Transcribed: CIVPRO
An alias summon can only be served if there is:
a. failure of the original service of summon
b. or it has been lost
Can SEC 6 and 7 of Rule 14 apply simultaneously?
Personal and Substituted?
No, there must be a showing first of impossibility of personal service.
Not alternative modes. Must go first through personal, to go to
substituted. Service of the summons of the person of the defendant
is preferred.
Substituted is an Extraordinary Method.
Sancho case
Lazaro vs Rural Bank of Francisco Balagtas. :the service of the
summons to be done personally must it be in his actual residence?
No.
In the last two years, there was a question on Sec 15
Extraterritorial Service
2008: there was an OFW in Hongkong and she wasn’t aware of the
case against her. She was just informed by someone in the
Philippines.
The following are the minimum requirements for SEC15:
a. Defendant is a non-resident OR is not found in the Philippines (di
pwede foreignor)
b. Nature of the action
1. personal status of the plaintiff
2. involves real property of the defendant who does not
reside in the Phil
3. or any interest, actual or contingent, of the real property
How do you serve summons?
1. Pesonally, outside of the Philippines
2. Publication AND service of summons and complaint in the last
known address by REGISTERED MAIL of the defendant
3. Other mode as may be determined by the court (subject to the
discretion of the court; power within the trial court to determine
means) Rodriguez case 2003 case..San Francisco, USA
Sa order: summons should be served through the DFA and answer
should be filed in 60 days with publication in a newspaper of general
circulation
Service by publication in Sec 15 and Sec 16
The defendant is Temporarily absent but he remains to be a resident
of the Philippines. By jurisprudence, if he is temporarily absent, can
you serve by substituted service? YES, may residence siya eh. If you
cant do it by personally, substituted service.
Sec14 also by publication: take note of: that the defendant is NOT
KNOWN or his whereabouts NOT known
Can you do service of summons by substituted service if a defendant
is NOT a resident of the Philippines? Case: substituted service does
not apply if a defendant is a non resident. E di tyempohan mo
nalang.
EXCEPTION:
If the resident spouse of the non resident spouse has previously
been appointed as an attorney in fact in a previous case involving the
same non resident spouse: you can have substituted service.
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In PHILAM life case, the question was the effect of improper service
of summons: the court will not have jurisdiction over the person of the
defendant. File motion to dismiss. What can the court do? Grant,
denying, or order an amendment.Can the court issue an alias
summons? SC said, there was no grave abuse of discretion, it is only
to expiadite.
Is the effective service of summons waivable? Yes, if you don’t
object it in an answer or MTD, it is waived. WAIVABLE only if you
know though. SHOULD have knowledge. Case: defendant was a
corporation, a clerk received it.
A corp should be made upon the President, General Manager,
managing Partner, Treasurer, In house counsel(employed by the
corp). The enumeration cannot be expanded. Exclusive list. The clerk
did not pass on to the officers, she just kept it. There was an order
and judgment by default against the corporation. The case was
elevated to the CA. Columbus raised the improper service of
summons for the first time, but considering that there was improper
service and the officers was not aware, there was no waiver. From
the time of effective of summons to judgment, the proceedings are
null and void.
True: WITHIN ONE day: The court shall issue summons within one
day from filing of the complaint: Guidelines.
Instead of filing a MTD the defendant is suggested to file an answer
with an affirmative defense.
MTD is not a prohibitive pleading. The court just persuades the party
to file an answer with an affirmative defense. Why? Because issues
are joined, the next step would be pre trial and the parties can
Compromise.
They inserted as an incentive RULE 16 last section. Affirmative
hearing is subject however to the discretion of the court.
Service by summon personal with substituted or publication:
Know if it is in personam, quasi in rem
In personam: could arise from obligation: judgement only affects the
party: primary mode is personal service, if impossible, then do
substituted.
In rem/quasi in rem: these are the only actions where summons can
be served by publication: in rem: no named defendant: subject matter
of the property is real property.affects the whole world. Quasi in rem:
there is a named defendatnt:affects the rest of us: it involves real
property of a non resident defendant also personal status of the
defendant.
Can service of summons be served by mail?
Generally no but it can with extraterritorial service.
Lis pendens.
Rule 13. Not same with litis pendentia.
Lis pendens: real property subject of the action has a pending
litigation involving title or possession.
How do you cause the annotation?
Should name the case and parties object of the action and
description of the property. Notice has no form just written.
Mahirap magpatagal kc you need a court order to cancel a notice of
lis pendens and you have to show that the notification was only to
molest and no reason anymore to protect the rights.
Pending litigation includes quasi judicial proceedings? Bureau of
Lands, SC said NO. Pending litigation should be a judicial action.
Voluntary appearance. Could be in different ways. Sought affirmative
relief also included. Under the rule, you can incorporate other
grounds other than jurisdiction over the person of the defendant
without in any way submitting to the jurisdiction of the court. JOIN
THE available GROUNDS together.
RULE 15
MOTION applies to BOTH CIVIL AND CRIMINAL. The following are
the requirements for motion to be effective ? If not, it’s a mere scrap
of paper(. SEC 4, 5 and 6 were not applied)case of Tan vs CAL sec
456 are mandatory requirements.
1. notice of hearing: motion mo may notice and directed to THE
OTHER PARTY: to the defendant
2. copy thereof served upon the other party
Take note: Sec 4: a Notice of hearing may not be required when
motion would not prejudice the right of the other party: ex. motion for
extension or cancellation.
Three day notice rule. The motion should have been 1. Served on
the other party and 2. filed in court at least three days before.
Ten day rule. If you file a motion today, you should set the hearing no
less than ten days from filing. What if the effect? Motion would be
denied.
Motion Day. Sec 7. “shall” motion day scheduled EVERY day in the
afternoon UNLESS Friday is a non working day or a holiday in which
case it would be on the next working day. MANDATORY.
Omnibus motion Rule. You have to include all ground or objection in
one motion or else it would be waived.
Tan vs CA. defendant file a MR which did not contain a notice of
hearing. It was a useless scrap of paper.
Proforma Motion for reconsideration.
1. non compliance with Sec456 It would not interrupt the running of
the reglementary period. The judgment would become final and
executor.
2.When you only reiterate matters already raised in the judgment.
Exception: if the matter was not squarely passed by the court
Rule 16
When to file: within the period when the defendant is allowed to file
an answer: within 15 days
Effect of filing:The reglementary period is interrupted
If denied, the period will continue to run.
How many days left? 5 days if remaining period is less than five days
ung remaining period.
March 1 you received.
You have till march 16.
File motion to dismiss march 16. How many days left if motion denied
to file an answer? Five days.
