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

7

AQUINO. appeal is automatic to the CA. Appeals from the CA. Commission on Audit 4. Pilar Development Corp. 10. 4. July 7. ordinance or regulation b) Legality of tax. GRETCHEN C. JUANENGO. SR. FLORES. Criminal cases in which the death penalty is imposed by the Sandiganbayan Appeals from the CA. 27. international or executive agreement. G. the pertinent provisions of the Ombudsman Act (Hagad v. Special civil action of certiorari – filed within 30 days against the COMELEC / COA a) Note: In criminal cases. HERRERA.R. instruction. UNICA AMOR R. assessments. Appeals from the Sandiganbayan. 148106. 108072. LIM. 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.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 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. which although not so punished c. 167711.R.M. G. when the penalty imposed is life imprisonment or reclusion perpetua. SUBJECT HEADS: DARRELL L. (A. G. In all criminal cases involving offenses from 1. Oct. JUSTICE JAIME M. BORJA. No. STAMARIA. YRIZ TAMIE A. MICHAEL ANGELO V.. offenses. Dec. 6. 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. KRISTINE P. KATRINA NADINE G. DUMLAO. 2006). RHONDEE E. or toll. order. QUIAMBAO. the Ombudsman must yield to the Division School Superintendent in the investigation of administrative charges against public school teachers (Ombudsman v. ROSALES . 2006). 6770. imprisonment and those involving other b. 147678-87. Appeal by petition for review on certiorari: which the penalty is reclusion perpetua or life a. 1. All cases in which only errors or questions of law are involved. Inc. 5. There is nothing in the Local Government Code of 1991 to indicate that it has repealed. 147874.. MENDOZA. 8. v. July 17. SY. MANANQUIL. 12. 6770). prohibition and Petitions for issuance of writs of certiorari. JUSTICE OSCAR C. No. 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. Mateo y Garcia. Province of Batangas. Dadole.R. MARA KHRISNA CHARMINA F. DIANE CAMILLA R. G. G. 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. SUBJECT HEAD: ANGELI P. Commission on Elections En Banc 2. If no question of fact is involved and the case the same occasion involves: Constitutionality or validity of treaty. CONTRIBUTORS: VICENTE JAN O. No. or penalty in relation thereto c) Cases in which jurisdiction of lower court is in issue ii. 2006. No. 1995). No. Phil. MIJARES. BAGANG. proclamation. No. People v. July 17. Galicia. ALBAÑA. R. Appeals from RTC in which only errors or questions of law are involved. AIDA.. DONNA GRAGASIN.R. Twenty-Two Realty Development Corp.A.. PINEDA. MEMBERS: AKEMI B. 8 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. EDELISE D. whether expressly or impliedly. 2. No. Santiago v. G. SUPREME COURT Criminal Cases Exclusive Original Petitions for issuance of writs of certiorari. 5. PLATON III. presidential decree. Courts may raise the issue of primary jurisdiction sua sponte (on its own will or motion. MARIANO. Public school teachers Generally. law. Court of Appeals 1. JUDGE CESAR D. Court of Appeals 2. impost. 04-9-05-SC. ASST. Appeals from the CTA.. 2008).A. TERESE RAY-ANNE O. JR. RONN ROBBY D. mandamus against the following: prohibition and mandamus against the following: 1. Enforcement of a money claim against a local government unit Commission on Audit (COA) has the primary jurisdiction to pass upon the money claim. SHERY PAIGE A. 3. directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Sec. July 20.R. LANTIN. 7. Sandiganbayan 3.R. Sandiganbayan Appellate 1. 153628. 2004) Civil Cases 2. MA.

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

SHERY PAIGE A. JUSTICE JAIME M. R. LIM. R. SUBJECT HEAD: ANGELI P. officers or managers of such corporation. b. 9275 . CONTRIBUTORS: VICENTE JAN O. resolutions. and Petitions of corporations. MICHAEL ANGELO V. R. Rule 1. 8749 . 9 B.A. 9522. 9 extrinsic fraud or lack of jurisdiction (Sec. RONN ROBBY D. c. Final judgments. RTC on the questions of constitutionality. MEMBERS: AKEMI B.A. 7160. RTC a. JUDGE CESAR D. partnership or association has no sufficient assets to cover its liabilities but is under the management of a Rehabilitation Receiver or Management Committee (Sec. 9072 .Clean Water Act.P. DIANE CAMILLA R. y. GRETCHEN C. MARIANO. High-Value Crops Development Act. and ii. EDELISE D. b. R.2. R. SR.National Caves and Cave Resource Management Act. 7308. KRISTINE P. In the exercise of its original jurisdiction. Judgments or decisions of RTC (except those appealable awards of: to the SC or SB): a.A. 9175 . MARA KHRISNA CHARMINA F. 129). MIJARES. w. LANTIN. MANANQUIL. JUSTICE OSCAR C. and z. A. PINEDA. YRIZ TAMIE A.A. imprisonment (Sec. Coconut Preservation Act. 8048.A. R. 9483 . Rule 122). of the board of directors. DONNA GRAGASIN. exercising its original jurisdiction.A. R. trustees.Wildlife Conservation and Protection Act.UST GOLDEN NOTES 2011 r. c. x. 096-8-SC).A. a lesser penalty for offenses committed on validity of tax. v. Actions for annulment of judgments of RTC (Sec. decisions. COURT OF APPEALS Criminal Cases Exclusive Original Actions for annulment of judgments of RTC based upon 1. where the imposable penalty is: b. ii. 9372 Appellate 1.A. In the exercise of its appellate jurisdiction. 141. Controversies arising out of intracorporate or partnership relations. Renewable Energy Act of 2008. 9147 . jurisdiction involving questions of the same occasion or which arose from the fact. 2. R. Local Government Code of 1991. STAMARIA. and between such corporation. 2. QUIAMBAO. Other existing laws that relate to the conservation. Comprehensive Agrarian Reform Law of 1988. orders. members or associates. 2. R. R. 2.A. BORJA. partners. 10. Family Courts. t.A. SRC). Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC). The Philippine Archipelagic Baselines Law. The following are intra-corporate controversies within the jurisdiction of the RTC: a. R. 7900.A. Philippine Biofuels Act. R. members of the associations or organizations registered with the Security and Exchange Commission. Death (Sec. partnerships or associations to be declared in the state of suspension of payments in cases where the corporation.Clean Air Act. partnerships or associations. B. respectively. Rule 122). 5.A.A. JUANENGO. ASST. 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. Agriculture and Fisheries Modernization Act of 1997. Cases involving devises or schemes employed by or any acts. DUMLAO. ALBAÑA. 9003 . SUBJECT HEADS: DARRELL L.A. ROSALES .A. preservation. protection and utilization of the environment and natural resources (Sec. Appeal from MTC in the exercise of its delegated iii. BAGANG. PLATON III. Civil Cases 10 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Seed Industry Development Act of 1992. JR. HERRERA. The Public Land Act. life imprisonment or reclusion perpetua.. between and among stockholders. FLORES.Oil Spill Compensation Act of 2007. 3.. 6657. Provisions in CA No. No. UNICA AMOR R. 7161. its officers or partnership.M. Controversies in the election or appointments of directors. c. i. Appeals from RTC in cases appealed from MTCs punishable reclusion perpetua or life which are not a matter of right. same occurrence that gave rise to the offense d.A. MENDOZA. R. Crimes of Terrorism under the Human Security Act of 2007 or R. u. which should be appealed first to the CA. 8435. d. amounting fraud or misrepresentation which may be detrimental to the interest of the public and/or the stockholders. RHONDEE E. i. R. SY. s. TERESE RAY-ANNE O. 129).A. 9593. 3. MA. KATRINA NADINE G.A. R. partnership or association and the state in so far as it concerns their individual franchise or right to exist as such entity. AIDA. 9637.Ecological Solid Waste Management Act. exercising its appellate jurisdiction. AQUINO.Chainsaw Act. R.P. business associates. R. development.

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

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

MARTINEZ Civil Cases 13 . Violations of Dangerous Drugs Act regardless Reforms. 09-6-8-SC). and 5. Certiorari. 7691).24. exclusive original jurisdiction of Juvenile and b.000 or P400. Cases where the only penalty provided by law is a 5. P. tribunal. 129). court. Law on written defamation or libel. value exceeds P20.P. 13. Special ACADEMICS CHAIR: LESTER JAY ALAN E.000 in Metro Manila. Matters of probate. 129 as amended by R. higher Concurrent With SC. Includes criminal cases where the penalty 2. exclusive of interest. Domestic Relations Court and Court of Agrarian c. With MTC Cases involving enforcement or violations of environmental and other related laws.000 or P400.2 of the committed by an official with salary grade of 27 or Securities and Regulation Code. 1606 as value of estate exceeds P300.A. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.000 or P50. 2. Other laws which specifically lodge jurisdiction in quasi-judicial function. 20. 3019). BP there are no Family Courts (Sec. The latter contested the suspension claiming that under the law (Sec.A. offender is under 16 and there are Juvenile and damages.000. No. person or body exercising judicial or 3. of pecuniary estimation.M. Civil actions and special proceedings falling within a. found the same to be valid and ordered the suspension of Charles. 13. It is mandatory after the determination of the validity of the information in a pre-suspension hearing.A. 5 of the Decentralization Act of 1967 (R. Intra-corporate controversies under Sec. 7691). Actions in which the subject of litigation is incapable any court.JURISDICTION Sandiganbayan. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 19. Habeas corpus and quo warranto. exclusive original jurisdiction of the 3. Decree on Intellectual Property. Criminal cases not within exclusive jurisdiction of 1. where gross “Grade 27” and higher (Sec. Other cases where the demand. Charles’ suspension is mandatory. tribunal or body (Sec. 5. SB and CA 1.000 in Metro Manila (Sec.A. 5185). 3019 is in conflict with Sec. Cases not within the exclusive jurisdiction of any fine exceeding P4. Election offenses (Omnibus election code) even if 8. or value of property in controversy exceeds 4. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. litigation expenses and Domestic Relations Court in the province. attorney’s fees. 8249). Rule 1. 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.A. Is the court's ruling correct? A: Yes.000 in imprisonment more than 6 years and none of Metro Manila. MASACAYAN & THEENA C. BP 129). Writ of amparo Petitions for the issuance of writ of amparo and writ of 2. although not automatic. The Sandiganbayan overruled Charles’ contention stating that the suspension under the circumstances is mandatory. the accused is occupying positions classified as 4. after going over the information. prohibition and mandamus against lower courts and bodies. 2.000 or P400. (2001 Bar Question) 5. 4. R.A. his suspension is not automatic upon the filing of the information and his suspension under Sec. costs. 21 (2) of BP 129] With SC and CA 1. R. the RTC: 6. 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. Writ of habeas data habeas data With SC Actions affecting ambassadors and other public ministers and consuls [Sec. Includes criminal cases not falling within the except forcible entry and unlawful detainer. B. SABUGO & JOHN HENRY C. testate or intestate. Cases falling under the Family Courts in areas where P300. a. A. b. of the imposable penalty except when the 7.D. REGIONAL TRIAL COURTS Criminal Cases Exclusive Original 1.000 in amended by R. 2. Actions in admiralty and maritime jurisdiction where Sandiganbayan where the imposable penalty is demand or claim exceeds P300. Metro Manila. rules and regulations (Sec.

the claim is considered capable of pecuniary estimation. MENDOZA. Petitions for the constitution of the family home violence and discrimination and all other (rendered unnecessary by Art. 5. as amended by R.000. litigation expense. exploitation. 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. XPN: Decisions of lower courts in the exercise of delegated jurisdiction. In offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10. UNICA AMOR R. R. in Metro Manila P400. HERRERA. BORJA. 8369). 7658. the suspension. b. DONNA GRAGASIN. BP 129 as amended by R. SUBJECT HEAD: ANGELI P. Note: In the foregoing. in Metro Manila P400. No.000 (Admin. Circular No. Violations of R. 7.) in their respective territorial jurisdictions. MIJARES. of the commission of the offense (R. When one or more of the victims is a minor at the time Petitions for adoption of children and its revocation. Children – which include the commission of all and forms of abuse. psychological harm or suffering to women. ASST. 1994). Where one or more of the accused is/are below 18 Petitions for guardianship. 8369) Civil Cases 1. 23. habeas years of age but not less than 9 years of age.000 (Sec. GRETCHEN C. 3. 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. Probate proceedings. AIDA. DUMLAO. 5.A. BAGANG. in Metro Manila P400. and Those covered by the Rules on Summary Procedure. where the money claim is purely incidental to. Actions involving personal property where the value of the 1. SHERY PAIGE A. juvenile and domestic relations cases. neglect. JUDGE CESAR D. DIANE CAMILLA R. 33. and petitions 4.000 or. property does not exceed P300. and whether jurisdiction is in the MTCs or in the RTCs would depend on the amount of the claim. 2005). 4. exceed P300. SR. G. 09-94. 4. 7691). 2.R. 2.. Appellate GR: All cases decided by lower courts (MTC etc. MEMBERS: AKEMI B. Sept.. and Summary judicial proceedings under the Family Code 5. where the basic issue is something other than the right to recover a sum of money. RONN ROBBY D. MA.000 or. where the value of the estate does not exceed P300. 3.000 or. Exploitation and Petitions for support and/or acknowledgment. SY. June 14. MANANQUIL. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS Civil Cases Exclusive Original 1.e. Cases against minors cognizable under the Dangerous property relations of spouses or those living together Drugs Act.UST GOLDEN NOTES 2011 SC may designate certain branches of RTC to try exclusively criminal cases. integrity and freedom of movement. termination. or a consequence of. or for annulment of a judgment or foreclosure of mortgage. custody of children. 32. or likely to result in physical. marriage and those relating to marital status and 3. CONTRIBUTORS: VICENTE JAN O.A. and are cognizable exclusively by the RTCs (Barangay Piapi v. LANTIN. Actions for claim of money where the demand does not 2. testate or intestate. If it is primarily for the recovery of a sum of money. ROSALES . YRIZ TAMIE A. SUBJECT HEADS: DARRELL L. claim must be exclusive of interest. urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice (Sec. Family Code) (Sec. Act Complaints for annulment and declaration of nullity of establishing the family courts). 14 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Talip. 6. FAMILY COURTS Criminal Cases Exclusive Original 1. KRISTINE P. 7. R. i. and costs (Sec. Where the only penalty provided by law is a fine not exceeding P4. as amended. 6. the principal relief sought like specific performance suits and in actions for support. a. 138248. JUSTICE JAIME M. corpus in relation to minor. KATRINA NADINE G.A.000. 7691). 3. MARIANO. and under different status and agreements. cruelty. damages. QUIAMBAO. 8369. BP 129). FLORES. 7610 or the Special Protection of for dissolution of conjugal partnership of gains. ALBAÑA. Discrimination Act. However. Cases of domestic violence against: of the Philippines. 2.000.A. sexual or abandoned. PLATON III. MICHAEL ANGELO V. JUANENGO. STAMARIA. attorney’s fees. JR. dependent or neglected children. 8. conditions prejudicial to their development (Sec. or restoration of threats and coercion which violate a woman’s parental authority and other cases cognizable under personhood.A. JUSTICE OSCAR C. EDELISE D. EO 56 (Series of 1986) and other related laws. MARA KHRISNA CHARMINA F. and petitions for voluntary or involuntary commitment of other forms of physical abuse such as battering or children. 153. Women – involving acts of gender-based violence Petitions for declaration of status of children as that result. Children Against Child Abuse. agrarian cases. RHONDEE E. BP 129 as amended by R.A. PINEDA. AQUINO. TERESE RAY-ANNE O.A. 7. such actions are incapable of pecuniary estimation. 5. LIM. PD 603.

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

. Where to file Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts 1. MICHAEL ANGELO V. MA. 3. except by the plaintiff is solely for probate proceedings. MIJARES. Cases Covered Civil Cases Small claims cases – civil claims 1. SUBJECT HEAD: ANGELI P. The civil aspect of criminal does not exceed P200. JUANENGO. 3. FLORES. 2. UNICA AMOR R. JR. where the payment or reimbursement of total amount of plaintiff’s claim sum of money. TERESE RAY-ANNE O. GRETCHEN C.000 exclusive of interest and Where attorney’s fees are costs. AQUINO. HERRERA. JURISDICTION OVER SMALL CLAIMS. MARIANO. 2005).D. DONNA GRAGASIN. PINEDA. KATRINA NADINE G. JUSTICE JAIME M. filing of the criminal action in court. 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. 16 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. either filed before the Metro Manila. 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. LANTIN. MARA KHRISNA CHARMINA F. SR. No. 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. 2..000 in actions. MENDOZA. RHONDEE E. MEMBERS: AKEMI B. JUSTICE OSCAR C. ROSALES . BORJA. or reserved upon the 11-09-SC. 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. DUMLAO. Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts 2. DIANE CAMILLA R. All other civil cases. SUBJECT HEADS: DARRELL L. CONTRIBUTORS: VICENTE JAN O.000. 25. 4.000 or 2. Purely civil in nature where exceed P20. For disputes between residents of the same barangay: the dispute must be brought for settlement in the said barangay. Nov. YRIZ TAMIE A. (Preamble of P.M. KRISTINE P. SY. MANANQUIL. exclusive of institution of the criminal interests and costs (A. SHERY PAIGE A. RONN ROBBY D. 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. EDELISE D. 3. AIDA. BAGANG. JUDGE CESAR D. 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. pursuant to Rule 111 of the Revised Rules of Criminal Procedure. STAMARIA. or does not exceed P100. and the claim or relief prayed for 2. 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. ASST. QUIAMBAO.UST GOLDEN NOTES 2011 F. either awarded. 1508) (1999 Bar Qestion) 1. LIM. 02action. PLATON III. P100. the same shall not 1. 4. 4. ALBAÑA.

Contract of Lease b.P. 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.M. For damages arising from any of the following: a. 3. Disputes involving parties who actually reside in barangays of different cities or municipalities. 22 or the Bouncing Checks Law (A. MARTINEZ 17 . 1. Apr. and the dispute relates to the performance of his official functions. Some civil cases regardless of how little the amount involved cannot be filed as small claims. Contract of Loan c. 4. SABUGO & JOHN HENRY C. Violations of the rental law. For money owed under any of the following: a. However. 2003). (Sec. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5. Quasi-contract c. and 6. 6. Contract of Sale e. except where such barangay units adjoin each other and the parties 2. 408. Offenses involving damage to property through criminal negligence where the imposable fine is not exceeding P10. Violations of traffic laws. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.000. Where one party is a public officer or employee. Violations of municipal or city ordinances.00. rules and regulations. Contract of Services d. 417 Criminal Cases When punishable by imprisonment of not more than 1 year or fine of not more than 5. Contract of Mortgage 2. LGC) 1. 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. No.000 irrespective of other penalties or civil liabilities arising therefrom. 14[2]. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Contract 3. 2.000. Where one party is the government or any subdivision or instrumentality thereof. Violations of B. nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.JURISDICTION These claims or demands may be: 1.000. 5. 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. 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. Fault or negligence b. MASACAYAN & THEENA C. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1. 00-11-01-SC. Bill of Rights). 4. An example is a case for libel or slander. 5. ACADEMICS CHAIR: LESTER JAY ALAN E. Offenses where there is no private offended party. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 2. 3. 15. 1.

DIANE CAMILLA R. LIM. AIDA.UST GOLDEN NOTES 2011 thereto agree to submit their differences to amicable settlement by an appropriate lupon. CONTRIBUTORS: VICENTE JAN O. 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. 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. ALBAÑA. PLATON III. KRISTINE P. 7. obligation which is not purely for money. BAGANG.5 [d]). GRETCHEN C. MARIANO. SUBJECT HEAD: ANGELI P. SUBJECT HEADS: DARRELL L. JUDGE CESAR D.. BORJA. G. KATRINA NADINE G. MIJARES. JUANENGO. MARA KHRISNA CHARMINA F. JUSTICE OSCAR C. JR. Sec. UNICA AMOR R. and Violations of R.. MICHAEL ANGELO V. STAMARIA. MENDOZA. DONNA GRAGASIN. LANTIN.A. FLORES. 8. EDELISE D. HERRERA. SHERY PAIGE A. MANANQUIL. SY. ROSALES . YRIZ TAMIE A. 9262. DUMLAO. AQUINO. TERESE RAY-ANNE O. Such other classes of disputes which the President of the Philippines may determine in the interest of justice. QUIAMBAO. MA. JUSTICE JAIME M. VAWC Act. RONN ROBBY D. RHONDEE E. MEMBERS: AKEMI B. SR. PINEDA. ASST. 18 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.

Possession 4. special proceeding to establish the fact or status of insanity calling for an appointment of guardianship. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS Q: Distinguish action from special proceeding. Rule 1) 121. etc. Restatement for the Bar. 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. 2009 ed. REAL ACTIONS AND PERSONAL ACTIONS Q: Distinguish real actions from personal actions. Prosecute a person for escheat. Riano. CIVIL PROCEDURE A. etc. 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. 2007 ed. It is governed by ordinary rules. at thereof is situated. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.3 (b). MEANING OF SPECIAL CIVIL ACTIONS A: Q: What is a special civil action? A: It has special features not found in ordinary civil actions. 3. Any interest in real property. To protect a right or a particular fact (Sec. Vol. 2. 3. Rule1). A: Special Proceeding Purpose Civil action: To establish a status. p. 122. I. 3 2. Civil Procedure: A punishable by law (Sec. special proceedings are found in rule 72 – rule 109 Criminal action: E. 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. It is governed by ordinary rules but subject to specific rules prescribed Rules 62-71. a right 1.g. p. MASACAYAN & THEENA C. his remedy is a action. Title to 2. vs.) ACADEMICS CHAIR: LESTER JAY ALAN E. 4. Specific kinds of wrong. 353 SCRA 89. or an interest or where damages for therein (Sec. guardian for an insane his remedy is to file an person. 370. claims of therein is the subject matter money. 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. Inc. Ownership 3. or a portion defendants resides. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. That contract such as means that realty or interest damages. ACTIONS 1. 1. 2009 ed. rule 4) breach of contract are sought Basis When it is founded upon the Founded on privity of privity of a real estate. settlement of estate. Prevent or redress a Rule 1). MARTINEZ 19 .) 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.CIVIL PROCEDURE III. p. Note: It is important that the matter in litigation must also involve any of the following issue: 1. SABUGO & JOHN HENRY C. (Herrera. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. guardianship. an act or omission (Riano. Court of appeals. Partition 5.) Application Where a party litigant Where his purpose is to seeks to recover seek the appointment of a property from another. of the action. (Rule 4. 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. Foreclosure of mortgage 6.

Effect of judgment Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the world. BORJA.) Action In Rem 20 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.. JUDGE CESAR D. successor in interest successors-in-interest but the judgment shall be executed against a particular property. MEMBERS: AKEMI B. KRISTINE P. UNICA AMOR R.UST GOLDEN NOTES 2011 6. 4. Action for a sum of money. MIJARES. LIM. for damages (Riano. Purpose A proceeding to determine the state An action to impose a Deals with the stauts. SY. Nov. MANANQUIL. 2009 ed. PLATON III. RHONDEE E. IN PERSONAM AND QUASI IN REM Q: Distinguish actions in rem. TERESE RAY-ANNE O. 28. Action for specific 1. 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. Civil Procedure: A Restatement for the Bar. 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. AIDA. 1975). JR. Example Action to recover real Action to recover sum of property money 7. JUSTICE OSCAR C. Land registration proceeding 2. Jensen. KATRINA NADINE G. SHERY PAIGE A. QUIAMBAO. MARIANO. DIANE CAMILLA R. EDELISE D. No. The RES involve will answer the judgment. brought against the person therein to the obligation or lien burdening the property. Cadastral proceeding performance 2. Action for ejectment 4. FLORES. LOCAL AND TRANSITORY ACTIONS Q: Distinguish local action from transitory actions. GRETCHEN C. parties impleaded or their litigants. PINEDA. an agreement to the Subject to Sec. ASST. Action for breach of mortgage attachment contract 3. BAGANG. LANTIN. MENDOZA. RONN ROBBY D.R.p. SUBJECT HEAD: ANGELI P. Example 1. JUSTICE JAIME M. ACTIONS IN REM. ROSALES . 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. Action for partition 2. MARA KHRISNA CHARMINA F. DONNA GRAGASIN. AQUINO. HERRERA.. MICHAEL ANGELO V. 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. YRIZ TAMIE A. L-30175. 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. Action to foreclose real estate 3. MA. ALBAÑA.130. G. privies. SR. CONTRIBUTORS: VICENTE JAN O. unless there is cause of action arose. Samson. Rule 4 contrary. STAMARIA. DUMLAO. SUBJECT HEADS: DARRELL L. (Domagas vs. 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. Probate proceeding 1. JUANENGO.

p92.) 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. CAUSE OF ACTION 1. (Ibid p. Rule 2) Failure to state cause of action Insufficiency in the allegations of the complaint Lack of cause of action 3.) ACADEMICS CHAIR: LESTER JAY ALAN E. p. party. hypothetically admits the matters alleged in the complaint (Riano. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Riano. 468 SCRA 63. 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. MASACAYAN & THEENA C. 2009 ed. 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. Thus a motion to dismiss on the ground of failure to state a cause of action. Inc. Civil Procedure: A Restatement for the Bar . Civil Procedure: A Restatement for the Bar. SABUGO & JOHN HENRY C. 2. 2. 2009 ed) 2. Nature It is actually predicated It is procedural in on substantive law or character is the on quasi delicts under consequence of the NCC. violation of the right of the plaintiff (Riano. 2009 ed. Roxas. The action must be violation of the instituted by the proper plaintiff’s right. There must be a good legal right of the cause (existence of a plaintiff cause of action) 2.) 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. David.CIVIL PROCEDURE B. 4. An act or omission of action the defendant in 3. 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. vs. Rule 2). Riano. 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: 1.4) Cause of Action It is the act or omission by which a party violates the rights of another ( Sec.. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 2009 ed. p. Civil Procedure: A Restatement for the Bar. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. A correlative duty of 2. etc. 335 SCRA 540. MARTINEZ 21 . the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Occidental II Coop. 93. p. prescription.) Note: The rule is “There is no right of action where there is no cause of action”. Note: The truth or falsity of the allegations is beside the point because the allegations in the complaint are hypothetically admitted. 2. Whether or not admitting the facts alleged. The existence of a 1. vs. 92. estoppel. A compliance with all the defendant to the conditions precedent respect one’s right to the bringing of the 3.

