Professional Documents
Culture Documents
[LAGGUI REVIEWER]
TRANSCRIBED GALLY NOTES WITH RENE NOTES
BY:RENE CALLANTA
RULE I
Q. When does an action deemed commenced?
A. An action is deemed commenced upon the fling of the complaint. This is the provision of the
old rule. But this old rule that an action is deemed commenced as of the date the complaint is fled
has been amended to include a provision which envisions a case when the action is already fled
and is amended to include an additional defendant.
Example:
The case was fled Dec.2 !""# by A against B only. $nder this rule the action is
deemed commenced on Dec. 2 !""# in so far as only A and B are concerned. %n .
Dec &!""# A fled an amended complaint including now '.
Q. When is this action deemed commenced?
A. (nsofar as A and B are concerned the action is deemed commenced on Dec. 2 !""#. But
insofar as it concerns A and ' the action is deemed commenced on Dec. & !""# )as to '*.
+. Why do we distinguish the date of commencement of an action in this situation where the is an
additional defendant?
A. Because we have the law on prescription.
At the time the case was fled on Dec. ! !""# the action against B may not yet have
prescribed. But when the complaint was amended on Dec. & !""# the action of A against B and '
may have already prescribed. That is why it is necessary to consider the situation li,e this when the
action is being commenced with respect to an additional defendant.
RENE NOTES:
1) An action is commenced by the filing of the complaint and the payment of the requisite docket fees within the
prescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period.
2) An action can be commenced by filing the complaint by registered mail. It is the date of the mailing that is considered as
the date of filing, and not the date of the receipt thereof by the clerk of court.
) !he amount of damages in the body of prayer of the pleading must enable the clerk of court to compute the docket fees
required.
") !he court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable
prescriptive period.
With respect to actions we have retained the provisions of the old code. With respect to some
sub-ect matter under the old rule a party plainti. can fle only one complaint based on one single
cause of action. /e cannot split its cause of action. And when he splits his cause of action the
subse0uent actions maybe the sub-ect of a motion to dismiss. This rule has been retained in the
1ew 2ules in 'ivil 3rocedure.
Example4 )5plitting of causes of action which have been retained*
1ote4 5ame parties
A is a resident of 5ulu B is of Batanes. There is a piece of land located in 5orsogon. The causes
of action of A against B are as follows4
!* sum of money involving 3266666.66
2* reindivicacion over the lot valued at 376666.66
Q. 'an A fle a complaint against B -oining in one complaint the action for sum of money and the
action for reinvidicacion )if it can with what court and place*?
A.
8et us vary the facts the claim for money is 326!666.66. The value of the property is
3!"666.66
Q. 'an A fle only one complaint incorporating therein the sum of money of
326!666.66 and reindivicacion of lot valued at 3!"666.66?
A. Sec. 5 Rule 2(rules on joinder of causes of action
A party may in one pleading assert in the alternatives or otherwise as many
causes of action as he may have against an opposing party sub-ect to the following
conditions4
a. the party joining the causes of action shall comply with the rules on joinder of parties;
b. the joinder shall not include special civil action or actions governed by special rules;
c. where the causes of action are between the same parties but pertain to diferent venue of
jurisdictions, the joinder may be allowed in the RTC provided one of the cases of action
falls within the jurisdiction of said court and the venue lies herein; and
d. where the claims in all the causes of action are principally for recovery of money the
aggregate amount claimed shall be the test of jurisdiction.
The rule on -oinder is as follows4
A party may -oin two or more causes of action which he has in his favor in only one complaint.
5o if A has !6 causes of action against B instead of A fling !6 separate action against B he
may be allowed to fle only one complaint and incorporating therein all the !6 causes of
action.
Q. 5upposing his causes of action pertain to di.erent venues or -urisdiction where will
A the plainti. fle his !6 causes of action embodied only one complaint?
A. The rule is if these !6 causes of action pertain to di.erent venues the action may
be fled in the appropriate 2T' provided that the venue of the action lies therein.
(n the former e9ample the frst action was the sum of money involving 3266666.66 only
and the second cause of action is reinvidicacion involving 376666.66.
5ince A is not obliged to allege all causes of action in one complaint he may elect to fle two
separate actions4 !* A vs. B for sum of money
2* A vs. B for reindivicacion.
Q. (f he were to fle this action for sum of money only in what court of what place
may A fle the complaint?
A. :ou apply 2ule ; venue
5ince this is a personal action for sum of money the venue could be the
residence of plainti. A or the residence of the defendant B at the election of A.
5o this case can be fled either in 5ulu or Batanes.
Q. (n what court in 5ulu or in Batanes may this action of A be fled?
A. 'onsidering the amount which is only 3266666.66 this is within the -urisdiction of
<T'. 5o this case can be fled either in the <T' of 5ulu or in the <T' of Batanes.
Q. (f A were to fle an action for reindivicacion over this lot located is 5orsogon in
what place should A fle the case?
A. We apply again 2ule ; =enue and that would be 5orsogon.
Q. (n what court in 5orsogon should the action be fled?
A. 'onsidering the value 376666.66 this action should be fled only in 2T' of
5orsogon.
8et us assume however that A elected to fle only one complaint involving these sum of
money of 3266666.66 and this property involving 3766666.66. The court that has the -urisdiction
over the sum of money of 3266666.66 is the <T'. The court that has the -urisdiction over
reindivicacion is the 2T' of 5orsogon.
Q. Where can these two actions be fled?
A. %nly in the 2T' of 5orsogon. (t cannot be fled in 5ulu or Batanes. (t can be fled
only in 5orsogon.
8et us get the reverse>
The value of sum of money is 3266666.66 and so this is within the -urisdiction of the 2T'. The
value of the property here is 3!"666.66 this is within the -urisdiction of the <T'.
Q. 'an you now -oin these two?
A. :es in the 2T' of 5orsogon. 1ot in 5ulu or Batanes but in the 2T' of 5orsogon.
Example4
A resident of 5ulu sued B a resident of Batanes in only one complaint alleging therein these
two causes of action4
!. ?or recovery of 326666!.66 sum of money
2. ?or forcible entry over a piece of land located in 5orsogon valued at 3!""""."".
Q. 'an A -oin only in one complaint on these two )2* causes of action?
A. These two cannot be -oined because one is an ordinary civil action )sum of money* and the
other is a special civil action )forcible entry*. This is one of the limitation of -oinder of causes of
action. A special civil action cannot be -oined with another action which is ordinary.
2
Example: A is a resident of 5ulu B of Batanes ' of @amboanga. A loaned !< to B and the loan is
evidenced by a promissory note which B signed. The promissory note matured without B paying the
money notwithstanding. A has another cause of action against B and ' for another !< pesos a
promissory note was also e9ecuted and signed by B and '. The promissory note also matured but
they did not pay.
Q. 'an A fle only one complaint against both B and ' incorporating therein these two
causes of action? )The action against B for !< pesos and another action against B
and ' for 3!<*
A. 1o A cannot fle only one complaint against B and ' otherwise A will violate one
of the limitations )5ec. 7 )a** provided for in -oinder of 'auses of Action under
2ule 2 5ection 7.
(f A is permitted to do so it will be a violation of the provision on 2ules on Aoinder of 3arties
under 2ule & 5ec. B.
' has nothing to do with the frst promissory note e9ecuted by B. ' has no interest on the
frst cause of action of A against B alone.
Example4 A has the following causes of action for recovery of money against B all in the
promissory notes that matured on4
!. Aan. !6 !""C 3 26666.66
2. Aan. 26 !""C &6666.66
&. Aan. &6 !""C ;6666.66
;. ?eb. !6 !""C 76666.66
7. ?eb. !7 !""C B6666.66
B. ?eb. 26 !""C #6666.66
DDDDDDDDD
32#6666.66
A is a resident of 5ulu and B of Batanes. B did not pay on Aan. !6 B did not pay on each and
every maturity. But A waited for the maturity on this loan due on ?eb. 26 !""C. 5ince he was not
paid on ?eb. 26 !""C he now decided to fle an action involving all these sum of money.
Q. 5hould he )A* decide to fle a case on ?eb. 27 !""C against B in what court
should the action be fled?
A. (t should be fled in the 2T' of 5ulu or in Batanes.
Where all the causes of action are principally for money the type of -urisdiction is the
totality of the amounts in all the cases. (f you were A and you want to fle only an action for the
recovery of 326666.66 you will fle this with the <T'. This is the same with respect to other causes
of action. (ndividually they are triable by the <T'.
But if all these causes of action are -oined in only one complaint the totality or the language
of the rule Ethe aggregateF of the amount furnish the -urisdictional test. 5o since the amount is
32#6666.66 this is an action triable by the 2T'. 5o you fle the action not in the <T' but in the
2T'.
RENE NOTES
1) In case the obligation is by installments, each installment constitute a cause of action #$%&'&(, if at the time of bringing of
the suit, several installments are already due, all must be included otherwise, others not included will be barred.
Before pril !, "!!! the -urisdiction of the <T' was limited to 3!66666.66 and the 2T'Gs in
the amount in e9cess of 3!66666.66. 5o under the old rule before April " !""" all claims )money
claims* not e9ceeding 3!66666.66 was triable by the <T'. All claims e9ceeding 3!66666.66 were
triable by the 2T'. This is the provinces.
$nder the old rules where the claim was for the money and the parties thereto was the
residents of <etro <anila the -urisdiction of the 2T'Gs in <etro <anila was in e9cess of
3266666.66.
Beginning, however pril !, "!!!, the -urisdiction of the <T' were e9panded as follows4 (n
areas outside <etro <anila the -urisdiction of the <T'Gs e9tended up to 3266666.66. But in <etro
<anila Beginning April " !""" the -urisdiction of the <T'Gs was 3;66666.66 5o as of now the
-urisdiction of the <etro <anila <T'Gs is 3;66666.66. But in areas outside <etro <anila the
-urisdiction of the <T'Gs is up to 3266666.66 only. This now the new rule which implemented 5ec. 7
of 2A #B"!. 2A #B"! e9panded the -urisdiction of the <T'Gs.
Q.state the rule on permissive joinder of parties
A. Sec. ! Rule "
ll persons in whom or against whom any right to relief in respect to or arising out of the
same transactions is alleged to e#ist, whether jointly, severally, or in the alternative, may e#cept as
otherwise provided in these Rules, join as plaintifs or be joined as defendants in one complaint,
where any $uestion of law or fact common to all such plaintifs or to all such defendants may arise
in the action; but the court may ma%e such orders as may be just to prevent any plaintif or
defendant from being embarrassed or put to e#pense in connections with any proceedings in which
he may have no interest.
The rule contemplates a situation where there are two or more persons in whom a right to relief
e9ist or against whom a right to relief e9ist. These two or more persons can -oin in one complaint or
can be -oined as defendants in one complaint provided that there e9ist between them a 0uestion of
law common to both of them. As the term suggests, joinder is not mandatory. (t may be availed of
by parties as plainti.s if they want to. (f they do not want to -oin as parties they cannot be
compelled.
Example:
A B and ' are owners of ad-oining houses. H is a driver of a gasoline tan,er. Because of the
manner H drove the tan,er the driver struc, a <eralco 3ost. As a result the tan,er turned turtle
)naging pagong ang tan,er>* in the process it e9ploded. The fre burned the houses of A B and '.
A can sue H for the loss of his house. B can sue H for the loss of his own house. ' can sue H for the
burning of his own house. (f these were so there will be now three )&* complaints against H. %n the
other hand A B and ' or A and B alone or A and ' or B and ' sued H in one complaint. A and '
sued H in one complaint B and ' sued H in one complaint or better still they -oined in one
complaint against H.
Q. 'an they validly do that?
A. :es they have each a separate cause of action against H. $nder the rule on
-oinder of parties all of them can -oin in only one complaint.
Q. Why?
A. 2ight to relief e9ists in favor of all of them A B and '.
Q. What is the basis of their right to relief of A against H?
A. The basis of the right of A against H is the negligent act of H in driving.
Q. What is the basis of the right of B against H?
A. The same. The negligent act of H.
Q. What is the basis of the right of relief of ' against H?
A. The same the negligent act of H in driving.
(f these were to be tried separately if the parties A B and ' fled separately the case there will
be only one issue that the court will resolve which is common to all of them. 5o they can -oin as
parties. This is the rule on permissive -oinder of parties.
Q. 'an A B and ' be re0uired or compelled to -oin in one complaint?
A. 1o. whether they will -oin or they will not -oin is a matter of them alone to decide. They cannot
be forced to -oin.
Rene Notes:
Compulsory o!n"er)in the case of*
1) indispensable parties
2) necessary parties
+ !he non),oinder of an indispensable or a necessary party is -$! by itself ipso)fato a ground for the dismissal of an action.
the court shall order ,oinder
non)compliance)ground for dismissal
+ If the court does not order the ,oinder of an indispensable party, the validity of the ,udgment may be questioned on appeal or certiorari.
Perm!ss!#e o!n"er)parties can either be ,oined in a single complaint or may themselves maintained or be sued in separate suits. !his rule
also applies to counterclaims.
Re$u!s!tes o% Persm!ss!#e &o!n"er o% p'rt!es.
1) right to relief arises out of the same transactions or series of transactions.
2) there is a question of law or fact common to all the plaintiffs or defendants. and
) such ,oinder is not otherwise prescribed by the provisions of the (ules on ,urisdiction and venue.
Ser!es o% Tr'ns('t!ons)separate dealings with the parties but all of which dealings are directly connected with the same type of sub,ect
matter of the suit.
#arties to an Action
Q. Who can be parties to an action?
A. %nly natural persons or persons with -udicial personality or entities authoriIed by
law.