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Case: luim vs Tabua 2005 case. An order denying motion to dismiss
is an interlocutory order. It does not dispose of the case.if it is denied,
continue with the case, file an answer. Don’t agree file MR, if grave
abuse of discretion file petition for certiorari.
If granted: the effect is a FINAL DISPOSITION OF THE case. It
doesn’t mean you cannot refile. You can refile as a general rule
except res judicata, statute of limitation, prescription, payment,
waiver, abandonment, unenforceable statute of frauds
Lemme touch on motion to quash interms of effect:
MTQ: if granted, can the case be refiled? Information is inefficacious,
it could be dismissed or the court can say amend the information.
Yes if Rule 117 G and I. prescription double jeopardy dismissal
without assent of the accused.
If grounds are not raised: it is waived except:
Litis pendentia, res judicata, statute of limitation, lack of jurisdiction
over the subject. It survives. In a criminal case, in a MTQ all other
grounds are waived except lack of juris, info does not constitute an
offense and DJ.
RA 7691
Lack of juris over the subject matter. It could be raised even for the
first time on appeal. Exception: Tijam: estoppel by laches on question
of jurisdiction. It is Not waivable.
Improper venue. Waivable. Ground for MTD. If not raised, can be
waived. THE COURT CANNOT DISMISS on this ground MOTU
propio. There must be a motion filed
Lack of Legal capacity. 18 years old, age of majority. Otherwise, if
minor or incapacitated shoud be assisted. If represented by another
person, there should be an authorization. If it is a juridical personality,
there should be a board resoulution. If it is an individual, there should
be a special power of attorney. If it is a representative capacity, you
should be armed with authority.
LITIS PENDENTIA. Ground for MTD. Requisites; Identity of parties,
issues, relief, facts.
To make it res judicata: add judgment in one case
STATUTE OF LIMITATIONS/PRESCRIPTION. There is a law that
sets a limit as to when you can enforce your right, after the lapse,
you cannot anymore enforce your right.
Laches is not enumerated, it can be a reason for the court not to act
upon your claim, there was unreasonable delay.
PAYMENT.WAIVER.ABANDONMENT
CONDITION PRECEDENT. Did not comply with a requirement
before you file an action. Ex. Failure to explore possibility of
compromise involving a suit between members of family. Failure to
barangay conciliation. CASE: lack of barangay certification though a
ground to dismiss does not go to jurisdiction so it may be waived.
Non-exhaustion of administrative remedies. (some put in condition
precedent; pleading asserting the claim states no cause of action)
There are certain wherein you need to exhaust. Just like dismissal of
student. Exception: nullity, there is urgency, obviously a reiteration of
previous judgment.
UNENFORCEABLE under the Statute of Frauds. Art 1403 of the civil
code. Certain agreements should be made in writing. There is no
memorandum that there is consent, then the agreement would be
unenforceable.
Pleading asserting the claim states no cause of action. All you need
to look at is the complaint. No need to determine whether it is true or
false. The truth or falsity is a matter to decided by the court. When
you look at the complaint, is there a right, duty? And whether there is
a breach thereof.
Lack or absence of cause of action. It can be raised at anytime. if
mtd, it can only be raised before answer, or answer with affirmative
defense; NO OTHER EVIDENCE required; complaint itself would
suffice. Unlike absence or lack of cause of presentation ,there could
be presentation of evidence ,after presentation of evidence that there
is lack or absence of cause of action, it would be in the nature of
demurrer to evidence. be careful in setting the ground of the pleading
asserting the claim states no cause of action because you have
deemed to have hypothetically admit the facts as stated in the
complaint.
Case: Republic vs Carmel Development 2002 case
If there is hearing of a motion to dismiss, the evidence therein would
form part of the case in case the motion is not granted. “Should the
case go to trial the evidence presented during the hearing shall
automatically be part of the evidence of the party presenting the
same. The court shall not defer the resolution of the motion because
the ground relied upon is indivisible.Today the court can deny, grant,
or order an amendment. The ocurt cannot defer. If it decides to
resolve, it should clearly state the reasons thereof.Luyin vs Mapua
2005 case. The court can deny,grant or order amendment. But the
court should clearly state the facts supporting th e action.
If denied by trial, Tainted with grave abuse of discretion: certiorari.
If appellate entertains the petition, the appellate grants the denial.
Yes, the CA can dismiss the case, if there is grave abuse of
discretion.the dismissal would be final disposition.But the appellate
can remand the case if the facts are not clear to
PRETRIAL
-mandatory in civil
-Rule118 in criminal cases, yes, it is mandatory
Guidelines in the Modes of Discovery: 2004 guidelines
Process:
Once there is an answer, issues are joined. A reply is not a
mandatory pleading.
Before the pretrial proper:
You’ll receive a pretrial notice setting the date and time for pretrial
conference and request you to prepare a pretrial pleading. Memorize
the pleading contents.
A document not premarked during pretrial cannot be presented in
trial except in the interest of justice in court’s discretion. In the pretrial
brief, have to name your witnesses. Effect if failure to name, cannot
be presented during trial unless in the interest of justice.
When? Must have received by the other party and court At least
three days before the pretrial conference similar to motion.,
Can there be a preliminary conference? Under guidelines, the court
or clerk of court can require a preliminary conference before the clerk
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of court for stipulation, admission and naming of witness. It would
have minutes and would form part of the pretrial records.
First day: would there be pretrial proper? No. the case would be
referred to a mediator in mediation unit of the locality.explore
possibility of compromise. If no compromise, it would go back to
court. The court then would convice the parties to compromise. If
compromise unsuccessful, you have the pretrial proper.
Lawyers were concerned that judge would be mediator, conciliator,
independent evaluator and judge.
Pretrial order therafter. It will contain all matters discussed in a
pretrial conference. And it will dictate the conduct of trial. Who is JDR
judge? The concept of it was in JDR RULE in 2006. From the time
the case is raffled before pretrial proper, he’s called the JDR he
would be working as a mediator. The case then would be reraffled
again to a trial judge, someone who has no initial assessment of the
case. The JDR gives the parties the option to continue the case with
the JDR judge.
If the plaintiff is absent during pretrial,, case dismissed.unless the
plaintiff has SPA in favor of the lawyer.
If defendant, no dismissal. The plaintiff would be allowed to present
evidence ex parte. “As in default.” Remedy in a default scenario: file
motion for reconsideration or motionto set aside on ground on FAME.
(jurisprudence Saguid vs CA)
Do we follow the same rule for criminal cases? The offended party in
the criminal case, it would not be dismissed.NO!
Macasaet vs Macasaet. Application of Rule 18sec4 to Rule 70 sec8.
Ejectment. Unless inconsistent with sec70 the rule 18 applies in
preliminary conference. The non appearance may be excused. It
would supplement Sec 8 of rule 70. The spirit behind the exception is
applicable in preliminary conference in summary procedure.