The party shall comply with the rules on joinder of parties. or the party entitled to the avails of the suit (Sec.. 4. 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. STAMARIA. The rule against splitting of a cause of action aims to avoid multiplicity of suits. 3. p. AIDA. Prohibited by the Rules of Court. DUMLAO. 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. CA. Riano.. MARA KHRISNA CHARMINA F. LIM. 5. Rule 2. Civil Procedure: A Restatement for the Bar. it is not necessary to ask whether or not the causes of action arose out of the same transaction or series of transactions. SR. Civil Procedure: A Restatement for the Bar. 301 SCRA 637. It applies not only to complaints but also to counterclaims and crossclaims. JR. (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. conflicting decisions and unnecessary vexation and harassment of defendants. 2 Rule 3). SUBJECT HEADS: DARRELL L. MEMBERS: AKEMI B. EDELISE D. QUIAMBAO. Rule 2). It is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. REPRESENTATIVES AS PARTIES. 000. SY. BORJA. JUSTICE OSCAR C. Rule 2) A: 1. 5.120. 2. 2009 ed.00 both of which arose out of the same transaction. TERESE RAY-ANNE O. JUSTICE JAIME M. Riano. ASST. AQUINO. REAL PARTIES IN INTEREST. ROSALES . Q: Is misjoinder of causes of action a ground for dismissal? A: No. the joinder may be made in said court provided the venue lies therein (Sec. 6. Inc. be severed and proceeded with separately (Sec. ALBAÑA. 4. The joinder shall not include special civil actions governed by special rules. GRETCHEN C. PLATON III.) C. JUANENGO. MENDOZA. INDISPENSABLE PARTIES. A misjoined cause of action may. (Sec 5. DIANE CAMILLA R. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims. 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. MARIANO.” (Sec. 2. Rule 2) 2. UNICA AMOR R. SHERY PAIGE A. 5. Also a joinder of causes of action is only permissive not compulsory. 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. p. INDIGENT PARTIES. KRISTINE P. “A party may not institute more than one suit for a single cause of action. vs. hence a party may desire to file a single suit for each of his claims. FLORES. 6 Rule 2). RONN ROBBY D. MICHAEL ANGELO V. on motion of a party or on initiative of the court. (Mariscal vs. LANTIN. Where causes of action pertain to different venues. SUBJECT HEAD: ANGELI P.3. 2009 ed. NECESSARY PARTIES. RHONDEE E. YRIZ TAMIE A. neither requires special rules. KATRINA NADINE G.) Note: When the causes of action accrue in favor of the same plaintiff and against the same defendant. Court of Appeals. Q: The complaint filed before the RTC states two causes of actions. DONNA GRAGASIN. Both are ordinary civil actions and thus. Q: Distinguish an indispensable party from a necessary party. JUDGE CESAR D. BAGANG. 3. Note: Joinder of causes of action must be subject to the following conditions: 1. PARTIES TO CIVIL ACTIONS 1. Since the action for rescission falls under the jurisdiction of the RTC. one for rescission of contract and other for the recovery of 100. 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. MANANQUIL. 311 SCRA 51) 6. It is a ground for the dismissal of others. 1996 Bar Question. Is the joinder of the two causes of action proper? A: Yes. 108. 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. Where claims in all causes of action are for recovery of money.UST GOLDEN NOTES 2011 5. CONTRIBUTORS: VICENTE JAN O. MIJARES. HERRERA. Rule 2). the aggregate amount claimed shall be the test for jurisdiction. PINEDA. MA.

2. p. I. Q: May an action be prosecuted in the name of other party other than the real party in interest? A: No. and shall state why he is omitted. Rule 3 and use its sound discretion in determining the merits of the prayer for exemption (Algura v. Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. (Sec.00) pesos shall be exempt from payment of legal fees.R. 2009 ed. Rule 3) Must be joined under any and all conditions because the court cannot proceed without him (Riano. instead. Q: Who is an indigent party? A: He is one who has no money or property sufficient and available for food. 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. LGU of Naga.CIVIL PROCEDURE had of an action shall be joined either as plaintiffs or defendants. Civil Procedure Annotated. 221. Rule 3) Note: Should be joined whenever possible. then the application should not be denied outright. the beneficiary shall be included in the title of the case and shall be deemed to be a real party-in-interest (Sec. Civil Procedure: A Restatement for the Bar. if known. 224. Any claim against a misjoined party may be severed and proceeded with separately. Rule 3) Q: May a party sue the defendants in the alternative? A: Yes.8. Vol. G. p. when the application does not satisfy one or both requirements. shall be deemed a waiver of the claim against such party. 2009 ed.) 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. 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. 19. it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. p. 30. it may be contested by the adverse party at any time before judgment is rendered (Sec. Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity. Rule 3). 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. shelter and basic necessities for himself and his family. Note: While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing. SABUGO & JOHN HENRY C. 2009 ed. Oct. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 219. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. the pleader shall set forth his name. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 11. without justifiable cause. 150135. (Sec. then the grant of the application is mandatory.000. 19. 21. the court should apply the “indigency test” under Sec. although a Q: What does the authority include. Should the court find the reason for the omission unmeritorious. No. p. Rule 3). 2006).) party if complete relief is to be accorded as to those already parties.3 Rule 3. Riano.7. On the other hand. if one is authorized as an indigent party? A: An exemption from the payment of: 1. Rule 141. 239. Rule 141). 21. or for a complete determination or settlement of the claim subject of the action. (Sec. he may join any or all of them in the alternative.224) right to relief against one may be inconsistent with a right to relief against the other (Sec. The failure to comply with the order for his inclusion.) 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. MASACAYAN & THEENA C. not only as to the absent parties but even as to those present (Riano. Civil Procedure: A Restatement for the Bar. 13. (Sec. MARTINEZ 23 . The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. Q: What is the rule on indigent litigants? A: If the applicant for exemption meets the salary and property requirements under Sec.) 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. (Sec. Rule 3). Where the plaintiff is uncertain against who of several persons he is entitled to relief. 2001 ed. the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid p. Docket fees and other lawful fees ACADEMICS CHAIR: LESTER JAY ALAN E.

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

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

MARIANO. venue is no longer based on the written stipulation but at the election of the plaintiff as fixed by law. Civil Procedure: A Restatement for the Bar. (Riano. p. STAMARIA. SUBJECT HEAD: ANGELI P. MEMBERS: AKEMI B. No.) 6. 205. 4. LANTIN. KRISTINE P. Ramillo. 535 SCRA 95). AIDA. Rule 4). ALBAÑA. BORJA. 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.R. 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. 51. Dec.R. Complaint Counterclaim Cross-claim Third party claim Reply Answer a. 28324. PINEDA. QUIAMBAO. SUBJECT HEADS: DARRELL L. Only 26 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 106920. WHEN THE RULES ON VENUE DO NOT APPLY Q: In what instances does the rule on venue of action inapplicable? A: 1. AQUINO. MANANQUIL. KATRINA NADINE G. DIANE CAMILLA R. G. p. 4. KINDS OF PLEADINGS Q: What are the kinds of pleadings? A: 1. DONNA GRAGASIN. Feb. MARA KHRISNA CHARMINA F. Lim. 19. (Zoleta v. PLATON III. L-58080. 2. E. The names and residences of the plaintiff and defendant must be stated. JUDGE CESAR D. EDELISE D. Rule 4). 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. (Sec. Q: When is stipulation on venue void? A: It is void and unenforceable when it is contrary to public policy (Sweet Lines v. 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. TERESE RAY-ANNE O. SY. G.) 1. 4.. Where the parties have validly agreed in writing before the filing of the action on the exclusive venue (Sec. Note: A pleading alleging the plaintiff’s cause or causes of action.UST GOLDEN NOTES 2011 a. MA. No. 2009 ed. 5. Rule 6) Note: Pleadings cannot be oral because they are clearly described as “written” statements. (Sec. MICHAEL ANGELO V. UNICA AMOR R. vs. ASST. 6. 2009 ed. CONTRIBUTORS: VICENTE JAN O. FLORES. SHERY PAIGE A. 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. Civil Procedure: A Restatement for the Bar.g. 5. Rule 6) Q: What are examples of words with restrictive meanings? A: 1.1. No.4[b]. SR. Nov. Tensuan. Teves. JUSTICE JAIME M. LIM. with a specification of the relief sought. RONN ROBBY D. 2. made before the filing of the action. YRIZ TAMIE A. and exclusive. 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. G. MENDOZA. HERRERA. JUANENGO.R. ROSALES . GRETCHEN C. 3. 10. 6. 2. 1982) 5.. v. (Sec. 3. The parties may stipulate on the venue as long as the agreement is in writing. Solely Exclusively in this court In no other court save – Particularly Nowhere else but/except b. Rule 4) Q: What makes a stipulation on venue exclusive? A: Venue is exclusive when the stipulation clearly indicates. but it may add a general prayer for such further relief as may be deemed just or equitable. JR. 15. RHONDEE E. MIJARES. In cases where a specific rule or law provides otherwise (e. an action for damages arising from libel). 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. 3. JUSTICE OSCAR C. 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. BAGANG. DUMLAO.

(Riano. 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. 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.) Must be accompanied by a certification against forum shopping and whenever required by law. 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. p. It is conceded to be actually an admission (Riano. L-22018. p. 323. Remedial Law Compendium. No. p. 6. COUNTERCLAIMS Q: What is counterclaim? A: It is any claim which a defending party may have against an opposing party (Sec. 2009 ed. Q: What are insufficient denials or denials amounting to an admission? A: 1. I. v. Civil Procedure: A Restatement for the Bar. Nee Bon Sing. Rule 6). since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied (Galofa v. It partakes of a complaint by the defendant against the plaintiff (Pro-Line Sports Inc.330.. Permissive Counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim 2. (Sec. 118192.R. involves an affirmative implication favorable to the opposing party. Jan. G. No default Not an initiatory pleading. while the fact itself is admitted. 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. c. 5. 23. It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 6).). G. 2. namely. p. 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. MASACAYAN & THEENA C. 2005 ed.) Note: Where a fact is alleged with some qualification or modifying language and the denial is conjunctive. 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. SABUGO & JOHN HENRY C. 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. 17. Civil Procedure: A Restatement for the Bar. Civil Procedure: A Restatement for the Bar. 177. (Regalado. This pleading may be an answer to the complaint. default Initiatory pleading. and only the qualification or modification is denied. It is in effect an admission of the averment to which it is directed. 2. 327. the one filed by plaintiff by way of original complaint and the one filed by defendant by way of a counterclaim (Riano.R. Note: An answer Is a compulsory pleading. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Oct. MARTINEZ 27 .7. an answer to counter claim or an answer to a cross-claim (Riano.: Otherwise.9. 1997) Note: The filing of counterclaim gives rise to complaints. 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. 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. CA. Rule 9) Need not be answered. 1968). 4 Rule 6). p. Civil Procedure: A Restatement for the Bar. a negative pregnant exists. It is a form of denial which. 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. 2009 ed. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 2009 ed. 336. (1) COMPULSORY COUNTERCLAIM (2) PERMISSIVE COUNTERCLAIM Q: Distinguish the two kinds of counterclaim. at the same time. No. Vol.CIVIL PROCEDURE b.) A denial in a form of negative pregnant is an ambiguous pleading.

the dismissal shall be limited to the complaint. Riano.000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe. SUBJECT HEADS: DARRELL L.UST GOLDEN NOTES 2011 by the Lupong Tagapamayapa. Rule 17. file action by the Lupong Tagapamayapa (Santo Tomas University v. 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. 340. (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. Rule 17). 17. LANTIN. compulsory or permissive is not dismissed. MENDOZA. RONN ROBBY D. or excusable negligence. No. SUBJECT HEAD: ANGELI P.. STAMARIA.2. principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint (Gojo v. DIANE CAMILLA R. Q: What is the effect if a cross-claim was not set up? A: GR: Barred if not set up. Aug. CROSS-CLAIMS The court has jurisdiction to entertain both as to the amount and nature (Sec. the dismissal is without prejudice to Q: What are the requirements for a cross-claim? A: 1. TERESE RAY-ANNE O. 2000). 28 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. PLATON III. 3. (Sec. and The cross-claimant is prejudiced by the claim against him by the opposing party. HERRERA.000 against Ramon in the RTC of Davao City.331) Note: A plaintiff who fails or who chooses not to answer a compulsory counterclaim may not be declared in default. UNICA AMOR R. SHERY PAIGE A. Rule 9) XPN: If it is not asserted through oversight. MARA KHRISNA CHARMINA F. ROSALES . G. Surla. JR. Inc. 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. inadvertence. The compulsory counterclaims are deemed waived when he filed a motion to dismiss the complaint instead of answering the same (Financial Building Corp. Aside from alleging payment as a defense. Rule 6. Oct. at the same time setting up his counterclaims. 133119. Aug. Rule 11) 3. it may still be set up with leave of court by amendment of the pleadings. v. After hearing. AIDA.. 1970). Rule 6). 1998) (2007 Bar Question). It must arise out of the subject matter of the complaint or of the counterclaim. In an original action before the RTC. Ramon in his answer set up counterclaims for P100. If no motion to dismiss has been filed. the counterclaim may be considered compulsory regardless of the amount (Sec. KATRINA NADINE G. What will happen to his counterclaims? A: Since Ramon filed only a motion to dismiss. Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise. LIM. YRIZ TAMIE A. 6. 30. a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 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.. Goyala. as well as for P250. p. (2008 Bar Question) d. MEMBERS: AKEMI B. Civil Procedure: A Restatement for the Bar. A claim by one party against a co-party. 8. FLORES. KRISTINE P. CONTRIBUTORS: VICENTE JAN O. 2009 ed. 2. No. EDELISE D. ALBAÑA. and in the discretion of the court. MARIANO. the counterclaim.10. ASST.R.R. MIJARES. RHONDEE E. 7. 129718.000 as attorney's fees as a result of the baseless filing of the complaint. 26768. MICHAEL ANGELO V. manifests his preference to have his counterclaim resolved in the same action (Sec. DUMLAO. when the complaint is dismissed. JUSTICE OSCAR C. 2. GRETCHEN C. any of the grounds for dismissal under rule 16 may be pleaded as an affirmative defense in the answer. Rule 16). SY. If the court grants the motion. not an answer. No.000 as damages and P30. QUIAMBAO. and the court grants his motion. JUANENGO. Ibid p. 7. PINEDA. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. Suppose that instead of alleging payment as a defense in his answer. DONNA GRAGASIN. (Sec. G. JUDGE CESAR D. 17. (Sec. Rule 6) 2. BAGANG. JUSTICE JAIME M. 3. SR. Forbes Park Association. MA. MANANQUIL. BORJA. Ramon filed a motion to dismiss on that ground.R. G. When the complaint is dismissed through the fault of the plaintiff and at a time when a counterclaim has already been set up.) Q: Fe filed a suit for collection of P387. AQUINO.

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

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

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

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

MARTINEZ 33 . p. 2006). 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. 2. 24. G. 2006). information and belief there is good ground to support it. 97. Jan. the compliance of the same must be alleged in the pleading. how may it be cured? A: No. Mayor of City Koronadal. This person may be a lawyer of a corporation. G. 388 SCRA 85. (Sec. being the proper party to file such suits. despite being an official of the City. 5. 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. FASAP. No. Rule 7) 4. CA.R. concise and direct statement of the ultimate facts. such may be signed by the authorized lawyer (National Steel Corporation vs.) Q: Corporation XYZ is the petitioner in a civil case. Is the certification against forum shopping valid? If not.R. CA. No. 3. Civil Procedure: A Restatement for the Bar. The said deed of absolute sale was authorized by Mayor Miguel’s predecessor. president of corporation XYZ. Here. Rule 6) Q: What are Ultimate facts? A: They refer to the essential facts of the claim. 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. Riano. Is the RTC correct? A: Yes. Mar. was merely its counsel and not a party to the case (City of Caloocan v. Civil Procedure: A Restatement for the Bar. 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.R. MASACAYAN & THEENA C. 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. 2003). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. However. d. A certificate by him that he has read the pleadings. (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. That it is not interposed for delay. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification. ALLEGATIONS IN A PLEADING a. Mayor Miguel must necessarily be the one to sign the certification against forum-shopping. and not the City Legal Officer. not the City Legal Officer. Court of Appeals. Alexander. A proof of said authority must be attached with the certification (PAL v. No.) Q: What is the rule on conditions precedent? A: When a claim is subject to a condition precedent. (Ceroferr Realty Corporation vs. 2009 ed. The authorized director or representative of the corporation should be vested with authority by a valid board resolution. 3.CIVIL PROCEDURE 2. the certification against forum shopping should be signed by its duly authorized director or representative. SABUGO & JOHN HENRY C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 145004. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. and 3. (Riano. When the petitioner in a case is a corporation. signed the certification against forum shopping in behalf of said corporation without presenting any proof of authority from the corporation. 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. Q: Mayor Miguel. may be executed by properly authorized person. 2009 ed. (Sec. who. G. Mayor Miguel had the authority to institute the action against RD Corporation. Keng Seng. Otherwise it will be a ground for dismissal ACADEMICS CHAIR: LESTER JAY ALAN E. omitting the statement of mere evidentiary facts. 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. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. That to the best of his knowledge. 143088. p. Mayor de Jesus.143464. May 3. 1. It is the mayor. 4. 70.

MALICE. Civil Procedure: A Restatement for the Bar. JUDGE CESAR D. place. LIM. JUDGMENTS. MEMBERS: AKEMI B. If the allegations are deemed admitted. 1958)..) 34 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 98. 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. ASST. 2009 ed.UST GOLDEN NOTES 2011 for failure to state a cause of action. Hence. and etc (Riano. AIDA. 324. 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. 58 Phil 736) E. The substance of such document in the pleading and attaching said document thereto as an exhibit 2. 3. JR. 101. Civil Procedure: A Restatement for the Bar. Inc. DUMLAO. it need not be pleaded strictly in the manner prescribed by the rules (Ibid p. Rule 8). Inc. JUSTICE JAIME M.9. Civil Procedure: A Restatement for the Bar. BAGANG. Inc.). RONN ROBBY D. SUBJECT HEADS: DARRELL L. These particulars would necessarily include the time. Lyric Factor Exchange. YRIZ TAMIE A. one which is the basis of an action or a defense.102) Q: How are actionable documents pleaded? A: By setting forth: 1. whenever practicable. 28.). BORJA. 98. In this kind he shall specify so much of it as is true and material and shall deny only the remainder. However. PLATON III.. p. JUSTICE OSCAR C. b. prior resort to barangay conciliation when necessary. KRISTINE P. SY. GRETCHEN C. Partial denial – defendant denies only a part of an averment. ALBAÑA. Feb. not specifically denied are deemed admitted. v. G. TERESE RAY-ANNE O.R. Q: What is the rule in making averments of malice. c. Rule 8. p. 7. 2009 ed. vs. p. With respect to an act. KNOWLEDGE AND OTHER CONDITION OF THE MIND. EDELISE D. JUANENGO.g. (Araneta. intent. STAMARIA. 5. MA. Rule 8). MISTAKE. RHONDEE E. LANTIN. (2) FRAUD.. shall set forth the substance of the matters upon which he relies to support his denial. The complaint must state with particularity the fraudulent acts of the adverse party. 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. the contents of the document annexed are controlling. p. MARA KHRISNA CHARMINA F. 2009 ed. A promissory note in an action for collection of a sum of money. PINEDA. p. SUBJECT HEAD: ANGELI P. L10232.). Civil Procedure: A Restatement for the Bar. 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. ROSALES . Such as tender of payment before consignation. CONTRIBUTORS: VICENTE JAN O. Riano. knowledge or other conditions of the mind of a person? A: The circumstances constituting such may be averred generally (Sec. DONNA GRAGASIN. Civil Procedure: A Restatement for the Bar.5. the plaintiff may file a motion for judgment on the pleadings under Rule 34 (Riano. AQUINO. No. QUIAMBAO. Rule 8). DIANE CAMILLA R. there is no more triable issue between the parties and if the admissions appear in the answer of the defendant. i. 2009 ed. MIJARES. KATRINA NADINE G. MANANQUIL. SR.e. and specific acts of fraud committed against him (Riano. MENDOZA. INTENT. 2009 ed. if a document does not have the character of an actionable document. National Development Co. SHERY PAIGE A. FLORES. (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. UNICA AMOR R. Said document verbatim in the pleading (Sec. 2. MICHAEL ANGELO V. (Riano. MARIANO. 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. SPECIFIC DENIALS Q: What are the kinds of specific denial? A: 1. 97. Absolute denial – defendant specifies each material allegation of fact the truth of which he does not admit and. HERRERA.) Note: This manner of pleading a document applies only to an actionable document.. it is likewise sufficient to allege that the act was done also in compliance with law (Sec.

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

in which case. Feb.. 11. offer of judgment or similar papers shall be filed with the court. UNICA AMOR R. Actions for annulment. BAGANG. If any party has appeared by counsel. No.. if the court orders submission of evidence. Answer to an original complaint 36 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Rule 9]. 3(e). A: It is the act of presenting the pleading or other paper to the clerk of court.UST GOLDEN NOTES 2011 a. order. SY. he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. DIANE CAMILLA R. LIM. SUBJECT HEAD: ANGELI P. GRETCHEN C. However. Inc. the period of prescription continues to run. 12. 12. Sept. 2. and That he has a meritorious defense. AQUINO. Inc. Thus. QUIAMBAO. 1992) (2006. Rule 9]. TERESE RAY-ANNE O. YRIZ TAMIE A. KRISTINE P. 3..R. ASST. 1998 Bar Question) Where the defendant has however. prohibition and mandamus where comment instead of an answer is required to be filed. 2. b. b. KATRINA NADINE G. His failure to answer was due to fraud. CONTRIBUTORS: VICENTE JAN O. 2. pleading subsequent to the complaint. MEMBERS: AKEMI B. 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. SR. RONN ROBBY D. RHONDEE E.g. SUBJECT HEADS: DARRELL L. MICHAEL ANGELO V. written motion. FLORES. MA. 2009) After the judgment becomes final and executory – he may file a petition for relief from judgment under Rule 38 (Balangcad v. XPN: Where the defense is personal to the one who answered. forgery. Rule 9] (2000 & 1999 Bar Question) f. G. STAMARIA. (Sec. MIJARES. 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. Baliwag Transit. unless service upon the party himself is ordered by the court.R. notice. SHERY PAIGE A. FILING AND SERVICE OF PLEADINGS Q: What papers are required to be filed and served? A: Every judgment. AIDA. 83888. ALBAÑA. ROSALES . 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. BORJA. been wrongly or improvidently declared in default. v. unliquidated damages may be awarded based on such. (Sec. [Sec. JUSTICE OSCAR C. No. MARIANO. service upon him shall be made upon his counsel or one of them. DONNA GRAGASIN. G. PINEDA. JUANENGO. No. ACTIONS WHERE DEFAULT ARE NOT ALLOWED Q: When is default not allowed? A: 1. FILING VERSUS SERVICE OF PLEADINGS Q: What is filing? 3. 2. Feb. He may also appeal from the judgment as being contrary to the evidence or the law (Talsan Enterprises. and In special civil actions of certiorari. DUMLAO. 83888. accident. Justices of the CA. 169919. mistake or excusable negligence. (1995 Bar Question) e. it will not benefit those who did not answer e. After judgment and before judgment becomes final and executory – He may file a motion for new trial under Rule 37. EDELISE D. When should a responsive pleading be filed? A: Periods for Filing an Answer Within 15 days after service of summons. JUSTICE JAIME M. G. MENDOZA. 1992) d. Declaration of nullity of marriage and legal separation [Sec. if the proper docket fee is not paid. resolution. LANTIN. appearance. JUDGE CESAR D. 3(b). PLATON III. MANANQUIL. HERRERA. and served upon the parties affected. (Sec.4. Rule 13) Q: What is service? A: It is the act of providing a party with a copy of the pleading or paper concerned. 3(d). demand. EFFECT OF A PARTIAL DEFAULT 7. Justices of the CA. MARA KHRISNA CHARMINA F. PERIODS OF FILING OF PLEADINGS Q. Q: What is the effect of partial default? A: GR: The court will try the case against all defendants upon the answer of some. 4. JR. Rule 13) c. Rule 13) a.R.

plainly addressed to the party or his counsel at his office. (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. e. or if he has no office (Sec. Rule 11). Rule 13).m. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof. allow an answer or other pleading to be filed after the time fixed by these Rules.m. Rule 13). or By sending them through registered mail (Sec. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 13). 3. in relation to Sec. or Substituted service (Sec. or if his office is unknown. p. (Sec. or Leaving the copy between 8 a. NO.5[b]. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. with postage fully prepaid. 8. 2. 3. NO. and not through other means of transmission. if known. Service by registered mail (Sec. Note: Filing by mail should be through the registry service which is made by deposit of the pleading in the post office. 4. Rule 13). By depositing the copy in the post office in a sealed envelope. Rule 11) Within 10 days counted from notice of the court order admitting the same (Sec. 00-8-10-SC 2000-11-21) Within 15 days after service of summons to said agent or officer (Sec.M. Within the time specified in the order which shall not be less than 60 days after notice (Sec.CIVIL PROCEDURE unless a different period is fixed by the court (Sec.11. Rule 14) Within 15 days from service of amended complaint (Sec. Rule 11) ACADEMICS CHAIR: LESTER JAY ALAN E. 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. 60 days as the case may be (Sec.6. 5. upon like terms. 15. Within 15 days after service of summons (Sec.) party complaint Q: How is personal service done? A: By: 1. 212.M.5[a]. Rule 11) Within 10 days from service (Sec. Rule 2.) Within 10 days from notice of order admitting the same unless a different period is fixed by the court (Sec. 15. the court may extend the time to plead provided in these Rules. 1. if known. 2005 ed. 7. MANNER OF FILING Q: What are the modes of filing? A: 1. A. etc. Regalado. 3. Rule 11) Like an original defendant – 15. 7. and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered. Rule 2.6. Personal service (Sec. I. in relation to Sec. (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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. at the party’s or counsel’s residence. By presenting the original copies thereof. (2) SERVICE BY MAIL Supplemental complaint Q: How is service by mail done? A: 1. with a person of sufficient age and discretion residing therein if no person found in his office. Rule 14) Not be less than 60 days after notice (Sec. Delivering personally a copy to the party or his counsel. A. Rule 11) 3. 6. 2. MASACAYAN & THEENA C. Vol. and 6 p. plainly indicated as such. 30. personally to the clerk of court. MARTINEZ 37 . or Note: Upon motion and on such terms as may be just. SABUGO & JOHN HENRY C. if known. otherwise at his residence. 6. 00-8-10-SC 2000-11-21) Within 30 days after receipt of summons by the home office of the foreign private entity d. 3. MODES OF SERVICE Q: What are the modes of service? A: 1. The court may also.