Q. (s it enough that a person is a natural person or -uridical person to entitle him to
sue and be sued?
A. 1o. (t is necessary that the party natural or -udicial be li,ewise a party in interest.
"
&here the person who sues is not the real party in interest, or where the party
sued is not the real party in interest, the complaint or suit cannot be maintained.
Q. Who is considered a real party in interest?
A. (t is defned in 5ec. 2 2ule &
Sec. 2 Rule "
real party in interest is the party who stands to be bene'ted or injured by the
judgment in the suit.
A real party in interest is the one who is benefted by the -udgment. /e is one
who may be pre-udiced by the -udgment or it is he who may avail of the
-udgment.
Example:
5o if A a tenant of B sues to recover his land from '.
Q. (s A the real party in interest?
A. 1o. /e is not because whatever -udgment that he may be rendered in this case will not at all
a.ect the real owner. A is not a real party in interest.
5upposing A is claiming ownership of a lot and he sues ' the tenant of B to recover the
ownership of the lot.
Q. (s ' the real party in interest?
A. 1o because whatever -udgment that may be rendered in favor of A cannot
bind the owner B. ' is not the real party in interest.
Q. (s it enough that a party be a natural or -udicial and a real party in interest to be
entitled to sue or be sued?
A. 1o. The party must li,ewise have the legal capacity to sue. <eaning he has the representation
that he claims to have.
5o if the person does not have the capacity which he alleges he has he cannot sue or he
cannot be sued.
These are the requirements for suing or being sued(
!. 1atural person or -udicial personJ
2. Kntity authoriIed by law to sue and be suedJ
&. <ust be the real party in interestJ and
;. <ust have the capacity to sue or be sued.
Q. What are the classes of parties to a suit?
A. We have the4
!. (ndispensable 3artiesJ
2. 1ecessary 3arties.
Q. What is the distinction between the two?
A. (n the case of an indispensable party he must always be impleaded because
without his being impleaded as a party whether a plainti. or defendant the
sub-ect matter of the suit cannot be terminated. /e must always be there because
without him whatever -udgment rendered do not terminate the sub-ect matter of
the suit.
Example: (Indispensa$le #art%*
Testator H was survived by three )&* children A B and '. A sued B alone for a partition of
alleging in fact the court declared A B and ' the owners of the estate and ordered the estate to be
divided into three e0ual parts. 5o A and B agreed on how the estate be divided. They agreed that
the estate shall be divided into three e0ual parts as follows4
A B '
Q. (s the -udgment in the partition case binding on '?
A. 1o it is not binding.
When A and B showed ' the !L& portion allotted to him ' said E( do not li,e that ( li,e this
part.F E1o this is mine.F
Q. What can ' now do?
A. ' can fle a case for the partition of the same estate as,ing that this be divided into
/
three )&* e0ual parts.
But A and B said E(t is pointless there is already a declaration that this property be divided
into & and it was already divided into three )&*. What else do you li,e?
Q. (s the reasoning of A and B correct?
A. 1o it is not correct. (t is true that there was a division. But ' does not li,e his
part.
Q. 'an ' be compelled to accept his part?
A. 1o because he was not a party to the case. /e is not bound by the -udgment.
Why? Because he has a right to be heard when A and B divided this property in the
manner they want.
As a coMowner he has the right to be heard on how the division should be made. 5ince he
was not heard he can fle a case.
This is what we meant when we say that Ean indispensable party ought to be impleaded
either as a plaintif or defendant in order to terminate the subject of the case.)
5o you see here the frst case did not terminate the 0uestion. (t is only when all the parties
A B and ' have been impleaded in the case may it terminate.
5o when an indispensable party is not impleaded in violation of that order of the court the
complaint may be dismissed.
Q. Who is the necessar% part%?
A. A necessary party is one who ought to be impleaded in order to accord complete
relief to all the parties or in order that the claim respecting the sub-ect matter of
the case can be fully ad-udicated nevertheless his absence from the court as a
plainti. or a defendant does not prevent the case from being settled insofar as the
parties thereto are concerned.
(f a case is fled and the necessary party is omitted the case fled can be
terminated. But only partially. But if this omitted party could have been
impleaded the sub-ect matter of the case would be fully ad-udicated.
E&A'#LE:
A is the creditor of B and ' based in the promissory note signed by B and ' for 3!<. The liability
of B and ' are merely -oint not solidary. A sued B only. /e did not sue ' because at that time when
the case was fled ' was no longer in the 3hilippines. /e for left abroad.
Q. 'an this case between A and B be fnally settled?
A. :es. Kven without '. But you will ,now that the better -udgment will be rendered in favor of A
will cover only the part of B in the 3!<. 5o the court will decide the case awarding A only 3766666.
The claim of A against ' remain pending so that where ' is already within the -urisdiction of the
court A can fle a case against him to recover from him his share in the 3!<.
' here is merely a necessary party because even without him this claim of A against B can
be settled.
(n order however to settle the entire 3!< if ' was with the -urisdiction of the court at the
time when the complaint was fled A should have fled a complaint against both B and '.
Q. What will be the e.ect of fling by A of his claim against B and ' at the same time?
A. /is claim of 3!< will be entirely settled in only one procedure. Whereas in
alternative form the case will be settled insofar as the parties are concerned.
That is why when a party is a necessary party but he is not impleaded the reason why he
is not impleaded should be stated in the complaint.
Q. What for is the need to state why ' was not impleaded?
A. 5o that the court could determine whether the reason for the nonMinclusion
of ' is valid or not. 5hould the court fnd the reason why ' was not impleaded to beneft the
merit the court will now order A to amend his complaint and implead '.
5hould A fail to comply in the order of the court.
Q. What is the e.ect of such nonMcompliance on the right of A to recover from the
claim fled?
A. 5uch failure on the part of A to comply operates as a waiver of his claim against ' so that
should A eventually fle a case against ' ' can fle a motion to dismiss the complaint on the
ground of Ewaiver of the claim of A against ' on the failure of A to implead ' in violation of
the order of the court.F
Rene Notes:
)* spouses 's p'rt!es
0
G+R+
) spouses sued ,ointly
E,(ept!ons*
1) Abandons or fails to comply with marital obligations
2) 1pouse disposes e2clusive property
) (egime of complete separation of property
2* (l'ss su!t
Re$u!s!tes o% ' (l'ss-represent't!#e su!t
1) sub,ect matter of the controversy is one of the common or general interest to many persons.
2) persons affected are so numerous that it is impracticable to bring them all before the court.
) parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the
concerned.
(oncept of Alternati)e *efendants
Q. When may a party plainti. sue defendants in the alternative?
A. The rule is this4
A plainti. may have the right but he is not certain or sure against whom that right should be
asserted. /e ,nows he has the right. There are two or more persons who may be liable to him in
connection with his right. But he does not ,now who of them is liable under this rule he is entitled
to sue all these persons in the alternative.
Example4
A bought a machine from $5. The carrier H brought this machine to the 3hils. for delivery to
A. this machine did not reach A. /e does not ,now who has custody of this machine at the time it
was lost. The fact is there was supposed to be an arrastre operator who should have ta,en upon its
being unloaded in the port of <anila. Was it lost while this machine was in the custody of the
arrestre? /e does not ,now but he has the right to recover the value of the machine. But who of
them is responsible he does not ,now.
Q. What can A do?
A. A can sue H and : )arrestre* at the same time. (f it is not H who is liable it must be :. (f : is not
liable it must be H.
This is the concept of alternative defendants.
Rene notes:
Un.no/n I"ent!ty or N'me o% De%en"'nt
0 1ervice of summons is by publication
Re$u!s!tes*
1) there is a defendant
2) his identity or name is unknown
) fictitious name may be used because of ignorance of defendant3s true name and such ignorance is alleged in the complaint
") identifying description may be used* sued as unknown owner, heir, devisee, or other designation
/) amendment to a pleading when identity or true name is discovered
0) defendant is the defendant being sued, not a mere additional defendant
De't1 o% ' P'rty
Duty o% (ounsel2 inform court within 4 days
+ !he death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending, or
even the appointment of an e2ecutor or administrator, but this time, by a court of probate ,urisdiction.
In the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by the
court trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources.
+ -o summons is required to be served on the substituted defendants. Instead, the order of substitution shall be served upon the parties
substituted in the action, otherwise, the court does not acquire ,urisdiction over the substitute party.
+ !he continuance of a proceeding when a party dies without a valid substitution amounted to lack of ,urisdiction and that the need of
substitution is base on the right of a party to due process. #$%&'&(, if there is no notice of death of party and the court has no
knowledge thereof, the proceedings are not set aside.
+ If there is failure to notify the fact of death* the case may continue and the proceedings will be held valid, and ,udgment will bind the
successors in interest.
+ !he court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. $therwise,
the entire proceeding is null and void. the court would have no ,urisdiction over the estate, the heirs and the e2ecutors or administrators.
Tr'ns%er o% Interest
+ 1ubstitution of parties is not mandatory. 5nless the substitution by or the ,oinder of the transferee is required by the court, failure to do so
does not w arrant the dismissal of the case.
+ A transferee pendente lite is a proper and not an indispensable party.
Sec. 2+ Rule "
&hen the action is for recovery of money arising from contract, e#press or implied, and the
defendant dies before entry of 'nal judgment in the court in which the action was pending at the
time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of
'nal judgment. favorable judgment obtained by the plaintif therein shall be enforced in the
6
manner especially provided in these rules for prosecuting claims against the estate of the deceased
person.
This is a situation where a contract involving money was entered into4 This contract gave
rise to the fling of a complaint against the debtor. When the case is pending against the debtor the
debtor dies.
Q. What now will be the status of this case fled upon the death of the debtor the case not having
been determined with fnality? 'an it continue or must be dismissed?
A: Example4
A the creditor sued B to recover the loan he e9tended. While this case was pending B died.
*nder the old rule upon the death of B this case will be dismissed. /ow could A protect his
right over his claim if it was already dismissed in this case? /e can now fle his claim as an ordinary
creditor in the proceeding )estate or intestate proceeding* for the settlement of estate of B. This
rule presuppose that the estate of B is under administration either in a testate proceeding or
intestate proceeding. 5o under 2A CB A should fle his claim in this proceeding. 5o if there was a
special proceeding under N53 &; for the settlement of estate then A must fle his claim in this
case.
Q. (s that so now?
A. 1o. The death of the debtor B does not e9tinguish the action. This will continue. %f course with
proper substitution of B by the administrator or e9ecutor if there is any. (f there is none by his heirs.
This case will continue litigation until fnality.
(n the event A wins the case and the -udgment becomes fnal
Q. /ow will A enforce his right as ad-udged by the court?
A. /e will fle the case where the settlement of BGs estate is pending his claim based on this
-udgment.
Q. 'an the administrator or e9ecutor contest in that special proceeding this claim now of A?
A. 1o because it has already been settled by fnal -udgment in that civil case. This is the
innovation under the new rules.
RENE NOTES:
A(t!on on Contr'(tu'l 3oney Cl'!ms
Re$u!s!tes:
1) !he action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merely
incidental thereto.
2) !he claim sub,ect of the action, arose from a contract, e2press or implied, entered into by the decedent in his lifetime or the
liability for which had been assumed by or is imputable to him.
+ If the defendant dies before entering a final ,udgment in the court where it was pending at that time, the action shall not be dismissed but
shall be allowed to continue until entry of final ,udgment thereon.
+ $nce a final ,udgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving the
same.
In"!4ent P'rty
+ !he amount of docket and other lawful fees shall be a lien on any favorable ,udgment upon the indigent party.
Rule ,: -enue of Actions
The rules on venue are now simplifed. Why? Because the rules in venue li,ewise involve
inferior court and under the 2T'. ?or purposes of venue actions may either be real or personal.
Q. What are the rules on venue involving real property?
A. When a suit involves title to possession of or interest in real property the venue of the action
lie in the proper court of the place where the real or a part of the real property is located. This is
true in cases involving title to possession of or interest in real property.
+n forcible entry cases however the venue of the action is the inferior court of the place
where real property or part of the real property is located. )<T'*
Ta,e note that when it comes to the venue of the property suits involving title to possession
of or interest in real property the venue is the proper court of the place where the real property is
located.
But when it comes to forcible entry the court where the action must be fled is specifed and
that is the inferior court. (t does not say proper court.
Q. Why the di.erence in the case involving title to possession of or interest in real property
venue is the proper court?
7
A. Because under the new law even the inferior court have -urisdiction cases depending on the
value of the property.
Where the value of the property involved in the reindivicacion cases does not e9ceed
326666.66 in areas outside ,etro ,anila that action for reindivicacion is tried by the inferior
)<T'* not the regional trial court.
Where the value of the property e9ceeds 326666.66 the action for reindivicacion lands with
the 2T'.
+n ,etro ,anila where the action is for reindivicacion for instance and the value of the
property does not e9ceed 376666.66 the venue is the inferior court.
This is the reason why the law does not specify what particular court the case must fled when
it involves title to possession of or interest in real properties. But when it comes to forcible entry
the rule is specifc Eonly on <T' of the place where the property or any part of the property is
located.F
In case of personal actions the venue is the residence of the plainti. or any of the
principal plainti.s or the residence of the defendant or any of the residence of the principal
defendants at the option of the plainti.. -owever where the defendant is a nonMresident the venue
may also be the place where he can be found.
(n this last case the venue could not be the residence of the nonMresident defendant for a
simple reason that a nonMresident defendant does not reside in the 3hils. )as the term suggested
EnonMresidentF*. That is why you cannot sue him in a place where he is not a resident but he may
be found in the 3hils. 5o it is that place where he may be found that may be one of the venue.
