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CIVIL PROCEDURE

[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

A-> I-9$;C&!&-!1 authority over him.


) in case of minors* by serving upon the minor, regardless of age, A-> upon
his legal guardian, or also upon either of his parents.
) In case of incompetents* by serving on him personally A-> upon his legal
guardian, but not upon his parents, unless when they are his legal guardians
) I- A-B &'&-!, if the minor or incompetent has no legal guardian, the
plaintiff must obtain the appointment of a guardian ad item for him.
9. 1&('I9& 5C$- C(I1$-&( ) 1erve an officer having management of the ,ail or prison
>. 1&('I9& 5C$- >$;&1!I9
C(I'A!& D5(I>I9A: &-!I!B
) !o the president, managing partner, general manager, corporate secretary,
treasurer or in)house counsel
) 1ervice upon a person other than those mentioned is invalid and does not
bind the corporation.
&. 1&('I9& 5C$- ?$(&I=-
C(I'A!& D5(I>I9A: &-!I!B
) 1erve on A1/) resident agent. or if none.
) =ov3t official A4) designated by law. or
) $n any officer or agent of the corporation within the Chilippines
?. 1&('I9& 5C$- C5@:I9
9$(C$(A!I$-1
) In case defendant is the (epublic of the Chilippines < by serving upon the
1olicitor =eneral
) In case of a province, city or municipality, or like public corporations < by
serving on its e2ecutive head, or on such other officer or officers as the law
or the court may direct.
=. &E!(A)!&((I!$(IA:
1&('I9&
1. Re$u!s!tes
a) defendant does not reside or is not found within the Chilippines
b) the action either*
+ affects the status of the plaintiff.
+ relates to or the sub,ect of which is property within the Chilippines on which
defendant has a lien or interest.
+ demands a relief which consists wholly or in part in e2cluding the defendant from
any interest in any property within the Chilippines.
+ property of defendant has been attached to the Chilippines
2. 3o"e o% Ser#!(e
a) with leave of court served outside the Chil. @y personal service. or
b) with leave of court served by publication in a newspaper of general circulation, in
which case copy of the summons and order of court must also be sent by registered
mail to the last known address of defendant. or
c) any other manner the court deem sufficient.
#. 1&('I9& 5C$- (&1I>&-!
!&;C$(A(I:B $5! $? !#&
C#I:ICCI-&1
1ubstituted service or with leave of court, personal service out of the Chilippines as
under e2traterritorial service.
+ %here the defendant is a resident and the action is personam, summons by publication is invalid as being violative of the due
process clause.
+ Any form of appearance in court, by the defendant, by his agent authoriFed to do so, or by attorney, is equivalent to service e2cept
%#&(& such appearance is precisely to ob,ect to the ,urisdiction o the court over the person of the defendant.
+ Inclusion in a motion to dismiss of other grounds aside from lack of ,urisdiction over the person of the defendant/ shall not bee
deemed a voluntary appearance.
Rule /5: 'otions
,otion is defned as an application for a relief not embodied in the pleading.
Q. What are pleadings?
A. They are the complaint counterclaim crossMclaim third party complaint complaint in
intervention or answer
Sec. / Rule /5
motion is an application for relief other than by a pleading.
Example:
A vs. B.
:ou have a complaint then an answer and after trial you have the -udgment or decision. The
relief prayed for by A is that a -udgment be rendered against B declaring A owner of the land
and ordering B to turn over to A the possession of the land ordering B to pay him damages.
(n so far as B is concerned the relief prayed for by B is the dismissal of the complaint of A. A
prayed that he )B* declared the owner of the land.
<ay either of the parties secures any relief other than a -udgment between the tie this case
is pending and times this case is decided.

A. :es in between the course of the proceedings there be many relief a party may prayed for
but not a -udgment.
There are many incidents while a case is pending incidents in connection with which a party
may want to secure a particular relief.
"
Example:
A vs. B.
After this complaint was fled on Aan. 2 !""" B now fles a motion to dismiss.
Q. What does B want as a relief?
A. Dismissal of the complaint.
Q. Will there be a trial on the merits of the case when this case will be dismissedL
A. 1one.
Example4
Trial is set. Kither A or B is not ready to go to the trial. 5o A or B wants the trial to be
cancelled. 5o that if the trial was set on Aan. 2; !""" either A or B will fle with the court a paper
as,ing therein that this date of hearing be cancelled.
5o whatever relief you want to obtain from the court before the -udgment you can obtain
that only by means of a motion. Why? Because you cannot incorporate in your complaint or
complaints in intervention this reliefs which will not constitute a -udgment on the merits of the case.
5o whatever you want to get from the court you get that through a pleading called motion.
That is why 5ec. ! 2ule !7 defnes a motion as an application for a relief not included in a pleading.
But if you want to obtain a -udgment on the merit you can prove that by means of a
complaint answer counterclaim etc.
Q. What are the %inds of motions?
A. There are two )2* ,inds of motion4
!. 1onM8itigated motion
2. 8itigated motion
A non.litigated motion is one which a court can act upon without hearing the adverse party
because the adverse party does not have the right to oppose application for relief and should the
court resolve this motion without hearing the adverse party is nevertheless not pre-udiced.
Example4 )8on.litigated ,otion9
B the defendant fles a motion for e9tension of time within which to fle the answer.
Q. Does A the plainti. have the right to resist this motion such that if he has this motion cannot
be heard unless he )A* be frst notifed.
A. A motion for e9tension of this is one which the court can resolve e9 parte.
<eaning without the presence of the adverse party. Why? Because even though the court
acts on the motion it will not in anyway pre-udice the right of A. 5o A may resist the motion. (t is
nonMlitigated. (t can be heard without notice of A.
Where however the motion is litigated the court cannot validly act on the motion without
the previous notice on the adverse party without giving the adverse party the opportunity to ob-ect
therein. Why? Because a litigated motion adversely a.ects the right of the adverse party.
'onse0uently unless the adverse party is notifed of the hearing of that motion the court cannot
hear it and if the court hears it the hearing is void.
Example: )6itigated ,otion*
A vs. B. B fles a motion to dismiss. The court resolves his motion to dismiss without a prior
notice given the plainti. A.
Q. (s the action of the court in resolving the motions without giving notice to A proper?
A. 1o because this is a litigated motion.
Q. Why is it litigated? What would be the e.ect if the court would now grant the motion to
dismiss?
A. The complaint will be dismissed even without being heard. This is not proper. The hearing
without notice of A the plainti. will pre-udice A. Why? Because had he been notifed and would
have ob-ected and his ob-ection may be considered by the court then therefore the motion to
dismiss may be denied.
5o we say that in a motion to dismiss A the plainti. has the right to be heard or to resist the
motion and unless the motion is heard in accordance with 2ule !7 the court cannot validly rule on
the motion.
When a party fles a motion for the admission of a pleading that party must attach to the
motion the pleading desired to be admitted.
Example4
/
A vs. B. B fles a motion to amend the complaint. The amendment not being a matter of
right so in this motion A should already attach the copy of the amended pleading. The advantage is
this the period for the fling of responsive pleading is shortened unli,e the old rule under the old
rule if a party wanted to fle a motion for the admission of an amended complaint he could fle the
amended complaint only after the court has already granted the motion. 5o there will be
considerable delay. $nder the new rule now no more if you want the pleading to be admitted
attach that to your motion.
motion must be set for hearing not later than ten :"D9 days from the date of its 'ling. 5o if
the motion is fled Dec. ! !""C the latest date this motion will be set for hearing is Dec. !! !""C.
(t could not be set Dec. !2 because it e9ceeds already. This is if you follow strictly the rule.
There is one e9ception however to this rule and that is a motion for summary -udgment.
$nder the rule on summary judgment the motion should be set for hearing in such a manner that a
ten !6Mday period must elapse between the services of the motion to the adverse party and the
date of the hearing. (n other words under the rule on summary procedure you cannot set your
motion for hearing earlier than ten days. (t must done so within !6 days.
RENE NOTES:
?!n"s o% 3ot!ons
a) !otion e" parte < made without the presence of a notification to the other party because the question generally presented is not
debatable
b) !otion of course < where the movant is entitled to relief or remedy sought as a matter of discretion on the part of the court
c# $itigated !otion < one made with notice to the adverse party to give an opportunity to oppose
d) %pecial motion < motion addressed to the discretion of the court
Gener'l Rule: A motion cannot pray for ,udgment
E,(ept!ons:
1. ;otion for ,udgment on the pleadings
2. ;otion for summary ,udgment
. ;otion for ,udgment on demurrer to evidence
Gener'l Rule:
3-day notice rule)service of the copy of motions should be made in such a manner as shall ensure its receipt at least three days before the
hearing
E,(ept!ons:
1. &2 parte motions
2. 5rgent motions
. ;otions agreed upon by the parties to be heard on shorter notice or ,ointly submitted by the parties
". ;otions for summary ,udgment which must be served at least ten days before its hearing
+ Any motion that does not comply with sections ", / and 0 of (ule 1/ is a mere scrap of paper, should not be accepted for filing, and if
filed, is not entitled to ,udicial cogniFance and does not affect any reglamentary period involved for the filing of the requisite pleading.
Rule /!: 'otion to *ismiss
Q. When should a motion to dismiss be fled?
A. At anytime within the period for pleading but before the answer has been fled.
<rounds of 'otion to *ismiss are speciDcall% mentioned on Sec. /
!. lac, of -urisdiction of the court over the person of the defendant
2. lac, of -urisdiction of the court over the sub-ect matter of the case
&. improper venue
;. lac, of legal capacity of the plainti. to sue
7. 8itis pendentia
B. e9tinction of claim by reason of payment abandonment waiver or any other ground of e9tinction
of the obligation
#. the claim is barred by statute of fraud or barred by res -udicata
C. the action is barred by prescription
". 1o cause of action
!6. failure to comply with certain conditions precedents
With respect to -urisdiction over the person of the defendant you ,now very well that
unless the court ac0uire -urisdiction over the person of the defendant the court cannot validly
render a -udgment.
There are two :@9 ways the court may ac$uire jurisdiction over the person of the defendant4
!. By the issuance of the summons and its valid service on the defendantJ
2. By the voluntary appearance of the defendant before the court.
With respect to voluntary appearances the voluntarines of the appearance may be
manifested by the fling of the pleading with which a party see,s a relief other than the dismissal of
the complaint based on lac, of -urisdiction of the court over the persons of the defendant.
0
Example:
A sued B. B was not summoned. $pon hearing however he was sued. 5o he fled in court a
motion for e9tension of time to fle the answer. The court granted the motionJ B did not fle the
answer. The plainti. now moves that B declared in default. B opposes the motion saying that the
court has not ac0uired -urisdiction over his erson because he was not summoned.
Q. (s the contention of B correct?
A. 1o because when B fled a motion for e9tension of time to fle the answer he prayed for a
relief and that is the e9tension of the time. By so fling the motion he voluntarily recogniIed the
-urisdiction of the court over his person.
Example:
B the defendant was not validly summoned. /e nevertheless fled a motion to dismiss on
the ground that the court has not ac0uired -urisdiction over his person. /e prayed for the dismissal
of the complaint. The motion was denied.
Q. (s B deemed to have voluntarily submitted himself to the -urisdiction of the court by fling this
motion to dismiss?
A. 1o because precisely he contested the -urisdiction of the court over his person.
8et us assume in this e9ample that B fles a motion to dismiss on several grounds the
foremost of these is that the court did not ac0uire -urisdiction over his person because no valid
summons was served on him. (n addition to this ground he also invo,e the following4
!* the venue is improperly laidJ
2* the facts alleged in the complaint do not constitute a cause of action.
Q. The motion was denied is B deemed to have submitted himself to the -urisdiction of the court?
A. 1o where the motion to dismiss is based on lac, of -urisdiction of the court over the person of
the defendant because he was not validly summoned but in addition to this ground he adds other
grounds the fling of the motion does not amount to a submission of himself to the -urisdiction of
the court.
*nder the old rule if a defendant fles a motion to dismiss on the ground that he was not
validly summoned and therefore the court has never ac0uired -urisdiction over his person and in
addition added other grounds such as improper venue or failure of the complaint to state the cause
of action he is deemed to have submitted himself to the -urisdiction of the court.
Q. What is meant by Elac, of -urisdiction of the court over sub-ect matter of the caseF?
A. Aurisdiction of the court over the sub-ect matter of the case simply means that the court has
under the law the authority to decide that particular case. Aurisdiction is conferred by law.
5ee B.3. Blg. !2" The Audiciary 2eorganiIation Act of !"C6 as amended.
5ec. !" Knumerates the cases triable by 2T'
5ec. && Knumerates the cases triable by inferior court
Where therefore a court tries a case which is not among those enumerated under the law as
within the competence to try we say that the court has no -urisdiction over the sub-ect matter and
therefore that is a ground to dismiss.
Example:
$nder B.3. !2" 5ec. && as well as under 2ule !# and under the 2ule on 5ummary 3rocedure
an action for forcible entry and detains is triable e9clusively by the <T'.
A sued B for forcible entry. /e fles this in the 2T'.
Q. (s B here within his rights to fle a motion to dismiss based on the ground of lac, of -urisdiction
of the court to try the case?
A. yes
Q. A vs. B fled a suit for declaration of nullity of marriage. This was fled in the <T'. But an action
for declaration of nullity of marriage is one triable by the 2T'. B now can fle a motion to dismiss.
A. :es
Q. <ay there be a situation when a court does not have -urisdiction over the sub-ect matter of the
case and yet the court can validly try and decide the case?
A. :es there is such a thing as Eestoppel by laches in jurisdiction).
When does the court not have -urisdiction but it can decide validly the case.
This is best illustrated in the case of Tijam vs. 3ibunghanay. This case A suit was fled by A
against B in '?( of <anila to recover an amount. The amount sought to recover was one within the
-urisdiction of the <T' but the parties went to trial. 1o one raised the 0uestion of lac, of
-urisdiction of the court. 5o the case was decided in favor of A. The -udgment became fnal. The
6
-udgment sought to be against ' was acted as surety of B. ' resisted the action. /e went to trial
never raising the 0uestion of lac, of -urisdiction of then '?( of <anila. ' allowed the case to be tried
as against him to enforce his liability as a surety of B. ' elevated the matter to the 'A. 'A aOrmed
the -udgment of '?( against '. ' fled a motion for reconsideration. DeniedR (t was only thereafter
that he now fles a motion 0uestioning the -urisdiction of the court to decide the case. 2eason4 '?(
of <anila did not have -urisdiction to render a -udgment because the sub-ect matter was within the
-urisdiction of the <T' not the '?(. Therefore ' argued that -urisdiction can be raised at anytime on
appeal. 'A denied. The matter reaches the 5'. (ssue4 Whether the -udgment of '?( aOrmed by 'A
is valid?
5' ruled that the -udgment is valid. 2eason4 While it is true '?( has no -urisdiction to try the
case the parties went to trial without raising the 0uestion of -urisdiction and because of the long
passage of time between the rendition of the -udgment and the time the motion 0uestioning the
lac, of -urisdiction was raised was already too long. ' is estopped already to 0uestion the lac, of
-urisdiction of the '?(.
(n another case -udgment was rendered by the trial court. The amount involved is more
than 3266666. B appealed to 'A. A the prevailing party went to 'A have this appeal litigated. At
the time of the appeal -urisdiction over cases involving more than 3266666. is lodged with 5'. A
now contented that the appeal of B would not be entertained by 'A for lac, of -urisdiction of 'A.
5' ruled that because of the doctrine of estopped by laches A by agreeing that that this
appeal be litigated in 'A is estopped to 0uestion the appellate -urisdiction of 'A.
/ere is now the motion to dismiss by B fled in this case of A. B here is the movant.
Q. What are the re0uirements?
A. All the grounds enumerated under 2ule !B as grounds for motion to dismiss must be averred in
the motion to dismiss. %n the strength of the omnibus motion rule.
5o if you have fve )7*you must allege all of them because if you do not allege all the
others already available but not raised are deemed waived. 5o if you have fve )7* grounds and you
raised only three )&* the remaining two )2* are deemed waived. Therefore they cannot be
proceeded after the motion is fled.
%f course A has a right to oppose. /e can fle his opposition. The trial of the motion to dismiss
may re0uire the presentation of the evidence of the movant. 5o B may present his evidence to
support his motion. A may also adduce his evidence. Therefore the court will resolve the case. The
court may either order the amendment of the complaint or dismiss the complaint. (f he dismisses it
means it grants the motion to dismiss. (t cannot defer ruling on a motion to dismiss on the ground
of the motion is not indubitable.
*nder the old rules the court could defer ruling on a motion to dismiss of the ground that the
basis therefore is not indubitable.
This is not now. The court must ta,e positive stand to order amendment grant the motion or
deny the motion.
8et us assume however that instead of fling a motion to dismiss the defendant fles an
answer.
Q. What is the defendant allowed to do if he fles an answer with respect to the grounds of a
motion to dismiss?
A. The rule is the defendant may allege in his answer as defenses all the grounds of a motion to
dismiss.
(n our e9ample B instead of fling a motion to dismiss he fled an answer. (f in the answer he
alleges as defenses the grounds for a motion to dismiss for instance improper venue or lac, of
legal capacity.
Q. 'an B prove this ground alleged in his defenses even before A presented evidence?
A. $nder 2ule &6 on Trial it is the plainti. who starts presenting the evidence. (t is not the
defendant. $nless for some valid reasons the court may order the trial to be reversed.
Q. But in this case without reverse order of trial under 2ule &6 may B be allowed to prove his
defenses even before A has proven his case?
A. :es.
B after fling the answer he may now fle a motion for a preliminary hearing on the
defenses. (t is as if he fled a motion to dismiss. (f the motion for preliminary hearing the evidence
of A can now receive the evidence of B with respect to those defenses.
/owever the court will grant the motion for a preliminary hearing on the defenses is a
matter of discretion on the part of the court. (t is not a right of the defendant. (t is a matter
governed by the discretion of the court. Therefore the court can grant the motion and in this case
it will receive evidence on the defenses or it may deny hearing.
7
5upposing the motion to dismiss was heard during which the parties presented their evidence
and the motion to dismiss is denied.
Q. What is the e.ect of the denial on the evidence of the parties adduced during the hearing of
the motion?
?or instance during the hearing of the motion B presented H : and @ and A presented ' D
and K the motion to dismiss was denied. What becomes now the testimony of H : and @ ' D and
K?
The rule is their testimonies will be deemed reproduced automatically during the trial on the
merits of the case.
8et us assume in this e9ample the court have the defenses founded to be established the
case will dismissed even without A having presented his evidence.
8et us suppose that in the answer B pleaded a counterclaim against A.
Q. What becomes the counterclaim with the dismissal of the complaint of A?
A. Where a complaint is dismissed the counterclaim is automatically dismissed. %n the theory
that a counterclaim derives its life from the complaint. This means if the complaint no longer e9ist
there is no longer any legal basis which a counterclaim is supposed to stand. This is the old rule.
The new rule now iswhere the defendant alleged as defenses in his answer grounds for a
motion to dismiss is granted , the counterclaim pleaded in the answer is not dismissed. The
dismissal is limited to the complaint. This means therefore that, even though there is no longer any
complaint, which will serve as the basis of a counterclaim, the counterclaim survives the dismissal.
Q. (f the counterclaim can subsist in what proceeding can it be prosecuted considering that the
main case is already been dismissed?
A. DonGt worry because the law has given the defendant two )2* options4
!. he can move the counterclaim be litigated in the same caseJ or
2. B may fle an independent civil case based on that counterclaim.
Q. (f the motion to dismiss is granted can the plainti. reMfle the case?
5upposing the complaint was dismissed on the ground of improper venue the complaint does
not state the facts constituting a cause of action.
Q. 'an the case be reMfled?
A. The rule is depending on the ground of the motion to 0uash that where the dismissal of
complaint arising from a grant of a motion to dismiss may bar the reMfling of that case in the
following cases4
!. res -udicata
2. unenforceability of the contract to the bond based on the 5tatute of frauds
&. the claim has been paid abandoned or waived or otherwise e9tinguished
;. 3rescription
(n all these cases the order of dismissal is res -udicata. (t becomes fnal. The action cannot
be revived.
%n the other hand if the ground of the motion to dismiss is other than any of these grounds
already mentioned the order dismissing is not res -udicata therefore the same complaint may be
reMfled.
Q. When the motion to dismiss has been denied within what period should the defendant fled the
answer?
A. $nder the old rule the defendant was given anew !7 days from receipt of the order denying
the motion to dismiss. (n other words he was given a new period of !7 days.
This is not the rule now. $nder the new rules he shall be granted a period representing the
balance of the period following the EserviceF of the motion. :ou no longer count the period from the
day you fled the motion to dismiss. :ou count now the period from the date the motion to dismiss
was served. )Audge 8agui was wondering whether this could have been an error. This word EserviceF
could have been meant EflingF because it is the usual period. 8oo, at 2ule !2 when motion of a Bill
of 3articulars is denied and that the defendant is to answer the remaining period is counted from
the balance of the pleadings counted from the day he EfledF the moiton.
Loo= at Sec. , Rule /!
+f the motion is denied, the movant shall 'le his answer within the balance of the period
prescribed by Rule "" to which he was entitled at the time of Hserving) his motion, but not less
than 've :;9 days in any event, computed from his receipt of the notice of the denial. +f the
8
pleading is ordered to be amended, he shall 'le his answer within the period prescribed by Rule ""
counted from service of the amended pleading, unless the court provides a longer period.
Would not this word EservingF meant EflingF. (f we apply literally this provision the situation
would be li,e this>
Example:
A vs. B.
B was summoned Dec. C !""C. $nder 2ule !! 5ec. ! B has a period ending Dec. 2& !""C
within which to fle the answer. /e )B* fled his motion to dismiss on Dec. !7 !""C but served a
copy of that motion on A on Dec. !# !""C. The motion to dismiss was denied in an order dated Aan.
!6 !""". B served this order on Aan. !7 !""".
Q. 5o within what period should B fle the answer?
A. (f you apply 2ule !B 5ec. ; you count the period from Dec. !# !""C. 5o if that is the case he
would have only B days counted from Aan. !7 !""" so the end would be on Aan. 2! !""". But if
youGre counting on the date of fling of the motion he had eight )C* days. 5o C days would give you
until Aan. 2& !""".
)Audge 8aggui is still wondering up to this very moment you are reading this note whether this word
EservingF would have been an error. (t could have meant EflingF because the usual counting of the
period starts from the date of fling not the date of serving. All other provision of the 2ules ma,e
the EflingF the basis not EservingF. This is only the provision which ma,es the starting point Ethe
date of serviceF.
But we have to follow because there is no reason why we should not follow.*
But in all events irrespective of the number of days left the minimum is fve )7*.
5o that in our e9ample if we apply this rule he )B* furnished a copy on A Dec. 2& !""C
there was no day anymore left of the original !7Mday period. 5o when he received the order of
denial on Aan. !7 !""" he )B* can still fle the answer within fve )7* days from Aan. !7 !""" or on
Aan. 26 !""".
Where the evidence of the parties is received in support of the motion to dismiss andLor
support of the position to the motion and the motion is denied and the trial should thereafter
proceed.
Q. What now becomes of the evidence received during the hearing?
A. Kvidence will be automatically reproduced as evidence of the parties during the trial of the
merits of the case.
That means to say therefore H : and @ who testifed on the motion to dismiss when court
decides the case on the merits the court can consider the testimonies of H : and @ even though H
: and @ no longer appear during the trial on the merits of the case.
RENE NOTES:
3OTION TO DIS3ISS UNDER RULE )@ 3OTION TO DIS3ISS UNDER RULE AA <"emurrer to
e#!"en(e*
+ grounded on preliminary ob,ections + based on insufficiency of evidence.
+ may be filed by any defending party against whom a claim is
asserted in the action.
+ may be filed only by the defendant against the complaint of
the plaintiff.
+ should be filed within the time for but prior to the filing of
the answer of the defending party to the pleading asserting the
claim against him.
+ may be filed only after the plaintiff has completed the
presentation of his evidence.
E%%e(t o% mot!on to "!sm!ss:
) A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint.
#owever, such admission is limited only to all material and relevant facts which are well pleaded in the complaint.
+ An action cannot be dismissed on the ground that the complaint is vague or indefinite. !he remedy of the defendant is to move for a bill
of particulars or avail of the proper mode of discovery.
E66ECTS O6 ACTION O6 3TD RE3ED8
1. $(>&( =(A-!I-= motion to dismiss is a final order 1. appeal from the order of dismissal
2. $(>&( >&-BI-= the motion to dismiss is interlocutory 2. certiorari and prohibition if there is grave abuse of discretion
amounting to lack or e2cess of ,urisdiction
Rule /1: *ismissal of Actions
Q. What are the situations covered by 5ec. ! 2 & and ;?
A. The situations covered by 2ule !# are dismissal of a complaint or a counterclaim or a crossM
claim or of a complaint in intervention or of a thirdMparty complaint.
Sec. / contemplates a situation where the plainti. initiates the dismissal of the action.
"4
Sec. 2 covers the situation where the plainti. still initiates the dismissal of the action which is
di.erent whereas under 5ec. ! he can dismiss as a matter of right without court authority. (n 5ec.
2 he cannot dismiss without court authority.
In Sec. " it is a dismissal of the action of the plainti. either at the instance of the defendant or at
the instance of the court.
In Sec. , it is the dismissal of the counterclaim or crossMclaim.
Q. /ow does 5ec. ! operate?
A. There are two )2* situations covered4
The rule says that anytime before an answer or a motion for summary judgment has been
served on the plaintif, the plaintif may dismiss his action by 'ling a notice of dismissal.
Q. What is the e.ect of this notice of dismissal?
A. The notice of dismissal produces a dismissal without pre-udice. This means that plainti. can reM
fle the case.
Q. When can he not reMfle the case by reason by his having fled a motion of dismissal?
A. When in his notice of dismissal he started that the dismissal is with pre-udice.
/owever the rule says where the plainti. has fled a notice of dismissal but he previously
fled a notice of dismissal. This means to say that he fled a notice of dismissal for the second time.
Q. What does the rule say?
A. The dismissal fled for the second time produces a dismissal with pre-udice. (t means to say
that where the complaint is dismissed for the second time because of a notice of dismissal fled the
second time the dismissal is with pre-udice. This means to say therefore that the plainti. cannot reM
fle the action for the third time.(25: *IS'ISSAL RULE
Q. What is the action that the court must ta,e when a notice of dismissal is fled? Will it order the
dismissal of the complaint?
A. 1o. All that it does is to issue an order confrming the fact that the plainti. dismissed the
complaint.
$nder the old rules the court was not re0uired to do anything upon the fling of the notice of
dismissal. Why? Because the fling of the notice of dismissal automatically dismisses the complaint.
And so if you did not ,now 2ule !# and you went over the record of the case where a notice of
dismissal was fled you would not ,now what is the status of the case.
But in this innovation now re0uiring the court to issue an order confrming the dismissal. A
person goes over the record will now ,now what happened with his case. Because with that
confrmation it would now be clear that the case was dismissed.
Example:
Dec. ! !""# A fled an action against B who was summoned Dec. 7 !""#. $nder 5ec. !
2ule !! B has until Dec. 26 !""# within which to fle the answer. 8et us assume that B fled the
answer on Dec. !7 !""#. /owever on Dec. !B !""# A fled a notice of dismissal.
Q. 'ould A fle his notice of dismissal on Dec. !B considering that the answer was fled on Dec. !7?
A. :es because it )answer* was not yet served. (t was served only on Dec. !#.
Q. What is the e.ect of this dismissal of A?
A. (t is a dismissal without pre-udice e9cept when the notice of dismissal stated that it is with
pre-udice.
Q. %n Dec. !B when the notice of dismissal was fled what happened now with the complaint fled
on Dec. !?
A. (t is automatically dismissed.
Q. Does the court have to the order the dismissal?
A. 1o. All that the court has to do is to confrm the dismissal. But there will be no legal ob-ection if
the court issues an order not only confrming the dismissal but also an order of dismissal. (t is
unnecessary.
Dec. 26 !""# A reMfled the same case. B was summoned on Aan. !6 !""C. B now fled the
answer Aan. 26 !""C. B has a period until Aan. 27 !""C. /owever B served on A a copy of the
answer on Aan. 27 !""C. %n Aan. 22 !""C A fled the second notice of dismissal.
Q. What is the e.ect of the second notice of dismissal?
A. (t is a dismissal with pre-udice.
"1
Q. 5upposing in the notice of dismissal fled on Aan. 22 A said it is with pre-udice will the resulting
dismissal be also without pre-udice?
A. 1% because it is not for the plainti. to characteriIe the e.ect of the dismissal as provided by
law.
Q. Why is the dismissal with pre-udice now?
A. Because 5ec. ! says, a dismissal produces a dismissal with prejudice if 'led by a person who
previously 'led a notice of dismissal.
This is now a dismissal with pre-udice regardless of what A stated in the notice of dismissal.
Q. 5upposing the court issued the order saying that the dismissal is without pre-udice is that
order valid?
A. 1o because the court cannot characteriIe the e.ect of the second dismissal. The law provides
the e.ect. (t is always a dismissal with pre-udice.
<arch !6 !""C A fled a case against B. B now fles a motion to dismiss on the ground of
res -udicata. /e now says Ethis third complaint is barred by res -udicata. The second dismissal
produced by the fling on Aan. 22 !""C is a dismissal with pre-udice.
Q. (s the contention of B correct?
A. :es. This must be now dismissed because this is barred by the second dismissal.
This section embodies the soMcalled E20o *ismissal RuleF.
Sec. 2 Rule /1 is still a dismissal at the instance of the plainti. however its dismissal is no
longer a matter of right. (f ever any dismissal is granted it must be on application of the plainti.
and upon approval of the court.
Q. When may a plainti. dismiss his action with leave of court?
A. After a responsive pleading have already been served on the plainti. or after a motion for
summary -udgment has already been served on the plainti.. /e can no longer dismiss as a matter
of right. /e can dismiss it only upon application of the plainti. and upon approval by the court of
the motion.
But the dismissal under 5ec. 2 2ule !# even if granted by the court maybe sub-ect to
certain conditions that the court may impose.
Q. What is the e.ect of the dismissal under 5ec. 2 2ule !#?
A. (t is still a dismissal without pre-udice unless the court provides otherwise.
Q. 5hould a compulsory counterMclaim be pleaded in the answer what would be the e.ect of the
dismissal under 5ec. 2 2ule !# on the counterclaim?
A. The counterclaim is not dismissed.
Q. (n what proceeding may it therefore be prosecuted?
A. (t may be prosecuted in the same case provided that within !7 days from receipt of motion to
dismiss the plainti. manifest to the court that he desires that the counterclaim be litigated in the
same case otherwise the counterclaim maybe litigated in a separate action.
Example:
Q. B either serve on A his answer or his motion for summary -udgment on Dec. !6 !""C. %n
Dec. !7 !""C A now fles a motion of dismissal without leave of court. 'an he validly do that?
A. 1o.
Q. But can he still fle it?
A. :es but with a proper motion that he be allowed to dismiss. That motion maybe granted by the
court. (f the court grants it the court may impose a condition for the dismissal.
Q. Why is it no longer a matter of right on the part of the plainti. to fle a notice of dismissal after
he has been served the answer or a motion for summary -udgment?
A. Where B has a counterclaim B has a right to have that counterclaim be litigated and resolved.
5o if he )B* ob-ects the court may grant the motion but sub-ect now to the dismissal of the action.
Q. What would be the e.ect of a motion of A to dismiss his complaint?
A. (f the motion is granted on the counterclaim the dismissal of the action is limited to the
complaint. The counterclaim is una.ected. B therefore can litigate the counterclaim either in the
same case or B may fle in a separate action to enforce the counterclaim.
Q. When may B prosecute his counterclaim in the same case?
"2
A. (f within !7 days from receiving the notice of dismissal he manifests to the court that he
desires that his counterclaim be litigated in the same case otherwise the counterclaim must be
litigated in a separate action.
This 5ec. 2 2ule !# with respect to the e.ect of the dismissal on the counterclaim traces its
rules to the case of B.. <inance vs. C
<acts(
A the corporation sued B. %n preMtrial A failed to appear. %n motion of B A was declared
nonMsuited and the complaint dismissed. After the dismissal of the complaint B now moved that a
date is set on the reception of his evidence on the counterclaim. )<otion for /earing on the
'ounterclaim*
A opposed the motion on the ground that under the rules and -urisprudence then obtaining
the dismissal of the complaint carries with it automatically the dismissal of the counterclaim. The
theory being that a compulsory counterclaim derives its life from the complaint. (f the complaint
therefore no longer e9ist there is no longer any basis for the counterclaim to subsist. The 2T'
sustained the opposition applying the rule then. B now elevated the matter to 'A 0uestioning the
order of the 2T'. 'A ruled that the order was wrong. <eaning in substance that the dismissal of the
complaint of A and B could no longer litigate and prove his counterclaim. 5o the dilemma cause by
this ruling is this> What then would be the remedy of a defendant with respect to his counterclaim
if the complaint is dismissed? There can be no way by which the defendantMcounterclaimant can
prosecute his counterclaim. This was an obiter dictum. )This is not the ruling of the court itGs a side
issue.*
Iustice Bellosillo the ponente suggested this remedy. Where the complaint is dismissed and
the defendant has a counterclaim this should be the procedure to be adopted by the defendant. 5o
that he can prosecute his counterclaim.
5imply that the plainti. be declared EnonMsuited.F
Q. What is the e.ect of a nonMsuit?
A. The plainti. cannot prove his complaint. But the complaint subsists. (t is there but it cannot be
proven.
Do not move for the dismissal of the complaint.
Q. What ne9t should be done by B following the declaration of nonMsuit of the plainti.?
A. /e should now move that A the plainti. be declared as in default with respect to the
counterclaim.
$nder the old rule then )5ec. 2 2ule 26* the failure of a defendant to appear for a preMtrial
may be a ground to declare him as in default with respect to the counterclaim. 5o the defendant
with respect to the counterclaim is A. 5ince A did not appear for the preMtrial he may now be
considered as having failed to appear for the preMtrial on the counterclaim. What B should do here is
to move that A be declared as in default with respect to the counterclaim.
(f A now be declared as in default with respect to the counterclaim the ne9t move of B now
is to prove with his evidence his counterclaim. Why? Because A is merely nonMsuited the complaint
is there it is not dismissed. A cannot only prove it but it is there. 5o with the complaint still
subsisting although it can no longer be proven there would still be a basis for the counterclaim.
This is the basis of this rule now that the dismissal under 5ec. 2 2ule !# of the complaint
does not operate as a dismissal without pre-udice unless either the plainti. manifest in his motion
that the dismissal be with pre-udice or that the court orders that the dismissal is with pre-udice.
When you say Ewith pre-udiceF it means that the complaint cannot be received or reMfled.
This is the concept of dismissal under 5ec. 2 2ule !#.
Q. What is the dismissal under Sec. " Rule /17
A. This time the dismissal is no longer at the instance of the plainti.. (t is now at the instance
either of the defendant or of the court itself.
There are three (3 grounds for a dismissal under Sec. 3 !ule "#$
!. the failure of the plainti. to appear for hearing on a day during which he is supposed to
present his evidence in chief on his complaintJ
2. the failure of the plainti. to prosecute for an unreasonably period of time his actionJ
&. the failure of the plainti. to comply with this 2ules or with the order of the court.
Q. What is the nature of dismissal under this case?
A. A dismissal under 5ec.& 2ule !# is a dismissal with pre-udice unless the court provides
otherwise.
When the dismissal order is not 0ualifed it simply says that the complaint be dismissed
pursuant to 5ec. & 2ule !# the dismissal is with pre-udice.
Ta,e note that the absence of the plainti. for a hearing is not in itself a ground for a
dismissal under 5ec. & 2ule !#. (t is an absence during the hearing during which he is supposed to
"
present his evidence in chief on his complaint. /is absence on any other hearing is not a ground for
dismissal under 5ec. & 2ule !#.
Example4
?ollowing the preMtrial the case was set for hearing on Dec. !6 !""C. A received the notice
of hearing. %n this day )Dec. !6* he is supposed to present his evidence in chief meaning his
initial evidence on his complaint. /e does not appear for the hearing on this day without valid
reason.
$nder 5ec. & 2ule !# the court can dismiss the action of A or on motion of B the court may
dismiss the action.
Q. 5upposing on the hearing on Dec. !6 !""C is for the reception of evidence of B or the
reception of the rebuttal evidence of A but A was not present on this day may the complaint of A
be dismissed under 5ec. & 2ule !#?
A. 1oJ for the simple reason that it was no longer his turn to present the evidence in chief on this
day. (t was the turn of B. The complaint cannot be dismissed because this situation presupposes
that A already presented his main evidence or his evidence in chief or part of his evidence in chief.
Because let us assume that A did not fnish his presentation of his initial evidence in chief.
5ubse0uently he was absent and the motion of the defendant the court ordered that the
presentation of the evidences of the plainti. so he was unable to complete but he had partially
produced his evidence.
Q. 'an the action now be dismissed?
A. 1o.
5upposing on Dec. !6 !""C A was supposed to present his rebuttal evidence but he did not
appear.
Q. <ay his action now be dismissed?
A. 1o because his absence amounts merely to a waiver of the presentation of his rebuttal
evidence. /e already produced his evidence in chief which will be the basis of that -udgment
The failure of plaintif to prosecute for an unreasonably long period of time.
2emember that under 2ule !C after the last pleading has already been fled it is the duty of
the plainti. to move e9 parte for a preMtrial to be held. (t is no longer the duty of the cler, of court
under the new rules to set the case for preMtrial. (t is now the duty of the plainti. to see to it that
after the last pleading has been fled a preMtrial be held.
(f the plainti. does not move to set for preMtrial case following the fling and service of the
last pleading and the intervening period between the fling and service of the last pleading and the
inaction of the plainti. and in the view of the court unreasonable then the court motu proprio may
dismiss the action or on motion of the defendant the action may be dismissed. %r a trial has been
set following a preMtrial but the trial on the merits is postponed no f9ed date was set in the order
of the court A simply waits for the court to set the case for hearing. /e does not reset it but still
remain unconcern the action may be dismissed.
Q. /ow long a period of time should elapse following the fling of the complaint in order that the
inaction of the plainti. to prosecute it may be considered an inaction for an unreasonably long
period of time?
A. There is no f9 period considered as reasonable. Kach case must have to be determined
according to the peculiar circumstances of the case.
5o in some cases of an inaction for a year would be unreasonable. There is no f9 period. (t
depends upon the appreciation of the court according to its peculiar circumstances.
The failure of the plaintif to comply with the rules :Rules of Court9 and with the order of the
court.
:ou donGt realiIe how potent a weapon is this in the hands of the court because orders are
meant to be carried out or to be implemented. They are commands from the court and therefore
should not be ta,en lightly.
Q. 5o what are the penalties?
A. Ta,e for instance this actionable documents. $nder the rule where an action or defense is
placed in an actionable document a copy of that document must always be attached to the
pleading or the te9t of the document should be 0uoted verbatim in the pleading without the
necessity of attaching to the pleading a copy thereof or an action based on an actionable
documents.
When there is no compliance with this rule such that neither is the te9t of the document
0uoted in the pleading nor a copy of the document is attached to the pleading this is a plain
violation of the rule on actionable documents.
