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MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
CIVIL PROCEDURE
RULE 1 GENERAL PROVISIONS
1. Civil action – one by which a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong; may be ordinary or
special
Criminal action – one by which the state prosecutes a person for an act or
omission punishable by law
a. Election cases;
b. Land registration;
c. Cadastral proceedings;
d. Naturalization proceedings; and
e. Insolvency proceedings
1. Cause of action – an act or omission by which a party violates the right of another
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 different
venues or jurisdiction, the joinder may be allowed in the RTC provided one of the
causes of action falls within the jurisdiction of the RTC and the venue lies therein;
3. 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.
4. Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion
or motu proprio, be severed and proceeded with separately.
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b. There is a question of law or fact common to all the plaintiffs and defendants;
b. Parties affected are so numerous that it is impracticable to bring them all to the
court;
c. Parties bringing the class suit are sufficiently numerous or representative of the
class and have the legal capacity to file the action.
5. TRANSFER OF INTEREST
Action may be continued by or against the original party, unless the court, on
motion, directs the transferee to be substituted in the action or joined with the
original party; however, if transfer is made before commencement of the action,
the transferee must necessarily be the party, since only he is the real party in
interest.
1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area
wherein real property involved or a portion thereof is situated.
2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city
wherein the real property or a portion thereof is situated.
3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal plaintiffs resides,
or where the defendant or any of the principal defendants resides, or in the case
of a non-resident defendant where he may be found, at the election of the
plaintiff.
NOTE: “residence” means place where party actually resides at time of action;
does NOT mean permanent home or domicile.
a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the place where the
plaintiff resides.
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a. In those case where a specific rule or law provides otherwise (e.g., civil case for
damages in cases of libel, where Article 360 of RPC provides specific rules on
venue); OR
b. Where the parties have validly agreed IN WRITING before the filing of the action
on the EXCLUSIVE venue thereof.
In this instance, the action can only be filed in the place agreed upon even if
the other place is the place of residence of the parties or the location of the
real property involved.
1. The procedure in the MTCs shall be the same as that in the RTC.
1. Negative Defense – specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his cause of action.
b. Does not require for its adjudication the presence of 3rd parties of whom the court
cannot acquire jurisdiction; and
c. Must be within the jurisdiction of the court both as to the nature and the amount,
except that in an ORIGINAL action in the RTC, the counterclaim may be
considered regardless of the amount.
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a. Caption
b. Title
b. To the best of his knowledge, information, and belief, there is good ground to
support it
b. Allegations therein are true and correct as of his personal knowledge or based
on authentic records. (SC Circular 48-2000, effective May 1, 2000)
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u. Petition for review of the decision of an RTC in cases within the exclusive original
jurisdiction of the inferior court, by and elevated to the CA.
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d. Motion for new trial on the ground of FAME or opposition thereto (37.2)
l. Motion for new trial based on newly discovered evidence in criminal cases
(121.4)
Plaintiff or principal party shall certify under oath in the complaint or other
initiatory pleading or in a sworn certification annexed and filed therewith:
a. That he has not commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency; to the best of his knowledge
no such other claim or action pending;
b. If there is such other pending action, a complete statement of the present status
thereof;
iii. Actions raise identical cause of action, subject matter, and issues
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2. DECLARATION OF DEFAULT
a. Defendant entitled to notice of motion to declare him in default and of order of
default;
b. Motion to set aside order of default may be filed after notice and before
judgment;
c. Party may make motion, under oath, to set aside order of default upon proper
showing that failure to answer was due to FAME;
d. Effect of order of default – party in default entitled to notice of subsequent
proceedings but not to take part in trial;
e. Partial default – if several defending parties and not all in default, the court shall
try the case against all upon the answers thus filed and evidence presented;
f. After declaration of default, court may render judgment on the basis of the
complaint or require claimant to submit evidence;
g. Judgment against party in default shall not exceed the amount or differ in kind
from that prayed for nor award unliquidated damages;
h. No defaults in action for annulment or declaration of nullity of marriage or for
legal separation.