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

if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby (Sec. in the case of a reply. 13. When issues not raised by the pleadings are tried with the express or implied consent of the parties.. 2009 ed. Vol. Rule 10) 1. a. 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. Inc. 854. ACADEMICS CHAIR: LESTER JAY ALAN E. DIFFERENT FROM SUPPLEMENTAL PLEADINGS Q: Distinguish an amended pleading from a supplemental pleading. or encumbrancer of the property affected thereby. Rule 10). at its initiative or on motion. If the amendment is substantial (Sec. 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. 132753. 2. e. Rule 10). Note: Failure to amend does not affect the result of the trial of said issue. MARTINEZ 39 . Manila Surety and Fidelity Co. 2. 246. when affirmative relief is claimed in his answer. Merely supplements the original pleading. Amendment must be appropriately marked. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 15. No. (Sec. AMENDMENT Q: How are pleadings amended? A: By: 1. SABUGO & JOHN HENRY C. (Arranz vs. 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. June 30. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or Correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect (Sec.. G. (Sec. 4. I. at any time within ten (10) days after it is served (Sec. CA. MASACAYAN & THEENA C. 1999) (1994 Bar Question) There is no such requirement in supplemental pleadings (Herrera. provided no prejudice is caused thereby to the adverse party (Sec. the plaintiff and the defendant. 2. be deemed to have constructive notice of the pendency of the action. Rule 10).R. 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. 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. and only of its pendency against the parties designated by their real names. 5. 2. Adding or striking out an allegation or the name of any party. AMENDMENTS BY LEAVE OF COURT Q: When is leave of court required? A: 1.14. 1. Always with leave of court b. Supplemental Pleading Refers to facts occurring after the filing of the original pleading. 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. Feb. Note: Only from the time of filing such notice for record shall a purchaser. Rule 13) c. 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. Rule 10).CIVIL PROCEDURE thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. 1960) Q: What is a notice of lis pendens? A: In an action affecting the title or the right of possession of real property. (Riano. and A responsive pleading had already been served (Siasoco v. 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. p. L128441. 3. d. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. p.

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

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

JUSTICE OSCAR C. KATRINA NADINE G. LIM. judgment. XPN: Motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 1. SR. YRIZ TAMIE A. (Sec. RONN ROBBY D. or proceeding should be invoked at one time. counterclaim. 2. JUDGE CESAR D. MICHAEL ANGELO V. 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. GRETCHEN C. 4. 2009 ed. LANTIN. Rule 9) f. FLORES. 110801. cross-claim. No. MARA KHRISNA CHARMINA F. p. 11. SY. Q: What are the contents of a motion? A: The contents of a motion are: 1. QUIAMBAO. 2. Rule 15). HERRERA. ALBAÑA. shall be accompanied by supporting affidavits and other papers. XPN: The court may dismiss the case motu proprio based on: 1. the ground upon which it is based. JUSTICE JAIME M. Lack of jurisdiction over the subject matter. Barred by statute of limitations (Sec. Judgment on demurrer to evidence. e. Feb. 2003). 3. AQUINO. and without notice to or contestation by any party adversely affected (Regalado. A hearing is required.R. MOTIONS VERSUS PLEADINGS Q: What is the rule on hearing of motions? Q: Distinguish a motion from a pleading. RHONDEE E. 1995).) g. LITIGATED AND EX-PARTE MOTIONS Q: What is a litigated motion? A: It is a motion which affects the substantial rights of the parties. STAMARIA. No. SUBJECT HEADS: DARRELL L. order.UST GOLDEN NOTES 2011 b. Rule 6). Remedial Law Compendium. 2. 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. DONNA GRAGASIN. Rule 15). 1. Dec. XPN: Those made in open court or in the course of hearing or trial (Sec. PINEDA. MANANQUIL. 143440. EDELISE D. Rule 6). MENDOZA. 42 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Litis pendentia. 8. DIANE CAMILLA R. Rule 15). UNICA AMOR R. AIDA. PLATON III. G. or complaint-in-intervention. KRISTINE P. It may be in the form of a complaint. ROSALES . 8. BORJA. JUANENGO. CONTRIBUTORS: VICENTE JAN O. summary judgment. DUMLAO. 5. 3. MARIANO. 2. MA. 1. ASST. v. SHERY PAIGE A. Flojo. Rule 15) Q: May a motion pray for judgment? A: GR: No. Q: What is an ex-parte motion? A: It is taken or granted at the instance and for the benefit of one party.. 2.R. if required by the Rules or necessary to prove facts alleged therein. d. they shall be deemed waived (Sec. G. Rule 15). SUBJECT HEAD: ANGELI P. and 4. 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. answer or reply (Sec. MIJARES. Res judicata. third-party complaint. the relief sought to be obtained. MEMBERS: AKEMI B. A motion on the other hand is an application for relief other than a pleading(Sec. OMNIBUS MOTION RULE Q: What is the Omnibus Motion Rule? A: GR: All available grounds for objection in attacking a pleading. GR: Every written motion shall be set for hearing by the applicant. BAGANG. or 3. JR. CONTENTS AND FORMS OF MOTIONS Q: Should a motion be in writing? A: GR: Yes. judgment on the pleadings. c. 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.. Rule 15). CA. TERESE RAY-ANNE O.. and 3. 264. XPN: Motion for: 1. otherwise.

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

(2008 Bar Question) 3. HERRERA. TERESE RAY-ANNE O. SUBJECT HEAD: ANGELI P. JUDGE CESAR D.R. MEMBERS: AKEMI B. waived. Identity of the parties b. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds. There must be identity of parties. or otherwise extinguished. MIJARES. SUBJECT HEADS: DARRELL L. the plaintiff may re-file the complaint. DIANE CAMILLA R. 1. 2. MENDOZA. 2009 ed. GRETCHEN C. (Riano. deemed waived if not raised. SY. 2006) Note: The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. That a condition precedent for filing the claim has not been complied with. 8. PLATON III. If there is grave abuse of discretion amounting to lack or excess of jurisdiction.) 6. G. 3. Note: Litis pendentia requires concurrence of the following requisites: a. Deny the motion. MA. p.3. QUIAMBAO. JUANENGO. or Order the amendment of the pleading (Sec. STAMARIA. Civil Procedure: A Restatement for the Bar. Dismiss the action or claims. UNICA AMOR R. JUSTICE JAIME M. That the court has no jurisdiction over the person of the defending party. DONNA GRAGASIN. RHONDEE E. MARA KHRISNA CHARMINA F. ASST. Rule16). p. EDELISE D. Rule 16) Note: Not jurisdictional in nature. Judgment must be on the merits c. That the cause of action is barred by a prior judgment or by the statute of limitations. 3. 10. The court which rendered it has jurisdiction over the subject matter and the parties b. AIDA.) 7. a. MARIANO. Civil Procedure: A Restatement for the Bar. AQUINO. LANTIN. b. 2. That the claim or demand set forth in the plaintiff's pleading has been paid. YRIZ TAMIE A. 3. 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. the resolution shall state clearly and distinctly the reasons therefor (Sec. 2009 ed. FLORES. 319-320. being founded on the same facts c. SR. 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. JR. GROUNDS Q: What are the grounds for a motion to dismiss under Rule 16? A: 1.. such that any judgment that may be rendered in the pending case would amount to red adjudicate in the other case. If decision is adverse. LIM. MOTION TO DISMISS 9. 5. SHERY PAIGE A. That the plaintiff has no legal capacity to sue. ROSALES . Vianzon. 4. PINEDA. 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. That there is another action pending between the same parties for the same cause. 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. Aug. CONTRIBUTORS: VICENTE JAN O. In every case.UST GOLDEN NOTES 2011 cause with any order of the court or with the Rules. Rule 16). Note: The requisites of res judicata include: The former judgment must be final a. JUSTICE OSCAR C. certiorari or prohibition may lie under Rule 65. RONN ROBBY D. If the dismissal is with prejudice. mandamus is the proper remedy. (Lim vs. That the pleading asserting the claim states no cause of action. No. If there is unlawful neglect of the performance of an act which the law specifically enjoins. MANANQUIL. BAGANG. DUMLAO. 137187. Identity with respect to the two preceding particulars. (Riano. the plaintiff may file an appeal. BORJA. 3. Identity of rights asserted and reliefs prayed for. appeal therefrom and raise as error the denial of the motion to dismiss. abandoned. subject matter and causes of action d.(Sec. MICHAEL ANGELO V. hence. KATRINA NADINE G. That the court has no jurisdiction over the subject matter of the claim. That venue is improperly laid. Note: Curable by amendment 44 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 319. ALBAÑA. c. KRISTINE P..

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. in the discretion of the court. f.CIVIL PROCEDURE e. 399. 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. but on appeal the order of dismissal is reversed. 2.) ACADEMICS CHAIR: LESTER JAY ALAN E. 4. If granted. defendant answers. and 3. Remedial Law. Compendium Vol. Feb. he may re-file the case May be filed only after the plaintiff has completed the presentation of his evidence (Regalado. any of the grounds for dismissal provided for in the Rules may be pleaded as an affirmative defense in the answer and. However. MARTINEZ 45 . 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. 5. 168557. a preliminary hearing may be had thereon as if a motion to dismiss had been filed. abandoned. defendant may present evidence. Claim is unenforceable under the statute of frauds? A: Dismissal is with prejudice and constitutes res judicata. Extinguishment of the claim or demand. No. SABUGO & JOHN HENRY C. 2. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. plaintiff may appeal or if subsequent case is not barred. (Sec. Civil Procedure: A Restatement for the Bar. or otherwise extinguished.) If denied. waived. EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS Q: What is the effect of dismissal on the following grounds: 1. p. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Prescription. the defendant loses his right to present evidence (Riano. I. 19. 3. 2007). 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. 6. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Claim or demand has been paid. Rule 16) h. If granted. 2009 ed. 2005 ed. BAR BY DISMISSAL Q: What are the grounds for dismissal that may bar the refiling of the same action or claim? A: 1. The language of the rule. p.R. or else he may be declared in default. MASACAYAN & THEENA C. 267. Res judicata. Rule 16) g. DISTINGUISH FROM DEMURRER TO EVIDENCE UNDER RULE 33 Q: Distinguish motion to dismiss under Rule 16 from motion to dismiss under Rule 33. G. Cause of action is barred by prior judgment or by the statute of limitations. Heirs of Eliseo Guevarra. 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. (Sec. and Unenforceability under the State of Frauds.

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

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

A: Pre-trial in civil case It is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. LANTIN. and The number and names of the witnesses. 2. HERRERA. (Sec. No. RHONDEE E. It does not include the possibility of amicable settlement of criminal liability as one of its purposes (Sec. ROSALES . Q: What should a pre-trial brief contain? A: 1. they cannot be used against the accused (Sec. All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel. QUIAMBAO. Rule 18) 5. DONNA GRAGASIN. The documents or exhibits to be presented. 6. DUMLAO. UNICA AMOR R. 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. SHERY PAIGE A. CONTRIBUTORS: VICENTE JAN O. 3. MA. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners. 1. 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. Rule 18). MICHAEL ANGELO V. 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. The counsel served with such notice is charged with the duty of notifying the party represented by him (Sec. 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. 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. No. 03-109-SC). PLATON III. 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. to submit to alternative modes of dispute resolution. 4. A summary of admitted facts and proposed stipulation of facts.M. 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.UST GOLDEN NOTES 2011 3. and to enter into stipulations or admissions of facts and of documents.4. The rule allows either the party or his counsel to sign the minutes (A. JUSTICE JAIME M. 2. LIM. or on the party who has no counsel. indicating the desired terms thereof. with prejudice. Rule 18). KRISTINE P. SUBJECT HEADS: DARRELL L. 6. JR. 4. RONN ROBBY D. 1. STAMARIA. ALBAÑA. EFFECT OF FAILURE TO APPEAR Q: Who has the duty to appear at the pre-trial? A: The parties and their counsel. TERESE RAY-ANNE O. unless otherwise ordered by the court. NOTICE OF PRE-TRIAL Q: To whom shall notice of pre-trial be served? A: It shall be served on counsel. July 13. Rule 18) The motion to set the case for pre-trial is made after the last pleading has been served and filed (Sec. PINEDA. APPEARANCE OF PARTIES. ASST. It considers the possibility of an amicable settlement as an important objective. 03-1-09-SC. GRETCHEN C. MARA KHRISNA CHARMINA F. KATRINA NADINE G. SR. Rule 118). 6. DIANE CAMILLA R. SUBJECT HEAD: ANGELI P. SY. AQUINO. MARIANO. otherwise. YRIZ TAMIE A. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution. 1. PRE-TRIAL BRIEF. MIJARES. 5. Rule 18) 5... stating the purpose thereof. JUSTICE OSCAR C. 6. JUANENGO. 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. EDELISE D. JUDGE CESAR D. 3. Rule 18). MENDOZA. The issues to be tried or resolved. 2004). BORJA. (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. 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. AIDA. MANANQUIL. MEMBERS: AKEMI B. BAGANG. FLORES. Rule 18).M.

After mediation has failed in the lower courts. 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. 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. (Sec. Rule 18) Not specifically required in a criminal case. Alternative Dispute Resolution (ADR) a. No. within 5 days from notice of appointment. 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. 7. set a time and place for the hearing of the matters submitted to them. 9285)” Appellate Court Mediation 1. MARTINEZ 49 . Arbitration i. 2. 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. Rule 18) (Sec. Domestic Arbitration 2. Appellate Court Mediation provides an added option to put an end to costly and long-drawn litigation. 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”. 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. Upon failing to secure a settlement of the dispute during the first stage. 6. if the parties to the controversy reside within the same city or province. R. Conciliation d. 4. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.M. 5. 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. 4. Rule 18). Specifically required to be submitted in a civil case (Sec.CIVIL PROCEDURE defendant in a civil case (Sec. To achieve speedy and impartial justice and unclog court dockets. Construction Disputes International Commercial Arbitration b. Mediation c. 2. Q: Distinguish the other modes of solving disputes. 3. MASACAYAN & THEENA C. SABUGO & JOHN HENRY C. A: ADR Court-Annexed Mediation/Judicial Dispute Resolution (A. ALTERNATIVE DISPUTE RESOLUTION (ADR) Q: What are the other modes of solving disputes? A: 1.A. or within 15 days after appointment if the parties reside in different provinces. the arbitrators selected must. Early Neutral Evaluation e. Subject to the terms of the contract or the submission agreement. iii. Mini-trial Court-Annexed Mediation Appellate Court Mediation Judicial Dispute Resolution Katarungang Pambarangay Law Small Claims Cases Rules on Summary Procedure ii. 1. 7. No. 3. “a second attempt is made at the JDR stage”. 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”. 6. 12. 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.A.

(2) of the Judiciary Reorganization Act of 1980. FLORES. provided that the minor is not detained for commission of a criminal offense. The civil aspect of estafa. SY.UST GOLDEN NOTES 2011 Cases Covered 1. JUSTICE JAIME M. Civil cases brought on ordinary appeal or petition for review. AIDA. ROSALES . 3. UNICA AMOR R. testate and intestate. MENDOZA. 9.” Cases Excluded 1. MIJARES. Special proceedings for the settlement of estates. judgments. 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. MEMBERS: AKEMI B. Other criminal cases not covered under paragraphs 3 to 6 above. 6. Appeals from final orders. Criminal cases except those which involve habeas corpus of minors not detained for a criminal offense. 7. 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. DIANE CAMILLA R. where the offended party is a private person. TERESE RAY-ANNE O. New Civil Code). RHONDEE E. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment. 8. 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. and Habeas corpus petitions involving custody of minors when the subject is detained for commission of a criminal offense. 7. 4. JUANENGO. DONNA GRAGASIN. 4. EDELISE D. 3. Special civil actions for certiorari. STAMARIA. 6. JUDGE CESAR D. 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. BORJA. SUBJECT HEADS: DARRELL L. MA. par. KRISTINE P. YRIZ TAMIE A. brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33. Habeas corpus (court order directing law enforcement officials or custodians of detained persons to produce that person in court) cases involving custody of minors. LANTIN. 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.. 50 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 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. 5. SUBJECT HEAD: ANGELI P. AQUINO. (1) of the Judiciary Reorganization Act of 1980. MANANQUIL. 2. Civil cases. with the consent of the parties. Civil cases which by law cannot be compromised (Article 2035. except those involving pure questions of law. JR. All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure. SR. 1. MARA KHRISNA CHARMINA F. MARIANO. 5. 2. QUIAMBAO. All civil cases and probate proceedings. All cases under Republic Act No. 9262 (Violence against Women and Children). including the civil liability for violation of B. awards. RONN ROBBY D.A.000 or both such fine and imprisonment. 3.(3) of the Judiciary Reorganization Act of 1980. 7160 or offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5. 2. 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. 2. 22. KATRINA NADINE G. HERRERA. JUSTICE OSCAR C. ALBAÑA. theft and libel. 13 and 10. 4. DUMLAO. LIM. except those which by law may not be compromised. par. PLATON III. Criminal cases cognizable by the Katarungang Pambarangay (Barangay Justice System) under R. BAGANG. par. SHERY PAIGE A. 9. 3.. 8. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code. PINEDA.P. Habeas Corpus petitions. MICHAEL ANGELO V. All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge. 3. ASST. 2. CONTRIBUTORS: VICENTE JAN O. which by law cannot be compromised. GRETCHEN C.

Mini-Trial It is a voluntary dispute resolution process in which one or more arbitrators. 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. Early neutral Evaluator assesses or reviews the issues submitted by the parties and tenders its evaluation which is non-binding. 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. resolve a dispute by rendering an award. The decision or opinion is not binding on the parties. Arbitrator acts as out-of-court judge and settles the dispute extrajudicially. 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. Panel renders a decision based on the merits of the arguments of the parties. HLURB Resolution No. and assists the parties in reaching a voluntary agreement regarding a dispute. It is recommendatory in nature. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Small Claims Cases and Rules on Summary Procedure are found on p. Mediator does not render an award but only arranges the facts to be negotiated so that parties can come to a compromise agreement. To be executory. it must first be confirmed by Effect of decision He does not render a decision. appointed in accordance with the agreement of the parties. or rules promulgated pursuant to R. It results in the adjudication of a dispute. The assessment is not binding upon the parties. MARTINEZ 51 . Mining Act. selected by the disputing parties. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. He assists the parties in reaching a mutually agreeable settlement of their dispute through direct negotiations. He actively participates in resolving the dispute. R-586 5.A. with expertise in the subject or the substance of the dispute. It need not be confirmed by the courts. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. It is a voluntary process in which an impartial and neutral third party (mediator).CIVIL PROCEDURE government agencies where mediators or arbitrators are selected by government agencies: a. 9285. and then gives an opinion. neutral person. Cases with pending application for restraining orders/preliminary injunctions. 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. SABUGO & JOHN HENRY C. ACADEMICS CHAIR: LESTER JAY ALAN E. 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. b. facilitates communication and negotiation. 4.17 Q: Distinguish the different kinds of the ADR system. unless both parties request for mediation Note: The table for Katarungang Pambarangay Law. The award may be final and binding if so agreed by the parties. MASACAYAN & THEENA C. or c. 1 [3]. The dispute is left to be settled by the parties themselves. Consumer Act.

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

2003). 91486. No. L-4627. 3. Sept. 1. 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. or An answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (Sec. It is not an independent proceeding but is ancillary and supplemental to an existing litigation. Mandamus will not lie except in case of grave abuse of discretion. v. Sept. 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.) 2. G. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. MARTINEZ 53 .R. (Riano. Rule 19) 2. CA. Civil Procedure: A Restatement for the Bar. Where necessary to protect some interest which cannot otherwise be protected. 27.4. 2009 ed.CIVIL PROCEDURE Q: Is intervention an independent proceeding? A: GR: No. The motion and the pleading shall be served upon the original parties. Pacquing. Q: When shall the intervenor file a pleading-inintervention? A: 1. Rule 19) Q: What is the procedure for intervention? A: 1. unless a different period is fixed by the court (Sec. G. 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. With respect to indispensable parties. unless a different period is fixed by the courts. 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. A: GR: After rendition of judgment. the final dismissal of the principal action results into the dismissal of said ancillary action. No. The answer to the complaint-inintervention shall be filed within fifteen (15) days from notice of the order admitting the same. intervention may be allowed even on appeal (Falcasantos v. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 115044. 1995). If the pleading seek to unite with the defending party in resisting a claim against the latter – file an answer-inintervention. or 4. (Sec. 10. not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment. 2. May 13. Nov. Rule 19). 3. even if the judgment itself recognizes the right of the movant.R. ACADEMICS CHAIR: LESTER JAY ALAN E. When the intervenor is the Republic (Lim v. CA. direct and of an immediate character. Hence. SABUGO & JOHN HENRY C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. The motion to intervene must be filed at any time before rendition of judgment by the trial court (Sec. 3. G. 89909. 1952). 1990). a motion to intervene is barred. 2. XPNs: 1.R. 2. No. where the interest of justice so required (Tahanan Dev. Jan. Falcasantos.R. May be allowed during the pendency of the appeal. No.R. G. 346. No. 21. (2000 Bar Question) Q: What does legal interest mean? A: It must be one that is actual and material. and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. 2. RTC-Manila. Corp. G. 4. Rule 19) 2. p. 15. L-55771. The intervenor shall file a motion for intervention attaching thereto his pleading-inintervention. MASACAYAN & THEENA C. 1982). (Sec. (Sec 3. He shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties. 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. Rule 19). 3.

The officer or body authorized by law to do so in connection with investigations conducted by said officer or body. who is not a party and is not less than eighteen (18) years of age (Sec. YRIZ TAMIE A. HERRERA. Rule 21). If the subpoena is duces tecum. LIM. or for taking of his deposition (Sec. 3). tendering to him the fees for one day’s attendance and the kilometrage allowed by the Rules. 4. AQUINO. Note: Service of a subpoena shall be made by the sheriff. 2. the tender need not be made (Sec. GRETCHEN C. it shall also contain a reasonable description of the books. A: Subpoena An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage. or at any investigation conducted under the laws of the Philippines. JUSTICE JAIME M. Rule 21). MANANQUIL. Rule 21). JUSTICE OSCAR C. RONN ROBBY D. 6. SUBPOENA DUCES TECUM Q: What is subpoena duces tecum? A: A process directed to a person requiring him to bring with him any books. Rule 21). ASST. Q: What are the contents of subpoena? A: It shall state the name of the court and the title of the action or investigation. SR. SY. MARA KHRISNA CHARMINA F. Q: What is the rule on subpoena for depositions? A: Proof of service of a notice to take a deposition.. 5. 1. KRISTINE P. 1. PINEDA. 54 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. STAMARIA. MARIANO. 6. LANTIN. 3. PLATON III. or by any other person specially authorized. KATRINA NADINE G. however. The clerk shall not. 3.UST GOLDEN NOTES 2011 K. documents or things demanded shall also be tendered (Sec. 2. Q: How is service of subpoena made? A: It shall be made in the same manner as personal or substituted service of summons (Sec. Rule 21). as provided in Secs. SERVICE OF SUBPOENA Q: Who issues subpoena? A: 1. UNICA AMOR R. Rule 21). MA. CONTRIBUTORS: VICENTE JAN O. The court before whom the witness is required to attend. JUDGE CESAR D. and in the case of a subpoena duces tecum. or Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. MEMBERS: AKEMI B. MIJARES. DUMLAO. 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. TERESE RAY-ANNE O. BAGANG. Rule 23. 1. ROSALES . documents or things demanded which must appear to the court prima facie relevant (Sec. 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. 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. MICHAEL ANGELO V. SHERY PAIGE A. Rule 21). or things under his control (Sec. QUIAMBAO. 15 and 25. BORJA. DONNA GRAGASIN. ALBAÑA. JR. RHONDEE E. issue a subpoena duces tecum to any such person without an order of the court (Sec. MENDOZA. documents. shall be directed to the person whose attendance is required. EDELISE D. AIDA. 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. FLORES. 6. the reasonable cost of producing the books. 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.. SUBJECT HEADS: DARRELL L. 6. 2. SUBJECT HEAD: ANGELI P. Q: Distinguish subpoena from summons. Rule 21). 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. JUANENGO. 1. DIANE CAMILLA R. (Sec. Note: When a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof. by his deputy. Rule 21). The court of the place where the deposition is to be taken. 2.

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

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

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

it shall be signed by the witness. SUBJECT HEAD: ANGELI P. 2007 ed. 19. Rule 23). Witness cannot be found. 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. DUMLAO. 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. the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part (Sec. who shall propound them to the witness and record the answers verbatim (Sec. Evidence presented. Q: Is the signing of deposition necessary? A: GR: Yes. 19. MEMBERS: AKEMI B. Vol. SR. Rule 129). SUBJECT HEADS: DARRELL L. QUIAMBAO. JUDGE CESAR D. KATRINA NADINE G. 20. 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. 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. 17. JUSTICE JAIME M. Manner of taking the deposition. Rule 23). 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. YRIZ TAMIE A. and if another party attends in person or by 58 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Qualifications of the officer taking the deposition. MICHAEL ANGELO V. Note: A deposition officer has no authority to rule on the objection (Herrera.) Q: What may the parties do if they cannot participate in the oral examination? A: The parties may transmit written interrogatories to the officers. 17. unless on a motion to suppress under Sec. TERESE RAY-ANNE O. DIANE CAMILLA R. MANANQUIL. 38. RONN ROBBY D. RHONDEE E. if any. LANTIN. 21. 3. 19. 22. Rule 23). JUANENGO. MA. 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. 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. MARA KHRISNA CHARMINA F. SY. PLATON III. AIDA. unless such examination and reading are waived by the witness and by the parties (Sec. Rule 23). UNICA AMOR R.) Wtness refuses to sign (Sec. ALBAÑA. Any other objection to the proceedings (Sec. Witness is ill. SHERY PAIGE A. 29 (f). 2. Note: Failure to comply with this requirement is a mere defect in form which cannot affect the admissibility of the deposition. ROSALES . 3. Rule 23). HERRERA. FLORES.. and the deposition may then be used as fully as though signed. 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. LIM. 2. the witness does not attend. Vol. JUSTICE OSCAR C. MIJARES. II. EDELISE D. II. STAMARIA. 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. Rule 23). BORJA. 23. PINEDA. 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)". 4.. ASST. Rule 23). p. Rule 23). GRETCHEN C. 2. KRISTINE P. BAGANG. JR. XPN: 1. MARIANO. and 4. CONTRIBUTORS: VICENTE JAN O. including reasonable attorney’s fees (Sec. 34. Rule 23. 2. Give prompt notice of its filing to all the parties (Sec.UST GOLDEN NOTES 2011 4. or 5. Conduct of any party. MENDOZA. Rule 23). Q: What are the duties of the officer after the taking of the deposition? A: He shall: 1. AQUINO. 2007 ed. Parties by stipulation waive the signing. p. 19. (Herrera. DONNA GRAGASIN. Q: What is the consequence of failure of party giving notice to serve subpoena? A: If because of such failure. 3.