""
5o under 5ec. & of 2ule !# this failure of the plainti. to comply with the order of the court
may give rise to dismissal. Ta,e note however that the order referred to it must be a lawful order.
%ne that is authoriIed by the 2ules.
But this is not a re0uirement.
RENE NOTES*
T/o D!sm!ss'l Rule
+ !he second notice of dismissal operates as an ad,udication on the merits, when filed by a plaintiff who has once dismissed in a competent
court an action based on or including the same claim
) also applicable to special proceedings
+ !he court is not required to issue an order of dismissal but is required only to issue an order confirming the fact that the plaintiff
dismissed the complaint.
2W1en #olunt'ry "!sm!ss'l 'ppl!('5le:
1. @efore a responsive pleading is served
2. @efore a motion of summary ,udgment is served
. If none, before introduction of evidence at trial or hearing
SECTION ; SECTION A
1. dismissal is at the instance of the plaintiff. 1. dismissal is not procured by plaintiff though ,ustified by
causes imputable to him.
2. dismissal is a matter of procedure, without pre,udice unless
otherwise stated in the order of the court or on plaintiff3s
motion to dismiss his own complaint.
2. dismissal is a matter of evidence, an ad,udication on the
merits.
. dismissal is without pre,udice to the right of the defendant to
prosecute his counterclaim in a separate action unless 1/ days
from notice of the motion he manifests his intention to have his
counterclaim resolved in the same action.
. dismissal is without pre,udice to the right of the defendant to
prosecute his counterclaim on the same or separate action.
RULE />: #RE82RIAL
Example:
A B ' D
!. 'omplaint !. Answer to AGs
complaint
!. Answer to AGs
complaint
!. Answer to BGs third
party complaint
2. 'ounterclaim
against A
2. 'ounterclaim
against A
2. Answer to 'Gs third
party complaint
&. 'rossMclaim
against '
&. Answer to BGs
crossMclaim
&. 'ounterclaim
against B
;. Third party against
D
)After these the pleadings are fled.*
2. Answer to
counterclaim of B
7. 2eply to AGs
answer to
counterclaim
7. 2eply to AGs
answer to
counterclaim
;. 2eply to the
answer of the
counterclaim
&. Answer to 'Gs
counterclaim
B. 2eply to 'Gs
answer to crossM
claim
B. Answer to BGs
crossMclaim
#. Answer to
counterclaim of D
Q. (s there any other pleading re0uired to be fled after these pleadings have been fled?
A. 1one. 5o the case is now ready for preMtrial.
Q. 5upposing the last pleadings re0uired are not fled with the period of fling thereof already
e9pired may the preMtrial be held?
A. :es. The rule is this preMtrial may be held upon the fling of the last pleading without the last
pleading having been fled.
Where the last pleading has not yet been fled and the period for fling thereof does not yet
e9pire preMtrial is premature.
Q. What things shall be considered in preMtrial?
A. They are specifed in the rules.
$nder the 5ld Rule it was the duty of the 'ler, of 'ourt to set the case for preMtrial upon the
fling of the last pleading or the e9piration of the period for the fling thereof. This rule is no longer
obtains.
The rule now is the duty to move that the pre.trial be set, is now lodged with the plaintif.
Q. What are the things to be considered during the preMtrial?
A. There is a enumeration in the 'ode. 5ubstantially they are as follows4
to consider the possibility of a settlement of the caseJ
"/
to consider the possibility of stipulations of facts to be arrived atJ
the possibility of the rendition of a -udgment on the pleading or of a summary
-udgment
the limitation of the issuesJ
the mar,ing of the e9hibitsJ
stipulations of as to waiver of ob-ections to documentary e9hibits that may be
presentedJ
and all other matters that may lead to speedy disposition of the case.
The preliminary purpose of pre.trial is to terminate as soon as possible a case so that if a
case can be settled during the preMtrial so much the better but there is no such settlement that
stipulations that may be agreed upon the mar,ing of e9hibits the waiver of ob-ections to the
admissibility of e9hibits the limitations of the issues will all contribute towards the early disposition
of the case.
4otice4
?or purposes of the preMtrial the parties must be notifed of the preMtrial date. (f they are
represented by a counsel there is no need for the parties to be notifed. Why? Because in this case
their respective counsel will be the one to be notifed of the preMtrial and it is now the duty of the
counsel to notify their respective clients of the preMtrial.
Q. Why is there a need for the presence of the parties during a preMtrial?
A. Because among the many purposes of a preMtrial is to allow the parties to sit down together
and enter into a settlement if they can.
1ormally a lawyer cannot enter a settlement on behalf of their clients unless they are
specifcally armed with written authority. 5o only the parties can agree on the settlement. This is
the reason why they must be present.
Q. 5upposing a party is notifed of a preMtrial but does not attend the preMtrial but his lawyer does
will the action now of the plainti. or defendant for that matter during the preMtrial carry with it a
sanction against the absent party?
A.
Example:
A vs. B.
A was notifed of the preMtrial. A was not present during the preMtrial but lawyer Atty. H was.
Q. What is the sanction against A?
A. /is complaint may be dismissed with pre-udice.
5upposing it is B who was absent his lawyer Atty. : was present.
Q. What is the sanction against B?
A. The plainti. A will now be allowed to present his evidence e9 parte meaning in the absent of
defendant B.
8et us reverse.
A was present during the preMtrial but his counsel Atty. : was not.
Q. Will the absence of the counsel now entitle B to present his evidence?
A. 1o.
Q. 5upposing B was present Atty. : was not will that now allow A to present his evidence?
A. 1o.
+t is the absence of the parties, not their respective counsels that may give rise to the
imposition of the corresponding sanction against the absent party.
Q. <ay there be a situation however where a party can be absent from a preMtrial and yet the
absence will not give rise to the corresponding sanctions?
A. :es. When the absence of the party is -ustifed or when the absent party is represented by a
person who is duly authoriIed in writing to act for the party for purposes of preMtrial.
5o if A cannot personally appear he may commission another person to appear for him for
purposes of the preMtrial. ?or instance his lawyer may appear for him provided that Atty. H carries
with him a written authority.
(n the same way if B is not present he can appoint a third person. /e may appoint his lawyer
Atty. : to act for him provided Atty. : carries with him a written authority.
Q. (s it enough that the person authoriIed carries with him a written authority in order that he can
validly appear for the litigant for purposes of preMtrial?
A. 1o. Because the written authority must specify these three )&* specifc powers of the agent.
"0
5o if A appointed Atty. H as his agent for purposes of preMtrial or if B appoint Atty. : as his
agent for purposes of preMtrial the power of attorney of Atty. H or Atty. : must state the following4
that H or : is authoriIed to the following )H for A or : for B*4
!. the authority to settle the case by way of a compromiseJ
2. the authority to enter into stipulations of facts or admission of documents
&. the authority to submit the case to other alternative modes of disputes resolution.
The written authority must specify these three :C9 authorities, otherwise, the written
authority is incomplete for purposes of pre.trial.
5o if an agent appears for the plainti. or a defendant with a written authority but the
written authority does not specify all these three )&* authorities this written authority is incomplete
and he cannot legally appear for the plainti. or defendant as the case may be.
Q. What is the sanction against the failure of a party to appear a preMtrial?
A. (f it is the plainti. who is absent and the absence is un-ustifed or that he has no authoriIed
agent the sanction is this his complaint is dismissed with pre-udice.
(f it is the defendant who is absent the sanction is the plainti. is allowed to present his
evidence e9 parte meaning in the absence of A.
The natural conse0uence of this is> if B has any counterclaim then the counterclaim will be
dismissed because of his )B* action.
Ta,e note that during the preMtrial the rendition of a -udgment summary in character or the
rendition of a -udgment on the pleadings may be proper.
Q. 'an the court immediately following the preMtrial render a summary -udgment or a -udgment on
the pleadings?
A. Ta,e note that what the 2ules authoriIed to be done during the preMtrial is only to consider the
possibility not that the court will immediately render a summary -udgment or that the court will
render a -udgment on the pleading. Why? Because there are re0uirements before a -udgment
summary in nature or a -udgment on the pleadings can be rendered to be complied with.
?or instance in the case of a -udgment on the pleading there must be a motion fled for the
rendition of a -udgment. 8i,ewise in the case of a summary -udgment under 2ule &7 there must be
a motion for the rendition of a summary -udgment. 5o the court cannot immediately following a
preMtrial render a -udgment on the pleading for a -udgment summary in nature. There must frst be
a hearing in accordance with the pertinent rules.
#re8trial Crief
The rule re0uires that the parties must fle a preMtrial brief.
Q. What is the sanction against the failure of a party to fle a preMtrial brief?
A. The rule says that the failure to fle a preMtrial brief may be given the e.ect the failure of a
party to appear for a preMtrial.
5o when the plainti. for instance does not fle its preMtrial brief his complaint may be
dismissed. (f the defendant does not fle his preMtrial brief the plainti. will be allowed to present his
evidence e9 parte. This is the sanction.
Q. When must the preMtrial brief be fled?
A. A preMtrial brief must be fled at least three )&* days before the preMtrial. <eaning that at least
three )&* days before the preMtrial the preMtrial brief must have already been fled and served on the
adverse party.
Ta,e note also that a preMtrial brief re0uires certain matters to be specifed therein. Among
others, the following are re$uired to be stated in a pre.trial brief(
!. the numbers of witnesses of a partyJ
2. the gist of the proposed testimony of a witnessJ
&. copies of documents that may be o.ered for admissionsJ
;. the preMtrial brief must state the purpose for which the documents are o.ered.
This re0uires that the gist of the testimony of a witness or that copies of documents
intended to be submitted in evidence attached to the preMtrial brief is re0uirement that fnds the
-ustifcation in 2ule !&2. 2ule !&2 re0uires that before a witness testify the purpose of the o.er
must be specifed and that no evidence shall be admitted unless it is formally o.ered and the
purpose of the o.er is -ustifed. This is the basis of this re0uirement. 5o the preMtrial brief must
include the gist of the testimony of a witness or the purpose for which the documents are o.ered in
evidence.
?ollowing the inclusion of a preMtrial the court is re0uired to issue a corresponding preMtrial
order.
"6
Q. What is a preMtrial order? What is its importance?
A. The pre%trial order is a resumV of what transpired during the preMtrial. (n e.ect it is a
summary of what happened. (f there are stipulations in the preMtrial those stipulations are reWected
in the preMtrial order.
Q. What is the importance of a preMtrial order?
A. The preMtrial order governs the subse0uent course of the trial so that the trial will be limited
only to those issues that have been raised in the preMtrial order.
While this 2ule !C does not e9pressly state that the preMtrial must specify the issues 2ule &6
implies that the preMtrial order must specify the issues. Why? Because under 2ule &6 the
presentation of evidence of the party is limited to the issues raised in the preMtrial order. 5o that if
there are only two )2* issues mentioned in the preMtrial order no party is allowed to introduce
evidence on any matter other than on these two )2* issues. (f there is a third issue any party
cannot prove it as a matter of right because they are limited only to prove the issues raised in the
preMtrial order.
%f course we ta,e into account also another rule that is the rule on amendment of the
pleadings to conform to the evidence. +ssues that may not have been raised during the pre.trial
may be tried during the trial under these two :@9 situations4
!. a party tries the issue and the other does not ob-ectJ as a matter of fact he conforms
and in the case this issue can be tried
2. a party see,s to prove an issue which is not incorporated in the preMtrial order the
adverse party ob-ects but the court fnds that the presentation of that merits of the case
would best be subMserved by allowing this issue to be proven sub-ect to the amendment
of the pleading to conform with the evidence.
These are the e9ceptions to the rule that unless otherwise specifed in the preMtrial order no
issue can be tried.
Q. What is the signifcance of this rule that the preMtrial order governs the subse0uent course of
the trial and the preMtrial order cannot be amended unless necessary to avoid in-ustice being
committed?
A. Where a preMtrial order has already been issued that preMtrial order cannot be changed so the
trial will now be governed in accordance with the preMtrial order.
/owever this preMtrial order may be modifed if necessary to avoid in-ustice being
committed if trial is limited to what is stated in the preMtrial order.
RENE NOTES:
W1't 're (ons!"ere" 't pre2tr!'l
1. possibility of an amicable settlement
2. submission to alternative modes of dispute resolution
a. arbitration
b. mediation
c. conciliation
. simplification of the issues
". amendment to the pleadings
/. possibility of obtaining stipulation of facts or admissions of facts
0. limitation of the number of witnesses
6. reference to a commissioner
7. possibility of ,udgment of the pleading
) need for motion
8. possibility of summary ,udgment
) need for motion
14. dismissal of action
11. suspending the proceedings
12. other matters that may aid in the prompt disposition of the action
+ !he pre)trial and trial on the merits of the case must be held on a separate dates.
Rule /? :Inter)ention
A vs. B. They are litigating for a piece of land. A says E( am the ownerF. B says E( am the
ownerF. 5o the issue is Ewho is the owner?F /owever a third person claims that he is the owner
of the lot in 0uestion.
Q. /ow can ' protect his right over this land?
A. ' may come in to the picture as an intervenor. $nless he )'* is allowed to intervene in this
case his right will be adversely a.ected and he has no way of protecting himself because he is
Eoutside the %ulamboF.
Q. What is the remedy?
A. ?ile a motion for intervention.
Q. 'an anybody -ust fle a motion for intervention?
"7
A. 1o.
Q. What would be the -ustifcation for an intervention?
A. The party intervening may have an interest against the plainti. in this case. /e may be
interested in the success of B or he may have an interest adverse to A and therefore he has an
interest against for A and B or he may be so situated that any disposition of the property in the
hands of the court a.ect him. 5o he can now intervene in this case. 5o that he can protect
whatever rights he alleges he has.
Q. When will ' in our e9ample fle a motion for intervention?
A. At any time before a -udgment has been rendered in the case.
The motion for intervention will have to be heard in accordance with 2ule !7 )<otions*. This
means to say therefore that ' will notify both A and B of the hearing of this motion for intervention.
Q. What may the pleading )intervention* that he )'* can fle?
A. (t may be a pleading in intervention called a Hcomplaint in intervention).
(f he )'* -oins A against B or if he has an interest against both A and B so he will fle a
complaint in intervention. %r he may fle an answer in intervention if he -oins B as against A he will
fle an answer in intervention. Whatever pleading he will fle when a complaint in intervention or an
answer in intervention that pleading must be attached to the motion for intervention. 5o the
motion for intervention is accompanied either by the complaint in intervention or by the answer in
intervention. This will now be heard by the court.
Q. Will the court grant or deny the motion for intervention?
A. The answer depends on the answer to the following 0uestions4
!. will the intervention delay the case between A and B?
2. may the right of ' ' protected in a proceeding other than in this case between A and B?
(f the answer to the frst 0uestion is EyesF meaning the intervention will delay the
disposition of the case then the court may deny the motion.
(f the answer to the second 0uestion is EyesF then the court may deny the motion for
intervention.
(f the answer to both 0uestions is EnoF meaning the intervention will not delay the right of
' cannot be protected in another proceeding then the court may grant the motion for intervention.
Q. (f the intervention fled by ' is a complaint in intervention re0uire an answer?
A. :es. A and B if they are the defendants in the intervention may fle an answer to the complaint
in intervention.
Q. Within what period must they fle?
A. They must fle the answer to the complaint in intervention within ffteen )!7* days from receipt
of the order of the court admitting the motion for intervention.
Q. /ow will A and B ,now what the allegations are in the complaint in intervention since they are
not summoned under 2ule !; with respect to the complaint in intervention?
A. 2emember what we said earlier when ' fled the motion for intervention attached to the
motion was already a copy of the complaint in intervention.
5o even before they receive the order granting the motion for intervention A and B already
have with them the copy of the complaint in intervention. 2emember that the complaint in
intervention is not served on A and B by summons. (t was served to them by ' by furnishing them
a copy.
After the intervention is allowed then the court can hear the case the case is between A and
B and thereafter the intervention.
Q. (n an intervention and an independent action in the sense that if the complaint is dismissed
the complaint in intervention may li,ewise be dismissed or is a complaint in intervention one that
can be treated independently of the main case so that regardless of the outcome of the main case
the intervention remains una.ected?
A. )$nanswered> Audge 8agui became ill>*
When he returned>
&e have two :@9 cases of this4
!. K9propriation case
<unicipality of 1orIagaray fled an action against H : and @ for e9propriation of lot. While
this case was pending the mayor of 1orIagaray manifested his intention to withdraw the
complaint. Why? Because the municipality was unable to procure the presidential approval of the
e9ercise of the municipality of the right to e9propriate. The law at that time re0uire a presidential
approval on the e9ercise by the municipality of the right to e9propriate. The people of certain barrio
"8
of 1orIagaray <atictic having heard of the intention of the mayor to withdraw fled now an
intervention motion. Why did this <atictic people want to fle an intervention motion? Because
through this lot sought to be appropriated was a road which the people of <atictic used in going to
the highway. But they had to pay the owners passage fee. 5o it was to their interest therefore that
this property be e9propriated so that they would be relieved of the burden of paying. The <ayor
however did not fle formally a motion to withdraw the complaint. Because of this the court motu
proprio dismissed the complaint for failure to prosecute and of course for lac, of presidential
authority. The dismissal too, place before the court could rule on this motion for intervention. /e
dismissed the case outrightly. The matter reached the 5'.
(ssue4 Whether the intervention of <atictic people could still survive because of the dismissal.
2ule4 The intervention could no longer be entertained because of the dismissal of the case.
:ears later> another case involving the foreclosure of mortgages of real and chattel.
H obtained various loans from di.erent mortgages and to guarantee the payment H
constituted real estate mortgages and chattel mortgages. Among the many assets of H sub-ect of
the mortgages was a building )QKA Building*.
%n this building where installed were aircon units which sub-ect of a chattel mortgage in
favor of :. This building was eventually sold to '. : now fled a suit against ' for replevin for the
recovery of this aircon units claiming that he ):* furnished the aircon units to H and which H gave :
by way of chattel mortgage.
While this case was pending A fled a motion for intervention on the ground that if he )A*
supplied H the money with which H ac0uired these aircon units. The motion for intervention was
granted and so A now fled the complaint in intervention which as a matter of fact was amended
later on. (n the meantime : and ' entered into an amicable settlement. By reason of this
settlement this complaint of : was dismissed. 8ater on : 0uestioned the propriety of the court
having authoriIed the amendment of the complaint in intervention of A. With the dismissal of the
case this intervention of A can no longer subsist on the theory that an intervention is merely an
ad-unct of the main case. This is the theory.
This contention was overruled.
The matter reached the 5'.
(ssue4 Whether the trial court was correct in still maintaining this intervention of A notwithstanding
the dismissal. 5' said that this dismissal of the complaint of : against ' did not a.ect at all the
intervention of A. (n other words the intervention of A still continue even if after the main case has
already been dismissed.
2eason4 5ince A was already allowed to intervene he ac0uired a right to participate and therefore
that right cannot be adversely a.ected by the agreement between : and '. Their agreement was
binding only on themselves it did not bind A.
Q. What do you notice upon these two )2* cases?
A. Apparently they are contradictory because in the frst with the dismissal of the complaint
the intervention could no longer be maintained. (n the second the dismissal of the main complaint
notwithstanding the intervention could be maintained.
Q. But are they in fact conWicting?
A. This is how Austice 2egalado our commentator in 2emedial 8aw tried to reconcile the two. And
he came out with a conclusion that actually there is no contradiction between the two.
Q. /ow did he reconcile?
A. (n the <atictic case when the complaint was dismissed there was as yet no intervention to
spea, of. Why? Because the court never ruled on the interventionJ and therefore the barrio people
of <atictic never became intervenors. And so they have no right whatsoever that could be a.ected
by the dismissal.
But in the case of <etroban, there was already an intervention allowed at the time
dismissal of the main complaint was e.ected. 5o the right of the intervenor could no longer be
adversely a.ected by whatever agreement the original parties have because it )<etroban,* was not
a party to the agreement.
The 2ule is clear an agreement or a contract binds only parties thereto its heirs and
successors in interest.
5o with these it would seem that as long as an intervention has been allowed it can be
determined independently of the main case. The original comment on this rule is that a motion for
intervention is merely an au9iliary proceeding giving ris, to the implication that if the main case of
which it is merely an au9iliary ceases to e9ist because of the dismissal the intervention would
li,ewise be dismissed.
(n this <etroban, case it would seem that itGs no longer correct.
Qoing bac, to the last e9ample> where ' is interested the court will hear the case of A and
B and receive the evidence of the parties then the court will also receive the evidence of ' and
thereafter decide the case. 5o it is li,e a threeMcornered Wight li,e that of EXA2A<B%8A.F
RE4E 4:2ES:
W1o m'y !nter#ene
a. one who has legal interest in the matter in litigation
b. one who has legal interest in the success of either parties
/4
c. one who has interest against both parties
d. one who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or
of an officer thereof
INTERVENTION INTERPLEADER
+ an ancillary action. + an original action
+ proper in any of the four situations mentioned in this (ule. + presupposes that plaintiff has no interest in the sub,ect matter
of the action or has an interest therein, which in whole or in
part, is not disputed by the other parties to the action
+ defendants are already original parties to the pending suit + defendants are being sued precisely to implead them.
Rule ;): SU:POENA
SU:POENA SU33ONS
+ an order to appear and testify or to produce books and
documents
+ order to answer complaint
+ may be served to a non)party + served on the defendant
+ needs tender of kilometrage, attendance fee and reasonable
cost of production fee
+ does not need tender of kilometrage and other fees
SU:POENA AD TESTI6ICANDU3 < a process directed to a person requiring him to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by competent authority, or for the taking of his deposition.
SU:POENA DUCES TECU3 < a process directed to a person requiring him to bring with him books, documents or other things under
his control.
W1o m'y !ssue su5poen's:
a. 9ourt before whom the witness is required to attend
b. 9ourt of the place where the deposition is to be taken
c. $fficer or body authoriFed by law to do so in connection with investigations conducted by said officer or body
d. Any Dustice of the 19 or of the 9A in any case or investigation pending within the Chilippines
+ !he clerk of court shall issue under the authority of the ,udge.
+ -o prisoner sentenced to >&A!#, reclusion perpetua or life improsonment shall be brought out of a penal institution 5-:&11
authoriFed by the 1upreme 9ourt.
Su5poen' "u(es te(um m'y 5e $u's1e" upon proo% t1't:
a. It is reasonable and oppressive.
b. !he articles sought to be produced do not appear prima facie to be relevant to the issues.
c. !he person asking for the subpoena does not advance the cost of production of the articles desired.
Su5poen' '" test!%!('n"um m'y 5e $u's1e":
1. if the witness is not bound thereby
2. no tender of witness fee or kilometrage
Conse$uen(es o% 'n Un&ust!%!'5le re%us'l to o5ey su5poen':
a. !he court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant
and seiFure, I? the court should determine that this disobedience was willful and without ,ust cause.
b. !he refusal to obey the subpoena shall be deemed a contempt of the court issuing it.
Rule 22:(omputation of time
2ule 22 refers to the computation of a period f9ed by the law by the rules or by an order of
the court.
Sec. / says4
+n computing any period of time prescribed or allowed by these Rules, or by order of the
court, or by any applicable statute, the day of the act or event from which the designated period of
time begins to run is to be e#cluded and the date of performance included. +f the last day of the
period, as thus computed, falls on a 3aturday, a 3unday or a legal holiday, the time shall not run
until the ne#t wor%ing day.
Aust ,now what Article !& of the 'ivil 'ode says on the matter.
Article /" of t6e 4e0 (i)il (ode
&hen the law spea% of years, months, days or nights, it shall be understood that years are
of three hundred si#ty 've days each; months of thirty days; days, of twenty.four hours; and nights,
from sunset to sunrise.
+f months are designated by their name, they shall be computed by the number of days,
which they respectively have.
+n computing a period, the 'rst day shall be e#cluded, and the last day included.
Example4 A vs. B.
A was summoned Dec. !B !""". $nder 5ec. ! of 2ule !! B has a period of ffteen )!7* days
from service of summons on him.
$nder the provisions of Article !& of the 1ew 'ivil 'ode. Ee9clude the frst and include the
lastF rule you compute this !7Mday period from Dec. !# !""". 5o you will have up to Dec. &!
!""". But Dec. &! is usually a legal holiday so the ne9t day will be Aan. ! but Aan. ! is also a
holiday so the !7Mday period will e9pire on the following day assuming that Aan. 2 is not a 5aturday
or is not a 5unday or is not a legal holiday in the place where the court sits.
/1
Q. What does 5ec. ! of 2ule 22 say?
A. (n computing a period the day of the act or event from which the period starts to run is
e9cluded.
This is what actually Article !& of 'ivil 'ode is saying4 EThe day of performance is included.F
Q. What is Ethe day of performanceF here?
A. The fling of the answer.
But under Article !& the day of performance here is the last day. EK9clude the frst include
the last.F
Where an act e.ectively interrupts the running of a period the allowable period shall start to
run the day following the receipt of the notice of the cessation of the cause thereof.
Q. What does this mean? )This provision is very complicated.*
A. Sec. 2 Rule 22
3hould an act be done which efectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after notice of the cessation of the cause
thereof.
The day of the act that caused the interruption shall be included in the computation of the
period.
Example:
B was summoned Aan. 2 !""". $nder 5ec. ! of 2ule !! B has a period ending Aan. !# !""".
This is the day of performance )Aan.!# !"""*. 8et us assume however that B fled on Aan. # !""" a
motion to dismiss.
Q. What is the e.ect of the fling on Aan. # !""" on the running of this period starting Aan. & and
ending Aan. !#?
A. (t suspended the running of the period. 5ince there were fve )7* days of the !7Mday period
under 5ec. ! 2ule !! there were ten )!6* days remaining because between Aan. 2 and Aan. # a 7M
day period has already elapsed. There was a period of ten )!6* days remaining.
This!6Mday period remaining of the original !7Mday period is the soMcalled Hallowable periodF
referred to in 5ec. 2 2ule 22.
%n the assumption that this motion to dismiss is denied
Q. What is the e.ect of the denial of the motion to dismiss on the remaining period within which
to fle the answer?
A. (t will start to run. (t will resume its running. Why? Because it started but when the motion to
dismiss was fled the running was interrupted but when the motion to dismiss was denied the
running must resume. )/intoR >tapos> Ta,boR*
Q. When will this Eallowable periodF start to run?
A. 8et us assume that B received the order of denial on <arch !6 !""".
We say that when the order of denial the period of !6Mday starts to run. Why? What
interrupts it?
The period was interrupted by this order <arch !6 !""". This is the cause of the cessation
of the stopping of the running.
Q. What is the allowable period that starts to run after this order denying the motion to dismiss
was issued?
A. The law says Ethis allowable period shall start to run the day following the receipt of the notice
of the cessation of the period.F
5o in our e9ample this allowable period starts to run the day following the receipt. 5o this
starts to run <arch !! !""" )!6 days starting <arch !! is <arch 2! !"""*.
This is still an application of Article !& which is Ee9clude the frst include the last day.F
)The committee wanted to be di.erent probably*
&onclusion4 2ule 22 did not actually amend Art. !& of 1'' e9cept in one respect there is now an
e9pressed provision in the rules that when the last day of performance is a 5aturday a 5unday or a
legal holiday in the place where the court sits the date of performance is moved to the ne9t
wor,ing day.
Ta,e note that the legal holiday referred to here is the legal holiday in the place where the
court sits.
5o if the court sits in <anila and the last day in <anila is Dec. 26 which is not a holiday but
in +.'. Dec. 26 is a holiday.
Q. Will the last day of performance be moved to the ne9t wor,ing day?
A. 1o because the holiday is not in the place where the court sits which is in <anila.
'odes of *isco)er%
Rules 2"F 2,F 25F 2!F 21 and 2>.
/2
Q. What are the modes of discovery?
A. As the term suggests these modes of discovery are remedies the law allows a party to a case
to avail of for the purpose of getting in advance ,nowledge of facts related to a case which the
adverse party may have ,nowledge of so that when trial proceeds a party to a case already ,nows
what the adverse party may have.
Actually therefore these modes of discovery are intended to allow a party to discover what
the other party has because if these rules on discovery were not allowed a party to a case would
,now nothing about the adverse partyGs case e9cept those which are alleged in the pleading.
5o if A the plainti. and B the defendant all that A would normally ,now about the case in
so far as he is concerned is what appears in the answer or pleading of B.
(n the case of B all that he could ,now in so far as A is concerned is what appears in the
complaint or pleading of A.
5o rules of relevant facts would be limited to what is disclosed only in the pleadings.
But with the modes of discovery we mentioned A may be able to ,now facts that B may
haveJ B may be able to ,now facts that A has so that when the trial proceeds each party already
,now what the other party has.
This is the concept of discovery. This practice is widely used in $.5. 5o if A and B are
litigants before trial A could already ,now all the facts about AJ B could already ,now all the facts
about A. 5o that when the trial comes there is nothing that is not ,nown to the adverse party. This
is how e9tensively these remedies are utiliIed in $.5.
While these rules have been with us for decades they were never appreciated. Why? =ery
few avail of it. This is why to compel the resort to modes of discovery there are certain sanctions
that the court may impose on a party who fails to comply with the rules written interrogatoriesJ with
the rules on re0uest for admission.
Rule 2": *eposition #endin. Action
This is denominated as *eposition #endin. Action. This contemplates a situation where a
case is already pending in court. While the case is pending in court the party may now discover
facts either from the adverse party or from any other persons.
Example: A vs. B )They are litigating a piece of land*
A suspects that B may present as his )B* witness H against him )A*. A would want to ,now in
advance what H is going to say.
Q. What is the remedy available to AJ so that even before trial A will already ,now what H will say
so when he will be called upon to testify?
A. A can resort to 2ule 2& )Deposition 3ending Action*
Q. (s it necessary for A to obtain leave of court in order that he can ta,e the deposition of H?
A. The rule is this4
+f no answer has as yet been served on then A must fle frst a motion as,ing for leave to
ta,e the deposition of H.
+f an answer has already been served on A can now ta,e the deposition of H without leave
of court.
5o whether leave of court is re0uired on that would depend on an answer to a 0uestion
Ewas an answer already serve on the plainti.?F (f there was none leave of court is re0uiredJ if there
was no leave of court.
Q. (f A now were to ta,e the deposition of H what can be the sub-ect matter of the in0uiries made
by A?
A. The rule is4
can ta%e deposition of J on any matter related to the claim of or related to the defense
of B, provided these matters are not privilege in character. <eaning that where the matter sought
to be in0uired by A from H are privilege they cannot be the sub-ect of in0uiry and therefore H may
not answer that.
Q. 5upposing it is B who suspects that A will present : as his witness can B also ta,e the
deposition of :?
A. :es.
Q. 5o what do we conclude on from this?
A. The right to ta,e a deposition belongs to both parties. (t does not belong only to one.
Q. (f you were A now how will you proceed ta,ing the deposition of H?
A. The frst is for A to send B a notice to ta,e depositions.
The deposition may either be on oral e9amination or on written interrogations.
Q. 8et us assume that A would want to ta,e the deposition of H what will this notice to ta,e
deposition contain?
A. The notice will be worded this way4
To B defendant
/
Qreetings>
3ls. Be notifed that the undersigned plainti. A will ta,e deposition on oral e9amination of H
before the notary public @ at his oOce at !2& Timog Ave. +. '. on Aan. !6 !""" at C466 A<
5igned A
B received the notice.
Q. What will happen on Aan. !6 !""" at C466 A<?
A. H and the lawyer of A if he has any or A will appear before the notary public.
Q. /ow about B?
A. /e may appear if he wants to. /e may disappear if he wants to. (n other words he may appear
if he li,es he may not appear if he does not li,e. Whatever his wishes are the plainti. A can
proceed with the deposition of H as long as B was notifed.
Q. /ow will A compel the presence of H before the notary public on Aan. !6 !""" at C466 A<?
A. A can fle with the court in +.'. a motion for the issuance of subpoena to H so that H will be
subpoena.
The rule in a subpoena to a witness in deposition ta,ing may be issued by the court in the
place where his deposition is ta,en.
Q. What happens on Aan. !6 !""" in the oOce of the notary public @?
A. A will now 0uestion H on anything related to the claim of A or related to the defense of B
provided they are not privileges.
Q. /ow about B?
A. (f B were present or his lawyer is present B or the lawyer can crossMe9amine H then H may
again be 0uestioned by A or by AGs lawyer. This is the second e9amination called the reMdirect
e9amination. After he )A* fnished the reMdirect e9amination H may again be e9amined by B or his
)BGs* lawyer we called this word e9amination the reMcross e9amination.
Q. What do you notice?
A. (n e9amination of Edeponent H in our e9ample is the same e9amination that may be
conducted as if he were actually before the court in which the case is pending.
8et us assume in our e9ample that B received the notice but did not appear either personally
or through counsel. 5o that in our e9ample H testifed in the absence of B or the counsel of B.
Q. <ay B be allowed nevertheless to 0uestion H after H fnished his direct testimony?
A. :es.
Q. But how about if B is not there?
A. (ts no problem because of personally appearing in court B can send his written 0uestions to the
notary public. The notary public will now read these 0uestions to H one by one and H will answer
them also one by one.
8et us assume that the deposition is going on. 8et us assume also that BGs counsel is
present while AGs counsel is 0uestioning H a 0uestion appears to be ob-ectionable to B.
Q. 'an he )BGs counsel* ob-ect?
A. :es.
Q. Will the notary public however rule on the ob-ections?
A. 1o he will simply record the ob-ection. $nli,e the -udge the notary public or whoever is the
deposition oOcer is not allowed to rule on the ob-ection.
Q. ?ollowing the conclusion of e9amination of H what shall be done now?
A. The testimony of H as stenographically recorded during the proceedings will now be
transcribed. After its transcription the transcript is shown to H for him to read or for that transcript
to be read to him.
(f there are parts in the transcript which he desires to change then he can change them out
in this case the deposition oOcer or a notary public or a -udge for that matter will have to indicate
in the records the reason why H changed his answers.
H may sign or may not sign the transcripts. /e may not sign if for instance letGs say he
agree that there is no need or H himself for any reason may refuse to sign. (n any event when H
refuses or fails to sign the notary public or the -udge who acted as the deposition oOcer must
have to sign the transcript. After the signing of the transcript or if the deponent refused to sign that
is therefore after the certifcation by the notary public or the deposition oOcer the proceedings are
concluded the deposition oOcer forwards now the records of the deposition ta,ing to the court
where the case is pending.
/"
5o if ( were the deposition oOcer ( will now forward to the court the entire records. (f there
were e9hibits presented during the deposition ta,ing the deposition oOcer should also forward it to
the court.
Q. (s there a duty on the part of the deposition oOcer to notify the parties of the fact that he has
forwarded the records to the court?
A. :es. The law re0uires that the deposition oOcer must notify the parties of the fact that he
already sent the copies of the deposition record to the court.
Q. Are the parties entitled to receive a copy of the transcript of the testimony of the witness in
the e9ample of H? )(s A entitled to receive a copy? (s B entitled to receive a copy of the branch
record?*
A. :es provided he pays for the cost thereof. This is only by way of deposition through oral
e9amination.
$nder the 2ule A can ta,e also the deposition of H by written interrogations.
Q. /ow would this be done?
A. A ta,es the deposition of H by written interrogations.
Q. /ow will this notice to ta,e deposition of H by written interrogatories be worded?
A. This is how it will be done4
B defendant
QreetingsR
:ou are hereby notifed that the undersigned plainti. A will ta,e the deposition of H by
means of written interrogatories.
Attached herewith is the direct written interrogatories.
5igned by A
Q. What is this Hdirect written interrogatoriesF?
A. (t is that document that H has as,ed all the 0uestions on direct e9amination. :ou call this the
Edirect interrogatoriesF.
5o attached now to the notice is a copy of the direct interrogatories by A. This is now
furnished to B.
Q. What is he )B* authoriIed to do following his receipt of the notice and of the direct
interrogatories?
A. (f B desires he may within ten )!6* days from his receipt of the notice and the direct
interrogatories also furnish A a soMcalled crossMinterrogatories. /e will give this crossMinterrogatories
to A.
Q. What are these Hcross.interrogatoriesF?
A. They are the 0uestions which B would have as,ed to be answered by H on crossMe9amination.
A now has with him the crossMe9amination interrogatories of B.
Q. What is A now allow to do following his receipt of the crossMinterrogatories?
A. Within fve )7* days from his receipt of the crossMinterrogatories A may serve on B another set
of interrogatories the soMcalled reMdirect interrogatories. This would have been the 0uestion which A
would as, H have had been personally 0uestioned by A.
5o A will serve on B a copy of his reMdirect interrogatories.
Q. What is the right of B upon receipt of this reMdirect interrogatories of A?
A. Within three )&* days of his )B* receipt of the reMdirect interrogatories B may serve on A a set of
0uestions again you called the reMcross interrogatories.
Q. 5o what do you notice now?
A. A has with him all sets of interrogatories4
!. DirectM(nterrogatories )A*
2. 'rossM(nterrogatories )B*
&. 2eMDirect (nterrogatories )A*
;. 2eM'ross (nterrogatories )B*
Q. What shall A do with all these sets of interrogatories?
A. /e will now proceed to the deposition oOcer together with H. What for? 5o that the notary
public will now 0uestion H or the notary public or the -udge who acted as a deposition oOcer.
5o H is there now> he is now sworn by the notary public or the -udge.
Q. What will the notary public or the -udge do?
A. This is what the notary public or the -udge will do4 /e will now ta,e the frst set the soMcalled
directMinterrogatories. /e will now read 0uestion no. ! to H. Then H will answer. 5o the deposition
//
oOcer or notary public will read oneMbyMone the 0uestions and H will answer them oneMbyMone. This
is what the notary public will do. The proceeding after H fnished answering the four );* sets of
interrogatories will be the same as if H testifed on oral interrogatories. This means to say that the
testimonies of H will be transcribed. The transcript will be given to him to read or to be read to him.
/e will sign if he wants to sign. /e will ma,e corrections if he wants to ma,e corrections.
Thereafter the deposition oOcer will forward to the cler, of court where the case is pending the
entire records of the case. This is how he deposition is ta,en.
Q. /ow will the deposition of H be used?
A. (t will be used in accordance with 5ec. ; 2ule 2&. (ntroduce all of it which is relevant to the part
introduced and any party may introduce any other part.
8et us assume that the deposition of H was already ta,en. This was already received in the
cler, of court Dec. ! !""C. Trial is on Dec. !7 !""C. %n this day )trial* A and B are supposed to
present their evidence. A said E:our /onor my witness is H he already had given his deposition.
/is deposition is now here in court which ( now as,ed to be mar,ed as e9hibit A. ( will not present H
anymore. :our /onor ( will now present his deposition in lieu of his personally testifying in court.F
'ourt4 EWhat does B said on the manifestation of A?
B4 :our /onor A does not ,now 2ule 2&.
1otwithstanding that he )A* claimed that he has been a lawyer for ffty )76* years he does
not ,now 2ule 2&.
'ourt4 EWhy?F
B4 E:our /onor the law is clear this deposition can be used only under the conditions
mentioned in 5ec. ; of 2ule 2& as evidence.F
'ourt4 E2ight :ouGre correct.F
2uling4 EThe manifestation is outMofMorder. K9hibit A cannot be used.F
Q. (s the observation of the court correct?
A. :es. s long as a deponent is alive and %ic%ing, his deposition cannot be used in court. Why?
Because a deposition is used only in anticipation of the inability of the deponent to testify in court.