Example4
(f A fle a complaint against B for recovery of money and A is a resident of 5ulu and B is
from Batanes. Whether the case is tried by the inferior court or by 2T' A can fle action either in
5ulu or Batanes at his option.
Q. But if B is not a resident of the 3hilippines but came to the 3hilippines for a vacation and could
be found in Bulan 5orsogon where may A who is a resident of 5ulu fle the case?
A. /e may fle the case in 5ulu or in Bulan 5orsogon.
&here real property is located partly in one place and partly in another, whether the action
involves forcible entry or detainer or an action for reindivicacion its venue should be any of these
places where property is located.
Example:
A vs. B for forcible entry or reindivicacion the property was located in <anila in part
'aloocan in part +.'. in part. 5o A can fle the case in <anila 'aloocan in +.'.
Example4
A vs. B an action for declaration of nullity of the marraige of A and B. B the husband is a
nonMresident defendant of the 3hilippines whose permanent address is $.5.A. on the other hand
the wife is a resident of <anila.
Q. What will be the venue of this action?
A. <anila.
Example:
The action between A and B involved let us say the recovery of a lot which A claims as his
but which B claims is his. This lot is partly located in 3ampanga Bataan or Batangas. While A is a
resident of <anila. The value of this property is 3!""""."".
Q. What court has -urisdiction and a court of what place will be the venue?
A. <T' of 3ampanga or of Batanes or of Bataan.
Example4
A sued B a nonMresident of the 3hilippines. But at the time the action was fled B was found
in TawiMTawi. A is a resident of Batanes. B is a permanent resident $.5.
Q. (f this action is fled what will be the venue?
A. The venue is Batanes or TawiMTawi at the election of the plainti..
&here the action involves title to, possession of or interest in real property, the action may
be fled in the appropriate or proper court of the place where the property or part of the property is
located e9cept where the action is one for forcible entry in which case the action may be fled in
the <T' of the place where the property or part of the property is located.
+f the action is personal the venue of the action may be the residence of the plainti. or it
there are two or more plainti.s the residence of the plainti. or the residence of the defendant or in
case there are two or more defendants the residence of the principal defendant at the option of
the plainti..
8
&here the defendant is a non.resident defendant, but is found in the /hilippines, and the
action is personal the venue of the action may either be the residence of the plainti. or the place
where the defendant is found.
(n our e9ample the action was one for money against the defendant B who is a resident of
$.5. But at the time the action was fled he was found in TawiMTawi the action by A can be fled in
Batanes AGs residence or in TawiMTawi at the option of A.
Q. Where the sub-ect matter of a case is real property is the rule that the venue of the action
involving it should be the place where the property is located or where any part of the property is
located absolute? 5o that in all cases this rule must be followed?
A. (t is not absolute.
Q. The action involves possession of interest or in title to real property but the action is not
forcible entry. <ust the venue of this action be the place where the property is located or where any
part thereof is located or may there be a case where what is located or may there be a case where
what is involved in a suit is a real property and yet the venue need not necessarily be the place
where that property is found or where any part thereof is found.
Example:
A and B are litigating who has the better right to timber concession located in 'otabato. A is
a resident of <anila and B of Batangas.
The action by A against B was fled with the 5ecretary of DK12. The 5ecretary awarded the
right to the timber land to A. B now contested the action of the 5ecretary in awarding the right to A.
B sued as well as the 5ecretary of DK12.
This action was fled by B in his residence which is Batangas 2T'. The 5ecretary now fles a
motion to dismiss on the ground that the venue is improperly laid. The venue should be 'otabato.
(f you are the -udge what will your correct ruling on the motion to dismiss fled by the 5ecretary of
DK12?
Issue: What is involved here is a motion to dismiss fled by the 5ecretary he said Eany action
contesting my decision should be fled in the court of the place where the property is located.F
E5ince the property is located in 'otabato the venue should be 'otabato not the residence of B in
Batangas.F
Example4
The 3//' awarded the lot in +.'. to a resident of Bacolod 'ity. After A paid so many
installments on their lot the 3//' unilaterally cancelled this award and awarded the same lot to B.
To annul that order of 3//' canceling the award to A A now sued 3//' which has its oOce in +.'.
and B a resident of <anila in the 2T' of Bacolod 'ity.
The prayer of A is for the cancellation of the resolution of 3//' canceling the prior award to A
and awarding the same lot to B.
3//' and B now fle a motion to dismiss on the ground of improper venue. They contended
that the proper venue of the action is +.'. the location of the property not Bacolod 'ity the
resident of plainti. A. you are the -udge what will be your correct resolution to the motion?
Example:
A and B agreed in !""6 that any action between them involving this lot in TawiMTawi be fled
in Batanes. A being a resident of <anila and B of Bulan 5orsogon. The agreement was oral.
?or a violation of ?orcible Kntry A now sued B in Batanes although we say that the lot is in
TawiMTawi. B now fled a motion to dismiss on the ground of improper venue. /e said that the action
should be fled in the inferior court of TawiMTawi not in Batanes.
Q. :ou are the -udge what will be the correct ruling on the motion to dismiss?
A. Deny the motion to dismiss under 5ec. ; )b* 2ule ; the rule on venue shall not apply where
parties have not validly agreed in writing before the fling of the action on the e9clusive venue
thereof.
(n the above case the agreement of A and B was an oral agreement. Therefore the
agreement is not enforceable.
!. The agreement between A and B is Ethat any action arising from this lot located in TawiMTawi
must be fled only in <T' of Batanes.F A now sued B in Batanes. B now fled a motion to dismiss on
the ground of improper venue being the property located in TawiMTawi and therefore TawiMTawi
should be the venue.F
2ule on themotion to dismiss fled by B.
2. Agreement in writing between A and B provided as follows44 EAny action arising from this land in
TawPTawi may be fled in Batanes.F 'ontrary to this writing A fled the action in TawaMTawi. B now
fled a motion to dismiss on the ground that the venue is improperly laid because the agreement
called for the venue to be in Batanes. 2ule on the motion.
14
A. Deny the motion to dismiss because the agreement used the word EmayF. $nder the rule the
agreement to be valid must be one which is in writing and the agreement on the venue must be
Ee9clusive venue.F
Where the action involving real property concerns the title to the property or possession of
real property or interest in real property the venue is the place where the property is located or
where a part of the property is located.
Therefore where the action involving real property does not concern title to the property or it
does not concern the possession of real property or does not concern an interest in real property
the rule that the action should be fled in the place where the property is located does not apply.
There are therefore cases when what is involve is real property and yet the venue of the action
need not be the place where the property or a part of the property is located.
Example:
The action is fled by B against A and 5ecretary of DK12. The action fled by B here is an
action for certiorari against the 5ecretary of DK12 and A. The sub-ect matter although involving real
property is actually the -udgment of the 5ecretary. This is not an action involving title to possession
or interest in real property. The action in e.ect is a personal action. 5o venue would be the
residence of plainti. B or the residence of the 5ecretary not 'otabato the place where the lot is
located.
(n the case of the annulment of the award made by the 3//' the venue need not
necessarily be +.'. where the property is located. 5ince the action was fled in +.'. where the
defendant 3//' reside. 5o the motion to dismiss fled in Bacolod 'ity is not proper because
Bacolod 'ity could be a venue.
$nli,e -urisdiction which cannot be the sub-ect of stipulation venue can be the sub-ect of
stipulation and therefore the parties can agree that the venue of a particular action as fled and
provided the agreement provides for an e9clusive venue.
5o if the property is located in TwiMTawi but A and B agreed before any suit is fled that the venue of
the action arising therefrom be in Batanes and this agreement was in writing before the action was
fled the action can be fled where the property is located or in Batanes. Why? Because the wording
of the agreement Batanes would merely be an additional venue the venue agreement controls.
5o in our e9ample A and B agreed in writing before any suit arise that any action involving
this property located in TawiMTawi can be fled EonlyF in Batanes. (n violation of that written
agreement A fled suit in TawiMTawi where the property is located. B now fles a motion to dismiss
for improper venue. (s the motion to dismiss proper? :es because although the property is located
in TawiMTawi the agreement called for an e9clusive venue i.e.Fonly Batanes.F The motion to
dismiss of B here should be granted.
The rules on venue mentioned in 2ule ; do not apply in certain cases in addition to these
cases that i.e. an agreement in writing.
Q. (s there another situation when the rule on venue does not apply other than the ground that
there is an agreement is writing providing for a particular venue?
The 2ules on venue do not apply when there is an agreement in writing providing for an
e9clusive venue. (n addition to this is there another situation where the rules on venue mentioned
in 2ule ; does apply because in this case we do not fle the action for instance in the place where
the property or a part of the property is located or in the place where the plainti. or the defendant
is residing at the option of the plainti..
(s there such a situation?
Example:
A published a libel in <anila. B is a resident of (locos 1orte. /owever A was a resident of
<anila. 3eople vs. A fled in <anila. B subse0uently fled in the 2T' of (locos 1orte his residence
an action for damages against A in manila. A now fled a motion to dismiss this action in (locos
1orte. /is ground is that the venue of the action should not be in (locos 1orte it should be in <anila
where the libel cases is fled but B countered this argument the recovery of damages is a personal
action therefore under 2ule ; sec 2 )B* has the option to fle any action either in my residence or
the residence of the defendant A at my )B* option. <y option is to fle my action in (locos 1orte.
5o the motion to dismiss is not proper 2ule on the merits of the motion to dismiss
Ans.
The rules on venue found in Rule 0 do not apply in two cases(
!. When the parties agreed in writing before any action is fled the venue of the action be in a
particular place. <eaning when the agreement calls for an e9clusive venue
2. where the law provides for a specifc venue.
(n the frst case where the agreement in writing does not provide for an e9clusive venue but
merely an additional venue the action may be fled in the proper venue according to 2ule ; or in
the venue stated in the agreement. (f the written agreement on venue provides for a specifc and
e9clusive venue only the venue specifed in the agreement can be the venue.
(n the second case the law itself provides for a specifc venue then it should be that venue
provided for by law.
11
The libel law provides that where a criminal action is fled in a particular venue the civil action
for damages arising form that libel should li,ewise be fled in the same court where the criminal
case is pending.
(n our e9ample the libel case was fled in <anila. Any action for damages arising form the libel
fled must be fled in the place where the libel case was fled. Although B in this case is a resident
of (locos 1orte he cannot fle the action in (locos 1orte because the criminal case was fled in
<anila.
RENE NOTES:
Venue o% A(t!ons
Re'l '(t!ons
) place where real property located
Person'l '(t!ons
1) residence of the plaintiff
2) residence of the defendant
+ 9hoice of the plaintiff
Re'l '(t!ons
1) action for the annulment or recision of a sale and the return of realty
2) to compel the vendor to accept payment of the purchased piece of land
) to compel the vendor to deliver the certificate of title of the land
Person'l '(t!ons
1) action to recover the purchased price of the land
2) an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage
) action to annul the cancellation of award of land in favor of the plaintiff
Re$u!s!tes %or #enue to 5e e,(lus!#e:
1) A valid written agreement
2) &2ecuted by the parties before the filing of the action. and
) Agreement to the e2clusive nature of the venue.
+ In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition
to the venue provided for in the rule.
W1en rules on #enue NOT 'ppl!('5le
1) when parties agreed in writing for an e2clusive venue before any action is filed
2) where the law provides for e2clusive venue
e2. :ibel
Libel Law
) where a criminal action is filed in a particular venue, the civil action for damages arising from that libel should likewise be filed in the
1A;& 9$5(! where the criminal case is pending.
3e'ns o% W'!#!n4 #enue: [6O7 AR7 VS7 L]
1) failure to ob,ect by means of motion to dismiss
2) affirmative relief sought in the court where the case is filed
) voluntary submission to the court where the case is filed
") laches
I6 PROPERT8 IS LOCATED AT T9E :OUNDARIES O6 TWO PLACES* file one case in either place at the option of the plaintiff
I6 CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DI66ERENT PLACES:
a) if the properties are the ob,ect of the same transaction, file in any of the two places.
b) if they are the sub,ects of two distinct transactions, separate actions should be filed in each place.
W9EN ALTERNATIVE RELIE6 IS SOUG9T < venue would depend on the primary ob,ect of the action.
VENUE URISDICTION
1. place where the action is instituted 1. power of the court to hear and decide a case
2. may be waived 2. ,urisdiction over the sub,ect matter and over the nature of the
action is conferred by law and cannot be waived
. procedural . substantive
". may be changed by the written agreement of the parties ". cannot be the sub,ect of the agreement of the parties
Rule !: #leadin.s
Q. What are pleadings? What are the ,inds of pleadings?
A. Sec./ Rule !
/leadings are written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.
12
Sec.2 Rule ! (#leadin.s Allo0ed*
!. complaint
The claims of a party are asserted in a4
2. counterclaim
&. crossMclaim
;. third )fourth etc.* party complaint or
7. complaintMinMintervention
The defenses of a party are alleged in the answer to the pleading asserting a claim against him.
An answer may be responded to by a reply.
RENE NOTES*
; .!n"s o% "e%enses t1't m'y 5e set %ort1 !n t1e 'ns/er
A. -&=A!I'& >&?&-1&1
a. 1pecific denials
b. Insufficient denial or denial amounting to admissions
1) =eneral
2) >enial in the form of a negative pregnant
@. Affirmative >efenses in the -ature of 9onfession or Avoidance
+ 5nlike the 9omplaint which alleges only ultimate facts, the Answer may cite legal provisions relied upon for defense
Q. What is the compulsory counterclaim?
A. Sec. 1 Rule !
compulsory counterclaim is one which, being cogni1able by the regular courts of
justice, arises out or is connected with the transaction or occurrence constituting the subject
matter of the opposing party2s claim and does not re$uire for its adjudication, the presence of third
parties of whom the court cannot ac$uire jurisdiction. 3uch a counterclaim must be with jurisdiction
of the court both as to the amount and the nature thereof, e#cept that in an original action before
the Regional Trial Court the counterclaim may be considered compulsory regardless of the amount.
