GENERAL PRINCIPLES

I. GENERAL PRINCIPLES A. CONCEPT OF REMEDIAL LAW Q: What is procedural rule? Q: What is the concept of remedial law? A: It is a branch of public law, which prescribes the procedural rules to be observed in litigations, whether civil, criminal, or administrative, and in special proceedings, as well as the remedies or reliefs available in each case. (2006 Bar Question) Q: What is the importance of remedial law? A: It plays a vital role in the administration of justice. It lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered (Herrera, Vol. I, p. 1, 2007 ed.) B. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW Q: Distinguish substantive and remedial law A:
Substantive Law Remedial Law Part of the law which Refers to the legislation creates, defines or providing means or regulates rights concerning methods whereby causes life, liberty or property or of action may be the powers of agencies or effectuated, wrongs instrumentalities for the redressed and relief administration of public obtained (also known as affairs. Adjective Law). Does not create vested Creates vested rights. rights Retroactive in Prospective in application. application The Supreme Court is expressly empowered to Cannot be enacted by the promulgate procedural Supreme Court. rules. (2006 Bar Question)

7.

Court decisions (Herrera, Vol. I, p. 2, 2007 ed.)

A: Procedural rule is the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for their disregard or infraction.
Note: If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as substantive matter; but if it operates as a means of implementing an existing right, then the rule deals merely with procedure (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998).

Q: How are remedial laws implemented in our system of government? A: They are implemented through the judicial system, including the prosecutory service of courts and quasi-judicial agencies. (2006 Bar Question) C. RULE-MAKING POWER OF THE SUPREME COURT 1. LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT Q: What are the limitations on the rule-making power of the Supreme Court? A: 1. It shall provide a simplified and inexpensive procedure for the speedy disposition of cases. The rules must be uniform for all the courts of the same grade. The rules must not diminish, increase or modify substantive rights (Cruz, Philippine Political Law, p. 281, 2002 ed.)

2. 3.

2. POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES Q: May the Supreme Court suspend the application of the Rules of Court and exempt a case from its operation?

Q: What are the principal sources of remedial law? A: 1. 2. Constitution Different laws creating the judiciary, defining and allocating jurisdiction to courts of different levels Procedural laws and rules promulgated by the Supreme Court Circulars Administrative orders Internal rules

3. 4. 5. 6.

A: Yes. In the interest of just and expeditious proceedings, the Supreme Court may do so because the Rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice. (Republic v. CA, G.R. No. L-31303, May 31, 1978)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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D. NATURE OF PHILIPPINE COURTS 1. MEANING OF A COURT Q: What is a court? A: It is an organ of the government, belonging to the judicial department, whose function is the application of laws to controversies brought before it and the public administration of justice. (Black’s Law Dictionary) 2. COURT AS DISTINGUISHED FROM A JUDGE Q: Distinguish court from a judge
Court Entire body in which the judicial power is vested May exist without a present judge Disqualification of a judge does not affect the court Judge Only an officer or member of the court There may be a judge without a court May be disqualified

5. COURTS OF GENERAL AND SPECIAL JURISDICTION Q: Distinguish Courts of general jurisdiction from special jurisdiction. A:
Courts of General jurisdiction Takes cognizance of all cases , civil or criminal, of a particular nature, or courts whose judgment is conclusive until modified or reversed on direct attack, and who are competent to decide on their own jurisdiction Courts of Special jurisdiction Takes cognizance of special jurisdiction for a particular purpose, or are clothed with special powers for the performance of specified duties, beyond which they have no authority of any kind

6. CONSTITUTIONAL AND STATUTORY COURTS Q: Distinguish constitutional court from statutory court. A:
Constitutional Court Created by the constitution e.g. SC Cannot be abolished by Congress without amending the Constitution Statutory Court Created by law e.g. CTA May be abolished by Congress by just simply repealing the law which created those courts

3. CLASSIFICATION OF PHILIPPINE COURTS Q: What are the classifications of Philippine courts? A: 1. Regular courts (Supreme Court, Court of Appeals, Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts , Municipal Circuit Trial Courts) Special courts (Sandiganbayan, Court of Tax Appels, Shari'a District Courts, Shari'a Circuit Courts) Quasi-courts or Quasi-judicial agencies (e.g Civil Service Commission)

7. COURTS OF LAW AND EQUITY Q: Distinguish Courts of law from equity. A:
Courts of Law Any tribunal duly administering the laws of the land Courts of Equity Any tribunal administering justice outside the law, being ethical rather than jural and belonging to the sphere of morals rather than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. (Herrera, Vol. I, p. 18, 2007 ed.) Adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes

2.

3.

4. COURTS OF ORIGINAL AND APPELLATE JURISDICTION Q: Distinguish Courts of original jurisdiction from Courts of appellate jurisdiction. A:
Courts of Original jurisdiction Courts exercising jurisdiction in the first instance Courts of Appellate jurisdiction Superior Courts reviewing and deciding cases previously decided by a lower court

Decides a case according to what the promulgated law is

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

GENERAL PRINCIPLES
Q: What are courts of record? A: These are courts whose proceedings are enrolled and which are bound to keep written records of all trials and proceedings handled by them. R.A. No. 6031 mandates all Municipal Trial Courts to be courts of record. 8. PRINCIPLE OF JUDICIAL HIERARCHY Q: What is the policy of Judicial Hierarchy or hierarchy of courts? A: A higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts. The Supreme Court is a court of last resort and must so remain if it is to satisfactorily perform assigned to it. (1996 Bar Question) 9. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY Q: What is Doctrine of Non-Interference or Judicial Stability? A: Courts of equal and coordinate jurisdiction cannot interfere with each other’s orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ of possession issued by another RTC. The principle also bars a court from reviewing or interfering with the judgment of a coequal court over which it has no appellate jurisdiction or power of review.
Note: GR: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court. XPN: The doctrine does not apply where a third party claimant is involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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II. JURISDICTION Q: What is jurisdiction? A: A: It is the power and authority of a court to try, hear, and decide a case and to carry its judgments into effect (Latin: “juris” and “dico,” which literally means “I speak of the law”). Q: Is the statement that “Jurisdiction is conferred by substantive law“ accurate? A: No, because only jurisdiction over the subject matter is conferred by substantive law. Jurisdiction over the parties, issues and res is governed by procedural laws. A. JURISDICTION OVER THE PARTIES 1. HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED Q: How is jurisdiction over the plaintiff acquired? A: It is acquired from the moment of filing the complaint, petition or initiatory pleading. 2. HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED Q: How is jurisdiction over the defendant acquired? A: It is acquired either: a. By his voluntary appearance in court and his submission to its authority b. By service of summons c. Other coercive process upon him
Note: Jurisdiction over the defendant is not essential in actions in rem or quasi in rem as long as the court has jurisdiction over the res (Herrera, Vol. I, p. 114, 2007 ed.) Jurisdiction Over the Subject Matter Determined by the allegations of the complaint (Riano, Civil Procedure: A Restatement for the Bar, p. 144, 2009 ed.) XPN: Where the real issues are evident from the record of the case, jurisdiction over the subject matter cannot be made to depend on how the parties word or phrase their pleadings (Herrera, Vol. I, p. 2, 2007 ed.) e.g. in ejectment cases in which the defendant averred the defense of the existence of tenancy relationship between the parties (Ibid p.148)
Note: Tenancy relationship is not presumed and it is not enough that it is alleged. There must be evidence to prove that it exists and that all its elements are established (Salmorin v. Zaldivar, G.R. No. 169691, July 23, 2008).

Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person.

Jurisdiction Over the Person Acquired by the filing of the petition in case of the plaintiff or by arrest (Rule 113), by valid service of summons or voluntary submission to the court’s authority in case of the defendant (Ibid. p. 158)

Conferred by law which may be either the Constitution or a statute (Ibid. p. 143) Cannot be conferred by the agreement of the parties, by contract or by parties’ silence or acquiescence Ibid. p. 144)

It is sometimes made to depend, indirectly at least, on the party’s volition GR: The appearance of the defendant in whatever form is submission to the jurisdiction of the court XPN: If the appearance is to object or question the court’s jurisdiction (Ibid. p. 161)
Note: In criminal cases, jurisdiction over the accused is always required

B. JURISDICTION OVER THE SUBJECT MATTER 1. MEANING OF JURISDICTION OVER THE SUBJECT MATTER Q: What is jurisdiction over the subject matter? A: It is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs. It is the power or authority to hear and determine cases to which the proceeding in question belongs.

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION
2. JURISDICTION VERSUS THE EXERCISE OF JURISDICTION Q: Distinguish jurisdiction from exercise of jurisdiction. A: Jurisdiction is the authority to hear and decide cases. On the other hand, exercise of jurisdiction is any act of the court pursuant to such authority, which includes making decisions. 3. ERROR OF JURISDICTION AS DISTINGUISHED FROM ERROR OF JUDGMENT Q: Distinguish error of jurisdiction from error of judgment. A:
Error of Jurisdiction One where the court, officer or quasi-judicial body acts without or in excess of jurisdiction, or with grave abuse of discretion Renders a judgment void or at least voidable Correctible by certiorari There is an exercise of jurisdiction in the absence of jurisdiction Error of Judgment One that the court may commit in the exercise of jurisdiction; it includes errors of procedure or mistakes in the court’s findings Does not make the court’s decision void Correctible by appeal The court acted with jurisdiction but committed procedural errors in the appreciation of the facts or the law (1989 Bar Question)

5. DOCTRINE OF PRIMARY JURISDICTION Q: What is Doctrine of Primary Jurisdiction? A: Courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge and experience of said tribunal in determining technical and intricate matters of fact (Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997). Q: What is Doctrine of Ancillary Jurisdiction? A: It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction.
Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and lawyers may be heard, and grant an injunction, attachment or garnishment.

6. DOCTRINE OF ADHERENCE TO JURISDICTION Q: What is Doctrine of Adherence to Jurisdiction or Continuity of Jurisdiction? A: GR: Jurisdiction, once attached, cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction from attaching in the first instance, and the court retains jurisdiction until it finally disposes of the case. XPNs: 1. Where a subsequent statute expressly prohibits the continued exercise of jurisdiction; 2. Where the law penalizing an act which is punishable is repealed by a subsequent law; 3. When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right; 4. Where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment;

4. HOW JURISDICTION IS CONFERRED AND DETERMINED
Note: discussion on how jurisdiction is conferred is on page 4.

Q: What are the instances in which jurisdiction cannot be conferred? A: 1. 2. 3. 4. 5. By the administrative policy of any court; A court’s unilateral assumption of jurisdiction; An erroneous belief by the court that it has jurisdiction; By the parties through a stipulation e.g. contract; The agreement of the parties acquired through, or waived, enlarged or diminished by, any act or omission of the parties; Parties silence, acquiescence or consent (Riano, Civil Procedure: A Restatement for the Bar, p. 143, 11th ed.).

6.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011
5. When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void; Once appeal has been perfected; Curative statutes (Herrera, Vol. I, p. 106, 2007 ed.). because it cannot be tolerated by reason of public policy (Filipinas Shell Petroleum Corp. v. Dumlao, G.R. No. L-44888, Feb. 7, 1992). 3. A party who invokes the jurisdiction of the court to secure affirmative relief against his opponents cannot repudiate or question the same after failing to obtain such relief (Tajonera v. Lamaroza, G.R. No. L-48907, 49035, Jan. 19, 1982).

6. 7.

Q: Does retroactivity of a law affect jurisdiction? A: No. Jurisdiction being a matter of substantive law, the established rule is that statute in force at the time of the commencement of the action determines jurisdiction. (Herrera, Vol. I, p. 105, 2007 ed.) 7. OBJECTIONS TO JURISDICTION OVER THE SUBJECT MATTER Q: What is the effect of lack of jurisdiction over the subject matter? A: When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the same. (Sec. 1, Rule 9). The court may on its own initiative object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.). Q: May jurisdiction of the court be raised or questioned at any time? A: GR: Yes. The prevailing rule is that jurisdiction over the subject matter may be raised at any stage of the proceedings (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.).
Note: Jurisdiction can be questioned even for the first time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)

Note: Under the Omnibus Motion Rule, a motion attacking a pleading like a motion to dismiss shall include all grounds then available and all objections not so included shall be deemed waived. The defense of lack of jurisdiction over the subject matter is however, a defense not barred by the failure to invoke the same in a motion to dismiss already filed. Even if a motion to dismiss was filed and the issue of jurisdiction was not raised therein, a party may, when he files an answer, raise the lack of jurisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule.

Q: Will the failure to exhaust administrative remedies affect the jurisdiction of the court? A: GR: No. It is not jurisdictional but the case will be dismissed on the ground of lack of cause of action. It only renders the action premature. (Carale v. Abarintos, G.R. No. 120704, March 3, 1997; Pestanas v. Dyogi, 81 SCRA 574) XPN: Before a party may be allowed to invoke the jurisdiction of the courts, he is expected to have exhausted all means of administrative redress (Herrera, Vol. I, p. 267, 2007 ed.). XPNS TO THE XPN: 1. Question raised is purely legal; 2. When the administrative body is in estoppels; 3. When the act complained of is patently illegal; 4. When there is need for judicial intervention; 5. When the respondent acted in disregard of due process; 6. When the respondent is the alter-ego of the President, bear the implied or assumed approval of the latter; 7. When irreparable damage will be suffered; 8. When there is no other plain, speedy and adequate remedy;

XPNs: 1. Estoppel by laches. SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings(Tijam v. Sibonghanoy, G.R. No. L-21450, Apr. 15, 1968). 2. Public policy – One cannot question the jurisdiction which he invoked, not because the decision is valid and conclusive as an adjudication, but

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION
9. When strong public interest is involved; and 10. In quo warranto proceedings (Herrera, Vol. I, p. 268, 2007 ed.)
Note: The rule on exhaustion of administrative remedies and doctrine of primary jurisdiction applies only when the administrative agency exercises quasijudicial or adjudicatory function (Associate Communications and Wireless Services v. Dumalao, G.R. 136762, Nov. 21, 2002).

involving the status of the parties or suits involving the property in the Philippines of non-resident defendants. E. JURISDICTION OF COURTS Q: Which court has jurisdiction over the following? A: 1. Boundary dispute between municipalities RTCs are courts of general jurisdiction. Since there is no legal provision specifically governing jurisdiction over boundary disputes between a municipality and an independent component city of the same province, it follows that RTCs have the power and authority to hear and determine such controversy (Municipality of Kananga v. Madrona, G.R. No. 141375, Apr. 30, 2003). 2. Expropriation It is within the jurisdiction of the RTC because it is incapable of pecuniary estimation. It does not involve the recovery of sum of money. Rather, it deals with the exercise by the government of its authority and right to take property for public use. 3. Labor dispute An action for damages for abuse of right as an incident to dismissal is within the exclusive jurisdiction of the labor arbiter. But the labor arbiter has no jurisdiction for claims of damages based on quasi-delict which has no reasonable connection with the employeremployee relations claims under the Labor Code (Ocheda v. CA, G.R. No. 85517, Oct. 16, 1992).
Note: Where no employer-employee relationship exists between the parties and no issue involved may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the regular courts that has jurisdiction (Jaguar Security Investigation Agency v. Sales, G.R. No. 162420, Apr. 22, 2008).

8. EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION Q: What is the effect of estoppel by failure to object lack of jurisdiction? A: The active participation of a party in a case is tantamount to recognition of that court’s jurisdiction and will bar a party from impugning the court’s jurisdiction. This only applies to exceptional circumstances. (Francel Realty Corp. v. Sycip, 469 SCRA 424; Concepcion v. Regalado, GR 167988, Feb. 6, 2007). C. JURISDICTION OVER THE ISSUES Q: What is jurisdiction over the issues? A: It is the power of the court to try and decide issues raised in the pleadings of the parties or by their agreement in a pre-trial order or those tried by the implied consent of the parties. It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings D. JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION Q: How is jurisdiction over the res acquired? A: It is acquired either by: 1. The seizure of the property under legal process. 2. As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. (Banco Español Filipino vs. Palanca, 37 Phil. 291). 3. The court by placing the property of thing under its custody (custodia legis). Example: attachment of property. 4. The court through statutory authority conferring upon it the power to deal with the property or thing within the court’s territorial jurisdiction. Example: suits

4. Forcible entry and unlawful detainer The MTC has exclusive original jurisdiction. In such cases, when the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession. All ejectment cases are covered by the Rule on Summary Procedure and are within the jurisdiction of the inferior courts regardless of whether they involve questions of ownership.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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ASST. No.R.. YRIZ TAMIE A. 2. KATRINA NADINE G. MARIANO. SR. 148106. Santiago v.. No. Phil. July 20. ordinance or regulation b) Legality of tax. In all criminal cases involving offenses from 1. No. 167711. Appeals from the Sandiganbayan. G. July 7. SUPREME COURT Criminal Cases Exclusive Original Petitions for issuance of writs of certiorari. Court of Appeals 2. G. 8 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 6770. Appeals from the CTA. No. 6. G. whether expressly or impliedly. PLATON III.. 147874. Galicia. Dec. AQUINO.R. RONN ROBBY D. instruction. Twenty-Two Realty Development Corp. Pilar Development Corp. BORJA. DIANE CAMILLA R.R. G. MICHAEL ANGELO V. It is within the COA's domain to pass upon money claims against the government or any subdivision thereof as provided for under Section 26 of the Government Auditing Code of the Philippines. Commission on Elections En Banc 2. 10.. order. Province of Batangas. EDELISE D. AIDA. 3. People v. STAMARIA. TERESE RAY-ANNE O. v. Inc. Enforcement of a money claim against a local government unit Commission on Audit (COA) has the primary jurisdiction to pass upon the money claim. MENDOZA.R. offenses. directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Sec.M. UNICA AMOR R. SUBJECT HEADS: DARRELL L. LANTIN. SUBJECT HEAD: ANGELI P. the Ombudsman must yield to the Division School Superintendent in the investigation of administrative charges against public school teachers (Ombudsman v. 2006). appeal is automatic to the CA. Courts may raise the issue of primary jurisdiction sua sponte (on its own will or motion. Appeals from RTC exercising original jurisdiction in arose out of the same occurrence or which the following cases: may have been committed by the accused on i. when the penalty imposed is life imprisonment or reclusion perpetua. SY. July 17. LIM. which although not so punished c. DONNA GRAGASIN.R. RHONDEE E. No. 12. Appeal by petition for review on certiorari: which the penalty is reclusion perpetua or life a. means to act spontaneously without prompting from another party) and its invocation cannot be waived by the failure of the parties to argue it as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties (Euro-Med Laboratories. Mateo y Garcia. 2008). Authority to conduct administrative investigations over local elective officials and to impose preventive suspension over elective provincial or city officials It is entrusted to the Secretary of Local Government and concurrent with the Ombudsman upon enactment of R. BAGANG. Appeals from RTC in which only errors or questions of law are involved. KRISTINE P. ALBAÑA. Sandiganbayan Appellate 1.R. MARA KHRISNA CHARMINA F. G. R. 6770). No. 1. Special civil action of certiorari – filed within 30 days against the COMELEC / COA a) Note: In criminal cases.UST GOLDEN NOTES 2011 The courts in ejectment cases may determine questions of ownership whenever necessary to decide the question of possession (Gayoso v. Appeals involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman It may be appealed to the Supreme Court by filing a petition for certiorari within 10 days from receipt of the written notice of the order. JUSTICE JAIME M. 108072. CONTRIBUTORS: VICENTE JAN O. If no question of fact is involved and the case the same occasion involves: Constitutionality or validity of treaty. There is nothing in the Local Government Code of 1991 to indicate that it has repealed. Appeals from the CA. 8.A. the pertinent provisions of the Ombudsman Act (Hagad v. presidential decree. MA. 4. GRETCHEN C. Public school teachers Generally. 153628. MEMBERS: AKEMI B. proclamation.A. JUANENGO. HERRERA. assessments. international or executive agreement. prohibition and Petitions for issuance of writs of certiorari. 2004) Civil Cases 2. DUMLAO. FLORES. MANANQUIL. 2006. 27. JUDGE CESAR D. G. SHERY PAIGE A.. or toll. PINEDA. July 17. JUSTICE OSCAR C. MIJARES. 2006). imprisonment and those involving other b. Oct. QUIAMBAO. mandamus against the following: prohibition and mandamus against the following: 1. ROSALES . Court of Appeals 1. or penalty in relation thereto c) Cases in which jurisdiction of lower court is in issue ii. All cases in which only errors or questions of law are involved. 5. No. JR. law. Sandiganbayan 3. 1995). 5. 147678-87. Dadole. Commission on Audit 4. impost. 7. 04-9-05-SC. Criminal cases in which the death penalty is imposed by the Sandiganbayan Appeals from the CA. (A.

A. Cases involving the constitutionality. R.Akli. 7076 . or reversed. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or law. b. Petitions for issuance of writs of certiorari.D. R. q. 3. orders. Petitions for habeas corpus and quo warranto. Environmental laws and regulations covered by the writ of kalikasan includes but not limited to the following: a.JURISDICTION Concurrent With CA Petitions for issuance of writs of certiorari. No.Toxic Substances and Hazardous Waste Act. b. The following cases must be decided by the SC en banc: a. R. No. c. e.Water Code. P.People’s Small-Scale Mining Act. All other cases required to be heard en banc under the Rules of Court (Sec. With CA and RTC 1. 1586 . proclamations. in Plazas. where the action involves of habeas data public data or government office With RTC With Sandiganbayan Actions affecting ambassadors and other public ministers and Petitions for mandamus. Martin Funeral Home v. Rule 7.A. k. i. Parks. Sept. instructions. 2. 8550 . With CA. prohibition. ACADEMICS CHAIR: LESTER JAY ALAN E. A. A doctrine or principle laid down in a decision rendered en banc or by division is modified. P. All cases involving the constitutionality of a treaty. 1. 8371 . R. prohibition and Petitions for issuance of writs of certiorari. No.R.D. NLRC under the Labor Code. P. they shall be dismissed. e. f. 705 .Philippine Fisheries Code. 130866. 09-6-8-SC). LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. R. consuls injunctions and ancillary writs in aid of its appellate jurisdiction including quo warranto arising or that may arise in in cases filed under EO Nos. and Molave Trees. R. Act No. application or operation of presidential decrees. 4850 . No.D. h. (St.A. p.Plant Quarantine Law of 1978.D. 5. No. international or executive agreement. d. R.D. l. o. 856 . 1151 Philippine Environmental Policy of 1977. otherwise. 3572 . n. c.Laguna Lake Development Authority Act.D. No. d. Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads. 7611 . j. 2. Petition for writ of habeas data. d. m. 7942 . No. SB and RTC 1. Note: The petitions must first be filed with the CA.Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes. 1433 . MARTINEZ 9 .Sanitation Code. No. 16. certiorari.Revised Forestry Code.A. and Petitions for issuance of writs of certiorari. orders.A. 14 and 14-A Note: 1. 1. 1998). g.D. MASACAYAN & THEENA C. VIII. lower courts. 7586 . Destroying or Injuring of Planted or Growing Trees.A.M. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ 2. G. proclamations and issuances establishing protected areas. R. Petitions for issuance of writ of kalikasan (Sec. No. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.Marine Pollution Decree. 3571 .A. 979 . c. 1067 . School Premises or in any Other Public Ground. decrees. P. prohibition and prohibition and mandamus against the lower courts mandamus against the lower courts or other bodies or bodies. 1987 Constitution). R. 2. CA.Prohibition Against Cutting of Tindalo. A case where the required number of vote in a division is not obtained.A. Civil Service Commission Quasi-judicial agencies (file with the CA first) RTC and lower courts. ordinances and other regulations.Philippine Mining Act. mandamus against the following: prohibition and mandamus against the RTC and a.National Integrated Protected Areas System Act including all laws. b. P. 6969 .Prohibition Against the Cutting.A. P. 2.Indigenous Peoples Rights Act. P. Art.Strategic Environmental Plan for Palawan Act.

MIJARES. R. Coconut Preservation Act.A. and ii. and between such corporation. partnership or association and the state in so far as it concerns their individual franchise or right to exist as such entity. 10. KRISTINE P. JUDGE CESAR D.A. MICHAEL ANGELO V. JUANENGO. Other existing laws that relate to the conservation. R. 9637.P. MENDOZA. DONNA GRAGASIN. Cases involving devises or schemes employed by or any acts. orders. Civil Cases 10 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. B. SHERY PAIGE A. BORJA. 9 extrinsic fraud or lack of jurisdiction (Sec. R. members of the associations or organizations registered with the Security and Exchange Commission. AQUINO. BAGANG. MANANQUIL. partnerships or associations. AIDA. y. HERRERA. RTC on the questions of constitutionality. Philippine Biofuels Act. b.National Caves and Cave Resource Management Act. 9275 . MARA KHRISNA CHARMINA F. EDELISE D.A. Family Courts. 3.Wildlife Conservation and Protection Act. Crimes of Terrorism under the Human Security Act of 2007 or R. The following are intra-corporate controversies within the jurisdiction of the RTC: a. 9593. 6657. 7160.P. JUSTICE JAIME M. R. JUSTICE OSCAR C. between and among stockholders.A. SR. Appeal from MTC in the exercise of its delegated iii. 5. respectively. i. 3.Clean Water Act. UNICA AMOR R. R. partnership or association posses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation. Rule 122). Death (Sec.A. 8048.2. 9003 . exercising its original jurisdiction. 2. PLATON III. 9483 .A. 9372 Appellate 1. DIANE CAMILLA R. ASST. business associates. MA.Oil Spill Compensation Act of 2007. life imprisonment or reclusion perpetua.A. SRC). Controversies in the election or appointments of directors. The Philippine Archipelagic Baselines Law. ALBAÑA. 8435. JR. A. amounting fraud or misrepresentation which may be detrimental to the interest of the public and/or the stockholders. RHONDEE E. and Petitions of corporations. Agriculture and Fisheries Modernization Act of 1997. i. LIM. 2. 7308. c. CONTRIBUTORS: VICENTE JAN O. R. t.M. its officers or partnership. YRIZ TAMIE A. 141. partnerships or associations to be declared in the state of suspension of payments in cases where the corporation. R. RONN ROBBY D. 9175 . COURT OF APPEALS Criminal Cases Exclusive Original Actions for annulment of judgments of RTC based upon 1. R. SY. members or associates. DUMLAO. Seed Industry Development Act of 1992. In the exercise of its appellate jurisdiction. and z. LANTIN. 9 B. 7161. u. trustees.Clean Air Act. which should be appealed first to the CA. development. R. R. ii. High-Value Crops Development Act. partners. 9072 . 7900.A. v. MEMBERS: AKEMI B.A. 129).A. Judgments or decisions of RTC (except those appealable awards of: to the SC or SB): a. same occurrence that gave rise to the offense d. Rule 1. imprisonment (Sec.A. 096-8-SC). d.A. Local Government Code of 1991. Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC). KATRINA NADINE G. partnership or association has no sufficient assets to cover its liabilities but is under the management of a Rehabilitation Receiver or Management Committee (Sec.Ecological Solid Waste Management Act. Provisions in CA No.UST GOLDEN NOTES 2011 r. resolutions. jurisdiction involving questions of the same occasion or which arose from the fact. R.A. RTC a. of the board of directors. a lesser penalty for offenses committed on validity of tax. Comprehensive Agrarian Reform Law of 1988. No. officers or managers of such corporation. 129).Chainsaw Act. Appeals from RTC in cases appealed from MTCs punishable reclusion perpetua or life which are not a matter of right. The Public Land Act. decisions. Actions for annulment of judgments of RTC (Sec. Renewable Energy Act of 2008. s. SUBJECT HEADS: DARRELL L. c. GRETCHEN C. QUIAMBAO. Controversies arising out of intracorporate or partnership relations. b. where the imposable penalty is: b..A. STAMARIA. PINEDA. preservation. 2. R. exercising its appellate jurisdiction. c. Final judgments. x. In the exercise of its original jurisdiction. SUBJECT HEAD: ANGELI P. R. R. FLORES.A. 8749 . protection and utilization of the environment and natural resources (Sec. TERESE RAY-ANNE O. R.A. MARIANO. w.A. 2. 9147 ..A. R. R. ROSALES . 9522. Rule 122).

in which case the inaction shall be deemed an implied denial. charges and penalties where orders of the RTC in tax cases originally decided by the principal amount of taxes and fees. Appeals from the National Commission on Indigenous Peoples (NCIP). Apr. exclusive of administered by the BIR or the BOC where the principal charges and penalties claimed is less than P1M tried by the amount of taxes and fees. Decisions in cases involving disputed assessments. Petitions for issuance of writ of kalikasan (Sec. 2. 2002). penalties claimed is less that P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate) Appellate In tax collection cases involving final and executory 1. With SC and RTC Petitions for habeas corpus and quo warranto.A. and Petitions for issuance of writs of certiorari. 1. Over appeals from the judgment. ACADEMICS CHAIR: LESTER JAY ALAN E. MeTC and RTC. proper MTC. resolutions or assessments for taxes. where the action habeas data involves public data or government office 3. MTCs. With RTC Decisions. penalties in relation thereto. 2. Appeals from quasi-judicial agencies under Rule 43. Petitions for issuance of writs of Petitions for issuance of writs of certiorari. RTCs and other lower courts. fees. MASACAYAN & THEENA C. or other matters arising under the NIRC or other laws administered by BIR. 7691). or other matters arising under the NIRC or other laws administered by BIR. NLRC under the Labor Code. Appeals from Civil Service Commission. where the NIRC or other applicable law provides a specific period of action. fees. fees or other charges. 5. and mandamus against the lower courts or bodies. 3. Inaction by CIR in cases involving disputed assessments. prohibition certiorari. 6. in their respective territorial jurisdiction. MeTC and RTC. the following: a. prohibition and mandamus against and mandamus against the RTCs and lower courts. 149148. SABUGO & JOHN HENRY C. fees or other charges. 1. Quasi-judicial agencies d. 5. No. refunds of internal revenue taxes. No.M. penalties in relation thereto. 09-6-8-SC). and Appeals from the Office of the Ombudsman in administrative disciplinary cases (Mendoza-Arce v. charges and penalties where TCC and other laws. exclusive of charges and proper MTC. or special laws the principal amount of taxes and fees. 2.JURISDICTION jurisdiction (R. SB and RTC Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ of Petition for writ of habeas data. exclusive of them. resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs. Rule 7. 2. Civil Service Commission c. A. prohibition Petitions for the issuance of writs of certiorari. refunds of IR taxes. Concurrent With SC 1. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.R. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 3. Over petitions for review of the judgments. G. 4. b. and MCTCs in their respective jurisdiction Concurrent With CIR 1. COURT OF TAX APPEALS Criminal Cases Exclusive Original In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the assessments for taxes. prohibition and mandamus against the lower courts With SC. orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction. part of laws. Office of the Ombudsman. charges and penalties claimed is less than P1M tried by the 2. MARTINEZ Tax Cases 11 . LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.

seizure. injunction and other ancillary writs in aid of its aid of its appellate jurisdiction. 1. ROSALES . DIANE CAMILLA R. EO No. CA and RTC Petitions for the issuance of writ of amparo and writ Petitions for the issuance of writ of amparo and writ of of habeas data. or 2. or higher of the Compensation and Position c. HERRERA.A. BAGANG. involving dumping duties and counterveiling duties under Secs. SANDIGANBAYAN Criminal Cases Exclusive Original Cases involving violations of: 1. Other matters arising under the Customs law or other laws. YRIZ TAMIE A. DUMLAO. in cases involving public officials or employees not otherwise mentioned in the preceding enumeration. 7975 as amended by R. AIDA. 301 and 302. CONTRIBUTORS: VICENTE JAN O. where either party may appeal the decision to impose or not to impose said duties. With Secretary of Finance Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. EO No. JUSTICE OSCAR C. habeas data. Imelda whether in permanent. STAMARIA. KATRINA NADINE G.. Misappropriations of Ferdinand Marcos. EDELISE D. 2. at the Marcos their close relatives. 1. fines.. Executive branch including those occupying and dummies)]. dummies. Concurrent With SC Civil Cases Petitions for certiorari. 7975 as amended by R. 2. 2. Members of the judiciary without prejudice to the Constitution. SHERY PAIGE A. 3019 (Anti-Graft and Corrupt Practices a. MARA KHRISNA CHARMINA F. MIJARES. mandamus. AQUINO. SY. agents or a. and the position of regional director. Chairmen and members of the Constitutional Commissions without prejudice to the Constitution. RONN ROBBY D. Cases filed pursuant to EO Nos. JR. TERESE RAY-ANNE O. Violation of R. including quo appellate jurisdiction. 4. of the Tariff and Customs Code. and 3. subordinates. whether simple or complexed with other crimes committed by the public officials and employees above mentioned in relation to their office. SUBJECT HEAD: ANGELI P. 1. 14 and 14-A (Sec. MANANQUIL. UNICA AMOR R. prohibition. 2 (Illegal Acquisition and occupying the following positions in the government. FLORES. ASST. KRISTINE P. mandamus. Officials occupying a position classified as Grade 27 nominees). whether in the exercise of their original or appellate jurisdiction. resolutions or orders of the RTC. MEMBERS: AKEMI B. MENDOZA. and d. Petitions for certiorari. 1 (Creating the PCGG). part of laws or special laws administered by BOC. EO No. PLATON III. JUDGE CESAR D. LANTIN. and d. All other national or local officials. habeas habeas corpus. JUANENGO. Acting or interim capacity. MICHAEL ANGELO V.A. and the Secretary of Agriculture in the case of agricultural product. 8249). Appellate Appeals from final judgments. ALBAÑA. R. 2315 of the Tariff and Customs Code. 8294). Act) where one or more of the accused are officials b. RHONDEE E. 14 [Cases involving the ill-gotten wealth Classification Act of 1989 (R. With Central Board of Assessment Appeals Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals. LIM. respectively. EO No. 14 and 14-A. Felonies or offenses. commodity or article. 14) (Sec. Members of Congress c. SR. R. including quo warranto arising in cases warranto arising in cases falling under Executive Order falling under Executive Order Nos. time of the commission of the offense: business associates. MARIANO. Q: Governor Charles of Tarlac was charged with indirect bribery before the Sandiganbayan for accepting a car in exchange for the award of a series of contracts for medical supplies. fees or other charges. 14 and 14-A.A. BORJA. 14-A (amendments to EO No. MA. 6758) in the: of the immediately mentioned persons (Marcos i. The 12 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.A. With Secretary of Trade and Industry and the Secretary of Agriculture Decisions of Secretary of Trade and Industry in the case of non-agricultural product. 2. and safeguard measures under RA 8800. forfeitures or other penalties in relation thereto. ii. QUIAMBAO. b. 2. PINEDA. prohibition. With SC. injunction and other ancillary writs in corpus.A.UST GOLDEN NOTES 2011 With Commissioner of Customs Decisions in cases involving liability for customs duties. 1. 2. Nos. commodity or article. JUSTICE JAIME M. GRETCHEN C. detention or release of property affected.A. DONNA GRAGASIN. SUBJECT HEADS: DARRELL L.

rules and regulations (Sec. SABUGO & JOHN HENRY C.A. Writ of habeas data habeas data With SC Actions affecting ambassadors and other public ministers and consuls [Sec. value exceeds P20. Charles’ suspension is mandatory. 2. 20. It is mandatory after the determination of the validity of the information in a pre-suspension hearing.A. found the same to be valid and ordered the suspension of Charles.000 or P400. 129 as amended by R. BP there are no Family Courts (Sec.000 or P400.A. offender is under 16 and there are Juvenile and damages. litigation expenses and Domestic Relations Court in the province. and 5. P. testate or intestate.P. Includes criminal cases where the penalty 2. his suspension is not automatic upon the filing of the information and his suspension under Sec.000 or P50. Actions involving title to or possession of real provided by law exceeds 6 years imprisonment property or any interest therein where the assessed irrespective of the fine (R.24.D. tribunal. 21 (2) of BP 129] With SC and CA 1. exclusive original jurisdiction of the 3. 13. 7691). 129). 09-6-8-SC).JURISDICTION Sandiganbayan. 5185). higher Concurrent With SC. With MTC Cases involving enforcement or violations of environmental and other related laws.000 in Metro Manila (Sec. Violations of Dangerous Drugs Act regardless Reforms. 4. a. MASACAYAN & THEENA C. B. Certiorari.000. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. The purpose of the suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with evidence or from committing further acts of malfeasance while in office. The Sandiganbayan overruled Charles’ contention stating that the suspension under the circumstances is mandatory. 7691). No.000 in Metro Manila. prohibition and mandamus against lower courts and bodies. A. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.2 of the committed by an official with salary grade of 27 or Securities and Regulation Code. costs. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Actions in which the subject of litigation is incapable any court. Cases not within the exclusive jurisdiction of any fine exceeding P4. Writ of amparo Petitions for the issuance of writ of amparo and writ of 2. Cases where the only penalty provided by law is a 5. BP 129). Decree on Intellectual Property.M. Other cases where the demand. or value of property in controversy exceeds 4. tribunal or body (Sec. court. exclusive of interest. REGIONAL TRIAL COURTS Criminal Cases Exclusive Original 1. where gross “Grade 27” and higher (Sec. Intra-corporate controversies under Sec. 3019 is in conflict with Sec. Election offenses (Omnibus election code) even if 8. Includes criminal cases not falling within the except forcible entry and unlawful detainer. 5 of the Decentralization Act of 1967 (R. Rule 1. Habeas corpus and quo warranto. after going over the information. the accused is occupying positions classified as 4. Special ACADEMICS CHAIR: LESTER JAY ALAN E.A. exclusive original jurisdiction of Juvenile and b. although not automatic. person or body exercising judicial or 3. Cases falling under the Family Courts in areas where P300. 8249). Domestic Relations Court and Court of Agrarian c. Criminal cases not within exclusive jurisdiction of 1. Is the court's ruling correct? A: Yes. MARTINEZ Civil Cases 13 . 13. Law on written defamation or libel.000 in imprisonment more than 6 years and none of Metro Manila. Metro Manila.A. (2001 Bar Question) 5.A. attorney’s fees. Other laws which specifically lodge jurisdiction in quasi-judicial function. Actions in admiralty and maritime jurisdiction where Sandiganbayan where the imposable penalty is demand or claim exceeds P300. 5. SB and CA 1. 3019). of the imposable penalty except when the 7. R. 2. Matters of probate. The latter contested the suspension claiming that under the law (Sec. Civil actions and special proceedings falling within a. 19.000 or P400. 1606 as value of estate exceeds P300. 2.000 in amended by R. b. of pecuniary estimation. the RTC: 6. R.

FLORES. 2. and whether jurisdiction is in the MTCs or in the RTCs would depend on the amount of the claim. 7. termination. 7658. conditions prejudicial to their development (Sec. a. Sept. TERESE RAY-ANNE O. 2. UNICA AMOR R. Where one or more of the accused is/are below 18 Petitions for guardianship. Actions involving personal property where the value of the 1.UST GOLDEN NOTES 2011 SC may designate certain branches of RTC to try exclusively criminal cases. 153. No. 7.A. Exploitation and Petitions for support and/or acknowledgment. BP 129 as amended by R. urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice (Sec. Women – involving acts of gender-based violence Petitions for declaration of status of children as that result. GRETCHEN C. SHERY PAIGE A. MEMBERS: AKEMI B. sexual or abandoned. Actions for claim of money where the demand does not 2. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS Civil Cases Exclusive Original 1. 8369) Civil Cases 1. EO 56 (Series of 1986) and other related laws. ASST. Where the only penalty provided by law is a fine not exceeding P4. In offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10. R. 09-94. PD 603.. MENDOZA. 3. Q: What is the test to determine whether an action is capable of pecuniary estimation? A: The criterion is the nature of the principal action or the remedy sought. JUSTICE JAIME M. 8. property does not exceed P300. Act Complaints for annulment and declaration of nullity of establishing the family courts). custody of children. Criminal Cases All offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine and regardless of other imposable accessory or other penalties. STAMARIA. MIJARES. and petitions for voluntary or involuntary commitment of other forms of physical abuse such as battering or children. testate or intestate. b. However. of the commission of the offense (R. Probate proceedings. 33. 5. Circular No. 5. QUIAMBAO. and Summary judicial proceedings under the Family Code 5. 1994). BAGANG.. RONN ROBBY D. PLATON III. JR. 2. 8369). in Metro Manila P400. litigation expense. 5. attorney’s fees.000. June 14. Talip. corpus in relation to minor. SR.A. 14 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.A.000. KATRINA NADINE G. Children – which include the commission of all and forms of abuse. DUMLAO.000 (Sec. Family Code) (Sec. psychological harm or suffering to women. integrity and freedom of movement.A. 32. 7610 or the Special Protection of for dissolution of conjugal partnership of gains. LIM. SUBJECT HEADS: DARRELL L. damages.000 or. MANANQUIL. or likely to result in physical. or for annulment of a judgment or foreclosure of mortgage. ROSALES . agrarian cases. where the basic issue is something other than the right to recover a sum of money. 7691). MARA KHRISNA CHARMINA F. 6. AIDA. Discrimination Act. ALBAÑA. 23. 3. in Metro Manila P400. the principal relief sought like specific performance suits and in actions for support. Petitions for the constitution of the family home violence and discrimination and all other (rendered unnecessary by Art. 4. i. and costs (Sec. 2005). BORJA. and petitions 4. as amended. 3. habeas years of age but not less than 9 years of age. R. 7691). Children Against Child Abuse. 8369. dependent or neglected children. YRIZ TAMIE A. and are cognizable exclusively by the RTCs (Barangay Piapi v. MARIANO. where the value of the estate does not exceed P300. or restoration of threats and coercion which violate a woman’s parental authority and other cases cognizable under personhood. the suspension. SUBJECT HEAD: ANGELI P. LANTIN. FAMILY COURTS Criminal Cases Exclusive Original 1. If it is primarily for the recovery of a sum of money. neglect. or a consequence of. BP 129). MA. where the money claim is purely incidental to. exceed P300. 4.A. G. DIANE CAMILLA R. such actions are incapable of pecuniary estimation. HERRERA. When one or more of the victims is a minor at the time Petitions for adoption of children and its revocation. EDELISE D.) in their respective territorial jurisdictions. 138248. marriage and those relating to marital status and 3. claim must be exclusive of interest. JUSTICE OSCAR C. KRISTINE P. Violations of R. Note: In the foregoing. AQUINO. MICHAEL ANGELO V. Cases against minors cognizable under the Dangerous property relations of spouses or those living together Drugs Act. JUANENGO. Cases of domestic violence against: of the Philippines.A.000 or. BP 129 as amended by R. and Those covered by the Rules on Summary Procedure. RHONDEE E.R.000 or. as amended by R. Appellate GR: All cases decided by lower courts (MTC etc. XPN: Decisions of lower courts in the exercise of delegated jurisdiction. SY. DONNA GRAGASIN. juvenile and domestic relations cases. the claim is considered capable of pecuniary estimation.A.000. and under different status and agreements. 7. in Metro Manila P400. CONTRIBUTORS: VICENTE JAN O. cruelty.e. JUDGE CESAR D. exploitation. 6.000 (Admin. PINEDA.

and 3. Petitions by Muslim for the constitution of a family home.A. guardianship. SHARIAH COURTS Exclusive Original 1. There is no controversy or opposition. prohibition. legitimacy. change of name and commitment of an insane person to an asylum. 7691). All petitions for mandamus. Actions involving title to or possession of real property or any interest therein where the value or amount does not exceed P20.M. ACADEMICS CHAIR: LESTER JAY ALAN E.000 or. 2. All cases involving custody. Book Two of the Code of Muslim Personal Laws. 34. injunction. All offenses committed by public officers and employees in relation to their office. rules and regulations. and all other auxiliary writs and processes in aid of its appellate jurisdiction.A. No. Special Petition for habeas corpus in the absence of all RTC judges in Application for bail in the absence of all RTC judges in the province or city (Sec. actions for payment of money where the claim does not exceed P100. No. b.000 exclusive interest and costs (as amended by A. habeas corpus. No. 33. i. 09-6-8-SC). SABUGO & JOHN HENRY C. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer. BP 129). probate of wills. P. punishable with imprisonment not more than 6 years or where none of the accused holds a position classified as “Grade 27” and higher (Sec. d. and 5. b. in Metro Manila P200. the province or city. BP 129 as amended by R. Forcible entry and unlawful detainer. certiorari. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims. BP 129 as amended by R. Violations of municipal or city ordinances. 8. 2. A. All actions arising from the customary contracts in which the parties are Muslims. Cadastral or land registration cases covering lots where: a.000 (Sec.000 or. 4. e. Note: The value shall be ascertained by the affidavit of the claimant or agreement of the respective claimants (Sec. 8. c.e. rules and regulations (Sec. attorney’s fees. Those covered by the Rules on Summary Procedure: a.M. Concurrent With all civil courts 1. 2. accomplices or accessories. 7. Violations of BP 22 (A. 35. (2008 Bar Question) 5. litigation expense. All cases involving disposition. Maritime claims where the demand or claim does not exceed P300. BP 881). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. BP 129 as amended by R.A. 6.A.000 irrespective of other penalties or civil liabilities arising therefrom. Those covered by the Rules on Small Claims. Contested but the value does not exceed P100.000 (Sec. 7691). Violations of the rental law. 138. 5. Violations of traffic laws. and by private individuals charged as co-principals. 3. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Inclusion or exclusion of voters (Sec. 7691). Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI. MARTINEZ 15 . b. MASACAYAN & THEENA C.M. 8249). Other civil cases except probate where the total amount of the plaintiff’s claims does not exceed P100. 00-11-01-SC). Delegated a. Rule 1.000 or. Concurrent With RTC Cases involving enforcement or violations of environmental and other related laws.D. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.JURISDICTION 4. including government-owned or –controlled corporations. 02-11-09-SC). paternity and filiation arising under the Code of Muslim Personal Laws. which shall fall under the exclusive jurisdiction of the Municipal Circuit Court. if they have not specified which law shall govern their relations. distribution and settlement of estate of deceased Muslims. 4.000 exclusive of interest damages. issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property.000 exclusive of interest and costs. 34. 1606 as amended by R. in Metro Manila P400. in Metro Manila P50. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1. and costs.

3. filing of the criminal action in court. 2. For disputes between residents of the same barangay: the dispute must be brought for settlement in the said barangay. either awarded.000 in actions. JUSTICE OSCAR C. TERESE RAY-ANNE O. 25. ASST. JUDGE CESAR D. GRETCHEN C. SHERY PAIGE A. PINEDA. SUBJECT HEADS: DARRELL L. BAGANG. 4. RONN ROBBY D.000 exclusive of interest and Where attorney’s fees are costs. SY. DUMLAO. JR. pursuant to Rule 111 of the Revised Rules of Criminal Procedure. Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts 2. RHONDEE E. FLORES. the same shall not 1. LIM. All other civil cases. HERRERA. Nov. The civil aspect of criminal does not exceed P200. 2005). P100. UNICA AMOR R. MANANQUIL. MIJARES. AQUINO. DIANE CAMILLA R. MICHAEL ANGELO V. SUBJECT HEAD: ANGELI P. MARA KHRISNA CHARMINA F. KRISTINE P. 1508) (1999 Bar Qestion) 1. YRIZ TAMIE A. or does not exceed P100. ROSALES . 3. ALBAÑA. AIDA. JUANENGO. JURISDICTION OVER SMALL CLAIMS. Rule on Small Claims Cases Purpose / Object To provide a simpler and more inexpensive and expeditious means of settling disputes involving purely money claims than the regular civil process Rules on Summary Procedure To achieve an expeditious and inexpensive determination of the cases defined to be governed by the Rules on Summary Procedure 1. exclusive of institution of the criminal interests and costs (A. DONNA GRAGASIN. SR..UST GOLDEN NOTES 2011 F. MARIANO. MA.000. 3. Purely civil in nature where exceed P20. QUIAMBAO. CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION Katarungang Pambarangay Law To effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion. JUSTICE JAIME M. No.M.D. PLATON III. For disputes involving real property or any interest when the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon therein shall be brought in the barangay where the real property or larger portion thereof is situated. MEMBERS: AKEMI B.000 or 2. KATRINA NADINE G. All cases of forcible entry and which are exclusively for the unlawful detainer irrespective of payment or reimbursement of a the amount of damages or unpaid sum of money not exceeding rentals sought to be recovered. CONTRIBUTORS: VICENTE JAN O. EDELISE D. either filed before the Metro Manila.. LANTIN. except by the plaintiff is solely for probate proceedings. (Preamble of P. All disputes involving parties who actually reside in the same city or municipality may be the subject of the proceedings for amicable settlement in the barangay. MENDOZA. 4. 02action. BORJA. For disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. 4. and the claim or relief prayed for 2. or reserved upon the 11-09-SC. 16 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. STAMARIA. 2. Cases Covered Civil Cases Small claims cases – civil claims 1. Where to file Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts 1. where the payment or reimbursement of total amount of plaintiff’s claim sum of money. For disputes between residents of different but adjoining barangays and the parties agree to submit their differences to amicable settlement: within the same city or municipality where any of the respondents reside at the election of the complainant.

6. (Sec. 417 Criminal Cases When punishable by imprisonment of not more than 1 year or fine of not more than 5. 1. and 6. 2. Violations of B. 4.000. MARTINEZ 17 . Contract 3. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1. Apr. Examples are a suit to force a person to fix a damaged good or a demand for the fulfillment of an This Rule shall not apply to a civil case where the plaintiff's cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure. Violations of traffic laws.M. 408. and the dispute relates to the performance of his official functions.000. 5. Quasi-contract c. ACADEMICS CHAIR: LESTER JAY ALAN E. SABUGO & JOHN HENRY C. the civil aspect of a criminal action which seeks recovery of money as damages may be heard as a small claim if reserved or instituted separately prior to the filing of the criminal case. Disputes involving parties who actually reside in barangays of different cities or municipalities. Some civil cases regardless of how little the amount involved cannot be filed as small claims. Where one party is the government or any subdivision or instrumentality thereof. 2003). Where one party is a public officer or employee. LGC) 1. Contract of Lease b. 2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 22 or the Bouncing Checks Law (A. For damages arising from any of the following: a. 15. Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. Bill of Rights). Contract of Sale e. 5. Violations of municipal or city ordinances. Offenses involving damage to property through criminal negligence where the imposable fine is not exceeding P10. However. For money owed under any of the following: a. Offenses where there is no private offended party. Violations of the rental law. Fault or negligence b. rules and regulations. Contract of Services d. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.000. 1. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec.00. Cases excluded Criminal actions are excluded pursuant to certain Constitutional limitations granting the accused in all criminal prosecutions “the right to be heard by himself and counsel” (Sec. MASACAYAN & THEENA C. Contract of Loan c. nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. Contract of Mortgage 2. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 4. 00-11-01-SC.P. except where such barangay units adjoin each other and the parties 2.JURISDICTION These claims or demands may be: 1. An example is a case for libel or slander. 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5. No. 3. 14[2].000 irrespective of other penalties or civil liabilities arising therefrom.

SUBJECT HEAD: ANGELI P. JR. AIDA. ASST. FLORES.A. Sec. LIM. ALBAÑA. VAWC Act. JUANENGO. PLATON III. G. MARIANO. MANANQUIL. SR. ROSALES . 9262. JUDGE CESAR D. DONNA GRAGASIN. obligation which is not purely for money. QUIAMBAO. 8. the amount of the demand shall be the totality of the claims in all causes of action irrespective of whether the causes of action arose out of the same or different transaction (Rule 2. MENDOZA. KRISTINE P. Such other classes of disputes which the President of the Philippines may determine in the interest of justice. BORJA.. MICHAEL ANGELO V. SHERY PAIGE A. AQUINO. HERRERA. DIANE CAMILLA R. 7. BAGANG. EDELISE D. MIJARES. CONTRIBUTORS: VICENTE JAN O.. TOTALITY RULE Q: What is the Aggregate or Totality Rule? A: Where there are several claims or causes of actions between the same or different parties embodied in one complaint. SY. UNICA AMOR R. MEMBERS: AKEMI B.5 [d]).UST GOLDEN NOTES 2011 thereto agree to submit their differences to amicable settlement by an appropriate lupon. MA. YRIZ TAMIE A. LANTIN. JUSTICE OSCAR C. JUSTICE JAIME M. RHONDEE E. MARA KHRISNA CHARMINA F. STAMARIA. TERESE RAY-ANNE O. DUMLAO. KATRINA NADINE G. and Violations of R. PINEDA. RONN ROBBY D. GRETCHEN C. SUBJECT HEADS: DARRELL L. 18 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.

353 SCRA 89. Rule1). (Herrera. p. etc. guardian for an insane his remedy is to file an person. MEANING OF SPECIAL CIVIL ACTIONS A: Q: What is a special civil action? A: It has special features not found in ordinary civil actions. etc. Court of appeals. Foreclosure of mortgage 6. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS Q: Distinguish action from special proceeding.) Application Where a party litigant Where his purpose is to seeks to recover seek the appointment of a property from another. That contract such as means that realty or interest damages. Rule 1) 121. 3.) Governing Law Ordinary rules Special rules supplemented supplemented by special by ordinary rules rules Action Personal Action Scope When it affects title to or Personal property is possession of a real sought to be recovered property. Prevent or redress a Rule 1). Court Heard by courts of limited jurisdiction Procedure Initiated by a pleading Initiated by a petition and and parties respond parties respond through an through an answer opposition Heard by courts of general jurisdiction 5. vs. p. 370. Inc. 1. It is governed by ordinary rules but subject to specific rules prescribed Rules 62-71. Restatement for the Bar. Civil Procedure: A punishable by law (Sec. Partition 5. 2009 ed. REAL ACTIONS AND PERSONAL ACTIONS Q: Distinguish real actions from personal actions. It is governed by ordinary rules. Prosecute a person for escheat. Possession 4.3 (b). Any interest in real property. guardianship. ACTIONS 1. claims of therein is the subject matter money. I. Riano. Specific kinds of wrong. at thereof is situated.g. MEANING OF ORDINARY CIVIL ACTIONS Q: What is an ordinary civil action? A: It is a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by law. A: Special Proceeding Purpose Civil action: To establish a status. a right 1. Title to 2. an act or omission (Riano. or a portion defendants resides. (Rule 4. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Ownership 3. 2007 ed. CIVIL PROCEDURE A. 2. settlement of estate. the election of the sec 1) plaintiff (Rule 2 sec 2) Example An action to recover Action for a sum of possession of real property money plus damages Note: An action to annul or rescind a sale of real property has as its fundamental and prime objective the recovery of real property (Emergency Loan Pawnshop. Real Action Venue Venue of action shall be Venue of action is the commenced and tried in the place where the proper court which has plaintiff or any of the jurisdiction over the area principal plaintiffs wherein the real property resides or any of the involved. 2009 ed. SABUGO & JOHN HENRY C. 3. special proceedings are found in rule 72 – rule 109 Criminal action: E. MEANING OF CRIMINAL ACTIONS Q: What is a criminal action? A: It is one by which the state prosecutes a person for an act or omission punishable by law (Sec. special proceeding to establish the fact or status of insanity calling for an appointment of guardianship. p. or an interest or where damages for therein (Sec. Vol. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 3 2. 122. rule 4) breach of contract are sought Basis When it is founded upon the Founded on privity of privity of a real estate. 4. MARTINEZ 19 . To protect a right or a particular fact (Sec. MASACAYAN & THEENA C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. of the action.CIVIL PROCEDURE III. Note: It is important that the matter in litigation must also involve any of the following issue: 1.) ACADEMICS CHAIR: LESTER JAY ALAN E. his remedy is a action.

JUSTICE JAIME M. Rule 4 contrary. GRETCHEN C. Cadastral proceeding performance 2. LANTIN. MIJARES. UNICA AMOR R. G. AQUINO. unless there is cause of action arose. YRIZ TAMIE A. RHONDEE E. AIDA. Action for specific 1. for damages (Riano. LOCAL AND TRANSITORY ACTIONS Q: Distinguish local action from transitory actions. Land registration proceeding 2. SR. MANANQUIL. MA. 1975). STAMARIA. JUANENGO. 4. SHERY PAIGE A. BORJA. 448 SCRA 663) Scope Directed against the thing itself Directed against particular Directed against particular persons Directed against the whole world persons Required jurisdiction Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the defendant is not required. DONNA GRAGASIN. CONTRIBUTORS: VICENTE JAN O.p. DIANE CAMILLA R. PLATON III. ACTIONS IN REM. DUMLAO. QUIAMBAO. MARA KHRISNA CHARMINA F. successor in interest successors-in-interest but the judgment shall be executed against a particular property.. HERRERA. Action for partition 2. SUBJECT HEADS: DARRELL L. IN PERSONAM AND QUASI IN REM Q: Distinguish actions in rem.R. L-30175. Action for ejectment 4. (Domagas vs. MARIANO. Local Action Privity of contract No privity of contract and Founded on privity of the action is founded on contract between the privity of estate only parties whether debt or covenant (Paper Industries Corporation of the Philippines v. TERESE RAY-ANNE O. ASST. Probate proceeding 1. FLORES. MICHAEL ANGELO V. brought against the person therein to the obligation or lien burdening the property.UST GOLDEN NOTES 2011 6. JUSTICE OSCAR C. SUBJECT HEAD: ANGELI P. Action for a sum of money. Civil Procedure: A Restatement for the Bar. JUDGE CESAR D. RONN ROBBY D. PINEDA. The RES involve will answer the judgment. ALBAÑA. privies. Samson. parties impleaded or their litigants. MENDOZA. MEMBERS: AKEMI B. SY.. in personam and quasi in rem A: Action In Personam Action Quasi In Rem Nature A proceeding to subject the property A proceeding to enforce A proceeding to subject the property of of such persons to the discharge of personal rights and obligations the named defendant or his interests the claims assailed. Purpose A proceeding to determine the state An action to impose a Deals with the stauts. JR. BAGANG. ROSALES . KRISTINE P. EDELISE D. 28. Action for breach of mortgage attachment contract 3. Effect of judgment Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the world. A: Transitory Action Venue Must be brought in a Dependent on the place particular plac where the where the party resides subject property is regardless of where the located. ownership or or condition of a thing responsibility or liability upon liability of a particular property but a person directly which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants. No. the defendant is required defendant is not required as long as Jusrisdiction over the RES is required jurisdiction over the res is acquired through publication in a newspaper of general circulation. 2009 ed. LIM. Example Action to recover real Action to recover sum of property money 7. Nov.130. KATRINA NADINE G. Action to foreclose real estate 3. an agreement to the Subject to Sec.) Action In Rem 20 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Jensen. Example 1.

Nature It is actually predicated It is procedural in on substantive law or character is the on quasi delicts under consequence of the NCC. 335 SCRA 540. 2009 ed. violation of the right of the plaintiff (Riano. prescription. 2. vs. p. TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION Q: What is the test of sufficiency of the statement of a cause of action? A: 1. the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Occidental II Coop. party. A compliance with all the defendant to the conditions precedent respect one’s right to the bringing of the 3. Rule 2) Failure to state cause of action Insufficiency in the allegations of the complaint Lack of cause of action 3. hypothetically admits the matters alleged in the complaint (Riano. MASACAYAN & THEENA C. p. There must be a good legal right of the cause (existence of a plaintiff cause of action) 2. estoppel. etc.CIVIL PROCEDURE B. 2009 ed.4) Cause of Action It is the act or omission by which a party violates the rights of another ( Sec. Whether or not admitting the facts alleged. MEANING OF CAUSE OF ACTION Q: What is a cause of action? A: A: It is the act or omission by which a party violates a rights of another (Sec. 2. Civil Procedure: A Restatement for the Bar. Rule 2). David. Civil Procedure: A Restatement for the Bar . FAILURE TO STATE A CAUSE OF ACTION Q: Distinguish failure to state cause of action from absence or lack of cause of action Failure to prove or establish by evidence one’s stated cause of action As a ground for dismissal Raised in a motion to Raised in a demurrer to dismiss under Rule 16 evidence under Rule 33 before a responsive after the plaintiff has pleading is filed rested his case Determination Determined only from Resolved only on the basis the allegations of the of the evidence he has pleading and not from presented in support of his evidentiary matters claim 4. CAUSE OF ACTION 1. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 468 SCRA 63. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Riano. Thus a motion to dismiss on the ground of failure to state a cause of action. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.) Basis Based on the allegations Basis is the plaintiff’s cause of the plaintiff in the of action complaint Effect of Affirmative defense Not affected by Affected by affirmative affirmative defenses defenses (fraud. 2.) ACADEMICS CHAIR: LESTER JAY ALAN E. An act or omission of action the defendant in 3. Inc. vs. MARTINEZ 21 . 4. (Ibid p.. Civil Procedure: A Restatement for the Bar. p92. 2009 ed) 2. The existence of a 1. CAUSE OF ACTION VERSUS RIGHT OF ACTION Q: Distinguish cause of action from right of action A: Right of Action Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him Requisites 1. The action must be violation of the instituted by the proper plaintiff’s right.) Note: The rule is “There is no right of action where there is no cause of action”. Roxas. 92. 93. p. SABUGO & JOHN HENRY C.) The sufficiency of the statement of cause of action must appear on the face of the complaint and its existence is only determined by the allegations of the complaint (Viewmaster Construction Corp. Riano. A correlative duty of 2. Note: The truth or falsity of the allegations is beside the point because the allegations in the complaint are hypothetically admitted. 2009 ed.

hence a party may desire to file a single suit for each of his claims. one for rescission of contract and other for the recovery of 100. 6. INDIGENT PARTIES. DONNA GRAGASIN. 3. Rule 2). DUMLAO. CONTRIBUTORS: VICENTE JAN O. UNICA AMOR R. RHONDEE E.. ASST. Is the joinder of the two causes of action proper? A: Yes. KRISTINE P. 1996 Bar Question. neither requires special rules. REAL PARTIES IN INTEREST. Q: The complaint filed before the RTC states two causes of actions. Note: Joinder of causes of action must be subject to the following conditions: 1. YRIZ TAMIE A.00 both of which arose out of the same transaction. Prohibited by the Rules of Court. 2. or the party entitled to the avails of the suit (Sec. Riano. 5. It applies not only to complaints but also to counterclaims and crossclaims. Both are ordinary civil actions and thus. the joinder may be made in said court provided the venue lies therein (Sec. ALTERNATIVE DEFENDANTS Q: What are the kinds of parties in a civil action? Q: What are the rules on splitting a single cause of action? A: 1. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims. (Sec 5. JOINDER AND MISJOINDER OF CAUSES OF ACTION Q: What is a joinder of causes of action? A: It is the assertion of as many causes of action a party may have against another in one pleading alone (Sec. JUSTICE JAIME M. Where causes of action pertain to different venues. SR. Rule 2) 2. (1999 Bar Question) Note: An action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry (Progressive Development Corporation. HERRERA. SUBJECT HEAD: ANGELI P. 000. the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and venue lies therein 4. JUANENGO. INDISPENSABLE PARTIES.” (Sec. PINEDA. 3. p. vs. Inc.. 301 SCRA 637. LANTIN. MANANQUIL. “A party may not institute more than one suit for a single cause of action. 2009 ed. Rule 2) A: 1. (Mariscal vs. Civil Procedure: A Restatement for the Bar. conflicting decisions and unnecessary vexation and harassment of defendants. MARIANO. on motion of a party or on initiative of the court. p. 5. LIM. GRETCHEN C. be severed and proceeded with separately (Sec. SHERY PAIGE A. It is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. KATRINA NADINE G. Court of Appeals. Riano. Since the action for rescission falls under the jurisdiction of the RTC. CA. The rule against splitting of a cause of action aims to avoid multiplicity of suits. it is not necessary to ask whether or not the causes of action arose out of the same transaction or series of transactions. MEMBERS: AKEMI B. the aggregate amount claimed shall be the test for jurisdiction. The joinder shall not include special civil actions governed by special rules. 108. FLORES. 5. MIJARES. REPRESENTATIVES AS PARTIES. 2009 ed. Q: Is misjoinder of causes of action a ground for dismissal? A: No. Q: Distinguish an indispensable party from a necessary party. 2. TERESE RAY-ANNE O. A: Indispensable Parties Parties in interest without whom no final determination can be Necessary Parties A necessary party is one who is not indispensable but who ought to be joined as a 22 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. PARTIES TO CIVIL ACTIONS 1. DIANE CAMILLA R.120.3. SY. 4. 4. MENDOZA. RONN ROBBY D. QUIAMBAO. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS Q: What is splitting a cause of action? A: It is the act of instituting two or more suits on the basis of the same cause of action (Sec. Rule 2). EDELISE D. A misjoined cause of action may. Civil Procedure: A Restatement for the Bar. JUDGE CESAR D. Also a joinder of causes of action is only permissive not compulsory. 311 SCRA 51) 6.UST GOLDEN NOTES 2011 5. MA.) C. Where claims in all causes of action are for recovery of money. 2 Rule 3). Rule 2. 6 Rule 2). Real parties in interest Indispensable parties Representatives as parties Necessary parties Indigent parties Pro-forma parties Q: Who is a real party in interest? A: He is the party who stands to be benefited or injured by the judgment in the suit. SUBJECT HEADS: DARRELL L. JR. BAGANG. MARA KHRISNA CHARMINA F. ROSALES . MICHAEL ANGELO V. JUSTICE OSCAR C. It is a ground for the dismissal of others.) Note: When the causes of action accrue in favor of the same plaintiff and against the same defendant. The party shall comply with the rules on joinder of parties. NECESSARY PARTIES. STAMARIA. AQUINO. BORJA. AIDA. PLATON III. ALBAÑA.

the pleader shall set forth his name. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. The failure to comply with the order for his inclusion. although a Q: What does the authority include. 19.00) pesos shall be exempt from payment of legal fees.) Note: An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. shall be deemed a waiver of the claim against such party.000. p. p. 30. 21 Rule 3) Note: Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300. The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined Note: Whenever in any pleading in which a claim is asserted a necessary party is not joined.R. Rule 141). 2001 ed. Should the court find the reason for the omission unmeritorious. 221. Rule 3) Must be joined under any and all conditions because the court cannot proceed without him (Riano. Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. Riano. Rule 3). then the application should not be denied outright. it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. (Sec. 13. the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid p.) Note: Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just.CIVIL PROCEDURE had of an action shall be joined either as plaintiffs or defendants. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. LGU of Naga. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 11. Rule 141. 219. he may join any or all of them in the alternative. then the grant of the application is mandatory. I. Oct. Civil Procedure Annotated. (Sec. not only as to the absent parties but even as to those present (Riano. p. and shall state why he is omitted.8. p. Civil Procedure: A Restatement for the Bar. if known. 224. 2009 ed. The court should order the joinder of such party and non-compliance with the said order would be a ground for the dismissal of the action (Feria. 150135. 239. (Sec. 21. the court should apply the “indigency test” under Sec. when the application does not satisfy one or both requirements. Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity. Q: May an action be prosecuted in the name of other party other than the real party in interest? A: No. Rule 3). MASACAYAN & THEENA C. 2.) No valid judgment if they are not joined Note: In the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act. 2009 ed. Note: While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing. or for a complete determination or settlement of the claim subject of the action. (Sec. instead. MARTINEZ 23 .) party if complete relief is to be accorded as to those already parties. 21. without justifiable cause. Any claim against a misjoined party may be severed and proceeded with separately. Docket fees and other lawful fees ACADEMICS CHAIR: LESTER JAY ALAN E. shelter and basic necessities for himself and his family. Rule 3 and use its sound discretion in determining the merits of the prayer for exemption (Algura v. Rule 3) Q: May a party sue the defendants in the alternative? A: Yes. Rule 3) Note: Should be joined whenever possible. it may be contested by the adverse party at any time before judgment is rendered (Sec. Vol.3 Rule 3. if one is authorized as an indigent party? A: An exemption from the payment of: 1. On the other hand. The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action.224) right to relief against one may be inconsistent with a right to relief against the other (Sec. 2006). Q: Who is an indigent party? A: He is one who has no money or property sufficient and available for food. Civil Procedure: A Restatement for the Bar. No. (Sec.7. Rule 3). Where the plaintiff is uncertain against who of several persons he is entitled to relief. G. 19. the beneficiary shall be included in the title of the case and shall be deemed to be a real party-in-interest (Sec. SABUGO & JOHN HENRY C. Q: What is the rule on indigent litigants? A: If the applicant for exemption meets the salary and property requirements under Sec. 2009 ed.

MANANQUIL. and Representatives sue or defend for the benefit of all (Sec. ASST. GR No. but they cannot sue under such name. Civil Procedure: A Restatement for the Bar p. LIM.. 236.) 4. JUSTICE JAIME M. The court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as when. SUBJECT HEAD: ANGELI P. 1987 Constitution. 3. through motion or on order of the court on its own initiative (Sec. 3.UST GOLDEN NOTES 2011 2. 2009 ed. 6. Rule 3) and allows the amendment of the complaint at any stage of the proceedings. AQUINO. YRIZ TAMIE A. 222. the rule directs a compulsory joinder of indispensable parties. G. CONTRIBUTORS: VICENTE JAN O. A. Rule 17. MARA KHRISNA CHARMINA F. SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY Q: What is the rule on suits against entities without juridical personality? A: When two or more persons not organized as an entity with juridical personality enter into a transaction. G. BAGANG. 4. MENDOZA. SHERY PAIGE A. LANTIN. (Riano. 2. BORJA. FLORES. KRISTINE P. SY. PINEDA. RONN ROBBY D. ALBAÑA. In the answer of such defendant. Inc. 152154. GRETCHEN C. June 27. 2. 3. Clearly. SUBJECT HEADS: DARRELL L. Civil Procedure: A Restatement for the Bar. 223. CA. and Joinder is not otherwise provided by the provisions of the Rules on jurisdiction and venue (Sec. Civil Procedure: A Restatement for the Bar. JUDGE CESAR D. ROSALES . 2009 ed. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES Q: When is there a compulsory joinder of parties? A: The joinder of parties becomes compulsory when the one involved is an indispensable party. Rule 3).R. III.R. KATRINA NADINE G. Rule 3) Note: The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent. CLASS SUIT Q: What is a class suit? A: It is an action where one or some of the parties may sue for the benefit of all if the requisites for said action are complied with. DIANE CAMILLA R. No. 3. but merely because the technical rules of pleadings require the presence of such party on the record.12. QUIAMBAO. Prioreschi re exemption from legal and filing fees of The Good Shepherd Foundation. (Re: Query of Mr. AIDA. 15. JUSTICE OSCAR C. Subject matter of the controversy is one of common or general interest to many persons. PLATON III.M. 2003). Roger C. 21. p. the court may order the dismissal of the case.) Q: What are the requisites of permissive joinder of parties? A: 1. 125567. TERESE RAY-ANNE O. 21. The basis for the exemption from legal and filing fees is the free access clause embodied in Sec. 5. Note: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known. DUMLAO. MISJOINDER AND NON-JOINDER OF PARTIES Q: Is the misjoinder or non-joinder of an indispensable party a ground for the dismissal of the action or annulment of judgment? A: No. the names and addresses of the persons composing said entity must all be revealed (Sec. However. he does not comply with the order of the court (Sec. among others. Rule 3. (Sec. EDELISE D. JR. Riano. 11. MA.) Q: What are its requisites? A: 1. Parties affected are so numerous that it is impracticable to bring them all before the court. Rule 3). 12 Rule 3). There is a question of law or fact common to all the plaintiffs or defendants. Art. (Riano. No. Agulia. STAMARIA. Plasabas vs. Sandiganbayan. not because such party has any real interest in the subject matter or because any relief is demanded. 09-6-9SC. (Samaniego vs. 2009) Q: Who is a pro forma party? A: One who is joined as a plaintiff or defendant. JUANENGO. No. MEMBERS: AKEMI B. Republic v. SR. HERRERA. 19. unless otherwise provided (Sec. UNICA AMOR R. Rule 3). RHONDEE E. 2009 ed. when the order of the court to implead an indispendable party goes unheeded.. Transcript of stenographic notes. MARIANO. DONNA GRAGASIN. p. they may be sued under the name by which they are generally or commonly known.. MICHAEL ANGELO V. Aug. The Rules prohibit the dismissal of a suit on the ground of non-joinder or misjoinder of parties 24 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 2000) 2. 166519. Right to relief arises out of the same transaction or series of transactions (connected with the same subject matter of the suit). 11. Parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned (Sec. July 15. MIJARES.

VENUE 1. A favorable judgment obtained by the plaintiff shall be enforced in the manner provided in the rules for prosecuting claims against the estate of a deceased person. Civil Procedure: A Restatement for the Bar. 5. EFFECT OF DEATH OF PARTY LITIGANT Q: What is the effect of the death of a party upon a pending action? A: 1. Intermediate Appellate Court. subsequent proceedings are void. ACADEMICS CHAIR: LESTER JAY ALAN E. VENUE OF ACTIONS AGAINST NON-RESIDENTS Q: Where should the action be commenced and tried if the defendant is a non-resident? A: 1. (Riano. executor or administrator. is situated (Sec. It is a ground for a motu proprio dismissal. 232. (Riano. Lim. Defendant does not reside and is not found in the Philippines: 3. Not purely personal – claim is not extinguished and the party should be substituted by his heirs. hence the venue is the residence of the plaintiff or defendant at the option of the plaintiff. p. hence the venue is the place where the real property involved or. Personal actions – shall be commenced and tried in the court of the place where the plaintiff resides b. Note: The substitute defendant need not be summoned. 2009 ed. VENUE OF REAL ACTIONS Q: What is the venue of real actions? A: The venue is local. (Sec. any portion thereof. 4. VENUE OF PERSONAL ACTIONS Q: What is the venue of personal actions? A: The venue is transitory. p. No. Unless and until the defendant objects to the venue in a motion to dismiss. 2009 ed. SABUGO & JOHN HENRY C. May be waived by: 1.) 2. (Universal Corp. 1999 Bar Question) Establishes a relation between plaintiff and defendant. 210. Defendant does not reside and is found in the Philippines: a. 154338.) If there is notice of death. or geographical area where an action is to be filed and tried. 2. because the venue although technically wrong may be acceptable to the parties for whose convenience the rules on venue have been devised. Improper venue is not one of the grounds wherein the court may dismiss an action motu proprio. Rule 3. (Sec. VENUE VERSUS JURISDICTION Q: Distinguish venue from jurisdiction. Rule 4). 195 SCRA 641) 2. (Dacuycuy vs. GR: Not a ground for a motu proprio dismissal XPN: In cases subject to summary procedure. Purely personal – the death of either of the parties extinguishes the claim and the action is dismissed. In case of minor heirs. otherwise. Stipulation of the parties. MARTINEZ 25 . Procedural May be changed by the written agreement of the parties Jurisdiction Power of the court to hear and decide a case Cannot be waived Substantive Cannot be the subject of the agreement of the parties. 2007). Action for recovery of money arising from contract and the defendant dies before entry of final judgment – it shall not be dismissed but instead shall be allowed to continue until entry of judgment. or petitioner and respondent.CIVIL PROCEDURE Question) 6. 3. G. Real actions – shall be commenced and tried in the court of the place where the property is located. the venue cannot be truly said to be improperly laid. 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Oct.R. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. Rule 4). LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. D. 3. Failure to object through a motion to dismiss or through an affirmative defense. (2006 Bar 2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. the court should await appointment of legal representative. the court may appoint a guardian ad litem for them. A: Venue The place. 20. Q: Can a complaint be dismissed by the court motu proprio based on improper venue? A: No. Establishes a relation between the court and the subject matter. MASACAYAN & THEENA C. vs. Civil Procedure: A Restatement for the Bar.

JUANENGO. G. L-58080.. made before the filing of the action. BORJA. PLATON III. MANANQUIL.4[b]. TERESE RAY-ANNE O. BAGANG. JUSTICE OSCAR C. Nov. Ramillo.R. Rule 4). 4. Dec.) 1. 205. Only 26 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. p. MICHAEL ANGELO V. 2. E. 15. HERRERA. 535 SCRA 95). Where the parties have validly agreed in writing before the filing of the action on the exclusive venue (Sec. AIDA. v. No. AQUINO. Q: When is stipulation on venue void? A: It is void and unenforceable when it is contrary to public policy (Sweet Lines v. DUMLAO. 6. G. (Sec. 1978) Note: When the action is no longer based on the agreement but on the tortuous act of sending collection telegrams despite the fact that the obligation had already been paid. MEMBERS: AKEMI B. GRETCHEN C. 10. MENDOZA. PINEDA. Complaint Counterclaim Cross-claim Third party claim Reply Answer a. 4. 5. 51. Rule 6) Note: Pleadings cannot be oral because they are clearly described as “written” statements. EFFECTS OF STIPULATIONS ON VENUE Q: What is rule on the stipulations on venue? A: The parties may agree on a specific venue which could be in a place where neither of them resides (Universal Robina Corp. JR. vs.) 6. but it may add a general prayer for such further relief as may be deemed just or equitable. Civil Procedure: A Restatement for the Bar. DONNA GRAGASIN. SR. In cases where a specific rule or law provides otherwise (e. SUBJECT HEADS: DARRELL L. 1993) Note: A stipulation that the parties agree to sue and be sued in the courts of Manila is not restrictive or exclusive to prevent the filing of the suit in the places provided for by the rules (Riano. 3. CONTRIBUTORS: VICENTE JAN O. RONN ROBBY D. with a specification of the relief sought. If the action affects the personal status of the plaintiff – the action may be commenced and tried in the court of the place where the plaintiff resides. The names and residences of the plaintiff and defendant must be stated. COMPLAINT Q: What is a complaint? A: It is a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action. 2. DIANE CAMILLA R. The parties may stipulate on the venue as long as the agreement is in writing. Rule 6) Q: What are examples of words with restrictive meanings? A: 1. PLEADINGS Q: What are pleadings? A: Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. through qualifying and restrictive words that the parties deliberately exclude causes or actions from the operation of the ordinary permissive rules on venue and that they intended contractually to designate a specific venue to the exclusion of any other court also com petent and accessible to the parties under the ordinary rules on venue of actions (Philippine Banking Corp. p. Note: A pleading alleging the plaintiff’s cause or causes of action. YRIZ TAMIE A. 6. Feb. EDELISE D. MARA KHRISNA CHARMINA F.R. 106920. MIJARES. Rule 4) Q: What makes a stipulation on venue exclusive? A: Venue is exclusive when the stipulation clearly indicates. If it involves any property of the nonresident defendant – the action may be commenced and tried where the property or any portion thereof is situated (Sec. ALBAÑA. (Zoleta v. KINDS OF PLEADINGS Q: What are the kinds of pleadings? A: 1. JUDGE CESAR D. QUIAMBAO. WHEN THE RULES ON VENUE DO NOT APPLY Q: In what instances does the rule on venue of action inapplicable? A: 1. No. SY. 1982) 5. KATRINA NADINE G. FLORES. JUSTICE JAIME M.R. KRISTINE P. Rule 4). 3.UST GOLDEN NOTES 2011 a. Lim. Civil Procedure: A Restatement for the Bar. Teves. MA.g. an action for damages arising from libel). No. 3. LIM. Solely Exclusively in this court In no other court save – Particularly Nowhere else but/except b. and exclusive. LANTIN. RHONDEE E.1. UNICA AMOR R. 19. Tensuan. 2009 ed. (Riano. 5. G. ASST. MARIANO. ROSALES . STAMARIA. (Sec. 2. 4. (Sec. 28324.. venue is no longer based on the written stipulation but at the election of the plaintiff as fixed by law. SUBJECT HEAD: ANGELI P. 3. 2009 ed. SHERY PAIGE A.

and only the qualification or modification is denied. Rule 9) Need not be answered.R. 2009 ed. namely. default Initiatory pleading.9. 1968). 4 Rule 6). 1997) Note: The filing of counterclaim gives rise to complaints. 2005 ed. 323. Civil Procedure: A Restatement for the Bar. Jan. Rule 6) (1) NEGATIVE DEFENSES (2) NEGATIVE PREGNANT (3) AFFIRMATIVE DEFENSES Q: What are the two kinds of defenses that may be set forth in the answer? A: 1. an answer to counter claim or an answer to a cross-claim (Riano. p. Rule 6) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Barred if not set up in the action (Sec. v. at the same time. 327. SABUGO & JOHN HENRY C. Rule 6). Note: An answer Is a compulsory pleading. It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. 118192. It may likewise be the response to a counterclaim or a cross-claim. ANSWER Q: What is an answer? A: It is the pleading where the defendant sets forth his affirmative or negative defenses (Sec. No. Rule 6). a negative pregnant exists. 336. I. Permissive Counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim 2. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. (Riano. 17.) A denial in a form of negative pregnant is an ambiguous pleading. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2. p. Q: What are insufficient denials or denials amounting to an admission? A: 1. Vol. 2009 ed. Remedial Law Compendium. A: Compulsory Counterclaim One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim (Sec. 23. p. No. MASACAYAN & THEENA C. (1) COMPULSORY COUNTERCLAIM (2) PERMISSIVE COUNTERCLAIM Q: Distinguish the two kinds of counterclaim. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Civil Procedure: A Restatement for the Bar.R. It is in effect an admission of the averment to which it is directed. 2009 ed. No default Not an initiatory pleading. 177. MARTINEZ 27 . 5. p. It is conceded to be actually an admission (Riano.7. It partakes of a complaint by the defendant against the plaintiff (Pro-Line Sports Inc.CIVIL PROCEDURE b.. Affirmative defenses – allegation of a new matter which while hypothetically admitting the material allegations in the pleading would nevertheless prevent or bar recovery by the claiming party. 6.330. Nee Bon Sing. 2009 ed.) A counterclaim may be asserted against an original counter-claimant and a cross-claim may also be filed against an original cross-claimant. COUNTERCLAIMS Q: What is counterclaim? A: It is any claim which a defending party may have against an opposing party (Sec. also a certificate to Need not be accompanied by a certification against forum shopping and certificate to file action ACADEMICS CHAIR: LESTER JAY ALAN E.) Note: Where a fact is alleged with some qualification or modifying language and the denial is conjunctive. (Sec. Oct. involves an affirmative implication favorable to the opposing party. G.: Otherwise. This pleading may be an answer to the complaint. It is in the nature of confession and avoidance Negative defenses – specific denial of the material facts or facts alleged in the pleading essential to establish the plaintiff’s cause of action (Sec. (Regalado. It is a form of denial which. while the fact itself is admitted. since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied (Galofa v. Civil Procedure: A Restatement for the Bar. the one filed by plaintiff by way of original complaint and the one filed by defendant by way of a counterclaim (Riano. It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Not barred even if not set up in the action Must be answered. General denial Denial in the form of a negative pregnant Q: What is negative pregnant? A: A denial which does not qualify as a specific denial. L-22018.) Must be accompanied by a certification against forum shopping and whenever required by law. p. 2. c. CA.). Civil Procedure: A Restatement for the Bar. G.

000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe. LANTIN. 2. the counterclaim may be considered compulsory regardless of the amount (Sec. Oct. compulsory or permissive is not dismissed. FLORES. PLATON III. Rule 6. Inc. GRETCHEN C. JUANENGO. Suppose that instead of alleging payment as a defense in his answer. MANANQUIL. No. 7. Rule 6) 2. not an answer. If the court grants the motion. MA.000 as damages and P30. The compulsory counterclaims are deemed waived when he filed a motion to dismiss the complaint instead of answering the same (Financial Building Corp. DIANE CAMILLA R. Aside from alleging payment as a defense. MARIANO.. ROSALES . Aug. v.R. JUDGE CESAR D. 8. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. and the court grants his motion. MENDOZA. the dismissal is without prejudice to Q: What are the requirements for a cross-claim? A: 1. What will happen to his counterclaims? A: Since Ramon filed only a motion to dismiss. AQUINO. ASST. a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. BORJA. 1970). MEMBERS: AKEMI B. it may still be set up with leave of court by amendment of the pleadings. Rule 6). DONNA GRAGASIN. Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise. G. 340. STAMARIA. UNICA AMOR R. RHONDEE E. 17. Rule 11) 3. 30. Ibid p. when the complaint is dismissed. Aug. QUIAMBAO. G. TERESE RAY-ANNE O. RONN ROBBY D. any of the grounds for dismissal under rule 16 may be pleaded as an affirmative defense in the answer. (Sec. PINEDA. HERRERA. as well as for P250. SUBJECT HEADS: DARRELL L. No. 6. Civil Procedure: A Restatement for the Bar. No. 26768. YRIZ TAMIE A. 2. Rule 17). Rule 9) XPN: If it is not asserted through oversight. EDELISE D. JR. Riano. (3) EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS DISMISSED Q: What is the effect of the dismissal of a complaint on the counterclaim? A: 1. It shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion. 7. the counterclaim. 133119. G. (2008 Bar Question) d. KATRINA NADINE G. MARA KHRISNA CHARMINA F. 2000).R. 1998) (2007 Bar Question). ALBAÑA. AIDA. SR. It must arise out of the subject matter of the complaint or of the counterclaim. MIJARES. Ramon in his answer set up counterclaims for P100. manifests his preference to have his counterclaim resolved in the same action (Sec.. KRISTINE P. Rule 17. or excusable negligence. inadvertence. CROSS-CLAIMS The court has jurisdiction to entertain both as to the amount and nature (Sec. SHERY PAIGE A. file action by the Lupong Tagapamayapa (Santo Tomas University v. JUSTICE JAIME M. (Sec. 2009 ed.000 as attorney's fees as a result of the baseless filing of the complaint.. Rule 16).2. After hearing. If no motion to dismiss has been filed. 3. LIM. CONTRIBUTORS: VICENTE JAN O. In an original action before the RTC. 28 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. p. at the same time setting up his counterclaims. SY. MICHAEL ANGELO V. the dismissal shall be limited to the complaint. and in the discretion of the court. DUMLAO.UST GOLDEN NOTES 2011 by the Lupong Tagapamayapa. 129718. BAGANG. Q: What is the effect if a cross-claim was not set up? A: GR: Barred if not set up. 17. SUBJECT HEAD: ANGELI P. and The cross-claimant is prejudiced by the claim against him by the opposing party.331) Note: A plaintiff who fails or who chooses not to answer a compulsory counterclaim may not be declared in default.) Q: Fe filed a suit for collection of P387. (Sec. 3.R. When the complaint is dismissed through the fault of the plaintiff and at a time when a counterclaim has already been set up. Forbes Park Association. Ramon filed a motion to dismiss on that ground. principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint (Gojo v.10. Goyala.000 against Ramon in the RTC of Davao City. Surla. defendant will have to file it in separate proceeding which requires payment of docket fee the right of the defendant to prosecute his counterclaim in the same or separate action (Sec. A claim by one party against a co-party. the dismissal of the complaint would also bring about the dismissal of his counterclaims but he can file a separate action for his permissive counterclaims. JUSTICE OSCAR C.

G. Insular refused to comply with the order alleging adverse claims over the garnished amounts. L-27802. etc. or unnecessary issues may be introduced. indemnity. and Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim. L-21036. MASACAYAN & THEENA C. The court’s sheriff then served a notice of garnishment to Insular over several account receivables due to Ben. is connected with the plaintiff’s claim. A third party complaint is not proper in an action for declaratory relief. 705.R. (Commissioner of Customs v.CIVIL PROCEDURE e. 143490. Whereas in bringing in new parties. REPLY Q: Is the filing of a reply necessary? A: GR: No. in respect of his opponent's claim.) party complaint? A: A third (fourth. A: A third-party complaint is proper when not one of the third-party defendants therein is a party to the main action. No. (Sec. 161647. with leave of court. etc. or. Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely abused his discretion when he issued the garnishment order despite its adverse claim on the garnished amounts. Ben is a policy holder of Insular. it also has jurisdiction over the third party complaint. for contribution. 1968). then the other necessary parties may be brought in under the rules on bringing in new parties Q: Why is leave of court necessary in third (fourth. Q: Abby obtained a favorable judgment against UNICAP for a sum of money.) PARTY COMPLAINTS Q: What is a third (fourth.). The trial court ordered Insular to release to Abby the said account receivables of Ben under the policies. etc. 26. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. f. The rights of a thirdparty claimant should be decided in a separate action to be instituted by the third person (Solidum v. Oct. 2009 ed. 1977). G. Feb. file against a person not a party to the action. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant. Since the third-party claimant is not one of the parties to the action. THIRD (FOURTH. 342. SABUGO & JOHN HENRY C. Vol. Surety & Insurance Co. 2007 ed.) -party complaint? A: To obviate delay in the resolution of the complaint such as when the third-party defendant cannot be located. Cloribel. appeal from the order denying its claim.11. COMPLAINT-IN-INTERVENTION Q: What is a complaint-in-intervention? A: An intervention pleading filed for the purpose of asserting a claim against either or all of the original parties. For failure to get full payment. The CA gave due course to the petition and annulled the order of the trial court. a defendant has no vested right to file a third party complaint (China Banking Corporation vs. etc. G.) party defendant. strictly speaking. June 30. MARTINEZ 29 . ETC. Padilla. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Riano. Central ACADEMICS CHAIR: LESTER JAY ALAN E.R no. 2006).) Q: What are the tests to determine whether the third-party complaint is in respect of plaintiff’s claim? A: 1. Abby went after UNICAP’s debtor Ben. Note: The court is vested with the discretion to allow or disallow a party to an action to implead an additional party. Whether it arises out of the same transaction on which the plaintiff’s claim is based. G. but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. (Herrera. I. No.R. Rule 6) Q: Distinguish a third-party complaint from the rules on bringing in new parties. Is the Court of Appeals correct? A: No. called the third (fourth. although arising out of another or different transaction. Note: Where the trial court has jurisdiction over the main case. June 22. 2. Thus. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a thirdparty claim. 3. or the introduction of a new and separate controversy. p. subrogation or any other relief. if one or more of the defendants in a counterclaim or cross-claim is already a party to the action.R. No. 2. 2007. he could not.) party complaint is a claim that a defending party may. g. regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action (Republic v.. CA. p.

Interventions. the title of the action. This address should not be a post office box. the allegation of usurious interest shall be deemed admitted. RHONDEE E. shall be subject to appropriate disciplinary action (Sec. 11. AIDA. pleadings need not be under oath. JUSTICE JAIME M. JUSTICE OSCAR C. Rule 7) XPNs: 1. (Sec. MARIANO. MA. the genuineness and due execution of the document shall be deemed admitted. They shall all be named in the original complaint or petition but in subsequent pleadings. TERESE RAY-ANNE O. a reply under oath pursuant to Sec. EDELISE D. 2. ASST. VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING Q: How are pleadings verified? A: It is verified by an affidavit. This affidavit declares that the: 1. Affiant has read the pleading. 2. Petition for certiorari. BORJA. Otherwise. verified or accompanied by affidavit. Allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. Where the defense in the answer is based on an actionable document. 3. YRIZ TAMIE A. No. Motion for a bill of particulars. or for reopening of trial. 3. 3. 6.) Q: What are the prohibited pleadings. Rule 7) c.UST GOLDEN NOTES 2011 Note: If a party does not file such reply. Where the answer alleges the defense of usury in which case a reply under oath should be made. However. Dilatory motions for postponement. or alleges scandalous or indecent matter therein. or any other paper. Rules on Summary Procedure. Rule 6) 3. SUBJECT HEAD: ANGELI P. JUDGE CESAR D. ROSALES . (Sec. (Sec. 9. PARTS OF A PLEADING a. QUIAMBAO. Motion for extension of time to file pleadings. DUMLAO. and the docket number if assigned. JUANENGO. 3.. 2. CAPTION Q: What should the caption contain? A: The caption sets forth the name of the court. PINEDA. 7. SY. 4. CONTRIBUTORS: VICENTE JAN O. SIGNATURE AND ADDRESS Q: What is the rule regarding the signature and address? A: The complaint must be signed by the plaintiff or counsel representing him indicating his address. All the new matters that were alleged in the answer are deemed controverted (Sec. 8 of Rule 8 must be made. Petition for relief from judgment. 2. ALBAÑA. HERRERA. RONN ROBBY D. 1. MEMBERS: AKEMI B. 10. Motion to declare the defendant in default. DONNA GRAGASIN. Complaint Compulsory counterclaim Cross-claims pleaded in the answer Answer to these pleadings (Sec. Memoranda. PLATON III. 10. UNICA AMOR R. MENDOZA. p. Counsel who deliberately files an unsigned pleading. 177. 5.M. MIJARES. 4. 8. Third-party complaints. it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. STAMARIA.. SUBJECT HEADS: DARRELL L. SR. Riano. Otherwise. 4. SHERY PAIGE A. JR. Rule 7) b. Motion for new trial. LIM. Reply. KATRINA NADINE G. 1. and 2. FLORES. MANANQUIL. Rule 7) Q: What should the title of the caption indicate? A: It should indicate the names of the parties. in its discretion. 4. Rule 7) Q: Is verification necessary in pleadings? A: No. LANTIN. or fails to promptly report to the court a change of his address. mandamus. or prohibition against any interlocutory order issued by the court. An unsigned pleading produces no legal effect. AQUINO. PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES ON SUMMARY PROCEDURE Q: What are the pleadings allowed in a summary procedure? A: 1. 2009 ed. KRISTINE P. (Sec. allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. except when otherwise specifically required by law or rule. or signs a pleading in violation of this Rule. GRETCHEN C. MICHAEL ANGELO V. 08-8-7SC) 30 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. DIANE CAMILLA R. BAGANG.14 of A. the court may. Motion to dismiss the complaint except on the ground of lack of jurisdiction. affidavits. MARA KHRISNA CHARMINA F. motions and petitions in small claims? A: 1. 12. or for reconsideration of a judgment.

Civil Procedure: A Restatement for the Bar. Inc. MASACAYAN & THEENA C. 2009 ed. no such other action or claim is pending That if there is such other pending action or claim. v. G. Appeal by certiorari from the CA to the SC 5. v. a complete statement of the present status thereof 2. Petition for change of name 19. Petition for certiorari against the judgments. 128550. 4 as amended by A. 63. Inc. Application for support pendente lite 9. G. No. Petition for relief from judgment 2. 2000). p. 2009 ed. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. (Far Eastern Shipping Co. 20. 155343. Petition for review from the RTCs to the CA 3. Mar. Rule 7). Petition for habeas corpus 18.R. prohibition. ACADEMICS CHAIR: LESTER JAY ALAN E. Q: What are the pleadings that should be verified? A: The following should be verified: 1. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Co. Feb. Q: Who executes certification against forumshopping? A: It is the plaintiff or principal party who executes the certification under oath (Sec. 1998) Q: What are the undertakings of a party under the certification against forum shopping? A: 1. G. 5. quo warranto 11. 112650. It is the plaintiff who is in the best position to know whether he or it actually filed or caused the filing of a petition. to the best of his knowledge. 1997) Q: What is the nature of the certification against non-forum shopping? A: It is a mandatory requirement in filing a complaint and other initiatory pleadings asserting a claim or relief (Sec. Oct. 5. and that the pleading is filed in good faith. Zaranta. MARTINEZ 31 . No. Petition for annulment of judgments or final orders and resolutions 6.R. It does not necessarily render the pleading defective. Hence. v.R.CIVIL PROCEDURE Q: What is the significance of verification? A: it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation. Petition for leave to sell or encumber property of an estate by a guardian 16. This rules applies as well to special civil actions since a since rules for ordinary civil action are suppletory (Riano. CA. Petition for certiorari. mandamus. (1996 Bar Question) Q: What are the effects of lack of verification? A: 1. Application for appointment of receiver 8. No. May 1. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. G. It must be signed by the party himself and cannot be signed by his counsels. Torres. Rule 7) 2. Rule 7). Cordillera Caraballo Mission. It is only a formal and not a jurisdictional requirement. 00-2-10. Petition for indirect contempt 14. Petition for review from the CTA and quasi-judicial agencies to the CA 4. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua vs. May 29. Complaint for forcible entry or unlawful detainer 13. it produces no legal effect (Sec. NLRC. 2000). Petition for the declaration of competency of a ward 17.R.M. p. G. Complaint for expropriation 12. CA.). 1. 167471. 16. tribunal. Petition for voluntary judicial dissolution of a corporation. v.) 3.R. Petition for appointment of general guardian 15. Sept. No. Riano. 2005) and noncompliance therewith does not necessarily render it fatally defective (Sarmiento v.. That the party has not commenced or filed any claim involving the same issues in any court. The requirement is a condition affecting only the form of the pleading (Benguet Corp. 5. 60. or quasi-judicial agency and. 468 SCRA 358.. No. A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading (Sec. final orders or resolutions of constitutional commissions 10. Petition for correction or cancellation of entries in Civil Registry. Complaint for injunction 7. 130068. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 2007) The absence of verification may be corrected by requiring an oath. (Digital Microwave Corp. Civil Procedure: A Restatement for the Bar. 2. 3.