If no submission of pretrial brief, same effect as absence.
Rule 19
Intervention.
Case of looyoko vs Ca. it answers when intervention should be filed.
Even if no case, there is in the rule. At anytime before rendering of
judgment in the trial court. Also be before a judgment is rendered and
before final and executor. It is merely a collateral,, accessory,
ancillary action. NOT an independent proceeding.
When an action ceases to exist, there is no more proceeding wherein
the intervention can be heard. You can intervene if you have a legal
interest in the action.. (…)
Can the court allow intervention even after rendition of judgment? In
exceptional cases, the court has allowed it. Dir of land vs CA.
intervention was allowed even if the pettion for review was submitted
before the SC. Second, recently Mago vs CA the court granted
intervention.the petition was final and executor, SC said: it must be
noted however in both cases, the intervenors were indispensible
parties.
Dismissal of principal complaint covers complaint in intervention.
Pinlac vs CA. Reiteration of the exceptional case; 1. SC has allowed
after rendition of judgment. The intervenor in case was REPUBLIC.
SC; the consititutional mandate that no person shall not be deprived
be life liberty or property applies to REPUBLIC who is an
indispensible party.
Whether or not the rights of the original parites would be prejudiced
because of the intervention.
Can you intervene in CA or SC? No provision. So abide by juris, at
anytime before judgment in the trial court. Only exception if
indispensible party.
Rule 21
Subpoena
Two kinds:
Subpoena ad specificandum – to appear and testify
Subpoena duces tecum – to appear and bring the papers,
documents.
How to quash it? ( subpoena, search warrant, information, writ of
execution)
Grounds: (ad testificandum)
1.Not bound thereby; no reason for you to testify.
Able to perceive, make known to make another. Privilege. Not bound.
Husband and wife.doctor and patient. Atty and client. Public officer.
Excutive privlige. Non disclosure of who you voted for. Trade secrets.
Secrecy of bank desposits.
2. Failure to tendter kilometrage. Distance of witness from the court
should not exceed 100km. cannot be contempt. Bench warrant –
warrant from court to compel appearance in court. No need to have a
case. Only to ignore the court and may have bench warrant.
3. witness fees – transpo of witnesses
(duces tecum)
1.unreasonalbe
Oppressive
Documents requiring presentation is irrelevant
No tender of cost of production
No tender of kilomtrage and witness fees
Books papers documents to be produced were not described.
Absent any action, can a subpoena be issued in a judicial
proceeding? NO. Collado vs Bravo. (moderator and administrator in
an administrative case cannot issue a subpoena without a pending
action)
What if the witness is more than 100km from the place, can his
presence be compelled by bench warrant? No. what is your remedy:
DEPOSITION.
DEPOSITION
How many rules for deposition? 23-28 29 only consequences for
noncompliance.
Short outline of deposition:
Can the modes of discovery in civil case be used in criminal cases?
YES. But deposition is another story.
Can you use deposition in special proceedings? YES. It would have
suppletory application of the ordinary rules.
Can you apply for deposition even after pretrial?YES.
(mangundadatum case)
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Rule 23 longest. Kailangan kabisado nyo to.
It Refers to deposition pending action.
Buhay na ung caso. You would want to apply for deposition.
Can you apply deposition before action? YES. That is what you call
perpetuation.
Could you apply deposition pending appeal?
When or how can you institute an application for the taking of
deposition?or to initiate?
The answer is in section one. Hyatt Industrial vs Ley construction
2006 case. Sec 1 after the court acquires jurisdiction and before
answer, you can apply or file motion to take deposition. After an
answer you can file A NOTICE to take deposition. Baliktad ng
amendment.
Let us now discuss the general purpose of deposition? To be able to
elicit facts through the various modes that you have. Once summons
has been issued the court is duty bound to issue an order for the
parties to avail of Rule 24, 25, 26 and 27.
Is a delay a reason to cancel a deposition? NO. a delay is not a
ground to cancel a scheduled deposition.
How bout undue duplicity? The SC said that this argument is without
merit. Still can present him as witness during trial. Because
deposition taking is only a mode of discovery. It doesn’t mean that if
you take his deposition, you make him your witness.
For what grounds can an application be disallowed or opposed?
1. That the application was made in bad faith
2. it is privileged
3. It is not a material or relevant fact
4. it is to annoy embarrass or oppress the deponent
Sec 16 AND 18 of Rule 23. Cited in hyatt case.
Is availability of the proposed deponent to testify a cause that would
disallow the taking of deposition? NO. because it is merely a mode
of discovery.
The deposition serves a double function.
1. it is a method of discovery
2. it is a method of presenting testimony
No limitation other than relevancy and privileged has been placed as
a limitation on the taking of deposition.
Can you take deposition of any matter? Bar exam: the lawyer started
talking with witnesses and taking the affidavits, the other party
applied for the taking of deposition. It is not allowed. It is privileged.
The information has been taken for the purpose of engagement with
his client.
What are the uses?
1. a deposition is to be used to impeach the witness. Prior
inconsistent statement
2 ways SEC 11 and 14 Rule 142
Impeach his character
But what is touched on this rule is not character but prior inconsistent
statement.
Second, a deposition shall be used for any purpose by any party.
The deposition could also be used if the deponent is dead. Meaning
he is no longer available to testify in court because he is already
dead. The person is already dead, a deposition has already been
taken. Is it a hearsay? Yes, although it falls under the exception. Also
sick, unavailable,ect. Rule 130 SEC 47. What is important is the
opportunity to cross examine. Whether in quasi judicial or
administrative.
Partner provision in criminal procedure? Is there? YES rule 115 sec
1f. right of the accused. Even in a criminal case, if the witness is sick
dead, unavailable, or infirmed…his testimony taken in another
proceeding can be taken as long as there was opportunity to cross
examine.
The ideal situation is to bring into the court scrutiny because he had
personal knowledge
If the witness is more than hundred km where the hearing is to be
conducted.
OFFICERS. Before whom deposition be taken?
1. domestic
Any judge
Notary public
Any officer authorized to administer oath if stipulated on by
the parties
2 foreign
Consul
Vice consul
Secretary of Legation
Di pwede ambassador because political
Letters regotory or commission
Dulay vs Dulay : Definition: letter regotory is a
communication from one judicial authority to another. Court in qc to
court in boston.
What rule to follow in the taking of deposition?
The rules in the foreign country.
How bout commission?
It is an appointment. The local court appoints someone abroad. The
rules of the Philippines shall apply.
Case: Dulay vs Dulay brother, naturalized American petitioned his
brother and nephew. Applied for writ of attachment. His lawyer
applied for taking of deposition abroad in consular. The local court
issued letters regotory. It was ignored. They went to a notary public
in new York for deposition taking. Phil court refused to accept it. You
have to take authentication by the consul. The court however
accepted it.