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RULE 14 SUMMONS
1. Contents of summons
a. Signed by the clerk under the seal of the court
b. Name of the court and the parties to the action
c. Direction that the defendant answer within the time fixed by these rules
d. Notice that unless defendant so answers, plaintiff will take judgment by default
2. Kinds of service of summons:
a. PERSONAL:
i. Handing a copy to the defendant in person; OR
ii. If he refuses to receive and sign for it, by tendering it to him
B. SUBSTITUTED:
i. Leave copies at his residence, with person of suitable age and discretion
residing therein; OR
ii. Leave copies at defendant’s office/regular place of business, with competent
person in charge thereof.
c. By publication
3. By whom served:
a. Sheriff
b. Other proper court officer
c. Any suitable person specially authorized by the judge
4. When extraterritorial service allowed:
a. Defendant is a non-resident and is not found in the Philippines and action affects
plaintiff’s personal status
b. Subject of action is property within the Philippines in which the defendant has or
claims a lien or interest
c. Where relief demanded consists in whole or in part in excluding the defendant
from any interest in such property
d. When property of defendant has been attached within the Philippines
5. Kinds of extra territorial service
a. Personal service
b. Publication and summons sent by registered mail to last known address
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RULE 15 MOTIONS
1. All motions must be in writing except:
a. Those made in open court; OR
b. Those made in the course of a hearing or trial.
2. Exceptions to the three-day notice rule:
a. Ex parte motion
b. Urgent motion
c. When court sets hearing on shorter notice for good cause
d. Motion for summary judgment (must be served at least 10 days before the
hearing)
A prudent judge would, in the absence of the opposing party in the hearing of a
motion, inquire from the other party or inquire from the records the proof of the
service of notice rather than proceed with the hearing. He should not rely on a
party’s undertaking to notify the adverse party of a scheduled hearing. The judge
must demand what the rule requires, i.e., proof of such notice on the adverse
party. Otherwise, a contentious motion should be considered a mere scrap of
paper which should not have even been received for filing.
Subsequent service of the motion on the adverse party may be considered
substantial compliance with the Rule 15, § 6. Failure to attach to the motion
proof of service thereof to the adverse party is not fatal when the adverse party
had actually received a copy of the motion and was in fact present in court when
the motion was heard.
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R E M E D I A L L AW ( C I V I L P R O C E D U R E )
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RULE 18 PRE-TRIAL
1. What to consider in pre-trial (with notice to counsel or party without counsel)
a. Possibility of amicable settlement or arbitration
b. Simplification of the issues
c. Amendments to the pleadings
d. Stipulations or admissions of facts and documents
e. Limitation of number of witnesses
f. Preliminary reference of issues to a commissioner
g. Propriety of judgment on the pleadings, summary judgments, or dismissal of
action
h. Other matters for the prompt disposition of the action
2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial.
However, if plaintiff answers the defendant’s counterclaim, it will be the latter’s duty
to set the pre-trial.
3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-
appearance of defendant is cause to allow plaintiff to present evidence ex parte and
the court to render judgment on basis thereof.
4. Non-appearance of party excused only if:
a. A valid cause is shown therefor OR
b. If representative shall appear in his behalf fully authorized in writing to enter into
an amicable settlement, to submit to alternative modes of dispute resolution, and
to enter into stipulations or admissions of facts and of documents,
5. Must file pre-trial brief so as to ensure that other party receives it at least 3 days
before pre-trial. Failure to file brief has same effects as failure to appear at pre-trial.
6. Proceedings recorded, and court shall issue an order reciting in detail matters taken
up.
RULE 19 INTERVENTION
1. Grounds for intervention
a. Legal interest in the matter in litigation
b. Interest in the success of either or both parties or interest against both
c. Party is so situated as to be adversely affected by the distribution of the court
d. Disposition of property in the custody of the court or of an officer thereof.
2. Motion may be filed at any time before rendition of judgment.
3. Answer to complaint-in-intervention must be filed within 15 days from notice of court
admitting the complaint.
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4. Motion for intervention will be granted if it will not unduly delay or prejudice
adjudication of rights of original parties and if the intervenor’s rights may be fully
protected in separate proceedings.
5. Complaint in intervention is merely collateral to the principal action. Hence, it will be
dismissed if main action is dismissed.
6. A complaint in intervention that seeks affirmative relief prevents a plaintiff from
taking a voluntary dismissal of the main action. Such a case is not subject to
dismissal upon intervenor’s petition showing him to be entitled to affirmative relief.
The petition will be preserved and heard regardless of the disposition of the main
action.
RULE 21 SUBPOENA
1. Subpoena issued by:
a. The court before whom witness is required to attend;
b. The court of the place where the deposition is to be taken;
c. The officer or body authorized by law to do so in connection with its
investigations;
d. Any Justice of the SC or CA in any case or investigation pending within the Phils
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is
confined in any penal institution shall be brought outside said institution for
appearance or attendance in any court unless authorized by the SC.