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

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

on motion or petition of any party or of the deponent. Rule 25) Bill of Particulars Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations in a pleading. The identity and location of persons having knowledge of relevant facts (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. 18. Rule 23. MASACAYAN & THEENA C. 18. 2. 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. Rule 23. 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. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. It is therefore directed to a pleading (Sec 1. 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. Upon a showing that the examination is being conducted in bad faith. II. embarrass or oppress the deponent or party (Sec. 16. 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. Rule 23). A: Interrogatories Interrogatories to parties are not directed to a particular pleading. 2. Rule 25). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2007 ed. MARTINEZ 61 . Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 18. Q: Distinguish particulars. Instead. Rule 23) Provides such protection during the taking of deposition. they seek to disclose all material and relevant facts from a party (Sec 1. Rule 23). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Motion to Terminate or Limit Examination (Sec. 29. Note: If the order made terminates the examination. 6. it shall be resumed thereafter only upon the order of the court in which the action is pending. Rule 12) 3. 29. SABUGO & JOHN HENRY C. the taking of the deposition shall be suspended for the time necessary to make a notice for an order. 6. Rule 23) d.CIVIL PROCEDURE 7. Rule 23) Provides protection to the party or witness before the taking of deposition. In such manner as unreasonably to annoy. or When the constitutional privilege against self-incrimination is invoked by deponent or his counsel (Herrera. p. The Motion is filed with the court in which the action is pending. Rule 23). Rule 23) ACADEMICS CHAIR: LESTER JAY ALAN E. Vol.). Q: Distinguish protection order from motion to terminate or limit examination. 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. A: c. 37. Protection Order (Sec. 2. 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. Upon demand of the objecting party or deponent. In granting or refusing such order. (Sec. 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. 1.

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

or the physical or mental condition of the party.CIVIL PROCEDURE the refusing party or deponent or the counsel advising the refusal. Genuineness of any material and relevant document described in and exhibited with the request. (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. 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. 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. MARTINEZ 63 . G. especially in the light of counsel’s authority under Secs. 102404. Rule 26). (d) In lieu of any of the foregoing orders or in addition thereto. or to permit entry upon land or other property. or 2. MASACAYAN & THEENA C. Inc. or to give a deposition pending appeal. or both of them. No. Rule 29). 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. and among others the following: (a) An order that the matters regarding which the questions were asked. the refusal may be considered a contempt of that court (Sec. Feb. 21 and 23. b. otherwise. including attorney’s fees (Sec. However.R. or rendering a judgment by default against the disobedient party. Truth of any material and relevant matter of fact set forth in the request (Sec. 6. If the application is denied and the court finds that it was filed without substantial justification. 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 both of them. (c) An order striking out pleadings or parts thereof. or the contents of the paper. Rule 138 (Nestle Philippines. 1. or an order made under Rule 28 requiring him to submit to a physical or mental examination. but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 101682. Rule 25). No. 2002) ACADEMICS CHAIR: LESTER JAY ALAN E. 2. Dec. (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. the court may require the proponent or the counsel advising the filing of the application. 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. CA. SABUGO & JOHN HENRY C. or from introducing evidence of physical or mental condition. including attorney’s fees. the answer to a request for admission properly served which was signed and sworn to by the counsel of the party so requested. to pay the proponent the amount of the reasonable expenses incurred in obtaining the order. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 14. is sufficient compliance with this rule. Note: The request for admission must be served directly upon the party. Rule 29). or an order under Rule 27 to produce any document or other thing for inspection. REQUEST FOR ADMISSION Q: What admissions may be requested from the adverse party? A: Admission of the: 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 3. (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. or the character or description of the thing or land. Rule 29). 3. CA. v. the court may make such orders in regard to the refusal as are just. 1. 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. copying. or dismissing the action or proceeding or any part thereof. 1. G. to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application.R. or photographing or to permit it to be done. or staying further proceedings until the order is obeyed. 1992).

b. AIDA. 4. d. ROSALES . custody or control. JUANENGO. 2. MARA KHRISNA CHARMINA F. by or on behalf of the moving party. Rule 26). 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. MANANQUIL. SUBJECT HEADS: DARRELL L. MIJARES. PLATON III. BAGANG. Note: When the defendant is silent on the plaintiff‘s request for admission. TERESE RAY-ANNE O. JUDGE CESAR D. MA. MEMBERS: AKEMI B. LANTIN. Rule 26). 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. FLORES. HERRERA. 2. EDELISE D. he is deemed to have impliedly admitted the facts set forth therein (Herrera. 1. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting. SR. books. YRIZ TAMIE A. STAMARIA. 2007 ed. Rule 26). not privileged. 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. KRISTINE P. 2[b]. objects or tangible things.UST GOLDEN NOTES 2011 Q: When may request for admission be made? A: At any time after issues have been joined. Under the Rules. SUBJECT HEAD: ANGELI P. II. a. (Sec. Rule 26). BORJA. XPN: Unless. MENDOZA. which resolution shall be made as early as practicable (Sec. a party may file and serve upon any other party a written request for the admission by the latter. Rule 26). 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. KATRINA NADINE G. or 2. Vol. DONNA GRAGASIN. 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. SHERY PAIGE A. RONN ROBBY D. papers. Rule 26) c. RHONDEE E.. QUIAMBAO. JUSTICE JAIME M. LIM. the court in which an action is pending may order any party to: 1. 5.) 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. JR. 56. MARIANO. accounts. A: Yes. MICHAEL ANGELO V. or photographing the property or any designated relevant object or operation thereon (Sec. measuring. PINEDA. (Sec. letters. CONTRIBUTORS: VICENTE JAN O. 1.. or within such further time as the court may allow on motion. which constitute or contain evidence material to any matter involved in the action and which are in his possession. 4. AQUINO. ASST. 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. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just (Sec. 3. ALBAÑA. 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. surveying. p. GRETCHEN C. 64 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. JUSTICE OSCAR C. DIANE CAMILLA R. DUMLAO. SY. or of any designated documents. 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. Rule 27). Rule 26). UNICA AMOR R. photographs. Produce and permit the inspection and copying or photographing.

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

BAGANG. 66 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 6.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. MIJARES. Refuse to allow the disobedient party to support or oppose claims or defenses. 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. copying or photographing 1. Contempt. Prohibit the disobedient party to introduce evidence of physical and mental conditions. SUBJECT HEAD: ANGELI P. 2. and when. Render a Judgment by default against the disobedient party Refusal to the request for admission by adverse party 1. 7. QUIAMBAO. JUSTICE JAIME M. having always in mind the paramount and overriding interest of justice (Zepeda v. 10. 5. 5. Stay further proceedings until order is obeyed. The matter of how. China Banking Corp. Dismiss the action or the proceeding. Refusal to submit to Physical or Mental examination 1. 8. LANTIN. SUBJECT HEADS: DARRELL L. 9. LIM. Order the arrest of the refusing party. 4. MARIANO. 1-4) 2. Require payment of reasonable fees incurred by the proponent (Secs. 5. DONNA GRAGASIN. Strike out all or any part of the pleading of the disobedient party. 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. Rule 28). SR. Strike out all or any part of the pleading of the disobedient party. 9. Render a Judgment by default against the disobedient party 8. 7. SY. MARA KHRISNA CHARMINA F. Dismiss the action or the proceeding. HERRERA. Require payment of reasonable fees incurred by the proponent. RHONDEE E. EDELISE D. KATRINA NADINE G. YRIZ TAMIE A. DIANE CAMILLA R. Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. Q: What is the effect if the party examined requests and obtains a report on the results of the examination? A: 1. MEMBERS: AKEMI B. 2006). MENDOZA. Stay further proceedings until order is obeyed. 6. 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. ASST. No. Order the arrest of the refusing party. PINEDA. Note: The remedy of the party. 3. DUMLAO. Each of the matters of which an admission is requested is deemed admitted (Sec. JUSTICE OSCAR C. is to file a motion to be relieved of the consequences of the implied admission. KRISTINE P. 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. 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. 4. Rule 26). 4. JUDGE CESAR D. SHERY PAIGE A. PLATON III.. JUANENGO. 3. Render a Judgment by default against the disobedient party. 4.R. Dismiss the action or the proceeding. FLORES. the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending. STAMARIA. (Sec 3. GRETCHEN C. 7. AQUINO. Rule 28) 2. 2. Render a Judgment by default against the disobedient party. Stay further proceedings until order is obeyed. CONTRIBUTORS: VICENTE JAN O. 5. G. 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. Strike out all or any part of the pleading of the disobedient party. TERESE RAY-ANNE O. in this case. 6. ROSALES . AIDA. ALBAÑA. Refusal to produce document or thing for inspection. MA. Refuse to allow the disobedient party to support or oppose claims or defenses. MICHAEL ANGELO V. BORJA.. JR. 3. 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. 2. 6.. Render a Judgment by default against the disobedient party. Oct. 172175. 1. UNICA AMOR R. RONN ROBBY D. 3. MANANQUIL.

p.CIVIL PROCEDURE M.. but shall have no power to adjourn a trial for a longer period than one month for each adjournment. there is no agreement as to all the facts in the case. depositions and other papers. trial may be held only as to the disputed facts (1996 Bar Question). upon the facts involved in the litigation. without the introduction of evidence. Where. 2. 3. Where the complaint has been dismissed with prejudice (Sec. Sec. 5. Where the case falls under the operation of the Rules on Summary Procedure (Rule 17). If however. A: A: Trial Reception of evidence and other processes. trial is necessary. Supreme Court. 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 7). 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. except when authorized in writing by the Court Administrator. 2009 ed. 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. FOR ABSENCE OF EVIDENCE Q: What are the requisites of a motion to postpone trial for absence of evidence? A: Affidavit showing: a. 5. The period for the introduction of evidence by both parties.) Q: Is trial necessary? A: GR: When an issue exists. NCC). Merits of the case of the movant a. SABUGO & JOHN HENRY C. Hearing Not confined in trial but embraces several stages of litigation. Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 3. Decision should not be made without trial. a judgment on the pleadings may be directed by the court (Rule 34). REQUISITES OF MOTION TO POSTPONE TRIAL Q: What are postponements? the criteria in granting 1. Q: What is the rule on notice of trial? A: Upon entry of a case in the trial calendar. par. Civil Procedure: A Restatement for the Bar. Rule 17. Q: Distinguish trial from hearing. Issues are joined when all the parties have placed their respective theories and the terms of the dispute are placed before the court. Art. The evidence is material or relevant ACADEMICS CHAIR: LESTER JAY ALAN E. 394. Where from the pleadings. the parties agree in writing. affidavits. 4. MARTINEZ 67 . there is actually no genuine issue. and to any stated time. 5. 6. and submit the case for judgment on the facts agreed upon. Sec. MASACAYAN & THEENA C. 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. XPNs: There is no need for trial in the following cases: 1. 2. Rule 30) 1. Reason for the postponement. including the pretrial stage. A: When the issues are joined. (Sec 2. 2028. last. the court may render a summary judgment (Rule 35).1. Rule 16. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 2. (Sec. 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. 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. as the expeditious and convenient transaction of business may require. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. nor more than three months in all. Where the pleadings of the parties tender no issue at all.

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

MARTINEZ 69 .CIVIL PROCEDURE 5. XPNs: Consolidation becomes a matter of duty when: 1. together with the objections to be resolved by the court. If willingness to discuss a possible compromise is expressed by one or both parties. cross-claims. dismissing some cases and retaining only one case. Consolidation Proper It is a joint trial with joint decision. MASACAYAN & THEENA C. L-30887. 3. 2009 ed. third-party complaints. Q: What are the requisites for consolidation? A: 1. offered to discuss a possible compromise but the other party refused the offer (Sec. 6. or issues which may be separately tried. if confirmed. Rule 30. for him to take testimony. The reception of evidence shall be made only by the clerk of that court who is a member of the bar. guard against oppression or abuse. before the commencement of the action or proceeding. If two or more cases are pending before the same judge. ACADEMICS CHAIR: LESTER JAY ALAN E. Rule 31). 9. TRIAL BY COMMISSIONERS Q: What are the ways of consolidating cases? A: Recasting the Cases Reshaping of the cases by amending the pleading. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or If it appears that one of the parties. No. 7. 2. 2. G. Actions involving a common question of law or fact. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL Q: Distinguish consolidation from severance. the cases retaining their original docket numbers. hear the parties and report thereon to the court. Felipe. and There must be at least 2 actions pending before the same court (Sec. Art. Civil Procedure. Rule 31). 2030. Q: Distinguish delegation to clerk of court under Rule 30 from trial by commissioner under Rule 32.R. and simplify the work of the trial court and save unnecessary costs and expenses. or Q: Who is a commissioner? A: A person to whom a case pending in court is referred. under the following conditions: 1. Q: What is the rule on consolidation of cases? A: GR: Consolidation is discretionary upon the court to avoid multiplicity of suits. p. The delegation may be made only in defaults or ex parte hearings. 96.1. and upon whose report. He shall submit his report and transcripts of the proceedings. 8. NCC). 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. XPN: The reception of evidence may be delegated to the Clerk of Court. within 10 days from the termination of the hearing (Sec. 1971) Q: When may civil actions be suspended? A: 1. judgment is rendered. prevent delay. 24. Dec. DELEGATION OF RECEPTION OF EVIDENCE Q: May the judge delegate the reception of evidence? A: GR: No.1. and 4. Rule 30). counterclaims. If filed with the different branches of the same RTC and one of such cases has not been partially tried. (Raymundo v. Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits.). Severance Contemplates a single action having a number of claims. 2. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. A: Consolidation Involves several actions having a common question of law or fact which may be jointly tried (Sec. 2. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. The cases retain their original docket numbers (Riano. SABUGO & JOHN HENRY C. The judge shall personally receive and resolve the evidence to be adduced by the parties. There must be joinder of causes of action and of parties. and in any case where the parties agree in writing. clear congested dockets.

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

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

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

6. Judgment of acquittal is not appealable. 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. but which do not appear in the records. Rule 9) – Rendered by the court following a default order or after it received. 2. Judgment by default (Sec. it will grant the demurrer by rendering judgment acquitting the accused. ex parte. upon matters submitted to it in an action or proceeding. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. No res judicata in dismissal due to demurrer The plaintiff files a motion to deny motion to demurrer to evidence. 8. double jeopardy sets in How can demurrer be denied? The court may motu proprio deny the motion. 7. If the plaintiff appeals from the order of dismissal If the court finds the prosecution’s evidence insufficient. Judgment upon compromise – It is one conferred on the basis of a compromise agreement entered into between the parties. 3. 3. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. MASACAYAN & THEENA C. Summary judgment (Rule 35) – One granted by the court for the prompt ACADEMICS CHAIR: LESTER JAY ALAN E. Its only function is to record some act of the court which was done at a former time. 4. If there was no leave of court. Judgment sin perjuicio – Judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. The judgment of dismissal is appealable by the plaintiff. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. SABUGO & JOHN HENRY C. 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. plaintiff’s evidence. MARTINEZ 73 . 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. Clarificatory judgment – It is rendered to clarify an ambiguous judgment or one difficult to comply with. in order to make the record speak the truth. 9. O. but which was not then recorded. This is not allowed. 5. Q: What are the kinds of judgment? A: 1. without any changes in substance or any material respect.CIVIL PROCEDURE 5. 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. 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. 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. If plaintiff appeals and judgment is reversed by the appellate court. Judgment nunc pro tunc (Now for then) – A judgment intended to enter into the record the acts which had already been done. 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. it will grant the demurrer by dismissing the complaint. 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.

2. ASST. MANANQUIL. YRIZ TAMIE A. Dec. CONTENTS OF A JUDGMENT Q: What are the two parts of a judgment? A: 1. 14. LIM. SUBJECT HEADS: DARRELL L. Sale of real or personal property. The summary judgment here was justified. Final judgment – One which disposes of the whole subject matter or terminates the particular proceedings or action.g. 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. A: 1. JUDGE CESAR D. 3. 4. 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. 1. STAMARIA. Polo. AIDA. ALBAÑA. 5. Corp. Conveyance. DIANE CAMILLA R. 10. 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. L-49668. JUSTICE JAIME M. and those of the other party in opposition thereto. MIJARES. AQUINO. A hearing is not thus de riguer. SHERY PAIGE A. Judgment for specific acts (Sec. DUMLAO. JUANENGO. The matter may be resolved. made after plaintiff has rested his case. considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. Minute Resolutions – if issued by SC denying or dismissing a petition or a motion for reconsideration for lack of merit. a hearing would serve no purpose.. 11. CONTRIBUTORS: VICENTE JAN O. Rule 36) – It is one rendered disposing of a claim among several others presented in a case. delivery of deeds. depositions. Nov. The court is expected to act chiefly on the basis of the affidavits. 14. the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff. Interlocutory Orders – those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. BAGANG. LANTIN. on the ground that upon the facts presented by the plaintiff and the law on the matter. KATRINA NADINE G. but sham or fictitious. E. JUSTICE OSCAR C. Separate judgment (Sec. GR 88218. HERRERA. The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not. Conditional judgment – It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. FLORES. Ratio decidendi – the body of judgment Fallo – The dispositive portion of the judgment. depositions. MENDOZA. it is understood that the challenged decision or order is deemed sustained. Judgment on demurrer to evidence (Rule 33) – A judgment rendered by the court dismissing a case upon motion of the defendant.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. 3. SY. Rule 39) – Applicable in cases of: 1. RHONDEE E. SUBJECT HEAD: ANGELI P. plaintiff has not shown any right to relief. Q: What are those which are not considered as decisions? 74 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MICHAEL ANGELO V. PLATON III. SR. or 5. Resolutions of Supreme Court denying the petitions to review decisions of Court of Appeals. and b. Several judgment (Sec. It is also the part of judgment that is subject to execution because this is 13. 10. QUIAMBAO. 2. Removal of improvements on property subject of execution. on the basis of affidavits. 4. CA. Carcon Devt. 16. admissions. 2. MARIANO. 1989.. BORJA. 11. Under the circumstances of the case. Order denying a motion to dismiss. KRISTINE P. Note: Appeal is not proper to question an interlocutory order. ROSALES . and usually is. Special judgment (Sec. 1989). vs. Sale of real and personal property. granting an extension of time or authorizing an amendment. 15. 17. Rule 36) – It is one rendered by a court against one or more defendants and not against all of them. Delivery of personal property. Delivery or restitution of real property. TERESE RAY-ANNE O. vesting title. or admissions that those issues are not genuine. JR. 12. MEMBERS: AKEMI B. EDELISE D. GRETCHEN C. or other specific acts. PINEDA. and clearly unnecessary. depositions. Payment of money. UNICA AMOR R. 2. leaving nothing to be done by the court but to enforce by execution what has been determined. not to receive evidence on the issues set up in the pleadings. MARA KHRISNA CHARMINA F. The proper remedy to question an interlocutory order is a petition for certiorari under Rule 65. admissions submitted by the movants. DONNA GRAGASIN. leaving the action to proceed against the others. RONN ROBBY D. MA.

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

or solely for the purpose of delay. GRETCHEN C. cross-claim or third-party complaint is concerned can file the same Based only on the pleadings alone. The facts so specified shall be deemed established. 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. RONN ROBBY D. MARIANO. STAMARIA. CONTRIBUTORS: VICENTE JAN O. 99 SCRA 164). and filed with the clerk of the court (Sec. 6 SCRA 530). SHERY PAIGE A. 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. MA. It shall thereupon make an order specifying the facts that appear without substantial controversy. including attorney’s fees. It may. KATRINA NADINE G. RHONDEE E. and the trial shall be conducted on the controverted facts accordingly (Sec. depositions or admissions for a summary judgment in his favor as to all or any part thereof (Sec. SY. CA. 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. SUBJECT HEADS: DARRELL L. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. HERRERA. TERESE RAY-ANNE O. JUDGE CESAR D. 5. MARA KHRISNA CHARMINA F. Rule 35). Rule 35). affidavits. SR. MANANQUIL. depositions. LIM. SUBJECT HEAD: ANGELI P. MICHAEL ANGELO V. 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. QUIAMBAO. only on the complaint and the answer Based on the pleadings. shall set forth such facts as would be admissible in evidence. Malazo. MENDOZA. 5. YRIZ TAMIE A. AQUINO. PINEDA. Rule 35). MIJARES. judgment is not rendered upon the whole case of for all the reliefs sought and a trial is necessary. hence. Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith. Rule 36). JUSTICE OSCAR C.UST GOLDEN NOTES 2011 affidavits. c. It is not the writing of the judgment or its signing which constitutes rendition of the judgment (Castro vs. Supporting and opposing affidavits shall be made on personal knowledge. 76 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Rule 35). and admissions 6. signed by him. KRISTINE P. AFFIDAVITS AND ATTACHMENTS Q: What are the rules on affidavits and attachments on summary judgments? 2. UNICA AMOR R. PLATON III. the court at the hearing of the motion. BAGANG. ROSALES . 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. WHEN THE CASE NOT FULLY ADJUDICATED A: Q: What happens when a case is not fully adjudicated? A: If on motion. DUMLAO. further adjudge the offending party or counsel guilty of contempt (Sec. EDELISE D. ALBAÑA. 1. DONNA GRAGASIN. FLORES. ASST. 1.. LANTIN. including the extent to which the amount of damages or other relief is not in controversy. stating clearly and distinctly the facts and the law on which it is based. d. 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. 2. Even if the judgment has already been put in writing and signed. JUANENGO. JUSTICE JAIME M. 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. It is not the pronouncement of the judgment in open court that constitutes the rendition. AIDA. 4. 6. and shall show affirmatively that the affiant is competent to testify to the matters stated therein. JR. and directing such further proceedings in the action as are just. DIANE CAMILLA R.. MEMBERS: AKEMI B. after hearing. BORJA.

Must be in writing. the aggrieved party may avail of the following remedies: a. Must point out specifically the conclusion of judgment. (b) the filing of a petition for relief has. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court. Rule 37). 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. Motion for New Trial. Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15. not more than six (6) months from the entry of the judgment or final order (Sec. Action to annul judgment. Affidavit of new witnesses. 1. 2. Rule 36). b. the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. SABUGO & JOHN HENRY C. 2.CIVIL PROCEDURE its periods. or The decisionor final order is contrary to law (Sec. Requisites 1. 3. an affidavit of merit is obligatory. the losing party may avail of the following: a. Express reference to testimonial or documentary evidence or to provisions of law. Both shall be made in writing stating the ground / grounds therefor. MOTION FOR RECONSIDERATION The damages awarded are excessive. WHEN TO FILE Q: Distinguish motion for new trial from motion for reconsideration. GROUNDS b. would probably alter the result (Sec. 3. In case of newly discovered evidence: a. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. (Sec. MARTINEZ 77 . 6. Certiorari. or 2. 2. MASACAYAN & THEENA C. b. 1. with a certificate by said clerk that the judgment has already become final and executory (Sec. Before a judgment becomes final and executory. which could not with reasonable diligence. and b. 3. Rule 37). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 39). Petition for relief from judgment. MOTION FOR NEW TRIAL OR RECONSIDERATION a. and which if presented. 2. Duly authenticated documents to be introduced. Motion for Reconsideration. Appeal 2. 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. and d. 1. 2. 1. 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. The evidence is insufficient to satisfy the decision or final order. 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. When to file ACADEMICS CHAIR: LESTER JAY ALAN E. (Sec. After the judgment becomes executory. 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. a written notice of which shall be served by the movant on the adverse party. Note: Whenever a remedy is allowed on the ground of FAME. accident. 1. 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. and c. 4. Newly discovered evidence. 1. Rule 38). as one of P. Collateral attack of a judgment. Affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action. Affidavit of the existence of FAME and newly discovered evidence. 2. have been discovered and produced at the trial. Extrinsic fraud. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. A: MOTION FOR NEW TRIAL Grounds 1. 7. c.

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

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

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

CA. Concha. GR No. ACADEMICS CHAIR: LESTER JAY ALAN E. Special proceedings. e. December 13. MASACAYAN & THEENA C. BO 129. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. (Sec 5. 88 SCRA 610). c. The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun. i. 50 Phil. b. (30 days is the period for filing. In ejectment cases. 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. 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. f. Interim Rules). Order denying a petition for relief or any similar motion seeking relief from judgment. Rule 21[d]. on appeal shall be filed 3. 3. the appellant has 30 days to file and serve both notice and record on appeal. Actions for partition of property with accounting. 22[d]. 97 SCRA 407). copies of 1. 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. There can be no new matters (Ondap vs. Manila Underwriter. notice of appeal to the RTC must disclose where appeal is to be taken.Parties to the appeal. There can be no new parties.Nielsen v. The appellate courts must decide the case on the basis of the record. There can be no change of theory (Naval vs.Material dates showing the In court and served to timeliness of the appeal the adverse party. 483 SCRA 102). 679). LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 111324. g. 2. 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. 2. MATTERS NOT APPEALABLE Q: What cases are not appealable? A: 1. d. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. both the notice of 2. Special civil actions of eminent domain and foreclosure of mortgage. notice of appeal need not state the court to which the appeal is being taken (Sec. NLRC. rule 41) Period available is 15 days before the judgment becomes final and executor appeal beyond that period) If required. No trial de novo shall be made. 2005). 147623.1. Actions for recovery 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. Bataclan.3. Shell. Q: What are the basic guidelines as regards appeal? A: a. a. Should indicate: If required. 29 SCRA 184). CA. 135 SCRA 342). Interim Rules). 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. July 5. MARTINEZ 81 . of Orion vs. 1996). If decision is made by the courts of 1st level.Judgment or final order or appeal and the record part thereof appealed from. GR No. An interlocutory order is not appealable until after the rendition of the judgment on the merits. except when the proceedings were not duly recorded as when there was absence of a qualified stenographer (Sec. b. SABUGO & JOHN HENRY C. only the court may approve the record on RTC in its original jurisdiction. h. the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin vs. Appeal by guarantor does not inure to the principal (Luzon Metal vs. Rule 41). Deemed perfected as to him with respect to the subject matter thereof upon its approval. Interlocutory order. and 4. There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao vs. Q: What are those cases which allow multiple appeals? A: The civil cases which admit of multiple appeals are: 1. Aubga.