Q. What is a counterclaim?
A. Sec. ! Rule !
counterclaim is any claim which a defending party may have against an opposing party.
Example:
(f A fled a case against B. Any claim by B against A is a counterclaim. (t is a claim by a party
defending himself against a party who fles a case against him.
20o 3I4*S of counterclaims4
!. 'ompulsory 'ounterclaim
2. 3ermissive 'ounterclaim
These two are di.erent for in their component elements and the e.ect of their not being
pleaded.
(n the language of the rule a counterclaim is compulsor% when it is one which is cogniIable
by the court and arises out or is connected with the transaction or series of transactions which
constitutes the basis of the action against him and does not re0uire for its ad-udication the
presence of the third person over whom the court cannot ac0uire -urisdiction. /owever where the
counterclaim is a money claim and the court in which the case is pending is the 2egional Trial 'ourt
the money claim irrespective of the amount is a compulsory counterclaim.
%n the other hand a permissi)e counterclaim is one which does not arise out of or is
connected with the transaction which is the basis of the sub-ect of the action.
Example:
A fles an action against B for collection for sum of money. B however has an action against A
for recovery of lot. This action of B against A for recovery of a lot is a permissive counterclaim.
Why? Because it is not in any way related.
Q. Why is this permissive?
A. Because if B wants to he can fle his counterclaim against A in the same action. (f he does not
fle it as a claim this case fled against him.
Q. 'an he fle it separately so that if he can fle it separately there are now two cases A vs. B for
recovery of lot.
A. :es.
1
Q. 5upposing he )B* does not fle his counterclaim in this case against him and subse0uently B
fles a separate action can A now fle an action to dismiss a second action on the ground that this
action of B against A should not be pleaded as a claim counter in nature in the civil case?
A. 1o because this is a permissive counterclaim. B can fle if he wants in to this main action he
may not fle if he does not want to fle.
Q. 56en is counterclaim compulsor%7
A. !* A compulsory counterclaim is one which is cogniIable by the court of -ustice.
2* A counterclaim should be connected with the transaction which constitutes the basis of
the action of the plainti. against the defendant.
&* This counterclaim does not re0uire for its ad-udication the presence of a third person over
whom the court does not re0uire -urisdiction.
;* This counterclaim is within the -urisdiction of the court e9cept that where the counterclaim
is a money claim and the action is fled in the 2T' irrespective of the amount whether
within or not within the -urisdiction of the court the counterclaim is compulsory.
Example:
This is an action of A against B for the recovery of a lot. The counterclaim of B against A is for
the recovery of money which represents the unpaid wages of B payable by A and the wages being
the result of a contract of employerMemployee relationship.
Q. (s this money claim of B arising from the employerMemployee relationship is not cogniIable by
the court?
A. 1o because the money claimed arising from the employerMemployee relationship is not
cogniIable by the courts of -ustice. This is cogni1able by the 4567 6abor rbiter or the 86RC.
5o if A fles his complaint and B pleads his money claim arising from the employerMemployee
relationship that counterclaim is not a compulsory counterclaim. (t cannot be fled in this case.
The counterclaim must be one which arises from the transaction which is the basis of the
action of the plainti. against the defendant.
Example:
The action of B is for recovery of lot. The claim of B is for money arising from a contract of
loan being B the lender and A the borrower. 5hould B interpose as a counterclaim this action for
recovery of money here.
Q. 'an that be validly done?
A. %n the assumption that all the other elements are present this is allowed.
5upposing this is the <T' the action is for reindivicacion because the value of the property is
only 3266666. This an action fled outside <anila.
Q. (s this counterclaim here allowed to be fled by B as a counterclaim in this case?
A. :es because this is a claim that is compulsory.
But supposing B does not fle a separate case against A for a recovery of money such that if
this is done there will be now two )2* actions
Q. 'an A validly fle a motion to dismiss this complaint on the ground that since this is a
counterclaim that should have been impleaded by B in the main case?
A. 1o because this amount does not arise from the transaction constituting the claim by A against
B this is a recovery of money. This is a permissive counterclaim the fact that it is not pleaded in the
answer in the main case is not a ground to dismiss it.
(n this case BGs counterclaim is not compulsory but merely permissive.
Example:
The counterclaim of B consists of 3266666.66 but the counterclaim of B is against A and '
over this amount is solidary. B does not plead in his answer in the main case claim and after B fles
his separate action against A and ' to recover his 3266666.66. A fled motion to dismiss on the
ground that this should have been impleaded in the main case because it arose from this main
case.
Q. (s the motion to dismiss proper?
A. 1o because the presence of ' is re0uired in their litigation on this 3266666.66 and ' is in $.5.
and the 'ourt does not ac0uire -urisdiction over him.
5o this counterclaim although arising from that action is merely a permissive counterclaim
not compulsory counterclaim because it re0uires for its ad-udication the presence of a third person
over whom the court does not ac0uire -urisdiction.
1"
This is an action in the <T'. The counterclaim of B arising from this letGs say the value of the
improvements which B introduced in this lot is 326!666.66. /e does not plead his counterclaim in
this action. (nstead he fles a separate action on the recovery of 326!666.66. 1ow he fles a
motion to dismiss on the ground that this counterclaim being connected in the claim of A against B
should be pleaded.
Q. (s the motion to dismiss proper?
A. 1o because the amount claimed though arising from the action e9ceeds the -urisdiction of the
<T'. The -urisdiction being only up to 3266666.66. 5o it is not.
5upposing however that this case is fled in the 2T'. And on the assumption that the
counterclaim of B against A arises out of this action of A against B and the counterclaim is only
376666.66
Q. (s this counterclaim compulsory or permissive?
A. 'ompulsory. (n the 2T' as long as the counterclaim is money irrespective of the amount it is
always compulsory.
8et us now ta,e a case where the counterclaim is compulsory.
Example: (ompulsor% (ounterclaim
This is an action for the recovery of a lot. The counterclaim of B is for recovery of the value of
the property improvements which B introduced.
Q. (s it money claim by nature cogniIable by a court whether <T' or 2T'?
A. :es.
Q. (s it connected with the case fled by A against B for recovery of the land?
A. :es because the amount being claimed represents the value of the improvements introduced
by B in this lot which is the sub-ect of the main case. 5o it is connected.
Q. Does this action for recovery re0uires the presence of ' a third person over whom the court
cannot ac0uire -urisdiction?
A. 1o.
Q. (s an action for recovery of a 326!666.66 one with the -urisdiction of the 2T'?
A. :es.
5o in all these cases therefore the elements of a compulsory counterclaim are present.
Q. What is the rule?
A. &hen a counterclaim is compulsory it must be pleaded in the answer, otherwise, that
counterclaim is barred.
Example:
(n the e9ample that B sues to recover 326!666.66 representing the value of improvements
introduced on the lot which is the sub-ect matter of the complaint of A. What B did was to institute
separate action against A for recovery of the improvements. /e did not plead this as a counterclaim
in the action of A.
A now fles a motion to dismiss on the ground that the counterclaim is a compulsory
counterclaim the fact that it not was pleaded in the main case is a ground to dismiss it.
Q. :ou are the -udge what will be your correct ruling on this motion of A to dismiss the case?
A. Qrant the motion bec. a compulsory counterclaim not pleaded in the answer is considered
barred.
RENE NOTES:
Rules on Counter(l'!m
1) A counterclaim before the ;!9 must be within the ,urisdiction of said court, both as to the amount and nature thereof.
2) In an original action before the (!9, a counterclaim may be considered compulsory regardless of the amount.
) If a counterclaim if filed in the ;!9 in e2cess of its ,urisdictional amount, the e2cess is considered waived.
") !he remedy where a counterclaim is beyond the ,urisdiction of the ;!9 is to set of the claims and file a separate action to collect
the balance.
CO3PULSOR8 COUNTERCLAI3 PER3ISSIVE COUNTERCLAI3
A1) one of which arises out of or is necessarily connected with
the transaction or occurrence that is the sub,ect matter of the
opposing party3s claim.
A1) It does not arise out of nor is it necessarily connected with
the sub,ect matter of the opposing party3s claim.
A2) It does not require for its ad,udication the presence of third
parties of whom the court cannot acquire ,urisdiction.
A2) It may require for its ad,udication the presence of third
parties over whom the court cannot acquire ,urisdiction.
A) It is barred if not set up in the action. A) It is -$! barred even if not set up in the action.
1/
A") -eed not be answered. no default. A") ;ust be answered, otherwise, the defendant can be
declared in default.
Cross2(l'!m
+ filed against a co)party
+ always arises out of the transaction or occurrence that is the sub,ect matter either of the original action or of a counterclaim therein.
+ If it is not set up in the action, it is barred, e2cept when it is outside the ,urisdiction of the court or if the court cannot acquire ,urisdiction
over third parties whose presence is necessary for the ad,udication of said cross)claim.
+ !he dismissal of the complaint carries with it the dismissal of a cross)claim which is purely defensive, but not a cross)claim seeking
affirmative relief.
Reply
E%%e(t o% 6'!lure to Reply: new facts that were alleged in the answers are deemed converted. #ence, the filing of the reply is optional
e2cept for the denial of the genuineness and due e2ecution of an actionable document used as defense in the answer.
T1!r" <%ourt17 et(* = p'rty (ompl'!nt
T9IRD2PART8 CO3PLAINT CROSS2CLAI3
+ seeks to recover form a non)litigant some relief in respect to
the opposing party3s claim.
+ claim by a party against a co)party.
+ !hird party is not yet impleaded. + 9ross)defendant is a co)party.
T9IRD2PART8 CO3PLAINT CO3PLAINT IN INTERVENTION
+ brings into the action a third person who was not originally a
party.
+same
+ initiative is with the person already a party to the action. + initiative is with a non)party who seeks to ,oin the action.
+ TEST to "eterm!ne /1et1er t1e t1!r"2p'rty (ompl'!nt !s !n respe(t o% pl'!nt!%%>s (l'!m*
Aa) %here it arises out of the same transaction on which the plaintiff3s claim is based, or although arising out of another or different
transaction, is connected with the plaintiff3s claim.
Ab) %hether the third)party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff3s claim against the
original defendant. and
Ac) %hether the third)party defendant may assert any defenses which the third)party plaintiff has or may have to the plaintiff3s claim.
Rule in non89:RU' S;:##I4< ( $nder SE(. 5 RULE 1
The plaintif or principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certi'cation anne#ed thereto and simultaneously
'le therewith(
a9 That he has not thereto commenced any action or 'led any claim involving the same issues
in any court, tribunal or $uasi.judicial agency and to the best of his %nowledge, no such
other action or claim is pending therein;
b9 +f there is such other pending action or claim, a complete statement of the present status
thereof; and
c9 +f he should thereafter learn the same or similar action or claim has been 'led or is pending,
he shall report the fact within 've :;9 days therefrom in the court wherein his aforesaid
complaint or initiatory pleading has been 'led
<ailure to comply with the foregoing re$uirements shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certi'cation or non.compliance with any of the underta%ings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. +f
the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as
well as a cause for administrative sanctions.
Example:
A fled an action against B for forcible entry of a particular lot. While this case was pending
A fled against B for reindivicacion involving the same lot.
Q. (s there a forum shopping on the part of A?
A. 1o the two cases are di.erent. %ne is for forcible entry and the other for reindivicacion.
Example4
A fled an action against B in the 2T' for reindivicacion. Branch ! 2T' of <anila. (n their
action A fled a petition for receivership. (n Branch (( of <anila A fled another action against B also
for reindivicacion for issuance of an in-unction.
Q. (s there forum shopping on the part of A?
A. 1o there is none because the two cases involves di.erent issues.
Q. What is forum shopping?
A. 9orum s6oppin. ta=es t0o forms4
!* Where a party fles the same action involving the same issues either simultaneously or
successively in more than one court.
10
2* Where a party fles two or more actions in di.erent courts the other action fled in another
court not being the result of an appeal or a petition for certiorari.
?orum shopping is not allowed because this would be constituting to the -udicial process ma,ing
moc,ery out of the rules. This is the reason why whenever the party fles a complaint or an
initiatory pleading he is re0uired to accompany that complaint or initiatory pleading with a
certifcate. We call the certifcate the certi'cate of non.forum shopping.
The certifcate is signed by the plaintif and if there are two or more plainti.s and one is a
principal plainti. and the other is not the certifcate must be signed by the principal plainti.. The
contents of the certifcate the plainti. or in the proper case the principal plainti.s certifes the
following4
a* That he has not previously fled in another court tribunal 0uasiM-udicial body or any other
agency the same action involving the same issues.
b* That there is no pending action in any other court tribunal 0uasiM-udicial body or any
other agency involving the same issuesand if there is pending action in any other court
the status of this action pending in the other tribunal agency or 0uasiM-udicial agaencyJ
c* 5hould at the time he fled the pleading he did not ,now of the e9istence of pending of
another action involving the same issues in another tribunal court agency or 0uasiM
-udicial body but that he subse0uently learns that there is such a pending action
involving the same issues he underta,es to notify the court of that fact that there is a
pending action within fve )7* days from his receipt or ac0uisition of ,nowledge of the
pendency of that action.
These are the three )&* matters certifed by the plainti. or the principal plainti..
Q. What are the sanctions against violations of this certifcate?
A. =iolations rule may consist of the following4
!* ?ailure to attach to the initiatory pleading in the complaint the re0uired certifcate of nonM
forum shoppingJ
2* 5tatement in that certifcate of nonMforum shopping of a false certifcate.