But as long as he is alive he cannot use his deposition e9cept for purposes under 5ec. ; of 2ule 2&.
Q. ?or what use will the deposition of H be utiliIed?
A.
8et us assume that B presented as his witness H. (n our premise the deposition of H was
ta,en by A. 5o H is a witness of A for purposes of that deposition.
Sec. , Rule 2"
t the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of
a deposition, so far as admissible under the rules of evidence, may be used against any party who
was present or represented at the ta%ing of the deposition or who had due notice thereof, in
accordance with anyone of the following provisions(
a. ny deposition may be used by any party for the purpose of contradicting or impeaching
the testimony of deponent as a witness;
b. The deposition of a party or of any one who at the time of ta%ing the deposition was an
oEcer, director, or managing agent of a public or private corporation, partnership or
association which is a party may be used by any adverse party for any purpose;
c. The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court 'nds(
". that the witness is dead; or
@. that the witness resides at a distance more than one hundred :"DD9 %ilometers
from the place of trial or hearing or is out of the /hilippines, unless it appears that
his absence was procured by the party ofering the deposition; or
C. that the witness is unable to attend or testify because of age, sic%ness, in'rmity,
or imprisonment; or
0. that the party ofering the deposition has been unable to procure the attendance
of the witness by subpoena; or
;. upon application and notice, that such e#ceptional circumstances e#ist as to
ma%e it desirable, in the interest of justice and with due regard to the importance
of presenting the testimony of witnesses orally, in open court, to allow the
deposition to be used; and
d. +f only part of the deposition is ofered in evidence by a party, the adverse party may
re$uire him to utili1e J as his witness.
Q. 'an that be done?
A. :es it can be done. Why? Because the rule says Ea party who ta%es the deposition of another
does not ma%e that party his witness.)
5o H is not a witness for purposes of the trial of the merits of the case. /e is now a witness
of B.
/0
Q. /ow may this deposition of H be utiliIed by A?
A. Ta,e note that under 5ec. ; of 2ule 2& par.)a* Hny deposition may be used by any party for the
purpose of contracting or impeaching the testimony of deponent as witness.)
The deposition of a party may be used by anyone. A can use that deposition of H but only for
one purpose to impeach H.
Q. 'an A utiliIe the contents of the deposition of H to prove the truth of what is stated there?
A. 1o he cannot do that unless the e9ceptions will apply )5ec. ; 2ule 2&*.
(n our e9ample the only use of deposition of H in the hands of A is to impeach H nothing
more.
Q. What is impeachmentK
A. (mpeachment is the process whereby a party tries to ma,e evidence against him worthless by
showing that the witness or the evidence is not credible.
(n our e9ample the only use by A of the deposition of H is to show that H is not a credible
witness.
5upposing the issue is4 EWhat is the color of the dog of B?F
A saidEThe dog is blue.F
B said EThe dog is red.F
H said while testifying for B. EThe dog of B is red.F But in his deposition he said the dog of B
is blue.F
Q. Will this statement now prove that the dog is blue and that there A can introduce that in
evidence to prove that the dog is blue?
A. 1o. This is usable only in the hands of A to contradict the statement of H in court that the dog is
red. This is only to show that H is not telling the truth. But by this showing A does not concede that
the dog is blue. /e simply said that H is telling a lie.
2emember how a witness may be impeached or recall by a party against whom the
evidence is given may impeached a witness giving the evidence by any of the following means4
!. by contrary evidenceJ
2. by evidence that the reputation of the witness for honesty integrity and truth is badJ
&. by evidence that a witness has given statements contrary to what he said in court prior
inconsistent statementsJ
;. that a witness has been previously convicted of a crime.
Q. When however may a deposition be used not only for purposes of impeachment but for any
other purpose?
A. 8et us assume in our e9ample that the deponent is no longer H but B himself.
Q. 'an A ta,e the deposition of his adverse party?
A. :es that can be done.
Q. (n the hands of A for what use may this deposition of B be ta,en?
A. The rule says Efor impeaching and any other purposes.F
8et us assume now that B testifed. A now e9amines him on crossMe9amination.
Q. /ow can A use the deposition of B?
A. !. to impeach BJ
2. for any and all other purposes.
?or instance there is something said in the deposition of B favorable to A.
Q. 'an A introduce in evidence this deposition of B even if he )B* is alive?
A. :es.
5upposing in the deposition of B he said EThis land used to be the property of ' the father
of A.F 5o this statement may be favorable to A because it will give credence to his claim that he
inherited this lot from '. This would be favorable to him.
5o in this case A may introduce this deposition even if B is alive.
Q. What then is the di.erence if there is any between the use of a deposition of an ordinary
witness and the use of the deposition of a party to a case?
A. (n the case of an ordinary witness it is used only for one purpose that is to impeach. (n a case
of a party for two )2* purposes4 )!* to impeachJ and )2* for any other purpose.
Q. When can the deposition of witness either an ordinary witness or a party to a case to be used
to prove the truth of what is said there?
(n other words our proponent here is H. When can this deposition of H be introduced as
evidence to prove the truth of what is stated there?
A. !* when H is already deadJ or if alive cannot testify
/6
2* he lives in a place more than !66 ,m away from the court where he is supposed to be
summoned to testify.
$nder the rules of summons a party who resides in a place more than !66 ,m away from
the court to which he is summoned he is not obliged to obey the summons.
(n this case H resides more than !66 ,m away from the court room he cannot be compelled
to appear and so his deposition may be used to prove the truth of what is stated there or if H
cannot be subpoena unless the failure to subpoena H was the result of the manipulation on the part
of A himself )if he is the one presenting* or there are some circumstances that may be established
which would ma,e the presentation of the deposition -ustifed.
Rule 2" Sec. , (( sa%s:
Lthe deposition of a witness, whether or not a party, may be used by any party for any purpose if
the court 'nds(
". that the witness is dead; or
@. that the witness resides at a distance more than "DD %m away from the trial or hearing
or is out of the /hilippines, unless it appears that his absence was procured by the party
ofering the deposition; or
C. that the witness is unable to attend or testify because of age, sic%ness, in'rmity or
imprisonment; or
0. that the party ofering the deposition has been unable to procure the attendance of the
witness by subpoena; or
;. upon application and notice, that such e#ceptional circumstances e#ist as to ma%e it
desirable, in the interest of justice and with due regard to the importance of presenting
the testimony of witnesses orally in open court, to allow the deposition to be used; andL
$nder this section even though the witness is alive deposition may be used under any of
these circumstances4
%ur e9ample here presupposes that the witness is in the 3hilippines.
5upposing now A wants to ta,e the deposition of H who is in the $5.
Q. 'an that be done?
A. :es it can be done. The deposition can be done.
#rocedure:
A will give notice to B that he will ta,e a deposition of H in the $5. The deposition of H must
be ta,en before the 5ecretary of the Kmbassy. 8egation or the consul general or the consul or a vice
consul or any other oOcer in the foreign service of the 2epublic of the 3hilippines in the $5.
5upposing we have no consular oOcers or we have no embassy in the $5.
Q. /ow may the deposition of H be ta,en by the soMcalled commission? /ow will A go about
securities commission?
A. /e will fle a motion in court as,ing that the commissioner be authoriIed to receive the
testimony of H.
The court will name the particular person who will ta,e the deposition in the $5 of H.
(n one case 4asmariMas >arments vs. Reyes )!"CC* the plainti. wanted to ta,e the
testimony of his witness residing in Taiwan. 5o he fled an application with the trial court in <anila
where the case was pending for the appointment of the commissioner. Why? Because at that time
we did not have as we do not now have any diplomatic relation with Taiwan as we recogniIe the
%neM'hina 3olicy and there is only one 'hina i.e. 2ed 'hina. Taiwan is a mere province of
according to 2ed 'hina of 2ed 'hina. 5o since we have diplomatic relation with 2ed 'hina we
cannot for obvious reason recogniIe Taiwan as another state.
5o we did not have an embassy or a consular oOce in Taiwan. But we have an oOce there
euphemistically called <K'%. This is supposed to be an oOce ta,ing charge of the commercial
interest of the 3hilippines in Taiwan.
5o DasmariYas fled a motion as,ing that the deposition of his witness be ta,en. The <anila
Trial 'ourt granted the motion. 5o the defendant elevated the matter to the 5'.
(ssue4 Whether the <anila court can order the <K'% to ta,e the deposition of H )witness of
DasmariYas*.
/eld4 $nder this rule )2ule 2&* the 5' sustained the ruling of the <anila Trial 'ourt.
5o as distinguished from a situation where we have a consular oOcer or when we have
diplomatic relations where the deposition of a witness have been ta,en before those persons
already named even without prior leave of court. (n the case of a commission the deposition
cannot be ta,en by the commissioner unless there is an authority from the court.
Letters Ro.ator%
Q. What is meant by letters rogatory?
A. K9ample4
/7
A wants to ta,e the deposition of H in Timbu,tu. We do not have any consular oOce there.
We do not have diplomatic relation there. We have no nothing.
Q. /ow can the deposition of H be ta,en in Timbu,tu?
A. By letters rogatory the deposition of H may be ta,en.
Q. What is letters rogatory?
A. (n our e9ample A now will fle a motion in court as,ing that letters rogatory be issued for the
purpose of having the testimony of H ta,en on written interrogatories. The court grants the motion.
This letters rogatory are letters to the court. The court where the case is pending say 2T' of
<anila will now address a letter to letGs say the 'hief Austice of Timbu,tu.
QreetingsRRR
:ou are hereby re0uested to ta,e the deposition or written interrogatories of H who lives
within your territorial -urisdiction.
Attached are the interrogatories.
We shall render to you the same assistance when re0uested.
8etters rogatory is a letter from one court to another court re0uesting the court of the place
to ta,e the deposition of H.
This is how 2ule 2& wor,sR
RENE NOTES:
Persons 5e%ore /1om "epos!t!ons m'y 5e t'.en:
2 W!t1!n t1e P1!l!pp!nes*
Aa) ,udge
Ab) notary public
Ac) any person authoriFed to administer oaths, as stipulated by the parties in writing
2 Outs!"e t1e P1!l!pp!nes
Aa) on notice, before a secretary of embassy or legation, consul general, consul , vice consul, or consular agent of the phil.
Ab) before such person or officer as may be appointed by commission or letters rogatory
Ac) any person authoriFed to administer oaths, as stipulated by the parties in writing
CO33ISSION LETTERS ROGATOR8
+ issued to a non),udicial foreign officer who will directly take
the testimony
+ issued to the appropriate ,udicial officer of the foreign
country who will direct somebody in said foreign country to
take down testimony
+ applicable rules of procedure are those of the requesting
court
+ applicable rules of procedure are those of foreign court
requested to act
+ resorted to I? permission of the foreign country is given + resorted to I? the e2ecution of the commission is refused in
the foreign country
+ leave of court is not necessary + leave of court is necessary
Rule 2,: *epositions $efore Action
A party before any action has been instituted in court may ta,e the deposition of himself or
of a third person for the purpose of preserving that testimony for use in the event a case would
later be fled.(*epositions in #erpetuam Rei 'emoriam
Example:
A has a piece of land. B has a piece of land too -oining AGs lot. A and B are neighbors. Their
respective properties are divided by fence. The only trouble is A and B did not believe that good
fences ma,es good divide. Why? They frst put up a bamboo fence. 5o here comes a typhoon. B
now puts up this fence but intrudes ! ft. into the property of A. Another typhoon truc, the typhoon
went down. B again put up another fence this time intruding another ! ft. (magine how many
typhoons we have in one year. 5o A anticipates that if all these e9pected typhoon will materialiIe
there will be a time when he will no longer have any inch of land to stay on. By that time he will
already be fenced out of the property.
Q. What is the remedy?
A. To fle a case.
Q. But who will fle the case?
A. A said E( may fle the case. But ( donGt have the money right now. /ow can ( fle a case?F 5o he
is waiting for B to fle a case. But B is not going to fle a case because he is still waiting for the many
typhoons to come. 5o he cannot compel B to fle a case.
(n the meantime he e9pects that by that time a case is fled either by himself against B or
by B against himself he may already be si9 ft. under the ground or if he is alive his e9pected
witness H may also be already si9 ft. under the ground.
Q. What is the remedy? 5o that when the case shall have been fled and H is already gone that
testimony of H can still be used as evidence? )because it was preserved*.
/ow will this preservation be made?
/8
A. A lives in 5uluJ B resides in Batanes.
A B
5ulu Batanes
Q. What is the remedy now available to A so that his testimony or the testimony of H will be
preserved?
A. /e will now fle a case against B in the places where he )B* resides i.e. Batanes. )But A is from
5ulu? 1ever mind that is what the law says.*
Q. (n what court will this case be fled by A?
A. The rule does not say. (t simply says EcourtF.
Q. <T'? 2T'?
A. An action of this nature to preserve the testimony is an action which is incapable of pecuniary
estimation.
2emenber 5ec. !" of B.3. N !2" an action incapable of pecuniary estimation is within the
jurisdiction of the RTC.
5o while this rule does not specifcally state that the action should be fled in the 2T' the
action by reason of its nature should be fled in the 2T'.
Q. What will be the allegations?
A. Well principally A will allege the reason why he wants his testimony or that of his witness H be
preserved. /e would state in the petition the facts which he wants to prove.
Q. What is his prayer?
A. /is prayer is that the court may authoriIe him to ta,e his deposition or to ta,e the deposition of
H.
Q. /ow will B ,now that a petition against him has been fled?
A. Well the rule re0uires A to furnish B with a copy of his petition and the notice of hearing
thereof. The hearing must be set by A on a date which is not earlier than 26 days from service by A
on B of the copy of the petition and of the copies of hearing.
Q. %nce the petition is fled what will the court do?
A. The court will now issue a summons to B notifying him of the date of hearing as set in the
notice of B. This will be served on B in the manner that the summons is served to a defendant
under 2ule !;. 5o while the rule does not specifcally state the summons should be issued and
served in accordance with 2ule !7.
Q. What will happen on the day set for hearing? Will there be a trial in the sense that evidence
may be received by the court for A and B?
A. 8oo, at the provision there is nothing said on the following4
!. That B has the right to fle an answer for an opposition.
There is nothing said. The rule does not say that B or A will be allowed to present evidence.
The rule says that the court will hear the petition and if granting the petition will avoid failure of
-ustice court will grant the petition.
Q. What is the meaning of that?
A. The court in granting the petition will now authoriIe A to ta,e his deposition or to ta,e the
deposition of H or any witness for that matter in accordance with the rule either by means of oral
pending appeal e9amination or written interrogatories. This is how 2ule 2; wor,s.
Q. /ow will the deposition of either A or H be used?
A. (n the same manner a deposition is ta,en under 2ule 2& in other words 5ec. ; of 2ule 2& will
apply in so far as the deposition of A or his witness is concerned.
This is the gist of 2ule 2;.
Q. Why do you call it Edeposition before actionF?
A. Because at the time it was ta,en there was yet no case. This was only ta,en in anticipation that
a case may later on be fled.
RENE NOTES:
+ >epositions under this (ule are also taken conditionally, to be used at the trial only in case the deponent is not available.
+ >epositions under the (ule do not prove the e2istence of any right and the testimony perpetuated is not in itself conclusive proof, either
of the e2istence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no
perpetuation of testimony was ever had. #owever, in the absence of any ob,ection to its taking, and even if the deponent did not testify at
the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.
+ If deposition is taken under this (ule, it may be used in any action involving the same sub,ect matter subsequently brought.
04
Rule 25: 5ritten Interro.atories to #arties
Q. What are interrogatories? )written*
A. +uestions )1a,asulat*
Q. (s there an oral interrogatories?
A. 1aturally. (f you e9amine a court witness the interrogation is oral. )0uestioning*
Q. When may a party address written interrogatories to the adverse party?
A. 5ec. ! of 2ule 2& applies to 5ec. ! of 2ule 27
Sec. / of Rule 2"
By leave of court after jurisdiction has been obtained over the defendant or over property
which is the subject of the action, or without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be ta%en at the instance of any party, by
deposition upon oral e#amination or written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule @", depositions shall be ta%en only in
accordance with these rules. The deposition of a person con'ned in prison may be ta%en only by
leave of court on such terms as the court prescribes.
Sec. / Rule 25
*nder the same conditions speci'ed in 3ec. " of Rule @C, any party desiring to elicit material
and relevant facts from any adverse parties shall 'le and serve upon the latter written
interrogatories to be answered by the party served; or if the party served is a public or private
corporation or a partnership or association, by any oEcer thereof competent to testify in its behalf.
Example: A vs. B.
8et us say that A wants to address written interrogatories to B. A can address this written
interrogatories to B either with or without leave of court. (f no answer has yet been served by B on
A the written interrogatories may be ta,en only with leave of court. (f an answer has already been
served on A written interrogatories may be served without leave of court.
Q. What can be the sub-ect of the written interrogatories?
A. The sub-ect may be one that relates to the claim of the plainti. or one that relates to the
defense of the defendant provided that these matters are not privileged.
Q. /ow many 0uestions may be addressed in written interrogatories?
A. There is no limit. The only limitation is that the 0uestion relate to the claim of the plainti. or to
the defense of the defendant and they are not privileged.
Q. 5o if you have !666 0uestions to as, as, the ! 666 0uestions. (f you have only """
0uestions can you again send another written interrogatories consisting only of one 0uestion?
A. 1o. The rule is a party can send only one set of written interrogatories. The number of
0uestions is not limited. (t could be as many 0uestions as a party can conceive of as long as his
0uestions are related to the claim of the plainti. or to the defense of the defendant provided they
are not privileged.
Q. (s there an e9ception to this rule that only one set of written interrogatories may be sent?
A. The general rule is only one set of written interrogatories may be sent.
/owever in the discretion of the court another set of written interrogatories may be sent.
Q. When must a party reply to written interrogatories?
A. The party to whom the written interrogatories were sent must answer then within !7 days from
service to him of the interrogatories.
5upposing the written interrogatories include 0uestions that are improper for instance those
are 0uestions for the ownership of the land. A vs. B. The 0uestions as,ed by A is in his
interrogatories relevant to the matters concerning the claim of A and defenses of B. But here comes
another 0uestion E/ow many wives do you have?F
Q. (s the number of wives relevant to the matter on issue?
A. %f course not because they are not litigating in the number of wives.
Q. What is the remedy available to B here?
A. ?ile a motion to stri,e out that 0uestion. A motion praying therein that B be not re0uire answer.
Q. What is the e.ect of that motion on the part of B to stri,e out that improper 0uestion to the
running of the period for the fling of the reply?
A. The period is suspended.
RENE NOTES:
+ A ,udgment by default may be rendered against a party who fails to answer written interrogatories.
01
+ Gener'l Rule* 5nless a party had been served written interrogatories, he may not be compelled by the adverse party*
a) to give testimony in open court
b) give a deposition pending appeal
E,(ept!on: %hen the court allows it for good cause shown and to prevent a failure of ,ustice.
Depos!t!ons upon Wr!tten Interro4'tor!es to P'rt!es un"er
Rule ;A Se(+ ;B
Interro4'tor!es to P'rt!es un"er Rule ;B
As to Deponent
1. a party or ordinary witness
1. party only
As to procedure
2. with intervention of the officer authoriFed by the 9ourt to
take deposition
2. no intervention. %ritten interrogatories are directed to the
party himself
As to scope
. direct, cross, redirect, re)cross
. only one set of interrogatories
Interrogatories
". no fi2ed time
". 1/ days to answer unless e2tended or reduced by the court
RULE 2!: Admission C% Ad)erse #art%
Example:
8et us say that A and B are litigating over a piece of land. The claim of A is that he bought
this lot from D. The claim of A is that this sale is evidenced by a deed of sale purportedly signed by
D. This document however is a private document. A may also have declared this lot for ta9
purposes )ta9 declaration* and A have paid the ta9es on this land.
*nder the rules on re$uest for admission the rules said after the issues have been -oined
any of the parties may now address to the adverse party a re0uest for admission. (n this re0uest
the party sending the re0uest as, the party to whom the re0uest is sent to admit the truth of the
matters of fact stated in the re0uest or the genuineness of the document the copy of which is
attached to the re0uest.
This is how it is done>
8et us assume that the answer of B has already been served. (n his answer B denied the
material allegations of the complaint. 5o issues are now -oined.
Q. When is an issue -oined?
A. When the parties are certained and it is disputed
Example:
(f A said Ethe color of the dog is blue.F B said Ethe color of the dog is red.F This is an issue
because they dispute on the color of the dog.
5o in our e9ample the issue is Ewho is the owner of the land.F Why? Because A says E( am
the owner.F B said E1o you are not the owner.F
A will have to prove that he is the owner. 5o he will have to prove that he is the owner. (f he
)A* follows the rules in evidence he has to prove every facts in accordance with the rules in
evidence.
?or instance we have a rule on how to prove a private document. The 2ule says 5ec. 26
2ule !&C E1o document o.ered as authentic document shall be admitted in evidence unless the
genuineness and due e9ecution of that document is proven.
Q. /ow will these rules on discovery have shortened the time for proving facts in accordance with
these rules in Kvidence?
A. After A have already received for instance the answer and issues having been -oined this is
what he will do he will address a re0uest for admission B defendant.
QreetingsRR
:ou are hereby re0uested to admit under oath within !7 days from receipt thereof the truth
of the following facts4
!* A declared a lot for ta9 purposes per ta9 declaration N!2&; 'ity of <anila.
2* A has been paying the ta9es of his lot as evidenced by ta9 receipts copies of which are
anne9es A B and '.
&* The genuineness of the document copy of which is attached as anne9 EDF
'opies of these private documents are now attached for admission.
<ore particularly this is what A as, B in that re0uest for admission.
E:ou are hereby re0uested to admit that the signature over the name B in Anne9 B is the genuine
signature of B.F
A now is in possesion of these documents )The re0uest for admission to which was attached a copy
of the documents.*
Q. What is the duty of B upon receipt of the re0uest?
02
A. Within the period granted to him under the written re0uest but no less than !7 days B if he
denies the truth of these facts he denies that A has declared his land for ta9 purposes if he denies
that the signature over the name of B is his signature he will say there EB denies the truth of the
matters stated in the written re0uest an denies that the signature over the name B in anne9 EDF is
his signature.
B serves his answer to A.
Q. What will B do with that copy of answer?
A. /e must fle it in court. )This is an innovation now it was not so under the old rule*
5o B will fle his answer to the re0uest and serve a copy thereof on A.
Q. What would be the e.ect of the failure of B?
A. To deny under oath the truth of these matters of facts )the genuineness of the signature* /e is
cleared to have admitted the truth of those matters of facts. /e is cleared to have admitted that the
signature over the name of B is the genuine signature of him.
Q. What would be the e.ect now of the failure of B to answer in demand within the period
mentioned in the re0uest?
A. The truth of the matters of facts the genuineness of that signature is cleared to have admitted
them conse0uently.
Q. Will A still have to prove during the trial that he declared the land for ta9 purposes that he paid
the ta9es will he )A* still prove the signature over the name of B is the genuine signature of B?
A. 1o more. Why? Because these are admissions of facts -udicially made. The rule is facts
-udicially admitted do not re0uire proof and cannot be contradicted under the party ma,ing the
admission is allowed to withdraw the admission because he can show that the admission that he
made was a result of a palpable mista,e or that he did not actually ma,e an admission.
8et us assume that B after he failed to deny made oath the genuineness of that document.
Q. 'an he )B* now prove during the trial that the signature is a forgery that he did not aO9 that
signature?
A. 1o why? Because you are not allowed to contradict your admission.
5o you will now appreciate how this re0uest for admission can help discover the facts. This
re0uest for admission will shorten the proceedings. Why? Because if there is no denial
under oath of the genuineness of that signature there is no need for A to prove it if there is
no denial of he truth that A has declared the lot for ta9 purposes there is no denial of the
truth of the fact that A paid the ta9es A does not have to prove these facts anymore. They
are deemed proven.
Ta,e note however that there is a limited use for an admission. This admission of B is only
for the purpose in this case )A vs. B*. (t cannot be used as evidence against B in another
proceeding.
$nder the rules on evidence A cannot present B as his witness. This is allowed but this right
of a party to utiliIe the adverse party as a witness is no longer absolute in the sense that
there may be instances when a party cannot call on the adverse party as his witness.
?or instance in our e9ample A called on B as his witness B ob-ected. 2eason4 A did not send
me any re0uest for admission. B said E$nder 2ule 2B ( cannot be compelled to be a witness
of A. ( can only be compelled to be a witness of A if A sent one re0uest for admission on
matters of facts of which ( have of personal ,nowledge.F 2uling ob-ect of B is sustained. /e
cannot be compelled.
Q. (s the ruling correct?
A. :es. Why? Because under the new rule now modifying the rules on evidence before A can call
on B as his witness A should have frst addressed to B re0uest for admission of matters in issue of
which B has personal ,nowledge. 5o A cannot call B to prove these matters within the ,nowledge of
B unless A previously sent a re0uest for admission to B on this matter.
RENE NOTES:
+ !he effect of a failure to make a reply to a request for admission is that each of the matters of which n admission is requested is deemed
admitted.
+ each matter must be denied 1C&9I?I9A::B under oath setting forth in detail the reason why he cannot truthfully admit or deny.
USE* An admission under this section is for the purpose of the pending action only and cannot be used in any other proceedings.
Rule 21 : #roduction or Inspection of *ocuments or 26in.s
0
5upposing in our e9ample A alleges in his complaint that he brought this lot in 0uestion
from ' the father of B. B wants to see this supposed deed referred to in the complaint of A has
evidence of his claim that he bought this lot from '. B said EA can you ,indly lend me for my
securing this document you mention.F
Q. Do you thin, A will agree?
A. %f course in all probability A will refuse. /e will say E:ou will have the opportunity to see this
document in court when ( present it as evidence. (n the meantime you )B* doubt that your father '
sold this property. 5ince this is a document material to the claim of A.
Q. Does A have the duty to produce this document even before the trial for the scrutiny of B so
that before the trial B can now have an idea whether this is a genuine document or not?
A. 2emedy 2ule 2#
$nder this rule a party to a case for good reason shown may fle a motion re0uesting the
adverse party to produce a document or ob-ect under the control or custody of the adverse party.
?or what purpose? 5o that the party as,ing for the production of document may e9amine the
document may copy the document may photograph the document.
Q. (s there a particular time when this motion on the part of B may be fled?
A. 1o unli,e a deposition pending action or written interrogatories or re0uest for admission which
f9 a period within which his remedies may be amended of 2ule 2# does not specify the period
when a party can avail of this remedy.
Q. (f you were B in this e9ample how would you avail of the benefts of 2ule 2#?
A. This is what you will do4
?ile a motion that A be re0uired to produce that deed of sale he referred to. 5tate in your
motion the fact that this document referred to in the complaint contains evidence material to the
case that this document is under the custody or control of A. 5tate the reason why you want to
e9amine it and therefore pray that A be ordered to produce the document.
%f course the motion must be fled in accordance with 2ule !7 it must be heard i.e with
due notice of A.
%n the day of the hearing the court will hear the parties and thereafter will rule on the
motion whether to deny the motion in which case A will not be ordered to produce the document or
grant the motion in which case the court will re0uire A to do the following4
!. to produce the document before a specifed person on a specifc time so that B can
e9amine the document photograph the document copy the document if he )B* wants.
1ormally when an order is issued by the court directing a party to produce the
document the document specifes the oOcer before whom the document should be
produced. 1ormally it is the cler, of court who is designated as the oOcer before the
document should be produced.
5o in our e9ample the court may report A to produce that document before its cler, of court on a
particular date and hour. The order will direct A to allow B to go over the document copy the
document photograph the document. When? %n the date and hour mentioned in the order. Where?
Before the person named in the order.
Q. 'an B however ta,e hold of this document and bring it home for scrutiny?
A. 1o he is only authoriIed to e9amine it before the cler, of court.
Q. What will be the advantage of this e9amining?
A. (f after B e9amining the document believes that that is a forgery he can ta,e steps to have this
matter in0uired into. 5o he can now for instance move that A be re0uired to submit this document
for e9amination by a handwriting e9pert.
This rule e0ually applies within respect to real property or an ob-ect for that matter.
8et us assume that A wants to see the land in 0uestion which is now in the possession of B
for what purpose? To determine for instance how big is the area thereof developed or planted by B
so that A can estimate the damages that he may have sustained by reason of his having been
deprived of the fruits of the property.
Q. (f you were A you would approach B to allow you enter and see the land and have it surveyed.
Do you thin, B will allow you?
A. /e will not.
Q. What is the remedy?
A. A will fle a motion.
Q. What is the prayer in the motion?
A. That B be ordered to allow A to enter upon the land survey etc.
0"
5o with the entry now of A upon the land he will be able to determine the e9tent of the
cultivation of B.
5ee how their discovery will help ARRR
RENE NOTES:
PRODUCTION OR INSPECTION O6 DOCU3ENTS OR
T9INGS
SU:POENA DUCES TECU3
+ essentially a mode of discovery + means of compelling production of evidence
+ the (ules is limited to the parties to the action + may be directed to a person whether a party or not
+ the order under this (ule is issued only upon motion with
notice to the adverse party
+ may be issued upon an e2 parte application.
Rule 2>: #6%sical and 'ental examination of #ersons
2ule 2C contemplates a situation where the mental condition or physical condition of a party
is an issue. And the determination of that issue is re0uired in order that a proper -udgment can be
rendered.
Example:
W sued the husband / for declaration of nullity of marriage on the ground of fraud. Why?
Because whereas before marriage / represented himself to be more than able to perform what is
e9pected of a husband to the e.ect and dismay of W. The representation turned otherwise. Why?
Because what was represented to be a Edeadly weaponF turned out to be a Edead weaponF. 5o the
answer of / is EAnong sinasabi ng asawa ,o sa complaint ay hindi naman totoo.F
5o W moved by fling a motion that / be directed to submit himself to an e9amination of his
physical condition before Dr. H. %f course this motion must be with due notice to /. The
e9amination was conducted out of curiosity / obtained the copy of the report of Dr. H. $pon
reading it he has almost fainted. Why? Because the result confrmed the allegation of the wife. But
/ is one who is easily daunted by this adverse report he said ETarantadong do,tor ito. 5aan ,aya
nagMaral ito hindi marunong. Xaya ,oR Xaya ni <isterRF 5o he wanted to disprove. 5o what did he
do? /e engaged Dr. :. What for? To e9amine him also on the matter in connection with which Dr. H
e9amine him. The e9amination was fnished. /e got also a copy of the report you could -ust
imagine what happen nowR Whereas when he got a copy of the report of Dr. H he nearly fainted
now that he received the copy of the report of Dr. : he actually faintedR Why? Because the result of
Dr. :Gs e9amination confrmed the fndings of Dr. H.
Trial>>>>>>>..
W now called on Dr. :. 5o in announcing the purpose for which she o.ered the testimony of
Dr. : W said EW your honor o.ers the testimony of Dr. : to prove that / cannot do it.F / said E(
ob-ect to Dr. :Gs testifying ( have not given him my consent to testify so under the rules on
evidence he cannot.F The court overruled the ob-ection and allowed Dr. y to testify on his fndings.
Q. (s the ruling of the court correct?
A. :es. Because by obtaining the copy of the report of Dr. H / waived the beneft that he may
have over the testimony of Dr. :.
5o this is therefore a rule )2ule 2C* which should be ta,en into account in relation to the rule
on the confdentiality of the communication between a patient and a doctor. :ou remember the rule
that a doctor of medicine an obstetrician a surgeon cannot without the consent of his patient
testify on the following4
!. The advice that the doctor gave to the patientJ
2. The treatment that the doctor administer to the patientJ
&. The information that the doctor obtained in the course of attending professionally to the
patient when information was necessary to enable the doctor to properly attend to the
patient and which information if revealed would embarrass the patient.
5o this rule does not apply when 2ule 2C is involved. 2ule 2C therefore 0ualifes the
provision.
RENE NOTES:
+ %here the party e2amined requests and obtains a report on the results of the e2amination the consequences are*
Aa) he has to furnish the other party a copy of the report of any previous or subsequent e2amination of the same physical and mental
condition. and
Ab) he waives any privilege that he may have in that action or any other involving the same controversy regarding the testimony of any
other person who has so e2amined him or may thereafter e2amine him.
Rule 2? : Refusal to (ompl% 0it6 'odes of *isco)er%
2ule 2" enumerates the sanctions that may be imposed by the court where a party does not
comply to any of these modes of discovery.
0/
?or instance under 2ule 2& when a witness in a deposition refuses to be sworn to or refuses
to answer
Q. What are the sanctions?
A. $nder 2ule 27 )Written (nterrogatories* when a party to whom written interrogatories are
addressed refused to answer what are the sanctions against him.
$nder 2ule 2B when a party to whom the re0uest for admission is sent denies the truth of
the matters stated therein and subse0uently the party ma,ing the re0uest proves it.
Q. What are the sanctions against the party to whom the re0uest was given?
A. When a party refuses to allow in disobedience to a court order the adverse party to e9amine a
document or and ob-ect or to permit an entry into premises.
Q. When a party refuses to submit himself when ordered by a court to e9amination of his physical
or mental condition what are the sanctions?
A. In .istF t6ese are t6e sanctions:
$nder 2ule 2" the party who refuses may be arrested the only instance where a party
refuses may not be arrested is the case of the party who is re0uired to submit himself to physical or
mental e9amination under 2ule 2C when he disobeys he cannot be arrestedJ in all other cases the
refusing party may be arrested.
5econd a party may be declared in defaultJ
Third a -udgment may be immediately renderedJ
?ourth a complaint may be dismissedJ
?ifth a party may not be allowed to introduce evidence to support
5upport a factJ
5i9th a contention of a party in connection with certain matters
would be deemed established in accordance with his claimJ
5eventh the party who refuses may be ordered to pay the e9penses
3arty including attorneyGs fees.
Rule "+: 2rial
$nless otherwise provided by the court the order of trial is as follows4
The evidence of the parties is limited to the issues in the preMtrial order.
The only issues which the parties are allowed to present their evidence are those specifed in
the preMtrial order. That is why the preMtrial order if there are only two issues the parties cannot
present any evidence on any other issues e9cept on the issues in the preMtrial order. /owever you
ta,e into account 2ule !6 which allows amendment on pleadings to conform to the evidence.
Aust a reminder4 there are two instances where issues are not raised in the pleadings may be
tried in the court4
!. where an issue is tried by a party without ob-ection on the part of the adverse partyJ
2. when an issue is tried by a party with the ob-ection of the adverse party but the court
fnds that the presentation on that merits of the case would best be served by allowing
evidence to be received in this case.
5o in these two )2* cases these issues though not raised in the pleading may be proven
during the trial.
We go now to 2ule &6 proper.
$nless otherwise stated by the order of the court the order of trial is as follows4
!* the plainti. presents his evidence in support of his compliantJ
2* thereafter the defendants will present their evidence on4
a* their answer to the complaint if there is anyJ
b* their counterclaim if there is anyJ
c* their crossMclaim if there is anyJ
d* their thirdMparty complaint if there is any
&* thereafter the parties against whom counterclaims or crossMclaims were pleaded they
may have to adduce their evidence in support of their answer to these claimsJ
;* thereafter rebuttal evidenceJ
7* it may be followed by subMrebuttal evidenceJ
B* oral argumentsJ or
#* in addition thereto memorandaJ
C* thereafter decision.
This is the order of trial.
8et us apply it.
Example4 A vs. B
00
A.
!. 'omplaint U Kvidence in 'hief
2. Answer to reply to 'ounterclaim U 2ebuttal
&. Answer to 2eply to 'ounterclaim of B U rebuttal evidence of B
B.
!. Answer to complaint counterclaim vs. A
2. B rebut evidence of A
&. 'rossMclaim vs. '
;. &
rd
party complaint
7. Ans. U reply to counterclaim U claim of '
'.
!. Answer to complaint of A
2. 'ounterclaim vs. A
&. Answer counterclaim of B
D.
!. Answer &
rd
party complaint of B
2. 'ounterclaim vs. B
A U Answer to counterclaim of B and '
B U Answer to counterclaim of D
' U Answer to crossMclaim of '
Q. What are the pleadings of A?
A. A has only his complaint.
Q. What is the pleading of B?
A. /is answer to the complaint his counterclaim against A.
There being a counterclaim against him )A* the other pleading of A is his answer or reply to
the counterclaim of B.
8et us apply the order of trial.
$nless otherwise ordered by the court the initial presentation of the evidence in chief is
commenced by A. 5o A now presents his evidence frst on his complaint. :ou call this as his
evidence in chief. (n other words A must produce evidence to support the factual allegations
in his complaint which are disputed in the answer of B.
Q. Will A now prove his defenses to the counterclaim of B?
A. 1o. /e )A* will limit himself to only his complaint. There will be a time for him to adduce
evidence on the second pleading.
After A fnished presenting his evidence on the complaint B if he wants to may now adduce
his evidence.
Q. Why do we say E(f B wants to he may adduce his evidenceF?
A. Because B is not compelled to present his evidence.
(f A failed to adduce the 0uantum of evidence re0uired to present which is preponderance of
evidence B does not have to introduce his evidence and still he )B* will win.
8et us assume that B elects to present his evidence.
Q. %n what manners will he now present his evidence?
A. /e will adduce his evidence frst with respect to his defense in his answer. 5o whatever
defenses he alleges in the answer will be the sub-ect matter of his evidence. After he has presented
his evidence on these matters alleged in his answer he may now adduce evidence on his
counterclaim. After he has fnished presenting his evidence on his counterclaim he will now rest his
case in so far as the answer to a complaint is concerned.
Q. Will this end now the trial?
A. 1o not yet. Why? Because A may present now his evidence on these matters )Answer or reply
to BGs counterclaim because if B did not then we say there is no need for A to present his evidence
in support of his answer to reply to the counterclaim.
5o the evidence inMchief now of B has also been terminated.
Q. What follows ne9t?
A. $nder the order>> 2ebuttal evidence meaning A can rebut the evidence of B. B can rebut the
rebuttal evidence of A.
06
(n actual practice this is how it is done> you will note that per rule &6 there is a separate
stage for the presentation of evidence against the counterclaim or evidence against the crossM
claim. There is another stage for the presentation of the rebuttal evidence.
5o if we follow the order there will be three )&* stages when A would present his evidence.
!. When he present his evidence on his complaint.
2. When he present his evidence in support of his answer to the counterclaim.
&. 8ater his rebuttal to the evidence of B.
But in the actual practice where the parties are only the plainti. and the defendant when A
is proving his answer to the counterclaim of B he may at the same time present his
evidence of B.
5o in actual practice these two )A presents his evidence and at the presents at the same
time the rebuttal are held simultaneously*.
Q. What are these rebuttal evidence?
A. There may be evidence ta,en up when he presented his own evidence. 5o those matters ta,en
up in the evidence inMchief of B may now be rebutted by A.
There may also be new matters ta,en up in the rebuttal evidence of A in which case B can
rebut these rebutting evidence of A. :ou call these rebutting evidence of B the 5ubMrebuttal
Kvidence.