3. Grounds for quashing subpoena duces tecum
a. It is unreasonable or oppressive
b. The articles sought to be produced do not appear to be relevant
c. Person asking for subpoena does not advance cost of production
4. Ground for quashing subpoena ad testificandum
a. The witness is not bound thereby – if witness resides more than 100 km from the
place where he is to travel by the ordinary course of travel, or if he is a detention
prisoner and no permission is obtained from the court in which his case is
pending
This is known as the “viatory right” of the witness; NOTE, however, that the
right is available only in CIVIL cases
b. Witness fees and kilometrage allowed by rules not tendered when subpoena
served.
5. Service of subpoena made in the same manner as personal or substituted service of
summons.
6. Person present in court before a judicial officer may be required to testify as if he
were in attendance upon a subpoena.
7. Failure by any person without adequate cause to obey a subpoena served upon him
shall be deemed a contempt of the court from which subpoena issued.
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Letters Rogatory – addressed to judicial authority in the foreign country; the taking of
the depositions is subject to the rules laid down by such foreign judicial authority.
7. Persons disqualified to take depositions
a. Relative within 6th degree of consanguinity or affinity of any party
b. Employee of any party
c. Counsel of any party
d. Relative within the same degree of party’s counsel
e. Employee of party’s counsel
f. Anyone financially interested in the action
8. Depositions upon written interrogatories
Party desiring to take such deposition shall serve them upon every other party
with a notice stating the name and address of the person who is to answer them
and the name and descriptive title of the officer before whom the deposition is to
be taken;
Party so served may serve cross-interrogatories upon the proponent within 10
days thereafter
Re-direct interrogatories served within 5 days
Re-cross interrogatories served within 3 days
9. Effects of errors and irregularities in the depositions
a. As to notice – waived unless written objection is promptly served upon the party
giving the notice
b. As to disqualification of officer – waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence
c. As to competency or relevancy of evidence - NOT waived by failure to make
them before or during the taking of the deposition, unless ground is one which
might have been obviated or removed if presented at that time
d. As to oral exam and other particulars - Errors occurring at the oral exam in the
manner of taking the deposition, in the form of questions and answers, in oath or
affirmation, or in conduct of parties, and errors of any kind which might be
obviated, removed, cured if promptly prosecuted are waived unless reasonable
objection is made at the taking of the deposition.
e. As to form of written interrogatories - waived unless served in writing upon party
propounding them within the time allowed for serving succeeding cross or other
interrogatories and within 3 days after the service of the last interrogatories
authorized.
f. As to manner of preparation - errors as to manner in which the testimony is
transcribed or the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed or otherwise dealt with by the officer are waived unless a motion
to suppress the deposition or some part of it is made with reasonable
promptness after such defect is, or with due diligence might have been,
ascertained.
A deposition, in keeping with its nature as a mode of discovery, should be taken
before and not during trial. IN fact, the rules on criminal practice – particularly on
the defense of alibi – states that when a person intends to rely on such a
defense, that person must move for the taking of the deposition of his witness
within the time provided for filing a pre-trial motion.
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c. The facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it;
d. The names or description of the persons he expects will be the adverse parties
and their addresses so far as known;
e. The name and addresses of the persons to be examined and the substance of
the testimony which he expects to elicit from each.
2. Use of deposition
If deposition to perpetuate testimony is taken under this rule or if not so taken
is still admissible in evidence may be used in any action involving the same subject
matter subsequent brought in accordance with the provisions of Rule 23.
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RULE 30 TRIAL
1. Order of trial
Trial shall be limited to the issues stated in the pre-trial order and shall
proceed as follows:
a. The plaintiff shall adduce evidence in support of his complaint;
b. The defendant shall adduce evidence in support of his defense, counterclaim,
cross-claim, and third-party complaint;
c. The 3rd-party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross-claim, and 4th party complaint;
d. The 4th party and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
e. The parties against whom any counterclaim or cross-claim has been pleaded,
shall adduce evidence in support of their defense, in the order to be prescribed
by the court;
f. The parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to adduce
evidence upon their original case; and
g. Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective
memoranda or any further pleadings.
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2. Party who has filed a timely motion for new trial cannot file a petition for relief after
the former is denied. The two remedies are exclusive of one another.
