful disregard or [Rule 71.1] counsel
[Rule 71.3]
disobedience to the court’s order but such
conduct as tends to bring the authority of the Punishment If the contempt is If the contempt is
court and the administration of law into directed against an directed against an
disrepute or in some manner to impede the due RTC, a court of RTC, a court of
administration of justice. (Heirs of Trinidad de equivalent or higher equivalent or higher
Leon Vda. de Ramos v. Court of Appeals, 2004) rank: rank:
• Direct Contempt (Contempt In Facie Curiae) –
a misbehavior committed in the presence of or
so near a court or judge so as to obstruct or
interrupt the proceedings before the same,
FINE = not FINE = not
including:
exceeding P2,000; or exceeding P30,000;
o disrespect toward the court or
o offensive personalities toward others
o refusal to be sworn or to answer as a
IMPRISONMENT = IMPRISONMENT =
witness or to subscribe an
not exceeding 10 not exceeding 6
affidavit/deposition when lawfully days; or both months; or both
required to do so.
- can be punished summarily without
hearing.
- It is conduct directed against or assailing
If the contempt is If contempt is
the authority and dignity of the court or a
directed against a directed against a
judge, or in the doing of a forbidden act. lower court: lower court:
[Encinas v. National Bookstore, 2005; Rule
71.1]
• Indirect Contempt (Constructive Contempt) FINE = not FINE = not
– a misbehavior perpetrated outside of the exceeding P200; or exceeding P5,000; or
sitting of the court [Patricio v. Suplico,
1991];
– Acts of indirect contempt: IMPRISONMENT = IMPRISONMENT =
a. Misbehavior of an officer of the court in the not exceeding 1 day; not exceeding 1
performance of his official duties or in his or both month; or both
[Rule 71.1] [Rule 71.7]
official transactions;
b. Disobedience of or resistance to a lawful How Summarily adjudged a.) By the court
writ, process, order, or judgment of a proceedings by the court against motu propio thru an
court, including the act of a person who, commenced which the contempt ORDER or any
after being dispossessed or ejected from is directed and FORMAL CHARGE
any real property by the judgment or punished there and
then.
process of any court of competent
[Rule 71.1]
jurisdiction, enters or attempts to or
induces another to enter into or upon such
real property, for the purpose of executing
acts of ownership or possession, or in any
manner disturbs the possession given to
the person adjudged to be entitled thereto;
c. Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt;
d. Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade
the administration of justice;
e. Assuming to be an attorney or an officer of
the court, and acting as such without
authority;
f. Failure to obey a subpoena duly served;
g. The rescue or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him. [Rule 71.3]

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CIVIL PROCEDURE REMEDIAL LAW

a judge for the benefit of the opposing

b.) In all other party therein. [People v. Godoy, 1995];
cases, by a remedial or compensatory in nature;
VERIFIED PETITION.
instituted for the benefit of private party.
(If the contempt
2. Criminal Contempt is conduct directed
charges arose out of
or are related to a against the authority and dignity of a court
principal action or of a judge, as in unlawfully assailing or
pending in the court, discrediting the authority and dignity of a
the petition for court or a judge or in doing a forbidden act
contempt shall allege [People v. Godoy, 1995]; punitive in
that fact, but said nature, thus, the proceedings are to be
petition shall be
conducted in accordance with the principles
docketed, heard and
decided separately,
and rules applicable to criminal cases [SEC
unless the court in v. Recto, 1999].
its discretion orders • The violation of a TRO issued by the SEC or any
the consolidation of quasi-judicial tribunal is criminal contempt so
the contempt charge that acquittal of the respondents is
and the principal unappealable. [SEC v. Recto, 1999]
action for joint • A writ of execution issued by a court after 5
hearing and
years from entry of final judgment is void, and
decision.)
[Rule 71.4]
disobedience thereto does not constitute
indirect contempt. [Crucillo v. IAC, 1999]
Remedy No appeal, but May be appealed to • The power to declare a person in contempt of
subject to certiorari the proper court as court serves to protect and preserve the dignity
or prohibition. in criminal cases, but of the court, the solemnity of the proceedings
[Rule 71.2] execution shall not therein and the administration of justice. But
be suspended until this must be wielded sparingly. For this power
BOND is filed. should be exercised on the preservative and
[Rule 71.11]
not on the vindictive principle. Only
occasionally should the court invoke its
inherent power in order to retain that respect
without which the administration of justice
Procedure for Indirect Contempt
must falter or fail. [Panado v. CA, 1998]
[Secs. 4-6]
• Only the court which rendered the order
Who initiates court motu propio party
commanding the doing of a certain act is
How it is By ORDER or any By a VERIFIED vested with the right to determine whether or
initiated WRITTEN CHARGE PETITION with not the order has been complied with, or
requiring supporting whether a sufficient reason has been given for
respondent to particulars and
non-compliance, and, therefore, whether a
show cause why certified true copy
he should not be of documents or
contempt has been committed. The power to
held in contempt. papers involved determine the existence of contempt of court
and full compliance rests exclusively with the court contemned. No
with the court is authorized to punish a contempt
requirements for against another. [Igot v. Meralco, 200)]
filing initiatory • Quasi-judicial agencies that have the power to
pleadings in cite persons for indirect contempt pursuant to
ordinary civil
Rule 71 can only do so by initiating them in the
actions.
proper RTC. It is not within their jurisdiction
Where it is When the contempt is directed against and competence to decide the indirect
initiated an RTC or equivalent or higher rank: contempt cases. These matters are still within
Same court the province of the RTCs. [LandBank v. Listana,
2003]
When the contempt is directed against a
lower court:
(1) RTC of the place where the lower
court is sitting; or
(2) in same lower court subject to
appeal to higher court

Hearing and If hearing is not immediately conducted,

Bail respondent may be released upon filing
of BOND in the amount fixed by the
court.
Appeal Appeal may be taken in proper courts as
in criminal cases.
Execution of Execution of judgment shall not be
Judgment suspended even by appeal UNLESS
bond is filed conditioned upon the
performance by the respondent of that
judgment should it be decided against
him on appeal.

• Two Aspects of Contempt of Court:

1. Civil Contempt is the failure to do
something ordered to be done by a court or

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