After the evidence is in then the court may order the case submitted for decision unless the
court re0uire parties either to orally argue or fle a memorandum or re0uire both parties to do both
)orally argue and submit a memoranda*.
(n our e9ample for instance there are two)2* defendants )B and '*. 8et us assume that B
fled a crossMclaim against '.
Q. What will be the pleading of '?
A. The pleading of ' will be his answer to the complaint of A and he will have his answer to the
crossMclaim of B.
Q. This being the case what would be the added pleading of A?
A. /e will have his answer or reply to the counterclaim of '.
Q. /ow about B what are the pleadings will he have?
A. /e will have his answer or reply to the counterclaim of '.
During the presentation of B of his evidence since he has a crossMclaim against ' he will
also produce his evidence in support of his crossMclaim.
5o you will notice if he )B* has a crossMclaim this is the order of presentation of his evidence.
/is )B* evidence on his answer to the complaint of A his counterclaim against A his crossMclaim
against '.
' now will also present his evidence. ?irst he will adduce his evidence in support of his
answer to the complaint of A. /e will present his evidence in support of his counterclaim against A.
Q. Will he )'* now adduce evidence in support of his answer to the cross claim of B?
A. 1ot yet. There will be a time for that.
8et us assume that B has li,ewise a thirdMparty complaint against D.
Q. What will be the added pleading of B?
A. /e will have his &
rd
party complaint.
Q. /ow about the pleading now of D?
A. /e will have his answer to the third party complaint of B. /e will now have his counterclaim
against B.
Q. What then will be the added pleading of B?
A. /e will have his answer or reply to the counterclaim of D.
%rder of Trial>>>..
The same things still with A in the order he presents his evidence to support his complaint
and nothing else.
Q. /ow about B?
07
A. B will now introduce evidence on the following4
!. Answer to the complaint of A.
2. 'ounterclaim against A.
&. /is crossMclaim against '.
;. /is thirdMparty complaint against D.
Q. /ow about '?
A. 5ame )as before*
Q. /ow about D?
A. /e will present his evidence in support of his answer to the third party complaint of B. /e will
now present his evidence in support of his counterclaim against B.
This terminates the presentation of the evidence in chief of A B ' and D.
Q. ?ollowing that who now will present his evidence?
A. The parties against whom a counterclaim or a crossMclaim have been pleaded.
(n our e9ample there is a counterclaim pleaded against A by B and '. 5o A now will produce
his evidence in support of his answer to the counterclaims of B and '.
Q. /ow about B is there a counterclaim pleaded against him?
A. :es the counterclaim of D.
Q. /ow about ' is there a counterclaim pleaded against him?
A. 1one but there is a crossMclaim. 5o ' will produce his evidence in support of his answer to the
crossMclaim.
Q. /ow about D is there a counterclaim pleaded against him?
A. 1one.
5o the only persons who will present their evidence in support of their answers to the
counterclaim or crossMclaim are A B and '.
?ollowing this we go again to the same order 2ebuttal 5ubM2ebuttal then oral argument or
memoranda or both then decision.
This is the order of trial under 2ule &6.
$nder 2ule &6 the court may delegate the reception of evidence to a cler% of court who is a
lawyer. This settles the conWicting decisions of the 5' on the 0uestion of whether or not a cler, of
court can be commissioned to receive the evidence.
(n one line of decision held that the cler, of court have such authority.
Another line of decision tells that the cler, of court have no such authority.
This provision now settles the 0uestion. The cler% of court can receive the evidence provided
the cler% of court is a member of the /hilippine Bar.
Q. <ay -udgment be rendered by the court without a trial during which the parties may not
present their evidence anymore?
A. :es this is possible when for instance the parties stipulate on facts and the facts stipulated
upon are enough to serve as basis of a -udgment.
Q. <ay a -udgment be rendered on the basis of the stipulations of facts?
A. :es provided the facts are suOcient as basis of a -udgment.
<rounds of #ostponement
:ou will note that under 2ule &6 that a trial may be postponed on these two )2* grounds4
!. absence of evidence
2. illness of party or illness of a counsel
Q. What is the re0uirement in order that a motion based on these grounds maybe validly acted
upon and granted by the court?
A. The rule re0uires that the motion must be supported by aOdavit. (n case the ground is absence
of evidence the aOdavit must state the materiality of the evidence that is not produced and the
e.orts e9erted to. But even then if the adverse party states that he does not have any ob-ection to
the facts supposed to be established by the testimony of the absent witness although he may later
on ob-ect to their admissibility the rule says the motion for postponement should not be granted.
08
The only problem on this rule is it has been interpreted to be merely directory.
5ometime however during the incumbency of 'hief Austice <arcelo ?ernan 5' issued a
circular directing -udges of the trial court to implement this rule on postponement strictly meaning
postponement should be granted e9cept when there is a compliance with this rule that any motion
for postponement based on absence of evidence should be accompanied with its re0uired aOdavit.
The same thing is true when the ground of postponement is the ailment of the lawyer or of the
client such motion for postponement may be granted or acted upon if it is supported by an aOdavit
showing that the presence of a counsel or a party before the court is necessary and that the
character of the ailment is such as to e9cuse the nonMappearance of the ailing lawyer or litigant.
Again the only trouble with this is it is more often honored in its brea, than in its compliance. 5o
where a lawyer does not feel li,e going to court then he -ustifes it. /e presents a medical
certifcate. Where did he get this medical certifcate? ?rom a doctor friend who will say EAnong sa,it
gusto mo?F these doctors are not realiIing that for falsely certifying they incur criminal liability
under 23'. The lawyer is not realiIing that for introducing in evidence this fa,e medical certifcate
he can also be held criminally liable. And worst of all is a situation where the lawyer himself
becomes a doctor. ?or instance he cannot fnd immediately a doctor friend he ma,es his own
medical certifcate. These things that actually happen practice. These are unethical practicesRRR
Aust stic, to the rule and youGll never go wrongRRR
RENE NOTES:
Not!(e o% Tr!'l
) 5pon entry of the case in the trial calendar, the clerk of court notifies the parties at least five A/) days before trial.
L!m!t't!on on A"&ournments
) one month for each ad,ournment
) three months over all
E,(ept!on
AuthoriFed by the 1upreme 9ourt administrator
Gener'l Rule: !he ,udge must himself personally receive and resolve the evidence of the parties.
9o/e#er7 the reception of such evidence may be delegated under the following conditions*
Aa) !he delegation may be made only in defaults or e2 parte hearings or an agreement in writing by the parties.
Ab) !he reception of evidence shall be made only by the clerk of that court who is a member of the bar.
Ac) said clerk of court shall have no power to rule on ob,ections to any question or to admission of evidence or e2hibits. and
Ad) #e shall submit his report and transcripts of the proceedings, together with the ob,ections to be resolved by the court within ten A14)
days from the termination of the hearing.
Suspens!on o% A(t!ons
Art!(le ;CAC NCC
very civil action or proceeding s!all be suspended
1. if willingness to discuss a possible compromise is e2pressed by one or both parties. or
2. if it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but
the other party refused to offer.
Rule "/: (onsolidation or Se)erance
Q. When does consolidation ta,e place?
A. (f two or more cases have between or among them common 0uestions of fact or of law they
may be consolidated in one court.
Example:
A collision too, place between the vehicles driven by A and the vehicle driven by B. These
were both passenger buses. As a result of the collision damages were su.ered by the buses and
the passengers. 5o A now sued B in the 2T' of +ueIon. The passengers who were in-ured as a
result of the collision H : and @ sued A and B in the 2T' of 'avite.
Q. What is the fact common to both cases?
A. They originated from one and the same incident i.e> the collision.
Q. <ay the two cases be -oined?
A. :es.
Q. (n what court?
A. Kither in the court of +ueIon or in the court of 'avite.
(n this particular case 5' ordered the consolidation of these two cases in the 2T' of 'avite.
Why? ?or practical purposes to minimiIe e9penses. Why? Those who fled the case in 'avite are
residents of 'avite. (f they were to go to +ueIon if these case is consolidated there that would
entail much e9pense to the party. %n the other hand these parties in the court of +ueIon both
being bus companies could a.ord the e9penses of going to 'avite. (f these cases were consolidated
in 'avite.
64
Q. What is the -ustifcation for the consolidation here?
A. There is a common 0uestion of fact or of law common in both cases.
5ee what would happen if cases were tried separately. The possibility of a -udgment
rendered by +ueIon 2T' being di.erent from the -udgment rendered by the 'avite 2T' insofar as
the cause of the accident is concerned may be conWicting so to avoid this )the possibility of
conWict* it is better that these two cases be tried by only one court so that there will be no
possibility of conWicting decisions.
When cases are consolidated in one sala
Q. What would be the proper method for the court to adopt in resolving these cases?
A. The court where the cases are consolidated may try all the cases at the same time and render
only one -udgment.
(n this e9ample the 'avite court could try the +ueIon case and the 'avite case at the same
time render only one decision as if these two cases are only one.
There is another method of consolidation. This presuppose that there are several cases of
the same nature. $nder this option the court where the cases are consolidated may try only the
principal case to receive the evidence of the principal case leaving unheard the other cases. 5ay if
there are fve )7* under the second mode of trying these cases the frst case )the principal of
them* will be heard frst leaving untried the four );* other cases. After the main case has already
been tried then the court will render only one -udgment.
Q. (s a court obliged to hear cases for consolidation?
A. *nder the old rule if the 'avite 'ourt did not want to hear +ueIon case the 'avite court
cannot be compelled to try. The theory is that the court cannot be compelled to hear the case of
another court.
*nder the present ruling no more. As a matter of fact when consolidation is proper,
consolidation is mandatory.
This is the concept of consolidation.
Q. What is se)erance?
A. (t is the opposite of consolidation. (n a case of severance there may be several claims or
several reliefs in which case instead of the court conducting a hearing on all the claims at the same
time it will limit itself to the hearing of a particular claim.
.
A vs. B. The complaint alleges three )&* causes of action. These di.erent causes of actions
and you ,now under the rule a party can -oin all these causes of action against another in only one
complaint sub-ect only to the conditions of -oinder.
There is this complaint of A involving three )&* causes of action. 1ormally the trial would be
conducted on all these causes of action and thereafter the court will render only one -udgment.
But under this severance court may hear only one cause of action remaining unheard the
other causes of action.
(n our cases here B now has a counterclaim against A in respect to his frst cause of action.
$nder this rule on severance the court will try this frst cause of action including the
counterclaim of B. After the reception of evidence in this frst cause of action the court will now
render -udgment leaving undecided these two cases )these two causes of action*. Thereafter the
court again can hear these other causes of action. (n other words it is a trial by installments.
(n the meantime that this case is decided and these two other causes of action are not yet
decided.
Q. 'an this be the sub-ect of enforcement already on it can be the sub-ect of an appeal?
A. :es but the court can suspend the enforcement pending the disposition of these two other
causes of action.
This is how the rule wor,s.
RENE NOTES:
Gener'l Rule: 9onsolidation is discretionary with the trial court.
E,(ept!on: %hen consolidation a matter of duty*
1. when tried before the same ,udge.
2. if filed with different branches of the same court having ,urisdiction and one of such cases has not been partially tried.
T1ree W'ys o% Consol!"'t!n4 C'ses
a) by recasting the cases already instituted, conducting only one hearing and rendering only one decision.
b) by consolidating the e2isting cases and holding only one hearing and rendering only one decision.
c) by hearing only the principal case and suspending the hearing on the others until ,udgment has been rendered in the principal case ATest&
case method#'
61
Rule "2: 2rial $% (ommissioner
Q. What is the situation contemplated here?
A. Ta,e note that under 2ule &6 the reception of the evidence is by the -udge himself or the court
may in case of a default case delegate the reception of the evidence to the 'ler, of 'ourt who is a
member of the bar.
$nder 2ule &2 the party who receives the evidence is other than the -udge. (t is a third
person called the 'ommissioner.
Q. When may the case be tried by a E'ommissionerF?
A. Where the parties agreed in writing that a commissioner be appointed.
5upposing the parties did not agree in writing that a commissioner be appointed or that one
wants a commissioner to be appointed but the other refuses or both refused to agree to a
commissioner.
Q. <ay a commissioner nevertheless be appointed?
A. :es. There are three :C9 instances when the court can appoint a commissioner even without the
written agreement of the parties or even over the objection of the parties. They are the following4
!. where there is a need for the reception of evidence consisting of a long accounts either from
one or both of the partiesJ
2. when the ta,ing of the accounts is necessary for the purpose of informing the court before
-udgment is rendered or of purposes of carrying a -udgment into e.ectJ
&. when a 0uestion of fact other than upon the pleadings arises upon motion or otherwise in
any of stage of a case.
This last situation contemplates that a motion is fled based on facts not on record. Then in the
hearing on this motion a commissioner may be appointed to receive the evidence.
These are the three )&* situations where a commissioner may receive the evidence even over
the ob-ection of the parties.
Q. What is the e9tent of the power of the commissioner?
A. The general rule is his powers are specifed in the order appointing him. What he can do are
specifed.
5upposing however the order does not say anything with respect to the limits of his
authority.
Q. What then is the authority of the commissioner?
A. (n e.ect the commissioner here would be acting as if he were a -udge actually trying the case.
As a matter of fact he may even resolve the ob-ections to the admissibility of evidence. That
is why this is governed by this rule.
When a reference is made the cler, shall forthwith furnish the commissioner with the copy
of the order of reference. The order of reference here is the order issued by the court appointing a
commissioner and stating the commissioner what he is supposed to act on.
5o if the specifc issue for instance is the only matter in connection with which he is
authoriIed to receive evidence then it is only in respect to that issue he may receive the evidence.
Example4
A vs. B. The court may refer the reception of evidence with regard to the case in its entirety.
5upposing there are three )&* issues raised. The court may refer this case to a commissioner
for a trial of letGs say only of issue N!. 5o this issue is the one which is referred to the
commissioner. That is what referred to here as the Eorder of reference.F
Sec. " Rule "2
&hen a reference is made, the cler% shall forthwith furnish the commissioner with a copy of
the order of reference. The order may specify or limit the powers of the commissioner, and may
direct him to report only upon particular issues, or to do or perform particular acts, or to receive
and report evidence only, and may '# the date for beginning and closing the hearings, and for the
'ling of his report. 3ubject to the speci'cations and limitations stated in the order, the
commissioner has and shall e#ercise the power to regulate the proceedings in every hearing before
him and to do all acts and ta%e all measures necessary or proper for the eEcient performance of
his duties under the order. -e may issue subpoenas and subpoena duces tecum, swear witnesses
and unless otherwise provided in the order of reference, he may rule upon the admissibility of
evidence. The trial or hearing before him shall proceed in all aspects as it would if held before the
court.
5o that in what he can do )underlined provision* if he is not restrained by the order he can
rule on the admissibility of evidence. (n short the commissioner conducts the hearing as if he were
a -udge. What the -udge can do generally he can do.
62
Q. What is the frst then that the commissioner does when he receives the order of preference
involving parties to a conference?
A. 'onference must be held not later than ten )!6* days from his receipt from order of reference.
Before the commissioner sets the date of the hearing the parties will appear before him so
he will conduct the trial.
5o he fnishes the trial.
Q. What shall he now do?
A. /e will now prepare a report. 5ubmit the report to the court.
Q. What is this report all about?
A. The report concerns the proceedings that were conducted before him. (f he is not prohibited by
the order of preference he can submit his fndings of fact. (t is as if he was the one who evaluates
the evidence.
5o he forwards then to the court the entire records including the transcripts of the
proceedings the e9hibits if there are any.
Q. What is the duty of the 'ler, of 'ourt upon receipt of this report?
A. The 'ler, of 'ourt is mandated to furnish to the parties A and B copies of the report.
Q. What for?
A. 5o that A and B can ma,e their comments on the report of their ob-ections to that report. They
can do this within ten )!6* days from their receipt of the copy of the report.
Q. What shall be done with this report upon the fling of these commentsLob-ections or upon the
e9piration of the period of the fling thereof?
A. The court will now set the report for hearing. After the hearing the court will resolve the report
either to approve the report or disapprove the report recommit the report to the commissioner or
re0uire the parties to present their evidence either before the commissioner himself or before the
court itself.
Q. What is meant by this?
A. The report is not binding on the court it is merely recommendatory.
Sec. /+ Rule "2
*pon the 'ling of the report, the parties shall be noti'ed by the cler%, and they shall be
allowed ten :"D9 days within which to signify grounds of objections to the 'ndings of the report, if
they so desire. 5bjections to the report based upon grounds which were available to the parties
during the proceedings before the commissioner, other than objections to the 'ndings and
conclusions therein set forth shall not be considered by the court unless they were made before the
commissioner.
Sec. // Rule "2
*pon the e#piration of the period of ten :"D9 days referred to in the proceeding section, the
report shall be set for hearing, after which the court shall issue an order adapting, modifying, or
rejecting the report in whole or in part, or recommitting it with instructions, or re$uiring the parties
to present further evidence before the commissioner or the court.
)Thereafter the court will decide the case.*
RENE NOTES:
+ (efusal of witness to testify or give evidence < deemed indirect contempt of the court which appointed the commissioner.
Rule "": *emurrer to E)idence
Q. What is the situation contemplated by this rule?
A. After the plainti. has rested its case it is now the turn of the defendant to present his evidence.
(n our e9ample A fnished presenting his evidence. A said E( now rest my case your /onor.F
<eaning A has no further evidence to adduce. 5o for instance his witnesses are H : and @. Then
he have e9hibits EAF EBF and E'F. 5o after these three )&* )H : and @* fnished testifying he )A* will
formally o.er his documentary e9hibits. A will say E( have no more testimonial evidence to o.er (
now present formally my documentary e9hibits.F
'ourt4 What does B say?
B4 E( do not have any ob-ection :our honor.F
'ourt4 E3roceed AF
A4 E( o.er your honor the following e9hibits4 EAF to prove the followingJ EBF to prove>J
E'F>>>..F
'ourt4 What does B say?
B4 E( have no ob-ection.F %r E( ob-ect to K9hibit E'F.
6
)When you ob-ect always state the legal ground. :ou cannot say. E( ob-ectF and then sit down.
'ourt4 What is the ground?
B4 EBahala na ,ayo -udgeRF
:ou must state the ground for ob-ections so that the court may rule on whether the ob-ection
is proper or not because an ob-ection may be proper but the ground is improper. (t is proper to
ob-ect but the ground raised is improper. 5o the court will overrule the ob-ection. This is the reason
why the ob-ection should always be stated with its respective ground. The ob-ection can be ruled
upon only on the basis of the ground relied.
'ourt4 EK9hibits EAF EBF and E'F are admitted.F
Q. What is now the ne9t thing for B to do?
A. (t is now the turn of B to present his evidence if he wants to. Why Eif he wants toF?
Because he )B* may not li,e to present his evidence. :ou cannot compel him because a party has to
choose the evidence he presents. /e cannot be compelled. 5o if he )B* does not want any
evidence no power on earth can compel him. But instead of immediately saying E( will not present
any evidenceF he wants to test whether the evidence of A is suOcient or not.
Q. What legal device is he allowed to utiliIe?
A. 4emurrer to evidence.
Q. What is the concept of demurrer to e)idence?
A. When B fles a demurrer to evidence he simply says in e.ect. The evidence of A consisting of
the testimonies of H : and @ and the document e9hibits EAF EBF and E'F even if given all their
weight they are utiliIed to is not simply suOcient to prove the case of A. Therefore it is useless for
me to present my evidence because under 2ule !&& it is the duty of A to discharge the burden of
proof and since he failed itGs not my duty anymore to prove my defense. This is the assumption
when B fles the demurrer to evidence. The evidence of A is insuOcient therefore the complaint
must be dismissed.
The court has options in ruling on this demurrer to evidence. (t may deny the demurrer to
evidence.
Q. What is the implication of its denial of the demurrer to evidence?
A. ?rom the point of view of the court the evidence of A is suOcient prima facie to support his
case.
The court may grant the demurrer.
Q. What is the implication of the order of the court granting the demurrer?
A. (t is a pronouncement by the court that the evidence of A is not suOcient to prove his case.
Q. What then would be the e.ect of grant?
A. The complaint of A is dismissed. But this order of dismissal may be appealed by A.
The possibilities are the appellate court may aOrm the order of dismissal or it may reverse
the order of dismissal it simply means that the appellate court agrees with the trial court that the
evidence of the plainti. is insuOcient. And so the complaint remains dismissed.
The trouble arises when the order says the order of dismissal is improper. Therefore the
order of dismissal is reversed.
Q. What is the implication of that?
A. The implication is that the evidence of A is suOcient to prove his case. 5o the order of
dismissal is set aside.
Q. What is the e.ect of the reversal order of dismissal on the right of B to present his evidence?
'an he present his evidence or not?
A. /e cannot present his evidence because by electing to fle the demurrer to evidence he in
e.ect submitted the case for decision solely on the basis of the evidence of the plainti. )A*.
But supposing in our e9ample at the time B fled the demurrer to evidence he said Ein the
event the demurrer to evidence is granted and the order of dismissal is reversed reserved the
right to present my evidence.F
Q. Will this reservation allow him to present his evidence?
A. 1o. :ou cannot reserve the right to present evidence in the event the order of dismissal is
reversed on the appeal.
RENE NOTES:

DE3URRER TO EVIDENCE 3OTION TO DIS3ISS
6"
+ it is presented after the plaintiff has rested his case + presented before a responsive pleading Aanswer) is made by
the defendant
+ the ground is based on insufficiency of evidence + it may be based on any of those enumerated in (ule 10
TWO ?INDS O6 DE3URRER TO EVIDENCE
CIVIL CASES CRI3INAL CASES
1. defendant need not ask for leave of court 1. leave of court is necessary so that the accused could present
his evidence if the demurrer is denied.
2. i" t!e court "inds t!e plainti""s evidence insu""icient, it will
grant the demurrer by dismissing the complaint. !he ,udgment
of dismissal is appealable by the plaintiff. If the plaintiff appeals
and ,udgment is reversed by the appellate court, it will decide
the case on the basis of the plaintiff3s evidence with the
consequence that the defendant already loses his right to present
evidence. -o res ,udicata in dismissal due to demurrer.
2. i" t!e court "inds t!e prosecutions evidence insu""icient, it
will grant the demurrer by rendering ,udgment acquitting the
accused. Dudgment of acquittal is not appeallable. double
,eopardy sets in.
. i" court denies demurrer, defendant will present his evidence. . i" court denies t!e demurrer
Aa) if demurrer was with leave of court, accused may present
his evidence.
Ab) if demurrer was without leave of court, accused can no
longer present his evidence and submits the case for decision
based on the prosecution3s evidence.
Rule ",: Gud.ment on t6e #leadin.s
This rule presupposes that the answer of the defendant does not tender any issue. Before
that the answer against the material allegations in the complaint.
Example4
A vs. B. This is an action for recovery of sum of money. The complaint alleges in substance
that A e9tended a loan to B as evidence by a promissory note signed by B. A copy of that
promissory note is attached to complaint as Anne9 EAF. B has not paid the loan notwithstanding
demand on him to do so the period for the payment thereof having already become due.
Q. What is now the prayer of A?
A. That a -udgment be rendered against B to pay the amount of promissory note.
Q. What is the answer of B?
A. B denies all the allegations in the complaint.
Q. What is his )B* prayer now?
A. That the complaint of A be dismissed.
Q. (s there an issue tendered by the answer of B?
A. $nder the rule on denial was there a specifc denial of the allegations in the complaint? 1one.
Why? Because for a specifc denial to be specifc the rule re0uire the defendant to do any of the
following4
!* specify the matters he deniesJ
2* allege the facts in support of his denial.
(f the allegation is made up of two or more facts part of which he admits part of which he
denies the rule re0uires him specify so much of the allegation that he admits as true and deny
the rest.
&* if he is not in a position to state whether he admits or denies the allegations he is re0uired
to state that he has no ,nowledge suOcient to form a belief as to the truth of the allegation
in the complaint. This ,ind of denial is the e.ect of the specifc denial. This ,ind of denial is
the e.ect of the specifc denial.
Q. Did B complied?
A. 1o. This is a general denial.
Q. What is the e.ect of a general denial?
A. An admission of all the allegations.
5ince the promissory note is an actionable document because that is the basis of the action of A>
Q. What is the e.ect of failure of B to deny under oath the genuineness and due e9ecution of this
document?
A. /e is deemed to have admitted the genuineness of the note. 5o he now admits for his failure
to deny under oath the promissory note.
5o there is nothing to be proven by A here everything is already admitted. (n this case A
may now fle a motion that a -udgment be rendered on the basis of only what is alleged in the
complaint.
6/
Q. Will the court receive evidence either for A or B before -udgment can be rendered?
A. 1o more. There is no reception anymore.
This is how the -udgment on the pleading is rendered. There is one limitation however with
respect to -udgment of the pleading where damages which are not li0uidated are alleged and
attorneys fees are also as,ed to be paid but there is no proof of this amount of the unli0uidated
damages.
Q. 'an there be a -udgment including damages and attorneys fees done in which case if the
plainti. wants a -udgment include attorneys fees and damages he must produce evidence?
A. We have a rule with respect to attorneys fees that not every litigant who prevails in the case is
entitled to attorneys fees because to do so would be to ma,e pre-udice on the right of A. ?or
attorneys fees to be awarded the basis thereof must be stated in the decision. (n other words the
decision must always state attorneys fees awarded the basis thereof. (n the absence of that
-ustifcation no award of attorneys fees can be rendered unless the attorneys fees is considered as
li0uidated damages.
Again in the case of unli0uidated damages you have to prove the amount thereof. (n the
absence thereof you cannot render a -udgment of the pleadings on damages.
RENE NOTES:
W1't ('ses not 'ppl!('5le:
1. nullity of marriage
2. annulment of marriage
. legal separation
) ;aterial facts of the complaint shall always be proved.
Rule "5: Summar% Gud.ments
Q. What is the concept of summar% jud.ment?
A. A summary -udgment is one which is rendered by the court on motion of a party either of the
plainti. or the defendant where there is actually no genuine issue between the parties.
(n this case a -udgment is rendered on the basis of evidence which is not receive in the
manner that evidence is received under 2ule &6 )Trial*
2emember that we too, up in 2ule &6 a plainti. must present his evidence the defendant
must assert his evidence thereafter the court will decide the case. The reception of evidence is
governed by 5ec. &; of 2ule !&&! )3resentation of Kvidence*.
(n a summary -udgment when a -udgment is rendered there is evidence received but it is
evidence which is not formally o.ered in evidence.
Q. Who is entitled to a summary -udgment?
A. Kither the plainti. or the defendant.
+n the case of the plaintif the defendant who has a counterclaim the plainti. who has a right
to a declaratory relief may fle a motion for summary -udgment. When? After an answer to his claim
has been served on him.
Example4 A vs. B )?or 5um of <oney*
The allegations in the complaint are substantially as follows4
A e9tended a loan to B. B signed a promissory note to evidence the loan. The period for
payment of the loan has already e9pired and demands notwithstanding B failed to pay the loan.
Q. What is the prayer now of A?
A. That -udgment be rendered ordering B to pay him the amount of loan.
Q. What is the answer of B?
A. B denies the allegations in the complaint that he obtained money from AJ that he signed the
promissory note Anne9 EAF. That the demand was made.
Q. What is his )B* defense?
A. (f there was any loan e9tended to me )B* he already paid the loan.
?rom the face of the pleadings there are issues4
!* Did he )A* e9tend the loan?
2* Did he )B* sign the promissory note?
&* Did he )B* pay if there was a loan?
$nder 2ule &6 a trial should be held during which A and B are to prove their respective sides of
the issues.
60
But the truth however is this4
That A indeed gave a loan to B. That B indeed signed the promissory note. That B did not pay
the loan.
Q. What is the remedy available to A so that even without a formal presentation in evidence by A
and B a -udgment may now be rendered in favor of A?
A. $nder 2ule &7 this is the remedy available to A>
8et us say A ta,es the deposition of H under 2ule 2&.
Q. What did H say in his deposition?
E( was as,ed by A to go to B and collect from him the amount covered in the promissory.F B
replied to me ETell A that ( will pay him after ( have sold the tobacco leaves ( e9pect to harvest from
my land.F ( went bac, to B on the date he specifed. B said E( cannot pay A because ( was not able
to harvest any tobacco leaf. Why did ( not harvest? Because ( did not plantRF
This is the deposition.
A sent a re$uest for admission to B.
To B )defendant*
QreetingsR
:ou are hereby re0uested to admit the truth of the following statements4
!* That H went to you to demand in my name that you pay the promissory noteJ
2* That you told him that you will pay me after you shall have sold the tobacco leaves you
e9pect to harvest from your farmJ and
&* That he went bac, to you on the specifed date and you told him that you cannot pay me
because you have not planted any tobacco in your feld
;* That you do not have any receipt showing that you paid any amount.
Q. What do we learn about the re0uest?
A. That B did not send A within the time mentioned in the re0uest any denial under oath of the
matters referred to in the re0uest.
A now e9ecuted an aEdavit.
Q. What is the content of the aOdavit?
A. The matters related to the law the failure of B to pay e9ecution by B of the promissory note
the fact that H went to B to demand payment and the answers of B to the demands of H.
Q. What do you notice now?
A. A now has in his hands the deposition of H the re0uest for admission the aOdavit of A.
Q. What does A now do with these papers?
A. /e will attach them now to a motion in which he prays for a summary -udgment.
Q. What does A do with this motion to which are attached these documents?
A. /e will fle them and serve a copy thereof on B at least ten )!6* days before the hearing of the
motion.
(t means to say that a motion for summary -udgment being litigated must be set for hearing
strictly in accordance with 2ule !7.
1ote that under 2ule !7 )<otions* a motion should be heard not later than !6 days after it is
fled. This 2ule &7 is an e9ception to the 2ule !7. Why? Because you cannot hear the motion for
summary -udgment within !6 days from its fling. Why? Because between the fling and the hearing
a period of not less than !6 days must frst elapsed to allow the defendant to fle his opposition if
there is any to the motion.
Q. What shall B do after he have been served?
A. (f he )B* so desires he may also fle an opposition to the motion for summary -udgment. 8i,e A
he may also support his opposition with his sworn aOdavit deposition or other documents.
Q. What will B do with the opposition?
A. 1aturally he must fle it with the court and serve on A a copy later on.
%n the appointed day of hearing which is not earlier than !6 days following the fling
thereof>
Q. What shall the court do?
A. The court will now hear the motion.
Q. /ow will the court proceed to hear the motion?
A. This is what the court will do4
66
(t will e9amine the complaint the answer the motion for summary -udgment and the
documents attached thereto the opposition if any and the documents attached thereto.
The court will e9amine both and if the court fnd from the documents the pleadings and the
documents attached to the pleadings and motions and oppositions the court fnds that e9cept to
the amount of damages the plainti. is entitled as a matter of law to a -udgment because the issues
raised are not substantial but they are merely sham then the court will render a -udgment in favor
of the plainti..
But if the court e9amined the pleadings documents attached to the motions and oppositions
and fnds that they are disputed and therefore cannot render a -udgment on the call of the motion
then the court will in addition to e9amining the records shall determine what are the facts that are
not substantially disputed separate them and determine the facts which are not disputed
thereafter the court will conduct a trial on the matters that are disputed and thereafter render the
-udgment.
5ee now why it is summary. Because there is no reception of evidence if the court fnds from
the pleadings that a -udgment can properly be rendered in favor of the plainti..
Q. What now would be the basis of the -udgment?
A. %nly the pleadings and the documents attached to the motion and the documents attached to
the opposition if there is any.
Q. Did you notice in our e9ample whether these documents attached to the motion or to the
opposition were personally o.ered?
A. 1o they were not formally o.ered. They are merely attached.
Q. What do we learn about the Eo.er of e9hibitsF?
A. 1o evidence shall be considered unless the o.er is made and the purpose of the o.er is
specifed.
/ere there was no purpose here the purpose was not specifed but they were introduced.
That is how summary -udgment wor,s.
(n our case it was the plainti. alone who fled it.
Q. When will A fle his motion for summary -udgment?
A. After B has served his answer on A.
Q. 'annot B also fle a motion for summary -udgment?
A. :es the rule says Eat any time.F
Q. Does that )Eat any timeF* mean that even before B has served his answer on A he can now fle
a motion for summary -udgment?
A. :es. This is the distinction between a motion for summary -udgment on the part of the plainti.
and the motion for summary -udgment on the part of the defendant.
+n the case of the plaintif he cannot fle the motion for summary -udgment until he has
been served the answer. And this is for obvious reason how can A determine whether there are
issues generally raised if there is no answer which have been fled.
But in the case of the defendant noR /e does not have to fle the answer because on the
basis only of the complaint a summary -udgment can be e.ected.
A sub-ect for a summary -udgment on the part of the plainti. is not limited to the claim he
has against B )defendant*. (t may also include a claim arising from a right involving a declaratory
relief.
5ummary -udgment for claimant. party see%ing to recover upon a claim, counterclaim or
cross.claim or to obtain a declaratory relief may any time after the pleading and answer thereto
has been served, moved with supporting aEdavit, depositions, admissions for summary judgments
in his favor upon all or any party thereto.
Q. /ow does this rule that a summary -udgment may be obtained in case of a counterclaim or a
crossMclaim arise?
A. (n our e9ample for instance in this action for money B has a counterclaim against A.
Q. 'an B fle a motion for summary -udgment on this counterclaim?
A. :es.
Q. When?
A. After A has served on B his answer to the counterclaim then B can move a summary -udgment
on the counterclaim.
8et us suppose that B has a crossMclaim against '.
67
Q. 'an B fle a motion for summary -udgment on the crossMclaim against '?
A. :es after ' has served on B his answer to the crossMclaim.
Q. What will be the procedure?
A. The same procedure that may be adopted by A if he fles a motion for summary -udgment
against B.
The right to fle a motion for summary -udgment belongs both to the plainti. and the
defendant. The only di.erence being that in the case of the plainti. he can fle a motion only after
he has been served with the answer to his claim. (n the case of the defendant he can fle his
motion for summary -udgment at any time even before he serve his answer.
A counterclaimant a crossMclaimant can li,ewise fle a motion for summary -udgment with
respect to the counterclaim with respect to the crossMclaim at anytime after an answer thereto has
been served on him.
RENE NOTES:
+ 1ummary Dudgment is especially applicable to special civil action for declaratory relief.
+ Croper only in actions
1. to recover a debt
2. for a liquidated sum of money
. for declaratory relief
SU33AR8 UDG3ENT UDG3ENT ON T9E PLEADINGS UDGE3ENT :8 DE6AULT <Rule D*
+ based on the pleadings, depositions,
admissions and affidavits
+ based solely on the pleadings + based on the complaint and evidence,
if presentation is required
+ available to both plaintiff and
defendant
+ generally available only on the
plaintiff, unless the defendant presents a
counterclaim.
+ available to plaintiff
+ there is no genuine issue between the
parties, i.e. there may be issues but these
are irrelevant
+ there is no issue or there is an
admission of the material allegations.
+ no issues as no answer is filed by the
defending party.
+ 14)day notice required + )day notice required + )day notice rule applies
+ may be interlocutory or on the merits + on the merits + on the merits
Rule "!: Gud.mentsF 9inal :rders and Entr% 26ereof
Section /.
judgment or 'nal order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly, the facts and the law on which it is
based, signed by him and 'led with the cler% of court.
5ection ! of 2ule &B provides that the court must render a -udgment. The rule re0uires that
the -udge himself must personally prepare the -udgment.
Q. Does this mean that the rule re0uires the -udge to be a typist or stenographer?
A. 1o. Why? The re0uirement that the -udge must personally prepare the -udgment simply says
that the -udge must be the one to ascertain the facts that are established by the evidence. The
-udge for instance cannot commission the cler, of court to study records of the case evaluate the
evidence and then write the decision. The rule re0uires the court to e9amine the records and
evaluate the evidence come up with the conclusion and thereafter ma,e the decision. The
mechanical act of writing a decision can be delegated to a third person.
5o this is how it is done. The -udge e9amines the evidence hereafter arrives at a conclusion.
Q. 5o what does he )-udge* do?
A. /e now calls on his secretary or his stenographer and dictate to the stenographer. The
stenographer thus writes the decision. Thereafter the -udge signs it.
Q. (s this a decision that must be personally prepared by the -udge?
A. :es because the rule does not re0uire he )-udge* would be the typist or stenographer
otherwise he would not have devoted so many years of his life studying law only to become a typist
or a stenographer.
The rule further re0uires that the -udge must ma,e in his decision the complete fndings of
fact.
Q. What is meant by this )complete 'ndings of fact9 K
A. A complete fnding of fact presupposes that the court has studied the evidence and found out
what the facts that have been established in by the evidence.
68
&hat the law re$uires him to do is to ma%e a 'nding of facts. The rule does not re$uire him to
ma%e a conclusion of facts.
?or instance the issue is whether A is the owner of the land in 0uestion. The court now
assesses the evidence of A consisting of the testimonies of H : and @. Kvidence of B consisting of
the testimonies of ' D and K. K9hibits of A are K9hibits EAF EBF and E'F. K9hibits of B are K9hibits
E!F E2F and E&F.
This is what the court wrote in the decision> EAfter going over the evidence presented by A
and B the court fnds that A is the owner of the land. Wherefore -udgment is rendered declaring A
the owner of the land and ordering B to surrender its possession to A. The court further orders B to
pay A in damages in the amount of 3!666666.6!.F
Q. (s that a fndings of fact?
A. 1o. That is a conclusion brought on the evidence.
Q. What would have been the fndings of fact here?
A. The court should have stated in the decision the basis of its fndings that A is the owner.
Q. (n this e9ample is there anything said in the decision which supports the conclusion of the
court?
A. ThereGs nothing. 5o that when B for instance appeals from the -udgment what will be the basis
of his assigned error when there is nothing in the decision for which an error may have occurred.
This is what the court should have done to support its conclusion that A is the owner of the
land. ?or instance it will say Ethe evidence shows that this land originally belonged to H the father
of A. This land is covered by a 'ertifcate of Title in the name of H. )e9hibit EAF* H paid the ta9es of
this land. )K9hibit EBF* A has been in possession of this land until he died !"C6. After the death of H
A his son too, possession of the land.
5o from this you can infer why A is the owner. Those statements after the fndings of fact.
Those are supposed to be stated.
judgment should be in writing, dated and signed by the judge. $nless it is in writing and
signed by the -udge and dated it is not a -udgment at all.
Q. 5upposing the court promulgated a -udgment in open court is that a valid -udgment?
A. 1o. Why? Because a -udgment is supposed to be in writing and duly promulgated. As long as the
-udgment though signed by the -udge is not promulgated it is no -udgment >
Q. When is -udgment deemed promulgated?
A. A -udgment is deemed promulgated on the day the -udge gives his -udgment or decision to the
cler, of court. +t +s the 'ling of the judge with the cler% of court that constitutes the promulgation
thereof.
(n our e9ample the court render -udgment in favor of A already signed but ,ept his
-udgment on his chamber.
Q. (s this a -udgment within the meaning of 2ule &B?
A. 1o. Why? Because it has not been delivered to the cler, of court.
5upposing the -udge delivers this to the cler, of court Dec. ! !""C.
Q. When is the -udgment deemed to have been promulgated?
A. %n this day Dec. ! !""C. (tGs the delivery of the -udgment to the cler, of court that constitutes
its promulgation.