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. or any other ground vitiating consent.UST GOLDEN NOTES 2011 3. JUDGE CESAR D. It is an error closely related to or dependent on an assigned error and properly argued in the brief. ROSALES . the proper ground is to appeal from the judgment (Sec. RONN ROBBY D. b. 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.NLRC. BAGANG. XPNs: The rule admits of exceptions as in cases of: a. DIANE CAMILLA R. HERRERA. it is true that this rule admits of exceptions as in cases of lack of jurisdiction. MARIANO. MEMBERS: AKEMI B. SY. v. PLATON III. Order denying a motion to set aside a judgment by consent. It is an error which affects the proceedings. LANTIN. d. For an appellate court to consider a legal question. cross-claims and third-party complaints. FLORES. MIJARES. 2007). 6. Order dismissing an action without prejudice (Sec. Where there are jurisprudential developments affecting the issues. Order disallowing or dismissing an appeal. JUSTICE OSCAR C. KATRINA NADINE G. confession or compromise on the ground of fraud. 5. No. TERESE RAY-ANNE O. 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. DUMLAO. Judgment or final order for or against one or more of several parties or in separate claims. 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. YRIZ TAMIE A. SHERY PAIGE A. Where the lower court committed plain error. CA. PINEDA. 2007). SUBJECT HEADS: DARRELL L. it should have been raised in the court below (PNOC vs. AIDA. QUIAMBAO. 457 SCRA 32). 9. c. not otherwise assigned as errors on appeal. Order of execution. ALBAÑA. BORJA. February 6. CONTRIBUTORS: VICENTE JAN O. 07. Ordinary appeal (Rule 40 and 41) 82 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. while the main case is pending.M. LIM. the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. GR 144435. e. RHONDEE E. MICHAEL ANGELO V. c. 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. SUBJECT HEAD: ANGELI P. GRETCHEN C. or It is a plain and clerical error. SR. No.. Note: The order denying a motion for new trial or reconsideration has been deleted from the list by virtue of A. Poblete GR No. 4. 1 as amended by A. EDELISE D. b. 07-7-12-SC. The court may consider an error not raised on appeal provided the same falls within any of the following categories: a. 451 SCRA 484). MANANQUIL. Q: Can the court consider errors not raised in the assignment of errors? A: GR: No. mistake or duress. ASST. Rule 51 precludes its absolute application. AQUINO. Lack of jurisdiction. MODES OF APPEAL Q: What are the different modes of appeal? A: 1. JUANENGO. 2007). where there are jurisprudential developments affecting the issues. where the lower court committed plain error. STAMARIA. 1 Rule 41). Inc. counterclaims. It is an error that affects the jurisdiction over the subject matter. 6. Feb. MA. 07-7-12-SC). which it could have done had it been aware of it at the time of the hearing before the trial court. 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. 541 SCRA 105.. It is an error that affects the validity of the judgment appealed from. d. c. Serrano. No. unless the court allows an appeal therefrom. UNICA AMOR R. JUSTICE JAIME M. MENDOZA. The court as a rule shall not consider errors not raised in the assignment of errors XPN: Sec.712. JR. Rule 37). MARA KHRISNA CHARMINA F. 144435. and 7. It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory.M. or when the issues raised present a matter of public policy (Baluyot v.M. 5. or when the issues raised present a matter of public policy (Baluyot vs. Poblete. DONNA GRAGASIN. justice and due process (Bank of Commerce vs.

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

MARA KHRISNA CHARMINA F. Rule 45). RA 9282. 2. UNICA AMOR R. SR. Sec. 1. the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41. AIDA. It is a mode of appeal but the petition used is Rule 65. 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. MIJARES. JUDGE CESAR D. TERESE RAY-ANNE O. It is a mode of appeal. Sept. Rule 64 and Rule 65. 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. Within 15 days from notice of the judgment. 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. 2. ALBAÑA. EDELISE D. 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. SUBJECT HEADS: DARRELL L.. KRISTINE P. and 6. RHONDEE E. JUSTICE OSCAR C. HERRERA. PLATON III. 1. 1 Rule 45 as amended by AM No. Within 15 days from receipt of the order denying motion for reconsideration or new trial Only questions of law (Sec. 07. BORJA. A: Appeal by Certiorari(Rule 45) Review of Judgments. the new 15 day period may be availed of only if either motion is filed. DIANE CAMILLA R. Note: This fresh period rule applies Rule 40.43. YRIZ TAMIE A. whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion. FLORES. Sandiganbayan to SC (Sec. Rule 45). Rule 45).7-12. LANTIN. QUIAMBAO. There is full payment of the docket and other lawful fees and the deposit for costs. CONTRIBUTORS: VICENTE JAN O. ASST.SC). 14. Appeals from a judgment or final order in a petition for a writ of Habeas Data (AM No. 07-9-12. AQUINO. MENDOZA. Accordingly. Rule 41). JUSTICE JAIME M.42. that is. GRETCHEN C. KATRINA NADINE G. CA to SC (Sec. Obviously. Q: Distinguish Rule 45. otherwise. SY. MA. RTC to SC (Sec 2c. DUMLAO. this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and.41. and 45. MICHAEL ANGELO V.SC). 3. Appeals from a judgment or final order in a petition for a writ of amparo to the SC (AM No. It is a mode of review. ROSALES . GR 141524. Petition is based only on questions of law.UST GOLDEN NOTES 2011 Petition for Review on Certiorari Rule 45 1. DONNA GRAGASIN. SHERY PAIGE A. final order or resolution appealed from. 08-116-SC). LIM. Note: The SC may for justifiable reason grant an extension of 30 days only within which to file the petition provided: a. 4. CA. MARIANO. CTA en banc to SC (Sec. (Neypes vs. minimize errors of judgment. Rule 45). RONN ROBBY D. Final Orders or Resolutions (Rule 64) Petition is based on questions of law. in the process. There is a motion for extension of time duly filed and served. PINEDA. 2. JR. MEMBERS: AKEMI B. 84 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MANANQUIL. STAMARIA. JUANENGO. Petition for Certiorari(Rule 65) Petition is based on questions of jurisdiction. 5. 11. SUBJECT HEAD: ANGELI P. and c. Rule 45). 1. b.. BAGANG. The motion is filed and served and the payment is made before the expiration of the reglementary period (Sec.

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

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

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

An appeal on pure questions of law cannot be taken to the CA and such improper appeal will be dismissed pursuant to Sec. briefs are not filed. ROSALES . mandamus.extendible period of 30 days from the receipt of notice that all the evidences are already attached to the record (Sec 10. 1. BORJA. just facts and law applicable Copies of the notice. Vol. Within 30 days after perfection of the appeals. Rule 41). Q: Distinguish a brief from a memorandum. SR. elevated to the SC only on questions of law). prohibition. TERESE RAY-ANNE O. MICHAEL ANGELO V. KATRINA NADINE G. HERRERA. mandamus. and record on appeal when required.. MANANQUIL. SHERY PAIGE A. Upon receipt of the original records and documents and upon payment of docket fees. STAMARIA. MIJARES. Instead the parties shall file their memoranda within a non. JUDGE CESAR D. 2007 ed. p. the appellant shall file a brief with proof of service to the appellant 3. SUBJECT HEAD: ANGELI P. or mixed questions of fact and law). JUANENGO. Petition for review – where judgment was rendered by the RTC in the exercise of appellate jurisdiction (governed by Rule 42. FLORES. CONTRIBUTORS: VICENTE JAN O. shall be served on the adverse party. 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.. LANTIN. KRISTINE P. MENDOZA. Remedial Law Compendium. RONN ROBBY D. 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 . EDELISE D. 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. 88 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MA. 2. 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. brought to the CA on questions of fact. SY. Within 20 days from the receipt. YRIZ TAMIE A. JUSTICE JAIME M. GRETCHEN C. PLATON III. Rule 41). or Petition for review on certiorari – to the SC (governed by Rule 45. DONNA GRAGASIN. only one issue involved – No subject index or assignment of errors. 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. A: Brief Ordinary appeals Filed within 45 days Contents specified by rules Memorandum Certiorari. DUMLAO. SUBJECT HEADS: DARRELL L. LIM. 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. RHONDEE E. Within 45 days from the receipt of the notice of the clerk of court. the appellant may file a reply brief Note: In petitions for certiorari. Rule 44). Rule 50 (Regalado. Rule 44). PINEDA. BAGANG. AQUINO. the clerk of court of the CA shall docket the case and notify the parties 2. taken to the CA on questions of fact or mixed questions of fact and law). 526. DIANE CAMILLA R. MARIANO.UST GOLDEN NOTES 2011 i. ASST. UNICA AMOR R. 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. quo warranto and habeas corpus cases Filed within 30 days Shorter. quo warranto and habeas corpus cases. briefer. MARA KHRISNA CHARMINA F. Within 45 days from the receipt of the appellant’s brief. of law. prohibition.). ALBAÑA. MEMBERS: AKEMI B. QUIAMBAO. JR. AIDA. JUSTICE OSCAR C. 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.

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

Q: The RTC affirmed the appealed decision of the MTC. TERESE RAY-ANNE O. 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. PLATON III.. KATRINA NADINE G. PINEDA. Order execution pending appeal in accordance with sec. AIDA. BAGANG. 1. Rule 42) Q: Is the doctrine of residual jurisdiction applicable to Appeals under Rule 42? A: Yes. the deposit for costs. JUSTICE OSCAR C. the issues raised. Within what time and in what court should you file your appeal? A: 1. 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. MARA KHRISNA CHARMINA F. 5. Set forth concisely a statement of the matters involved. Q: What are the contents of the petition for review? A: 1. QUIAMBAO. MICHAEL ANGELO V. 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. State the full names of the parties to the case. MA. You are the counsel of the defeated party and he tells you to appeal the RTC's decision. or both. RHONDEE E. the specification of errors of fact or law. certified correct by the clerk of court of the Regional Trial Court. 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. LIM. MANANQUIL. 1. 4. (Sec. ALBAÑA. and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof (Sec.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. Rule 41). HERRERA. RONN ROBBY D. DIANE CAMILLA R. There must be a certification against forum shopping (Sec. GRETCHEN C. CONTRIBUTORS: VICENTE JAN O. SY. BORJA. 5. SUBJECT HEAD: ANGELI P. provided that such residual jurisdiction/ power is exercised before the CA gives due course to the petition (Section 8. (Sec. proof of service of the petition. JUANENGO.. ASST. JUSTICE JAIME M. and the reasons or arguments relied upon for the allowance of the appeal. UNICA AMOR R. DUMLAO. What mode of appeal will you adopt? 2. YRIZ TAMIE A. SHERY PAIGE A. 2. 2. Rule 42). State whether or not he accepts the statement of matters involved in the petition. JUDGE CESAR D. 2. 5. rule 39. STAMARIA. 3. ROSALES . or the questions raised therein are too unsubstantial to require consideration. 3. AQUINO. 2. MARIANO. MIJARES. JR. Allow withdrawal of appeal. 3. Indicate the specific material dates showing that it was filed on time. Rule 45). MEMBERS: AKEMI B. allegedly committed by the Regional Trial Court. EDELISE D. 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. 42) Q: What are the contents of comment to the petition? A: 2. DONNA GRAGASIN. SUBJECT HEADS: DARRELL L. and State the reasons why the petition should be denied or dismissed. 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. LANTIN. 3. Q: Is a petition for review a matter of right? A: It is not a matter of right but discretionary on the CA. FLORES. 4. or prosecuted manifestly for delay. SR. without impleading the lower courts or judges thereof either as petitioners or respondents. MENDOZA. Rule 42). KRISTINE P. Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues. (1998 Bar Question) Must be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts. The mode of appeal is by petition for review under Rule 42 of the Rules of Court.

7. 3.1 Rule 50. Rule 102). February 17. In annulment of judgment under Secs. Under Sec.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. upon its own motion or upon the motion of the appellee an appeal may be dismissed on the following grounds: 1. Rule 53). ACADEMICS CHAIR: LESTER JAY ALAN E. When a motion for new trial is granted by the CA. after which trial will follow. October 17. Note: The grounds are discretionary upon the appellate court. Flores. In petition for writs of amparo and habeas data. Unauthorized alterations. 2006).13. (d) and (f) of Rule 44. Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders. whenever necessary to resolve factual issues. 5 and 6. Rule 42). 8. unless the CA. Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules. Q: Give some instances where the CA may act as a trial court. 165622. Rule 46. keeping in mind the circumstances obtaining in each case (Mercury Drug Corporation vs. or reclusion perpetua where the an appeal is a matter of right leaving the reviewing court without any discretion (People v. G. Failure of the appellant to pay the docket and other lawful fees as provided in Section 5 Rule 40 and Sec. the law or the rules shall provide otherwise. Failure to file the notice of appeal or the record on appeal within the period prescribed by the Rules. 12. the CA. A petition for habeas corpus shall be set for hearing (Sec.R. omissions or additions in the approved record on appeal as provided in Sec. Human Security Act. MASACAYAN & THEENA C. (2008 Bar Question) 5. as a rule. Note: Civil cases decided under the Rules on Summary Procedure shall not be stayed (Section 8b. or directives of the court without justifiable cause. Q: What are the grounds for the Court of Appeals to dismiss an appeal? A: Under Sec. A: 1. 4. 6. This indicates that it is only directory and not mandatory. a hearing can be conducted. Sound discretion must be exercised in consonance with the tenets of justice and fair play. The CA can grant a new trial based on the ground of newly-discovered evidence (Sec. 14. De Leon. Rule 124 of the Rules of Criminal Procedure. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. receive evidence and perform any and all acts necessary to resolve factual issues which fall within its original and appellate jurisdiction. 9. The very wording of the rule uses the word “may” instead of “shall”. 12. January 31. MARTINEZ 91 . Rule 47. 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. 2. The CA under Sec. SABUGO & JOHN HENRY C. GR No. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. where the procedure in ordinary civil cases shall be observed. 4 of Rule 41. 1998) 6. Absence of specific assignment of errors in the appellant’s brief. 4. 3. 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. 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. 7. the same shall be given due course and summons shall be served on the respondent. and The fact that the order or judgment appealed from is not appealable (En Banc Resolution. (c).CIVIL PROCEDURE Q: What is the effect of an appeal to the judgment or final order? A: The appeal. 170565. 4. Should the CA find prima facie merit in the petition. or of page references to the record as required in Sec. 5. shall stay the judgment or final order. but of sound judicial discretion with the exception of cases where the penalty of death.) 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. circulars. No. Rule 124). the procedure in the new trial shall be the same as that granted by a RTC (Sec. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. the CA has the power to try cases and conduct hearings. 2008. 2. 6. paragraphs (a).

08-1-16-SC. Rule 45 as amended by AM No. DONNA GRAGASIN. 4. SUBJECT HEAD: ANGELI P. Except in criminal cases where the penalty imposed is death. STAMARIA. Desierto. 3. MIJARES. 166408 October 6. where a case is decided by the RTC in the exercise of its appellate jurisdiction. 2007). CONTRIBUTORS: VICENTE JAN O.. Q: Discuss the procedure for filing an appeal by certiorari. 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. JR. 6. but only from judgments and final orders of the court enumerated in Sec. JUANENGO. regardless of whether the appellant raises questions of fact. SR. Section 1. MEMBERS: AKEMI B. ASST. ROSALES . No. of law or mixed questions of fact and law. JUDGE CESAR D. MANANQUIL. (Fabian v. Appeal from the judgment. MICHAEL ANGELO V. LANTIN. 2. PINEDA. Rule 45). MA. TERESE RAY-ANNE O. the appeal shall be brought to the CA by filing a petition for review under Rule 42 (Quezon City v.. Appeal from judgment or final order in a petition for the writ of Habeas Data. 92 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. BAGANG. If given due course. final order or resolutions of the Sandiganbayan where the petition shall raise only questions of law (Section 1. EDELISE D. AQUINO. JUSTICE JAIME M. Appeals from the decision or ruling of the Court of Tax Appeals en banc (Section 11. Rule 45). No. PLATON III. Appeals from a judgment or final order in a petition for writ of amparo to the Supreme Court which may raise questions of fact. or require the appellee to comment.UST GOLDEN NOTES 2011 1. GRETCHEN C. 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. SHERY PAIGE A. 129742. 2008). Rule on the Writ of Habeas Data (Section 19) February 2. reclusion perpetua or life imprisonment (Section 9. reverse. Rule 41). RA 9282. 07-7-12-SC). SUBJECT HEADS: DARRELL L. Rule 45 as amended by A. Q: Does Rule 45 include appeals from quasijudicial bodies? A: No. HERRERA. questions of law or of both fact and law (AM No. Rule on the Writ of Amparo (Section19) October 24. 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. 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. GR No. SY. 2008). or modify judgment of the lower court. DIANE CAMILLA R. Petitioner serves copies on adverse parties and the lower court and pays the corresponding docket fees. Sandiganbayan or RTC renders decision. RONN ROBBY D. G. final order or resolutions of the Court of Appeals where the petition shall raise only questions of law (Section 1. 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. ALBAÑA. DUMLAO. AIDA. Appeal from the judgment. A: RTC. SC may either dismiss the petition. SC may affirm. Under the present Rule 45. 5. UNICA AMOR R. MARIANO.R. 1. 08-1-16-SC. ABS-CBN Broadcasting Corporation. 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. Sept. FLORES. RHONDEE E. KRISTINE P. 1998) Q: Is the mode of appeal prescribed under Rule 45 applicable to criminal cases? A: Yes. JUSTICE OSCAR C. 07-7-12-SC). 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.M. The appeal may raise questions of fact or law or both (AM No. QUIAMBAO. YRIZ TAMIE A. 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. MENDOZA. BORJA. 1 thereof. MARA KHRISNA CHARMINA F. KATRINA NADINE G. 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. 16. LIM. Rule 45). parties may submit memoranda.

FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. order or resolution sought to be assailed and in case a MR or motion for new trial is timely filed. MTRCB. 3. or That the questions raised therein are too unsubstantial to require consideration (sec. MARTINEZ 93 .CIVIL PROCEDURE With the SC (Section 5 (1) Article VIII. XPN: Where the rights of such parties are so interwoven and dependent on each other as to be inseparable due to community of interests. Q: When may the SC. GR No. The SC shall not entertain questions of fact because its jurisdiction is limited to reviewing errors of law (Natividad v. a prior MR Does not stay the judgment or order subject of the petition unless enjoined or restrained. 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. 3. Rule 45) Q: Distinguish Certiorari under Rule 45 and Certiorari under Rule 65. The appeal is without merit. 5. the 60 day period shall be counted from the notice of denial of said motion Requires as a general rule. 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. A: CERTIORARI (RULE 45) Mode of appeal which seeks to review final judgments and orders (Section 2. an original action (Rule 65). or death penalty (subject to automatic review). The judgment is based on misapprehension of facts. surmises and conjectures. With the CA (Section 9. The tribunal. 2. j. It may be directed against an interlocutory order or matters where no appeal may be taken from (Section 1. Appeals to the SC are made only by verified petitions for review on certiorari. Rule 41) CERTIORARI (RULE 65) Special civil action. SABUGO & JOHN HENRY C. The inference made is manifestly mistaken. officer exercising judicial or quasijudicial functions is impleaded as respondent (Section 5 Rule 65). Filed with the RTC (Section 21. XPNs: 1. ACADEMICS CHAIR: LESTER JAY ALAN E. Prosecuted manifestly for delay. Filed with the SC (Section 1. Rule 45). 4. The findings of facts are conflicting. whether such motion is required or not. which must be distinctly set forth. 2007). The conclusion of the CA is grounded entirely on speculations. on its own initiative. December 13. absurd or impossible. 161422.5. Rule 41) Raises questions of jurisdiction It shall be filed not later than 60 days from notice of judgment. BP 129). 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. BP 129). Within 20 days from the receipt. Rule 45). 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. There is grave abuse of discretion. board. MASACAYAN & THEENA C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. deny the petition for review? A: 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2. 6. the appellant may file a reply brief Note: the petition shall raise only questions of law. XPN: appeals from judgements of the RTC in criminal cases where the penalty imposed is life imprisonment or reclusion perpetua (elevated by ordinary appeal). 1987 Constitution).

COA and CSC? A: A judgment. AQUINO. Hence. 356 SCRA 787). 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. RONN ROBBY D. TERESE RAY-ANNE O. Those filed under Writs of amparo.M. or 11. the aggrieved party may file a petition for certiorari with the SC under Rule 65 (Enemecio vs. LANTIN. 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. 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. PINEDA. YRIZ TAMIE A. Rule 45). SY.UST GOLDEN NOTES 2011 7. A decision of a division of the CTA is appealable within 15 days to the CTA en banc. p. R. DIANE CAMILLA R. Does the CA have jurisdiction over Melissa's petition? A: No. So. UNICA AMOR R. ROSALES . SUBJECT HEAD: ANGELI P. On the other hand. Rule 64). RHONDEE E.A. Office of the Ombudsman. 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.. JUSTICE JAIME M. The findings of facts are conclusions without citation of specific evidence on which they are based. 8. CONTRIBUTORS: VICENTE JAN O. the rulings of the Office of the Ombudsman are appealable to the CA under Rule 43. or kalikasan.A. MENDOZA. MEMBERS: AKEMI B. the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. No. HERRERA. JUANENGO. Melissa's complaint was dismissed. JUSTICE OSCAR C. 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. 3 Rule 43). 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. On the other hand. FLORES. The findings are contrary to those of the trial court. SHERY PAIGE A. The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record. STAMARIA. JR. k. A. 1. R. DUMLAO. she filed with the CA a petition for certiorari under Rule 65. 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. KRISTINE P. to 94 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 9282. ALBAÑA. 9. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COA m. PLATON III. but it was not acted upon. final orders or resolutions of the CSC may be taken to the CA under Rule 43 of the Rules of Court (Sec. (2006 Bar Question) l. MICHAEL ANGELO V. MARIANO. JUDGE CESAR D. 2. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COMELEC n. GRETCHEN C. EDELISE D. 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. Q: Melissa filed with the BIR a complaint for refund of taxes paid. In criminal cases. judgments. she filed a similar complaint with the CTA raffled to one of its divisions. 10. BORJA. MANANQUIL. MIJARES. 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. BAGANG. The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents. LIM. In administrative disciplinary cases. Deseirto. 12. Thus.. QUIAMBAO. SUBJECT HEADS: DARRELL L. habeas data. ASST. AIDA. DONNA GRAGASIN. 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. MARA KHRISNA CHARMINA F. o. KATRINA NADINE G. 2. 07-7-12-SC). MA. SR.

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

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

5. 2. or The petitioner has been prevented from taking an appeal by fraud. it shall dismiss the petition. The remedy is to appeal from the judgment (Section 9. 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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 38) b. 2. Legal remedy. If the petition is filed because of the first ground. GROUNDS FOR AVAILING OF THE REMEDY Q: What are the grounds for petition for relief? A: 1. 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. Q: Where should the petition be filed? A: 1. Rule 38) Q: Is the remedy of preliminary injunction available pending the resolution of the petition for relief? A: Yes. or even summoned to appear therein. or any other proceeding is thereafter taken against a party in any court through fraud. 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 . Filed within the time to appeal.CIVIL PROCEDURE evidence Grounds for motion for reconsideration: the damages awarded are excessive. or that the decision or final order is contrary to law (Sec. Rule 38). 3). 1. A person who was never a party to the case. Rule 38).).Rule 38. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or other proceeding to be set aside. order or other proceeding (Sec. If the allegations are true. The two remedies are exclusive of one another. the petition shall be filed in such court and in the same case (not in another or higher court). Rule 38). Note: These two periods must concur and are also not extendible and never interrupted (Riano. A judgment or final order is entered. 479. Within sixty (60) days after the petitioner learns of the judgment. accident. 6. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. CA. 2. the remedy is appropriate special civil action under Rule 65 Equitable remedy. The order of denial is not appealable. accident. (Alaban v. 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. the court shall set aside the judgment. Rule 38). SABUGO & JOHN HENRY C. Francisco v. 1). order or proceeding be set aside (Sec. or excusable negligence (Sec. mistake. 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. (Sec. mistake. The remedy is to appeal from judgment or final order. 1. Civil Procedure: A Restatement for the Bar. cannot avail of a petition for relief from judgment. 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. 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. Puno. Petition must be verified. 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. The petition shall pray that the judgment. final order or proceeding complained of. that the evidence is insufficient to justify the decision or final order. 2. 2. final order. and Not more than six (6) months from entry of such judgment. MASACAYAN & THEENA C. 108 SCRA 427). p. a. Motion need not be verified. or excusable negligence (Sec. 2009 ed. If the petition is filed under the second ground. Note: The bond is conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits. TIME TO FILE PETITION Q: When should the petition for relief be filed? A: 1.

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

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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. Prior to the due date for the payment of the balance. Rhea issued Jenny an Allied check in the amount of P750. Rule 47). Is the CA correct? 2. 9.000 which. on its face is null and void. Rhea filed a petition in the CA seeking to annul and set aside the trial court’s decision on the ground of extrinsic fraud. Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled is promulgated. Q: Rhea took out a loan of P1 Million from Jenny. Rhea then remitted P600. MARTINEZ 99 . 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. September 23. as where it is patent that the court which rendered such judgment has no jurisdiction (Co vs. the action must be filed within four (4) years from its discovery. Here. 196 SCRA 705). amount of the dishonored check. MASACAYAN & THEENA C. 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. 8. The ordinary remedies of new trial. 2. upon motion.7. an attack on the judgment is made as an incident in said action. 148211. In this sense. 2005). Nite.The court. Rule 47). COLLATERAL ATTACK OF JUDGMENTS Q: What is a collateral attack on judgment? A: It is made in another action to obtain a different relief. DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL. c. To secure the loan. PERIOD TO FILE ACTION Q: What is the period to file an action? A: 1. or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. b. 454 SCRA 612). It can be filed by one who was not a party to the case in which the assailed judgment was rendered. Rhea may avail of the remedy of annulment of judgment under Rule 47. If based on extrinsic fraud. EFFECTS OF JUDGMENTS OF ANNULMENT Q: What is the effect of a judgment of annulment? A: If based on lack of jurisdiction. Q. however. This is proper only when the judgment. Rule 47). The appellate court granted Rhea’s petition.000 to Jenny as partial payment of the loan with the balance payable at a later date. CA. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. was dishonored due to a material alteration. Jenny filed an action for a sum of money and damages against Allied for the full ACADEMICS CHAIR: LESTER JAY ALAN E. Singson. 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. 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. 1. 156021. No. 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. FOR PURPOSES OF EXECUTION Q: What is meant by final judgment? A: 1.000 drawn on Rhea’s account which was duly received by Jenny. Allied remitted to the sheriff a manager’s check amounting to P800. 5. 2006). SABUGO & JOHN HENRY C. be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. A: Yes. The term “final” when used to describe a judgment may be used in two senses. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. G. If based on extrinsic fraud. In the first. But shall not however.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. vs. GR no. July 25. may order the trial court to try the case as if a motion for new trial was granted (Sec. Court of Appeals. EXECUTION. the action must be brought before the action is barred by laches or estoppel (Sec.R. If based on lack of jurisdiction. The trial court ruled in favor of Jenny.

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

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

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

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

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

the officer shall not destroy. v. the officer shall demand the losing party to peaceably vacate the property within 3 working days. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS Q: What are considered specific acts? A: 1. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. When the judgment obligee is not present at the time the judgment obligor makes the payment. if a party fails to comply with the time specified.I No. 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. and restore possession to the judgment oblige. Conveyance. otherwise the officer shall oust such disobedient party. 2. demolish or remove the improvements upon special order of the court. remedy is not contempt. delivery of deeds. 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. Sell such property and apply the proceeds in conformity with the judgment. In judgments for the delivery of personal property. MASACAYAN & THEENA C. Feb. 37 and 43). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 3. issued upon motion of the judgment obligee. The sheriff must oust the party. or other specific acts vesting title.CIVIL PROCEDURE information that a bank holds a substantial deposit belonging to the judgment obligor. or other specific acts. the sheriff is authorized to receive it. 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. 2010). Delivery or restitution of real property 1. If the party refuses to deliver. 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. MARTINEZ 105 .P. 10) Conveyance. delivery of deeds. if not practicable. 07-2615-P). d. 4. vesting title. But if demolition is involved.(2008 Bar Question) Q: How is money judgment implemented if the obligee is absent at the time of payment? A: Sec. the court may direct the act to be done at the cost of the disobedient party. In case of delivery or restitution of real properties. Removal of improvements on property subject of execution. 3. demolish or remove improvements except upon special order of the court. In case of removal of improvements on property subject of execution. P-10-2772 (formerly A. Sale of real or personal property. No. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. In case of conveyance. Delivery or restitution of real property. 16. 5. 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. The officer may destroy. there must be a special order. deposited in a fiduciary account with the nearest government depository bank. 2. The officer shall take possession and deliver to the party entitled thereto. However. and Judgments for the delivery of personal property. 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. 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. If party refuses to vacate property. SABUGO & JOHN HENRY C. 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. Jr. OCA I. 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. Rule 39 lays down the procedure to be followed by the sheriff in implementing money judgments. 4. Regalado II. A.M.M. 9.