These are the forms of violation either you do not accompany or you accompanied the
pleading but the certifcate contains a falsehood.
&* The violation consists in the failure of the party to comply with his underta,ing thereafter.
Q. What is the underta,ing there?
A. To notify the court to the fact that another action is pending in another court.
Therefore the violations consists of three )&* i.e. nonMsubmission submitting a false certifcate
and failure to comply with the underta,ing to inform the court of the pending case in another court.
Q. What are the sanctions?
A. The failure to accompany the pleading with a certifcate results in a dismissal without pre-udice
of the complaint or initiatory pleading upon a prior motion and a prior hearing. (n other words
where the pleading re0uire a certifcate is not attached at the court may not motu proprio dismiss
the complaint. There should frst be a hearing either a motion of the defendant. (n this case the
court may dismiss it without pre-udice.
Q. (s this all the sanction?
A. 1oThe counsel or the defendant may be held in contempt. And in the case of the lawyer he
may be administratively proceeded against4
When there is a false certifcation for instance the certifcation stated that there was no
pending case involving the same issue in another court when the truth is there is.
Q. What is the sanction?
A. 1ot only the pleading be dismissed not only may the lawyer be proceeded against
administratively he may be proceeded against criminally.
Where the forumMshopping is deliberate.
Q. What are the sanctions?
A. The pleading will be dismissed with pre-udice and the o.ending lawyer may be held in direct
contempt without pre-udice to administrative proceeding against.
Ta,e note that the party on whom the sanctions may be enforced is one who does not
comply with this certifcate of nonMforum shopping only in a case where the pleading which is not
accompanied with the certifcate is a complaint or an initiatory pleading.
16
&here the pleading is other than the complaint, or an initiatory pleading the rule does not
re0uire that the pleading be accompanied by a certifcate of nonMforum shopping. 'onse0uently
where the counterclaim is compulsory it does not have to be accompanied by a certifcate of nonM
forum shopping. Where the counterclaim however is permissive than the pleading must be
accompanied by a certifcate of nonMforum shopping.
(n the case of *3T vs. =ula >.R.?"@!A"B ugust "A, "!!B :@!0 3 CBD*. E%nly a complaintF or
an initiatory pleading. A compulsory counterclaim is not an initiatory pleading. Why?
Q. When is a pleading initiatory?
A. As the term suggests it is one which is fled for the frst time. Where a counterclaim is
compulsory it is not an initiatory pleading. Why? Because you cannot fle a compulsory
counterclaim unless there is a frst complaint. That is why a counterclaim is a reaction to the
complaint. 5o it is all again initiatory because you cannot fle an independent action involving a
compulsory counterclaim.
Where a counterclaim is compulsory it must be pleaded in the answer otherwise it is barred
if it is fled in a separate action. But when it comes to a permissive counterclaim this is an initiatory
pleading because it can be fled even without a prior complaint having been fled against a
permissive counter claimant.
5o in our e9ample for instance if A fled a complaint against B for recovery of a lot B fles a
counterclaim for the value of the improvements over the land. 5o you call this a compulsory
counterclaim.
Q. Do you have to accompany this compulsory counterclaim of B with a certifcate of B with a
certifcate of nonMforum shopping?
A. 1o because this compulsory counterclaim is not an initiatory pleading. (t is a reaction. Without
this complaint of A there is no compulsory.
But supposing this were a counterclaim for recovery of money which B loaned to A and B
pleaded this claim of money as a counterclaim you call this permissive counterclaim.
Q. Do you have to accompany this permissive counterclaim with a certifcate of nonMforum
shopping?
A. )$.5.T. vs. @ula.* :es.
Q. 5tate the rule on Alternati)e causes of action or defenses.
A. Rule > Sec. 2
party may set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate causes of action or defenses.
&hen two or more statements are made in the alternative and one of them if made independently
would be suEcient, the pleading is not made insuEcient by the insuEciency of one or more of the
alternative statements.
!* Where a person has one claim or one defense he can state that one claim or one defense in
two or more statements either hypothetically or in the alternative.
2* Where two or more statements of a claim or a defense are made and one is made
independently of the other which is suOcient the pleading is not made insuOcient by the
insuOciency of the other statement of the claim or the other defense.
Example:
A vs. B this is an action for recovery of a piece of land. The defense of B is that he )B* is the
owner because
!* he bought the land from AJ
2* he inherited the land from 'J
&* this lot was donated to him by DJ
;* he ac0uired this by prescription.
Q. 'ould this be validly alleged as BGs defense?
A. Analysis4 The defenses are inconsistent with each other.
B can allege these as his defenses in his answer. The statement of BGs defense that he is the
owner is made up of ; inconsistent statements.
The rule says that if the statement of the claim or defense is suOcient in itself if made
independently of the other the pleading is not made insuOcient by the insuOciency of the
statement.
RENE NOTES:
6'(ts t1't m'y 5e '#erre" 4ener'lly:
Aa) conditions precedent A@5! there must still be an allegation that the specific condition precedent has been complied with, otherwise, it
will be dismissed for failure to state cause of action.
Ab) malice, intent, knowledge, or other condition of the mind
Ac) ,udgment of foreign courts, tribunals, boards, or officers Ano need to show ,urisdiction)
6'(ts t1't must 5e '#erre" p'rt!(ul'rly:
17
Aa) circumstances showing fraud or mistake in all averments of fraud or mistake
Ab) capacity
* Two permissible ways of pleading an actionable document*
Aa) @y setting forth the substance of such document in the pleading and attaching said thereto as an anne2
Ab) @y setting forth said document verbatim in the pleading
* Where the actionable document is properly alleged, the failure to deny under oath the same results in:
1) !he implied admission of the genuineness and due e2ecution of said document e2cept*
Aa) when the adverse party was not a party to the instrument. and
Ab) when an order for the inspection of the document was not complied with.
2) !he document need not be formally offered in evidence.
* Defenses that the opposing party may set up even after failure to deny under oath:
Aa) mistake.
Ab) fraud.
Ac) compromise.
Ad) payment.
Ae) prescription.
Af) want or illegality of consideration. or
Ag) estoppel.
* BUT the following defenses are waived:
Aa) forgery in the signature.
Ab) want of authority of an agent or corporation.
Ac) want of delivery. or
Ad) the party charged signed the instrument in some other capacity.
SPECI6IC DENIAL
T9REE WA8S O6 3A?ING A SPECI6IC DENIAL:
Aa) @B specifically denying each material allegation of the party and of the other party and whenever possible, setting forth the substance of
the matters relied upon for such denial.
Ab) past admissions or past denial.
Ac) @y an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party3s
pleading.
+ A denial cannot be general, a general denial is regarded as admission on the facts stated in the complaint.
+ A negative defense must be a specific denial. $therwise, the denial will be deemed as an admission and entitles plaintiff to a ,udgment on
the pleadings
A#erments !n t1e (ompl'!nt NOT "eeme" '"m!tte" e#en !% NOT spe(!%!('lly "en!e":
Aa) Allegations as to the amount of damages Aunliquidated).
Ab) Immaterial allegations.
Ac) Incorrect conclusions of fact. and
A#erments "eeme" '"m!tte" !% not spe(!%!('lly "en!e" un"er o't1:
Aa) Allegations as to usury in the complaint
Ab) !he authenticity and due e2ecution of actionable documents thereto.
Rule ?: E@ect of 9ailure to #lead
<eneral Rule4 All of actions and defenses available at the time the pleading is fled if not
raised in the motion to dismiss or as aOrmative defense in an answer are deemed waived or
abandoned.
5o the general rule therefore is if you have defenses or ob-ections if you will fle allege all
them either in a motion to dismiss or alternative defenses in an answer. All those defenses all
those ob-ections available but not so raised are deemed waived and abandoned.
There are certain defenses or grounds of ob-ections however which may not be abandoned
either if they were not initially raised in a motion to dismiss or as an aOrmative defense.
E&(E#2I:4S to t6e <.R of 9AILURE 2: #LEA*
?or instance the court has no -urisdiction over the sub-ect matter of the case. 5uppose the
case is already barred by the rule on res -udicata. 5uppose the action has already one that has
prescribed. 5uppose there is a lis pendencia and all these four are redeemed either on the basis of
the pleadings themselves or under the basis of the evidence the court can dismiss this action
based on lac, of -urisdiction res -udicata lis pendencia or prescription or statue of limitation.
Example:
A vs. B this is an action for forcible entry. The allegations are fled. This case was fled in the
2T'. 5o B did not fle a motion to dismiss for lac, of -urisdiction. 1either this lac, of -urisdiction of
the court to try the forcible entry case alleged as an aOrmative defense.
18
Q. (s -urisdiction here waived?
A. 1o. Although not raised in the motion to dismiss or although not raised as an aOrmative
defense the court can still dismiss the case although lac, of -urisdiction was not so alleged.
%r where the evidence shows if proceeded to trial lac, of -urisdiction or where the evidence
shows res -udicata already or where the evidence shows that the action has already prescribed or
the evidence shows that there is lis pendencia then the court can dismiss the action.
*efault.
Default $sed to be covered by 2ule !C. 2ule !C was limited to default but 2ule !C now
which covered default there is another sub-ect of 2ule ".
Q. What is the rule of default?
A. Default here means the failure of the defendant who was validly served a summons to fle the
answer within the reglamentary period.
5o if for instance A vs. B was summoned on Dec. !6 !""". /e has only a period until Dec.
27 !""" or Dec. 2B !""" assuming that Dec. 2B !""" is a wor,ing day within which to fle the
answer or only appropriate pleading. (f B was validly served under 2ule !; and fails to fle the
answer within that period or fails to fle any appropriate pleading within that period we may say
that B has already incurred in default.
AL2ER4A2I-E A4* SU((ESSI-E RE'E*IES :9 A #R2A *E(LARE* I4 *E9AUL2
a* fle a verifed motion in set aside the order of default of any time after discovery of the
?A<K and before -udgment
b* if he did not fle one or the same was denied he would fle a motion for a new trial at any
time after service of -udgment by default and within &6 days therefrom
c* if he fail to fle said motion or the same was denied he could perfect his appeal from and
on merits of said -udgment by default within the balance of said &6Mday period
d* if he failed to ta,e any of said steps he could fle a petition from relief of -udgment within
B6 days from notice of the -udgment but within B months from entry thereof.
Where the defendant has not been validly summoned under 2ule !; he cannot be declared
in default.
Q. /ow will A here secure the default of B?
A. /e must fle a motion in court.
Q. 'an the court moto proprio declare B in default?
A. 1o. Kven if B has not fled an answer the court cannot moto proprio declare the defendant in
default. A must fle a motion.
Q. (s B under the new rules entitled to a notice of the hearing of the motion to declare in default?
A. :es. This is now the amendment to the old 2ule !C.
$nder the old 2ule !C the -urisprudence thereunder a motion to declare a defendant in
default could be validly heard without notice to the defendant. /e was not under the same rules
and -urisprudence entitled to a notice of the hearing on the motion. (t means therefore that a
default motion under the old rule will be held e9 parte.
This is not now the rule. A here the plainti. must fle a motion furnish B with a copy of the
motion and furnish B with a notice of hearing on the motion.
2uling of the court on the motion>
The court may deny or grant the motion.
Q. What are the e.ects of a declaration of default on the defendant?
A. There are many. (n substance B loses many rights which pertain to a defendant who has not
been declared in default4
!* he cannot fle an answerJ
2* he cannot participate in the proceedingsJ
&* he cannot present evidence on his behalfJ
;* he cannot crossMe9amine )the witness of the plainti.*
until he regains his standing as a defendant because the order declaring him in default is set
aside he is in e.ect outside the ring loo,ing at A doing his thing.
5o a case where a defendant is not declared in default is li,ened to a bo9ing fght where
both opponents are in the ring slugging it out. But in the case of a defendant who has been
declared in default the only person in the ring is the plainti. A and B here the defendant is
outside the ring loo,ing at what A is doing.
Q. What follows after the court has validly declared the defendant in default?
A. !* The court may now render a -udgment. The -udgment may be either what is solely in the
allegations in the complaint without the court receiving evidence from A the plainti. in support of
the allegations.
24
2* The court may receive evidence and therafter render a -udgment on the basis of evidence
presented by A.
Q. Are there limitations on the -udgment that the court may render where the defendant is
declared in default?
A. :es. The limitations are4
!* The -udgment cannot award an amount to the plainti. in e9cess of what was claimed in
complaintJ
2* The -udgment that the court may render can never be di.erent from the -udgment prayed
in the complaint.
Where a -udgment is rendered without the defendant having been declared in default the
-udgment may be di.erent from what has been prayed provided that -udgment is sustained by the
evidence.
Example:
(f B was not declared in default and the claim of A in his complaint for damages is 3!< but
what A proved was 3!666666.6! the court may award A 3!666666.6! though it e9ceeds by one
)!* centavo they are valid.
But in a default case 1oRR even though the evidence of the plainti. proved that sustained
damages 3!666666.6! the court cannot award an amount in e9cess of 3!< )the amount claimed
in the complaint*.
Q. /ow may the defendant regain his standing as a defendant?
A. /e must fle a motion to set aside the order of default at any time before the -udgment has
become fnal.
(n other words if the -udgment has already become fnal a motion to set aside the order of
default is no longer proper.
Q. What are the grounds of a motion to set aside a default order?
A. 5ince the default is by reason of failure of the defendant to fle the answer there must be a
reason why he failed to fle the answer. And this must be the reason he must alleged when he fled
a motion to set aside the order of default.
Q. What are these?
A. :ou will say4
S( fail to fle my answer because of the following4
!* ?raud was committed against me so ( did not fle the answer.