3. Grounds:
a. Judgment or final order entered against a party by FAME; or
b. Judgment or final order is rendered and party has been prevented by FAME from
taking an appeal
For fraud to be extrinsic, the losing party must never have had a chance to
controvert the adverse party’s evidence.
Uniform procedure for relief from judgments of MTC and RTC
4. After petition is filed, court shall order adverse parties to answer within 15 days from
receipt. After answer is filed or expiration of period therefor, court shall hear the
petition.
5. If granted, judgment set aside and court shall proceed as if timely motion for new trial
has been granted; if granted against denial of appeal, court shall give due course to
appeal.
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and thereafter by action before barred by statute of limitations – file motion within 10
years from the finality of the revived judgment.
6. Execution in case of party’s death:
a. Death of judgment obligee - application of his executor or administrator or
successor-in-interest
b. Death of judgment obligor -
i. Against his executor, etc. if the judgment be for recovery of real or personal
property or the enforcement of a lien thereon.
ii. If death after execution is actually levied upon his property, it may be sold for
satisfaction of the obligation.
If the judgment obligor dies after the entry but before levy, execution will issue if it
be for the recovery of real or personal property. However, if judgment is for a
sum of money, and the judgment obligor dies before levy, such judgment cannot
be enforced by writ of execution but must be filed as a claim against his estate.
7. Writ of execution:
a. Shall issue in the name of the Republic of the Phils from court which granted the
motion
b. State the name of the court, case number and title, dispositive portion of the
judgment order
c. Require the sheriff or other proper officer to whom it is directed to enforce the writ
according to its terms
8. Manner of executing writ:
a. If judgment against property of the judgment obligor – out of real or personal
property with interest
b. If against his real or personal property in the hands of the personal
representatives, heirs, devisees, legatees, tenants, or trustees of the judgment
obligor – out of that property, with interest
c. If for sale of real or personal property – to sell property, describing it and apply
the proceeds in conformity with judgment.
d. If for delivery of possession of property – deliver possession of the same to the
party entitled to it, describing it, and to satisfy any costs, damages, rents, or
profits covered by the judgment out of the personal property of the person
against whom it was rendered, and out of real property if sufficient personal
property cannot be found.
e. In all cases, writ of execution shall specifically state the amount of the interest,
costs, damages, rents, or profits due as of date of issuance of writ, aside from
principal obligation.
Judgment obligor is given option to choose which property may be levied on
sufficient to satisfy the judgment.
9. Property exempt from execution
a. Family home as provided by law, homestead in which he resides, and land
necessarily used in connection therewith;
b. Tools and implements used in trade, employment, or livelihood;
c. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary
occupation;
d. Necessary clothing and articles for ordinary personal use, excluding jewelry;
e. Household furniture and utensils necessary for housekeeping not exceeding
P3,000;
f. Professional libraries and equipment of judges, lawyers, physicians, etc. not
exceeding P300,000;
g. One fishing boat and accessories not more than P100,000 owned by a fisherman
and by which he earns his living;
h. Salaries, wages, or earnings for personal services within the 4 months preceding
the levy which are necessary for the support of the family;
i. Lettered gravestones;
j. Money, benefits, annuities accruing or in any manner growing out of any life
insurance;
k. Right to receive legal support or any pension or gratuity from the government;
l. Properties especially exempted by law.
Exemption does not apply if execution is upon a judgment for its purchase price
or for foreclosure of mortgage.
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a. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits
as if it has original jurisdiction;
b. If reversed, the case shall be remanded to the MTC;
c. If the first level court tried the case on the merits without jurisdiction, the RTC
should not dismiss the case but shall decide it in the exercise of original
jurisdiction.
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10. Failure to pay appellate docket fees within the reglementary period is ground for
dismissal of appeal.
11. General Rule: An ordinary appeal stays the execution of a judgment
Exceptions: a. Decisions of quasi-judicial body appealed to the CA
b. Executions pending appeal
c. Cases covered by Summary Procedure
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Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the CA under Rule 43.
∅ According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any
appeal by way of petition for review from a decision, final resolution or order
of the Ombudsman, or special civil action relative to such decision, filed with
the SC after March 15, 1999 shall no longer be referred to the CA, but shall
be dismissed.
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b. Period for Filing: within 30 days from receipt of the notice issued by the clerk that
all the evidence is already attached to the record.
c. Failure of appellant to file his memorandum within the period may be a ground for
dismissal of the appeal.