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

3. CA 458) 2. and 11.000 in value.3. 12. Produce. MASACAYAN & THEENA C. Backpay of pre-war civilian employees (RA 304) 5. SABUGO & JOHN HENRY C. 13). pharmacists. Ordinary tools and implements personally used by him in his trade. His necessary clothing and articles for ordinary personal use. 10. MARTINEZ 107 . 3 horses. Benefit payments from the SSS (Sec 16 RA 1161 as amended by PDs 24. 5. CIR L-17874 31 August 1963) (Regalado. 9 ed. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS Q: When can you file a third party claim? A: At any time. or money or property obtained as such support. benefits. Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4. The claimant is a person other than the judgment obligor or his agent. engineers. 481-482) 5. 7. clergymen. Q: What are the requisites for a claim by a third person? A: Requisites for a claim by a third person: 1. such as the judgment obligor may select necessarily used by him in his ordinary occupation. Property taken over by Alien Property Administration (Section 9[f]. or carabaos. shelter. or the homestead in which he resides. and used for that purpose by the judgment obligor and his family. th Remedial Law Compendium Vol. US Trading with the Enemy Act) 3. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 65. and 177) 10. Bonds issued under RA1000 (NASSCO v. 8.000 owned by a fisherman and by the lawful use of which he earns his livelihood. surveyors. RA 6389) 7. and land necessarily used in connection therewith.. so long as the sheriff has the possession of the property levied upon. employment or livelihood. except for debts incurred for food. The property is levied. not exceeding P300. 4. Philippine Government backpay to guerillas (RA 897) 6. and farm implements of agricultural lessees. Copyrights and other rights in intellectual property under the former copyright law (PD 49 cf Sec 239. 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. such as the judgment obligor may select. Property mortgaged to DBP (Sec 26. The right to receive legal support. RA 8293). 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.CIVIL PROCEDURE Q: What are other properties ESPECIALLY exempt from execution? 4. and Serves the same upon the officer making the levy and the judgment obligee. NCC) 9. 1. 1. with limitations (RA 4917) 8. Lettered gravestones. 6. privileges. Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title. or before the property is sold under execution. Household furniture and utensils necessary for housekeeping. lawyers. or any pension or gratuity from the government. clothing. and medical attendance (Art 1708. The judgment obligor’s family home as provided by law. or annuities accruing or in any manner growing out of any life insurance. or other beasts of burden. Provisions for individual or family use sufficient for 4 months. work animals. subject to limitations (Sec 21. 9. and other professionals. 13. dentists. physicians. 3. F. PROPERTIES EXEMPT FROM EXECUTION A: Q: What are the properties exempt from execution? A: 1. The professional libraries and equipment of judges. of a value not exceeding P100. 1 fishing boat and accessories not exceeding the total value of P100. excluding jewelry. and Properties specially exempted by law. So much of the salaries. cows. 2. ACADEMICS CHAIR: LESTER JAY ALAN E. teachers.000. 2. Monies. wages. 11. 4. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Labor wages. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. pp. Benefits from private retirement systems of companies and establishments.

BAGANG. SUBJECT HEAD: ANGELI P. 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. FLORES. In resolving the application. Upon service of the affidavit upon him. A: No. on demand of the officer. AIDA. Conformably with the said writ. Cathy can file a separate action to enforce his third-party claim. UNICA AMOR R. YRIZ TAMIE A. GRETCHEN C. or any officer duly representing it. LANTIN. and in case the sheriff or levying officer is sued for damages as a result of the levy. (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. 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. 14. 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. 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. SHERY PAIGE A. In case of disagreement as to such value. a. 140889. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action. ROSALES . RONN ROBBY D. since no bond was filed by Allen. AQUINO. CONTRIBUTORS: VICENTE JAN O. ASST. Rule 57). After the finality of the decision. the sheriff is liable to Cathy for damages. G. DIANE CAMILLA R. SR. JUSTICE OSCAR C. After due hearing. TERESE RAY-ANNE O. stating the grounds of such right or title. ALBAÑA. Q: Allen obtained a money judgment against Bob. Cathy has not been impleaded as a party defendant. MICHAEL ANGELO V. 108 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. In fact. KRISTINE P. RHONDEE E. stating the grounds of such right or title. Cathy filed a third-party claim over said properties claiming that Bob had already transferred the same to him. he shall be represented by the Solicitor General and if held liable therefor.. Terceria – By making an affidavit of his title thereto or his right to possession thereof. 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. SUBJECT HEADS: DARRELL L.. JUSTICE JAIME M. MENDOZA. KATRINA NADINE G. However. the filing of such bond shall not be required. DUMLAO. 2002). BORJA. the sheriff shall not be liable for damages for the taking or keeping of the property. MARIANO. QUIAMBAO. He cannot be held liable for the judgment against Bob without a trial. No. the 2. and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee. EDELISE D. unless such judgment obligee. DONNA GRAGASIN. MEMBERS: AKEMI B. JUANENGO. JR. 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. SY. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. MANANQUIL. is there a necessity for filing a bond? A: When the writ of execution is issued in favor of the Republic of the Philippines. or right of possession thereof. 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. The officer shall not be liable for damages for the taking or keeping of the property. Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment. STAMARIA. the court issued a writ of execution for the enforcement thereof. LIM. the sheriff levied upon certain properties under Bob's name.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. Allen moved to deny the third-party claim and to hold Bob and Cathy jointly and severally liable to him. It is in that suit that Allen can raise the ground of fraud against Cathy. MARA KHRISNA CHARMINA F. PLATON III. and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. and such person makes an affidavit of his title thereto or right to the possession thereof. the same shall be determined by the court issuing the writ of execution. to any third-party claimant if such bond is filed. if such bond shall be filed. the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. Samson. The affidavit must be served upon the sheriff and the attaching party (Sec. JUDGE CESAR D. the execution may proceed where there is a finding that the claim is fraudulent (Tanongan v. May 9. Is the ruling of the court correct'? Explain. MA. PINEDA. MIJARES. the officer shall not be bound to keep the property. 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.R. HERRERA.

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

BAGANG. DONNA GRAGASIN. 6. other than the judgment under which such purchase was made. QUIAMBAO. If the court finds. 2. To remain in possession of the property until the expiration of period of redemption. DIANE CAMILLA R. MENDOZA. the court may order the sale of such interest (Sec. 110 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. mortgagee. or Bring an action to recover possession of property. LIM. 2. With 1 percent per month interest up to the time of redemption. 3. ROSALES . 31). SY. 4. Bring an action against the judgment creditor. 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. The fact that the property was exempt from execution. KATRINA NADINE G. File a motion for revival of judgment in his name against the judgment debtor. 7. JUSTICE JAIME M. DUMLAO. 36) (2008 Bar Question). SHERY PAIGE A. ASST. amount of any assessments or taxes which the purchaser may have paid after purchase. 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. MEMBERS: AKEMI B. GRETCHEN C.. MARA KHRISNA CHARMINA F. EDELISE D. MICHAEL ANGELO V. SR. 2. If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs. the court may order the property applied to the satisfaction of the judgment (Sec. the amount of his purchase. HERRERA. if the purchaser be also a creditor having a prior lien to that of the redemptioner. UNICA AMOR R. and 2. LANTIN. SUBJECT HEADS: DARRELL L. it may order payment in fixed monthly installments (Sec. FLORES. JUANENGO. 33). 37). If the purchaser or his successor-ininterest fails to recover possession of the property sold on execution sale. or Is evicted due to: 1. and 4. AQUINO.. 2. If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor. BORJA. JR. MANANQUIL. 5. JUSTICE OSCAR C. AIDA. 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. the amount of such other lien. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED Q: What is the effect when the judgment was returned unsatisfied? A: 1. Q: What is the remedy of purchaser of real property sold on execution in the above situations? A: 1. PLATON III. and Use it in the ordinary course of husbandry (Sec. To use the property in the same manner it was previously used.UST GOLDEN NOTES 2011 time within 1 year from the date of the registration of the certificate of sale by paying the purchaser: 1. YRIZ TAMIE A. 34). CONTRIBUTORS: VICENTE JAN O. MIJARES. 3. 40). To collect rents and profits until the expiration of period of redemption (Sec. 41). RONN ROBBY D. KRISTINE P. 42). 37). 4. Q: What are the instances when the purchaser may recover the purchase price from the judgment obligor? 4. or otherwise. ALBAÑA. TERESE RAY-ANNE O. 3. MA. Irregularities in the proceedings concerning the sale. RHONDEE E. after examination. and his interest can be ascertained without controversy. XPN: The right to redeem is exercised through the filing of a complaint to redeem in the courts. The judgment creditor may cause examination of the judgment debtor as to his property and income (Sec. 5. 3. JUDGE CESAR D. 32). Reversal or setting aside of judgment. MARIANO. 2. Q: What are the rights of a judgment debtor? A: 1. To make necessary repairs. STAMARIA. or If a third person has vindicated his claim to the property (Sec. that there is property of the judgment debtor either in his own hands or that of any person. PINEDA. 3. SUBJECT HEAD: ANGELI P. A: 1. 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.

MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. litigating for the same thing and under the same title and the same capacity. As the writ was returned unsatisfied. status or relationship (Sec. 2. Anna filed a motion for an order requiring Betsie to appear before it and be examined regarding his property and income. relationship (Sec. requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it. It cannot refuse execution and is compellable by mandamus. Bulacan. Rule 39). EFFECT OF JUDGMENT OR FINAL ORDERS Q: What is the effect of final judgments? ACADEMICS CHAIR: LESTER JAY ALAN E. The trial court rendered judgment holding Anna liable for the entire amount prayed for in the complaint. a writ of execution was issued by the court. that only is deemed to be adjudged in a former judgment or final order which appear upon its face to have been adjudged. 3. When a writ of execution is returned unsatisfied. After the judgment had become final. the judgment or final order is conclusive upon the condition. 2. In other cases. to appear before the court or commissioner to testify as provided in Sec 36 & 37. With respect to the personal. If judgment or final order is on a specific thing. Failure to obey may be punished by contempt. by an order of subpoena. sued Betsie resident of Malolos. (2002 Bar Question) 8. 9. political or legal condition or status of a particular person or his relationship to another. Change in the situation of the parties which makes the execution inequitable or unjust. or denies the debt. If examination is before a commissioner. With respect to a probate of a will. Controversy was never submitted to the judgment of the court. Execution is sought against property exempt from execution. claims an adverse interest in the property. 4. the same is conclusive upon the title to thing (Sec. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 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. Betsie resides in Malolos. 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. shall be entitled to an order from the court which rendered the said judgment. Bulacan. 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. In any other litigation between the same parties or their successors in interest. SABUGO & JOHN HENRY C. MARTINEZ 111 . Rule 39). 4. in the RTC Manila for a sum of money.CIVIL PROCEDURE 7. 47. requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). 5. How should the court resolve the motion? A: The RTC Manila should deny the motion. A: 1. XPN: (Same as grounds to Quash writ of execution) 1. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 39). MASACAYAN & THEENA C. at any time after such return is made. Writ of execution varies judgment. All examinations and answers must be under oath. or the administration of the estate of a deceased person. If the person alleged to have the property of the judgment debtor or be indebted to him. 3. he must take it in writing and certify it to the court. 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.47.47. Note: A party or other person may be compelled. or which was actually and necessarily included therein or necessary thereto (Sec. Q: Anna. Rule 39). Q: When the judgment is final and executory. 43). 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. the judgment obligee. the court may authorize the judgment creditor to institute an action to recover the property.47. a Manila resident.47. 36). Note: The garnishee becomes a forced intervenor. Rule 39). 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. forbid its transfer and may punish disobedience for contempt (Sec. However.

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

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

when the property has been concealed. JUSTICE JAIME M. YRIZ TAMIE A. In an action against a party who has been guilty of fraud in contracting the debt or incurring the 1. In foreclosure of mortgage. AQUINO. continuance or nonperformance of the act during the litigation would probably work injustice to the applicant. 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. MEMBERS: AKEMI B. against a party who is about to depart from the Philippines with intent to defraud his creditors.No. EDELISE D. SY. MARIANO. Commission. 1982) doing a particular act or to require the performance of a particular act To prevent future injury and maintain the status quo. DUMLAO. 3) Ground(s) 1. 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. MICHAEL ANGELO V. (1999 Bar Question) action is pending in court. or by any other person in a fiduciary capacity. After judgment. or is attempting to do. AIDA. or is procuring or suffering to be done. property. JUDGE CESAR D. MA. GR: In an action for the recovery of a specified amount or damages. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer. The owner of the property claimed.R. removed or disposed of to prevent its being found or taken by the applicant or an authorized person. RONN ROBBY D. KRISTINE P. moral and exemplary b. QUIAMBAO. KATRINA NADINE G. CA.1. 3. PINEDA. G. Nov. Entitled to the possession thereof but the property is wrongfully detained by the adverse party (Sec. SUBJECT HEAD: ANGELI P. PLATON III. 3. 2. When the applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost. SR. TERESE RAY-ANNE O. LANTIN. 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. 1.L54158. or in requiring the performance of an act for a limited period or perpetually 2. In an action to recover the possession of property unjustly or fraudulently taken. 2. HERRERA. 19. or 3. 2) When equity and justice require. STAMARIA. LIM. 17. court. GRETCHEN C. (Quasha v..R. That the applicant is entitled to the relief demanded which consists in restraining the commission or continuance of the act complained of. removed or materially injured unless a receiver is appointed. ASST. DIANE CAMILLA R. (Kencht v. BORJA. 97962. or for a willful violation of duty. Juan. XPN: a.G. CONTRIBUTORS: VICENTE JAN O. agency or a person is doing. MENDOZA. MANANQUIL. 4. No. 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. BAGANG. 2. JR.UST GOLDEN NOTES 2011 advance for the satisfaction of judgment that may be recovered in cases falling under Sec. Rule 57. 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. or 2. FLORES. ALBAÑA. DONNA GRAGASIN. JUSTICE OSCAR C. Party. MIJARES. SUBJECT HEADS: DARRELL L. MARA KHRISNA CHARMINA F. SHERY PAIGE A. 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. Nov. UNICA AMOR R. ROSALES . detained or converted. JUANENGO. threatening. RHONDEE E..

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. In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived. administering or disposing of the property in litigation (Sec. No Yes Not required . Whether principal or ancillary action Ancillary to: 1. When appointment of receiver is the most convenient and feasible means of preserving. reserved or instituted prior to its filing. Rule 57. 4. MASACAYAN & THEENA C. or 4. or otherwise to carry the judgment into effect. Sec. 6. or 2. or is about to do so.CIVIL PROCEDURE obligation or in its performance 5. Requirement of Hearing GR: Required XPN: Great or Not required. Rule 59 ) 2 bond requirement for receivership: 1. During the pendency of the case. Sec. 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. Rule 58. and 2. In an action against a party who does not reside and is not found in the Philippines. 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. 2. In an action against a party who has removed or disposed of his property. 2) No bond required. 115 . Filed by the applicant. 4. with intent to defraud his creditors. 1). 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. SABUGO & JOHN HENRY C. 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. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Filed by the receiver. or on whom summons may be served by publication his property in satisfaction of the judgment. MARTINEZ Yes Not applicable. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Action for support. 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. 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.

discharge shall be limited to the excess (Sec. Sec. Rule 60) the person who . SUBJECT HEADS: DARRELL L. JUSTICE OSCAR C. ALBAÑA. liable therefor. 8. BAGANG. LANTIN. SUBJECT HEAD: ANGELI P. LIM. HERRERA. Rule 59. 12) applicant can be fully court (Sec. STAMARIA. MARIANO. MARA KHRISNA CHARMINA F. YRIZ TAMIE A. and to return the amounts 3. Rule 57. 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. EDELISE D. AIDA. against attaching not replaced with 2. CONTRIBUTORS: VICENTE JAN O. MEMBERS: AKEMI B. MICHAEL ANGELO V. RONN ROBBY D. Property attached is insufficient/ defective). ASST. reimburse the amount. BORJA. JUANENGO. SY. Insufficiency of the was obtained (Sec. Property is not upon affidavits of the receiver is (Sec. SR. the court 2.. Sec. 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. RHONDEE E. 20. KRISTINE P. Plaintiff’s bond is 1. Other grounds (e. SHERY PAIGE A. Attachment is plaintiff for any enjoined 3). Appointment insufficiency of bond. DIANE CAMILLA R. GRETCHEN C. showing right shall order the recipient to damages and amount thereof. ROSALES . DONNA GRAGASIN. Bond posted by 3. JUSTICE JAIME M.. MANANQUIL. TERESE RAY-ANNE O. 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. be fixed by the double the value of counter-bond (Sec. Improper or irregular issuance or enforcement or 1. AQUINO. 6). PINEDA. Judgment rendered defective and is sufficient cause. Rule 58. excessive. UNICA AMOR R. 3) the property (Sec. 9. 7) 116 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. The recovery of damages cannot be had in a separate action. Such damages may be awarded only after proper hearing and shall be included in the already received with judgment of the main case. counter-bond alone will not suffice to discharge the injunction (Sec. MIJARES. KATRINA NADINE G. creditor (Sec. MENDOZA.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. but the reason (Sec. FLORES. 10. Appellate court may allow application to be heard separate action from and decided by the trial court. 13). or applicant’s bond is 2. 4. QUIAMBAO. 6) Other Grounds For Discharge 1. DUMLAO. 19) proper bond. 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. separate action from the person legally obliged to give such support (Sec. 9) without 2. JR. interest from the date of actual payment. JUDGE CESAR D. 5) compensated for such damages as he may suffer. the applicant / exempt from execution 2. Sec. Party who availed of provisional remedy and his surety must be notified. 2 & 5) delivered to the party or person insufficient (Sec. 13) insufficient or application (Sec. MA. the person legally obliged to give support. PLATON III. 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. 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.g. found to be 1.

To preserve the status quo. 3. however. (Riano. Temporary custody over a minor Deposit in Actions for Annulment of Sale (Reyes v. the RTC or MTC having jurisdiction may also issue the remedy of Support pendent Lite. in crimes against chastity. (e.) 2.) 4.g. Temporary Protection Order b. and for the purpose of the ultimate effects. Q: What is the nature of provisional remedies? A: 1. CA. 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. 3. Q: What are the purposes of provisional remedies? A: Provisional remedies are resorted to: 1. It is not a distinct proceeding and is availed of within a principal action because it is a mere provisional remedy. 2. Attachment. Civil Procedure: A Restatement for the Bar. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2009 ed. p. The grant of remedy is addressed to the discretion of the court. of a final judgment in the case. Even an inferior court may grant such remedy. MARTINEZ 117 . p. 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. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 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. Production Order (Riano. Temporary measures availed of during the pendency of the action Mere incidents and are dependent upon the result of the main action d. PRELIMINARY ATTACHMENT Q: What are the Other Provisional Remedies available? A: 1. A: 1. 5. Civil Procedure: A Restatement for the Bar. (Riano. Inc. 532. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 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. 5. 2009 ed. ACADEMICS CHAIR: LESTER JAY ALAN E. To secure the judgment. Note: This is only an ancillary remedy. There is no separate action called preliminary attachment. Civil Procedure: A Restatement for the Bar. 2009 ed. as long as the civil aspect is tried together with it. 534-536. 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. 3. SABUGO & JOHN HENRY C. 4. To preserve the subject matter of the action. Q: What are the Provisional Remedies under the Rules of Court? 2. “in every case to support the offspring…”) Q: When are these provisional remedies available? A: 1. To preserve or protect their rights or interests while the main action is pending.CIVIL PROCEDURE 1. 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.) XPN: in criminal actions. 2. 2. Witness Protection Order c. 204 SCRA 343). Art 345 (3) RPC.v. Preliminary Attachment (Rule 57) Preliminary Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61) 3. 2. 537. 3. MASACAYAN & THEENA C. 4. p. where the main action is for support.

to his claim or the money in which said third person owes the defendant (RCBC v. 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. Alejandro. PINEDA. LANTIN. L. JR. a cross-claim or a thirdparty claim may also avail of the remedy. 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. HERRERA. Preliminary attachment. 533 SCRA 738). Sec. GRETCHEN C. RHONDEE E. CA. This transformation of the nature of the action dispenses with the need of acquiring jurisdiction over the person of the defendant. ALBAÑA. It should always be accompanied by a sale at public auction. Q: Distinguish Preliminary attachment from Final attachment. November 29.34548. Garnishment simply impounds the property in the possession of the garnishee and maintains the status quo until the main action is finally decided. Q: Who may apply for a preliminary attachment? A: It is not only the plaintiff who may apply for a writ of preliminary attachment. Countryside Rural Bank. A defendant who asserts a counterclaim. 73 Phil. No. JUANENGO. SUBJECT HEADS: DARRELL L. LIM. DUMLAO. 1988). RONN ROBBY D. FLORES.. for the temporary seizure of the property of the adverse party The proceeds of the sale. 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. The proceeds of the sale are turned over to the attaching creditor a. or 2. Note: Whether in rem or quasi in rem. BORJA. 2005). 2009 ed. MICHAEL ANGELO V. MARA KHRISNA CHARMINA F. TERESE RAY-ANNE O. SUBJECT HEAD: ANGELI P. AIDA. SHERY PAIGE A. MARIANO. Castro. KATRINA NADINE G. 1. 451 SCRA 638. 1 of Rule 57 provides that the “plaintiff or any proper party may have the property of the adverse party attached.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.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. 37 Phil 921) although sometimes referred to as an actionin rem (Valdemieso v. JUSTICE OSCAR C.” (Borja v. MIJARES. Resorted to at the commencement of the action or at any time before the entry of judgment. There is no sale because the decision has not yet been rendered. February 17. and for the satisfaction of said judgment. 11) FINAL ATTACHMENT (Rule 39) It is a means for the execution of a final judgment. CONTRIBUTORS: VICENTE JAN O. STAMARIA.the plaintiff seeks to subject either the property of the defendant in the hands of the third person called the garnishee. DIANE CAMILLA R. 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. MA. QUIAMBAO. ROSALES .. 538. 2. Available after the judgment in the main action had become executor. 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. Q: Once prayed for. ASST. in cases allowed. Civil Procedure: A Restatement for the Bar. JUSTICE JAIME M. SY.) Q: What is the nature of the proceeding? A: A: Attachment is in the nature of proceeding quasi in rem (Banco. SR. MENDOZA. UNICA AMOR R. DONNA GRAGASIN. JUDGE CESAR D. Levy on execution. YRIZ TAMIE A.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. PLATON III. p. KRISTINE P. it converts the action to one that is quasi in rem. are in custodial egis (Sec. EDELISE D. MEMBERS: AKEMI B. BAGANG. 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. Garnishment.Espanol Filipino v. Palanca. AQUINO. Platon. 3. Damalerio. 190 SCRA 629). MANANQUIL. 515 SCRA 106). 659) (Riano. PRELIMINARY ATTACHMENT (Rule 57) It is an auxiliary remedy to give security for a judgment still to be rendered.

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

KRISTINE P.Leaving copy of the writ and notice of attachment with person owing or having custody over the property 5. MARA KHRISNA CHARMINA F. AQUINO. royalties. SR. (Torres v. SY. 2. RONN ROBBY D. v. MICHAEL ANGELO V. RHONDEE E. DONNA GRAGASIN. Inc. SUBJECT HEADS: DARRELL L. a copy of the complaint. 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. the application for attachment. it is however necessary for the validity of the ENFORCEMENT of the writ.. 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. BORJA.. JUANENGO. (2005 Bar Question) Note: Where the writ of preliminary attachment had already been implemented.. 3. 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. 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. Real property. the defendant is a resident of the Philippines temporarily absent therefrom. Description of the property c. Rule 57). It makes the writ unenforceable. all that is required is to reserve the writ. File a copy of the Order of Attachment with the proper Registry of Deeds and Occupant or his agent within the province b. b. accompanied by service of summons. DIANE CAMILLA R. 166759. shares or interest – Leaving copy of the writ and notice of attachment with President or Managing Agent 4. ROSALES . application and affidavits for the attachment and the bond upon the adverse party. MARIANO. ASST. DUMLAO. TERESE RAY-ANNE O. or d. the order of attachment and the attachment bond (Davao Light & Power Co. 7. 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. 204 SCRA 343). SHERY PAIGE A. 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. Executor or administrator of estate b. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY Q: How can a property be attached? A: (Sec. MEMBERS: AKEMI B. 204SCRA 343 (1991)). However. This Rule is not necessary for the validity of the ISSUANCE of a writ of attachment (Davao Light v. STAMARIA.R. Notice of attachment 2. financial interests. growing crops or interest therein a. Interest in the estate of a decedent – Leaving copy of writ and notice of attachment with: a. GRETCHEN C. BAGANG. commission and other personal property not capable of manual delivery . JUDGE CESAR D. A notice of garnishment was served by the sheriff upon the bank and summons was subsequently served upon Banjo. PINEDA. MA. CONTRIBUTORS: VICENTE JAN O. JUSTICE JAIME M. A: The motion should be denied. Stocks. v. he wll issue a receipt. e.UST GOLDEN NOTES 2011 1. JUSTICE OSCAR C. The action is in rem or quasi in rem (Sec. Inc. the defendant is a non-resident of the Philippines. 2009) d. November 25. LIM. however. 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. No. Rule 57). the summons could not be served despite diligent efforts. It may also be issued ex parte and even before summons is served upon the defendant. UNICA AMOR R. the writ may not be enforced and may not validly implemented unless preceded by a service of summons. G. c. CA. SUBJECT HEAD: ANGELI P. Clerk of Court where estate is being settled 2. Debts and credits. CA. CA. YRIZ TAMIE A. PLATON III. Personal property capable of manual delivery – sheriff taking into custody and safely keeping it. MIJARES. 172 SCRA 480). MENDOZA. HERRERA. (Onate v. Jurisdiction must first be acquired through valid service of summons first before a preliminary attachment may be enforced. FLORES. AIDA. LANTIN. Rule 57) 1. 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. copy of complaint. ALBAÑA. 5. Abrogar. Satsatin. MANANQUIL. Resolve the motion. QUIAMBAO. EDELISE D. KATRINA NADINE G. JR. bank deposits.