Was there valid deposition?
Sc said the need to go to a notary public was brought about by the
fact that letters regotory was ignored. In the future, it would be best to
take through consul. This is not the ratio however.
Does it mean if you take deposition of a person you make his
witness? NO.
If you want to use deposition, present it in court. But using it, you’ll
allow the other party to examine it.
Steps for taking deposition
Ayala vs Tagre: not the manner of taking deposition
The procedure is on Sec 17 19 20 21.
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It is the duty of the officer to take deposition and under stenographic
notes by clerk. The deposition shall be shown to the deponent. He
would review and affix his signature. If refuses, can it still be
submitted? Yes, if the reason for the refusal is stated.. Can the
signing be waived? Yes.if parties agreed.
Duty of officer: put the deposition a sealed envelope. Indicating the
name of deponent. It cannot be submitted by the applicant or any of
the lawyers only the officer.
It is a rule to be strictly followed: if not, exposed to MOTION to
SUPRRESS deposition in Rule 23 Sec 29.
Case: SC said if the taking of the deposition is before a judge, where
the action is taking, the strict rules need not apply. If the witness
refuses to sign, it remains to be a valid deposition.
In court, the court gives some level of respect to the procedure.
Outside, strict rules apply.
Disqualification:
Financial interest
Related within 6th deg to a party or counsel
Lawyer related to officer
__________________________________________________
ANSWER does not tender an issue – the cause of action was
admitted, that would lead to judgment on the pleadings. Meaning
inadmit niya, the very foundation of cause of action is admitted.
This is Compare with summary judgment
CASE: whether or not the issues raised in the answer are genuine is
not the crux of the motion on judgment on the pleadings, only in
summary judgment. On the judgment on the pleadings it is that no
issues are raised at all.
Issue – it is a disputed fact
If not disputed, no issue. Genuineness of the issue is a subject of
summary judgment. There is an issue, but it may be false, sham or
untruthful, but it is still an issue.
No issues are raised at all you talk of judgment on the pleadings.
Case:narra integrated corp vs ca
The existence or appearance of ostensible issues in the pleadings on
the one hand and the sham or fictitious character on the other are
what distinguishes a case for summary judgment because if it
summary judgment issues could be ostensible sham or fictitious.
In a proper case for judgment on the pleadings, there is no ostensible
issue at all. On summary judgment, issues apparently exist.
On judgment on the pleadings, the court will render judgment only on
the pleadings- complaint and answer. On summary judgment, you
can go outside of the pleadings.
On judgment on the pleadings, only the plaintiff can file a judgment
on the pleadings. A motion must be filed by the plaintiff.
On summary judgment, who shall file it? It can be filed by plaintiff or
defendant. For plaintiff, after an answer.
For defendant, at any time as long as the case is pending.
Can there be partial judgment on the pleadings? NO. it is always a
complete judgment.
In summary judgment, there can be partial or complete judgment.
If in doubt, go back to the “answer does not tender an issue:
judgment on the pleadings”
Summary judgment – there is no genuine issue as to a material fact
Except as to the amount of damage
Case: the judge directed judgment on the pleadings motu proprio,
Held. The judge cannot.The judgment can only be prompted by the
plaintiff.
Example:
I extended a loan to Ms. Y evidenced by a promissory note without
the due date specified. The due date was left blank. Because of
failure to pay on the believed due date, I filed a recovery for the
amount. Answer, yes may utang ako pero d pa due and demandable.
Plaintiff filed judgment on the pleadings. Is he correct?
Answer: No. that should be summary judgment. There is an issue.
Whether or not it is due and demandable. The fact of it being due
and demandable can be established by other evidence.
Rule 26 Judgment
Case: A final judgment vs interlocutory order
A final judgment is one that finally disposes of the cases; leaving
nothing for the court to do just as adjudication on the merits. An
interlocutory does not finally disposes of the case such as an order
denying a motion to dqismiss under rule 16 or granting a motion to
extend time to file.
Only final judgment are appealed, interlocutory order cannot be
appealed
Who shall render?
By the judge stating the facts and the law upon which it is based.
What if the judge who rendered the judgment was not the judge who
heard the case? Can there be a valid judgment? Yes. There is no
requirement that they be the same although it is ideal.
Can a judge render a decision after his retirement? No, must render
judgment only when he has authority. If he was appointed to a higher
position, he cannot anymore render judgment.
Only final judgment could be subject of execution.
Can an interlocutory order be a basis of an appeal? NO.
Why is a judgment so important? Because it would be basis of
execution. A judgment once becomes final and executor is subject of
execution. Can a final judgment not attaining finality be subject of
execution? Yes, on execution pending appeal. The judgment would
be reproduced on entry of judgment, only the dispositive portion. It
would be recorded only when the period to appeal has already
lapsed.this is entry of judgment. Rules on entry of judgment is the
same with mtc and higher.
Several judgment vs separate judgment. Several judgment refers to
parties, separate judgment is on CLAIMS.
Rule on the dispositive portion of the decision. Execution must
conform with the dispositive portion of the decision. That is the rule,
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and that is why it is reproduced in the book and in the writ. Hindi ung
buong decision. Un lang dispositive.
General rule: Execution must conform to the dispositive portion of the
decision.
However is there an exception? Yes. When other parts may be
resorted to in order to determine the ratio decidendi of the court.
What is the rule when it comes to judgment that had attained finality?
Judgment once executory as a rule is immutable and unalterable.
Except for:
1. Typographical errors/clerical
2. non pro tunc/does not speak the truth
3.null and void
There is a separate provision on judgment in rule 120 in crimpro.
Wag gagamitin ung 26 para sa crim.
In civil cases, there is no promulgation of judgment. (decisions are
served Sec9 they are not promulgated in a strict sense because it
has a definition in law) Promulgation is limited to criminal cases. The
accused will have to be present for the reading of the judgment.
It will be served either by personal service or registered mail.
Paano sa CA and SC? Are judgments promulgated? No. although it
is correct to say that they are promulgated, when an appellate court
promulgates, the clerk of court promulgates. It says that the division
in such and such a date renders a decision attaching the decision.
Promulgation would be part of judgment which is diff with criminal.
Remedies for an adverse judgment
During the reglementary period, you still have a remedy. A period of
15 days, you have a remedy.
1. Motion for reconsideration
2. Motion for New Trial
3. Appeal
What is an mr? memorize the grounds:
1. judgment is contrary to law
2. the judgment is not supported by evidence
3. the award is excessive
Sa crimpro: rule 121
1. errors of fact or law which requires no further proceedings
Motion for new trial grounds:
1. fraud accident mistake excusable negligence
2. newly discovered evidence
File this during the reglementary period
Requisites for NDE:
1. material and relevant
2. not available during trial despite exercise of diligence
3. change outcome of the case
Same requisite for crim:
Rule 121 grounds for a motion for new trial
No fame!