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a. Filing of Petition;
b. Outright Dismissal;
c. Order to acquire jurisdiction over the respondent (by service on him of the order
or resolution indicating its initial action on the petition. Jurisdiction is also
acquired by voluntary submission thereto.);
d. Comment;
e. The court may require the filing of a reply and such other responsive or other
pleadings as it may deem necessary and proper;
f. Determination of Due Course;
g. Determination of factual issues – The court may conduct hearings thereon or
delegate the reception of evidence to any of its members or to an appropriate
court, agency or office;
h. Submission of memoranda.
RULE 51 JUDGMENT
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Exception: 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 (Section 3, Rule 122)
6. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the
CA for decision or appropriate action, without prejudice to considerations on whether
or not to give due course to the appeal as provided in Rule 45.
PROVISIONAL REMEDIES
Provisional remedies (ancillary/auxiliary)
Writs and processes available during the pendency of the action which may be
resorted to by a litigant to preserve and protect rights and interests therein pending
rendition, and for the purpose of ultimately affecting a final judgment in the case.
PROVISIONAL - constituting temporary measures availed of during the pendency of
the action.
ANCILLIARY - incidents in and dependent on the result of the main action.
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RULE 59 RECEIVERSHIP
1. When receiver may be appointed:
a. Party has an interest in the property or fund subject of the action and such is in
danger of being lost, removed, or materially injured;
b. Action by mortgagee for foreclosure of mortgage when the property is in danger
of being wasted or materially injured and that its value is probably insufficient to
discharge the mortgage debt, OR that the parties have stipulated in the contract
of mortgage;
c. After judgment, to preserve the property during the pendency of the appeal, or to
dispose of it, or to aid in execution when execution has been returned unsatisfied
or the judgment debtor refuses to apply his property to satisfy judgment, or to
carry out the judgment.
d. When appointing one is the most convenient and feasible means to preserve,
administer, or dispose of the property in litigation.
2. When receivership may be denied/lifted
a. Appointment sought is without sufficient cause;
b. Adverse party files sufficient bond for damages;
c. Applicant or receiver’s bond is insufficient.
3. Both the applicant for the receivership and the receiver appointed must file separate
bonds.
4. In claims against the bond, it shall be filed, ascertained and granted under the same
procedure as Section 20, Rule 57, whether it be damages against the applicant’s
bond for the unlawful appointment of the receiver or for enforcing the liability of the
sureties of the receiver’s bond by reason of the receiver’s management (in the latter
case, no longer need to file a separate action).
RULE 60 REPLEVIN
1. Replevin
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. Extends 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 is it under
attachment, or was seized under a search warrant or distrained for tax
assessment.
2. Defendant entitled to return of property taken under writ if:
a. He seasonably posts redelivery bond
b. Plaintiff’s bond is 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. Thus, surety is not liable for payment of
judgment for damages rendered against plaintiff on a counterclaim for punitive
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damages for fraudulent or wrongful acts committed by the plaintiffs which are
unconnected with the defendant’s deprivation of possession by the plaintiff.
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RULE 62 INTERPLEADER
1. Interpleader
a. Original action
b. Presupposes that the plaintiff has no interest in the subject matter of the action or
has an interest therein which, in whole or part, is not disputed by the other parties
to the action;
c. Complaint in interpleader must be answered 15 days from service of summons
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become fait accompli such that any reversal thereof shall have become
academic;
f. Unless a writ of preliminary injunction shall have issued, does NOT stay the
challenged order;
g. Parties are the aggrieved parties against the lower court or quasi-judicial agency
and the prevailing parties;
h. Motion for reconsideration is a condition precedent, subject to certain exceptions;
i. Higher court exercises original jurisdiction under its power of control and
supervision over the orders of lower courts.
If CA reverses the judge, the latter may not go the SC via a petition for
certiorari. He is merely a nominal party, and he should not seek the reversal
of a decision that is unfavorable to the action taken by him.
Professional Regulation Commission vs. CA – It is well settled that the
remedies of ordinary appeal and certiorari are mutually exclusive, not
alternative or successive. However, it has also been held that after a
judgment has been rendered and an appeal therefrom had been perfected, a
petition for certiorari relating to certain incidents therein may prosper where
the appeal does not appear to be a plain, speedy and adequate remedy. In
this case, the SC noted that, while petitioners tried to justify their recourse to
both an appeal and to a petition for certiorari by claiming that their appeal
would not constitute a plain, speedy and adequate remedy, they did not see
fit to withdraw or abandon said appeal after filing the petition. Thus, both the
CA and SC are reviewing the same decision of the RTC at the same time.