JUANENGO. In all these cases. The lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. MICHAEL ANGELO V. however. 5. without prejudice to the corresponding administrative and criminal actions (Sec. DONNA GRAGASIN. Q: Is substantial compliance allowed by the courts? A: GR: No. the Court has allowed the belated filing of the certification. 2003) Q: When should the rule on forum shopping be invoked? A: GR: It should be raised at the earliest opportunity in a motion to dismiss or a similar pleading. he shall report that fact within five days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. it subsequently reinstated the petition after Uy submitted a motion to admit certification and nonforum shopping certification. ASST. v. XPN: In certain exceptional circumstances. TERESE RAY-ANNE O. CONTRIBUTORS: VICENTE JAN O. 5. (Sec. That if he should therefore learn that the same or similar action or claim has been filed or is pending. EDELISE D. MENDOZA. Q: What is the effect of non-compliance with the undertakings? A: It has the same effect as the submission of false certification. SR. Note: When the case is dismissed due to noncompliance with the certification. AQUINO. such failure shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions. QUIAMBAO. The loss of jurisdiction over the subject matter 32 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 5 Rule 7). SUBJECT HEAD: ANGELI P. the Court had dismissed Uy’s petition for lack of verification and certification against nonforum shopping. JUSTICE JAIME M. DUMLAO. Rule 7) filing of the certification 14 days before the dismissal of the petition... 5. KRISTINE P.UST GOLDEN NOTES 2011 3. Rule 7). MA. PINEDA. MEMBERS: AKEMI B. In Roadway Express. LIM. The rule is that the certificate of nonforum shopping must be signed by all the petitioners or plaintiffs in a case and the signing by only one of them is insufficient. AIDA. RHONDEE E. Rule 7) Q: What is the effect of willful and deliberate forum shopping of the party or his counsel? A: It shall be a ground for summary dismissal. DIANE CAMILLA R. Hence. the Court has also stressed that the rules on forum shopping. BAGANG. YRIZ TAMIE A. HERRERA. SUBJECT HEADS: DARRELL L. PLATON III. RONN ROBBY D. JR. This is because the requirement of strict compliance with the provisions regarding the certification of nonforum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. ROSALES . STAMARIA. which were designed to promote and facilitate the orderly administration of justice. Q: What is the effect of non-compliance with the rule on certification against forum shopping? A: It is not curable by mere amendment and shall be a cause for the dismissal of action (Sec. et al. the Court allowed the XPNs: It may be invoked in the later stages only if the violation arises from or will result in: 1. filing fees cannot be recovered. JUDGE CESAR D. SY. should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. Q: Is belated filing allowed by the courts? A: GR: No. Rule 7). (Cavile v. MARIANO. SHERY PAIGE A. Q: What is the effect of submission of a false certification? A: It shall constitute indirect contempt of court. This dismissal is with prejudice and shall constitute direct contempt as well as cause for administrative sanctions (Sec. In Uy v. the Court considered the filing of the certification one day after the filing of an election protest as substantial compliance with the requirement. GRETCHEN C. supra. FLORES. Note: Invoking it in the later stages of the proceedings or on appeal may result in the dismissal of the action which invokes forum shopping. there were special circumstances or compelling reasons that justified the relaxation of the rule requiring verification and certification on nonforum shopping. XPN: However. The rule of substantial compliance may be availed of with respect to the contents of the certification. Inc. Court of Appeals. JUSTICE OSCAR C. (245 SCRA 477 [1995]). LANTIN. UNICA AMOR R. However. MANANQUIL. Court of Appeals. MARA KHRISNA CHARMINA F. 448 Phil 302. BORJA. LandBank. ALBAÑA. In Loyola v. et al.5. MIJARES. Heirs of Clarita Cavile. It does not thereby interdict substantial compliance with its provisions under justifiable circumstances. (264 SCRA 696 [1996]). KATRINA NADINE G.

That to the best of his knowledge. 70. ALLEGATIONS IN A PLEADING a. d. who. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Mayor Miguel must necessarily be the one to sign the certification against forum-shopping. G. filed an action against RD Corporation for the annulment of the deed of absolute sale over several real properties of City of Koronadal alleging irregularities thereto with the RTC. information and belief there is good ground to support it. This person may be a lawyer of a corporation. Is the certification against forum shopping valid? If not. (Sec.CIVIL PROCEDURE 2. who has the authority to file suits for the recovery of funds and property on behalf of the city even without the prior authorization from the Sanggunian. Court of Appeals. G.) Q: What is the rule on conditions precedent? A: When a claim is subject to a condition precedent. Civil Procedure: A Restatement for the Bar. 2006). MANNER OF MAKING ALLEGATIONS Q: What is the rule when making a pleading? A: Every pleading shall contain in a methodical and logical form a plain. Otherwise it will be a ground for dismissal ACADEMICS CHAIR: LESTER JAY ALAN E. CA. and 3. Q: Mayor Miguel. No. 97. how may it be cured? A: No. Mayor Miguel had the authority to institute the action against RD Corporation. The said deed of absolute sale was authorized by Mayor Miguel’s predecessor. p. G. The RTC dismissed the petition because the certification against forum shopping was signed by the City Legal Officer of City of Koronadal and not by Mayor Miguel.143464. FASAP.) Q: Corporation XYZ is the petitioner in a civil case. The pendency of another action between the same parties for the same cause Barring of the action by a prior judgment The Statute of Limitations has been crossed (Young v. Jan.R. No. 2. 1. MARTINEZ 33 . despite being an official of the City. Riano. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2009 ed. p. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. (Riano. Alexander. No. EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING Q: What is the effect of lawyer’s signature? A: The signature of counsel constitutes: 1. (Sec. Civil Procedure: A Restatement for the Bar. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Mayor de Jesus. 24. 376 SCRA 144) (1) CONDITION PRECEDENT Q: What is condition precedent? A: It refers to matters which must be complied with before a cause of action arises. SABUGO & JOHN HENRY C. A proof of said authority must be attached with the certification (PAL v. was merely its counsel and not a party to the case (City of Caloocan v. 145004. MASACAYAN & THEENA C. may be executed by properly authorized person. Rule 7) 4. the compliance of the same must be alleged in the pleading. the certification against forum shopping should be signed by its duly authorized director or representative. 4. and not the City Legal Officer. signed the certification against forum shopping in behalf of said corporation without presenting any proof of authority from the corporation. That it is not interposed for delay. omitting the statement of mere evidentiary facts. 143088. When the petitioner in a case is a corporation. Is the RTC correct? A: Yes. A certificate by him that he has read the pleadings. CA. Here. However. being the proper party to file such suits. not the City Legal Officer. Keng Seng. such may be signed by the authorized lawyer (National Steel Corporation vs. (1) REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING Q: What is the rule when the plaintiff is a juridical person? A: The certification against forum shopping where the plaintiff is a juridical entity like a corporation. 2006). 3. concise and direct statement of the ultimate facts. (Ceroferr Realty Corporation vs. 2003). 3.R. The authorized director or representative of the corporation should be vested with authority by a valid board resolution. May 3.R. Mayor of City Koronadal. Rule 6) Q: What are Ultimate facts? A: They refer to the essential facts of the claim. president of corporation XYZ. 5. It is the mayor. 388 SCRA 85. 2009 ed. Mar.

UNICA AMOR R. 28. p. the contents of the document annexed are controlling. 2009 ed. MEMBERS: AKEMI B. and etc (Riano.) Note: This manner of pleading a document applies only to an actionable document. 2009 ed. (Araneta. 98. intent. TERESE RAY-ANNE O. Such as tender of payment before consignation. L10232. JUDGE CESAR D. i.UST GOLDEN NOTES 2011 for failure to state a cause of action. Riano. (1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS Q: What is the effect of failure to make specific denial? A: Material averments except as to the amount of unliquidated damages. Partial denial – defendant denies only a part of an averment. DIANE CAMILLA R. INTENT. BAGANG. FLORES. ASST. RONN ROBBY D. it is likewise sufficient to allege that the act was done also in compliance with law (Sec. PLEADING AN ACTIONABLE DOCUMENT Q: What is an actionable document? A: Referred to as the document relied upon by either the plaintiff and the defendant. shall set forth the substance of the matters upon which he relies to support his denial.). Civil Procedure: A Restatement for the Bar. JR. OFFICIAL DOCUMENTS OR ACTS Q: What is the rule in making averments of fraud or mistake? A: The circumstances constituting such fraud or mistake must be stated with particularity (Sec. STAMARIA. YRIZ TAMIE A. However. In this kind he shall specify so much of it as is true and material and shall deny only the remainder. place. Disavowal of knowledge – defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint. GRETCHEN C. Rule 8). MARA KHRISNA CHARMINA F. there is no more triable issue between the parties and if the admissions appear in the answer of the defendant. SY. AQUINO..9. CONTRIBUTORS: VICENTE JAN O. EDELISE D. Q: What is the rule in making averments of malice. LANTIN. 97. JUDGMENTS. JUSTICE JAIME M. With respect to an act. not specifically denied are deemed admitted. Civil Procedure: A Restatement for the Bar. National Development Co. (2) FRAUD.R. p.. Inc.g. Q: What is the rule in pleading an official document or act? A: It is sufficient to aver that the document was issued in compliance with law. RHONDEE E. JUSTICE OSCAR C. Civil Procedure: A Restatement for the Bar. 2009 ed. AIDA. Feb. Note: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant the dismissal of the action (Convets. G. SHERY PAIGE A.5. the plaintiff may file a motion for judgment on the pleadings under Rule 34 (Riano. The substance of such document in the pleading and attaching said document thereto as an exhibit 2. SPECIFIC DENIALS Q: What are the kinds of specific denial? A: 1. SUBJECT HEADS: DARRELL L. KATRINA NADINE G. MALICE. knowledge or other conditions of the mind of a person? A: The circumstances constituting such may be averred generally (Sec. Lyric Factor Exchange. 324.e. MA. No. Civil Procedure: A Restatement for the Bar. Hence. Said document verbatim in the pleading (Sec. 58 Phil 736) E. SUBJECT HEAD: ANGELI P.). Rule 8).. 101. MISTAKE. vs. 2009 ed. one which is the basis of an action or a defense. Rule 8). prior resort to barangay conciliation when necessary. p. Rule 8.) 34 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MIJARES.102) Q: How are actionable documents pleaded? A: By setting forth: 1. PLATON III. LIM. Inc. KRISTINE P. 7. Absolute denial – defendant specifies each material allegation of fact the truth of which he does not admit and. DONNA GRAGASIN. (Riano. MICHAEL ANGELO V. KNOWLEDGE AND OTHER CONDITION OF THE MIND. p. 3. p. ROSALES . MARIANO. it need not be pleaded strictly in the manner prescribed by the rules (Ibid p. 2. These particulars would necessarily include the time. 1958). if a document does not have the character of an actionable document. A promissory note in an action for collection of a sum of money. 5. The complaint must state with particularity the fraudulent acts of the adverse party. BORJA. 2009 ed. PINEDA. and specific acts of fraud committed against him (Riano. 98. If the allegations are deemed admitted. c. v. Inc. MENDOZA. QUIAMBAO.. SR. b. Civil Procedure: A Restatement for the Bar.). DUMLAO. HERRERA. whenever practicable. JUANENGO. MANANQUIL. ALBAÑA.

Rule 9]. 11. (Riano. b. L21450. Defendant filed an answer to the court but failed to serve the plaintiff a copy as required by the Rules. 1968): 1. c. RELIEF FROM AN ORDER OF DEFAULT Q: What are the reliefs from an order of default? A: 1. he is nevertheless entitled to notices of subsequent proceedings [Sec. XPN: If the compulsory counterclaim or crossclaim is an after-acquired counterclaim. Leave of court is necessary (Sec. MARTINEZ 35 . declare the defending party in default (Sec. such claim matured after filing of the answer. 2005 ed. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 3. Rule 9]. Rule 9). 3. and Statute of limitations (Sec. EFFECT OF AN ORDER OF DEFAULT Q: What are the effects of an order of default? 2. and A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims (Monarch Insurance v. and 3. Lack of jurisdiction over the subject matter. 2. p. or excusable neglect or when justice requires may be set up by amendment before judgment. 92735. 3 (a).) Q: In what situations where declaration of default is proper? A: It is proper in 3 situations: 1. 507. inadvertence. June 8. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. The party declared in default loses his standing in court. 6. Rule 11). Rule 9) A: 1. not as a party but as a witness. FAILURE TO PLEAD DEFENSES AND OBJECTIONS Q: May defenses not pleaded in a motion to dismiss or in the answer still be raised? A: GR: No. 3(a). After notice of order and before judgment – The defendant must file a verified motion to set aside the order of default upon proper showing that: ACADEMICS CHAIR: LESTER JAY ALAN E. Defendant filed an answer or responsive pleading but beyond the reglementary period. 10. EFFECT OF FAILURE TO PLEAD a. Rule 9. Sibonghanoy. Rule 8) 2. Apr. Litis pendentia. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. and proof of such failure. 9. Note: It may however. Note: Counterclaims or cross-claims omitted through oversight. FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND CROSS-CLAIM 2. While the defendant can no longer take part in the trial. 2. It is submitted that he may participate in the trial. G.CIVIL PROCEDURE (2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH Q: When is a specific denial must be coupled with an oath? A: 1.R. G. that is. the court shall upon motion of the claiming party with notice to the defending party. No. XPNs: These defenses may be raised at any stage of the proceedings even for the first time on appeal (Tijam v. be barred by laches. 15. Q: May a compulsory counterclaim or cross-claim not set up in the answer still be raised subsequently? A: GR: A compulsory counterclaim or cross-claim not set up in the answer is deemed barred (Sec. Rule 8) 5. Rules of Court). it may be pleaded by filing an amended answer or a supplemental answer or pleading (Sec. 3. DEFAULT a. Rule 11). A denial of an actionable document (Sec. SABUGO & JOHN HENRY C. 8. 4. 2000).R. Defendant did not file any answer or responsive pleading despite valid service of summons. The loss of such standing prevents him from taking part in the trial [Sec. Res judicata. CA. DECLARATION OF DEFAULT Q: When is a declaration of default proper? A: If the defending party fails to answer within the time allowed therefor. A denial of allegations of usury in a complaint to recover usurious interest (Sec. No. 1. MASACAYAN & THEENA C. b. they are deemed waived.

offer of judgment or similar papers shall be filed with the court. LANTIN.UST GOLDEN NOTES 2011 a. 3. JR. b. 2. service upon him shall be made upon his counsel or one of them. KRISTINE P. STAMARIA. pleading subsequent to the complaint. Rule 9]. resolution. Rule 13) Q: What is service? A: It is the act of providing a party with a copy of the pleading or paper concerned. LIM. AQUINO. 1992) (2006. MIJARES. written motion. Declaration of nullity of marriage and legal separation [Sec. XPN: Where the defense is personal to the one who answered. 3(b). 83888. DONNA GRAGASIN. SR. 12. However. 2. No. it will not benefit those who did not answer e. the court can be considered to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records. 2. G. JUANENGO. ACTIONS WHERE DEFAULT ARE NOT ALLOWED Q: When is default not allowed? A: 1. b. order. the period of prescription continues to run. Sept. 4. SY. EXTENT OF RELIEF Q: What is the extent of relief? A: The judgment shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages [Sec. CONTRIBUTORS: VICENTE JAN O. Feb. GRETCHEN C. He may also appeal from the judgment as being contrary to the evidence or the law (Talsan Enterprises. SUBJECT HEADS: DARRELL L. No. Answer to an original complaint 36 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 12. MEMBERS: AKEMI B. PERIODS OF FILING OF PLEADINGS Q. TERESE RAY-ANNE O. (Sec. 83888. unliquidated damages may be awarded based on such.R. JUDGE CESAR D. and In special civil actions of certiorari. FLORES. 2. HERRERA. If any party has appeared by counsel. 1998 Bar Question) Where the defendant has however. (Sec. MARA KHRISNA CHARMINA F. accident. Actions for annulment. JUSTICE JAIME M. v. G. demand.. Q: What is the effect of partial default? A: GR: The court will try the case against all defendants upon the answer of some. 3(e). Feb. BAGANG. FILING VERSUS SERVICE OF PLEADINGS Q: What is filing? 3. QUIAMBAO. EDELISE D. (1995 Bar Question) e. 1992) d. When should a responsive pleading be filed? A: Periods for Filing an Answer Within 15 days after service of summons. JUSTICE OSCAR C. been wrongly or improvidently declared in default. he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. if the proper docket fee is not paid. KATRINA NADINE G. A: It is the act of presenting the pleading or other paper to the clerk of court. MARIANO. ASST. notice.. 11. Rule 13) a. [Sec. prohibition and mandamus where comment instead of an answer is required to be filed. Justices of the CA. G. 2009) After the judgment becomes final and executory – he may file a petition for relief from judgment under Rule 38 (Balangcad v. PAYMENT OF DOCKET FEES Q: What is the significance of paying the docket fees? A: A complaint is not considered filed unless the proper amount of the docket fee is paid. DIANE CAMILLA R.R.R. FILING AND SERVICE OF PLEADINGS Q: What papers are required to be filed and served? A: Every judgment. PINEDA. (Sec. Thus. Rule 9]. Inc. MENDOZA. ROSALES . After judgment and before judgment becomes final and executory – He may file a motion for new trial under Rule 37. UNICA AMOR R. MANANQUIL. Rule 13) c.. SHERY PAIGE A. No. RONN ROBBY D. SUBJECT HEAD: ANGELI P. MICHAEL ANGELO V. BORJA. forgery. His failure to answer was due to fraud. mistake or excusable negligence. DUMLAO. and served upon the parties affected. Rule 9] (2000 & 1999 Bar Question) f. unless service upon the party himself is ordered by the court. RHONDEE E. in which case. Justices of the CA. EFFECT OF A PARTIAL DEFAULT 7. PLATON III. YRIZ TAMIE A.g. ALBAÑA. and That he has a meritorious defense. 169919. Inc. appearance. AIDA. Baliwag Transit. 3(d). MA.4. if the court orders submission of evidence.

A. Rule 11) 3. By depositing the copy in the post office in a sealed envelope. Within the time specified in the order which shall not be less than 60 days after notice (Sec.6. The court may also.CIVIL PROCEDURE unless a different period is fixed by the court (Sec. plainly indicated as such. with postage fully prepaid. By presenting the original copies thereof. Note: Filing by mail should be through the registry service which is made by deposit of the pleading in the post office.5[b]. or if his office is unknown. I. Service by registered mail (Sec. 00-8-10-SC 2000-11-21) Within 15 days after service of summons to said agent or officer (Sec. 3. or Leaving the copy between 8 a. 8. allow an answer or other pleading to be filed after the time fixed by these Rules. 3. personally to the clerk of court. Rule 11) Like an original defendant – 15. Regalado. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. plainly addressed to the party or his counsel at his office. 15. 60 days as the case may be (Sec. SABUGO & JOHN HENRY C. (Sec. 15. if known. Rule 13). Rule 14) Within 15 days from service of amended complaint (Sec. Rule 2. 6. in relation to Sec. 30. at the party’s or counsel’s residence. MODES OF SERVICE Q: What are the modes of service? A: 1. if known. if known. or By sending them through registered mail (Sec. 5. (Summons to be served to SEC which will then send a copy by registered mail within 10 days to the home office of the foreign private corporation) Service of summons by publication 2. Rule 14) Not be less than 60 days after notice (Sec. 7.M. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. or Substituted service (Sec. 212. with a person of sufficient age and discretion residing therein if no person found in his office.m. p. Personal service (Sec. Rule 11) Within 10 days from service (Sec. A. and 6 p. and not through other means of transmission. NO. Rule 13) Defendant is a foreign private juridical entity and has a resident agent Defendant is a foreign private juridical entity and has no resident agent but has an agent / officer in the Philippines Defendant is a foreign private juridical entity and has no resident agent nor agent/ officer.11. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof. Rule 13). MARTINEZ 37 .5[a]. 3. 3. Rule 13). otherwise at his residence. NO. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 2. and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered. in relation to Sec. 2.M. 2.) Within 10 days from notice of order admitting the same unless a different period is fixed by the court (Sec. 1. Rule 13). Vol. 6.) party complaint Q: How is personal service done? A: By: 1.m. 2005 ed.6. upon like terms. etc. the court may extend the time to plead provided in these Rules. e. 00-8-10-SC 2000-11-21) Within 30 days after receipt of summons by the home office of the foreign private entity d. (1) PERSONAL SERVICE Non-resident defendant to whom extraterritorial service of summons is made Answer to amended complaint (Matter of right)* Answer to amended complaint (Not a matter of right)* Counterclaim or crossclaim Third (fourth. 4. Rule 11). MANNER OF FILING Q: What are the modes of filing? A: 1. 7. Rule 11) Within 10 days counted from notice of the court order admitting the same (Sec. or if he has no office (Sec. Rule 11) ACADEMICS CHAIR: LESTER JAY ALAN E. or Note: Upon motion and on such terms as may be just. Within 15 days after service of summons (Sec. Delivering personally a copy to the party or his counsel. MASACAYAN & THEENA C. (2) SERVICE BY MAIL Supplemental complaint Q: How is service by mail done? A: 1.

Service by registered mail – upon actual receipt by the addressee. 8. or in lieu 38 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. if party is summoned by publication and has failed to appear in the action (Sec. 3. 10. JR. MARA KHRISNA CHARMINA F. JUSTICE OSCAR C. SY. Proof of service by ordinary mail: a. Proof of personal service: a. GRETCHEN C. the office and place of residence of the party or his counsel being unknown.. ALBAÑA. resolutions. service may be made by delivering the copy to the clerk of court. UNICA AMOR R. 9. Affidavit of mailer showing compliance of Sec. (4) SERVICE OF JUDGMENTS. HERRERA. SUBJECT HEADS: DARRELL L. SHERY PAIGE A. Rule 13). 7. (5) PRIORITIES IN MODES OF SERVICE AND FILING Q: What are the priorities in modes of service and filing? A: 1. JUANENGO. Rule 13) Registered mail: a. YRIZ TAMIE A. Rule 13) Q: What are the proofs of service? A: GR: Whenever practicable. MICHAEL ANGELO V. whichever date is earlier (Sec. If filed by registered mail – proved by the registry receipt and the affidavit of the person who did the mailing with a full statement of: a. (6) WHEN SERVICE IS DEEMED COMPLETE Q: When is service deemed complete? A: 1. BAGANG. 3. and c. Official return of the server or c. Rule 13) 2. STAMARIA. 2. Personal service. orders and other papers cannot be made under the two preceding sections. place and manner of service. Rule 13. the service and filing shall be done personally.UST GOLDEN NOTES 2011 2. DONNA GRAGASIN. 8. MA. MEMBERS: AKEMI B. SUBJECT HEAD: ANGELI P. KRISTINE P. Registered mail. Affidavit. MANANQUIL. MARIANO. 11. ROSALES . AIDA. 3. notices. or Publication. Registry receipt issued by the mailing office. With postage fully paid. FINAL ORDERS OR RESOLUTIONS Q: How is service of judgment of final orders or resolutions done? A: By: 1. MENDOZA. and: 1.. AQUINO. A: If service of pleadings. MIJARES. (Sec. Rule 13). Note: The registry return card shall be filed immediately upon its receipt by the sender. and b. a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally (Sec. (3) SUBSTITUTED SERVICE Q: How and when is substituted service made? 4. service may be done by ordinary mail (Sec. or b. FLORES. Registry receipt issued by the mailing officer (Sec. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court. KATRINA NADINE G. with proof of failure of both personal service and service by mail (Sec. Rule 13) Note: No substituted service. or 2. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered. b. containing the date. LANTIN. DUMLAO. Service by ordinary mail – upon expiration of 10 days after mailing. RHONDEE E. motions. 11. CONTRIBUTORS: VICENTE JAN O. Note: A violation of this rule may be cause to consider the paper as not filed (Sec. Rule 13). XPN: If it is not in the record. Written Admission of the party served. JUDGE CESAR D. 12. 13. JUSTICE JAIME M. 2. or 5 days from the date he received the first notice of the postmaster. Substituted service – at the time of such delivery (Sec. 7. EDELISE D. TERESE RAY-ANNE O. XPN: With respect to papers emanating from the court. SR. LIM. Rule 13). PLATON III. RONN ROBBY D. ASST. DIANE CAMILLA R. BORJA. PINEDA. (7) PROOF OF FILING AND SERVICE Q: What are the proofs of filing? A: GR: Filing is proven by its existence in the record of the case. Personal service – upon actual delivery. QUIAMBAO. If no registry service is available in the locality of either the sender or the addressee. If filed personally – proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same. unless the court otherwise provides. Affidavit of the party serving. and b. Rule 13).

Adding or striking out an allegation or the name of any party. Note: A motion to dismiss is not a responsive pleading and its filing does not preclude the exercise of the plaintiff’s right to amend his complaint. p. 2. Rule 10). 4. Always with leave of court b. Rule 10). I. at any time within ten (10) days after it is served (Sec. Amendment must be appropriately marked. and only of its pendency against the parties designated by their real names.14. AMENDMENTS BY LEAVE OF COURT Q: When is leave of court required? A: 1. Feb. 132753. FORMAL AMENDMENT Q: What is the rule on formal amendments? A: A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action. the plaintiff and the defendant. Rule 10). Note: Only from the time of filing such notice for record shall a purchaser.. Amendment may also be made to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings. Rule 10) 1. 1960) Q: What is a notice of lis pendens? A: In an action affecting the title or the right of possession of real property. 2009 ed. No. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. If the amendment is substantial (Sec. (Arranz vs. or Correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect (Sec. Rule 13) Note: Plaintiff may amend his complaint even if the same was dismissed on motion of the defendant provided that the dismissal order is not yet final. p. 3. DIFFERENT FROM SUPPLEMENTAL PLEADINGS Q: Distinguish an amended pleading from a supplemental pleading. may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. A: Amended Pleading Refer to the facts existing at the time of filing of original pleading Supersedes the original May be amended without leave of court before a responsive pleading is filed. 15. and A responsive pleading had already been served (Siasoco v. be deemed to have constructive notice of the pendency of the action. 1999) (1994 Bar Question) There is no such requirement in supplemental pleadings (Herrera. MARTINEZ 39 .R. 5. at its initiative or on motion. Merely supplements the original pleading. 2.. (Sec. L128441. AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE Q: When may amendment be made to conform to or authorize presentation of evidence? A: 8. MASACAYAN & THEENA C. Vol. a. provided no prejudice is caused thereby to the adverse party (Sec. Supplemental Pleading Refers to facts occurring after the filing of the original pleading. Rule 13) c. AMENDMENT AS A MATTER OF RIGHT Q: When is amendment considered as a matter of right? A: It is considered as a matter of right at any time before a responsive pleading is served or. Note: Failure to amend does not affect the result of the trial of said issue. Rule 10). or encumbrancer of the property affected thereby. 13. 1. if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby (Sec. AMENDMENT Q: How are pleadings amended? A: By: 1. e. in the case of a reply. d. SABUGO & JOHN HENRY C. (Riano. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. ACADEMICS CHAIR: LESTER JAY ALAN E.CIVIL PROCEDURE thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. When issues not raised by the pleadings are tried with the express or implied consent of the parties. Manila Surety and Fidelity Co. 2. CA. June 30. 246. G. 854. Inc. when affirmative relief is claimed in his answer. (Sec. 2.

427 . La Naval Drug Corp.) Q: What are the purposes of summons? A: 1. MICHAEL ANGELO V. VOLUNTARY APPEARANCE Q: What is the effect of voluntary appearance before the court? Explain. The impossibility of service of summons in person within a reasonable time. p. No. SR. PERSONAL SERVICE Q: When is personal service of summons proper? A: Only if the suit is one strictly in personam. 29.R. Service upon a person of sufficient age and discretion in the same place as the defendant or some competent person in charge of his office or regular place of business (Sabio. Court of Appeals.) 5. by tendering the copy of the summons to him (Sec. No. admissions in the superseded pleading can still be received in evidence against the pleader. Hamilton vs.. XPN: Special appearance in court to challenge its jurisdiction over the person of the defendant and the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary appearance (Sec. p. CONSTRUCTIVE SERVICE (BY PUBLICATION) Q: Is leave of court required in constructive service of summons? A: This service always requires permission of the court. DONNA GRAGASIN. for substituted service of summons to be valid. No. Aug. AQUINO. Rule 14). 2000). KRISTINE P. 2. 2. MARA KHRISNA CHARMINA F. G. NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM. PLATON III. 411 . Jr. 423 . 40 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. ALBAÑA. SUBJECT HEAD: ANGELI P. 8. MANANQUIL. or if he refuses to receive it. SUBJECT HEADS: DARRELL L. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived (Sec. Rule 10). 1994). 2004). F.R. FLORES. ROSALES . JUANENGO. Aug. G. The service of summons must be made by service in person on the defendant. 2. BORJA. and that unless he so answers.) Note: Voluntary appearance cures the defect in the service of summons. 2. v. DUMLAO. No. Sabio. and 3. TERESE RAY-ANNE O. MIJARES. GRETCHEN C. 103200. To acquire jurisdiction over the person of the defendant. 140244. 20. IN REM AND QUASI IN REM Q: What is the nature of summons? A: It is the writ by which the defendant is notified of the action brought against him (Gomez vs. March 10. YRIZ TAMIE A. 127692. 127692. JR. 3. EDELISE D. PINEDA. 31. Mar. However. G.UST GOLDEN NOTES 2011 2007 ed. MEMBERS: AKEMI B. f.. CONTRIBUTORS: VICENTE JAN O. plaintiff will take judgment by default and may be granted the relief applied for (Sec.) 4. G. An important part of that notice is a direction to the defendant that he must answer the complaint within a specified period.R. ASST. Jr. DIANE CAMILLA R. p. AIDA. SHERY PAIGE A.R. 2005 ed. Rule 14). 10. 20. HERRERA. 2005 ed. A: GR: The defendant’s voluntary appearance shall be equivalent to service of summons and the consequent submission of one’s person to the jurisdiction of the court (Sec. STAMARIA. EFFECT OF AMENDED PLEADING Q: What is the effect of an amended pleading? A: An amended pleading supersedes the pleading it amends. MENDOZA. To give notice to the defendant that an action has been commenced against him (Umandap v. LANTIN. The efforts exerted to locate the person to be served. SY. and b. JUSTICE JAIME M. RONN ROBBY D. LIM. 2004). RHONDEE E. November 15. 2000) Actions in rem and quasi in rem – not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez v. 339 SCRA 243 [2000]. Rule 15. CA. it is necessary to establish the following: 1. 139283. BAGANG. (Riano. JUSTICE OSCAR C. MA. JUDGE CESAR D. Actions in personam a. MARIANO. This is effected by handing a copy of the summons to the defendant in person. Levy. 6. UNICA AMOR R. (Riano. SUBSTITUTED SERVICE Q: When is substituted service of summons proper? A: In our jurisdiction.. G. KATRINA NADINE G.R. QUIAMBAO. SUMMONS 1. CA. Rule 14). 2005 ed.. (Riano. No.

Q: How is proof of service by publication done? 2. Rule 14). SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES Q: When is constructive service of summons proper? A: 1. 432 . An action that relates to.CIVIL PROCEDURE a. but who is temporarily out of it. ACADEMICS CHAIR: LESTER JAY ALAN E. 14. An action in which the relief demanded consists. 4. 439-440. p. by any other manner the court may deem sufficient. in excluding the defendant from any interest therein. SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN b. the action commenced against him must be any of the following: 1. business or advertising manager. MOTIONS 1. 2. An action that affects the personal status of the plaintiff. Rule 14) Q: How is service of summons upon minors made? A: Service shall be made upon him personally and on his legal guardian if he has one. (Sec. and date of service. In addition. or the subject of which is the property within the Philippines in which the defendant has or claims a lien or interest.) 7. extraterritorial service is permissible with leave of court and may be effected by personal service. An action where the property of the defendant has been attached in the Philippines. 9. 19. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 10. (Riano. or if none. Rule 14 allows service of summons by publication in a newspaper of general circulation and in such places and for such time as the court may order. Sec. actual or contingent. (Riano. Service upon a defendant where his identity is unknown or where his whereabouts are unknown. G. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. shall specify any papers which have been served with the same. service may. 2005 ed. DEFINITION OF A MOTION Q: What is a motion? A: It is an application for relief other than by a pleading. 16. 6. Rule 15) 3. EXTRA-TERRITORIAL SERVICE. Affidavit of the printer. Affidavit showing the deposit of a copy of the summons and order for publication in the post office (Sec. p. Rule 14). his foreman or principal clerk. When the defendant is designated as an unknown and cannot be ascertained by diligent inquiry. 2005 ed. service may also be made on his father or mother. 1. be also effected out of the Philippines (Sec. place.) Service upon residents temporarily outside the Philippines. (Sec. (Sec. PROOF OF SERVICE Q: How is proof of service done? A: It shall be made in writing by the server and shall set forth the manner. Rule 14) 8. In the case of a minor. and shall be sworn to when made by a person other than a sheriff or his deputy (Sec 18. upon his guardian ad litem whose appointment shall be applied for by the plaintiff. MASACAYAN & THEENA C. Rule 14). MARTINEZ 41 . MOTIONS IN GENERAL a. summons by publication or A: It is done through the following: 1. to which affidavit a copy of the publication shall be attached. SERVICE UPON PRISONERS AND MINORS Q: How is service of summons upon prisoner made? A: Service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. by leave of court. wholly or in part. Note: In any of the above instances. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. WHEN ALLOWED Q: When is extra-territorial service of summons allowed? A: The defendant must be a non-resident defendant who is at the same time not found in the Philippines at the time summons is to be served. SABUGO & JOHN HENRY C. and 2. When any action is commenced against a defendant who ordinarily resides within the Philippines.

SY. MOTIONS VERSUS PLEADINGS Q: What is the rule on hearing of motions? Q: Distinguish a motion from a pleading. summary judgment. 2003). DUMLAO. No. JUANENGO. and without notice to or contestation by any party adversely affected (Regalado.. 8. Note: Failure to comply with the mandatory requirements of the rule regarding notice of hearing is pro forma and presents no question which merits the attention of the court (Bacelonia v. GR: Every written motion shall be set for hearing by the applicant. SUBJECT HEAD: ANGELI P. A: A: A pleading is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 2. 2. Litis pendentia. and 4. 1. MANANQUIL. XPN: Those made in open court or in the course of hearing or trial (Sec. Remedial Law Compendium. counterclaim. 2. G. v. DIANE CAMILLA R. MARA KHRISNA CHARMINA F. MA. order. RHONDEE E. Rule 6). 3. cross-claim. G. It may be in the form of a complaint. BAGANG. CONTENTS AND FORMS OF MOTIONS Q: Should a motion be in writing? A: GR: Yes. Rule 15) Q: May a motion pray for judgment? A: GR: No. Judgment on demurrer to evidence. Rule 15). JUSTICE JAIME M. otherwise. third-party complaint. 2. SUBJECT HEADS: DARRELL L. KATRINA NADINE G. ASST. XPN: Motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 1995). ALBAÑA. 2. OMNIBUS MOTION RULE Q: What is the Omnibus Motion Rule? A: GR: All available grounds for objection in attacking a pleading. A motion on the other hand is an application for relief other than a pleading(Sec. UNICA AMOR R. CA. LITIGATED AND EX-PARTE MOTIONS Q: What is a litigated motion? A: It is a motion which affects the substantial rights of the parties. AQUINO. Q: What are the contents of a motion? A: The contents of a motion are: 1. PINEDA.) g. DONNA GRAGASIN. JUDGE CESAR D.R. SR. QUIAMBAO. EDELISE D. XPN: The court may dismiss the case motu proprio based on: 1. MICHAEL ANGELO V. Lack of jurisdiction over the subject matter. LANTIN. Dec. MENDOZA.. c. judgment. Q: What is an ex-parte motion? A: It is taken or granted at the instance and for the benefit of one party. HERRERA. or 3. the ground upon which it is based. Rule 9) f. or proceeding should be invoked at one time. GRETCHEN C. and 3. YRIZ TAMIE A. they shall be deemed waived (Sec. e. 5. JR. ROSALES . p. JUSTICE OSCAR C. NOTICE OF HEARING AND HEARING OF MOTIONS Q: What shall the notice of hearing specify? A: It shall specify the time and date of the hearing which shall not be later than ten (10) days after the filing of the motion and it shall be addressed to the parties concerned (Sec. XPN: Motion for: 1. STAMARIA. 42 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Rule 15). Rule 6).UST GOLDEN NOTES 2011 b. A hearing is required. PLATON III. 2009 ed. Rule 15). 110801. shall be accompanied by supporting affidavits and other papers. Rule 15).R. CONTRIBUTORS: VICENTE JAN O. d. judgment on the pleadings. 1. Flojo. if required by the Rules or necessary to prove facts alleged therein. 11. Feb. 264. No. TERESE RAY-ANNE O. FLORES. or complaint-in-intervention. 4. (Sec. Barred by statute of limitations (Sec. MARIANO. AIDA. KRISTINE P. 1. MEMBERS: AKEMI B. 8. LIM. the relief sought to be obtained. SHERY PAIGE A. BORJA. RONN ROBBY D. 143440. Rule 15).. Res judicata. answer or reply (Sec. 3. PRO-FORMA MOTIONS Q: What is a pro-forma motion? A: It is that which does not comply with the rules on motion and is considered as one filed merely to delay the proceedings (Marikina Development Corp. MIJARES.

SABUGO & JOHN HENRY C. Sec. 2.R. 2. 3. 28. 3. c. can the trial judge dismiss the case if the plaintiff does not comply with the order? A: 1. If the entire complaint is ambiguous.CIVIL PROCEDURE 2. Deny it. Q: What is the effect of non-compliance with the order of a bill of particulars? A: 1. the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion. 2. 4. The court is not mandated to conduct a hearing. such is striken out and there is no more case. it must be effected within ten (10) days from notice of the order. the motion must be filed within 10 days from service thereof (Sec. Rule 12). Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? 2. May order the striking out of the pleading or the portion thereof to which the order is directed. Galeon. 5. Make such order as it may deem just (Sec. or b. or after notice of denial of his motion. Rule 12 authorizes the court to either deny or grant said motion outright or allow the parties an opportunity to be heard. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Rule 17. 1. 3. or 3. However. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 3. Rule 17 when the plaintiff fails to comply for no justifiable b. Q: Within the period for filing a responsive pleading. Sec. ACTIONS OF THE COURT Q: What are the actions taken by the court regarding the motion for bill of particulars? A: The court may either: 1. a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. 2. If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars. d. his compliant will be stricken off and dismissed (Sec. stating that the allegations of the complaint were sufficiently made. the defendant was surprised to find on the date set for hearing that the trial court had already denied the motion on the day of its filing. Rule 17) If defendant. serving a copy thereof on the adverse party. 3. EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING Q: What is the effect of a motion for bill of particulars on the period to file a responsive pleading? A: After service of the bill of particulars or of a more definite pleading. (Galeon v. If plaintiff. If the order is not obeyed or in case of insufficient compliance therewith. To the same end is the provision of Sec. Feb. hence the dismissal of the complaint. and he will be declared in default upon motion of the plaintiff (Sec. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. (2003 Bar Question) Note: Its purpose is to aid in the preparation of a responsive pleading. the defendant filed a motion for bill of particulars that he set for hearing on a certain date. either in whole or in part. 4. unless a different period is fixed by the court (Sec. PURPOSE AND WHEN APPLIED FOR Q: What is a bill of particulars and when can it be availed of? A: Before responding to a pleading. No. Allow the parties the opportunity to be heard (Sec. Rule 12 authorizes the court to order the striking out of the pleading affected. Rule12). 1973). the court: a. Rule 9). his answer will be stricken off and his counterclaim dismissed. Sec. MASACAYAN & THEENA C. Note: If the plaintiff failed to comply with the period. MOTIONS FOR BILL OF PARTICULARS a. If the pleading is a reply. 1. L-30380. An action cannot be dismissed on the ground that the complaint is vague or definite. the court upon motion of the defendant may strike out the paragraph where ambiguity lies. G. Rule 12) 2. No. Note: Bill of particulars may be filed either on a separate or in an amended pleading. COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE Q: When must be the compliance be effected? A: If the motion is granted. Rule12). which shall not be less than five (5) days in any event (Sec. MARTINEZ 43 . Rule 12). Yes. Grant it outright. ACADEMICS CHAIR: LESTER JAY ALAN E. 4.

3. JUSTICE JAIME M. b. 8. 2006) Note: The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. The court which rendered it has jurisdiction over the subject matter and the parties b. MIJARES. c. such that any judgment that may be rendered in the pending case would amount to red adjudicate in the other case.) 6. BAGANG.(Sec. YRIZ TAMIE A. Identity of rights asserted and reliefs prayed for. TERESE RAY-ANNE O. Vianzon.UST GOLDEN NOTES 2011 cause with any order of the court or with the Rules. If there is grave abuse of discretion amounting to lack or excess of jurisdiction. BORJA. If there is unlawful neglect of the performance of an act which the law specifically enjoins. certiorari or prohibition may lie under Rule 65.R. 2. MARIANO. That the court has no jurisdiction over the subject matter of the claim. No. PINEDA. Identity with respect to the two preceding particulars. Note: The requisites of res judicata include: The former judgment must be final a. abandoned. or Order the amendment of the pleading (Sec. MARA KHRISNA CHARMINA F. Deny the motion. FLORES. hence. LANTIN. MOTION TO DISMISS 9. 137187. AQUINO. or otherwise extinguished. ALBAÑA. 3. p.. Rule16). STAMARIA. DUMLAO. That venue is improperly laid. G. a.) 7. Note: Litis pendentia requires concurrence of the following requisites: a. 10. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds. Rule 16). (2008 Bar Question) 3. That a condition precedent for filing the claim has not been complied with. 319. Identity of the parties b. SUBJECT HEADS: DARRELL L. KATRINA NADINE G. being founded on the same facts c. Dismiss the action or claims. (Riano. That the claim or demand set forth in the plaintiff's pleading has been paid. MANANQUIL. JUANENGO. SHERY PAIGE A. MICHAEL ANGELO V. p. the resolution shall state clearly and distinctly the reasons therefor (Sec. DIANE CAMILLA R. 2009 ed. 319-320. JUSTICE OSCAR C. That the court has no jurisdiction over the person of the defending party. (Lim vs. AIDA. ROSALES . GRETCHEN C.. Note: Curable by amendment 44 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Civil Procedure: A Restatement for the Bar. Civil Procedure: A Restatement for the Bar. Note: The issue of the plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceeding. mandamus is the proper remedy. REMEDIES OF THE DEFENDANT WHEN THE MOTION IS DENIED Q: What are the remedies of the defendant when the motion is denied? A: File an answer and proceed with the trial. JUDGE CESAR D. LIM. 1. If the dismissal is with prejudice. UNICA AMOR R. 3. CONTRIBUTORS: VICENTE JAN O. That the plaintiff has no legal capacity to sue. Judgment must be on the merits c. deemed waived if not raised. There must be identity of parties. the plaintiff may file an appeal. PLATON III. 5. SUBJECT HEAD: ANGELI P. If decision is adverse. KRISTINE P. MENDOZA. RESOLUTION OF MOTION Q: What are the three courses of action which the trial court may take in resolving a motion to dismiss? A: 1. In every case. the plaintiff may re-file the complaint. RHONDEE E. subject matter and causes of action d. 2. SY. DONNA GRAGASIN. That the cause of action is barred by a prior judgment or by the statute of limitations. That there is another action pending between the same parties for the same cause. SR. Rule 16) Note: Not jurisdictional in nature. Aug. GROUNDS Q: What are the grounds for a motion to dismiss under Rule 16? A: 1. JR. EDELISE D. 2009 ed. 3. MEMBERS: AKEMI B. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED Q: What are the remedies of the plaintiff when the complaint is dismissed? A: If the dismissal is without prejudice. HERRERA. MA. appeal therefrom and raise as error the denial of the motion to dismiss. 4. That the pleading asserting the claim states no cause of action. ASST. (Riano. RONN ROBBY D. QUIAMBAO. waived. 3.

Claim is unenforceable under the statute of frauds? A: Dismissal is with prejudice and constitutes res judicata. Feb. MARTINEZ 45 . Compendium Vol. SABUGO & JOHN HENRY C. particularly on the relation of the words “abandoned” and “otherwise extinguished” to the phrase claim or demand deemed set forth in the plaintiff’s pleading” is broad enough to include within its ambit the defense of bar by laches. DISTINGUISH FROM DEMURRER TO EVIDENCE UNDER RULE 33 Q: Distinguish motion to dismiss under Rule 16 from motion to dismiss under Rule 33. 6. Heirs of Eliseo Guevarra. However. BAR BY DISMISSAL Q: What are the grounds for dismissal that may bar the refiling of the same action or claim? A: 1. Extinguishment of the claim or demand. 2. or otherwise extinguished. 2007). defendant may present evidence. Res judicata. a preliminary hearing may be had thereon as if a motion to dismiss had been filed. waived. Remedial Law. 267. he may re-file the case May be filed only after the plaintiff has completed the presentation of his evidence (Regalado. MASACAYAN & THEENA C. (Sec. plaintiff may appeal or if subsequent case is not barred. The language of the rule. EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS Q: What is the effect of dismissal on the following grounds: 1. in the discretion of the court. 2. and Unenforceability under the State of Frauds. p. any of the grounds for dismissal provided for in the Rules may be pleaded as an affirmative defense in the answer and. Rule 16) h.) ACADEMICS CHAIR: LESTER JAY ALAN E. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 168557. abandoned. f. No. or else he may be declared in default. Cause of action is barred by prior judgment or by the statute of limitations. 2009 ed. 4. I. 5. If granted. 399. the defendant loses his right to present evidence (Riano. Claim or demand has been paid. 19. Prescription. Civil Procedure: A Restatement for the Bar. 2005 ed. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved (Pineda v. (Sec. G. A: Rule 16 (Motion to Dismiss) Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer Rule 33 (Demurrer to Evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff If denied. Rule 16) g. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.R. but on appeal the order of dismissal is reversed. and 3.) If denied. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 3. If granted. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE DEFENSES Q: When can the grounds for motion to dismiss be pleaded as affirmative defense? A: If no motion to dismiss has been filed. defendant answers.CIVIL PROCEDURE e. p.

JR. 4. BORJA. XPN: Unless otherwise declared by the court (Sec. G. 2.. Sept. No. GRETCHEN C. MARA KHRISNA CHARMINA F. BAGANG. 28. XPN: If the order of dismissal specifies that it is with prejudice (Sec. Unless otherwise stated in the notice. PLATON III. MARIANO. Rule 17) Matter of discretion upon the court. the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. except that a notice operates as adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. SUBJECT HEAD: ANGELI P. 1. LANTIN. RHONDEE E. JUSTICE JAIME M. STAMARIA. Rule 17). 1977). 1. Rule 17) 3. DONNA GRAGASIN. 21. It is a matter of right. AIDA. MENDOZA. If. SY. 3. AQUINO. DISMISSAL OF ACTIONS 1. LIM. 2. GR: Dismissal is with prejudice because it has an effect of an adjudication on the merits. YRIZ TAMIE A. MIJARES. The plaintiff has once dismissed in a competent court an action based on or including the same claim (Twodismissal rule) (Sec. ALBAÑA. RONN ROBBY D. Ytoriaga. No. DISMISSAL DUE TO THE FAULT OF PLAINTIFF Q: Distinguish the different types of dismissal under Rule 17. The provision of this rule shall also apply to the dismissal of any counterclaim. DISMISSAL UPON MOTION BY PLAINTIFF. or 2.UST GOLDEN NOTES 2011 H. If the plaintiff fails to prosecute his action for an unreason-nable length of time (nolle prosequi). 3. JUANENGO. L-35989. TWO-DISMISSAL RULE 2. G. KRISTINE P. no counterclaim recoverable Dismissal upon motion of plaintiff (Sec. XPN: Unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action (Sec. Rule17). Rule 17) A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. MA. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice. Dismissal due to fault of plaintiff (Sec. If the plaintiff fails to comply with the Rules or any order of the court. 46 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. FLORES. Cabrera. JUDGE CESAR D. the court shall issue an order confirming the dismissal. ASST. for no justifiable cause. TERESE RAY-ANNE O. DIANE CAMILLA R. HERRERA.R. A: Dismissal upon notice by plaintiff (Sec. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence (Jalover v. MEMBERS: AKEMI B. L-5189. A complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper (Sec. ROSALES .. EDELISE D. DISMISSAL UPON NOTICE BY PLAINTIFF. Rule 17) Note: A class suit shall not be dismissed or compromised without the approval of the court. MICHAEL ANGELO V. QUIAMBAO. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal. Dismissal upon motion of the defendant or upon the court's own motion is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action Note: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. SHERY PAIGE A. GR: It is a dismissal without prejudice. SR. MANANQUIL. JUSTICE OSCAR C. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. CONTRIBUTORS: VICENTE JAN O. UNICA AMOR R. 3.e. 2. the dismissal is without prejudice. 2. PINEDA. Rule 17) After service of the answer or a motion for summary judgment by the adverse party. Upon such notice being filed. SUBJECT HEADS: DARRELL L. Rule 17) 1. 2.R. the complaint can be re-filed XPNs: 1. GR: A dismissal without prejudice i. KATRINA NADINE G. Oct. GR: It is also without prejudice to the right of defendant to prosecute his counterclaim in a separate action. the dismissal shall be limited to the complaint. DUMLAO. 1953) Since there is no answer yet filed by the adverse party. Rule 17). or third-party complaint (Sec. cross-claim. EFFECT ON EXISTING COUNTERCLAIM 3. Matter of evidence.

Necessity or desirability of amendments to the pleadings. Rule 17).) 2. SABUGO & JOHN HENRY C. the dismissal shall be limited to the complaint. 3. p. Advisability of a preliminary reference of issues to a commissioner. Based on or including the same claim. 2009 ed.). Limitation of the number of witnesses. (Sec. CROSS-CLAIM OR THIRD-PARTY COMPLAINT Q: What is the effect of dismissal upon a counterclaim. ACADEMICS CHAIR: LESTER JAY ALAN E. Rule 18) 2. Q: What rule governs the dismissal of counterclaim. 2. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof. 4.) Note: The second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits. before the introduction of evidence at the trial or hearing (Sec. Propriety of rendering judgment on the pleadings. Simplification of the issues. If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss. and 9.CIVIL PROCEDURE Q: When does the two-dismissal rule apply? A: It applies when the plaintiff has: 1. In a court of competent jurisdiction (Riano. NATURE AND PURPOSE Q: What is the nature of pre-trial? A: It is mandatory (Sec. and the court grants the said motion to dismiss. CONCEPT OF PRE-TRIAL Q: What is pre-trial? A: It is a procedural device by which the court is called upon. A voluntary dismissal by the claimant alone by notice pursuant to Sec. Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served or. (Sec. the claim may only be filed twice. Such other matters as may aid in the prompt disposition of the action. if there is none. MARTINEZ 47 . The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. cross-claim. 2009 ed. Rule 18). 3. Twice dismissed the actions. Rule 18) 4. Should he choose to have his counterclaim resolved in the same action. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution. I. p. (Riano. and 3. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 4. 6. cross-claim. 1074. 5. 2. 2009 ed. 8. or of dismissing the action should a valid ground therefore be found to exist. 2.) I. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. and such other matters as may aid in the prompt disposition of the action (Herrera. after the filing of the last pleading. PRE-TRIAL 1. (Riano. p. to compel the parties and their lawyers to appear before it. and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action. 265. Q: When is pre-trial conducted? A: After the last pleading has been served and filed. DISMISSAL OF COUNTERCLAIM. 2.1. the first being the claim embodied in the original complaint. or summary judgment. Civil Procedure: A Restatement for the Bar. Civil Procedure: A Restatement for the Bar. MASACAYAN & THEENA C. 1. 7. In other words. or third-party complaint? A: The rule on the dismissal of a complaint applies to the dismissal of any counterclaim. pp. which was already pleaded? A: 1. 266-267. Civil Procedure: A Restatement for the Bar. or third-party claim. The dismissal of the complaint does not carry with it the dismissal of the counterclaim. Vol. 265. he must notify the court of his preference within fifteen (15) days from notice of the plaintiff’s motion to dismiss. Q: What are the purposes of pre-trial? A: The court shall consider the following purposes: 1. Advisability or necessity of suspending the proceedings. 2007 ed.

DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE Q: Distinguish pre-trial in civil cases from pre-trial in criminal cases. Rule 18) 5. 4. 1. Rule 18). BAGANG. PRE-TRIAL BRIEF. or on the party who has no counsel. FLORES. stating the purpose thereof. Q: What is the effect of failure to file a pre-trial brief? A: It shall have the same effect as failure to appear at the pre-trial (A. 6. GRETCHEN C. The documents or exhibits to be presented. 1. PINEDA. 4. Rule 18) Pre-trial in criminal case It is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense The pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. JR. EFFECT OF FAILURE TO APPEAR Q: Who has the duty to appear at the pre-trial? A: The parties and their counsel. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners. It considers the possibility of an amicable settlement as an important objective. The counsel served with such notice is charged with the duty of notifying the party represented by him (Sec. RHONDEE E. 6. JUSTICE JAIME M.M. BORJA. Rule 18). Q: What is the effect of a party’s failure to appear during the pre-trial? A: Plaintiff’s failure to appear during the pre-trial shall be a cause for dismissal of the action. Rule 18). It does not include the possibility of amicable settlement of criminal liability as one of its purposes (Sec. DONNA GRAGASIN. DUMLAO. EFFECT OF FAILURE TO FILE Q: When should the parties file with the court and serve on the adverse party their pre-trial briefs? A: They shall file their respective pre-trial briefs in such a manner as shall ensure their receipt thereof at least three (3) days before the date of the pretrial (Sec. 6. 03-1-09-SC. SY. KRISTINE P. unless otherwise ordered by the court. Rule 18) 5. MENDOZA. 03-109-SC). MARA KHRISNA CHARMINA F. 3. TERESE RAY-ANNE O. 1. No. MARIANO. Requires the proceeding during the preliminary conference to be recorded in the “minutes of preliminary conference” to be signed by both parties and/or counsel. 3. The rule allows either the party or his counsel to sign the minutes (A. MA. QUIAMBAO. MIJARES. with prejudice. PLATON III. APPEARANCE OF PARTIES. AIDA. and to enter into stipulations or admissions of facts and of documents. 6. Rule 118). MICHAEL ANGELO V. 5. CONTRIBUTORS: VICENTE JAN O. All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel. JUSTICE OSCAR C. LIM.UST GOLDEN NOTES 2011 3. otherwise. ALBAÑA. 2004). ASST. Q: What should a pre-trial brief contain? A: 1.. Rule 18) The motion to set the case for pre-trial is made after the last pleading has been served and filed (Sec. (1992 Bar Question) Note: The non-appearance of a party may be excused only if a valid cause is shown therefore or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement. No. ROSALES . Sanctions for nonappearance in a pre-trial are imposed upon the plaintiff and the The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor 48 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. STAMARIA. indicating the desired terms thereof.M. SR. EDELISE D. RONN ROBBY D.. MEMBERS: AKEMI B. YRIZ TAMIE A. JUANENGO. JUDGE CESAR D. A summary of admitted facts and proposed stipulation of facts. and the substance of their respective testimonies and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses (Sec. NOTICE OF PRE-TRIAL Q: To whom shall notice of pre-trial be served? A: It shall be served on counsel. SUBJECT HEADS: DARRELL L. DIANE CAMILLA R. 2. A: Pre-trial in civil case It is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. HERRERA. 2. UNICA AMOR R. The issues to be tried or resolved. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution. (Sec. LANTIN. MANANQUIL. AQUINO.4. Defendant’s non-attendance during the pretrial shall be a cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof (Sec. and The number and names of the witnesses. to submit to alternative modes of dispute resolution. Rule 18). KATRINA NADINE G. SUBJECT HEAD: ANGELI P. SHERY PAIGE A. July 13. they cannot be used against the accused (Sec.

the arbitrators selected must. After mediation has failed in the lower courts. (Sec. ALTERNATIVE DISPUTE RESOLUTION (ADR) Q: What are the other modes of solving disputes? A: 1. Rule 18) (Sec. 4. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. No. Domestic Arbitration 2. Rule 18) Not specifically required in a criminal case.M. It is also intended “to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (R. Construction Disputes International Commercial Arbitration b. if the parties to the controversy reside within the same city or province. 3. 7. A: ADR Court-Annexed Mediation/Judicial Dispute Resolution (A. To actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes. Specifically required to be submitted in a civil case (Sec. Subject to the terms of the contract or the submission agreement. 5. Early Neutral Evaluation e. Mini-trial Court-Annexed Mediation Appellate Court Mediation Judicial Dispute Resolution Katarungang Pambarangay Law Small Claims Cases Rules on Summary Procedure ii. 3. within 5 days from notice of appointment. MASACAYAN & THEENA C. or within 15 days after appointment if the parties reside in different provinces. Appellate Court Mediation provides an added option to put an end to costly and long-drawn litigation. 9285)” Appellate Court Mediation 1. Q: Distinguish the other modes of solving disputes. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.CIVIL PROCEDURE defendant in a civil case (Sec. No. iii. “a second attempt is made at the JDR stage”. The former is conducted under the court’s auspices after such court has acquired jurisdiction of the dispute while the latter is mediation ordered by the court to be conducted in accordance with the parties’ agreement when an action is prematurely commenced in violation of such agreement. set a time and place for the hearing of the matters submitted to them. 876) Where to File Court acquiring jurisdiction of the case since mediation is part of the mandatory pre-trial Note: Court-annexed mediation should be distinguished from court-referred mediation. 12. 2. 6. R. 11-1-6-SC-PHILJA) Purpose / Object The purposes of CAM and JDR is “to put an end to pending litigation through compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion”. Rule 18). 7. 6. 1.A. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Conciliation d. Mediation c. It facilitates the interest-based settlement of the dispute through proposals coming from the parties or suggested by the mediator and accepted by the parties. where the JDR judge becomes a “mediator-conciliatorearly neutral evaluator in a continuing effort to secure a settlement” Court of Appeals ACADEMICS CHAIR: LESTER JAY ALAN E. MARTINEZ 49 . SABUGO & JOHN HENRY C. Alternative Dispute Resolution (ADR) a. Arbitration i. 4. 2. Upon failing to secure a settlement of the dispute during the first stage.A. The first stage is the CAM “where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators”. To achieve speedy and impartial justice and unclog court dockets.

Habeas corpus (court order directing law enforcement officials or custodians of detained persons to produce that person in court) cases involving custody of minors. Criminal cases cognizable by the Katarungang Pambarangay (Barangay Justice System) under R. LIM. 9262 (Violence against Women and Children)..UST GOLDEN NOTES 2011 Cases Covered 1. EDELISE D. JUSTICE JAIME M. 3. All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law 4. Civil cases which by law cannot be compromised (Article 2035. 4. awards. DUMLAO. where the offended party is a private person. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code. ALBAÑA. 9. with the consent of the parties. PLATON III. MANANQUIL. (1) of the Judiciary Reorganization Act of 1980. BORJA. UNICA AMOR R.A. All civil cases and probate proceedings. JUSTICE OSCAR C. DONNA GRAGASIN. YRIZ TAMIE A. PINEDA. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33. ROSALES . New Civil Code). and Habeas corpus petitions involving custody of minors when the subject is detained for commission of a criminal offense. 8. SR. Labor disputes under the Labor Code Civil status of persons Validity of a marriage Any ground for legal separation Jurisdiction of courts Future legitime Criminal liability Those which by law cannot be compromised Dispute resolution services provided by 1. MARA KHRISNA CHARMINA F. All cases under Republic Act No. 7160 or offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5. All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge. judgments. 7. 9. except those involving pure questions of law. 8.000 or both such fine and imprisonment. including the civil liability for violation of B. 2. 7. RHONDEE E. Civil cases brought on ordinary appeal or petition for review. par. par. 2. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment.. brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33. MIJARES. TERESE RAY-ANNE O. AIDA. 3. 50 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Habeas Corpus petitions. Appeals from final orders. KRISTINE P. (2) of the Judiciary Reorganization Act of 1980. RONN ROBBY D. 4. SUBJECT HEADS: DARRELL L. Criminal cases except those which involve habeas corpus of minors not detained for a criminal offense. 3. MICHAEL ANGELO V. SUBJECT HEAD: ANGELI P. 2. provided that the minor is not detained for commission of a criminal offense. ASST. par. Special civil actions for certiorari. The civil aspect of estafa. Any dispute or controversy which may thereafter arise between parties to a contract pursuant to an arbitration clause or any controversy or dispute wherein the parties agree to submit to an alternative dispute resolution system 1. 2. JUANENGO. MENDOZA. QUIAMBAO. FLORES. DIANE CAMILLA R. 5. 5. All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure. 13 and 10. which by law cannot be compromised. SHERY PAIGE A. 22. MA. MARIANO. HERRERA. JR. STAMARIA. SY. Special proceedings for the settlement of estates. Other criminal cases not covered under paragraphs 3 to 6 above. KATRINA NADINE G. 4. All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33. Civil cases. 1. 3. theft and libel. 6.” Cases Excluded 1. JUDGE CESAR D. that are brought up on appeal from the special jurisdiction granted to the first level courts under Section 35 of the Judiciary Reorganization Act of 1980. AQUINO. testate and intestate. 6. CONTRIBUTORS: VICENTE JAN O. LANTIN. except those which by law may not be compromised. 2. BAGANG.(3) of the Judiciary Reorganization Act of 1980. resolutions of the Court of Tax Appeals and quasi-judicial agencies in the exercise of their quasi-judicial functions through petition for review or certiorari that questions a decision for having been rendered in grave abuse of discretion amounting to lack of jurisdiction.P. 3. MEMBERS: AKEMI B. GRETCHEN C.

R-586 5. 1 [3]. ACADEMICS CHAIR: LESTER JAY ALAN E. Arbitrator acts as out-of-court judge and settles the dispute extrajudicially. The assessment is not binding upon the parties. To be executory. Mini-Trial It is a voluntary dispute resolution process in which one or more arbitrators. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MARTINEZ 51 . with expertise in the subject or the substance of the dispute. it must first be confirmed by Effect of decision He does not render a decision. or c. or rules promulgated pursuant to R. 4. Consumer Act. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. The mediator Functions A conciliator participates only in the preliminary steps of facilitating discussion between the parties and helps them frame the issues for discussion. Cases with pending application for Restraining Orders/Preliminary Injunctions. He makes a determination of the facts and applies the law to those facts to resolve a dispute independently of the actual result desired by the parties. Early neutral Evaluator assesses or reviews the issues submitted by the parties and tenders its evaluation which is non-binding. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.A. The dispute is left to be settled by the parties themselves. Panel renders a decision based on the merits of the arguments of the parties. The award may be final and binding if so agreed by the parties. It need not be confirmed by the courts. appointed in accordance with the agreement of the parties. A: Arbitration Mediation Conciliation Definition A process whereby the parties request a third person or persons to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship (Art. UNCITRAL Model Law on Conciliation) Early Neutral Evaluation It is a process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced. Mediator does not render an award but only arranges the facts to be negotiated so that parties can come to a compromise agreement. 9285. HLURB Resolution No. resolve a dispute by rendering an award. selected by the disputing parties. It results in the adjudication of a dispute. Cases with pending application for restraining orders/preliminary injunctions. SABUGO & JOHN HENRY C. It is recommendatory in nature. Mining Act. MASACAYAN & THEENA C. neutral person. Small Claims Cases and Rules on Summary Procedure are found on p. He actively participates in resolving the dispute. facilitates communication and negotiation. It is a voluntary process in which an impartial and neutral third party (mediator). and then gives an opinion. and assists the parties in reaching a voluntary agreement regarding a dispute. unless both parties request for mediation Note: The table for Katarungang Pambarangay Law. b. It is a structured dispute resolution method in which the merits of a case are argued before a panel comprising of senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement.17 Q: Distinguish the different kinds of the ADR system. He assists the parties in reaching a mutually agreeable settlement of their dispute through direct negotiations. The decision or opinion is not binding on the parties.CIVIL PROCEDURE government agencies where mediators or arbitrators are selected by government agencies: a.

RHONDEE E. conciliator. 1996) Note: Right to intervene is not an absolute right as it can be secured only in accordance with the terms of the applicable statute or rule. good customs. JUANENGO. SY.R. mediation. mini-trial. Legal interest in the matter in controversy. This person who intervenes is one who is not originally impleaded in the action (First Philippine Holdings Corp. 2002). 1987 Constitution) Q: What is the legal basis of alternative dispute resolution? A: The legal basis would be. ROSALES . KATRINA NADINE G. or d. p. and 3. GRETCHEN C. KRISTINE P. c. 9285) Note: Its purposes are to: 1. 2. 9285) J. YRIZ TAMIE A. Sandiganbayan. BORJA. SHERY PAIGE A. G. (Sec. Q: What is the State policy in alternative dispute resolution? A: The state policy in ADR is to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements in resolving their disputes. morals. clauses. or public policy. (Sec. REQUISITES FOR INTERVENTION Q: What are the requisites for intervention? A: 1. GR 140058. b. Intervention will not unduly delay or prejudice the adjudication of the rights of original parties. DUMLAO. and Intervenor’s rights may not be fully protected in a separate proceeding (Mabayo Farms. early neutral evaluation. FLORES. BAGANG. No. 88345. SUBJECT HEAD: ANGELI P. Art. arbitrator or neutral evaluator. 2. MIJARES. 1306. or any person exercising similar 4. ASST. Feb. 2.3[b] of R. v. merely suggests a solution to the dispute. LANTIN. QUIAMBAO. 52 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. DIANE CAMILLA R. DONNA GRAGASIN. HERRERA. AIDA.UST GOLDEN NOTES 2011 the RTC. Rule 19). 3. MANANQUIL. arbitrator. Unclog court dockets. (Par. JR. neutral evaluator. INTERVENTION Q: What is intervention? A: It is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court. A: An ADR provider means institutions or persons accredited as mediator. 1. JUSTICE OSCAR C. JUSTICE JAIME M. 1. MEMBERS: AKEMI B. So situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or of an officer thereof (Sec. LIM. vs. Riano. ALBAÑA. XIII. other than by adjudication of a presiding judge of a court or an officer of a government agency in which a neutral third party participates to assist in the resolution of issues. “the contracting parties may establish such stipulations. Aug.A. SR. or any combination thereof. AQUINO. conciliator. MARIANO. 2009 ed. including conciliation. Sec. MENDOZA.. Q: Distinguish alternative dispute resolution provider from an alternative dispute resolution practitioner. 1. MICHAEL ANGELO V. Note: A motion is necessary because leave of court is required before a person may be allowed to intervene.” (Art. JUDGE CESAR D. Legal interest against both parties. EDELISE D. No. 345. Achieve speedy and impartial justice. SUBJECT HEADS: DARRELL L. CA. No. which includes arbitration. UNICA AMOR R. The movant must show in his motion that he has: a. An ADR practitioner refers to individuals acting as mediator.A. STAMARIA. Actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes. PLATON III. There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. conciliation. NCC) Q: What is an alternative dispute resolution system? A: It means any process or procedure used to resolve a dispute or controversy. PINEDA. 1.3[a] of R. Civil Procedure: A Restatement for the Bar. MA.. CONTRIBUTORS: VICENTE JAN O. Inc. 3. Legal interest in the success of either of the parties. and shall enforce their mutual compliance therewith to foster industrial peace. Rule 19). TERESE RAY-ANNE O. provided they are not contrary to law. functions in any ADR system. RONN ROBBY D. terms and conditions as they may deem convenient. Q: What is the Constitutional basis of alternative dispute resolution? A: The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes. MARA KHRISNA CHARMINA F.) 1. public order.

With respect to indispensable parties. 1952). 3. 3. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. No.CIVIL PROCEDURE Q: Is intervention an independent proceeding? A: GR: No. L-55771. Sept. If the pleading seek to unite with the defending party in resisting a claim against the latter – file an answer-inintervention. 1995). No. 10. MARTINEZ 53 . (Riano. Rule 19) 2. XPNs: 1. even if the judgment itself recognizes the right of the movant. RTC-Manila. Rule 19). REMEDY FOR THE DENIAL OF MOTION TO INTERVENE Q: What is the remedy for the denial of motion to intervention? A: The remedy of the aggrieved party is appeal. 1990). G. 4. 2. Nov. G. p. 2003). Civil Procedure: A Restatement for the Bar.R.4. A: GR: After rendition of judgment. Rule 19) 2. He shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties. 346. May be allowed during the pendency of the appeal. Rule 19) Q: May intervention be allowed after judgment has been rendered by the court? Q: When should an answer to complaint-inintervention be filed? A: It shall be filed within fifteen (15) days from notice of the order admitting the same. Jan. Rule 19) Q: What is the procedure for intervention? A: 1. and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. Q: When shall the intervenor file a pleading-inintervention? A: 1. When the intervenor is the Republic (Lim v. 1. 3. (2000 Bar Question) Q: What does legal interest mean? A: It must be one that is actual and material. The motion and the pleading shall be served upon the original parties. 89909. 21. v. Rule 19). If the purpose is to assert a claim against either or all of the original parties – the pleading shall be called a complaint-in-intervention. G. a motion to intervene is barred. G. (Sec. XPN: When intervention has been allowed and the complaint-in-intervention has already been filed before plaintiff’s action had been expressly dismissed (Metrobank v. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. unless a different period is fixed by the court (Sec. G. MASACAYAN & THEENA C. intervention may be allowed even on appeal (Falcasantos v. CA.R. (Sec 3. SABUGO & JOHN HENRY C. The motion to intervene must be filed at any time before rendition of judgment by the trial court (Sec. No.) 2. Hence. Corp. The intervenor shall file a motion for intervention attaching thereto his pleading-inintervention. unless a different period is fixed by the courts. (Sec. (Sec. Sept. 2. or 4. 115044. where the interest of justice so required (Tahanan Dev. 91486.R. TIME TO INTERVENE Q: When is the time to intervene? A: The motion to intervene may be filed any time before rendition of judgment by the trial court. 1982). No. direct and of an immediate character.R. 2. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. The answer to the complaint-inintervention shall be filed within fifteen (15) days from notice of the order admitting the same. not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment. Mandamus will not lie except in case of grave abuse of discretion. L-4627. 27. Where necessary to protect some interest which cannot otherwise be protected. Pacquing. CA. Falcasantos. 3. or An answer-in-intervention if he unites with the defending party in resisting a claim against the latter. the final dismissal of the principal action results into the dismissal of said ancillary action. 15. 2009 ed. ACADEMICS CHAIR: LESTER JAY ALAN E. 2. May 13. It is not an independent proceeding but is ancillary and supplemental to an existing litigation.R. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. No.

HERRERA. 2. PLATON III. 2. 54 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Rule 21). The court before whom the witness is required to attend. 4. 1. 1. JUDGE CESAR D. Q: How is service of subpoena made? A: It shall be made in the same manner as personal or substituted service of summons (Sec. A: Subpoena An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage. YRIZ TAMIE A.. CONTRIBUTORS: VICENTE JAN O. BAGANG. DIANE CAMILLA R.. or for taking of his deposition (Sec. AIDA. or things under his control (Sec. SERVICE OF SUBPOENA Q: Who issues subpoena? A: 1. DUMLAO. EDELISE D. The officer or body authorized by law to do so in connection with investigations conducted by said officer or body. RONN ROBBY D. 6. shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. Rule 21). Rule 21). shall be directed to the person whose attendance is required. SHERY PAIGE A. MA. the tender need not be made (Sec. documents or things demanded shall also be tendered (Sec. Rule 21). ROSALES . The court of the place where the deposition is to be taken. 1. 3.UST GOLDEN NOTES 2011 K. Note: When a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof. ASST. or at any investigation conducted under the laws of the Philippines. Rule 21). Note: Service of a subpoena shall be made by the sheriff. Rule 21). TERESE RAY-ANNE O. as provided in Secs. 6. SR. ALBAÑA. If the subpoena is duces tecum. JR. DONNA GRAGASIN. documents. KATRINA NADINE G. 5. AQUINO. tendering to him the fees for one day’s attendance and the kilometrage allowed by the Rules. Q: What are the contents of subpoena? A: It shall state the name of the court and the title of the action or investigation. MARA KHRISNA CHARMINA F. Q: What is the rule on subpoena for depositions? A: Proof of service of a notice to take a deposition. Rule 21). Rule 21). SUBJECT HEAD: ANGELI P. 1. JUSTICE OSCAR C. MANANQUIL. SY. Rule 21) Q: What should be delivered and tendered to the person whom subpoena is served? A: The original shall be exhibited and a copy thereof delivered to the person on whom it is served. MEMBERS: AKEMI B. JUSTICE JAIME M. 2. Q: Distinguish subpoena from summons. KRISTINE P. RHONDEE E. SUBPOENA Q: What is a subpoena? A: It is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action. LANTIN. LIM. SUBJECT HEADS: DARRELL L. SUBPOENA DUCES TECUM Q: What is subpoena duces tecum? A: A process directed to a person requiring him to bring with him any books. and in the case of a subpoena duces tecum. MIJARES. STAMARIA. GRETCHEN C. 2. MICHAEL ANGELO V. BORJA. MARIANO. reclusion perpetua or life imprisonment and is confined in prison shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the SC (Sec. 3. or by any other person specially authorized. Rule 21). who is not a party and is not less than eighteen (18) years of age (Sec. however. by his deputy. MENDOZA. or Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. the reasonable cost of producing the books. 15 and 25. 6. 6. UNICA AMOR R. attendance fee and reasonable cost of production fee Summons Order to answer complaint Served on the defendant Does not need tender of kilometrage and other fees Q: What is the rule when application for subpoena to a prisoner is made? A: The judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose and no prisoner sentenced to death. The clerk shall not. PINEDA. QUIAMBAO. (Sec. it shall also contain a reasonable description of the books. issue a subpoena duces tecum to any such person without an order of the court (Sec. FLORES. Rule 23. SUBPOENA AD TESTIFICANDUM Q: What is subpoena ad testificandum? A: A process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted by competent authority or for the taking of his deposition (Sec. 3). JUANENGO. documents or things demanded which must appear to the court prima facie relevant (Sec.

or 2. 6. when the subpoena was served (Sec. or 3. MEANING OF DEPOSITION Q: What is deposition? A: A deposition is the taking of the testimony of any person. They are not alternative nor mutually exclusive. DEPOSITIONS PENDING ACTION. 4. and To determine the physical or mental condition of a party when such is in controversy (Koh vs. Rule 21). DEPOSITIONS BEFORE ACTION OR PENDING APPEAL a. When the permission of the court in which the detention prisoner’s case is pending was not obtained (Sec. COMPELLING ATTENDANCE OF WITNESSES. XPNs: 1. That the witness is not bound thereby. MARTINEZ 55 . 6. 3. 4. whether he be a party or not. generally. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Secs.CIVIL PROCEDURE Q: Why must service of subpoena be made? A: The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance (Sec. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 2. 10. That the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served Subpoena ad testificandum: 1. or 2. 144 SCRA 259). Where the witness resides more than 100 km. 5. This testimony is taken out of court. from his residence to the place where he is to testify by the ordinary course of travel. documents or things does not appear. 2. 8 and 9. 2. at or before the time specified therein: 1. QUASHING OF SUBPOENA 4. To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions. 4. if the court should determine that his disobedience was willful and without just cause. 3. Rule 21). 5. Rule 21). SABUGO & JOHN HENRY C. but at the instance of a party to the action. 5. IAC. To obtain knowledge of material facts or admissions from the adverse party through written interrogatories. 1. Q: How to quash a subpoena? A: Subpoena duces tecum: Upon motion promptly made and. If the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. An oral examination b. Rule 23) ACADEMICS CHAIR: LESTER JAY ALAN E. CONTEMPT Q: What is the effect of failure to comply with subpoena? A: GR: The court or judge which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure. Written interrogatories (Sec 1. Rule 21). Q: What are the basic purposes of the rules of discovery? A: 1. and lands or other property in the possession and control of the adverse party. L. The relevancy of the books. MODES OF DISCOVERY Q: What are the different modes of discovery? 4. Rule 21). MASACAYAN & THEENA C. That the witness fees and kilometrage allowed by the Rules were not tendered A: 1. by overland transportation (viatory right). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. in any event. To inspect relevant documents or objects. To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions. 4. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Depositions pending action (Rule 23) Depositions before action or pending appeal (Rule 24) Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26) Production or inspection of documents and things (Rule 27) Physical and mental examination of persons (Rule 28) Note: The modes of discovery are cumulative. If it is unreasonable and oppressive. Deposition may be: a.

It is not necessary when an answer has already been served and the deponent is not confined in prison. before a secretary of embassy or legation. or and by authority of a judge or other competent court to another. If the deposition to be taken is that of a prisoner. Rule 23).g. or c. There must be some “necessity” or “good reason” for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issue. b. If outside the Philippines a.. XPN: In cases of special circumstances. (Herrera. XPN to the XPN: Introduction of deposition does not make the deponent his witness: 1. GRETCHEN C. any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party (Sec. LANTIN. upon interrogatories depositions or do any filed in a case pending before 56 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 10. b. SUBJECT HEAD: ANGELI P.) Q: When is leave of court necessary when taking depositions? When is it not necessary? A: 1. (sec 1. E. 1. A: Commission Letters Rogatory Instrument issued by a Instrument sent in the name court of justice. Rule 23). ROSALES . pp. EDELISE D. vice-consul. QUIAMBAO. JUSTICE OSCAR C. b. Q: When shall letters rogatory or commission be issued? A: They shall be issued only when necessary or convenient. Rule 23). JR. During a pending action (Rule 23) – deposition de benne esse Before action or Pending appeal (Rule 24) – deposition in perpetuam rei memoriam XPN: If the deposition or any part thereof is offered in evidence for any purpose (Sec. 1213. SY. TERESE RAY-ANNE O. PINEDA. DIANE CAMILLA R. 7. MIJARES.9. Vol. 2007 ed. SUBJECT HEADS: DARRELL L. 8. Notary public. CONTRIBUTORS: VICENTE JAN O. AQUINO. Before such person or officer as may be appointed by commission or letters rogatory. 11. KRISTINE P.: witness is aged or infirm. 2. Rule 23).. RONN ROBBY D. or c. MICHAEL ANGELO V. Rule 23). requesting tribunal. MENDOZA. JUDGE CESAR D. RHONDEE E. Q: Should the deponent be deemed a witness of the party taking his deposition? A: GR: No (Sec. Q: Distinguish commission from letters rogatory. Rule 23). PLATON III. MANANQUIL. and on such terms and with such direction as are just and appropriate (Sec.UST GOLDEN NOTES 2011 Q: When can depositions may be availed of? A: a. Any person authorized to administer oaths. If the adverse party uses the deposition of the other party (Sec. HERRERA. consul. YRIZ TAMIE A. MARA KHRISNA CHARMINA F. (sec. LIM. DONNA GRAGASIN. 4[b]. and when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors-ininterest. On notice. consul-general. If within the Philippines a. II. 8. If the deposition is used for impeaching or contradicting the deponent (Sec. Rule 23). or about to leave the court’s jurisdiction. ALBAÑA. Q: Before whom may depositions be taken? A: 1. on application and notice. DUMLAO. or 2. Rule 23) Q: What is the effect of substitution of parties? A: It does not affect the right to use depositions previously taken. BAGANG. JUSTICE JAIME M. or consular agent of the Philippines. FLORES. Before service of an answer but after the jurisdiction has been acquired over the defendant or over the property subject of the action b. At the trial or hearing. JUANENGO. Rule 23). SHERY PAIGE A. Any person authorized to administer oaths. Rule 23) Q: May a party rebut a deposition? A: Yes. STAMARIA. Rule 23) 2. KATRINA NADINE G. UNICA AMOR R. MARIANO. It is necessary a. BORJA. 12. 5. all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor (Sec. Q: When may plaintiff be permitted to take depositions? A: GR: Before answer is served because plaintiff must await joinder of issues. Judge. AIDA. ASST. MA. SR. to authorize the latter to cause to be a person to take examined. as stipulated by the parties in writing (Sec. MEMBERS: AKEMI B. as stipulated by the parties in writing (Sec.

or by someone acting under his discretion and in his presence. or oppression (Sec. 15. not known. Rule 23). 4. upon motion seasonably made by any party or by the person to be examined and for good cause shown. 3. One who is related to the attorney of the deponent within the same degree or employee of such attorney. SABUGO & JOHN HENRY C. record the testimony of the witness (Sec. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 6. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Applicable rules of procedure are those of the foreign court requested to act. Rule 23). 8. and One who is financially interested in the action (Sec. Note: On motion of any party upon whom the notice is served. They may do so before any person authorized to administer oaths. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. That after being sealed. 16. Note: The testimony shall be taken stenographically unless the parties agree otherwise (Sec. Issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony. 1. 15. 3. That it may be taken only on written interrogatories. Rule 23). That the deposition shall not be taken. a general description sufficient to identify him or the particular class or group to which he belongs (Sec. Rule 23). embarrassment. Q: What are the orders that the court may make for the protection of parties and deponents? A: Q: Who are disqualified to be a deposition officer? A: 1. Rule 23). the court may for cause shown enlarge or shorten the time (Sec. the deposition shall be opened only by order of the court. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. Q: May the parties stipulate in writing for the taking of depositions? A: Yes. Resorted to if permission of the foreign country is given. 4. the court in which the action is pending may make orders for the protection of parties and deponents (Sec. MASACAYAN & THEENA C. Resorted to if the execution of the commission is refused in the foreign country. and when so taken may be used like other depositions (Sec. An employee or attorney of one of the parties.CIVIL PROCEDURE other act by authority of such court or tribunal. Q: What is the requirement in taking deposition upon oral examination? A: A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action (Sec. Rule 23) Issued to a nonjudicial foreign officer who will directly take the testimony. MARTINEZ 57 . 14. at any time. Rule 23). Rule 23). developments. That it may be taken only at some designated place other than that stated in the notice. or The court may make any other order which justice requires to protect the party or witness from annoyance. Q: What are the duties of the officer before whom the deposition is to be taken? A: He shall put the witness on oath and shall personally. 2. One who is related to the deponent within the 6th degree of consanguinity or affinity. 13. and if the name is 7. or that secret processes. research need not be closed. 16. Applicable rules of procedure are those of the requesting court. That certain matters shall not be inquired into. That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel. 5. Q: What shall the notice state? A: It shall state the time and place for taking the deposition and the name and address of each person to be examined. Q: When may the court make orders for the protection of parties and deponents? A: After notice is served for taking a deposition by oral examination. Leave of court is not necessary. 17. 17. or place. 2. in accordance with the Rules. a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. if known. Rule 23) ACADEMICS CHAIR: LESTER JAY ALAN E. 15. the former. (There must be a showing that the commission is inadequate or ineffective) Leave of court is necessary.

. JR. (Herrera. MENDOZA. DONNA GRAGASIN. JUSTICE JAIME M. Note: A deposition officer has no authority to rule on the objection (Herrera. Q: What is the consequence of failure of party giving notice to serve subpoena? A: If because of such failure. HERRERA. QUIAMBAO. Q: What shall be done with the changes which the witness desire to make? A: Any changes in form or substance shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them (Sec. FLORES. including reasonable attorney’s fees (Sec. if any. Rule 23). MANANQUIL. Witness is ill. Q: Is the signing of deposition necessary? A: GR: Yes. CONTRIBUTORS: VICENTE JAN O. Vol. Rule 23) Q: What is the effect if the witness does not sign the deposition? A: The officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of refusal to sign together with the reason given therefor. 22. 19. LIM. MARIANO. KRISTINE P. 3. JUANENGO. STAMARIA. ASST. 3. 34.. Q: When shall the deposition be submitted to the witness for examination? A: It shall be submitted when the deposition is fully transcribed and shall be read to or by him. Rule 23). SUBJECT HEADS: DARRELL L. Rule 23). II. Vol. TERESE RAY-ANNE O. p. the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part (Sec. Witness cannot be found. PLATON III.) Q: What may the parties do if they cannot participate in the oral examination? A: The parties may transmit written interrogatories to the officers. RHONDEE E. Qualifications of the officer taking the deposition. SY. JUDGE CESAR D. 2. JUSTICE OSCAR C. Conduct of any party. DIANE CAMILLA R. 20. Rule 23). Rule 23). MEMBERS: AKEMI B. MA. UNICA AMOR R. the witness does not attend. SUBJECT HEAD: ANGELI P. Rule 23. Certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. Note: Failure to comply with this requirement is a mere defect in form which cannot affect the admissibility of the deposition. Give prompt notice of its filing to all the parties (Sec. Manner of taking the deposition. MIJARES. EDELISE D. KATRINA NADINE G. or Q: When shall the officer furnish a copy of the deposition to any party or to the deponent? A: He shall furnish a copy upon payment of reasonable charges therefor (Sec. DUMLAO. RONN ROBBY D. 2.UST GOLDEN NOTES 2011 4. and 4. Rule 129). Q: What are the duties of the officer after the taking of the deposition? A: He shall: 1. 2. 3. and the deposition may then be used as fully as though signed. unless such examination and reading are waived by the witness and by the parties (Sec. Q: What is the consequence if a party or the witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken? A: The refusal may be considered contempt of that court (Sec. Parties by stipulation waive the signing. Evidence presented. MARA KHRISNA CHARMINA F. LANTIN. p. ALBAÑA. Any other objection to the proceedings (Sec. 2. Rule 23). Rule 23). 17. 19. Rule 23). Promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing (Sec. 19. YRIZ TAMIE A. PINEDA. 38. 4. or 5. Rule 23). AQUINO. it shall be signed by the witness. and if another party attends in person or by 58 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 19. BAGANG. AIDA. II. SHERY PAIGE A. Q: What is the consequence of failure to attend of the party giving notice? A: The court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending. 21. 17. 23. SR. who shall propound them to the witness and record the answers verbatim (Sec. BORJA.) Wtness refuses to sign (Sec. MICHAEL ANGELO V. XPN: 1. unless on a motion to suppress under Sec. 2007 ed. 29 (f). GRETCHEN C. 2007 ed. Q: What objections shall be noted by the officer upon the deposition? A: All objections made at the time of the examination to the: 1. Then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)". ROSALES .

or otherwise dealt with by the officer under Secs. are waived unless reasonable objection thereto is made at the taking of the deposition. the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. As to oral examination and other particulars – Errors and irregularities Q: Who may file a petition for deposition before action? A: Any person who wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Sec. 4. filed. the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. signed. that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought. transmitted. 17. including reasonable attorney’s fees (Sec. 4. or materiality of testimony are not waived by failure to make them before or during the taking of the deposition. 24. 2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Within five (5) days thereafter. 25 and 26 are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized. As to manner of preparation – Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared. 6. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from 2. 1. 3. indorsed. 19. ascertained (Sec. the subject matter of the expected action and his interest therein. a party so served may serve cross-interrogatories upon the party proposing to take the deposition. 3. SABUGO & JOHN HENRY C. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. removed. or in the conduct of the parties and errors of any kind which might be obviated. occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers. 17. Rule 23). 26 & 27. 29. 21 & 22 of Rule 23 shall also be followed on deposition upon written interrogatories (Secs. and 5. 20. Rule 23) Q: What is the effect of errors and irregularities in depositions? A: 1. Note: The duties of the officer under Secs. unless the ground. Rule 23). or cured if promptly prosecuted. MARTINEZ 59 . the names or a description of the persons he expects will be adverse parties and their addresses so far as known. Q: What are the contents of the petition? A: The petition shall be entitled in the name of the petitioner and shall show: 1. 19. As to competency or relevancy of evidence – Objections to the competency of witness or the competency. Within ten (10) days thereafter. MASACAYAN & THEENA C. Within three (3) days after being served with re-direct interrogatories. As to form of written interrogatories – Objections to the form of written interrogatories submitted under Secs. in the oath or affirmation. ACADEMICS CHAIR: LESTER JAY ALAN E. As to notice – All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Q: How is deposition upon written interrogatories done? 5. sealed.CIVIL PROCEDURE counsel because he expects the deposition of that witness to be taken. a party may serve recross-interrogatories upon the party proposing to take the deposition (Sec. Rule 23). Rule 24). 20 and 26 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is. A: A party desiring to take the deposition of any person upon written interrogatories 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 or descriptive title and address of the officer before whom the deposition is to be taken. certified. or with due diligence might have been. As to disqualification of officer – Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is 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. 25. of the objection is one which might have been obviated or removed if presented at that time. relevancy.

RHONDEE E. KATRINA NADINE G. Rule 23. (Sec. and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony (Sec. ASST. may be used against: 1. Rule 24) Q: What are the contents of the motion for deposition pending appeal? A: The motion shall state: 1. The reason for perpetuating their testimony. PINEDA. Any purpose by the adverse party where the deponent is a party. RONN ROBBY D. with use on trial not necessarily contemplated. Rule 24) b. YRIZ TAMIE A. CONTRIBUTORS: VICENTE JAN O. (Sec. and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed under Rule 23. MEMBERS: AKEMI B. 3. 2. not privileged. 5. MANANQUIL. and Rule 24 – a method of presenting testimony. SR. BORJA. the deponent may be examined regarding any matter. The party offering the deposition has been unable to procure the attendance of the witness by Subpoena e. MICHAEL ANGELO V. 3. Any party who was present or represented at the taking of the deposition. MARIANO. Unless it appears that his absence was procured by the party offering the deposition c. USES. Custody. 6. Nature. or 2. FLORES. ALBAÑA. Rule 23) Q: What is the dual function of depositions? A: 1. STAMARIA. Note: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice. JUANENGO. JUDGE CESAR D. SUBJECT HEADS: DARRELL L. The witness Resides more than 100 kilometers from the place of trial or hearing. or Q: What is the scope of the examination of the deponent? A: Unless otherwise ordered by the court as provided by Sec. The witness is Unable to testify because of age. UNICA AMOR R. One who had due notice of the deposition (Sec. which is relevant to the subject of the pending action. QUIAMBAO. KRISTINE P. SCOPE OF EXAMINATION Q: To whom may the deposition be used against? A: Any part or all of the deposition. any purpose by any party if the court finds that: DR. BAGANG. DUMLAO. Q: What is the use of deposition pending appeal? A: Depositions are taken pending appeal with the view to their being used in the event of further proceeding in the court of origin or appellate court. and 60 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. DONNA GRAGASIN. JUSTICE OSCAR C. Location of any books. together with a copy of the petition. Upon application and notice. sickness. SUBJECT HEAD: ANGELI P.UST GOLDEN NOTES 2011 each. so far as admissible under the rules of evidence. MIJARES. 7. whether relating to the claim or defense of any other party. Rule 24) 3.. 2. JR. including the: 1. AQUINO. MARA KHRISNA CHARMINA F. 7. GRETCHEN C. that such Exceptional circumstances exist as to make it desirable in the interest of justice (Sec. Condition. MA. Contradicting or impeaching the testimony of the deponent as a witness. USE a. DIANE CAMILLA R. Existence. The names and addresses of the persons to be examined 2. Description. AIDA. PLATON III. TERESE RAY-ANNE O. The witness is Dead b.. it may make an order allowing the depositions to be taken. for the order described in the petition. the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. or other tangible things. 4. 16 or 18. stating that the petitioner will apply to the court. or is out of the Philippines. At least twenty (20) days before the date of the hearing. 7. at a time and place named therein. JUSTICE JAIME M. Rule 24) Q: What is the rule on notice and service of depositions before action? A: The petitioner shall serve a notice upon each person named in the petition as an expected adverse party. HERRERA. documents.2. 4. LANTIN. Rule 24). 4. Rule 23) Q: What are the uses of depositions? A: 1. SY. The substance of the testimony which he expects to elicit from each 3. MENDOZA. LIM. EDELISE D. SHERY PAIGE A. infirmity or imprisonment d. Rule 23 – method of discovery. 6. 2. (Sec. (Sec. Rule 24) Note: The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter (Sec. ROSALES .

Protection Order (Sec. WRITTEN INTERROGATORIES TO ADVERSE PARTIES Q: What is the purpose of interrogatories to parties? A: For eliciting material and relevant facts from any adverse party (Sec. they seek to disclose all material and relevant facts from a party (Sec 1. II. on motion or petition of any party or of the deponent. A: c. A: Interrogatories Interrogatories to parties are not directed to a particular pleading. The Motion is filed with the court in which the action is pending. 29.). 6. Motion or petition is filed in the court in which the action is pending or the RTC of the place where the deposition is being taken. interrogatories from bill of Q: When may taking of deposition be terminated or its scope limited? A: At any time during the taking of the deposition. 16. Rule 12) 3. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 2. Rule 25) Bill of Particulars Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations in a pleading. 18. Rule 23). objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 18. Motion to Terminate or Limit Examination (Sec. embarrass or oppress the deponent or party (Sec. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. the taking of the deposition shall be suspended for the time necessary to make a notice for an order. Rule 23) ACADEMICS CHAIR: LESTER JAY ALAN E. 1. Q: Distinguish protection order from motion to terminate or limit examination. 37. Rule 23). Rule 23). In granting or refusing such order. 29. Rule 23) d. Rule 23) Provides such protection during the taking of deposition. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Rule 23. p. MASACAYAN & THEENA C. Rule 25). 18. Instead. SABUGO & JOHN HENRY C. Rule 23) Provides protection to the party or witness before the taking of deposition. the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable (Sec.CIVIL PROCEDURE 7. it shall be resumed thereafter only upon the order of the court in which the action is pending. or When the constitutional privilege against self-incrimination is invoked by deponent or his counsel (Herrera. The identity and location of persons having knowledge of relevant facts (Sec. Note: If the order made terminates the examination. 2007 ed. 18. 2. 2. Rule 23). Upon a showing that the examination is being conducted in bad faith. 6. Q: Distinguish particulars. WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR ITS SCOPE LIMITED Q: What are the grounds for the termination or limitation of the examination? A: 1. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. (Sec. objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. In such manner as unreasonably to annoy. Rule 23. Upon demand of the objecting party or deponent. Vol. It is therefore directed to a pleading (Sec 1. Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. MARTINEZ 61 .

MARA KHRISNA CHARMINA F. (Sec 26. 62 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. the examination may be completed on other matters or adjourned as the proponent of the question may prefer. XPN: It is necessary before answer has been served because. EDELISE D. They Served directly upon are instead delivered to the the adverse party (Sec officer before whom the 1. unless the court. for an order to compel an answer. JUSTICE OSCAR C. PLATON III. serve more than one set of interrogatories to be answered by the same party (Sec. 3. MANANQUIL. QUIAMBAO. Rule 25) Judgment by default may be rendered against a party who fails to serve his answer to written interrogatories. SUBJECT HEAD: ANGELI P. CONSEQUENCES OF REFUSAL TO ANSWER Q: What are the consequences of refusal to answer? A: (1) If a party or other deponent refuses to answer any question upon oral examination. FLORES. HERRERA. RONN ROBBY D. CONTRIBUTORS: VICENTE JAN O. RHONDEE E. MA. 25. MIJARES. a. SR. Rule 29) Q: How can a party make objections to the interrogatories? A: Objections shall be presented to the court within 10 days after service of the interrogatories. extends or shortens the time (Sec. the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification. on motion and for good cause shown. JUANENGO. If the party is a juridical entity. JUDGE CESAR D. Rule 23) Scope Direct. SUBJECT HEADS: DARRELL L. officer authorized by the Written interrogatories Court to take deposition are directed to the party himself Not served upon the adverse party directly. it may require Q: What is interrogatories? the procedure in taking A: The mode of discovery is availed of by filing and serving upon the adverse party written interrogatories to be answered by the party served. DUMLAO. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories (Sec. A: Depositions Upon Written Interrogatories to Interrogatories to Parties Parties (Rule 25) (Sec. STAMARIA. BORJA.. ASST. and the answers may be used for the same purposes provided in section 4 of the same Rule (Sec.. the issues are not yet joined and the disputed facts are not yet clear. Q: What is the scope and use of interrogatories? A: Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23. TERESE RAY-ANNE O. KRISTINE P. UNICA AMOR R. The proponent may thereafter apply to the proper court of the place where the deposition is being taken. (Sec 1. If the application is granted. JUSTICE JAIME M. AQUINO. Rule 25). for the first set of interrogatories. 2. MENDOZA. Rule 25) The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. (Sec. (Sec. PINEDA. Q: How are interrogatories answered? A: The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them.UST GOLDEN NOTES 2011 Q: Distinguish depositions upon written interrogatories under Rule 23. ALBAÑA. MEMBERS: AKEMI B. at that time. ROSALES . KATRINA NADINE G. redirect. it shall be answered by any of its officers competent to testify in its behalf. GRETCHEN C. MARIANO. YRIZ TAMIE A. DIANE CAMILLA R. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. Q: How many interrogatories may a party serve? A: No party may. Rule 25). Rule 25). without leave of court. JR. cross. LANTIN. Rule 23) Deponent Party or ordinary witness Party only Procedure With intervention of the No intervention. BAGANG. SY. Rule 25). Rule 25) deposition is to be taken. reOnly one set of cross interrogatories Interrogatories 15 days to answer No fixed time unless extended or reduced by the court Note: The party against whom it is directed may make objections to the interrogatories. DONNA GRAGASIN. Section 25 from interrogatories to parties under Rule 25. 5. SHERY PAIGE A. 2. AIDA. MICHAEL ANGELO V. Q: Is leave of court necessary before a party may be served with written interrogatories? A: GR: It is not necessary after answer has been served.3[c]. 4. LIM. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof.