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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UST GOLDEN NOTES 2011 10. JUANENGO. By court motupropio or on motion by either party 2. G. 2. 4. SR. 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. 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.R. 5. 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. 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. STAMARIA. TWO KINDS OF BONDS Q: What is the 2-bond requirement in receivership? A: 1. AIDA. Replevin may be a main action or a provisional remedy. Rule 59) Insufficient or defective receiver’s bond (Sec. 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. personal or incorporeal Recover property being concealed.. 8. Bond posted by the applicant (Sec. 4. Rule 59) 1. CONTRIBUTORS: VICENTE JAN O. QUIAMBAO.) Q: Distinguish attachment. MA. 2. 3. SY. Rule 59) Receiver no longer necessary (Sec. p. Rule 59) Q: How is receivership terminated? A: (Sec. KRISTINE P. August 14. MICHAEL ANGELO V. Rule 59) Bond posted by receiver appointed (Sec. e. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. DUMLAO. MARIANO. TERMIINATION OF RECEIVERSHIP Q: What are the grounds for the discharge of receiver? A: 1. JR. Appointment of receiver was made without sufficient cause (Sec. TERESE RAY-ANNE O. ROSALES . L-25437. DIANE CAMILLA R. the recovery of damages being only incidental (Am. DONNA GRAGASIN. LANTIN. The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession. Rule 59) f. RHONDEE E. 5. MEMBERS: AKEMI B. Based on the following grounds: a. 5. HERRERA. PINEDA. Graño. FLORES. 3. JUSTICE JAIME M. 8. BAGANG. 749. ASST. Receiver asserts ownership over the property (Martinez v. Vol. Remedial Law Compendium. SUBJECT HEADS: DARRELL L. 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. GRETCHEN C. JUDGE CESAR D. Posting of counterbond by adverse party (Sec. MARA KHRISNA CHARMINA F. receiver may be re-appointed (Sec. MIJARES. UNICA AMOR R. JUSTICE OSCAR C. LIM. MENDOZA. 3. I. Sheriff does not take possession of the property attached except contructively placing it under custodia legis. SUBJECT HEAD: ANGELI P. KATRINA NADINE G. MANANQUIL. 1926) 3. After due notice and hearing to all interested party 6. BORJA. 5. 6). Rule 59) in specie. ALBAÑA. YRIZ TAMIE A. Jur. Rule 59) Insufficient or defective applicant’s bond (Sec. SHERY PAIGE A. Rule 59) Note: Where counterbond is insufficient or defective. AQUINO. Note: A writ of replevin may be served anywhere in the Philippines (Regalado. 2005 ed. RONN ROBBY D. No. 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.. Necessity for receiver no longer exists b. EDELISE D. PLATON III.

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

KATRINA NADINE G. If property is concealed. or the prevention or redress of a wrong (Sec. RONN ROBBY D. 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. MENDOZA. AQUINO. MA. it cannot be implemented or enforced if not preceded or accompanied by a service of summons. JUDGE CESAR D. 6. CONTRIBUTORS: VICENTE JAN O. DUMLAO. Rules of Court). UNICA AMOR R. 130 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 5. ROSALES . HERRERA. JUSTICE OSCAR C. SR. make a public demand for the delivery of the property If property is not delivered.UST GOLDEN NOTES 2011 3. Declaratory relief – action is brought before there is any breach 2. LANTIN. Rule 1. BORJA. TERESE RAY-ANNE O. 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. S. rules that are applicable only to specific special civil actions (sec. SUBJECT HEAD: ANGELI P. a special civil action is generally brought or filed for the same purpose. 2. 5. 3 [a].. 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. 3. Q: Is the Rule on Prior or Contemporaneous Service of Summons observed in Replevin? A: Yes. 4. RHONDEE E. MIJARES. MANANQUIL. MARA KHRISNA CHARMINA F. some cannot be commenced therein Q: When may a property subject of replevin be returned? A: 1. PLATON III. MICHAEL ANGELO V. MEMBERS: AKEMI B. EDELISE D. PINEDA. 3.. FLORES. BAGANG. JR. 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. prohibition and mandamus (Rule 65) Quo warranto(Rule 66) Expropriation (Rule 67) Foreclosure of real estate mortgage(Rule 68) 4. Note: although both types of actions are governed by the rules for ordinary civil actions. YRIZ TAMIE A. DONNA GRAGASIN. ALBAÑA. 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. Although the writ of replevin may be issued ex-parte. SY. 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. JUSTICE JAIME M. 2. Interpleader – plaintiff files a complaint even if he has not sustained actual transgression of his rights Not necessarily true as in quo warranto. KRISTINE P. 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. STAMARIA. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS Q: Distinguish ordinary civil action from special civil action. 7. DIANE CAMILLA R. 3. ASST. GRETCHEN C. MARIANO. QUIAMBAO. 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. AIDA. SHERY PAIGE A. SPECIAL CIVIL ACTIONS 1. 2. 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. SUBJECT HEADS: DARRELL L. JUANENGO. LIM.

Personal property: the Heirs of Pastor. Contempt (Rule 71) Q: What are the three special civil actions which are within the jurisdiction of inferior courts? A: 1. G. MARTINEZ 131 . 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. interpleader b. Partition (Rule 69) Forcible entry and unlawful detainer (Rule 70) 10. 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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 110249. June 20. Prohibition. it may be brought in a RTC in the City of Manila. Interpleader. Aug. foreclosure of real estate mortgage d. place where the plaintiff 138896. 3. in aid of its appellate jurisdiction (Sec. Jurisdiction In election cases involving an act or omission of MTC /RTC. review of judgments and final orders or resolutions of the COMELEC / COA c.000 or P400. No.CIVIL PROCEDURE 8. 2.M. Socrates. SC. No. Rule 65) Quo Warranto With the SC. or in the SC (Sec. the petition shall be filed with and be cognizable only by the Court of Appeals. G. 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. an officer or a person.000 or P50. whether or not the same is in aid of the court’s appellate jurisdiction. 077-12-SC) If the petition involves an act or an omission of a quasi-judicial agency. a board.R. 7. in the CA. CA or with the SB. unless otherwise provided by law or the Rules. SABUGO & JOHN HENRY C. Expropriation Land: where the RTC (incapable of property is located pecuniary estimation) (Barangay San Roque v. 4.000 in Metro Manila. 2000) or defendant resides Certiorari. SB in aid of its resides. Sandiganbayan COMELEC in aid of its appellate jurisdiction (A. Quo Warranto g. No. MASACAYAN & THEENA C. expropriation c. by complaint a. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.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. When the appellate jurisdiction Solicitor General commences the action. 1997) Where the petitioner or the respondent resides 2. 14. Q: What special civil actions are initiated by complaints and initiated by petitions? A: 1. CA. 9. a corporation. RTC. Mandamus f. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. forcible entry and unlawful detainer by petition a. 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.R. Certiorari d. CA. Mandamus RTC: if it is directed against a municipal trial court. CA. partition e. Prohibition e. Rule 66) ACADEMICS CHAIR: LESTER JAY ALAN E. Contempt 3. declaratory relief b. except as otherwise indicated in the particular rule for said special civil action.

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

August 28. A: Yes. L-25138. ordinance or regulation Declaration of rights and duties thereunder 2. Vol. 3. Rule 62) Note: Claimants shall have 15days to file an answer and such answer must be served upon the plaintiff and co-defendants.) Q: Which court interpleader? has jurisdiction over an 2. executive order or regulation. 3.R. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 62) Q: What are the grounds for filing a motion to dismiss? A: (Sec. PHHC. 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. Rule 62). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 62) Q: What are the other allowed pleadings in an interpleader? A: (Sec. before breach or violation thereof. MARTINEZ 133 . (Sec. MASACAYAN & THEENA C. 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. (Sec. 5.CIVIL PROCEDURE b. Such issue should be resolved in an ordinary civil action for specific performance or other relief (Beltran v. WHO MAY FILE THE ACTION Q: Who may file an action for declaratory relief? A: Any person: ACADEMICS CHAIR: LESTER JAY ALAN E. (Sec. 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. 425. p. the answer may be filed within the remaining period which shall not be less than 5days from notice of denial. Civil Procedure Annotated. (Sec. 4. contract or other written instrument. (Sec. ordinance or any other governmental regulation. Rule 62) Q: May a motion to dismiss be filed? A: 1. will. 4. It may be filed by any of the claimant within the time for filing an answer. To determine any question of construction or validity or constitutionality of an instrument. Impropriety of the interpleader action 2. II. 5. G. 1969) 5. Rule 62) 1. 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. Counterclaim Q: Distinguish declaratory judgment from ordinary judgment. A: A special civil action brought by a person interested under a deed. and for a declaration of his rights or duties thereunder. asking the court to determine any question of construction or validity arising. No. 2001 ed. the court may declare such claimant in default and render a judgment barring him from any claim in respect to the subject matter. Cross-claim Third-party complaints Responsive pleadings Q: May an interpleader be availed of the resolve breach of undertaking? A: No. 5. 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. (Feria. SABUGO & JOHN HENRY C. or whose rights are affected by a statute. 4. 4. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Rule 62) 1.

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

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

ALBAÑA. SUBJECT HEAD: ANGELI P. LANTIN. 1620). SHERY PAIGE A. (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. 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. 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. 1607. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid. ROSALES . Note: The concept of consolidation of ownership under Art. BORJA. AQUINO. JUANENGO. For instance. JUSTICE JAIME M. Note: While Rule 64 makes reference to the certiorari under Rule 65. any decision. 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. 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. 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. 176 SCRA 84). KATRINA NADINE G. HERRERA. has its origin in the substantive provisions of the law on sales. JUDGE CESAR D. 7902 the Court of Appeals has jurisdiction over all adjudications of the Civil Service Commission. DIANE CAMILLA R. To implement the above constitutional provision. 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. JR. TERESE RAY-ANNE O. ineffective. a contract of sale may be extinguished either by legal redemption (Art. MARA KHRISNA CHARMINA F. after the vendor has been duly heard. BAGANG. SR. except otherwise provided. 327 SCRA 570). 1621). 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. Art. 7. DONNA GRAGASIN. Art. KRISTINE P. 1619) or conventional redemption (Art. 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. RONN ROBBY D. PLATON III. MARIANO. the redemption period shall be four (4) years from the date of the contract (Art. Dario vs.A. EDELISE D. in case the subject matter of the sale is a real property. 477. ASST. MEMBERS: AKEMI B. voidable or unenforceable. 1606). 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. Art. QUIAMBAO. LIM. Under the law. 3. When the redemption is not made within the period agreed upon. JUSTICE OSCAR C.” 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. MA. IX-A of the Constitution reads. and may be prejudicial to said title to real property.Under R.UST GOLDEN NOTES 2011 consolidates ownership or title upon the person of the vendee by operation of law. 6. MICHAEL ANGELO V. Note: Rule 65 applies to the mode of review under Rule 64.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. Civil Code. In the absence of any agreement. YRIZ TAMIE A. FLORES. RHONDEE E. SUBJECT HEADS: DARRELL L. DUMLAO. AIDA. 6. 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. Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. the SC promulgated Rule 64. 1601). Rule 64). 88 SCRA 251. 1607 provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order. Civil Code). This action is then brought to remove a cloud on title to real property or any interest therein. final order or resolution of the COMELEC and the COA sought to be reviewed (Sec. 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. Civil Code). CONTRIBUTORS: VICENTE JAN O.. PINEDA. UNICA AMOR R. 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. MENDOZA. Note: The order to comment under Sec. STAMARIA.. 476. GRETCHEN C. Leis. MANANQUIL. MIJARES. COMELEC. Mison. SY. Rule 64 in case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action. “unless otherwise provided by the Constitution or by law.

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

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

2. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. what the rights of the parties are. GR 154235. 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. 2006). 5. Note: A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction. 24. prohibition and mandamus? A: 1. Best Deal Computer Center Corp. 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. Note: An original action for certiorari. the law is. however. MARTINEZ 139 . GR 148029. 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. CA. Excess of jurisdiction – is where the respondent. If the action is filed with the RTC – Follow the rules on ordinary civil actions. petitions are subject to the rule on hierarchy of courts. 4. and mandamus is an independent action. vs. 2002. Jurisdiction is acquired by the service of summons to the respondent or by his voluntary appearance in court. Q: Which court has jurisdiction over petitions for certiorari? A: The courts have concurrent jurisdiction. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Judicial function – is where the tribunal or person has the power to determine what ACADEMICS CHAIR: LESTER JAY ALAN E. prohibition. 2. 3. 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. oversteps his authority as determined by law. arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. As such. 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. it does not interrupt the course of the principal. MASACAYAN & THEENA C. Plain. being clothed with the power to determine the case. Without jurisdiction – is where the respondent does not have the legal power to determine the case. 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. Grave abuse of discretion – is where the respondent acts in a capricious. The rule is the same for prohibition and mandamus since the remedies under Rule 65 are independent actions. Q: Define the following. 16. Sept. and undertakes to determine these questions and adjudicate upon the rights of the parties. 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. Estrera vs. as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility..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. CERTIORARI Q: What is certiorari? A: A writ issued by a superior court to an inferior court. SABUGO & JOHN HENRY C. Aug. Q: Does the filing of a petition for certiorari interrupt the running of the reglamentary period? A: No. A: 1. whimsical. or to act at all in contemplation of law. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.

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

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

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

or new trial is timely filed. CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI.R. 101428. Certiorari as a Special Civil Action (Rule 65) A special civil action that is an original action and not a mode of appeal. is a mode of appeal. the 60 day period is counted from notice of denial of said motion. MASACAYAN & THEENA C. 12. condition precedent. The CA in resolving a petition for mandamus is authorized to award civil damages in the same petition (Vital-Gozon v. 3 1992) d. subject to exceptions Stays the judgment Does not stay the appealed from. or that the questions raised therein are too unsubstantial to require consideration. 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. or is prosecuted manifestly for delay. However. 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. Filed with only the May be filed with the Supreme Court Supreme Court. 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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Court of Appeals. reasons Does not require a prior Motion for motion for Reconsideration is a reconsideration. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. or upon its expiration. 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. Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 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. 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. Raises questions of jurisdiction because a tribunal. Extension of 30 days may Extension no longer be granted for justifiable allowed. e. Thus. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 7. or Regional Trial Court SC may deny the decision motupropio on the ground that the appeal is without merit. No. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge (AM 07-7-12-SC. Q: May the CA award damages in mandamus proceedings? A: Yes. Aug. INJUNCTIVE RELIEF Q: When is injunctive relief proper? A: The court in which the petition is filed may issue orders expediting the proceedings. 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. judgment or order subject of the petition unless enjoined or restrained. CA. Rule 65). MARTINEZ 143 . SABUGO & JOHN HENRY C. Certiorari as a Mode of Appeal (Rule 45) Called petition for review on certiorari. Dec. 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. Filed within 15 days from Filed not later than 60 days notice of judgment or final from notice of judgment. Sandiganbayan. PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION. 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. which is but a continuation of the appellate process over the original case. Seeks to review final judgments or final orders. board. WHEN AND WHERE TO FILE PETITION Q: Distinguish certiorari from appeal by certiorari. G. order appealed from. and not a part of the appellate process but an independent action. absent a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction.CIVIL PROCEDURE A: Mandamus is only applicable to a ministerial duty. 2007). whether such motion is required or not. 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.

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

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

MENDOZA. RHONDEE E. Mar. 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. KRISTINE P. constitutes a ground for the forfeiture of his office. SHERY PAIGE A. Note: If the dispute is as to the counting of votes or on matters connected with the conduct of the election.. 5. when directed by the President of the Philippines. WHEN INDIVIDUAL MAY COMMENCE AN ACTION Q: Who commences the action? A: 1. Grounds: ineligibility or disqualification to hold the office 2. 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. JUDGE CESAR D. Petition must be filed within 10 days from the proclamation of the candidate. a. SUBJECT HEAD: ANGELI P. GRETCHEN C. AIDA. 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. Grounds: 1. forfeiture 3. usurpation 2. Garrido.. DIANE CAMILLA R. BAGANG. HERRERA. 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. DISTINCTION FROM QUO WARRANTO UNDER OMNIBUS ELECTION CODE Q: Distinguish quo warranto under Rule 66 from quo warranto under Omnibus Election Code. BORJA. 1929). QUIAMBAO. SY. KATRINA NADINE G. 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. ALBAÑA. Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code. Q: Distinguish quo warranto in elective office from an appointive office. in his own name. CONTRIBUTORS: VICENTE JAN O. 25. DUMLAO. SUBJECT HEADS: DARRELL L. DONNA GRAGASIN. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Sec. LIM. SR. PLATON III.R. TERESE RAY-ANNE O. A person who usurps. MA. JR. WHEN GOVERNMENT COMMENCE AN ACTION AGAINST INDIVIDUALS c. and 3. A public officer who does or suffers an act which. 30705. MEMBERS: AKEMI B. MANANQUIL. Q: Against whom a quo warranto may be filed? A: The action must be filed against: 1. 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. MIJARES. 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. AQUINO. Quo Warranto In Electoral Proceedings To contest the right of an elected public officer to hold public office. May be filed by any voter even if he is not entitled to the office. G. UNICA AMOR R. Rule 66). or unlawfully holds or exercises a public office. b. JUSTICE JAIME M. bring an action at the request and upo n the relation of another person. intrudes into. 3. STAMARIA. No. RONN ROBBY D. JUANENGO. 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. The petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds. 2. to distribute/sell cars in said city.UST GOLDEN NOTES 2011 protest (Cesar v. The solicitor general or public prosecutor. JUSTICE OSCAR C. position or franchise. FLORES. EDELISE D. Note: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC (Sec. (mandatory quo warranto) The Solicitor General or a public prosecutor may.2. ASST. (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. by the provision of law. MARIANO. LANTIN. MARA KHRISNA CHARMINA F. ROSALES . Securities Regulations Code). PINEDA. MICHAEL ANGELO V. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. YRIZ TAMIE A. 1. Person adjudged entitled to the office may bring a separate action against the respondent to recover damages. with the permission of court.

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

King and Sons. G. Congress may enact a law to expropriate property but it cannot limit just compensation.UST GOLDEN NOTES 2011 possession. The first phase ends with an order of dismissal. it has become final. JR. CONTRIBUTORS: VICENTE JAN O. be expropriated for the construction of a park in honor of former City Mayor ArsenioLacson? As compensation to UST. 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. whichever is higher and the value of the improvements and/or structures using the replacement cost method. if expropriation is engaged by the national government for purposes other that national infrastructure projects. resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. MENDOZA. Q: May Congress enact a law providing that a 5. 7 of RA 8974 (Sec. No counterclaim. As a relevant standard for initial compensation. the authority to expropriate and its public use can no longer be questioned. the City of Manila shall deliver its 5-hectare lot in Sta. AIDA. KRISTINE P. AQUINO. TERESE RAY-ANNE O. JUSTICE OSCAR C. the ascertainment of just compensation requires the evaluation of 3 commissioners. No. and the petitioner’s right to expropriate the property for a public use is no longer subject to review. 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). ALBAÑA. Once the first order becomes final and no appeal thereto is taken. Feb. Explain. FLORES. site or location for any national government infrastructure project through expropriation. MEMBERS: AKEMI B. Laguna originally intended as a residential subdivision for the Manila City Hall employees. KATRINA NADINE G. 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. 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. e. UNICA AMOR R. Lolita Contreras-Besana. 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. PINEDA. 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. the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. Under Sec. PLATON III. ASST. RHONDEE E. QUIAMBAO. and (2) the value of the improvements and/or structures as determined under Sec. MIJARES. The second phase consists of the determination of just compensation. are appealable. ROSALES . LIM. JUDGE CESAR D. Rule 67 of the Rules of Court.R. SUBJECT HEADS: DARRELL L. Both orders. April 16. 5. state the nature and extent of the interest claimed. An order of condemnation or dismissal is final. MARIANO. upon the filing of the filing of the complaint. JUANENGO. GRETCHEN C. EDELISE D.000 square meter lot. or a determination that the property is to be acquired for a public purpose. J. MA. 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. Hon. MARA KHRISNA CHARMINA F. MICHAEL ANGELO V. RA 8974).. (City of Iloilo v. Manila. 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. BORJA. MANANQUIL. 2010). 148 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. The answer shall specifically designate or identify the property in which he claims to have an interest. GR 175983. YRIZ TAMIE A. or any objection or defense to the taking of his property. Is the order of expropriation final? A: Expropriation proceedings have two stages. HERRERA. SY. 4. fixing and recovery of rental and damages. DIANE CAMILLA R. Rosa. LANTIN. he shall serve his answer within the time stated in the summons. JUSTICE JAIME M. DUMLAO.. SR. and after due notice to the defendant. Thus. SUBJECT HEAD: ANGELI P. BAGANG. RONN ROBBY D. 2009) d. A: Yes. being final. 12. (2006 Bar Question) c. cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. 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. 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. Note: RA 8974 applies in instances when the national government expropriates property for national government infrastructure projects. a part of the UST compound in Sampaloc. DONNA GRAGASIN. and adduce all his objections and defenses to the taking of his property. 168967. SHERY PAIGE A. STAMARIA. Thus.

12. No 166973. SABUGO & JOHN HENRY C. JC = FMV JC – Just compensation FMV – Fair market value CD – Consequential damages CB – Consequential benefits Note:Sentimental value is not computed.g.R. MARTINEZ 149 . L-6191.CIVIL PROCEDURE Note: if there are no objections. 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. Rule 67). 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. 2009) XPNs: 1. 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). 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. Hon. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Feb. 3. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. the court. However. g. the just compensation should be determined as of the date of the filing of the complaint. whichever came first. G. No. Lolita Contreras-Besana. Note: Typically. Note: after the rendition of the order of expropriation. And thereafter. MASACAYAN & THEENA C. Q: What is the formula for the determination of just compensation? A: JC = FMV + CD – CB If CB is more than CD then. and he may share in the distribution of the award (Sec. (Sec. 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. 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. he must file and serve a notice of appearance and manifestation to that effect. 168967. G. 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. overruled or when no party appears to object to or to defend against the expropriation (Sec 4. in the interest of justice. at the trial of the issue of just compensation. 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. (City of Iloilo v. 4) GR: When the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings. Jan. f. Feb. Grave injustice to the property owner ACADEMICS CHAIR: LESTER JAY ALAN E. (NAPOCOR v. 11. 1955). Co. No. Baylosis. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues e. 31. shall be entitled to notice of all proceedings. 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. whether or not a defendant has previously appeared or answered. 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. G. 10. It is the fair and full equivalent for the loss sustained by the defendant. 2010). he may present evidence as to the amount of the compensation to be paid for his property. the time of taking is contemporaneous with the time the petition is filed.R.R.

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. No. The commissioners shall make a full and accurate report to the court of all their proceedings. June 29. No. 16. JUSTICE JAIME M. L-59791. In such cases. 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. Feb.R. 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. G. No.. 3. and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated. SUBJECT HEADS: DARRELL L. MIJARES. DUMLAO. First. KRISTINE P. COMMISSIONER’S REPORT. FLORES. 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.R. MICHAEL ANGELO V. LIM. JUSTICE OSCAR C. the “improvements” introduced by NAPOCOR. G. and would discourage the construction of important public improvements. QUIAMBAO. G. 1992). MEMBERS: AKEMI B. 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. YRIZ TAMIE A. HERRERA. Rule 67). through PEA. June 15. As shown by the records.. (Heirs of Mateo Pidacan&RomanaEigo v. 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. MA. RONN ROBBY D. G. and may from time to time so deal with such property. Pineda. 170740. BORJA. which is the true measure of the damages. (Tan v. DIANE CAMILLA R.The trial court was correct in ordering the Republic. 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. 2003. 5) 2. ROSALES . May 25. AQUINO. 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. JUANENGO. SY. Republic. APPOINTMENT OF COMMISSIONERS. MENDOZA. SR. UNICA AMOR R. and may render judgment upon such partial report.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. ASST. DONNA GRAGASIN. GRETCHEN C.R. in no way contributed to an increase in the value of the land. RHONDEE E. 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. (NAPOCOR v. Secondly. 1933) h. SUBJECT HEAD: ANGELI P. 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. MARA KHRISNA CHARMINA F. EDELISE D.R. PEA filed with the RTC its petition for expropriation on Sept. upon the filing of its complaint for expropriation. MARIANO. Ibrahim. STAMARIA. 150 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. No. The appointment of commissioners in expropriation proceedings is indispensable. Aug. and such proceedings shall 4. the tunnels. The trial court rightly computed the valuation of the property as of 1992. Air Transportation Office.(Provincial Gov’t of Rizal v. PINEDA. Q: When may the court appoint a commissioner in expropriation proceedings? A: Upon the rendition of the order of expropriation. TERESE RAY-ANNE O. AIDA. It did not bother to notify the owners and wrongly assumed it had the right to dig those tunnels under their property. Caro de Araullo. L-36096. No. ALBAÑA. 13. 168732. BAGANG. JR. it did not enter the land under warrant or color of legal authority or with intent to expropriate the same.R. G. 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. SHERY PAIGE A. CONTRIBUTORS: VICENTE JAN O. JUDGE CESAR D. PLATON III. 5. 22. 162779. to pay Tan just compensation on the basis of the BIR zonal valuation of the subject property. MANANQUIL. LANTIN. 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. KATRINA NADINE G. or just compensation.

CIVIL PROCEDURE not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Rule 67). with notice that they are allowed ten (10) days within which to file objections to the findings of the report. Rule 69). c. 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. a description of the mortgaged property. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. a certified copy of such judgment shall be recorded in the registry of deeds of he place in which the property is situated. if they so desire (Sec. after deducting the costs of the sale. which time may be extended in the discretion of the court. SABUGO & JOHN HENRY C. such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment. 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. Except as otherwise expressly ordered by the court. 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. date of the note or other documentary evidence of the obligation secured by the mortgage. 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. a. i. the court. the amount claimed to be unpaid thereon. 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. Rule 67. 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. Rule 68). which a person owes to another. MASACAYAN & THEENA C. and when there shall be any balance or residue after ACADEMICS CHAIR: LESTER JAY ALAN E. 1). 10. the names and residences of the mortgagor and the mortgagee. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT Q: What are the rights of the plaintiff after payment? A: After payment of just compensation. 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. After the foreclosure sale has been effected.3. it would be good practice for the mortgagee to file a motion for the sale of the mortgaged property because under the Rules. the clerk of the court shall serve copies thereof on all interested parties. Note: It is commenced by a complaint setting forth the date and due execution of the mortgage. subject to such rights of redemption as may be allowed by law (Sec 3. Upon the filing of such report. 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. the court shall order the sale of the property only “upon motion of the mortgagee” (sec 3. 7. EFFECT OF RECORDING OF JUDGMENT Q: What is the effect of the recording of the judgment? A: When real estate is expropriated. Q: What is foreclosure sale? A: When the defendant fails to pay the amount of the judgment within the period specified therein. the mortgagee should file a motion for the confirmation of the sale which requires notice and hearing. Rule 68). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. by proceeding against the property used to secure said obligation. 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. as determined in the judgment. 2. be paid to the person foreclosing the mortgage. 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. 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. j. MARTINEZ 151 . upon motion. b.