1. errors of fact or irregularities in the proceeding which would
prejudice rights of the accused
2. newly discovered evidence
Is a motion for reconsideration inconsistent with motion for new trial?
Such that if you file one you cannot file the other. NO! For as long as
the grounds are present, and within the reglementary period, you can
file mnt.
Do you have a mnt in the CA? YES! Only on the ground of newly
discovered evidence. It is the sole ground. When? You can file it
anytime once appeal is perfected and for as long as the appellate
court has jurisdiction. 3 years? Oo for as long as the CA has
jurisdiction.
Do you have a mnt in the SC? NO! But in its exercise of its equity,
subject to the discretion of the SC, but there is nothing in the rules
which grants this.
Can you file a motion to extend time in a motion for reconsideration?
NO! ang appeal baka pwede. In mr, you have a fixed period.
However take note of the latest ruling. It is the Fresh period rule.
Meaning that if you file an mr and it is denied you have a fresh period
of 15 days. However, this applies only to rule 40 and 41.
(ORDINARY APPEAL)
Within how many days can a tc resolve a motion for reconsideration
in a civil case? A period of 30 days.
In SC and CA, 90 days.
Can you have a partial motion for reconsideration? YES. What is the
effect of a grant of mr? The old one is set aside and a new one is
entered.
For MNT, the evidence so far admitted which is not tainted will stand
and will remain on record and but the new evidence will be accepted.
If fame, there would be reception of new evidence.
Can you file a second motion for new trial? YES if the ground was
not available at the time of the filing of the first but if it was available it
would be deemed as waived.
Can you file a second MR? no! prohibited.
Neypes rule apply in criminal cases? Nothing in jurisprudence.
APPEAL
Background
An appeal is a remedy for final judgment that has not yet attained
finality. Not yet final and executory. Because lapse of reglementary
period, d na pwede appeal.
You received decision on April 1 you have until april 16. But you Filed
an appeal on april 18,Remedy if appeal is denied
Remedy is a motion for reconsideration.
However if you were not able to file an appeal you received a
decision, you were not able to file an appeal because your office was
burnt, what can you file? Not a mr because nothing to reconsider,
therefore the judgment became final and executory. What is remedy?
Petition for relief from denial of appeal.
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How many kinds for petition for relief?
1. Petition for relief from judgment
2. Petition for relief from denial of appeal – if you were PREVENTED
from filing of an appeal because of an accident, or extrinsic fraud
(wag ka na magappeal), mistake, and excusable neglect.
Your modes of appeal are limited only to 3 basic kinds:
1. ordinary appeal
2. petition for review
3. petition for review on certiorari (SC)
Petition for certiorari is not an appeal.
The only way to go up to the SC is a petition for review on certiorari
except in crim pro in case of death, life, reclusion perpetua.
122-125 40-45
Ordinary appeal it could be a notice of appeal or record of appeal.
Losing of jurisdiction and perfecting appeal.
REMEDIES AFTER THE JDUGMENT becomes Final and Executory
1. Petition for relief from judgment
Grounds: FAME
Period: within 6 months from entry of judgment and within 60 days
from knowledge
Only a PARTY to a case can file a petition for relief from judgment. A
stranger cannot file this.
Who is a party?
Case: mr x died with an estate. Mr y requested that the entire estate
be adjudicated in his favor. TC favored Y. Two months from entry,
rest of the heirs learned, they filed a motion to set aside the
judgment, do they have personality? Technically, no. so TC denied
the motion. The problem of the others is to what remedy? Petition for
annulment of judgment or relief from judgment. They filed an
annulment because they were not parties. SC: You have learned of it
within two months,and you are a party. Because this is an ACTION
IN REM, notice made by publication, though you were not named
party, you were effectively made party. Using the annulment was not
the proper remedy. Remedy is petition for relief from judgment.
2. Annulment of Judgment
Grounds:
1.Extrinsic fraud
2.Lack of jurisdiction over the subject matter or person of the
defendant
Period: fraud: within 4 years
: lack of jurisdiction : until barred by laches
Does the law require that for you to file an annulment that you be a
party in the original case? NO
Can you avail this on a criminal case? NO
Annulment of judgment applies only in civil cases.
Pinlac vs CA. 9/10/2003. Effect of annulment of judgment.
It shall set aside the questioned judgment and render it null and void
without prejudice to the original action being refiled in the proper
court.
Where can you file annulment of judgment?
Petition for relief from judgment on denial of appeal – in the court that
rendered the judgment
Petition for relief from judgment-in the court that rendered the
judgment
Petition for annulment of judgment of an RTC decision – file in CA as
an original action. It is to be originally filed with the CA.
Petition for annulment of an MTC decision – file it with the RTC
Can you file a petition for annulment of judgment in SC of a decision
of CA?later
Appeal in terms of groupings
Ordinary Appeal
When?
Court that rendered the judgment is the court of original jurisdiction
except RTC if question of law because you have then to go to SC
directly on a petition for review on certiorari.
Rule 40 is civil appeals.
Which is the court of original jurisdiction? MTC, go back to RA 7691
ejectment cases, real property assessed value does not exceed 50 in
MM, 20 outside of MM. if your claim does not exceed 400 in MM, or
300 outside of MM.
Even if it is a question of law from MTC you can never go directly to
SC. How about MTC to CA, No!
MTC go to RTC! Can be question of fact or law or mixed. Mode of
appeal: NOTICE OF APPEAL
Where will you file? In MTC!
Can the period to file notice of appeal be extended? NO!
By Neypes, if you filed an MR you have a fresh period of 15 days but
cannot file an extension even for compelling reason.
What does a notice of appeal contain?
Receives the decision to show timeliness , paid the required docket
fees within the proper reglementary period. Rule40 sec 5
Record on Appeal
If notice of appeal is given 15 days to file, in record on appeal, the
losing party is given 30days
Record on appeal is a compilation of all the pleadings submitted by
parties and orders made by the court in a sequential manner.
Can you ask for extension of time to file record on appeal? NO, the
period can only be extended if the court allows an authorized
alteration.
When is record on appeal required? In special proceedings and
multiple appeals like expropriation.
Perfection
When is an appeal perfected?
Notice of appeal: upon filing as to the appellant
Both parties may file an appeal
Perfected as to him on the date of his filing
8 | C I V P R O A tt y . S a l v a d o r
Record on appeal: upon approval of the court
So until approved, appeal by record on appeal is not perfected.
Losing of jurisdiction
When will the court lose jurisdiction?