R. Rule 138 (Nestle Philippines. v. (2) If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken. Rule 29). 2. Rule 29). an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination (Sec. or dismissing the action or proceeding or any part thereof. Genuineness of any material and relevant document described in and exhibited with the request. copying. the court may make such orders in regard to the refusal as are just. (d) In lieu of any of the foregoing orders or in addition thereto. G. Feb. or photographing or to permit it to be done. Rule 26). or from introducing evidence of physical or mental condition. If the application is denied and the court finds that it was filed without substantial justification. Note: The sanctions adopted by the rules is not one of compulsion in the sense that the party is being compelled to avail of the discovery mechanics. REQUEST FOR ADMISSION Q: What admissions may be requested from the adverse party? A: Admission of the: 1. the refusal may be considered a contempt of that court (Sec. 21 and 23. Inc. and among others the following: (a) An order that the matters regarding which the questions were asked. otherwise. but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him. 14. (3) If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or an order made under Rule 28 requiring him to submit to a physical or mental examination. especially in the light of counsel’s authority under Secs. (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony. including attorney’s fees (Sec. 2002) ACADEMICS CHAIR: LESTER JAY ALAN E. or an order under Rule 27 to produce any document or other thing for inspection. or 2.CIVIL PROCEDURE the refusing party or deponent or the counsel advising the refusal. MASACAYAN & THEENA C. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 101682. XPN: When allowed by the court and there is good cause shown and the same is necessary to prevent a failure of justice (Sec. or the physical or mental condition of the party. b. No. 1. SABUGO & JOHN HENRY C. or to give a deposition pending appeal. or to permit entry upon land or other property. CA. Dec. or both of them. 3. or rendering a judgment by default against the disobedient party. including attorney’s fees. or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. 3. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. the answer to a request for admission properly served which was signed and sworn to by the counsel of the party so requested. Rule 29). However. 1. or staying further proceedings until the order is obeyed. 6. to pay the proponent the amount of the reasonable expenses incurred in obtaining the order. or the character or description of the thing or land. is sufficient compliance with this rule. or both of them. MARTINEZ 63 . CA. the court may require the proponent or the counsel advising the filing of the application. No. 102404. Rule 25). (c) An order striking out pleadings or parts thereof. the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited with the request or relevant matters of fact set forth therein on account of failure to answer the request for admission (Briboneria v. G. or the contents of the paper. 1992). EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES Q: What is the effect of failure to serve written interrogatories? A: GR: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court. 1. to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application. Truth of any material and relevant matter of fact set forth in the request (Sec.R. Note: The request for admission must be served directly upon the party.

A: Yes. 4. (Sec. he is deemed to have impliedly admitted the facts set forth therein (Herrera. MA. SUBJECT HEAD: ANGELI P. 3. MARA KHRISNA CHARMINA F. accounts. surveying. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just (Sec. Rule 26). papers.UST GOLDEN NOTES 2011 Q: When may request for admission be made? A: At any time after issues have been joined. LIM. the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matter of which an admission is requested or setting forth in detail the reason why he cannot truthfully either admit or deny those matters. PINEDA. ASST. Rule 26). Under the Rules. JUSTICE OSCAR C. SY. b. a. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting. d. (Sec. or photographing the property or any designated relevant object or operation thereon (Sec. DONNA GRAGASIN. 1. or within such further time as the court may allow on motion. 1. Rule 27). JUANENGO. ALBAÑA. MICHAEL ANGELO V. 2. 2[b]. 56. by or on behalf of the moving party. MARIANO. which constitute or contain evidence material to any matter involved in the action and which are in his possession. XPN: Unless. MENDOZA. TERESE RAY-ANNE O. 2. CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR ADMISSION Q: What is the effect for failure to answer a request for admission? A: The facts or documents are deemed admitted. Produce and permit the inspection and copying or photographing. MANANQUIL. a party may file and serve upon any other party a written request for the admission by the latter. BAGANG. QUIAMBAO. MEMBERS: AKEMI B. Rule 26) c. ROSALES . JUSTICE JAIME M. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Q: What may the court order under this mode of discovery? A: Upon motion of any party showing good cause therefor. objects or tangible things. letters. RONN ROBBY D. 4. II. BORJA. photographs. or of any designated documents. the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (Sec. AIDA. the court in which an action is pending may order any party to: 1. YRIZ TAMIE A. not privileged. books. MIJARES. 2007 ed.) Q: When should objections to any request for admission be submitted? A: They shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement and his compliance therewith shall be deferred until such objections are resolved. SUBJECT HEADS: DARRELL L. or 2. EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION Q: What is the effect of failure to file and serve request for admission? A: A party who fails to file and serve a request for admission on the adverse party on material and relevant facts at issue shall not be permitted to present evidence on such facts unless otherwise allowed by the court for good cause shown and to prevent a failure of justice (Sec. LANTIN.. IMPLIED ADMISSION BY ADVERSE PARTY Q: When is there an implied admission? Q: May an admission be withdrawn? A: GR: Each of the matters of which an admission is requested shall be deemed admitted. PLATON III. SR. HERRERA. AQUINO. measuring. custody or control. CONTRIBUTORS: VICENTE JAN O. Rule 26). DIANE CAMILLA R. SHERY PAIGE A. Note: When the defendant is silent on the plaintiff‘s request for admission. each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request which shall not be less than 15 days after service thereof. JR. Rule 26). Rule 26). KATRINA NADINE G. FLORES. JUDGE CESAR D. EDELISE D.. STAMARIA. DUMLAO. GRETCHEN C. which resolution shall be made as early as practicable (Sec. UNICA AMOR R. KRISTINE P. Vol. p. RHONDEE E. EFFECT OF ADMISSION Q: What is the effect of admission? A: Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding (Sec. 64 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 5. Rule 26).

Communication between: a. (Sec 1. Rule 27) The order shall specify the time. (Sec 1. Issued only upon motion with notice to the adverse party. (Sec 3. Rule 28) Q: What is the procedure to avail the production or inspection of documents or things? ACADEMICS CHAIR: LESTER JAY ALAN E. Attorney and client c. 2. Rule 27) 2.CIVIL PROCEDURE Q: What are the limitations on the request for production or inspection of documents or things? A: 1. Note: Since the results of the examination are intended to be made public. MARTINEZ 65 . and may prescribe such terms and conditions as are just. A: Production or Inspection of Documents or Things Essentially a mode of discovery. (Sec 3. SABUGO & JOHN HENRY C. Physician and patient d. custody. Should constitute or contain evidence material to any matter involved in the action and which are in his (the party ordered) possession. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or control (Sec. GR No. 2. A motion must be filed showing good cause for the examination. with notice to the other parties as well aside from the party to be examined. A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. 3. place and manner of making the inspection and taking copies and photographs. MASACAYAN & THEENA C. 2. 23. (Sec 3. even temporarily (Tanda v. 5. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 1959). Subpoena Duces Tecum Means of compelling production of evidence It may be directed to any person whether a party or not. Public officers and public interest Editors may not be compelled to disclose the source of published news Voters may not be compelled to disclose for whom they voted Trade secrets Information contained in tax census returns. Nov. place. Husband and wife b. (Sec 2. 1. Q: What is the effect if the party refuses to deliver the report upon request to the person causing the examination to be made? A: The court may order requiring the delivery on such terms as are just. Issued upon an ex parte application. manner. PHYSICAL AND MENTAL EXAMINATION OF PERSONS Q: When may physical and mental examination of persons be ordered? Q: What are privileged communications? A: 1. conditions and scope of the examination and by the person/s by whom it is made. Rule 28). Should not be privileged. Rule 28) Q: Distinguish the rule on production or inspection of documents or things under Rule 27 from subpoena duces tecum. 3. 4. A: It may be ordered in an action in which the physical or mental condition of a party is in controversy (Sec. Rule 28) The party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination. Q: What is the procedure to avail physical and mental examination of persons? A: 1. and In the petition. Note: This mode of discovery does not authorize the opposing party or the clerk of court or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession. 1. L-13423. 5. of the same mental or physical condition. the same are not covered by the physician-patient privilege. Rule 28) The motion shall specify the time. (Sec 2. and Bank deposits. A: 1. 6. the papers and documents to be produced must be sufficiently described. Rule 28) The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 3. Aldaya. Priest and penitent e. previously or thereafter made. Limited to the parties to the action. 4. Rule 27).

Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. Refuse to allow the disobedient party to support or oppose claims or defenses. Prohibit the disobedient party to introduce evidence of physical and mental conditions. Dismiss the action or the proceeding. 7. Stay further proceedings until order is obeyed. 2006). PLATON III. HERRERA. 7. 4. Render a Judgment by default against the disobedient party. JUANENGO. 4.. 172175. 6. JR. Order the arrest of the refusing party. 3.R. AIDA. LIM. Oct. Render a Judgment by default against the disobedient party. JUSTICE JAIME M.. copying or photographing 1. Rule 28) 2. DIANE CAMILLA R. TERESE RAY-ANNE O.. Strike out all or any part of the pleading of the disobedient party. and when. MARIANO. DUMLAO. BAGANG. G. Stay further proceedings until order is obeyed. 5. MEMBERS: AKEMI B. STAMARIA. ASST. 9. SR. 5. Stay further proceedings until order is obeyed. 3. 2. Require payment of reasonable fees incurred by the proponent. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY Q: What are the sanctions in case of refusal to comply with the modes of discovery? A: Refusal to answer any question upon oral examination Order to compel an answer. MICHAEL ANGELO V. China Banking Corp. Rule 28). GRETCHEN C. 4. Render a Judgment by default against the disobedient party Refusal to the request for admission by adverse party 1.UST GOLDEN NOTES 2011 Q: What is the effect if the physician refuses or fails to make a report? A: The court may exclude his testimony. 10. 5. Dismiss the action or the proceeding. Note: The remedy of the party. MENDOZA. AQUINO. Strike out all or any part of the pleading of the disobedient party. Dismiss the action or the proceeding. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. KATRINA NADINE G. SUBJECT HEADS: DARRELL L. 1. 6. CONTRIBUTORS: VICENTE JAN O. 3. 5. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment. Order the arrest of the refusing party. ROSALES . Render a Judgment by default against the disobedient party. Refusal to produce document or thing for inspection. Rule 28) He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has so examined or may thereafter examine him (Sec. YRIZ TAMIE A. in this case. 8. KRISTINE P. SHERY PAIGE A. No. JUDGE CESAR D. MA. Render a Judgment by default against the disobedient party 8. MANANQUIL. is to file a motion to be relieved of the consequences of the implied admission. DONNA GRAGASIN. EDELISE D. PINEDA. 6. Rule 26). BORJA. 2. 7. 9. 1-4) 2. Require payment of reasonable fees incurred by the proponent (Secs. FLORES. RONN ROBBY D. Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. Contempt. Refuse to allow the disobedient party to support or oppose claims or defenses. (Sec 3. RHONDEE E. MARA KHRISNA CHARMINA F. Each of the matters of which an admission is requested is deemed admitted (Sec. Q: What is the effect if the party examined requests and obtains a report on the results of the examination? A: 1. having always in mind the paramount and overriding interest of justice (Zepeda v. the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. Strike out all or any part of the pleading of the disobedient party. MIJARES. UNICA AMOR R. LANTIN. He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition (Sec. 66 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 2. 6. 4. Refusal to submit to Physical or Mental examination 1. JUSTICE OSCAR C. QUIAMBAO. The matter of how. SY. ALBAÑA. SUBJECT HEAD: ANGELI P. 3.

2. TRIAL Q: When is a case ready for trial? Q: What is a trial? A: It is a judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments (Riano.1. 3. Decision should not be made without trial. Rule 7). without the introduction of evidence. A: When the issues are joined. The period for the introduction of evidence by both parties. there is no agreement as to all the facts in the case. Civil Procedure: A Restatement for the Bar. NCC). last. there is actually no genuine issue. the parties agree in writing. Where from the pleadings. ADJOURNMENTS AND POSTPONEMENTS Q: What is the rule on adjournment and postponement of trial? A: A court may adjourn a trial from day to day. XPNs: There is no need for trial in the following cases: 1. upon the facts involved in the litigation. Rule 30) 1. Sec. depositions and other papers. and its action thereon will not be disturbed by the appellate courts in the absence of clear and manifest abuse of discretion resulting in the denial of substantial justice. 3. A: A: Trial Reception of evidence and other processes. 2028. Issues are joined when all the parties have placed their respective theories and the terms of the dispute are placed before the court. Where the complaint has been dismissed with prejudice (Sec. trial is necessary. except when authorized in writing by the Court Administrator. Q: Distinguish trial from hearing. Rule 17. SABUGO & JOHN HENRY C. 4. 2. nor more than three months in all. as the expeditious and convenient transaction of business may require. p. par. trial may be held only as to the disputed facts (1996 Bar Question). the court may render a summary judgment (Rule 35). 2009 ed. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. and submit the case for judgment on the facts agreed upon.) Q: Is trial necessary? A: GR: When an issue exists.CIVIL PROCEDURE M. Sec. Where the pleadings of the parties tender no issue at all. 6.. 394. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Reason for the postponement. Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard. 5. Art. Rule 16. a judgment on the pleadings may be directed by the court (Rule 34). Q: What is the rule on notice of trial? A: Upon entry of a case in the trial calendar. Hearing Not confined in trial but embraces several stages of litigation. Merits of the case of the movant a. The evidence is material or relevant ACADEMICS CHAIR: LESTER JAY ALAN E. and to any stated time. (Sec 2. the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (Sec. Where. FOR ABSENCE OF EVIDENCE Q: What are the requisites of a motion to postpone trial for absence of evidence? A: Affidavit showing: a. MASACAYAN & THEENA C. Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress (Rule 18. Rule 30) Note: A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier (Republic vs Sandiganbayan) A motion for continuance or postponement is not a matter of right but is addressed to the sound discretion of the court. affidavits. including the pretrial stage. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 5. 5. MARTINEZ 67 . If however. but shall have no power to adjourn a trial for a longer period than one month for each adjournment. REQUISITES OF MOTION TO POSTPONE TRIAL Q: What are postponements? the criteria in granting 1. 2. Supreme Court. Where the case falls under the operation of the Rules on Summary Procedure (Rule 17).

STAMARIA. GRETCHEN C. counterclaim. CONTRIBUTORS: VICENTE JAN O. EDELISE D. SR. LANTIN. KATRINA NADINE G. AIDA. KRISTINE P. UNICA AMOR R. a reverse order of trial shall take place. cross-claim and third party complaint b. and unless the court for special reasons otherwise directs. JUANENGO. 5. upon the facts involved in the litigation. SUBJECT HEAD: ANGELI P. shall adduce evidence of the material facts pleaded by them Parties against whom any counterclaim or crossclaim has been pleaded. PINEDA. SY. permits them to adduce evidence upon their original case Q: What is the rule on stipulation of facts? A: The parties to any action may agree. FLORES. Rule 31. (Sec. shall adduce evidence of his defense. without the introduction of evidence. MANANQUIL. even if he objects or reserves the right to their admissibility. ORDER OF TRIAL. DUMLAO. FOR ILLNESS OF PARTY OR COUNSEL Q: What are the requisites of a motion to postpone trial for illness of party or counsel? A: Affidavit showing: a. in the order to be prescribed by the court Parties may then respectively adduce rebutting evidence only. It must always be in writing. relies upon an affirmative defense. Rule 30) Plaintiff shall adduce evidence in support of his complaint Defendant shall then adduce evidence in support of his defense. AGREED STATEMENT OF FACTS Q: Distinguish stipulation of facts in civil cases visa-vis criminal cases. MA. DONNA GRAGASIN. LIM.. Criminal Cases Must be signed both by the counsel and the accused. MARA KHRISNA CHARMINA F. MIJARES. in writing. 7. REVERSAL OF ORDER Q: What is the procedure in trial? A: Subject to the provisions of Sec. ALBAÑA. RONN ROBBY D. the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. MENDOZA. HERRERA.. ASST. SHERY PAIGE A. and so forth. If the parties agree only on some of the facts in issue. 4. SUBJECT HEADS: DARRELL L.UST GOLDEN NOTES 2011 b. JUDGE CESAR D. PLATON III. Third party defendant. That due diligence has been used to procure it Note: But the adverse party may avoid it by admitting the facts sought to be proven by the absent evidence. Since the defendant admits the plaintiff’s claim but seeks to avoid liability based on his affirmative defense he shall proceed first to prove his exemption. in his answer. MARIANO. the case shall be deemed submitted for decision. RHONDEE E. and submit the case for judgment on the facts agreed upon. the court shall determine the relative order of presentation of their evidence (Sec. DIANE CAMILLA R. BORJA. A: Civil Cases May be signed by the counsel alone who has a special power of attorney. AQUINO. QUIAMBAO. if any.3. JUSTICE OSCAR C. ROSALES . MEMBERS: AKEMI B. unless the court. BAGANG. Presence of such party or counsel at the trial is indispensable. Character of illness is such as to render his non-attendance excusable 3. MICHAEL ANGELO V. if any. Strict. the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: Upon admission of the evidence. for good reasons and in the furtherance of justice. Rule 30) Note: Stipulation of facts is not permitted in actions for annulment of marriage and for legal separation. YRIZ TAMIE A. JR. unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings Note: If several defendants or third party defendants and so forth having separate defenses appear by different counsel. 2. b. TERESE RAY-ANNE O. crossclaim and fourth-party complaint Fourth party. May be made verbally or in writing. JUSTICE JAIME M. 68 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Rule 30) Q: When is a reverse order of trial allowed? A: Where the defendant. counterclaim. shall adduce evidence in support of their defense.

guard against oppression or abuse. cross-claims. under the following conditions: 1. third-party complaints. and There must be at least 2 actions pending before the same court (Sec. 96. and in any case where the parties agree in writing. Q: What are the requisites for consolidation? A: 1. SABUGO & JOHN HENRY C. 7. and 4. 2. If filed with the different branches of the same RTC and one of such cases has not been partially tried. within 10 days from the termination of the hearing (Sec.1. ACADEMICS CHAIR: LESTER JAY ALAN E. DELEGATION OF RECEPTION OF EVIDENCE Q: May the judge delegate the reception of evidence? A: GR: No. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. and upon whose report. (Raymundo v. 2. Dec. hear the parties and report thereon to the court. Test-Case Method By hearing only the principal case and suspending the hearing on the other cases until judgment has been rendered in the principal case. judgment is rendered. L-30887. if confirmed. XPNs: Consolidation becomes a matter of duty when: 1. Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits. There must be joinder of causes of action and of parties. offered to discuss a possible compromise but the other party refused the offer (Sec. G. TRIAL BY COMMISSIONERS Q: What are the ways of consolidating cases? A: Recasting the Cases Reshaping of the cases by amending the pleading. clear congested dockets. the cases retaining their original docket numbers. MARTINEZ 69 . 3. prevent delay. 8. Art. The cases retain their original docket numbers (Riano.). NCC). dismissing some cases and retaining only one case. or issues which may be separately tried. If two or more cases are pending before the same judge. XPN: The reception of evidence may be delegated to the Clerk of Court. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. MASACAYAN & THEENA C. before the commencement of the action or proceeding. Actions involving a common question of law or fact. together with the objections to be resolved by the court. He shall submit his report and transcripts of the proceedings. 1971) Q: When may civil actions be suspended? A: 1. 9. Q: What is the rule on consolidation of cases? A: GR: Consolidation is discretionary upon the court to avoid multiplicity of suits. for him to take testimony. Rule 31). Rule 31). and simplify the work of the trial court and save unnecessary costs and expenses. 2. Felipe. Civil Procedure. 2. Rule 30). The reception of evidence shall be made only by the clerk of that court who is a member of the bar. The judge shall personally receive and resolve the evidence to be adduced by the parties. A: Consolidation Involves several actions having a common question of law or fact which may be jointly tried (Sec. p.CIVIL PROCEDURE 5. Rule 30. If willingness to discuss a possible compromise is expressed by one or both parties. 24. No. Q: Distinguish delegation to clerk of court under Rule 30 from trial by commissioner under Rule 32. Severance Contemplates a single action having a number of claims.1. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL Q: Distinguish consolidation from severance. The delegation may be made only in defaults or ex parte hearings. 2030. or If it appears that one of the parties.R. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. or Q: Who is a commissioner? A: A person to whom a case pending in court is referred. Consolidation Proper It is a joint trial with joint decision. 6. 2009 ed. counterclaims.

ALBAÑA. and Rule upon the admissibility of evidence (Sec. 3. 11. ROSALES . Do all acts and take all measures necessary or proper for the efficient performance of his duties under the order of reference. MIJARES. Issue subpoenas ad testificandum and duces tecum. It can be waived by consent of the parties. Commissioner need not be a lawyer. AQUINO. or For carrying a judgment or order into effect (Sec. KATRINA NADINE G. MARA KHRISNA CHARMINA F. Q: What is the rule on notice of filing of the report? A: Upon the filing of the report. MENDOZA.. 5. 2. Q: What is the effect of failure of parties to appear before a commissioner? A: The commissioner may proceed ex parte or. SR. GRETCHEN C. LIM. he shall set forth his findings of fact and conclusions or law in his report. Objections to the report based upon 4. LANTIN. arises upon motion or otherwise.3. YRIZ TAMIE A. in any stage of a case. PINEDA. Note: An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. b. He shall attach in his report all exhibits.UST GOLDEN NOTES 2011 A: Delegation to Clerk of Court Delegation is made during trial. PLATON III. 4. QUIAMBAO. JUDGE CESAR D. JR. of the evidence presented before him (Sec. POWERS OF THE COMMISSIONER Q: What are the powers of a commissioner? A: 1. a. BORJA. Rule 32). SY. 39). Trial by Commissioner Commissioner can be appointed even after the case has become final and executory. 3. giving notice to the absent party or his counsel of the adjournment (Sec. AIDA. Q: What is the rule on trial by commissioner? A: GR: Discretionary upon the courts. Clerk of court cannot rule on objections or on the admissibility of evidence. SHERY PAIGE A. and they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report. modify. BAGANG. KRISTINE P. STAMARIA. 1. and Submission of accounting by executors or administrator. Baltazar vs. Note: The commissioner’s report is not binding upon the court which is free to adopt. 49 Phil. MICHAEL ANGELO V. the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec.6. JUANENGO. or reject. 2. Rule 32) c. JUSTICE OSCAR C. Rule 32. FLORES. Power to regulate the proceedings in every hearing before him. the report. Swear witnesses. the parties shall be notified by the clerk. 70 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. XPNS: 1. MEMBERS: AKEMI B. Rule 32). if they so desire. RHONDEE E. MARIANO. JUSTICE JAIME M. SUBJECT HEADS: DARRELL L. The court may receive further evidence or recommit the report with instructions (Sec. COMMISSIONER’S REPORT. When a question of fact. Commissioner can rule on objections or on admissibility of evidence. Partition (Rule 69). MANANQUIL. When his powers are not specified or limited. When the trial of an issue of fact requires the examination of a long account on either side. 2. Rule 32). TERESE RAY-ANNE O. When the taking of an account is necessary for the information of the court before judgment. in his discretion. HERRERA. adjourn the proceedings to a future day. depositions. ASST. 3. he shall file with the court his report in writing upon the matters submitted to him by the order of reference. if any. 9). UNICA AMOR R. DUMLAO.. REFERENCE BY CONSENT OR ORDERED ON MOTION Q: How may a case be referred to a commissioner? A: By written consent of both parties. Clerk of court must be a lawyer. 4. papers and the transcript. RONN ROBBY D. Expropriation (Rule 67). 2. DIANE CAMILLA R. SUBJECT HEAD: ANGELI P. CONTRIBUTORS: VICENTE JAN O. EDELISE D. Note: Requirement of hearing cannot be dispensed with as this is the essence of due process. in whole or in part. express or implied. other than upon the pleadings. affidavits. MA. Limpin. Q: When may a case be referred to a commissioner if the consent of the parties are not given? A: 1. NOTICE TO PARTIES AND HEARING ON THE REPORT Q: What is a commissioner’s report? A: Upon completion of the trial or hearing or proceeding before the commissioner. Settlement of estate of a deceased person in case of contested claims. DONNA GRAGASIN.

appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. Guzman. 71 Phil. Note: There is only a one side trial. Labor Union. Rule 36 should be facts and the law on which complied with. 539. Phil. 1. the plaintiff has shown no right to relief N. he shall have the right to present evidence. and the court failed to set said report for hearing. The remedy of the plaintiff is to appeal from the dismissal. McCullough and Co. vs. The defendant may present his evidence. 474). Denial is interlocutory. Osorio. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. I. DEMURRER TO EVIDENCE Q: What is demurrer to evidence? A: It is a motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case (Regalado. however. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. the court will review only so much as may be drawn in question by proper objections. Rule 33) Q: What is the effect of filing of demurrer to evidence? A: Motion Granted but Reversed on Appeal Movant shall have the Movant is deemed to have right to present his waived his right to present evidence evidence. hence. MARTINEZ 71 . it is based). judgment should state Hence. it was ruled that although the parties were not notified of the filing of the commissioner’s reports. When to file Grounds The 10 grounds enumerated in Rule 16 Q: When may a party to the case move for dismissal based on insufficiency of evidence? A: After the plaintiff has completed the presentation of his evidence. 864).1.10. Vol. 646). In Manila Trading and Supply Co. other than objections to the findings and conclusions therein set forth. shall not be considered by the court unless they were made before the commissioner. A: Motion to Dismiss (Rule 16) Before filing of answer Demurrer to Evidence (Rule 33) After the plaintiff rests its case or after the completion of the presentation of evidence That upon the facts and the law. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Order of the court is an Sec. The complaint may NOT be filed. the requirement of due process has been satisfied. Rule 32) Note: GR: Notice of the filing of the report must be sent to the parties for the purpose of giving them an opportunity to present their objections (Santos vs. if the parties who appeared before the commissioner were duly represented by counsel and given an opportunity to be heard. this opportunity to object. The complaint may be refiled depending on the ground of dismissal. vs. Q: What should be heard commissioner’s report hearing? during the A: In the hearing to be conducted on the commissioner’s report. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence.). will not apply. the requirement in clearly and distinctly the Sec. and a decision on the basis of such report. Rule 36 (that adjudication on the merits. in due form. The aim of this rule is to discourage prolonged litigation. ACADEMICS CHAIR: LESTER JAY ALAN E. Motion Denied Note: A demurrer to evidence under Rule 33 is in effect. not appealable. 45 Phil. a motion to dismiss but is not the same as what is described in Rule 16. 1. Q: Distinguish a demurrer to evidence from a motion to dismiss. SABUGO & JOHN HENRY C. XPN: The rule. MASACAYAN & THEENA C.CIVIL PROCEDURE grounds which were available to the parties during the proceedings before the commissioner.. in some instances. If his motion is denied. 50 Phil. p.e. with the other evidence of the case is a decision which meets the requirements of fair and open hearing. may. the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. constitute a serious error in violation of their substantial rights (Govt. 2005 ed. If the motion is granted but on If denied If granted The defendant may file his responsive pleading. is not absolute. it is only the plaintiff who has presented evidence. (Sec. It is not expected to rehear the case upon the entire record (Kreidt vs. 37 Phi. i. The failure to grant the parties. (Sec. 391.

Consequently. 335 SCRA 288) The demurrer to evidence abbreviates judicial proceedings. JR. JUSTICE OSCAR C. WAIVER OF RIGHT TO PRESENT EVIDENCE Q: When is there a waiver of right to present evidence? A: If the demurrer is granted but on appeal the order of dismissal is reversed. DIANE CAMILLA R. MIJARES.1. BAGANG. 3. the appellate court reversing the order granting the demurrer should not remand the case to the trial court. Here. After Nestor had rested his case. the defendant loses his right to present evidence. BORJA. JUDGE CESAR D. PLATON III. RHONDEE E. HERRERA. in case of death of or injuries to passengers. 3. MEMBERS: AKEMI B. GRETCHEN C.UST GOLDEN NOTES 2011 Q: ABS Co. LANTIN. ROSALES . ALBAÑA. (Radiowealth Finance Corporation vs Del Rosario. is the operator of several buses. PINEDA. JUSTICE JAIME M. The right to present evidence after denial of demurrer to evidence does not apply to election cases. ABS Co. has exercised extraordinary diligence. Upon appeal. EDELISE D. was negligent and (2) that such negligence was the proximate cause of the collision. common carriers are presumed to have been at fault or to have acted negligently. 1. Under the Rules of Court. KATRINA NADINE G. One of the buses owned by ABS Co. for damages. ASST. EFFECT OF GRANT Q: What is the effect of granting the demurrer to evidence? A: 1. 2. AQUINO. 1. after the plaintiff has completed the presentation of his evidence. plaintiff has not shown any right to relief. DUMLAO. RONN ROBBY D. YRIZ TAMIE A. 2. GROUND Q: On what ground may the demurrer to evidence be filed? A: The only ground for demurrer to evidence is that the plaintiff has no right to relief. Rule 33) 72 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. LIM. is a common carrier. FLORES. MANANQUIL. CONTRIBUTORS: VICENTE JAN O. SR. Note: The plaintiff may file an appeal and if that appeal was granted. SY. the defendant is deemed to have waived his right to present evidence (Sec.. unless they prove that they observed extraordinary diligence. SHERY PAIGE A. 4. 3. the court should not grant defendant’s demurrer to evidence. Rule 33) The court shall set the date for the reception of the defendant’s evidence.. MICHAEL ANGELO V. made after plaintiff has rested his case. EFFECT OF DENIAL Q: What is the effect of denial of demurrer to evidence? A: 1. son of Nilo. SUBJECT HEAD: ANGELI P. on the ground that upon the facts presented by the plaintiff and the law on the matter. Proof that the defendant was negligent and that such negligence was the proximate cause of the collision is not required. DONNA GRAGASIN. TERESE RAY-ANNE O. contending that Nestor's evidence is insufficient because it did not show (1) that ABS Co. (2004 Bar Question) Q: What is judgment on demurrer to evidence? A: It is a judgment rendered by the court dismissing a case upon motion of the defendant. the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Nestor has shown that he is entitled to the relief he is asking for. An order denying a demurrer to evidence not appealable (because it is interlocutory) XPN: It can be subject to petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority. STAMARIA. Instead. Nestor. MARA KHRISNA CHARMINA F.1. one of the passengers of the ill-fated bus. (Sec. MENDOZA. UNICA AMOR R. ABS Co. The defendant shall have the right to present his evidence (Sec. filed a complaint against ABS Co. QUIAMBAO. the presumption of negligence stands. filed a demurrer to evidence. MARIANO. SUBJECT HEADS: DARRELL L. JUANENGO. The case shall be dismissed. Thus. KRISTINE P. Under Article 1756 of the Civil Code. rammed with a dump truck causing the instantaneous death of Nilo. Rule 33) 4. without proof that ABS Co. 2. A: No. MA. AIDA. Should the court grant or deny defendant's demurrer to evidence? Reason briefly. it should render judgment based on the evidence submitted by the plaintiff.

Judgment by confession – It is one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. No res judicata in dismissal due to demurrer The plaintiff files a motion to deny motion to demurrer to evidence. O. MARTINEZ 73 . Summary judgment (Rule 35) – One granted by the court for the prompt ACADEMICS CHAIR: LESTER JAY ALAN E. This is not allowed. The judgment of dismissal is appealable by the plaintiff. without any changes in substance or any material respect. Judgment upon the merits – It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. 3. 4. 8. Rule 9) – Rendered by the court following a default order or after it received. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence If the court finds plaintiff’s evidence insufficient. MASACAYAN & THEENA C. 9. 7. upon matters submitted to it in an action or proceeding. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases. If plaintiff appeals and judgment is reversed by the appellate court. it will grant the demurrer by rendering judgment acquitting the accused. 2. Its only function is to record some act of the court which was done at a former time. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. ex parte. 5. it will grant the demurrer by dismissing the complaint. Judgment by default (Sec. 3. Judgment of acquittal is not appealable. it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. in order to make the record speak the truth. Clarificatory judgment – It is rendered to clarify an ambiguous judgment or one difficult to comply with. double jeopardy sets in How can demurrer be denied? The court may motu proprio deny the motion. Judgment on the pleadings (Rule 34) – Proper when an answer fails to tender an issue because of a general or insufficient denial of the material allegations of the complaint or when the answer admits the material allegations of the adverse party's pleading. A: Leave of court If granted Civil Case Not required The Plaintiff may appeal from the order of dismissal of the case The Defendant may proceed to adduce his evidence If denied Criminal Case With or Without The Plaintiff cannot make an appeal from the order of dismissal due to the constitutional prohibition against double jeopardy The Defendant may adduce his evidence only if the demurrer is filed with leave of court. If the plaintiff appeals from the order of dismissal If the court finds the prosecution’s evidence insufficient. 6.CIVIL PROCEDURE 5. but which was not then recorded. but which do not appear in the records. JUDGMENTS AND FINAL ORDERS Q: What is a judgment? A: It is a final consideration and determination by a court of the rights of the parties. If there was no leave of court. Q: What are the kinds of judgment? A: 1. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Judgment nunc pro tunc (Now for then) – A judgment intended to enter into the record the acts which had already been done. plaintiff’s evidence. Judgment sin perjuicio – Judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. Judgment upon compromise – It is one conferred on the basis of a compromise agreement entered into between the parties.

Separate judgment (Sec. considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. KATRINA NADINE G. Under the circumstances of the case. The matter may be resolved. CONTENTS OF A JUDGMENT Q: What are the two parts of a judgment? A: 1. made after plaintiff has rested his case. JUDGMENT WITHOUT TRIAL Q: What is a judgment without trial? A: The theory of summary judgment is that although an answer may on its face appear to tender issues—requiring trial—yet if it is demonstrated by affidavits. Corp. MEMBERS: AKEMI B. 4. 15. the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff. depositions. leaving nothing to be done by the court but to enforce by execution what has been determined. 1989). AQUINO. depositions. 10. Several judgment (Sec. GR 88218. A: 1. 10. a hearing would serve no purpose. L-49668. 1. JR. Rule 36) – It is one rendered by a court against one or more defendants and not against all of them. Ratio decidendi – the body of judgment Fallo – The dispositive portion of the judgment. TERESE RAY-ANNE O. CONTRIBUTORS: VICENTE JAN O. after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of said claim. Rule 36) – It is one rendered disposing of a claim among several others presented in a case. ASST. Delivery or restitution of real property. JUANENGO. EDELISE D. MANANQUIL. depositions. 16. 11. MENDOZA. AIDA. vesting title. A hearing is not thus de riguer. LANTIN. MICHAEL ANGELO V. Carcon Devt. leaving the action to proceed against the others. not to receive evidence on the issues set up in the pleadings. The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not. 4. 2. 2. GRETCHEN C. YRIZ TAMIE A. plaintiff has not shown any right to relief. MARIANO. Interlocutory Orders – those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. or other specific acts. 17. CA. Sale of real and personal property. SR. DUMLAO. HERRERA. UNICA AMOR R. Polo. Minute Resolutions – if issued by SC denying or dismissing a petition or a motion for reconsideration for lack of merit. Order denying a motion to dismiss. RONN ROBBY D. 14. vs. Resolutions of Supreme Court denying the petitions to review decisions of Court of Appeals. Sale of real or personal property. KRISTINE P. LIM. SUBJECT HEAD: ANGELI P. Removal of improvements on property subject of execution. on the basis of affidavits. Judgment for specific acts (Sec. on the ground that upon the facts presented by the plaintiff and the law on the matter. Note: Appeal is not proper to question an interlocutory order. PLATON III. JUSTICE JAIME M. It is also the part of judgment that is subject to execution because this is 13. 1989. JUDGE CESAR D. Nov. FLORES. MA. 12.. 11.g. ROSALES . RHONDEE E. Rule 39) – Applicable in cases of: 1. QUIAMBAO. 3. Final judgment – One which disposes of the whole subject matter or terminates the particular proceedings or action. and usually is. Conditional judgment – It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. SHERY PAIGE A. SUBJECT HEADS: DARRELL L. SY. BORJA. it is understood that the challenged decision or order is deemed sustained. delivery of deeds. 2. Judgment on demurrer to evidence (Rule 33) – A judgment rendered by the court dismissing a case upon motion of the defendant. and clearly unnecessary. E. Rule 39) – One which can only be complied with by the judgment obligor because of his personal qualifications or circumstances or one that requires the performance of an act other than: a. Q: What are those which are not considered as decisions? 74 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.UST GOLDEN NOTES 2011 disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Dec. The summary judgment here was justified.. MARA KHRISNA CHARMINA F. MIJARES. or admissions that those issues are not genuine. BAGANG. STAMARIA. and those of the other party in opposition thereto. and b. DONNA GRAGASIN. but sham or fictitious. JUSTICE OSCAR C. The proper remedy to question an interlocutory order is a petition for certiorari under Rule 65. 5. PINEDA. ALBAÑA. The court is expected to act chiefly on the basis of the affidavits. granting an extension of time or authorizing an amendment. 14. 2. admissions submitted by the movants. Payment of money. 3. DIANE CAMILLA R. Delivery of personal property. or 5. Conveyance. Special judgment (Sec. admissions.

except for the amount of damages. 2. said summary judgment must be premised on the absence of any other triable genuine issues of fact. 2003). SABUGO & JOHN HENRY C. 3. Q: How should a conflict between the parts of a decision be resolved? GR: If there is a conflict between the ratio decidendi and the fallo. 2. Note: in the above cases. Authority of the court to hear and determine the case. Reason: the fallo is the final order while the ratio decidendi is merely a statement ordering nothing. Q: What are cases where judgment on the pleadings will not apply? A: 1. FOR THE DEFENDANT Q: When is a defendant allowed to file for summary judgment? A: A party against whom a claim. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.CIVIL PROCEDURE the judgment of the court itself. XPN: If there is a mere mistake in the fallo and the the ratio decidendi is so clear that it states a conclusion. the latter should prevail. or cross-claim is asserted or a declaratory relief is sought may. if the petition is granted or denied and the relief granted.e. a. or otherwise admits the material allegations of the adverse party’s pleading. (Poland Industrial Limited vs. of for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial. MASACAYAN & THEENA C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. NOTE: Only for decisions and final orders on merits and does not apply to those resolved through incidental matters. A genuine issue is such issue of fact which requires presentation of evidence as distinguished from a sham. Rule 34) 4. SUMMARY JUDGMENTS Q: What is a summary judgment? A: A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings. fictitious. Moreover. 1. It cannot be rendered by the court motu proprio. the movants cannot be allowed to obtain immediate relief. and The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. signed by the judge and filed with the clerk of court. 1. JUDGMENT ON THE PLEADINGS Q: When is there a judgment based on pleadings? A: Where an answer fails to tender an issue. The judgment must state clearly the facts and the law on which it is based. Jurisdiction – over the parties and the subject matter The parties must have been given an opportunity to adduce evidence. move with supporting affidavits. admissions and affidavits on record. at any time after the pleading in answer thereto has been served. the fallo should prevail. the court may. The judgment must be in writing. 3. or cross-claim or to obtain a declaratory relief may. move with supporting the requisites of summary 6. depositions or admissions for a summary judgment in his favor upon all or any part thereof (Sec. direct judgment on such pleading. counterclaim. counterclaim. i. Q: What are judgments? A: 1. 11. 2. on motion of that party. Sept. GR 153126. depositions. Its object is to separate what is formal or pretended denial or averment from what is genuine and substantial so that only the latter may subject a party-in-interest to the burden of trial. Otherwise. contrived or false claim (Monterey Foods Corp. Eserjose. Rule 35). Note: Judgment must be on motion of the claimant. personally and directly prepared by the judge. b. FOR THE CLAIMANT Q: When is a claimant allowed to file for summary judgment? A: A party seeking to recover upon a claim. 5. the material facts alleged in the complaint shall always be proved (Sec. vs. The evidence must have been considered by the tribunal in deciding the case. at any time. National Development Company. 3. MARTINEZ 75 . 4. Actions for the declaration of nullity of a marriage Actions for annulment of marriage Actions for legal separation ACADEMICS CHAIR: LESTER JAY ALAN E. There must be no genuine issue as to any material fact. 467 SCRA 500) Q: What are the requisites of a valid judgment? A: 1.

5. SUBJECT HEADS: DARRELL L. JUANENGO. ASST. HERRERA. including the extent to which the amount of damages or other relief is not in controversy. AQUINO. MARIANO. RONN ROBBY D. SY. The facts so specified shall be deemed established. Q: How should a judgment be prepared? A: A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge. by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. the court at the hearing of the motion. 76 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. JUSTICE JAIME M. LIM. stating clearly and distinctly the facts and the law on which it is based. MIJARES. Supporting and opposing affidavits shall be made on personal knowledge. PINEDA. it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court (Ago vs. hence. UNICA AMOR R. It is not the pronouncement of the judgment in open court that constitutes the rendition. ALBAÑA. including attorney’s fees. WHEN THE CASE NOT FULLY ADJUDICATED A: Q: What happens when a case is not fully adjudicated? A: If on motion. TERESE RAY-ANNE O. shall set forth such facts as would be admissible in evidence. BAGANG. CA. KRISTINE P. PLATON III. MANANQUIL. ROSALES . 5. MICHAEL ANGELO V. depositions or admissions for a summary judgment in his favor as to all or any part thereof (Sec. JUDGE CESAR D. MARA KHRISNA CHARMINA F. It may. LANTIN. further adjudge the offending party or counsel guilty of contempt (Sec. STAMARIA. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS Judgment on the pleadings Answer does not tender an issue Summary judgments There is an issue tendered in the answer. signed by him. 1. depositions. Rule 35). DUMLAO. Rule 35). and filed with the clerk of the court (Sec. Rule 35). 6. only on the complaint and the answer Based on the pleadings. YRIZ TAMIE A. judgment is not rendered upon the whole case of for all the reliefs sought and a trial is necessary. c. Malazo. or solely for the purpose of delay. the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur. FLORES. 1. 99 SCRA 164). MEMBERS: AKEMI B. JUSTICE OSCAR C. SUBJECT HEAD: ANGELI P. 4. RHONDEE E. cross-claim or third-party complaint is concerned can file the same Based only on the pleadings alone. It shall thereupon make an order specifying the facts that appear without substantial controversy. but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right Opposing party is given 10 days notice May only be partial Either the plaintiff or the defendant may file it Answer Notice Termination Who can file Basis of the judgment Movants must give a 3-day notice of hearing Entire case may be terminated Only the plaintiff or the defendants as far as the counterclaim. CONTRIBUTORS: VICENTE JAN O. BORJA. after hearing. 2. EDELISE D.UST GOLDEN NOTES 2011 affidavits. KATRINA NADINE G. MA. SHERY PAIGE A. and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith. affidavits.. 6 SCRA 530). Rule 35). and admissions 6. SR. QUIAMBAO. DONNA GRAGASIN. and directing such further proceedings in the action as are just. AFFIDAVITS AND ATTACHMENTS Q: What are the rules on affidavits and attachments on summary judgments? 2. d. AIDA. DIANE CAMILLA R. RENDITION OF JUDGMENTS AND FINAL ORDERS Q: What is a rendition of judgment? A: Rendition of judgment is the filing of the same with the clerk of court. and the trial shall be conducted on the controverted facts accordingly (Sec. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. JR. Even if the judgment has already been put in writing and signed. MENDOZA. GRETCHEN C. It is not the writing of the judgment or its signing which constitutes rendition of the judgment (Castro vs. Rule 36)..

Requisites 1. the aggrieved party may avail of the following remedies: a. Rule 37). 1. Extrinsic fraud. a written notice of which shall be served by the movant on the adverse party. Rule 36). 3. have been discovered and produced at the trial. Must be in writing. Appeal 2. 2. or The decisionor final order is contrary to law (Sec. 1. with a certificate by said clerk that the judgment has already become final and executory (Sec. Rule 37). 2. Collateral attack of a judgment. 2. Note: Whenever a remedy is allowed on the ground of FAME. After the judgment becomes executory. as one of P. 3. MARTINEZ 77 . not more than six (6) months from the entry of the judgment or final order (Sec. Certiorari. b. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 38). the losing party may avail of the following: a. an affidavit of merit is obligatory. Express reference to testimonial or documentary evidence or to provisions of law. Rule 36) Note: There are some proceedings the filing of which is reckoned from the date of the entry of judgment: (a) the execution of a judgment by motion is within five (5) years from the entry of the judgment (Sec. Both shall be made in writing stating the ground / grounds therefor. MASACAYAN & THEENA C. When to file ACADEMICS CHAIR: LESTER JAY ALAN E. Newly discovered evidence.CIVIL PROCEDURE its periods. which could not with reasonable diligence. Before a judgment becomes final and executory. Affidavit of new witnesses. (Sec. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court. Q: What happens if no appeal was filed on time? A: If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules. 4. Affidavit of the existence of FAME and newly discovered evidence. ENTRY OF JUDGMENT AND FINAL ORDER Q: What is an entry of judgment? A: The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment and after the same has become final and executory. accident. Motion for New Trial. 1. POST JUDGMENT REMEDIES Q: What are the available remedies to the aggrieved party after rendition of judgment? A: The remedies against a judgment may refer to those remedies before a judgment becomes final and executory and those remedies after the same becomes executory. (b) the filing of a petition for relief has. mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against and by reason of which the rights of the aggrieved party was impaired. Action to annul judgment. b. 2. MOTION FOR NEW TRIAL OR RECONSIDERATION a. and which if presented. Duly authenticated documents to be introduced. Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15. Petition for relief from judgment. 3. c. MOTION FOR RECONSIDERATION The damages awarded are excessive. A: MOTION FOR NEW TRIAL Grounds 1. and b. and c. The evidence is insufficient to satisfy the decision or final order. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 1. Rule 39). the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. In case of newly discovered evidence: a. WHEN TO FILE Q: Distinguish motion for new trial from motion for reconsideration. GROUNDS b. 1. 2. 7. and d. Motion for Reconsideration. or 2. Affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action. (Sec. Must point out specifically the conclusion of judgment. 1. The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere scrap of paper and will not toll the reglementary period for appeal. 6. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. SABUGO & JOHN HENRY C. would probably alter the result (Sec. 2.

Sept. KATRINA NADINE G. DIANE CAMILLA R. 6). SHERY PAIGE A.. SUBJECT HEADS: DARRELL L. Rule 37). GRETCHEN C. and the action shall stand for trial de novo. JUANENGO. SR. 2. TERESE RAY-ANNE O. 78 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. The recorded evidence taken upon the former trial. (Neypes v. (Sec. ASST. Second motion may be allowed so long as based on grounds not existing or available at the time the first motion was made. MEMBERS: AKEMI B. 3. 3.. Available even on appeal but only on the ground of newly discovered evidence. the remedy is to appeal from the judgment or final order (Sec. it was said that the period for filing a motion for new trial is within the period for taking an appeal. BORJA. Note: The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. 2005) d. EFFECT Q: What is the effect of a grant of the motion? A: If a new trial be granted in accordance with the provisions of the rules. If granted. CA. insofar as the same is material and competent to establish the issues. DENIAL OF THE MOTION. PLATON III. JR. the court may amend such judgment or final order accordingly (Sec. 9. RONN ROBBY D. CA. Rule 41). 1. Rule 41). PINEDA. JUSTICE JAIME M. JUSTICE OSCAR C. The filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. 143 SCRA 92. If granted. shall be used at the new trial without retaking the same (Sec. Rule 37). If the court grants the motion (e. JUDGE CESAR D. SUBJECT HEAD: ANGELI P. ROSALES . DONNA GRAGASIN. 2. Rule 37). CONTRIBUTORS: VICENTE JAN O. RHONDEE E. FLORES. LANTIN. ALBAÑA. UNICA AMOR R. 5. Special proceedings. SY. Where a record on appeal is required. c. AIDA. it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law). Where a record on appeal is required the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 1. 3. Rule 41). it may amend such judgment or final order Q: When is a record of appeal required? A: A record of appeal is required only in: 1. KRISTINE P. Rule 37). 3. In DistilleriaLimtuaco vs. STAMARIA. Rule 40. Hence. 5. G. LIM. Rule 37) Single motion rule (applicable only on a judgment or final order but not to interlocutory order) (Sec. MANANQUIL. it must be filed before the finality of the judgment (Sec. GRANT OF THE MOTION. Available against judgments or final orders of both the trial and appellate courts.UST GOLDEN NOTES 2011 A motion for new trial or reconsideration should be filed within the period for taking an appeal. MARA KHRISNA CHARMINA F. DUMLAO. but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues. 6. the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order (Sec. Sec. Section 3. If denied. Rule 40) Q: What is the effect of filing a MNT/ MR on the period to appeal? A: The filing of a timely motion interrupts the period to appeal (Section 2. HERRERA.141524. shall be used at the new trial without retaking the same (Sec. MARIANO. BAGANG. Both must be resolved within 30 days from the time it is submitted for resolution Both are prohibited motions under Summary Procedure COMMON PROVISIONS Q: What is the period to file motion for new trial or reconsideration? A: Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or final order appealed from. Rule 40). Rule 40. MA. QUIAMBAO. and the action shall stand for trial de novo. A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals (Sec. 14. No motion for extension of time to file a motion for reconsideration shall be allowed.g. MICHAEL ANGELO V. Rule 40). EFFECT Q: What is the effect if the MNT or MR is denied? A: The movant has a “fresh period” of 15 days from the receipt or notice of the order denying or dismissing the motion within which to file a notice of appeal (fresh period rule). AQUINO. YRIZ TAMIE A. EDELISE D. Note: The amended judgment is in the nature of a new judgment which supersedes the original judgment. the original judgment or final order shall be vacated. MENDOZA. MIJARES. Other cases of multiple or separate appeal (Section 3. the original judgment shall be vacated or set aside.. No. Rule 37) No new trial or hearing will take place and the judgment will be based on the pleadings submitted by the parties. Note: No extension of time to file a Motion for New Trial or Motion for Reconsideration shall be allowed.R.

Note: Under Sec.compliance with the requirements of the Rules would reduce the motion to a mere proforma motion.9. 7). 1986). Q: Distinguish Newly Discovered Evidence from Forgotten Evidence. Q: When should the motion be resolved? A: The motion shall be resolved within 30 days from the time it is submitted for resolution (Section 4. 113703 January 31. 1997). The movant has a fresh period of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. and is of such weight that if admitted would probably change the judgment (BERRY RULE) (CIR v. Rule 45 – Appeals by certiorari to the SC Note: The “fresh period rule” does not refer to the period within which to appeal from the order denying the motion for reconsideration. 70895. Rule 43 – Appeals from quasi-judicial agencies to CA 5. GR No. May 30.forma motion shall not toll the reglementary period of appeal. FRESH 15DAY PERIOD RULE Q: What is the remedy if the motion is denied? A: The remedy is to appeal from the judgment or final order itself subject of the motion for reconsideration or new trial (Sec.forma motion? A: A pro. No.forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marikina Development Corporation v. If the court finds that a motion affects the issues of the case as to only a part. Soriano Corporation. Such evidence could not have been discovered and produced at the trial with reasonable diligence.CIVIL PROCEDURE accordingly (Sec. SABUGO & JOHN HENRY C. 077-12-SC). or only one. REMEDY WHEN MOTION IS DENIED. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. A. Q: What is a pro. Rule 40 – MTC to RTC 2. or less than all of the matters in controversy. A: NEWLY DISCOVERED EVIDENCE Evidence was not available to a party during a trial. Q: What happens if the motion is filed without the required affidavits? A: Non. GR No. 9. Flojo. Rules of Court). the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. Rule 37. ACADEMICS CHAIR: LESTER JAY ALAN E.Rule 37 a pro. 251 SCRA 87). MASACAYAN & THEENA C. or both steps are taken. or less that all of the parties to it. The evidence was discovered after trial. Q: Is a MNT/ MR a prerequisite for taking an appeal or petition for review? A: A final MNT/ MR is not a prerequisite to an appeal. Rule 41 – Appeals from RTC 3. The amended judgment is in the nature of a new judgment which supersedes the original judgment. e. Rule 37). 2. MARTINEZ 79 . not merely cumulative. 172 SCRA 315). It is not a mere supplemental decision which does not supplant the original but only serves to add something to it (Esquivel vs. Rule 42 – Petition for Review from RTC to CA 4. FORGOTTEN EVIDENCE Evidence was already available to a party and was not presented through inadvertence or negligence of the counsel. whereby errors of law or irregularities are expunged from the record or new evidence is introduced. but to the period within which to appeal from the judgment itself because an order denying a motion for reconsideration is not appealable. Alegre. A. Q: When does the fresh period rule apply? A: It applies to: 1. corrobative or impeaching. Rule 37.M. Japson. 2. Q: What are the requisites of newly discovered evidence as a ground for New Trial? A: 1. a strict or prospective application of said ruling is in order (Habaluyas v. MOTION FOR NEW TRIAL Q: What is a Motion for New Trial? A: It is a motion for the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory. It is no longer assailable by certiorari. 3. and was discovered only thereafter. it is not a ground for new trial. And since the purpose is to expedite the final disposition of cases. a petition for review or petition for review on certiorari. (Sec. and Such evidence is material. 3).

Juan filed a motion for reconsideration. APPEALS IN GENERAL Q: Is the right to appeal part of due process? Q: Is a second motion for new trial allowed? A: Yes. GR No. Those not so included are deemed waived.UST GOLDEN NOTES 2011 A: The purpose of a motion for reconsideration is precisely to request the court or the quasi. SR. FLORES. When should Juan file his notice of appeal to the CA? A: Juan has 15 days from the receipt of the decision of the trial court denying his motion for reconsideration to file his notice of appeal. 2008. However. Rule 37) MOTION FOR RECONSIDERATION Q: What is a motion for reconsideration? A: A motion for reconsideration under Rule 37 is one that is directed against a judgment or a final order. the exercise of such shall not be reviewable on appeal UNLESS a clear abuse thereof is shown. MARIANO. UNICA AMOR R. DIANE CAMILLA R. of the parties to it. ROSALES . It is not the motion for reconsideration of an interlocutory order which for instance precedes a petition for certiorari. KRISTINE P. Rule 37). 2008). Q: When may there be partial reconsideration? MOTION FOR REOPENING OF TRIAL The judge may act motu propio May properly be presented only after either or both parties have formally offered and closed their evidence before judgment Controlled by no other than the paramount interest of justice. 14. CA. the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. Q: Is a second motion for reconsideration allowed? A: A second motion for reconsideration is not allowed. Pearlbank Securities. JUANENGO. 3. JR. MICHAEL ANGELO V. JUSTICE JAIME M.judicial body to take a second look at its earlier judgment and correct any errors it may have committed therein (Reyes v. TERESE RAY-ANNE O. The rule does not apply to a motion for reconsideration of an interlocutory order. PINEDA.R. the latter received the adverse decision of the RTC on March 1. MIJARES. Sec. JUDGE CESAR D. or less than all of the matters in controversy. DONNA GRAGASIN. SY. 121 in criminal cases A: If the court finds that a motion affects the issues of the case as to only a part. SUBJECT HEADS: DARRELL L. RHONDEE E. July 30. STAMARIA. A second motion for new trial is authorized by the Rules. No. To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases. A: EXTRINSIC FRAUD Connotes any fraudulent scheme executed by the prevailing party outside trial against the losing party who because of such fraud was prevented from presenting his side of the case INTRINSIC FRAUD Refers to the acts of party during trial which does not affect the presentation of the case Q: Distinguish Motion for New Trial from Motion for Reopening of the Trial. BORJA. resting entirely on the sound discretion of the court. 2008. BAGANG. Q: What is the purpose of a MR? 80 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. a second motion for new trial may be filed within the period allowed but excluding the time during which the first motion had been (Section 5. LIM.. counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. 2008. The order denying the motion for new trial or reconsideration is the “final order” (Fresh period rule) (Neypes v. PLATON III. Q: In a case filed by Pedro against Juan. when a ground for a new trial was not existing or available when the first motion was made. the SC deemed it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC. A motion for new trial shall include all grounds then available. GRETCHEN C. RONN ROBBY D. or less than all. MARA KHRISNA CHARMINA F. 37 in civil cases and Sec. or only one. 2. MENDOZA. On March 14. MA. ALBAÑA.. The prohibition on a second motion applies only when the motion is directed against a judgment or a final order. MEMBERS: AKEMI B. Sept. DUMLAO. MANANQUIL. YRIZ TAMIE A. HERRERA. A: MOTION FOR NEW TRIAL A motion must be filed Proper only after promulgation of judgment Based upon specific grounds mentioned in Sec. Q: Distinguish extrinsic fraud from intrinsic fraud. SUBJECT HEAD: ANGELI P. ASST. Rule 41 of the 1997 Rules of Civil Procedure states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. Juan received the decision of the trial court dismissing his motion on April 1. EDELISE D. G. JUSTICE OSCAR C. 7. QUIAMBAO. SHERY PAIGE A. KATRINA NADINE G. CONTRIBUTORS: VICENTE JAN O. 141524. 2005). AIDA. 171435. LANTIN. AQUINO.

97 SCRA 407). December 13. 679). Q: What are those cases which allow multiple appeals? A: The civil cases which admit of multiple appeals are: 1. Aubga. Order denying a petition for relief or any similar motion seeking relief from judgment.Judgment or final order or appeal and the record part thereof appealed from. Appeal by guarantor does not inure to the principal (Luzon Metal vs. b. except when the proceedings were not duly recorded as when there was absence of a qualified stenographer (Sec. NLRC. Special proceedings. b. d. The appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record (Rule 21.Nielsen v. 22[d]. 135 SCRA 342). ACADEMICS CHAIR: LESTER JAY ALAN E. There can be no change of theory (Naval vs. Interim Rules). MASACAYAN & THEENA C. Rule 40) because there is only one court to which it shall be made – RTC If decision is made by the RECORD ON APPEAL Required only in Special Proceedings and other cases of multiple or separate appeals. (30 days is the period for filing. MARTINEZ 81 . Q: What are the basic guidelines as regards appeal? A: a. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. The appellate courts must decide the case on the basis of the record. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.Material dates showing the In court and served to timeliness of the appeal the adverse party. GR No. MATTERS NOT APPEALABLE Q: What cases are not appealable? A: 1. The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun.3. Should indicate: If required. There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao vs. c. (Sec 5. Q: Distinguish Notice of Appeal from Record on Appeal? A: NOTICE OF APPEAL Deemed perfected as to him upon the filing of the notice of appeal. on appeal shall be filed 3. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. SABUGO & JOHN HENRY C. 29 SCRA 184). GR No. rule 41) Period available is 15 days before the judgment becomes final and executor appeal beyond that period) If required. i. There can be no new parties. a. 88 SCRA 610). notice of appeal to the RTC must disclose where appeal is to be taken. JUDGMENT AND FINAL ORDERS SUBJECT TO APPEAL Q: What kind of judgments and final orders are subject to appeal? A: An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec. e. Deemed perfected as to him with respect to the subject matter thereof upon its approval. the appellant has 30 days to file and serve both notice and record on appeal. Bataclan. Actions for recovery of property with accounting. h. 2. 3. BO 129. CA. An interlocutory order is not appealable until after the rendition of the judgment on the merits. of Orion vs. Interlocutory order. Actions for partition of property with accounting.CIVIL PROCEDURE A: The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law (Stolt. Rule 21[d]. Shell. 2. In ejectment cases. notice of appeal need not state the court to which the appeal is being taken (Sec. the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin vs. If decision is made by the courts of 1st level.Parties to the appeal. 147623. 483 SCRA 102).1. No trial de novo shall be made. There can be no new matters (Ondap vs. g. Manila Underwriter. Rule 41). July 5. both the notice of 2. Concha. 1996). f. Special civil actions of eminent domain and foreclosure of mortgage. Q: What is the rationale for allowing multiple appeals? A: To enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final (Roman Catholic Archbishop of Manila v. Interim Rules). 50 Phil. copies of 1. 111324. CA. and 4. only the court may approve the record on RTC in its original jurisdiction. 2005).

the proper ground is to appeal from the judgment (Sec. It is an error closely related to or dependent on an assigned error and properly argued in the brief. Serrano. Feb. SR. which it could have done had it been aware of it at the time of the hearing before the trial court. JUANENGO. SHERY PAIGE A. YRIZ TAMIE A. KATRINA NADINE G. No. b. Rule 37). CONTRIBUTORS: VICENTE JAN O. 1 Rule 41). and 7. It is an error that affects the jurisdiction over the subject matter.M. 4. QUIAMBAO. justice and due process (Bank of Commerce vs. The court may consider an error not raised on appeal provided the same falls within any of the following categories: a. XPN: An order denying a motion for new trial or a motion for reconsideration may no longer be assailed by way of Rule 65 as per A. KRISTINE P. The court as a rule shall not consider errors not raised in the assignment of errors XPN: Sec. or any other ground vitiating consent. 5. 451 SCRA 484). b. AQUINO. JUDGE CESAR D. For an appellate court to consider a legal question. It is an error that affects the validity of the judgment appealed from. or when the issues raised present a matter of public policy (Baluyot v. Order dismissing an action without prejudice (Sec.. Lack of jurisdiction. MARA KHRISNA CHARMINA F. 5. MODES OF APPEAL Q: What are the different modes of appeal? A: 1. 07-7-12-SC).UST GOLDEN NOTES 2011 3.712. or when the issues raised present a matter of public policy (Baluyot vs. BORJA. 6. ALBAÑA. or It is a plain and clerical error. as it finds that the consideration is necessary in arriving at a complete and just resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice (Asian Terminals. unless the court allows an appeal therefrom. 07-7-12-SC. Q: Can the court consider errors not raised in the assignment of errors? A: GR: No. RONN ROBBY D. 2007). GRETCHEN C. c. No. d. XPNs: The rule admits of exceptions as in cases of: a. GR 144435. Inc. where the lower court committed plain error. 1 as amended by A. where there are jurisprudential developments affecting the issues. Q: Can a question that was never raised in the courts below be allowed to be raised for the first time on appeal? A: GR: No. mistake or duress. 9. it is true that this rule admits of exceptions as in cases of lack of jurisdiction. JUSTICE JAIME M. cross-claims and third-party complaints. STAMARIA. CA. HERRERA. v. LANTIN. SUBJECT HEAD: ANGELI P. SY. Order disallowing or dismissing an appeal. Note: The order denying a motion for new trial or reconsideration has been deleted from the list by virtue of A. while the main case is pending. February 6. confession or compromise on the ground of fraud. MANANQUIL. MARIANO. 2007). MICHAEL ANGELO V. It is an error which affects the proceedings. Judgment or final order for or against one or more of several parties or in separate claims. Order of execution. Where the lower court committed plain error.NLRC. SUBJECT HEADS: DARRELL L. BAGANG. FLORES. TERESE RAY-ANNE O. 541 SCRA 105. Where there are jurisprudential developments affecting the issues. MENDOZA. PINEDA. Ordinary appeal (Rule 40 and 41) 82 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE Q: What is the remedy in cases where appeal is not allowed? A: GR: In those instances where the judgment or final order is not appealable. e. c. DIANE CAMILLA R. 6. ROSALES . MIJARES. Q: What is the basis of the court’s power to rule on such issues not raised on appeal? A: The court is imbued with sufficient authority and discretion to review matters. 457 SCRA 32). DUMLAO. UNICA AMOR R. It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory. Poblete. counterclaims. DONNA GRAGASIN.M. JUSTICE OSCAR C. it should have been raised in the court below (PNOC vs. not otherwise assigned as errors on appeal. EDELISE D.M. A question that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play. PLATON III. No. c. 2007). Rule 51 precludes its absolute application. 144435. MA. RHONDEE E.. AIDA. Poblete GR No. LIM. ASST. 07. MEMBERS: AKEMI B. JR. Order denying a motion to set aside a judgment by consent. d. the aggrieved party may file the appropriate special civil action under Rule 65 (Sec.

43) Appeal by certiorari(Rule 45) Q: Distinguish the following modes of appeal. final order unless the CA directs otherwise (Sec. 4. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Petition for review (Rule 42. Within 15 days from receipt of judgment or final order or of last publication (Sec. Within 30 days after notice of the judgment or final order (Sec 3. 3. of law. MARTINEZ 83 . Questions of fact or mixed questions of fact and law. b. Rule 40). b. Rule 40). A: MODE OF APPEAL PERIOD OF APPEAL PERIOD OF APPEAL IF A MR OR MNT WAS FILED (Neypes Doctrine) ISSUES THAT MAY BE RAISED Ordinary Appeal (MTC to RTC) Rule 40 a. Rule 43). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Notice of Appeal Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 2. Record of Appeal Ordinary Appeal (RTC to CA) Original Jurisdiction Rule 41 a. Rule 43). judgment. Rule 41). Within 30 days after notice of the judgment or final order (Sec 2. Questions of fact. Rule 43). of law. Notice on appeal Record on appeal 2. June 19. Note: The appeal shall not stay the award. Upon payment of the full amount of the docket and other lawful fees before the expiration of the reglementary period. Note: appeal in habeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from (AM No. 2001) Within 15 days from notice of the decision to be reviewed or from the denial of a MR or new trial (Sec. 01-1-03-SC. Within 15 days from receipt of the order denying motion for reconsideration or new trial.CIVIL PROCEDURE a. Rule 44). SABUGO & JOHN HENRY C. b. Note: The court may grant an additional period of 15 days provided the extension is sought: a. Within 15 days from receipt of the order denying motion for reconsideration or new trial. MASACAYAN & THEENA C. Record of Appeal Questions of fact or of law or mixed question of fact and law that has been raised in the court below and is within the issues framed by the parties (Sec. Petition for Review (RTC to CA) Appellate Jurisdiction Rule 42 Questions of fact. or mixed questions of fact and law Within 15 days from receipt of the order denying motion for reconsideration or new trial. Petition for Review (QuasiJudicial Bodies to CA) Rule 43 Within 15 days from receipt of the order denying motion for reconsideration or new trial. and b. 15. 1 Rule 42). Notice of Appeal Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 3. or mixed questions of fact and law (Sec. 12. ACADEMICS CHAIR: LESTER JAY ALAN E. Upon proper motion. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 41). 3.

It is a mode of appeal. JUDGE CESAR D. STAMARIA. SHERY PAIGE A. MIJARES. MA. RA 9282. 1. MICHAEL ANGELO V. QUIAMBAO. AQUINO. HERRERA. GR 141524. KRISTINE P. Petition for Certiorari(Rule 65) Petition is based on questions of jurisdiction. It is a mode of appeal but the petition used is Rule 65. whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion. FLORES. in the process. It is a mode of review. final order or resolution appealed from. JUSTICE OSCAR C. Sandiganbayan to SC (Sec. UNICA AMOR R. LANTIN.41. RTC to SC (Sec 2c. SY. 2. Final Orders or Resolutions (Rule 64) Petition is based on questions of law. CA to SC (Sec.43. AIDA. CTA en banc to SC (Sec.. 07. 1. MARIANO. Rule 45). MEMBERS: AKEMI B. Rule 45). 2. otherwise. or within 15 days from notice of the denial of the petitioner’s motion for new trial or motion for reconsideration filed in due time (Sec. Obviously. Q: Distinguish Rule 45. MENDOZA. MANANQUIL. 2. and c. DIANE CAMILLA R. the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41. SUBJECT HEADS: DARRELL L. CA. Sec. YRIZ TAMIE A. Rule 45). minimize errors of judgment. the new 15 day period may be availed of only if either motion is filed. DUMLAO.42. CONTRIBUTORS: VICENTE JAN O. Within 15 days from notice of the judgment. JUSTICE JAIME M. LIM. BAGANG. Petition for Review Discretionary No records are elevated unless the court decrees it Filed with the CA As to duration of residual powers: Until the CA gives due course to the petition. 08-116-SC). TERESE RAY-ANNE O. JR. The motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and. Rule 45). ASST. SUBJECT HEAD: ANGELI P. GRETCHEN C. 1. 1 Rule 45 as amended by AM No. RONN ROBBY D. 5. b. 4. JUANENGO. DONNA GRAGASIN. Rule 64 and Rule 65. Note: This fresh period rule applies Rule 40. 14. 2005) BEFORE FINALITY OF JUDGMENT (1) ORDINARY APPEAL (2) PETITION FOR REVIEW (3) PETITION FOR REVIEW ON CERTIORARI Q: Distinguish an ordinary appeal from a petition for review. A: Ordinary Appeal A matter of right All the records are elevated from the court of origin Notice or record on appeal is filed with the court of origin As to duration of residual powers: Until the records are transmitted to the appellate court.UST GOLDEN NOTES 2011 Petition for Review on Certiorari Rule 45 1. SR. BORJA. A: Appeal by Certiorari(Rule 45) Review of Judgments. Accordingly. 3. ROSALES . Appeals from a judgment or final order in a petition for a writ of amparo to the SC (AM No. Rule 45). RHONDEE E. MARA KHRISNA CHARMINA F.SC). There is a motion for extension of time duly filed and served. PLATON III. Rule 41). Within 15 days from receipt of the order denying motion for reconsideration or new trial Only questions of law (Sec. Petition is based only on questions of law.. Sept. (Neypes vs. 07-9-12. Appeals from a judgment or final order in a petition for a writ of Habeas Data (AM No. and 6. ALBAÑA.SC).7-12. PINEDA. 11. There is full payment of the docket and other lawful fees and the deposit for costs. EDELISE D. that is. and 45. KATRINA NADINE G. Note: The SC may for justifiable reason grant an extension of 30 days only within which to file the petition provided: a. 84 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.

Q: May a period of appeal be extended? A: Yes. final orders or resolutions are governed by Rule 43 Involves the review of the judgment final orders or resolutions of the CA. final order or resolution appealed from. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. order or resolution appealed from. Motion for reconsideration or for new trial is required. if allowed under the procedural rules of the Commission. Motion for reconsideration is not required. Filed with the SC. board. tribunal. quasi-judicial agency. If a motion for reconsideration or new trial is filed. it does not stay the challenged proceeding The judge. Filed with the RTC. 5. CA. Note: Where both parties are appellants. corporation. Unless a writ of preliminary injunction or temporary restraining order is issued. The court is in the exercise of its appellate jurisdiction and power of review. and 6. Rule 41). The filing of MNT or MR. officer or person shall be public respondents who are impleaded in the action. 02-03-SC) Court exercises original jurisdiction. (Riano. Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just. The COMELEC and COA shall be public respondents who are impleaded in the action.CIVIL PROCEDURE Involves review of judgments. final order or resolution sought to be reviewed. MASACAYAN & THEENA C. Sandiganbayan. 1999 Bar Question) Filed within 30 days from notice of judgment. under the sound discretion of the court. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Matters not assigned as errors on appeal but upon which the determination of a question properly assigned is dependent. 2009 ed. Matters not assigned as errors on appeal but are evidently plain or clerical errors within the contemplation of law. Filed not later than 60 days from notice of judgment. Civil Q: What is the period to appeal? A: Within 15 days from notice of the judgment or final order appealed from. pp.) f. MARTINEZ 85 . and the lower court or quasi-judicial agency is not impleaded. ISSUES TO BE RAISED ON APPEAL Q: What issues are to be considered in appeal? Procedure: A Restatement for the Bar. Filed with the SC. (1991. Grounds not assigned as errors but affecting the jurisdiction over the subject matter 2. they may file a joint record on appeal (Sec. Sandiganbayan or COMELEC. SABUGO & JOHN HENRY C. e. No. Q: What is the effect if the extension of the period to appeal is granted/denied? ACADEMICS CHAIR: LESTER JAY ALAN E. Matters not assigned as errors on appeal but closely related to an error assigned. 3. Where record on appeal is required: Within 30 days from notice of the judgment or final order. The mere filing of the motion for extension of time to perfect the appeal does not suspend the running of the reglementary period. 4. The court is in the exercise of its appellate jurisdiction and power of review. Note: CSC judgments. In habeas corpus cases. Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice. Stays the judgment or order appealed from The appellant and the appellee are the original parties to the action. RTC or other courts on the merits Filed within 15 days from notice of judgment. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. shall interrupt period fixed. The period shall be interrupted by a timely Motion for New Trial or Motion for Reconsideration. May be directed against an interlocutory order of a court or where there is no appeal or any other plain. 8. another 60 days shall be given to the petitioner (A. court.M. 445-446. CTA. speedy or adequate remedy. PERIOD OF APPEAL A: GR: Only errors assigned in the brief may be considered on appeal XPNs: 1. 48 hours from notice of judgment or final order appealed from. final orders or resolutions of COMELEC and COA. Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored. 1998.

JUANENGO. BORJA. BAGANG. and the notice thereof is served AFTER the expiration of the period to appeal. SR. DONNA GRAGASIN. or if it is denied after the lapse of the period to appeal. JR. DUMLAO. STAMARIA. TERESE RAY-ANNE O. SUBJECT HEAD: ANGELI P. the trial court may. the court still has jurisdiction to admit and give due course to it. RONN ROBBY D. FLORES. where a stringent application of the rule would not serve the demands of substantial justice). but is merely stayed and may be affirmed. (Habaluyas v. Perfection of appeal within the reglementary period is jurisdictional. motuproprio or on motion. MA. prior to the transmittal of the original record or record on appeal to the appellate court. PINEDA. MARIANO. SHERY PAIGE A. PERFECTION OF APPEAL Q: When is an appeal perfected? What is its effect? A: 1. JUSTICE OSCAR C. RHONDEE E. modified or reversed or findings of facts or conclusions of law may be adopted by reference. PROVIDED there are justifiable reasons (e. XPN: When there has been extrinsic fraud. Effect: The court loses jurisdiction only over the subject matter upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties 3. SUBJECT HEADS: DARRELL L. THE RIGHT TO APPEAL IS LOST. resort to Petition for relief from judgment under rule 38. This is tantamount to a valid order granting the extension if any is prayed for. Effect: RTC loses jurisdiction over the case upon the perfection of the appeal and the expiration of the time to appeal of the other parties. Q: Is the perfection of an appeal jurisdictional? A: GR: Yes. HERRERA. MIJARES. As to reversal of judgment GR: Binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal XPN: Where the rights of the parties appealing are so interwoven and dependent on each other as to be inseparable. 142 SCRA 208 (1986)). QUIAMBAO. Note: In either case. XPN: Not applicable to civil cases under the Rules on Summary Procedure which provides that the decision of the RTC in civil cases governed by said Rule including forcible entry and unlawful detainer cases. Note: Even if the appeal was filed out of time. CONTRIBUTORS: VICENTE JAN O. DIANE CAMILLA R. Appeal by record on appeal – perfected as to the party with respect to the subject matter thereof upon the approval of the record on appeal filed in due time and upon payment of the appellate court docket fee. ALBAÑA. mistake. accident. Appeal by notice of appeal – perfected as to the party upon filing of the notice of appeal in due time and upon payment of the appellate court docket fee. UNICA AMOR R. GRETCHEN C. MEMBERS: AKEMI B. The court may also exercise its residual powers. Q: What is the effect of a perfected appeal? A: GR: Judgment is not vacated by appeal. As to affirmative relief – an appellee who has himself not appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court 2. AIDA. in the exercise of the equity jurisdiction of the courts. YRIZ TAMIE A. JUSTICE JAIME M. MANANQUIL. Appeal by petition for review – upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees. shall be immediately executory without prejudice to a further appeal that maybe taken therefrom. dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees on time. g. Q: Would non. PLATON III.payment of docket fees result to the dismissal of the case? 86 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MICHAEL ANGELO V. JUDGE CESAR D. the extension must be computed from the date of notice. ASST. in which case a reversal as to one operates as a reversal to all. LANTIN. the appeal is deemed perfected as to the petitioner. KATRINA NADINE G. Q: What is the effect of judgment on those who failed to appeal? A: 1. or excusable negligence (FAME). Japson. Note: If no action is taken on the motion for extension. EDELISE D.g. MARA KHRISNA CHARMINA F. SY. AQUINO. LIM.UST GOLDEN NOTES 2011 A: If granted. ROSALES ... MENDOZA. KRISTINE P. Effect: the court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties 2.

in such case. If the case was tried on the merits by the lower court without jurisdiction over the subject matter. GR No. Q: Where to appeal from a judgment or final order of a Municipal Court? A: An appeal from a judgment or final order of Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains (Section 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2. the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory (Regalado v. b) Affirm and the ground of dismissal is lack of jurisdiction over the subject matter – the action of the RTC is a mere affirmation of the dismissal. 1. Copies of the notice. 8. ACADEMICS CHAIR: LESTER JAY ALAN E. the RTC shall not dismiss the case if it has original jurisdiction. February 6.CIVIL PROCEDURE A: GR: Payment of docket fee is jurisdictional. The MTC clerk transmits record to the RTC within 15 days from perfection of appeal. MASACAYAN & THEENA C. and record on appeal when required. the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 2. it is a declaration of the merits of the dismissal. However: the rule must be qualified: 1. Rule 40). 2. Q: How should the RTC decide an appeal from an order of a lower court dismissing a case without trial or those rendered without jurisdiction? A: 1. Rule 40). Without such payment. RTC may: a) Affirm. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. The RTC shall try the case on the merits as if the case was originally filed with it. 158992. Rule 40 allows an appeal from an order of the MTC dismissing a case for lack of jurisdiction. A: Appeal decision of MTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment. Go. Within 15 days from receipt of appellant’s memorandum – appellee files his memorandum. shall be served on the adverse party. The failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal. Within 15 days from notice of appeal – appellant submits memorandum to the RTC. 2. Rule 40). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. of the appeal. January 26. and shall admit amended pleadings and additional evidence (Sec. Spouses Luriz. Such power should be used in the exercise of the court’s sound discretion (Republic v. Where a record of appeal is required. Rule 41) XPN: Section 8. Parties are given notice that the records have been received by the RTC. Rule 40). 2007). Note: Failure of the appellant to file a memorandum shall be a ground for the dismissal of the appeal. c) Reverse – it shall remand the case for further proceedings. h. MARTINEZ 87 . Q: What if the case is dismissed for lack of jurisdiction? A: The order of dismissal is one without prejudice and the plaintiff may simply refile the complaint in the court with the proper jurisdiction because: GR: The order dismissing an action without prejudice is not appealable (Section 1g. 167988. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC Q: Discuss the procedure of appeal from decisions of the MTC to the RTC. SABUGO & JOHN HENRY C. An appeal may be taken within 15 days after notice to the appellant of the judgment or final order appeals from (Section 2. If the lower court dismissed the case without trial on the merits. not automatic dismissal. GR No. 2. but shall decide the case. Q: When should the appeal be taken? A: 1. 2007).

2. Rule 41). PINEDA. LANTIN. 1. Within 45 days from the receipt of the appellant’s brief. the RTC clerk shall verify the records and transmit the same to the appellate court and shall furnish the parties with copies of his letter of transmittal of the records to the appellate court . 88 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MARA KHRISNA CHARMINA F. KATRINA NADINE G. MIJARES. CONTRIBUTORS: VICENTE JAN O. elevated to the SC only on questions of law). shall be served on the adverse party. taken to the CA on questions of fact or mixed questions of fact and law). FLORES. ASST. just facts and law applicable Copies of the notice. the title of the case shall remain as it was in the court of origin but the party appealing the case shall be referred to as the appellant and the adverse party appellee (Sec 1. Within 30 days after perfection of the appeals. Remedial Law Compendium. Q: When does Rule 41 on Ordinary Appeal apply? A: Rule 41 applies to appeals from the judgment or final orders of the RTC in the exercise of its original jurisdiction (Section 2a. BORJA. briefer. the clerk of court of the CA shall docket the case and notify the parties 2. Upon receipt of the original records and documents and upon payment of docket fees.). SR. LIM. JUSTICE OSCAR C. MICHAEL ANGELO V. Rule 50 (Regalado. ALBAÑA. MANANQUIL. UNICA AMOR R. MARIANO. YRIZ TAMIE A. Ordinary appeal or appeal by writ of error – where judgment was rendered in a civil or criminal action by the RTC in the exercise of original jurisdiction (governed by Rule 41. SY. HERRERA. BAGANG. prohibition. the appellant shall file a brief with proof of service to the appellant 3. An appeal on pure questions of law cannot be taken to the CA and such improper appeal will be dismissed pursuant to Sec. ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR FROM THE RTC TO THE CA Q: What may be the subject of an appeal under Rule 41? A: An appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein when declared by the Rules to be appealable (Section 1. quo warranto and habeas corpus cases Filed within 30 days Shorter. JR.extendible period of 30 days from the receipt of notice that all the evidences are already attached to the record (Sec 10. mandamus. brought to the CA on questions of fact. Rule 41). Rule 44). Within 45 days from the receipt of the notice of the clerk of court. QUIAMBAO. RONN ROBBY D. SUBJECT HEAD: ANGELI P. Q: Distinguish a brief from a memorandum. quo warranto and habeas corpus cases. the appellee shall file his own brief with proof of service to the appellant Note: Rule 41 refers to appeals from RTC exercising original jurisdiction. 2007 ed.. DONNA GRAGASIN. MENDOZA. prohibition. GRETCHEN C. Instead the parties shall file their memoranda within a non. p. the appellant may file a reply brief Note: In petitions for certiorari.. STAMARIA. AIDA. briefs are not filed. only one issue involved – No subject index or assignment of errors. JUSTICE JAIME M. mandamus. Q: Discuss the procedure of appeal from decisions RTC to the CAunder Rule 41? A: Appeal the decision of the RTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment Q: What is the title of the case when appealed to the CA under Rule 41? A: In all cases appealed to the CA under Rule 41. JUANENGO. ROSALES . MEMBERS: AKEMI B. Petition for review – where judgment was rendered by the RTC in the exercise of appellate jurisdiction (governed by Rule 42. A: Brief Ordinary appeals Filed within 45 days Contents specified by rules Memorandum Certiorari. TERESE RAY-ANNE O. 526. or mixed questions of fact and law). DUMLAO. DIANE CAMILLA R. Within 20 days from the receipt.UST GOLDEN NOTES 2011 i. EDELISE D. PLATON III. MA. and record on appeal when required. RHONDEE E. SUBJECT HEADS: DARRELL L. AQUINO. SHERY PAIGE A. or Petition for review on certiorari – to the SC (governed by Rule 45. of law. KRISTINE P. Rule 44). Vol. JUDGE CESAR D. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC Q: What are the three modes of appeal from the decisions of the RTC? A: 1.

a copy of the judgment or final order appealed from (Sec. with page references to the record. with page references to the record. distinctly and concisely stated without repetition and numbered consecutively. 4. Q: What is the purpose of an appellant’s / appellee’s brief? A: To present to the court in a concise form the points and question in controversy." the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. ACADEMICS CHAIR: LESTER JAY ALAN E." he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof. or under the heading "CounterStatement of Facts. A subject index of the matter in the brief with a digest of the arguments and page references. SABUGO & JOHN HENRY C. 7. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal. textbooks and statutes cited with references to the pages where they are cited. CA (2006)). MARTINEZ 89 . A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment. 6. 14). Approve compromise agreements by parties after judgment has been rendered. and by fair argument on the facts and law of the case. 2. MASACAYAN & THEENA C." the appellant’s arguments on each assignment of error with page references to the record. as an appendix." a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy. the appealed rulings and orders of the court. Under the heading "Argument. Under the heading "Statement of the Case. in the order herein indicated. a summary of the proceedings. in the order herein indicated. but without repetition of matters in the appellant’s statement of facts.CIVIL PROCEDURE Q: What are the contents of appellant’s brief? A: The appellant’s brief shall contain. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G." a specification of the order or judgment which the appellant seeks. the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy. 8. CA. Q: What are the Residual Jurisdiction/Powers exercised by the trial court? A: 1. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. 2. 3. 3. Q: What are the contents of the appellee’s brief? A: The appellee’s brief shall contain. and a table of cases alphabetically arranged. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found (Sec. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 458 SCRA 454). together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible. to assist the court in arriving at a just and proper conclusion/ decision (De Liano v. 13. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. An assignment of errors intended to be urged. alphabetically arranged. Under the heading "Statement of Facts. Under the heading "Relief. which errors shall be separately." the appellee shall state that he accepts the statement of facts in the appellant’s brief. Under the heading "Statement of Facts. Rule 44). textbooks and statutes cited with references to the pages where they are cited. and a table of cases 2. (there is no rule that forbids 5." a clear and concise statement of the nature of the action. the following: 1. the appellant’s brief shall contain. Q: What is meant by Residual Jurisdiction of the court? A: The term refers to the authority of the trial court to issue orders for the protection and preservation of the rights of the parties. and Under the heading "Argument. A subject index of the matter in the brief with a digest of the arguments and page references. the following: 1. The concept of residual jurisdiction is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. and In cases not brought up by record on appeal.

the deposit for costs. DONNA GRAGASIN. proof of service of the petition. 3. FLORES. JUSTICE JAIME M. allegedly committed by the Regional Trial Court. State whether or not he accepts the statement of matters involved in the petition. Rule 42). BAGANG. AQUINO. KATRINA NADINE G. LANTIN. BORJA. (1998 Bar Question) Must be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts. 2. 5. KRISTINE P. RHONDEE E. HERRERA. MIJARES. Q: Is a petition for review a matter of right? A: It is not a matter of right but discretionary on the CA. State the full names of the parties to the case. What mode of appeal will you adopt? 2. certified correct by the clerk of court of the Regional Trial Court. DUMLAO. MA. 2. SY. Allow withdrawal of appeal. MENDOZA. GRETCHEN C... Order execution pending appeal in accordance with sec. Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues. JR. (Sec. Q: What are the contents of the petition for review? A: 1. Rule 41). 3. TERESE RAY-ANNE O. 5. RONN ROBBY D. provided that such residual jurisdiction/ power is exercised before the CA gives due course to the petition (Section 8. Q: What is the effect of failure to comply with the requirements? A:The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees. EDELISE D. 5. Indicate the specific material dates showing that it was filed on time. 4. and State the reasons why the petition should be denied or dismissed. JUDGE CESAR D. RULE 42: PETITION FOR REVIEW FROM THE RTC TO THE CA Q: When does Rule 42 apply? A: Rule 42 applies to an appeal from the judgment or final order of the RTC to the CA in cases decided by the former in the exercise of its appellate jurisdiction. without impleading the lower courts or judges thereof either as petitioners or respondents. UNICA AMOR R. 4. MEMBERS: AKEMI B. PLATON III. JUANENGO. or prosecuted manifestly for delay. 3. Within what time and in what court should you file your appeal? A: 1. QUIAMBAO. The mode of appeal is by petition for review under Rule 42 of the Rules of Court. ROSALES . SHERY PAIGE A. and the reasons or arguments relied upon for the allowance of the appeal.UST GOLDEN NOTES 2011 litigants to settle amicably even if there is a judgment already) Permit appeals of indigent litigants. 90 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. PINEDA. 42) Q: What are the contents of comment to the petition? A: 2. YRIZ TAMIE A. 1. LIM. SUBJECT HEADS: DARRELL L. Set forth concisely a statement of the matters involved. MICHAEL ANGELO V. MANANQUIL. SUBJECT HEAD: ANGELI P. Note: Provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Section 9. Rule 42). or both. the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. Rule 42) Q: Is the doctrine of residual jurisdiction applicable to Appeals under Rule 42? A: Yes. ALBAÑA. Rule 45). (Sec. the specification of errors of fact or law. the issues raised. ASST. MARIANO. rule 39. There must be a certification against forum shopping (Sec. MARA KHRISNA CHARMINA F. 1. SR. or the questions raised therein are too unsubstantial to require consideration. It may only be given due course if it shows on its face that the lower court has committed an error of fact and/or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed or dismiss the petition if it finds that it is patently without merit. and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof (Sec. The period of appeal is within 15 days from notice of the decision subject of the appeal or of the denial of a motion for new trial or reconsideration filed in due time to the CA. 2. Q: The RTC affirmed the appealed decision of the MTC. STAMARIA. JUSTICE OSCAR C. 2. DIANE CAMILLA R. AIDA. 3. You are the counsel of the defeated party and he tells you to appeal the RTC's decision. CONTRIBUTORS: VICENTE JAN O.

circulars. The very wording of the rule uses the word “may” instead of “shall”. the law or the rules shall provide otherwise. upon its own motion or upon the motion of the appellee an appeal may be dismissed on the following grounds: 1. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 14. Rule 53). a hearing can be conducted. Note: The grounds are discretionary upon the appellate court. 6. October 17.4 of Rule 44 Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by the Rules. Absence of specific assignment of errors in the appellant’s brief. Rule 124). Q: Give some instances where the CA may act as a trial court. (d) and (f) of Rule 44. In petition for writs of amparo and habeas data. 1998) 6. This indicates that it is only directory and not mandatory. 9. whenever necessary to resolve factual issues. omissions or additions in the approved record on appeal as provided in Sec. 2006). Under Sec.1 Rule 50.R. 7. 2008. Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders. G. No. De Leon.) RULE 45: APPEAL BY CERTIORARI TO THE SC Q: Is the appeal under Rule 45 a matter of right? A: An appeal or review under Rule 45 is not a matter of right. 8. 165622. MASACAYAN & THEENA C. 4. ACADEMICS CHAIR: LESTER JAY ALAN E. Should the CA find prima facie merit in the petition. or of page references to the record as required in Sec. Rule 124 of the Rules of Criminal Procedure. February 17. Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order. 4. receive evidence and perform any and all acts necessary to resolve factual issues which fall within its original and appellate jurisdiction. 2. In annulment of judgment under Secs. unless the CA. A: 1. where the procedure in ordinary civil cases shall be observed. the CA. SABUGO & JOHN HENRY C. The CA can grant a new trial based on the ground of newly-discovered evidence (Sec. Failure to file the notice of appeal or the record on appeal within the period prescribed by the Rules. the procedure in the new trial shall be the same as that granted by a RTC (Sec. keeping in mind the circumstances obtaining in each case (Mercury Drug Corporation vs. the CA has the power to try cases and conduct hearings.13. or reclusion perpetua where the an appeal is a matter of right leaving the reviewing court without any discretion (People v. 7. When a motion for new trial is granted by the CA. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Sound discretion must be exercised in consonance with the tenets of justice and fair play. (2008 Bar Question) 5. 12. GR No. Human Security Act. 2. Flores. Rule 42). (c). January 31.CIVIL PROCEDURE Q: What is the effect of an appeal to the judgment or final order? A: The appeal. Q: What are the grounds for the Court of Appeals to dismiss an appeal? A: Under Sec. Rule 47. 6. A petition for habeas corpus shall be set for hearing (Sec. but of sound judicial discretion with the exception of cases where the penalty of death. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or directives of the court without justifiable cause. 5. may conduct hearing thereon or delegate the reception of the evidence of such issues to any of its members or to an appropriate agency or office. Failure of the appellant to pay the docket and other lawful fees as provided in Section 5 Rule 40 and Sec. 12. The CA under Sec. Rule 102). 3. shall stay the judgment or final order. Rule 46. and The fact that the order or judgment appealed from is not appealable (En Banc Resolution. MARTINEZ 91 . Unauthorized alterations. the same shall be given due course and summons shall be served on the respondent. Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules. as a rule. 4 of Rule 41. after which trial will follow. paragraphs (a). Note: Civil cases decided under the Rules on Summary Procedure shall not be stayed (Section 8b. 4. 3. 170565. 5 and 6. Q: When does Appeal by Certiorari under Rule 45 apply? A: Appeal by certiorari to the Supreme Court or petition for review on certiorari applies in the following cases: 8.

2008). or modify judgment of the lower court. The appeal may raise questions of fact or law or both (AM No. Q: Can a case decided by the RTC in the exercise of its appellate jurisdiction be appealed by way of a petition for review on certiorari under Rule 45? A: No. Except in criminal cases where the penalty imposed is death. regardless of whether the appellant raises questions of fact.R. Rule 45 as amended by A. MA. MARA KHRISNA CHARMINA F. or require the appellee to comment. 08-1-16-SC. 2007). EDELISE D. Sept. where a case is decided by the RTC in the exercise of its appellate jurisdiction. Under the present Rule 45. SC may affirm. reclusion perpetua or life imprisonment (Section 9. Q: When is there a question of law? How does it differ from a question of fact? A: There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. but only from judgments and final orders of the court enumerated in Sec. 166408 October 6. 08-1-16-SC. SY. 2008). JUSTICE OSCAR C. Rule 45). SUBJECT HEADS: DARRELL L. appeals may be brought through a petition for review on certiorari Aggrieved party files a petition for review on certiorari within 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial. CONTRIBUTORS: VICENTE JAN O. Appeal from judgment or final order in a petition for the writ of Habeas Data. Desierto. QUIAMBAO. final order or resolutions of the Court of Appeals where the petition shall raise only questions of law (Section 1. UNICA AMOR R. KATRINA NADINE G. 4. GR No. JUANENGO. ALBAÑA. SC may either dismiss the petition. LIM. STAMARIA. Rule on the Writ of Habeas Data (Section 19) February 2. 3. Rule on the Writ of Amparo (Section19) October 24. 1998) Q: Is the mode of appeal prescribed under Rule 45 applicable to criminal cases? A: Yes. questions of law or of both fact and law (AM No. G. AQUINO. Appeal from the judgment. Q: Does Rule 45 include appeals from quasijudicial bodies? A: No. ASST. SHERY PAIGE A. Appeals from a judgment or final order in a petition for writ of amparo to the Supreme Court which may raise questions of fact. 129742. SUBJECT HEAD: ANGELI P. RONN ROBBY D. MIJARES. the appeal shall be brought to the CA by filing a petition for review under Rule 42 (Quezon City v.M. of law or mixed questions of fact and law. PLATON III. MEMBERS: AKEMI B. final order or resolutions of the Sandiganbayan where the petition shall raise only questions of law (Section 1. ROSALES . 1. MICHAEL ANGELO V. If given due course. JUSTICE JAIME M. 5. BORJA.. The petitioner may also seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency (Sec. Q: Discuss the procedure for filing an appeal by certiorari. AIDA. Appeals from judgments and final orders of quasi-judicial agencies are now required to be brought to the CA on a verified petition for review.. parties may submit memoranda. JR. (Fabian v. Rule 41). Rule 45). reverse. No. GRETCHEN C. DONNA GRAGASIN. RHONDEE E. MENDOZA. MANANQUIL. 6. Rule 45 as amended by AM No. ABS-CBN Broadcasting Corporation. DUMLAO. BAGANG. 16. 1 thereof. FLORES. 07-7-12-SC). TERESE RAY-ANNE O. Appeal from a judgment or final order of the RTC in cases where only questions of law are raised or are involved and the case is one decided by the said court in the exercise of its original jurisdiction (Section 2c. No. under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasijudicial agencies. YRIZ TAMIE A. LANTIN. RA 9282. SR. 07-7-12-SC). Petitioner serves copies on adverse parties and the lower court and pays the corresponding docket fees. PINEDA. 92 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 2. Appeals from the decision or ruling of the Court of Tax Appeals en banc (Section 11. Appeal from the judgment. A: RTC.UST GOLDEN NOTES 2011 1. Q: May a petition for review on certiorari include prayer for the grant of provisional remedies? A: The petition for review on certiorari may include an application for a writ of preliminary injunction or other provisional remedies. Rule 45). JUDGE CESAR D. HERRERA. MARIANO. KRISTINE P. A question of fact on the other hand is when the doubt or difference arises as to the truth or falsehood of the facts alleged. Section 1. Sandiganbayan or RTC renders decision. DIANE CAMILLA R.

XPNs: 1.CIVIL PROCEDURE With the SC (Section 5 (1) Article VIII. The findings of facts are conflicting. which must be distinctly set forth. GR No. It may be directed against an interlocutory order or matters where no appeal may be taken from (Section 1. Filed with the SC (Section 1. Rule 45). a prior MR Does not stay the judgment or order subject of the petition unless enjoined or restrained. the appellant may file a reply brief Note: the petition shall raise only questions of law. 2. BP 129). The SC shall not entertain questions of fact because its jurisdiction is limited to reviewing errors of law (Natividad v. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. absurd or impossible. 2007). or death penalty (subject to automatic review). MASACAYAN & THEENA C. Raises questions of law It shall be filed within 15 days from notice of judgment or final order appealed from Does not require prior motion for reconsideration Stays the judgment sought to be appealed The parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge (Section 4a. There is grave abuse of discretion. Prosecuted manifestly for delay. Appeals to the SC are made only by verified petitions for review on certiorari. on its own initiative. board. the 60 day period shall be counted from the notice of denial of said motion Requires as a general rule. 4. officer exercising judicial or quasijudicial functions is impleaded as respondent (Section 5 Rule 65). 5. The judgment is based on misapprehension of facts. 3. Rule 41) Raises questions of jurisdiction It shall be filed not later than 60 days from notice of judgment. whether such motion is required or not. Filed with the RTC (Section 21. 161422. The inference made is manifestly mistaken. XPN: Where the rights of such parties are so interwoven and dependent on each other as to be inseparable due to community of interests.5. Q: When may the SC review the findings of fact of the CA? A: GR: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. ACADEMICS CHAIR: LESTER JAY ALAN E. BP 129). or That the questions raised therein are too unsubstantial to require consideration (sec. Rule 41) CERTIORARI (RULE 65) Special civil action. Rule 45). deny the petition for review? A: 1. The CA in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. surmises and conjectures. order or resolution sought to be assailed and in case a MR or motion for new trial is timely filed. MARTINEZ 93 . Rule 45) Q: Distinguish Certiorari under Rule 45 and Certiorari under Rule 65. 1987 Constitution). The appeal is without merit. 3. XPN: appeals from judgements of the RTC in criminal cases where the penalty imposed is life imprisonment or reclusion perpetua (elevated by ordinary appeal). 2. A: CERTIORARI (RULE 45) Mode of appeal which seeks to review final judgments and orders (Section 2. Q: When may the SC. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 6. Within 20 days from the receipt. With the CA (Section 9. SABUGO & JOHN HENRY C. MTRCB. The conclusion of the CA is grounded entirely on speculations. an original action (Rule 65). December 13. APPEAL FROM JUDGMENT OR FINAL ORDERS OF THE CA Q: May a reversal of judgment benefit a party who did not join or was not made a party to the appeal? A: GR: The reversal of a judgment on appeal is generally binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal. j. The tribunal.