2* An accident befell me. This accident prevented me from fling the answer on time.
&* ( committed a mista,e and this mista,e prevented me from fling the answerF
(f he said E ( was negligent in not fling but my negligence is e9cusable because4
!*
2*
&*
These are the grounds fraud accident mista,e or e9cusable negligence which prevented
the defendant of fling the answer. )?A<K*
Q. (s it enough that these grounds be alleged in the motion to entitle the defendant to a restoration
to his status as a defendant?
A. 1o. The motion must be accompanied by the soMcalled aOdavit of merit.
The aBda)it of merit is composed of two )2* facts4
!* The facts constituting the fraud the accident the mista,e the e9cusable negligence which
prevented the defendant from fling the answer. 5o the defendant here must recite the facts
constituting the fraud mista,e negligence or accident. /e cannot simply say E ( failed to
fle my answer because there was fraud committed against me or that an accident befell me
or that ( committed a mista,e or that ( was negligent and that negligence is e9cusable.F
Why?
Because these are merely conclusions.
5o you must state here E?raud was committed against meF (n what did consist of? 5tate
thereR 5ame thing with the accident mista,e or negligence.
2* The good defenses of the defendant to the action
5o in the aOdavit of merits the defendant must state there the facts constituting his defense.
/e cannot simply say there E( have a good defense.F 1oR 5tate there what are your good defenses.
21
Q. What is the reason why the aOdavit of merit indicates therein the good defense of the
defendant is re0uired?
A. The rule is based on this supposition.
The court must frst e9amine the defenses of the defendant. To determine whether it is
proper or not proper to set aside the order of default and allow the defendant to fle his answer and
adduced his evidence. Why? Because if the aOdavit of merit does not show that the defendant has
good defenses so that even if all those defenses alleged in the aOdavit of merit were proven but
notwithstanding he will not be still entitled to a -udgment in his person it would be pointless to
allow him to go to trial and prove to state which do not entitle him anyway to any favorable ruling.
But if after the court has e9amined the proposed evidence as stated in the aOdavit of merit
and fnds that if this evidence are established the -udgment may be favorable to defendant then
the court will have a basis of allowing B )defendant* to reac0uire his status as a legitimate
defendant.)This is the purpose.*
Q. Although a defendant has been validly summoned can he nevertheless be declared invalidly in
default even if he did not fle the answer?
A. :K5. When the declaration of default is premature because at the time he was declared B in
default the period of the fling of the answer has not yet e9pire.
Example:
The last day for B to fle the answer is Dec. 2B. The court declared B in default on Dec. 2;
!""".
Q. (s the declaration in default proper?
A. 1o. B was not yet in default. Why? Because he has until Dec. 2B !""" within which to fle the
answer. 5o when he was declared default on Dec. 2; !""" he has still an additional two )2* days
within which to fle the answer.
5o B now fles a motion to set aside this default order.
Q. Does he need to accompany his motion with an aOdavit of merit?
A. 1o not necessarily. WhyT because the default order is illegal. :ou cannot declare a defendant
in default ahead of the e9piration of the period of the fling of the answer.
Q. (s the failure of the defendant to fle the answer within the reglementary period a ground to
declare him in default in all cases?
A. 1o. There are certain cases where a defendant cannot be validly declared in default even
though he has not fled an answer within the reglementary period.
Q. What are these cases?
A. The cases are the following4
!* An action for a declaration of nullity or annulment of a marriageJ
2* An action on legal separation.
(n these cases where the defendant does not fle the answer the procedure to be followed by
the court is this the court must re0uire the prosecutor to intervene and determine whether there
was collusion between and among the parties and that if such prosecutor fnds that there was no
such collusions to direct the prosecutor to intervene for the purpose of seeing t it that the evidence
of the plainti. they adduced is not manufactured or a product of a concoction the fscal should
determine.
Where there are two or more defendants some of whom answered and some do not but the
cause of action against the defendants is common to all meaning the complaint alleges the cause
of action common to all the defendants.
Q. What procedure should the court follow in determining the case?
Example:
A vs. B ' and D. A has a cause of action against B ' and D. The cause of action is common
to all. %nly B answered.
Q. /ow will the court proceed to try the case?
(s ' and D declared in default? :es.
A. Trial>
Q. Does this mean therefore that the trial will no longer a.ect ' and D?
A. The 2ule is the court will try the case on the basis of the answer fled by B. The answer fled by
B inures to the beneft of ' and D. (t is as if this answer fled by B was fled not only for B but also
for ' and D.
This means to say therefore that a -udgment rendered binds all the defendants. 5o if B wins
for instance ' and D might also win. (f B looses ' and D also loose.
22
This rule however presuppose that the action of A is against all these defendants is
common to them. 5o you can declare ' and D in default for their failure to fle the answer but the
case shall be rendered against them on the basis of BGs answer.
This is the essence of 2ule ".
Rule /+ : Amended #leadin.s
Amendment may be a matter of right or not a matter of right one that is rest on the
discretion of the court.
Amendment may also be of substantial matter or only on formal matters
Q. What are the rules of amendment?
A. They are as follows4
t any time before a responsive leading has been 'led, the plaintif may 'le an
amendment pleading once, as a matter of right. <eaning the plainti. does not have to get a prior
authority from the court to amend. /e can amend without getting a court order authoriIing him to
amend.
The plainti. A fled his complaint against B on Dec. ! !""C. The defendant B was
summoned on Dec. # !""C. 5o he has a period ending Dec. 22!""C within which to fle the
answer in conformity of 5ec. ! 2ule !!.
Sec. / Rule //
The defendant shall fle his answer to the complaint within ffteen )!7* days after service of
summons unless a di.erent period is f9ed by court.
8et us say that B fled the answer on Dec. 26 but served the copy of the answer on A on Dec.
22 !""C. %n Dec. 2! however A now fled any motion authoriIing him to amend his complaint. 5o
there was no order for A to amend. B moved that this amended complaint be stric,en o. the record
on the ground that its fling was not authoriIed because A did not have the authority of the counsel
to amend.
Q. (s the motion to stri,e by B legally proper?
A. 1o. When A fle the amended complaint on Dec. 2! the answer of B which was fled on Dec. 26
was not yet served on A. (t was served only on Dec. 22.
The rule is Eat any time before a responsive pleading is served the party fling the pleading
can amend once as a matter of right.F The right can be e9ercised only once not twice.
When the amended complaint was fled on Dec. 2! it is a matter of right meaning it can be
e9ercise without a court order. When the answer of B was already fled a day ahead or on Dec. 26.
But because the rule is very clear there is a di.erence between fling and serving under 2ule
!& and under 2ule !6 the starting point of the right to amend a pleading is not the date of fling
but the date of serving a copy of the pleading to the adverse party.
The rule says the right to amend before the responsive pleading is served can be e9ercised
only once. When a party therefore see,s to amend for the second or subse0uent times his
pleading he can no longer do so as a matter of right. ?or him to amend again for the second time
or any subse0uent time he must obtain prior leave of court.
Illustration:
Aanuary !6 !""" A e9amined his amended complaint and found some defciencies
thereunder which he now wanted to correct. And so the only way for his correction would be to fle
a second amendment complaint.
8et us say that the last day for B to fle his answer to this amended complaint is Aanuary !7
!""". B here fled his answer on Aanuary !& !""" and served A a copy of the answer on Aanuary !7
!""". A fled his second amended complaint without leave of court.
Q. 'ould A validly fle without leave of court that second amended complaint?
A. 1o.
Q. Why could A not since the answer for the amended complaint was not yet served on him when
he fled his second amended complaint?
A. Because the right to amend without leave of court can be e9ercised only once.
Q. Qive us the instances when the pleading may be amended to conform with the Kvidence?
Sec. 5 Rule /+
&hen issues raised by the pleadings are tried with the e#pressed or implied consent of the
parties they shall be treated in all respects as if they had been raised in the pleadings. 3uch
2
amendments of the 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 at any time, even after judgment( but
failure to amend does not afect the result of the trial of these issues. +f 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.
There are two situations where a pleading may be amended to conform to the evidence4
(nstances when pleadings may be amended to conform to the evidence
!* when issues not raised in the pleading or in the trial order are tried e9pressly or implicitly
with the consent of the parties theretoJ
2* when an issue not raised in the pleading or in the preMtrial order to be proven by a party and
ob-ected to be tried if the presentation of the merits of the case and substantial ends of
-ustice are subserved thereby.
Example:
A vs. B. The complaint of A he alleged among others that he gave a loan to B. The loan is
already overdue. Demands notwithstanding B refused to pay. The prayer of A is that -udgment be
rendered4
!* ordering B to pay A the amount loanedJ
2* ordering B to pay damages to A.
The answer of B that he denies that he obtained from A. /e li,ewise denies that he was as,ed to
pay A no demand whatsoever having made. As BGs defenses he raised the following4
!* the action has already prescribed.
This is the only defense that B alleged.
During the trial A presented his evidence and the allegations. B presented his evidence to prove
his denial. /e now tries to prove prescription. (n addition he now tries to prove payment. (n other
words B said that he already paid.
Q. (s payment an issue?
A. 1o. Because it was not raised in the pleading. 1othing was said in the answer of B that he paid.
The rule is you cannot prove a defense not alleged you are limited of proving only which you have
alleged. 3rovided of course that that is disputed.
5o our rule here under the ordinary rules of pleading particularly under 2ule !& there
having been no issue raised in the pleading with respect to payment then this payment cannot be
proven. /owever when B tried to prove this A did not ob-ect. %n the other hand A adduced
evidence showing that there was no payment.
Q. <ay the court now in deciding the case consider the evidence of payment under this rule on
amendments of pleadings to conform to the evidence?
A. The court may. (t can consider it although there was no issue.
Q. (n order to -ustify the court ruling or deciding what is allowed to do under 2ule !6?
A. The court may now order A and B to amend their respective pleadings to conform to the
evidence on payment. 5o B here will be allowed to amend the answer to allege therein payment. A
may now be allowed to amend his complaint to allege nonMpayment to conform to the evidence.
5upposing the court did not order the amendment.
Q. 'an it pass on the issue of payment?
A. :es. The rule is whether the pleadings have been amended or not to conform with the
evidence the court can still rule on the issue that was impliedly or e9pressly agreed upon to be
tried by the parties.
5o the nonMamendment of the pleading will not -ustify the court from refusing to resolve this
issue of payment. (f there was already evidence of payment because there was ob-ection in this
case on the part of A that issue of payment can be resolved by the court with or without the
amendment of the pleading.
B now introduces his evidence of payment. /owever A ob-ected on the ground that there was
no allegation of payment under the cardinal rule on pleading Eyou cannot prove what you have not
allegeF. The court will say B is allowed to prove and if A cannot show that the reception of the
evidence of payment would pre-udice him. %n the contrary the court believes that presentation of
evidence on this issue of payment will be served the merits of the case or in the language of the
law the ends of -ustice are subserved by the amendments.
RENE NOTES:
* When the complaint is amended, 2 situations may arise:
1) If the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the
original complaint.
2"
2) If the amended complaint alleges a new cause of action, then the new allegedly cause of action is deemed commenced upon the
filing of the amended complaint.
* nstances when amendment by leave of court not allowed:
1) when cause of action, defense or theory of the case is changed.
2) amendment is intended to confer ,urisdiction to the court.
) amendment to cure a premature or non)e2isting cause of action.
") amendment for purposes of delay
Supplemental #leadin.
Sec. ! Rule /+
*pon motion of a party the court may, upon reasonable notice and upon such terms are just,
permit him to serve a supplemental pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading sought to be supplemented. The adverse party
may plead thereto within ten :"D9 days form notice of the order admitting the supplemental
pleading.
Example:
A vs. B. When A fle this case on Dec. ! !""7 he could have allege only facts that occurred
before or until Dec. ! !""7. /e could not have ascertained in that complaint of his dated Dec.
!!""7 facts which would have occurred Dec. ! !""B. Why? Because he is not 1ostradamus. /e
does not ,now what is tomorrow. 5o you cannot allege facts not yet e9isting at the time the
pleading is fled.
5upposing there were facts already e9isting on Dec. ! or before that but which A forgot to
allege and which facts are material to his case.
Q. 'an he change his pleadings? /ow?
A. :es by amended pleading to incorporate therein facts already e9isting at the time of the fling
of the pleading or at the time before the pleading is fled.
Q. What is a supplemental pleading?
A. A supplemental pleading is one embodying therein occurrences facts and events that
transpired after the original pleading was fled.
5o in the e9ample where the suppose o.er of B to settle was made on Dec.! !""B and A
wants to aver this in a supplemental pleading.
Q. Why supplemental?
A. Because this matter could not have been alleged on Dec. ! !""7 because it did not yet
occurred. :ou will notice that the supplemental pleading is intended as the term suggest to
supplement or to add to the original pleading.
$nli,e the amendment pleading which supersedes the original pleading a supplemental
pleading does not put out of e9istence the original pleading.
Example:
(n an amended pleading of B the moment this is fled and this is accepted the original
pleading or complaint ceases to e9ist. (t is no longer legally a part of the record although it is there.
(t is there but legally it is not there. (t is nonMe9istent. :ou can physically see it but legally you are
blind to it because an amended pleading supersedes the original pleading.
Q. /ow about a supplemental pleading?
A. 1o it does not supersedes. (t is merely an additional. 5o that when a supplemental pleading is
fled there are actually two pleadings now the original pleading and the supplemental pleading.