Notice of appeal:
Plaintiff A receives the decision on march 1 Plaintiff B on March 3. A
has until march 16 to file notice of appeal. B has until March 18 to
file.
If A is the losing party, he files on March 5, as to him appeal is
perfected assuming he paid docket fees. On March 5, does the court
still have jurisdiction? Yes. The court will only lose juris after the
expiration of the other period to appeal. So lose it on March 19.
What if B likewise filed notice of appeal? March 7 a notice of appeal,
as to B appeal is perfected. On March 8 court loses jurisdiction
because he’s the last one. When will the court lose jurisdiction? Rule
41 Sec 9 the court will continue to have jurisdiction until it has
possession of the record Rule 39 Sec 2 Discretionary Execution. The
court can issue orders during the time the court has jurisdiction and
in possession of the records of the case.
Otherwise even if theoreticially it has juris but doesn’t have records, it
can no longer act.
Rule 41
Discussion in 40 applies to 41. Record on appeal:
Your 30 would be until April 1. April 3. If you file a record on appeal
on March 15 is the appeal perfected? Not yet. The court has to
approve the record on appeal, and when would the court lose
jurisdicitoin? After the other parties’ period expire. PossibleThe
record has been filed and the court has not yet acted but the parties
period expired, will the court continue to have jurisdiction, of course,
how would it approve the record on appeal if it loses juris.
Rule 41 has already been amended. Look at sec 1 if you still have
subsection a. luma yan code. You have to delete that line. Dec
2007, deleted the line, they only harmonize with the Neypes ruling.
Denied mr could be appealed gave it the impression. There was the
discussion that lead to this conclusion. RULE IS DO NOT APPEAL
THE MR but the original decision.
Procedure on Appeal in the RTC as appellate jurisdiction.
Will there be hearings trial of an appeal of an MTC decision? NO!
Filing of memorandum, court will issue notice for them to give memo!
It will not hear the case, it will review the case after both parties filed
their memo.
Next rule: for civil cases ordinary appeal is Rule 41 The RTC in the
exercise of its original jurisdiction. Where do you go from its
decision? In THE CA in the appellate juris.
Court of Appeals in its original jurisdiction:
1. prohibition
2. mandamus
3. quo warranto
4. habeas corpus
5. ceritiorari
6. writ of amparo
7. habeas data
8. annulment of judgment
What can you file in the RTC?
File notice of appeal, same procedure as to perfection, and losing of
jurisdiction.
As to record of appeal also same procedure.
What to file and when to file the same.
The difference is the RTC as an appellate court and CA as an
appellate court. IN rtc, memorandum. In the CA in its appellate
jurisdiction, file appellant’s brief in the CA within 45 days. rule 44
what to file and when to file.(RTC to CA) Appellee’s brief 45 days.
Can you extend? Yes, if there is compelling reason to give you
longer period.
Appellant’s reply in 20 days.
You didn’t file an appellant’s brief what is the effect? Appeal
dismissed.
Did not file notice within the reglementary period? Dismissed
Filed appellants brief without assignment of error? Dismissed
Did not pay docket fees? Dismissed.
Citations? Without it dismissed.
Rule 50. Dismissal of appeal in the court of appeals.
READ RULE 50 noncompliance will dismiss case in CA.
Can an appeal be withdrawn? YES.
PETITION FOR REVIEW
Rule 42 Originate from the court. MTC in its original jurisdiction
elevated to RTC. This portion is still ordinary. Petition for review is
from RTC to CA in tis appellate jurisdiction. Where do you file the
petition for review? In THE Court of Appeals.
Notice of appeal is always on the court that rendered the judgment.
Petition for review is on the next level court.
Period to file a petition for review is 15. This can be extended upon
filing a motion to extension of time within the reglementary period
and payment of fees. For as long as you filed and paid, you can
extend. Can you ask for a second extension? NO! the general rule is
no further extension except for the most compelling reason.
Contents of a petition
1. it should be verified
2. contain certificate against forum shopping
3. material dates: timeliness;
a. date decision was received;
b. date when MR was filed
c.. date of denial for MR
4.Certified copy or duplicate orginial of the questioned order.
Duplicate orginial? It means it bearsthe signature of the officer.
Certified true copy: signature plus the polsition.
5.Attach pleadings
6.Explanation if service is to be made by registered mail
7.Affidavit of service
8.Service of a copy to adverse party and court that rendered the
judgment.
Failure to comply with any of these; dismissal
The community tax certificate is no longer accepted.
Should be notarized. Accepted are government id.
Another petition for review RULE 43. Go to Court of appeals from a
decision of a quasi-judicial agency.
NLRC to CA? NO! NLRC Rule 65
9 | C I V P R O A tt y . S a l v a d o r
May cases SAINT MARTIN FUNERAL HOMES.
By law, after labor code, decisions of the NLRC would become final
and execuory. So there is no speedy remedy, so Rule 65.
Also SMALL CLAIMS, because decisions are final and executory,
you cannot appeal. Rule 65.
When law says final and executory, you cannot appeal. Rule 65.
Decision of the SSS? GSIS? CAAT, DAR? COURT OF APPEALS
CTA? Same level as the court of appeals. So go to CTA en banc.
From there go to petition for review on certiorari.
Contents of petition for review. Same plus all the attachments,
EVERYTHING MUST BE OF CERTIFIED TRUE COPY. There is no
way kasi for the court to determine if it is authentic. The quasi judicial
agencies are not part of the judicial department.
The date, could it be extended? Yes. Second extension allowed?No,
unless for most compelling reason.
Cicular of SC : From decision of RTC in its orginial jurisdiction of
intracorpoarate dispute, where can you go? No more notice of
appeal. A decision of RTC in its orginial jurisdiction as a commercial
court must be by petition for review in CA. because the RTC is
treated like a quasi judicial agency because it handled ung dating
hinhandle ng SEC.
Petition For review on CERTIORARI
Go to Supreme Court.
A decision from RTC on a pure question of law, go to SC.
From decision of CA go to SC on pure question of law
From sandiganbayan, pfr on certiorari
From CTA en banc, go to SC.
CA never render decision en banc.
How many days to file? 15 days. Can you ask for extension? Yes, for
maximum period of 30 days for most compelling reason and payment
of fees. Cannot chopchop the 30 days.
On all of these appeals from 40 to 45, do you need to implead the
court that rendered the judgment? NO! only implead the court in a
rule 65. However, despite the fact that they are not impleaded, they
should be served copies of the petitions for appeal.
Do we apply hierarchy of courts when we talk of appeals? No!
because the law provides the mode. Only apply hierarchy on
concurrent jurisdiction: prohibition,mandamus.
SupremeCourt Rule,. The only way to go up to the SC is through
peititon for review on certiorari except death, life, reclusion perpetua.