Q. What are the parts of t6e jud.ment?
A. :ou have the following4
!* opinion of the courtJ
2* dispositive portion of the -udgmentJ
&* date of -udgmentJ and
;* promulgation
Q. What is meant by the opinion of the court?
A. The opinion of the court consists of the fndings of fact of the court. (ts fndings of facts would
be the basis of dispositive portion of the -udgment.
?or instance A. vs. B. The court rendered a decision. The frst part of the -udgment is the discussion
of the court of the evidence.
5upposing from its discussion the court concludes that A is the owner of the land.
Q. What now is the -udgment of the court here?
A. (t is that part of -udgment or decision which ad-udicates the rights of the parties. (t says here>
74
EW/K2K?%2K the court hereby renders -udgment declaring the owner of the land.F
This is the -udgment. This is the ad-udication of the issues of the parties.
Q. (s it possible that there be a contradiction between the opinion of the court and the -udgment of
the court?
A. :es it is possible.
?or instance in our e9ample here the discussion and the opinion points to this conclusion
that A is the owner of the land. But the dispositive portion says EWherefore the court hereby
declares B the owner of the land and dismisses the complaint.F
:ou will notice that there is a discrepancy between the opinion of the court and the
dispositive portion. Whereas the opinion of the court the discussion of the court A is the owner and
in the dispositive portion he is not the owner it is B.
This reminds Audge 8aggui of an incident where the counsel for the accused appeared for
preliminary investigation in the case of theft of large cattle. The owner of the cow supposedly stolen
engaged a private counsel. The private counsel appeared for a preliminary investigation. Because
there was no prosecutor representing the state the counsel for the accused moved that the private
counsel be dis0ualifed on the theory that private counsel cannot appear for the state unless the
public prosecutor has authoriIed him to do so. 5ince the public prosecutor was not in court and
there was no authority of the private counsel to represent the state he has brought to present the
evidences of the state. After arguments the court ruled the motion to dis0ualify the private counsel
is denied. /owever the counsel for the private party is re0uired to frst secure the authority of the
fscal before he can proceed.
)1otice that the opinion varies with the dispositive portion. The dispositive portion should
prevail*
Q. WhatGs the concept of se)eral jud.ments?
A. (n the case of several -udgments there are two or more defendants and the liability that they
have with respect to the obligation is -oint.
(n case li,e this )-oint* a -udgment may be rendered against one or some of them in the
meantime the case against the others may be held in abeyance and thereafter another -udgment
may be rendered.
Example:
A is the creditor of B and '. The liability of B and ' is -oint. 8et us say they argued a
promissory note in favor of A for 3766666. 8et us assume that A prosecute his case against B only
because in the meantime ' although sued and inspite his answer in that in the meantime in the
-urisdiction of the court. 5o the court tries the case with respect to B only.
Q. 'an this be done?
A. :es.
Q. (n the meantime that this case against B is being heard what becomes of his case in so far as A
and ' are concerned?
A. (ts suspended.
5o this case by A against B can proceed to fnality. 5o the court can tender a -udgment at
here.
When ' is bac, in the 3hilippines the court may now hear the case against ' and another
-udgment may now be rendered. 5ince the liability is -oint the -udgment that may be rendered here
will only cover the liability of B to the e9tent of 3276 666. 5o the court rendered a -udgment
against B in favor of A. the -udgment will be limited only to 3276666.66 it will not a.ect the other
3276666.66 which pertains to '. so when the court renders its -udgment with respect to ' the
court will limit its -udgment to the amount of 3276666.6 corresponding to the liability of '.
Q. 5o what do you notice here?
A. There are two -udgments. %ne with respect to A and B and the other with respect to A and '.
5o we call these -udgments here several -udgments. This applies only where the liability of
the defendant is -oint and severable. (f the liability is solidary this cannot be done. 5o if the
obligation of B and ' is solidary.
Q. 'an you have this case?
A. 1o. :ou render a -udgment only one.
71
Q. /ow about separate jud.ment what is the di.erence between a separate -udgment and a
several -udgment?
A.
Example4
The causes of action of A are ! 2 &. 5o there are three causes of action against B. B has
several defenses. 8etGs say permissive counterclaim against A.
Q. What can be done in the trial of this case?
A. The court may conduct a trial with respect to these frst two causes of action holding in
abeyance the hearing on the third cause of action. After the court has heard all these )two causes*
causes of action including counterclaims that A had been raised with respect to these two causes of
action. Then the court will render a -udgment on these two causes of action holding in abeyance the
hearing on the third cause of action. Thereafter the court will hear this third cause of action.
5o you will see that there is already a -udgment on the frst two causes of action.
Then the court will render a -udgment on this third cause of action.
The court will also hear separately the permissive counterclaim and thereafter render a
-udgment thereof.
Q. 5o how many -udgments now do you have?
A. There are three )&*. 5o you have separate -udgments.
Q. What do you consider as the di.erence between separate -udgments and several -udgments?
A. (n separate judgments what is several are the causes of action or claims or counterclaims.
(n the case of several judgments what are several are the number of defendants.
Se)eral Gud.ments (Sec. , Rule "!
+n an action against several defendants, the court may, when a several judgment is a
prosper, render judgment against one or more of them, leaving the action to proceed against the
others.
Separate Gud.ments (Sec. 5 Rule "!
&hen more than one claim for relief is presented in an action, the court, at any stage, upon
determination of the issues material to a particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of the claim, may render a separate
judgment disposing of such claim. The judgment shall terminate the action with respect to the
claim disposed of and the action shall proceed as to the remaining claims. +n case a separate
judgment is rendered, the court may order its enforcement until the rendition of a subse$uent
judgments and may prescribe such conditions as may be necessary to secure the bene't thereof to
the party in whose favor the judgment is rendered.
Q. (n this case of separate -udgments for instance after the -udgment in the frst two causes of
action has become fnal may it be e9ecuted or may be the sub-ect of an appeal?
A. 1ot yet because the court may defer the enforcement thereof to await the result of the hearing
of the other cause of action.
This is what is meant by separate -udgment.
Sec. ! Rule "!
&hen a judgment is rendered against two or more persons sued as an entity without
juridical personality, the judgment shall set out their individual or proper names, if %nown.
This 5ec. B 2ule &B refers to a case when the -udgment involves an entity which has not
-uridical personality.
:ou remember the rule that entities without -uridical personalities may be sued but when the
answer is fled the names of the persons ma,ing up that entity without -uridical personality must
be stated.
This is now what is re0uired when the -udgment is rendered with respect to group of people
who will not have separate -uridical personality.
5o here if H : and @ are sued as an entity but they do not have a separate -uridical
personality then the -udgment against them will set out the names of the parties ma,ing up this
entity.
5o if the entity is sued as H : and @. <ar,eting the -udgment against H : and @.
<ar,eting the names of the individual persons who made that namely H : and @ will be set up in
the answer.
72
RE4E 4:2ES:
Re$u!s!tes o% A u"4ment
1. It should be in writing, personally and directly prepared by the ,udge
2. ;ust state clearly and distinctly the facts and the law on which it is based
. It should contain a dispositive part and it should be signed by the ,udge and filed with the clerk of court.
Promul4't!on = !he process by which a decision is published, officially announced, made known to public or delivered to the clerk of
court for filing, coupled with notice to the parties of their counsel.
+ A ,udgment based on a compromise otherwise known as (udicial compromise has the force of law and is conclusive between parties. -ot
appealable.
+ !he power to amend the ,udgment is inherent to the court before ,udgment becomes final and e2ecutory. $nce a ,udgment has attained
finality Ae2piration of the period to appeal), no further amendment or correction can be made by the court e2cept for clerical error or
mistakes.
+ Attack of ,udgment may be direct or collateral
Direct )ttac*
a. before finality
1. motion for new trial or reconsideration
2. appeal
b. after finality
1. relief from ,udgment, (ule 7
2. annulment of ,udgment, (ule "6
Rule "1: 4e0 2rial or Reconsideration
This presupposes that a -udgment has already been rendered either for the plainti. against
the defendant or for the defendant against the plainti.. Any of them can fle a motion for
reconsideration.
Q. Within what period the motion for new trial or a motion for reconsideration may be fled?
A. At any time before the -udgment has become fnal. After the -udgment has become fnal the
remedy is no longer a motion for new trial it may be another remedy already such as petition for
relief under 2ule &C but certainly not a motion for new trial.
26ere are onl% t0o .rounds for motion for ne0 trial4
!* <raud, ccident, ,ista%e or 7#cusable negligence )9A'E* which resulted in the -udgment
against the movantJ
2* 8ewly discovered evidence :4*E9. Kvidence which the movant could not have presented
during the trial and which if presented will probably alter the result of the cast.
Example4 A vs. B
The -udgment was rendered against B.
Q. What was the reason why a -udgment was rendered against B?
A. Because of ?A<K. 5o this ?A<K resulted in a -udgment which is pre-udicial to his interest.
/e now wants that this -udgment against him )B* is set aside and that a new trial be held.
Because after a -udgment he discovered evidence which could either be testimonial or
documentary and which evidence he could not have presented during the trial because even if he
e9erted e.orts to procure it he could not procure it. This evidence if presented will probably alter
the result of the case. 5o there are the only two )2* grounds.
3rocedure> now>
Q. What are the re0uirements so that B must comply with?
A. %f course he must have to fle a motion for reconsideration stating therein the ground)s*.
ccompanying the motion must be his aEdavit of merit.
Q. %n what facts may this aOdavit of merit may be fled?
A. 8et us say with respect to the ground for instance the ground is ?A<K then the aOdavit of
merit consists of facts constituting all the fame.
(f the ground is newly discovered evidence the motion must be accompanied by the
statement of the person with whose testimony the newly discovered evidence is based. 8etGs say
the newly discovered evidence is the document or a copy of the document must be attached to it.
ll the grounds for the motion for new trial must be alleged in the motion. Why? Any ground
already available at the time the motion is fled but not alleged therein is deemed waived.
Q. What now will happen with this motion fled by B?
A. This is a litigated motion and therefore should be set for hearing strictly in accordance with 2ule
!C.
7
)With respect to the aOdavit of merit in case it is the defendant who fled a motion for new trial he
should accompany his motion with a statement of a fact constituting his defense. (f it is the plainti.
for instance who fled the aOdavit of merit shall state the fact constituting his cause of action.*
5o the motion now is set for hearing in accordance with 2ule !7. 5o the court will resolve
the motion whether to grant it or to deny it. The motion may if it was established that there were
?A<K that resulted in the rendition of -udgment against B in this e9ample then the motion will be
granted. (f the basis is newly discovered evidence and the court fnds that the newly discovered
evidence then the court will grant otherwise the court will deny.
Q. What is the e.ect of the grant of the motion for new trial?
A. The -udgment already rendered is set aside as if no -udgment at all was rendered.
(n this e9ample if the motion for new trial of B is granted the -udgment already rendered
against him is set aside.
Q. What now is the e.ect of the order granting the motion for new trial on the evidence already
received?
A. (n this case the evidence of the party consisted of the testimonies of H : and @ and e9hibits A
B and '.
Q. What now becomes the evidence?
A. (f the motion for new trial is based on ?A<K the rule says Hthe evidence afected by the <,7
will be set aside.F 5o if the evidence that is a.ected by this fraud is that coming from H this will be
set aside only there testimonies of : and @ and e9hibits A B and ' will remain.
5o the court will conduct a trial. The court may render another -udgment after conducting
the new trial. (n deciding this case now
Q. What evidence may the court ta,e into account?
A. The testimonies of : and @ and e9hibits A B and '. (t will disregard the testimony of H. 5o if
another witness will testify and say K then his testimony will also be ta,en into account.
Q. /ow about these testimonies a.ected by B?
A. (f they are not a.ected by ?A<K they will be ta,en into account. (f there was another witness
who testifed it will be ta,en into account.
5o the court will render a -udgment based on these evidence remaining. This is if the ground
is ?A<K.
1ewly discovered evidence thatGs the basis letGs say the only evidence consisting of the soM
called newly discovered evidence is e9hibit E(F for instance and ? testimony.
Q. (n deciding the case what evidence should be ta,en into account?
A. All the evidence previously presented by A all the evidence previously presented by B including
e9hibit E(F and testimony of ?. 1othing is discovered because they are not a.ected by these newly
discovered evidence.
5o in the e9ample the witness who already testifed do not have to be recalled anymore.
Their testimonies will be considered. (f there are additional witnesses their testimonies will be
considered.
This is how the motion for new trial is conducted.
Q. /ow many motions for new trial may be fled?
A. The general rule is a party can fle only one motion for new trial.
Q. (s there an e9ception to this rule meaning that more than one motion for new trial may be
fled?
A. :es. When the ground of the second motion for new trial was a ground not e9isting at the time
the frst motion for new trial was fled.
?or instance the motion for new trial is fled on the basis of ?A<K. While this motion is
pending defendantMmovant B found evidence which 0ualifes as newly discovered evidence.
Q. 'an B now fle another motion for new trial based now or newly discovered evidence?
A. :es because at that time the frst motion was fled this second ground was not yet in
e9istence.
Q. (s there such a thing as Hpartial new trialF?
A. :es. A new trial does not have to cover the entire case.
5upposing there are three )&* issues in the case.
Q. <ay a new trial be held only with respect to one of the issues?
7"
A. :es. 5o the new trial will be limited to a trial of that only issue.
The -udgment on the second and third issues will no longer be disturbed.
Q. (f there are two or more parties in one separate case may a partial motion for new trial be
granted?
A. :es.
5upposing the defendants B and ' the plainti. being A.
Q. <ay a partial new trial be conducted only with respect to B and only with respect to '?
A. :es because each of these defendants has his own right.
5o a new trial is conducted with respect to B only then the new trial will be limited between
A and B. (t will not include '.
(f the new trial involves only ' then the case will only be between A and '. (t will not include
B.
Q. What is the distinction between a motion for new trial and a motion for reconsideration?
A. (n a motion for new trial the grounds are those we already specifed.
The .rounds for a motion for reconsideration are di.erent. They are4
!* when the -udgment has awarded damages which are e9cessiveJ
2* when the -udgment is contrary to lawJ
&* when the -udgment is contrary to the evidence.
&ith respect to the reception of evidence in the case of a motion for reconsideration there is
no reception of evidence.
(n the case of a motion for trial there is a reception of evidence.
5o these two di.er. They however share a common point and that is they can be fled only
before the -udgment has become fnal.
Q. Why is it in the case of a motion for reconsideration there is no trial anymore all that the
court does is to set aside the -udgment and amend it?
A. 2emember the grounds(
!* 7#cessive 4amage U all that the court does is to review the evidence and fnd out whether
the damages are e9cessive or not.
2* Iudgment is contrary to law U all that the court does is to review the law on that matter.
&* Iudgment is contrary to the evidence U all that the court does is to review the evidence.
ThatGs why there is no need of trial.
RE4E 4:2ES:
+ ?raud must be e2trinsic or collateral not intrinsic.
+ ?orgotten evidence is not a ground for new trial.
Re$u!s!tes %or ne/ly2"!s(o#ere" e#!"en(e
a) must have been discovered after trial
b) could not have been discovered and produced at the trial
c) if presented would alter the result of the action
$therwise, it is called forgotten evidence
+ A motion suspends or tolls the running of the reglamentary period for appeal e2cept when the same is pro)forma.
PRO26OR3A 3OTION 2 when it does not comply with (ule 1/ and (ule 6, e.g. it does not point out specifically the findings or
conclusions of the ,udgment as are contrary to law, making e2press reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or conclusions, ans is merely intended to delay the proceedings or if there is no
affidavit of merit.
Rule "> : Relief 9rom Gud.mentsF :rdersF or :t6er #roceedin.s
/etition for relief from judgment this assumes that the -udgment has already become fnal. And the
matter of fact that the -udgment or fnal order has already been entered.
:ou ,now that once a -udgment has become fnal li,e in this case >>>>>.
8etGs say you receive the -udgment in favor of A. Dec. ! !""C. /e has until Dec. !B !""C within
which to do any of the following4
!* <otion for new trialJ
2* <otion for reconsideration.
7/
(f he does not one of these days until Dec. !B !""C as of Dec. !# !""C the court can no
longer alter its -udgment. The only thing that the court can do after a -udgment has become fnal is
to e9ecute it under 2ule &".
%f course there are certain things that a court may do with respect to a -udgment that has
already become fnal but not with respect to the merits thereof. 1o matter how the -udgment is
erroneous.
5o the only thing that can be done after the -udgment has become fnal is to correct the clerical
error or in a proper case may clarify the -udgment. These are the only things it can do.
5o we said that beginning Dec. !# !""C in our e9ample A can now e9ecute this -udgment.
8et us say that the -udgment in favor of A declared A the owner of the land. %rdered B to vacate
the lot. 'ommanded B to pay damages of 3!<. This is the -udgment.
Beginning Dec. !# !""C A can now e9ecute this -udgment under 2ule &". 1o matter how
erroneous this -udgment is there is nothing that can be done but to e9ecute it.
/owever under 2ule &" the law recogniIes the possibility that B may have lost the case by
reason of matters not imputable to him.
?or instance the -udgment was rendered against him by reason of ?A<K. Then the rule
recogniIes this. The ine0uity that may result to be if this -udgment procured under that
circumstances will be made. 5o under 2ule &C the law gives B the opportunity to be relieved from
his -udgment. ThatGs why 2ule &C spea,s of 3etition for 2elief.
5o under 2ule &C if B fles the petition he will as, that he will be relieved from this -udgment.
That means to say that he as,ed that this -udgment be set aside.
This is the concept of 3etition for 2elief of Audgment
There is another matter covered by a petition for review and this is a situation where a loosing
party was prevented from ta,ing an appeal therefrom.
(n our e9ample the -udgment was rendered against B. After trial there was no ?A<K which gave
rise to the -udgment. B lost. 1evertheless he is entitled to appeal for e9ample he has until Dec.
!B !""C within which to fle his notice of appeal. But he was prevented from fling the appeal by
reason of ?A<K. 5o there are t0o t6in.s t6at can $e t6e su$ject of petition for relief.
!* A -udgment rendered by reason of ?A<K or a proceeding attended by ?A<KJ or
2* A deprivation of a party of the right to appeal by reason of ?A<K.
Q. (n what court should a petition for relief be fled?
8etGs assume that this case between A and B was fled in the 2T' Branch ! of <anila with
'ivil 'aseN2&;7.
Q. (n what court and in what case should B fle his petition for review.
A. /e should fle his petition for relief in the 2T' of <anila Branch ! and in the same case )'ivil
'ase N2&;7*.
(t shows that a petition for relief is a continuation in e.ect of the case wherein the -udgment
was rendered.
5o if the case was fled in the <T' then this petition for relief must be fled in the <T' in the
same case.
There is an amendment of the old 2ule &C in the present 2ule &C. $nder the old rule a
-udgment rendered by an inferior court )<T' for instance* and which a party thereto desires to fle a
petition for relief the petition for relief must be fled with 2T'.
5o in our e9ample for instance in !""7 a case was fled against B in the <T' 'ivil
'aseN2&;7 B now wants to fle a petition for relief from the -udgment rendered.
Q. Where will he fle the case?
A. ?ile it in the 2T'. 5o the case will be now B vs. A.
This is not so nowR
The court which rendered the -udgment is the court before the petition for relief should be
fled.
70
#eriod within which a petition of relief must be fled 0it6in !+ da%s from the time the petitioner
learned of the -udgment of the proceedings and in no e)ent $e%ond six (! mont6s from entr%
of jud.ment.
Q. (s this period e9tendible?
A. 1o it is not e#tendible.
5o if you fle a petition on the B!
st
day following your ,nowledge of the -udgment that
petition is already fled out of time.
Q. Why cannot the period be e9tended?
A. Because 2ule &C is an act of grace on the part of the state in favor of a party. 'onse0uently the
party who desires to avail of this beneft should do so sub-ect to the conditions thereof.
But there can be case where this period may be e9tended.
(n one case the defendant after engaging a lawyer never heard anymore from the lawyer.
5o he did not ,now the status of the case. The only time he had learned of the status of the case
was when he received a writ of e9ecution against him.
Q. 5o what did he do?
A. /e tried to investigate.
Q. What did he fnd?
A. The fact that his own lawyer connived with the plainti.s for his defeat.
A vs B engaged Atty. '. Atty. ' connived with A.
Based on these facts B now fled a petition for relief long after the -udgment against him has
become fnal.
The court allowed the petition for relief to be given course. /e was a victim of a fraud
committed by his very own counsel.
Q. (s the court truly bound to give due course to a petition for relief?
A. 1o.
8et us see why>>
After B for instance has fled his petition for relief the court will frst e9amine the petition to
determine whether it is suOcient in form and substance. (f it is not then the court will dismiss it. (f
the court fnds that the petition was suOcient in form and in substance it will give it due course
meaning it agrees to hear it. But if he denies due course it does not want to hear the petition.
8et us assume in this e9ample that the court gave due course to the petition of B.
Q. What would the court do in this case?
A. (t will now issue an order directing A to fle a comment on the petition.
Q. /ow would A ,now that a petition was fled against him by B?
A. )Did you notice in our discussion whether B furnish A a copy of his petition. /e did not serve the
petition to A.*
. the court after giving due course to the petition of B issued an order commanding A to fle his
comment. Accompanied in this order is a copy of the petition of B. (n other words it is not B it is
the court that serves on A a copy of the petition. %f course the court will grant A a period of time
within which to fle his comment. (n the absence of any period the period shall not be less than !7
days from service of the order.
Q. (s it mandatory for A to fle a comment or opposition on the petition?
A. 1o. Why? (f A fles a comment or opposition as if he does not fle the comment or opposition
but after the period of fling thereof has e9pired the court will now set the date for the hearing of
the petition.
Q. What do you notice here?
A. Whether or not there is a comment or opposition the court will set the petition for hearing to
determine whether said petition is meritorious or is not meritorious.
5o in our e9ample B must present evidence in support of his petition. A if he so desire
may present evidence in opposition thereafter the court will resolve the petition.
Q. What are the possibilities?
76
A. !* The court may deny the petition. 5o it says Ethere is no ?A<K that resulted into a -udgment
against B.F
2* The court found that there is ?A<K which resulted in the -udgment and in the case the
court will grant the petition.
Q. What now is the e.ect of the grant of the petition on the -udgment already rendered?
A. The -udgment previously rendered is set aside. 5o thereGs no longer any -udgment to spea, of.
Q. What follows after that?
A. The rule says Ethereafter the court shall hear the case as if a timely motion for new trial are
granted.F The court will now hear the case anew as if a motion for new trial was granted. 5o the
court will receive evidence addressed during the hearing so that it may be considered thereafter
the court will render a -udgment. This case will be the second -udgment. Audgment now will be
whatever -udgment. (t may happen that under the second -udgment may be in favor of B now or
may still be in favor of A.
There is such a thing as an in-unction that the court may issue while the petition for relief is
pending. (n our e9ample the -udgment has already become fnal. A already fled a motion for
e9ecution. (n the meantime B fled a petition for relief.
Q. What is the available remedy to B so that pending the termination of this hearing of the
petition for relief A will not succeed in having that -udgment he e9ecuted?
A. B may fle a motion for issuance of an in-unction to restrain the e9ecution of the -udgment.
?or the purpose however of protesting also the right of A B is re0uired to post an in-unction
bond. 5o before the court restrains the sheri. from enforcing his -udgment the court may re0uire B
to post a bond in favor of A.
Q. ?or what is this bond responsible?
A. (n case damages where su.ered by A as a result of the issuance of the in-unction and after
hearing the petition the petition was denied or after hearing the case the motion for new trial
having been granted the -udgment is nevertheless in favor of A then whatever damages A may
have su.ered by reason of the issuance of the writ of in-unction may now be answered by the bond
B posted. 5o that if B does not pay him damages awarded to A then A can go after the bond.
#etition for Relief
(t is available only when the other remedies against a -udgment are no longer available.
5o if the motion for reconsideration is still available or if a motion for new trial is still
available4
Q. 'an you avail a petition for relief?
A. 1o Why? Because you can still avail of this other remedies. 5o this is the last resort that a
loosing party can avail of to set aside an unfavorable -udgment.
8etGs see the other aspect of a petition for relief.
(t is said it involves also the failure of a party to appeal because he was so prevented by
?A<K.
5o in our e9ample B fles a petition to be relieve from the fact that he was not able to fle
the appeal. (n our e9ample B failed to fle the appeal. The -udgment has become fnal. /e wants
now that he be allowed to appeal.
Q. What is the remedy?
A. ?ile a petition for relief.
Q. What is the prayer for that petition for relief?
A. That he be allowed to appeal.
Q. What could be the reason that would -ustify the grant of his petition?
A. The -ustifcation was he was prevented from appealing because of the ?A<K. 5o the procedure
to be followed by B would be the same as he would have followed if the petition was to set aside
the -udgment by reason of ?A<K. 5o the petition to be relieved from failure to appeal is granted.
Q. Then what is the relief that the court would grant?
A. Then the court will order the appeal to be given due course and that therefore the court where
the petition was fled and which rendered the -udgment appealed from will elevate the records tot
the appellate court.
5o in our e9ample the -udgment was rendered by the 2T' Br. ! <anila and petition for relief
prayed that the appeal of B from the -udgment be allowed. Then when the petition is granted the
77
2T' of <anila Br. ! will give due course to the appeal of B. 5o the court will now elevate to the
appellate court the entire records.
RE4E 4:2ES:
NEW TRIAL-RECONSIDERATION RELIE6 6RO3 UDG3ENT
+ must be filed within the appeal period. Dudgment not yet
final.
+ Dudgment is final within 04 days after petitioner learns of the
,udgment to be set aside and within 0 months after such
,udgment is entered.
+ A legal right. + ;ore on equity A>iscretionary)
+ ?A;& + ?A;& only
+ Dudgment on final order + (elief from ,udgmentGorder on other proceeding.
0 T/o 9e'r!n4s
Aa) hearing to determine the ,udgment be set aside
Ab) if yes, a hearing on the merits of the case
Rule "?: ExecutionF Satisfaction and E@ect of Gud.ments
Q. What is the concept of 2ule &"?
A.
Example4
The -udgment commanded B to do these things4
!* vacate the landJand
2* pay A 3!<.
This -udgment became fnal on Dec. ! !""C.
Q. 'an this -udgment now be altered on Dec. 2 !""C?
A. 1o more that cannot be altered anymore. %f course this is sub-ect to 2ule &C.
1o matter how erroneous this -udgment is it can no longer be set aside. All that is to be
done now is to e9ecute it. <eaning to implement it.
When we say Eall that is to be done is to implement that -udgment to e9ecute it.F We mean
to say that B should now be re0uired to vacate the land and pay 3!< to A.
Q. /ow will this command of the court be carried out?
A. That is carried out in accordance with 2ule &". Kvery step that fnally leads to the
accomplishment or the e9ecution of its -udgment is provided for in 2ule &".
The sheri. is the oOcer entrusted by the rules to e9ecute this. (n carrying out the -udgment
the sheri. must follow strictly 2ule &". This is the concept of 2ule &" )K9ecution*. The sheri. cannot
e9ecute this e9cept in the manner 2ule &" provides.
Q. What are the matters to be ta,en up under 2ule &"?
Q. What ,inds of -udgment or order can be e9ecuted?
A. The rule said Eonly a fnal -udgment or order can be the sub-ect of e9ecution.F
This means to say that Ein a -udgment if an order has not yet become fnal it cannot be
e9ecuted.F
Q. What is meant by fnal -udgment? By fnal order?
A. Austice 2egalado points out in his boo, the concepts in which a fnal order or -udgment is
considered fnal considered in the sense with respect to the appealability of the -udgment or order.
?inal with respect to the appealability of the -udgment or order.
This is how it is distinguished>
Q. ?rom the point of view of appealability and from the point of view of enforceability>> what is a
fnal order?
A. From the point of view of enforceability a fnal order or a fnal -udgment is one which can
already be enforced because the period for an appeal therefrom is already without an appeal
having been ta,en.
5o in our e9ample therefore if a -udgment was received by A on Dec. ! !""C and by B by
Dec. 2 !""C A has only until Dec. !B !""C and B has only until Dec. !# !""C within which to fle a
notice of appeal a motion for reconsideration or a motion for new trial. But they have not done this
up to this day. Then we say that this -udgment is fnal from the point of view of enforceability. Why?
Because e.ective Dec. !C !""C the prevailing party A in our e9ample can already enforce this.
This is the meaning of a fnal order or -udgment from the point of view of enforceability.
From the point of view of appealability'.
78
8et us say A vs. B. B fled a motion to dismiss. The motion to dismiss was denied.
Q. (s this order of denial a fnal order from the point of view of appealability
A. 1o. This is not a fnal order from the point of view of appealability. Why? An interlocutory order
is not appealable. This is the general rule. :ou cannot appeal from an interlocutory order because
by its very nature it can be set aside at any time. (t is always within the control of the court as
oppose to a fnal order.
8et us see>.
5uppose the motion to dismiss was granted and therefore the complaint is dismissed. ?orm
the point of view of appealability
Q. (s this order granting the petition appealable?
A. :es Why? Bec. the order fnally disposes the matters involved in the case.
Q. What ma,es an order interlocutory. What ma,es an order fnal from the point of view of
appeallability?
A. +n the case of interlocutory order after its -udgment there is still something to be done with
respect to the merits of the case. 5o the order does not put an end to a case.
(n our e9ample the order denying the motion to dismiss is an interlocutory order. Why?
Because after the order has been issued there is still something to be done with respect to the
merits of the case.
?or instance B will fle the answer. Thereafter preMtrial and then -udgment. This is the
essence of an interlocutory order. (t does not put an end to a case. There is something else to be
done after its issuance.
8et us ta,e the case of order of dismissal granting the motion to dismiss.
Q. What is the e.ect?
A. We said that the complaint is dismissed.
Q. (s there anything else to be done in the case after the complaint is already dismissed?
A. 1o more. There is nothing else to be done on the merits of the case. That is why it can now be
a sub-ect of the appeal. 5o this is the di.erence between a fnal order from the point of view of
appeallability and from the point of view of enforceability.
&hat we are tal%ing about in Rule C! is a 'nal order from the point of view of enforceability.
Example:
A vs. B. The -udgment has already become fnal in the 2T'. This -udgment because fnal on
Dec. ! !""C. %ur assumption is there was no appeal from this -udgment. 5o it became fnal Dec.
! !""C.
Q. A wants a writ of e9ecution to be issued. Within what period can A fle a motion for the issuance
of a writ of e9ecution?
A. /e has fve (5 %ears from fnality of -udgment which is e0uivalent to entry of -udgment within
which to do so.
5o he )A* has up to Dec. ! 266& within which to e9ecute this -udgment by mere motion.
8et us suppose that Dec. ! 266& is the last day of the fling period. This -udgment was not
e9ecuted by motion within his fve )7* years.
Q. Dec. 2 266& can this -udgment now against B be enforced by motion?
A. 1o more.
Q. (s there a remedy by which A can still enforce this -udgment after Dec. ! 266&?
A. :es by action.
Example4
Within this fveMyear period from Dec. ! !""C to Dec. ! 266& all that A does to secure this
writ of e9ecution is to fle a motion on the same case 'ivil 'ase N2&;7 2T' <anila Br. !.
5o A will fle this motion for e9ecution in the same court. Dec. ! 266& this -udgment can no
longer be enforced by motion. (t can now be enforced by action.
Q. What does this mean?
84
A. 8et us assume that the land is located in @ambales. A is a resident 5ulu. B is a resident of
Batanes. 5tarting Dec. ! 266& A can fle this action.
Q. Within what period can A fle his action?
A. /e has a period ending fve )7* years from Dec. 2 266& or Dec. 2 266& within which to fle the
action.
Q. Where will the action be fled?
A. 5ulu or Batanes.
Q. Why not @ambales?
A. Because an action to revive a judgment is a personal action. +t is not a real action. This being a
personal action, it will be governed by Rule 0, the venue could be the residence of the plaintif or
the residence of the defendant at the option of the plaintif.
A now fle an action against B for revival of -udgment in the 2T' of 5ulu or Batanes at the
option of A.
Q. What do you notice?
A. A separate action.
5o this -udgment rendered in 'ivil 'ase N2&;7 can no longer be enforced by mere motion.
:ou can enforce it if you can procure a -udgment in this 2T' of 5ulu or Batanes.
Q. (f you were A here what would you allege in your complaint?
A. :our allegation would be this>
That you received a -udgment in your favor in 'ivil 'ase N 2&;7. That the -udgment was not
e9ecuted by motion within fve )7* years from its fnality of -udgment.
Q. What is now your prayer?
A. :ou now pray that the -udgment rendered in that case be revived.
Q. What do you associate revival?
Q. Do you revive a dead man?
A. 1o.
Q. What do you do with it?
A. :ou resurrect him if you can.
Q. Who then is revived?
A. /e who is unconscious.
Q. Why do we call this action to enforce the -udgment rendered in the civil case an action to
revive?
A. Because after the 7Myear period during which the -udgment was not enforced that -udgment in a
sense fell into a coma.
Q. What do you do?
A. 2evive so it can be enforced.
Q. Within what period should an action to revive be fled?
A. The rule says Hit must be 'led before the action is barred.F
Q. Where do you fnd the rule to apply whether the action is barred or not?
A. 'ivil code provisions state the periods during which actions may be fled. (n certain actions
there are periods f9ed.
5o in our e9ample the action to revive the -udgment should be fled within !6 years from
the day the -udgment in 'ivil 'ase N2&;7 has become fnal or when it was entered.
%ur assumption here is the -udgment became fnal Dec. ! !""C. ?or the purpose of fling
the action for revival you have !6 years from Dec. ! !""C. (n e.ect therefore A has a period of
fve years from the e9piration of the original 7 years within which to fle the action for revival. (n this
e9ample the fve year period ended Dec. ! 266&. :ou now can fle the action within fve years
again Dec ! 266&.
8et us assume that the -udgment for revival is granted.
Q. 'an you now e9ecute the -udgment of revival?
A. :es.
Q. Within what period?
A. By motion also within 7 years from entry of -udgment in the revival action.
81
Q. :ou did not e9ecute the -udgment in that revived action within the 7Myear period from its entry.
'an you now e9ecute it?
A. :es.
Q. /ow?
A. By motion again.
5o you can revive the revived -udgment if it was not e9ecuted within the 7Myear period.
We are tal,ing of a -udgment which can be enforced or e9ecuted only after it has become
fnal and that it can be e9ecuted in the court where the -udgment was rendered.
8etGs ta,e the second possibility>>
A vs. B 2T' of <anila 'ivil 'ase N2&;7. B appealed to 'A. 'A rendered a -udgment aOrming
the 2T' -udgment of the 'A became fnal Dec. ! !""C.
:ou are A who would want the -udgment of 'A be e9ecuted.
Q. Where will you fle the motion for e9ecution?
A. /ere are the possibilities>..
This case is still with the 'A but the -udgment already became fnal Dec. ! !""C. But the
records are still there.
:ou now want that -udgment in 'A aOrming the -udgment of 2T' e9ecuted.
Q. (f you were A in what court may you now fle the motion for e9ecution?
A. :ou can fle in the 2T'.
Q. But the records of the case are not yet in the 2T' in what case then will you now fle the
motion in the 2T'?
A. The remedy>> A will secure a certifed copy of the 'A -udgment he will now get a copy of
entry of -udgment duly certifed by the 'A.
Q. What will A do with these two?
A. /e will now attach them to the motion for e9ecution.
This motion for e9ecution is now accompanied by these two certifed copies so that although
the records are still in the 'A the 2T' can now act on the motion.
Q. 'an the 2T' now enforce this -udgment of 'A although the records are still there?
A. :es. ?ile in the 2T' a motion for e9ecution. Attached to that motion certifed copy of4
!* 'A -udgmentJ and
2* Kntry of -udgment
%f course the motion for e#ecution 'led in the RTC should be heard in accordance with Rule
";. That means to say that B must be notifed. Why? Because this is a litigated motion.
Q. <ay not A fle in the 'A the motion for e9ecution while the records are still with the 'A?
A. :es A can fle with the 'A the motion for e9ecution.
Q. Will the 'A issue the writ?
A. 1o.
Q. What will it )'A* issue?
A. (t will merely issue an order directing the trial court the 2T' in our e9ample to issue the writ of
e9ecution.
1ow you distinguish between the order directing the issuance of a writ of e9ecution and the
writ of e9ecution itself.
(n this e9ample what is issued by the 'A is the resolution directing the trial court to issue
the writ. What 2T' issues is the writ itself.
5upposing these records are already turned over to the 2T' and thatGs already fnal.
Q. <ay A fle still with the 'A a motion for e9ecution? )The records are already in the 2T'.* <ay the
'A nevertheless issue an order directing the 2T' to issue the writ considering the records are
already in the 2T' no longer with the 'A?
A. Austice 2egalado a recogniIed writer in 2emedial 8aw opines that the 'A may still issue the
order directing the 2T' to issue the writ although the records are already with the 2T'.
82
ZThis is not a decided case. That is only the view of ,r. Regalado. 4on2t be misled by this comment
on this as you may 'nd in his boo% you can opine otherwise and be sustained by the 3C.
5o far we have been tal,ing of e9ecution of -udgments.
Q. <ay a -udgment or order which has not yet become fnal be the sub-ect of e9ecution?
A. :es but then this is the e9ception.
Example:
A vs. B A receive the -udgment favorable to him on Dec. ! !""#J B received the -udgment
on 1ov. 2C !""#. 5o A has until Dec. !B !""#. B has Dec. !& !""# within which to do any of the
following4
!* <otion for reconsiderationJ
2* <otion for new trialJ or
&* 1otice of appeal.
This is what happens>
%n Dec. !! !""# B fled a notice of appeal.
Q. What is the e.ect of this notice of appeal fled by B in so far as he is concerned?
A. (nsofar as B is concerned the court can no longer touch the -udgment. (t cannot modify
anymore the -udgment insofar as B is concerned.
Q. But can the court still modify this -udgment insofar as A is concerned after Dec. !!?
A. :es because A has until Dec. !B within which to do any of the aboveMstated. (n other words the
appeal here of B does not a.ect the rights of A up to Dec. !B.
5o if A fles a motion for reconsideration on this -udgment letGs say on Dec. !7 or four );*
days after the appeal of B has been fled.
Q. 'an the court still reconsider this -udgment insofar as A is concerned?
A. :es but it can no longer change the -udgment insofar as B is concerned.
%n Dec. !7 !""# A fle a motion for e9ecution.
Q. 'an A still fle his motion for e9ecution considering that the -udgment is not yet fnal insofar as
A is concerned because this will become fnal only as to him on Dec. !B?
A. :es he can still fle.
8oo,> (s this -udgment already fnal insofar as A is concerned? 1ot yet.
(nsofar as B is concerned this is an appeal to the -udgment which is not yet fnal also as to
him.
Q. 'an this -udgment nevertheless be e9ecuted?
A. :es. <eaning>.
'an the court rule on this motion of A for e9ecution is fled the court has not yet lost -urisdiction of
the case insofar as A is concerned.
5upposing the records however were elevated to the 'A on Dec. 26 !""#.
Q. 'an the court now rule on this motion for e9ecution on Dec. 2!?
A. 1o more. Why? The records are no longer with the court.
Q. What would be the -ustifcation for the court to issue an e9ecution against B while the case is
pending appeal?