Example:
Dec. ! !""7 A sued B the <K2A8'% in an action to en-oin it from cutting o. the
electrical connection of A. A prayed that a restraining order be issued while the case is going on. B
the <K2A8'% alleged that A stole electricity by installing in its electrical connections a -umper. The
event which is that electricity passing through the -umper is not recorded in the meter amounting
to thousand of pesos. A now fled an urgent motion as,ing the court to resolve the application for
restraining order. The court denied the T2% so <K2A8'% now threatened to carry out its original
desire of cutting of the electricity. To avoid the cutting of the electricity A paid under protest.
The contention of A is that he did not steal it and therefore he is now entitled to the
return of his money.
Q. Does he have to fle a separate complaint to recover what he paid?
A. What he can do is fle supplemental pleading alleging therein what happened.
2/
Q. What happened here?
A. After he fled the complaint the court denied his application for T2% <K2A8'% now threatened
to cuto. his electricity to avoid the cutting of the electricity he paid under protest.
Q. What is now AGs prayer?
A. AGs prayer is that <K2A8'% be ordered to return to him the amount he paid.
Q. 'ould he pray for that in his original complaint?
A. ?or obvious reasons he could not have set forth that fact because it did not have occurred
when he fled the original complaint.
A supplemental pleading should be answered.
Q. When should it be answered?
A. A supplemental pleading should be answered within ten )!6* days from the notice of the order
admitting supplemental pleading.
Q. What would be the basis now of B in fling the answer to the supplemental pleading? /ow would
B ,now the contents of the supplemental pleading?
A. The court furnishes B with a copy of supplemental pleading of A.
$nder 2ule !7 when a motion is fled the pleadings sought to be admitted are
already attached to the motion so the motion now carries the copy of the supplemental pleading a
complaint.
A now furnished B when B received the order admitting the pleading of A he already
had with him a copy. That is why the ten )!6* day period is counted from the receipt of the order
admitting the supplemental pleading.
B in this e9ample did not fle the answer to the supplemental pleading. A now fled a
motion to declare him in default with respect to the supplemental pleading. B now engaged Atty.
<arte as his counsel.
Q. What legal procedure are you )=anny* allowed to involve in order that this motion of A to
declare your client in default may be thwarted?
A. While it is true that the rule re0uire a supplemental pleading to be answered the failure of the
party to answer is not a ground to declare him in default. Why? Because the answer he already fled
to the original complaint serves as his answer to supplemental pleading.
RENE NOTES:
A;&->&> C:&A>I-= 15CC:&;&-!A: C:&A>I-=
+ refers to facts e2isting at the time of the commencement of
the action.
+ refers to facts arising after the filing of the original pleading.
+ take the place of the original pleading + taken together with the original pleading.
+ can be made as a matter of right as when no responsive
pleading has yet been filed
+ always with leave of court
E%%e(ts o% Amen"ment Ple'"!n4
Aa) Admissions in the superseded pleading can still be received in evidence against the pleader.
Ab) 9laims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived.
RULE //:5;E4 2: 9ILE RES#:4SI-E #LEA*I4<S
Q. >ive us the period within which a pleading may be answered4
!* 'omplaint U !7 days after service of summons4 &6 if foreign corp.J B6 days if done thru
e9traterritorial service
2* 'ounterclaim U !6 days form service
&* 'rossM'laim M !6 days form service
;* Third 3arty 'omplaint U !7 days after service of summons
7* A 'omplaintMinM(ntervention U !7 days form notice of the order admitting it
B* AnswerMin a case where the motion to dismiss it is denied U balance of period re0uired but
not less than 7 days from receipt of notice of denial
#*Bill of particularsMwithin !6 days from the notice of the order
C*5upplemental pleadingM within !6 days from service
Sec. / Rule // (omplaint
The defendant shall fle his answer to the complaint within ffteen )!7* days after
service of summons unless a di.erent period is f9ed by the court.
Sec. , Rule // ((ounter8claim and (ross8claim
A 'ounterMclaim or crossMclaim must be answered within ten )!6* days from service
Sec. ! Rule // (26ird8#art% (omplaint
The time to answer a third )fourth etc.* party complaint shall be governed by the
same rule as the answer to the complaint.
20
Sec. , Rule /5 ((omplaint in Inter)ention
The complaint of intervention shall be fled within ffteen )!7* days from notice of the
order admitting the same unless a di.erent period is f9ed by the court.
Sec. , Rule /! ('otion to *ismiss
(f the motion is denied the movant shall fle his answer within the balance of the
period prescribed by 2ule !! to which he was entitled at the time of serving his motion but not
less than fve )7* days in any event completed from his receipt of the notice of the denial. (f the
pleading is ordered to be amended he shall fle his answer within the period prescribed by 2ule !!
counted from service of the amended pleading unless the court provides a longer period.
(n a case of a bill of particulars where the motion was denied or where the motion is granted
when the bill of particulars was fled.
Q. What is the period to fle the answer?
A. Sec. " Rule /2 Cill of #articulars
+f the motion is granted, either in whole or in part, the compliance therewith must be
efected within ten :"D9 days from notice of the order, unless a diferent period is '#ed by the
court. The bill of particulars or a more de'nite statement ordered by the court may be 'led either
in a separate or in an amended pleading, sending a copy thereof on the adverse party.
Q. Where the defendant is a foreign corporation doing business in the 3hilippines. Within what
period must it fle its answer?
A. Sec. 2 Rule //
&here the defendant is a foreign private judicial entity and service of summons is made on
the government oEcial designated by law to receive the same, the answer shall be 'led within
thirty :CD9 days after receipt of summons by such entity.
Q. 'omplaint when should it be answered?
A. Within ffteen )!7* days from service of summons to the defendant.
Q. /ow about a counterMclaim within what period should it be answered?
A. Within ten )!6* days from service of the counterMclaim on the defendant with respect to the
counterMclaim. The defendant in a counterMclaim is the plainti..
Q. /ow about the crossMclaim?
A. 'rossMclaim must be answered within ten )!6* days from service of this crossMclaim to the
proper party answering is the crossMdefendant.
A thirdMparty complaint or a fourthMparty complaint or any complaint for that matter must be
answered within ffteen )!7* days from service of the summons.
'omplaint in intervention must be answered within ffteen )!7* days from receipt by the
defendants in intervention of the order admitting the complaintMin intervention.
(n a case of a complaint which was the sub-ect of a motion to dismiss which was denied. The
defendant has a period representing the balance of the original period he has.But in no event
should the period be less than fve )7* days.
(n the case of a bill of particulars the defendant whose motion for bill of particulars is
denied or where the bill of particulars was granted the period within which the defendant must fle
the answer would be the balance of the !7Mdays period within which he should have fled the
answer but in no event less than fve )7* days.
(n the case of the supplemental pleading the answer must be fled within ten )!6* days from
service of the notice admitting the supplemental pleading.
3leadings to be amended shall do so with liberality if the presentation of the merits of the
action and the ends of substantial -ustice will be subserved thereby. The court may grant the
continuance to enable the amendments to be made.
RENE NOTES:
+ !he granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court. !hey
may e2tend the time to file the pleadings but may not shorten them.
+ If the filing of an amended complaint is a matter of right, the 1/)day period to answer is counted from the service of the amended
complaint.
+ If the filing of an amended complaint is not a matter of right, then leave of court is required, hence, the 14)day period to answer runs from
notice of the court order granting the same.
26
+If no new answer is filed by the defendant in case an amendment has been made after he has filed his answer, the original answer of the
defendant may serve as the answer to the amended complaint and hence, cannot be declared in default.
Rule /2: Cill of #articulars
Q. What is the concept of Bill of 3articulars?
A. The complaint or a pleading may be vague or ambiguous. This being so the defendant may not
possibly be in a position to fle an answer. Before he fles the answer he has a remedy to secure
from the plainti. a clear allegation of the facts the defendant considers as vague.
Example:
This is an action fled by A against B for recovery of a lot. The allegation in the
complaint alleges that A is the owner of the lot in +'. Which he has always been in possession of
for a number of years until B e-ected him )A* therfrom.
Q. :ou are B do you ,now what is this lot in +'?
A. (n an action for recovery the identity of the property must be stated. 5o the owner itself
re0uires that the identity by its boundaries )technical description*. A should have described in his
complaint the boundaries area etc. of the lot in 0uestion.
(f you were B unless you ,now the description of this lot A is tal,ing about.
Q. 5o what are you allowed to do before you fle the answer?
A. :ou want that land to be identifed so you fle a motion to re0uire A to submit a bill of
particulars.
Q. What is the purpose in as,ing the court to order A to submit a bill of particulars?
A. :our purpose is to allow you to properly fle your answer because unless you ,now the lot A
tal,ing about you cannot possibly fle an intelligent answer. 5o the purpose therefore is to clarify an
ambiguity in order to answer the complaint intelligently.
Q. When may a motion for Bill of 3articulars be fled?
A. At any time within the period for the fling of the answer. (n this e9ample within the period of
the fling of the pleading B can fle a motion to re0uire A to submit a Bill of 3articulars.
Q. What is the e.ect of the fling of the motion for Bill of 3articulars on the running of the period of
the fling of the answer?
A. When a motion for Bill of 3articulars is fled the period for the fling of the answer is suspended.
Q. What does it starts to run again?
A. (t starts to run again when a motion for Bill of 3articulars is denied and the defendant received
a copy of the order of denial or it starts to run again when after the motion has been granted the
plainti. has fled a motion for Bill of 3articulars and the defendant receives a copy of the Bill of
3articulars.
Within what period should an answer be fled following the denial of the motion or following the
receipt of the Bill of 3articulars?
The rule says that4
The defendant is entitled to the balance of the period he was entitled to at the time
he fled the motion but in no event should the period be less than fve )7* days.
5o if for instance A fled the action against B. B received the summons on Aan. 2 !""". /e fled a
motion for a Bill of 3articulars on Aan. " !""" so that when he fled the motion for a bill of
particulars he already consumed seven )#* days of the original !7Mday period. 5o therefore he has
eight )C* days. (f B received on Aan. !6 !""" the order denying the motion or he received on this
day a copy of a bill of particulars submitted by A. B has eight)C* days counted from Aan. !6 !""".
Therefore his last day for the fling of the answer would be on Aan. !C !""".
%n the other hand if B fled a motion for a bill of particulars on Aan. !7 !""" and therefore
he has already consumed thirteen days of the original !7 days period conse0uently he has only
two )2* receiving days. When he received the order of denial on Aan. !6 !""" he received on this
day a copy of a bill of particulars he has still fve )7* day period until Aan. !7 !""" within which to
fle the answer.
Q. Why not Aan. !2 !""" because that is the balance to which he is entitled to at that time?
A. Because the rule says Ein no event shall the period be less than fve )7* days.F
Q. What are the sanctions against the failure of the plainti. to comply with the order of the court
directing him to fle a bill of particulars?
A. 5hould A be directed by the court to fle a bill of particulars he must do so within the period
f9ed in the order but in no event should the period be less than ten )!6* days.
5o if the court does not f9 the period within which A must fle the bill it is understood that
he has a !6Mday period. That period cannot be shortened it can be e9tended but never shortened.
27
The sanctions against the failure of a party plainti. to fle the bill of particulars when ordered
by the court is the court may order the stric,ing out of the pleading to which the motion for bill of
particulars refers. %r the court under 5ec. & 2ule !# may dismiss the action for failure to comply
with an order.
$nder the old rules a motion for a bill of particular was a litigated motion because
thereunder the court must set for hearing a motion for bill of particulars.
This is no longer the case. $nder the new rules the court can resolve the motion for a bill of
particulars e9 parte or with notice to the adverse party. This is why we have a provision that upon
the fling of a motion for bill of particulars the cler, of court should refer the motion immediately to
the court unless the court desires that that motion be heard with due notice with the adverse party.
RENE NOTES:
+ If the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of insufficient compliance thereof, the
answer may be stricken off the records and the defendant be declared in default upon the motion of the plaintiff.
Rule /": Ser)ice and 9ilin. of #leadin.s
+. Qive the desticntions between 5ervice and ?iling.
A. Sec. 2 Rule /"
Filing is the act of presenting the pleading or other paper to the cler, of court.
Service is the act of providing a party with a copy of the pleading or paper concerned. (f any
party has appeared by counsel service upon him shall be made upon his counsel or one of them
unless service upon the party himself is ordered by the court. Where one counsel appears for
several parties he shall only be entitled to one copy of any paper served upon him by the opposite
side.
9ilin. ('anner
!* personally to cler, of court
2* registered mail not ordinary mail
Example:
5uppose a pleading is fled by A25 K9press or 8B'
Aan. ! !""6 U the pleading was delivered to A25 K9press
Aan. !7 !""6 U A25 K9press delivered it to the court
The date it is considered fled is on Aan. !7 which is the date it is delivered and received by
the cler, of court and not on the date of deposit to A25 K9press.
Example:
A vs. B !* A resides in 5ulu B in Batanes. (n 5ulu there is no registered mail service then a
copy of the pleading can be served only by ordinary mail.
2* There is a registered service in 5ulu but there is none in Batanes. 5ervice can be e.ected
by ordinary mail.
&* There is a registered service in 5ulu and there is also a registered mail service in
Batanes service can be done only by registered mail
Q. -ow about 'nal order, judgment, resolution, how can they be served?
!* %nly by personal service and
2* By registered mail.
(t can never be done by ordinary mail.
Reason4 There is such a thing as a period of appeal or for the performance of some legal acts.
There must be a defnite starting point
Where the service is by ordinary mail there will be no defnite starting point for the period to
appeal or to that other legal acts. Why? There is no record.
But when it is a registered mail there is a record or whether it is a personal service there is a
record.
But in the case of ordinary mail there is none.