RHONDEE E. but it was not acted upon. or 11. MEMBERS: AKEMI B.. habeas data. SR. A decision of a division of the CTA is appealable within 15 days to the CTA en banc. Rule 64). Rule 45). JUDGE CESAR D. COA and CSC? A: A judgment. 10. MA. Hence. 12. 8. A. So. HERRERA. resolution or final order of the COMELEC and the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice (Sec.. JUSTICE JAIME M.A. JUANENGO. KRISTINE P. or kalikasan. AIDA. judgments. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN Q: Does the CA have jurisdiction to review the decisions in criminal and administrative cases of the Ombudsman? A: It depends 1. The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record. LANTIN. ALBAÑA. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA Q: Where should the appeal from the decision of the CTA en banc be taken? A: A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 (Sec. 2. CONTRIBUTORS: VICENTE JAN O. (2006 Bar Question) l. SUBJECT HEADS: DARRELL L. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC Q: What is the remedy of a party aggrieved by the decision of the NLRC? A: The remedy is to promptly move for the reconsideration of the decision and if denied. PLATON III. SHERY PAIGE A. to 94 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. EDELISE D. DUMLAO. ROSALES . RONN ROBBY D. 356 SCRA 787). MIJARES. SUBJECT HEAD: ANGELI P. 07-7-12-SC). 3 Rule 43). PINEDA. On the other hand. Does the CA have jurisdiction over Melissa's petition? A: No. DONNA GRAGASIN. No. the aggrieved party may file a petition for certiorari with the SC under Rule 65 (Enemecio vs. Thus. DIANE CAMILLA R. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COA m. Deseirto. STAMARIA. The findings of facts are conclusions without citation of specific evidence on which they are based. TERESE RAY-ANNE O. Melissa's complaint was dismissed. Note: The provision of Section 27 of RA 6770 (The Ombudsman Act of 1987) insofar as it allowed a direct appeal to the Supreme Court was declared unconstitutional as it increased the appellate jurisdiction of the SC without the advice and concurrence of the Court (Fabian v. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE CSC Q: What is the remedy of a party aggrieved by the decision of the COMELEC. the CA no longer has jurisdiction to review the decisions of the CTA en banc. 9282 expanded the jurisdiction of the CTA and elevated the same to the level of a collegiate court equivalent to the rank of the CA. YRIZ TAMIE A. GRETCHEN C. MARA KHRISNA CHARMINA F. Where the findings of the ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. On the other hand. MICHAEL ANGELO V. 419 SCRA 82) Q: What is the remedy of a party aggrieved by the decision of the Sandiganbayan? A: Decisions and final orders of the Sandiganbayan shall be appealable to the SC by way of certiorari under Rule 45 raising pure questions of law (Section 1. the rulings of the Office of the Ombudsman are appealable to the CA under Rule 43. In criminal cases. R. BAGANG. QUIAMBAO. In administrative disciplinary cases. MANANQUIL. The findings are contrary to those of the trial court. she filed with the CA a petition for certiorari under Rule 65. final orders or resolutions of the CSC may be taken to the CA under Rule 43 of the Rules of Court (Sec. k. R. KATRINA NADINE G. MENDOZA. Q: Melissa filed with the BIR a complaint for refund of taxes paid. LIM. AQUINO.UST GOLDEN NOTES 2011 7. FLORES. Those filed under Writs of amparo. o. JUSTICE OSCAR C. JR. UNICA AMOR R. SY. 9. p. ASST. The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents.A. 2. BORJA. 1. Office of the Ombudsman. MARIANO. the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COMELEC n. a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 of the Rules of Court. 9282.M. she filed a similar complaint with the CTA raffled to one of its divisions.

q. Date of publication. Q: What are the contents of comment to the petition and when must it be filed? A: The comment shall be filed within 10 days from notice in 7 legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. 1 Rule 43). the aggrieved party must file a verified petition for review under rule 43 in 7 legible copies with the CA. 8. 387 SCRA 128). No. MARTINEZ 95 . judgment. if publication is required by law for its effectivity.R. 9. 1998). State the reasons why the petition should be denied or dismissed. 3. Bureau of Patents. Insurance Commission. Rule 43). 20. Department of Agrarian Reform under R. SABUGO & JOHN HENRY C. MASACAYAN & THEENA C. judgment. Furnish a copy to the lower court and adverse party. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or mixed questions of fact and law. but further submissions are governed by the resolution in AM No. NLRC. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. The comment shall: 1. Civil Aeronautics Board. 12. National Telecommunications Commission. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. and Voluntary Arbitrators authorized by law (Sec. 7.CIVIL PROCEDURE timely file a special civil action of certiorari under Rule 65 within 60 days from notice of the decision. final order or resolution? A: The appeal shall not stay the award. 15. Securities and Exchange Commission. Trademarks and Technology Transfer. Office of the President. which affects the rights of private parties through either adjudication or rule-making. Q: What are the agencies included under Rule 43? A: 1. Social Security Commission. of law or mixed questions of fact and law (Section 3. 4. (Sec. 18. 99-2-01-SC). Q: What is the remedy of a party aggrieved by the decision of a Quasi-judicial Agency? A: Within 15 days from: 1. If filed with SC it shall be dismissed instead of referring the action to the CA (A. Q: Where should the judgments and final orders of quasi. 17. 2. Sulu Resource Dev. September 16. Central Board of Assessment Appeals. Employee Compensation Commission. 14. Corp. or 3.A. Q: What issues may be raised on appeal? A: The appeal under Rule 43 may raise issues involving questions of fact. and 2.JUDICIAL AGENCIES Q: What is a quasi-judicial agency? A: An organ of the government other than a court and other than a legislature. 11. G. final order or resolution. The appeal may involve questions of fact.. Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues. Q. Philippine Atomic Energy Commission. or 2. the petition for certiorari should be filed in the CA (St. Note: Those judgments and final orders or resolutions of the Employees Compensation Commission should be brought to the CA through a petition for review under Rule 43. Agricultural Inventions Board. Martin Funeral Homes vs. Q: Is extension of time to file petition for review allowed? Note: The office of the Prosecutor is NOT a quasijudicial body and its action approving the filing of information is not appealable to the CA under Rule 43.judicial bodies be appealed? ACADEMICS CHAIR: LESTER JAY ALAN E.M. 9 Rule 43) Note: The appellate court may also require the filing of a reply. 5. Construction Industry Arbitration Commission. 13. Energy Regulatory Board. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF QUASI. Rule 43). 6. Notice of the award. 6657. judgment. What is the effect of the appeal on the award. 19. Denial of petitioner’s MNT or MR. Board of Investments. National Electrification Administration. Civil Service Commission. 130866. GSIS. In observance of the doctrine of hierarchy of courts. Land Registration Authority. of law. No. A: Appeals from judgment and final orders of quasijudicial bodies/ agencies enumerated in Rule 43 are now required to be brought to the CA under the requirements and conditions set forth in Rule 43 (Carpio v. final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem such (Section 12. 99-2-04. 10. 16.

Applies to judgments. MRM Philippines Inc. Q: When is the withdrawal of an appeal a matter of right? A: As a matter of right. MIJARES. MANANQUIL. JUSTICE JAIME M. ORDERS AND OTHER PROCEEDINGS Q: What is the nature of petition for relief from judgment? What is its purpose? A: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud. JR. which are beyond the concerns of this Court (Purcon v. Q: Purcon was hired as a seaman. The appropriate remedy is Rule 65 on certiorari. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. MARA KHRISNA CHARMINA F. LIM. ROSALES . SHERY PAIGE A. appellant may withdraw his appeal at any time before the filing of the appellee’s brief." it refers only to Municipal/Metropolitan and Regional Trial Courts. Q: Is Rule 43 applicable where the resolution was issued by a quasi-judicial agency with grave abuse of discretion? A: No. the MR was likewise denied. with more reason that this remedy cannot be availed of in the Supreme Court. It is not stayed by an appeal XPN: CA shall direct otherwise upon such terms as it may deem just Factual findings are conclusive upon CA if supported by substantial evidence. G. MEMBERS: AKEMI B. petitioner filed a petition for relief from judgment. A petition for relief from judgment is not an available remedy in the Court of Appeals and Supreme Court. PINEDA. Petition for Relief from Judgment Available after judgment has become final and executory.g. it is in the discretion of the court. VHF Philippines. BAGANG. land registration. Sept. JUSTICE OSCAR C. final orders and other proceedings: e. MENDOZA. It should be filed with the same court which rendered the decision. 182718. (Quelnan v. SUBJECT HEAD: ANGELI P. A: Motion for New Trial / Reconsideration Available before judgment becomes final and executory. Rule 43 is not applicable where the petition contains an allegation that the challenged resolution is patently illegal and was issued with grave abuse of discretion and beyond respondent’s jurisdiction. the CA may grant additional period of 15 days only within which to file a petition for review. A petition for relief raises questions of facts on fraud. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period. Petitioner filed petition for review on certiorari under Rule 65 with the CA which was also denied. EDELISE D. This Court entertains only questions of law. JUANENGO. This prompted the petitioner to file with the SC a petition for review on certiorari under Rule 45 which was denied. LANTIN. FLORES. 2005). CONTRIBUTORS: VICENTE JAN O. TERESE RAY-ANNE O. 2008). YRIZ TAMIE A. While Rule 38 uses the phrase "any court. Grounds: Fraud.. MICHAEL ANGELO V. 16. SY. AIDA. MARIANO. Factual findings not conclusive to CA. STAMARIA. mistake or excusable negligence. As a last recourse. Thereafter. accident. order of execution. 138500. (Sec. September 26. Rule 43) Q: Distinguish appeal from RTC as appellate court under Rule 42 and appeal from quasi-judicial agencies under Rule 43. AQUINO. Purcon then filed a case for reimbursment of medical expenses with the NLRC. KRISTINE P. PLATON III.. he went back to work but was not re-hired due to lack of vacany.UST GOLDEN NOTES 2011 A: Yes. If a petition for relief from judgment is not among the remedies available in the CA. accident. SR. mistake or excusable neglect Applies to judgments or final orders only. KATRINA NADINE G. ASST. Q: Distinguish motion for new trial/reconsideration from petition for relief from judgment. Appeal from Quasi-judicial agencies (Rule 43) GR: Decision is immediately executory. Whether or not the petitioner can avail of a petition for relief from judgment after the denial of the SC of his petition for review? A: No. JUDGE CESAR D. DONNA GRAGASIN.. mistake or excusable negligence. BORJA. DUMLAO. 2. accident. 4. he was repatriated due to his ailment. GR No.R. accident. SUBJECT HEADS: DARRELL L. A memorandum of appeal with the NLRC was filed but was dismissed. Fraud. or excusable negligence. After undergoing some medications. DIANE CAMILLA R. mistake. A: RTC as Appellate Court (Rule 42) Decision is stayed by an appeal. RHONDEE E. Grounds for motion for new trial: 1. GRETCHEN C. RONN ROBBY D. UNICA AMOR R. The LA dismissed the complaint for lack of merit. special proceedings. Newly discovered 96 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. RELIEF FROM JUDGMENTS. HERRERA. No. MA. ALBAÑA. QUIAMBAO. AFTER FINALITY OF JUDGMENT 3.

p. Rule 38). The court may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties upon the filing of a bond (Sec. Puno. final order. Filed within the time to appeal. Rule 38). the petition shall likewise be filed in such court and in the same case (not in another or higher court) but the prayer this time is that the appeal be given due course (Sec. If the allegations are true. 1. 3). SABUGO & JOHN HENRY C. Q: Where should the petition be filed? A: 1. The order of denial is not appealable. Within sixty (60) days after the petitioner learns of the judgment. Q: May a defendant who has been declared in default right away avail of a petition for relief from the judgment subsequently rendered in the case? ACADEMICS CHAIR: LESTER JAY ALAN E. Motion need not be verified. mistake. and Not more than six (6) months from entry of such judgment. 2. Rule 38). or even summoned to appear therein. CA. 2009 ed. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. TIME TO FILE PETITION Q: When should the petition for relief be filed? A: 1. (Sec. A person who was never a party to the case. A judgment or final order is entered. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Civil Procedure: A Restatement for the Bar. he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition. Francisco v. cannot avail of a petition for relief from judgment. The remedy is to appeal from the judgment (Section 9. the remedy is appropriate special civil action under Rule 65 Equitable remedy. The two remedies are exclusive of one another. (Alaban v. 479. a. that the evidence is insufficient to justify the decision or final order. Note: The bond is conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits. Rule 38) Q: Is the remedy of preliminary injunction available pending the resolution of the petition for relief? A: Yes. the petition shall be filed in such court and in the same case (not in another or higher court). or any other proceeding is thereafter taken against a party in any court through fraud. it shall dismiss the petition. Rule 38) b. or other proceeding to be set aside. MASACAYAN & THEENA C. order or other proceeding (Sec. or excusable negligence (Sec. accident.CIVIL PROCEDURE evidence Grounds for motion for reconsideration: the damages awarded are excessive. final order or proceeding complained of. mistake. 108 SCRA 427). 2. the court shall set aside the judgment. Legal remedy. Filed within 60 days from knowledge of the judgment and within 6 months from entry of judgment(1990 Bar Question) The order of denial is not appealable. 1). 470 SCRA 697) Q: What are the duties of the court after an answer to the petition has been filed A: After the hearing and the court finds the allegations therein not true. 1. or The petitioner has been prevented from taking an appeal by fraud. If the petition is filed because of the first ground. 2. Note: These two periods must concur and are also not extendible and never interrupted (Riano. 6.). Note: A party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. MARTINEZ 97 . GROUNDS FOR AVAILING OF THE REMEDY Q: What are the grounds for petition for relief? A: 1. Petition must be verified. 2. Q: Who may file the petition for relief from judgment? A: A petition for relief from judgment together with a motion for new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the assailed judgment is rendered. or that the decision or final order is contrary to law (Sec. 2. order or proceeding be set aside (Sec. Rule 38). 5. or excusable negligence (Sec. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. The remedy is to appeal from judgment or final order. If the petition is filed under the second ground.Rule 38. accident. The petition shall pray that the judgment.

Sept. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS Q: What is annulment of judgment? a. 4. (2007 Bar Question) c.e. Q: When may it be availed of? A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial.. ROSALES . CA. DIANE CAMILLA R. (Secs. appeal. The remedy of petition for relief from judgment is available only when the judgment or order in question is already final and executory. 156021. it has the discretion on whether or not to entertain the petition. remedies are no longer available through no fault of the petitioner (Sec. Rule 47). JUSTICE OSCAR C. SHERY PAIGE A. MIJARES. YRIZ TAMIE A. As an extraordinary remedy. Q: When shall the court issue an order to answer? A:When the petition is sufficient in form and substance to justify relief. CA. No. G. Q: What is extrinsic fraud? 98 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. KATRINA NADINE G. MEMBERS: AKEMI B. UNICA AMOR R. Q: Where should the petition be filed? A: Judgments of RTC Filed with the CA Basis – It has exclusive original jurisdiction over said action under Sec. LIM. 9 (2). CA has exclusive jurisdiction over actions for annulment of judgments of RTC. ASST. DUMLAO. HERRERA. EDELISE D. Judgments of MTC Filed with the RTC Basis – RTC as a court of general jurisdiction under Sec. Lack of jurisdiction over the subject matter and over the person – May be barred by estoppels by laches. BP 129 CA may dismiss the case outright. JUSTICE JAIME M. CONTRIBUTORS: VICENTE JAN O. Sept. GROUNDS FOR ANNULMENT Q: What are the grounds for the annulment of judgment of the RTC? A: A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. KRISTINE P. LANTIN. 1.UST GOLDEN NOTES 2011 A: No.. TERESE RAY-ANNE O. GRETCHEN C. BAGANG. MARIANO. Q: Who may avail this remedy? A: A person need not be a party to the judgment sought to be annulled. JUANENGO. MANANQUIL. QUIAMBAO. shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof (Sec. or could have been availed of in a motion for new trial or petition for relief. Note: An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. It is required to consider it as an ordinary civil action. 2. 1 &10. JUDGE CESAR D.R. FLORES. G. no longer appealable. 4. STAMARIA. which is that failure to do something which should be done or to claim or enforce a right at a proper time or a neglect to do something which one should do or to seek or enforce a right at a proper time. 19 (6). 29. AIDA. However. petition for relief or other appropriate 3. 1. The extraordinary action to annul a final judgment is restricted to the grounds provided by law to prevent it from being used by a losing party to make a mockery of a duly promulgated decision that has long become final and executory. RHONDEE E. (1998 Bar Question) Denial of due process (Alaban v. MARA KHRISNA CHARMINA F. SY. 2005). it may be availed only in exceptional cases where no other remedy is available. and The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense. RONN ROBBY D. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby (Islamic Da’wah Council v. Extrinsic fraud or collateral fraud – not a valid ground if it was availed of. AQUINO. MA. PLATON III.R. Rule 38). It must be supported by affidavit showing the FAME relied upon. SUBJECT HEADS: DARRELL L. SR. An action to annul a judgment or final order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an ordinary civil action. MICHAEL ANGELO V. MENDOZA. JR. PINEDA. ALBAÑA. BORJA. No. 1989). 3. the court in which it is filed. Rule 47).. 2. 23. i. SUBJECT HEAD: ANGELI P. CONTENTS OF THE PETITION Q: What is the form and contents of the petition for relief? A: 1. The petition for relief must be verified. Note: A co-equal court cannot annul the final judgment of a similar court. BP 129 RTC has no such discretion. DONNA GRAGASIN. so long as the facts required to be set out also appear in the verified petition. it is not a fatal defect to warrant a denial of the petition. 80892. The purpose of such action is to have the final and executor judgment set aside so that there will be renewal of litigation.

Rule 47) Note: The prescriptive period for the refilling of the action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. 5. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. Rule 47). If based on extrinsic fraud. COLLATERAL ATTACK OF JUDGMENTS Q: What is a collateral attack on judgment? A: It is made in another action to obtain a different relief.R. A: Yes. If based on lack of jurisdiction. Q. Rule 47). EXECUTION. the action must be filed within four (4) years from its discovery. G. may order the trial court to try the case as if a motion for new trial was granted (Sec. 2005). amount of the dishonored check. But shall not however.It shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the judgment of annulment is without prejudice to the refilling of the original action in the proper court (Sec. Is the CA correct? 2. vs. The ordinary remedies of new trial. The trial court ruled in favor of Jenny. Singson. on its face is null and void. upon motion. Court of Appeals. Jenny filed an action for a sum of money and damages against Allied for the full ACADEMICS CHAIR: LESTER JAY ALAN E. July 25. Allied remitted to the sheriff a manager’s check amounting to P800. MASACAYAN & THEENA C.000 which.The court. it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto.000 drawn on Rhea’s account which was duly received by Jenny.000 to Jenny as partial payment of the loan with the balance payable at a later date. 1. GR no. as where it is patent that the court which rendered such judgment has no jurisdiction (Co vs. Nite. Rhea issued Jenny an Allied check in the amount of P750. SATISFACTION AND EFFECT OF JUDGMENTS Q: What is execution? A: It is a remedy provided by law for the enforcement or satisfaction of a final judgment. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. the action must be brought before the action is barred by laches or estoppel (Sec. It can be filed by one who was not a party to the case in which the assailed judgment was rendered. c. an attack on the judgment is made as an incident in said action. EFFECTS OF JUDGMENTS OF ANNULMENT Q: What is the effect of a judgment of annulment? A: If based on lack of jurisdiction. appeal and petition for relief were not available to her for the simple reason that she was not made a party to the suit against Allied (Villanueva v. 9. CA. In the first. 196 SCRA 705). SABUGO & JOHN HENRY C. The appellate court granted Rhea’s petition. 156021. The term “final” when used to describe a judgment may be used in two senses. Q: What is meant by lack of jurisdiction? A: Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. This is proper only when the judgment. 2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. b. or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. Here. 454 SCRA 612). September 23. Prior to the due date for the payment of the balance. FOR PURPOSES OF EXECUTION Q: What is meant by final judgment? A: 1. Q: Rhea took out a loan of P1 Million from Jenny. In this sense. 2006). No. 8. Rhea filed a petition in the CA seeking to annul and set aside the trial court’s decision on the ground of extrinsic fraud. 148211. was dishonored due to a material alteration. PERIOD TO FILE ACTION Q: What is the period to file an action? A: 1. however.7.CIVIL PROCEDURE A: Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from having a trial or from presenting his entire case to the court. DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL. Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled is promulgated. MARTINEZ 99 . Rhea may avail of the remedy of annulment of judgment under Rule 47. Rhea then remitted P600. a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. To secure the loan. If based on extrinsic fraud. Rule 47).

no further action can be had. 2007). 21. A: Final Judgments for purposes of appeal Dispose of. BAGANG. JUSTICE OSCAR C. MARIANO. 2010). SR. 4. STAMARIA.UST GOLDEN NOTES 2011 2. 1968). JUANENGO. Therefore. and the issuance of a writ of execution becomes the ministerial duty of the court. A: Execution will issue as a matter of right when: When a petition for relief is filed and a preliminary injunction is granted in accordance with Sec. Siapno. GR No. KATRINA NADINE G. No. Sept. SUBJECT HEAD: ANGELI P. MICHAEL ANGELO V. 28. 335 SCRA 181 and Pallada vs. RHONDEE E. despite the existence of a judgment. January 20. Q: Distinguish final judgments for purposes of appeal from final judgments for purposes of execution. SY. FLORES. Even in judgments which are immediately executory. Final Judgments for purposes of execution Becomes final and executory by operation of law. Aug.1. 24-94. 2028. When the judgment sought to be executed is conditional (Co Unjieng v. DONNA GRAGASIN. Rule 38. In this sense. SUBJECT HEADS: DARRELL L. Rule 39) Q: How is an execution issued? A: Execution shall issue upon motion. 4. there is a need to file a motion for the issuance of a writ of execution.. Note: The parties. adjudicate. L-25511. MARA KHRISNA CHARMINA F. the prevailing party can have it executed as a matter of right. After lapse of period to appeal and no appeal was perfected. RTC of Kalibo. now MAA General Insurance Inc. Execution of judgment a matter of right. When the judgment has already been executed by the voluntary compliance thereof by the parties (Cunanan v. When the judgment has been novated by the parties (Dormitorio v. JUSTICE JAIME M. CA. 14. YRIZ TAMIE A. 2.R. XPN: 1. In another sense. UNICA AMOR R. 5. a motion for the issuance of a writ of execution must contain a notice to the adverse party (Lou vs. 304 SCRA 440) Q: When is an execution a matter of right? 2. MENDOZA. Paredes. MEMBERS: AKEMI B. The court cannot refuse execution. TERESE RAY-ANNE O. Paramount Insurance Corp. there must be a motion to that effect and a hearing called for that purpose. the judgment is commonly referred to as one that is final and executory. KRISTINE P. the word “final” may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal. ALBAÑA. No. LANTIN. Aklan. Execution of judgment not a matter of right. EDELISE D.. L-25897. PLATON III. Feb. AS A MATTER OF RIGHT Q: When shall execution be issued? A: Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. Rule 39). GRETCHEN C. The judgment has become final and executory(Section 1. Note: Once a judgment becomes final and executory. No. as when subsequent events would render execution of judgment unjust (Mangahas vs. Fernandez. DUMLAO. DIANE CAMILLA R. HERRERA. WHEN EXECUTION SHALL ISSUE a.R. BORJA. 167976. 1. 3. HijosMabalacat Sugar Co. G.R. ASST. Having been filed. Q: May the court which rendered the judgment refuse to issue writ of execution? A: GR: Execution of judgment is a matter of right on the part of the winning party. Sandiganbayan. NCC). G. CONTRIBUTORS: VICENTE JAN O.. MANANQUIL. MIJARES. A compromise is a contract recognized by substantive law (Art. RONN ROBBY D.. the appeal has been resolved and the records of the case have been returned to the court of origin (Florendo v. under SC circular no. LIM. JR. Once a decision becomes final and executory. MA. it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases. The period for appeal has lapsed without an appeal having been filed. AQUINO. Note: This is a situation where there is a satisfaction of the judgment without need for its execution by the court. PINEDA. SHERY PAIGE A. or determine the right of the parties. are at liberty to novate a judgment by entering into a compromise. Also. GR 157866. 455 SCRA 526). Br. L- 100 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. ROSALES . AIDA. 2. 1. JUDGE CESAR D. QUIAMBAO. 1976). it has already been resolved by a highest possible tribunal (PCGG vs. Still subject to appeal Judgment debtor has renounced or waived his right to appeal. 3. G.

Q: What is the remedy where the judgment subject to discretionary execution is reversed or annulled? A: The trial court may. 1930) or is incomplete (Del Rosario v. January 20. to consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. 2010). SABUGO & JOHN HENRY C. 3. The period within which a party may 5. When execution is sought more than 5 years from its entry without the judgment having been revived. 1926). or After the trial court has lost jurisdiction. 13. 4. and When trial court has lost jurisdiction and has transmitted records (motion for execution pending appeal with appellate court). When execution is sought against property exempt from execution under Sec. 20. separate or partial judgment(Florendo v. Oct.” has been held. Circumstances must be superior. G. Lesser reasons would make of execution pending appeal. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or When the refusal to execute the judgment. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Sept. prevents the running of the period to appeal. v. 6. 4. the motion for execution pending appeal may be filed in the appellate court (Bangkok Republic Company Limited vs. There must be good reasons to justify the discretionary execution. b. b. 2. Q: Where should you file an application for discretionary execution? A: 1. 2. Upon receipt of the decision. There must be a motion filed by the prevailing party with notice to the adverse party. Execution pending appeal. GR No. January 20.CIVIL PROCEDURE 32644. the court’s discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. MASACAYAN & THEENA C. Rule 39). Note: As such exception.R. When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court. Rule 39) 5. outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. 4. On Aug. L-25726. When facts and circumstances transpire which would render execution inequitable or unjust (Bacharach Corp. Is the order of the trial court correct? A: No.R.R. 1998). AS A MATTER OF DISCRETION Q: When is execution discretionary? A: 1. 5. and The good reasons must be stated in a special order (Sec. No. Q: In a complaint filed by Granger for rescission and damages. No. and While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal.).. Jan. G. 167976. The MR filed by JP Latex had not been acted upon by the RTC before it ruled on the motion for execution “pending appeal. the RTC ruled against JP Latex.” The pendency of the MR has prevented the period to appeal from even commencing. 2010). 5. No. 22. defendant. 2006). Execution of several. Discretionary execution is allowed only when the period to appeal has commenced but before the trial court loses jurisdiction over the case. 167976. 2. Rule 39. G. now MAA General Insurance Inc.R. Q: What are the requisites for discretionary execution? A: ACADEMICS CHAIR: LESTER JAY ALAN E. Nov. The pendency of a MR. 1.. a. Paramount Insurance Corp. The period to appeal where a motion for reconsideration has been filed commences only upon the receipt of the order disposing of the MR. There must be a hearing of the motion for discretionary execution. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 128349. No. The RTC granted the execution “pending appeal” without acting on the motion for reconsideration. a tool of oppression and inequity (Florendov. instead of an instrument of solicitude and justice. 25. 7. issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Sec. on motion. (nowrenamed MAA General Insurance Inc. G. 2. 159806. “Good reasons. therefore. The motion for discretionary execution shall be filed with the trial court: While it has jurisdiction over the case and While it is in possession of either the original record or the record on appeal. MARTINEZ 101 . JP Latex filed a motion for reconsideration (MR). Villegas. Granger moved for the execution pending appeal of the decision. 3. ParamountInsurance Corp. Lee. CA. 2006.

SUBJECT HEADS: DARRELL L. BAGANG. Levy and sale of real property. ALBAÑA. Delivery of personal and/or real property. KATRINA NADINE G. No. al. AIDA. and Execution by independent action -if the five year period has elapsed and before it is barred by statute of limitations (Sec. XPNs: The court in certain instances allowed execution of the judgment by mere motion despite the lapse of the 5 year period. Execution is a matter of right after expiration of period to appeal and no appeal is perfected. conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part (Sec. DUMLAO. STAMARIA. HERRERA. 3. UNICA AMOR R. (JP Latex Technology. The remedy would be to file an independent action for the revival of the judgment. ASST. LIM. Note: 5 and 10 year periods not applicable to judgment for support and special proceedings. ROSALES . RONN ROBBY D. et.UST GOLDEN NOTES 2011 move for an execution pending appeal of the RTC’s decision has not yet started. KRISTINE P. DONNA GRAGASIN. MA. Ballons Granger Balloons. Q: When is there a need to file an independent action for execution? A: There is a need for the prevailing party to file an independent action for the revival of the judgment before the action is barred by statute of limitations when a writ of execution is issued by motion of the 102 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Inc. In instances where the delay in the execution of the judgment were through causes attributable to the judgment debtor or when the delay is incurred for his benefit. SR.. SUBJECT HEAD: ANGELI P. QUIAMBAO. Sheriff executes writ of execution Losing party is made to indemnify thru: 1. such motion is considered null and void (Tag Fibers. b. JUDGE CESAR D.. 344 SCRA 29. PLATON III. Rule 39) prevailing party after 5 years from the date of entry of judgment. RHONDEE E. Discretionary execution upon good reasons stated in a special order after due hearing. JUANENGO. a. AQUINO. v. CONTRIBUTORS: VICENTE JAN O. NLRC. execution of a judgment can no longer be effected after 5 years. EDELISE D. JUSTICE JAIME M. If the winning party does not move for execution within 5 years but before 10 years from the date of entry of judgment. 3 Rule 39). 314 SCRA 669) Q: Can execution be effected by motion after five years? A: GR:No. HOW JUDGMENT IS EXECUTED Q: How can a judgment be executed? A: Judgment is executed by motion within 5 years from date of its entry A: It may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom execution is directed. Execution by motion-if the enforcement of the judgment is sought within 5 years from the date of its entry. EXECUTION BY MOTION OR BY INDEPENDENT ACTION Q: What are the modes of execution of judgment? A: a. G. 177121. JR. Inc.R.. Terry vs. MEMBERS: AKEMI B. 2. MARIANO. Mar. FLORES. TERESE RAY-ANNE O. People. JUSTICE OSCAR C. 16. the same can only be revived by means of new action / petition. 4. YRIZ TAMIE A. Thus. 6. MICHAEL ANGELO V. BORJA. where there is pending MR.. vs. Payment with interest. MANANQUIL. Inc. MENDOZA. DIANE CAMILLA R. PINEDA. SY. Levy and sale of personal property. LANTIN. MARA KHRISNA CHARMINA F. MIJARES. GRETCHEN C. an order of execution pending appeal is improper and premature. 2009) Q: How may a discretionary execution be stayed? 3. SHERY PAIGE A.

ISSUANCE AND CONTENT OF A WRIT OF EXECUTION Q: What is a writ of execution? A: It is a judicial writ issued to an officer authorizing him to execute the judgment of the court. 4. 2. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.Death after levy: Execution will issue against his executor. b. 6. 6 of Rule 39. Counterclaims. The dispositive portion of the judgment or order subject of the execution.Death before levy: Action for recovery of real or personal property or any lien – execution will issue. upon application of his executor. or successorin-interest because the property is already separated from the estate of the deceased and is deemed in custodia legis. The judgment obligee should file a claim against the estate of the judgment obligor under Rule 86 . MARTINEZ 103 . and 3. administrator. Prescription. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2. Q: What is the effect of an appeal to the execution of the judgment? A: GR: An appeal perfected in due time stays the execution of a judgment. Rule 39).CIVIL PROCEDURE Q: What is revival of judgment? A: This means that from the date of the finality of judgment. Satisfaction of claim. Q: What are the defenses available in an action for enforcement? A: 1. Q: May the period to execute the judgment be stayed? A: Yes: by agreement of the parties. Death of an obligee – execution will issue in any case. ACADEMICS CHAIR: LESTER JAY ALAN E. Q: How do you enforce a revived judgment? A: A revived judgment may be enforced by motion within 5 years from the date of its entry and thereafter by action also before it is barred by the statute of limitations (Sec. Q: Will execution issue upon death of a party? A: a. Q: What is the nature of a revived judgment? A: A revived judgment is deemed a new judgment separate and distinct from the original judgment. Q: What are the contents of a writ of execution? A: 1. Those judgments which by express provision of the rules are immediately executor and are not stayed by appeal (Sec. MASACAYAN & THEENA C. 2. XPNs: There are judgments which by express provision of law not stayed by appeal: 1. thus the need for its enforcement by action. or by taking an appeal or writ of error. Rule 39). Q: What is the lifetime of a writ of execution? A: The writ is enforceable within 5 years from the entry of judgment as provided for in Sec. Action for a sum of money – execution will NOT issue. no motion was filed for the execution of said judgment. administrator. by injunction. 4. Rule 39). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Those judgments that have become the object of discretionary execution (Sec. The case number. and Shall require the sheriff or other proper officer to whom it is directed to enforce 2. 3. Note: These are: judgment for injunction. b. receivership. or successor-ininterest Death of an obligor . accounting and support unless the court rule otherwise. SABUGO & JOHN HENRY C. The name of the court which granted the motion. Q: When should the action for revival of judgment be filed? A: The action to revive a judgment must be filed within 10 years from the date of judgment became final because an action to enforce a judgment prescribes in 10 years from the finality of the judgment.

UNICA AMOR R. BAGANG. MA. certified check or other mode of payment. This is called garnishment. ASST. if any. JUSTICE JAIME M. Rule 39) Note: The motion for execution and the writ of execution must state specifically the amount of interest. DUMLAO.UST GOLDEN NOTES 2011 the writ according to its terms (Sec. 7. 6. DONNA GRAGASIN. or profits due as of the date of issuance of the writ. and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees. MARIANO. BORJA. RHONDEE E. Q: What are the steps in executing a judgment for money? A: 104 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. JR. SR. 301 SCRA 342). YRIZ TAMIE A. b. When the terms of the judgment are not clear enough and there remains room for interpretation thereof. royalties. JUDGE CESAR D. 5. commissions and other personal property not capable of manual delivery in the possession or con troll of third parties. ALBAÑA. PLATON III. Demand from the obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash. aside from the principal obligation. EXECUTION OF JUDGMENTS FOR MONEY Q: What are the 3 ways to enforce a judgment for money? A: 1. 2. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. (1999 Bar Question) Q: The writ of execution was returned unsatisfied. c. or is issued against the wrong party. FLORES. PINEDA. MICHAEL ANGELO V. if not exercised. LANTIN. CA. 3. When it appears that the writ of execution has been improvidently issued. rents. stocks. A: Attachment refers to corporeal property in the possession of the judgment debtor. Garnishment refers to money. JUSTICE OSCAR C. KATRINA NADINE G. HERRERA. RONN ROBBY D. SHERY PAIGE A. 4. The sheriff shall only sell property sufficient to satisfy the judgment and other lawful fees. Q: What is garnishment? A: It is the act of appropriation by the court when the property of the debtor is in the hands of third persons.8. MARA KHRISNA CHARMINA F. EDELISE D. MANANQUIL. costs. Note: The garnishee or the third person who is in the possession of the property of the judgment debtor is deemed a forced intervenor. Q: Is a writ of execution subject to a motion to quash? A: A writ of execution may be quashed on certain grounds: 1. financial interests. JUANENGO. CONTRIBUTORS: VICENTE JAN O. STAMARIA. then on real property. (Sec. MENDOZA. AIDA. Garnishment of debts and credits. When it appears that the controversy has never been submitted to the judgment of the court. credits and other incorporeal property which belong to the judgment debtor but is in the possession or under the control of a third person. DIANE CAMILLA R. When there has been a change in the situation of the parties making the execution inequitable or unjust. 2. MIJARES. If the judgment obligor does not exercise the option. ROSALES . the officer shall first levy on the personal properties. rule 39) Q: What is levy? A: It is the act by which an officer sets apart or appropriates a part of the whole of the property of the judgment debtor for purposes of the execution sale. When the writ of execution varies the judgment. a. When it appears that the writ of execution is defective in substance. damages. If the judgment obligor cannot pay all or part of the obligation in cash.. SUBJECT HEADS: DARRELL L. AQUINO. QUIAMBAO. the officer shall levy upon the properties of the judgment obligor. LIM. The officer may levy on the debts due the judgment debtor including bank deposits. MEMBERS: AKEMI B. c. SUBJECT HEAD: ANGELI P. certified check payable to the judgment obligee or any other form of payment acceptable to him. the officer shall levy first on personal property. Q: Distinguish attachment from garnishment. Immediate payment on demand Satisfaction by levy The judgment obligor exercises discretion to choose which property to levy. 9. or that the judgment debt has been paid or otherwise satisfied or the writ is issued without authority (Reburiano v. TERESE RAY-ANNE O. The judgment obligee subsequently received 3. SY. KRISTINE P. GRETCHEN C.. When execution is sought to be enforced against a property exempt from execution.

Rule 39 lays down the procedure to be followed by the sheriff in implementing money judgments. Sale of real and personal property Manner of Execution Court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the required party performed it. MASACAYAN & THEENA C. Jr. 4. The sheriff must oust the party. However.M. P-10-2772 (formerly A. or other specific acts vesting title. Feb. a writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a haberefaciaspossesionemand authorizes the sheriff to break open the premises where there is no occupant therein. Delivery or restitution of real property 1. demolish or remove improvements except upon special order of the court. Removal of improvements on property subject of execution. In case of delivery or restitution of real properties. issued upon motion of the judgment obligee. d.I No. 07-2615-P). and Judgments for the delivery of personal property. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2. otherwise the officer shall oust such disobedient party. deposited in a fiduciary account with the nearest government depository bank. 4. 5. In judgments for the delivery of personal property. If the bank denies holding the deposit in the name of the judgment obligor but your client's informant is certain that the deposit belongs to the judgment obligor under an assumed name. But if demolition is involved. the court may direct the act to be done at the cost of the disobedient party. demolish or remove the improvements upon special order of the court. the sheriff is authorized to receive it.M. Regalado II. Q: What are the steps in executing a judgment for specific acts? A: Removal of improvements on property subject of execution Delivery of personal property ACADEMICS CHAIR: LESTER JAY ALAN E. and restore possession to the judgment oblige. 2010). If the party refuses to deliver. 9. SABUGO & JOHN HENRY C. In case of conveyance. remedy is not contempt. delivery of deeds. or other specific acts. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.CIVIL PROCEDURE information that a bank holds a substantial deposit belonging to the judgment obligor. In case of removal of improvements on property subject of execution. delivery of deeds. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS Q: What are considered specific acts? A: 1. the officer shall demand the losing party to peaceably vacate the property within 3 working days. If party refuses to vacate property. if a party fails to comply with the time specified. v. the money received must be remitted to the clerk of court within the same day or. and subsequently move for a court order authorizing the filing of an action against such bank for the recovery of the judgment obligor’s deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest within 120 days from notice of the order (Secs.P. When the judgment obligee is not present at the time the judgment obligor makes the payment. the officer shall not destroy. OCA I. The officer may destroy. 37 and 43). 2. Sell such property and apply the proceeds in conformity with the judgment. 3.(2008 Bar Question) Q: How is money judgment implemented if the obligee is absent at the time of payment? A: Sec. there must be a special order. what is your remedy to reach the deposit? A: A motion may be filed for a court order requiring the proper bank officer to appear in court for examination under oath as to such bank deposit. Sheriffs are not permitted to retain the money in their possession beyond the day when the payment was made or to deliver the money collected directly to the judgment oblige (Peña. The officer shall take possession and deliver to the party entitled thereto. MARTINEZ 105 . No. Sale of real or personal property. Delivery or restitution of real property. vesting title. 16. 3. 10) Conveyance. Conveyance. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Q: How can judgment be executed for the following specific acts if the judgment debtor refuses/fails to comply therewith? A: Judgments for Specific Act (Sec. A. the officer shall take possession of the same and forthwith deliver it to the party entitled to satisfy any judgment for money as therein provided. if not practicable.

STAMARIA. SHERY PAIGE A. MARA KHRISNA CHARMINA F. AIDA. the judgment obligee can claim damages against a third-party claimant who filed a frivolous or plainly spurious claim. GRETCHEN C. 2. EDELISE D. 16. CONTRIBUTORS: VICENTE JAN O. 106 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. to any thirdparty claimant if there is a bond filed by the winning party. JUSTICE JAIME M. Generally. Cely may file a third-party claim. e. or Independent reinvindicatory action. or upon any other person required thereby. MICHAEL ANGELO V. because Cely has the right to retain the ring in his possession until the loan is paid (Art. LANTIN. NCC). Refusal to perform a particular act or special judgments under Sec. SUBJECT HEADS: DARRELL L. PLATON III. the sale cannot proceed. JUSTICE OSCAR C. KATRINA NADINE G. MA. 4. Rule 39) Q: May a judgment debtor be cited in contempt in case of refusal to comply with judgment of the court? A: GR: The judgment debtor cannot be cited in contempt of court. JR. Action for damages on the bond posted by judgment creditors. LIM. TERESE RAY-ANNE O. ASST. SUBJECT HEAD: ANGELI P. f. QUIAMBAO. JUANENGO. It requires the performance of any other act other than payment of money. the judgment debtor may still be cited for contempt even if the decision is not a special judgment and requires the latter to pay money. 11 where he may be cited in contempt. ALBAÑA. Does Cely have the obligation to surrender the ring to the sheriff? Explain. XPN: 1. BORJA. or the sale or delivery of real or personal property. AQUINO. b. Terceriaor third party claim filed with the sheriff. is the pledgee of a ring Bert had given as security for a loan and insisted on taking possession of the ring for the purpose of eventually selling it at the execution sale to satisfy the judgment debt of Bert to Aiza. UNICA AMOR R. DONNA GRAGASIN. Note: If a party refuses to: a. DUMLAO. PINEDA.. Rule 39). SR. In case of the provisional remedy of support pendente lite under Rule 61. KRISTINE P. Summary hearing before the court which authorized the execution. However. Q: How is execution of special judgments executed? A:When a judgment requires the performance of any act other than those mentioned in the two preceding sections. MANANQUIL.UST GOLDEN NOTES 2011 whom the same is rendered. JUDGE CESAR D. Note: The officer shall not be liable for damages for the taking or keeping of the property. MENDOZA. subject to liens and encumbrances then existing (Sec. (1987 Bar Question) Q: What are the remedies available to a thirdparty claimant in levy of real property? A: 1. 3. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. If the sheriff should take possession of the ring. MIJARES. RHONDEE E. (Sec. FLORES. to obey the same. Q: Aiza obtained a judgment for money against Bert. Comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it. contempt is not a remedy to enforce a judgment. and such party or person may be punished for contempt if he disobeys such judgment (Sec 11. The sheriff enforcing the corresponding writ went to Celywho. 2098. SY. EFFECT OF LEVY ON THIRD PERSON Q: What is the effect of levy on execution as to third persons? A: It creates a lien in favor of the judgment obligee over the right. EXECUTION OF SPECIAL JUDGMENTS Q: What is a special judgment? A: It is a judgment that can be complied with only by the obligor himself. MEMBERS: AKEMI B. Deliver – the sheriff will take possession and deliver it to the wining party c. YRIZ TAMIE A. or by law. a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against The remedies are cumulative and may be resorted to by the third party claimant independently of or separately from the others. 12). HERRERA. and such judgment obligee can institute proceedings therefor in the same or separate action (Sec.. title and interest of the judgment obligor in such property at the time of the levy. Vacate the property – the sheriff must oust the party. Q: What is the effect of failure to comply with special judgments? A: Failure to comply with special judgment under Section 11 is punishable by contempt by imprisonment. DIANE CAMILLA R. If there is no bond. MARIANO. Rule 39). 16. BAGANG. RONN ROBBY D. 2. A: No. ROSALES .

or the homestead in which he resides. engineers. employment or livelihood. such as the judgment obligor may select. Monies. or money or property obtained as such support. His necessary clothing and articles for ordinary personal use. 3. The judgment obligor’s family home as provided by law. 10.000. Bonds issued under RA1000 (NASSCO v. 7. Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4. MASACAYAN & THEENA C. Ordinary tools and implements personally used by him in his trade. Property mortgaged to DBP (Sec 26. 2. 13). dentists. RA 8293). Benefits from private retirement systems of companies and establishments. clergymen. Q: What are the requisites for a claim by a third person? A: Requisites for a claim by a third person: 1. and land necessarily used in connection therewith. or any pension or gratuity from the government. 12. of a value not exceeding P100. with limitations (RA 4917) 8.000 in value. or earnings of the judgment obligor for his personal services within the 4 months preceding the levy as are necessary for the support of his family. or annuities accruing or in any manner growing out of any life insurance. pharmacists. The right to receive legal support. pp. NCC) 9. privileges. and medical attendance (Art 1708. 6. 9 ed. Household furniture and utensils necessary for housekeeping. Backpay of pre-war civilian employees (RA 304) 5. th Remedial Law Compendium Vol. RA 6389) 7. Philippine Government backpay to guerillas (RA 897) 6. Copyrights and other rights in intellectual property under the former copyright law (PD 49 cf Sec 239. 4.. and farm implements of agricultural lessees. 5.3. and 177) 10. 9. excluding jewelry. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS Q: When can you file a third party claim? A: At any time. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. physicians. and Properties specially exempted by law. and Serves the same upon the officer making the levy and the judgment obligee. not exceeding P300. 481-482) 5. 11. But no article or species of property mentioned above shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon (Sec. 1 fishing boat and accessories not exceeding the total value of P100. shelter. surveyors. Labor wages. lawyers.000 owned by a fisherman and by the lawful use of which he earns his livelihood. CIR L-17874 31 August 1963) (Regalado. SABUGO & JOHN HENRY C. 3. or carabaos. and 11. and used for that purpose by the judgment obligor and his family. ACADEMICS CHAIR: LESTER JAY ALAN E. cows.CIVIL PROCEDURE Q: What are other properties ESPECIALLY exempt from execution? 4. such as the judgment obligor may select necessarily used by him in his ordinary occupation. 4. 3 horses. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Lettered gravestones. Provisions for individual or family use sufficient for 4 months. and other professionals. Property taken over by Alien Property Administration (Section 9[f]. or before the property is sold under execution. Benefit payments from the SSS (Sec 16 RA 1161 as amended by PDs 24. F. PROPERTIES EXEMPT FROM EXECUTION A: Q: What are the properties exempt from execution? A: 1. 13. 65. 8. wages. or other beasts of burden. Produce. CA 458) 2. 1. The property is levied. teachers. 2. clothing. so long as the sheriff has the possession of the property levied upon. work animals. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. except for debts incurred for food. US Trading with the Enemy Act) 3. 1. The claimant is a person other than the judgment obligor or his agent. Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title. MARTINEZ 107 . benefits. So much of the salaries. subject to limitations (Sec 21. The professional libraries and equipment of judges.

2002). (2005 Bar Question) Q: If the writ of execution is issued in the name of the Republic of the Philippines and the property object of the levy is being claimed by a third person. SY. TERESE RAY-ANNE O. he shall be represented by the Solicitor General and if held liable therefor.. After due hearing. JUSTICE JAIME M. the execution may proceed where there is a finding that the claim is fraudulent (Tanongan v. the sheriff is liable to Cathy for damages. on demand of the officer. stating the grounds of such right or title. and in case the sheriff or levying officer is sued for damages as a result of the levy. In case of disagreement as to such value. JUANENGO. the filing of such bond shall not be required. Cathy filed a third-party claim over said properties claiming that Bob had already transferred the same to him.R. stating the grounds of such right or title. No. or right of possession thereof. The affidavit must be served upon the sheriff and the attaching party (Sec. and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. However. Cathy can file a separate action to enforce his third-party claim. In fact. FLORES. since no bond was filed by Allen. MA. MENDOZA. SR. the court issued a writ of execution for the enforcement thereof. ASST. the same shall be determined by the court issuing the writ of execution. He cannot be held liable for the judgment against Bob without a trial. or any officer duly representing it. Samson. and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee. After the finality of the decision. MARIANO. to any third-party claimant if such bond is filed. DUMLAO. Q: What is the duty of the officer if the property sought to be levied on is claimed by another person and proper proof of ownership or possession is served upon the officer making levy? A: If the property levied on is claimed by any person other than the judgment obligor or his agent. AQUINO. Rule 57).. the sheriff shall not be liable for damages for the taking or keeping of the property. or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. It is in that suit that Allen can raise the ground of fraud against Cathy. Upon service of the affidavit upon him. KRISTINE P. HERRERA. the 2. STAMARIA. QUIAMBAO. ROSALES . Allen moved to deny the third-party claim and to hold Bob and Cathy jointly and severally liable to him. DIANE CAMILLA R. RONN ROBBY D. JR. the court denied the third-party claim and rendered an amended decision declaring Bob and Cathy jointly and severally liable to Allen for the money judgment. KATRINA NADINE G. the officer shall not be bound to keep the property. LIM. Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment. G. a. unless such judgment obligee. is there a necessity for filing a bond? A: When the writ of execution is issued in favor of the Republic of the Philippines. Q: Allen obtained a money judgment against Bob. Conformably with the said writ. the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. May 9. Is the ruling of the court correct'? Explain. RHONDEE E. MICHAEL ANGELO V. GRETCHEN C. SUBJECT HEADS: DARRELL L. and such person makes an affidavit of his title thereto or right to the possession thereof. DONNA GRAGASIN. JUDGE CESAR D. LANTIN. A: No. files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action. Cathy has not been impleaded as a party defendant. SHERY PAIGE A. 14. YRIZ TAMIE A. AIDA. The officer shall not be liable for damages for the taking or keeping of the property. Terceria – By making an affidavit of his title thereto or his right to possession thereof. 140889. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. MARA KHRISNA CHARMINA F. PINEDA. In resolving the application. the sheriff levied upon certain properties under Bob's name. SUBJECT HEAD: ANGELI P. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. ALBAÑA. EDELISE D. PLATON III. if such bond shall be filed. BAGANG. MEMBERS: AKEMI B. 108 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. BORJA. JUSTICE OSCAR C. MANANQUIL. IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN Certain remedies available to a third person not party to the action but whose property is the subject of execution: 1. CONTRIBUTORS: VICENTE JAN O.UST GOLDEN NOTES 2011 Q: What is the procedure for a 3rd party claim? A: 3rd party should make an affidavit of his title thereto. MIJARES. the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. UNICA AMOR R.

SUBSEQUENT to the lien under which the property was sold (Sec. in such case. even after lapse of 1 year. as long as each redemption is made within 60 days after the last. Intervention – This is possible because no judgment has yet been rendered and under the rules. Judgment obligor. Redemptioner – a creditor having a lien by virtue of an attachment. Generally in judicial foreclosure sale. but only equity of redemption. Note: The period of redemption is not suspended by an action to annul the foreclosure sale. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. he is not a redemptioner because his interests in his lien are fully protected. Such right is available only to real properties. Q: Distinguish a judgment obligor from a redemptioner? What are their rights as regards redemption of real property? A: JUDGMENT OBLIGOR REDEMPTIONER One who has a lien by by virtue of an attachment judgment. transferee. assignee. Q: Who may redeem the real property sold? A: Real property sold. may be redeemed by the following persons: 1. The periods for redemption are not extendible. The person to whom redemption was made must execute and deliver to the judgment obligor a certificated of redemption. or mortgage on the property sold. provided that the judgment debtor has not exercised his right of redemption. a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2. MASACAYAN & THEENA C. CA. but his mortgage contract must have been executed after the entry of judgment. There is no right of redemption as to personal properties for the sale is absolute. Further redemption is allowed. Within 60 days from the last redemption. Judgment obligor. no further redemption is allowed.CIVIL PROCEDURE court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. there is no redemption at all. there is no right of redemption. 2. The right of redemption cannot be levied on by judgment creditor. Within 1 year from the date of registration of the certificate of sale if he is the first redemptioner. 27) Note: If creditor’s lien is prior to the judgment. 14. or any part thereof sold separately. or his successor in interest in the whole or any part of the property. 423 SCRA 356). 3. may redeem the property from the purchaser at any ACADEMICS CHAIR: LESTER JAY ALAN E. SABUGO & JOHN HENRY C. or his successor in interest (e. Rule 57 from vindicating his claim to the property in the same or in a separate action. heirs. if he be a subsequent redemptioner. Accion Reinvindicatoria – The third party claimant is not precluded by Sec. or 2. or on some part thereof. it would be a conventional redemption. 4. judgment.g. Note: A mortgagee can be a redemptioner even if his mortgage has not yet matured. judgment or mortgage on the property sold. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption. The rule is liberal in allowing redemption and it has been allowed in the case of a cashier’s check and certified bank checks. or redemptioner. but the parties may agree on a longer period. Q: What are the requirements to enable the redemptioner or judgment obligor to redeem the real property? A: The judgment obligor. MARTINEZ 109 . 6. In sale of estate property to pay off debts of the estate. Note: A surety is not a successor in interest. subsequent to the lien under which the property was sold. joint debtors) Within 1 year from the date of registration of the certificate of sale. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 1. Q: Can redemption be made in other forms than cash? A: Yes. This action may be a totally distinct action from the former case. RULES ON REDEMPTION Q: Is the right of redemption available to any type of property? A: No. Once he redeems. Rule 19).

FLORES. SY. Bring an action against the judgment creditor. and 2. MARIANO. DONNA GRAGASIN. ALBAÑA. the amount of such other lien. DUMLAO. With 1 percent per month interest up to the time of redemption. Reversal or setting aside of judgment. Q: Is the bona fide tender or delivery of the redemption price required in offer to redeem? A: GR: The offer to redeem must be accompanied with a bona fide tender or delivery of the redemption price. Q: What is the remedy of purchaser of real property sold on execution in the above situations? A: 1. ROSALES . 7. LANTIN. other than the judgment under which such purchase was made. 31). PINEDA. or Is evicted due to: 1. 3. the amount of his purchase. 5. GRETCHEN C. 33). SHERY PAIGE A. The judgment creditor may cause examination of the debtors of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (Sec. Q: When is the purchaser entitled to possession and conveyance of the property sold on execution? A: The purchaser is entitled to possession and conveyance of the property if no redemption is made within one (1) year from the date of the registration of the certificate of sale (Sec. If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor. MARA KHRISNA CHARMINA F. MICHAEL ANGELO V. The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property (Sec. DIANE CAMILLA R. XPN: The right to redeem is exercised through the filing of a complaint to redeem in the courts. To remain in possession of the property until the expiration of period of redemption. 110 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Irregularities in the proceedings concerning the sale. YRIZ TAMIE A. and 4.. If the purchaser or his successor-ininterest fails to recover possession of the property sold on execution sale. ASST. MANANQUIL. CONTRIBUTORS: VICENTE JAN O. TERESE RAY-ANNE O. 3. it may order payment in fixed monthly installments (Sec. 4. JR. The judgment creditor may cause examination of the judgment debtor as to his property and income (Sec. 37). 34). and his interest can be ascertained without controversy. if the purchaser be also a creditor having a prior lien to that of the redemptioner. 2. File a motion for revival of judgment in his name against the judgment debtor. AIDA. RONN ROBBY D. A: 1. To make necessary repairs. SUBJECT HEADS: DARRELL L. or otherwise. The fact that the property was exempt from execution. JUDGE CESAR D. To collect rents and profits until the expiration of period of redemption (Sec. SR. 3.UST GOLDEN NOTES 2011 time within 1 year from the date of the registration of the certificate of sale by paying the purchaser: 1. 2. MENDOZA. MIJARES. 2. 32). RHONDEE E. mortgagee. Q: What are the rights of a judgment debtor? A: 1. PLATON III. AQUINO. 3. MEMBERS: AKEMI B. 2. 3. 42). or If a third person has vindicated his claim to the property (Sec. If the court finds. HERRERA.. LIM. 6. KATRINA NADINE G. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED Q: What is the effect when the judgment was returned unsatisfied? A: 1. MA. and Use it in the ordinary course of husbandry (Sec. 36) (2008 Bar Question). STAMARIA. the court may order the sale of such interest (Sec. JUSTICE OSCAR C. UNICA AMOR R. 5. 37). QUIAMBAO. 41). EDELISE D. Q: What are the instances when the purchaser may recover the purchase price from the judgment obligor? 4. amount of any assessments or taxes which the purchaser may have paid after purchase. the court may order the property applied to the satisfaction of the judgment (Sec. or Bring an action to recover possession of property. after examination. 40). that there is property of the judgment debtor either in his own hands or that of any person. 2. To use the property in the same manner it was previously used. JUANENGO. BAGANG. If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs. SUBJECT HEAD: ANGELI P. 4. BORJA. JUSTICE JAIME M. KRISTINE P.

sued Betsie resident of Malolos. Bulacan. As the writ was returned unsatisfied. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. In any other litigation between the same parties or their successors in interest. 47. If judgment or final order is on a specific thing. MASACAYAN & THEENA C. 43). 5. With respect to the personal. the judgment obligee. If the person alleged to have the property of the judgment debtor or be indebted to him. Q: When the judgment is final and executory. 4. 2. he must take it in writing and certify it to the court.47. MARTINEZ 111 . 3. How should the court resolve the motion? A: The RTC Manila should deny the motion. When a writ of execution is returned unsatisfied. relationship (Sec. Rule 39). or denies the debt. After the judgment had become final. in the RTC Manila for a sum of money. 2. the judgment or final order is conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Failure to obey may be punished by contempt. Rule 39). if the judgment be with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto. SABUGO & JOHN HENRY C. to appear before the court or commissioner to testify as provided in Sec 36 & 37. Rule 39). Note: A party or other person may be compelled. Betsie resides in Malolos. With respect to a probate of a will. the judgment or final order is conclusive upon the condition. Q: Anna. status or relationship (Sec. at any time after such return is made. the same is conclusive upon the title to thing (Sec. 3. EFFECT OF JUDGMENT OR FINAL ORDERS Q: What is the effect of final judgments? ACADEMICS CHAIR: LESTER JAY ALAN E. Bulacan. Writ of execution varies judgment. political or legal condition or status of a particular person or his relationship to another. It cannot refuse execution and is compellable by mandamus. The trial court rendered judgment holding Anna liable for the entire amount prayed for in the complaint. XPN: (Same as grounds to Quash writ of execution) 1. a writ of execution was issued by the court.47.47. or the administration of the estate of a deceased person. is it always ministerial upon the court to order execution? A: GR: Trial Court has ministerial duty to order execution of final and executor judgments. shall be entitled to an order from the court which rendered the said judgment. Note: The garnishee becomes a forced intervenor. the court may authorize the judgment creditor to institute an action to recover the property. 4. claims an adverse interest in the property. 36). requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it. A: 1. However. 9. Rule 39). EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR Q: How is examination of obligor of judgment obligor done? A: Court may order to be examined any person or corporation who has property of the debtor in order to bind the credits due to debtor.CIVIL PROCEDURE 7. All examinations and answers must be under oath. a Manila resident. by an order of subpoena. that only is deemed to be adjudged in a former judgment or final order which appear upon its face to have been adjudged. If examination is before a commissioner. the same is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate and not a conclusive presumption of death (Sec. Change in the situation of the parties which makes the execution inequitable or unjust. Anna filed a motion for an order requiring Betsie to appear before it and be examined regarding his property and income. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. litigating for the same thing and under the same title and the same capacity. Execution is sought against property exempt from execution. (2002 Bar Question) 8. Rule 39). Controversy was never submitted to the judgment of the court. requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation).47. no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found (Sec. or which was actually and necessarily included therein or necessary thereto (Sec. forbid its transfer and may punish disobedience for contempt (Sec. In other cases.

SR. and 10. QUIAMBAO. Writ of execution is issued against the wrong party. YRIZ TAMIE A. subject matter. LIM. ROSALES .e. On equitable grounds. Attack against a judgment which is void for lack of jurisdiction. AIDA. DUMLAO. RONN ROBBY D. Terms of the judgment are not clear and leaves room for interpretation. Against a specific thing – conclusive upon title to the thing. TERESE RAY-ANNE O. Writ of execution was issued without authority. PINEDA. CONTRIBUTORS: VICENTE JAN O. MIJARES. Note: In the above exceptions. Any amendment which substantially affects a final and executor judgment is null and void for lack of jurisdiction. Discuss the effect of judgment under paragraph A and B of Section 47 A: In Rem (Par. foreign judgment is presumed to be valid and binding. BAGANG. Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. or clear mistake of law or fact. STAMARIA. Former judgment or order must be final and executory. 48) Q: What are the requisites of res judicata? A: 1. MA. 7. FLORES. GRETCHEN C. MENDOZA. JUANENGO. 6. 9. JR. LANTIN. collusion. MARA KHRISNA CHARMINA F. and In cases falling under the 10 exceptions above. KRISTINE P. UNICA AMOR R. fraud. remedy is certiorari (Rule 65) Q. AQUINO. 8. Note: judgment for support is not final in a sense that it cannot be modified. 4. Support depends not only on the varying conditions affecting the ability of the oblgor to pay. 3. Note: to recognize a foreign judgment. 2. HERRERA. Court has jurisdiction over subject matter and parties. raise the foreign judgment as res judicata in the defense (not in a separate motion) 112 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. but also upon the ever-changing needs of the beneficiary himself. and cause of action between first and second action. MANANQUIL. Note: In both instances. and Identity of parties. Writ of execution is defective in substance. EDELISE D. XPN: Judgment may be modified as to: 1. PLATON III. 2. 4. RHONDEE E. DIANE CAMILLA R. Judgment debtor has been paid or otherwise satisfied.errors not as a result of exercise of judicial functions 2. status or relationship of the person. SHERY PAIGE A.. SUBJECT HEAD: ANGELI P. SY. MEMBERS: AKEMI B. collusion. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS Q: What is the effect of a foreign order? A: 1. To enter nunc pro tunc orders – to make a present record of an order which the court rendered at a previous terms but. notice. Note: In both instances. the will or administration or the condition. the judgment may be repelled by evidence of want of jurisdiction.UST GOLDEN NOTES 2011 5. i. Note: Judgment novated by a subsequent agreement cannot be executed (e. JUDGE CESAR D. DONNA GRAGASIN. by inadvertence has not been entered. actionreinvindicatoria Q: When may execution of final and executory judgment be enjoined? A: 1.g. i.. land registration cases In Personam (Par. notice. Writ of execution is improvidently issued. 10. or obtained through fraud. JUSTICE JAIME M.e. Sec. Upon fling of a petition for relief from judgment. agreement entered into by the parties other than terms of payment). SUBJECT HEADS: DARRELL L. MARIANO. JUSTICE OSCAR C. Q: Can final and executory judgments be modified? A: GR: Final and executor judgments cannot be amended or modified. ASST. fraud or clear mistake of law or fact. or 3. Clerical errors or mistakes . b) The judgment or final order is conclusive between parties and their successors-in-interest. (par. KATRINA NADINE G. litigating for the same thing and under the same title and in the same capacity. Q: How is a foreign judgment enforced? A: By filing an action based on said judgment. MICHAEL ANGELO V. (TEST: determine identity if cause of action) 3. the judgment may be repelled by evidence of want of jurisdiction. BORJA. 4. Former judgment or order was on merits. a) The decision is conclusive upon the title of the thing. 2. ALBAÑA. To clarify ambiguity.

L-31897. 1) judgment How applied for File verified application File verified and applicant’s bond. 2) receivership to be decided by the court of origin (Sec. 1) (Sec.4) 2) Purpose(s) 1. RTC. CA. CA.CIVIL PROCEDURE R. Municipal and Municipal Circuit Trial Courts RTC. or a member Courts where the action is pending. Lower court. Municipal. Metropolitan. and Municipal Circuit Trial Courts Who may grant it Court where action is pending. 1) To compel adverse party to provide support while the ACADEMICS CHAIR: LESTER JAY ALAN E. if application and application is included in applicant’s bond. Metropolitan. SABUGO & JOHN HENRY C. the initiatory pleading. as long as the civil aspect is tried together with it . MARTINEZ 113 . the RTC or MTC having jurisdiction may also issue this remedy. MASACAYAN & THEENA C. agency or a property subject of possession of adverse party in person to refrain from an action or personal Court of origin and appellate court.g Art. CA or SC is pending in the Only the court the CA or the SC provided action is lower court. the CA or Only the Court where the SC. court which issues the allow application for injunction (Sec.(e. 2) together with a copy of actions for the initiatory pleading and foreclosure of the applicant’s affidavit mortgage (Secs. even if action action is pending. application may also File affidavits and File affidavits and the adverse party should be included in applicant’s bond applicant’s bond be served with summons initiatory pleading in (Sec. Family Court. CA. anytime before answer is judgment (Sec. thereof. PROVISIONAL REMEDIES Q: Distinguish the different kinds of provisional remedies.. 345 (3) RPC.”) Replevin (Rule 60) Support Pendente Lite (Rule 61) SC. Family Court. June 30. CA. 3) (Sec. Metropolitan. bond not required (Sec. Municipal and Municipal Circuit Trial Courts SC. 1) File verified application. Family Court. 1) prior to satisfaction of filed (Sec. 1) When available At any stage of the At the At any stage of the At any stage of the proceeding and even commencement action but before action but before after finality of of the action but entry of final judgment or final order judgment. 1 and and bond (Sec. A: Preliminary Attachment (Rule 57) Personal and real property Preliminary Injunction (Rule 58) Receivership (Rule 59) Subject Matter Particular act(s) Personal property capable of manual delivery Jurisdiction (Court which can grant it) Personal and real property Money or other forms of support GR: Family Court XPN: In criminal actions. where action is (Sec. RTC. GR No. To seize the To require a party or a To place the To recover property of the court. Municipal and Municipal Circuit Trial Courts SC. Family Court. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 2) pending in the same Appellate court may pending. Metropolitan. RTC. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. “In every case to support the offspring. 1972) At the commencement of the action or at any time prior to the judgment or final order (Sec. (Ramos v. in crimes against chastity.

CONTRIBUTORS: VICENTE JAN O. JUDGE CESAR D. or by any other person in a fiduciary capacity. 2. 3. BORJA. (Kencht v. ROSALES . GRETCHEN C. MICHAEL ANGELO V. DIANE CAMILLA R. SUBJECT HEAD: ANGELI P.No. EDELISE D. HERRERA. ALBAÑA. 2) When equity and justice require. when the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties. Party. Nov.1. KATRINA NADINE G. removed or disposed of to prevent its being found or taken by the applicant or an authorized person. MA. CA. Rule 57. LIM. KRISTINE P. JR. threatening. JUSTICE JAIME M. some act probably in violation of the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual (Sec.G. AIDA. MANANQUIL. continuance or nonperformance of the act during the litigation would probably work injustice to the applicant. or in requiring the performance of an act for a limited period or perpetually 2. That the applicant is entitled to the relief demanded which consists in restraining the commission or continuance of the act complained of. DUMLAO. agency or a person is doing. or is procuring or suffering to be done. 1. SR. MEMBERS: AKEMI B. RONN ROBBY D. UNICA AMOR R. FLORES. QUIAMBAO. MIJARES. 97962. to preserve the property during the pendency of an appeal or to dispose of it according to the judgment or to aid execution when execution has been returned unsatisfied of the judgment obligor refuses to apply Applicant is: 1. YRIZ TAMIE A. G. Nov. removed or materially injured unless a receiver is appointed. MARA KHRISNA CHARMINA F. Juan. 3. SUBJECT HEADS: DARRELL L. (1999 Bar Question) action is pending in court. court. ASST. when the property has been concealed. RHONDEE E. 2. The owner of the property claimed. detained or converted. 1993) proceeding under the control of a third party for its preservation and administration litis pendentia and to protect the rights of all the parties under the direction of the court. In an action against a party who has been guilty of fraud in contracting the debt or incurring the 1. TERESE RAY-ANNE O. or 2.. No. STAMARIA. 17. BAGANG. 19. against a party who is about to depart from the Philippines with intent to defraud his creditors. or 3.UST GOLDEN NOTES 2011 advance for the satisfaction of judgment that may be recovered in cases falling under Sec. After judgment. Commission. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected.R. or is attempting to do. MARIANO. 2. SHERY PAIGE A. SY. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer. or for a willful violation of duty. (Quasha v. GR: In an action for the recovery of a specified amount or damages. having due regard to the probable outcome of the case and such other circumstances as may suggest the reasonability of granting support pendente lite 114 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. DONNA GRAGASIN.R. moral and exemplary b. MENDOZA. PINEDA.. When the applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost. Entitled to the possession thereof but the property is wrongfully detained by the adverse party (Sec. In an action to recover the possession of property unjustly or fraudulently taken. XPN: a. JUANENGO. In foreclosure of mortgage. 3) Ground(s) 1. JUSTICE OSCAR C. property. 4.L54158. LANTIN. 1982) doing a particular act or to require the performance of a particular act To prevent future injury and maintain the status quo. PLATON III. AQUINO.

In an action against a party who does not reside and is not found in the Philippines. Action for support. Filed by the applicant. 2) No bond required. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. In an action against a party who has removed or disposed of his property. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. if the court shall finally adjudge that the applicant was not entitled thereto (Sec. Rule 58. Sec. 5) Bond Requirement Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages that he may sustain by reason of the granting of provisional remedy prayed for. SABUGO & JOHN HENRY C. or 2. or is about to do so. When appointment of receiver is the most convenient and feasible means of preserving. 1). or otherwise to carry the judgment into effect. or 4. 4. may be issued ex parte Required – Within 3 days after comment is filed or after expiration of period of filing Bond executed to the adverse party in double the value of the property. Ancillary remedy Principal action/ ancillary remedy Principal action/ ancillary remedy Principal action/ ancillary remedy Effectivity During the pendency of the case unless earlier discharged or quashed by the court During the pendency of the case unless earlier discharged or quashed by the court Until discharged by the court During the pendency of the case unless the defendant files a redelivery bond. Immediately Executory Yes No Discharge of Remedy By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge ACADEMICS CHAIR: LESTER JAY ALAN E. administering or disposing of the property in litigation (Sec. 6. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2. Filed by the receiver. Requirement of Hearing GR: Required XPN: Great or Not required. Whether principal or ancillary action Ancillary to: 1. Rule 57. or on whom summons may be served by publication his property in satisfaction of the judgment. for the return of the property to the adverse party if such return be adjudged and for the payment to the adverse party of such sum as he may recover from the applicant in the action (Sec.CIVIL PROCEDURE obligation or in its performance 5. Sec. MASACAYAN & THEENA C. and 2. Rule 59 ) 2 bond requirement for receivership: 1. In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived. MARTINEZ Yes Not applicable. During the pendency of the case. 4. 115 . reserved or instituted prior to its filing. with intent to defraud his creditors. No Yes Not required . may be irreparable injury would issued ex parte (2001 result / extreme urgency Required Bar Question) and applicant will suffer grave injustice and irreparable injury (Sec.

the person legally obliged to give support. liable therefor. without If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of remedy was effected: the recipient to obtain Application must be filed with the appellate court before the judgment of the reimbursement in a appellate court becomes executory. MA. LANTIN. separate action from the person legally obliged to give such support (Sec. MENDOZA. LIM. showing right shall order the recipient to damages and amount thereof. KATRINA NADINE G. Rule 58. AQUINO. MIJARES. Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy When the judgment or final order finds that the person who has been Requisites: providing support 1. 9) without 2. MARIANO. 6). 6) Other Grounds For Discharge 1. 20. Improper or irregular issuance or enforcement or 1. Rule 60) the person who . be fixed by the double the value of counter-bond (Sec. MARA KHRISNA CHARMINA F. GRETCHEN C. SHERY PAIGE A. 19) proper bond. Judgment rendered defective and is sufficient cause. If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: If the recipient fails to Adverse party may recover damages in the same action (Sec. Rule 59. HERRERA. DUMLAO. creditor (Sec. Property is not upon affidavits of the receiver is (Sec. counter-bond alone will not suffice to discharge the injunction (Sec. SUBJECT HEAD: ANGELI P. Party who availed of provisional remedy and his surety must be notified. Appointment insufficiency of bond. Sec. MICHAEL ANGELO V. JR. JUDGE CESAR D. SR. Owner of the property attached must file before trial or before perfection of appeal or pendente lite is not before judgment becomes executory an application for damages. ROSALES . Sec. provided the same may Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a recovered in the same case. Sec. JUSTICE JAIME M. excessive. BAGANG. STAMARIA. JUSTICE OSCAR C. the applicant / exempt from execution 2. KRISTINE P. SUBJECT HEADS: DARRELL L. or applicant’s bond is 2. QUIAMBAO. RHONDEE E. the court 2. DONNA GRAGASIN. YRIZ TAMIE A. Other grounds (e. SY. Counter Bond Filing of counter-bond made only upon showing that the issuance or continuance thereof would cause irreparable Amount of Amount of counterCash deposit may be damage to the party or counter-bond to bond should be made in lieu of the person enjoined while the Not applicable.g. discharge shall be limited to the excess (Sec. CONTRIBUTORS: VICENTE JAN O. interest from the date of actual payment. found to be 1. ALBAÑA. Attachment is plaintiff for any enjoined 3). PLATON III. 9. but the reason (Sec. Bond posted by 3. 5) compensated for such damages as he may suffer. UNICA AMOR R. MANANQUIL. RONN ROBBY D. 4. Appellate court may allow application to be heard separate action from and decided by the trial court. 2 & 5) delivered to the party or person insufficient (Sec. Rule 57. 13). Such damages may be awarded only after proper hearing and shall be included in the already received with judgment of the main case. 8.. DIANE CAMILLA R. TERESE RAY-ANNE O. 3) the property (Sec. 12) applicant can be fully court (Sec. PINEDA.UST GOLDEN NOTES 2011 of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action. 13) insufficient or application (Sec. FLORES. AIDA. Plaintiff’s bond is 1. 10. reimburse the amount. MEMBERS: AKEMI B. BORJA. Insufficiency of the was obtained (Sec. ASST. EDELISE D. and to return the amounts 3. JUANENGO. 7) 116 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.. against attaching not replaced with 2. Property attached is insufficient/ defective). The recovery of damages cannot be had in a separate action.

of a final judgment in the case. (Riano. “in every case to support the offspring…”) Q: When are these provisional remedies available? A: 1. (Riano. CA. 3. Witness Protection Order c. 2. Even an inferior court may grant such remedy.) XPN: in criminal actions. SABUGO & JOHN HENRY C. Temporary Protection Order b. PRELIMINARY ATTACHMENT Q: What are the Other Provisional Remedies available? A: 1. To preserve the status quo. JURISDICTION OVER PROVISIONAL PROVISIONAL REMEDIES Q: Which court has jurisdiction over applications for provisional remedies? A: GR: Applications must be filed with the court having jurisdiction over the pending principal action. and for the purpose of the ultimate effects. Civil Procedure: A Restatement for the Bar. 532. Art 345 (3) RPC. Attachment. ACADEMICS CHAIR: LESTER JAY ALAN E.CIVIL PROCEDURE 1. the RTC or MTC having jurisdiction may also issue the remedy of Support pendent Lite.) 4. A: 1. 2. 2. Preliminary Attachment (Rule 57) Preliminary Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61) 3. Q: What are the purposes of provisional remedies? A: Provisional remedies are resorted to: 1. however. 3. 4. Temporary measures availed of during the pendency of the action Mere incidents and are dependent upon the result of the main action d. 204 SCRA 343). in crimes against chastity. To preserve or protect their rights or interests while the main action is pending. The grant of remedy is addressed to the discretion of the court. p. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 3. Q: What is the nature of provisional remedies? A: 1. To preserve the subject matter of the action. Temporary custody over a minor Deposit in Actions for Annulment of Sale (Reyes v. 2009 ed. 5. Civil Procedure: A Restatement for the Bar. as long as the civil aspect is tried together with it. 4. where the main action is for support. Civil Procedure: A Restatement for the Bar. 5. Note: This is only an ancillary remedy. p. 2. 537.) 2. 2009 ed. Production Order (Riano. Inspection Order Q: What is Preliminary Attachment? A: It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant for the same to be held by the Sheriff as security for the satisfaction of whatever judgment may be rendered in the case ( Davao Light and Power. To secure the judgment. (e.v. the provisional remedy of support pendente lite may not be granted by a Municipal Trial Court because the main action is within the jurisdiction of the Family Court. MARTINEZ 117 .g. p. NATURE OF PROVISIONAL REMEDIES Q: What are provisional remedies? A: Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. MASACAYAN & THEENA C. Inc. 3. Lim) Restraining order against the accused in cases of violence among immediate family members living in the same domicile and household Hold departure orders issued by Regional Trial Courts in criminal cases Interim reliefs under Writ of Amparo a. Q: What are the Provisional Remedies under the Rules of Court? 2. It is not a distinct proceeding and is availed of within a principal action because it is a mere provisional remedy. 2009 ed. injunction and support pendent lite – may be applied for before final judgment Replivin – may be applied before the answer Receivership – may be applied for at any stage of the action and even after final judgment. There is no separate action called preliminary attachment. 534-536. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.

MEMBERS: AKEMI B. a cross-claim or a thirdparty claim may also avail of the remedy. PINEDA. A defendant who asserts a counterclaim. SHERY PAIGE A. 2. Platon. The proceeds of the sale are turned over to the attaching creditor a.writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. 2009 ed. 515 SCRA 106). Resorted to at the commencement of the action or at any time before the entry of judgment. LANTIN. BORJA. GROUNDS FOR THE ISSUANCE Q: What are the groundsfor the issuance of a writ of preliminary attachment? (When is a Preliminary Attachment Proper?) 118 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. JUSTICE JAIME M. FLORES. LIM.one issued at the commencement of the action or at anytime before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. to his claim or the money in which said third person owes the defendant (RCBC v. CA. SR. 1 of Rule 57 provides that the “plaintiff or any proper party may have the property of the adverse party attached. 2005). ROSALES . 11) FINAL ATTACHMENT (Rule 39) It is a means for the execution of a final judgment. 1988).UST GOLDEN NOTES 2011 Q: What is attachment? the purpose of preliminary Q: What are the kinds of attachment? A: A: Preliminary attachment is designed to: 1. and for the satisfaction of said judgment. AIDA. 1. February 17. JUDGE CESAR D. JUSTICE OSCAR C. the legal effects are identical because in both cases jurisdiction over the person of the defendant is not required as long as the court acquires jurisdication over the res (Biaco v. Available after the judgment in the main action had become executor.” (Borja v. PRELIMINARY ATTACHMENT (Rule 57) It is an auxiliary remedy to give security for a judgment still to be rendered. Q: Distinguish Preliminary attachment from Final attachment. BAGANG. SY. YRIZ TAMIE A. 73 Phil. 190 SCRA 629). It should always be accompanied by a sale at public auction. seize the property of the debtor before final judgment and put the same in custodialegis even while the action is pending for the satisfaction of a later judgment (Insular Bank of Asia and America v. GRETCHEN C. SUBJECT HEADS: DARRELL L. Note: Whether in rem or quasi in rem. DONNA GRAGASIN. Levy on execution. Garnishment simply impounds the property in the possession of the garnishee and maintains the status quo until the main action is finally decided. in cases allowed. AQUINO. Countryside Rural Bank. MANANQUIL. November 29. TERESE RAY-ANNE O. Q: What is the effect if a preliminary action is availed of and is granted in an action purely in rem? A: When availed of and granted in an action purely in personal. ALBAÑA. Q: Who may apply for a preliminary attachment? A: It is not only the plaintiff who may apply for a writ of preliminary attachment.34548. QUIAMBAO. 659) (Riano. ASST.the plaintiff seeks to subject either the property of the defendant in the hands of the third person called the garnishee.Espanol Filipino v. Palanca. are in custodial egis (Sec. SUBJECT HEAD: ANGELI P. for the temporary seizure of the property of the adverse party The proceeds of the sale. Damalerio. MENDOZA. L.. This transformation of the nature of the action dispenses with the need of acquiring jurisdiction over the person of the defendant. Q: Once prayed for.. JUANENGO. 538. PLATON III. MICHAEL ANGELO V. CONTRIBUTORS: VICENTE JAN O. EDELISE D. UNICA AMOR R. 533 SCRA 738). MIJARES. 37 Phil 921) although sometimes referred to as an actionin rem (Valdemieso v. DIANE CAMILLA R. 3. p. 451 SCRA 638. or 2. it converts the action to one that is quasi in rem. Alejandro. STAMARIA. MARIANO. Garnishment. RONN ROBBY D. Castro. Preliminary attachment. to enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected (Philippine Commercial International Bank v.) Q: What is the nature of the proceeding? A: A: Attachment is in the nature of proceeding quasi in rem (Banco. RHONDEE E. DUMLAO. No. MA. KRISTINE P. Civil Procedure: A Restatement for the Bar. MARA KHRISNA CHARMINA F. Sec. is it mandatory that the court grant the writ of preliminary attachment? A: The grant of preliminary attachment is addressed to the sound discretion of the court. KATRINA NADINE G. JR. HERRERA. There is no sale because the decision has not yet been rendered.

or by other person in a fiduciary capacity. SABUGO & JOHN HENRY C. Q: How may the writ be issued? A: The writ of preliminary attachment may be granted by: 3. Rule 57) a. 624. there is no other sufficient security for the claim sought to be enforced by the action. Vol I. or for a willful violation of duty Actions to recover the possession of property unjustly or fraudulently taken. or the value of the property the possession of which he is entitled to recover. No. Rule 57): 1. No other sufficient security d. Ngo Yet Te. when the property. or is about to do so. Rule 57). 1. and 2. or 2. 5. sufficient cause of action exists.R. 2007). the case is one of those mentioned in Section 1. Q: What is the basis of the bond’s amount? A: The bond shall answer for: 1. 4. Actions for the recovery of a specified amount of money or damages XPN: o moral and exemplary damages o against a party who is about to depart from the Philippines which intent to defraud his creditors Actions for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer. Sufficient cause of action b. or clerk. 3. 155868. ISSUANCE AND CONTENTS. c. May be issued ex-parte or 2. 2. must show that: 1. Filed at the commencement of action or any time before entry of judgment (Sec. or any part thereof. or disposed of to prevent its being found or taken by the applicant or an authorized person Actions against a party who has been guilty of a fraud in contracting the debt or incurring or performance the obligation upon which the action is brought Actions against a party who has removed or disposed of his property.). 2. 4. 2007 ed. Q: When may an order for preliminary attachment be applied? A: The writ may be applied: 1. has been concealed. February 6. as may be sufficient to satisfy the judgment Q: What should the affidavit contain? A: The Affidavit of the applicant. or person upon whom summons may be served by publication b. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. in the course of his employment as such. MARTINEZ 119 . 2. detained or converted.CIVIL PROCEDURE A: 1. ACADEMICS CHAIR: LESTER JAY ALAN E. Executed in favor of an adverse party in an amount fixed by court 2. and that the amount due the applicant. is as much as the sum for which the order is granted above all legal counterclaims. or an attorney. MASACAYAN & THEENA C. broker agent. or an officer of a corporation. Amount due to applicant or value of property he is entitled to recover Filing of a bond (Sec. All the costs which may be adjudged to the adverse party. AFFIDAVIT AND BOND Q: When may an order of attachment be issued and what should be contained therein? A: (Sec. Based on grounds mentioned in Section 1 c. G. 6. p. 3. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Note: Insolvency of defendant is not a ground for attachment especially when defendant has not been shown to have committed any act intended to defraud its creditors (Spouses Yu v. removed. and 3. At the commencement of the action. b. or some other person who personally knows the facts. factor. Rule 57): a. with intent to defraud his creditors Actions against non-residents not found in the Philippines. Remedial Law Compendium. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 57) Application by any party and affidavit showing: (Sec. 1. upon motion after notice and hearing Requiring sheriff to attach as much property which is not exempt from execution. At any time before entry of judgment (Sec. All damages which he may sustain by reason of the attachment. REQUISITES Q: What are the requisites in the application for a writ of preliminary attachment? A: 1. To answer for all costs and damages Note: No notice to the adverse party or hearing is required as the time which the hearing will entail could be enough to enable the defendant to abscond or dispose of his property before the writ issues (Regalado.

5. JR. JUDGE CESAR D. it is however necessary for the validity of the ENFORCEMENT of the writ. CA. or d. JUANENGO. MENDOZA.. the application for attachment. royalties. 204 SCRA 343). SR. YRIZ TAMIE A. the summons could not be served despite diligent efforts. Abrogar. ALBAÑA. FLORES. AIDA. Q: What is the rationale for allowing the ex parte issuance of a writ of preliminary attatchment? A: An ex parte issuance of the writ is intended to preempt any possible disposition of property by the adverse property to the detriment of the attaching creditor and thus defeat the very purpose of attachment (Mindanao Savings & Loan Association. PINEDA. It makes the writ unenforceable.. The fact that the writ of preliminary attachment was served ahead of the summons did not affect the jurisdiction of the court over his person. SHERY PAIGE A. v. accompanied by service of summons. financial interests. Stocks. Real property. Inc. KATRINA NADINE G. GRETCHEN C. PLATON III. It may also be issued ex parte and even before summons is served upon the defendant. the defendant is a non-resident of the Philippines. c. A notice of garnishment was served by the sheriff upon the bank and summons was subsequently served upon Banjo. Clerk of Court where estate is being settled 2. (Onate v. Interest in the estate of a decedent – Leaving copy of writ and notice of attachment with: a. MEMBERS: AKEMI B. shares or interest – Leaving copy of the writ and notice of attachment with President or Managing Agent 4. (2005 Bar Question) Note: Where the writ of preliminary attachment had already been implemented. ROSALES . A: The motion should be denied. Inc. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE Q: What is the Rule on Prior or Contemporaneous Service of Summons? A: Enforcement of the writ of preliminary attachment must be preceded by or simultaneously 120 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. The action is in rem or quasi in rem (Sec. 2. SY. 204SCRA 343 (1991)). the subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. LANTIN. e. MARA KHRISNA CHARMINA F. v. Debts and credits. November 25.Leaving copy of the writ and notice of attachment with person owing or having custody over the property 5. 172 SCRA 480). copy of complaint. TERESE RAY-ANNE O. SUBJECT HEADS: DARRELL L. Satsatin. Banjo then filed a motion to dissolve the writ of preliminary attachment on the ground that the court did not acquire jurisdiction over his person as the writ was served ahead of the summons. Description of the property c. he wll issue a receipt. Executor or administrator of estate b. Resolve the motion. No. Personal property capable of manual delivery – sheriff taking into custody and safely keeping it. Q: Alfred filed an action against Banjo for collection of sum of money with an ex-parte application for a writ of preliminary attachment which was granted by the trial court. STAMARIA. JUSTICE JAIME M. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY Q: How can a property be attached? A: (Sec. MICHAEL ANGELO V. AQUINO. a copy of the complaint. 2009) d. the order of attachment and the attachment bond (Davao Light & Power Co. Rule 57). 241 SCRA 659 (1995)) Q: What are the cases in which contemporaneous service is not required? A: The requirement of prior or contemporaneous service of summons shall not apply where: a.R. RONN ROBBY D. the defendant is a resident of the Philippines temporarily absent therefrom. KRISTINE P. However.UST GOLDEN NOTES 2011 1. Rule 57) 1. ASST. LIM. CA. CA. commission and other personal property not capable of manual delivery . 3. File a copy of the Order of Attachment with the proper Registry of Deeds and Occupant or his agent within the province b. MA. DUMLAO. bank deposits. 7. 166759. Notice of attachment 2. BAGANG. HERRERA. DONNA GRAGASIN. RHONDEE E. QUIAMBAO. MANANQUIL. DIANE CAMILLA R. MIJARES. EDELISE D. Jurisdiction must first be acquired through valid service of summons first before a preliminary attachment may be enforced. CONTRIBUTORS: VICENTE JAN O. By motion and notice of hearing by the court in which the action is pending and may even be issued by the CA or the SC (Sec.. the writ may not be enforced and may not validly implemented unless preceded by a service of summons. UNICA AMOR R. however. application and affidavits for the attachment and the bond upon the adverse party. G. JUSTICE OSCAR C. BORJA. growing crops or interest therein a. MARIANO. This Rule is not necessary for the validity of the ISSUANCE of a writ of attachment (Davao Light v. all that is required is to reserve the writ. SUBJECT HEAD: ANGELI P. Rule 57). (Torres v. b.

CIVIL PROCEDURE
c. Heir, devisee, or legatee; Property in custodialegis – writ to the court or agency and notice to custodian. A: 1. It must be based on the following grounds: a. Writ was improperly or irregularly issued or enforced (Sec. 13, Rule 57) b. Insufficiency of bond (Sec. 13, Rule 57) c. Excessive attachment (Sec. 13, Rule 57) o Effect: Partial discharge (Regalado, Remedial Law Compendium, Vol. I, p. 683, 2005 ed.) d. No ground for attachment (Sec. 1, Rule 57) e. Property is exempt from execution (Secs 2 and 5, Rule 57) f. Judgment is rendered against the attaching creditor (Sec. 19, Rule 57) g. Dissolution of attachment 1 month next preceding the commencement of insolvency proceedings (Insolvency Law) (Feria, Civil Procedure Annotated, Vol. II, p. 305, 2001 ed.) Filing of a cash deposit or counterbond (Sec. 12, Rule 57) Notice and Hearing (Sec. 12, Rule 57)

6.

Q: What remedies are available if property is being claimed by a third person? A: 1. 2. 3. File a Third Party Complaint or terceria (Sec. 14, Rule 57) File a Motion for Intervention File an independent action to recover property

f. DISCHARGE OF ATTACHMENT OF ATTACHMENT AND COUNTERBOND Q: How is attachment discharged? A: 1. If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment.
Note: This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movant makes a cash deposit or files a counter- bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment exclusive of costs (Sec. 12, Rule 57).

2. 3.

Q: May an ex parte discharge of attachment be allowed? A: No. A discharge of attachment must be made only after hearing. Q: What is a counterbond? A: Counterbonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment (Security Pacific Assurance Corporation v. Tria- Infante, 468 SSCRA 526). Q: After Defendant AAA’s properties were attached, AAA filed a sufficient counterbond and the trial court discharged the attachment. For having suffered substantial prejudice due to the unwarranted attachment, the trial court rendered a judgment ordering plaintiff to pay damages since the latter was not entitled to the attachment. AAA moved to charge plaintiff’s attachment bond and such was objected to by the plaintiff and his sureties on the ground that the counter-bond lifted plaintiff’s attachment bond from all liability. Rule on AAA’s motion. A: AAA’s motion should be granted since the filing of a counterbond does not constitute a waiver of

2.

Attachment may likewise be discharged without the need for filing of a counterbond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion he proves that: a. The attachment was improperly or irregularly issued or enforced (Sec. 13, Rule 57); b. That the bond of the attaching creditor is insufficient or that the attachment is excessive and must be discharged as to the excess (Sec. 13, Rule 57); c. That the property is exempt from execution, and as such is also exempt from preliminary attachment (Sec. 2, Rule 57).

Q: What are the grounds for the discharge of a preliminary attachment?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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his right to proceed against the attachment bond. Furthermore, it is a condition in an attachment bond that applicant will pay all the costs and damages which may be adjudged to the adverse party. (DM Wenceslao and Associates, Inc. v Readycon Trading and Construction Corp., G.R. No. 154106, June 29, 2004) g. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED Q: How can the judgment be satisfied out of the attached property? A: (Sec. 15, Rule 57) 1. Payment to judgment creditor of all sales of perishable or other property 2. If any balance remains, selling property as may be necessary to satisfy the judgment 3. Collecting from all persons having possession of credits belonging to the judgment debtor and paying the proceeds to judgment creditor
Note: If it remains unsatisfied, recovery may be had on the counterbond upon demand and notice and hearing to surety (Sec. 17, Rule 57).

4.

Ordinary execution. 4. PRELIMINARY INJUNCTION

a. DEFINITION AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER Q: What is an injunction? A: It is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. (Riano, Civil Procedure: A Restatement for the Bar, p. 564, 2009 ed.) Q: Distinguish a main action for injunction from a preliminary injunction (2006 Bar Question). A:
INJUNCTION AS AN ANCILLARY REMEDY Exist as an incident to a principal action Seeks to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (CortezEstrada v. Heirs of Domingo Samut, 451 SCRA 275, February 14, 2005). INJUNCTION AS A MAIN ACTION Independent action Seeks a judgment embodying a final injunction, to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant (Almeida v. CA, 448 SSCRA 681, January 17, 2005).

Q: What is the order of satisfaction of judgment of attached property? A: Order of satisfaction of judgment of attached property: 1. Perishable or other property sold in pursuance of the order of the court; 2. Property, real or personal, as may be necessary to satisfy the balance; 3. collecting from debtors of the judgment obligor;

Q: What are the distinctions among a preliminary injunction, prohibition and status quo order? A:
Injunction Directed against a party in an action Prohibition Directed against a court, tribunal or person exercising judicial powers Issued on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction Special Civil Action / Main action Status Quo Order Directed against the adverse party and is issued by the court motu propio(Regalado, Remedial Law Compendium, Vol. I, p. 721, 2005 ed.) Cease and Desist Order intended to maintain the last, actual, peaceable and uncontested state of things preceding the controversy without requiring the doing or undoing of an act (Regalado, Remedial Law Compendium, Vol. I, p. 722, 2005 ed.)

Does not involve the jurisdiction of the court

May be the main action (final injunction) or provisional remedy

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE
Q: Distinguish a preliminary injunction from a temporary restraining order. A:
Preliminary Injunction Temporary Restraining Order Specie of preliminary injunction to maintain status quo before the resolution of the writ of preliminary injunction on the ground of irreparable injury
Note: Injury is irreparable if it is not susceptible to mathematical computation (DFA and BSP v. Falcon and BCA Int’l Corp., G.R. No. 176657, September 1, 2010)

b. REQUISITES Q: What are the requisites for the grant of a writ of preliminary injunction? A: 1. 2. Verified application stating the grounds for its issuance Applicant must establish that he has a right to relief, a right in esse or a right to be protected and the act against which the injunction is directed is violative of such right Bond executed in favor of the person enjoined to answer for all damages Service of summons XPNs: a. Summons could not be served personally or by substituted service b. Adverse party is a resident but is temporarily absent from the Philippines c. Adverse party is a non-resident Notice and hearing (Sec. 5, Rule 58) c. KINDS OF INJUNCTION Q: What are the classes of injunction? A:
Preliminary Injunction (Ancillary Remedy) Order granted at any stage of the action or proceeding prior to the judgment or final order, requiring a party or a court, agency, or a person to refrain from or to perform particular act or acts (Sec. 1, Rule 58) GR: Bond is required XPN: Exempted by court (Sec. 4, Rule 58) Final Injunction (Injunction as main action) Issued after final judgment of the case permanently restraining the defendant or making the preliminary injunction permanent (Sec. 9, Rule 58) No bond is required

3. 4.

Effective during the pendency of the action unless earlier dissolved Note: The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasijudicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. (Sec. 5, Rule 58 as amended by A.M. No. 07-7-12-SC)

Duration (non-extendible): (Sec. 5, Rule 58) 1. If issued by RTC/MTC – 20days from notice to person restrained 2. If issued by CA – 60 days from notice 3. If issued by SC – until lifted
Note: Prohibition against the renewal applies only if the same is sought under and by reason of the same ground for which it was originally issued (Regalado, Remedial Law Compendium, Vol. I, p. 725, 2005 ed.) Note: TRO is deemed automatically lifted after the expiration of the effectivity period

5.

Notice and hearing always required (Sec. 5, Rule 58)

Can be issued to compel the performance of an act

GR: Notice and hearing required XPN: To prevent urgent / irreparable injury, TRO may be issued by an Executive Judge or Presiding Judge for 72hours and a summary hearing be subsequently conducted within such period Cannot be issued to compel the performance of an act

Q: What are the kinds of preliminary injunction? A:
Preventive / Prohibitory Injunction Requires a person to refrain from doing an act To preserve status quo Mandatory Injunction Requires the performance of a particular act To restore status quo

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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d. WHEN MAY WRIT BE ISSUED Q: When may a writ for preliminary injunction be issued? A: 1. In petitions for relief from judgment entered through FAME; 2. In petitions for certiorari, prohibition, and mandamus; 3. In actions for annulment of judgments obtained through fraud; 4. In actions for annulment of judgment which are not patent nullities ( want of jurisdiction, lack of due process of law) (BancoEspanol v. Palanca, 37 Phil. 921); 5. To restrain continued breach of valid negative obligation; 6. To enjoin repeated trespass on land; 7. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such; 8. To restrain voting of disputed shares of stocks; 9. To restrain sheriff from selling property on execution not belonging to judgment debtor; 10. To restrain criminal prosecutions as an exception, in the following cases: a. To afford adequate protection to constitutional rights of accused; b. When there is a prejudicial question which is sub judice; c. Prosecution under an invalid law; d. Double jeopardy is clearly apparent; e. Court wthout jurisdiction over the offense; f. Case of persecution rather than prosection; g. Charges manifestly false and motivated by lust for vengeance; h. There is clearly no prima facie case against accused and motion to quash on said ground is denied; and i. Preliminary injunction issued by SC to prevent threatened unlawful arrest of petitioners. Q: In what actions will a preliminary injunction not lie? A: 1. Against Department of Public Works and Highways to stop government infrastructure projects (Secs. 3 & 4, RA8975) XPNs: a. Extreme urgency b. Matter involves a constitutional issue c. Grave injustice and irreparable injury will arise d. Supreme Court may issue the writ of preliminary injunction
Note: Injunctive writs cannot be issued against any person or entity involved in the execution, implementation and operation of government infrastructure projects (P.D. 1818).