A. The rule says simply that the court may issue e9ecution for a special reason to be stated in a
special order.
Q. Do you fnd any enumeration in the rules particularly 2ule &" on what constitutes special
reason which -ustifes the issuance of the writ of e9ecution pending appeal?
A. 1one.
The court then will determine whether there is or there is no special reason for the issuance
of a writ pending the appeal. )(t is the court that determines on a caseMtoMcase basis.*
1ow if the court issues a writ of e9ecution pending appeal the law re0uires that the order
must state the special reason why the writ of e9ecution was issued. (n the absence of the statement
in the order of what constitutes a special reason there will be a violation by the trial court of this
2ule &".
Q. What is a special reason?
A. The rule does not say so. 5o this is a matter that is left to the discretion of the court to
determine.
A -udgment is rendered against the defendant B to pay a sum of money. B is already on the
verge of ban,ruptcy. While the case was pending the period for appeal has not yet e9pired he
8
started disposing his properties. Kvidently to place them beyond the reach of the plainti. A who
obtained a -udgment in his favor.
Q. 5hould A fle a motion for e9ecution based on this ground?
A. The imminent ban,ruptcy of B and the fact that he was disposing his properties with evident
intention of depriving A of the benefts of the -udgment may be considered a specifed reason.
Why? Because if you wait until the -udgment become fnal there will be nothing left already on the
assets of B which can be levied upon to satisfy the -udgment.
Q. Will this be a good reason?
A. (tGs up to the court. (f it thin,s that it is a good reason to e9ecute the -udgment is aOrmed on
appeal and the -udgment become fnal the plainti. is already assured of payment.
Q. 5upposing the -udgment ordered the defendant to deliver A a 0uantity of perishable goods
letGs say meat for instance what will happen to these perishable goods if you still wait until the
-udgment become fnal to e9ecute it.
A. By that time they may have already been spoiled.
Q. 5o may it now be a special reason that because of the nature of the goods the e9ecution of a
-udgment is proper to avoid these goods being lost?
A. Whether the reason is good or not special or otherwise it is the court that determines.
Q. (s it only in the trial court that the motion for e9ecution pending appeal may be fled?
A. 1o. When a case is pending in the appellate court the prevailing party may also fle therein a
motion for e9ecution.
5o in our e9ample the case has been appealed by B to the 'A. 5o the case is pending now
in the 'A.
Q. 'an A fle in the 'A a motion for e9ecution of the -udgment pending resolution of the case by
'A?
A. :es a motion can be fled by A in 'A.
Q. What is the lifetime of a writ of e9ecution?
A. 7 years
Q. What is a writ?
A. A writ is a command of the court addressed to a proper oOcer normally the sheri. commanding
him to e9ecute the -udgment.
Example:
%n motion of A the court issued an order directing that a writ be issued for the e9ecution.
Q. Who carries this )writ* into e.ect?
A The cler, of court.
Q. What will the cler, of court do?
A. The cler, of court will issue in the name of the court the soMcalled Ewrit of e9ecution.F
5o the cler, of court issues this writ.
Q. To whom is this writ directed?
A. To the sheri..
Q. What does this writ command the sheri. do?
A. The rule says the writ must recite the dispositive portion of the decision and thereafter
command the sheri. to implement it.
(n our e9ample the -udgment ordered B to deliver the land to A. To pay A so much money>
Q. What will the writ say?
A. EWhereas on Aan. 2 !""C a -udgment was rendered by this court the dispositive portion which
read ) the dispositive portion of the -udgment is 0uoted*.
Whereas this -udgment has become fnal on this date )put the date* hence the court in its
order dated so directed that a writ be issued.
Wherefore you are commanded to e9ecute the foregoing -udgment.
)There is another directive there>* of the properties of B you are commanded to ma,e up
the sum of so much to pay the amount ad-udged in the decision.F
Q. (s it addressed to B?
A. 1o. (t is addressed to the court personnel.
Q. What is a lifetime of a writ of e9ecution?
8"
A. $nder the old Rule C!, a writ has only a lifetime of B6 days counted from the day the sheri.
received it. This means to say that if the -udgment is not e9ecuted within that B6Mday period that
writ can no longer be enforced after the B6
th
day.
Q. What then was the result under the old 2ule &"?
A. (f the writ was not e9ecuted within the B6Mday period it automatically lost its force beginning
the B!
st
day. Therefore any service of the writ after the B6
th
day would be already be an invalid
service. 'onse0uently the party who prevailed and who wants the -udgment e9ecuted must again
fle a motion for the issuance of another writ of e9ecution.
5o under the old rule there could be as many writs of e9ecution issued within the fveMyear
period for as long as the writ was not implemented within the B6Mday period another writ can be
issued such that by the end of the 7
th
year all the writs have not been implemented there can be
no more writ to be issued thereafter. Why? Because you now have to fle an action to revive the
-udgment.
Q. What is the modifcation now?
A. $nder the new rule we now have a longer lifetime of a writ of e9ecution. The lifetime
corresponds to the period within which a -udgment may be e9ecuted by mere motion. (t means to
say further that during this fveMyear period no other writ of e9ecution is re0uired to be issued. The
sheri. can enforce that within this fveMyear period for as long as the -udgment is not satisfed
within the 7Myear period.
There are several ,inds of -udgments that may be the sub-ect of e9ecution.
We have a -udgment for instance which calls for a -udgment involving special one.
Q. Where lies the di.erence?
A. A -udgment commanding specifc acts to be done may involve any of the following4
!* payment of money
2* delivery of property
&* e9ecution of deed conveyance
These are among the -udgments calling for specifc acts. These are not the only acts involve
in a -udgment. )8et us -ust ta,e them for illustrative purposes*.
And we could have a -udgment called special -udgment secured by A against B provided that
B should tear down a concrete fence with B erected on a lot belonging to A. 5o this ,ind of
-udgment is not any of this -udgment for specifc acts. 5o there may be a -udgment commanding
the loosing party to turn over the prevailing party the piece of landJ there may be a -udgment
commanding a party to e9ecute a deed of conveyance.
This is the fnal -udgment that Audge 8aggui would li,e to discuss to us>
Example:
5upposing in this e9ample A vs. B the court rendered -udgment the dispositive portion of
which commanded the following4
!* A is the declared owner of the lot in 0uestion covered by T'T 1o. 2&;7 2egistry of Deeds
3rovince of 2iIal.
2* B is ordered to e9ecute a deed of transfer of this lot in favor of A.
&* The 2egistry of Deeds 3rovince of 2iIal is so ordered to cancel the title and issue another in
the name of A.
Q. /ow will this -udgment be carried out?
8et us suppose in our e9ample B refused to comply with this order commanding him to
e9ecute a deed of transfer in favor of A.
Q. What is the remedy under this rule?
A. The remedy is this>
The court will commission a third person to e9ecute the deed in favor of A.
Q. What is the e.ect of this deed e9ecuted not by B but by '?
A. The rule says the deed e9ecuted by this third person ' is -ust as good as if it were B. 5o that
when A the prevailing party presents to the 2egistrar of Deeds 3rovince of 2iIal this deed signed
by ' )not by B* the 2egistrar of Deeds will register that and cancel the title of B.
ThereGs another remedy if B does not e9ecute the deed.
Q. What can the court do?
A. The court will simply say Ethe 2egistrar of Deeds 3rovince of 2iIal is ordered to cancel the title
1o. 2&;7 in the name of B and issue another in the name of A.
+n the case of a special judgment>
8/
Q. /ow does this di.er from a -udgment involving specifc acts.
A. The di.erence lies in this fact.
That in the case of judgment involving speci'c acts the writ of e9ecution issued to the
sheri. is not accompanied by a copy of -udgment. But in the case of a special judgment, the writ of
e9ecution addressed to the sheri. is accompanied with a certifed copy of the -udgment. (n the
enforcement of this writ of e9ecution involving special -udgment
Q. Who will e9ecute the -udgment? (s it the sheri.?
A. 1o. (t is the party. (n our e9ample defendant here. Why? Because he must obey the -udgment.
<eaniing since he was commanded to tear down that concrete fence B must do it himself.
Q. 'an he )B* order the sheri. to do it?
A. 1o. /e himself must do it. But he might say E( cannot do it.F Bahala ,a sa sarili moR Tear it
down. B says E( will not.F
Q. What is the remedy?
A Declare him in contempt of court. 5o he does not want to tear it down arrest himR 5end him to
-ail.
Q. Will you release him?
A. 1o.
Q. When will you release him?
A. When he has obeyed tearing down. (f he does not tear it down he will rot in -ail.
RE4E 4:2ES4
+A %rit of &2ecution to be valid, must conform strictly to the decision or ,udgment which gives it life. It cannot vary the terms of the
,udgment it seeks to enforce.
Gener'l Rule* 9ourt cannot refuse e2ecution
UNLESS: <UCNID*
1. &2ecution is 5-D51! or I;C$11I@:&
2. &quitable grounds like a 9#A-=& I- 1I!5A!I$-
. Dudgment -$'A!&> by parties
". &2ecution is en,oined
/. Dudgment has become >$(;A-!
+Eu's1'l o% /r!t proper /1en:
1. Improvidently issued
2. >efective in substance
. Issued against the wrong party
". Dudgment already satisfied
/. issued without authority
0Reme"!es o% t1e Los!n4 P'rty
1.Cetition for relief A(ule 7) or
2. >irect or 9ollateral Attack against ,udgment
SUPERSEDEAS :OND 2 one filed by a petitioner and approved by the court before the ,udgment becomes final and e2ecutory and
conditioned upon the performance of the ,udgment appealed from in case it be affirmed wholly or in part.
+ 1upersedeas bond guarantees satisfaction of the ,udgment in case of affirmance on appeal, not other things like damage to property
pending the appeal.
+ !he court may, in its discretion, order an e2ecution before the e2piration of the time within which to appeal provided.
1. !here is a motion for e2ecution filed by the winning party
2. !here is a notice of said motion to the adverse party. and
. !here are good reasons stated in a special order after due hearing.
GENERAL RULE: an order of e2ecution is not appealable otherwise there would be no end to the litigation between the parties.
EFCEPTIONS:
1. %hen the terms of the ,udgment are not very clear.
2. %hen the order of e2ecution varies with the tenor of the ,udgment
+ A revived ,udgment is a new ,udgment thus another /G14)year period to e2ecute and revive is given the party.
Rule "? Sec. ,1: E@ects of Gud.ment rendered $% a #6ilippine (ourt
The efect of a judgment or 'nal order rendered by a court of the /hilippines, having
jurisdiction to pronounce the judgment or 'nal order, may be as follows(
a9 +n case of a judgment or 'nal order against a speci'ed thing, or in respect to the probate of
a will, or against the administration of the estate of a deceased person, or status of a
particular person or his relationship to another, the judgment or 'nal order is conclusive
upon the title to the thing, the will of the administration, or to the condition, status or
80
relationship of the person, however, the probate of a will granting a letter of administration
shall only be prima facie evidence of the death of the testator or intestate.
b9 +n other cases, the judgment or 'nal order is, with respect to the matter directly adjudged or
as to any other matter that could have been raised in relation thereto, conclusive between
the parties and their successors in interest of title subse$uent to the commencement of the
action or special proceeding, litigating for the same thing and under the same title and in
the same capacity.
c* +n any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or 'nal order which appears upon its
face to have been so adjudged, or which was actually and necessarily included therein or
necessary thereto.
:ou will note that 5ec. ;# of 2ule &" groups into three )&* the actions covered by the section.
The frst section covers4
!* cases involving title to specifc propertyJ
2* cases involving probate of a willJ
&* cases involving the administration of the estate of the decedentJ
;* cases involving the political legal and personal condition or status of a personJ and
7* cases involving the relation of a person to another.
Q. What does the rule say with respect to the -udgment that may be rendered in these cases?
A. The rule says )!* the -udgment is with respect to the specifc property conclusive on the title to
the propertyJ )2* the -udgment is conclusive on the probate of the willJ )&* the -udgment is
conclusive to the administration of the estateJ );* the -udgment is conclusive on the personal
political or legal condition of a personJ and )7* the -udgment is conclusive on the relation of a
person to another.
There is only one e9ception to this rule that -udgment is not conclusive and that is when it
comes to the probate of a will or the administration of the estate. The -udgment here is merely
prima facie evidence that the testator or the person whose estate is under administration is dead.
(t can be proven that he is alive.
Example:
A fled an application for registration of title to a lot. %nly B opposed. After the trial
-udgment was rendered confrming the title of A. The -udgment became fnal. The 82A issued the
decree of registration pursuant thereto a corresponding certifcate of title %'T N!2&;. This title
now is in the name of A. 8et us assume that this -udgment became fnal on !"#C. (n !""C ' now
fles a case against A for recovery of this lot. ' said E( am the ownerF. A said E1o ( am the
owner.F
Q. What is the issue?
A. EWho is the owner?F
During the trial A now the defendant presented in evidence the -udgment of the court in
that 2egistration case the certifcate of title issued in that case and the decision K9hibits EAF EBF
and E'F respectively.
A says E( o.er your honor K9hibits EAF EBF and E'F to prove that ( am the registered owner.F
'ourt4 EWhat does B says?F
'4 E ( ob-ect on the ground that ( was not a party to the case. The parties thereto being only A and
B. Therefore ( am not bound by the -udgment.F
'ourt4 E%b-ection overruled.F K9hibits EAF EBF and E'F are admitted.
Q. (s the ruling of the court correct?
A. :es. Why? Because under 5ec. ;# )a* 2ule &" Ethe judgment in that registration case is
pertaining to as it does to a speci'c property is conclusive on the title.) 5o this being a proceeding
in res the -udgment binds not only A and B but the whole world including ' who was not a party.
That means to say that ' cannot be declared the owner of that land. Why? Because the
ownership was already decided with fnality in that case.
(f ' has any claim over this lot he should have fled his claim during the registration
proceeding. /e should have intervened. /e did not. Then all claims over this land that were not
presented were deemed e9tinguished when the -udgment was rendered. This what is meant by
conclusiveness of title. %f course this does not mean to say that ' may not be able to recover this
lot. 1oR /e may recover but in another cause of action. 5upposing that he can show that the
ownership of the land later on pass from A to him then he can recover. But if he simply says E( am
the owner.F %n his own right deriving his title from A that title of A cannot be challenge anymore in
any proceeding. This is what is meant by conclusiveness of the -udgment in a case involving title to
specifc property.
#ro$ate of 5ill
The rule says a judgment in a probate case is conclusive as to the probate.
86
Q What is meant by this?
A.
Example4
/ere is the will of A. /ere now is A who fled a petition for the probate of the will. The court
admitted the will in probate. The -udgment becomes fnal on Dec. ! !""". )DonGt forget that what is
decided in a probate case is not the merits or validity of the dispositions in the will.* What is
decided in the probate of the will is merely the 0uestion of whether or not the will was e9ecuted in
accordance with the formalities re0uired by law.
:ou ,now that under the 1ew 'ivil 'ode there are certain formalities that must be followed
by the testator so that the will will not be valid. 5o for instance the law says Ethe will must be
signed by the testator at the end thereof and on every page on the left sideJ each page if the will
consists of more than one page be numbered and that the will must be attested by three attesting
witnessesJ they must be ac,nowledged by the testator and the attesting witnesses before a notary
public.F These are among the many formalities that the testator must have to follow so that the
will he e9ecutes shall be valid.
/ere the will was admitted for probate. This means to say that the will was validly e9ecuted
as to the form. This means to say therefore that his will was signed by the testator. This is the
meaning. But as to whether the dispositions in the will are valid or not that is not decided. 5o in
the will the testator said E( have all these properties described as follows to my N2 for services
rendered>F
Q. Will the court decide that in the probate?
A. 1o because that was into the intrinsic validity. This is not decided.
After his will was admitted on probate A now was sued involving this will now. B now says
that this will was a forgery because the signature was aO9ed by H without the ,nowledge of T.
Q. 'an the 0uestion of forgery of this will be raised later on?
A. 1o more. Because the -udgment in the probate proceeding is conclusive that this will was
validly e9ecuted. This means therefore that the testator signed the will.
But supposingly the truth is as contended by B that the will was signed by H? 1ever mind.
The law says Ethe will was signed by T.F )even if it was actually signed by H. 1ever mindR* $nder
5ec. ;# 2ule &" E( signed itRRRF Whether he did actually or not no longer mattersRRR This is the
meaning.
/owever there is a 0ualifcation here and i. K. the admission of the will in probate is merely
prima facie evidence that T died.
Q. 5o can it later be proven that T is still alive?
A. :es. Why? Because the presumption is that T is dead is rebutted by his appearance.
judgment involving the political, legal or personal condition of a person, or his relation to
another is conclusive as to such personal condition, legal or political condition, status or relation.
Example:
A sues B for compulsory recognition as a natural son of B. B denied the claim of A that he is
his son. 5o the issue is4 (s A the son or not of B?
After trial the court said EFB is the father of A.F :ears later B died succeeded by his several
children. 5ince B has an estate A sued the heirs of B. A alleged that he is the natural son of B. But
the heirs of B alleged that A is not a son of B.
Q. 'an the relationship of A as a natural son be litigated anew?
A. 1o more. A is the son of B. This 0uestion cannot be litigated again.
There is logic here>
5upposing the heirs of B if allowed to prove that A is not the son of B they may now
introduce evidence that A is the son of ' and the court believes that ' is the father of A.
Q. /ow many fathers now does A have?
A. Two. This is the evil sought to be avoided by this rule. :ou cannot place the status of a person in
a state of uncertainty because if he )A* is now the son of B tomorrow he will be the son of ' now
where will this end? 5o there can be as many fathers as can be proven> This is not allowed.
This is what is meant by the conclusiveness by the -udgment in a case involving the relation
of a person.
Q. What do we learn from this?
A. The -udgment in any of these cases mentioned in 5ec. ;# )a* 2ule &" is binding conclusive and
cannot be altered.
Sec. ,1 ($ Rule "?
+n other cases, that which has been adjudged in a case or any matter that could have been
raised in relation to that matter that has been adjudged is conclusive between or among the parties
87
and their successors in interest by title subse$uent to the commencement of the action or
proceeding litigating for the same thing under the same capacity under the same title and in the
same capacity.
Q. What is meant by this?
A. (t simply means that where an issue has already been decided in one case that issue cannot
be litigated again. Why? Because that -udgment toward this issues which has been raised and
decided is already conclusive and can never be changed anymore insofar as the same parties or
their successors in interests are involved. This is the soMcalled rule in)ol)in. res judicata. That
which have been decided in another case involving the same sub-ect matter involving the same
causes of action.
Example:
(f you ,ill a cow or a carabao and you want to eat the Wesh what do you do? :ou s,in the
carabao or the cow. 'an you s,in the same animal twice? :ou can s,in it only once. :ou can litigate
an issue only once. :ou cannot litigate again for the same issue.
And if a litigation is brought involving the same issue the -udgment rendered in the frst
case may now be pleaded in the second case. Res judicata is a ground for motion to dismiss.
Example:
A vs. B for reindivicacion. What is the issue? A says E( am the owner.F B says E( am the
owner.F 5o the issue is4 EWho is the owner?F
Trial> A presents evidence to prove his ownership. B presents his evidence to prove his
ownership. Audgment4 EA is the owner.F The -udgment became fnal on Dec. !6 !"";.
(n !""7 B now or if he )B* is dead the heirs of B fle a case against A or if A is not alive AGs
heirs. 5o itGs either heirs of B against A or /eirs of B against heirs of A.
Q. What is the nature of the action?
A. 2eindivicacion U Why? BGs heirs wants to recover. AGs heirs wants to recover. BGs heirs said EWe
are the owners.F AGs heirs said EWe are the owners.F
(ssue4 Who are the owners?
Q. What did you notice here?
A. (n both cases the parties are the same. A vs. B or heirs of B vs. heirs of A.
Q. Why are the parties the same when A and B are dead and the parties litigating are -ust their
respective heirs?
A. Because their heirs merely stepped into the shoes of A or B respectively.
The sub-ect matter is the same U the land. The cause of action is the same. (ssue4 same U
ownership.
Q. 'an this be decided in this case?
A. 1o more. The -udgment rendered in the frst case on the issue of ownership is binding on all the
parties in the second case.
Q. (f these were the situation what is the remedy available to A or the heirs of A in order that this
second case will not be tried anymore on the merits?
A. What the defendant A or heirs of A can do is to fle a motion to dismiss under 2ule !B on the
ground or res -udicata.
This is a very simple form of res -udicata.
Q. What are the other rules with respect to res -udicata?
A. /ere are the rules>
The efects of res judicata cannot be avoided or evaded simply by changing the nature of
the subse$uent cause of action.
Example:
:ou will note that this case between A and B the issue is4 Who is the owner of the land? That
-udgment was rendered in favor of A. 5o he was declared the owner. The -udgment became fnal.
B now sued A for recovery of damages representing the value of this lot letGs say 3!<.
'an this suit for recovery of damages be maintained by B?
8oo,>
Q. What is the sub-ect matter of the frst case?
A. A lot.
Q. What is the sub-ect matter of the second case?
A. <oney. )5o they are not the sameR*
88
Q. 8ot and money> is that so?
A. 1o. Why? Because the money represents the value of the lot.
Q. What is the basis now of the claim of B or the heirs of B in recovery of 3!<?
A. Their ownership of the land because if they were not the owner heLthey would not recover.
Q. But was not this 0uestion of ownership already decided?
A. :es. (t was decided.
Q. What is the cause of action in the frst?
A. %wnership. A says E( am the owner.F B says E( am the owner.F
Q. What is the cause of action in the second case?
A. Their claim of ownership.
5o you have here identity of parties identity of causes of action identity of sub-ect matter
then you have here res -udicata.
Q. What does this e9ample illustrate?
A. That the e.ects of res -udicata cannot be avoided by simply changing the nature of the action.
Q. What is the nature of the action in the frst case?
A. 2eivindicacion.
Q. What is the nature now of the second action?
A. 2ecovery of money. There was a mere change in the nature of action but both actions are
founded in the same facts.
Another ruleH
The fact that the parties in the subse$uent case may not be e#actly be the same as the
parties in the prior case does not afect the application of the rule of res judicata. 3o long as the
parties in the subse$uent case represents substantially the same interest as represented in the
prior case.
Example4
(n the frst case the defendant was only B. (n the second case B and 5 are now the main
plainti.s. Why 5? Because 5 is the wife of B. B and 5 now fled an action to recover the value of the
land. 1aturally A fled a motion to dismiss on the ground of res -udicata. But B and 5 argued that
the rule on res -udicata does not apply. Why? Because the parties in the frst case and the parties in
the second case are not the same. 5o they argued that in the frst case the parties thereof are A
as plainti. and B as defendant. (n the second case the parties are B and 5 as plainti.s and A as
defendant. 5 was never a party. 5o there is no identity.
Q. (s the contention of the plainti.s B and 5 correct?
A. 1o. Why? Because 5 being merely a spouse was not an indispensable or even a necessary party
in the frst case. (f she were sued then she could have been sued merely as a nominal party. With
her addition as a plainti. in the subse0uent case that will not strengthen the case of the husband
because with or without the wife impleaded in the frst case the -udgment will have been applied
e0ually to 5.
/ere is an illustration of what we said earlier that in the subse0uent case there is or there
are parties who were not parties in the prior case will not a.ect the application of the rule on res
-udicata the additional parties in our e9ample were not indispensable parties in the prior case.
The third part of 3ec. 0A :c9 Rule C! presupposes that there was a prior case between
parties and that judgment in the prior case is invo%ed in a subse$uent case between the same
parties.
Example:
A vs. B in 'ivil 'ase N !2&;. A -udgment was rendered in that case. 5ubse0uent to that
there is another case between A and B or between B and A. $nder this set of cases that -udgment
rendered in the frst case is introduced as evidence in the second case. But with the introduction in
evidence of the -udgment in the frst case will not be a res -udicata in the second case. Why?
Because under this rule )5ec. ;# )c* 2ule &"* only those matters that have been decided in that
prior case is deemed res judicata in the second case. Therefore there is still a part of the case in
the second case which can now be decided. 'an no longer be decided in the second case. That is
why the rule says Ethe other cases involving the same partiesF that has been ad-udged in a prior
case which appear on its face to have been directly ad-udged or this could have been necessarily
included therein.
Example4
144
A vs. B for forcible entry. The issue is EWho has the right of possession of the land?F 8et us
say that the -udgment was in favor of A. 5o A was declared the lawful possessor. The court having
found that A had been in possession of the land for 26 years continuously until B e-ected him
therefrom.
Q. What do you recall about forcible entry?
A. The only issue in forcible entry in involving possession. 5o what is settled in the forcible entry
case is the 0uestion of possession. The 0uestion of ownership is not decided in forcible entry.
Although you will recall that in B3 !2" as now included in 2ule #6 that in a forcible entry case the
0uestion of ownership may be decided. But the decision is only for the purpose of determining who
is the lawful possessor.
5o the law says EWhen the 0uestion of ownership is raised and the 0uestion of possession
cannot be decided without deciding the 0uestion of ownership then the 0uestion of ownership may
be decided. But only for this purpose. To allow the <unicipal Trial 'ourt to determine who is the
lawful possessor. But then the fndings of the <T' as to who is the owner is not fnal. (t is only good
in that case. The 0uestion of ownership can again be litigated.
After the -udgment in favor of A has become fnal B sued A this time for reivindicacion. 5o B
says E( am the owner.F
Q. 5o what is the issue here?
A. %wnership.
This is what A did. /e fled a motion to dismiss this second case. What is his basis? /e now
argued that the -udgment in the forcible entry case is already res -udicata. 5ince the 0uestion of
possession has already been decided in that forcible entry case this action for reindivicacion can no
longer be litigated. This is his )A* contention.
Q. (s the contention of A correct?
A. 1o. $nder the par. ' of 5ec. ;# 2ule &" the rule says E(n other cases involving the same
parties that is deemed decided in the prior case which appears on its face to have been directly
ad-udged.
Q. What was ad-udged in a forcible entry?
A. %nly the 0uestion of possession the 0uestion of ownership here can still be decided.
Q. But can there be now a dispute as to the 0uestion of possession so that if the 0uestion of
possession can still be disputed B can prove that A was not in possession of the lot?
A. 1o more. Why? Because the 0uestion of possession was already settled in the forcible entry
case.
5o in the reindivicacion the 0uestion of possession is res -udicata. That cannot be litigated
anymore. (t is already res -udicata.
Q. 5o what do you notice here?
A. 3ar )c* of 5ec. ;# of 2ule &" involves partial res -udicata. That is what is meant by par )c* of 5ec.
;# 2ule &".
Sec. ,> Rule "?: E@ect of Gud.ment rendered $% a 9orei.n (ourt
The efect of a judgment or 'nal order of a tribunal of a foreign country, having jurisdiction
to render the judgment or 'nal order is as follows(
:a9 +n a case of judgment or 'nal order upon a speci'c thing, the judgment or 'nal order is
conclusive upon the title of the thing; and
:b9 +n case of a judgment or 'nal order against a person, the judgment or 'nal order is
presumptive evidence of a right as between the parties and their successors in interest by a
subse$uent title.
+n either case, the judgment or 'nal order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud or clear mista%e of law or fact.
A -udgment rendered by a foreign court cannot be enforced in the 3hilippines e9cept by action.
(f a foreign -udgment rendered in an action involving title to specifc property or the action in
connection which a -udgment may have been rendered is a personal action.
Example:
A vs. B involving specifc property or personal action. This case was fled in the $5A. 8etGs
say that the -udgment was rendered in any case in favor of A. 5o in the case of specifc property
he is declared the owner. (n the case of personal action B was ordered to pay A money. The trouble
was although this -udgment has already became fnal in the $5A it was not enforced or e9ecuted
in $5A. A and B came to the 3hilippines. A now fles a motion in court for the e9ecution of that
-udgment in $5A.
141
Q. 'an that be done?
A. 1o. it cannot be done. %ur courts do not enforce foreign -udgment.
Q. What is the remedy available to A so that he can enforce this -udgment?
A. /e must fle an action in the 3hilippine courts for the enforcement of that -udgment.
/e )A* now fles in the 3hilippines 2T' of <anila for the enforcement of an action involving
title or he will now fle an action to enforce his -udgment.
Q. What is the e.ect of this -udgment of the $5 court on the title on that property? What is the
e.ect of this -udgment of the $5 court with respect to his money?
A. The rule says E(n the case of title to specifc property that -udgment is conclusive on the title
to that property.
(n the case of personal -udgment that -udgment is merely a presumptive evidence that A
has a claim against B. That is why under the last paragraph the rule says E(n any case B may
repel the -udgment by proof of lac, of -urisdiction of the $5 court to render the -udgment. 8ac, of
notice a clear mista,e of fact or of law committed by $5 court.
+. What is strange here is this> (n the case of title to specifc property the law says Ethe
-udgment of the $5 court is conclusive to the title. But in the last part a party against whom the
-udgment is sought to be enforced in the 3hilippines can still 0uestion the -udgment because it says
here Ein either caseF meaning whether the -udgment involves title to specifc property or whether
the -udgment involves personal action Ethe -udgment or fnal order may be repelled by evidence of
a want of -urisdiction want of notice to the party collusion fraud or clear mista,e of law or fact.F
Whereas under par )a* the -udgment of $5 court insofar as title to the property is concerned is
fnalJ yet under the last paragraph Eit can be repelled by proof of want of -urisdiction lac, of notice
fraud collusion clear mista,e of fact or of law.
Q. What is strange here?
A. ?inal but it can be repelled.
With respect to the second case the action for money well since this is merely a
presumptive evidence of right of A against B the right can be contested by showing lac, of
-urisdiction of the court lac, of notice fraud collusion clear mista,e of law or fact.
5o that is something strange about this>
?oreign Audgment4 Asiabest 8imited vs. 'A Q.2. 1%. !2CC6& 5ept. 27 !""C )2"B 5'2A 7&"
Appeals
Rule ,+: Appeal from '2( to R2(
A )s. C 'ode of Appeal Appellate
(ourt
#eriod of
Appeal
Questions
Raised
!. <T' )2ule
;6*
1otice of Appeal
within the <T'
2T' )1o trial
denovo*
Within !7 days
from notice of
-udgment and on
proper case
within &6 days.
Where the case
in inferior court
involves a
special
proceeding or
one which
involves multiple
appeal is &6 days
a record on
appeal being
re0uired.
!. +?
2. %8
&. %?[8
142
2. 2T'
K9ercise of4
a* %riginal -.
A vs. B for
specifc
performance
)A won4 B
appeal*
issues raised
on appeal
(ssue raised
on appeal
b* Appellate
Aurisdiction
K9. A vs. B
<T'J
Audgment
was
Appealed to
2T'

1otice of Appeal
?iled with the
same 2T' that
rendered
-udgment
)0uestion of law
and 0uestion of
fact or 0uestion
or fact only.*
'A )!7L&6* 1.B. When there
is a motion for
reconsideration
of the -udgment
of 2T' the
appeal period is
counted from the
receipt of the
appellant of
same )!7 or &6
days* the order
denying the
motion for
reconsideration.
3etition for
2eview on
'ertiorari )2ule
;7* )0uestion law
only*
5' 5ame )!7 or &6
days*
'A4 3etition for
2eview
'A )2egardless of
the nature of the
0uestion raised*
5ame )!7 or &6
days*
8et us frst ta,e the case of a -udgment of the <T'.
5o if the case is one between A and B and B appeals from the -udgment.
Q. What would be his mode of appeal? )<ode of Appeal*
A. 1otice of Appeal
Q. To what court must he direct the appeal? )3eriod of Appeal*
A. 2T' !7L&6 days
Q. Within what period must he fle the appeal? )3eriod of Appeal*
A. There is only one mode of appeal from a -udgment of an inferior court and that is notice of
appeal.
Q. With what court is this notice of appeal be fled?
A. <T'
Q. What is the appellate court?
A. %nly the corresponding 2T'. There can be no direct appeal from the <T' to any court other
than the corresponding 2T'.
5o B here cannot appeal directly to the 'A. /e cannot appeal directly to the 5'. (f he wants
to go to the 5' he can go there but not by appeal.
The period of appeal is as a rule "; days from notice of judgment. And on a proper case &6
days. Where the case in the inferior court involves a multiple appeal the period of appeal is &6
days a record on appeal being re0uired.
5o this case now of A and B in the 2T'.
Q. /ow will this case of B be resolved by the 2T'? Will there be a trial de novo when this case is
before the 2T'?
A. 1o there is no trial de novo. Why? Because the 2T' now will decide the appeal of B solely on
the basis of the records of the case the evidence presents as forwarded by the cler, of court of the
<T' to the cler, of court of the 2T'.
Q. What is needed for B here to perfect his appeal?
A. Within the period for the ta,ing of an appeal !7 days or in a proper case &6 days. B should also
pay the appellate doc,et fee.
5o there are two things as an appellant here must do. <ile the notice on appeal on time, and
pay the appellate doc%et fee on time.
Q. What now is the duty of the cler, of court of the <T' upon the fling of the notice of appeal and
payment of the appellate doc,et fee?
14
A. /e will now e9amine the records of the case preparatory to the elevation of the appropriate 2T'
and certify to the correctness of the records certify to the completeness of the records.
Q. What is the duty of the cler, of court with respect to this certifcate issued?
A. /e must furnish the parties4 A and B with that certifcates.
The records of the case are now with the 2T' cler, of court.
Q. What now is the duty imposed by the rules on the cler, of court?
A. $pon receipt of the records the cler, of court of the 2T' will now send a notice to both A and B
informing them of the fact that records are already there. ?or what? 5o that B the appellant may
now fle his memorandum on appeal. 5o itGs the duty of appellant B to fle his memorandum on
appeal within !7 days from notice or from within such period that appellate court may grant.
Q. What is the e.ect of the failure of B to fle the appellants brief his memorandum?
A. That could be a cause for the dismissal of the appeal of B. The appellee that is A here may also
fle the soMcalled Appellees brief but in case li,e this the brief is called memorandum. 5o A may
also fle his apelleeGs memorandum within !7 days from receipt of the appellantGs brief or
memorandum.
Q. 5upposing the apellee A does not fle the apelleeGs brief or memorandum can the court decide
the case?
A. :es. Why? Because anyway the memorandum of the appellant B is already there.
Q. What now will the 2T' do on the case?
A. The court will now decide the case on the basis only of the records and the evidence forwarded
by the inferior court to the 2T'.
Q. Will not the court then hear A and B and receive their evidence?
A. The general rule is4 1%R The court will only decide on the basis of what was presented in the
lower court.
)8et us assume that A is the appellant>*
The appeal may have been the result of the following4
A for instance appealed from an order disposing the case without trial. 8et say B fled a
motion t dismiss on the ground that the complaint does not state the cause of action. The appellate
court 2T' will have the power to aOrm the order or reverse the order.
8et us suppose that the motion to dismiss was based on lac, of -urisdiction. 5o the <T'
here dismissed the complaint of A on the basis of the motion to dismiss fled by B. )2eason4 The
<T' has no -urisdiction*. 8et us say that the 2T' agrees with the fnding of the <T' that it has no
-urisdiction.
Q. What will be the action of the 2T' on appeal?
A. (t will aOrm the order of the court or it can order a hearing to be held as if this case was fled
directly with the 2T'.
Illustration4
This is an action fled by A against B for reivindicacion in the <T'. The value of the property
is 376666 and this property is outside <etro <anila. 5o B now fles a motion to dismiss on the
ground of lac, of -urisdiction. 5o the court dismissed it because the <T' has -urisdiction over
)reivindicacion* cases only when the value of the property outside <etro <anila does not e9ceed
326666. /ere since the value e9ceeds 326666 it )<T'* has no -urisdiction. 5o the basis for the
motion to dismiss by B is proper.
A now appeals. The 2T' aOrms the order. (n fact the 2T' says Ethe <T' has no -urisdiction.
5ince the 2T' has -urisdiction over reinividicacion involving this amount the court will try the case if
this case was originally fled with the 2T'.F
8et us assume that in this e9ample the court found that contrary to the holding of the <T'
the <T' has no -urisdiction.
Q. What will the 2T' now do?
A. (t will return the case to the <T' for further proceedings.
5o in our e9ample for instance the motion to dismiss that the court has no -urisdiction but
the 2T' found that the <T' has -urisdiction the 2T' will not try the case. (t will return the case to
the <T' for further proceedings.
8et us ta,e the second situation. There was a trial between A and B in the <T'. The court
)<T'* has no -urisdiction. 1o -urisdiction notwithstanding the court rendered now a -udgment in
favor of A. 5o B appealed. The court found that indeed the <T' have no -urisdiction.
Q. What will be the remedy available to the 2T'?
A. 8i,e the frst case it will try the case. (t will not dismiss.
14"
5o there are the e.ects of appeal in the <T'. This is what is mentioned in 5ec. C 2ule ;6.
Sec. > Rule ,+
ppeal from orders dismissing case without trial; lac% of jurisdiction. F +f an appeal is ta%en
from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial
Court may aErm or reverse it, as the case may be. +n case of aErmance and the ground of
dismissal is lac% of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as if the case was originally 'led with it. +n case of
reversal, the case shall be remanded for further proceedings.
+f the case was tried on the merits by the lower court, without jurisdiction over the subject
matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance with the preceding section, without prejudice to
the admission of amended pleadings and additional evidence in the interest of justice. :n9
8et us ta,e the case of 2T'.
The -udgment of the 2T' can be rendered in the e9ercise of its %2(Q(1A8 A$2(5D('T(%1 or in
the e9ercise of its A33K88ATK A$2(5D('T(%1.
The distinction is important because the modes of appeals are not the same.
8et us assume that the 2T' decided a case. A vs. B in the e9ercise of its original -urisdiction.
8et us say that A won the case. B now wants to appeal.
Q. What would be the mode of appeal of B?
A. (t would be a simple notice of appeal fled with the same 2T' that rendered the -udgment.
Appellate court>. 'A
-owever if the only issue raised by B on appeal is 0uestion of law then the mode of appeal
is no longer a notice of appeal but under 2ule ;7 in which the case the appellate court would no
longer be the 'A but the 5'.
6et me stress> with respect to the -udgment of the 2T' rendered in the e9ercise of its
original -urisdiction the mode of appeal may be a simple notice of appeal or a petition of certiorari
depending on the 0uestion that is raised. (f the 0uestion raised on appeal is only a 0uestion of fact
or a 0uestion of fact and law at the same time the mode of appeal is a simple notice of appeal fled
with the 2T' the appellate court is the 'A. Where the appeal involves only a 0uestion of law the
mode of appeal is a petition for review or certiorari under 2ule ;7 and the appellate court is the 5'.
The period is the same !7 or &6 days.
Q. /ow about the -udgment of the 2T' rendered in the e9ercise of its appellate -urisdiction?
A. ?or instance this )A vs. B* was -udgment of the <T' which the court ruled upon on appeal and
this -udgment of the 2T' aOrming modifying or reversing the <T' -udgment is in turned appealed.
What would the be mode of appeal?
A. The mode of appeal is a petition for review )2 ;2*.
Q. What would be the appellate court?
A. 2egardless of the nature of the 0uestion raised on appeal. The 0uestion raised on appeal may
be a 0uestion of fact it may only be a 0uestion of law or it can be a 0uestion of fact and law at the
same time. (t is the 'A that has -urisdiction.