In civil cases, no other way.
EXECUTION
Compelling circumstances so that judgment will not be rendered
illusory: Discretionary Execution/ Execution pending appeal
The fact that the case is pending on appeal doesn’t mean your
entitled to it. You have to show compelling reason for the court to
grant.
Do you need a bond?
You don’t need a bond to apply for discretionary execution. A bond is
required in sec 3 to stay execution.
Nothing in the law that requires bond only reasons.
Can you apply discreitionary execution in the trial court? Yes as long
as it has juris and records. What if it was elevated? You can apply in
the appellate court if it has already juris.
Execution pending appeal: Does not require full blown trial type
hearing.
Mina vs Bianzon March 23, 2004. Writ of execution in connection
with ejectment cases?where? In the court that rendered the original
juris – eh di sa mtc. EXCEPTIOn: when the RTC grants execution
pending appeal in ejectment case.
Do you apply res judicata in execution? YES rule 39 Sec 47 abc.
Sec 47 refers to effect of judgment.
Barrette vs CA: doctrine of res jduicta has 2 aspects:
1. bar to a further prosecutin of same claim
2. precludes a relitigation of a particular fact or issue in another
action: PRECLUSION OF ISSUE
Contract between A and B to build NAIA 3. B instiuted action to
nullify the contract. TC said contract valid. This is res judicata.
Any contract as to the constructionof Naia is res judicata.
How bout if the subcontractors sued A? can they sue A? yes. But can
the court pass upon the validity of contract with Naia? No more
because of resjudicata.
Case: 2/2007 Nepumoceno. Making reports after execution.
Who has duty? Sheriff
Period to make report? Sec 14 rule 39
Period of 30 days. Intervals of 30 days,make report and inventory.
Every 30 unitl full satisfaction of the writ. 30 days is not the life of the
writ.
Cagayan de OroVs CA 1999 case. A lawful levy on an execution is
an indispensible to a valid sale.
Levy should be made on the register of deeds wehre the property is
located if real property.
Since it was not filed prior to the execution sale, then levy was not
effected.
Levy would depend on the nature of property.
Real property: REGISTER OF DEEDS
Personal: tao mismo
Shares of stock: corporation
A lawful levy is indispensible to a valid sale. Unless preceded, sale is
void and purchaser acquires no title over the property.
10 | C I V P R O A tt y . S a l v a d o r
Philippine airlines case. In cases of money judgment, there should
first be a demand for payment. Unless there is a demand, you cannot
levy.
Corpuz case. Judge issued writ without motion. SC: Court cannot
issue the writ of execution motu propio. There should be a motion.
5/4/2006 case. When is execution a matter of right? On motion after
expiration of right of appeal.
In cases of a final and exectory judgment, where would you file?
Should file it in the court that rendered the orginial judgment. In case
of appeal, you can file it in the court that rendered the original
judgment, attaching the copy of decision of the appellatecourt.
For good just cause and interest of justice, canmotion for execution
be filed in the appellate court? Yes. However, the writ shall be
issued by the original court.
If the court of appeals has original jurisdiction who will issue the writ?
E di Court of appeals. They can issue the writ.
Will it be possible Napocor case. Losing party filed a mr the other
party filed a motion for execution pending appeal. Which will the
court entertain? MR first! Motin for execution pending appeal must be
held in abeyance until mr is resolved. If no MR was filed and there
was a motion execution pending appeal already, that discretionary
execution will become mooted and execution will become a matter of
right because no mr was filed.
Sec 1 of Rule 39 Solidbank vs Court of Appeals. No mention of
decision of interest, sheriff imposed 12%. This is void. The execution
is void. Sheriff has an administrative function only.
Clerk of court is the ex officio sheriff. The sheriff cannot go beyond
the dispositive portion.
Maceda case. Issuance of the writ vs the awarding. At the outset it is
well to distinguish the issuance of the writ from the awarding thereof.
Function ordering the execution of judgment is judiciary. The order is
execution and it devolves upon the judge to order. The issuance of
the writ, the act, is merely ministerial. It could be delegated to the
clerk of court may issue. The grant is judicial.
Bajet vs Bakiling 2000case. Sec 14 Rule 35. The lifetime of the writ.
The life of the writ. 5 years.druing the period which the judgment may
be enforced by motion.
Collado vs Heirs of Cleofante Nov 23, 2007. Can you have an
independent action for damages based on the implementation of a
writ of execution. Is this correct? NO! it cannot be subject of an
independent action. Any claim for damages brought about by the
implementation of the execution shall be raised only in the same
action.
Sec6 Revival of judgment to an independent action. The lifetime of
the writ is five years and you can enforce a judgment by motion
within a period of 5 years from entry of judgment. File MOTION FOR
Execution. After the lapse, you cannot file a motion. But you can file
an independent action within ten years from the entry of judgment.
Ten years is from the Civil Code. Prescriptive period of a judgment.
After you were able to revive the judgment by independent action,
you can file again motion for execution within 5 years from the entry
of judgment of the revived judgment. If again unable to file motion,
can file independent action within 10 years from entry of revived
judgment.
Sec 34 how bout this section? Also captions revival of judgment. This
is not the same. Sec 6 covers revival of judgment upon an
independent action. Sec34 will apply in case of auction sale and the
purchaser was unable to take possession of the thing. Someone
claimed to have a better interest. What can you do?
1. file recovery in same action by motion
2. or in separate action
3. that which gave you the title. Have judgment revived in your own
name. The purchaser who is not the judgment obligee will file motion
for revival of judgment in his own name. He will take place the
judgment obligee. Therefore he can execute, levy on personal
property.
Co case: Effect of execution pending appeal. Once an appeal is
perfected you can’t anymore file an execution pending appeal in the
trial court because juris has been lost. Can you file a motion for
discretionary execution in the appellate court? YES.
Are there judgments which are executory? Yes.
Injunction,accounting,receivership and support. Can you still
appeal? Yes, however it will not stay execution.
In case of death during the time judgment was final and executor,
sec 7 will apply HUWAG MO isubstitute. Only substitute if case is
pending or on appeal. Once judgment oblige dies: execution can take
place
obligor dies: can take place, interest or lien on real or personal
property. can execute against executor and administrator if there is
right or interest over real and personal property. Rule 86. Basta pera,
estate. IF MONEY, proceed against estate not to executor or
administrator.
You could pursue an action against executor or administrator if it
involves property of the deceased, acts of negligence of the
deceased that resulted to damages and all other actions that
survived.
What if there is already a levy? Can execution proceed even if
judgment obligor dies? Yes, sale shall proceed.
Sec 9 10 and 11. How to execute?