2. 3. 4.

5. 6.

7.

8.

9.

Act/s perpetrated outside the inferior courts’ territorial jurisdiction Against judgments of coordinate courts and quasi judicial bodies of equal rank Issuance will effectively dispose of the main case without trial and/or due process (Boncodin v. Nat’l Power Corporation Employees Consolidated Union, G.R. No. 162716, September 27, 2006) Labor disputes In issuance of licenses, concessions as to disposition, exploitation, utilization, exploration and/or development of natural resources (Sec. 1, PD605) Implementation of Comprehensive Agrarian Reform Program, collection of taxes, criminal prosecutions Mandatory foreclosure of a mortgage by a government financial institution (Sec. 2, P.D. 385) XPN: After hearing, it is established that 20% of outstanding arrearages is paid after the filing of the foreclosure proceedings Act/s sought to be enjoined already consummated XPN: Preliminary mandatory injunction may be availed of such that the dispossessor in forcible entry can be compelled to restore possession to the original possessor and an electric company can be compelled to provisionally reconnect the service it had disconnected. (Regalado, Remedial Law Compendium, Vol. I, p. 718, 2005 ed.)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE
10. To transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto (Almeida v. CA and Sy, G.R. No. 159124, January 17, 2005) XPN: a. Forcible entry and unlawful detainer cases – preliminary mandatory injunction may be issued (Sec. 15, Rule 70) 11. Generally, injunction will not be granted to take property out of the possession of one party and place it in another whose title not clearly established; 12. When action for damages would adequately compensate injuries caused (Golding v. Balatbat, 36 Phil.941); 13. To prevent directors from discharging their offices and restoring former directors; 14. To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction.
Note: Only the SC may issue injunction against the government, officials or any person or entity whether public or private acting under the government direction, to restrain, prohibit, or compel acts pursuant to the implementation and completion of infrastructure projects. (Sec 3, RA 8975)

1. 2.

3.

4.

Insufficiency of application for injunction or restraining order Issuance or continuance of injunction or restraining order causes irreparable injury while applicant may be fully compensated for damages by bond Extent of injunction or restraining order is too great Effect: modification Insufficiency or defective bond (Sec. 7, Rule 58).

Note: Filing of verified motion and bond as well as hearing is required

g. DURATION OF TRO Q: What is the duration of a TRO? A: 1. 20 days from notice : if great or irreparable injury would result to the applicant before the matter can be heard on notice. 72 hours from issuance (issued ex parte) : if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.

2.

e. GROUNDS FOR ISSUANCE Q: What are the grounds for the issuance of a preliminary injunction? A: (Sec. 3, Rule 58) 1. Clear legal right of the applicant 2. The commission, continuance or nonperformance of the act or acts complained of will cause injustice to the applicant 3. Person against whom injunction is sought is doing, threatening, attempting, procuring or suffering to do some act or acts in violation of applicant’s rights tending to render the judgment ineffectual. f. GROUNDS FOR OBJECTION, DISOLUTION OF INJUNCTION OR RESTRAINING ORDER Q: What are the grounds for objections or dissolution of injunction or restraining order? A: (Sec. 6, Rule 58)

Note: after conducting a summary hearing within the 72 hours period until the application for Preliminary injunction can be heard, an extension of the 72-hour TRo may be asked. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours. While the efficacy of the TRO is ordinarily nonextendible, and the trial courts have no discretion to extend it considering the mandatory tenor of Rule 58, there is no reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance of the status quo. (Federation of Land Reform Farmers of the Philippines v. CA, 246 SCRA 175 (1995)). Note: a TRO issued by the trial court or CA expires automatically upon the lapse of the 20 day period and 60 day period respectively. There is no need for any judicial declaration of dissolution (Paras v. Roura, 163 SCRA 1 (1988))

Q: What happens to the TRO if before the expiration of the 20-day period, the application for preliminary injunction is denied? A: It will be automatically vacated. (Bacolod City Water District v. Labayan, G.R. No. 157494, December 10, 2004)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Is a second application for preliminary injunction allowed? A: A second application for injunction, which rests in the sound discretion of the court, will ordinarily be denied unless it is based on facts unknown at the time of the first application. (Reyes v. Court of Appeals and Sun Life Insurance Office, Ltd., G.R. No. 87647, May 21, 1990). h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT INFRASTRUCTURE Q: During the Marcos regime, a reclamation contract was signed between the City of Mandaue and MALAYAN. However, that transaction appeared to be unauthorized. After sometime a confirmatory agreement was entered by the parties whereby MALAYAN bound itself to undertake the project at its own expense. After the People power, the plan was resubmitted to the President for approval, the City of Mandaue however started negotiated and contracted with FF Cruz & Co. for the reclamation project. MALAYAN filed a protest with the OP. The Executive Secretaery disapproved the project with MALAYAN, this prompted MALAYAN to file with the RTC a petition for prohibitory and mandatory preliminary injunction. RTC issued a TRO. Upon posting a bond, injunction was issued. Whether or not a writ of preliminary injunction may be issued against the government? A: Under PD 1818 and RA 8735, injunction is not available to stop infrastructure projects of the government (Malayan Integrated Industries vs. CA, GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre and Stevedoring Services, 475 SCRA 426). This includes arrestre and stevedoring services.
Note: Section 1 of PD 1818 provides that:No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

i. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT Q: What is the rule on prior or contemporaneous service of summons in relation to attachment? A: No levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by theservice of summons, together with a copy of the complaint, the application forattachment, the applicant’s affidavit and bond, and the order and writ ofattachment, on the defendant within the Philippines. The requirement of prior or contemporaneous service of summons shall not apply in the following instances: 1. Where the summons could not be served personally or by substituted servicedespite diligent efforts; 2. The defendant is a resident of the Philippines who is temporarily out of the country; 3. The defendant is a non-resident; or 4. The action is one in rem or quasi in rem (Sec. 5). 5. RECEIVERSHIP Q: What is Receivership? A: Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action. It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect. Q: Who is a receiver? A: Person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the discretion of the court. Q: Can a party to the action be appointed as a receiver? A: GR: Cannot be appointed

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE
XPN: Consented to by all parties
Note: A clerk of court cannot be appointed as a receiver (Abrigo v. Kayanan, G.R. No. L-28601, March 28, 1983)

b. REQUISITES Q: What are the requisites in the application for receivership? A:

Q: Which court may appoint a receiver? A: (Sec. 1, Rule 59) 1. Court where action is pending 2. Court of Appeals or Supreme Court or a member thereof
Note: During pendency of appeal, appellate court may allow receiver to be appointed by court of origin

1.

2.

Q: What is the effect of a contract executed by a receiver without court approval? A: Such contract will constitute his personal undertakings and obligations (Pacific Merchandising Corp. v. Consolacion Insurance & Surety Co., G.R. No. L-30204, October 29, 1976)
Note: Receivership cannot be effected on a property in custodialegis (LizarragaHnos. V. Abada, 40phil124). But a receiver can be appointed where a property in custody of an administrator or executor is in danger of imminent loss or injury. (Dolor v. Sindian, G.R. No. L27631, April 30, 1971)

3. 4. 5.

Party applying for receivership has an existing interest in the property in litigation Verified application filed at any stage of the proceedings even after final judgment, prior to the satisfaction of judgment (Sec. 1, Rule 59) Posting of bond (Sec. 2, Rule 59) Grounds stated in Sec. 1, Rule 59 Receiver must be sworn to perform his duties faithfully

c. REQUIREMENTS BEFORE ISSUANCE OF AN ORDER Q: What is the requirement before an order of appointment may be issued? A: The applicant must file a bond executed in favor of the party against whom the application is presented, in an amount fixed by court, to pay damages in case receivership is procured without sufficient cause. (Sec. 2, Rule 59)
Note: The court may require an additional bond for further security. (Sec. 2, Rule 59)

a. CASES WHEN A RECEIVER MAY BE APPOINTED Q: In what cases may a receiver be appointed? A: (Sec. 1, Rule 59) 1. Applicant has an interest in the property or fund subject of the action is in danger of being lost, removed, or materially injured 2. Mortgaged property is in danger of being dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or 3. Stipulation in the contract of mortgage 4. To preserve the property after judgment during the pendency of the appeal or to dispose it according to judgment 5. To aid execution when execution has been returned unsatisfied 6. Judgment debtor refuses to apply his property in satisfaction of the judgment or to carry on the judgment 7. Appointment of receiver is most convenient and feasible means of preserving, administering or disposing of the property in litigation

d. POWERS OF A RECEIVER Q: What are the powers of a receiver? A: (Sec. 6, Rule 59) 1. Power to bring and defend actions in his own name
Note: No action may be filed by or against a receiver without leave of court which appointed him

2. 3. 4.

5. 6. 7. 8.

9.

Take and keep possession of the property in controversy Receive rents Collect debts due to himself as receiver or to the fund, property, estate, person or corporation of which he is a receiver Compound for and compromise debts collected Make Transfers Pay outstanding debts Divide money and other property that shall remain among the persons legally entitled to receive the same Invest funds in his hands only by order of the court upon written consent of all the parties to action;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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5. Rule 59) Insufficient or defective applicant’s bond (Sec. e. MARA KHRISNA CHARMINA F. HERRERA.) Q: Distinguish attachment. PLATON III. p. Replevin may be a main action or a provisional remedy. Bond posted by the applicant (Sec. 5. MEMBERS: AKEMI B. STAMARIA. JUANENGO. Jur. ASST. CONTRIBUTORS: VICENTE JAN O. QUIAMBAO. BORJA. MANANQUIL. YRIZ TAMIE A. GRETCHEN C. SHERY PAIGE A. 4. Rule 59) Insufficient or defective receiver’s bond (Sec. Rule 59) Q: How is receivership terminated? A: (Sec. 5. 5. PINEDA. KRISTINE P. Receiver asserts ownership over the property (Martinez v. 8. After due notice and hearing to all interested party 6. TERMIINATION OF RECEIVERSHIP Q: What are the grounds for the discharge of receiver? A: 1. ROSALES . The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession. Vol. I. Necessity for receiver no longer exists b. 2. Posting of counterbond by adverse party (Sec. SUBJECT HEADS: DARRELL L.. SUBJECT HEAD: ANGELI P. A: replevin from preliminary Replevin Recovery of possession of personal property is the principal relief and damages are incidental This is available before defendant files an answer 2. 749. August 14. KATRINA NADINE G. JUDGE CESAR D. EDELISE D. MENDOZA. UNICA AMOR R. personal or incorporeal Recover property being concealed. JUSTICE OSCAR C. RONN ROBBY D. Remedial Law Compendium. Rule 59) Bond posted by receiver appointed (Sec. MIJARES. Rule 59) Receiver no longer necessary (Sec.R. AIDA. Graño. MA. SY. 3. Rule 59) in specie. RHONDEE E. removed or disposed Cannot be availed of when property is in custodialegis(under attachment) or seized under search warrant Property of GOCCs cannot be reached Preliminary Attachment Available even if recovery of personal property is only an incidental relief Available from commencement but before entry of judgment May be resorted to even if personal property is in the custody of a third person Extends to all kinds of property whether real. TWO KINDS OF BONDS Q: What is the 2-bond requirement in receivership? A: 1. 1926) 3. Sheriff does not take possession of the property attached except contructively placing it under custodia legis. LANTIN. Bond amount is fixed by court and does not exceed the claim or value of the property to be attached 128 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 3. SR. Rule 59) 1. the recovery of damages being only incidental (Am. DONNA GRAGASIN. 6). 2. Rule 59) f. MARIANO. REPLEVIN Q: What is replevin? A: Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession Available only where defendant is in actual or constructive possession of personal property involved Extends only to personal property capable of manual delivery Used to recover personal property even if not being concealed. By court motupropio or on motion by either party 2. MICHAEL ANGELO V. L-25437. 3. BAGANG. JR. receiver may be re-appointed (Sec. AQUINO. DUMLAO. DIANE CAMILLA R. FLORES. G. Rule 59) Note: Where counterbond is insufficient or defective. 2005 ed. 8. Note: A writ of replevin may be served anywhere in the Philippines (Regalado. Other acts which the court may authorize Note: Funds in the hands of a receiver may be invested only by court order and written consent of all parties to an action. TERESE RAY-ANNE O. Based on the following grounds: a. Bond to be posted is double the value of the property sought to be recovered Properties of GOCCs may be reached if utilized in its proprietary function. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. ALBAÑA. No. Appointment of receiver was made without sufficient cause (Sec. JUSTICE JAIME M. 4. removed or disposed Can be resorted to even if property is in custodialegis Sheriff takes possession of the property subject of the replevin and hold the same for a period of 5 days after which said property will be delivered to the party who obtained the writ. LIM.UST GOLDEN NOTES 2011 10..

or seized by writ of execution. 1983. alleging cause of detention according to applicant’s knowledge. 1999). alleging: 1. SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT. MARTINEZ 129 . MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. private respondent executed a chattel mortgage over certain machineries which were bolted to the ground. 1983).58469. Rule 60) 2. 2). SABUGO & JOHN HENRY C. Upon default Makati Leasing move for extrajudicial foreclosure of the mortgage properties and filed an action for replevin which was granted by the court. application. Wearever discounted and assigned several receivables under a Receivable Purchase Agreement. b. particular description of such. 4. providing for the interim rules and guidelines relative to the implementation of BP 129. Q: When is it required? A: It is required that the redelivery bond be filed within the period of 5 days after the taking of the property. MASACAYAN & THEENA C. 2. Q: What is redelivery bond? A: Bond. Prevent defendant from destroying. if so seized. Filing of Affidavit by any party before an answer is filed Posting of bond double the value of the property 2. in custodialegis. ACADEMICS CHAIR: LESTER JAY ALAN E. That the applicant is the owner of property claimed. REQUISITES Q: What are the requisites in applying for replevin? A: 1. WHEN PROPERTY IS CLAIMED BY THIRD PARTY Q: What are the duties of the sheriff? A: 1. and 4. GR No L. 3. damaging or disposing of the property Q: Can a writ of replevin be issued anywhere in the Philippines? A: Under the Resolution of the Supreme Court enbanc dated January 11. 2. Can the machineries bolted to the ground be a subject of replevin? A: Machineries bolted to the ground are real properties that may not be the subject to replevin (Makati Leasing and Finance Corporation v. that it is exempt or should be released from custody Actual market value of the property c. d. Protect plaintiff’s right of possession to property 2. Q: To be able to secure financial accommodations from Makati Leasing. October 7. REDELIVERY BOND Q: What are the contents of the affidavit? A: Affidavit. entitlement to possession Property is wrongfully detained. which must be double the value of property. 177 SCRA 141). describing it or entitled to its possession. Valdez. a writ of replevin like the one issued in the present case may be served anywhere in the Philippines (Fernandez v. 3. International Corporate Bank now Union Bank of the Philippines. to answer for the return of property if adjudged and pay for such sum as he may recover from the applicant (Sec. Applicant is the owner of the property claimed. That the property is wrongfully detained by the adverse party. Wearever Textile Mills Inc. GR No 131283.CIVIL PROCEDURE Note: These remedies cannot be availed of in the same case. a. AFFIDAVIT AND BOND. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. preliminary attachment. Serve a copy of the court order. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. affidavit and bond upon the adverse party Take the property and retain it in his custody Q: What are the contents of the affidavit? A: (Sec. To secure the collection of the receivables assigned. alleging cause of its detention. The actual market value of the property. 2. WHEN MAY WRIT BE ISSUED Q: When may a writ of replevin be issued? A: This may only be obtained when the defendant in the action has not yet filed his answer to the complaint where it is necessary to: 1. The rule is mandatory (Yang vs. 1. information and belief Property has not been taken for tax assessment or fine. that it is exempt or should be released. May 16. That the property has not been distrained or taken for tax assessment or fine or under writ of execution/attachment or placed under custodialegis or if seized.

JUANENGO. rules that are applicable only to specific special civil actions (sec. NATURE OF SPECIAL CIVIL ACTIONS Q: What are Special Civil Actions? A: Since a civil action in general is one by which a party sues another for the enforcement or protection of a right. 3 [a]. QUIAMBAO.. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS Q: Distinguish ordinary civil action from special civil action. make a public demand for the delivery of the property If property is not delivered. some cannot be commenced therein Q: When may a property subject of replevin be returned? A: 1. RONN ROBBY D. 5. CONTRIBUTORS: VICENTE JAN O. Q: Is the Rule on Prior or Contemporaneous Service of Summons observed in Replevin? A: Yes.UST GOLDEN NOTES 2011 3.. MIJARES. there are certain May be commenced by the filing of a complaint or petition Q: What are the special civil actions under the Rules of Court? A: 1. JUSTICE JAIME M. JUDGE CESAR D. LANTIN. Third party shall file and serve affidavit upon sheriff and applicant stating his entitlement to possession Sheriff shall return the property to third person unless applicant files a bond (same amount as the value of the property) approved by court to indemnify the third person Claim for damages upon said bond must be filed within 120days from date of filing of the bond Venue is determined either by the residences of the parties where the action is personal or by the location of the property where the action is real May be filed in Municipal Trial Court or the Regional Trial Court depending upon the jurisdictional amount or nature of the action May be commenced only by the filing of complaint 2. MA. DONNA GRAGASIN. SPECIAL CIVIL ACTIONS 1. 2. YRIZ TAMIE A. Declaratory relief – action is brought before there is any breach 2. 5. LIM. MICHAEL ANGELO V. Although the writ of replevin may be issued ex-parte. STAMARIA. BORJA. HERRERA. 3. AIDA. SUBJECT HEAD: ANGELI P. If property is concealed. FLORES. 130 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. DIANE CAMILLA R. TERESE RAY-ANNE O. 4. SHERY PAIGE A. MEMBERS: AKEMI B. EDELISE D. Note: although both types of actions are governed by the rules for ordinary civil actions. DUMLAO. Interpleader (Rule 62) Declaratory relief and similar remedies (Rule 63) Review of judgments and final orders of the COMELEC and the Commission on Audit (Rule 64) Certiorari. it cannot be implemented or enforced if not preceded or accompanied by a service of summons. SUBJECT HEADS: DARRELL L. ROSALES . Rule 1. MENDOZA. 3. KATRINA NADINE G. or the prevention or redress of a wrong (Sec. S. BAGANG. ASST. 2. MANANQUIL. 3. prohibition and mandamus (Rule 65) Quo warranto(Rule 66) Expropriation (Rule 67) Foreclosure of real estate mortgage(Rule 68) 4. Interpleader – plaintiff files a complaint even if he has not sustained actual transgression of his rights Not necessarily true as in quo warranto. UNICA AMOR R. 6. MARIANO. GRETCHEN C. MARA KHRISNA CHARMINA F. Rules of Court). RHONDEE E. 3) The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special. KRISTINE P. SR. a special civil action is generally brought or filed for the same purpose. the venue is where the Supreme Court or Court of Appeals if the petition is commenced in any of these courts without taking into consideration the residences of the parties Some actions may be filed only in the Municipal Trial Court. ALBAÑA. 7. sheriff must cause the building or enclosure to be broken and take property and keep such in his custody Deliver the property to the party entitled to such upon receiving his fees. JUSTICE OSCAR C. A: Ordinary Civil Action Must be based on a cause of action – act or omission in violation of the rights of another Special Civil Action Cause of action not necessarily needed Examples: 1. PLATON III. SY. 2. Filing of a redelivery bond double the value of the property Plaintiff’s bond is insufficient or defective and is not replaced with a proper bond Property is not delivered to the plaintiff for any reason Q: What are the remedies of a third person whose property is taken by virtue of a replevin? A: 1. AQUINO. JR. PINEDA.

JURISDICTION AND VENUE Q: Who has jurisdiction over special civil actions and where should it be filed? A: Venue Interpleader MTC – where the value of Where the plaintiff or the claim or the personal any of the principal property does not exceed plaintiff resides or where P300. CA or with the SB. No. G. Interpleader. review of judgments and final orders or resolutions of the COMELEC / COA c. No. Expropriation Land: where the RTC (incapable of property is located pecuniary estimation) (Barangay San Roque v. Prohibition. place where the plaintiff 138896. Contempt 3. Rule 65) Quo Warranto With the SC.R. a corporation. the petition shall be filed with and be cognizable only by the Court of Appeals.CIVIL PROCEDURE 8. expropriation c. Partition (Rule 69) Forcible entry and unlawful detainer (Rule 70) 10. Sandiganbayan COMELEC in aid of its appellate jurisdiction (A. Personal property: the Heirs of Pastor. 110249. June 20. in aid of its appellate jurisdiction (Sec.M.R. Q: What special civil actions are initiated by complaints and initiated by petitions? A: 1. Contempt (Rule 71) Q: What are the three special civil actions which are within the jurisdiction of inferior courts? A: 1. 4. partition e. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 9. MASACAYAN & THEENA C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. declaratory relief b. or in the SC (Sec. 7.000 in Metro Manila. SABUGO & JOHN HENRY C. a board. in the CA. interpleader b. it may be brought in a RTC in the City of Manila. except as otherwise indicated in the particular rule for said special civil action. 3. SC. forcible entry and unlawful detainer by petition a. CA. RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC Note: The venue of special civil actions is governed by the general rules on venue. SC. Socrates. When the appellate jurisdiction Solicitor General commences the action. Certiorari d. SB in aid of its resides. 2000) or defendant resides Certiorari. MARTINEZ 131 .000 or P50. CA. 1997) Where the petitioner or the respondent resides 2. Mandamus f. whether or not the same is in aid of the court’s appellate jurisdiction. G. CA. No. Aug. 077-12-SC) If the petition involves an act or an omission of a quasi-judicial agency. 14. Mandamus RTC: if it is directed against a municipal trial court. 2.000 or P400. RTC. Prohibition e. Quo Warranto g. Jurisdiction In election cases involving an act or omission of MTC /RTC. an officer or a person. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 66) ACADEMICS CHAIR: LESTER JAY ALAN E. provided that the amount is within the jurisdiction of such inferior court Ejectment suits Contempt Declaratory Relief RTC Note: It would be error to file the petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief (Tano v. foreclosure of real estate mortgage d. by complaint a.000 in Metro Manila or where the the defendant or any of value of the real property the principal defendants resides does not exceed P20. unless otherwise provided by law or the Rules. it shall be filed exclusively with the COMELEC. or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents RTC.

DONNA GRAGASIN. JUANENGO. The parties to be interpleaded must make effective claims. or d. JUSTICE OSCAR C. TERESE RAY-ANNE O. DIANE CAMILLA R. 6. Note: Upon filing of complaint. He may be adversely affected by the disposition or distribution of property in the judgment. the charge may be filed with such court. The success of either of the parties.. KRISTINE P. MICHAEL ANGELO V. LANTIN. Where such contempt has been committed against a lower court. Where the property is covered by Rule on located Summary Procedure Unlawful Detainer Metropolitan Trial Courts. MA. but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place (Sec. Payment of docket and other lawful fees. MENDOZA. 1. 5. EDELISE D. A: between interpleader and INTERPLEADER Special civil action. Commenced by a motion to intervention filed in a pending case attaching thereto the pleading. Real property – where the property RTC is located (incapable of pecuniary 2. 138896. STAMARIA. part thereof is located Heirs of Pastor. Personal property estimation) – the place where the plaintiff or defendant resides (Sec. Rule 69) Foreclure of REM RTC (incapable of pecuniary estimation) Where the land or any (Barangay San Roque v. CA.. UNICA AMOR R. BAGANG. to compel the claimants to interplead and to litigate their conflicting claims among themselves. G. (Sec. AQUINO. SR. a. RHONDEE E. LIM. RTC. QUIAMBAO. 2. FLORES. MARIANO. MEMBERS: AKEMI B. If a complaintinintervention is filed. SUBJECT HEADS: DARRELL L. CONTRIBUTORS: VICENTE JAN O. Plaintiff claims no interest in the subject matter or his claim is not disputed Two or more claimants asserting conflicting claims The subject matter must be one and the same Person in possession or obliged files a complaint. the court shall issue an order requiring conflicting claimants to interplead. ASST.inintervention. SHERY PAIGE A. 3. PINEDA. INTERVENTION Not an original action but mere ancillary and depends upon the existence of a precious pending action. KATRINA NADINE G. A: It is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest. The defendants are brought into the action only because they are impleaded as such in the complaint. Filed by a person who has no interest in the subject matter of the action or if he has an interest. SC Q: Distinguish intervention. SY. YRIZ TAMIE A. MARA KHRISNA CHARMINA F. 13. the defendants are already parties to an existing suit not because of the intervention but because of the original suit. ALBAÑA. Partition 1. Rule 62). MANANQUIL. June 20.UST GOLDEN NOTES 2011 Note: Subject to the principle of Hierarchy of Courts Contempt Where the charge for indirect contempt has been committed against RTC or a court of equivalent or higher rank. RONN ROBBY D. JUSTICE JAIME M. HERRERA. or c. Filed by a person who has a legal interest in any of the following: a. Q: What is an interpleader? 5. GRETCHEN C. MIJARES. b. BORJA.R. The subject matter of the litigation. PLATON III. INTERPLEADER 4. Rule 62) 132 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 4. 2000) MTC. (Sec. 2. Rule 70) Forcible Entry Metropolitan Trial Courts. The success of both of the parties. or against an officer appointed by it. SUBJECT HEAD: ANGELI P. JR. independent and original Commenced by the filing of a complaint. AIDA. the same is not disputed by the claimants. REQUISITES FOR INTERPLEADER Q: What are the requisites in order that the remedy of interpleader may be availed of? A: 1. No. JUDGE CESAR D. Where the property is covered by Rule on located Summary Procedure. DUMLAO. the charge may be filed with the RTC of the place in which the lower court is sitting. ROSALES .

SABUGO & JOHN HENRY C.) Q: Which court interpleader? has jurisdiction over an 2. August 28. 5. PHHC. Rule 62). WHO MAY FILE THE ACTION Q: Who may file an action for declaratory relief? A: Any person: ACADEMICS CHAIR: LESTER JAY ALAN E. Rule 62) 1. executive order or regulation.R. 3. 1969) 5. (Sec. or whose rights are affected by a statute. Rule 62) Q: May a motion to dismiss be filed? A: 1. (Feria. 4. L-25138. Rule 62) Note: Claimants shall have 15days to file an answer and such answer must be served upon the plaintiff and co-defendants. 5. A: A special civil action brought by a person interested under a deed. Grounds specified under Rule 16 of the Rules of Court Q: What is the effect of filing a motion to dismiss? A: Period to file an answer is tolled and if the motion is denied. A: Yes. Rule 62) 1. and for a declaration of his rights or duties thereunder. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. ordinance or regulation Declaration of rights and duties thereunder 2. No. 4. G. ordinance or any other governmental regulation. the answer may be filed within the remaining period which shall not be less than 5days from notice of denial. the court may declare such claimant in default and render a judgment barring him from any claim in respect to the subject matter. 4. Vol. MARTINEZ 133 . II. (Sec. (Sec. Rule 62) Q: What are the grounds for filing a motion to dismiss? A: (Sec. asking the court to determine any question of construction or validity arising. Rule 62) Q: What are the other allowed pleadings in an interpleader? A: (Sec. 3. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Counterclaim Q: Distinguish declaratory judgment from ordinary judgment. 5. Civil Procedure Annotated. DECLARATORY RELIEF AND SIMILAR REMEDIES Q: What is a declaratory relief? A: Inferior courts have jurisdiction so long as the amount involved is within their jurisdiction Q: Should there be service of summons in interpleader? A: Summons and copies of the complaint and order shall be served upon conflicting claimants. before breach or violation thereof. Such issue should be resolved in an ordinary civil action for specific performance or other relief (Beltran v. 425. (Sec. It may be filed by any of the claimant within the time for filing an answer. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. will. Impropriety of the interpleader action 2. A: DECLARATORY JUDGMENT Declaratory judgment stands by itself and no executory process follows Intended to determine any question of construction or validity prior to breach or violation ORDINARY JUDGMENT Ordinary judgment involves executor or coercive relief Intended to remedy or compensate injuries already suffered a. Q: What is the purpose of an action for declaratory relief? Q: What is the effect of failure of a claimant to file an Answer? A: Upon motion. p.CIVIL PROCEDURE b. WHEN TO FILE Q: When must an action for interpleader be filed? A: Within a reasonable time after a dispute has arisen without waiting to be sued by claimants and before such is barred from laches. contract or other written instrument. MASACAYAN & THEENA C. 2001 ed. (Sec. Cross-claim Third-party complaints Responsive pleadings Q: May an interpleader be availed of the resolve breach of undertaking? A: No. To determine any question of construction or validity or constitutionality of an instrument. 4.

(Sec. regulation or ordinance takes place. (Riano. executive order or regulation. 2. a writ of execution may be executed against the defeated party. REQUISITES OF ACTION FOR DECLARATORY RELIEF Q: What are the requisites of an action for declaratory relief? A: 1. p. Vol. 6. regulation or ordinance Note: The enumeration of the subject matter is exclusive. 4. Validity of statute. A: 1. YRIZ TAMIE A. BAGANG. executive order. KRISTINE P. MEMBERS: AKEMI B. Remedial Law Compendium. the court is given the discretion to act or not to act on the petition. DIANE CAMILLA R.R. No.) Q: Can the court exercise discretion in application for declaratory relief? A: 1.. 769. hence. MIJARES. September 28. JUSTICE OSCAR C. in an action for reformation of an instrument. 5. October 5. 2. to quiet or to consolidate ownership. LANTIN. Declaration or construction is not necessary and proper under the circumstances Note: Discretion to refuse does not extend to actions for reformation of an instrument quiet title or remove clouds or to consolidated ownership in a pacto de retro sale. 2005 ed. I. statute. RHONDEE E. Rule 63). p. No. 1962) The controversy is between persons whose interests are adverse. Filing of Petition before there is a breach or violation Subject matter is a deed.UST GOLDEN NOTES 2011 1. STAMARIA.R. statute. FLORES. an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. 1951) Adequate relief is not available through other means or other forms of action or proceedings (Ollada v. L-11357. Q: To whom shall notices be given? A: 1. SY. KATRINA NADINE G. G. written instrument. L-3062. will. CONVERSION TO ORDINARY ACTION Q: When may an action for declaratory relief be converted into an ordinary action? A: After filing of petition for declaratory relief but before the final termination of the case or rendition of judgment. i. regulation or governmental regulation b. litigation is imminent and inevitable (Tolentino v. contract. a breach or violation of an instrument. JUANENGO. 5. ALBAÑA. ordinance or any other governmental regulation A: Court may motupropio or upon motion refuse based on the following grounds: 1. Solicitor general if subject matter involves: a. Rule 63) Q: Distinguish Ordinary Civil Action from Special Civil Action for Declaratory Relief. JUSTICE JAIME M. Board of Accountancy. DONNA GRAGASIN. JR. ASST. SUBJECT HEADS: DARRELL L. There is justiciable controversy Issue is ripe for judicial determination (Republic v.) b. MENDOZA. MARA KHRISNA CHARMINA F. 613. Central Bank. c. A decision will not terminate the uncertainty or controversy which gave rise to the action 2. DUMLAO. G. Ordinary civil action – plaintiff alleges that his right has been violated by the defendant. the court cannot refuse to render a judgment (Sec.. 2. CONTRIBUTORS: VICENTE JAN O. Orbecido III. UNICA AMOR R. On the other hand. PINEDA. SR. 2009 ed. MANANQUIL. Civil Procedure: A Restatement for the Bar. executive order. QUIAMBAO. No. SUBJECT HEAD: ANGELI P. MA. SHERY PAIGE A. LIM. 2005). 2. will. MARIANO. May 31. (Regalado. HERRERA. TERESE RAY-ANNE O. G. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION Q: When may a court refuse to make a judicial declaration? 134 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. contract or other written instrument Whose rights are affected by a statute.R.e. It may therefore choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. judgment rendered is coercive in character. JUDGE CESAR D. A refusal of the court to declare rights or construe an instrument is actually the functional equivalent of the dismissal of the petition. GRETCHEN C. RONN ROBBY D. BORJA. 6. Constitutionality of local government ordinance Prosecutor or attorney of the local government unit if subject matter involves validity of local government unit d. MICHAEL ANGELO V. 3. EDELISE D. PLATON III. Thus. Interested under a deed. ROSALES . AIDA. AQUINO. the court does not have the discretion to refuse to act with respect to actions described as similar remedies. 154380. executive order. In declaratory relief.

No. Q: Is a third-party complaint proper in an action for declaratory relief? A: No. Note: Reformation of the instrument cannot be brought to reform any of the following: 1. and an instrument was executed by the parties in accordance with the contract. 9. Where the contract or statute on which action is based has been breached. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. To obtain judicial declaration of citizenship. Where the administrative remedies have not yet been exhausted. The action is brought so the true intention of the parties may be expressed in the instrument (Art. The contract is to be reformed because despite the meeting of minds of the parties as to the object and cause of the contract. The subject of the action is a court decision. Those determinative of the issues rather than a construction of definite status. 1666. Reformation of an instrument Quiet title to real property or to remove clouds Consolidation of ownership (Art. SABUGO & JOHN HENRY C. 21036. inequitable conduct. subrogation or other reliefs and a declaratory relief is confined merely to the interpretation of the terms of a contract. 2. rights and relations. 3. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES Q: What are the similar reliefs referred to under Rule 63? A: 1. 1977). G. CC). It presupposes that there is nothing wrong with the contract itself because there is a meeting of minds between the parties. (2) CONSOLIDATION OF OWNERSHIP Q: What is the purpose of an action brought to consolidate ownership? A: The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. Q: When may an instrument be reformed? A: The instrument may be reformed if it does not express the true intention of the parties because of lack of skill of the person drafting the instrument (Art. To establish illegitimate filiation and determine hereditary rights. 4. In a petition to seek relief from a moot and academic question. the court merely makes a declaration. 3. If the parties agree upon the mortgage or pledge of property. reformation of the instrument is proper (Art. 2. e. Because in a third-party complaint. but the instrument states that the property is sold absolutely or with a right of repurchase. 2. 1359. Terms of assailed ordinances are not ambiguous or of doubtful meaning. and 11. CC). Q: What are the instances wherein a declaratory relief is unavailable? A: 1. CC). such person seeks to obtain contribution. June 30. Cloribel. Wills. inequitable conduct or accident. 1363. 10. CC).R. Actions to resolve political questions. The lapse of the redemption period without the seller a retro exercising his right of redemption. or accident? A: Where the consent of a party to a contract has been procured by fraud. MASACAYAN & THEENA C.CIVIL PROCEDURE 2. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. (1) REFORMATION OF AN INSTRUMENT Q: What is meant by reformation of instrument? ACADEMICS CHAIR: LESTER JAY ALAN E. When the petitioner is not the real party in interest. CC). Civil Code) A: It is not an action brought to reform a contract but to reform the instrument evidencing the contract. indemnity. 1359. 1607. no execution may be issued. 8. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 6. (Commission of Customs v. MARTINEZ 135 . 1365. 7. the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake. or 3. 5. what is defective is the contract itself because of vitiation of consent. Special civil action of declaratory relief – an impending violation is sufficient to file a declaratory relief. When the agreement is void (Art. The remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract (Art. Simple donation inter vivos wherein no condition is imposed. inequitable conduct or accident. When the petition is based on the happening of a contingent event. Q: What is the remedy if the consent of a party to a contract has been procured by fraud.

Q: Is it required that the plaintiff be in the possession of the property before an action is brought? Q: What is the period for filing certiorari as referred to in Rule 64? A: The petition for certiorari referred to in Rule 64 shall be filed within 30 days from notice of the judgment. the period for the filing of the petition for certiorari assailing the judgment of the COMELEC and COA is shorter than that provided under Rule 65 136 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. This action is then brought to remove a cloud on title to real property or any interest therein. JUSTICE OSCAR C. Conventional redemption (pacto de retro) sale is one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale.. YRIZ TAMIE A. Art. 1601). final order or resolution of the COMELEC and the COA sought to be reviewed (Sec. Rule 64 in case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action. Note: The concept of consolidation of ownership under Art. IX-A of the Constitution reads.A. COMELEC. the redemption period shall be four (4) years from the date of the contract (Art. “unless otherwise provided by the Constitution or by law. Civil Code. 1621). 327 SCRA 570). and may be prejudicial to said title to real property. REVIEW OF JUDGMENT AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA Q: What is the constitutional basis for the application of Rule 65 under Rule 64? A: Sec. DIANE CAMILLA R. CONTRIBUTORS: VICENTE JAN O. the SC promulgated Rule 64. 176 SCRA 84). ROSALES . MEMBERS: AKEMI B. LANTIN. JUSTICE JAIME M. EDELISE D. Dario vs. MA. has its origin in the substantive provisions of the law on sales.Said mode of review is based on Article IX-A of the 1987 Constitution providing that the proper mode of review is certiorari under Rule 65 to be filed before the Supreme Court. KRISTINE P. 3.. Civil Code). For instance.UST GOLDEN NOTES 2011 consolidates ownership or title upon the person of the vendee by operation of law. STAMARIA. Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. MENDOZA. 7. ineffective. 88 SCRA 251. SR. RHONDEE E. MICHAEL ANGELO V. (3) QUIETING OF TITLE TO REAL PROPERTY Q: What is an action for quieting title to real property? A: This action is brought to remove a cloud on title to real property or any interest therein. JUANENGO. Civil Code). 476. Art. Note: While Rule 64 makes reference to the certiorari under Rule 65. AQUINO. 1606). TERESE RAY-ANNE O. HERRERA. 7902 the Court of Appeals has jurisdiction over all adjudications of the Civil Service Commission. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid. The period of redemption may be fixed by the parties in which case the period cannot exceed ten (10) years from the date of the contract. except otherwise provided. ALBAÑA. Q: What is the mode of review for judgments and final orders of the COMELEC and COA? A: The petition may be brought by the aggrieved party to the Supreme Court on Certiorari under Rule 65. UNICA AMOR R. To implement the above constitutional provision. In the absence of any agreement. Note: Rule 65 applies to the mode of review under Rule 64. Note: The order to comment under Sec. AIDA. GRETCHEN C. SHERY PAIGE A. order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. Under the law. a co-owner of a property may exercise the right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (Art. PLATON III. JR. MARA KHRISNA CHARMINA F. SY. QUIAMBAO. BAGANG. 1607. FLORES. A: The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. ASST. SUBJECT HEADS: DARRELL L. MIJARES. Leis. LIM. DUMLAO. Rule 64). JUDGE CESAR D. MANANQUIL. 1620). 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order (Cruz vs. When the redemption is not made within the period agreed upon. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. after the vendor has been duly heard. BORJA. The owners of adjoining lands shall have the right of redemption when a piece of rural land with a size of one hectare or less is alienated (Art. DONNA GRAGASIN. any decision. 6. KATRINA NADINE G. Art. 6. Mison. PINEDA. RONN ROBBY D. in case the subject matter of the sale is a real property. 1607 provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order. a contract of sale may be extinguished either by legal redemption (Art. SUBJECT HEAD: ANGELI P.Under R. MARIANO. 1619) or conventional redemption (Art.” The provision was interpreted by the Supreme Court to refer to certiorari under Rule 65 and not appeal by certiorari under Rule 45 (Aratuc vs. voidable or unenforceable. 477.

APPLICATION OF RULE 65 UNDER RULE 64 Q: Distinguish Rule 64 from Rule 65. aggrieved party may file the petition within the remaining period. The aggrieved party is named as the petitioner and shall join as respondent the commission concerned and all the persons interested in sustaining the judgment.CIVIL PROCEDURE Q: When may the court issue an order to comment? A: If the SC finds the petition sufficient. MARTINEZ 137 . 5. final order or resolution subject thereof. A: Rule 64 Directed only to the judgments. SABUGO & JOHN HENRY C. 5. CTA. DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS. Rule 64). set forth the grounds and brief arguments relied upon for review. persons and officers. the The appellant and the appellee are the original parties to the action. RTC or other courts Filed within 15 days from notice of judgment. final order or resolution. 2. Certification against non forum shopping 8. Rule 64) Q: What are basic requirements for the petition? A: The following basic requirements must be complied with: 1. aggrieved party will have another 60 days within which to file the petition counted from the notice of denial. A: Rule 64 for COMELEC and COA Petition is based on questions of law It is a mode of appeal but the petition used is Rule 65 Involves review of judgments. 6. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. persons and officer Petition is based on questions of law It is a mode of appeal Involves the review of the judgment final orders or resolutions of the CA. final orders or resolutions of COMELEC and COA from other tribunals. Petition shall state the specific material dates showing that it was filed within the period fixed by the Rules. 3. final order or resolution sought to be reviewed Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just The COMELEC and COA shall be public respondents who are impleaded in the action The filing of MNT or MR. final orders or resolutions of the COMELEC and COA. 6. The petition shall state the facts with certainty. Rule 64) 7. final orders or resolutions of other tribunals. if allowed under the procedural rules of the Commission. final orders or resolutions of COMELEC and COA Filed within 30 days from notice of judgment. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Sandiganbayan. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. (Sec. MASACAYAN & THEENA C. Must be filed within 30 days from notice of judgment or resolution If MR is denied. and of the timely payment of docket and other lawful fees (Sec. respondents will be ordered to file a verified comment within 10days from notice of such order. Petition shall pray for a judgment annulling or modifying the questioned judgment. the Rule 65 Directed to any tribunal. and the lower court or quasi-judicial agency is not impleaded Motion for reconsideration is not required The court is in the exercise of its appellate jurisdiction and power of review ACADEMICS CHAIR: LESTER JAY ALAN E. 4. b. The petition shall be accompanied by proof of service of a copy thereof on the commission involved and on the adverse party. final order or resolution. 5. PERSONS AND OFFICERS Q: Distinguish the mode of review of judgment. present clearly the issues involved. final order or resolution appealed from Stays the judgment or order appealed from a. Note: The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition (Sec. Must be filed within 60 days from notice of judgment or resolution If MR is denied. together with certified true copies of documents relevant and pertinent to the petition. The petition shall be verified and filed in 18 copies. board or officers exercising judicial or quasi-judicial functions. shall interrupt period fixed The court is in the exercise of its appellate jurisdiction and power of review Review of judgment. but which shall not be less than 5 days. Accompanied by clearly legible duplicate original or certified true copy of the judgment.

ASST. STAMARIA. Verified petition filed in 18copies joining as respondents the Commission concerned and person/s interested in sustaining the judgment. Rule 64). board or corporation. SUBJECT HEADS: DARRELL L. 2. Petition is not sufficient in form and substance (Sec. MA. Statement of facts. YRIZ TAMIE A. GRETCHEN C. TERESE RAY-ANNE O. RONN ROBBY D.UST GOLDEN NOTES 2011 Petition for certiorari is to be filed before the SC Petition for certiorari is to be filed only with the Court of Appeals b. 6. remedy in the ordinary course of law ordinary course of law (Sec. Issue is unsubstantial Q: Are findings of fact reviewable under Rule 64 using Rule 65? A: The petition under Rule 64 using Rule 65. 5. MANANQUIL. CERTIORARI. 3. ROSALES . MARA KHRISNA CHARMINA F. to performance of an act which the law board or officer has acted without or desist from further proceedings specifically enjoins as a duty. board proceedings of a tribunal. DIANE CAMILLA R. or when said proceedings are without other plain.. LANTIN. speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. MIJARES. corporation. Such findings when so supported by the requisite quantum of evidence are final and non. (Sec. LIM. to do an act required to be done: officer exercising judicial or quasi. Rule Rule 65). KRISTINE P. UNICA AMOR R. final order or resolution of the Commission unless SC directs otherwise by the issuance of a temporary restraining order or preliminary injunction. Rule 64) 1. 4.whether exercising judicial. AIDA. there (b) When one unlawfully excludes another jurisdiction. MEMBERS: AKEMI B. 3. BAGANG. PLATON III. final order or resolution 7. 6. JUDGE CESAR D. or amounting to lack or excess of with abuse of its discretion. EDELISE D. SR. DEFINITIONS AND DICTINCTIONS CERTIORARI PROHIBITION MANDAMUS Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ annulling or modifying the commanding a tribunal. Attachment of: a. 4.(a) When he unlawfully neglects the judicial functions when such tribunal. Filing of verified petition within 30days from notice of the judgment. cannot question the findings of fact of the commission involved where such findings are supported by substantial evidence. DUMLAO. PROHIBITION AND MANDAMUS GENERAL MATTERS a. JUSTICE JAIME M. Rule 64) Q: What are the contents of the petition? A: (Sec. there being no appeal or being no appeal or any other plain. PINEDA.. Q: What is the effect of filing of a motion for new trial or reconsideration if allowed under the procedural rules of the commission concerned? A: It will interrupt the period for filing the petition and if motion is denied. 65). Rule 65). SY. and there is no in excess of its or his jurisdiction. Petition was filed for purpose of delay 3. RHONDEE E. HERRERA. Duplicate original or certified true copy of assailed judgment. 3. not Rule 64 2. JUANENGO. Rule 64) 2. MICHAEL ANGELO V. SUBJECT HEAD: ANGELI P. commanding a tribunal. quasi. Rule 64) Note: The filing of the petition for certiorari does not stay the execution of the assailed judgment. JR. ministerial duties or ministerial functions 138 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. board or person. final orders or resolutions (Sec. MENDOZA. Rule 64) 1. Directed against a person exercising to Directed against a person exercising Directed against a person exercising judicial or quasi-judicial functions judicial or quasi-judicial functions. QUIAMBAO. AQUINO. MARIANO. issues. BORJA. or the ordinary course of law. KATRINA NADINE G. DONNA GRAGASIN. or person. SHERY PAIGE A. JUSTICE OSCAR C. 5. FLORES. final order or resolution a quo 2.reviewable (Sec 5. speedy and adequate remedy in with grave abuse of discretion or in excess of its jurisdiction. Rule 64) Certified true copy of material records of the case Statement of material dates Sworn certification against forum shopping Proof of service Q: What are the grounds for the outright dismissal of the petition? A: (Sec. CONTRIBUTORS: VICENTE JAN O. (Sec. judicial or ministerial functions. from the use and enjoyment of a right or any other plain. Payment of docket and other lawful fees (Sec. arguments and relief prayed for 3. Q: What are the requisites for a review under Rule 64? A: 1. 1. (Sec. the petition may be filed within the remaining period which shall not be less than 5days. ALBAÑA. 8. 5. Rule 64) Note: Interlocutory orders must be assailed under Rule 65. grounds for review.

Estrera vs. it does not interrupt the course of the principal. 2. board or officer exercising judicial or quasijudicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law. prohibition. The rule is the same for prohibition and mandamus since the remedies under Rule 65 are independent actions. GR 148029. being clothed with the power to determine the case. speedy and adequate remedy – is one which promptly relieves the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. Plain. MARTINEZ 139 . 5. 16. Q: Does the filing of a petition for certiorari interrupt the running of the reglamentary period? A: No. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. or to act at all in contemplation of law. MASACAYAN & THEENA C. and undertakes to determine these questions and adjudicate upon the rights of the parties. petitions are subject to the rule on hierarchy of courts. however. GR 154235. Note: An original action for certiorari. Excess of jurisdiction – is where the respondent. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or with grave abuse of discretion Extends to discretionary acts Only against a respondent exercising judicial or quasi-judicial functions To prevent the commission of an To compel performance of an act act Purpose is to stop the proceedings Purpose is to compel performance of the act required and to collect damages Person or entity must have acted Person must have neglected a ministerial without or in excess of jurisdiction. and mandamus is an independent action. any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal (Microsoft Corp. Aug. arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. Best Deal Computer Center Corp. what the rights of the parties are. Judicial function – is where the tribunal or person has the power to determine what ACADEMICS CHAIR: LESTER JAY ALAN E. vs. Q: Which court has jurisdiction over petitions for certiorari? A: The courts have concurrent jurisdiction. 2. CERTIORARI Q: What is certiorari? A: A writ issued by a superior court to an inferior court. Jurisdiction is acquired by the service of summons to the respondent or by his voluntary appearance in court.. Q: Define the following. SABUGO & JOHN HENRY C. 4. A: 1. 24. 2006). If the action is filed with the RTC – Follow the rules on ordinary civil actions. whimsical. duty or excluded another from a right or or with grave abuse of discretion office Extends to discretionary and ministerial acts Only for ministerial acts Against respondents who exercise judicial and/or non-judicial functions Q: When does the court acquire jurisdiction over the person of the respondent in original actions for certiorari. oversteps his authority as determined by law. Grave abuse of discretion – is where the respondent acts in a capricious. Sept. If the action is filed with the CA or the SC – The court acquires jurisdiction over the respondents with the service on them of its orders indicating its initial action on the petition or by voluntary submission to such jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law. As such. Note: A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction. 3. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.CIVIL PROCEDURE To correct an act performed by respondent Purpose is to annul or modify the proceedings Person or entity must have acted without or in excess of jurisdiction. 2002. the law is. as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. prohibition and mandamus? A: 1. Without jurisdiction – is where the respondent does not have the legal power to determine the case. CA.

RHONDEE E. Note: When the remedy by appeal had already been lost due to petitioner’s own neglect or error in the choice of remedies. JUSTICE JAIME M. No. Involves question of law Mode of review Involves the review of the judgment final orders or resolutions of the CA..UST GOLDEN NOTES 2011 Q: Distinguish certiorari under Rule 65 and certiorari under Rule 45. final order or resolution appealed from Stays the judgment or order appealed from The appellant and the appellee are the original parties to the action. 4. copies of all pleadings and documents relevant and pertinent thereto. certiorari cannot lie. Orders were issued either in excess of or without jurisdiction. CONTRIBUTORS: VICENTE JAN O. ASST. HERRERA. the action for certiorari will not be entertained. ALBAÑA. corporation. No. Certiorari is not a remedy for errors of judgment. KATRINA NADINE G. XPN: A petition for certiorari may be allowed despite the availability of the remedy of appeal when: 1. Q: Are the remedies of appeal and certiorari exclusive? A: GR: Where the proper remedy is appeal. errors of jurisdiction are reviewable by certiorari. YRIZ TAMIE A. PLATON III. 783. JR. For certain special considerations as for public policy or public welfare. 5. DONNA GRAGASIN. boards or persons from usurping or exercising a jurisdiction or power which they have not been vested by law. 3. MEMBERS: AKEMI B.).. JUANENGO. Rule 65). MANANQUIL. 2. BORJA. It is necessary therefore. Sandiganbayan. KRISTINE P. corporations. MARA KHRISNA CHARMINA F. DIANE CAMILLA R. Rule 65). Appeal does not constitute a speedy and adequate remedy. SR. I. TERESE RAY-ANNE O. CTA. JUSTICE OSCAR C. Note: It is commenced by a verified petition accompanied by a certified true copy of the judgment. board. SY. tribunal. and a sworn certification of non-forum shopping (Sec. UNICA AMOR R. G. the court rejects rebuttal evidence for the prosecution as. Filed with the RTC. to avail of either a temporary restraining order or a writ of preliminary injunction to be issued by a higher court against the public respondent so the latter may. DUMLAO. LIM. Decision in the certiorari case will avoid future litigation. PINEDA. speedy or adequate remedy Filed not later than 60 days from notice of judgment. ROSALES . SUBJECT HEADS: DARRELL L. EDELISE D. MICHAEL ANGELO V. MA. RONN ROBBY D. court. 2. another 60 days shall be given to the petitioner (A. CA. The two remedies are mutually exclusive (Meralco v. order or resolution appealed from Unless a writ of preliminary injunction or temporary restraining order is issued. 2007 ed. and the lower court or quasijudicial agency is not impleaded Motion reconsideration required for not is PROHIBITION The court is in the exercise of its appellate jurisdiction and power of review. Remedial Law Compendium. order or resolution subject thereof. In criminal actions. MARIANO. 88396. STAMARIA. during the pendency of the petition. BAGANG. in case of acquittal. Order is a patent nullity. GRETCHEN C. Vol. July 4. AIDA. Filed with the SC Q: What is prohibition? A: A remedy to prevent inferior courts.R. QUIAMBAO. A: Rule 65 Findings of fact of Court of Appeals are not conclusive or binding upon SC Involves question of jurisdiction Mode of appeal Directed against an interlocutory order of a court or where there is no appeal or any other plain.M. be enjoined from further proceeding with the case (sec 7. p. CA. or 6. MIJARES. 1990). SUBJECT HEAD: ANGELI P. Sandiganbayan or COMELEC Q: Will the filing of a petition for certiorari interrupt the course of the principal case? Or is an injunctive relief necessary? A: The filing of a petition for certiorari against the lower court or tribunal or any other public respondent does not interrupt the course of the 140 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. JUDGE CESAR D. SHERY PAIGE A. AQUINO. RTC or other courts Filed within 15 days from notice of judgment. Errors of judgment are correctible by appeal. there could be no remedy (Regalado. officer or person shall be public respondents who are impleaded in the action Motion for reconsideration or for new trial is required. LANTIN. FLORES. quasijudicial agency. it does not stay the challenged proceeding The judge. If a motion for reconsideration or new trial is filed. MENDOZA. 0203-SC) Court exercises original jurisdiction Rule 45 GR: Findings of fact of CA are conclusive principal case.

REQUISITES CERTIORARI That the petition is directed against a tribunal. MANDAMUS Q: What is mandamus? A: A writ issued in the name of the State. 31. who is the person claiming the office as against petitioner. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. the act corporation. thereto. trust or station. or officer Purpose is for tribunal. The tribunal. board or person exercising judicial. of law. and and sworn sworn certification of certification of non-forum non-forum shopping under shopping under Rule 46. Rule 65). or in must have acted perform the act. No. A: Mandamus Available when one is unlawfully excluded from the use or enjoyment of an office against a person who is responsible for excluding the petitioner Quo Warranto Available against the holder of an office. copy of the copy of the speedy and judgment or judgment or adequate remedy order subject of order subject of in the ordinary the petition. copies of all copies of all pleadings and pleadings and documents documents relevant and relevant and pertinent pertinent thereto. There must be a controversy. board or person. the writ of prohibition cannot undo it (Agustin v. Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment. Aug. order or resolution subject thereof. corporation board. not necessarily the one who excludes the petitioner Q: Distinguish mandamus from injunction. Respondent is exercising judicial or quasijudicial functions. quasijudicial. It must be the board or officer corporation. L-2345. course of law. There is no There is no The defendant appeal or any appeal or any unlawfully plain. Rule 46. MASACAYAN & THEENA C. PROHIBITION MANDAMUS The petition is The plaintiff has a directed against a clear legal right to tribunal. cease of a it has To perform a positive legal duty and not to undo what has been done ministerial duty To prevent an act to maintain the status quo between the parties b. SABUGO & JOHN HENRY C. 2. commanding the performance of an act which the law enjoins as a duty resulting from an office.R. to an inferior tribunal. Accompanied by Accompanied by There is no appeal a certified true a certified true or any plain. De la Fuente. PROHIBITION Directed to court commanding it to from the exercise jurisdiction to which no legal claim. ACADEMICS CHAIR: LESTER JAY ALAN E. itself. jurisdiction of jurisdiction. 1949). or ministerial functions. The tribunal. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. G. Its function is to restrain the doing of some act about to be done. board or officer exercising judicial or quasijudicial functions. excess of without or in which is jurisdiction or excess of ministerial and with abuse of jurisdiction or not discretionary. Q: Distinguish mandamus from quo warranto. duty of the has acted board or person defendant to without. corporation. the petition. demanded. board or officer to perform ministerial and legal duty injunction Ordinary civil action Directed against a litigant Q: What are the requisites of a valid certiorari? A: For the defendant either to refrain from an act or to perform not necessarily a legal and 1.CIVIL PROCEDURE Q: Distinction between Prohibition and injunction A: INJUNCTION Directed only to the party litigants. by law. If the thing be already done. It is not intended to provide a remedy for acts already accomplished. corporation. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. speedy and plain. A: Mandamus Special civil action Directed against a tribunal. 3. without in any manner interfering with the court. speedy and neglects the adequate adequate remedy performance of remedy in the in the ordinary the duty enjoined ordinary course course of law. copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping (Sec. discretion with grave abuse because the same amounting to of discretion is mandated by lack or excess or amounting to lack law. Q: What is the function of writ of prohibition? A: It is a preventive remedy. MARTINEZ 141 .

1986) Note: Prohibition and not mandamus. There is no appeal or other plain. ALBAÑA. Without or in excess of jurisdiction 2. No. There must be a controversy 2.. GRETCHEN C. KRISTINE P. 2009 ed. 4. CONTRIBUTORS: VICENTE JAN O. L-2422. corporation. 629. 30. No. 1.R. STAMARIA. (Madrigal v. SHERY PAIGE A. Q: When is prohibition issued? A: GR: Prohibition does not ordinarily lie to restrain an act which is already fait accompli. officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office. Mar. JR. board or officer exercising judicial or quasi-judicial functions acted: 1. The act to be performed must be within the powers of the respondent to perform. 23. speedy and adequate remedy in the ordinary course of law c. G. Civil Procedure: A Restatement for the Bar. 1959). TERESE RAY-ANNE O.. AIDA. The duty or act to be performed must be existing (a correlative right will be denied if not performed by the respondent) 5.R. If the party is in estoppel (Vda. trust or station. SY. Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction 4. BORJA. 3) 2. Only questions of law are raised. YRIZ TAMIE A. 1. The respondent must be exercising a ministerial duty 4. G. p. (Sec. order or resolution subject thereof. DUMLAO. MEMBERS: AKEMI B. speedy and adequate remedy. MICHAEL ANGELO V. BAGANG. WHEN PETITION FOR CERTIORARI. In grave abuse of discretion amounting to lack or excess of jurisdiction Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment. EDELISE D. No. 1949) Q: What are the requisites of a valid prohibition? A: Sec. QUIAMBAO. (Tan v. ASST. Rule 65 1. board. LANTIN. July 11. de Tan v. UNICA AMOR R. Sept. No. Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. G. 1990) Q: May mandamus be used to compel a discretionary duty? Q: When is certiorari under Rule 65 unavailable? 142 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. L12944.R. 2. ROSALES . There must be a clear legal right or duty 2. JUDGE CESAR D. HERRERA. Rule 65). speedy and adequate remedy Q: What are the requisites of a valid mandamus? A: Sec. corporation. JUSTICE OSCAR C. Q: What are the grounds for mandamus? A: 1. or 2. 3. PLATON III.) 4. 73155. 30. PINEDA. 3. MA. officer or person unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. JUSTICE JAIME M. Macadaeg. and There must be no appeal or other plain. KATRINA NADINE G. DONNA GRAGASIN. DIANE CAMILLA R. SUBJECT HEAD: ANGELI P. Respondent is exercising judicial. AQUINO. RONN ROBBY D. XPN: 1. COMELEC. Rule 65 1. FLORES. Lecaroz. XPN: It will lie to prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality. SUBJECT HEADS: DARRELL L. When any tribunal. Note: Certiorari is not the remedy for a loss appeal. Q: Will mandamus issue despite the availability of administrative remedies? A: GR: Mandamus will not issue when administrative remedies are still available. L-46218. copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping. (Sec. JUANENGO.R. MANANQUIL. MENDOZA. G. or When any tribunal. LIM. MIJARES. Veterans Backpay Commission. board. There must be no appeal or other plain. Summary procedure Writ of Amparo Writ of Habeas Data Small claims cases (Riano. MARIANO. PROHIBITION AND MANDAMUS IS PROPER Q: What are the grounds for the filing of a petition for certiorari? A: That a tribunal.UST GOLDEN NOTES 2011 3. Oct. Rule 65) A: 1. is the remedy where a motion to dismiss is wrongfully denied (Enriquez v. RHONDEE E. quasijudicial functions or ministerial functions 3. MARA KHRISNA CHARMINA F. 2. SR. 3.

MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI. mandamus can be used to the extent of requiring the performance of a discretionary duty to act but not to require performance of such duty in a particular manner. or is prosecuted manifestly for delay. is a mode of appeal. 12. Extension of 30 days may Extension no longer be granted for justifiable allowed. Filed with only the May be filed with the Supreme Court Supreme Court. 3 1992) d. Filed within 15 days from Filed not later than 60 days notice of judgment or final from notice of judgment. However. CA. which is but a continuation of the appellate process over the original case. Rule 65). 2007). Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge (AM 07-7-12-SC. MARTINEZ 143 . No. and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case (Sec. SABUGO & JOHN HENRY C. Aug. e. whether such motion is required or not. WHEN AND WHERE TO FILE PETITION Q: Distinguish certiorari from appeal by certiorari. Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. condition precedent. the 60 day period is counted from notice of denial of said motion.CIVIL PROCEDURE A: Mandamus is only applicable to a ministerial duty. MASACAYAN & THEENA C. Certiorari as a Mode of Appeal (Rule 45) Called petition for review on certiorari. The CA in resolving a petition for mandamus is authorized to award civil damages in the same petition (Vital-Gozon v. absent a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction. PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION. order appealed from. subject to exceptions Stays the judgment Does not stay the appealed from. officer parties with the appealing exercising judicial or quasiparty as the petitioner and judicial functions is the adverse party as the impleaded as respondent respondent without impleading the lower court or its judge. reasons Does not require a prior Motion for motion for Reconsideration is a reconsideration. 7. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal. The antithetic character of appeal and certiorari has been generally recognized and observed save only on those rare instances when appeal is satisfactorily shown to be an inadequate remedy. 101428. INJUNCTIVE RELIEF Q: When is injunctive relief proper? A: The court in which the petition is filed may issue orders expediting the proceedings. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Seeks to review final judgments or final orders. or new trial is timely filed. or of order or resolution sought the denial of petitioner’s to be assailed and in case a motion for reconsideration motion for reconsideration or new trial. Parties are the original The tribunal. and not a part of the appellate process but an independent action. a petitioner must show valid reasons why the issues raised in his petition for certiorari could not have been raised on ACADEMICS CHAIR: LESTER JAY ALAN E. or upon its expiration. G. Raises questions of jurisdiction because a tribunal. Certiorari as a Special Civil Action (Rule 65) A special civil action that is an original action and not a mode of appeal. Dec. May be directed against an interlocutory order of the court or where not appeal or plain or speedy remedy available in the ordinary course of law Raises only questions of law.R. or that the questions raised therein are too unsubstantial to require consideration. Thus. board or officer exercising judicial or quasijudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. judgment or order subject of the petition unless enjoined or restrained. board. Court of Appeals. Sandiganbayan. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Q: May the CA award damages in mandamus proceedings? A: Yes. or Regional Trial Court SC may deny the decision motupropio on the ground that the appeal is without merit.

or in order to preserve and protect adequate remedy in the ordinary course (b) When one unlawfully excludes certain interests or rights during the of law (Sec. and 144 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. ministerial and legal duty. or to compel a particular functions. ROSALES . ALBAÑA. to do an act required to commission or continuance of a judicial. XPNs: A prior motion for reconsideration is not necessary to entertain a petition for certiorari where: 1. whether exercising board or person. 2. CA. JUSTICE JAIME M. Questions raised in the certiorari proceedings have been duly raised and 4. STAMARIA. SHERY PAIGE A. Order is a patent nullity. relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable. RONN ROBBY D. Preliminary injunction is a without or in excess of its jurisdiction. from an act or to perform not necessarily a legal and ministerial duty. May be brought in the Supreme Court. Petitioner was deprived of due process and there is extreme urgency for relief. to desist from further (a) When he unlawfully neglects the act in violation of the rights of the proceedings when said proceedings are performance of an act which the law applicant. MENDOZA. MARIANO. or in Court of Appeals. ASST. 3. DIANE CAMILLA R. Special civil action Special civil action Ordinary civil action To prevent an encroachment. Q: Distinguish prohibition and mandamus from injunction.. BAGANG. speedy and remedy in the ordinary course of law. a right or office to which the other is entitled (Sec. another from the use and enjoyment of pendency of an action. Proceedings in the lower court are a nullity for lack of due process. or judicial entities ministerial functions Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to ministerial. PLATON III. quasi-judicial or ministerial be done: specific act. excess. Always the main action Always the main action May be the main action or just a provisional remedy May be brought in the Supreme Court. commanding a tribunal. corporation. as where the court a quo has no jurisdiction. JUSTICE OSCAR C. LANTIN. May be directed against entities May be directed against judicial and non.UST GOLDEN NOTES 2011 appeal (Banco Filipino Savings and Mortgage Bank vs. or are the same as those raised and passed upon in the lower court. RHONDEE E. A: Prohibition Mandamus Injunction Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to commanding a tribunal. BORJA.. MANANQUIL. Under the circumstances. speedy and adequate status quo and prevent future wrongs no appeal or any other plain. GRETCHEN C. 7. SUBJECT HEADS: DARRELL L. YRIZ TAMIE A. KRISTINE P. KATRINA NADINE G. passed upon by the lower court. f. May be brought in the Regional Trial Court of Appeals. Proceedings were ex parte or in which the petitioner had no opportunity to object. or specifically enjoins as a duty. MICHAEL ANGELO V. DONNA GRAGASIN. SY. enjoin the defendant from the board or person. where respondent resides. 2. MARA KHRISNA CHARMINA F. AIDA. CONTRIBUTORS: VICENTE JAN O. LIM. or in Court which has jurisdiction over the the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent jurisdiction over the territorial area jurisdiction over the territorial area resides. 334 SCRA 305). or the subject matter of the action is perishable. Urgent necessity for the resolution of the question. EDELISE D. UNICA AMOR R. corporation. where respondent resides. MA. Sandiganbayan. and any further delay would prejudice the interests of the Government or of the petitioner. discretionary or legal functions. DUMLAO. PINEDA. there being no other plain. Sandiganbayan. TERESE RAY-ANNE O. HERRERA. SR. SUBJECT HEAD: ANGELI P. 6. JR. JUANENGO.Directed against a party exercising judicial or quasi-judicial. AQUINO. 5. FLORES. 8. EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION Q: Is it an absolute rule that before recourse to certiorari is taken a motion for reconsideration must be filed? A: GR: Petition for certiorari will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him. QUIAMBAO. In a criminal case. Rule 65). To compel the performance of a For the defendant either to refrain usurpation or assumption of jurisdiction. MEMBERS: AKEMI B. a motion for reconsideration would be useless. JUDGE CESAR D. 3. and there is provisional remedy to preserve the with abuse of its discretion. Rule 65). MIJARES.

8.4.If the petition involves an act or an omission of a quasi-judicial agency. indemnity bond (Sec. Rule 65) The court may also award damages in its judgment and the execution of the award for damages or costs shall follow the procedure in sec 1 of rule 39 (sec 9. 3) 2. 2) c. 2. at the request and upon the relation of another person c.M. prosecuted manifestly for delay. upon complaint or when he has reason to believe that the cases for quo warranto can be established by proof (Sec. in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B. board. Supreme Court. ACADEMICS CHAIR: LESTER JAY ALAN E. leave of court b. (Sec. No. 12. The Court may impose motu proprio. 4. j.In election cases involving an act or an omission of an MTC or RTC As amended by AM No.Whether or not in aid of appellate jurisdiction. WHERE TO FILE PETITION Q: When and where to file petition? A: 1. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION Q: What is the effect of a petition for certiorari. Dec. 2007) i. 3. 07-7-12-SC. Mandatory – brought by the Solicitor General or Public prosecutor when: a. QUO WARRANTO Q: What is quo warranto? A: A proceeding or writ issued by the court to determine the right to use an office. Regional Trial Court. office or franchise. officer or person. unless otherwise provided by law or rules. As amended by AM No. 12. COMELEC. 07-7-12-SC). In such event. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES Q: What is the rule on acts or omissions of the MTC or RTC regarding election cases? A: In election cases involving an act or an omission of a municipal or a regional trial court. Court of Appeals and Sandiganbayan. order. Court of Appeals only. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. corporation.If the petition relates to an act or an omission of an MTC. It may also include such other Incidental reliefs as law and justice may require (sec 1. directed by the President. as amended by A. prohibition or mandamus which is patently Q: What are the classifications of quo warranto proceedings? A: 1. b. 07-7-12-SC. Rule 65. SABUGO & JOHN HENRY C. other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari (Sec. without merit. but leave of court must first be obtained. 2007. Note: It is commenced by a verified petition brought in the name of the Republic of the Philippines or in the name of the person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another. position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position. or raises questions which are too unsubstantial to require consideration? A: The court may dismiss the petition. 8. 5. the petition shall be filed exclusively with the Commission on Elections. Issue raised is one purely of law or where public interest is involved.CIVIL PROCEDURE 9. MARTINEZ 145 .Subject to the doctrine of hierarchy of courts and only when compelling reasons exist for not filing the same with the lower courts. 3) Discretionary – brought by the Solicitor General or a public prosecutor at the request and upon the relation of another person. (Sec. Dec. or resolution or proceeding subject of the petition. MASACAYAN & THEENA C. 1) g. position or franchise and to oust the person holding or exercising such office. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. in aid of its appellate jurisdiction. rule 65). (Sec. RELIEFS PETITIONER IS ENTITLED TO Q: What are the reliefs a petitioner is entitled to with this action? A: The primary relief will be the annulment or modification of the judgment. at the request and upon the relation if another person (ex relatione). provided there must be: a. the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel. based on res ipsa loquitur. h. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.

SUBJECT HEAD: ANGELI P. May be filed by any voter even if he is not entitled to the office. Petition must be filed within 10 days from the proclamation of the candidate. QUIAMBAO. Quo Warranto In Electoral Proceedings To contest the right of an elected public officer to hold public office. RHONDEE E. and 3. YRIZ TAMIE A. HERRERA. WHEN INDIVIDUAL MAY COMMENCE AN ACTION Q: Who commences the action? A: 1. to distribute/sell cars in said city. usurpation 2. (mandatory quo warranto) The Solicitor General or a public prosecutor may. JUDGE CESAR D. JUSTICE JAIME M. 3. MIJARES. ROSALES . The Solicitor General filed before the RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co.2. 1929). MARA KHRISNA CHARMINA F. UNICA AMOR R. ALBAÑA. LANTIN. BORJA. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. 2. MARIANO. (discretionary quo warranto) A person claiming to be entitled to a public office or position or unlawfully held or exercised by anoher may also bring action. forfeiture 3. FLORES. A person who usurps. DISTINCTION FROM QUO WARRANTO UNDER OMNIBUS ELECTION CODE Q: Distinguish quo warranto under Rule 66 from quo warranto under Omnibus Election Code. CONTRIBUTORS: VICENTE JAN O. Appointive Office Issue: validity of the appointment Court will oust the person illegally appointed and will order the seating of the person who was legally appointed and entitled to the office. intrudes into. STAMARIA. MEMBERS: AKEMI B. when directed by the President of the Philippines.. RONN ROBBY D. 5. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in 146 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.. or unlawfully holds or exercises a public office.R. position or franchise. A: Elective Office Issue: eligibility of the respondent Occupant declared ineligible/disloyal will be unseated but petitioner will not be declared the rightful occupant of the office. AQUINO. b. Mar. DONNA GRAGASIN. Rule 66). Grounds: ineligibility or disqualification to hold the office 2. 25. DUMLAO. EDELISE D. The solicitor general or public prosecutor. G. Grounds: 1. The petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds. Person adjudged entitled to the office may bring a separate action against the respondent to recover damages. MANANQUIL. A: Quo Warranto Under Rule 66 Prerogative writ by which the government can call upon any person to show by what title he holds a public office or exercises a public franchise. LIM. MICHAEL ANGELO V. Q: Distinguish quo warranto in elective office from an appointive office. No. JUANENGO. A public officer who does or suffers an act which. MENDOZA. ASST. or when upon complaint or otherwise he has good reason to believe that any case specified in the proceding section can be established by proof. a. Note: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC (Sec. KRISTINE P. DIANE CAMILLA R. AIDA. GRETCHEN C. KATRINA NADINE G. JUSTICE OSCAR C.UST GOLDEN NOTES 2011 protest (Cesar v. Q: Against whom a quo warranto may be filed? A: The action must be filed against: 1. JR. MA. BAGANG. TERESE RAY-ANNE O. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Sec. Securities Regulations Code). SUBJECT HEADS: DARRELL L. with the permission of court. Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code. constitutes a ground for the forfeiture of his office. bring an action at the request and upo n the relation of another person. PLATON III. in his own name. illegal association Presupposes that the respondent is already actually holding office and action must be commenced within 1 year from cause of ouster or from the time the right of petitioner to hold office arose. SY. quo warranto is not the proper remedy but an election Q: A group of businessmen formed an association in Cebu City calling itself Cars Co. Note: If the dispute is as to the counting of votes or on matters connected with the conduct of the election. PINEDA. SHERY PAIGE A. by the provision of law. SR. 1. WHEN GOVERNMENT COMMENCE AN ACTION AGAINST INDIVIDUALS c. 30705. Garrido.

When the respondent is found guilty of usurping. JUDGMENT IN QUO WARRANTO ACTION Q: What is the effect of a judgment in Quo Warranto case? A. when the Solicitor General commences the action for quo warranto. agreement as to the price cannot be reached. MARTINEZ 147 . LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. and that the petitioner or relator. Mayor Treñas filed a motion for issuance of writ of possession alleging that it had deposited 10% of the amount of compensation of which the court issued. Q: City of Iloilo (petitioner) represented by Mayor Treñas filed a complaint for eminent domain against Javellana seeking to expropriate two parcels of land. Such further judgment may be rendered determining the respective rights in the public office. may bring an action against the respondent to recover damages sustained by such persons by reason of usurpation. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. b. judgment shall be rendered that such respondent be ousted and altogether excluded therefrom. if the latter agrees. intruding into. Such further judgment may be rendered determining the respective rights in and to the public office. he may. in the CA or in the SC (Sec. Javellana filed a complaint for recovery of ACADEMICS CHAIR: LESTER JAY ALAN E. respondent must be ousted and altogether excluded therefrom. position or franchise of the parties to the action as justice requires (Sec. where he alleged that when he sought to withdraw the money. and 3. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. he discovered that no deposit was made. or franchise of all the parties to the action. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION Q: What are the two (2) stages in expropriation proceedings? A: 1. the requisites of a valid Due process of law Payment of just compensation Taking must be for public use Q: What is the power of eminent domain? A: It is the right of the State to acquire private property for public use upon the payment of just compensation. MATTERS TO BE ALLEGED IN COMPLAINT FOR EXPROPRIATION Q: Matters to be allege in a complaint for expropriation. recover his cost. as justice requires. (2001 Bar Question) d. describing the property sought to be expropriated. the expropriation proceedings remained dormant. as in the case. MASACAYAN & THEENA C. 2. or unlawfully holding or exercising a public office. 9. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE Q: What are the rights of persons adjudged to be entitled to the office? A: if judgment be rendered in favor of the person averred in the complaint to be entitled to the public office. a. 16 years later. and that the petitioner or relator. position. e. 2. EXPROPRIATION Q: What is expropriation? A: The procedure for enforcing the right of eminent domain. A writ of possession was subsequently issued. it may be brought in a Regional Trial Court in the City of Manila. Note: when there is a judgment in a quo warranto action finding usurpation to be existent. Q: What are expropriation? A: 1. SABUGO & JOHN HENRY C. and joining as defendants all persons owning or claiming to own any part thereof or interest therein (Sec. after taking the oath of office and executing any official bond required by law: 1. Q: When is expropriation proper? A: It is proper only when the owner refuses to sell or. Rule 66). recover his costs. Determination of just compensation. as the case may be. A: right and purpose of expropriation. may immediately thereafter demand all the books and papers in the respondent’s custody or control appertaining to the office to which the judgment relates.CIVIL PROCEDURE Manila. and petitioner was able to take physical possession of the properties. position or franchise. 3. Is the contention of Cars Co. As expressly provided in the Rules. After which. Thus. take upon himself the execution of the office. Javellana filed an ex parte motion/manifestation. 9. 2. 7. as the case may be. 1). Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved. Rule 66). correct? Why? A: No.

PINEDA. ALBAÑA. upon the filing of the filing of the complaint. SY. and the petitioner’s right to expropriate the property for a public use is no longer subject to review. BORJA. Laguna originally intended as a residential subdivision for the Manila City Hall employees. TERESE RAY-ANNE O. JUANENGO. 2010). Once the first order becomes final and no appeal thereto is taken. 12. LANTIN. the market value for the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of internal Revenue (BIR). YRIZ TAMIE A. Explain. the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100 percent of the value of the property based on the current relevant zonal valuation of the BIR. QUIAMBAO. DEFENSES AND OBJECTIONS Q: What must be filed when defendant has an objection? A: If a defendant has any objection to the filing of or the allegations in the complaint. An order of condemnation or dismissal is final. SHERY PAIGE A. The answer shall specifically designate or identify the property in which he claims to have an interest. Congress may enact a law to expropriate property but it cannot limit just compensation. RA 8974). G. STAMARIA. Lolita Contreras-Besana. MICHAEL ANGELO V. 5. As a relevant standard for initial compensation. MARA KHRISNA CHARMINA F. e. the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. CONTRIBUTORS: VICENTE JAN O. The first phase ends with an order of dismissal. 168967. EDELISE D. The second phase consists of the determination of just compensation. Is the order of expropriation final? A: Expropriation proceedings have two stages.. cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. MEMBERS: AKEMI B. KRISTINE P. A: Yes. LIM.UST GOLDEN NOTES 2011 possession. SUBJECT HEADS: DARRELL L. 2009) d. PLATON III. Under Sec. and adduce all his objections and defenses to the taking of his property. MARIANO. Q: May Congress enact a law providing that a 5. (City of Iloilo v. FLORES. he shall serve his answer within the time stated in the summons. Rosa. MANANQUIL. resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. ROSALES . The City of Iloilo argues that Javellana could no longer bring an action for recovery since the subject property was already taken for public use. (2006 Bar Question) c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY Q: What is the new system of immediate payment of initial compensation? A: RA 8974 provides a modification of sec 2. The intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of immediate payment in cases involving national government infrastructure projects is indeed very clear (MCWD v. Thus. if expropriation is engaged by the national government for purposes other that national infrastructure projects. or any objection or defense to the taking of his property. SUBJECT HEAD: ANGELI P. BAGANG. MENDOZA. are appealable. J. AQUINO. 4. AIDA. RONN ROBBY D. site or location for any national government infrastructure project through expropriation. JUDGE CESAR D. the ascertainment of just compensation requires the evaluation of 3 commissioners. Rule 67 of the Rules of Court. Manila. it has become final. Thus. 7 of RA 8974 (Sec. King and Sons. No. GR 175983. being final. RHONDEE E. The trial court in its orders and amended orders maintained that the assailed orders issued by it were interlocutory in character and as such are always subject to modification and revision by the court anytime. ASST. The determination of just compensation is a judicial function and Congress may not supplant or prevent the exercise of judicial discretion to determine just compensation. whichever is higher and the value of the improvements and/or structures using the replacement cost method. MIJARES. Both orders.. or a determination that the property is to be acquired for a public purpose. a part of the UST compound in Sampaloc. fixing and recovery of rental and damages. state the nature and extent of the interest claimed. Note: RA 8974 applies in instances when the national government expropriates property for national government infrastructure projects. No counterclaim. JUSTICE OSCAR C. JR. Rule 67 where the Government is required to make immediate and direct payment to the property owner upon the filing of the complaint to be entitled to a writ of possession. April 16. be expropriated for the construction of a park in honor of former City Mayor ArsenioLacson? As compensation to UST. Hon. DONNA GRAGASIN. GRETCHEN C. HERRERA. MA.R. DIANE CAMILLA R. UNICA AMOR R. DUMLAO. 148 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. JUSTICE JAIME M. the authority to expropriate and its public use can no longer be questioned. and (2) the value of the improvements and/or structures as determined under Sec. the City of Manila shall deliver its 5-hectare lot in Sta. Feb.000 square meter lot. KATRINA NADINE G. SR. and after due notice to the defendant. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION Q: What is the new system of immediate payment of initial just compensation? A: For the acquisition of right-of-way.

2010). or takes place subsequent to the filing of the complaint for eminent domain. ORDER OF EXPROPRIATION Q: What is an order of expropriation? A: An order of expropriation (or order of condemnation) will be issued declaring that the plaintiff has a lawful right to take the property for the public use or purpose described in the complaint upon the payment of just compensation in the event the objections of the defendant are Q: What is the reckoning point for determining just compensation? A:The value of just compensation shall be determined as of the date of the taking of the property or the filing of the complaint. Rule 67). 2009) XPNs: 1. And thereafter. Note: Typically. and he may share in the distribution of the award (Sec. the plaintiff shall not be permitted to dismiss or discontinue the proceeding except upon such terms as the court deems just and equitable (Sec 4. No. No 166973. 3. 11. 168967.g. in the interest of justice. he must file and serve a notice of appearance and manifestation to that effect. G. g. Grave injustice to the property owner ACADEMICS CHAIR: LESTER JAY ALAN E.R. JC = FMV JC – Just compensation FMV – Fair market value CD – Consequential damages CB – Consequential benefits Note:Sentimental value is not computed. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Hon. Lolita Contreras-Besana. Baylosis. whichever came first.R. 12. Q: What is the formula for the determination of just compensation? A: JC = FMV + CD – CB If CB is more than CD then. at the trial of the issue of just compensation. 4) GR: When the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings. shall be entitled to notice of all proceedings. However. SABUGO & JOHN HENRY C. f. 10.R. the time of taking is contemporaneous with the time the petition is filed. 31. as the judgment denying the right of expropriation is not res judicata on the issue of damages arising from such illegal expropriation (Republic v. Rule 67). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Q: How may appeal be taken from an order of expropriation by the party aggrieved thereby? A: It may be appealed by the defendant by record on appeal. No. G. MARTINEZ 149 . (NAPOCOR v. Feb. Rule 67) Note: The landowner has the option of proving damages either in the same expropriation case or in a separate action instituted for that purpose. may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Jan. (Sec.CIVIL PROCEDURE Note: if there are no objections. (City of Iloilo v. Co. the court. G. Q: What is the effect if the order of condemnation was reversed? A: The owner shall repossess the property with the right to be indemnified for all damages sustained due to the taking (Sec. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues e. the just compensation should be determined as of the date of the filing of the complaint. ASCERTAINMENT OF JUST COMPENSATION Q: What is just compensation? A: Just compensation is equivalent to the fair market value of the property at the time of its taking or filing of complaint whichever comes first. L-6191. Rule 67) Q: What is the duty of the court if the defendant waives his defenses or objections? A: If a defendant waives all defenses and objections not so alleged. Feb. Note: after the rendition of the order of expropriation. overruled or when no party appears to object to or to defend against the expropriation (Sec 4. whether or not a defendant has previously appeared or answered. 1955). he may present evidence as to the amount of the compensation to be paid for his property. MASACAYAN & THEENA C. It is the fair and full equivalent for the loss sustained by the defendant. issue on the right to expropriate or issue of just compensation Note: An appeal does not delay the right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use.

2007) The owner will be given undue increment advantages because of the expropriation The value of the property in question was greatly enhanced between the time when the extension of the street was laid out and the date when the condemnation proceedings were filed. and such proceedings shall 4. 1933) h. No. ALBAÑA. the tunnels. JUSTICE OSCAR C. 162779. through PEA. First. which is the true measure of the damages.UST GOLDEN NOTES 2011 Air Transportation Office cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the land owners.R. (Tan v. The owners of the land have no right to recover damages for this unearned increment resulting from the construction of the public improvement for which the land was taken. CONTRIBUTORS: VICENTE JAN O. No. HERRERA. APPOINTMENT OF COMMISSIONERS. upon the filing of its complaint for expropriation.The trial court was correct in ordering the Republic. BORJA. AQUINO. trial with the aid of commissioners is a substantial right that may not be done away with capriciously or for no reason at all (MERALCO v. G. G. SUBJECT HEADS: DARRELL L. KRISTINE P. To permit them to do so would be to allow them to recover more than the value of the land at the time when it was taken.R. June 29. No. DONNA GRAGASIN. in no way contributed to an increase in the value of the land. LIM. KATRINA NADINE G. Q: When should the commissioner make a report? A: The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them. DIANE CAMILLA R. 2007) The taking did not have color of legal authority To allow NAPOCOR to use the date it constructed the tunnels as the date of valuation would be grossly unfair. MARIANO. Pineda. JUSTICE JAIME M. MARA KHRISNA CHARMINA F. The trial court rightly computed the valuation of the property as of 1992. ROSALES . EDELISE D. DUMLAO. (Heirs of Mateo Pidacan&RomanaEigo v.(Provincial Gov’t of Rizal v. June 15. JUANENGO. GRETCHEN C.R. G. It did not bother to notify the owners and wrongly assumed it had the right to dig those tunnels under their property. AIDA. SY. and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated. MA. PLATON III. SR. or just compensation. LANTIN. 168732. 16. COMMISSIONER’S REPORT. to pay Tan just compensation on the basis of the BIR zonal valuation of the subject property. JR. SUBJECT HEAD: ANGELI P. Q: When may the court appoint a commissioner in expropriation proceedings? A: Upon the rendition of the order of expropriation. Secondly. G. and would discourage the construction of important public improvements. The appointment of commissioners in expropriation proceedings is indispensable. PINEDA. L-36096. L-59791. No. when the owners discovered the construction of the huge underground tunnels beneath their lands and NAPOCOR confirmed the same and started negotiations for their purchase but no agreement could be reached. No.R. PEA filed with the RTC its petition for expropriation on Sept. MICHAEL ANGELO V. Aug. 2007) The taking of the property was not initially for expropriation There was no taking of the property in 1985 by Public Estates Authority (PEA) for purposes of expropriation. RONN ROBBY D. QUIAMBAO. 150 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.. 22. UNICA AMOR R. 2003. G. and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings. (NAPOCOR v. Republic. the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. MEMBERS: AKEMI B. it did not enter the land under warrant or color of legal authority or with intent to expropriate the same. BAGANG. 1992). In such cases. YRIZ TAMIE A. As shown by the records. MENDOZA. Note: Objections to the order of appointment must be filed within 10 days from service of the order and shall be resolved within 30 days after all the commissioners received the copies of the objections (Sec. MANANQUIL.. JUDGE CESAR D. MIJARES. SHERY PAIGE A. May 25. RHONDEE E. Feb.R. TERESE RAY-ANNE O. STAMARIA. 5. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court (Sec. 5) 2. 13. Rule 67). Ibrahim. the “improvements” introduced by NAPOCOR. Air Transportation Office. COURT ACTION UPON COMMISSIONER’S REPORT Q: May the court dispense with the assistance of commissioners in the determination of just compensation in expropriation proceedings? A: No. FLORES. and may render judgment upon such partial report. ASST. 170740. Caro de Araullo. 3.

Note: It is commenced by a complaint setting forth the date and due execution of the mortgage. date of the note or other documentary evidence of the obligation secured by the mortgage. rule 68) Note: it has been held that the motion for the sale of the mortgaged property is non-litigable and may be made ex parte. be paid to the person foreclosing the mortgage. b. shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under executions (Sec. the court shall order the sale of the property only “upon motion of the mortgagee” (sec 3. Rule 69). FORECLOSURE OF REAL ESTATE MORTGAGE Q: What is foreclosure of Real Estate Mortgage (REM)? A: It is the remedy used for the satisfaction of any monetary obligation. EFFECT OF RECORDING OF JUDGMENT Q: What is the effect of the recording of the judgment? A: When real estate is expropriated. after deducting the costs of the sale. a description of the mortgaged property. a certified copy of such judgment shall be recorded in the registry of deeds of he place in which the property is situated. i. the court. and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage (Sec. the amount claimed to be unpaid thereon. such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment. SALE OF MORTGAGED PROPERTY Q: What is the effect of confirmation of the sale? A: It shall divest the rights in the property of all the parties to the action and shall vest their rights in the purchaser. Q: When is the sale of mortgaged property proper and how must it be brought about? A: if the mortgagor fails to pay the sum due within the period (90-120 days) stated by the court in its judgment. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 67. the clerk of the court shall serve copies thereof on all interested parties. subject to such rights of redemption as may be allowed by law (Sec 3. which time may be extended in the discretion of the court. c. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 1). and when there shall be any balance or residue after ACADEMICS CHAIR: LESTER JAY ALAN E. DISPOSITION OF PROCEEDS OF SALE Q: How is the disposition of the proceeds of the sale done? A: The proceeds of the sale of the mortgaged property shall. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT Q: What are the rights of the plaintiff after payment? A: After payment of just compensation. upon motion. a. j. it would be good practice for the mortgagee to file a motion for the sale of the mortgaged property because under the Rules. by proceeding against the property used to secure said obligation. the mortgagee should file a motion for the confirmation of the sale which requires notice and hearing.CIVIL PROCEDURE not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. 2. 10. which a person owes to another. Except as otherwise expressly ordered by the court. the names and residences of the mortgagor and the mortgagee. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE Q: What is judgment on foreclosure? A: It is the judgment of the court ordering the debtor to pay within a period not less than 90 days nor more than 120 days from the entry of judgment after ascertaining the amount due to the plaintiff (Sec. Q: What is foreclosure sale? A: When the defendant fails to pay the amount of the judgment within the period specified therein. Rule 67). MARTINEZ 151 . After the foreclosure sale has been effected. the plaintiff shall have the right to enter upon the property expropriated and to appropriate the same for the public use or purpose defined in the judgment or to retain possession already previously made in accordance with Sec 2. Rule 68). Rule 68). and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose (Sec 13. as determined in the judgment. Rule 68) Note: it is said that title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale. MASACAYAN & THEENA C. Upon the filing of such report. SABUGO & JOHN HENRY C.3. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 7. if they so desire (Sec. with notice that they are allowed ten (10) days within which to file objections to the findings of the report.

JR. 2. The court rendered judgment directing Arlene to pay the outstanding account of P1. KATRINA NADINE G. SY. who did not assume personal liability of the loan. 2. JUDGE CESAR D. However. GRETCHEN C. SR. Claim of the person foreclosing the property. EDELISE D. 1. QUIAMBAO. YRIZ TAMIE A. ALBAÑA. however. 1484. Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her friend Gretchen who. MICHAEL ANGELO V. 3. ASST. RHONDEE E. the same shall be paid to junior encumbrances in the order of their priority. (2003 Bar Question) (1) INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT Q: What are the instances when the courts cannot render deficiency judgment? A: When the: 1. 4. CONTRIBUTORS: VICENTE JAN O. MENDOZA. e. AIDA. Rule 86. AQUINO.000 against Arlene and Gretchen. MIJARES. Mortgagor dies. the same shall be paid to the mortgagor or any person entitled thereto (Sec. In judicial foreclosure by banks such as GAP. There must be a notice of hearing. Resolve the deficiency claim of the bank. Claims of junior encumbrancers in the order of their priority. HERRERA. MARA KHRISNA CHARMINA F. It also filed a deficiency claim for P800. MANANQUIL. NCC). Residue goes to the mortgagor or his authorized agent. 47 of the General Banking Law of 2000. and the confirmation of the sale was registered with the Registy of Deeds on January 5. SHERY PAIGE A. cannot be filed ex parte. the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming sale. 7. GAP filed an ex-parte motion with the court for the issuance of a writ of possession to oust Gretchen from the land. DONNA GRAGASIN. and Mortgagee is a third person but not solidarily liable with the debtor. Mortgagor is a non-resident and is not found in the Philippines. LIM. No appeal was taken by Arlene. The deficiency claim of the bank may be enforced against the mortgage debtor Arlene.5 million (principal plus interest) to GAP. UNICA AMOR R. The sale was confirmed by the court. A: 1. 3. MARIANO. TERESE RAY-ANNE O. but it cannot be enforced against Gretchen. 4) Q: What claims shall be satisfied from the proceeds of the public sale of the mortgaged property (in order)? A: 1. STAMARIA. 2.UST GOLDEN NOTES 2011 paying off the mortgage debt due. then it is not procedurally feasible. 2. PINEDA. If there be any further balance after paying them or if there be no junior encumbrances. DEFICIENCY JUDGMENT Q: What is deficiency judgment? A: It is the judgment rendered by the court holding the defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt. PLATON III. the land was sold to GAP for P1. KRISTINE P. Resolve the motion for the issuance of a writ of possession. On January 10. 2002. The deficiency claim was opposed by Arlene and Gretchen. MA. DIANE CAMILLA R. BORJA. JUSTICE OSCAR C. however. or any other person entitled to it. Q: What are the instances when the court cannot render deficiency judgment? A: where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendency of the proceedings was outside the Philippines. did not assume personal liability for the loan. SUBJECT HEADS: DARRELL L... It is by nature in personam and jurisdiction over the person is mandatory. Arlene failed to pay the judgment debt within the period specified in the decision. 2003.2 million. Arlene defaulted and GAP filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and Gretchen as defendants. the owner of the mortgaged property. SUBJECT HEAD: ANGELI P. under Sec. At the foreclosure sale. BAGANG. LANTIN. ROSALES . the mortgagee may file his claim with the probate court under Sec. 4. The motion for writ of possession. MEMBERS: AKEMI B. RONN ROBBY D. JUSTICE JAIME M. DUMLAO. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL FORECLOSURE Q: Distinguish judicial extrajudicial foreclosure. FLORES. the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property within 1 year after the sale (or registration of the sale). Case is covered by the Recto Law (Art. JUANENGO. unless there is attachment. A: Judicial Foreclosure Governed by Rule 68 Extrajudicial Foreclosure Governed by Act 3135 foreclosure from 152 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. d. Costs incurred in the sale of property.

July 5. After judgment – makes the judgment therein void because co-owners are indispensable parties. (Sec. a. 1. Right to compel the partition. Note: There is no right of redemption in judicial foreclosure sale after the confirmation of sale except those granted by banks or banking institutions in favor of non-judicial persons as provided by the General Banking Act (Government Insurance System v. L-11990. Rule 69) or of an estate composed of personal property. Because of this rule. 494). (Movido v. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or both real and personal property (Sec. 1987) No court intervention necessary Mortgagee is given a special power of attorney Mortgagee need not be in the mortgage contract given a special power of to foreclose the attorney. The rule allowing partition originates from a well-known principle embodied in the Civil Code. The defendants are all the co-owners. he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding. No. ACADEMICS CHAIR: LESTER JAY ALAN E. Note: A mortgagee may bring a personal action for the amount due. The pendency of the action stops the running of the right of redemption. No. Said right continues after perfection of an appeal until the decision of the 2. May 29. his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriff’s certificate of foreclosure sale Governed by Secs. 21. PARTITION Q: What is partition? A: It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property. Q: What is the effect of non-inclusion of a coowner in an action for partition? A: 1. instead of a foreclosure suit. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. whichever is earlier. Rule 39 Q: What are the requisites of a valid partition? A: 1. G. SABUGO & JOHN HENRY C.R. 29-31. EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION Q: Distinguish equity of redemption from right of redemption. the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. Rule 69) f. Before judgment – not a ground for a motion to dismiss. WHO MAY FILE A COMPLAINT. 45322. G. in which case. G. A: Equity of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation Governed by Rule 68 Right of Redemption Right of the debtor. 47 of the General Banking Act provides that in case of extrajudicial foreclosure. 1989). 13. Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded. The remedy is to file a motion to include the party. In extrajudicial foreclosure. v. MARTINEZ 153 . Aug. RFC. However. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. that no co-owner shall be obliged to remain the coownership. 1. the registration of the certificate of foreclosure sale which in no case shall be more than 3 months after foreclosure. 2. CFI of Iloilo. The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. juridical persons shall have the right to redeem the property until.CIVIL PROCEDURE There is only an equity of redemption except when the mortgagee is a bank Requires court intervention Right of redemption exists appeal. WHO SHOULD BE MADE DEFENDANT Q: Who may file and who should be made defendants? A: The action shall be brought by the person who has a right to compel the partition of real estate (Sec. Rule 69). and All other persons interested in the property must be joined as defendants (Sec.R. (Consolidated Bank and Trust Corp.It presupposes the existence of a coownership over a property between two or more persons. No. Sec. Note: It is commenced by a complaint. he may demand at any time the partition of the property owned in common (Art. mortgaged property in case of default. IAC. 73341.1. but not after. MASACAYAN & THEENA C. 1959) 11. Rule 69) 3.R.