3eriod of Appeal>
The same. But when there is a motion for reconsideration of the -udgment of the 2T' the
appeal period is counted from receipt by appellant of the order denying the motion for
reconsideration.
Appeal from -udgment of 5'MAppellate 'ourt is QodR <ode of AppealM3eriod of AppealM
KternallyR )Ao,e only* Why?
Q. (s there an appeal from the -udgment of 5'?
A. 1o more thatGs why the only appellate court would be Qod the mode of appeal is prayer.
)?orget thatR*
RE4E 4:2ES:
+ failure to file appellants brief cause for dismissal of appeal
+ failure to file appellee3s brief, court can still decide appeal based on appellant3s brief
+ !he ,udgment on appeal of the (!9 is immediately e2ecutory, without pre,udice to a further appeal that may be taken therefrom.
+ !he 1ummary (ules no longer apply when the cases is on appeal.
0 Res!"u'l po/er o% t1e (ourt pr!or to t1e tr'nsm!tt'l o% t1e or!4!n'l re(or" or re(or" on 'ppe'l*
1. to issue orders of the preservation of the rights which do not involve matters litigated by appeal.
2. to approve compromise prior to the transmittal of the record.
. permit appeal by an indigent.
". order e2ecution pending appeal under (ule 8 1ec.2 Amotion for e2ecution was filed before the e2piration of the period to appeal)
14/
ORDINAR8 APPEAL PETITION 6OR REVIEW
+ ;atter of right + >iscretionary
+ All the records are elevated from the court of origin + -o records are elevated unless the court decrees it
+ -otice of record on appeal is filed with the record of origin + ?iled with the 9A
* f lower court dismissed the case without trial on merits:
) (!9 may*
Aa) Affirm. or
Ab) (everses, in which case, it shall remand the case for further proceedings.
* f dismissal is due to lac* of (urisdiction over the sub(ect matter:
) (!9 may*
Aa) Affrim* if (!9 has ,urisdiction, shall try the case on the merits as if the case was originally filed with it, or
Ab) (everse, in which case, it remand the case for further proceedings.
* f the case was tried on the merits by the lower court without (urisdiction over the sub(ect matter*
) (!9 shall dismiss the case, if it has original ,urisdiction, but shall decide the case, and shall admit amended pleadings or additional
evidence.
Rule G): Appe'l %rom Re4!on'l Tr!'l Courts
+ W1't ('nnot 5e 'ppe'le"H 9lue* AWE PAID)
1. %I!#$5! C(&D5>I9& < $rder dismissing an action without pre,udice
2. &E&95!I$- < $rder of &2ecution
. C&->I-= < Dudgments or final orders for or against one or more of several parties or in separate claims while the main case is pending
". ACC&A: < $rders disallowing or dismissing an Appeal
/. I-!&(:$95!$(B orders
0. >&-IA:1 < $rders denying C.;.1. ACetition for relief, ;otion for new trial or reconsideration and motion to 1et aside a ,udgment, by
consent, confession or compromise on the ground of fraud, mistake, duress or any ground vitiating consent.)
* +emedy in cases where appeal is not allowed*
) 1pecial civil action of certiorari or prohibition if there is lack of ,urisdiction or grave abuse of discretion or mandamus if there is no
performance of duty.
+ A ,udgment based only on compromise is not appealable and is immediately e2ecutory.
Rule G; :Groun"s %or Outr!41t D!sm!ss'l
1. petition was filed out of time
2. required fees were not paid
. copies of the petition were not served on the adverse party
) no proof of service
". failure to comply with the proper form for the petition
/. petition patently without merit
0. prosecuted manifestly for delay
6. the questions raised are unsubstantial
Or"!n'ry Appe'l <'ppe'l 5y /r!t o%
error*
Pet!t!on %or re#!e/
<Rule G;*
Pet!t!on %or re#!e/ on (ert!or'r! Rule
GB
+ 9ase is decided by the (!9 in its
original ,urisdiction Appealed to the 9A
+ 9ase is decided by the ;!9. Appealed
to the (!9. Cetition for review with the
9A.
+ !he case raises only a question of law.
+ ?ile a notice of appeal or a record on
appeal with the court of origin A(!9)
and give a copy to the adverse party.
+ ?ile a verified petition for review with
the 9A G Cay the docket and lawful fees,
and C/44 as deposits for costs with the
9A G ?urnish (!9 and adverse party
copy of such A("2).
+ ?ile a verified petition for review on
certiorari with the 19 A("/) G Cay docket
and lawful fees and C/44 for costs G
1ubmit proof of service of a copy to the
lower court and adverse party.
+ %ithin 1/ days from the notice of the
,udgment for notice of appeal and within
4 days for records on appeal G !he
period for filing is interrupted by a
timely motion for reconsideration or new
trial.
%ithin 1/ days from notice of the
decision to be reviewed or form the
denial of a ;( or new trial.
+ %ithin 1/ days from notice of the
,udgment or order of denial of the ;( or
new trial.
Rule G;: Pet!t!on %or Re#!e/ %rom t1e Re4!on'l Tr!'l Courts to t1e Court o% Appe'ls
+ ,ailure to comply with the re-uirements on form such as*
1) certification against forum shopping
2) non)payment of docket, lawful fees and
140
) deposit for costs and
") failure to show proof of service of the same petition to the adverse party are grounds for dismissal'
+ $utright dismissal allowed < Cetition for review is not a matter of right but discretionary on the part of the 9A. It may only give due
course to the petition if it shows on its face that the lower court has committed an error of fact andGor law.
+ A9!I$-1 $- !#& C&!I!I$-
9ourt may
1. require respondent to file comment
) 14 days
2. dismiss the petition if it finds that*
a) it is patently without merit
b) prosecuted manifestly for delay
c) the questions raised are unsubstantial
+ It is merely discretionary on the 9A to order the elevation of the records. !his is because until the petition is given due course, the trial
court may still issue a warrant of e2ecution pending appeal and in some cases such as e,ectment and those of 1ummary Crcedure, the
,udgments are immediately e2ecutory. It is only when the 9A deems it necessary that the 9lerk of the (!9 will be ordered to elevate the
records of the case.
See 2a$le
Rule ,": A##EALS 9R:' 2;E (2A A4* QUASI GU*I(IAL A<E4(IES 2: 2;E
(:UR2 :9 A##EALS
Sec. / Rule ,"
5ec. ! of 2ule ;& the di.erent 0uasiM-udicial bodies which decisions are sub-ect to appeal to the
'ourt of Appeals are enumerated under. To this list you add two other bodies whose decisions are
appellate to the 'ourt of Appeals4
!. the orders of the ombudsman is administrative discipline cases
(n case of <abian vs. 4esierto the court declared unconstitutional the provision of the law
creating the oOce of the ombudsman which empowered the 5' to review -udgment of the
ombudsman i1 administrativeMdisciplinary cases.
5o under this decision -udgment or orders of the ombudsman in administrativeMdisciplinary
proceedings are reviewable by the 'A.
?abian vs. Desierto Q. 2. N!2"#;2 5ept !B !""C
2. 86RC :8ational 6abor Relations Commission* Audgment of 182' are not appealable to the
5' but to the 'A.
Before the decision in 3aint ,artin <uneral -omes vs. 86RC the -udgment of 182' were
reviewable be certiorari before the 5'. (n this case )5aint <artin ?uneral /omes vs. 182'* Q.2. N
!&6CBB 5ept !B !""C 2"7 5'2A ;"; 5' held that there is no law which authoriIes appeals from
-udgment of the 182' to the 5'. (n this case the 5' traced the legislative history of the 182' and it
came into the conclusion that no one of the laws relative the 182' provided for an appeal from
-udgment of the 182' to the 5'.
%f course you will notice that under 5ec. 2 of 2ule ;& -udgments of the 8abor 8aw of the
3hilippines are not covered by 2ule ;&. But under this decision now 5aint <artin case the decision
of the 182' are now covered by the 2ule ;&.
K9cept for some di.erences the procedure of an appeal from -udgment of the 0uasiM-udicial
bodies are practically the same as the procedure for the disposition of an appeal from the -udgment
of the 2T' in the e9ercise of its appellate -urisdiction. They are practically the same. With this
di.erence only.
Both are reviewable by petition for review.
Example4 A vs. B in 5K'
B lost the case in the 5K'. B now wants to appeal from the -udgment of the 5K'.
Q. What is the mode of appeal?
A. 3etition for 2eview
Q. 3eriod?
A. The same. The period is within !7 days from receipt of the copy of the award -udgment or
order of the 5K'.
(n case however the -udgment of a 0uasiM-udicial body re0uires it to be published in order
that a -udgment may be valid the !7 days period is counted from the last day of publication.
(n case there is a motion for reconsideration of the -udgment order or award of the 5K' the
!7Mday period is counted from the receipt of the resolution denying the motion for reconsideration.
'ontents of 3etition Documents to be attached thereto> ( leave this to you so we can move>
146
Scope of Sec. / Rule ,"
!* Appeals from -udgment or fnal orders of the court of Ta9 AppealsJ
2* Appeals form awards -udgments fnal orders or resolution of or authoriIed by any 0uasiM
-udicial agency in the e9ercise of the 0uasiM-udicial functions.
List of A.encies
!* 'ivil 5ervice 'ommission
2* 'entral Board of Assessment Appeals
&* 5ecurities and K9change 'ommission
;* %Oce of the 3resident
7* 8and 2egistration Authority
B* 5ocial 5ecurity 'ommission
#* 'ivil Aeronautics Board
C* Bureau of 3atents Trademar,s and Technology Transfer
"* 1ational Klectrifcation Administration
!6* Knergy 2egulatory Board
!!* 1T'
!2* Department of Agrarian 2eform under 2. A. 1o. BB7#
!&* Qovernment (nsurance 5ystem
!;* Kmployees 'ompensation 'ommission
!7* Agricultural (nventions Board
!B* (nsurance 'ommission
!#* 3hilippine Atomic Knergy 'ommission
!C* Board of (nvestment
!"* 'onstruction Arbitrators AuthoriIed by 8aw
26* 1ational 8abor 2elations 'ommission )5aint <artin ?uneral /omes vs. 182'*
2!* %mbudsman )?abian vs. Desierto*
22* =oluntary Arbitrators
(ction of the &( on the petition>
(t may dismiss outrightly the petition on the ground for instance that )!* the motion was fled
out of timeJ )2* the re0uired fees were not paidJ )&* copies of the petition were not served by the
adverse party etc.
The court may fnd that petition is not meritorious at all or the court may fnd that the
petition was fled merely for purposes of delay or the court may fnd the issues raised in the
petition are too insubstantial to re0uire further proceedings.
%n the other hand the court may fnd it proper to direct the respondent to fle a comment
with !6 days from notice. 5o if the court gives the respondent time to comment that means to say
that the court may grant to determine whether to give due course or not to this petition.
8et us say now that the comments have been fled
Q. What now will the action of the court thereafter?
A. The court may then give due course to the petition or deny due course.
Q. When will the court give due course here?
A. (f from the pleading the comment on the petition itself if there is a prima facie showing that the
body whose -udgment is sub-ect of petition may have committed an error. This error is of fact or of
law.
Q. (s it enough that the error was committed either of fact or of law?
A. 1o. An error that may warrant a reversal of the -udgment order or award appeals from or which
may warrant at least a modifcation of the -udgment appeals.
Q. (f the court gives due course how will the 'A decide now the case?
A. At its option it may now re0uire the 0uasiM-udicial body 5K' in our e9ample elevate to the 'A
the records of the case.
8et us assume that the records have been elevated to the appellate court.
Q. Will the case now be submitted for decision?
A. 1ot yet. 'A may re0uire the parties to submit their memorandum within a given period of time.
$pon the fling of the memorandum or the e9piration of the period of the fling thereof the case
may now be submitted for decision. )ThatGs how simple it isR*
Q. What is the di.erence between the e.ect of an appeal from a -udgment rendered by a 0uasiM
-udicial body on the e9ecution of the -udgment appealed from the e.ect of an appeal in an ordinary
case from the -udgment of 'A where the -udgment is that of a 2T'?
A. (n the case of a -udgment of the 0uasiM-udicial body the appeal therefore does not stay the
e9ecution of the -udgment. (t is immediately e9ecutory. -owever this is sub-ect to an e9ception
147
where the appeal from the -udgment of the 5K' or any 0uasiM-udicial body for that matter stay the
e9ecution when the 'A itself orders the stay of an e9ecution.
%n the other hand a -udgment of the 2T' appealed from cannot be e9ecuted during the
pendency of the appeal that is the general rule. (n other words an appeal from a -udgment of the
2T' to the 'A is stayed.
Q. (s there a case however where a -udgment is that of a 2T' and yet an appeal therefore does not
stay the e9ecution?
A. :es. That is when the -udgment rendered by the 2T' involves a case which is decided under the
rules on summary procedure in which case the appeal therefore does not stay the e9ecution of the
-udgment.
Example4
The 2T' aOrmed the -udgment of the inferior court in a forcible entry case which ordered
the defendant to vacate the premises. The 2T' aOrmed the -udgment. The defendant B fled a
petition for review under 2ule ;2 )petition for 2eview from the 2T' to 5'*.
Q. <ay this -udgment against him be enforced notwithstanding his appeal therefore in 'A?
A. :es. (tGs the only e9ception.
RE4E 4:2ES:
Groun"s %or Outr!41t D!sm!ss'l
1. Cetition filed out of time
2. (equired fees were not paid
. 9opies of the petition were not served on the adverse party
". 9ontents of appeal does not follow the prescribed form
Groun"s %or D!sm!ss'l <Upon mot!on*
1. Catently without merit
2. Crosecuted manifestly foe delay
. Iuestions raised are unsubstantial to require consideration
PROCEDURE IN T9E COURT O6 APPEALS
RULE GG: Or"!n'ry Appe'le" C'ses
T!me to 6!le
a) appellant3s brief
) "/ days from notice of clerk of court
b) appellee3s brief
) "/ days from receipt of appellant3s brief
c) appellant3s reply brief
) 24 days from receipt of appellee3s brief
+ ?ailure to file appellant3s brief on time is a ground for dismissal of the appeal.
+ If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be
unnecessary should the motion be granted.
+ !he failure of the appellant to make specific assignment for errors in his brief or page references to the record as required in this section
is a ground for dismissal for his appeal.
Rule GB: Appe'l 5y Cert!or'r! to t1e Supreme Court
+ Appeals to the 1upreme 9ourt can be taken from a ,udgment or final order for resolution of the 9A, the 1andiganbayan, the (!9 or such
other court as may be authoriFed by law and only by a verified petition for review on certiorari on questions of law e#cept in appeals from
,udgments of the (!9 in criminal cases wherein the penalty imposed is life imprisonment, or reclusion perpetua which shall be elevated by
ordinary appeal, or wherein the death penalty is imposed which is sub,ect to automatic review.
EUESTIONS O6 LAW EUESTIONS O6 6ACT
+ doubt of controversy as to what the law is on ceratin facts + doubt or difference arises as to the truth or falsehood of facts,
or as to probative value of the evidence presented
+ if the appellate court can determine the issue raised without
reviewing or evaluating the evidence
+ the determination involves evaluation or review of evidence
+ can involve questions of interpretation of the law with
respect to the ceratin set of facts
+ qeury invites the calibration of the whole evidence
considering mainly the credibility of witnesses, e2istence and
relevancy of specific surrounding circumstances and relation to
each other and the whole probabilities of the situation
+ As a 4ener'l rule, the findings of fact of the 9A are final and conclusive and cannot be reviewed on appeal to the 19.
E,(ept!ons to Con(lus!#eness o% 6'(ts:
1. %hen the finding is grounded entirely on speculations, surmise of con,ecture.
2. %hen inference made is manifestly absurd, mistaken or impossible.
. %hen the ,udgment is premised on a misrepresentation of facts.
". %hen there is grave abuse of discretion in the appreciation of facts.
/. %hen the findings of facts are conflicting.
148
0. %hen the 9A in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and
appellees.
6. %hen the findings of fact of the 9A are at variance with those of the trial court, the 19 has to review the evidence in order to arrive at
the correct findings based on the record.
7. %hen the findings of fact are conclusions without citation of specific evidence on which they are based.
8. %hen the facts set forth in the petition as well as in the petitioner3s main and reply briefs are not disputed by the respondents.
14. !he findings of fact of the 9A is premised on the supposed evidence and is contradicted by the evidence on record.
11. %hen certain material facts and circumstances have been overlooked by the trial court which, if taken into account, would alter the
result of the case in that they would entitle the accused to acquittal.
0 Cert!or'r! un"er Rule GB #s+ (ert!or'r! un"er Rule @B <spe(!'l (!#!l '(t!on*
CERTIORARI UNDER RULE GB CERTIORARI UNDER RULE @B
+ petition is based on questions of law + petition raises the issue as to whether the lower court acted
without ,urisdiction or in e2cess of ,urisdiction or with grave
abuse of discretion
It is a mode of appeal 1pecial civil action
+ involves the review of the ,udgment award or final order on
the merits
+ directed against an interlocutory order of the court or where
there is no appeal or any other plain, speedy or adequate
remedy
+ must be made within the reglementary period + filed not later than 04 days from notice of ,udgment, order of
resolution appealed from
+ stays the ,udgment or order appealed from + unless a writ of preliminary in,unction or temporary
restraining order is issued does not stay the challenged
proceeding
+ the petitioner and the respondent are the original parties to
the action, and the lower court or quasi),udicial agency is not
impleaded
+ the parties are the aggrieved party against the lower court or
quasi),udicial agency and the prevailing parties
+ ;otion for reconsideration is not required + ;otion for reconsideration or for new trial is required
+ ?ile a motion for reconsideration or new trial is filed, the
period shall not only be interrupted 5ut 'not1er @C "'ys s1'll
5e 4!#en to t1e pet!t!oner A19 Admin. ;atter 442)4)
+ the court is in the e2ercise of its appellate ,urisdiction and the
power of review
+ court e2ercises original ,urisdiction
Rule G@:Or!4!n'l C'ses <In t1e CA*
5nder @C @lg. 128, the 9A has original ,urisdiction to issue writ of mandamus, prohibition, certiorari, habeas corpus and quo
warranto, and au2iliary writs or processes, whether or not they are in aid of its appellate ,urisdiction, and it has e2ecutive original
,urisdictions over actions for annulment of ,udgments of (egional !rial 9ourts.
T1e (ourt '($u!res &ur!s"!(t!on:
A1) $ver petitioner by filing of the petition
A2) $ver the respondent by the service on the latter of the order or resolution indicating the courts initial action on the petition and -$! by
the service on him of the petition.
Pro(e"ur'l Outl!ne Aoriginal cases in the 9ourt of Appeals)
1) ?iling of the petition
2) $rder to acquire ,urisdiction over respondents $( $utright dismissal for failure to comply to requirements also form and
payment of docket and other legal fees.
) (equire respondents to file 9$;;&-! within 14 days from -$!I9&
") 9ourt may require the filing of a (&C:B or such other pleadings as it may deem necessary
/) >etermination of ?A9!5A: I115&1
) the court may delegate the reception of evidence on such issues to any of its members.
Rule ,1: Annulment of Gud.ment or 9inal :rders and Resolutions
)Annulment of Audgments rendered by the 2T' and Annulment of Audgment rendered by the
(nferior 'ourt*
Q. When may a -udgment of the 2T' be the sub-ect of a petition for annulment in the 'A?
A. (f a -udgment has already become fnal and the loosing party lost the right to fle a petition for
review or lost any other remedy against this -udgment without his fault then he may fle a petition
for annulment of this -udgment. This means to say that if the party against whom the -udgment was
rendered lost the right to fle a petition for relief or lost any other remedy which could have been
available to him because of his fault then he cannot avail of this 2ule ;#.
Example:
(n the 2T' the parties were A and B. A -udgment was rendered against B. This -udgment
became fnal.
Q. Well what did we learn under 2ule &"?
A. When a -udgment becomes fnal there is nothing left to be done but to e9ecute it.
114
Q. Why did this -udgment become fnal?
A. Because B failed to fle a notice of appeal. Because B failed to fle a motion for reconsideration4
because B failed to fle a motion for new trialJ because B failed to fle a petition for relief. The lost of
any of these rights was not due to the fault of B.
+f the lost of any of these remedies was on account for the fault of B, then B cannot 'le an
action for annulment.
3eriod within which B may now fle an action for annulment in 'A>
The period depends on the ground whether the ground is e9trinsic fraud or the ground is lac,
of -urisdiction.
+f the ground is fraud he /as four );* years from discovery of the fraud with which to fle an
action.
+f it is lac% of jurisdiction at any time before the action is barred by laches or estoppel. These
are the only periods.
Q. What are the .rounds?
A. (tGs either e#trinsic fraud or lac% of jurisdiction
These are the only two )2* grounds available to B.
Q. What is an e9trinsic fraud as contradicting intrinsic fraud?
A. 8etGs illustrate each of them>
Example:
5upposing during the trial in the 2T' A submitted in evidence a forged document. K9hibit
EAF. And on the basis of this forged document alone the court rendered a -udgment in favor of A.
Q. B fles an action to annul this -udgment on the ground of e9trinsic fraud. (s this ground )forgery*
an e9trinsic fraud?
A. 1o what then? (ntrinsic fraud.
8etGs reverse the situation>
Example:
A and B received the notice of preMtrial setting the preMtrial for specifc date. Before the date
of the preMtrial A met B and said EB ( already fled a motion for postponement. The court has
already granted it. :ou do not have to appear anymore in the court for the preMtrial.F
Believing on the truthfulness of A B did not appear for the preMtrial. %n the day of the preM
trial however A appeared in court. Because of the absence of B A now moves that he be allowed to
present his evidence e9 parte. Thereafter the court rendered -udgment. The -udgment in favor of A
became fnal. B now wants to fle an action for annulment based on e9trinsic fraud.
Q. With what e9trinsic fraud consist of?
A. According to him )B* the misrepresentation of A that the preMtrial set on the scheduled date
was cancelled.
Q. (s it the contention of B here correct?
A. :es it is correct. Why? That ,ind of a fraud committed against him was committed outside the
trial.
Whereas the fraud consisting in the introduction of evidence in court of that K9hibit EAF is an
intrinsic fraud.
Q. What is the di.erence?
A. (n the case of an intrinsic fraud there is an opportunity for the adverse party to counteract that
fraud.
(n this case B could have presented on the fact that this document is a forgery. /e did not.
That is his )B* fault.
But in the case of the second misrepresentation B would not have rebut it with contrary
evidence because that was not committed outside the trial.
This is the concept of e9trinsic fraud.
%f course the other ground is lac, of -urisdiction.
/rocedure.
(f B is to fle the petition. The contents of the petition are stated in 2ule ;# do not have to
repeat e9cept for this matter.
The petition should be accompanied by aEdavits of witnesses of the party 'ling the petition.
(n our e9ample the petition of B should be accompanied by aOdavits of his witnesses. 5o
since he was the defendant in the trial below )2T'* the aOdavit of his witnesses must be those
which would support his defense against the action of A.
111
(f it were A who fled his petition his petition should be accompanied by aOdavits of his
witnesses on the cause of action of A.
The petition is now there in court )'A*.
Q. What now will be the action of 'A will it immediately give the due course or it can dismiss
outright the petition?
A. There are two )2* causes of action that 'A may ta,e this case4
!* immediately dismiss the petition. Qround the petition in its )'A* view is not impressed with
merits. (n other words it is not meritorious. Then the court can immediately dismiss it.
2* The court fnds the petition to be impressed with merits )with prima facie merit*.
Q. Then what shall 'A do?
A. Then it will give it due course. /ow? The rule now says Ethat this case will now be treated as if
it were an ordinary case fled in the 2T'.F ThatGs why the respondent in this case now A will have to
be summoned.
Q. What will be re0uired of B here?
A. B will be re0uired to fle his answer and thereafter trial shall proceed as if this were a case
pending in the 2T'.
Q. Will there be an actual trial in the 'A or in short may the 'A receive the evidence itself?
A. There are several options available to the '.A. regarding the Kvidence which it is re0uired to
receive. (t may authoriIe any of its members to receive the evidences. (n other words the members
of the 'A assigned to receive the evidence will act as if he were a -udge of 2T' conducting a trial.
The 'A may delegate the reception of the evidence to another -udge an appropriate -udge. Any
-udge? 1o Audge of the 2T'.
5o these are the options available to the 'A.
Q. What is the e9tent of the power of the 2T' -udge to whom the reception of the evidence of the
parties has been delegated by the 'A? <ay the 2T' decide the case?
A. 1o. Why? Because the power delegated to him is the power to receive the evidence not the
power to decide the case. (t will still be the 'A that will render the -udgment.
5o after the reception of the evidence either by the 'A itself or by a -udge of the 2T' the 'A
will now decide the case.
The decision may be dismissal of the petition. This means to say that the grounds have not
been proven. 5o the decision of the 2T' stands.
The -udgment of the 'A may be to grant the already e9pired decision.
This is what is meant by this suspension of prescriptive period )5ec. C 2ule ;#*
Sec. 1 Rule ,1 (E@ect of Gud.ment
judgment of annulment shall be set aside the $uestioned judgment or 'nal order or
resolution and render the same null and void, without prejudice to the original action being re'lled
in the proper court. -owever, where the judgment or 'nal order or resolutions set aside on the
ground of e#trinsic fraud, the court may on motion order trial to try the case as if a timely motion
for new trial had been granted therein.
Sec. > Rule ,1 Suspension of #rescripti)e #eriod
The prescriptive period for the re'lling of the aforesaid original action shall be deemed
suspended from the 'ling of such original action until the 'nality of the judgment of annulment.
)owever, the prescriptive period shall not be suspended where the e#trinsic fraud is attributable
to the plaintif in the original action.
We said that where the -udgment is declared void this action can be reflled. /owever where
the ground which serves as the basis of the 'A in setting aside the -udgment of 2T' was e9trinsic
fraud instead of having this case reflled the trial may be declared to hear anew the case as if a
motion for new trial was granted.
Example:
The -udgment of the 2T' was set aside. The ground was e9trinsic fraud.
We say that as a result of this -udgment the plainti. here A may reMfle the case or instead
of reflling the case the 'A may direct the 2T' to continue hearing the case. (t is as if there was a
new trial granted.
/owever if the basis of the 'A in setting aside the -udgment of the 2T' was lac, of
-urisdiction obviously the 'A cannot direct the 2T' to hear this case. (t has to be reMfled.
112
The prescriptive period for the fling of the aforesaid original action shall be deemed
suspended from the fling of said original action until the fnality of -udgment of annulment.
/owever the prescriptive period cannot be suspended where the e9trinsic fraud is attributable to
the plainti. in the original action.
Example:
2T'MA vs. B. 8etGs say that the cause of action that can be brought within four );* years from
the happening. 8et say this cause of action became the sub-ect of a complaint fled by A against B
on Aanuary 2 !""&.
Q. What do you notice here?
A. At the time the action was fled only one )!* year of the prescriptive period remained.
This -udgment in favor of A became fnal on Aan. & !"";. this -udgment however was
rendered in favor of A. 5o in the 'A now B fled an action for annulment on Aan. 7 !""7. A
-udgment annulling this decision of the 2T' that was rendered by the 'A and became fnal on Aan.
B !""#.
5ince the e9trinsic fraud by A and A elected to reMfle the case in the 2T'. /e fled this case A
vs. B on Aan. # !""".
Q. /as his action prescribe or did not prescribe?
A. The law says>
5ince A was the one guilty of e9trinsic fraud the period between the time he fled the
original complaint )Aan. 2 !""&* and the time -udgment became fnal )-an. B !""#*.
The period between the frst time the case was fled and time of the -udgment of 'A )Aan. B
!""#* became fnal this was not suspended.
5o if you add therefore the period from Aan. ! !""6 to the time he fled the second action
)Aan. # !"""* you have already a period of nine )"* years. /e only has four );* years. 3rescribedR
(f however the ground of the annulment was not in -urisdiction not fraud for purposes of
reflling the case this period is suspended. Therefore at the time this case was reMfled the period
may not have yet prescribed.
Aanuary ! !""6
A vs. B
The cause of action arose on Aan. ! !""6. The cause of action
prescribes in four );* years from happening.
Aanuary 2 !""& A fled a complaint against B in 2T' )original complaint* )at the
time of fling only one )!* year left in the prescriptive period*
Aanuary & !""; Audgment in 2Tc became fnal. Audgment in favor of A. )By reason
of e9trinsic fraud committed by A*
Aanuary 7 !""7 B fled an action for annulment by reason of e9trinsic fraud
committed by A.
Aanuary B !""# The -udgment of 'A annulling the decision of the 2T' became
fnal
Aanuary # !""" 5ince the e9trinsic fraud was committed by A he )A* )elected to*
reMfled the case in the 2T' A vs. B.
1oteZ 1ine )"* years have elapsed. 1ot suspended because e9trinsic fraud by A.
The period from Aanuary 2 !""& )frst case was fled to* Aanuary B !""# )'A decision
became fnal* was not suspended because the e9trinsic fraud was committed by a
)plainti.*.
Therefore from Aanuary ! !""6 to Aanuary # !""" the cause of action already
prescribed. 1ote that the cause of action in the above e9ample prescribes in four );*
years.
RE4E 4:2ES:
Rule GH: W1en to 6!le
- i" "ailed to "ile wit!out "ault
1) notice of appeal
2) motion for reconsideration
) motion for new trial
") petition for relief
E,tr!ns!( 6r'u"
) ?raud committed outside the trial and not in the course of the trial
+ e2trinsic fraud shall -$! be a valid ground if*
) it was availed of or could have been availed of in a*
a) motion for new trial
b) petition for relief
E%%e(t o% u"4ment
a) annulment based on lack of ,urisdiction < original action may be refilled.
b) based on e2trinsic fraud < trial court will try the case.
Aas if a motion for new trial was granted)
Rule GI: Prel!m!n'ry Con%eren(e
11
+ -ot mandatory
T1!n4s t'.en up:
1. possibility of an amicable settlement
2. clarification of issues
. formulation or stipulation of facts
". other matters which may aid in the prompt disposition of the case
Rule GD: Or'l Ar4ument
+ -ot mandatory
+ !he oral argument shall be limited to such matters as the court may specify in its order or resolution.
Rule BC: D!sm!ss'l o% Appe'l
Groun"s %or D!sm!ss'l
Aa) ?ailure of the record on appeal to show on its face that the appeal was taken within the period fi2ed by these (ules.
Ab) ?ailure to file the notice of appeal or the record on appeal within the period prescribed by these (ules.
Ac) ?ailure of the appellant to pay the docket fee and other lawful fees as provided in 1ection / of (ule "4 and 1ection " of (ule "1.
Ad) 5nauthoriFed alterations, omissions or additions in the approved record on appeal as provided in 1ection " of (ule "".
Ae) ?ailure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these
(ules.
Af) Absence of specific assignment of errors in the appellant3s brief, or of page references to the record as required in 1ection 1, paragraph
Aa), Ac), Ad) and Af) of (ule "".
Ag) ?ailure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in
its order.
Ah) ?ailure of the appellant to appear at the preliminary conference under (ule "7 or to comply with orders, circulars, or directives of the
court without ,ustifiable cause. and
Ai) !he fact that the order or ,udgment appealed from is not appealable. A1a)
+ An appeal erroneously taken to the 9ourt of Appeals shall not be transferred to the appropriate court but shall be dismissed outright.
+ An appeal will be withdrawn as a matter of right at anytime before the filing of the appellee3s brief. !hereafter, the withdrawal will be
allowed in the discretion of the court.
Rule B): u"4ment
A ('se s1'll 5e "eeme" su5m!tte" %or &u"4ment:
A. n ordinary appeals )
1) %here no hearing on the merits of the main case is held
a) upon the filing of the last pleading, brief or memorandum. or
b) e2piration of the period for filing
2) %here hearing on the merits of the main case is held
a) upon its termination.
b) upon the filing of the last pleading or memorandum. or
c) e2piration of the period for filing
$. n original action and petition for review %
1) %here no comment is filed
a) upon the e2piration of the period to comment.
2) %here no hearing is held
a) upon the filing of the last pleading. or
b) e2piration of the period for filing.
) %here hearing is held
a) upon its termination.
b) upon the filing of the last pleading or memorandum. or
c) e2piration of the period for filing.
Rule B;: 3ot!on %or Re(ons!"er't!on
+ !he rules now prohibit a second motion for reconsideration.
+ !he pendency of a motion for reconsideration filed on time shall stay the e2ecution of the ,udgment.
+ !he rules now require the service of the motion to the adverse party.
Rule 5": 4e0 2rial
Q. When may a motion for new trial in 'A be fled?
A. At anytime after the appeal has been perfected up to the time the 'A has not yet lost
-urisdiction over the case.
Q. What is the -urisdiction here?
A.
Example4
A vs. B in the 2T'. 8etGs say that B appealed to 'A. B wants to fle a motion for new trial.
Q. Within what period must he fle it?
A. The law says Eat anytime after the appeal has been perfectedF.
11"
8et us say that the appeal made was perfected on Dec. ! !""C until then the court still
retains -urisdiction. 8et us say that a -udgment was rendered by the 'A on Dec. ! !""C. 8et us
assume also that B received the copy of the decision on Dec. & he has a !7Mday period therefrom
within which to fle a petition for certiorari in the 5'. 5o the last day for him to fle would be Dec.
!C !""C.
Q. When then can he fle a motion for new trial?
A. At anytime between the date )Dec. ! !""C to Dec. !C !""C* before the court lost its
-urisdiction. Because if there is no perfected petition for certiorari as of Dec. !C !""C the following
day the -udgment already becomes fnal. 5o the court no longer has any -urisdiction. 5o between
these two dates )Dec. ! to Dec. !C*.
There is only one ground for a motion for new trial under 2ule 7&.
The motion for new trial in the 'A can be based only on one ground that is newly discovered
evidence. Kvidence which would not have been discovered while the case is pending before trial in
2T' )in our e9ample*. Kven with due diligence B in this e9ample would not have presented that
evidence and which if presented will probably alter the -udgment of 'A already rendered.
This is in contrast with the ground of a motion for new trial under 2ule &#. There are two
grounds where a -udgment which has been rendered against a party because of ?A<K that a.ected
the substantial rights. This is not available in the 'A.
Q. /ow will the 'A here resolve this motion for new trial?
A. (t will conduct a hearing.
Q. Who may receive the evidence in this case?
A. $nli,e a motion for new trial in a criminal case which can be conducted by a trial court a
motion for new trial in a civil case can be heard only by C itself. This is a distinction between the
two.
Q. When should this motion for new trial be resolved?
A. Within "6 days from the date the motion for new trial is submitted for resolution.
Assuming now that the motion for new trial has been granted what will be the ne9t
proceeding? $nless the court otherwise directs the procedure in the new trial shall be the same as
that granted by the 2T'. /ow 2T' conducts a trial following the grant of a motion for new trial.
RENE NOTES:
PROCEDURE O6 T9E SUPRE3E COURT
Rule B@: Or!4!n'l 'n" Appe'l C'ses
Or!4!n'l C'ses Co4n!J'5le
1. 9ertiorari
2. Crohibition
. ;andamus
". Iuo warranto
/. #abeas 9orpus
0. >isciplinary proceedings against members of the ,udiciary and attorneys
6. 9ases affecting ambassadors, other public ministers and consuls
+ An appeal to 19 can only be taken by petition for review on certiorari & e#cept in criminal cases where the penalty imposed is death,
reclusion perpetua& or life imprisonment.
Groun"s %or "!sm!ss'l o% 'ppe'l 5y SC:
a) ?ailure to take appeal within the reglementary period.
b) lack of merit in petition.
c) failure to pay the requisite docket fee and other lawful fees to make deposit for costs.
d) failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the
petition.
e) failure to comply with any circular, directive or order of the 19 without ,ustifiable cause.
f) error in choice or mode of appeal.
g) case is not ,ustifiable to 19.
+ >iscretionary upon 19 Aand 9A) to call for preliminary conference similar to pre)trial.
+GR* Appeal to 19 by notice of appeal shall be dismissed
E,(ept!on* In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses
committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of
death or life imprisonment is imposed A1ec. , (ule 122).
+ Appeal by certiorari from (!9 to 19 submitting issues of fact may be referred to the 9A for decision for appropriate action, without
pre,udice to considerations on whether or not to give due course to the appeal as provided in (ule "2.
PROVISIONAL RE3EDIES
Rule BH: Prel!m!n'ry Att'(1ment
11/
+ Pro#!s!on'l reme"!es AanciliaryGau2iliary) < writs and processes available during the pendency of the action may be resorted to by a
litigant to reserve and protect rights and interests therein pending rendition, and for the purpose of ultimately effecting a final ,udgment in
the case.
C($'I1I$-A: < constituting temporary measures availed of during the pendency of the action.
A-9I:IA(B < incidents in and dependent on the result of the main action.
+Prel!m!n'ry Att'(1ment
a) available even if the recovery of personal property is only an incidental relief sought in the action.
b) may be resorted to even if the personal property is in the custody of a third person.
c) e2tends to all kinds of property, real or personal or incorporeal.
d) to recover possession of personal property un,ustly detained, presupposes that the same is being concealed, removed, or disposed of to
prevent its being found or taken by the applicant.
e) can still be resorted to even if the property is in custodia legis& as long as the property belongs to the defendant, or is one in which he has
proprietary interests, A-> with permission of the court.
+Groun"s
a) recovery of specified amount of money and damages, e2cept moral or e2emplary, where party is about to depart from the Chils with the
intent to defraud creditors.
b) action for money or property embeFFled or for willful violation of duty by public officers, officers of corp, agent or fiduciary.
c) recovery of possession of property Aboth real and personal) un,ustly detained, when the property is concealed or disposed of to prevent is
being found or taken.
d) action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof.
e) action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors.
f) action against party who is not a resident of the Chils and cannot be found therein upon who service by publication can be made.
+ PRINCIPLE O6 PRIOR OR CONTE3PORAR8 URISDICITON <Prel!m!n'ry Att'(1ment*
) &nforcement of writ of preliminary attachment must be made preceded by or simultaneously accompanied by service of summons, copy
of complaint, application and affidavits for the attachment and the bond upon the adverse party. @5! the requirement of prior or
contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a
resident of the Chils temporarily absent therefrom, or the defendant is a non)resident of the Chils or the action is in rem or quasi in rem.
+ W1en prel!m!n'ry 'tt'(1ment !s "!s(1'r4e"
') debtor posts a counterbond or makes requisite cash deposit < if attachment to be discharged is with respect to particular property,
counterbond or deposit shall be equal to the value of the property as determined by the court. in all other cases, amount of counterbond
should be equal to the amount fi2ed in the order of attachment.
+ 'AS( DP)SI* )+ '),-*.$)-D S(ALL S',. *( PA/0-* )+ A-/ 1,D20-* *(A* A**A'(I-2 PA.*/ 0A/
.')3.
5) applicant3s bond is insufficient or sureties fail to ,ustify.
() attachment was improperly or irregularly issued.
") property attached is e2empt from e2ecution.
e) ,udgment is rendered against attaching party.
%) attachment is e2cessive < discharge is with respect to the e2cess
+ Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the
writ so long as there has been an order of attachment.