Such a situation would lead to absurdity and confusion in the ultimate
disposition of the case.
2. Prohibition
a. Purpose – to prevent the commission or carrying out of an act;
b. Act sought to be controlled – discretionary and ministerial acts;
c. Respondent – one who exercises judicial or non-judicial functions.
3. Mandamus
a. Purpose – to compel the performance of the act desired;
b. Act sought to be controlled – ministerial act;
c. Respondent – one who performs judicial or non-judicial functions.
4. When SC allows the writ of certiorari even when appeal is available and proper:
a. Appeal does not constitute a speedy and adequate remedy;
b. Orders were issued either in excess of or without jurisdiction;
c. For certain special considerations, such as public welfare or policy;
d. Where in criminal actions, the court rejects rebuttal evidence for the prosecution,
as in acquittal;
e. Where the order is a patent nullity;
f. Where the decision in the certiorari case will avoid future litigation.
5. Cases where Motion for Reconsideration is NOT condition precedent for certiorari:
a. Order is a patent nullity;
b. Questions raised in the certiorari proceeding were duly raised and passed upon
by the lower court, or are the same as those raised and passed upon in the lower
court;
c. Urgent necessity for the resolution of the question and any further delay would
prejudice the interests of the government;
d. Under the circumstances, a motion for recon would be useless;
e. Petitioner was deprived of due process and there is extreme urgency for relief;
f. Where in a criminal case, relief from order or arrest is urgent and the granting of
such relief by the trial court is improbable;
g. Proceedings in the lower court are null for lack of due process;
h. Proceeding was ex parte or in which petitioner had no opportunity to object;
i. Issue raised is one purely of law or where public interest is involved.
6. The period for filing any of the 3 actions is not later than 60 days from notice of
judgment, order, or resolution sought to be reviewed.
In case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the 60-day period shall be counted from notice of the
denial of said motion. (SC Circular 56-2000, effective September 1, 2000)
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No extension of time to file the petition shall be granted except for compelling
reason and in no case exceeding 15 days. (SC Circular 56-2000)
RULE 67 EXPROPRIATION
1. In expropriation, the complaint must be verified.
2. The defendant can only file an answer instead of a motion to dismiss
3. The final order of expropriation is appealable, but the lower court may determine the
just compensation to be paid.
The power of eminent domain is exercised by the filing of a complaint which shall
join as defendants all persons owning or claiming to own, or occupying, any part
of the expropriated land or interest therein. If a known owner is not joined as
defendant, he is entitled to intervene in the proceedings; or if he is joined but not
served with process and the proceeding is already closed before he came to
know of the condemnation, he may maintain an independent suit for damages.
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RULE 69 PARTITION
1. Complaint
a. Shall set forth nature and extent of title and an adequate description of the real
estate of which partition is demanded
b. Shall join as defendants all persons interested in the property
2. Order of partition
a. Issued if after trial the court finds that the plaintiff has the right thereto
b. Thereupon the parties may, if they are able to agree, make the partition among
themselves by proper instruments of conveyance
The court shall confirm the partition so agreed upon by all the parties
Such partition, and the order of the court confirming the same, shall be
recorded in the registry of deeds of the place in which the property is
situated.
c. May be appealed by any aggrieved party
d. If parties unable to agree upon partition: court shall appoint not more than 3
commissioners to make the partition
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3. Duties of commissioners
a. View and examine the real estate, after due notice to the parties to attend at such
view and examination
b. Hear the parties as to their preference in the portion of the property to be set
apart to them and the comparative value thereof
c. Set apart the same to the parties in lots or parcels as will be most advantageous
and equitable, having due regard to the improvements, situation and quality of
the different parts thereof.
RULE 71 CONTEMPT
1. Criminal contempt
a. Purpose is to vindicate public authority;
b. Conduct directed against the dignity or authority of the court.
2. Civil Contempt
a. Purpose is to protect and enforce civil rights and remedies for the litigants;
b. Failure to do something ordered by the court for the benefit of a party.
3. Direct Contempt (contempt in facie curiae)
a. Committed in the presence of or so near a court or judge;
b. Punished summarily without hearing;
c. No appeal may be taken but the party adjudged in contempt may avail himself of
actions of certiorari or prohibition which shall stay the execution of the judgment,
provided a bond fixed by the court is filed.
4. Indirect Contempt
a. Not committed in the presence of the court;
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