MENDOZA. MEMBERS: AKEMI B. But they cannot impugn a partition already executed unless there has been fraud or in case it was made notwithstanding a formal opposition presented to prevent it. and Accounting or how to actually partition the property. if after trial it finds that the plaintiff has the right to partition (Sec. AQUINO. JUDGE CESAR D. LIM. the next stage is the appointment of commissioners. They will be barred if not set up in the same action pursuant to the rule against splitting a single cause of action. DONNA GRAGASIN. 596. RONN ROBBY D. Q: When is partition by agreement proper? A: The parties may make the partition among themselves by proper instruments of conveyance. shall be recorded in the registry of deeds of the place in which the property is situated (Sec. ASST. LANTIN. and such partition. 2.) b. Rule 69). If they do agree. 2. YRIZ TAMIE A. SUBJECT HEADS: DARRELL L. 12. the court shall then confirm the partition so agreed and such is to be recorded in the registry of deeds of the place in which the property is situated (Sec 2. MA. an adequate description of the real estate of which partition is demanded. MANANQUIL. HERRERA. profits and other income from the property which he may be entitled to. 2. AIDA. and that the plaintiff has a right to demand partition. e. SY. JUANENGO. Judgment as to the fruits and income of the property Judgment of partition (Riano. ROSALES . 2009 ed. COURT ACTION UPON COMMISSIONER’S REPORT Q: Can the appointment of commissioners be dispensed with in an action for partition? A: The appointment of commissioners is mandatory unless there is an extrajudicial partition between Q: What are the stages in an action for partition which could be the subject of appeal? A: 1. revoking previous contrary rulings on the matter. SHERY PAIGE A. if they agree among themselves. ALBAÑA. CONTRIBUTORS: VICENTE JAN O. STAMARIA. TERESE RAY-ANNE O. and shall join as defendants all other persons interested in the property (Sec. PARTITION BY COMMISSIONERS. Note: The court shall order the partition of the property among all the parties in interest. DIANE CAMILLA R. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION Q: What are the matters to be alleged in the complaint for partition? A: The plaintiff shall state in his complaint. the court will issue an order of partition. KRISTINE P. It directs the parties to partition the property by proper instruments of conveyance. MARIANO. MARA KHRISNA CHARMINA F. APPOINTMENT OF COMMISSIONERS. FLORES. KATRINA NADINE G. RHONDEE E.. p. the court shall then confirm the partition so agreed upon by all of the parties. If they do agree. if they agree among themselves. ORDER OF PARTITION AND PARTITION BY AGREEMENT Q: What is an order of partition? A: The order of partition is one that directs the parties or co-owners to partition the property Q: When does the court issue the order of partition? A: During the trial. UNICA AMOR R. that there is indeed a co-ownership among the parties. the nature and extent of his title. JUSTICE JAIME M.UST GOLDEN NOTES 2011 Note: Creditors or assignees of co-owners may intervene and object to a partition affected without their concurrence. BAGANG. PINEDA. SUBJECT HEAD: ANGELI P. (Sec. EDELISE D. GRETCHEN C. JR. SR. the court shall determine whether or not the plaintiff is truly a co-owner of the property. BORJA. together with the order of the court confirming the same. Civil Procedure: A Restatement for the Bar. thus. c. There always exist the possibility that the parties are unable to agree on the partition. Rule 69). Existence of co-ownership. He must also include a demand for the accounting of the rents. 1. Order determining the propriety of the partition 154 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. TWO (2) STAGES IN EVERY ACTION FOR PARTITION Q: What are the two aspects of partition proceedings? A: 1. and that a partition is not legally proscribed thus may be allowed. MIJARES. Note: During the trial. Rule 69). Rule 69). JUSTICE OSCAR C. PLATON III. d. It was held that this order of partition including an order directing an accounting is final and not interlocutory and hence. If the court so finds that the facts are such that a partition would be in order. the court shall determine whether or not the plaintiff is truly a co-owner and there is co-ownership and that partition is not legally proscribed. DUMLAO. QUIAMBAO. Rule 69) 2. COMMISSIONER’S REPORT. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. MICHAEL ANGELO V. These cannot be demanded in another action because they are parts of the cause of action for partition. 3. the court will issue an order of partition.. Thus. appealable.

Rule 69). the action is to recover possession founded upon illegal possession from the beginning. DEFINITIONS AND DISTINCTION Q: What should the judgment contain and its effects? A: The judgment shall state definitely. Dec. but who detains the ACADEMICS CHAIR: LESTER JAY ALAN E. copies of which shall be served to the clerk of court upon all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report. 11. Concina. 1969) 3. the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment. 1) Q: What are the requisites of a valid forcible entry? A: 1. the particular portion of the real estate assigned to each party. 27. 2. Also. G. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. They shall make full and accurate report to the court of all their proceedings as to the partition. strategy. and Does the plaintiff ask for the restoration of his possession (Dizon v. a. No. Upon the filing of such report. A. intimidation. (Sec. or of both real and personal property. 494). JUDGMENT AND ITS EFFECTS a. or reject the report and render judgment that shall effectuate a fair and just partition. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. by metes and bounds and adequate description. If the property is sold and the sale confirmed by the court. or stealth. threat. strategy. b. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court. threat. strategy. h. and the expenses of such recording shall be taxed as part of the costs of the action (Sec.CIVIL PROCEDURE the parties. threat or stealth. 1) 2. A person is deprived of possession of any land or building by force. 13. and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. g. Note: It is commenced by a verified complaint. and Action is brought within 1 year from the unlawful deprivation. free from the claims of any of the parties to the action. or stealth. the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. if they so desire. Rule 69). Q: What are the questions to be resolved in an action for forcible entry? A: 1. Who has actual possession over the real property. Was the possessor ousted therefrom within one year from the filing of the complaint by force. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. the action for partition cannot be barred by prescription 12. may recommit to the commissioners for further proceedings. They have the power to effect the partition but not to inquire into question of ownership or possession Note: if parties cannot agree. PARTITION OF PERSONAL PROPERTY Q: What is the rule on partition of personal property? Q: What is forcible entry? A: It is entry effected by force. FORCIBLE ENTRY AND UNLAWFUL DETAINER f. intimidation. MARTINEZ 155 . The court may upon hearing accept the report and render judgment in accordance with the same. and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments. SABUGO & JOHN HENRY C. the court shall appoint not more than 3 commissioners of competent and disinterested persons to make partition. PRESCRIPTION OF ACTION Q: What is the rule on prescription in an action of partition? A: Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or coheirs as long as there is a recognition of the coownership expressly or impliedly (Art.R. Q: What is unlawful detainer? A: It is unlawful detention by a person who has acquired possession rightfully. intimidation. in so far as the same may be applicable (Sec. The provisions of this Rule shall apply to partitions of estates composed of personal property. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 23756. MASACAYAN & THEENA C. the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser. (Sec.

13. Q: What are the requisites of a valid unlawful detainer? A: 1. DONNA GRAGASIN. YRIZ TAMIE A. Action is brought within 1 year after such unlawful deprivation or withholding of possession.Quiambao. All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC. SUBJECT HEAD: ANGELI P. DUMLAO. the action is personal and the amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC. MARIANO.000 or P50. MARA KHRISNA CHARMINA F. MENDOZA. JR. (Sec. 1949). Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner (Peran v. GR No. the possession of the property under his contract with the plaintiff. MTC has jurisdiction if the value of the property does not exceed the above amounts.R. RTC has jurisdiction if the value of the property exceeds P20. and Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. MA. Note: If only rents or damages are claimed in an ordinary action. RONN ROBBY D. STAMARIA. Q: Distinguish forcible entry from unlawful detainer.R. No previous demand for the defendant to vacate the premises is necessary. TERESE RAY-ANNE O. FLORES. JUSTICE OSCAR C. 2007) 156 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q: Does the amount of rents and damages prayed for in an action for forcible entry and unlawful detainer affect the jurisdiction of the courts? A: No. HERRERA. LIM. MANANQUIL. No. Q: Is formal contract a prerequisite in unlawful detainer? A: The existence of a formal contract is not necessary in unlawful detainer. ROSALES . JUDGE CESAR D. MIJARES. JUANENGO. 1) force. KRISTINE P. AIDA. MICHAEL ANGELO V. DIANE CAMILLA R. 1983). 164305. 3. the land. A: Forcible Entry (Detentacion) Possession of the land by the defendant is unlawful from the beginning as he acquires possession by Unlawful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to Note: Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Sudaria v. CFI of Sorsogon. GRETCHEN C. BAGANG. UNICA AMOR R. Possession of any land or building is unlawfully withheld from a lessor. Oct. EDELISE D. G. Note: It is commenced by a verified complaint. ASST. QUIAMBAO. there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. BORJA. 57259..000 in Metro Manila. No. ALBAÑA. or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied.UST GOLDEN NOTES 2011 property after the right to keep possession has ended... RHONDEE E. KATRINA NADINE G. b. Even if there is no formal contract between the parties. L-1950. The 1 year period is Period is counted from the generally counted from date of last demand or last the date of actual entry on letter of demand. JUSTICE JAIME M. PINEDA. The amount of rents and damages claimed does not affect jurisdiction of the MTCs because the same are only incidental or accessory to the main action (Lao SengHian v. strategy. May 16. vendor. RTC has jurisdiction if the value of the property exceeds P20. Accion Reinvindicatoria An action for the recovery of ownership. Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with the lease contract. Accion Publiciana A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year. Lopez.000 or P50. SUBJECT HEADS: DARRELL L. deprived thereof by the defendant. AQUINO. which necessarily includes the recovery of possession. LANTIN. SY. vendee. The plaintiff must prove that he was in prior The plaintiff need not physical possession of the have been in prior physical premises until he was possession. PLATON III. MEMBERS: AKEMI B. threat or stealth. 1) 2. intimidation. MTC has jurisdiction if the value of the property does not exceed the above amounts. CONTRIBUTORS: VICENTE JAN O. SHERY PAIGE A. DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: What are the possessory actions on real property? A: Accion Interdictal Summary action for the recovery of physical possession where the disposses-sion has not lasted for more than 1 year. SR.000 in Metro Manila. November 20. (Sec. G.

R. and the answers thereto. 118284. however. Q: In what form should the demand be made? A: The demand may be in the form of a written notice served upon the person found in the premises. h. express or implied. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. or any person or persons claiming under them. JURISDICTION IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: In which court accion publiciana and accion reinvindicatoria filed? A: The actions of forcible entry and unlawful detainer are within the exclusive and original jurisdiction of the MTC. SABUGO & JOHN HENRY C. or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession. The requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso facto render his possession of the premises unlawful. may. at any time within one (1) year after such unlawful deprivation or withholding of possession. f. XPN: When the decision of the MTC is appealed to the RTC. intimidation. threat. It is the failure to comply with the demand that vests upon the lessor a cause of action. 33[2]. vendee. e. PLEADINGS ALLOWED Q: What are the pleadings allowed? A: The only pleadings allowed to be filed are the complaint. Aquino. or the legal representatives or assigns of any such lessor. d. that the demand upon a tenant may be oral (Jakihaca vs. together with damages and costs (Sec. strategy. vendee. BP 129. 181 SCRA 67). 2). in accordance with the provisions of Rule 58. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 3. The demand may also be made by posting a written notice on the premises if no person can be found thereon (Sec. Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses. All pleadings shall be verified (Sec. or other person. It has been ruled. G. vendor. vendor. Rule 70). c. Rule 70). MASACAYAN & THEENA C. or a lessor. AGAINST WHOM THE ACTION MAY BE MAINTAINED Q: Who may institute the action? A: Subject to the provisions of the next succeeding section. 2). by virtue of any contract. No. MeTC and MCTC (Sec. 4. 1.CIVIL PROCEDURE Q: What rule should govern the proceedings of accion interdictal? A: GR: Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession or right to possession of property. July 5. to ACADEMICS CHAIR: LESTER JAY ALAN E. RA 7691) and shall be governed by the rules on summary procedure irrespective of the amount of damages or rental sought to be recovered (Sec. bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION Q: Can the court grant injunction while the case is pending? A: The court may grant preliminary injunction. g. 1996). ACTION ON THE COMPLAINT Q: What action will the court make upon receipt of the complaint? A: The court may. Rule 70). If no ground for dismissal is found. for the restitution of such possession. dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. the applicable rules are those of the latter court (Refugia v. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. an unlawful detainer case shall be commenced only after the demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 5. a person deprived of the possession of any land or building by force. MARTINEZ 157 . or stealth. CA. WHEN DEMAND IS NECESSARY Q: When is demand necessary? A: Unless there exists a stipulation to the contrary. from an examination of the allegations in the complaint and such evidence as may be attached thereto. compulsory counterclaim and crossclaim pleaded in the answer. WHO MAY INSTITUTE THE ACTION AND WHEN. Rule 70). it shall forthwith issue summons (Sec.

SUBJECT HEAD: ANGELI P. Q: What are the prohibited pleadings and motion under Rule 70? A: Prohibited pleadings and motions: 1. SY. and (b) The issue of ownership shall be resolved only to determine the issue of possession (Sec. Cruz. BORJA. and 3. justice or dignity of the court. 2. Perez vs. Ignacia vs. CONTEMPT Q: What is contempt? A: It is a defiance of the authority. 8. mandamus. Memoranda. present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. RA 7691). STAMARIA. JUSTICE JAIME M. Dimatulac. SR. TERESE RAY-ANNE O. LANTIN. MARIANO. EDELISE D. MA. FLORES. MANANQUIL. MARA KHRISNA CHARMINA F. Motion to declare the defendant in default. HERRERA. 2. Rule 70). MIJARES. Motion for extension of time to file pleadings. MENDOZA. CONTRIBUTORS: VICENTE JAN O. Reply. or for reopening of trial. the reasonable value of the use and occupation of the premises (Sec. the court may resolve the issue of ownership only under the following conditions: (a) When the issue of possession cannot be resolved without resolving the issue of ownership. File a supersedeas bond to pay for the rents. DUMLAO. PROHIBITED PLEADINGS Q: What is the nature of an action for forcible entry and unlawful detainer? A: Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Tubiano vs. j. No. within five (5) days from the filing of the complaint. the adjudged amount of rent due under the contract or if there be no contract. during the pendency of the appeal..UST GOLDEN NOTES 2011 prevent the defendant from committing further acts of dispossession against the plaintiff.R. PLATON III. or for reconsideration of a judgment. i. Third-party complaints. Petition for certiorari. G. MICHAEL ANGELO V. RESOLVING DEFENSE OF OWNERSHIP Q: In what instances may the court resolve issue of ownership? A: When the defendant raises the issue of ownership. 6. LIM. k. Motion for a bill of particulars. ASST. Rule 70). 3. RHONDEE E. or prohibition against any interlocutory order issued by the court. SHERY PAIGE A. KRISTINE P. 158 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 15. JUDGE CESAR D.If the defendant raises the question of ownership and the issue of possession cannot be resolved without deciding the question of ownership. UNICA AMOR R. affidavits or any other paper. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter. BAGANG. Riazo. 335 SCRA 531). QUIAMBAO. 19. Interventions 13. MEMBERS: AKEMI B. 1985) Note: It is commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein (Sec. the issue of ownership shall be resolved only to determine the issue of possession (Sec. 19. 7.. Petition for relief from judgment. 404 SCRA 487). or failure to comply with section 12. DIANE CAMILLA R. 3. ALBAÑA. RONN ROBBY D. L-24864. JR. 401 SCRA 742. Perfect an appeal. The court shall decide the motion within thirty (30) days from the filing thereof (Sec. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved (Rural Bank of Sta. KATRINA NADINE G. 12. Nov. 4. 16). SUBJECT HEADS: DARRELL L. Deposit periodically with the RTC. AIDA. or prejudice litigant or their witnesses during litigation (Halili v. such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with. JUSTICE OSCAR C. AQUINO. 5. SUMMARY PROCEDURE. 11. Dilatory motions for postponement. CIR. DONNA GRAGASIN. Motion for new trial. A possessor deprived of his possession through forcible entry or unlawful detainer may. YRIZ TAMIE A. JUANENGO. These action shall both fall under the coverage of the Rules of Summary Procedure irrespective of the amount of damages or unpaid rental sought to be recovered (Sec. HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT Q: How is the execution of judgment stayed? A: Defendant must take the following steps to stay the execution of the judgment: 1. ROSALES . 4). Rule 70). 9. GRETCHEN C. PINEDA. Note: The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. damages and costs accruing down to the time of the judgment appealed from. 10. 3.

there can be no appeal. SABUGO & JOHN HENRY C. process. Civil or Criminal. Disobedience of or resistance to a lawful writ.000 or imprisonment not exceeding 10 days or both. An order of direct contempt is not immediately executory or enforceable.000 or imprisonment not exceeding 1 month or both Remedy: Appeal (by notice of appeal) Constructive contempt State is the real prosecutor Q: What are the grounds of contempt? A: 1. Direct contempt a. Remedy:Certiorari or prohibition Contempt in facie curiae Indirect Contempt Not committed in the presence of the court. RTC – fine not exceeding P2. e. a person adjudged in direct contempt by any court ACADEMICS CHAIR: LESTER JAY ALAN E. Proof required is proof beyond reasonable doubt. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Q: Distinguish direct from indirect contempt? A: Direct Contempt Committed in the presence of or so near a court. Lawyer Mendoza was placed in prison immediately. b. MASACAYAN & THEENA C. of the Rules of Court. KINDS OF CONTEMPT Q: What are the kinds of contempt? A: 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. or judgment of a court or unauthorized intrusion to any real property after being ejected. 2. Q: Lawyer Mendoza. MTC – fine not exceeding P5. 1) Indirect contempt a. Direct or indirect. 2. c. or both. A: Criminal Contempt Punitive in nature Purpose is to preserve the court’s authority and to punish disobedience of its orders Intent is necessary Civil Contempt Remedial in nature Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the preservation of the rights of private persons Intent is not necessary Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the right to be protected Proof required is more than mere preponderance of evidence If judgment is for respondent. Under Sec. of a person or property in the custody of an officer. Refusal to be sworn or to answer as a witness. depending on the nature and effect of the contemptuous act. Is Judge Tagle correct? A: No. counsel for the accused in a criminal case. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Lawyer Mendoza manifested his readiness to post a bond and to appeal the order by certiorari to stay its execution but Judge Tagle said that the order is immediately executory. Rescue or attempted rescue. f. Punished after being charged and heard IF COMMITTED AGAINST: 1. Rule 71. The contemner must be afforded a reasonable remedy to extricate or purge himself of the contempt. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings b. Any improper conduct tending to degrade the administration of justice (Sec. RTC – FINE NOT EXCEEDING P30. 2. MTC – fine not exceeding P200 or imprisonment not exceeding 1 day. Summary in nature If committed against: 1. order. according to the manner of commission.CIVIL PROCEDURE a. If accused is acquitted. or to subscribe an affidavit or deposition when lawfully required to do so (Sec. was cited for direct contempt by Judge Tagle and was sentenced to 10 days imprisonment. MARTINEZ 159 . there can be an appeal 2. Disrespect towards the court c. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 3) g. Offensive personalities toward others.000 OR IMPRISONMENT NOT EXCEEDING 6 MONTHS OR BOTH Q: Distinguish criminal contempt from civil contempt. or d. Abuse or any unlawful interference with the proceedings not constituting direct contempt. d. Failure to obey a subpoena duly served. Assuming to be an attorney or an officer of the court without authority. 2.

000 pesos or imprisonment not exceeding one month. No. or both (Sec. the penalty is a fine not exceeding 2. AIDA. JR. orders and mandates of the courts. RHONDEE E. KRISTINE P. PINEDA. PENALTY Q: What is theremedy against direct contempt and its penalty? A: 1. QUIAMBAO. MA. This bond is conditioned upon his performance of the judgment should the petition be decided against him. the penalty imposed shall depend upon the provisions of the law which authorizes a penalty for 2. STAMARIA. SUBJECT HEADS: DARRELL L. JUANENGO. 1)’.Tan. MENDOZA. The punishment for indirect contempt depends upon the level of the court against which the act was committed. the penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1) day. Without such guarantee. SY. or both. The execution of the judgment shall be suspended pending resolution of such petition. The suspension however shall take place only if the person adjudged in contempt files a bond fixed by the court which rendered the judgment. MARIANO. 7). MARA KHRISNA CHARMINA F. or both. Q: What is the nature of contempt power? A: The power to punish for contempt is inherent in all courts.000 pesos or imprisonment not exceeding 6 months. The penalty for direct contempt depends upon the court which the act was committed. ROSALES . (a) Where the act was committed against an RTC or a court of equivalent or higher rank. PENALTY Q: What is theremedy against indirect contempt and its penalty? A: 1. JUDGE CESAR D.. he may be imprisoned by order of the court concerned until he performs it. His remedy is a petition for certiorari or prohibition directed against the court which adjudged him in direct contempt (Sec. July 27. BORJA. Q: What are the dual aspects on the power to punish contempt? A: 1. the execution of the judgment for direct contempt shall be suspended. TERESE RAY-ANNE O. JUSTICE JAIME M. 85 Phil. PLATON III. and Secondarily. SUBJECT HEAD: ANGELI P. LANTIN. said institution would be resting on shaky foundation (Cornejovs. KATRINA NADINE G. and. Aside from the applicable penalties. his compulsory performance of some act or duty required of him by the court and which he refuses to perform. 2). RONN ROBBY D. a.M. to the due administration of justice. DUMLAO. c. BAGANG. If the act constituting direct contempt was committed against an RTC or a court of equivalent or higher rank. ALBAÑA. PURPOSE AND NATURE OF EACH Q: What is the purpose of the power to contempt? A: The reason for the power to punish for contempt is that respect of the courts guarantees the stability of their institution. b. provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him (Tiongco v. (c) Where the act was committed against a person or entity exercising quasi-judicial functions.. ASST. d. its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments. UNICA AMOR R. Primarily. MEMBERS: AKEMI B. but may avail himself of the remedies of certiorari or prohibition. the proper punishment of the guilty party for his disrespect to the courts. 772). CONTRIBUTORS: VICENTE JAN O. FLORES. (b) Where the act was committed against a lower court. c. 2006). Judge Salao. MICHAEL ANGELO V. MIJARES. Pending the resolution of the petition for certiorari or prohibition. EDELISE D. MANANQUIL. REMEDY AGAINST DIRECT CONTEMPT. he may be punished by a fine not exceeding 30. TRO or status quo order. A. HERRERA. AQUINO.000 pesos or imprisonment not exceeding 10 days. 2. RTJ-06-2009. DIANE CAMILLA R. he may be punished by a fine not exceeding 5. If the act constituting direct contempt was committed against a 160 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. or both. YRIZ TAMIE A. consequently. SHERY PAIGE A. b. If the contempt consists in the refusal or omission to do an act which is yet within the power of the respondent to perform. if the contempt consists in the violation of a writ of injunction. SR. he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved (Sec. A person adjudged in direct contempt may not appeal therefrom. lower court. LIM. DONNA GRAGASIN. GRETCHEN C. JUSTICE OSCAR C.UST GOLDEN NOTES 2011 may not appeal therefrom. REMEDY AGAINST INDIRECT CONTEMPT.

Rule 71) Quasi-judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper RTC. 6. and To be heard by himself or counsel. The second mode applies if the contemptuous act was committed not against a court or a judicial officer with authority to punish contemptuous acts. Leviste. settled is the rule that a contempt proceeding is not a civil action. the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. Finding that the said documents were indeed forged and falsified.R. G. 2. No. A charge in writing to be filed. An opportunity for the person charged to appear and explain his conduct. Q: Ray. however. SABUGO & JOHN HENRY C.R. However. Ray and Atty. G. in turn. Velasco filed a motion for bail and a motion to lift the order of arrest. Feb. Here the use of falsified and forged documents is a contumacious act. G. and an opportunity has been given to the accused to be heard by himself and counsel. through Atty. The appeal will not however have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. It is not within their jurisdiction and competence to decide the indirect contempt cases. HOW CONTEMPT PROCEEDINGS ARE COMMENCED Q: How may an action for indirect contempt be commenced? A: 1.CIVIL PROCEDURE contempt against such persons or entities. is one perpetrated outside of the sitting of the court. Velasco for direct contempt and ordered them to serve 10 days of detention at the Municipal Jail. 1982). following Sec. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction. filed a complaint for quieting of title against Chiz. Note: The first procedure applies only when the indirect contempt is committed against a court or judge possessed and clothed with contempt powers. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against (Sec.. 3. unless he is guilty of conspiracy with any one of the parties in violating the court’s orders (DesaEnt. By order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt (motuproprio). it constitutes indirect contempt not direct contempt.R. No. No. Direct contempt is a contumacious act done facie curiae and may be punished summarily without hearing. 30. 1984) The court does not declare the respondent in default since the proceeding partakes the nature of a criminal prosecution (Fuentes v. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SEC. No. v. L-45430. Oct. L-47363. 4). merely constitutes indirect contempt. 1982). Thus. He should have conducted a hearing with notice to Ray and Judge 2. Indirect or constructive contempt. MASACAYAN & THEENA C. e. Judge Victoria cited Ray and Atty.R. Q: May a non-party be held for contempt? A: No. Velasco were forged and falsified. Q: What are the procedural requisites before the accused may be punished for indirect contempt? A: 1. Rule 71 shall apply suppletorily (Sec 12. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Thus. interposed the defense that the documents relied upon by Ray and Atty. 28. Inc. more so where the falsity of the document is not apparent on its face. Sept. But they were denied outright by Judge Victoria. 167988. Moreover. acontemner may be punished only after a charge in writing has been filed. The imputed use of a falsified document. L-59072. 11). Is Judge Victoria correct? A: No. 25. Chiz. 2007) NOTE: The rules on contempt under Rule 71 apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities ACADEMICS CHAIR: LESTER JAY ALAN E. Apr. Thus. Barnes. (2) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. Velasco. Go. Rule 71. MARTINEZ 161 . (Nazareno v. 3. G. (Regalado v. or By a verified petition with supporting particulars and certified true copies of the necessary documents and papers (independent action) (Sec. the judge erred in declaring summarily that Ray and Judge Velasco are guilty of direct contempt and ordering their incarceration. and as such is subject to such defenses as the accused may raise in the proper proceedings. pursuant to law.

Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in the proper RTC. QUIAMBAO. MARIANO. obstruct. G. which the contemnor refuses to obey although able to do so. Disobedience of or resistance to a lawful writ. CONTRIBUTORS: VICENTE JAN O. Note: The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from the need to compel performance of the orders or decrees of the court. SUBJECT HEAD: ANGELI P. ALBAÑA. the only remedy left for the court is to use force to bring the person or party before it.R. 3. The RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed (Sec. and acting as such without authority. JUSTICE JAIME M. EDELISE D. UNICA AMOR R. MICHAEL ANGELO V. STAMARIA. MA. MEMBERS: AKEMI B. YRIZ TAMIE A. KRISTINE P. It is not within their jurisdiction and competence to decide the indirect contempt cases. he may be imprisoned by order of the court concerned until he performs it. or attempted rescue. When a person or party is legally and validly required by a court to appear before it for a certain purpose. including the act of a person who. since it constitutes an improper conduct tending to impede the administration of justice. PLATON III. GRETCHEN C. Formoso. JR.UST GOLDEN NOTES 2011 Velasco (Judge Espaool v. to impede. FLORES. for the purpose of executing acts of ownership or possession. LIM. CONTEMPT AGAINST QUASI-JUDICIAL BODIES Q: What is the rule on contempt against quasijudicial bodies? A: The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law. No. In effect. DONNA GRAGASIN. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule. after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction. MENDOZA. 3. AQUINO. Note: Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. LANTIN. JUANENGO. order. DIANE CAMILLA R. h. MARA KHRISNA CHARMINA F. DUMLAO. and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel. JUDGE CESAR D. ROSALES . directly or indirectly. or degrade the administration of justice. Rule 71. Assuming to be an attorney or an officer of a court. Any improper conduct tending. 6. Failure to obey a subpoena duly served. enters or attempts or induces another to enter into or upon such real property. 162 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 2. and when that requirement is disobeyed. 3). Rule 71 shall apply suppletorily. ASST. 2007). JUSTICE OSCAR C. MANANQUIL. or judgment of a court. 150949. it is within the power of the person adjudged guilty of contempt to set himself free. HERRERA. TERESE RAY-ANNE O. process. 5. MIJARES. SHERY PAIGE A. SY. WHEN IMPRISONMENT SHALL BE IMPOSED Q: When shall imprisonment be imposed? A: When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform. SUBJECT HEADS: DARRELL L. g.. PINEDA. or in any manner disturbs the possession given to the person adjudged to be entitled thereto. KATRINA NADINE G. SR. 4. 12). RHONDEE E.. 7. Indefinite incarceration may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power. AIDA. RONN ROBBY D. Misbehavior an officer of a court in the performance of his official duties or in his official transactions. The rescue. a person guilty of any of the following acts may be punished for indirect contempt: 1. ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT Q: What are the acts which are deemed punishable as indirect contempt? A:After a charge in writing has been filed. of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. BAGANG. June 21. f. BORJA.

Rule 1) NOTE: It is a proceeding in rem.defendant in 1 action. SPECIAL PROCEEDINGS Q: What is Special Proceeding? A: It is a remedy by which a party seeks to establish a status. If inhabitant (resident) of the Philippines (whether citizen or alien). Unclaimed deposits (for 10 years). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. litigation expenses and costs Venue 1. If resident.court of any province/ city wherein he had estate Rules 73-90 Settlement of Estate of Deceased Persons 2. ACADEMICS CHAIR: LESTER JAY ALAN E.RTC of the city/ province where the bank is located NOTE: All banks located in 1 province where the court is located may be made party. 1. (Sec. while some are initiated by petition Issues are determined by law Not adversarial Not based on a cause of action (except habeas Corpus) Some special civil action have no cause of action Q: What are the subject matters of special proceedings? A: Special Proceeding Jurisdiction RTC.000 NOTE: MTC jurisdiction is exclusive of interest.Gross value of the estate does not exceed 400. a right or a particular fact.000 (Manila) MTC.resident) of foreign country. or fact May involve only one party – only petitioner Governed by special rules. 3(c). status.Court of the province/ city where the deceased resides at the time of death Inhabitant (non. and parties respond through an answer Heard by courts of general jurisdiction Issues or disputes are stated in the pleadings of the parties Adversarial Based on a cause of action Special Proceeding Involves the establishment of a right.RTC where the land lies in whole or in part 3.Gross value of the estate exceeds 400.place where the deceased last resided b. Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.place where he had estate 2.SPECIAL PROCEDINGS IV.000/ 500. supplemented by ordinary rules Initiated by a petition and parties respond through an opposition Heard by jurisdiction courts of limited Special Civil Action Civil Action subject to specific rules. MARTINEZ 163 . supplemented by special rules Initiated by a complaint. MASACAYAN & THEENA C. Rule 91 Escheat RTC Ordinary escheat proceedings: RTC a. A: Ordinary Action To protect or enforce a right or prevent or redress a wrong Involve 2 or more parties – plaintiff and defendant Governed by ordinary rules. damages of whatever kind.If non-resident. Involves two or more parties Ordinary rules apply primarily but subject to specific rules Some are initiated by complaint. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. SABUGO & JOHN HENRY C.000/ 500. Reversion of land to the State for violation of the Consitution/ Laws. attorney’s fees.

BAGANG. ASST. SUBJECT HEAD: ANGELI P.M.UST GOLDEN NOTES 2011 RTC-Gross value of the estate exceeds 400. JUSTICE JAIME M. AQUINO. CONTRIBUTORS: VICENTE JAN O. STAMARIA. No. ROSALES . If non-resident. MANANQUIL. ALBAÑA. DIANE CAMILLA R.does not exceed 400. TERESE RAY-ANNE O. 00-8-10-SC Rule 104 RTC RTC RTC SEC Local civil general registry/Consul RA 9048 Rules 9297. GRETCHEN C. R.000/ 500. 03-0205-SC A. SY. MTC in the province or city in case there is no RTC judge. No. UNICA AMOR R.M. No. SB only in aid of its appellate jurisdiction Where the aggrieved party is detained (RTC) 164 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. BORJA. RHONDEE E. HERRERA. CA. SUBJECT HEADS: DARRELL L. PLATON III. KATRINA NADINE G.000 MTC. KRISTINE P.000 of RTC RTC Where the will was allowed or where the property or portion thereof affected by the trust is situated Where such insane person may be found Where petitioner resides for 3 years prior to the filing of the petition Where the corresponding registry is located civil Rule 98 Trustees Hospitalization insane person Change of name Cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution of corporation Administrative correction of entry/change of first name or nickname Rule 101 Rule 103 Rule 108 Rule 107 A.M. MA. MARIANO. LIM. EDELISE D. A.000/500..place where minor/ incompetent has property Where the adopter resides Where the adoptee resides Where the adopter resides Where petitioner resides or where the minor may be found Where the child resides Domestic Adoption Rescission Adoption Inter-country Adoption Custody of Minors Judicial Approval of Voluntary Recognition of Minor Natural Children Summary Proceedings 1.. DONNA GRAGASIN. No. QUIAMBAO. 02-06-02-SC A.place where minor/ incompetent resides 2.M. LANTIN. SHERY PAIGE A. RTC. RONN ROBBY D.M. SR. MEMBERS: AKEMI B.A. MIJARES. JR. where he may be found at the election of the petitioner Rule 102 SC. JUANENGO. Petitions on Foster care and Temporary Custody Declaration of Nullity of Marriage Cases of Domestic Violence Against Women and Children Habeas Corpus of Family Court Family Court Family Court or the InterCountry Adoption Board Family Court Rule 105 Family Court Family Code Where the petitioner resides or where the child resides if it involves minors Actions mentioned in the Family Courts Act Family Court 2. JUDGE CESAR D. FLORES. MARA KHRISNA CHARMINA F. JUSTICE OSCAR C. MENDOZA. AIDA. PINEDA. 8369 3. YRIZ TAMIE A. If resident. DUMLAO. 02-6-02-SC A. Family Court Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent. No. MICHAEL ANGELO V. 02-6-02-SC Rule 99 Guardianship Family Court – In case of minors RTC – In cases other than minors Where the absentee resided before his disappearance Where principal office of the corporation is situated Where principal office of corporation is situated Local civil registry office where the record is kept/where the interested party is presently residing or domiciled 1.

No. omission or threat was committed Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent. Cases of domestic violence against women and Publication of Order of Hearing Once a week for 2 consecutive weeks Once a week for 3 consecutive weeks Once a week for 3 consecutive weeks Note: The declaration of absence shall not take effect until six (6) months after its publication in a newspaper of general circulation. at the option of the petitioner Where the unlawful act. SABUGO & JOHN HENRY C. SC RTC. 03-04-04SC A. Petitions on foster care and temporary custody 2. act or omission was committed or any of its elements occurred Where the petitioner or respondent resides. 07-9-12-SC Habeas Corpus in Relation to Custody of Minors Writ of Amparo Where the petitioner resides or where the minor may be found Where the threat. No.SPECIAL PROCEDINGS A. 02-11-11SC Legal Separation Family Court Q: What is the publication requirement in special proceedings? A: Special Proceeding Administrative change of first name or nickname Corporate rehabilitation Settlement of estate of deceased persons Judicial change of name Judicial cancellation or correction of entries in the civil registry Domestic adoption Inter-country adoption Voluntary dissolution of corporation (Except shortening of corporate term) Declaration of absence Escheat Guardianship Trustees Custody of minors Hospitalization of insane person Rescission of adoption Administrative cancellation or correction of entries Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan 1. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SB. No. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.M. No. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.M. CA. SB.M. or that which has jurisdiction over the place where the data or information is gathered.02-1110-SC Declaration of nullity of void marriage/Annulment of marriage Family Court A. CA or SC or any justice thereof A. MASACAYAN & THEENA C. 08-1-16-SC Writ of habeas data RTC. collected or stored. where he may be found at the election of the petitioner Family Court.M. No. No. 09-6-8-SC Writ of Kalikasan SC or any stations of CA A. Once a week for 6 consecutive weeks None ACADEMICS CHAIR: LESTER JAY ALAN E.M. where he may be found at the election of the petitioner Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent. MARTINEZ 165 . CA or SC or any justice thereof A.M.

ALBAÑA. ROSALES . service of summons may be through publication once a week for 2 consecutive weeks. SETTLEMENT OF ESTATE OF DECEASED PERSONS. WHICH COURT HAS JURISDICTION Q: Which court has jurisdiction over the estate of the deceased? A: Regional Trial Court Gross value of the estate exceeds 500. MIJARES. SUBJECT HEAD: ANGELI P. AIDA. KATRINA NADINE G. SY. JUSTICE OSCAR C.000 (within Metro Manila) or 400. Petitions on foster care and temporary custody 2. QUIAMBAO. LIM. HERRERA. UNICA AMOR R. General or special notice may be given. MENDOZA. SUBJECT HEADS: DARRELL L. JR. A: Resident Court of the province/city where the deceased resided at the time of death. GRETCHEN C. DUMLAO.000/400.. AQUINO. DONNA GRAGASIN. PLATON III.UST GOLDEN NOTES 2011 children Summary proceedings Note: In declaration of nullity or annulment of marriage or legal separation. BAGANG. BORJA. STAMARIA. MARA KHRISNA CHARMINA F.000 (outside Metro Manila) Metropolitan Trial Court Gross value of the estate does not exceed 500. YRIZ TAMIE A. FLORES.00 Q: State the rule on venue in judicial settlement of estate of deceased persons. VENUE AND PROCESSES 1. PINEDA. TERESE RAY-ANNE O. Biological parents/Solicitor General Adopter Biological parents. MARIANO. JUSTICE JAIME M. Cases of domestic violence against women and children Declaration of nullity of void marriage / Annulment of marriage Legal separation Escheat To whom notice must be given Executor/administrator/any interested party All persons interested on the trust On the person alleged to be insane and to the one having charge of him or any of his relatives Interested parties/Solicitor General Persons named in the petition/Solicitor General/Civil Registrar impleaded as respondent Heirs/legatees/devisees/creditors/other interested persons Creditors/Debtors Creditors Interested parties The minor if above 14 years of age/incompetent himself/Interested parties on the property of the ward. ASST. MANANQUIL. MEMBERS: AKEMI B. SHERY PAIGE A. JUDGE CESAR D.. LANTIN. RHONDEE E. CONTRIBUTORS: VICENTE JAN O. JUANENGO. MA. Q: Who should be notified in special proceedings? A: Special proceeding Settlement of estate of deceased persons Trustees Hospitalization of insane person Judicial change of name Judicial cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution of corporation Administrative correction of entry/ change of first name or nickname Guardianship Domestic Adoption Rescission of Adoption Inter-country Adoption Custody of Minors Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan Summary proceedings 1. if any/guardian Biological parents/guardian if any To the person to which the writ is directed Respondent Respondent Respondent Respondent and interested party Solicitor General/Public Prosecutor City/Provincial Prosecutor/ Respondent City/Provincial prosecutor/ Respondent None A. MICHAEL ANGELO V. SR. KRISTINE P. whether a citizen or alien Non-Resident Court of the province/city wherein he had the estate 166 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. RONN ROBBY D. EDELISE D. DIANE CAMILLA R.

LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. his actual residence or place of abode (Fule v. Handbook on Special Proceedings. October 26. when as in the case at bar. L. 3. Is Richard correct? A: Yes. 3.) The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. provided that no rights of third persons are prejudiced. EXTENT OF JURISDICTION OF PROBATE COURT Q: May probate courts determine issues of ownership in a proceeding for the settlement of estate of decedent? Explain. When all the parties are heirs of the decedent and they agreed to submit the issue of ownership to the probate court. pp. VENUE IN JUDICIAL SETTLEMENT OF ESTATE Q: What is venue? A: Under the Rules of Court. MASACAYAN & THEENA C. because probate courts are courts of limited jurisdiction. Santiago. 1976) and not his permanent legal residence or domicile. 2000). or by filing another petition for settlement in a proper court of concurrent venue (De Borja v. 2003 ed. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. May 30. G. Q: What constitutes residence? A: It is the personal. possession of the property itself is in the persons named in the title (Luy Lim v.R.R. 124715. if a property covered by Torrens title is involved. 1 of Rule 73. L-21938-39. 1949). No. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.) Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard in the inventory of the properties of the deceased Anna. May 29. L-40502. Nov. actual. attorney’s fees. If the question is one of collation or advancement. not certiorari or mandamus. and such waiver may occur by laches where a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss. physical habitation. G. Note: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Nos. A: GR: No. 29. the province where the estate of the deceased shall be settled (Cuenco v. G.1723.R. v. 1973) Q: Is venue waivable? A: Yes. MARTINEZ 167 . 24. the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action. XPNS: 1. CA. and in the absence of strong compelling evidence to the contrary. (Agpalo. If the parties consent to the assumption of jurisdiction by the probate court and no rights of third parties are prejudiced. Q: What is Jurisdiction? A: GR: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts (Sec. No. Provisionally. Tan. CFI. L-24742. for the sole purpose of including the property in the inventory. Richard opposed the inclusion arguing that the probate court cannot determine the issue of the ownership of the parcel of land inasmuch as the same was registered in his name. Hence institution in the court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. G. In probate proceedings. 1970). litigation expenses and costs. damages of whatever kind.SPECIAL PROCEDINGS 2. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval the Principle of Preferential ACADEMICS CHAIR: LESTER JAY ALAN E.R. 10-12. CA. XPN: CERTIORARI OR MANDAMUS should be filed when want of jurisdiction appear on the record of the case. Q: What is the remedy if Venue is improperly laid? A: GR: ORDINARY APPEAL should be filed. or 4. without prejudice to its final determination in a separate action. 2. Jan. SABUGO & JOHN HENRY C. XPN: Estoppel by Laches Note: The rule applies to both testate and intestate proceedings. particularly. Note: MTC jurisdiction is exclusive of interest. No. Wrong venue is a waivable procedural defect. CA. the presumptive conclusiveness of such title should be given due weight. 77 Phil 872).

(Benigno v. and the debts thereof paid. ALBAÑA. KRISTINE P. De Valera v.UST GOLDEN NOTES 2011 Q: What may the court do in the exercise of its probate jurisdiction? A: It may issue warrants and processes to compel the attendance of witnesses or carry into effect their orders and judgments and all other powers granted them by law. De Manalo v. PortugalBeltran. Q: Where should the estate be settled if the marriage is dissolved by death of either spouse or both? A: When the marriage is dissolved by the death of the husband or wife. BORJA. administered and liquidated. both proceedings may be consolidated if they were filed in the same court. 2005). The jurisdiction of a court as well as the concomitant nature of the action is determined by the averments in the complaint and not by the defenses contained in the answer. Rule 88).) Mere discovery of a document purporting to be the last will and testament of decedent after appointment of an administrator does not ipso facto nullify the letters of administration already issued until the will has been proven and allowed (Advincula v. JUDGE CESAR D. SR. To satisfy the claim in a summary proceedings of creditors or heirs who appear within two years from distribution. 16. Q: Can a declaration of heirship be made in an independent action? A: 1. CONTRIBUTORS: VICENTE JAN O. The residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue (Cuenca v. If the special proceeding had been instituted but had been finally closed and terminated. v. UNICA AMOR R. KATRINA NADINE G. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. SUBJECT HEADS: DARRELL L. AQUINO. JR. the community property shall be inventoried. 1973. No. 1970. ASST. FLORES. JUANENGO. Oct. TERESE RAY-ANNE O. The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. MARIANO. If both spouses have died. Sept. MICHAEL ANGELO V. DUMLAO. STAMARIA. DIANE CAMILLA R. 155555. 6. 2. it is found that the decedent had left a last will. (Sec. Orders the probate of the will of the decedent 2. G. CA 53 SCRA 360.R. No. MARA KHRISNA CHARMINA F. If the special proceedings are pending. LANTIN. in the testate or intestate proceedings of the deceased spouse.) Testate proceedings take precedence over intestate proceedings for the same estate. Aug. 99 Phil 413). and 3. LIM.. or if there are no special proceedings filed but there is a need to file one. 1974). 19. To satisfy the contributive share of the devisees. an administrator had already been appointed (Uriarte v.. 2. RONN ROBBY D. QUIAMBAO. 4. 15. RHONDEE E. then the determination of heirship should be raised and settled in said special proceedings. To enforce payment of the expenses of partition (Sec. G. then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of properties belonging to the estate of the deceased (Portugal and Portugal. 13. 349 SCRA 135).R. L-38036. de la Peña. proceedings for the probate of the latter should replace the intestate proceedings even if at that state.R. 3. HERRERA. SY. Rule 142. POWERS AND DUTIES OF PROBATE COURT Q: What are the powers and duties of a Probate Court? A: In probate proceedings. Rule 73) Q: May the probate court issue a writ of execution? A: GR: No. ROSALES . Rule 90). JUSTICE JAIME M. 4. It does not apply to siblings. the court: 1. (Vda. legatees and heirs when the latter had entered prior possession over the estate (Sec. Grants letters administration 168 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. SHERY PAIGE A. MIJARES. because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. Hon. 33 SCRA 252. MANANQUIL. 1932) Notes: 1. Ofilada. 2. MEMBERS: AKEMI B. SUBJECT HEAD: ANGELI P. GRETCHEN C. CFI. PLATON III. or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening. XPNS: 1. Teodoro. CA. EDELISE D. PINEDA. DONNA GRAGASIN. L-27526. If in the course of the intestate proceedings. parents and child or other relatives no matter how close. No. (Sec. G. MA. the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. BAGANG. 2. JUSTICE OSCAR C. AIDA. 3. YRIZ TAMIE A. Rule 73) Note: If separate proceedings have been instituted for each estate. 3. Jr. MENDOZA. 4.

Note: The court acts as a trustee and as such must jealously guard the estate and see to it that it is wisely and economically administered. f. Distribute shares 3. c. Hears and approves claims against the estate of the deceased 5. Validity of disinheritance effected by testator. EXTRAJUDICIAL SETTLEMENT AGREEMENT BETWEEN THE HEIRS Division of estate made through a public instrument or affidavit of adjudication Filing of the public instrument or affidavit of adjudication with the proper Register of Deeds Publication of notice of the fact of extrajudicial settlement once a week for three consecutive weeks in a newspaper of general circulation BY Personal property. Real property. Issue warrants and processes to secure attendance of witnesses 5.SPECIAL PROCEDINGS 3. Validity of the will (i. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.e. Orders payment of lawful debts 6. Directs the delivery of the estate to those entitled thereto.subject to a lien in favor of the creditors. SUMMARY SETTLEMENT OF ESTATES Q: Distinguish the procedure in extrajudicial settlement from summary settlement A: A. Heirs of the decedent. Determine and rule upon issues relating to settlement of the estate. d. formalities required by law) 2.000 ACADEMICS CHAIR: LESTER JAY ALAN E.file a bond equivalent to its amount. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. it is the court which will make provision for its payment May be instituted by any interested party even a creditor of the estate without the consent of all the heirs Amount of bond is to be determined by the court Amount of bond is equal to the value of personal property Q: What are the powers and duties of a probate court? A: To pass upon the issue regarding: 1. mortgage or any encumbrance of real estate 7. MASACAYAN & THEENA C. Whatever property in the inventory is conjugal or exclusive property of deceased spouse. and distribution of the estate 6. B. e. SABUGO & JOHN HENRY C. WHEN ALLOWED EXTRA JUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS No court intervention The value of the estate is immaterial SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE Requires summary adjudication Gross value of the estate must not exceed P10. MARTINEZ 169 . EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. Status of a woman who claims to be the lawful wife of the decedent . heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond 1. Determine who are the legal heirs 4. Validity if waiver of hereditary heirs. g. b. Matters incidental or collateral to the settlement and distribution of the estate. Recognition of natural child. Supervises and controls all acts of administration 4. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. such as administration. Allowed only in intestate succession There must be no outstanding debts of the estate at the time of the settlement Resorted at the instance and by agreement of all heirs Allowed in both testate and intestate succession Available even if there are debts. Authorizes sale. not dissipated. or h. Status of each heir. Orders the payment of taxes and other charges 8. liquidation. Determine the following: a.

Note: The amount of bond required under Section 2 is determined by the COURT whereas in Section 1 the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established by adjudication. ASST. It is a disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent. UNICA AMOR R. whether he died testate or intestate does not exceed P10. Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir. Left no will and no debts. Rule 74) Note: The same provision on the bond and lien also applies in summary settlement of estate. SR. SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE Petition for summary settlement to be filed in the MTC with an allegation that the gross value of the estate. QUIAMBAO. RONN ROBBY D. FLORES. it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v. a bond is required. reformation of the instrument may be compelled. PLATON III. 1947). and the heirs are all of age. DUMLAO.UST GOLDEN NOTES 2011 B. it is subject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be substituted by a bond. Even a private instrument. AIDA. and Of the minors are represented by their judicial or legal representatives duly authorized for the purpose. CONTRIBUTORS: VICENTE JAN O. KRISTINE P. MANANQUIL.. No. Dec. DONNA GRAGASIN. Mar. Q: What is a bond? Hearing to be held not less than 1 month nor more than 3 months from the date of last publication of notice A: It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims under Section 4. MEMBERS: AKEMI B. 1. JUSTICE JAIME M. Bautista. JUDGE CESAR D.000 Publication of notice once a week for 3 consecutive weeks. EDELISE D. AQUINO. Andal. SUBJECT HEAD: ANGELI P. Filed with the Register of Deeds. MARIANO. 23. ALBAÑA. Q: What is the effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs? A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. Note: In case of disagreement of heirs. 2. MIJARES. JR. Note: Public instrument is required in transfer and registration of title to the heirs. On the other hand. 4. JUSTICE OSCAR C. He shall have the right to vindicate his inheritance. 1960). court may likewise order that notice be given to persons as the court may direct Note: While the Rules of Court provide that the decedent must not have left any debts. YRIZ TAMIE A. RHONDEE E. 1. L-273. JUANENGO. STAMARIA. MA. LANTIN. LIM. (Sec. MARA KHRISNA CHARMINA F. (Sec. No. 31. G. Q: When is extra judicial settlement by agreement between the heirs allowed? (Substantial Requisites) A: When the decedent: 1. GRETCHEN C. and to make orders as may be necessary The court may also require a bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Section 4 Q: When is a bond required to be filed in extrajudicial settlement of estate? A: When personal property is involved. The court proceeds summarily without the necessity of appointing an executor or administrator. PINEDA.. 2. if it is a real property. (Sec. SUBJECT HEADS: DARRELL L. BORJA. oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. the requirement of public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose 2. they may state their oppositions in an ordinary action of partition. 3. MENDOZA. and Bond filed equivalent to the value of personal property. DIANE CAMILLA R.R. Rule 74) 170 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. TERESE RAY-ANNE O.R. Q: What are the requisites before an extrajudicial settlement of estate could be resorted as evidence of its validity? (Procedural Requisites) A: 1. G. Rule 74. ROSALES . Rule 74) Q: Is a public instrument necessary for the validity of the extrajudicial settlement? A: No. L-14921. Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks. MICHAEL ANGELO V. However. HERRERA. KATRINA NADINE G. SY. BAGANG. SHERY PAIGE A.

Q: Does the two year period apply for a claim of minor or incapacitated person? A: If on the date of the expiration of the period of two years prescribed. Q: What is the effect if the provisions on notice or participation requirement under Sec. The date for hearing. (Sec. 1. 4. and without delay. the person authorized to file a claim is a minor or mentally incapacitated. TWO-YEAR PRESCRIPTIVE PERIOD Q: When does the two year period rule apply? A: After the expiration of two years from the extrajudicial partition. (Sec. 4. he may present his claim within one year after such disability is removed. without appointment of executor or administrator. respectively. distributees or heirs are barred from objecting to an extra.judicial partition. but not against third persons not parties thereto. and When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through their guardians. (Sec. without the consent of all the heirs. Notice shall be served upon such interested persons as the court may direct. Rule 74) 7. or is in prison or outside the Philippines. Note: It is only a bar against the parties who had not taken part in the extrajudicial proceedings. when is it allowed? A: Only when gross estate does not exceed P10. 2. declare his heirs. 6.000. the jurisdiction is vested to the Municipal Trial Courts. Rule 74) 2. shall be set by court not less than 1 month nor more than 3 months from date of publication of last notice and the order of hearing be published once a week for 3 consecutive weeks in a newspaper of general circulation. 2. 4. Note: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unless he did not participate in the proceedings. Bond in an amount fixed by the court (not value of the personal property) conditioned upon payment of just claims under sec.P. Rule 74) Notes: 1. Amount is jurisdictional. The two year prescriptive period applies only: 1. Amount is jurisdictional. 2.1. Blg. Summary settlement of estate of small value is allowed in both testate and intestate estates. MARTINEZ 171 . LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 8. 3. distribute his net estate among them. Instituted by any interested party and even by a dredirtor of the estate. 4. Rule 74 have been strictly complied with? A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year prescriptive period to question such partition. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR Q: What is an Affidavit of Self-Adjudication by sole heir? A: It is an affidavit required by Sec. 4. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. (Herrera. 129. MASACAYAN & THEENA C. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE Q: What is summary settlement of estate? A: It is a judicial proceeding. who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them. the competent court summarily proceeds to estimate the value of estate of the decedent. SABUGO & JOHN HENRY C. (Sec. 1. Rule 74 to be executed by the sole heir or a deceased person in adjudicating to himself the entire estate left by the decedent. Rule 74). allow his will if any. Remedial Law III-A. Rule 74) Q: Why is publication of the extrajudicial settlement necessary? A: To notify and bind the whole world of the extrajudicial settlement and give the concerned parties a chance to come forward and challenge the same (Sec.SPECIAL PROCEDINGS of satisfying such lawful participation. To persons who have participated or taken part or had notice of the extrajudicial partition. Available even if there are debts as the court will make provisions for the payment thereof. 5. ACADEMICS CHAIR: LESTER JAY ALAN E. Q: Summary settlement of estates of small value. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. In accordance with B. 39) 5. and legatees. 3. devisees.

SUBJECT HEADS: DARRELL L. NCC) Also applicable in judicial proceedings GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. If there is undue deprivation of lawful participation in the estate. MANANQUIL. final order or other proceeding to be set aside. JUSTICE OSCAR C. (Art. ALBAÑA. DIANE CAMILLA R.) Also applicable in judicial proceedings. ASST. KATRINA NADINE G. 3. MARA KHRISNA CHARMINA F. AIDA. b. MEMBERS: AKEMI B. UNICA AMOR R. Has a legal interest in the matter in litigation. 125715. Rule 74) ACTION FOR RECONVEYANCE OF REAL PROPERTY REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT PETITION FOR RELIEF (SUMMARY SETTLEMENT) ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT ORDINARY ACTION BUT NOT AGAINST THE BOND If the order of closure has already become final and executory. BORJA. PINEDA. RONN ROBBY D. HERRERA. DUMLAO. Existence of debts against the estate. JUSTICE JAIME M. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate? A: CLAIM AGAINST THE BOND OR REAL ESTATE GROUNDS: (Section 4. On the ground of fraud which should be filed within 4 years from the discovery of fraud. b. (Rule 38.UST GOLDEN NOTES 2011 Q: When can settlement of estates in courts be compelled? A: 1.. MA. or c. 1149. MICHAEL ANGELO V. 2. After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond. mistake. 172 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Should be brought within 2 years after settlement and distribution of the estate COMPEL THE SETTLEMENT ESTATE IN COURTS ACTION FOR RESCISSION OF Should be brought within 2 years after settlement and distribution of the estate It must be availed of within 5 years from the time the right of action accrues. 1144(c)] Also applicable in judicial proceedings. FLORES. MIJARES. JUANENGO. SY. CA. 1998) Also applicable in judicial proceedings. and not more than 6 months after such judgment or final order was entered. the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share. 29. LANTIN. LIM.R. KRISTINE P.. QUIAMBAO. No. The existence of debts against the estate. RHONDEE E. MENDOZA. Upon motion of a person who either: a. action is imprescriptible. Rule 74) a. SR. SHERY PAIGE A. [Art. YRIZ TAMIE A. If there is undue deprivation of lawful participation in the estate. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith. If there is undue deprivation of lawful participation payable in money. accident. GRETCHEN C. JUDGE CESAR D. DONNA GRAGASIN. (Sec. MARIANO. or an interest against both. (Marquez v. 4. EDELISE D. CONTRIBUTORS: VICENTE JAN O. 5. Note: It must be brought within 10 years from the time the right of action accrues. Has such legal interest in the success of either of the parties. and excusable negligence within 60 days after petitioner learns of the judgment. JR. Note: May be availed of after judgment but before its finality or appeal by the aggrieved party. G. Dec. SUBJECT HEAD: ANGELI P. TERESE RAY-ANNE O. ROSALES . On grounds of fraud. BAGANG. AQUINO. PLATON III. STAMARIA.

2. Note: However. 1967) Q: Does the probate court look into the intrinsic validity of the will? A: GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will. G.R. Person named executor. such partition shall stand in so far as it does not prejudice the legitime of the forced heir. “if the testator should make a partition of his property by an act intervivos or by will. Nuguid.the probate of the will is mandatory.R. expense. as in the case of absolute preterition (Nuguid v. PRODUCTION AND PROBATE OF WILL 1. Dec. Rule 76).Oy v. If the testator asks for the allowance of his own will. 3. heirs Note: An interested party is one who would be benefited by the estate. DOCTRINE OF ESTOPPEL DOES NOT APPLY. 2. Designated or known heirs. a will may be sustained on the basis of Article 1080 of the NCC which states that. 1967) 4. except by fraud. June 23. MASACAYAN & THEENA C. 1966). IMPRESCRIPTIBLE. L-62952. 26.because of the public policy to obey the will of the testator 4.No will shall pass either real or personal property unless it is proved and allowed in the proper court. such as an heir. at least 20 days before the hearing. Rule 76) 4. To any person named as co-executor not petitioning. Q: What is probate? A: Probate is the act of proving before a competent court the due execution of a will by a person possessed of testamentary capacity. G. (Mang. IN REM. irrespective of whether its provisions are valid and enforceable. in any separate or independent action or proceeding. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or one who has a claim against the estate such as a creditor. 1. Oct. 5. Rule 76). as well as the approval thereof by said court. L-27421. Testator himself during his lifetime (Sec. 1986) NOTE: The decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law. ACADEMICS CHAIR: LESTER JAY ALAN E. Devisee or legatee named in the will (Sec. WHO MAY PETITION FOR PROBATE Q: Who may file petition for allowance of will? A: 1. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. L-23135. L23638. No. XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will: 1. Q: Who are the people entitled to notice in a probate hearing? A: 1. MARTINEZ 173 . If the case where to be remanded for probate of the will. plus added 2. 1. 9. (also known as Allowance of Will). 1967) Q: What is the nature of a probate proceeding? A: 1. Rule 76). G. (Sec.SPECIAL PROCEDINGS C.R. L. Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will. or Any creditor – as preparatory step for filing of his claim therein. if he not the petitioner. Dimagiba. No. 3. No. MANDATORY. if their places of residence be known. anxiety. if such places of residence be known. Ramagosa. 1985). It involves public interest. 3. effort.g.23638.It is binding upon the whole world.R. L23445. Q: Why is probate necessary? A: To settle all questions concerning the capacity of the testator and the proper execution of his will. 12. SABUGO & JOHN HENRY C. e. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Dimagiba. notice shall be sent only to his compulsory heirs. (Fernandez v. 1. CA. NATURE OF PROBATE PROCEEDING 2. 2. it will result to waste of time. Executor (Sec. Oct. CA. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Person interested in the estate. (Fernandez v. (Sumilang v. G. legatees and devisees of the testator resident in the Philippines at their places of residence. 4. The presentation and probate of the will is required by public policy. No.

ALBAÑA. 7. Rule 76) Contested 1. EDELISE D. BAGANG. MEMBERS: AKEMI B. Holographic will Note: At the hearing. MENDOZA. KRISTINE P. GRETCHEN C. DUMLAO. if such witness testifies that the will was executed as is required by law. (Sec.. RONN ROBBY D. PLATON III. ages and residences of the heirs. 29. NOTE: But no defect in the petition shall render void the allowance of the will or the issuance of letters testamentary or of administration with the will annexed. Not subject to collateral attack and it stands as final. JUSTICE OSCAR C. The sanity of the testator. (Sec. UNICA AMOR R.R. Nos. The names. 8. HERRERA. (Sec. SR. Jurisdictional facts: I. ROSALES . Dec. YRIZ TAMIE A. or None of them resides in the Philippines. (Sec. 7. The name of the persons for whom letters are prayed. or reversed on appeal by a higher court. if not modified. JUDGE CESAR D. SUBJECT HEAD: ANGELI P. (Sec. 5. or revoked by a direct proceeding. legatees and devisees of the testator or decedent. MA. Rule 76) 1. TERESE RAY-ANNE O. (Sec. LANTIN. 11. DIANE CAMILLA R. (Sec. ALLOWANCE OR DISALLOWANCE OF A WILL At least one witness who knows the handwriting and signature of the testator explicitly declares that the will and signature are in the handwriting of the testator.resident. SUBJECT HEADS: DARRELL L. LIM. 11. ASST. CA. set aside. JR. and 3. G. compliance with publication and notice must first be shown before the introduction of testimony in support of the will. 8. MIJARES. death of the testator and II. MICHAEL ANGELO V. 5. L-40719-21. or any of them. who may be asked questions with respect to matters pertaining to the will. Rule 76) 174 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q: What are the instances when the court may admit the testimony of witnesses other than the subscribing witnesses? A: 1. 4. BORJA. Rule 76) Q: What is the remedy if none of the subscribing witnesses resides in the province where probate is being conducted? A: A motion for taking of deposition of one or more of them. CONTENTS OF PETITION FOR ALLOWANCE FOR WILL Q: What are the contents of a petition for allowance of a will? A: 1. DONNA GRAGASIN. expert testimony may be resorted to. 2. (Yuseco v. the province where the estate was left 2. JUSTICE JAIME M. KATRINA NADINE G.. MANANQUIL. Conclusive on the whole world. 1975) Q: How should a will be proved? A: Uncontested The court may grant allowance thereof on the testimony of one of the subscribing witnesses only. 5. Rule 76) Q: What matters shall be testified on by the other witnesses? A: Notarial will All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will. MARIANO. PINEDA. The name of the person having custody of the will if it has not been delivered to the court. 3. JUANENGO. Rule 76) The will shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator. CONTRIBUTORS: VICENTE JAN O. STAMARIA. (Sec. AQUINO. MARA KHRISNA CHARMINA F. (Sec. 2. The subscribing witnesses are dead or insane. AIDA. 5. In the absence of competent witness. SY. SHERY PAIGE A. Note: The court may admit proof of handwriting of the testator and of the subscribing witnesses. The probable value and character of the property of the estate. his residence at the time of his death III. Rule 76) 1. FLORES. 2. and Due execution of the will. Rule 76) Note: Court may also authorize photographic copy of the will to be made and to be presented to the witness on his examination. QUIAMBAO. Rule 76) Q: What is the effect of the allowance of a will? A: The judgment or decree of the court allowing the will is: Conclusive as to its extrinsic validity. if non.UST GOLDEN NOTES 2011 D. and if the court deems it necessary. RHONDEE E.

Escolin. or If the signature of the testator was procured by fraud or trick. The testator may. in his turn. 1982) Q: What are the requisites for allowance of a lost or destroyed will? A: No will shall be proved as a lost or destroyed will unless: 2. Filing a petition in the Philippines with copy of the will and of its decree of allowance. 2. 6) 4. or otherwise mentally incapable to make a will. 1994) 1. G. 7. 5. 3. The testator was domiciled in a foreign country. and Notice and hearing. ACADEMICS CHAIR: LESTER JAY ALAN E. SABUGO & JOHN HENRY C. Its execution and validity of the same must be established. 5. (Bonilla vs. or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge. Proof of compliance with the law on probate procedure in said foreign country. REPROBATE. MASACAYAN & THEENA C. at the time of its execution. 12. or threats. and Its provisions must be clearly and distinctly proved by at least 2 credible witnesses (Sec. If it was procured by undue and improper pressure or influence. No. the burden of disproving the genuiness and due execution thereof shall be on the contestant. The foreign court is.R. No. otherwise the court should presume that the law of the foreign country is the same as Philippine laws. The will has been admitted to probate in such country. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Aranz. But if there are no other copies available then a photostatic or xerox copy would suffice to serve as a comparison to the standard writings of the testator.SPECIAL PROCEDINGS Q: What proof is necessary if the testator himself files the petition for probate of his holographic will and no contest is filed? A: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. and the possibility of bad faith and farud is obviated. If the testator was insane. 7. The legal requirements in said foreign country for the valid execution of the will have been complied with. 2. 3. (Sec. Rule 76) Q: What is the Substantial Compliance Rule? A: If the will has been executed in substantial compliance with the formalities of the law. G. If holographic will. 3. or of some other person for his benefit. Rule 76) Q: What is the rule on proof of lost or destroyed will? A: If notarial will. influence of fear. present such additional proof as may be necessary to rebut the evidence for the contestant. there must be evidence to prove the existence of foreign law. GROUNDS FOR DISALLOWING A WILL Q: What are the grounds for disallowance of will? A: 1. a photostatic copy or exerox copy of the lost will would not suffice. REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES. Dec. 4. Rule 76) Q: What if the holographic will is contested? A: If the holographic will is contested. June 2. It must have been in existence at the time of the death of the testator. it may be proven by a photostatic or xerox copy of the will coupled with the testimonies of the attesting witnesses. and he did not intend that the instrument should be his will at the time of fixing his signature thereto. 809.R. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. (Sec. New Civil Code). a probate court with jurisdiction over the proceedings. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Q: What are the requisites before a will proven outside the Philippines be allowed here? A: 1. 76714. on the part of the beneficiary. 3. MARTINEZ 175 . EFFECT Q: What is reprobate? A: It is a special proceeding to establish the validity of a will proved in a foreign country. 2. L-58509. (Sec. said will should be admitted to probate (Art. If not executed and attested as required by law. 12. If it was executed under duress. 9. 6. under the laws of said foreign country. (PCIB v. No testimonies of witnesses is allowed because the will was made entirely by the testator himself. Note: Under the doctrine of processual presumption.

accept and give bond. JR. DIANE CAMILLA R. Letters testamentary may issue to such of them as are competent. and Those who. MANANQUIL. the will does not appoint any executor. 2. Rule 77). Executor – named by the testator in his will for the administration of his property after his death. administration shall be granted to: 1. may operate upon it. or is incompetent. or a person dies intestate. or if appointed. KATRINA NADINE G. ALBAÑA. although there is a will. MENDOZA. NOTE: Order of preference may be disregarded for a valid cause. if the surviving spouse or next of kin. Rule 77). or fail to give the bond. TERESE RAY-ANNE O.. Administrator – appointed by the court in accordance with the Rules or governing statutes to administer and settle the intestate testate. MARA KHRISNA CHARMINA F. 6) 3. E. improvidence. requests to have appointed. (Sec. (Sec. WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED Q: Who can administer the estate? A: 1. 2. shall be disposed of according to the will. CONTRIBUTORS: VICENTE JAN O. The will shall have the same effect as if originally proved and allowed in the Philippines (Sec. AIDA. or Letters of administration with a will annexed – authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office. YRIZ TAMIE A. BAGANG. or conviction of an offense involving moral turpitude (Sec. Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines (Sec. UNICA AMOR R. PLATON III. SHERY PAIGE A. after the payment of just debts and expenses of administration. 4. 1. EDELISE D. Rule 78). in the opinion of the court. FLORES. LIM. (to whom letters are granted) A: If no executor is named in the will. JUSTICE OSCAR C. or to such person as such surviving spouse or next of kin. want of understanding or integrity. if any. HERRERA. refuse the trust. Q: Who may serve as executor or administrator? A: Any competent person may serve as executor or administrator. QUIAMBAO. LETTERS TESTAMENTARY AND OF ADMINISTRATION 2. The surviving spouse or next of kin. Non-resident of the Philippines. or the executors are incompetent. 6. JUANENGO. Letters of administration – authority issued by the court to a competent person to administer the estate of the deceased who died intestate. 3. GRETCHEN C. if competent and willing to serve. KRISTINE P. LANTIN. Rule 78) 3. ASST. MICHAEL ANGELO V. 176 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. and the residue. 2. in the discretion of the court. SR. ORDER OF PREFERENCE Q: State the order of preference in granting letters of administration. or Administrator with a will annexed – appointed by the court in cases when. if competent and willing to serve The principal creditors. SY. JUSTICE JAIME M. then an administrator may be appointed. SUBJECT HEADS: DARRELL L.. and Such estate.UST GOLDEN NOTES 2011 Q: What are the effects of probate? A: 1. MARIANO. STAMARIA. ROSALES . said person is either incapacitated or unwilling to serve as such. DUMLAO. Q: What authority is issued to the person who administers the estate? A: 1. 2. RONN ROBBY D. (Sec. are unfit to execute the duties of the trust by reason of drunkenness. DONNA GRAGASIN. or the person selected by them be incompetent or unwilling or if the surviving spouse or next of kin neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person Such other person as the court may select if there is no such creditor competent and willing to serve. 3. or both. 4. There may be several executors named in the will. AQUINO. Minor. JUDGE CESAR D. 3. Q: Who are incompetent to serve as executor or administrator? A: 1. PINEDA. shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Sec. MA. SUBJECT HEAD: ANGELI P. BORJA. Rule 78) Note: If the named executor does not qualify. MEMBERS: AKEMI B. 2. 4. so far as such will. Rule 77). RHONDEE E. 3. MIJARES. Letters testamentary – authority issued to an executor named in the will to administer the estate. 1.

He shall at all times have access to. No. Rule 79). The order of appointment of a regular administrator is appealable. 7. 28. contest the petition on the ground of the: Q: What should be done by the executor or administrator to freely exercise his rights and duties? A: He shall submit a written application to the court having jurisdiction of the estate.SPECIAL PROCEDINGS Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute v. 2. Q: When may co-administrators be appointed? A: 1. To have the benefit of their judgment and perhaps at all times to have different interests represented.R. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Rule 79). Aug. 101512. (Sec. 3. an intricate and perplexing one to settle. 2. 1. Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person. if such persons fail to appear when notified and claim the issuance of letters to themselves (Sec. papers. Aguinaldo. G. the executor or administrator must file his application with the probate court which must grant the same. improvidence or mismanagement. 5. No. Vol. 6. Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased. Where the estate is large or. 1992) Incompetency of the person for whom letters are prayed therein. p. MASACAYAN & THEENA C. and The books. Note: To exercise these rights. 94. 26751. 1990). Sept. G. and property in the partnership’s hands or control shall be exhibited to such executor or administrator. (Gabriel v. and the surviving partner or partners on request. 3. Rule 84) ACADEMICS CHAIR: LESTER JAY ALAN E. III-A.R. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. the proceeding for the settelement of the estate is void and should be annulled. suffer the consequences of waste. Q: What are the grounds for opposing a petition for administration? A: Any interested person may by filing a written opposition. or to any competent person named in the opposition (Sec. speedy and economical administration of the estate or on the other hand. CA. No. Rule 79). 31. Where no notice is required by Sec. and may examine and take copies of books and papers relating to the partnership. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY. SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION Q: Who may oppose the issuance of letters testamentary or administration? A: Any person interested in the will may file a written opposition. have the higher interest and most influential motive to administer the estate correctly (Gonzales v. To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate. 1. Q: What is the rationale behind the order of preference in appointing an administrator? A: The underlying assumption behind this rule is that those who will reap the benefits of a wise. RESTRICTIONS ON THE POWERS Q: What are the rights of the executor or administrator of the deceased partner’s estate? A: 1. Q: Is the order of Appointment of Regular Administrator final? A: No. MARTINEZ 177 . 3. or When a person entitled to the administration of an estate desires to have another competent person associated with him in the office. 1. He can make invoices of the property belonging to the partnership. 4. 1969). 1. G. SABUGO & JOHN HENRY C. 4. The requirement as to notice is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law. Note: He may attach thereto a petition for letters of administration and pray that letters be issued to himself. CA. 2005 ed.) 4. though it appears that there are other competent persons having better right to the administration. from any cause. 74769. (Herrera. (Sec. Rule 84) 2. Note: Letters of administration may be granted to any qualified applicant. or Contestant's own right to the administration (Sec. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS.R. Jan. 3.

TERESE RAY-ANNE O. He cannot acquire by purchase. HERRERA. JUDGE CESAR D. To have access to. Vol. MENDOZA. SY. 5. MANANQUIL. SHERY PAIGE A. He cannot borrow money without authority from the court. 116-117. He cannot continue the business of the deceased unless authorized by the court. No. the property under administration. LANTIN. 1996). ASST.. pp.) 7. JUSTICE JAIME M. Aug. 2. 2005 ed. PLATON III. Jan. He cannot lease the property under administration for more than 1 year. MEMBERS: AKEMI B. and examine and take copies of books and papers relating to the partnership in case of a deceased partner To examine and make invoices of the property belonging to the partnership in case of a deceased partner To maintain in tenantable repairs. JR. RONN ROBBY D. 3. CA. Villegas. Thus. SUBJECT HEADS: DARRELL L. houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court To make improvements on the properties under administration with the necessary court approval except for necessary repairs To possess and manage the estate when necessary: i) For the payment of debts. Note: Only one special administrator at a time may be appointed. 4. Q: What are the restrictions on the powers of administrator or executor? A: 1. MARIANO. 2430. Rule 86). MICHAEL ANGELO V. DUMLAO. 31. Q: What are the qualifications of a special administrator? A: These are not spelled out in the Rules of Court. Guadiz. 1980). G. 1. (Mananquil v. He cannot speculate with funds under administration. L-48585. (Herrera. MA. LIM. MARA KHRISNA CHARMINA F. KRISTINE P. DONNA GRAGASIN. He cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners. SR. 2. IIIA. GRETCHEN C. and ii) For the payment of expenses of administration powers of an 6. 6. EDELISE D. No. FLORES. Note: The administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval. Mar. DIANE CAMILLA R.R. 4. it can only be exercised so long as it is necessary for the payment of debts and expenses of administration (Ruiz v. 29. the appointment should be within the sound discretion of the court.R. even at public or judicial action. G.118671. either in person or mediation of another. STAMARIA. 30. CONTRIBUTORS: VICENTE JAN O. When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will (Sec. QUIAMBAO. UNICA AMOR R. KATRINA NADINE G. BAGANG. Rule 80). PINEDA. Q: Why is there a need for appointing a special administrator? A: The principal object is to preserve the estate until it can pass into the hands of persons fully authorized to administer it for the benefit of the creditors and heirs (De Guzman v. A.. or When the executor or administrator is a claimant against the estate he represents (Sec. ROSALES . He cannot profit by the increase or decrease in the value of the property under administration. and 178 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. RHONDEE E. MIJARES.UST GOLDEN NOTES 2011 Q: What are the general administrator or an executor? A: 1. AQUINO. BORJA. SUBJECT HEAD: ANGELI P.M. YRIZ TAMIE A. No. APPOINTMENT OF SPECIAL ADMINISTRATOR REGULAR ADMINISTRATOR Order of Appointment may be the subject of an appeal One of the obligations is to pay the debts of the estate Appointed when the deceased died intestate or did not appoint an executor in the will or the will was disallowed SPECIAL ADMINISTRATOR Order of Appointment is interlocutory and hence not appealable Cannot pay the debts of the estate Appointed when there is delay in granting letters testamentary or administration 3. JUSTICE OSCAR C. Q: Is the right of an executor/administrator to the possession and management of property of the deceased absolute? A: No. 2. since the appointment is merely temporary. 1990) Q: When are the grounds for the appointment of a special administrator? A: 1. AIDA. ALBAÑA. The fundamental and legal principles governing the choice of a regular administrator should also be taken into account in 5. 5. JUANENGO.

Preserve the same. GROUNDS FOR REMOVAL OF ADMINISTRATOR Q: What are the grounds for the removal of an executor or administrator? A: 1. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 5. False misrepresentation by an administrator in securing his appointment is a ground for his removal (Cobarrubias v. 2005 ed. the court shall enter an order granting to the special administrator the additional powers. 2. No. 3. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. (Esler v. MARTINEZ 179 . An administrator who holds an interest adverse to that of the estate or by his conduct showing his unfitness to discharge the trust (Garcia vs. (Sec. III-A. Perishable property. Rule 82). 1) Q: When can 2 special administrators be appointed? A: 1. Possess and take charge of the goods.SPECIAL PROCEDINGS the appointment of a special administrator. Q: When do the powers of special administrator cease? A: After the questions causing the delay are resolved and letters testamentary or administration are granted to executor or regular administrator. 4. Resignation. Jimenez.) 2. or pending an appeal from an order appointing. 3. 2. but such order of preference may be followed by the judge in the exercise of sound discretion (Matias v. 1960). ACADEMICS CHAIR: LESTER JAY ALAN E. 6. 1923) Q: What are the powers and duties of a special administrator? A: 1. (Herrera. 99. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. the special administrator has the same powers. MASACAYAN & THEENA C. Vasquez. (Cotia vs. Pay debts only as may be ordered by the court. Neglect to render an account and settle the estate according to law. G.R.R. duties and obligations as an executor or administrator. or a duty expressly provided by the Rules. 167). L-225. SABUGO & JOHN HENRY C. Note: These grounds are not exclusive. Death. and thereafter a proceeding to contest a will before it is admitted to probate has been instituted. An administrator who disbursed funds of the estate without judicial approval. Sell only: a. If a special administrator is appointed pending determination of a contest of a will instituted before it is admitted to probate. 9. False representation by an administrator in securing his appointment (Cabarubbias vs. Feb. Becomes insane. L-20902. Rule 80) administrator is appointed with those powers. (Sec. Dizon. Gonzales. chattels. May 25. 4. credits and estate of the deceased. Absconds. Dizon. and the letters of administration issued to the special administrator must recite that the special Q: What are the other grounds for removal of an executor or administrator? A: 1. 4. it is an interlocutory order.R. 32 SCRA 490).13391. p. No. 5. Tan. 6. 2. duties and obligations of an executor or administrator and requiring such additional bond as the court deems proper. Q: Does the order of preference in the appointment of regular administrators apply to the appointment of special administrators? A: No. or Becomes incapable or unsuitable to discharge the trust (Sec. and b. An administrator who has the physical inability and consequent unsuitability to manage the estate (De Borja vs. 26. L. 1946). suspending or removing an executor or administrator. Commence and maintain suit for the estate. 104 Phil. Vol. Oct. No. 76 Phil. G. rights. 960). Tad-y. 93 Phil. 3. If a special administrator has been appointed. 2. G. Neglect to perform an order or judgment of the court. Other property ordered sold by the court. 5. 209). 2. Q: Is the order appointing a special administrator appealable? A: No.

STAMARIA. JUDGE CESAR D. 1982) Q: What are the powers of a new executor or administrator after the first one resigns or is removed? A: To collect and settle the estate not administered. BORJA. Q: Does the discovery of a will automatically terminate the letters of administration? A: No. EXCEPTIONS Q: What is the time within which claims shall be filed? A: It should not be less than six (6) months nor more than twelve (12) months from the day of the first publication of the notice thereof. ASST. EDELISE D. III-A. p. (Quisumbing vs Guison. (Sec. until the will has been proved and allowed pursuant to Section 1. Such period once fixed by the court is mandatory. Note: Where an executor or administrator commences an action. SY. resignation or removal of an executor or administrator? A: When an executor or administrator dies. Note: The range of period specified in Sec. DONNA GRAGASIN. KATRINA NADINE G. 24. SUBJECT HEADS: DARRELL L. QUIAMBAO. TIME WHITIN WHICH CLAIMS SHALL BE FILED. The grounds for the removal of regular administrator do not apply strictly to the special administrator as he may be removed by the court on other grounds upon its discretion. MARIANO. L-7840. G. PLATON III. G. To prosecute or defend actions commenced by or against the former executor or administrator. 1. Aranzanso.R. JUSTICE OSCAR C. Aug. Otherwise. JUSTICE JAIME M. would be the proper subject of immediate legal action and would supply a basis of judgment for a sum certain. Rule 86) The period prescribed in the notice to creditors is not exclusive. or prosecutes an action already commenced by the deceased in his lifetime.R. Q: What is contingent claim? A: It is a conditional claim.. for cause shown and on such terms as are equitable.27657. LIM. SHERY PAIGE A. or is removed the remaning executor or administrator may administer the trust alone. the claims are barred forever. FLORES. the court may. JR. (Sec. MIJARES. Rule 86) 1. 30. CLAIMS AGAINST THE ESTATE 1. 2. KRISTINE P.UST GOLDEN NOTES 2011 Q: Are the grounds for removal of executor or administrator the same for special administrator? A: No. RONN ROBBY D. MARA KHRISNA CHARMINA F. Laya. (Buan v. MEMBERS: AKEMI B. DUMLAO. DIANE CAMILLA R. YRIZ TAMIE A. ROSALES . SUBJECT HEAD: ANGELI P. Q: What is the duty of the court after granting letters testamentary or of administration? A: The court shall issue a notice requiring all persons having money claims to file them in the office of the clerk of court.) Q: When should claims be filed? A: GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. MA. that money claims against the estate may be allowed at any time before an order of distribution is entered. JUANENGO. Such period when fixed by the probate court becomes mandatory. (Sec. No. No. HERRERA. 2. TERESE RAY-ANNE O. RHONDEE E. resigns. UNICA AMOR R. (Herrera. 2005 ed. The probate court is permitted by the rule to set the period as long as it is within the limitation provided. MENDOZA. L. 76 Phil 730) 2. AIDA. Rule 82. 1957) 180 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. SR. AQUINO. on application of a creditor who has failed to file his claim within the time previously limited. PINEDA. the debtor may set forth by answer the Q: What is a claim? A: Claim refers to any debt or pecuniary demand against the decedent’s estate. BAGANG. GRETCHEN C. MICHAEL ANGELO V. Vol. allow such claim to be filed within a time not exceeding one (1) month. which is subject to the happening of a future uncertain event. (De Parreno v.. if contested between living persons. at the discretion of the court for the cause and upon such terms as are equitable. 4. MANANQUIL. Rule 82) F. Q: What is absolute claim? A: It is one which. at any time before an order of distribution is entered. administration may be granted to any suitable person. Q: What is the rule on proceedings upon death. CONTRIBUTORS: VICENTE JAN O. Dec. unless the court gransts letters to someone act with him. and To recover execution on judgments in the name of former executor or administrator. However. ALBAÑA. STATUTE OF NON-CLAIMS Q: What is the statute of non-claims? A: It is a period fixed by the courts for the filing of claims against the estate for examination and allowance. LANTIN. 132.2 of Rule 86 is intended to give the court the discretion to fix the period for the filing of the claims. If there is no remaining executor or administrator.

Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an order for all the creditors to file their respective claims against the estate. 2. Rule 86). A money claim is only an incidental matter in the main action for the settlement of the decedent's estate. arising from contract. Alan’s contingent money claim. All claims for money against the decedent. No. 5. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. otherwise. subject to certain exceptions. then the claim is barred forever. 30. both statute of non-claims and statute of limitations must concur in order for a creditor to collect. after granting letters of testamentary or of administration. Under Sections 1 and 5. (Sec. No. Q: What is the rule on Belated Claims? A: Belated claims may be filed even beyond the period fixed by the court: 1. 8. whether the same be due. heirs even after distribution are liable for such taxes. express or implied.SPECIAL PROCEDINGS claims he has against the decedent. SABUGO & JOHN HENRY C. at any time before an order of distribution is entered. for just causes. 2. the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him. Moreover. Is the trial court correct? A: No.157912. and mutual claims may be set off against each other in such action. the court may. Rule 86) Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims. Rule 86) estate may be commenced against the executor or administrator under Rule 87. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE Q: What should be the action of the executor or administrator if he has a claim against the estate? A: He shall give notice to the court in writing and the court shall thereafter appoint a special administrator (Sec. Q: What if the effect of claims not filed? XPN: Belated claims. Estate of Alice O. or contingent. Hence. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. 5. However. express or implied. MARTINEZ 181 . not due. all persons having money claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims. more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. 1979) 3. Fernandez.R. Note: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice. they would be barred. Dec.R. 2007) Q: Should taxes due and assessed after the death of the decedent be presented in the form of a claim? A: No. 2 . 3. all claims not presented within the time herein provided are barred. and the defendant dies before entry of final judgment may be filed against the estate of the decedent. 20. Expenses for the last sickness of the decedent. Judgment for money against the decedent. 13. (Sheker v. Rule 86) Note: Action on contractual claims such as favorable judgment obtained by the plaintiff in an action for recovery of money arising from contract. Mar. Alan filed a contingent claim for agent's commission due him in the event of the sale of certain parcels of land belonging to the estate and reimbursement for expenses incurred. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Q: What claims against the estate of the decedent must be presented in the probate court in the testate or intestate proceedings? A: Only claims which survive such as: 1. A: As expressly provided by the rule. does not require a certification against non-forum shopping. G. Rule 3) Action which survives like an action to recover real or personal property or an interest therein from the ACADEMICS CHAIR: LESTER JAY ALAN E. (Vera v. The executrix of the estate moved for the dismissal of said money claim against the estate on the grounds that Alan failed to attach a certification against non-forum shopping. not being an initiatory pleading. allow such claim to be filed not exceeding 1 month from the order allowing belated claims. The trial court dismissed the case. L-31364. On application of a creditor who has failed to file his claim within the time previously limited. (Sec. (Sec. All claims for funeral expenses. G. Sheker. or (Sec. Rule 86 of the Rules of Court. or 4. MASACAYAN & THEENA C.

YRIZ TAMIE A. BORJA. What are the remedies available to Carina to enforce her mortgage credit? A: 1. JUDGE CESAR D. SUBJECT HEAD: ANGELI P. RHONDEE E.UST GOLDEN NOTES 2011 Q: What is the procedure in filing claims? A: Q: Jericho loaned P5 Million from Carina. MA. Foreclose the mortgage judicially and prove any deficiency as an ordinary claim. PINEDA. ALBAÑA. Rule 86). 3. JR. SUBJECT HEADS: DARRELL L. Jericho died without satisfying the loan secured by the said mortgage. Thereafter. SR. DUMLAO. KATRINA NADINE G. Rely on the mortgage exclusively. BAGANG. SY. SHERY PAIGE A. Said loan was secured by a real estate mortgage over a parcel of land owned by Jericho. TERESE RAY-ANNE O. JUSTICE JAIME M. HERRERA. GRETCHEN C. JUSTICE OSCAR C. DIANE CAMILLA R. ASST. LIM. RONN ROBBY D. Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim.. 182 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO. STAMARIA. MARIANO. FLORES. 2. MARA KHRISNA CHARMINA F. KRISTINE P. MEMBERS: AKEMI B.. MIJARES. PLATON III. AQUINO. DONNA GRAGASIN. JUANENGO. ROSALES . MANANQUIL. UNICA AMOR R. CONTRIBUTORS: VICENTE JAN O. MICHAEL ANGELO V. foreclosing the same at any time before it is barred by prescription without the right to claim for any deficiency (Sec. Note: The above remedies are alternative. AIDA. MENDOZA. EDELISE D. 7. LANTIN.

real properties can be charged first even though the personal properties are not exhausted when: 1. 2. However. binding in law. the proceeds of which will satisfy the debts and expenses. Rule 89). The court must order the sale or mortgage of the properties of decedent. Q: How shall the proceeds from sale of personal property be used? A: 1. if any. (Sec. To pay the debts and expenses of administration. 3. Q: How should contingent claims be paid? A: If the court is satisfied that a contingent claim duly filed is valid. and The claim became absolute. 2. shall be paid according to the provisions of the will. The testator has not made sufficient provision for payment of such debts. the assets so distributed may still be applied to the payment of the claim when established. 5. Rule 89) Q: How should the debts of the estate be paid? A: GR: The payment of the debts of the estate must be taken from the following order: 1. 2. Rule 89). PAYMENT OF DEBTS Q: Is execution the proper remedy to satisfy an approved claim? A: No. and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased. Rule 89). The decedent during his lifetime held real property in trust for another person (Sec. SABUGO & JOHN HENRY C. expenses or legacies (Sec. after hearing. Rule 88) 2. To pay legacies. 4. under contract. 4. or heirs who have entered into possession of portions of the estate before the debts and expenses have been settled and paid (Secs. Duly filed within the 2 year period allowed for the creditors to present claims. and the creditor may maintain an action against the distributees to recover the debt. Note: If heirs have taken possession of portions of the estate before the debts have been settled. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. The claim is valid. 1. in his lifetime. sufficient estate to pay a portion equal to the dividend of the other creditors. Rule 88) Note: If there is still a deficiency. and To cover expenses for the preservation of the estate. If such are insufficient. The sale of such personal property would be detrimental to the participants of the estate (Sec. XPNS: On application by executor or administrator. not exhausted in the payment of claims. with written notice to persons interested. settle 2. Rule 88). Personal property. Rule 88). 3. Real property. (Sec. Sale of personal property may injure the business or other interests of those interested of the estate (Sec. expenses of administration and legacies (Sec. MASACAYAN & THEENA C. Rule 88). Rule 88) Q: What must be satisfied before a contingent claim may be allowed by the court? A: 1. and the court may. 6. or family expenses.SPECIAL PROCEDINGS 4. 4. because: 1. it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute. shall be distributed by the order of the court to the persons entitled to the same (Sec. Rule 89). 3. 2. and 6. Portion or property designated in the will – The debts of the testator. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. the properties not disposed of by will. shall be appropriated for that purpose. 9. (Sec. to deed real property to beneficiary (Sec. (Sec. legatees. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. The decedent was. 3. The personal property is not sufficient to pay the debts. 2. they shall become liable to contribute for the payment of debts and expenses. it shall be met by contributions of devisees. 3. Rule 88). expenses of administration. MARTINEZ 183 . ACADEMICS CHAIR: LESTER JAY ALAN E. 5. 2. 3. 8. Q: What is the consequence if the contingent claim is not presented within the 2 year period after it becomes absolute? A: The assets retained in the hands of the executor or administrator. and after hearing. 3. 2. or if the estate is insolvent. Payment approving a claim does not create a lien upon property of the estate Special procedure is for the court to order the sale to satisfy the claim Note: A writ of execution is not the proper procedure to satisfy debts.

LANTIN. QUIAMBAO. 2. Q: What action may be brought by the executor or administrator? A: Recovery or protection of the property or rights of the deceased. Rule 87) Q: What is the order of payment if estate is insolvent or assets are insufficient? A: The executor or administrator shall pay the debts according to the concurrence and preference of credits provided by Articles 1059 and 2239-2251 of the NCC (Sec. Application of the creditors. (Sec. JR. EDELISE D. Q: What are the requisites in order that executor/administrator may commence and prosecute an action for the recovery of property. Q: When and how should claims proved outside the Philippines against insolvent resident’s estate be paid? A: Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance may be added to the list of claims proved against the decedent in the Philippines and the estate will be distributed equally among those creditors (Sec. 2. ALBAÑA. 6. LIM. 3. TERESE RAY-ANNE O. from the estate. 1. in proportion to their respective credits (Sec. 9. mortgage or other encumbrance of estate to pay debts and legacies in other countries? A: When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses. ROSALES . PINEDA. MARIANO. Rule 87) Q: When should the court authorize sale. MARA KHRISNA CHARMINA F. Rule 88). Enforcement of a lien. Actions to recover real or personal property. 9. Payment of cost and expenses. BORJA. MICHAEL ANGELO V. ASST. There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration. AIDA. FLORES. and order how much and in what manner each person shall contribute (Sec. no action to recover the title or possession of lands or for damages done shall be maintained against him by an heir or devisee until there is an order of the court assigning the lands to such heir or devisee or until the time allowed for paying debts has expired. 3. Note: The benefits in the above provision shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors. MENDOZA. DIANE CAMILLA R. SUBJECT HEAD: ANGELI P. UNICA AMOR R. KRISTINE P. 7. 2. (Sec. Rule 88). Rule 88). STAMARIA. A: Those claims which can proceed independently of the settlement proceeding such as: 1. JUSTICE JAIME M. SR. DONNA GRAGASIN. if the decedent fraudulently conveys property to defraud his creditors? A: 1. and Give security therefore to the executor or administrator. G. SHERY PAIGE A. DUMLAO. (Sec. MEMBERS: AKEMI B. CONTRIBUTORS: VICENTE JAN O. JUANENGO. Q: How should the estate in the Philippines of an insolvent non-resident be disposed of? A: It shall be disposed of that his creditors in and outside the Philippines may receive an equal share. BAGANG. 5. JUSTICE OSCAR C. MANANQUIL. the court here may authorize the executor or administrator to sell. MIJARES. YRIZ TAMIE A. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS Q: What actions may be brought against the executor or administrator? 184 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. SY. AQUINO. KATRINA NADINE G. MA. PLATON III. JUDGE CESAR D. Rule 87) Q: What is the concept of a superseades bond? A: It partakes the form of a security posted by the appealing party (who has lost the case in the lower court) to compensate the opposing party for the legal expenses in case it wins also in the higher (appellate) court.. HERRERA. real or personal. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF FRAUDULENTLY CONVEYED BY THE DECEASED Q: What are the requisites before a creditor may bring an action for recovery of property fraudulently conveyed by the deceased? A: 1. Rule 87) Note: When an executor or administrator is appointed and assumes the trust. Rule 88). RHONDEE E. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS 2.UST GOLDEN NOTES 2011 the amount of their several liabilities.. (Sec. RONN ROBBY D. 1. GRETCHEN C. Rule 89). or an interest therein. 3. 10. SUBJECT HEADS: DARRELL L. mortgage or encumber the property in the same manner as for the payment of debts and legacies in the Philippines (Sec. action for causes which survive. Actions to recover damages for an injury to person or property. according to their respective claims.

SABUGO & JOHN HENRY C. 7. LIQUIDATION Q: What is liquidation? A: Liquidation is the determination of all assets of the estate and payment of all debts and expenses. 10). the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law. 3. A bond is filed by the creditor. A: ACADEMICS CHAIR: LESTER JAY ALAN E. DISTRIBUTION AND PARTITION 1. Vol. Note: The creditor shall have a lien on the judgment recovered for costs and expenses. 5. III-A. the action should be in the name of all the creditors. MASACAYAN & THEENA C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. (Sec. The subject of the attempted conveyance would be liable to attachment in his lifetime. and The action by the creditor is in the name of the executor or administrator (Sec. The last 3 requisites are unnecessary where the grantee is the executor or administrator himself. In his lifetime. the conveyance would be void as against his creditors. 2005 ed. Herrera. MARTINEZ 185 .) H. The executor or administrator has shown no desire to file the action or failed to institute the same within a reasonable time. 6. p.SPECIAL PROCEDINGS 2. 10. 175. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. in which event. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 4. Q: Discuss the process for the distribution of the residue of the estate. Leave is granted by the court to the creditor to file the action.

SY. Rule 90) XPN: If the distributees or any of them gives a bond conditioned for the payment of said obligation. the court may order the revision of the project of partition for its adjustment. allowances to the widow. TERESE RAY-ANNE O. LIM. funeral expenses. He must still file his claim according to Section 9. this is not mandatory. DUMLAO. 213. 119777. Rule 86 and must comply with the statute of non-claims.) 2. MARA KHRISNA CHARMINA F. G. (Guilas v. CONTRIBUTORS: VICENTE JAN O. BORJA. No. the payment of all debts. KATRINA NADINE G. III-A. expenses for administration. However. Q: When is the order for distribution of residue made? A: GR: Order of distribution shall be made after payments of all debts.. p. L. MICHAEL ANGELO V. 23. 29. the heir must file a Motion to set aside the distribution with the court so that the court will not proceed with the distribution of the residue. 2005 ed. ALBAÑA. MEMBERS: AKEMI B. AIDA. No. The probate court shall determine whether such heir has a right to participate in the distribution of the residue. Jan. MOTION TO SET ASIDE THE DISTRIBUTION. MANANQUIL. UNICA AMOR R. 118671. 1. 31. YRIZ TAMIE A. if the estate is insolvent. 1. but the court is not enjoined from making the declaration of heirs prior to the satisfaction of these obligations. Sec.R. (Herrera. a motion for closure has already been granted. G. SUBJECT HEADS: DARRELL L. No.R. EDELISE D. 83308. Oct. the order of distribution may be made even before the payment of all debts.If an heir appears after the court approved the project of partition.R. etc. CA. (Heirs of Pedro Escanlar v. STAMARIA. RONN ROBBY D. JUANENGO. RHONDEE E. CA. (Solivio v. SUBJECT HEAD: ANGELI P. 12. 1990) 2. No. and not before. The provision in the will should only establish the claim of the creditor against the estate.OPENING OF THE SETTLEMENT PROCEEDINGS-If the distribution has already been made. ASST. CA. DIANE CAMILLA R. JR. GRETCHEN C. If it is proven that the heir has a right. JUSTICE OSCAR C. MARIANO. PROJECT OF PARTITION Q: What is project of partition? A: It is a document prepared by the executor or administrator setting forth the manner in which the estate of the deceased is to be distributed among the heirs. AQUINO. Judge of CFI of Pampanga. MOTION FOR THE RE. Court approval is necessary only if specific property of the estate is sold. he being the co-owner with other heirs of the estate. KRISTINE P. (Sec. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE Q: What is the remedy of an heir who is entitled to the residue but was not given his share? A: 1. SHERY PAIGE A. charges of administration. 1997) Q: Does the finality of the approval of the project of partition by itself alone terminate the probate proceeding? A: No. Vol. G. (par. Rule 90) Note: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs. LANTIN. funeral expenses. and inheritance tax shall have been effected that the court should make the declaration of heirs or of such person as are entitled by law to the residue. 1972) It is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. Remedial Law III-A. BAGANG. p 213) Q: May an heir of the deceased sell his undivided share during the pendency of the estate proceedings without the prior approval of the probate court? A: Yes.UST GOLDEN NOTES 2011 Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid. JUDGE CESAR D. 1996) 3. MENDOZA. PINEDA. 2. Feb. ROSALES . An heir has the right to sell his undivided or ideal share of the estate. 186 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.26695. PLATON III. DONNA GRAGASIN.R. HERRERA. (Herrera. Jan. SR. allowance of widow and inheritance tax. JUSTICE JAIME M. MIJARES. FLORES. As long as the order of the distribution of the estate has not been complied with. G. QUIAMBAO. the creditor shall not enjoy priority over other claimants. Q: What should the executor or administrator do if all the claims are paid or settled? A: The executor or administrator shall prepare the project of partition reflecting the residue of the estate and how it is to be distributed. the heir must file a Motion for the re-opening of the settlement proceedings within the 30 day Q: When should declaration of heirship be made? A: It is only after. It should however be made clear that what the court is enjoined from doing so is the distribution of the residue of the estate before its obligations are first paid. the probate proceedings cannot be deemed closed and terminated. (Estate of Ruiz v. MA..

LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. expenses of administration or legacies or for the preservation of property or if sale will be beneficial to heirs. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased and all debts and expenses of the administration should be paid out of the proceeds of such sale or mortgage. and 3. In the case of Aldamiz vs. 2. a writ of execution is not the proper procedure allowed by the Rules of Court for the payment of debts and expenses of administration. Q: When is title to property vested to the heirs? A: It is vested from finality of order of distribution. (Vda. Q: Is the order that determines distributive share appealable? A: Yes. The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs. it becomes final. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. To satisfy the costs when a person is cited for examination in probate proceedings. 228. To satisfy the distributive shares of the devisees. the regulations contained in Rule 89.R. MASACAYAN & THEENA C. L-28602. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION Q: What are the instances when the probate court may issue writ of execution? A: GR: A probate court cannot issue a writ of execution. Otherwise. they shall be filed only at such times as may be required by the court Court that has jurisdiction may be MTC or RTC TRUSTEE Accounts must be UNDER OATH and filed ANNUALLY May sell. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.If the order of closure has already become final and executory. Sec. MARTINEZ 187 . Sept. To enforce payment of the expenses of partition. 4. 3. G. provided the order of closure has not yet become final and executory. 1970) CFI of Mindoro. SABUGO & JOHN HENRY C. No. de Lopez v.SPECIAL PROCEDINGS reglementary period. TRUSTEES 1. ACCION REINVIDICATORIA. 29. Judge of I. legatees or devisees (Upon application to the court with written notice to the heirs) Order of sale has NO TIME LIMIT Approved by the court to settle estate of the decedent NOT EXEMPTED from filing a bond even if such exemption is provided in the will (ratio: bond is only conditioned upon payment of debts) Services of executors or administrator is terminated UPON PAYMENT OF DEBTS of the estate and DISTRIBUTION of property to the heirs MUST PAY the debts of the estate Court which has jurisdiction is the RTC if appointed to carry into effect provisions of a will. legatees and devisees residing in the Philippines. encumber or mortgage property if it is necessary for the purpose of paying debts. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR EXECUTOR/ ADMINISTRATOR Accounts are NOT under oath and except for initial and final submission of accounts. RTC has jurisdiction in the appointment of new trustee May sell or encumber property of the estate held in trust if necessary or expedient or upon order of the court Order of sale has NO TIME LIMIT Appointed to carry into effect the provisions of a will or written instrument (contractual trust) May be EXEMPTED from filing a bond if provided in the will or if beneficiaries requested such exemption Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after expiration of the trust (period may be provided for in the will or trust contract) NO OBLIGATION TO PAY the debts of the beneficiaries or trustor ACADEMICS CHAIR: LESTER JAY ALAN E. if trustee dies. 85 Phil. resigns or is removed in a contractual trust. 7 should be complied with. legatees and heirs in possession of the decedent’s assets. XPNS: 1. And when the sale or mortgage is to be made. Lopez.

and faithfully discharge his trust in relation thereto. 3. powers. LANTIN. 8. QUIAMBAO. 4. as if he had been appointed by the testator. MANANQUIL. PLATON III. Rule 98). and if such appointment is necessary to carry into effect the provisions of the will. ROSALES . SR. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE Q: What are the grounds for removal or resignation of a trustee? A: 1. dies. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE Q: What are the requisites for the removal or resignation of a trustee? A: 1. KATRINA NADINE G. After notice to all persons interested. UNICA AMOR R. one which is created by a will or a written instrument. That he will render upon oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof. 4. or is removed before the objects of the trust are accomplished. Rule 98). Rule 98) 188 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MICHAEL ANGELO V. or Unsuitability (Sec. 4. MEMBERS: AKEMI B. SY. 5. and That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands.UST GOLDEN NOTES 2011 Q: What is a trust? A: A legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property. JUDGE CESAR D. CONDITIONS OF THE BOND Q: What are the conditions of the bond? A: 1. Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust. and such other accounts as the court may order. and Hearing (Sec. DIANE CAMILLA R. CONTRIBUTORS: VICENTE JAN O. JUSTICE JAIME M. to the persons entitled thereto (Sec. LIM. a true inventory of all the estate belonging to him as trustee. DUMLAO. at such time as it may order. Insanity. JUSTICE OSCAR C. EDELISE D. MARA KHRISNA CHARMINA F. 5. Note: A trustee may resign his trust if it appears to the court proper to allow such resignation (Sec. PINEDA. 3. 3. 2. FLORES. AIDA. MENDOZA. HERRERA. Notice to trustee. Q: When is there a contractual trust? A: When a trustee under a written instrument declines. EXTENT OF AUTHORITY OF TRUSTEE Q: What is the extent of authority of a trustee? A: Rule 98. SUBJECT HEADS: DARRELL L. Q: When is there a testamentary trust? A: If a testator has omitted in will to appoint a trustee in the Philippines. Rule 98). AQUINO. and in whom the estate shall vest.. ASST. 8. BORJA. Q: Who is a trustee? A: A trustee is one who is appointed to carry out the provision of the will or any written instrument executed by the trustor. DONNA GRAGASIN. applies only to express trust. the proper RTC may appoint a new trustee to act alone or jointly with the others. 5. resigns. 2. MIJARES. That the trustee will make and return to the court. 2. 6. JUANENGO. MA. Q: Is the trustee required to file a bond? A: GR: Yes. But the court may cancel such exemption anytime. which at the time of the making of such inventory shall have come to his possession or knowledge. the proper RTC may appoint a trustee who shall have the same rights. Rule 98). (Sec. JR. and duties. XPN: If requested by the testator or by all persons beneficially interested in the trust. That he will manage and dispose of all such estate. SUBJECT HEAD: ANGELI P. according to law and the will of the testator or the provisions of the instrument or order under which he is appointed. Incapability of discharging the trust. Petition filed by parties beneficially interested. MARIANO. RHONDEE E. STAMARIA. Note: When the trustee is appointed as a successor to a prior trustee. 8. or due from him on such settlement. 3. SHERY PAIGE A. GRETCHEN C. the court may dispense with the making and return of an inventory if one has already been filed. Removal appears essential in the interest of petitioners. and no adequate provision is made in such instrument for supplying the vacancy after due notice to all persons interested. ALBAÑA. RONN ROBBY D. 2. KRISTINE P. BAGANG. the trustee may be exempted from filing a bond.. YRIZ TAMIE A. TERESE RAY-ANNE O. as the case may be.

(Ceniza vs. 2003. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. the court in guardianship proceeding is concerned solely with the ward’s care and custody and proper administration of his properties (Villoria 3. When a person dies intestate leaving no heir but leaving property in the Philippines (Sec. A: No. in such case the Motion to dismiss plays the role of a demurrer to evidence (Herrera. GUARDIANSHIP Q: What is guardianship? A: It is a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. REQUISITES FOR FILING OF PETITION Q: What are the requisites for filing a petition? A: 1. A person died intestate. the proper petitions must be presented and the proceedings should comply with the requirements of the Rules of Court. It is the reversion of property to the State in consequence of want of any individual competent to inherit. 2. Note: For the distribution of the estate to be instituted. Bezore. G. 2. MASACAYAN & THEENA C. and That the evidence thereon should be clear and conclusive. (Municipality of Magallon v. p 227-228) K. once the court acquires jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat. Reversion proceedings where sale of property is made in violation of the Constitutional provision. MARTINEZ 189 . Remedial Law III-A. and The deceased left properties in the Philippines. 181 SCRA 552) J. To constitute adverse possession. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 91). ESCHEAT Q: What is escheat? A: It is a French or Norman term meaning chance or accident. (Rule 92. PERIOD FOR FILING A CLAIM Q: What is the remedy of the respondent against the petition for escheat? A: When the petition does not state the facts which entitle the petitioner to the remedy prayed for.SPECIAL PROCEDINGS Q: Can the possession of the trustee of the property ripen into ownership? A: GR: An action to compel a trustee to convey property registered in his name in trust for the benefit of the cestui qui trust does not prescribe. 1. REMEDY OF RESPONDENT AGAINST PETITION. 3. this jurisdiction cannot be converted into one for the distribution of the properties of the decedent. He left no heirs or persons by law entitled to the same. Rule 91) ACADEMICS CHAIR: LESTER JAY ALAN E. Q: What is ancillary guardianship? A: It refers to the guardianship in a state other than that in which guardianship is originally granted. or even admitting them hypothetically. the respondent may file a MOTION TO DISMISS. WHEN TO FILE Q: What are the three instances of escheat? A: 1. That the trustee has performed unequivocal acts amounting to an ouster of the cestui qui trust. XPN: Prescription may arise where there is adverse possession of the property. The trustee’s possession is not adverse and therefore cannot ripen into title by prescription.97) 2. 03-02-05-SC) which took effect on May 1. 1. 2. L-14157. the following must be present: 1.R. While guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship. Oct. Note: Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM No. 3. (Sec. No. That such positive acts of repudiation had been made known to the cestui qui trust. CA. 26. 1. GENERAL POWERS AND DUTIES OF GUARDIANS Q: To what extent does guardianship extend? A: Conflicts regarding ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding. and Dormant accounts for 10 years (Unclaimed Balance Act of Banking Laws). 1960) Q: Can the court convert escheat proceedings into settlement of the estate? 3.

SUBJECT HEAD: ANGELI P.000. but in no case less than 10% of the value of such property or annual income. manage and dispose of the estate according to the rules for the best interests of the ward. Pay the debts of the ward. 3. and moneys remaining in his hands. within 3 months. HERRERA. ROSALES . SHERY PAIGE A. RONN ROBBY D.M. and apply the proceeds to the maintenance of the ward. EDELISE D. KRISTINE P. No. MEMBERS: AKEMI B. if the market value or annual income of the child is P 50. 2.) Note: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. DIANE CAMILLA R. SY. SR. and upon application of interested persons. to the possession or knowledge of any other person for him.14. JR. Rule 94. CONDITIONS OF THE BOND OF THE GUARDIAN Q: What are the conditions of the bond of the guardian? A: 1. To faithfully execute the duties of his trust. Administrator of Veteran Affairs. ASST. JUDGE CESAR D.. collect debts. Q: What is the purpose of the bond? A: It is for the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera. to guarantee the performance of the obligations prescribed for general guardians (Sec. MA. 3. 17. UNICA AMOR R. and/or the management of his estate. JUANENGO. 4. and appear in actions for the ward. 4. (Secs. To settle accounts. No. and Careful investigation as to the necessity and propriety of the proposed action (Section 5) Q: Does the requirement of posting a bond extend to parents who are the legal guardians of their minor children? Explain. and at the expiration of his trust. the parent concerned shall furnish a bond in such amount as the court may determine. YRIZ TAMIE A. and to provide for the proper care. 2. a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or 190 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.000 or below. TERESE RAY-ANNE O. GRETCHEN C. XPN: If the market value of the property or the annual income of the child exceeds P50. MICHAEL ANGELO V. 03-02-05-SC). STAMARIA. 5. 1. A: GR: No. Sec. effects.M.R. KATRINA NADINE G. JUSTICE OSCAR C. Manage the estate of the ward frugally. Teran. BORJA. (Guerrero v. A. To render a true and just account of all the estate of the ward in his hands. and upon application of interested persons Consent to a partition of real or personal property owned by ward jointly or in common with others. A. To make and return to the court. and To perform all orders required by the court (Sec. and of all proceeds or interest derived there from. MIJARES. Mar. L-9620. MENDOZA. 19. 6. CONTRIBUTORS: VICENTE JAN O. MANANQUIL. No. and education of the ward. A. FLORES. DONNA GRAGASIN. 03-02-05SC). Real estate Q: What are the requisites to authorize the guardian to join in the partition proceedings after hearing? A: 1. G. Rule 96. custody. 7. settle his accounts with the court and deliver and pay over all the estate. 282. To have the care and custody of the person of the ward. Q: What are the general powers and duties of guardians? A: 1.. AQUINO. Sec.M. Vol. p. 1909) Q: What is the order of liability of the ward’s property? A: 1. RHONDEE E. III-A. LIM.UST GOLDEN NOTES 2011 v. MARIANO. PLATON III. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian. and of the management and disposition of the same. ALBAÑA. or due from him on such settlement. Personal estate and income of real estate 2. to the person lawfully entitled thereto. QUIAMBAO. MARA KHRISNA CHARMINA F. 2005 ed. DUMLAO. 03-02-05-SC) 3. 2. SUBJECT HEADS: DARRELL L. JUSTICE JAIME M. Hearing Notice to relatives of the ward. 1-8. LANTIN. Render to court for its approval an accounting of the property for 1 year from his appointment and as often thereafter as may be required. No. BAGANG. L4898. Render verified inventory within 3 months after his appointment and annually thereafter. 16. at the time designated by the rules and such other times as the court directs. June 1957) 2. PINEDA. AIDA.

and psychological condition. Death. observing. MARTINEZ 191 .M. in case several grandparents survive. AM -03-02-05-SC) Q: What would the court do if an issue arises as to who has the better right or title to the properties conveyed in the guardianship proceeding? A: GR: The issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. MASACAYAN & THEENA C. Physical. 6. AM-03-02-05-SC) Q: Is court appointment necessary to enable the father and the mother to exercise joint legal guardianship over the person and property of minor? A: No. RULE ON GUARDIANSHIP OVER MINOR Q: Who may petition for appointment of guardian for resident? A: 1. 2. Q: What are the grounds for opposition to petition of guardianship of minors? A: 1. Actual custodian of the minor over 21 years of age. this Rule shall be suppletory to the provisions of the Family Code on Guardianship (Section 1. Secretary of Social Welfare and Development AND by the Secretary of Health in case of insane minor who needs to be hospitalized. of a minor. of a minor? A: 1. 2. No. Q: How may a petition for guardianship of minors or incompetents be opposed? A: Any interested person may contest the petition by filing a written opposition and pray that the petition be denied. 5.9. 7. who in the sound discretion of the court would serve the best interests of the minor (Sec. 3. as far as practicable. 03-02-05-SC). Oldest brother or sister of the minor over 21 years of age. 2. Sec.M. the court may appoint a guardian of the person or property. Any other person. mental. or incapacity of his parents. 03-02-05-SC). A.M. XPN: When the ward’s right or title to the property is clear and undisputable. Remarriage of surviving parent. No. 03-02-05-SC). or When the best interests of the minor so require (Sec.SPECIAL PROCEDINGS 3. 2. Other person on behalf of the minor. A. 6. Any relative. A. 3.M. 5. 03-02-05-SC). 10. unless unfit or disqualified. The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. 03-02-05-SC. Q: What are the grounds for the appointment of a guardian over the person or property. Majority of the alleged minor. No. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 4. A. A. In such case. 10. No. Note: The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. or both. 4. 3. or 4. or that letters of guardianship issue to himself. (Sec. or both. 4. A. Relationship of trust with the minor. the court shall select any of them taking into account all relevant considerations. No. Moral character. Lack of conflict of interest with the minor. 3. Minor himself is 14 years of age. if the latter is found unsuitable to exercise parental authority. Financial status. or to any suitable person named in the opposition (Sec. Suspension. Rule 9). (Section 2.M. Q: Who may be appointed as guardian of a minor? A: In default of parents or a court-appointed guardian. 4. continued absence. A: 1. Availability to exercise the powers and duties of a guardian for the full period of the guardianship. or Unsuitability of the person for whom letters are prayed for (Sec. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 4. No. unless unfit or disqualified. the guardianship court may issue an order directing its delivery or return. SABUGO & JOHN HENRY C.M. 2. the following order of preference: 1. Surviving grandparent and. Q: What are the factors to be considered for the appointment of guardian of minors? ACADEMICS CHAIR: LESTER JAY ALAN E. and Ability to manage the property of the minor (Sec. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. deprivation or termination of parental authority. 03-02-05-SC).

UNICA AMOR R. CONTRIBUTORS: VICENTE JAN O. the philosophy behind adoption statutes is to promote the welfare of the child and every reasonable intendment should be sustained to promote that objective. MANANQUIL. MARA KHRISNA CHARMINA F. L-24006. ALBAÑA. of good moral character. 25. RONN ROBBY D. Adoption cannot be had without the written consent of a natural parent who has allegedly abandoned them. AIDA. QUIAMBAO. ROSALES .R. DUMLAO. 9523). In taking a deposition. FLORES. Elepano. TERESE RAY-ANNE O. SR. 1967) 1. Moreover. ADOPTION Q: What is adoption? A: It is a juridical act. Sept. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION DOMESTIC Family Court where adopter resides INTER-COUNTRY Inter-Country Adoption Board (Petition may also be filed with Family Court where adoptee resides. KRISTINE P. It is to be understood. no substantial rights are affected since depositions may or may not be presented or may even be objected to when formally offered as evidence at the trial of the main case later on. has not been convicted of any crime involving moral turpitude. null and void for lack of jurisdiction both as to party and as to the subject matter. Oct. SUBJECT HEAD: ANGELI P. MIJARES. SHERY PAIGE A. GR No. Q: Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them? A: Indeed. DIANE CAMILLA R. JUANENGO. (Sec. FC to endorse petition to ICAB) A foreigner must meet the following requirements in order to be qualified to adopt in the Philippines under the Inter-Country Adoption Act: a) GR: at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted. MEMBERS: AKEMI B.UST GOLDEN NOTES 2011 L. Q: Is publication of the hearing for adoption necessary for the adoption to be valid? Q: What is the effect of adoption created under the law of a foreign country? A: It is entitled to registration in the corresponding civil register of the Philippines. No. PINEDA. Ibid. DONNA GRAGASIN. No. publication of the scheduled hearing for the petition for adoption is necessary for the validity of a decree of adoption but not for the purpose merely of taking a deposition. understanding and security towards the full and harmonious development of his personality. Note: The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice by publication of the petition for correction of entry was to render the proceeding of the trial court. LANTIN. EDELISE D. KATRINA NADINE G. CA. HERRERA. MICHAEL ANGELO V. Abandonment cannot be merely presumed. GRETCHEN C. The certification. or one who was voluntarily committed by his/her parent(s) or legal guardian.R. for all intents and purposes.R. and who is in a position to support and care for 192 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. G. 92542. CA. care. RHONDEE E. Nov. that the effects of such adoption shall be governed by laws of the Philippines. so far as the correction of entry was concerned. A: No. AQUINO. PLATON III. JUSTICE JAIME M. BAGANG. ASST. 103695.). shall be. R. YRIZ TAMIE A. Q: What is the State policy on adoption? A: It is the policy of the State to ensure that every child remains under the care of his or her parent/s and be provided with love. STAMARIA. 1998). in possession of full civil capacity and legal rights. G. JUSTICE OSCAR C. Q: What is the requirement in order that the child may be declared legally available for adoption? A: There must be a certification which shall be issued by the DSWD in lieu of a judicial order.. there should be proof of emotional abandonment. 2(5). 15. a proceeding in rem. (Marcaida v. MA. Q: What is a Child Legally Available for Adoption? A: A Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven through the submission of pertinent documents. LIM. 15. Aglubat. at the time Jurisdiction Who May adopt 1) Any Filipino citizen of legal age. however.A. thus making the entire process administrative in nature. 8. 25. Mar. 1991). the primary evidence that the child is legally available in a domestic adoption and in an inter-country adoption proceeding (Sec. 1996). BORJA. JR. at least sixteen (16) years older than the adoptee. No. (Republic v. SUBJECT HEADS: DARRELL L. (Republic v.. JUDGE CESAR D. MARIANO. who is emotionally and psychologically capable of caring for children. (Cang v. it must be duly proven. G. SY. MENDOZA. which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. 105308.

SABUGO & JOHN HENRY C. Convention on the Rights of the Child. That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following: (i) A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity. f) In a position to provide the proper care and support and to give the necessary moral values and example to all his children. That the other spouse has signified his consent thereto. h) Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws. MARTINEZ 193 . joint parental authority shall be exercised by the spouses. all expenses borne by adopter) ACADEMICS CHAIR: LESTER JAY ALAN E. that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country. b) If married. Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody) of application. d) Not convicted of a crime involving moral turpitude. 2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided. or (iii) If the spouses are legally separated from each other. Supervised Custody Trial Within the country of the adopter (Mandatory. Provided. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. c) With capacity to act and assume all rights and responsibilities of parental authority under his national laws. he/she is not required to meet the above age requirement.SPECIAL PROCEDINGS his children in keeping with the means of the family. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. and i) Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. Husband and wife shall jointly adopt. XPN: if the adopter is the parent by nature of the child to be adopted or the spouse of such parent. (iii) One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.N. his/her spouse must jointly file for the adoption. (ii) One who seeks to adopt the legitimate child of his Filipino spouse. however. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other. That his country has diplomatic relations with the Republic of the Philippines. e) Eligible to adopt under his/her national law. including the child to be adopted. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent. g) Agrees to uphold the basic rights of the child as embodied under Philippine family laws. the U. or (ii) If one spouse seeks to adopt his own illegitimate child: Provided. that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered. and that his government allows the adoptee to enter his country as his adopted child. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. (3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. and to abide by the rules and regulations issued to implement the provisions of this Act. except in the following cases: (i) Iif one spouse seeks to adopt the legitimate child of one spouse by the other spouse. further. MASACAYAN & THEENA C. and has undergone the appropriate counseling from an accredited counselor in his/her country.

YRIZ TAMIE A. 16-18. AQUINO. JUSTICE JAIME M. except where the biological parent is the spouse of the adopter. G. (Republic vs. BAGANG. SY. N/A Income Tax Returns Police Clearance Character Reference Family Picture Birth Certificate of adopter May be made through foreign placement agency which will then submit application to the ICAB 2. 117209. MICHAEL ANGELO V. PINEDA. MEMBERS: AKEMI B. Feb. JUDGE CESAR D. sex. 4. EFFECTS OF ADOPTION Q: What are the effects of adoption? A: 1. MIJARES. guaranteed and protected under the law. May 21. is unheard of in law and consequently cannot be favorably considered. and that upon reaching the age of majority. [Sec. However. as the use by the adoptee of the surname of the adopter is more an incident rather than the object of adoption proceedings. Any child legally declared available for adoption 2. CA. 1992) Note: This ruling may imply that what may be included in a petition for adoption is only the first or given name of the adoptee and not the surname. for he has the right and obligation. DOMESTIC ADOPTION a. No. and the date and place of their marriage. ALBAÑA.A. Declaration that child is abandoned.. the adoptee has both the right and obligation to use the surname of the adopter. dependent or neglected child or foundling 1. MARA KHRISNA CHARMINA F. BORJA. DIANE CAMILLA R. GRETCHEN C. To repeat. SHERY PAIGE A. (Secs. R. the adopter/s and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. Note: The decree of adoption shall order the Civil Registrar where the adoption was registered to issue a certificate of birth which shall not bear that it is a new or amended certificate and shall state among others. JUSTICE OSCAR C. the law on testamentary succession shall govern. the so-called right of an adoptive parent to re-name an adopted child by virtue or as a consequence of adoption. (Republic v. when applicable. 16. SR.UST GOLDEN NOTES 2011 Petition adoption for May include 1. RHONDEE E. STAMARIA. ASST. SUBJECT HEADS: DARRELL L. date of birth. MARIANO. CONTRIBUTORS: VICENTE JAN O.R. and In legal and intestate succession. the change of the surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name. 2003 ed. 3. MA. ROSALES . 8552) Q: What is the effect of the petition for adoption in relation to use of surnames? A: Pursuant to Art. even for the most noble intentions and moving supplications.. Prayer for change of name 2. EDELISE D. he may file a petition for a change of surname. 2. LIM. Person of legal age N/A Who may adopted be Child legally available for adoption Supporting Documents Publication Where to application file 3 successive weeks in a newspaper of general circulation in the province or city where the court is situated Family Court which has jurisdiction 1. PLATON III. place of birth. No. Hernandez. 3. Rectification of simulated birth 3. FLORES. Handbook on Special Proceedings. KRISTINE P. RONN ROBBY D. UNICA AMOR R. G. 189 of the Family Code which states that the adopted child shall acquire the reciprocal rights and obligations arising from the relationship of a parent and child. 1996). (Agpalo. including the right of the adopted to use the surname of the adopter. DONNA GRAGASIN. MENDOZA. DUMLAO. 9. AIDA. HERRERA. 97906. JR. p. 2. name and citizenship of adoptive mother and father. LANTIN. JUANENGO. Legitimate or illegitimate child of a spouse 3. MANANQUIL. KATRINA NADINE G. TERESE RAY-ANNE O. the following: registry number. 3(b)] 194 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. name of child. SUBJECT HEAD: ANGELI P.) While the right of a natural parent to name the child is recognized. if the adoptee and his biological parent/s had left a will. 193.R. All legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested on the adopter/s. 5. registration date. QUIAMBAO. at least initially to use the surname of the adopter. The adoptee shall be considered the legitimate child of the adopter/s for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind.

The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his or her original birth certificate. or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated.). Sexual assault or violence. Comes from another country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws. Sibulo. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Agrees to uphold the basic rights of the child as embodied under the Philippine laws. on any of the following grounds committed by the adopter/s: 1. 3. the adopter is not left without any remedy as he may deny to an adopted child his legitime and by will. The parental authority of the adoptee's biological parent/s. EFFECTS OF RESCISSION OF ADOPTION Q: What are the effects of rescission of adoption? A: 1.A. or 4. No. 3(a)] a. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Moreover. and to abide by the rules and regulations issued to implement the provisions of this Act. his qualifications include: 1. ACADEMICS CHAIR: LESTER JAY ALAN E. WHEN ALLOWED Q: When may inter-country adoption be allowed? A: It shall only be allowed when all the possibilities for domestic adoption of the child have been exhausted and that inter-country adoption is in the best interest of the child. 5. 4. However. 1439889. Is in a position to provide proper care and support and to give the necessary moral values and example to all his children. (Sec. At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted. Is eligible to adopt under his/her national law. 23.N. 9. Ibid. INTER-COUNTRY ADOPTION (R. [Sec. Has not been convicted of a crime involving moral turpitude. MARTINEZ 195 . at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent. MASACAYAN & THEENA C. if known. 19. 6. c. but only as of the date of judgment of judicial rescission. G. 3. If married.SPECIAL PROCEDINGS b. 2.A. Note: Only the adoptee can rescind the decree of adoption. with the assistance of the DSWD if a minor or though over 18 is incapacitated. July 14. 2. 7. Convention of the Rights of the Child. may freely exclude him from having a share in the disposable portion of his estate. his/her spouse must jointly file for adoption. and the decree of adoption is issued outside of the Philippines. 2. The reciprocal rights and obligations of the adopter/s and the adoptee to each other shall be extinguished. 8043). 27a) It is allowed when the adopter is an alien or a Filipino citizen permanently residing abroad. 2003). 3. the U. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. INSTANCES WHEN ADOPTION MAY BE RESCINDED Q: What are the grounds for rescission of adoption? A: Upon the petition of the adoptee. 3. SABUGO & JOHN HENRY C. 8043) Q: What is inter-country adoption? A: It refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen 9. (Sec.R. including the child to be adopted. The new law had already abrogated or repealed the right of an adopter under the Civil and Family Codes to rescind a decree of adoption (Lahom v. Abandonment and failure to comply with parental obligations (Sec. Attempt on the life of the adoptee. permanently residing abroad where the petition is filed. Ibid. and Possesses all the qualifications and none of the disqualifications provided herein and other applicable laws. the supervised trial custody is taken. Repeated physical and verbal maltreatment by the adopter/s despite having undergone counseling.). The successional rights shall revert to its status prior to adoption. R. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws and has undergone the appropriate counseling from an accredited counselor in his/her country. 8. and The vested rights acquired prior to judicial rescission shall be respected (Sec. 4. 5.

shall immediately transmit the petition to the ICAB for appropriate action. 14) M.UST GOLDEN NOTES 2011 b. protection. PINEDA. in writing to the court or judge before whom the writ is returnable. If he has the party in his custody or power. UNICA AMOR R. FUNCTIONS OF THE RTC Q: What is the function of the RTC in inter-country adoption? A: The Court. psychological and emotional development. SY. YRIZ TAMIE A. 2000) Q: What is the nature of the petition? A: It is an inquisition by the government at the suggestion and instance of an individual. KATRINA NADINE G. CONTENTS OF THE PETITION Q: What should a verified petition for a writ of habeas corpus contain? A: 1. G. if it can be procured without impairing the efficiency of the remedy. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. RHONDEE E. JUANENGO. MENDOZA. ROSALES . Whether he has or has not the party in his custody or power. ALBAÑA. July 30. 3. 4. JUSTICE JAIME M. and in other cases the person in whose custody the prisoner is found shall state. LANTIN. A copy of the commitment or cause of detention of such person. Rule 102) 2. or. The officer or name of the person by whom he is so imprisoned or restrained. not merely nominal or moral. 32. a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge. and Cases by which the rightful custody of the person is withheld from the person entitled thereto. if the imprisonment or restraint is without any legal authority. L-27331. if both are unknown or uncertain. MARA KHRISNA CHARMINA F. in the country of the prospective adoptive parents. (Sec. through an intermediate agency.R. BAGANG. FLORES. AQUINO. if known. the authority 2. May 16. or. MARIANO. the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. 3. Cases of illegal confinement or detention by which a person is deprived of his liberty.R. SR. and the person who is served with the writ shall be deemed the person intended. SUBJECT HEADS: DARRELL L. submit to and receive whatsoever. JR. ASST. Bildner. (Sec. WRIT OF HABEAS CORPUS Q: What is writ of habeas corpus? A: It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place with the day and the cause of his caption and detention to do. MA. QUIAMBAO. GRETCHEN C. BORJA. MICHAEL ANGELO V. most probably. 1. No. LIM. TERESE RAY-ANNE O. SHERY PAIGE A. such fact shall appear. DIANE CAMILLA R. or under restraint. Note: It is regarded as “palladium of liberty”.. (Alimpoos v.13578990. That the person in whose behalf the application is made is imprisoned or restrained of his liberty. DONNA GRAGASIN. 1. DUMLAO. (Ilusorio v. CONTENTS OF THE RETURN Q: What are the contents of the return? A: When the person to be produced is imprisoned or restrained by an officer. the person who makes the return shall state therein. JUSTICE OSCAR C. plainly and unequivocably: 1. It is also instituted for the purpose of fixing the status of a person and that there can be no judgment entered against anybody since there is no real plaintiff and defendant. AIDA. KRISTINE P. but still in the name and capacity of the sovereign is a proceeding in rem. The application for adoption shall be filed with the RTC having jurisdiction over the child. MANANQUIL. and feelings of security of the minor and most encouraging to his physical. SUBJECT HEAD: ANGELI P. the court or judge awarding the writ shall consider in that behalf. Rule 102) 2. or under restraint. EDELISE D. The illegal restraint 2. RONN ROBBY D. PLATON III. such officer or person may be described by an assumed appellation. HERRERA. “BEST INTEREST OF THE MINOR” STANDARD Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and conditions as are most congenial to the survival. Note: To justify the grant of the petition. JUDGE CESAR D. 1981) Note: In habeas corpus cases. after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption. STAMARIA. Nos. The place where he is so imprisoned or restrained. (Sec. CONTRIBUTORS: VICENTE JAN O. G. MIJARES. (Sec. whether governmental or an authorized and accredited agency. 196 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. c. of liberty must be actual and effective. Rule on Adoption).. or the InterCountry Adoption Board. MEMBERS: AKEMI B. CA. the judgment in favor of the applicant cannot contain a provision for damages. Q: To what instances may habeas corpus extend? A: 1.

or other process. The loss must have occurred prior to the filing of the information against him. MARTINEZ 197 . If the person is in custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the 2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. July 30.R. 4. 4. set forth at large. for a period not exceeding 60 days. without danger. (Alimpoos v. the illegality of which is not patent. G. 1987 Constitution. or under restraint. 1996). 4. be brought before the court or judge. 30. 1921). 11. When detained under a lawful cause. MASACAYAN & THEENA C. That is error. G. WHEN NOT PROPER/APPLICABLE Q: When is habeas corpus not applicable? A: 1. Mar. what should have been done was to set aside the warrant of arrest and order the discharge of the Accused. G. or make the order. order. upon which the party is held. 107741. particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot. 8. Oct. If the Accused was illegally detained because he was arrested without a preliminary examination. Such error of judgment may be corrected by appeal or by the 3. Habeas Corpus may be had to give retroactive effect to a previous ruling of the Supreme Court favorable to the accused when the accused has already served the full term for a crime which the Court has declared nonexistent. with a copy of the writ. it will not lie if the penalty of imprisonment imposed by the court is longer than that allowed by law. For asserting or vindicating a denial of right to bail. 18. 5. but without enjoining the Municipal Judge from conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Preliminary citation is issued when a government officer has the person in his custody. No. pursuant to Sec. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION Q: What is the difference between a preliminary citation and a peremptory writ? A: 1. (Lee Yick Hon v. (Feria v. 3. 15. Director of the Bureau of Prisons. In case of invasion or rebellion or when public safety requires it. 6. and is not produced.SPECIAL PROCEDINGS and the true and whole cause thereof. execution. If he has had the party in his custody or power. (Sec. 18. 30. to show cause why the writ of habeas corpus should issue. G. 2000). Sec. In case of three-day retention of a suspect for three days without charge. L-27331. 122954.R. However. III. and by what authority such transfer was made. Jan. ACADEMICS CHAIR: LESTER JAY ALAN E.R. 1981). 1971).R. 9. CA. If the person is charged or convicted of an offense in the Philippines. CA. SABUGO & JOHN HENRY C. (Gumabon v. G. at what time. 18 of the Human Security Act. No. For correcting errors in appreciation of facts or of law. No. 118644. (Velasco v. and has transferred such custody or restraint to another. 4. G. Rule 102).R. Collector of Customs. (Sec. 1995). (Bernarte v. under Art. was already convicted by the trial court of the offense charged will bar the issuance of a writ of habeas corpus. If the party is in his custody or power or is restrained by him. When in case of invasion or rebellion or when public safety requires it. by his own admission. L-30026. No. 4. Rule 102). 4. Habeas Corpus proceedings are not meant to determine criminal responsibility. 16779. 10. July 7. for what cause. Rule 102). In case of an illegal arrest. 7. (Sec. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. under Art. (Sec. CA. It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in the Criminal Case. 15. particularly to whom. Sec. 7. 4. Rule 102) process. render the judgment. 3. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.R. Feb. 1987 Constitution. (Sec. If the jurisdiction of the court to try the person detained appears after the writ is allowed. Loss of the records of the case after petitioner. 10. 2. No. No. Rule 102). If the person is suffering imprisonment under lawful judgment. CA. the petition for a writ of habeas corpus will still not prosper if the detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of an order denying bail. When person is serving final sentence imposed by court. Note: Issuance of a writ of habeas corpus may not lie in order to revive a settled issue of the validity of the writ of preliminary injunction issued in an agrarian case allegedly on the ground of the existence of a tenancy relationship between the parties arising from their arrest for having assaulted persons in authority. if any.

(Sec. ALBAÑA. JUDGE CESAR D. DIANE CAMILLA R. (Sec. specifically those found guilty of illegally entering the Philippines with the use of tampered and previously cancelled passports. 03-04-04-SC) Q: Whether Family Courts have concurrent jurisdiction with the Supreme Court and the Court of Appeals in petitions where the custody of minors is at issue? A: Yes. Rodriguez. SUBJECT HEAD: ANGELI P. 2. 29. KATRINA NADINE G. SY. and is satisfied that he is unlawfully imprisoned or restrained. Bildner. JUANENGO. G. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. G. MARA KHRISNA CHARMINA F. AQUINO. PLATON III. JUSTICE OSCAR C.R. Commissioner of Immigration. JUSTICE JAIME M. The party against whom it may be filed shall be designated as the respondent. 6. G. Thornton. (Tung Chin Hui v. No. EDELISE D.R. QUIAMBAO. 16. Sandiganbayan. CONTRIBUTORS: VICENTE JAN O. 139789. WHEN WRIT DISALLOWED/DISCHARGED Q: In what instances shall a writ be disallowed or discharged? A: 1. KRISTINE P.L25694. No.R. the court must inquire into every phase and aspect of petitioner’s detention. That is a matter beyond judicial authority and is best left to the man and woman’s free choice. Nov. he is at liberty to do so without threat of any penalty attached to the exercise of his right. ROSALES . The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly ordered the deportation of undocumented aliens. G. 03-04-04-SC) Q: Who may file a petition for custody of minor? A: Any person may file a verified petition for the rightful custody of a minor. If the officer or person detaining the prisoner does not desire to appeal. 03-04-04-SC). (Pomeroy v.. 2000). Aug. No. 141938.UST GOLDEN NOTES 2011 President. 1976). RHONDEE E. G.from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been satisfied. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. In cases of improper arrest or lack of preliminary investigation (Paredes v. LANTIN. Q: May a wife secure a writ of habeas corpus to compel her husband to live with her in the conjugal home? A: No. SUBJECT HEADS: DARRELL L. FLORES. 7. SHERY PAIGE A. the prisoner shall be released. 2001). RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (AM No. SR. In cases of supervening events such as issuance of a process and filing of an information (Velasco v. No. MEMBERS: AKEMI B. he shall order his discharge from confinement. PINEDA. 18. 2004). 1996) When the court or judge has examined into the cause of caption and restraint of the prisoner. CA. CA. 3. G.. effective until a copy of the order has been served on the officer or person detaining the prisoner. May 12. 28. Feb.R. UNICA AMOR R. 118844. MA. July 7.R. JR. BORJA. The provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 ― that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. but such discharge shall not be 3. BAGANG. AM No. Q: Where should a petition for custody of minor be filed? A: Family courts in the province or city where the petitioner resides or where the minor may be found. MIJARES. No. The material operative facts constituting deprivation of custody. April 2. No. MARIANO. No. Jan. 24. LIM. G. (Thornton v. (Bernarte v. (Ilusorio v. DONNA GRAGASIN. 1995). A: Refer to page 205. The personal circumstances of the petitioner and of the respondent. Nov. The Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. 89989. 1960). ASST. 198 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 5. 107741. MENDOZA. 2. MANANQUIL. YRIZ TAMIE A. No. GRETCHEN C. 2. 1991). and In cases of invalid arrest due to deportation cases cured by filing of deportation proceedings (Santos v. MICHAEL ANGELO V. In case the husband refuses to see his wife for private reasons. L14284. Note: In all petitions for habeas corpus. STAMARIA. Q: What are the contents of the verified petition? A: 1. AM No. G. The name. 154598.R. AIDA.R. DUMLAO.R. Director of Prisons. 3. RONN ROBBY D. TERESE RAY-ANNE O. age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent. HERRERA.

unless the court finds compelling reasons to order otherwise. The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent. and feelings of security of the minor and most encouraging to his physical. Second stage – the trial court will direct the parties to secure the services of a mediator if the parties do not agree on the custody of the minor. Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor. No. The health. SABUGO & JOHN HENRY C. The most suitable physical. 03-0404-SC). Q: When is a child not allowed to be separated from the mother? A: Under Article 213 (2) of the Family Code. protection. (Yu v. 9. 2006). 4. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis. unless the parent so chosen is unfit to take charge of the child by reason of moral depravity. Yu. (Sec. psychological and educational environment for the holistic development and growth of the minor.R. Habitual use of alcohol. emotional. Such other matters which are relevant to the custody of the minor. no child under 7 years of age shall be separated from the mother. including anyone courting the parent. 5. 03-04-04-SC) Note: If the second stage does not produce an amicable settlement. sexual or Q: Would a decision rendering judgment on the issue of custody of a child in a nullity of marriage case constitute as res judicata on a pending habeas corpus case on the same matter? A: Yes. AM No. by mere motion of either party. incapacity. spiritual. 12. it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor. (Sec. 4.SPECIAL PROCEDINGS 4. By filing the case for declaration of nullity of marriage petitioner automatically submitted the issue of the custody of the child as an incident thereof. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. may choose which parent he prefers to live with. or poverty. the court will proceed with the pre-trial conference. (Art. 5. Family Code) Note: If both parents are unfit. 3. AM No. 03-04-04-SC) ACADEMICS CHAIR: LESTER JAY ALAN E. AM No. 03-04-04-SC) 2. Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages" directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children. 8. Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and conditions as are most congenial to the survival. Q: When will the court take into consideration the choice of the child? A: The child. Q: What are the stages in the pre-trial? A: 1. such as the paternal or maternal grandparent of the child. (Sec. 213. Pre-trial is mandatory. AM No. safety and welfare of the minor. habitual drunkenness. Certificate of Non-Forum Shopping signed personally by the petitioner. 03-04-04-SC) Q: What are the other factors that the court may consider in awarding custody? A: 1. G. except when there is an existing threat or danger of physical. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. mental. (Sec. or his oldest brother or sister. dangerous drugs or regulated substances. 03-04-04-SC) emotional violence which endangers the safety and best interests of the minor. 12. or some reputable and discreet person. MASACAYAN & THEENA C. First stage – the parties may agree on the custody of the minor. 2. and The preference of the minor over seven years of age and of sufficient discernment. Q: What should be considered in awarding the custody of minor? A: The court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. MARTINEZ 199 . unless the parent chosen is unfit. 6. 7. (Sec. the court may designate other persons or an institution to take charge of the child. 14. Marital misconduct. AM No. AM No. 14. 164915. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. who is over 7 years of age. 14. (Sec. March 10. The nature and frequency of contact with both parents. psychological and emotional development.

DIANE CAMILLA R. (Secretary of National Defense v. 144763. the court should conduct thorough trial on all matters relevant to the welfare and interests of the child. 2. (Sec. EDELISE D. or if there are several grandparents. 31. and threats to take the life of persons who are openly critical of erring government officials and the like. ROSALES . 5. Either parent. PLATON III. ASST. The fact that the father has recognized the child may be a ground for ordering him to give support. DONNA GRAGASIN. Sept. irrespective of who may be its custodian. the court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents. 180906. AM No. the grandparent chosen by the minor over seven years of age and of sufficient discernment. MENDOZA. custody and control of each child as will be for its best interest. JUSTICE OSCAR C. SUBJECT HEAD: ANGELI P. RHONDEE E. Manalo. 3. 2002) Q: Can the minor child be brought out of the country without leave from court while the petition is pending? A: The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending. Aug. especially the choice of the minor over seven years of age and of sufficient discernment. Both parents jointly. or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.R. (Laxamana v. salvaging even of suspected criminals. summary and arbitrary executions. 2007 and Sept. 3. 03-04-04-SC) A: No. MARA KHRISNA CHARMINA F. Aug. STAMARIA. it is not an action to determine criminal guilt requiring proof beyond reasonable doubt. LANTIN. 2008) Q: What are extralegal killings? A: Killings committed without due process of law. motu proprio or upon application under oath. JUSTICE JAIME M. Q: What should the court award after the hearing? A: 1. 3. unless he or she is unfit or disqualified. 24. liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. (Sec.UST GOLDEN NOTES 2011 Q: What is the order of preference in awarding provisional custody? A: As far as practicable. G. 1) Note: The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner. FLORES. SR. The court. or 6. but not for giving him custody of the child. (Sec. 7. the order of preference shall be observed: 1. The grandparent. 2008) These include the illegal taking of life regardless of the motive. addressed to the Bureau of Immigration and Deportation. G. RONN ROBBY D. QUIAMBAO. MA. Court may order either or both parents to support or help support the child. unless the court finds said parent or parents unfit or disqualified. Court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable. MANANQUIL.R. AQUINO. BORJA. 2007. may issue ex parte a hold departure order. ALBAÑA. 07-9-12-SC) Q: What is writ of amparo? A: It is a remedy available to any person whose right to life. The eldest brother or sister over twentyone years of age. No. YRIZ TAMIE A. directing it not to allow the departure of the minor from the Philippines without the permission of the court. LIM. 03-04-04SC) N. 2007. Oct. legal safeguards or judicial proceedings. SY. SHERY PAIGE A.. Q: May the court award temporary visitation rights in the provisional custody order? A: Yes. or of a private individual or entity. 20. AIDA. MICHAEL ANGELO V. 4. 16. TERESE RAY-ANNE O. PINEDA. 18. UNICA AMOR R. JR. BAGANG. MARIANO. 2. JUDGE CESAR D.. AM No. The actual custodian of the minor over twenty-one years of age. (Deliberations of the Committee on the Revision of the Rules of Court. GRETCHEN C. SUBJECT HEADS: DARRELL L. No. The writ shall cover extralegal killings and enforced disappearances or threats thereof. DUMLAO. unless the former is unfit or disqualified. 10. MIJARES. or liability for damages requiring preponderance of evidence. MEMBERS: AKEMI B. JUANENGO. unless the grandparent chosen is unfit or disqualified. HERRERA. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. Care. taking into account all relevant considerations. WRIT OF AMPARO (AM No. KRISTINE P. unless the parent chosen is unfit. Laxamana. KATRINA NADINE G. Q: May the court award the custody of the minors based merely on psychiatric report and agreement of the parties? 200 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Aug. CONTRIBUTORS: VICENTE JAN O.

DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. 2. The petition for a writ of amparo is a remedy available to any person whose right to life. 180906. in default of those mentioned in the preceding paragraph. It is available to any person whose right to life. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file the petition. not privileged. Oct. Any member of the immediate family. 2). observing the order established herein. NOTE: The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. not a protection of the government from the demand of the people such as respondents. children and parents of the aggrieved party. the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.R. Manalo. books of accounts. Rule 27 of the Rules of Civil Procedure which provides in relevant part. CONTENTS OF RETURN Q: What is the content of the verified return? A: Within seventy-two (72) hours after service of the writ. among other things. letters. Manalo. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. if there is no known member of the immediate family or relative of the aggrieved party. descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. 7. of any designated documents. the Court said that “the production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III. SABUGO & JOHN HENRY C. COVERAGE Q: What is the scope of the Writ of amparo? A: It covers extralegal killings and enforced disappearances or threats thereof. or Any concerned citizen. A: Refer to page 205. viz: Section 1. The writ shall cover extralegal killings and enforced disappearances or threats thereof. the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing. contain the following: ACADEMICS CHAIR: LESTER JAY ALAN E. (Sec. G. DIFFERENCES BETWEEN WRIT OF AMPARO AND SEARCH WARRANT Q: What is the difference between a Writ of Amparo from a Search Warrant? A: In the October 7. liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. Likewise. Upon motion of any party showing good cause therefor.” A search warrant is a court order issued by a judge or magistrate judge that authorizes the law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found. photographs. 5. or of a private individual or entity. It may also be filed by any qualified person or entity in the following order: 1. objects or tangible things. A writ of amparo is a form of constitutional relief. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. the respondent shall file a verified written return together with supporting affidavits which shall. organization. 2. liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. MARTINEZ 201 .SPECIAL PROCEDINGS Q: What are enforced disappearances? A: An arrest. No. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government. which constitute or contain evidence material to any matter involved in the action and which are in his possession. papers. Any ascendant. the Amparo production order may be likened to the production of documents or things 3. detention or abduction of a person by a government official or organized groups or private individual acting with the direct or indirect acquiescence of the government. (Secretary of National Defense v. under Section 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2008) 1. custody or control. Section 2 of the 1987 Constitution. 2008 decision of the Supreme Court in the case of The Secretary of National Defense vs. namely: the spouse. by or on behalf of the moving party. MASACAYAN & THEENA C. 3. 4. association or institution. Instead. the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others. Motion for production or inspection order. or of a private individual or entity.

Note: A general denial of the allegations in the petition shall not be allowed. CONSOLIDATION Q: What happens if criminal action is filed subsequent to a petition for writ of amparo? A: The petition for the writ shall be consolidated with criminal action. OMNIBUS WAIVER RULE Q: What is the Omnibus Waiver Rule? 202 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Other matters relevant to the investigation. MARA KHRISNA CHARMINA F. MICHAEL ANGELO V. (Sec. justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The reliefs under the writ shall be available by motion in the criminal case. and f. b. 5. YRIZ TAMIE A. SHERY PAIGE A. JUSTICE JAIME M. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat. JUSTICE OSCAR C. (Sec. 10). location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance. KRISTINE P. All relevant information in the possession of the respondent pertaining to the threat. to identify and apprehend the person or persons involved in the death or disappearance. JUDGE CESAR D. 13) 9. ROSALES . CONTRIBUTORS: VICENTE JAN O. EDELISE D. Q: How long should the hearing last? A: The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. LIM.. 11. civil or administrative actions. MENDOZA. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible. BAGANG. 6. PLATON III. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect if a prior criminal action has been filed? A: No petition for a writ of amparo shall be filed. QUIAMBAO. 23) Q: What happens if a criminal action and a separate civil action are filed subsequent to a petition for writ of amparo? A: The petition for writ of amparo shall be consolidated with the criminal action. through any act or omission. to determine the cause. the court. LANTIN. AQUINO. GRETCHEN C. (Sec. SUBJECT HEADS: DARRELL L. PINEDA. TERESE RAY-ANNE O. HERRERA. STAMARIA. to identify witnesses and obtain statements from them concerning the death or disappearance. the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. RONN ROBBY D. act or omission against the aggrieved party. 3. and If the respondent is a public official or employee. justice or judge shall proceed to hear the petition ex parte. JUANENGO. However. KATRINA NADINE G. manner. DUMLAO. Note: After consolidation. act or omission. e. SUBJECT HEAD: ANGELI P.UST GOLDEN NOTES 2011 1. MEMBERS: AKEMI B. 9) 7. 21) 10. It does not preclude the filing of separate criminal. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life. PROCEDURE FOR HEARING Q: What is the nature of the hearing? A: The hearing on the petition shall be summary. to bring the suspected offenders before a competent court. SY. JR. DIANE CAMILLA R. FLORES. RHONDEE E. AIDA. liberty and security of the aggrieved party. (Sec. d. MIJARES. ASST. 2. ALBAÑA. its resolution and the prosecution of the case. MA. SR. c.. 4. 22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. UNICA AMOR R. the return shall further state the actions that have been or will still be taken: a. MANANQUIL. EFFECTS OF FAILURE TO FILE A RETURN Q: What happens when the respondent fails to file a return? A: The court. 12). (Sec. INSTITUTION OF SEPARATE ACTION Q: May a separate action be filed after filing a petition for a writ of amparo? A: Yes. (Sec. A: The omnibus waiver rules states that all defenses not raised in the return are deemed waived. MARIANO. (Sec. 8. to verify the identity of the aggrieved party. BORJA. DONNA GRAGASIN.

copying or photographing by or on behalf of the movant. the protection may be extended to the officers involved. The court. Q: Raymond and Reynaldo Manalo escaped from captivity and surfaced of the armed forces. If the petitioner is an organization. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT Q: What are interim reliefs available? A: 1. Napico Homeowners Association. books. (Sec.SPECIAL PROCEDINGS 12. 4. order any person in possession. PETITIONER Temporary protection order. MASACAYAN & THEENA C. rules and regulations was observed in the performance of duty. G. to permit entry for the purpose of inspecting. 182795. Inspection order. (Sec. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. refer the witnesses to the Department of Justice for admission to the Witness Protection. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. to produce and permit their inspection. liberty and security. 2. accounts. or to accredited persons or private institutions capable of keeping and securing their safety. (Canlas v. therefore. letters. 3. assuming they still have any despite the final and executory judgment adverse to them. Witness protection order. (Sec. Production order. But while the two admit that they are no longer in ACADEMICS CHAIR: LESTER JAY ALAN E. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO Q: What is the quantum of evidence required in a petition for a writ of amparo? A: The parties shall establish their claims by substantial evidence. measuring. surveying. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws. 13. pursuant to Republic Act No. association or institution referred to in Section 3(c) of this Rule. 6981. 2008). objects or tangible things. which constitute or contain evidence relevant to the petition or the return. 17) The respondent who is a private individual or entity must prove that ordinary diligence as required by the applicable laws. Security and Benefit Program. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. papers. 2. There is. Note: No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of the right sought to be protected. no legal basis for the issuance of the writ of amparo. custody or control of any designated documents. June 5. MARTINEZ 203 . justice or judge may also refer the witnesses to other government agencies. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. A threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available.R. or photographing the property or any relevant object or operation thereon. photographs. 15) Temporary Protection Order Inspection Order Upon verified motion and after due hearing Production Order Upon verified motion and after due hearing Witness Protection Order Upon Motion or Motu Proprio THE COURT SHALL Order the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. No. 14) HOW INITIATED Upon motion or motu proprio RESPONDENT 1. or objects in digitized or electronic form. Order any person in possession or control of a designated land or other property. Inspection order. does not constitute right to life. SABUGO & JOHN HENRY C. rules and regulations was observed in the performance of duty. Their claim to their dwelling. Production order.

home and correspondence of the aggrieved party. In blatant violation of guarantees to life. children and parents. EDELISE D. or In default thereof. (Sec. A: It is a remedy available to any person whose right to privacy in life. MENDOZA. HERRERA. MICHAEL ANGELO V. 6. MARIANO. ASST. Oct. liberty and security. AVAILABILITY OF WRIT Q: What is writ of habeas data? 4. MIJARES. the relief may include a prayer for an order enjoining the act complained of. and the person in charge. Should the court granted the petition? A: Yes. The Manalo brothers claim that they are under the threat of being once again abducted. WRIT OF HABEAS DATA (AM No. In case of threats. kept captive or even killed. ALBAÑA. Such other relevant reliefs as are just and equitable. they assert. AQUINO. home and correspondence of the aggrieved party. YRIZ TAMIE A. if known The reliefs prayed for. SUBJECT HEAD: ANGELI P. LANTIN. 7. suppression or destruction of the database or information or files kept by the respondent. DUMLAO. SUBJECT HEADS: DARRELL L. 08-1-16-SC) 1. FLORES. family. DIANE CAMILLA R. 2.. It is a procedure designed to safeguard individual freedom from abuse in the information age. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file a petition for the writ of habeas data.. (Sec. JUSTICE OSCAR C. SY. GRETCHEN C. PLATON III. No. JUSTICE JAIME M. and may be ordered destroyed by the court. A: Refer to page 205. which constitute a direct violation of their right to security of person. SCOPE OF WRIT Q: What is the scope of the writ? A: The writ covers instances wherein a person’s right to privacy in life. in possession or in control of the data or information. 2) 5. the government office. The personal circumstances of the petitioner and the respondent The manner the right to privacy is violated or threatened and how it affects the right to life. liberty and security of person. that they are not free in every sense of the word as their movements continue to be restricted for fear that the people they have named in their judicial affidavits and testified against are still at large and have not held accountable.R. JUDGE CESAR D. MEMBERS: AKEMI B. Manalo. DISTINGUISH FROM HABEAS CORPUS AND WRIT OF AMPARO Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. namely: the spouse. RONN ROBBY D. They filed a petition for writ of amparo. 3. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. UNICA AMOR R. RHONDEE E. liberty or property. JR. AIDA. tends to threaten violation of constitutional right to life. JUANENGO. MARA KHRISNA CHARMINA F. SHERY PAIGE A. LIM. MANANQUIL. However. Any member of the immediate family of the aggrieved party. CONTENTS OF PETITION Q: What are the contents of the verified petition? A: 1. 2. 4. 3. BORJA. 204 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. CONTRIBUTORS: VICENTE JAN O. SR. the Manalo brothers’ right to security as freedom from threat is violated by the apparent threat to their life. or of a private individual or entity engaged in the gathering. (Sec. TERESE RAY-ANNE O. which may include the updating. collecting or storing of data or information regarding the person. 6) 2. G. 180906. QUIAMBAO. 2008) O. rectification. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. registers or databases. 1) Information or data written. ROSALES . any ascendant. these rights are snuffed out from victims of extralegal killings and enforced disappearances. DONNA GRAGASIN. in cases of extralegal killings and enforced disappearances. 5. (Secretary of National Defense v. PINEDA. BAGANG.UST GOLDEN NOTES 2011 detention and are physically free. the petition may be filed by: 1. or of a private individual or entity engaged in the gathering. liberty or security of the aggrieved party The actions and recourses taken by the petitioner to secure the data or information The location of the files. KRISTINE P. collecting or storing of data or information regarding the person. MA. STAMARIA. The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. KATRINA NADINE G. family.

9. The lawful defenses such as national security. When a subsequent criminal action is filed. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information. or when the data or security and that it cannot be divulged to the public due to its nature or privileged character. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. and the purpose for its collection. in possession or in control of the data or information subject of the petition: a. 16. 20). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 21) 2.). (Sec.SPECIAL PROCEDINGS 6. the nature of such data or information. (Sec. state secrets. 12) 8. Note: After consolidation. and Other allegations relevant to the resolution of the proceeding. In case of respondent in charge. and c. shall allege: 1. INSTANCES WHEN PETITION BE HEARD IN CHAMBERS Q: What are the instances when a petition for a writ of habeas data may be heard in chambers? A: It may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or State secrets. the privilege of the writ shall be denied. confidentiality of the source of information of media and others. The currency and accuracy of the data or information held. 2. 22). the Petition for the writ of Habeas Data shall be consolidated with the criminal action. the procedure under the Rule shall continue to govern the disposition of the reliefs in the petition. privileged communication. If the allegations in the petition are proven by substantial evidence. destruction. b. INSTITUTION OF SEPARATE ACTION Q: Does the filing of a petition for the writ of habeas data prohibit the filing of separate criminal. (Sec. or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable. MARTINEZ 205 . civil or administrative actions. A disclosure of the data or information about the petitioner. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data. otherwise. 3. (Sec. QUANTUM OF PROOF IN APPLICATION FOR WRIT OF HABEAS DATA Q: What is the quantum of evidence required in a petition for a writ of habeas data? A: The court shall render judgment within (10) days from the time the petition is submitted for decision. the court shall enjoin the act complained of. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect of an institution of a criminal action? A: No separate petition for the writ shall be filed. civil or administrative actions? A: The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. SABUGO & JOHN HENRY C. 10. Note: A general denial of the allegations in the petition shall not be allowed. A: 1. (Sec. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or order the deletion. 11. the petition shall be consolidated with the criminal action. 7. unless reasonably extended by the Court. CONTENTS OF RETURN Q: What should the respondent allege in his verified return? A: The respondent. CONSOLIDATION Q: What happens when a criminal and/or civil action is filed after the filing of the petition for writ of habeas data? Q: What are the differences between the writs? A: HABEAS CORPUS You have the body AMPARO To protect HABEAS DATA Literal interpretation You have the data KALIKASAN It is a Filipino word which means “nature” in English ACADEMICS CHAIR: LESTER JAY ALAN E. within 5 working days from the service of the writ.

There is an actual or threatened violation of the aggrieved party’s right. nongovernmental organization. or of a private individual or entity engaged in the gathering. SUBJECT HEAD: ANGELI P. liberty. or with SC. MARA KHRISNA CHARMINA F. to do. KRISTINE P. or any public interest group accredited by or registered with any government agency. Habeas Data Who may file a petition In the following order: 1. SY. MEMBERS: AKEMI B. Amparo Kalikasan A natural or juridical person. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. disappearances: descendant. Habeas Corpus 1. 08-1-16-SC Description Remedy available to any person whose right to privacy in life. MICHAEL ANGELO V. and security of the aggrieved party and covers extralegal killings and enforced disappearances.M. SR. Party for whose relief it is intended. Any concerned citizen. at the option of the petitioner. or a. Any ascendant. or SC or any member thereof. A. act or omission was committed or any of its elements occurred. RTC of the place where the threat. There is an actual or threatened violation of the aggrieved party’s right. RONN ROBBY D. KATRINA NADINE G. YRIZ TAMIE A. and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. A. CA or SB when the action concerns public data files or government offices. No. Any member of the 2. JUSTICE OSCAR C. 1. SC or any justice thereof. Any ascendant. entity authorized by law. or that which has jurisdiction over the place where the data or information is gathered. MENDOZA. No. RTC or any judge thereof. Rule 102 Writ directed to the person detaining another. HERRERA. LANTIN. liberty. SUBJECT HEADS: DARRELL L. on behalf of persons whose constitutional right to a balanced and healthful ecology is violated. LIM. CA or any justice thereof.. home and correspondence of the aggrieved party. health or property of inhabitants in two or more cities or provinces. MARIANO. with the day and cause of his capture and detention. family. UNICA AMOR R. SHERY PAIGE A. BAGANG. FLORES.UST GOLDEN NOTES 2011 Governing rule A. people’s organization. or Any person on his behalf 2. JR. BORJA. PINEDA. QUIAMBAO. th within the 4 civil descendant. or threatened with violation by an unlawful act or omission of a public official or employee. liberty.M. collected or stored. 206 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. GRETCHEN C. EDELISE D. MIJARES. entity authorized by law. 09-6-8-SC Special remedy available to a natural or juridical person. collecting. DONNA GRAGASIN. DIANE CAMILLA R.M. There is an actual violation of the aggrieved party’s right. nongovernmental organization. or affinity organization. JUSTICE JAIME M. CA or any member thereof in instances authorized by law. AIDA. Involves the right to life. ALBAÑA. and security of the aggrieved party and covers extralegal killings and enforced disappearances. Involves the right to privacy in life. SB or any justice thereof. MA. Where to file RTC where the petitioner or respondent resides. people’s organization. involving environmental damage of such magnitude as to prejudice the life. MANANQUIL. submit to. There is an actual or threatened violation of one’s right to a healthful and balanced ecology involving environmental damage.. or storing of data or information regarding the person. ROSALES . and receive whatsoever the court or judge awarding the writ shall consider in that behalf. or of a private individual or entity. Any member of the collateral relative of immediate family the aggrieved party b. or any public interest group accredited by or registered with any government agency. CONTRIBUTORS: VICENTE JAN O. JUDGE CESAR D. or collateral degree of relative of the aggrieved consanguinity or party within the 4th civil affinity degree of consanguinity 3. commanding him to produce the body of the prisoner at a designated time and place. JUANENGO. Rights violated Constitutional right to a balanced and healthful ecology. or private individual or entity. No. PLATON III. DUMLAO. RHONDEE E. in cases of extralegal immediate family killings and enforced 2. STAMARIA. Any aggrieved party. TERESE RAY-ANNE O. AQUINO. ASST. In SC or any stations of the CA. However. Coverage Involves the right to liberty of and rightful custody by the aggrieved party. 07-9-12-SC Remedy available to any person whose right to life.

If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered. act or omission was committed or any of its elements occurred. If granted by SC or CA: enforceable anywhere In the Philippines. If granted by RTC: returnable before such court If issued by SC. home and correspondence of the aggrieved party. or before SB. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. which period may be together with supporting reasonably extended by the Court affidavits. Service of writ Petitioner is exempted from payment Served upon the respondent personally. Enforceability of the writ Public official or employee. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.SPECIAL PROCEDINGS association institution or May or may not be an officer. returnable before such court or CA. collected or stored. or substituted service. Served upon the person to whom it is directed. SABUGO & JOHN HENRY C. before such court. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. family. ACADEMICS CHAIR: LESTER JAY ALAN E. Habeas Corpus Kalikasan If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof. or substituted service Served upon the respondent personally. collecting or storing or a private individual or of data or information regarding the entity. Respondent Public official or employee or a private individual or entity engaged Public official or employee in the gathering. for justifiable reasons. and if not found or has not the prisoner in his custody. If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat. Person who makes the return Respondent Respondent Respondent On the day specified in the writ When to file a return The respondent shall file a verified Within 5 working days written return together with after service of the writ. If issued by SC or any of its Amparo Within nonextendible period of 10 days after the service of writ. MASACAYAN & THEENA C. or substituted service Served upon the respondent personally. person. private individual or entity. MARTINEZ 207 . to the other person having or exercising such custody Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found Petitioner is exempted from payment Payment is required. Note: Rule on indigent petitioner applies. supporting affidavits within 5 the respondent shall file a working days from service of the verified written return writ. If issued by SC or any of its justices: returnable before such court. Habeas Data Return If issued by RTC: returnable If issued by RTC: returnable before such court. If granted by RTC: enforceable only within the judicial district Enforceable anywhere in the Philippines regardless of who issued the same Enforceable anywhere in the Philippines Docket fees Payment is required Note: Rule on indigent petitioner applies.

PINEDA. affidavit. 2. or before SB. 9. Not allowed. MICHAEL ANGELO V. one rare instance where the SB. 10. STAMARIA. JUDGE CESAR D. and Motion to declare respondent in default. the writs of habeas corpus. Reply. or to any RTC of the place where the threat. Hearing The hearing including the preliminary conference shall Summary hearing shall be Summary hearing shall be Date and time of not extend beyond sixty (60) conducted not later than 7 conducted not later than 10 hearing is specified in days and shall be given the days from the date of working days from the date the writ. SHERY PAIGE A. Third . MEMBERS: AKEMI B. MARA KHRISNA CHARMINA F. GRETCHEN C. position paper and other pleadings. JUSTICE OSCAR C. JUANENGO. is not vested with jurisdiction to issue writ of amparo. Note: In writ of amparo. 6. JR. Petition for certiorari. 11. Liability of the person to whom the writ is directed if he refuses to make a return Forfeit to the aggrieved party the sum of Imprisonment or fine for Imprisonment or fine for Indirect contempt. FLORES. SR. Motion for a bill of particulars. DIFFERENCES UNDER RULE 103. collected or stored General denial Not prohibited. and may also be committing contempt. RONN ROBBY D. and 12. CHANGE OF NAME 1.UST GOLDEN NOTES 2011 justices: returnable before such court. JUSTICE JAIME M. Not allowed. act or omission was committed or any of its elements occurred Habeas Corpus 1. punished for contempt. Motion to declare respondent in default. MA. KRISTINE P. CA and RTC. Amparo Habeas Data Prohibited pleadings None Motion to dismiss. QUIAMBAO. BAGANG. amparo and habeas data.party complaint. 8. 2. MENDOZA. 3. PLATON III. P. CA. Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration. DIANE CAMILLA R. MIJARES. Motion for extension of time to file return. UNICA AMOR R. Counterclaim or crossclaim. Motion for a bill of particulars. HERRERA. 8. CA. same priority as petitions for issuance of the writ. RHONDEE E. KATRINA NADINE G. 5. CONTRIBUTORS: VICENTE JAN O. 5 working days from the date of notice of the adverse judgment. notwithstanding its status as a special court. MANANQUIL. or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered. LANTIN. P1000. SUBJECT HEAD: ANGELI P. DONNA GRAGASIN. EDELISE D. SUBJECT HEADS: DARRELL L. 7. Motion for postponement. of issuance of the writ. TERESE RAY-ANNE O. Motion to dismiss. BORJA. Third-party complaint. YRIZ TAMIE A.claim..A. R. MARIANO. Not allowed. Dilatory motion for postponement. mandamus or prohibition against any interlocutory order. ALBAÑA. Counterclaim or cross . 3. AIDA. 7. Motion for reconsideration of interlocutory orders or interim relief orders. LIM. Reply. albeit acting as a special court being in the same rank of CA and SB. Motion for extension of time to file opposition. Intervention. Take note that CTA. SY. Period of appeal Within 48 hours from notice of the judgment or final order appealed from. is vested with jurisdiction co-equal with SC. 208 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.. Memorandum. 5 working days from the date of notice of the judgment or final order. R. DUMLAO. 9048 AND RULE 108 Discuss the differences among Rule 103 (Change of Name). 5.A. committing contempt. Kalikasan 1. 6. 4. 4. ROSALES . ASST. 9048 (Administrative Correction of Clerical or Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or Typographical Error). AQUINO.

2. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Rule 108 Correction of or substantial errors of entries in the Civil Registry/ cancellation of entries. hearing is necessary Summary if it involves clerical errors Adversarial if it involves substantial errors. Anyone authorized by law or owner of the record. The petitioner finds the first name or nickname to be ridiculous. registry is located. Who must be notified Interested parties/Solicitor General need not be notified.SPECIAL PROCEDINGS A: Rule 103 Change of first name or surname. grandparents. MARTINEZ 209 . Owner of the record. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Administrative. Name is ridiculous. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or 3. Verified petition. tainted with dishonor or extremely difficult to write or pronounce. The change will avoid confusion. Initiated by Sworn affidavit. Habitual and continuous used and been known since childhood by a Filipino name. Order for hearing shall be published once a week for 3 consecutive weeks. 5. Publication Order for hearing in case of change of first name/nickname shall be published once a week for 2 consecutive weeks. decree or order concerning brothers. N/A ACADEMICS CHAIR: LESTER JAY ALAN E. Consul general. parents.A. A sincere desire to adopt a Filipino name to erase signs of former alienage. RTC of the province where the petitioner resides at least 3 months. Grounds Civil registrar as respondent. Local Civil Registry office where the record RTC where the corresponding civil is kept. Consequence of a change of status. The change will avoid confusion. R. hearing is not necessary. 4. Judicial. 7 or CA CA under Rule 41 under Rule 43 Who may file Petition is filed by the person of legal age who must have a direct and personal interest in the correction: 1. guardian. 2. Solicitor General/ Interested parties. Where to file 1. unaware of her alien parentage. Verified petition. all in good faith and without prejudicing anybody. the civil status of persons. 2. SABUGO & JOHN HENRY C. hearing is necessary. MASACAYAN & THEENA C. Where to appeal . When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name should 1. Solicitor General/ Interested parties. CA under Rule 41 Filed by the person desiring to change his name. Any person interested in the act. or 6. 3. 2. Order for hearing shall be published once a week for 3 consecutive weeks. sisters. or 3. Nature Judicial. 1. tainted with dishonor or extremely difficult to write or pronounce. children. in case of adverse decision Civil Registrar General under Sec. Owner’s spouse. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 9048 Scope Change of first name or nickname/ correction of clerical errors of entries in the Civil Registry. event.

G. KRISTINE P. No. then the procedure to be adopted is summary. and Change of name. or When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name should prejudice public interest. 14. MICHAEL ANGELO V. 11. MIJARES. PLATON III. Marriages. except corrections involving the change in sex. Entries subject to correction 1. Note: If the absentee left no properties. If the rectification affects the civil status. 88202. GROUNDS FOR CHANGE OF NAME Q: What are the grounds for change of name under Rule 103? A: nationality of a party. ABSENTEES 1. 16. citizenship or 210 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. PURPOSE OF THE RULE 1. 4. 3. such as a misspelled name or place of birth and the like.UST GOLDEN NOTES 2011 prejudice public interest. and 2. CA. Correction of clerical or typographical errors in the civil registry 2. 3. JUSTICE OSCAR C. 2) NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work. BAGANG. all in good faith and without prejudicing anybody. it is deemed substantial. 14. 1998). 9. Consequence of a change of status. Acknowledgments of natural children. Judgments of annulments of marriage. 4. If the correction sought to be made in the civil registrar is clerical. Adoptions. SR. MARA KHRISNA CHARMINA F. When a person disappears from his domicile his whereabouts being unknown. 13. DIANE CAMILLA R.. change of first name or nickname in the civil registry 1. STAMARIA. Deaths. (Republic v. JUSTICE JAIME M. 5. ROSALES . ALBAÑA.. MEMBERS: AKEMI B. (Republic v. QUIAMBAO. relative or friend. SUBJECT HEADS: DARRELL L. tainted with dishonor or extremely difficult to write or pronounce. This is proper only where the absentee has properties to be administered. 7. A sincere desire to adopt a Filipino name to erase signs of former alienage. 14. change of name may either be summary or adversary in nature. AIDA. and can be corrected or changed only by reference to other existing record or records. 1986) Note: Under Rule 108. RHONDEE E. MENDOZA. 155 SCRA 1. Oct. 2(3) of RA 9048] 2. Bautista. 5. 1987). JUDGE CESAR D. SY.R. 88202. Judgments declaring marriages void from the beginning. FLORES. Legitimations. L-46187. MANANQUIL. JR. SUBJECT HEAD: ANGELI P. or typing an entry in the civil register that is harmless and innocuous. The change will avoid confusion. KATRINA NADINE G. and the procedure to be adopted is adversary. 6. (Sec. TERESE RAY-ANNE O. SHERY PAIGE A. 2. ASST.R. unaware of her alien parentage. any interested party.R. Dec. Change of a person's first name or nickname in his or her civil registry. No. nationality and status of a person. (Republic v. transcribing. [Sec. Alejandro. EDELISE D. Q: What is the purpose of this Rule? A: It is to appoint an administrator over the properties of the absentee. YRIZ TAMIE A. or the power conferred upon the agent has expired. 6. LIM. either in writing. 1998). MARIANO. 12. GRETCHEN C. BORJA. Births. and without having left an agent to administer his property. Civil interdiction. 1. G. Election. MA. HERRERA. Name is ridiculous. UNICA AMOR R. Legal separations. Habitual and continuous used and been known since childhood by a Filipino name. CONTRIBUTORS: VICENTE JAN O. 8. age. G. 10. LANTIN. PINEDA. 2. Dec. such petition is not necessary. copying. DONNA GRAGASIN. RONN ROBBY D. loss or recovery of citizenship. may petition the RTC of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. 26. AQUINO. (Reyes v. JUANENGO. CA. Correction of clerical or typographical errors in any entry in civil registry documents. No. Naturalization. Judicial determination of filiation. Jan. Q. DUMLAO.

8. CA. Civil interdiction. G. 11. 4. files his opposition thereto. may file a verified petition for the cancellation or correction of any entry relating thereto. 1986) Q: What is meant by appropriate adversarial proceeding? A: One which has opposing parties. Judicial determination of filiation. Rule 107) Q: What are the requisites of adversarial proceedings? A: 1. 5. Spouse present. may file a petition for declaration of and appointment of administrator or Note: Rule 108. R. 10. 3. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. one of which the party seeking relief has given legal warning to the other party. (Republic v. of the last news about the absentee. (Sec. 2) Q: May the trial court issued an order declaring the nullity of marriage under Rule 108 and change the status from married to single? A: No. Adoptions. 7. event. order or decree concerning the civil status of persons which has been recorded in the civil register. Notice must be given to the Civil Registrar and all parties affected thereby. and Change of name. Legitimations. Births. with the RTC of the province where the corresponding civil registry is located (Sec. Proper petition is filed where the Civil Registrar and all parties interested are impleaded. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. No. Mar. Oct. After 5 years – If he left an administrator of his property. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Q: Who may file a petition for cancellation or correction of entries? A: Any person interested in any act. 2.) 1. 2. Valencia. 4. From his disappearance and without any news about the absentee. (Republic v.) Q: When should a petition for declaration of absence and appointment of administrator or trustee be filed? A: 1. 1). (Lim v. Rule 107) 2. 5. the proceedings are adversarial in nature. Those who have over the property of the absentee some right subordinated to the condition of his death. WHEN TO FILE Q: Who absence trustee? A: 1.R. Deaths. loss or recovery of citizenship.SPECIAL PROCEEDINGS 2. 8932. G. 3. 2. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108. 6. The civil registrar and any person interested. may within 15 days from notice or from the last date of publication. Marriages. The order of hearing must be published once a week for three consecutive weeks. 11. is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. and Full blown trial. 1957) ACADEMICS CHAIR: LESTER JAY ALAN E. (Republic v. Republic. 3. 12.R. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Valencia. (Sec. WHO MAY FILE A PETITION. Judgments of annulments of marriage. Valencia. 2001). Election. Relatives who will succeed by intestacy. or b. when all the procedural requirements thereunder are followed. 5. After 2 years: a. Naturalization. Q: What is the nature of proceedings in Rule 108? A: It is summary if the entries in the civil register sought to be corrected are clerical or innocuous in nature. L-32181. supra. (Sec. Ibid. Legal separations. where such entries sought to be corrected or changed are substantial. 9. IN RELATION TO RA 9048 Q: What are the entries subject to cancellation or correction under Rule 108? A: 1. 2. 13. Judgments declaring marriages void from the beginning. No. Acknowledgments of natural children. and afforded the latter an opportunity to contest it. 2. No. G. 14. May 31. SABUGO & JOHN HENRY C. Heirs instituted in the will. contested as distinguished from an ex parte application. L-118387.R. However. MARTINEZ 211 . it is proper only in ordinary adversarial proceedings. 4. MASACAYAN & THEENA C.

) Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the ground of falsified material entries therein made by Celine’s husband as the informant. No. did not acquire jurisdiction.. MARIANO. PINEDA. CONTRIBUTORS: VICENTE JAN O. (d) giving reasonable notice to the parties named in the petition. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. In this case. SUBJECT HEADS: DARRELL L.R. any claim against the estate of a deceased person. Jeanie filed a petition for annulment of judgment before the CA. (c) issuance of an order fixing the time and place of hearing. SUBJECT HEAD: ANGELI P. Kho. (Ceruila v. who is married to another woman living in China. (Lee v. A petition for correction is an action in rem. 140305. MICHAEL ANGELO V. SY. G. Alternative Answer: It should not be granted.UST GOLDEN NOTES 2011 Q: Within what period may a petition for correction or cancellation of entries be filed? A: The law did not fix a period within which the petition for correction under Rule 108 in relation to Art. JUDGE CESAR D. 2004). MA. HERRERA. CA. The RTC granted the petition. The decision on the petition binds not only the parties thereto but the whole world. BAGANG. G. administrator. The lower court. UNICA AMOR R. Settles the account of an executor. G. 2. and not from the date the birth certificate was registered in the civil registry. Jan. ASST. trustee or guardian. G. APPEALS IN SPECIAL PROCEEDINGS 1. The RTC sets the case for hearing and directs the publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. ALBAÑA. 2005. No. 20. an action against a thing and not against a person. and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. QUIAMBAO. Allows or disallows. publication of the order is insufficient because Jeanie. 212 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. DIANE CAMILLA R. Dec. JR. Rule. 5. KRISTINE P. was not given reasonable notice. Determines who are the lawful heirs of a deceased person. 412 of Civil Code may be filed. BORJA. SHERY PAIGE A. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. MEMBERS: AKEMI B. (2007 Bar Question) Q: Helen is the daughter of Eliza. denied due process.R. therefore. Celine opposed saying that the publication of the court order was sufficient compliance with due process. A: The petition for annulment of judgment before the CA should be granted. AQUINO. PLATON III. hence. RHONDEE E. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN Q: What are the orders or judgments from which appeal may be taken? A: An interested person may appeal when such order or judgment: 1. An in rem proceeding is validated essentially through publication. A petition to change the record of birth by changing the filiation from “legitimate” to “illegitimate” and petitioner’s citizenship from “Chinese” to “Filipino” does not involve a simple summary correction which could otherwise be done under the authority of R. YRIZ TAMIE A. or the distributive share of the estate to which such person is entitled. 9048. LANTIN. Accordingly. June 29. 4. No. (b) naming as parties all persons who have or claim any interest which would be affected. MARA KHRISNA CHARMINA F. Procedural requirements include: (a) filing a verified petition. DONNA GRAGASIN. a Chinese. CA. in the proceedings relating to the settlement of the estate of a deceased person. such petition may be filed within 5 years from time the petitioner discovered the error or mistake in the civil registry. 2005). MENDOZA. SR. or the administration of 3. JUANENGO. 2007.A. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. TERESE RAY-ANNE O. 120587. Barco v. Constitutes. the decision was issued in violation of due process. 9. saying that she was not notified of the petition and hence. (2005 Bar Question) S. JUSTICE OSCAR C. a directly concerned party. STAMARIA. FLORES. RONN ROBBY D. Allows or disallows a will. a Filipina. MIJARES. Jurisdiction of the court over a petition for cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. GRETCHEN C. Helen wants her birth certificate corrected by changing her filiation from "legitimate" to "illegitimate" and her citizenship from “Chinese" to "Filipino" because her parents were not married.R. MANANQUIL. and Tony. July 29. Alba v. 164041. ROSALES . Summons was served on the Civil Registrar but there was no appearance during the hearing. What petition should Helen file and what procedural requirements must be observed? Explain. JUSTICE JAIME M. It is the publication of such notice that brings in the whole as a party in the case and vests the court with jurisdiction to hear and decide it (Republic v. CA.R. or any claim presented on behalf of the estate in offset to a claim against it. in whole or in part. DUMLAO.. Delantar. LIM. AIDA. No. A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. 170340. EDELISE D. supra. KATRINA NADINE G.

2. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Rule 109). Order directing the administrator to take action to recover an amount due to the estate. 4.SPECIAL PROCEEDINGS a trustee or guardian. L-29460. upon compliance with the conditions set forth in Rule 90 of these rules. Order granting or denying a motion for new trial or for reconsideration. MARTINEZ 213 . A: 1. WHEN TO APPEAL Q: When should the appeal in special proceedings be filed? A: Special Proceedings Habeas Corpus Writ of Amparo Writ of Habeas Data Writ of Kalikasan PERIOD FOR APPEAL 30 days (Record on Appeal required) 48 hours from service of judgment 5 working days from date of notice of judgment 5 working days from date of notice of judgment 15 days from notice of judgment or denial of motion for reconsideration 4. Rule 40 (Appeal from MTC to RTC) – By filing a notice of appeal. except orders granting or denying a motion for new trial or for reconsideration (Sec. (Sec. permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees. 22. Rule 45 (Appeal by certiorari to the SC) – By filing of verified petition for review on certiorari and payment of fees which shall raise questions of law only XPN: Any party may raise questions of fact in their appeal in cases of writ of amparo. ACADEMICS CHAIR: LESTER JAY ALAN E. MASACAYAN & THEENA C. except that no appeal shall be allowed from the appointment of a special administrator. record on appeal and payment of appeal fees on questions of law or fact or both. and affects the substantial rights of the person appealing. Yangco. 1928) 3. Rule 65 (Petition for certiorari) – By filing of verified petition for certiorari on the ground that the court acted without or in excess of jurisdiction or with grave abuse of discretion. 3. Is the final order or judgment rendered in the case. 2. record on appeal and payment of appeal fees on questions of law or fact or both. Order appointing a special administrator. 5. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. SABUGO & JOHN HENRY C. 4. in its discretion and upon such terms as it may deem proper and just. RULE ON ADVANCE DISTRIBUTION Q: When can an advance distribution be made despite a pending controversy in the settlement of an estate? A: Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent. Order made in administration proceedings relating to the inclusion or exclusion of items of property in the inventory of executor or administrator. how perfected and their grounds? 2. Rule 42 (Petition for review from the RTC to the CA in exercise of its appellate jurisdiction) – By filing a notice of appeal. habeas data and kalikasan. Dec. (Panis v. the court may. Rule 41 (Appeal from the RTC to CA in exercise of its original jurisdiction) – By ordinary appeal by filing a notice of appeal.R. Note: A stranger having neither material nor direct interest in a testate or intestate estate has no right to appeal from any order issued therein. a final determination in the lower court of the rights of the party appealing. record on appeal and payment of appeal fees on questions of law or fact or both. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. MODES OF APPEAL Q: What are the modes of appeal. Q: What are the orders that are not appealable? A: 1. G. 1. 3. No. 2) 6.

and for their punishment. MICHAEL ANGELO V. A: Criminal Law Substantive It declares what acts are punishable It defines crimes. DONNA GRAGASIN. ASST. in which case the court where the action is pending is ousted of jurisdiction and the pending action will have to be transferred to the court having jurisdiction by virtue of the amendatory law (Binay v. Jurisdiction Over the Person of the Accused May be acquired by consent of the accused (by voluntary appearance) or by waiver of objections. Note: Jurisdiction is determined by the law in force at the time of the commencement of the action Q: What are the requisites for the valid exercise of criminal jurisdiction? A: 1. 1976). MARA KHRISNA CHARMINA F. TERESE RAY-ANNE O. SUBJECT HEAD: ANGELI P. KRISTINE P. GENERAL MATTERS 4. JUDGE CESAR D. KATRINA NADINE G. DIANE CAMILLA R. GRETCHEN C.. is one which the court is by law authorized to take cognizance of. Q: What determines jurisdiction of the court in criminal cases? A: 1. by virtue of the imposable penalty or its nature. Subsequent statutory amendment of the rules of jurisdiction UNLESS the amendatory law expressly provides otherwise or is construed that it is intended to operate to actions pending before its amendment. 1964) or. treats of their nature and provides for their punishment Criminal Procedure Remedial It provides how the act is to be punished It provides for the method by which a person accused of a crime is arrested. SY. YRIZ TAMIE A. L-40527. If he fails to make his objection on time. Subsequent valid amendment of the information (People v. IV. No. b. MENDOZA. Chipeco GR No. PINEDA.UST GOLDEN NOTES 2011 CRIMINAL PROCEDURE A. the place may be shown by evidence. 2. MA. Q: What is criminal procedure? A: It is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense. he will be deemed to have waived it. The geographical limits of its territory. RHONDEE E. SUBJECT HEADS: DARRELL L. p. ALBAÑA. It can never be acquired solely by consent of the accused. A: Jurisdiction Over the Subject Matter Derived from the law. Determined by the law in force at the time of the institution of the criminal action and not at the time of its commission. Sandiganbayan GR No. Jurisdiction over the subject matter – the power to hear and determine cases of general class to which the proceeding in question belong. SR. EDELISE D. 214 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Determined by the allegations in the complaint or information not by the results of proof or by the trial’s court’s appreciation of the evidence presented. March 31. AIDA. LANTIN. JUANENGO. The offense. 2007 ed. October 1. CONTRIBUTORS: VICENTE JAN O. 1. Objection that the court has no jurisdiction over the subject matter may be made at any stage of the proceeding. MIJARES. JUSTICE JAIME M. MARIANO. 120011. AQUINO. DUMLAO. 3. June 30. Jurisdiction over the territory – The offense must have been committed or any of its essential ingredients took place within the territorial jurisdiction of the court. QUIAMBAO. ONCE VESTED IT CANNOT BE WITHDRAWN BY: a. 2. LIM. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION Q: What is criminal jurisdiction? A: It is the authority to hear and try a particular offense and impose the punishment for it (People v. 1968. BAGANG. Q: Distinguish procedure. 1999) 2.. DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM JURISDICTION OVER PERSON OF THE ACCUSED Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person of the accused. HERRERA. SHERY PAIGE A. MANANQUIL. RONN ROBBY D. BORJA. FLORES. JR. UNICA AMOR R. JUSTICE OSCAR C. PLATON III. in case of conviction (Herrera.). GR. Determined by the nature of the offense and/ or penalty attached thereto and not what may be meted out after trial. STAMARIA. MEMBERS: AKEMI B. Mariano. ROSALES . Vol. and the right to make such objection is never waived. criminal law from criminal 1. It cannot be waived and where the place of the commission was not specifically charged. tried or punished.

G. a court can dismiss a case motupropio XPN: The party raising the question is guilty of estoppel or laches (Tijam v. But the court which first acquires jurisdiction excludes the other courts. the violation of the law is deemed continuing (e. A: It is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime. 9. IV. 1990). 26. Q: Which court has jurisdiction over crimes punishable by destierro? A: Where the imposable penalty is destierro. Q: Which court has jurisdiction over continuing crimes? A: Continuing offenses are consummated in one place.000 pesos or less. Where the prosecution is under an invalid law. MARTINEZ 215 . When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions. Jan. The RTC has jurisdiction where the fine is more than 4. When there is a prejudicial question which is subjudice. L-46934. It must be prosecuted integrally and must not be divided into component offenses which may be made subject of multiple information brought in different courts (Cuyos v.R. 3. 65192. No. the case falls within the exclusive jurisdiction of the Municipal Trial Court. 4. No. 26. No. 09-94) except in cases of criminal negligence involving damage to property which falls under the exclusive original jurisdiction of the MTC. Accessory penalties and civil liabilities are no longer determinative of criminal jurisdiction. 1988). G. G.R. how is jurisdiction determined? A: In cases where the only penalty provided by law is a fine. the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. 1968) 3. Garcia. 71 of the RPC.000 pesos including offenses committed by public officers and employees in relation to their office. 88232. ordinance or regulation.000 pesos (SC Court Circular No.g. As such. Feb. SABUGO & JOHN HENRY C. when the subsequent statute expressly provides. 15. the amount thereof shall determine the jurisdiction of the court. Q: What is the principle of adherence? A: It provides that once jurisdiction is vested in the court. JURISDICTION OF CRIMINAL COURTS Q: How is jurisdiction determined? A: It is determined by the allegations in the complaint or information not by the results of proof or by the trial court’s appreciation of the evidence presented (Buaya v. The MTC has jurisdiction where the fine is 4. No. XPNs: 1.R. it is retained up to the end of litigation (Dela Cruz v. Sibonghanoy. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION Q: Will injunction lie to restrain criminal prosecution? A: GR: Writs of injunction or prohibition to restrain criminal prosecution are generally not available because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.estafa and libel). Apr. When double jeopardy is clearly apparent. Eduarte. yet by the nature of the offense.).R. Q: In complex crimes. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. When the acts of the officer are without or in excess of authority. No. 2007 ed.CRIMINAL PROCEDURE 3. G. Apr. Q: Is there an exception to the principle of adherence? A: Yes. or is construed that it shall have retroactive effect to pending case (Herrera. p. 2. G. L-21450. Q: If fine is the only penalty. 4. Jurisdiction over the person of the accused – The person charged with the offense must have been brought to its presence for trial. Polo. 6. 15. destierrofollowsarresto mayor which involves imprisonment (People v. considering that in the hierarchy of penalties under Art. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. where the amount of the fine does not exceed 6. Vol. Note: GR: Questions of jurisdiction may be raised at any stage of the proceedings and for lack of it.R. To afford adequate protection to the constitutional rights of the accused. how is the jurisdiction of a court determined? ACADEMICS CHAIR: LESTER JAY ALAN E. 75097. Apr. 27. forcibly by warrant of arrest or upon his voluntary submission to the court. 1989). 5. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 1988). Moya. MASACAYAN & THEENA C.

G. UNICA AMOR R. PROSECUTION OF OFFENSES 1. 9. there should have been a confrontation between the parties before the Lupon chairman. By filing the complaint or information directly with the Municipal Trial Court of Municipal Circuit Trail Court. YRIZ TAMIE A. MIJARES. prevails. 10. LANTIN. MICHAEL ANGELO V. DIANE CAMILLA R. JUSTICE JAIME M. DONNA GRAGASIN. AQUINO. XPNs: 1. G. 8. SUBJECT HEADS: DARRELL L. The Lupon secretary must certify that no conciliation or settlement was reached. Where a preliminary investigation is required. SR. 1992). GRETCHEN C. Reyes. RONN ROBBY D. the complaint shall be filed with the prosecutor regardless of the imposable penalty (Section 1. MENDOZA. JUSTICE OSCAR C. BAGANG. MARA KHRISNA CHARMINA F. Sandiganbayan. or By filing the complaint with the office of the prosecutor. KRISTINE P. STAMARIA. JUANENGO. ALBAÑA. MEMBERS: AKEMI B. Rules of Court) A: There is NO DIRECT FILING of an information or complaint with the RTC because its jurisdiction covers offenses which require preliminary investigation. LIM. Where the accused is under detention Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings Where actions are coupled with provisional remedies Where the action may be barred by the statute of limitations Q: Can the complaint or information be directly filed in the Regional Trial Court or Metropolitan Trial Court or other chartered cities? 216 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. July 3. a criminal action is instituted by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. FLORES. SUBJECT HEAD: ANGELI P. Mar. XPN: Prescriptive periods of violations of special laws and municipal ordinances governed by Act No. and 11. No 129904. No. KATRINA NADINE G.. EDELISE D. MANANQUIL. Rule 110. b. Q: How is criminal action instituted? A: The institution of a criminal action depends upon whether the offense requires a preliminary investigation. CRIMINAL ACTIONS. as a rule. QUIAMBAO. ROSALES . Where the court has no jurisdiction over the offense. RHONDEE E. AIDA. Where a preliminary investigation is not required. Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners (Domingo v. the complaint shall be filed with the office of the prosecutor. The complaint may also be filed if the settlement is repudiated by the parties. JR. B. the former. Note: 1. 3. Before a complaint is filed in court. Where the charges are manifestly false and motivated by lust for vengeance. (Section 1. HERRERA. Q: What is the effect of institution of the criminal action on the prescriptive period? A: GR: It interrupts the running of the period of prescription of the offense charged (Sec.R. including other chartered cities. DUMLAO. PLATON III. For Metro Manila and other chartered cities. 2002). unless otherwise provided by their charters. 3323 (An Act to Establish Periods of Prescription for Violations Penalized by Special Laws and Municipal Ordinances and to Provide When Prescription shall Begin to Run) shall only be interrupted by the filing of a complaint or information in court. CONTRIBUTORS: VICENTE JAN O. Where it is a case of persecution rather than prosecution. SY. MA. Q: May the offended party go directly to court to file a criminal action? GR:No. Rule 110. BORJA.. There is likewise NO DIRECT FILING with the Metropolitan Trial Court because in Manila. attested to by the Lupon chairman. being substantive law. MARIANO. PINEDA. Jr. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. Rules of Court) Cases falling within the jurisdiction of the RTC are always commenced by information filed by the prosecutor. 4. TERESE RAY-ANNE O. 16. HOW INSTITUTED Q: What is criminal action? A: It is one by which the State prosecutes a person for an act or omission punishable by law. JUDGE CESAR D. SHERY PAIGE A.. 2.R. In case of conflict between a city charter and a provision of the Rules of Court. a criminal action is instituted either: a. 2. ASST. 102342.UST GOLDEN NOTES 2011 7. 1). The filing of a complaint with the prosecutor or the proper officer for purposes of conducting a preliminary investigation will not interrupt the prescriptive period (Zaldivia v.

i. Offended party’s parents. abduction or acts of lasciviousnessprosecuted exclusively and successively by the following persons in this order: 1. seduction. 5. Offended party. by the parents. the offended party. 2. 2. Ascendant or collateral relative within the third degree of consanguinity. CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO Q: What is the concept of an offense or crime that cannot be prosecuted de officio? A: These are crimes or offenses which cannot be prosecuted except on complaint filed by the offended party or if the offended party is a minor. Abduction 5. 5). or ACADEMICS CHAIR: LESTER JAY ALAN E. RA 7160) Q: May a minor file a complaint for seduction. Offended party’s grandparents. abduction. 2. If the offended party has consented to the offense or pardoned the offenders (Sec. 3. when the offended party: 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. MASACAYAN & THEENA C. 5). Note: The offended spouse cannot institute a criminal action for adultery 1. 2. 5). LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Seduction 4. Has no known parents. Parents or guardians. Without including the guilty parties if both are alive. SABUGO & JOHN HENRY C. LGC].e. social worker or representative of a licensed child-caring institution. rape or acts of lasciviousness. 3. 5. Barangay chairman. abduction or acts of lasciviousness in behalf of the offended party? A: Yes. All other crimes can be prosecuted de officio. Dies or becomes incapacitated before a complaint is filed. 2. MARTINEZ 217 . 3. The prescriptive period shall resume upon receipt of the certificate of repudiation or certificate to file action [Sec. abduction.CRIMINAL PROCEDURE Q: What is the rule regarding the prescriptive periods of cases falling under the authority of the Lupon? A: The prescriptive period shall be suspended from the time of the filing of complaint with the punong barangay which suspension shall not exceed 60 days. Officer. adultery. Officer or social worker of the Department of Social Welfare and Development. or 2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 6. Note: These are also known as private crimes. Rule 110). The offended party. grandparents or the guardian. Note: Such crimes cannot be prosecuted if the offender has been expressly pardoned by any of the abovementioned parties (Sec. Acts of lasciviousness Note: These are crimes which are by their nature cannot be prosecuted de officio Rape is now a crime against persons by virtue of RA 8353. or Offended party’s guardian (Sec. XPNs: Private crimes which may only be prosecuted by a complaint filed by the private offended party. even if a minor. Concubinage 2. Q: Who can legally file a complaint for crimes that cannot be prosecuted de officio? A: 1.: 1.Adultery or concubinage. Seduction.Only the offended spouse may file a complaint for adultery or concubinage(Sec. last paragraph. 410(c). Exploitation and Discrimination Act)? A: The complaint may be filed by the following: 1. At least three (3) concerned. 4. or acts of lasciviousness? A: GR: Yes. 27. Adultery 3. Defamation imputing to a person any of the foregoing crimes of concubinage. has the right to initiate the prosecution of such Q: Are all crimes initiated by a complaint or information filed by the prosecutor? A: GR: Yes. responsible citizens where the violation occurred (Sec. 4. Revised Penal Code) Q: Are there instances where the State may initiate the action for seduction. Q: Who may file a complaint on cases of unlawful acts in RA 7610 (Special Protection of Children against Child Abuse. or 7. grandparents or guardian (Sec. Defamation 6. 5).only by the party or parties defamed (Article 360. WHO MAY FILE THEM.