Money judgment: provision section 9 will apply
Outline of section 9
If the judgment is for sums of money, the judgment obligor will have
to pay money or certified bank checks. PDC? Di pwede. Promissory
note? No. to whom payment made? Oblige or in his absence,
representatives. Absent both, payment delivered to sheriff who will
deliver it to the clerk of court and deposit it to the account of the
court..
Second option: levy on personal or real property. Take note that
obligor is given a choice to choose what property he wants to be
executed on. If he doesn’t make a choice, personal first. Does it
mean that if there is a levy, the oblige can appropriate to himself?
NO! there should always be an auction sale.
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3. for money judgment, GARNISHMENT. When you garnish it is not
limited to bank deposits it extends to royalties, annuities commission.
But most common is bank deposit. First act of the court is to issue an
order of garnishment requiring the recipient to inform the court if he
has sufficient funds if not, the court will be informed also. Thereafter
if there is sufficient funds, the court will order the release of the funds
in which case the payment will be sent to judgment obligee.
Sec 10 Specific acts
Before I discuss section 10 let me touch on the question of contempt.
If the judgment obligor refuses to pay money but you know that he
has, he cannot be held in contempt because there are other options
made available by the law. You can still levy or garnish.
Sec 10 special or specific acts; this covers an instance where
judgment obligor requires to perform an act like you execute a sale.
Refuse to execute deed of sale,Can he be placed in contempt?No, if
he refuses to act, the court can ask someone else to perform if
none,court can consider it as performed.
Recover possession/transfer of property.
Is a writ of execution sufficient to demolish improvement over the
premises? No! a demolition order should always be based on
special order of the court after notice and hearing.
The third one is sec 11. Remember this, special judgments.
Only you can perform. It is purely personal, such that the court
requires you, if there is a motion, a certified true copy of the judgment
should be attached. This time you can be cited for contempt.
An attachment cannot be erased by an auction sale. A lien can
always be subject to a preference in time.
Properties exempt from execution. MEMORIZE. Remember that in all
those exempted mortgaged, it is not exempted, it can be subject to a
foreclosure.
PUNITIVE DAMAGES
Only found in Sec17. It covers defacing and removal of notice of
sale. In amount not exceeding 5000 php.
THIRD PARTY CLAIM
It is a judgment oblige who wants to execute but it is not he who will
execute it is the sheriff. It is the duty of the sheriff to execute.Subject
of the execution is claimed by someoneelse. The third partyclaimant
will serve an affidavit to the sheriff likewise copy to obligee. What is
the effect of the serive of affidavit of the third party claimant?
Execution will be suspended. Can the sheriff continue? Yes only if
obligee will post a bond in favor of third party claimant.
Who is a third party claimant? A third party claimant is a stranger to
the action. A third party could vindicate his right in a separate action.
Judgment obligee can vindicate his right in same action or separate
action. Deal with spouses. He is an officer of the corporation and he
made a personal surety over the loan of his company. Unfortunately
corp was not able to pay. The creditor ran after him. His property was
executed on. Galit si misis. She filed a separate action and believed
she is a third party claimant. Is she a stranger? If it’s a conjugal or
community property, she is not a stranger, so must be in the same
action. If exclusive property, must pursue it in an independent action.
Notices.
Walang sale kung walang notice. There are two kinds of notice:
Notice to the public and notice to the judgment obligor.
Notice to the public:
Perishable goods- 3 places ok na un.
Personal property – not more than 5 days
Real property – 20 days and if the assessed value exceeds 50,000
there should be publication of a newspaper of general circulation
Notice to judgment obligor:
3 days before sale except with perishable goods
Certificate of sale
Do you need a certificate of sale of personal property capable of
manual delivery? No, but yes if requested.
If not capable of manual delivery,, required!
Real properties? Yes!
A description, land area, owner thereof specified in certificate of sale.
If a purchaser is the oblige and his bid is less than award, no need to
pay. But he should participate in the sale; cannot appropriate.
What is the redemption period?
Sec 28
Who can redeem? Judgment obligor and redemptioneers those who
have an interest, lien or even creditors
What is the period? One year..
Section 1 very categorical. Section 28 is very clear that one year is
for obligor and redemptioneers. If obligor redeems, no more
redemptions allowed.
Iba ang execution sa foreclosure sale. What im discussing right now
applies only to execution.
Who will be in possession during the redemption period? Th
ejudgment obligor will keep in possession.
Can the judgment obligor during the redemption period change the
nature of the property? No. who will be entitled to profits and rents?
Judgment obligor.
After lapse of redemption period, there would be a consolidation in
name of purchaser.
What are remedies in cases of difficulty of satisfying your judgment?
Sec35 to 43
1. the court can examine the judgment obligor
Can he be sobpena? Yes.
Can it examine obligor’s debtor? Yes
The debt will be charged. Meaning payment will be directed to
obligee or court or directly to sheriff.
They can require attendance of them through subpoena.
Pwede ba installment? Yes, if after investigation the court is
convinced.
Court can appoint a receiver for the preservation of property.
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If you discovered that obligor and interest over property asmortagaor,
you can ask court to sell the property on public auction.
You discovered that some properties are In name of third parties who
denies that obligor owns it, obligee seek court for it to be sold within
120 days from order.refusal of oblige to sell, Obligee will expose him
to contempt, because he has to sell it within 120 days.
Satisfaction of judgment 44 and 45.
If the writ of execution is returned to the court, it is satisfied.
If the writ ofexeuction is returned for whatever reason, it is satisfied.
2. written acknowledgment by party or counsel that it has been
satisfied
3.endorsement that it ahs been satisfied on the face of the records of
the case. There is a notationon the face duly signed by lawyer or
party that judgment has been fully satisfied.
With or without consent.satisfactionwith consent : endorsement and
written acknowledgment
Without consent: there are times that the oblige refuses to admit that
it has been satisfied. If the court is convinced even without consent
that the judgment has been satisfied. It will enter satisfaction of
judgment.the court has the power even if without consent if it is
convinced.
EFFECTS OF JUDGMENT
A judgment is conclusive if it involves titile to the things, relationship,
status, but only prima faciie as to death if probate or letters of
administration. Because it can be filed during his lifetime.
Effect of foreign judgment: conclusive as to tiltle of the thing prima
facieasto parites and successors in interest. contest it?yes also in
arbitral awardsl on ground of faud,collusion, notice,mistake of fact . a
foreing arbitral award is not a judgment.
Do not enforce arbitral award.apply recongintion in rtc. Because not
capable of pecuniary estimation. But for puposes of filing fees,it is not
so. Mijares case.filing is fixed amount.
An ordinary action vs action for enforcement of foregin judgment.
Oa: there should be cause of action
Foreign: no need.
Oa: need to litigate and hear
Foreign: no need to relitigate because foreing court already litigated