Q. Where a party wants to serve a copy of his pleading or other papers either by personal service
or by registered mail for that matter how can such pleading or other papers be served? ):ou cannot
serve it personally because let us say the oOce the adverse party is not ,nown his residence is
not ,nown he cannot be served by registered mail or by ordinary mail for the simple reason that
you do not ,now where he is. /ow can he be served?
The party serving must serve his pleading or other papers on the cler, of court by proving to
the cler, of court Efailure to serve personally or by mail.F
Example:
B fles a motion )this is litigated*. 5o he has to notify A of the motion because a litigated
motion cannot be resolved by the court unless there is proof of service of a copy thereof to the
28
adverse party. B cannot serve a copy of the motion to A because the oOce of A is not ,nown. /is
residence is not ,nown also. /e cannot be furnished by mail )registered or ordinary*. The hearing is
set on Dec. !6 !""C. 5o if B cannot prove that he served a copy of his motion to A the hearing on
Dec. !6 !""C cannot proceed because this is a litigated motion.
Q. What is the remedy available to B even if A was not personally served with the notice of the
motion this motion can be heard on Dec. !6 !""C?
A. All that B does is to serve a copy of his motion to the cler, of court. But of course B has to
prove that B could not serve it on AGs oOce or residence either personally or by mail registered or
ordinary.
This is a remedy which does not appear to be appreciated U by many lawyers.
The service on the cler, of court on that day it was served to him is e0uivalent to a service
of to B.
Ser)ice $% re.istered mail.
Q. When is service by registered mail deemed complete?
A.
Example4
A vs. B. A -udgment was rendered against B. A copy of that decision was sent to him
by registered mail on Dec. ! !""C. The postmaster sent to B on Dec. 7 !""C a notice to the e.ect
that this mail is pending in the post oOce. 5o B received it on Dec. 7. B withdrew this mail on Dec.
26 !""C. 5o within the ffteen )!7* days period for the fling of the notice on appeal B fled a
notice of appeal on Aan. ; !""". Aan. 7 !""" after receiving the copy of this notice of appeal of B A
now fled a motion to dismiss the appeal on the ground that it was fled late beyond the
reglementery period. A contented that under 2ule !& B is deemed to have received the copy of the
decision on Dec. 7 !""C. And since he has only a !7 day period from Dec. 7 !""C within which to
fle the notice of appeal this period e9pired on Dec. 26 !""C. Therefore when it was fled on Aan. 7
!""C !B days already passed.
%n the other hand B in opposing this motion of A argued that he )B* actually received from
the mail on Dec. 26 !""C the -udgment. Therefore B has a period of !7 days counted from Dec.
26 !""C within which to fle his notice of appeal and the last day of this !7Mday period is Aan. ;
!""". 5o the motion of A is not legally tenable.
Q. What would be the correct ruling on the motion of A?
A. Sec. /+ Rule /" Kmphasis on 8ast sentence
/ersonal service is complete upon actual delivery. 3ervice by ordinary mail is complete upon
the e#piration of ten :"D9 days after mailing, unless the court otherwise provides. 3ervice by
registered mail is complete upon receipt by the addressee, or after 've :;9 days from the date he
received the 'rst notice of the postmaster, whichever date is earlier.
B was deemed to have received it legally fve )7* days after Dec. 7 !""C although he
physically received it on Dec. 26 !""C.
?or purposes therefore of the appeal the !7Mday period is counted from Dec. !6 !""C not
on Dec. 26 !""C.
Q. What rule will apply if we now consider that he received it legally and physically on Dec. 26?
A. (f there was no notice from the postmaster that he has a pending mail per 5ec. !6 of 2ule !&
he has deemed to have receive it when he physically received it on Dec. 26 in which case the
appeal on Aan. ; was deemed complied.
5o in the absence of a notice given by a postmaster to the addressee the service is
deemed complete upon actual receipt but if there is a frst notice and the mail is not received
within fve )7* days from frst notice the service is deemed complete upon the e9piration of fve )7*
days from the frst notice.
#riorit% in t6e Ser)ice of #leadin.s F /ersonal 3ervice
3leadings and other papers should be served whenever practicable by personal service.
Where service other than personal is resorted to there must be an accompanying e9planation why
the pleading was served by means other than personal service.
Q. What will be the e.ect of failure to comply with 5ec. !! 2ule !&?
A. Sec. // Rule /"
&henever practicable, the service and 'ling of pleadings and other papers shall be done
personally. 7#cept with respect to papers emanating from the court.
When a pleading is served other than personal service and there is no accompanying
e9planation of this then this pleading is deemed not to have been fled.
4
This sec. !! 2ule !& is mandatory and this is e9emplifed in the case of 5olar Theme
Kntertainment (nc. vs. 'AN &266 August 7 !""C 2"6 5'2A B67. K.ective Aune ! !""" this rule
must be strictly followed.
5o whenever you serve you serve personally. (f you do not serve personally then you have
to state why you furnish by means other than personal service. An omission of this e9planation is
fatal because this pleading shall be considered as not having been fled.
RENE NOTES:
+ ;odes of 1ervice
A+ UDG3ENTS7 6INAL ORDERS AND RESOLUTIONS
Aa) @y personal service. or
Ab) @y service by mail.
Ac) @y service by publication, if party is summoned by publication and has
failed to appear in the action, ,udgment, final order or resolution.
) !hey can be served only under the three modes.
+ ) !hey 9A--$! be served by substituted service.
:+ PLEADINGS
1. personal service
Aa) >elivering personally a copy to the party or his counsel or.
Ab) :eaving a copy in counsel3s office with his clerk or with a person having
charge thereof or.
Ac) :eaving the copy between 7 a.m. and 0 p.m. at the party3s or counsel3s
residence, if known, with a person of sufficient age and discretion residing
therein < if no person found in his office, or if his office is unknown, or if he
has no office.
2. service by mail
Aa) If no registry service is available in the locality, of either sender or
addresses, service may be done by ordinary mail.
Ab) %ith proof of failure of both personal and service by mail.
Completeness o% ' Ser#!(e
1. Personal Service
) by handing a copy to defendant. or
) tendering him a copy if he refuses
) complete upon actual delivery
2. Service by ordinary mail:
9omplete upon e2piration of 14 days after mailing, unless the court provides
otherwise.
. Service by registered mail*
Aa) 9omplete upon actual receipt by the addressee. or
Ab) After / days from the date he received the first notice of the postmaster,
whichever date is earlier.
Proo% o% 6!l!n4
+ ?iling is proved by its e2istence in the record of the case. If it is not in the record, and*
) if filed personally* proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same. or
) if filed by registered mail* proved by <
Aa) the registry receipt and
Ab) !he affidavit of the person who did the mailing.
Proo% o% Ser#!(e
+ Croof of personal service*
Aa) %ritten admission of the party served. or
Ab) $fficial return of the server. or
Ac) Affidavit of the party serving
Rule /,: Summons
3ummons is the compulsory process issued by the court notifying the defendant that a case
been fled against him and re0uiring him to fle the answer within the period stated in the summons
with a warning that should he fail to answer within the reglementary period a -udgment may be
rendered against him on the basis of the evidence that the plainti. may advance.
Q. What is the purpose of summons?
A. !. 5ummons is intended to vest in the court the -urisdiction over the person of the defendant.
$nless a defendant is within the -urisdiction of the court the court cannot validly render a -udgment
in the case.
This is similar in the case of an accused who has not been arrested and has not been
arraigned. The court cannot render -udgment against on accused who has not been brought under
its -urisdiction.
The purpose of the summons therefore is to confer to the court -urisdiction over his
)defendant* person.
1
Aust to show you that the -urisdiction of a court to the person of the defendant is a must is
the fact that 5ec. ! 2ule !B includes in its enumeration grounds of a motion to dismiss the fact that
the court has not ac0uired -urisdiction over the person of the defendant.
5o when the court has no -urisdiction over the person of the defendant the court cannot
validly render -udgment.
Q. /ow is summons served?
A. 3ummons is served either by !* personal service4 2*by substituted service&* service by
publication or;* by any other means which the court fnds it proper.
There are four );* means4
#ersonal ser)ice U which is preferred.
Q. What does personal service consist?
A. (t consist of actually giving to the defendant a copy of the summons the complaint and all
other documents accompanying the complaint.
Q. 5upposing the defendant said EAyaw ,o ( will not receiveF the person serving it ,ic, it towards
the defendant is it served?
A. :es even though the defendant did not sign. Whether he signs or not in the ac,nowledgment
of his receipt of the summons heGs deemed to have already been served.
(f you cannot serve it to him personally because you cannot fnd him in the place where you
thought you could fnd him. Then you resort to a substituted service.
Q. (n what way may substituted service be e.ected?
A. The sheri. or process server must leave the summons the complaint and all the other
documents attached thereto with a person living in the house of the defendant.
Q. With any person?
A. 1o only a person of suOcient age and discretion.
Q. 5o the process server goes to the house of the defendant but does not fnd the defendant there
because he is out but fnds a neighbor who is visiting in that house and leaves the summons with
the visitor is there a valid substituted service?
A. 1o because that visitor is not a person living in that house.
:ou go the house of the defendant nobody is there. Then you go to his oOce if the
defendant is not there leave that summons with the person in charge of the oOce.
Q. What is the -urisprudence of substituted service?
A. 5ubstituted service is the interrogation of the rights of the defendant. Therefore substituted
service can be efected only when the defendant cannot be served personally within a reasonable
time.
Q. What time will it be reasonable?
5upposing the sheri. or process server went to the house of the defendant once and did not
fnd him there>
Q. What is re0uired of a sheri. or process server to do when he resorts to substituted service?
A. /e must state in his return of service a return of service is the report that the server sheri. or
process server renders to the court on what he did with that summons )or sheri.Gs returnM other
term for return of service*. The server whether he is the sheri. or the deputy sheri. or the process
server is re0uired to render a report on what he did.
Where the service is substituted the sheri. the process server or whoever was
commissioned to serve it must state in his report the following4
!. the impossibility of serving the summons personallyJ
2. the reason for such impossibilityJ
&. how the summons was e.ectedJ meaning therein the particulars such as the date of service on
whom it was served and how it was served.
$nless all this data appear on the return the substituted service is null.
Q. When may summons by publication be e.ected?
A. +n the following cases, summons by publication may be efected(
!. where the defendant is sued as an un,nown defendantJ
2. where the whereabouts of the defendant is un,nownJ they could not be ascertained
notwithstanding diligence in ascertaining such whereaboutsJ
&. when the defendant is a resident defendant but is temporarily out of the 3hilippinesJ
;. when the defendant is a nonMresident defendant and the actions against him be any of the
following4
a. an action which involves the personal status of the plainti.J
2
b. the sub-ect matter of the suit is real property
The reliefs prayed for respecting the real property are as follows4
!. to e9clude the defendant from any claim that he may have over that
propertyJ or
2. where the property is a property of the defendant and this property has
been attached.
Q. /ow may a nonMresident defendant be summoned when the case against him is any of the case
aboveMmentioned )action involving the civil status of the plainti. or an action involving real
property in the plainti.?
A. There are several ways of serving4
!. by personal service
This means to say that the court in the 3hilippines can send somebody abroad to serve
personally the summons.
2. by publication in a newspaper of general circulation for such period of time that the court
may deem proper. But in this case a copy of summons and the complaint and all the other
papers attached to the complaint must be sent by registered mail to the last ,nown address
of the defendant.
&. by any means that the court may fnd proper.
(n the Cariaga vs. ,alaya case the then Audge Antonio <alaya of '?( <anila ordered the
defendant residing in $5A summoned by registered mail. The defendants received the
registered summons. 5o they fle a motion to dismiss the complaint on the ground of lac, of
-urisdiction of the court over their persons. They argued that the summons e.ected then by
means of registered mail was not a valid summons. They contented in short that summons
cannot be served by registered mail.
5upreme 'ourt overruled this contention. 5upreme 'ourt holding that under 5ec. !7 of 2ule
!; service of a summons by registered mail is covered by the phrase Eany other means that
the court may fnd proper.F
(n the case of a foreign corporation doing business in the 3hilippines the period depends on
whom was the summons served.
(f the summons was served on its agent or representative in the 3hilippines the period is
ffteen days.
(f on the other hand the summons was served on a government oOcer the defendant has a
period of thirty )&6* days from receipt of the summons within which to fle an answer.
Where a defendant is summoned under 2ule !; under 5ec. !7 thereof the defendant has a
period of si9ty )B6* days from notice within which to fle the answer.
Sec. /5 Rule /,
&hen the defendant does not reside and is not found in the /hilippines and the action
afects the personal status of the plaintif or relates to, or the subject matter of which is,
property within the /hilippines, in which the defendant has or claims a lien or interest, actual or
contingent, or on which the relief demanded consists, wholly or in part, in e#cluding the
defendant from any interest therein, or the property of the defendant has been attached within
the /hilippines service may, by leave of court, be efected out of the /hilippines by personal
service as under section G; or by publication in a newspaper of a general circulation in such
places and for such time as the court may order, in which case, a copy of summons and order of
the court shall be sent by registered mail to the last %nown address of the defendant, or in any
other manner the court may deem suEcient. ny order granting such leave shall specify a
reasonable time, which shall not be less than si#ty :GD9 days after notice, within which the
defendant must answer.
RENE NOTES:
+ %here the defendant has already been served with summons on the original complaint, no further summons is required on the
amended complaint I? it does not introduce new causes of action.
+ @5! where the defendant was declared in default to 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.
+ Ser#!(e o% Summons on D!%%erent Ent!t!es
A. 1&('I9& $- &-!I!B
%I!#$5! D5(I>I9A:
C&(1$-A:I!B
) upon any or all defendants being sued under common name. or
) person in charge of office
@. 1&('I9& 5C$- ;I-$(1 ) serve personally and on guardian or any person e2ercising parental