218 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. HERRERA. ALBAÑA. Note: The pardon refers to pardon before filing of the criminal complaint in court. GRETCHEN C. BAGANG. abduction. b. If the offended woman is of age and not otherwise incapacitated. in that order. accomplices and accessories. seduction. it must be extended to both offenders Consent Refers to future acts In order to absolve the accused from liability. STAMARIA. extend a valid pardon in said crimes without the conformity of the offended party. The parents. and acts of lasciviousness. MANANQUIL. Rule 110). 3. UNICA AMOR R. even after the filing of the complaint. SY. MICHAEL ANGELO V. JUANENGO. RHONDEE E. Incompetent. grandparents or guardian may file the same. YRIZ TAMIE A. Q: Can the father file a complaint on behalf of his daughter for concubinage? A: No. is the criminal liability of the accused extinguished? A: No. BORJA. Q: Who can give pardon? A: 1. or 2. DUMLAO. LIM. his parents. she has the exclusive right to file the complaint unless she becomes incapacitated. not otherwise incapacitated. TERESE RAY-ANNE O. The right granted to the former shall be excusive and successive in the order herein provided (Sec. LANTIN. Q: In cases of seduction. SR. and guardian only have exclusive. SUBJECT HEAD: ANGELI P. and In multiple rape. SHERY PAIGE A. seduction. Q: Can the offended party intervene in the criminal action? A: GR: The offended party has the right to intervene by counsel in the prosecution of the criminal action where the civil action for the 2. can her parents file the complaint for her? A: No. only she can extend a valid pardon. it is sufficient even if granted only to the offending spouse c. SUBJECT HEADS: DARRELL L. if with sufficient discretion. abduction or acts of lasciviousness may a minor extend pardon? A: Yes. ASST. successive authority to file the case if the offended party is still a minor. can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead. Pardon effected after the filing of the complaint in court does not prohibit the continuance of the prosecution of the offense. KRISTINE P. Concubinage and adultery – only the offended spouse. Incapable of doing so (Sec. XPNs: Q: Distinguish pardon from consent. 5. The parents. in so far as the other accused in the other acts of rape committed by them are concerned. XPN: If the minor is: 1. JUDGE CESAR D. PINEDA. MIJARES... ROSALES . The rule allowing the parents. of his parents. together with that of the coprincipals. JR. a. MA. If the offended party is already of age. MEMBERS: AKEMI B. AIDA. AQUINO. MARA KHRISNA CHARMINA F. MARIANO. and acts of lasciviousness is of age.UST GOLDEN NOTES 2011 offenses independently grandparents or guardian. rape or acts of lasciviousness and in slander by deed. Q: Does the subsequent marriage of the accused and offended party extinguish the criminal liability? A: GR: The subsequent marriage between the party and the accused. but the pardon to be effective as to prevent prosecution of the accused must be given by both parents and the offended party. Note: If the minor fails to file a complaint. CONTRIBUTORS: VICENTE JAN O. QUIAMBAO. even if the latter is a minor. JUSTICE JAIME M. RONN ROBBY D. The offended minor. A: Pardon Refers to past acts In order to absolve the accused from liability. grandparents or guardian of the offended minor. JUSTICE OSCAR C. KATRINA NADINE G. A complaint for adultery or concubinage may be filed only by the offended spouse. extinguishes the criminal liability of the latter. abduction. In “private libel” or the libelous imputation of the commission of the crimes of concubinage.5Rule 110). and guardians to file a complaint on behalf of the minor applies only to the offenses of seduction. FLORES. grandparents. Seduction. adultery. grandparents. abduction and acts of lasciviousness: Where the marriage was invalid or contracted in bad faith in order to escape criminal liability. DIANE CAMILLA R. Q: If the offended party dies during the pendency of the case. DONNA GRAGASIN. 1. PLATON III. Q: If the offended party in abduction. MENDOZA. EDELISE D. 2.

Hagonoy Rural Bank. it is the prosecutor or the Ombudsman as the case may be. XPN: The private prosecutor (private counsel) may prosecute the case in the event and provided that: 1. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 33. The action may be prosecuted in the name of the said complainant. 34 or 2176 of the Civil Code. G. 2. Q: What is the effect of desistance made by the offended party in private crimes? A: It does not bar the People from prosecuting the criminal action. 126210. if the civil action for damages is filed separately from the criminal action and is based upon an independent civil action under Articles 32. 16). Mar. 427 SCRA 456) XPN: Where: 1.” 4. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. MARTINEZ 219 . through its special prosecutor. or the Solicitor General in cases before the CA or SC. the right to intervene is not lost because the subject of the suit does not arise from the crime. direct and control all criminal actions commenced by a complaint or information. Note:The rule that the Solicitor General is the lawyer of the People in appellate courts admits an exception. a complaint was already filed by the offended party with the prosecutor (People v. (Perez v. CRIMINAL ACTIONS.CRIMINAL PROCEDURE recovery of civil liability is instituted in the criminal action pursuant to Rule 111 (Sec. SABUGO & JOHN HENRY C. G. the same must likewise be undertaken by the State through the Solicitor General. 3. XPN: An offended party in a criminal case has sufficient personality to file a special civil action for certiorari.R. the complainant should not bring the action in the name of the People of the Philippines. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. From the nature of the crime and the law defining or punishing it. which states in part that “in all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court.g. or 2. 30. No. 9. MASACAYAN & THEENA C. issued in 1986. or 3. who has the personality and authority prosecute and file a petition in behalf of the State.R. Note: GR: Since it is the State who is the real offended party in a criminal case. 360 SCRA 359). 2. L-38308 3. The offended party had already instituted separate action. but it operates as a waiver of the right to pursue civil indemnity.R. G. no civil liability arises in favor of the offended party. vs. The private prosecutor must be authorized in writing by the Chief Prosecution Office or Regional State Prosecutor. if prior to the filing of a case in court. There is lack of public prosecutors. However. CONTROL OF PROSECUTION Q: Who prosecutes criminal actions? A: GR: The public prosecutor shall prosecute. Whenever there is acquittal or dismissal of the case and the private complainant intends to question such acquittal or dismissal. In so doing. the case must always be prosecuted under control and guidance of the State through the government prosecutors. the Office of the Ombudsman. even without the imprimatur of the State. The civil action to recover civil liability arising from the offense charged is not the one separately filed (Philippine Rabbit v. rebellion. Vamenta. 2000) 2. Only the Solicitor General may represent the People of the Philippines on appeal. will not extinguish the criminal liability of the accused whether total or partial (DonioTeves v. The private offended party or complainant may question such acquittal or dismissal or appeal therefrom only insofar as the civil aspect is concerned. namely. that which is provided for in RA 8249. shall represent the People of the Philippines. except in cases filed pursuant to EO 1. During the pendency of the case. 14 and 14-A. No.. L-57288. Will not be sufficient justification for the dismissal of the information. sedition. WHEN ENJOINED Q: When may criminal actions be enjoined? A: Whenever a criminal case is prosecuted and the State is the offended party. Ilarde. and Q: What is the effect of death by the offended party to the criminal action? A: Death of the complainant: 1. Inc. Apr. in the name of the petitioner or appellant and not in the name of the People of the Philippines (Metropolitan Bank and Trust Co. The offended party waived the right to civil indemnity. People. treason (crimes against national security). e. The public prosecutor has heavy work schedule. No. 1984) ACADEMICS CHAIR: LESTER JAY ALAN E. Veridiano II.

modify or set aside his resolution on the matter. IV. JUSTICE OSCAR C. 5). subscribed by the prosecutor and filed with the court (Sec. A: Complaint is a sworn written statement charging a person with an offense. DONNA GRAGASIN. ROSALES . MARIANO. KRISTINE P. or 3. Q: What are the limitations of control by the Court? A: 1. Prosecution’s stand to maintain prosecution should be respected by the court The court must make its own independent assessment of evidence in granting or dismissing motion to dismiss. the same can no longer be withdrawn or dismissed without the tribunal’s approval (Herrera. Waives the civil action. RONN ROBBY D. DUMLAO.R. TERESE RAY-ANNE O. AQUINO. SUFFICIENCY OF COMPLAINT OR INFORMATION Q: Define complaint. IV. It refers to the one filed in court for the commencement of the criminal prosecution. Judge Sunga. Reserves the right to institute it properly. p. ALBAÑA. LANTIN. Prosecution is entitled to notice of hearing Court must await for petition for review 220 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. BORJA. Institutes the civil action prior to the criminal action. MIJARES. 3). AIDA. MICHAEL ANGELO V. 3. MA. STAMARIA. BAGANG.). (Republic v. 4.. Note: The complaint contemplated under Sec. CONTRIBUTORS: VICENTE JAN O. RHONDEE E. June 20. 79. 3.UST GOLDEN NOTES 2011 4. however such intervention may be allowed if the offended party: 1. Otherwise. The remedy is an appeal to the Secretary of Justice. GRETCHEN C. Suspension of arraignment Reinvestigation Prosecution by the fiscal Dismissal of the case Downgrading of offense or dropping of accused even before plea 2. It requires no oath. MANANQUIL. 4. LIM. 2007 ed. A: Information is an accusation in writing charging a person with an offense. G. This is because the Complaint It is a sworn written statement. DIANE CAMILLA R. MENDOZA. No. by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction (Herrera. MEMBERS: AKEMI B. Q: Are private prosecutors allowed to intervene in the prosecution of the offenses? A: Yes. subscribed by the offended party. Right to withdraw information before arraignment even without notice and hearing Q: What are the matters within the control of the Court after the case is filed? A: 1. the judgment is void. JUDGE CESAR D. p. 2007 ed. Should the prosecutor find it proper to conduct a reinvestigation of the case at such stage. 1988). SUBJECT HEAD: ANGELI P. Q: Who shall review the decisions of the prosecutor? A: 1. ASST. QUIAMBAO. But once the case is already filed in court. Q: Distinguish information from complaint. Manner of prosecution 4. 5. Q: May a prosecutor be compelled by mandamus to file a complaint regarding a complaint filed which he previously dismissed for lack of merit after preliminary investigation? A: No. PINEDA. Vol. 2. Whom to prosecute 3.. JUSTICE JAIME M. Note: The institution of a criminal action depends upon the sound discretion of the prosecutor. Vol. the permission of the court must be secured. 38634. FLORES. MARA KHRISNA CHARMINA F. Q: What are the matters within the control and supervision of the prosecutor? A: 1. 5. Information Accusation must be in writing. JUANENGO. 3 Rule 110 is different from the complaint filed with the Prosecutor’s office. JR. Q: Define information. 4. SR. Such will be subject to the court’s approval. any peace officer. 2. Rule 110). What case to file 2. 2. The Secretary of Justice who exercises supervision and control over his actions and who may sustain. PLATON III. UNICA AMOR R. SUBJECT HEADS: DARRELL L. This is because the determination of probable cause is within the discretion of the prosecutor.). 75. Q: How long will the authority of the private prosecutor last? A: The authority of the private prosecutor shall continue until the end of the trial unless the authority is revoked or withdrawn (Sec. EDELISE D. KATRINA NADINE G. or other public officer charged with the enforcement of the law violated (Sec. YRIZ TAMIE A. or In appropriate cases. HERRERA. SY. SHERY PAIGE A.

Other public officer charged with the enforcement of the law violated (Sec. 3) Q: What is the rule in determining the name of the accused? A: Section 7 of Rule 110 establishes the following rules in designating the name of the accused: 1. 4. his true name shall be inserted in the complaint or information and in the records of the case. the defect is merely of form and may be cured at any stage of the trial. 3. The non-inclusion of some of the names of the eyewitnesses in the information does not preclude the prosecution from presenting them during trial.2001) Subscribed by a. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. In writing. 173791). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2. 2). A mistake in the name of the accused is not equivalent. Against all persons responsible for the offense involved (Sec. 4) Note: In case of variance between the complaint filed by the offended party and the information in crimes against chastity. MARTINEZ 221 . Baloma. Place where the offense was committed (Sec. 2. 6). both are filed in the name of the People of the Philippines against all persons who appear to be responsible for the offense involved (Sec. 128362. 2. he must be described under a fictitious name. Q: is the mistake in the name of the accused equivalent to a mistake in his identity? A: No. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. a mistake in the identity of the accused especially when sufficient evidence is adduced to show that the accused us pointed to as one of the perpetrators of the crime (People v. the complaint controls. If his name cannot be ascertained. 426 SCRA 83) Subscribed by the prosecutor (Sec. if the action is instituted in the name of the offended party or of a particular city. In crimes against property. The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. acquiescence or even by express consent. The offended party. In the name of the People of the Philippines.R. However. A description of the accused under a fictitious name must be accompanied by a statement that his true name is unknown. 16. Q: When is a complaint or information sufficient? A: It is sufficient if it states the: 1. SABUGO & JOHN HENRY C. Q: Why should the complaint or information be in the name of the People of the Philippines? A: Criminal actions must be commenced in the name of the People because a crime is an outrage against the peace and security of the people at large. Q: What is the form of a valid complaint or information? A: The complaint or information shall be: 1. 2. b. 3. If later his true name is disclosed by him of becomes known in some other manner. G. Name of the offended party. 5. Name of the accused. and 6. and does not necessarily amount to. if the name of the offended party is unknown. so must its vindication be in the name of the People. he must be described under a fictitious name. Amodia GR No. Acts or omissions complained of as constituting the offense. Q: What is the rule regarding the name of the offended party? A: The complaint or information must state the name and surname of the persons against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him. Note: However. No. 1. and 3. Rule 110).CRIMINAL PROCEDURE prosecutor filing the information is acting under oath of his office (Estudillo v. (People v. Designation of the offense given by the statue. c. the property must be described with such ACADEMICS CHAIR: LESTER JAY ALAN E. Any peace officer. Dela Cruz. Approximate date of the commission of the offense. Jan. An Information not properly signed cannot be cured by silence.

RONN ROBBY D. CA. An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other involves: 1. ASST. it is sufficient to state its name. YRIZ TAMIE A. Court of Appeals. AQUINO. 8) The present rule also provides for a mandatory requirement. Jan.R. MANANQUIL. 31. The designation of the offense requires. 137106-07. the facts alleged therein and not its title determine the nature of the crime (People vs. KATRINA NADINE G. BAGANG. 2006). JUSTICE JAIME M. Elpedes. LIM. MIJARES. SUBJECT HEAD: ANGELI P. they should not be considered (Catiis v. MICHAEL ANGELO V. PINEDA. HERRERA. 3. gives no designation to the offense. G. that the complaint or information must specify the qualifying and aggravating circumstances of the offense (Sec. 12). 8) and aggravating 2. DIANE CAMILLA R. If the date of the commission of the offense constitutes an essential element of the offense (e. JUDGE CESAR D. infanticide. or Note: The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for bill of particulars under Sec. MA. 153979. G. 2. 56 SCRA 573). If the statute 222 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. AIDA. A statement of the qualifying and aggravating circumstances is considered as a part of the cause of accusation. CONTRIBUTORS: VICENTE JAN O. MARIANO. TERESE RAY-ANNE O. 2001). 3. No. JUANENGO. the court must cause such true name to be inserted in the complaint or information in record. 2001). 137051-52. then reference must instead be made to the section or subsection punishing it (Sec. May 30. 11). A change in the theory of the trial. It suffices that the allegation approximates or be as near the actual date when the offense was committed (Sec. QUIAMBAO.. 11). Q: May the accused be convicted of a crime more serious than that named in the title of the information? A: The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence (Buhat vs. 8) Included in the complete designation of the offense is an averment of the acts or omissions constituting the offense (Sec. Q: Must the qualifying circumstances be stated? Q: Must the complaint or information state with particularity the date of the commission of the offense? A: GR: It is not required. shall specify the qualifying and aggravating circumstances. SUBJECT HEADS: DARRELL L. UNICA AMOR R.. 6. XPNs: 1. MARA KHRISNA CHARMINA F. it is required by Sec. Magdowa. KRISTINE P. 2. Valdesancho. BORJA. PLATON III. as a rule. Rule 116. RHONDEE E. 265 SCRA 701). Requires of the defendant a different defense. abortion. When the dates are essential to the defense of alibi (People v. G. February 9. that the name given to the offense by statute must be stated in the complaint or information. MENDOZA. SHERY PAIGE A. in designating the offense. SY. the exact date of the commission of the crime is not an essential element of the crime (People v. JUSTICE OSCAR C. STAMARIA. 8 of Rule 110 that the complaint or information. 10. EDELISE D. SR. or any name or designation by which it is known or may be identified. It must be stated in an ordinary and concise language (Sec. 512). A: Yes. otherwise.g. If the true name of the offended party is thereafter disclosed or ascertained.UST GOLDEN NOTES 2011 particularity as to properly identify the particular offense charged. ALBAÑA. GRETCHEN C. LANTIN. DONNA GRAGASIN. bigamy) (Sec. If the offended party is a juridical person. FLORES. the failure to move for specification or quashal of the information on any of the grounds provided for in the Rules deprives the accused of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges the accused with a definite crime. Samillano. without need of averring that it is a juridical person (Sec. JR. DESIGNATION OF OFFENSE Q: What is the rule with regard to the designation of the offense? A: In designating the offense. MEMBERS: AKEMI B. ROSALES . 73 Phil. the following rules must be observed: 1. Besides. DUMLAO. Q: Do allegations prevail over designation of the offense in the information? A: Allegations prevail over designation of the offense in the information. It is not the designation of the offense in the complaint or information that is controlling (People vs.R.R. They must not only be proven but they must also be alleged. 2. 9) Note: The qualifying and aggravating circumstances must be specified in the information. Note: Limitation on the rule that an accused may be convicted of a crime which is more serious than that named in the title so long as the facts alleged the more serious offense. Nos.

2005).g.R. Jan. within the territorial jurisdiction of the court. What is controlling is the specific actual allegations in the information (Lacson v. and The qualifying and aggravating circumstances (Sec. To enable the court to pronounce proper judgment. the defendant can be convicted of the offense proven. robbery in an inhabited house) (Sec. destructive arson. The offense being charged The acts or omissions complained of as constituting the offense. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. vs. Sandiganbayan. A: Duplicity of Offense in an information or complaint means the joinder of two or more SEPARATE and DISTINCT or DIFFERENT offenses in one and the same information or complaint. 1999). Vol. as the exception is a matter of right which the accused has to prove. Q: When is an offense deemed committed in relation to public office? A: An offense is deemed committed in relation to public office when the “office” is a constituent element of the offense. Rule 110). XPN: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violations are incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 130. 9. trespass to dwelling. The phrase is merely “a conclusion of law”. G. Rule 110) Q: What is the rule regarding negative averments? A: GR: Where the statute alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately. MASACAYAN & THEENA C. without explicitly negating the exception. To furnish the accused with such a description of the charge as to enable him to make a defense. As a protection against further prosecution for the same cause Q: What must be alleged if the crime is “committed in relation to his office?” A: Mere allegation in the information that the offense was committed by the accused public officer in relation to his office is not sufficient. 603) Note: Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses. Q: What is the “duplicity rule”? A: GR: A complaint or information must charge only one offense. but prescribes certain limitation or exceptions from its violation. CAUSE OF ACCUSATION Q: What is the purpose of designating the cause of accusation? A: 1. the place of the commission must be alleged with particularity (e. The test is whether the offense cannot exist without the office (Crisostomo v. SABUGO & JOHN HENRY C. Surprises the accused in any way (U. 2. No. Q: What is the rule with respect to the cause of accusation? A: In informing the accused of the cause of accusation against him. 20.). the complaint or information is sufficient if it alleges facts which the offender did as constituting a violation of law. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Apr.CRIMINAL PROCEDURE 3. 128006. it is not necessary to employ the words used in the statute alleged to have been violated. IV. p. Q: What is the rule regarding the allegation as to the place of the commission of the offense? A: GR: The complaint or information is sufficient if it appears from the allegation that the offense was committed or some of its essential ingredients occurred some place. Executive Secretary.R. It is sufficient for the complaint or information to use ordinary and concise language sufficient to enable a person of common understanding to know the following: 1. 8. 28 Phil. ACADEMICS CHAIR: LESTER JAY ALAN E. DUPLICITY OF OFFENSES. Panlilio. 152398. 2. 7. EXCEPTION Q: What does duplicity of offenses means? 3. then the indictment must show that the accused does not fall within the exemptions (Herrera. XPN: When the place of commission is an essential element of the offense. 10. not a factual averment that would show close intimacy between the offense charged and the discharge of the accused’s official duties. G. 3. 2007 ed. No.S. MARTINEZ 223 . 14.

UST GOLDEN NOTES 2011 XPNs: 1. 2007 ed. all emanating from the same law violated when the prosecution could easily and well embody them in a single information (People v. YRIZ TAMIE A. or 3. MA. CONTRIBUTORS: VICENTE JAN O. Villaluz. or 2. 5. Crimes of which another offenses is an ingredient A: Where: 1. he is deemed to have waived the objection and may be found guilty of as many offenses as those charged and proved during the trial (Sec.). The test is whether or not the act was done in furtherance of a political end. SY. Q: What constitutes formal amendment? Complex crimes. June 5. LANTIN. RONN ROBBY D. 2. The political motive of the act should be conclusively demonstrated (Enrile v. 162. It does not involve a change in the basic theory of the prosecution. b.31665. HERRERA. Vol. JR. Such amendment is not prejudicial to the rights of the accused. 1975) Q: What are the kinds of amendment? A: 1. DUMLAO. RHONDEE E. Special complex crimes. 1990) 9. TERESE RAY-ANNE O. 3. JUDGE CESAR D. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION Note: Section 14 applies only to original case and not to appealed case. With notice to the offended party. JUSTICE OSCAR C. With LEAVE of COURT 2. PLATON III. MENDOZA. ROSALES . 4. IV. Q: What steps should be taken by the prosecution so that amended information which downgrades the nature of the offense may be validly made? Why? A: The prosecution should file a motion for leave of court with notice to the offended party. 224 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. the accused must move for the quashal of the same before arraignment (Sec. MANANQUIL. L. 3.. Q: What is the remedy in case of duplicity of offense? A: Should there be duplicity of offense in the information unless a single punishment for various offenses is prescribed. AIDA.covers only formal amendments provided: a. SUBJECT HEAD: ANGELI P. the charge does not deprive the accused of a fair opportunity to present his defense. GRETCHEN C. BORJA. STAMARIA. KATRINA NADINE G. SHERY PAIGE A. This is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution. there is a need for another arraignment of the accused under the amended information. 3. 4 SCRA 95) Q: What is the Principle of Absorption? A: Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in the single crime of rebellion. b. QUIAMBAO. FLORES. August 6. Otherwise. RATIO: The State should not heap upon the defendant two or more charges which might confuse him in his defense. before the accused enters his plea may be done with leave of court XPN: any amendment before plea which downgrades the nature of the offense charged in or excludes any accused form the complaint or information can be made only: a. MARIANO. (Almeda v. EXCEPT when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime. Silva. SR. GR No. in which case. ASST. MEMBERS: AKEMI B. and c. ALBAÑA. Q: Is Splitting of case allowed? A: NO.. SUBJECT HEADS: DARRELL L. Continuous crimes or delicto continuado. A defendant should not be harassed with various prosecution based upon the same act by splitting the same into various charges. Q: What may be amended? A: Only valid information may be amended. KRISTINE P. Rule 120). JUANENGO. MARA KHRISNA CHARMINA F. EDELISE D. it neither affects nor alters the nature of the offense charged. DIANE CAMILLA R. Q: When is there an amendment in substance? A: There is an amendment in substance where it covers matters involving the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. MICHAEL ANGELO V. BEFORE THE PLEA GR: any amendment formal or substantial. Leave of court is obtained. PINEDA. Upon motion of the prosecutor. AQUINO. Salazar GR NO 92163. BAGANG. DONNA GRAGASIN. p. Crimes susceptible of being committed in various modes. AFTER THE PLEA. JUSTICE JAIME M. UNICA AMOR R. MIJARES. Rule 117). An information filed before the effectivity of the law punishing the offense may not be amended after the law had come into effect (Herrera. LIM.

CRIMINAL PROCEDURE
Q: What is the test in determining whether the right of the accused is prejudiced by the amendment? A: It is when the defense of the accused under the complaint or information as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended (People v. Montenegro G.R. No. 45772, Mar. 25, 1988). Q: Can the prosecutor amend the information which changes the nature of the crime after the arraignment? A: GR: The prosecutor can no longer amend the information after arraignment as it would prejudice the substantial rights of the accused. XPN: When a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact. Q: When is substitution proper? A: If it appears any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy (Sec. 14, Rule 110). Q: What are the limitations to the rule on substitution? A: 1. 2. No judgment has yet been rendered; The accused cannot be convicted of the offense charged or of any other offense necessarily included therein; and The accused would not be placed in double jeopardy (Herrera, Vol. IV, p. 176, 2007 ed.).
Amendment before the plea is entered can be effected without leave of court. An amendment as to form will not require another preliminary investigation and retaking of plea of the accused. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy. It must be with leave of court as the original information has to be dismissed. Substitution of the information entails another preliminary investigation and plea to the new information.

Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge; hence the accused cannot claim double jeopardy.

VARIANCE BETWEEN INDICTMENT AND PROOF (Situations Contemplated) 1. When the offense proved is less serious than, and is necessarily included in, the offense charged, in which case the defendant shall be convicted of the offense proved. When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of a new information charging the proper offense.

2.

3.

Note: The third situation set forth above is substitution of information under Section 14, Rule 110.

3.

10. VENUE OF CRIMINAL ACTIONS Q: Where should a criminal action be instituted? A: GR: Subject to existing laws, criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or any of its essential ingredients occurred (Sec. 15, Rule 110).

Q: Distinguish amendment from substitution A:
Amendment May involve either formal or substantial changes Substitution Involves substantial change from the original charge

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011
XPNs: 1. An offense was committed on a railroad train, in an aircraft, or in any other public or private vehicle in the course of trip – the criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival; 2. Where the offense is committed on board a vessel on its voyage – the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law; 3. Felonies under Art. 2 of the RPC – shall be cognizable by the proper court where the criminal action was first filed (pars. b, c and d, Sec. 15); 4. Continuous or transitory crimes – such offenses may be tried by the court of any jurisdiction wherever the offender may be found, but the complainant should allege that the offense was committed within the jurisdiction of the court (Herrera, Vol. IV, p. 184, 2007 ed.). 5. Piracy – the venue of piracy, unlike all other crimes, has no territorial limits. It is triable anywhere; 6. Libel – the action may be instituted at the election of the offended or suing party in the municipality or city where: a. the libellous article is printed and first published; b. If one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense; c. If the offended party is a public official, where the latter holds office at the time of the commission of the offense. 7. B.P. 22 cases – the criminal action shall be filed at the place where the check was dishonored or issued. In case of crossed check, the place of the depositary or the collecting bank. 11. INTERVENTION OF OFFENDED PARTY Q: What is the rule on intervention of the offended party in the criminal action? A: GR: Offended party has the right to intervene by counsel in the prosecution of the criminal action, where the civil action for the recovery of civil liability is instituted in the criminal action pursuant to Rule 111. XPNs: 1. Where from the nature of the crime and the law defining and punishing it, NO civil liability arises in favor of the offended party; and Where the offended party has waived his right to civil indemnity OR has expressly reserved his right to institute a civil action OR has already instituted said action. Where the offended party has expressly reserved his right to institute a separate civil action; OR Where the offended party has already instituted said action

2.

3.

4.

Q: What is the remedy of the offended party in case of dismissal? A: Where the prosecutor sought the dismissal of the criminal action or refused to institute the corresponding action or to proceed with the prosecution of the case, the offended party may C. PROSECUTION OF CIVIL ACTION 1. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION Q: Does the institution of a criminal action include the civil action as well? A: GR: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense shall be deemed instituted with the criminal action (Section 1a, Rule 111) XPNs: When the offended party: 1. WAIVES the civil action; 2. RESERVES his right to institute a separate civil action; or 3. INSTITUTES A CIVIL ACTION PRIOR to the criminal action (Sec. 1, Rule 111). PURPOSE: To prevent double recovery (Yakult Philippines v. CA, GR No. 91856 October 5, 1990) Q: Whatcivil actions are not deemed impliedly instituted in the criminal action? A: Those which are:

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE
1. 2. Arising from breach of contract (Herrera, Vol. IV, p. 217, 2007 ed.); Independent civil actions or those based on Arts. 31, 32, and 33 of the New Civil Code; and Based on Art. 2176 of the New Civil Code or quasi-delict(Herrera, Vol. IV, p. 216, 2007 ed.). 2. A claim arising from an offense which is cognizable by the Sandiganbayan(Herrera, Vol. IV, p. 231, 2007 ed.); and Tax cases.

3.

3.

Q: Can the offended party in a criminal case appeal the civil aspect despite the acquittal of the accused? A:In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (Section 2, Rule 120) Q: May the offended party compromise the civil aspect of a crime? A: Yes, provided it must be entered before or during the litigation, and not after final judgment 2. WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY Q: When may civil action proceed independently of the criminal action? A: The institution of an independent civil action based on Arts. 32 33, 34 and 2176 of the Civil Code against the offender may proceed independently of the criminal case at the same time without the suspension of either proceeding (Sec. 3 Rule 111).
Note: It requires only a preponderance of evidence and the offended party is entitled only to the bigger award when the awards in the cases vary. Recovery of civil liability under Arts. 32, 33, 34 and 2176 of the Civil Code may be prosecuted separately even without reservation (DMPI Employees Credit Cooperative v. Velez, G.R. No. 129282, Nov. 29, 2001).

NOTE: 1.

2.

3.

The failure to reserve the right to file the enumerated actions does not amount to a waiver to institute a separate civil action (Herrera, Vol. IV, p. 217, 2007 ed.). The appearance of the private prosecutor (private counsel) does not amount to a waiver of the civil action (Herrera, Vol. IV, p. 226, 2007 ed.). They shall proceed independently of the criminal action and require only a preponderance of evidence (Secs. 1 and 3)

Q: When should the reservation to file a separate civil action be made? A: 1. 2. Before the prosecution starts to present its evidence; and Under circumstances affording the offended party a reasonable opportunity to make such reservation (Sec. 1 Rule 111).

Q: Should the reservation to file a separate action be express? A: No, jurisprudence instructs that the reservation may not be necessarily express but may be implied, which may be inferred not only from the acts of the offended party but also from acts other than those of the latter (Herrera, Vol. IV, p. 228, 2007 ed.).
Note: Failure of the court to pronounce judgment as to the civil liability amounts to the reservation of the right to a separate civil action (Herrera, Vol. IV, p. 228, 2007 ed.).

Q: Is the consolidation of civil action and criminal action arising from the same offense allowed? A: Yes. Before judgment on the merit is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action (Sec. 2Rule 111).
Note: A separate civil action for collection of sum of money cannot be consolidated with cases pending before the Sandiganbayan for the latter has no jurisdiction over collection cases (Herrera, Vol. IV, p. 231, 2007 ed.).

Q: What is the effect of reserving the right to file a separate civil action? A: The prescriptive period of the civil action that was reserved shall be tolled (Sec. 2 Rule 111). Q: What are the instances wherein the reservation to file a separate civil action shall not be allowed? A: 1. Criminal action for violation of B.P. 22 [Sec. 1, Rule 111 (b)];

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the effect of the consolidation of the civil and criminal actions with regard to the evidence in each case? A: In cases where the consolidation is given due course, the evidence presented and admitted in the civil case shall be deemed automatically reproduced in the criminal action without prejudice to admission of additional evidence and right to cross examination (Sec. 2). 3. WHEN SEPARATE CIVIL ACTION IS SUSPENDED Q: When is a separate civil action suspended? A: 1. After the filing of the criminal action, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action (Sec. 2).; If the civil action is instituted before the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment in the criminal action has been rendered.
3. Civil obligation not based on the criminal offense (Herrera, Vol. IV, p. 249, 2007 ed.).

4. EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION Q: How does the death of the accused affect the civil aspect of the case? A: If the accused died: 1. After arraignment and during the pendency of the criminal action GR: The civil liability of the accused based on the crime is extinguished. XPN: a. Independent civil action based on Arts. 32 33, 34 and 2176 of the Civil Code; and b. Civil liability predicated on other sources of obligations, i.e. law, contract, and quasi-contract, which is subsequently instituted; 2. Before arraignment – the offended party may file the civil action against the estate of the deceased (Sec. 4). Pending appeal a. Civil liability arising from the crime is extinguished b. Civil liability predicated from another source survives i.e. civil liability arising from law, contracts, quasicontract and quasi-delict.

2.

XPNs: 1.

3. In cases of independent civil actions based on Arts. 32, 33, 34 and 2176 of the Civil Code; In cases where the civil action presents a prejudicial question; and In cases where the civil action is consolidated with the criminal action; and Where the civil action is not one intended to enforce the civil liability arising from the offense.

2. 3. 4.

Note: 1.

Q: Does the extinction of the penal action carry with it the extinction of the civil action? A: GR: The extinction of the penal action does not extinguish the civil action. XPN: When there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability might arise did not exist (Sec. 2).
Note: The civil action that is extinguished refers exclusively to civil liability arising from the crime and does not include civil actions: 1. 2. Based on quasi-delict; Based on Arts. 32, 33 and 34 of the NCC (independent civil actions); or

2.

In nos. 1 and 3(b), the civil action may be continued against the estate or legal representative of the accused after proper substitution, as the case may be (Sec. 4). Where the civil liability survives, it may be pursued by the filing of a separate civil action unless otherwise waived, reserved or instituted prior to the institution of the criminal action (Herrera, Vol. IV, p. 257, 2007 ed.).

Q: What is the effect of the death of the accused after final appeal? A: Pecuniary liabilities of the accused are not accused are not extinguished. Claims shall be filed against the estate of the accused (Rule 86).
NOTE: However, the independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE
legal representative if the accused after proper substitution, or against said estate, as the case may be.

same criminal action at any time before the prosecution rests. Q: Where should the petition for suspension by reason of prejudicial question be filed? A:

5. PREJUDICIAL QUESTION Q: What is a prejudicial question? A: Prejudicial question is one which arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal Q: What are the elements of a prejudicial question? A: 1. 2. The civil action must be instituted prior to the criminal action; The civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and The resolution of such issue determines whether or not the criminal action may proceed (Sec. 7).

1. 2.

Office of the prosecutor; or Court where the criminal action has been filed for trial at any time before the prosecution rests (Sec. 6).

Q: Give an example of a prejudicial question. A: a. A question of ownership in a pending civil case is a prejudicial question justifying the suspension of the criminal case for violation of the Anti-Squatting Law (Apa v. Fernandez, G.R. No. 112318, Mar. 20, 1995). Civil action involving title to property is prejudicial to criminal action for damages to said property (Herrera, Vol. IV, p. 265, 2007 ed.).

3.

b.

Note: For the principle of prejudicial question to apply, it is essential that there be two cases involved, invariably a civil case and a criminal case. If the two cases are both civil or if they are both criminal, the principle does not apply. The law limits a prejudicial question to a previously instituted civil action not to a subsequent one.

Note: For the principle of prejudicial question to apply, it is essential that there be two cases involved invariably a civil case and a criminal case. If the two cases are both civil or if they are both criminal, the principle finds no application. The law limits a prejudicial question to a PREVIOUSLY INSTITUTED civil action not to a subsequent one.

Q: When may prejudicial question be raised? A: 1. The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case. 2. The suspension of the criminal case due to a prejudicial question is only a procedural matter, and is subject to a waiver by virtue of prior acts of the accused. 3. There is no prejudicial question where one case is administrative and the other is civil.
Note: A prejudicial question is based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.

Q: Give examples which are not considered prejudicial questions. A: 1. Where the outcome of the civil case is not determinative of the guilt or innocence of the respondent in the criminal case (People v. Delizo, G.R. No. 141624, Aug. 17, 2004)e.g. award of damages in favor of the accused; A civil action instituted to resolve whether the designation of certain persons where in accordance with law is not a prejudicial question in a criminal case for violation of the anti-graft law (Tuanda v. Sandiganbayan, G.R. No. 110544, Oct. 17, 1995); or A civil action for replevin is not prejudicial to theft (Ramirez v. Jimenez, 1 CA rep. 143) (Herrera, Vol. IV, p. 270, 2007 ed.). An action for declaration of nullity of a second marriage is not a prejudicial question to the criminal prosecution of

2.

3.

Q: When do you plead a prejudicial question? A: When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the 4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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bigamy (Beltran v. People, G.R. No. 137567, June 26, 2000).
Note: The plain reading of the of law (Art. 349, RPC) would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage (Herrera, Vol. IV, p. 269, 2007 ed.).

civil action is made (Roa v. Dela Cruz, G.R. No. L13134, Feb. 13, 1960).
Note: In an appeal of a criminal case the appellate court may impose additional damages or increase or decrease the amount of damages upon the accusedappellant. HOWEVER, additional penalties CANNOT be imposed upon a co- accused who DID NOT APPEAL, BUT modifications of the judgment BENEFICIAL to him are considered in his favor.

6. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION Q: What are the rules regarding filing fees of civil action deemed instituted with the criminal action? A: 1. Actual damages GR: No filing fee is required. XPN: B.P. 22 cases, wherein the amount of the filing fees shall be equivalent to the amount of the check involved. 2. Liquidated, moral, nominal, temperate or exemplary damages – The filing fee shall be based on the amount alleged in the complaint or information (Sec. 1).

Q: What is the effect of the failure to plead damages in the complaint or information? A: The offender is still liable and the offended party has the right to prove and claim for them in the criminal case, unless a waiver or reservation of the civil action is made (Roa v. Dela Cruz, G.R. No. L13134, Feb. 13, 1960). Q: May the accused file counterclaims, crossclaims or third party complaints in a criminal proceeding? A: No. Counterclaims, cross claims, third party complaints are no longer allowed in a criminal proceeding. Any claim which could have been the subject thereof may be litigated in a separate civil action. Reasons: 1. The counterclaim of the accused will unnecessarily complicate and confuse the criminal proceedings; 2. The trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime. D. PRELIMINARY INVESTIGATION
Note: This rule has been partially amended by AM 058-26. The amendments took effect on October 3, 2005. The conduct of preliminary investigation has been removed from judges of the first level courts.

Note: If the amount of the damages claimed is not specifically alleged in the complaint or information, but the court subsequently awards such, the filing fees based on the amount awarded shall constitute a first lien on the judgment (Sec. 1Rule 111).

Q: What is the extent of damages that may be awarded in civil liability arising from a crime? A: 1. 2. 3. 4. Actual damages e.g. loss of earning capacity; Moral damages; Exemplary damages (Herrera, Vol. IV, p. 223, 2007 ed.); Life expectancy (People v. Villanueva, G.R. No. 96469, Oct. 21, 1992).

Note: Attorney’s fees may be awarded if: 1. 2. Exemplary damages is awarded; or Civil action is separately instituted from the criminal action (People v. Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995).

Q: What is the procedure for conducting preliminary investigation? A:
Filing of the complaint accompanied by the affidavits and supporting documents

Q: What is the effect of the failure to plead damages in the complaint or information? A: The offender is still liable and the offended party has the right to prove and claim for them in the criminal case, unless a waiver or reservation of the

Within 10 days after the filing, the investigating officer shall either dismiss or issue a subpoena

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL PROCEDURE

If a subpoena is issued, respondent shall submit a counter- affidavit and other supporting documents within 10 days from receipt thereof

From the filing of the complaint, the investigating officer has ten (10) days within which to decide on which of the following options to take: a. To dismiss the complaint if he finds no ground to conduct the investigation; or To issue a subpoena in case he finds the need to continue with the investigation, in which case the subpoena shall be accompanied with the complaint and its supporting affidavits and documents (Sec. 3(b))

Clarificatory hearing (optional). It shall be held within 10 days from the submission of counter affidavits or from the expiration of the period of their submission.

b.

Resolution of the investigating prosecutor (Section 4 and 5)

1.

Filing of the complaint A complaint shall be filed before the investigating officer. This complaint shall be accompanied by a. b. c. The affidavits of the complainant; The affidavits of his witnesses; and Other supporting documents that would establish probable cause (Sec. 3(a) Rule 112).

3.

Filing of counter-affidavit The respondent who received the subpoena, the complaint, affidavits and other supporting documents, is not allowed to file a motion to dismiss. Instead, within 10 days from receipt of subpoena, he is required to submit his counter-affidavit, the affidavits of his witnesses and the supporting documents relied upon for his defense (Sec. 3(c)Rule 112)
Note: The respondent is not allowed to file a motion to dismiss. Instead, he must file a counter-affidavit.

Note: It shall contain the address of the respondent.

The affidavits that shall accompany the complaint shall be subscribed and sworn to before: a. b. Any prosecutor; Before any government official authorized to administer oaths; or In the absence or unavailability of the abovementioned, the affidavits may be subscribed and sworn to before a notary public.

c.

Despite the subpoena, if the respondent does not submit his counter-affidavit within the ten-day period granted him, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. The same rule shall apply in case the respondent cannot be subpoenaed (Sec. 3(d) Rule 112). GR: In preliminary investigation, a motion to dismiss is not an accepted pleading for it merely alleges the innocence of the respondent without rebutting or repudiating the evidence of the complainant. XPN: When it contains countervailing evidence or defenses and evidence which rebuts or repudiates the charges; in which case it will be treated as a counteraffidavit.

Note: The officer or notary public before whom the affidavits were subscribed and sworn to must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits (Sec. 3(a)Rule 112).

2.

Dismissal or issuance of subpoena

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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. and That he was given an opportunity to submit controverting evidence (Sec. ALBAÑA. After preliminary investigation. SY. he shall recommend the dismissal of the complaint (Sec. PLATON III. or as shown by the record. 19. 2. c. he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor. If they have questions to ask. AIDA. RONN ROBBY D. d. BAGANG. 232 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. SHERY PAIGE A. they shall submit the questions to the investigating officer who shall ask the questions (Sec. 3(e)) Note: Parties are not allowed to cross examine the witnesses during the clarificatory proceeding. GRETCHEN C. Resolution of the investigating officer Within ten days from the termination of the investigation. Drilon. STAMARIA. MANANQUIL. They shall act on the resolution within ten days from their receipt thereof and shall immediately inform the parties of such action (Sec. 1991). 4Rule 112). HERRERA. as amended by AM 05-8-26-SC. JR. Otherwise. KRISTINE P. only the prosecutor can ask questions from any of the witnesses during the clarificatory proceeding to clarify some gray areas in the affidavit or counter affidavit. No. has personally examined the complainant and his witnesses. a hearing may be set by the investigating officer. 2. 3. and Other officers as may be authorized by law (COMELEC. 3(f)) If the investigating officer finds cause to hold the respondent for trial. 3. then the motion to dismiss is a mere scrap of paper. FLORES. That there is reasonable ground to believe that a crime has been committed. UNICA AMOR R. 4. MARA KHRISNA CHARMINA F. That he. Q: What is the difference between preliminary investigation conducted by the prosecutor and one conducted by the judge? A: The prosecutor is not bound by the designation of the offense in the complaint. Q: Who are the officers authorized to conduct preliminary investigation? A: 1. Oct. SR. 2005). BORJA. he shall prepare the resolution and information. or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. Note: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions (Sec. if necessary Within ten days from the submission of the counter-affidavit. Ombudsman) 5. AQUINO. If the respondent does not later on submit a counter-affidavit. MIJARES. YRIZ TAMIE A. e. G. PCGG. MEMBERS: AKEMI B. b. 4 Rule 112) Within five days from his resolution. Provincial or city prosecutors and their assistants: National and Regional State Prosecutors.. DONNA GRAGASIN.R. MENDOZA. Clarificatory hearing. LIM. an authorized officer. DUMLAO. only if there are facts and issues to be clarified either from a party or a witness. SUBJECT HEAD: ANGELI P. MICHAEL ANGELO V. Apr.UST GOLDEN NOTES 2011 Note: If one files a motion to dismiss and he only asserts that the case should be dismissed. The parties do not have the right to examine or cross-examine each other or the witnesses. LANTIN. 4) The information shall contain a certification by the investigating officer under oath in which he shall certify the following: a. KATRINA NADINE G. QUIAMBAO. RHONDEE E. That the accused is probably guilty thereof That the accused was informed of the complaint and of the evidence submitted against him. the parties and their lawyers are not precluded from submitting questions to the prosecutor who may ask such questions at his discretion. However. CONTRIBUTORS: VICENTE JAN O. (Paderanga v. ROSALES . SUBJECT HEADS: DARRELL L. ASST. it will constitute a waiver on his part to file a counter-affidavit. EDELISE D. MA. the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial (Sec. other affidavits and documents filed by the respondent. JUSTICE OSCAR C. JUANENGO. DIANE CAMILLA R. 96080. The judge cannot change the charge in the complaint but must make a finding on whether or not the crime charged has been committed. JUSTICE JAIME M. JUDGE CESAR D. PINEDA. MARIANO. he may file any case as warranted by the facts. TERESE RAY-ANNE O.

) Note: It does not place the person against whom it is taken in jeopardy. p. 1.R.R.R. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal. Marfori. 105581. Vol. the investigation of such cases (Sec. unjust. 1). the accused is entitled to another preliminary investigation (US v. No. 145938. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Gomez. No. G. Q: Can the right to preliminary investigation be waived? A: Yes.R. No. G. and should be held for trial (Sec. 83938-40. Q: May prosecutors conduct preliminary investigation of offenses falling within the original jurisdiction of the Sandiganbayan? A: No. 2006). The preliminary investigation conducted by the judge which is properly called PRELIMINARY EXAMINATION is for the determination of probable cause for the issuance of warrant of arrest. (P/Supt. 1993). from any investigatory agency of the government. G. No. 2007 ed. Cruz v. Dec.G. Breva. Q: Is preliminary investigation considered part of the trial? A: No. 287. Note: A prosecutor however has shared authority to investigate and prosecute Ombudsman cases not cognizable by the Sandiganbayan(Herrera. July 29. G. 1989). but if re-filed. it may deputize other prosecuting arms of the government to conduct preliminary investigation and prosecute offenses (People v. 161629. it is for the purpose of determining whether or not there exist sufficient ground for the filing of information. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Dec. 6. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2007 ed. 1982). 7. NATURE OF THE RIGHT TO PRELIMINARY INVESTIGATION Note: Rule 112 pertains to preliminary investigation conducted by the prosecutor Q: What is preliminary investigation? A: It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been ACADEMICS CHAIR: LESTER JAY ALAN E. MASACAYAN & THEENA C. IV. Q: What is the nature of the right of preliminary investigation? A: It is merely inquisitorial and a means of determining the persons who may be reasonably charged with a crime. L-29590. Judge Areola. Q: What is the difference between the preliminary investigation conducted by the prosecutor and the preliminary investigation conducted by the judge? A: The preliminary investigation conducted by the prosecutor is EXECUTIVE in nature. improper or inefficient. IV.R. Note: This however does not include administrative cases of court personnel because the 1987 Constitution vests in the SC administrative supervision over all courts and court personnel. 2005). March 6. by failure to invoke the right prior to or at least at the time of plea (People v. the Ombudsman has primary authority to investigate and exclusive authority to file and prosecute Sandiganbayan cases (Ledesma v. The dismissal of the case by the investigator will not bar the filing of another complaint for the same offense. No. Basilla. 2002) Q: Does the lack of preliminary investigation affect the court’s jurisdiction? A: Absence of preliminary investigation does not affect the jurisdiction of the court but merely the regularity of the proceedings (People v. The Ombudsman is authorized to take over at any stage. R. 15. A. committed and the respondent is probably guilty thereof.CRIMINAL PROCEDURE Q: What is the extent of the authority of the Ombudsman in the conduct of preliminary investigation? A: The power to investigate and to prosecute granted to the Ombudsman is plenary and unqualified. 6770). SABUGO & JOHN HENRY C. 30. MARTINEZ 233 .R. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by the regular courts (Office of the Ombudsman v. Vol. De Asis. 10. CA. 10905. 273. G. Feb.) Q: Who may conduct preliminary investigation of election cases? A: The Commission on Elections is vested the power to conduct preliminary investigations. No. It is not a trial of the case on the merits (Herrera.M. it is not part of the trial of the criminal action in court. 1916). Nor is its record part of the record of the case in the RTC. p. Nov.A. RTJ-01-1642. 9. Sept.

Where an information or complaint is filed pursuant to Sec. 7. HERRERA. 1). 2. 3.). SHERY PAIGE A.accusation of a crime and anxiety of a public trial. Vol. No. CONTRIBUTORS: VICENTE JAN O. 2. LIM. 101837. Q: What are the rights of the respondent in a preliminary investigation? A: To: 1. RONN ROBBY D. and be present during the clarificatory hearing (Sec. expense and burden of defending himself in a formal trial unless probability of his guilt is first ascertained by a competent officer. TERESE RAY-ANNE O. when a person is lawfully arrested without a warrant provided that inquest was made in accordance with Rule 112 (Sec. 278. Dec. Note: 1. No. G.. must be in a clear and unequivocal manner (Herrera. p. Apr. RHONDEE E. JUSTICE JAIME M. UNICA AMOR R. AQUINO. QUIAMBAO. No. EDELISE D. G. MICHAEL ANGELO V. 105581. MANANQUIL. SR. 273. 1998). 130644. 2 months and 1 day. Vol. To protect the State from having to conduct useless and expensive trial. Apr. 1992). To protect the accused from inconvenience. Failure to appear before the prosecutor during the clarificatory hearing or when summoned. GRETCHEN C. KATRINA NADINE G.. 15. PLATON III. 2. De Asis. 3. 2. and oppressive prosecution and to protect him from an open and public. MIJARES. failure to invoke it during arraignment (People v. Rule 112). p. if the offense is bailable(Herrera. DIANE CAMILLA R. Q: What is the effect if the accused raises the issue of lack of preliminary investigation before entering plea? A: The court. copying or photographing at the expense of the requesting party (Sec. 1993). IV. BORJA. LANTIN. G. PURPOSES OF PRELIMINARY INVESTIGATION Q: What are the purposes of conducting preliminary investigation? A: 1. MARIANO. p. malicious. and To determine the amount of bail. 3.) The right to preliminary investigation cannot be raised for the first time on appeal (Pilapil v. 278. 130644. DONNA GRAGASIN.R. Rule 112). FLORES. No. instead of dismissing the information. 13. To secure the innocent against hasty. 4. when the right was invoked at the start of the proceeding (Larranaga v. Feb.R. 1998). IV. the complaint or information is filed directly in court (Sec. 13. Mar.e. Note: Cases falling under summary procedure or punishable with a penalty of imprisonment less than 4 yrs. IV. 1988). 6). PINEDA. 7. No. KRISTINE P. 2. YRIZ TAMIE A. 3. ROSALES . 234 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.. or When the accused filed an application for bail and was arraigned over his objection and the accused demanding that preliminary investigation be conducted (Go v. SY. SUBJECT HEAD: ANGELI P. See discussion on Sec. JUANENGO. AIDA. For cases requiring preliminary investigation. G. ASST.R. G.R. MARA KHRISNA CHARMINA F. SUBJECT HEADS: DARRELL L. i. CA. 58404. Bulosan. 3. JUDGE CESAR D. BAGANG. 2007 ed. 2 months and 1 day does not require preliminary investigation. Rule 110 for cases directly filed in court. CA. 11. JR. Sandiganbayan. Note: Object evidence need not to be furnished but is available for examination. Mar.). 2. 1993). The waiver. MEMBERS: AKEMI B.R. 2007 ed. MA. MENDOZA. 2007 ed. STAMARIA.UST GOLDEN NOTES 2011 Q: What are the instances wherein the right to preliminary investigation is deemed waived? A: It shall be deemed waived by: 1. and consenting to be arraigned and entering a plea of not guilty without invoking the right to preliminary investigation (People v.R. Vol. No. CA. ALBAÑA. JUSTICE OSCAR C. DUMLAO. XPN: 1. should conduct the preliminary investigation or order the prosecutor to conduct it (Larranaga v. For the investigating prosecutor to determine if the crime has been committed. 5. G.. 101978. examine the evidence submitted by the complainant at his own expense. express waiver or by silence (Herrera. 7. whether express or implied. 1. Rule 112. submit a counter affidavit. 2. Q: When is preliminary investigation required to be conducted? A: GR: Before the filing of a complaint or information for an offense where the penalty prescribed by law is imprisonment of at least 4 yrs. Q: What are the instances wherein the right to preliminary investigation is not deemed waived? A: 1.

No. Q: What are the instances when preliminary investigation is not required even if the offense requires a preliminary investigation? A: 1.g. Q: What is the effect of absence of preliminary investigation? A: It does not: 1. Mar. an inquest will be conducted instead of preliminary investigation. Note: The waiver of the provisions of Article 125 does not bar the person arrested from applying for bail and even while the preliminary investigation is pending. If a person is arrested lawfully without a warrant involving an offense which requires a preliminary investigation. before he is granted the preliminary investigation asked for by him. the accused who desires a preliminary investigation. authorized officer deputized by COMELEC for election offenses). 105581. 126858. 7. ask for a preliminary investigation (Sec. if the determination of probable cause is for the purposes of issuance of warrant of arrest. may.R. 1998). 3. 4.R. 2. such finding will not be disturbed by the court unless there is finding of grave abuse of discretion. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. become a ground for a motion to quash the complaint or information (Sec. he may ask that a preliminary examination be conducted. the penalty is at least four years. De Asis. 1993). WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE Q. G. However. the complaint may be filed directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person (Sec. G. What is probable cause? A: The existence of such facts and circumstances as would excite the belief. No. the absence or unavailability of an inquest prosecutor. Dec. i. and Other officers as may be authorized by law (e. National and Regional State Prosecutors.Ombudman. 13. within five days from the time he learns of its filing. No. Sept. 130644. 3.. 26. 3. impair the validity of the information or render it defective. It need not be based on evidence establishing guilt beyond reasonable doubt but only such as may engender a wellfounded belief that an offense has been committed and that the accused is probably guilty thereof. CA. Sandiganbayan. 7) Q: What is the effect if lack of preliminary investigation is raised in a proceeding pending before the Sandiganbayan? A: The proceeding will be held in abeyance and case should be remanded to the Office of the Ombudsman or the Special Prosecutor to conduct the preliminary investigation (Ong v. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. in a reasonable mind. Q: What degree of proof is necessary to warrant the filing of an information or complaint in court? A: Probable cause. Q: Who may conduct the determination of probable cause? A: It depends THE FISCAL OR PROSECUTOR.e. 3. MARTINEZ 235 . he must sign a waiver of the provisions of Article 125 of the Revised Penal Code. 7) The fact that a person was lawfully arrested without a warrant does not absolutely bar him from availing of a preliminary investigation because before the complaint or information is filed. Provincial or City prosecutors and their assistants. SABUGO & JOHN HENRY C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 117). two months and one day. that the person charged was guilty of the crime for which he was prosecuted.CRIMINAL PROCEDURE Q: Who are authorized to conduct a preliminary investigation? A: 1. acting on the facts within the knowledge of the prosecutor. affect the court’s jurisdiction (People v. 2. an information or complaint may be filed against him without need for a preliminary investigation. MASACAYAN & THEENA C. G. 2005). 3. If he has been arrested in a place where an inquest prosecutor is available. In ACADEMICS CHAIR: LESTER JAY ALAN E. 2. if the determination of probable cause is for purposes of indictment. If the complaint or information has been filed without a preliminary investigation. THE COURT. and justify the release of the respondent or nullify the warrant of arrest against him (Larranaga v.R.

file the information. MANANQUIL. the resolution of the investigating prosecutor is merely recommendatory.. the chief state prosecutor. the latter. Q: What is the rule when the recommendation for dismissal by the investigating prosecutor is disapproved? A: If the recommendation of the investigating prosecutor is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists. but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or Ombudsman on the ground that probable cause exists. the court is bound to suspend the arraignment of the accused for a period not exceeding 60 days (Sec. may by himself. Note: Under the present Rules.UST GOLDEN NOTES 2011 4. 4) Q: What is the effect of the filing of a petition for review before the DOJ if the information was already filed in court? A: Should the information be already filed in court but the accused filed a petition for review of the findings of the prosecutors with the DOJ. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy (Sec. direct another assistant prosecutor to file the informationwithout need for a new preliminary investigation. RONN ROBBY D. d. AIDA. If he finds probable cause to hold the respondent for trial. In such a case. LANTIN. They shall act on the resolution within 10 days from receipt and shall immediately inform the parties of such action. UNICA AMOR R. STAMARIA. SR. DONNA GRAGASIN. the latter may either: a. he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation. MARIANO. 4. MA.. that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof. MARA KHRISNA CHARMINA F. SY. 4). The suspension of the proceedings before the court would only last for 60 236 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. that he was given opportunity to submit controverting evidence 2. SHERY PAIGE A. SUBJECT HEAD: ANGELI P. HERRERA. DUMLAO. Q: Are the findings or resolution of the investigating prosecutor final? A: No. 6. GRETCHEN C. MIJARES. BORJA. JUANENGO. only a motion for suspension of the proceedings in view of the pendency of the petition for review before the DOJ may be filed which must be made before arraignment. JUDGE CESAR D. RESOLUTION OF INVESTIGATING PROSECUTOR Q: How does the investigating prosecutor resolve the findings after preliminary investigation? A: 1. MEMBERS: AKEMI B. BAGANG. KATRINA NADINE G. SUBJECT HEADS: DARRELL L. 11. ROSALES . The Secretary of Justice may. MICHAEL ANGELO V. If the investigating prosecutor recommends the dismissal of the complaint. JR. or b. QUIAMBAO. No complaint of information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman. DIANE CAMILLA R. AQUINO. LIM. CONTRIBUTORS: VICENTE JAN O. MENDOZA. TERESE RAY-ANNE O. upon petition by a proper party or by itself. reverse or modify the resolution of the provincial or city prosecutor. Rule 116). he shall prepare a resolution and certify under oath in the information that: a. once a petition for review is filed before the DOJ after the information is filed in court. PLATON III. or to dismiss or move for dismissal of the complaint or information with notice to the parties (Sec. he shall recommend the dismissal of the complaint 3. file the information against the respondent. 5. 4) Q: What is the rule when the resolution is reversed or modified by the Secretary of Justice? A: If upon petition by a proper party or motuproprio. or the ombudsman. PINEDA. or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation (Sec. RHONDEE E. he shall direct the prosecutor concerned to either file the information without need for a new preliminary investigation or to dismiss or move for its dismissal if already filed in court. that the accused was informed of the complaint and evidences against him. he or an authorized has personally examined the complainant and his witnesses. the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor. c. b. FLORES. If he finds no probable cause. ALBAÑA. KRISTINE P. EDELISE D. YRIZ TAMIE A. Within 5 days from his resolution. he shall forward the record of the case to the provincial or city prosecutor of chief state Prosecutor of the Ombudsman. ASST. JUSTICE OSCAR C. JUSTICE JAIME M. by himself.

CRIMINAL PROCEDURE days reckoned from the date of the filing of the petition for review. 134744. 2005). if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry to another would reveal (Orquinaza v.M. 2005. MARTINEZ 237 . 165596. they have the power to review the findings of prosecutors in preliminary investigations (Social Security System v. G. Office of the Ombudsman. No. No. 281. G. and the decision of the latter may be appealed Q: What is preliminary examination? A: Preliminary examination is the proceeding for the determination of the existence of probable cause for the purpose of issuing a warrant of arrest. No. 2005). The Secretary of Justice may also motuproprio reverse or modify the resolution. June 30. p. 109727-28. G.R. Sec. 147392. Ombudsman. the court orders the filing of correct information involving a cognate offense (Sy Lim v. Herrera.R. G. G. People. 6. 2006). 2007 ed. 4). Article VI. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. No. Aug. 30. The resolution of the Ombudsman. Q: What is a warrant of arrest? A: A warrant of arrest is a legal process issued by a competent authority directing the arrest of a ACADEMICS CHAIR: LESTER JAY ALAN E. acts without or in excess of authority and resolves to file an information despite the absence of probable cause. The Secretary of Justice shall direct either the filing of the complaint without the need for a new preliminary investigation or move for the dismissal of the complaint (Sec. Jan. Apr. The Secretary of Justice may reverse or modify the resolution. CA. G. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.R. No. 2002). i. IV.R. 25. G. 6. Sandiganbayan. the Ombudsman. R. A. may be nullified by a writ of certiorari(Ramiscal v. WHEN WARRANT OF ARREST MAY ISSUE CONSTITUTIONAL BASIS: No warrant of arrest should issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce (Section 2. 16. Mar. 5.R. No. L-37494. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Alternative Answer: The resolution of the DOJ is appealable administratively before the Office of the President. and 3. 2006).e.1982). if the latter acted without or in excess of jurisdiction. MASACAYAN & THEENA C.R. Sec. 15. REVIEW Q: What is the remedy of the aggrieved party from the resolution of the investigating prosecutor as approved by his superior? A: A verified petition for review within 15 days from the resolution or denial of the motion for reconsideration. when: 1. No. Jan. 1987 Constitution) Q: What is the remedy of an aggrieved party against the resolution of the Secretary of Justice? A: Such resolution may be nullified in a petition for certiorari under Rule 65 on grounds of grave abuse of discretion resulting to lack or excess of jurisdiction (Ching v. Q: Are there instances where a new preliminary investigation is not necessary? A: Yes. Nov. Talavera. Of Justice. 158131. before the CA pursuant to Rule 43 (De Ocampo v. Q: What is the remedy against the resolution of the Ombudsman? A: The resolution of the Ombudsman may be subject of petition for review via Rule 43 before the CA or a special civil action for certiorari via Rule 65 before the SC. G. amendment to information is not substantial (Villaflor v. RTJ-05-1909. Nos. Note: In the absence of grave abuse of discretion. Aug. 6. the court will not interfere or pass upon the findings of the Ombudsman to avoid its being hampered by innumerable petitions assailing the dismissal of the investigatory proceedings conducted by the latter (Tejano v. Q: Does the SC and CA have the power to review preliminary investigation? A: Yes. No.R. 18. Feb. 8. Apr. DOJ. 2001). 149148. Of Justice. 2007). such may be nullified by a writ of certiorari (Mendoza-Arce v. No.R. G. 2006) When the officer conducting a conducting a preliminary investigation. Vivar. 159190.) 5. SABUGO & JOHN HENRY C. 2. Vol. 164317. Note: The Secretary of justice may review resolutions of his subordinates in criminal cases despite the information being filed in court (Community Rural Bank of Guimba v.

an examination in writing and under oath of the complainant and his witnesses 2. p. Q: When may a warrant of arrest be issued? A: By the RTC 1. 2. 7. Since their objectives are different. the judge may order the prosecutor to present additional evidencewithin 5 days from notice and the issue must be resolved within 30 days from the filing of the complaint or information. JUSTICE OSCAR C. There is a distinction between the objective of determining probable cause by the prosecutor and by the judge. The prosecutor determines it for the purpose of filing a complaint or information. MIJARES. BORJA. 3. CASES NOT REQUIRING A PRELIMINARY INVESTIGATION Q: What are those cases which do not require preliminary investigation? A: Those offenses punishable by imprisonment of less than 4 years. JR. By the MTC 1. and the corresponding information is filed. YRIZ TAMIE A. LIM. Q: How should the complaint or information be filed when the accused is lawfully arrested without warrant? A: The complaint or information may be filed by a prosecutor without need for a preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules. DONNA GRAGASIN. TERESE RAY-ANNE O. ALBAÑA. SY. PINEDA. ASST. 2. the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. MARIANO. 3. he may issue a warrant of arrest if he finds after: 1. MA. Vol. When the accused is already under detention issued by the MTC When the accused was arrested by virtue of a lawful arrest without warrant When the penalty is a fine only Q: Are “John Doe” warrants valid? A: Generally. 4. then the warrant is valid. But if there is sufficient description to identify the person to be arrested. PLATON III. IV. 2 months and 1 day. Within 10 days from the filing of the complaint or information. The judge must decide independently and must have supporting evidence other than the prosecutor’s bare report. while the judge determines it for the purpose of issuing a warrant of arrest – whether there is a necessity of placing him under immediate custody in order not to frustrate the ends of justice. 2. AQUINO. UNICA AMOR R. 238 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. HERRERA. SUBJECT HEAD: ANGELI P.. in the form of searching questions and answers that probable cause exists AND that there is a necessity of placing the accused under immediate custody in order not to frustrate the ends of justice. 345. It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. 2007 ed.UST GOLDEN NOTES 2011 person or persons upon the grounds stated therein (Herrera. MANANQUIL. without waiting for the conclusion of the investigation. If the preliminary investigation was conducted by the MTC judge and his findings are affirmed by the prosecutor. GRETCHEN C. MEMBERS: AKEMI B. MENDOZA. JUDGE CESAR D. FLORES. KRISTINE P. same procedure as above 2. Q: What are the principles governing the finding of probable cause for the issuance of a warrant of arrest? A: 1. 3. CONTRIBUTORS: VICENTE JAN O. In the absence of an inquest prosecutor. He may immediately dismiss the case if the evidence fails to establish probable cause. However. he shall issue a warrant of arrest. In case of doubt on the existence of probable cause. He must have sufficient supporting documents upon which to make his independent judgment. the judge should not rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. the offended party or any peace officer may file the complaint directly in court on the basis of the affidavit of the offended party or peace officer. STAMARIA. BAGANG. KATRINA NADINE G..). SHERY PAIGE A. SUBJECT HEADS: DARRELL L. AIDA. If he finds probable cause. ROSALES . SR. John Doe warrants are void because they violate the constitutional provision that requires that warrants of arrest should particularly describe the person or persons to be arrested. LANTIN. MICHAEL ANGELO V. Q: When is a warrant of arrest not necessary? A: 1. If the preliminary investigation was conducted by a prosecutor. DIANE CAMILLA R. QUIAMBAO. RONN ROBBY D. 3. MARA KHRISNA CHARMINA F. JUSTICE JAIME M. DUMLAO. JUANENGO. RHONDEE E. EDELISE D. he shall issue a warrant of arrest or a commitment order if the accused has already been arrested by virtue of a warrant issued by the MTC judge who conducted the preliminary investigation or if he was arrested by virtue of a lawful arrest without warrant.

CFI. may. 7) The fact that a person was lawfully arrested without a warrant does not absolutely bar him from availing of a preliminary investigation because before the complaint or information is filed. If he has been arrested in a place where an inquest prosecutor is available. 3. MASACAYAN & THEENA C. he may issue summons instead of warrant of arrest. he may ask that a preliminary examination be conducted.CRIMINAL PROCEDURE Q: What is the procedure if the complaint is filed with the prosecutor? A: If the complaint is filed with the prosecutor involving an offense punishable by imprisonment of less than 4 years. L-21236. Otherwise inquest proper shall be conducted Determination of Probable Cause If there is probable cause. If a person is arrested lawfully without a warrant involving an offense which requires a preliminary investigation. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Note: The waiver of the provisions of Article 125 does not bar the person arrested from applying for bail and even while the preliminary investigation is pending. ask for a preliminary investigation (Sec. within five days from the time he learns of its filing. the issuance of the warrant of arrest is discretionary on the part on the part of the judge. two months and one day. MARTINEZ 239 . File a certiorari. File for Prohibition (Conde v. GR No. Refuse to enter plea upon arraignment and object to further proceedings upon such ground. the complaint may be filed directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person (Sec. Banzuela. INQUEST Q: What is the procedure for conducting inquest proceeding? Q: What are the instances when preliminary investigation is not required even if the offense requires a preliminary investigation? A: 1. 7) A: Receipt of the Inquest Officer of the referral documents Arrest NOT properly effected Arrest properly effected Release shall be recommended A preliminary investigation may be conducted if requested 2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. information shall be filed. Q: What is the procedure if the complaint is filed with the MTC? A: Same procedure shall be observed Note: in all other cases cognizable by the MTC or MCTC.1915) 5. otherwise release shall be recommended. if refused. he must sign a waiver of the provisions of Article 125 of the Revised Penal Code. 2 months and 1 day. 8. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. the detained person shall be released otherwise a preliminary investigation shall be conducted. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION Q: If there was no preliminary investigation conducted. 4. 1923 9. Insist on preliminary investigation. However. If the complaint or information has been filed without a preliminary investigation. what are the remedies of the accused? A: 1. SABUGO & JOHN HENRY C. Q: What is an inquest? A: It is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the ACADEMICS CHAIR: LESTER JAY ALAN E. the penalty is at least four years. Raise lack of preliminary investigation as error on appeal (US v. 2. October 1. an inquest will be conducted instead of preliminary investigation. As long as he is satisfied that there is no need for the necessity of placing the accused under custody. 10172. an information or complaint may be filed against him without need for a preliminary investigation.e. the procedure in Rule 112 Section 3a shall be observed. In the absence or unavailability of an inquest prosecutor.. the accused who desires a preliminary investigation. before he is granted the preliminary investigation asked for by him. i. If evidence does not warrant the conduct of a preliminary investigation. 3. GR No.

Jalosjos. ASST. BAGANG. MARIANO.R. Note: Arrest may be made on any day. ROSALES . 61). Vol. ALBAÑA. 3. The power to determine the existence of probable cause is a function of the judge and such power lies in the judge alone (People v. ARREST WITHOUT WARRANT. ARREST 1. If the offense is not punishable by imprisonment of not more than 6 years. When in the presence of the arresting person. MIJARES. Art. ministers plenipotentiary. This power may not be limited much less withdrawn by Congress. 125 of the RPC providing for the period of detention. However.. their duly registered domestics. STAMARIA. ministers resident. JR. EDELISE D. A senator or member of the House of Representatives shall. p. VI. MEMBERS: AKEMI B. WHEN LAWFUL Q: What are the instances of a valid warrantless arrest? A: 1. JUSTICE JAIME M. 345. AIDA. IV. a. 85866. RA 75). is actually committing or is attempting to commit an offense (in flagrante delicto arrest). UNICA AMOR R. Inting. TERESE RAY-ANNE O. and charges d’affaires are immune from the criminal jurisdiction of the country of their assignment and are therefore immune from arrest. subject to the principle of reciprocity (Sec. ambassadors. Before the complaint or information is filed in court. Feb. DIANE CAMILLA R. The arrest of duly accredited ambassadors. 4 and 7. 1990). YRIZ TAMIE A. 132875-76. LANTIN. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another (Sec. 1. or by his submission to the custody of the person making the arrest (Sec. KATRINA NADINE G. Q: When should the accused arrested without a warrant ask for a preliminary investigation? A: 1.).G. MA. CONTRIBUTORS: VICENTE JAN O. 6). When an offense has in fact been committed and the arresting person has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it (doctrine of hot pursuit). 3. No. LIM. Q: What is warrant of arrest? A: It is a legal process issued by a competent authority. BORJA. directing the arrest of a person or persons upon the grounds stated therein (Herrera. PINEDA. the privilege does not apply even if congress is not in session. RHONDEE E. the person to be arrested has committed. sovereign and other chiefs of state. 2). DUMLAO. 240 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. E. Q: Who may issue a warrant of arrest? A: The 1987 Constitution speaks of “judges” which means judges of all levels. 2007 ed. RONN ROBBY D. SR. Q: How is arrest made? A: It is made by an actual restraint of a person to be arrested. HOW MADE Q: What is arrest? A: Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. 3. Punishable by imprisonment of more than 6 years even if Congress is in session (People v. Under the generally accepted principles of international law. July 24. 2. GRETCHEN C. 1987 Constitution). SY.UST GOLDEN NOTES 2011 court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court (Sec. JUDGE CESAR D. When the complaint or information is already filed in court. 5). MENDOZA. MICHAEL ANGELO V. SHERY PAIGE A. 11. at any time of the day or night (Sec. anytime before the filing provided he signs a waiver of the provision of Art. DONNA GRAGASIN. within 5 days from the time he learns of the filing (Sec.. 2. SUBJECT HEAD: ANGELI P. MANANQUIL. in the presence of his counsel. JUSTICE OSCAR C. Q: Who are persons not subject to arrest? A: 1. KRISTINE P. be privileged from arrest while congress is in session (Sec. 2. G. AQUINO. HERRERA.R. the privilege of a senator or congressman will not apply when the offense is: 2. public ministers of a foreign country. 2000) b. PLATON III. JUANENGO. SUBJECT HEADS: DARRELL L. in all offenses punishable by not more than 6 years imprisonment.6). DOJ Circular No. ARREST. FLORES. MARA KHRISNA CHARMINA F. No. QUIAMBAO.

G. 20. By the bondsmen for the purpose of surrendering the accused. ACADEMICS CHAIR: LESTER JAY ALAN E. Vol. 3. Two days after a drug offense was committed (People v. 2007 ed.R. Kimura. 6. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. No. Aug. One day after the crime of robbery was committed (People v. Light penalties – 12 hours Correctional penalties – 18 hours Afflictive or capital penalties – 36 hours Q: The officers went to the scene of the crime where they found a piece of wood and a concrete hollow block used by the killers in bludgeoning the victim to death. A neighbor of the accused who witnessed the killing. Gerente. 104378. 2. Q: What is meant by personal knowledge? NOTE: the probable cause justifying a warrantless arrest must. but it includes cases where the arresting officer hears the disturbance created and proceeds at once to the scene. 125 of the RPC. otherwise. 418. of the Dangerous Drugs Law. they could lawfully arrest Roberto without a warrant. Where the person who has been lawfully arrested escapes or is rescued. be based on personal knowledge of facts and circumstances on the part of the person making the arrest. Where the accused attempt to leave the country without permission of the court. MARTINEZ 241 . Roberto was arrested three hours after the killing.Jurisdiction over the person arrested must be transferred to the judicial authorities. 1996) Q: What is required by the phrase “in his presence”? 1. In the following instances. 125 is a procedural requirement in case of warrantless arrest. Q: What are the elements of hot pursuit arrest? A: 2. Manlulu. 231 SCRA 701) 2. The person must be delivered to the judicial authorities within the period specified in Art. he may be held criminally liable for arbitrary detention under Art. Juatan. 124 of the RPC. IV. pointed to Roberto as one of the assailants. Del Rosario. the Court ruled as invalid the warrantless arrest that took place: 1. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. If they had postponed his arrest until they could obtain a warrant. 3. Q: What is the obligation of the arresting officer after the warrantless arrest? A: He must comply with the provisions of Art. Under the abovementioned circumstances. 428 SCRA 51) Q: What is buy-bust operation? A: A form of entrapment which has been repeatedly accepted to be a valid means of arresting violators The accused should be brought to the prosecutor for inquest proceedings wherein existence of probable cause will be determined.CRIMINAL PROCEDURE 4. The offense has just been committed. p. A case must be filed in court. A: It means actual belief or reasonable grounds of suspicion that the person to be arrested is probably guilty of the offense based on actual facts. 1. 19 hours after the commission of the crime of murder (People v. Is the arrest a valid warrantless arrest? A: Yes. Art. he would have fled the law as his two companions did.) A: It does not necessarily require that the arresting officer sees the offense. 5. (People v. MASACAYAN & THEENA C. 125 (Delay in the delivery of detained persons to the proper judicial authorities). 305 SCRA 740) 3. under the Rules. 219 SCRA 756) Note: There is no rule on the exact proximity of the commission of the offense to the arrest. (People v. and Probable cause based on personal knowledge of facts or circumstances that the person/s to be arrested committed it (Herrera. An offense has been committed (close proximity between the arrest and the time of commission of the crime). SABUGO & JOHN HENRY C. The violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime. Q: How can an arresting officer have personal knowledge of facts when he was not present when the crime was committed? A: Personal knowledge has no reference to the actual commission of the crime but to personal knowledge of facts leading to probable cause. The officer must have personal knowledge of offense just committed. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Then the judge shall issue a commitment order (order issued by the judge when the person charged with a crime is already arrested or detained) and not a warrant. since the policemen had personal knowledge of the violent death of the victim and of facts indicating that Roberto and two others had killed him.

SUBJECT HEADS: DARRELL L. 242 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. BY PRIVATE PERSON Q: How may arrest be effected? A: Method of arrest Exception to the rule on giving information Arrest by officer by virtue of a warrant (Sec. SHERY PAIGE A. TERESE RAY-ANNE O. ROSALES . Arrest by a private person (Sec. Note: The officer need not have the warrant in his possession at the time of the arrest but must show the same after the arrest. Learning of the issuance of the warrants. YRIZ TAMIE A. RHONDEE E.. ALBAÑA. when he has escaped. When the person to be arrested flees. even on a private property or in a house. AQUINO. an officer having the right to arrest an offender may use such force as necessary to effect his purpose. STAMARIA. BY OFFICER WITHOUT WARRANT c. 1.UST GOLDEN NOTES 2011 3. if the person arrested so requires. he may be held criminally liable for illegal detention. This rule is applicable both where the arrest is under a warrant. NOTE: Reasonable amount of force may be used to effect arrest . MIJARES. 4. MARA KHRISNA CHARMINA F. DONNA GRAGASIN. 5. By actual restraint of the person to be arrested. Alberto and Romeo were charged with murder. the RTC judge issued the warrants of arrest. flees. The person to be arrested is or reasonably believed to be in the said building. SY. MANANQUIL. HERRERA. GRETCHEN C. when the person to be arrested is engaged in the commission of an offense or is pursued immediately its commission. On the date set for hearing of their motion. 9) The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. PINEDA. FLORES. and 3. JR. otherwise. Objects subject of the offense or used or intended to be used in the commission of the crime. 1. when the giving of such information will imperil the arrest. 11). Arrest by officer without a warrant (Sec. Q: Jose. and to a great extent he is made the judge of the degree of force that may be properly exerted. Note: Arrest must precede the serach. MENDOZA. Reliable information alone is not sufficient to justify a warrantless arres under Sec. and Dangerous weapons and those which may be used as evidence in the case. The officer has announced his authority and purpose for entering therein. SUBJECT HEAD: ANGELI P. MA. RONN ROBBY D. DUMLAO. MEMBERS: AKEMI B. when the person to be arrested is engaged in the commission of an offense or is pursued immediately The officer shall inform its commission. JUSTICE JAIME M. He has requested and been denied admittance (Sec. a serach substantially contemporaneous with an arrest can precede the arrest at the outset of the search. of his authority and the flees. or forcibly resists cause of the arrest w/out before the officer has an a warrant opportunity to so inform him. 2. AIDA. SR. LIM. 8) 1. 2. and 3. The officer shall inform the person to be arrested the cause of the arrest and the fact that the warrant has been issued for his arrest. BY OFFICER WITH WARRANT b. Those which might be used by the arrested person to commit violence or to escape. QUIAMBAO. Rule 113. and 3. BAGANG. Q: What can be confiscated from the person arrested? A: 1. MARIANO. 7) Q: What amount of force may be used in effecting an arrest? A: No violence or unnecessary force shall be used in making an arrest. and where there is a valid warrantless arrest. none of the accused showed up in the court for fear of being arrested. PLATON III. 2. the process cannot be reversed. the person to be arrested 2. When he forcibly resists before the officer has an opportunity to inform him. Note: A lawful arrest may be made anywhere. 2. 3. JUSTICE OSCAR C. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. ASST. DIANE CAMILLA R. or forcibly resists before the officer has an opportunity to so inform him. KRISTINE P. when the giving of such information will imperil the arrest. 3.. Q: May an officer break into a building or enclosure to make an arrest? What are the requisites? A: Yes. 2). When the giving of such information will imperil the arrest. MICHAEL ANGELO V. 2. the 3 accused jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. Nevertheless. LANTIN. JUDGE CESAR D. provided that: 1. CONTRIBUTORS: VICENTE JAN O. when he has escaped. Objects which are fruits of the crime. EDELISE D. By his submission to the custody of the person making the arrest a. Note: Private person must deliver the arrested person to the nearest police station or jail. Upon filing of the information. UNICA AMOR R. METHOD OF ARREST Q: What are the modes of effecting arrest? A: 1. KATRINA NADINE G. BORJA. JUANENGO.

Did the RTC rule correctly? A: The RTC ruled correctly in denying the motion for reinvestigation and recall of the warrants of arrest because the accused have not surrendered their persons to the court. Macam.R. MASACAYAN & THEENA C. the court acquired jurisdiction over the person of the accused when they filed the aforesaid motion and invoked the court’s authority over the case. Suzuki. as provided under Sec. complaint or information is for an offense penalized by fine only [Sec. the avowed purpose of which is the armed overthrow of the organized and established government. However. (2008 Bar Question) Q: When is warrant of arrest not necessary? A: When the: 1. Ejandra. 120670. MARTINEZ 243 . 26.R. 12. he was arrested without a warrant. has voluntarily submitted himself to the jurisdiction of the court. such as the New People’s Army. 134203. No.R. 8 (b). G. After trial on the merits. Nos. relating to subversive armed organizations. No. The court shall resolve the matter as early as possible. G. Once a person has been duly charged in court. Is he now barred from questioning the illegality of the arrest? A: Yes. However. judge may issue summons instead of a warrant of arrest if he is satisfied that there is no necessity for placing the accused under custody [Sec. Bogart waived any irregularities relating to their warrantless arrest when he failed to file a motion to quash the Information on that ground.R. how would you refute said claim? A: Any objection to the illegality of the arrest of the accused without a warrant is deemed waived when he pleaded not guilty at the arraignment without ACADEMICS CHAIR: LESTER JAY ALAN E. May 27. Q: May authorities resort to warrantless arrest in cases of rebellion? A: Yes. Bogart raised the illegality of his arrest for the first time on appeal to the Supreme Court. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Q: Fred was arrested without a warrant. Oct. 5. Accused is already under detention. otherwise it is deemed waived. Q: Is an application for bail a bar to questions of illegal arrest. G. Their filing the motion is tantamount to voluntary submission to the court’s jurisdiction and constitutes voluntary appearance. Q: How may an illegal arrest be cured? A: Illegality of warrantless arrest maybe cured by filing of information in court and the subsequent issuance by the judge of a warrant of arrest. 23. As Solicitor General. L-91011-12. Complaint or information was filed pursuant to a valid warrantless arrest. Rule 114). without raising the issue of jurisdiction over their person. since rebellion has been held to be a continuing crime. Q: When is an accused deemed to have waived the illegality of his arrest? A: An accused who enters his plea of not guilty and participates in the trial waives the illegality of the arrest. in this case. Rule 112]. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. (People v. He pleaded not guilty during arraignment. 4. On appeal he claims that judgment was void due to his illegal arrest. Rule 112]. Rule 113.1994) Q: Bogart was charged with the crime of kidnapping for ransom.. Villon.CRIMINAL PROCEDURE The RTC judge denied their motion. 2. Jurisdiction over the person of the accused can only be obtained through arrest or voluntary surrender (Dimatulac v. authorities may resort to warrantless arrests of persons suspected of rebellion. Nov. Q: May an accused who has been duly charged in court question his detention by a petition for habeas corpus? A: No. 127107. No. as the accused. this doctrine should be applied to its proper context – i. 24. not later than the start of the trial on the case (Sec. 5 (c).e. Objection to the illegality must be raised before arraignment. irregular or lack of preliminary investigation? A: No. 2004). an information was filed in court. He is now estopped from questioning the legality of their arrest (People v. Complaint or information is filed with the MTC and it involves an offense which does not require preliminary investigation. After preliminary investigation. Alternative Answer: No. G. he was found guilty by the court. 2003). Oct. 3. he may no longer question his detention by petition for habeas corpus. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. or to object to any irregularity in their arrest before they were arraigned. his remedy is to quash the information and/or the warrant of arrest. Only in such instance should rebellion be considered a continuing crime (People v. 1998). SABUGO & JOHN HENRY C. provided that he raises them before entering his plea.

G. PINEDA.The determination by the judge of probable cause begins only after the prosecutor has filed the information in court and the latter’s determination of probable cause is for the purpose of issuing an arrest warrant against the accused. QUIAMBAO. MA. 4. RONN ROBBY D. BAGANG. examination of the accused (Alimpoos v. 5. NOT a petition for habeas corpus. Issued upon probable cause 2. MENDOZA. MIJARES. July 30. Jan. REQUISITES OF A VALID WARRANT OF ARREST Q: What are the essential requisites of a Valid Warrant of Arrest? A: 1. 4. Cabiles. YRIZ TAMIE A. Makasiar GR No L-82585. JUDGE CESAR D. Court of Appeals. 3. if the determination of probable cause is for the purposes of issuance of warrant of arrest. 32. which is judicial function (People vs. LANTIN. THE COURT. LIM. No. No. The judge must personally evaluate the report of the prosecutor and the evidence adduced during the preliminary examination (Soliven v..R. DIANE CAMILLA R. 269. BORJA. In connection with specific offense or crime Note: A warrant of arrest has NO expiry date. JUANENGO.1990) as the Probable Cause determined by Judge For the warrant issuance as the an of Q: What is the remedy for warrants improperly issued? A: Where a warrant of arrest was improperly issued. 1988) Note: The judge is only required to personally evaluate the report and the supporting documents submitted by the fiscal during the preliminary investigation and on the basis thereof he may dismiss. 1998). PLATON III. Inting.UST GOLDEN NOTES 2011 raising the question. SHERY PAIGE A. KATRINA NADINE G.R. Rule 114) 5. AQUINO. 85866. JR. SUBJECT HEAD: ANGELI P. SR. Q: What are the consequences of illegal arrests? A: 1. SUBJECT HEADS: DARRELL L. since the court in the latter case may only order his release but not enjoin the further prosecution or the preliminary Basis: reasonable ground to believe that a crime has been committed Judicial function Basis: the report and the supporting documents submitted by the fiscal during the preliminary investigation and the supporting affidavits that may be required to be submitted. for the purpose of either filing an information in court or dismissing the charges against the respondent. The warrant must particularly describe the person to be arrested. AIDA. SY. July 24. CA. RHONDEE E. issue warrant or require further affidavits (People v. ROSALES . 1990). DUMLAO.. EDELISE D. the proper remedy is a petition to quash it. NCC. DONNA GRAGASIN. Determined personally by the judge after examination after oath of the complainant and the witnesses he may produce 3. CONTRIBUTORS: VICENTE JAN O. 4. MARA KHRISNA CHARMINA F. TERESE RAY-ANNE O. 112035. ASST.November 14. Q: Distinguish the probable cause as determined by a fiscal from that of a judge? A: Probable Cause determined by Prosecutor For the filing of information in court Executive function 2. GR No L-27331. JUSTICE OSCAR C. The arresting person may be held criminally liable for illegal arrest under Art. G. things or articles seized following the illegal arrest are inadmissible in evidence. MICHAEL ANGELO V. which is an executive function. 301 SCRA 475). FLORES. The documents. and He may also be held administratively liable. STAMARIA. GRETCHEN C. It remains valid until arrest is effected or warrant is lifted (Manangan v. MARIANO. KRISTINE P. DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A JUDGE Q: Who may conduct the determination of probable cause? A: FISCAL. MANANQUIL. DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST Q: Who determines probable cause for the issuance of warrant of arrest? A: The determination of probable cause for the warrant of arrest is made by the judge 6. Note: The determination of probable cause by the prosecutor is for a purpose different from that which is 244 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. such finding will not be disturbed by the court unless there is finding of grave abuse of discretion. ALBAÑA. Arresting officer may be held civilly liable for the damages under Art. 16. JUSTICE JAIME M. UNICA AMOR R. RPC. 1981) NOTE: Posting of bail does not bar one from questioning illegal arrest (Section 26. HERRERA. It is too late to complain about a warrantless arrest after trial is commenced and completed and a judgment of conviction rendered against the accused (People v. MEMBERS: AKEMI B. CFI GR No 82760 August 30.

An obligation under seal given by the accused with one or more sureties and made payable to the proper officer with the condition to be void ACADEMICS CHAIR: LESTER JAY ALAN E. Cruz v. 1975). Thus. MASACAYAN & THEENA C. furnished by him or a bondsman. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or Upon application of a peace officer. Court of Appeals. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice.. 92. 1993) Q: When may a judge issue a warrant of arrest? A: When probable cause exists. No. RTJ-01-1642. 77 Phil. Note: If before such finality. he may be allowed temporary liberty under his bail. A. 55) Q: What are the purposes of bail? A: 1. 3. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Corporate surety/ Bail bond. Baldado AM No. Note: A person is in custody of law when he is either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities (Dinapol v. Rule 119). Judge Areola. March 6. There is substitution of information (Section 4. To relieve an accused from the rigors of imprisonment until his conviction and yet secure his Q: When is bail available? A: Bail is available only to persons in custody of the law. A prosecution witness may be required to post bail to ensure his appearance at the trial of the case where: 1. (Dinapol v. Q: What is the nature of the right to bail? A: The right to bail is a constitutional right which flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom.898.M. By 'summary hearing' is meant such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for the purpose of bail (Ocampo v. August 5. the accused applies for probation. 1993) Q: May bail still be filed after final judgment? A: Bail may not be filed once there is already a final judgment (Sec. Where the court believes that a material witness may not appear at the trial (Section 14. Bernabe. 1. Rule 119) Q: What are the forms of bail? A: 1. Upon the filing of information by the prosecutor. 2. Villaluz GR No L31665. In no case shall bail be allowed after the accused has commenced to serve sentence. August 6. and 2. Rule 114). To enable him to prepare his defense without being subjected to punishment prior to conviction Note: Bail is available only to persons in custody of the law. 24. Q: May prosecution witness be required to post bail? A: Yes. F. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. To honor the presumption of innocence until his guilt is province beyond reasonable doubt. i. The right to bail presupposes that the accused is under legal custody (Paderanga v. August 5. (P/Supt.CRIMINAL PROCEDURE to be made by the judge. Rule 114). A person is in custody of the law when he has been either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authoritites. The judge. 2. MARTINEZ 245 . the right to bail only accrues when a person is arrested or deprived of his liberty. on the other hand. 247 ACRS 741) Q: What is the nature of bail proceedings? A: The hearing of an application for bail should be summary or otherwise in the discretion of the court. NATURE Q: What is bail? A: Under the Rules of Court it is the security given for the release of a person in custody of the law. SABUGO & JOHN HENRY C. determines whether a warrant of arrest should be issued against the accused. BAIL 1. 1. 2002) appearance at the trial (Almeda v. to guarantee his appearance before any court as required under the conditions prescribed under the rules (Sec. Baldado AM No 92898.e. a. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon.

UST GOLDEN NOTES 2011 upon performance by the accused of such acts as he may be legally required to perform. BORJA. ROSALES . 14). Recognizance a. city or municipal assessor on the corresponding tax declaration if property is not registered (Sec. JUSTICE OSCAR C. the whole amount of the cash bond will be forfeited in favor of the government and the accused will now be arrested. he may be cited for contempt of court. HERRERA. Note: Liability of surety/bondsman covers all three stages: i. the custodian will bring him to that court. The accused goes to an authorized bonding company and he will pay a premium for the service which is a percentage of the total amount of bail. KATRINA NADINE G. b. obligations and properties exempt from execution (Sec. the surety of properties must be worth the amount specified in his 246 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Cash deposit/ Cash bond. CONTRIBUTORS: VICENTE JAN O. If the accused jumps bail. b. BAGANG.. No bail shall be approved unless the surety is qualified (Sec. This is allowed for light felonies only. b. execution of sentence e. MANANQUIL. c. JUSTICE JAIME M. DONNA GRAGASIN. TERESE RAY-ANNE O. or iii. AQUINO. LANTIN. SUBJECT HEAD: ANGELI P. The accused shall cause the annotation of the lien within 10 days after approval of the bond before the: i. BAIL BOND An obligation under seal given by the accused with one or more RECOGNIZANCE An obligation of record entered into before some court or magistrate duly Note: In all cases. SUBJECT HEADS: DARRELL L. MEMBERS: AKEMI B. KRISTINE P. SHERY PAIGE A. JR. ASST. If the accused does not appear when required. SR. The person who undertakes the conditions of a regular bond will be the custodian of the accused during the time that he is under provisional liberty. FLORES. JUDGE CESAR D. 12). The bonding company will then go to the court and execute an undertaking.] 4. Registration Book in the Registry of Deeds of the place where the land lies and before the provincial. EDELISE D. QUIAMBAO. MA. PLATON III. Clerk of court where the case is pending. DUMLAO. Nearest collector of internal revenue. SY. Property bond. RHONDEE E. entered into before some court or magistrate duly authorized to take it with the condition to do some particular act. Note: If the accused does not appear despite notice to the custodian. UNICA AMOR R. MIJARES. GRETCHEN C. c. promulgation iii. It is the deposited by the accused himself or any person acting in his behalf. LIM. d. RONN ROBBY D. ALBAÑA. Cash shall be in the amount fixed by the court or recommended by the prosecutor who investigated the case. MARA KHRISNA CHARMINA F. 11). 3. Provincial. or ii. the bonding company will bring him before the court. b.. No further order from the court is necessary for the release of the accused if the conditions prescribed were complied with (Sec. ii. JUANENGO. An obligation of record. a. YRIZ TAMIE A. PINEDA. c. MENDOZA. The title of the property will be used as security for the provisional liberty of the accused which shall constitute a lien over the property. STAMARIA. This is the remedy because no money is involved in recognizance. own undertaking over and above all just debts. Notice to bonding company is notice to the accused. or the person who executed the recognizance does not produce the accused. MICHAEL ANGELO V. that if the accused is needed. DIANE CAMILLA R. a. Notice is usually sent to the bonding company in order to produce the body of the accused. trial ii. It is to be deposited before the: i. Registry of Deeds if the property is registered. It is an undertaking of a disinterested person with high credibility wherein he will execute an affidavit of recognizance to the effect that when the presence of the accused is required in court. the bond will be cancelled and the bonding company will be given sufficient time to locate the whereabouts of the accused who posted bail but later on jumps bail. 13). AIDA. or "security bond" in the amount of the bail bond in behalf of the accused. 2. city or municipal treasurer. MARIANO.

an accused may apply for and be granted bail even prior to arraignment. Rule 114). Court of Appeals GR No. The accused shall appear before the proper courts whenever so required by the court or these rules. 3. trial. A: Mike may apply for bail in RTC Manila where the information was filed or in the RTC Quezon City where he was arrested. G. or if no judge thereof is available. An application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. irrespective of whether the case was originally filed in or appealed to it. when a person lawfully arrested without a warrant asks for preliminary investigation before the complaint or information is filed in court. with any RTC judge.CRIMINAL PROCEDURE sureties. The failure of the accused to appear at the trial without justification despite due notice shall be deemed a waiver of his right to be present thereat. Nos. and unless cancelled. 28. MCTC therein. 2000 Note: When bail is a matter of right. or municipality other than where the case is pending. and 2. city. 2. the application may only be filed in the court where the case is pending. for in such a situation. 3. he may be granted provisional liberty even prior to arraignment. Rule 114). In the court where the case is pending. bail may also be filed with any RTC of said place. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. together with the order of release and other supporting papers.R. he may apply for bail (Sec. 129670. Q: Is bail investigation? available during preliminary 1. If the accused is arrested in a province. or MCTC judge in the province. or if no judge thereof is available. MARTINEZ 247 . with any MTC judge. The undertaking shall be effective upon approval. Sandiganbayan. February 1. The trial court could ensure the presence of the accused at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings (Section 2b. 148769 & 149116. MASACAYAN & THEENA C. 1. Further. city. SABUGO & JOHN HENRY C. for the following reasons: Q: Where should bail be filed? A: 1. In such case. 2. Q: Is arraignment required before the court grants bail? A: NO. ACADEMICS CHAIR: LESTER JAY ALAN E. 2003). The bondsman shall surrender the accused to court for execution of the final judgment (Sec. Q: What are the conditions or requirements of bail? A: Q: Is hearing required for the grant of bail? A: YES. 4. whether on preliminary investigation. the judge who accepted the bail shall forward it. 4. Any person in custody who is not yet charged in court may apply for bail with any court in the province. with any MTC judge or MCTC judge therein. to the court where the case is pending (Sec. shall remain in force at all stages of the case until promulgation of the judgment of the court. or In the absence or unavailability of the judge thereof. 2. Jan. and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform. Rule 112). The accused would be placed in a position where he has to choose between filing a motion to quash and thus delay his release on bail. 6. When bail is filed with a court other than where the case is pending. 19). 17). LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 148468. authorized to take it with the condition to do some particular act. or municipality where he is held (Sec. MTC judge. if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong. in what court or courts may he apply for bail? Explain. In all cases whether the bail is a matter of right or discretion a hearing is required. or on appeal. Note: Where the grant of bail is a matter of discretion. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. A: Yes. the most usual condition in criminal cases being the appearance of the accused for trial. bail would be "authorized" under the circumstances (Serapio v. city. and foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail (Lavides v. the trial may proceed in absentia. Q: If an information was filed in the RTC Manila charging Mike with homicide and he was arrested in Quezon City. or the accused seeks to be released on r