+ W1en to 'pply %or "'m'4es '4'!nst t1e 'tt'(1ment 5on"
a) before trial.
b) before appeal perfected.
c) before ,udgment becomes e2ecutory.
d) in the appellate court for damages pending appeal, before ,udgment becomes e2ecutory.
+ %hen ,udgment becomes e2ecutory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of
,udgment and costs upon notice and summary hearing. !here is no need to first e2ecute ,udgment against obligor before proceeding against
sureties.
+ Cl'!ms %or "'m'4es ('nnot 5e su5&e(t o% !n"epen"ent '(t!on e,(ept:
a) when principal case is dismissed by the trial court for lack of ,urisdiction without giving the claiming party opportunity to prove claim
for damages.
b) when damages sustained by a third person not a party to the action.
Rule BI: Prel!m!n'ry In&un(t!on
+ Creliminary in,unction distinguished from Crohibition
Prel!m!n'ry In&un(t!on Pro1!5!t!on
=enerally directed against party to the action but may be
against any person
>irected against a court, tribunal, or person e2ercising ,udicial
powers
>oes not involve the ,urisdiction of the court ;ay be on the ground that the court against whom the writ is
sought acted without or in e2cess of ,urisdiction
;ay be main action itself or ,ust a provisional remedy in the
main action
Always a main action
+ Groun"s %or Prel!m!n'ry In&un(t!on
a) plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts Alatter is preliminary mandatory
in,unction).
b) the commission of acts or non)performance during pendency of litigation would probably work in,ustice to the plainitiff.
c) defendant is doing or about to do an act violating plaintiff3s rights respecting the sub,ect of the action and tending to render ,udgment
ineffectual.
+ In&un(t!on m'y 5e re%use" or "!ssol#e" /1en*
a) complaint is insufficient.
b) defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable in,ury if in,unction granted or
continued while plaintiff can be fully compensated.
110
c) plaintiff3s bond is insufficient or defective.
+ -o preliminary in,unction or !($ may be issued without posting of bond and notice to adverse party and hearing.
+ PRINCIPLE O6 PRIOR OR CONTE3PORAR8 URISDICTION*
%hen an application for a writ of preliminary in,unction or a temporary restraining order is included in a complaint or any initiatory
pleading, the case, if filed in a multiple)sala court, shall be raffled only after -$!I9& to and I- !#& C(&1&-9& of the adverse party or
the person to be en,oined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together
with a copy of the complaint and the applicant3s affidavit and bond, upon the adverse party in the Chils. @5! the requirement of prior or
contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a
resident of the Chils temporarily absent therefrom, or the defendant is a non)resdent of the Chils.
+ "!%%eren(e /!t1 pr!n(!ple !n prel!m 'tt'(1ment < in attachment, the principle applies only in the implementation of the writ, while in
applications for in,unction or !($, this principle applies before the raffle and issuance of the writs or !($.
+ !($ good for only 24 days from service. 04 days for 9A. until further orders from 19.
+ !($ can be issued e# parte only if matter of grave urgency and plaintiff will suffer grave in,ustice and irreparable in,ury. =ood for 62
hours from issuance, within which ,udge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing
to determine whether the !($ should be e2tended for 24 days. In no case can !($ be longer than 24 days including 62 hours.
Rule BD: Re(e!#ers1!p
+ W1en re(e!#er m'y 5e 'ppo!nte":
a) party has an interest in the property or fund sub,ect of the action and such is in danger of being lost, removed or materially in,ured.
b) action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially in,ured and that its value is
probably insufficient to discharge the mortgage debt, $( that the parties have stipulated in the contract of mortgage.
c) after ,udgment, to preserve the property during the pendency of the appeal, or to dispose of it, or aid in e2ecution when e2ecution has
been returned unsatisfied or the ,udgment debtor refuses to apply his property to satisfy ,udgment, or to carry out the ,udgment.
d) when appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation.
+ W1en re(e!#ers1!p m'y 5e "en!e"-l!%te":
a) appointment sought is without sufficient cause.
b) adverse party files sufficient bond for damages.
c) applicant or receiver3s bond is insufficient.
+ @oth the applicant for receivership and the receiver appointed must file separate bonds.
+ In claims against the bond, it shall be filed, ascertained and granted under the same procedure as 1ection 24, (ule /6, whether it is
damages against the applicant3s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the
receiver3s management Ain the latter case, no longer need to file a separate action).
Rule @C: Reple#!n
+ (eplevin
a) available only where the principal relief sought in the action is the recovery of possession of personal property.
b) can be sought only where the defendant is in the actual or constructive possession of the personal property involved.
c) e2tends only to personal property capable of manual delivery.
d) available to recover personal property even if the same is not being concealed, removed, or disposed of.
e) cannot be availed of if property is in custodia legis& as where it is under attachment, or was seiFed under a search warrant or distrained
for ta2 assessment.
4 De"endant entitled to return o" property ta5en under writ i"*
a) he seasonable posts redelivery bond
b) plaintiff3s bond if insufficient or defective
c) property is not delivered to plaintiff for any reason.
& replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession
of the disputed property pending trial of the action. !hus, surety not liable for payment of ,udgment for damages rendered against plaintiff
on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the
defendant3s deprivation of possession by the plaint
Special (i)il Actions
Rule !2: Interpleader
Q. Why are these called E5pecial 'ivil ActionsF?
A. Because of their nature there are special procedures to follow.
The frst of this special civil action is the case of an interpleader.
Q. What is the concept of an interpleader?
A.
Example:
A leased an apartment to B. 5o pursuant to this agreement B have been occupying this
apartment paying the rentals. After the lease period has run letGs say si9 )B* months here now
surfaces '. ' said EB does not pay anymore the rentals to A this apartment is mine. 3ay to me.F B
is in a dilemma. (f he )B* pays to A and it turns out later that ' has a better right he runs the ris, of
116
paying twice. (f he pays to ' he runs the ris,s of paying again to A because ' may not have the
right.
Q. (f you were B what is the remedy available to you so that regardless of who is the party
entitled to receive you will be protected?
A. ?ile a suit for interpleader. B vs. A and '. Why? 5o that A and ' can fght it out in this case. 5o
B initiates the complaint against two )2* people who do not want to go to court and litigate.
5o this process of interpleader A and ' are compelled to fght each other. That is the concept
of interpleader.
Sec. / Rule !2
&henever conNicting claims upon the same subject matter are or may be made against a
person who claims no interest whatever is the subject matter, or an interest which in whole and in
part is not disputed by the claimants, he may bring an action against the conNicting claimants to
compel them to interplead and litigate their several claims among themselves.
We now have this complaint by B against A and '.
Q. What is the prayer of B here?
A. That A and ' be directed to interplead with each other. <eaning that A and ' should fght it out
and have this matter of who is entitled to the rental. Actually it is not B who is fghting A or '. (t is
A and ' who are fghting each other.
Q. But who initiated the fght between the two )2*?
A. B.
Q. What now is the procedure to be followed by the court when this interpleader action was fled?
A. Actually A and ' will also be summoned under 2ule !;. But with this di.erence accompanying
the summons is an order of the court.
Sec. 2 Rule !2
*pon 'ling of the complaint, the court shall issue an order re$uiring the conNicting
claimants to interplead with one another. +f the interests of justice so re$uire, the court may direct
in such order that the subject matter be paid or delivered to the court.
5o the sheri. now serves on A and ' the summons. Together with the summon is that order
of the court directing A and ' to interplead with one other. 5o A will fle his answer.
Q. Who will be furnished copy of the answer of A?
A. A will furnish B and '.
Q. ' will fle his answer. Who will be furnished with the copy of the answer of '?
A. A and B.
Q. Do you now see why this is a special civil action?
A. (n ordinary civil action do the defendants furnish each other copies of their answers? 1o. But
here the defendants furnish each other. Why? Because they are the ones litigfating.
5o insofar as A is concerned the plainti. against him is '. (nsofar as ' is concerned A is the
plainti. against him.
Q. <ay a motion to dismiss the action for interplead be fled by A and '? 'an A and ' avail of 2ule
!B before they fle their answer?
)coI remember under 2ule !B the motion to dismiss can be fled only before the answer has been
fled.
This 0uestion is answered by this 5ec. ; 2ule B2.
A. Section , Rule !2
&ithin the time of 'ling an answer, each claimant may 'le a motion to dismiss on the ground
of impropriety of the interpleader or on other appropriate grounds speci'ed in Rule "G. The period
to 'le the answer shall be tolled and if the motion is denied, the movant may 'le his answer within
the remaining period, but shall not be less than 've :;9 days in any event, rec%oned from notice of
denial.
Q. What do you notice with respect to the ground of a motion to dismiss an interpleader action
and a motion to dismiss in an ordinary civil action?
A. (n an ordinary civil action the impropriety of the action is not a ground for a motion to dismiss.
$nder 2ule B2 it is.
5o the grounds for a motion to dismiss under 2ule B2 are more encompassing than the
ground of a motion to dismiss under 2ule !B.
117
5ec. 7 2ule B2 covers that situation already mentioned earlier.
Sec. 5 Rule !2
7ach claimant shall 'le his answer setting forth his claim within 'fteen :";9 days from
service of the summons upon him, serving a copy thereof upon each other conNicting claimants
who may 'le their reply thereto as provided by these Rules. +f any claimant fails to plead within the
time herein '#ed, the court may, on motion, declare him in default and thereafter render judgment
barring him from any claim in respect to the subject matter.
The parties in an interpleader action may 'le counterclaims, cross.claims, third.party
complaints and responsive pleadings thereto, as provided by these Rules.
After A and ' have been summoned they will fle their answer serving the plainti. B and
other defendants of the copy of the answer.
(n the answer of A and ' each will assert his right to the rental in this e9ample. /e will give
his reasons why the rental should be paid to him.
Q. <ay any of them A and ' fle also a counterclaim a crossMclaim?
A. :es. The parties in an interpleader action may fle counterclaim crossMclaims thirdMparty
complaints and responsive pleadings thereto as provided by these 2ules.
5o there is nothing special about this e9cept with this provision where they have to furnish
each other with copies of their pleadings.
Q. What now is the disposition of the court with respect to these cases?
A. After the pleadings of the conWicting claimants have been fled and preMtrial have been
conducted in accordance with the rules the court shall proceed to determine their respective rights
and ad-udicate their counterclaims.
(t means to say following the preMtrial trial proper will now proceed.
After the court has conducted the preMtrial and received the evidence the court will now
determine who between A and ' is entitled to this rental. And of course will ad-udicate the
counterclaims.
This is how 2ule B2 wor,s.
RENE NOTES:
INTERPLEADER INTERVENTION
1. an original action 1. ancillary action
2. presupposes that plaintiff has no interest in the sub,ect
matter of the action or has interest therein in whole or in part
which is not disputed by the other parties
2. proper in any of the four situations* persons having Aa) legal
interest in the matter of litigation, or Ab) success of either of the
parties, or Ac) an interest against both, or Ad) is so situated as to
be adversely affected by a distribution or other disposition of
property in the custody of the court or of an offer thereof, A(ule
18, 1ec. 1)
. defendants are being sued precisely to interplead them . defendants are original parties to the pending suits
Rule !": *eclarator% Reliefs and Similar Remedies
Q. What is the sub-ect matter of a declaratory relief?
A. A person may be interested in a law )he may be a.ected by a law* he may be a.ected by an
instrument. /e may want to ,now what his rights are or what his obligations are under a written
instrument or a law.
Q. 'an you now bring an action in court to determine what his rights are what his obligations are
under the law or under a written document?
A.
Example4
A and B entered into an agreement. There are certain provisions here which confer on A
certain rights and imposes him certain obligations. There are also provisions here which impose on
B certain obligations and also certain rights. But in the case of A these provisions are vague he
cannot 0uite comprehend it. And he )A* fears that there may be a litigation arising out of it.
Q. 'an he now fle an action in court against B for the purpose only of obtaining a declaration from
the court on what his rights are on what his obligations are on what the rights of B are or there is
a law or ordinance say regulating sale of li0uor A is a li0uor distributor this law a.ects him so he
wants to ,now what his rights are what his obligations are under this law can he now fle an action
against the authorities to determine what his rights are or his obligations are under this ordinance?
A. :es. That is the concept of a declaratory relief.
Ta,e note that a court is supposed to determine actual controversies. As a rule a court is not
re0uired to give advisory opinions. (t cannot settle abstract matters. (t settles only actual conWicts.
But under the law on declaratory relief the court is actually called upon to render an opinion
in a case involving these documents agreed upon. %f course that can be done only before there
has been a breach of the written document.
118
Q. What is the situation contemplated by 2ule B&?
A. A person whose interest thereunder is a deed a will a contract or any other written instrument
under a law an ordinance e9ecutive order his rights under this law or instruments are a.ected.
The provisions of the written instrument or the law may be vague giving rise to
uncertainties. 5o the possibility of a suit arising out of this vagueness of this instrument or this
doubtful character the instrument because if you will not determine this there will be a suit that
will arise.
Q. 5o what is the idea behind the suit now that the party in this written instrument may fle?
A. The idea here is to secure from the court a declaration as to the validity of the instrument or of
the law.
5o in the case then of the declaratory relief the idea of the party fling the case is to ,now
before there is a breach of the law on the agreement or written instrument what his rights are
what his obligations are under the contract or under the written agreement or under the
instrument or under the law.
5o in other words he wants to ,now in advance what his rights are. 5o he goes to the court
and in e.ect to as, for an opinion. We said that the court does not as a matter of course render an
opinion on abstract matters or hypothetical cases. But this is a sort of an e9ception to this. That is
why under this law the court may or may not agree to entertain an action for declaratory relief.
(t is being as, merely to interpret an instrument or a law or it may be as,ed only to declare
what would be the proper construction or interpretation of the law or of the written instrument.
There are however suits that may be brought under the provisions of these rules on
declaratory relief, which the courts cannot decline to entertain. These are the following actions4
!* an action to 0uite title to a property or to remove a cloud over a propertyJ
2* an action for the reformation of an instrumentJ
&* an action for consolidation of ownership where the sub-ect matter of the suit involves a
contract of sale with right to repurchase.
These three )&* actions mentioned when brought under the provisions on Declaratory 2eliefs
cannot be dismissed by the court. (t must have to entertain. But other cases of declaratory relief
may be denied due course by the court.
<or this declaratory relief rules to apply, what must be established is the concurrence of all
these circumstances4
!* There is an instrumentJ there is a willJ there is a written contract or there is law
2* This written instrument or this law a.ects the right of a personJ
&* A person wants this law or this instrument to be interpreted to be given a constructionJ
;* At the time the suit is brought there must be a threatened suit that may arise out of itJ and
7* This controversy is -ustifable.
Example: )how this rule wor,s*
/ere is a contract entered into between A and B. 8et us assume that in our contract that A
underta,es to deliver supplies to B. A was supposed to load this supplies on a ship belonging to A
for delivery to B. This contract calls for a ten )!6* year period. %n the "
th
year of the period A
Assigns his rights under this contract to '. ' now is the transferee. 3ursuant to this contract of A
and ' now says to B EB beginning this !6
th
year ( will now be the one to supply you the materials
which A under the contract supposed to deliver to you.F
Q. (s B bound by this contract?
A. ?or instance A ' now delivers to B what A was supposed to deliver and B refuses may he )B*
be held liable?
Q. What is the remedy here?
A. B here may fle an action for declaratory relief against ' and A.
Q. What will be the prayer now of B here?
A. /e will now pray that the court interpret this contract involved here and fnd out what his rights
are what his obligations are under this contract of ' and A. Does this contract bind him or it does
not bind him?
5o before there is any breach by A and B or ' on this contract then B can go to the court to
declare what his rights are what his obligations are under this contract.
Example:
:ou will notice that this case here illustrates that frst part of the rule where a party fling the
case is interested under a contract.
124
The other sub-ect matter of a rule on declaratory relief is a law an ordinance or an
e9ecutive order which a.ects the rights of a person.
The municipality of H for instance which passed an ordinance on ta9es on business
establishments selling li0uor. /ere is : who is a license dealer of li0uor. This law a.ects him one
way or the other. /e doesnGt ,now what his rights are now he is supposed to pay letGs say ta9es
which are much higher than the amount he is presently paying. But he is in doubt whether this is
applicable to him or not applicable to him because of the vagueness of the law.
Q. What is he allowed to do before there is any breach of this law by him?
A. /e can fle an action against the municipality of H for declaration of whether this law is valid or
not. This is his main purpose. To fnd out whether he is liable under this or he is not liable. This is
the sole purpose.
Q. Who will be the parties against whom in our e9ample A which a.ected by that law or contract
or ordinance? Who will be the defendants?
A. The law says Eall those persons whose rights are a.ected by this instrument must have to be
made parties. And those who are not made parties are not a.ected by whatever -udgment may be
rendered in a case. Although there is a decision cited in the boo, of <oran to the e.ect that when a
necessary party is not impleaded then a declaratory relief petition may be fled. Why? Because the
party who is necessary can always later on 0uestion an instrument or the law in a separate
proceeding and so this declaratory relief will not put an end.
8et us now assume that the petition for declaratory relief is fled. The court refuses to give it
due course. Qround for instance whatever -udgment the court may render will not put an end to
the uncertainty that brought about the controversy. 5o it will be useless. 5o the court can decline.
%n the other hand the court may opt to consider it so it will hear the case. (t is as if it were
an ordinary civil case.
Q. What will be the -udgment?
A. (t will simply be a declaration of whatever or not this law is valid or not. (t will simply declare
what rights of A has under the contract. What obligations he has. That is allR
Q. (s there anything in the -udgment that can be e9ecuted?
A. 1o. Why? Because this is merely declaratory. (t does not resolve an actual controversy. (t merely
declares Ehere are the rights here are the obligations.F (t cannot be enforced by e9ecution
because there is nothing to enforce.
The law says Eif the petition was entertained by the court but while the case is pending in
court there is a violation of the agreement or there is a violation of the law there is a breach.
Q. 'an the petition for declaratory relief be maintained?
A. 1o more.
8etGs assume in this e9ample of A fling the action against the <unicipality to contest the
validity of the ta9 ordinance. When the case was pending plainti. A paid the ta9es.
Q. 'an this declaratory relief be continued?
A. 1o more. (t can no longer be continued.
Q. What will happen then?
A. The court will now treat this as an ordinary civil action. 5o it will now try the case and render a
-udgment which can be enforced.
5o in our e9ample here if ta9payer paid the ta9es while the case is pending there is
already a breach of the law sought to be clarifed. 5o the court can no longer simply declare what
are the rights and obligations. The court will now resolve with fnality the rights of the plainti. and
his obligations. And the -udgment there can be enforced by e9ecution. But in a case of validity or
invalidity there is nothing that it can be enforced. Because it is merely a statement Ethis is your
right this is your obligation etc>F
5o this in essence is the concept of Declaratory 2elief.
8etGs go bac, to the cases mentioned which can be fled under this provision> on rules on
declaratory relief namely4
!* an action to 0uite title to property or to remove a cloud on a propertyJ or
2* an action for reformation of an instrumentJ or
&* an action for consolidation of ownership.
These cases cannot be declined to be entertained by the court. (t must have to decide those
cases.
5ince the sub-ect of the petition for declaratory relief is a written instrument or a law or an
ordinance.
121
Q. 'an there be an action for declaratory relief to declare that a certain person is or is not a
?ilipino citiIen?
A. 1o. Why? Because an action of this nature is not based on any document it is not based on any
written agreement.
(n one case in !";! when war was about to brea, H went to the oOce of the municipal
treasurer of his town and registered himself as a 'hinese citiIen. After the war he now instituted an
action for declaratory relief against the government.
Q. What was his purpose here?
A. To serve a declaration that he is a ?ilipino.
(n his petition he alleged that because of his fear he registered himself as a 'hinese citiIen.
1evertheless his having registered himself as a 'hinese notwithstanding he always considered
himself as a ?ilipino. 5o that he now wants that he be declared a ?ilipino citiIen.
The petition was dismissed outrightly.
Q. 'ould the petition for declaratory relief be validly fled to secure a declaration that a person is a
?ilipino citiIen?
A. ?irst there is a written instrument which is the basis of this petition. The documents which is
the basis of this petition. The documents which he signed when he registered himself as a ?ilipino
does not constitute a written agreement. Why? Because that was a unilateral act on his part. 1o
one is interested in that document which he e9ecuted e9cept himself. 5o there can possibly be no
0uestion of doubt arising from that unilateral act.
(n one case the suit was fled by A against B. the -udgment was rendered against B. B now
fled an action for declaratory relief based on this -udgment. (n other words he wanted to fnd out
what his rights are under that -udgment.
Q. (s the remedy of a declaratory relief petition proper in this case?
A. 1o. Why not? ?irst there are other remedies available to A to fnd out what his rights are. ?or
instance he could have fled a motion for clarifcatory -udgment. (f he was in doubt as to what his
rights are he could have fled a motion in court to clarify the -udgment. There is another remedy.
/e could have appealed from the -udgment. (n other words this petition for declaratory relief is
available only when there is no other available remedy against a written instrument or against a
law. 5o when there are still available remedies this cannot be resorted to.
But of course there is one compelling reason why this petition was dismissed and that is the
rule on res -udicata. That has been already resolved with fnality. (t cannot be sub-ect of another
litigation.
RE4E 4:2ES:
Re$u!s!tes %or De(l'r'tory Rel!e%
1. ,usticiable controversy
2. adverse claim between real parties in interest
. sub,ect matter is a written instrument or a statute
". relief sought is merely a determination of the rights and duties
/. there must be no breach or violation of instrument or statute
0. no other available or sufficient remedy
GR: >eclaratory relief is available @&?$(& there is actual breach or violation of an instrument or statute.
E,(ept!ons:, declaratory relie" may still be availed even i" t!ere is breac! or violation I+*
1. it concerns future application of the instrument or law J=omeF vs. Calomar A2/ 19(A 726)K or
2. not ob,ected to by the adverse party and the court has rendered ,udgment after full blown trial J;atalin 9oconut Croducers A1" 19(A
1)K
Rule !5: (ertiorariF #ro6i$ition and 'andamus
There are two )2* types of certiorari. %ne as an appealed remedy from a fnal -udgment or
order of for instance the 2T' MMMMMMMMMMMMMMMMMMMMMM -udgment and there is an appeal therefrom on a
0uestion of law the remedy is certiorari under 2ule ;7 not a certiorari under 2ule B7.
The -udgments of the 5andiganbayan may be appealed to the 5'. The appeal is by certiorari
under 2ule ;7.
The -udgment of the 'A may be appealed to the 5'. The remedy is certiorari under 2ule ;7.
5o it is in this sense that in this )2ule ;7* certiorari is not the certiorari mentioned in 2ule B7
because 2ule B7 does not contemplate an appeal.
To better have an idea of what 2ule B7 covers we may have this situation.
Example:
A sued B in the <T' for nullity of marriage. B here fled a motion to dismiss on the ground of
lac, of -urisdiction. The motion is denied. /e then said 1o the <T' has -urisdiction.F
122
Q. 'an you appeal if you were B from this order denying your motion to dismiss?
A. 8oo, the order of dismissal is merely interlocutory. Oou cannot appeal from an interlocutory
order. This is clear in 5ec. ! )c* of 2ule ;!. But defnitely the order of denial is wrong. 5o if you do
not correct this error and you are B you will go to a process of getting this case heard and decided
by the <T'. :ou could -ust imagine the waste of time money and e.ort if the proceedings will
continue until terminated. Why? Any -udgment rendered by the <T' here will be void.
Q. What is the remedy here if you cannot appeal?
A. $nder 2ule B7 B may 0uestion the order denying the motion to dismiss.
The remedy could be a petition for certiorari.
RENE NOTES:
+ In a petition for certiorari, the court may order dismissal of the complaint because it is part of the incidental relief A-ewsweek vs. IA9)
Re$u!s!tes o% Cert!or'r!:
1. there must be a controversy
2. the respondent is e2ercising ,udicial or quasi),udicial functions
. the respondents acted without or in e2cess of its ,urisdiction or acted with grave abuse of discretion
". there must be no other plain, speedy and adequate remedy
Re$u!s!tes o% Pro1!5!t!on:
1. there must be a controversy
2. the respondent is e2ercising ,udicial or quasi),udicial or ministerial functions
. the respondents acted without or in e2cess of its ,urisdiction or acted with grave abuse of discretion
". there must be no other plain, speedy and adequate remedy
Re$u!s!tes o% 3'n"'mus:
1. there must be a clear legal right or duty
2. the act to be performed must be practical < within the powers of the respondent to perform such that if the writ of mandamus was issued,
he can comply with it, or else the essence will be defeated
. respondent must be e2ercising a ministerial duty < a duty which is absolute and imperative and involves merely its e2ecution
". duty or act to be performed must be e2isting < correlative right will be denied if not performed by the respondents
/. no plain, speedy and adequate remedy in the ordinary course of law
+ A writ o" certiorari can never be issued by an (!9 against an administrative agency because an administrative agency when e2ercising
quasi),udicial functions is considered as of the same rank as the (!9. (owever, a writ of prohibition may be issued by the (!9 against
administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi),udicial function.
+ !he ,urisdiction of the 1andiganbayan over certiorari proceedings is only in aid of its appellate ,urisdiction.
Groun"s %or D!sm!ss'l o% Pet!t!on:
1. patently without merit
2. prosecuted manifestly for delay
. questions raised are too unsubstantial to warrant further proceedings
+ As a GENERAL RULE, a motion "or reconsideration is an essential precondition for the filing of the petition for certiorari as a form of a
plain, speedy, and adequate remedy. Its purpose is to give the court a quo the opportunity to correct itself. EFCEPT*
1. if the assailed ,udgmentGorder is a patent nullity
2. when there is e2treme urgency
. if the issue has been raised and promptly passed upon by the court
". if the issue is purely a question)of)law
/. if for public purpose
0.if suggested by the court a quo
GENERAL RULE: If after ,udgment the petition for certiorari is availed of when appeal is plain, speedy and adequate remedy then the
petition must fail for certiorari may not be resorted to as a substitute for appeal, in such a case appeal is deemed abandoned.
EFCEPTION: If after ,udgment an appeal has been perfected, a petition for certiorari relating to certain incidents therein may prosper
where the appeal does not appear to be the plain, speedy and adequate remedy. #ence, in this light, appeal and certiorari are remedies that
does not e2clude each other. A:ansang vs. 9A, 17" 19(A 19(A 24)
+ ;ere filing of petition for certiorari under this rule will not stay e2ecution of ,udgment. Creliminary in,unction must be sought.
CERTIORARI PRO9I:ITION 3ANDA3US
.urpose of the writ' +Intended as a corrective
remedy
+Annul and modify a
proceeding
Crevent the commission or
carrying out of an act
Intended to compel
performance of an act desired
)ct sought to be controlled. >iscretionary act >iscretionary and ministerial
act
;inisterial act
With respect the respondent. &2ercising ,udicial and quasi)
,udicial function
DudicialGor non),udicial
function
Dudicial andGor non),udicial
function
0 I" a motion "or reconsideration or new trial is "iled t!e period s!all not only be interrupted but anot!er 67 days s!all be given to t!e
petitioner.
A19 Admin. 9ir. 442)4)
Rule @@: Euo W'rr'nto
12
Euo W'rr'nto = A proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the
person holding or e2ercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds
for forfeiture of said e2ercise of position, office or franchise. 8uo warranto may also be used when an association acts as a corporation
within the Chilippines without being legally incorporated or without lawful authority so to act.
EUO WARRANTO 3ANDA3US
>esigned to try the right or title to the office, the right to the
office itself is disputed
Applicable only in cases where the right to the office is -$! in
dispute
Euo W'rr'nto !n Ele(tor'l Pro(ee"!n4 Euo W'rr'nto !n Ele(tor'l Pro(ee"!n4
) !o contest the right of an electoral public officer to hold
public office.
) prerogative writ by wGc the govt. can call upon any person to
show by what title he holds a public office or e2ercises a public
franchise
) an electoral proceeding under the $mnibus &lections 9ode
for the e2clusive purpose of impugning the election of a public
officer on the ground of ineligibility or disqualification to hold
the office
) three grounds* usurpation, forfeiture, or illegal association
) petition must be filed within 14 days from the proclamation
of the candidate
) presupposes that the respondent is already actually holding
office and action must be commenced within one year from
cause of ouster or right of petitioner to hold office arose
) may be filed by any registered candidate for the same office
and, who, even if the petition prospers, would not be entitled
for that office.
) the petitioner must be the government or the person entitled
to the office and who would assume the same if his action
succeeds.
Rule @H: E,propr!'t!on
& All properties may be e#propriated e,(ept:
1. ;oney
2. 9hoses in action
4 9!en is e#propriation proper:
1. %hen the owner refuses to sell
2. %hen he agrees to sell but an agreement as to price cannot be reached
0Purpose o% Prel!m!n'ry Depos!t un"er Se(+ ;
1. provide damages if court finds plaintiff has no right to e2propriate
2. advance payment for ,ust compensation
+ $nly an A-1%&( is allowed under 1ec. (ule 06, no other responsive pleadings are allowed
0 De(l'r't!on o% De%'ult
) !he defendant cannot be declared in default. ?ailure to file an answer would result to the court3s ,udgment on the right to e2propriate
without pre,udice to the right to present evidence on ,ust compensation.
0 W1en !s T!tle Veste" !n E,propr!'t!on:
) i" personal property, upon payment of ,ust compensation A1ec. 14)
) i" real property, upon registration A1ec. 1)
STAGES IN EFPRORIATION
1. >etermination of the authority of the plaintiff to e2ercise the power of eminent domain and the propriety of the e2ercise in the
conte2t of the facts involved, and
2. >etermination of D51! 9$;C&-1A!I$-.
+ W1en m'y pl'!nt!%% enter !nto possess!on o% propertyH
1. 5pon filing of complaint, serving notice to defendant and after depositing of assessed value of property for ta2ation purposes with
authoriFed government depository A1ection 2)
2. 5pon payment or tender of compensation fi2ed by the ,udgment and payment of the costs by plaintiff A1ection 14)
Rule @I: 6ore(losure o% Re'l Est'te 3ort4'4e
0E%%e(t !n t1e En(um5r'n(er !s not Imple'"e"
a. his equity or right of redemption is not affected or barred by the ,udgment of the court A1unlife Insurance vs. >ieF)
b. his right is not affected because he is merely a necessary party not an indispensable party
c. the remedy of the senior encumbrancer is to file an I->&C&->&-! proceeding to foreclose the right to redeem by requiring the ,unior
encumbrancer to pay the amount stated in the order of e2ecution or to redeem the property in a specified time
+Reme"y o% 3ort4'4e '4'!nst t1e :uyer o% t1e 3ort4'4e Property:
) ;ortgagees can substitute or implead the buyer. A1ec. 18 (ule )
#owever& t!is rule s!all not apply i":
a) the property is covered by the !orrens 1ystem.
b) buyer bought the property in good faith
) !o prevent this, the mortgagee must annotate a notice of lis pendens in the certificate of title so that subsequent buyerAs) have notice.
+ Inst'n(es /1ere Court ('nnot ren"er De%!(!en(y u"4ment
1. (ecto law
2. -on)resident mortgagor unless there is attachment
12"
. 1ec. 6 (ule 70 when mortgagor dies, the mortgagee must file his claim with the probate court
". !hird person owned the property mortgaged but not solidarily liable with the debtor
UDICIAL 6ORECLOSURE EFTRAUDICIAL 6ORECLOSURE
(equires court intervention -o court intervention necessary
!here is only an equity of redemption (ight of redemption e2ists
Alternative remedy to personal action for the amount due to
satisfy mortgage debt
Croper only when provided for in the contract
EEUIT8 O6 REDE3PTION RIG9T O6 REDE3PTION
) right of the defendant mortgagor to e2tinguish the mortgage
and retain ownership of the property by paying the debt wGin
84)124 days after the entry of the ,udgment or even after the
foreclosure sale but prior to confirmation
) right of the debtor, his successor in interest or any ,udicial
creditor or ,udgment creditor of said debtor or any person
having alien on the property subsequent to the mortgage or
deed of trust under which the property is sold to redeem the
property wGin one year from the registration of the 1heriff3s
certificate of foreclosure sale
) governed by (ule 07 ) governed by 1ecs. 28)1 of (ule 8
UDG3ENT CONTENTS O6 UDG3ENT E66ECT O6 UDG3ENT
I" actual partition o" property is made !he ,udgment shall state definitely*
A1) by metes and bounds and adequate
description,
A2) the particular portion of the estate
assigned to each party
!o vest in each party to the act, in
severally the portion of the estate
assigned to him.
I" t!e w!ole property is assigned to one
o" t!e parties upon !is paying to t!e
ot!ers t!e sum or sums ordered by t!e
court
!he ,udgment shall state*
1. the fact of such payment, and
2. the assignment of the real estate to the
party making the payment
!o vest in the party making the payment
the whole of the real estate free from any
interest on the part of the other parties to
the action
I" t!e property is sold and t!e sale is
con"irmed by t!e court
!he ,udgment shall state* 1. the name of
the purchaserAs), and
2. a definite description of the parcels of
the real estate sold to each purchaser
!o vest the real estate in the purchaserAs)
making the paymentAs), free from the
claims of the parties to the action.
T/o <;* Issues !n 'n A(t!on %or Pet!t!on
1. %hether or not a co)ownership e2ists
2. #ow to actually partition the property
+ !he appointment o" 'ommissioners is mandatory unless there is an e2tra),udicial partition between the parties.
Rule HC: 6or(!5le Entry 'n" Unl'/%ul Det'!ner
T1ree <A* ?!n"s o% A(t!on %or Re(o#ery o% Possess!on
ACCION INTERDICTAL ACCION PU:LICIANA ACCION REINDIVICATORIA
+summary action for the recovery of
physical possession where the
dispossession has not lasted for more
than one year.
+e,ectment proceeding under (ule 64,
either forcible entry or unlawful detainer
+a plenary action for the recovery of the
real right of possession has lasted for
more than one year.
+an action for the recovery of ownership
wGc necessarily includes the recovery of
possession.
+All cases of forcible entry and unlawful
detainer irrespective of the amount of
damages or unpaid rentals sought to be
recovered should be brought to the
;!9.
+(!9 has ,urisdiction if the value of the
property e2ceeds C24,444 outside ;etro
;anila. C/4,444 within ;etro ;anila.
+;!9 has ,urisdiction if the value of the
property does not e2ceed C24,444 <
outside ;etro ;anila. C/4,444 within
;etro ;anila
+(!9 has ,urisdiction if the value of the
property e2ceeds C24,444 outside ;etro
;anila. C/4,444 within ;etro ;anila,
+;!9 has ,urisdiction if the value of the
property does not e2ceed C24,444 <
outside ;etro ;anila. C/4,444 within
;etro ;anila
6ORCI:LE ENTR8 UNLAW6UL DETAINER
+possession of the land by the defendant is unlawful from the
beginning as he acquires possession by ?orce, Intimidation,
1trategy, !hreat or 1tealth A?I1!1)
+possession is inceptively lawful but it becomes illegal by
reason of the termination of his right to the possession of the
property under his contract wG the plaintiff
+no previous demand for the defendant to vacate the premises
is necessary
+demand is ,urisdictional if the ground is*
1. non)payment of rentals, or
2. failure to comply with lease of contract
+the plaintiff must prove that he was in prior physical
possession of the premises until he was deprived thereof by the
defendant
+the plaintiff need not have been in prior physical possession
+the 1 year period is generally counted from the date of actual
entry on the land
+period is counted from the date of last demand or last letter of
demand
Tenor o% Dem'n":
a. Cay AND 'acate. or
b. 9omply with the condition of the lease AND 'acate
+u"4ment on E&e(tment Pro(ee"!n4 're Imme"!'tely E,e(utory Unless t1e De%en"'nt:
A1) perfects his appeal,
A2) files sufficient superseades bond to pay the rents, damages and costs occurring down to the time of ,udgment appealed from. and
A) deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract, the
reasonable value of the use and occupation of the premises on or before the 14
th
day of each succeeding month or period.
12/
+ #owever t!e .*' may issue a writ o" preliminary mandatory in;unction to restore plainti"" in possession i" t!e court is satis"ied t!at*
1. defendant3s appeal is frivolous or dilatory, or
2. appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within 14 days from perfection of appeal.
) If there is no formal contract between parties. there can still be unlawful detainer because e,ectment considers implied contracts.
Cossession by tolerance creates an implied promise to vacate the premises upon the demand of the owner* ACeran vs. 9?I of 1orsogon)
+!he doctrine of tolerance applies only if possession is lawful from the start. In short said doctrines applies only to unlawful detainer cases
and not to forcible entry because*
1. the violation of the right in forcible entry authoriFes speedy redress.
2. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible entry can really prescribe.
A;unoF vs. 9A, 21" 19(A 210)
+Euest!ons to 5e resol#e" !n 'n '(t!on %or %or(!5le entry 're*
6!rst, who had actual possession over the piece of real propertyH
Se(on", was the possessor ousted therefrom within one year from the filing of the complaint by force, threat, strategy or stealthH
T1!r", does the plaintiff ask the restoration of possessionH A>iFon vs. 9oncina)
4 *!e court can award damages in e;ectment cases provided t!e damages re"er only to*
a. the fair and reasonable value of the use and en,oyment of the property or the rent arising from the loss of possession.
b. arrears.
c. liquidated damages since they are already part of the contract
Rule H): CONTE3PT
DIRECT CONTE3PT INDIRECT CONTE3PT
+summary in nature Cunished after being charged and hearing
=($5->1*
a) misbehavior in the presence of or near a court as to obstruct
or interrupt the proceedings
b) disrespect towards the court
c) $ffensive personalities towards others.
d) (efusal to be shown or to answer as witness or to subscribe
an affidavit or deposition.
=($5->1*
a) misbehavior of an officer of a court in the performance of
his official duties or in his official transactions.
b) >isobedience of or resistance to a lawful writ, process,
order, or ,udgment. 5nauthoriFed intrusion to any real property
after being e,ected.
c) Any abuse or any unlawful interference wG the proceedings
not constituting direct contempt
d) Any improper conduct tending to degrade the administration
of ,ustice.
e) Assuming to be an attorney or an officer of the court wGo
authority.
f) failure to obey a subpoena
g) (escue, or attempted rescue, of a person or property in the
custody of an officer.
If committed against*
a. (!9 < fine not e2ceeding C2,444 or imprisonment not
e2ceeding A14) days or both
b. ;!9 < fine not e2ceeding C244 or imprisonment not
e2ceeding one A1) day, or both.
If committed against*
a. (!9 < fine not e2ceeding C4,444 or imprisonment not
e2ceeding 0 months or both.
b. ;!9 < fine not e2ceeding C/,444 or imprisonment not
e2ceeding A1) month or both
+Reme"!es to C1'llen4e Contempt u"4ments:
D!re(t Contempt
) !he person ad,udged in direct contempt may avail himself of the remedies of certiorari or prohibition. !he e2ecution of the ,udgment shall
be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the
,udgment should the petition be decided against him.
In"!re(t Contempt
2 !he person ad,udged for indirect contempt may appeal such ,udgment or final order to the proper court as in criminal cases. !he
e2ecution of the ,udgment shall -$! be suspended until a bond is filed by the person ad,udged in contempt.
)!he ,udgment against a person ad,udged to be in contempt is immediately e2ecutory and can be stopped only by filing a bond.
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