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

No. After judgment – makes the judgment therein void because co-owners are indispensable parties. Sec. but not after. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. a. 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. Note: A mortgagee may bring a personal action for the amount due. Aug. RFC. 494). (Consolidated Bank and Trust Corp. EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION Q: Distinguish equity of redemption from right of redemption. 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. Said right continues after perfection of an appeal until the decision of the 2. Rule 69). 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. 1959) 11. the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. in which case. G.R. L-11990. he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding. The pendency of the action stops the running of the right of redemption.1. G. and All other persons interested in the property must be joined as defendants (Sec. 1. Rule 69) or of an estate composed of personal property. instead of a foreclosure suit. CFI of Iloilo. he may demand at any time the partition of the property owned in common (Art. 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. v. In extrajudicial foreclosure. the registration of the certificate of foreclosure sale which in no case shall be more than 3 months after foreclosure.R. May 29. The remedy is to file a motion to include the party. MASACAYAN & THEENA C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 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.CIVIL PROCEDURE There is only an equity of redemption except when the mortgagee is a bank Requires court intervention Right of redemption exists appeal. Rule 39 Q: What are the requisites of a valid partition? A: 1. The defendants are all the co-owners. or both real and personal property (Sec. Before judgment – not a ground for a motion to dismiss.It presupposes the existence of a coownership over a property between two or more persons. WHO MAY FILE A COMPLAINT. MARTINEZ 153 . (Sec. 29-31. that no co-owner shall be obliged to remain the coownership. 13. Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded. No. IAC. 1. 47 of the General Banking Act provides that in case of extrajudicial foreclosure. Because of this rule.R. 21. Right to compel the partition. Rule 69) f. However. The rule allowing partition originates from a well-known principle embodied in the Civil Code. whichever is earlier. ACADEMICS CHAIR: LESTER JAY ALAN E. (Movido v. 45322. July 5. 1989). 73341. G. No. 2. 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. juridical persons shall have the right to redeem the property until. Note: It is commenced by a complaint. The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. SABUGO & JOHN HENRY C. Q: What is the effect of non-inclusion of a coowner in an action for partition? A: 1. Rule 69) 3. mortgaged property in case of default.

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

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

2007) 156 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MICHAEL ANGELO V. LANTIN. 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. KRISTINE P. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner (Peran v. vendor. Q: What are the requisites of a valid unlawful detainer? A: 1. 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. CONTRIBUTORS: VICENTE JAN O. Note: If only rents or damages are claimed in an ordinary action. ALBAÑA. SY. (Sec. MTC has jurisdiction if the value of the property does not exceed the above amounts. JUSTICE OSCAR C. b. intimidation. AIDA. JUDGE CESAR D. RTC has jurisdiction if the value of the property exceeds P20. STAMARIA. 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. AQUINO. the possession of the property under his contract with the plaintiff. MEMBERS: AKEMI B. G. Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with the lease contract. MTC has jurisdiction if the value of the property does not exceed the above amounts. JUANENGO. 164305..000 in Metro Manila. GRETCHEN C. Accion Publiciana A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year. 1) force. No. EDELISE D. JUSTICE JAIME M. TERESE RAY-ANNE O. Note: It is commenced by a verified complaint.000 in Metro Manila. No. strategy. 1983).R. vendee. FLORES. and Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. November 20. G. BORJA. 57259. DUMLAO. 13. 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. 1949). Lopez.Quiambao. L-1950. DIANE CAMILLA R. Oct. CFI of Sorsogon. 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. MARA KHRISNA CHARMINA F. LIM. MENDOZA. HERRERA. (Sec. 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. Q: Is formal contract a prerequisite in unlawful detainer? A: The existence of a formal contract is not necessary in unlawful detainer. No previous demand for the defendant to vacate the premises is necessary. 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. RTC has jurisdiction if the value of the property exceeds P20. the action is personal and the amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC. MIJARES. UNICA AMOR R. PLATON III. SUBJECT HEADS: DARRELL L. SR. 3. Possession of any land or building is unlawfully withheld from a lessor. deprived thereof by the defendant. Q: Distinguish forcible entry from unlawful detainer. threat or stealth.R..UST GOLDEN NOTES 2011 property after the right to keep possession has ended. DONNA GRAGASIN.000 or P50. Accion Reinvindicatoria An action for the recovery of ownership. Even if there is no formal contract between the parties. SUBJECT HEAD: ANGELI P. there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. ROSALES . PINEDA. the land. SHERY PAIGE A. Action is brought within 1 year after such unlawful deprivation or withholding of possession.000 or P50. BAGANG.. JR. MARIANO. RHONDEE E. KATRINA NADINE G. which necessarily includes the recovery of possession. 1) 2. GR No. MA. ASST. YRIZ TAMIE A. QUIAMBAO. RONN ROBBY D. or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied. MANANQUIL. May 16.

or other person. Rule 70). 3. July 5. WHEN DEMAND IS NECESSARY Q: When is demand necessary? A: Unless there exists a stipulation to the contrary. It is the failure to comply with the demand that vests upon the lessor a cause of action. ACTION ON THE COMPLAINT Q: What action will the court make upon receipt of the complaint? A: The court may. from an examination of the allegations in the complaint and such evidence as may be attached thereto. Aquino. f. c. 5. 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. together with damages and costs (Sec. h. 2). If no ground for dismissal is found. however. 4. threat. It has been ruled. that the demand upon a tenant may be oral (Jakihaca vs. SABUGO & JOHN HENRY C. WHO MAY INSTITUTE THE ACTION AND WHEN. The demand may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 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. 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. 33[2]. dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. 1996). vendor. vendor. 1. XPN: When the decision of the MTC is appealed to the RTC. e. MARTINEZ 157 . PLEADINGS ALLOWED Q: What are the pleadings allowed? A: The only pleadings allowed to be filed are the complaint. or stealth. G. Rule 70). express or implied. MASACAYAN & THEENA C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. or the legal representatives or assigns of any such lessor. 2). No. d.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. BP 129. Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses. by virtue of any contract. vendee. at any time within one (1) year after such unlawful deprivation or withholding of possession. bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession. 118284. may. it shall forthwith issue summons (Sec. Rule 70). FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. MeTC and MCTC (Sec. vendee. CA. and the answers thereto. AGAINST WHOM THE ACTION MAY BE MAINTAINED Q: Who may institute the action? A: Subject to the provisions of the next succeeding section. a person deprived of the possession of any land or building by force. the applicable rules are those of the latter court (Refugia v. 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. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. compulsory counterclaim and crossclaim pleaded in the answer. g. in accordance with the provisions of Rule 58. strategy. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION Q: Can the court grant injunction while the case is pending? A: The court may grant preliminary injunction. intimidation. All pleadings shall be verified (Sec. 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.R. 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. for the restitution of such possession. or any person or persons claiming under them. Rule 70). or a lessor. 181 SCRA 67).

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

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

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

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

YRIZ TAMIE A. since it constitutes an improper conduct tending to impede the administration of justice. 3. 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. after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction. CONTRIBUTORS: VICENTE JAN O. SY. SUBJECT HEAD: ANGELI P. When a person or party is legally and validly required by a court to appear before it for a certain purpose. the only remedy left for the court is to use force to bring the person or party before it.R. MANANQUIL. and acting as such without authority. QUIAMBAO. 12). ASST. process. JUANENGO. h. 5. or judgment of a court. RHONDEE E. f. FLORES. GRETCHEN C. The RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed (Sec. HERRERA. or degrade the administration of justice. JR. 4. for the purpose of executing acts of ownership or possession. 7. 6. MARIANO. 162 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. and when that requirement is disobeyed. In effect. 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. SR. 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. LANTIN. 2007). Formoso. 3. obstruct. it is within the power of the person adjudged guilty of contempt to set himself free. 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. Misbehavior an officer of a court in the performance of his official duties or in his official transactions. PINEDA. or attempted rescue. KRISTINE P. g. enters or attempts or induces another to enter into or upon such real property. 3). MA.. Rule 71. a person guilty of any of the following acts may be punished for indirect contempt: 1. Any improper conduct tending. 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. Rule 71 shall apply suppletorily. DUMLAO. STAMARIA.. Assuming to be an attorney or an officer of a court. June 21. DIANE CAMILLA R. MENDOZA. AQUINO. UNICA AMOR R. JUSTICE OSCAR C. Failure to obey a subpoena duly served. 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. G. BAGANG. MIJARES. KATRINA NADINE G. RONN ROBBY D. TERESE RAY-ANNE O. BORJA. order. ALBAÑA.UST GOLDEN NOTES 2011 Velasco (Judge Espaool v. EDELISE D. JUDGE CESAR D. 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. AIDA. Disobedience of or resistance to a lawful writ. LIM. Note: Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 150949. which the contemnor refuses to obey although able to do so. PLATON III. 2. DONNA GRAGASIN. MICHAEL ANGELO V. Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in the proper RTC. SUBJECT HEADS: DARRELL L. to impede. 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. or in any manner disturbs the possession given to the person adjudged to be entitled thereto. No. JUSTICE JAIME M. MEMBERS: AKEMI B. ROSALES . directly or indirectly. The rescue. MARA KHRISNA CHARMINA F. SHERY PAIGE A. including the act of a person who. 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.

litigation expenses and costs Venue 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.resident) of foreign country.000/ 500. Rule 91 Escheat RTC Ordinary escheat proceedings: RTC a.Court of the province/ city where the deceased resides at the time of death Inhabitant (non.If non-resident. 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.place where he had estate 2. MASACAYAN & THEENA C. 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.Gross value of the estate exceeds 400. attorney’s fees.place where the deceased last resided b. SPECIAL PROCEEDINGS Q: What is Special Proceeding? A: It is a remedy by which a party seeks to establish a status.court of any province/ city wherein he had estate Rules 73-90 Settlement of Estate of Deceased Persons 2.SPECIAL PROCEDINGS IV. 1.Gross value of the estate does not exceed 400. If resident. MARTINEZ 163 . ACADEMICS CHAIR: LESTER JAY ALAN E.RTC where the land lies in whole or in part 3. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. or fact May involve only one party – only petitioner Governed by special rules.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. (Sec. SABUGO & JOHN HENRY C.defendant in 1 action. Unclaimed deposits (for 10 years). supplemented by special rules Initiated by a complaint. 3(c). Rule 1) NOTE: It is a proceeding in rem. status. a right or a particular fact. Reversion of land to the State for violation of the Consitution/ Laws. Involves two or more parties Ordinary rules apply primarily but subject to specific rules Some are initiated by complaint. If inhabitant (resident) of the Philippines (whether citizen or alien). damages of whatever kind.000 (Manila) MTC.000 NOTE: MTC jurisdiction is exclusive of interest. 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.000/ 500.

. QUIAMBAO. JUANENGO. ASST. MARIANO.000 MTC. 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. A. KATRINA NADINE G. where he may be found at the election of the petitioner Rule 102 SC. 02-6-02-SC A.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. JUSTICE OSCAR C. SB only in aid of its appellate jurisdiction Where the aggrieved party is detained (RTC) 164 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.A. JUSTICE JAIME M. AIDA. 02-06-02-SC A. No. SUBJECT HEAD: ANGELI P. If resident. MEMBERS: AKEMI B.M. GRETCHEN C. LANTIN. CA. SHERY PAIGE A.UST GOLDEN NOTES 2011 RTC-Gross value of the estate exceeds 400. SY. UNICA AMOR R. JUDGE CESAR D. DIANE CAMILLA R. R. HERRERA.000/500. BAGANG.M. CONTRIBUTORS: VICENTE JAN O. 03-0205-SC A. SR. EDELISE D. ALBAÑA. 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. RTC.place where minor/ incompetent resides 2.M. AQUINO. RONN ROBBY D.000/ 500. MTC in the province or city in case there is no RTC judge.. DUMLAO. MIJARES. 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. KRISTINE P. PLATON III. MA. STAMARIA.M. No. LIM. BORJA. TERESE RAY-ANNE O.does not exceed 400. 00-8-10-SC Rule 104 RTC RTC RTC SEC Local civil general registry/Consul RA 9048 Rules 9297. No. JR.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. No. YRIZ TAMIE A. MENDOZA. MICHAEL ANGELO V. If non-resident. ROSALES . MANANQUIL. RHONDEE E. 8369 3. No.M. MARA KHRISNA CHARMINA F. SUBJECT HEADS: DARRELL L. FLORES. PINEDA. DONNA GRAGASIN.

collected or stored.M. SB. where he may be found at the election of the petitioner Family Court. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SC RTC. act or omission was committed or any of its elements occurred Where the petitioner or respondent resides. CA or SC or any justice thereof A. or that which has jurisdiction over the place where the data or information is gathered.M. 08-1-16-SC Writ of habeas data RTC. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. No. CA.M. at the option of the petitioner Where the unlawful act.M. MASACAYAN & THEENA C. 03-04-04SC A.02-1110-SC Declaration of nullity of void marriage/Annulment of marriage Family Court A. Petitions on foster care and temporary custody 2. SABUGO & JOHN HENRY C. 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. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 09-6-8-SC Writ of Kalikasan SC or any stations of CA A. No. 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. No.M. MARTINEZ 165 . SB. No.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. 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.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. No. Once a week for 6 consecutive weeks None ACADEMICS CHAIR: LESTER JAY ALAN E. CA or SC or any justice thereof A.

UST GOLDEN NOTES 2011 children Summary proceedings Note: In declaration of nullity or annulment of marriage or legal separation. A: Resident Court of the province/city where the deceased resided at the time of death. SETTLEMENT OF ESTATE OF DECEASED PERSONS. TERESE RAY-ANNE O. MEMBERS: AKEMI B. MARIANO.00 Q: State the rule on venue in judicial settlement of estate of deceased persons. service of summons may be through publication once a week for 2 consecutive weeks. 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. KATRINA NADINE G. JUDGE CESAR D. SUBJECT HEADS: DARRELL L.000 (outside Metro Manila) Metropolitan Trial Court Gross value of the estate does not exceed 500. QUIAMBAO. DIANE CAMILLA R. RHONDEE E. MARA KHRISNA CHARMINA F. MANANQUIL. SR. JUANENGO. MICHAEL ANGELO V. GRETCHEN C. Petitions on foster care and temporary custody 2. ASST. BAGANG. MENDOZA. MIJARES. MA. EDELISE D. DONNA GRAGASIN. UNICA AMOR R. DUMLAO. SUBJECT HEAD: ANGELI P. HERRERA.. BORJA. RONN ROBBY D. KRISTINE P. SY. JUSTICE JAIME M. Biological parents/Solicitor General Adopter Biological parents. FLORES.000 (within Metro Manila) or 400. 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. 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. JUSTICE OSCAR C. CONTRIBUTORS: VICENTE JAN O. YRIZ TAMIE A. PINEDA. 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. ROSALES .. VENUE AND PROCESSES 1. 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. AQUINO. General or special notice may be given. SHERY PAIGE A. ALBAÑA. PLATON III.000/400. LIM. LANTIN. JR. AIDA. STAMARIA.

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

the court: 1. HERRERA.. 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. JUSTICE JAIME M.R. 6. JR. De Valera v. CFI. RHONDEE E. Rule 90). TERESE RAY-ANNE O. MANANQUIL. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. MARIANO. XPNS: 1. 4. both proceedings may be consolidated if they were filed in the same court. 19. LIM. CA 53 SCRA 360. and 3. (Sec. G. No. Grants letters administration 168 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. DUMLAO. 349 SCRA 135). 155555. MIJARES. MA. 3. De Manalo v. 3. If the special proceedings are pending. then the determination of heirship should be raised and settled in said special proceedings. GRETCHEN C. JUDGE CESAR D. AIDA.. de la Peña. Sept. MICHAEL ANGELO V. ROSALES . If the special proceeding had been instituted but had been finally closed and terminated. v. 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. KATRINA NADINE G. 2. AQUINO.R. G. QUIAMBAO. in the testate or intestate proceedings of the deceased spouse. SHERY PAIGE A. BORJA.) Testate proceedings take precedence over intestate proceedings for the same estate. 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. 2. Jr. KRISTINE P. STAMARIA. SUBJECT HEAD: ANGELI P. JUSTICE OSCAR C. 15. RONN ROBBY D. Q: Can a declaration of heirship be made in an independent action? A: 1. To satisfy the claim in a summary proceedings of creditors or heirs who appear within two years from distribution. POWERS AND DUTIES OF PROBATE COURT Q: What are the powers and duties of a Probate Court? A: In probate proceedings. 1973. LANTIN. 3. administered and liquidated. 13. Aug. (Sec. EDELISE D. No. No. (Benigno v. an administrator had already been appointed (Uriarte v. Hon. PortugalBeltran. SY.) 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. MARA KHRISNA CHARMINA F. JUANENGO. Ofilada. ALBAÑA. MEMBERS: AKEMI B. 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. Rule 142. CA. or if there are no special proceedings filed but there is a need to file one. parents and child or other relatives no matter how close. SUBJECT HEADS: DARRELL L. 2005). 4. the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. MENDOZA. SR. 33 SCRA 252. Rule 73) Q: May the probate court issue a writ of execution? A: GR: No. To satisfy the contributive share of the devisees. UNICA AMOR R. PINEDA. If both spouses have died. To enforce payment of the expenses of partition (Sec. 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. legatees and heirs when the latter had entered prior possession over the estate (Sec. proceedings for the probate of the latter should replace the intestate proceedings even if at that state. 2. If in the course of the intestate proceedings. FLORES.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. G. BAGANG. (Vda. Teodoro. Rule 88). 1974). 1970. PLATON III. DONNA GRAGASIN. ASST. CONTRIBUTORS: VICENTE JAN O. Orders the probate of the will of the decedent 2. 16. the community property shall be inventoried. It does not apply to siblings. L-27526. Rule 73) Note: If separate proceedings have been instituted for each estate. 1932) Notes: 1. YRIZ TAMIE A. 2. The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. 4. Oct. 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. and the debts thereof paid. 99 Phil 413).R. L-38036. DIANE CAMILLA R. it is found that the decedent had left a last will.

d. e. heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond 1. Authorizes sale. Validity of disinheritance effected by testator. Status of each heir. 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. 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. SUMMARY SETTLEMENT OF ESTATES Q: Distinguish the procedure in extrajudicial settlement from summary settlement A: A. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. or h. liquidation. not dissipated. Supervises and controls all acts of administration 4. formalities required by law) 2. Determine the following: a.file a bond equivalent to its amount.000 ACADEMICS CHAIR: LESTER JAY ALAN E. Orders the payment of taxes and other charges 8. MASACAYAN & THEENA C. g. Distribute shares 3. MARTINEZ 169 . 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. Validity of the will (i. Issue warrants and processes to secure attendance of witnesses 5. Directs the delivery of the estate to those entitled thereto.subject to a lien in favor of the creditors. mortgage or any encumbrance of real estate 7. Determine and rule upon issues relating to settlement of the estate. Status of a woman who claims to be the lawful wife of the decedent . Hears and approves claims against the estate of the deceased 5. Matters incidental or collateral to the settlement and distribution of the estate. B. Real property. Validity if waiver of hereditary heirs.SPECIAL PROCEDINGS 3. Recognition of natural child. Determine who are the legal heirs 4. such as administration. 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. SABUGO & JOHN HENRY C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. f. Heirs of the decedent. Whatever property in the inventory is conjugal or exclusive property of deceased spouse. c.e. 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. and distribution of the estate 6. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. b. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. Orders payment of lawful debts 6.

DUMLAO. MIJARES. QUIAMBAO. JUDGE CESAR D. ROSALES . 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. and Of the minors are represented by their judicial or legal representatives duly authorized for the purpose. SUBJECT HEAD: ANGELI P. and Bond filed equivalent to the value of personal property. SR. Rule 74) 170 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Rule 74. On the other hand.. Rule 74) Q: Is a public instrument necessary for the validity of the extrajudicial settlement? A: No. 1. MARA KHRISNA CHARMINA F. DONNA GRAGASIN. Filed with the Register of Deeds. Andal. PLATON III. Note: In case of disagreement of heirs. Dec. 3. The court proceeds summarily without the necessity of appointing an executor or administrator. Left no will and no debts. Even a private instrument. RONN ROBBY D. LANTIN. 4. TERESE RAY-ANNE O. No. YRIZ TAMIE A. it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v.. Note: Public instrument is required in transfer and registration of title to the heirs.R. SHERY PAIGE A. BORJA. JUSTICE OSCAR C. 31. 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. MEMBERS: AKEMI B. whether he died testate or intestate does not exceed P10. FLORES. Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir. RHONDEE E. (Sec. Q: What are the requisites before an extrajudicial settlement of estate could be resorted as evidence of its validity? (Procedural Requisites) A: 1. LIM. UNICA AMOR R. SUBJECT HEADS: DARRELL L. 2. HERRERA. 1. 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. PINEDA. 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. Mar. reformation of the instrument may be compelled. MANANQUIL. they may state their oppositions in an ordinary action of partition. EDELISE D. ALBAÑA. However. STAMARIA. Q: When is extra judicial settlement by agreement between the heirs allowed? (Substantial Requisites) A: When the decedent: 1. 2. KRISTINE P. BAGANG. DIANE CAMILLA R. CONTRIBUTORS: VICENTE JAN O.UST GOLDEN NOTES 2011 B. KATRINA NADINE G.R. JUSTICE JAIME M. and the heirs are all of age. L-273. oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. He shall have the right to vindicate his inheritance. 1960). No. ASST. Rule 74) Note: The same provision on the bond and lien also applies in summary settlement of estate. 1947). G. 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.000 Publication of notice once a week for 3 consecutive weeks. (Sec. G. 23. MENDOZA. 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. Bautista. MA. if it is a real property. 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. AIDA. JUANENGO. a bond is required. the requirement of public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. (Sec. L-14921. MARIANO. AQUINO. 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. JR. MICHAEL ANGELO V. Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks. SY. 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. GRETCHEN C.

1. (Sec. the person authorized to file a claim is a minor or mentally incapacitated. Rule 74 to be executed by the sole heir or a deceased person in adjudicating to himself the entire estate left by the decedent. 5. he may present his claim within one year after such disability is removed. 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. Amount is jurisdictional.000. 4. Q: Summary settlement of estates of small value. MARTINEZ 171 . (Sec. when is it allowed? A: Only when gross estate does not exceed P10. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 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. 4. Bond in an amount fixed by the court (not value of the personal property) conditioned upon payment of just claims under sec. or is in prison or outside the Philippines. Instituted by any interested party and even by a dredirtor of the estate. 39) 5. declare his heirs. Note: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unless he did not participate in the proceedings. the jurisdiction is vested to the Municipal Trial Courts. The two year prescriptive period applies only: 1. 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. SABUGO & JOHN HENRY C. Rule 74) Notes: 1. the competent court summarily proceeds to estimate the value of estate of the decedent. Rule 74) 2. Rule 74) 7.1. 6. and legatees. 2. In accordance with B. distributees or heirs are barred from objecting to an extra. MASACAYAN & THEENA C. 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. allow his will if any. distribute his net estate among them. but not against third persons not parties thereto. Note: It is only a bar against the parties who had not taken part in the extrajudicial proceedings. Summary settlement of estate of small value is allowed in both testate and intestate estates. 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. 2. 4. 4. respectively. (Sec. 2. To persons who have participated or taken part or had notice of the extrajudicial partition. and without delay. devisees. 129. Rule 74). (Herrera. 3. Amount is jurisdictional.judicial partition. 8. 3. Available even if there are debts as the court will make provisions for the payment thereof.SPECIAL PROCEDINGS of satisfying such lawful participation. Q: What is the effect if the provisions on notice or participation requirement under Sec. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 1. Remedial Law III-A.P. 4. 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. without the consent of all the heirs. Blg. without appointment of executor or administrator. (Sec. Notice shall be served upon such interested persons as the court may direct. ACADEMICS CHAIR: LESTER JAY ALAN E. TWO-YEAR PRESCRIPTIVE PERIOD Q: When does the two year period rule apply? A: After the expiration of two years from the extrajudicial partition. who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them. The date for hearing. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE Q: What is summary settlement of estate? A: It is a judicial proceeding. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.

QUIAMBAO. STAMARIA. Upon motion of a person who either: a. If there is undue deprivation of lawful participation in the estate. Has such legal interest in the success of either of the parties. Existence of debts against the estate.) Also applicable in judicial proceedings. (Sec. Has a legal interest in the matter in litigation. MA. RONN ROBBY D. AIDA. accident. 3. MARA KHRISNA CHARMINA F. JUANENGO. SY. the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share. 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. ASST. ALBAÑA.. BAGANG. HERRERA. If there is undue deprivation of lawful participation payable in money. JUSTICE JAIME M. DONNA GRAGASIN. LIM. YRIZ TAMIE A. JUDGE CESAR D. (Rule 38. If there is undue deprivation of lawful participation in the estate. FLORES. Dec. SR. final order or other proceeding to be set aside. PINEDA. ROSALES . CONTRIBUTORS: VICENTE JAN O. Rule 74) a. (Marquez v. The existence of debts against the estate. AQUINO. DIANE CAMILLA R. [Art. No. 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. MIJARES. 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. 172 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 1144(c)] Also applicable in judicial proceedings. 29. 1998) Also applicable in judicial proceedings. On grounds of fraud. GRETCHEN C. 4. SUBJECT HEAD: ANGELI P. 1149. 5. (Art. UNICA AMOR R. MANANQUIL. SUBJECT HEADS: DARRELL L. 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. 2. On the ground of fraud which should be filed within 4 years from the discovery of fraud. 125715. DUMLAO. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith. KRISTINE P. Note: May be availed of after judgment but before its finality or appeal by the aggrieved party. JUSTICE OSCAR C. G. or c. MEMBERS: AKEMI B. MARIANO. and not more than 6 months after such judgment or final order was entered. action is imprescriptible. b. BORJA. SHERY PAIGE A.UST GOLDEN NOTES 2011 Q: When can settlement of estates in courts be compelled? A: 1. EDELISE D. 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. KATRINA NADINE G. PLATON III. JR. mistake. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer. or an interest against both.R. and excusable negligence within 60 days after petitioner learns of the judgment.. LANTIN. Note: It must be brought within 10 years from the time the right of action accrues. MENDOZA. MICHAEL ANGELO V. TERESE RAY-ANNE O. b. RHONDEE E. CA.

IMPRESCRIPTIBLE. Person named executor. 2. notice shall be sent only to his compulsory heirs. Dec. XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will: 1.R. CA. L23638. 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. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. SABUGO & JOHN HENRY C. 1. The presentation and probate of the will is required by public policy. if their places of residence be known. WHO MAY PETITION FOR PROBATE Q: Who may file petition for allowance of will? A: 1. Executor (Sec. (also known as Allowance of Will). NATURE OF PROBATE PROCEEDING 2. No. at least 20 days before the hearing. Dimagiba. 1966).the probate of the will is mandatory. IN REM.R. CA. MANDATORY. 2. 1.R. Q: Who are the people entitled to notice in a probate hearing? A: 1. June 23. G. 12. or one who has a claim against the estate such as a creditor. No. ACADEMICS CHAIR: LESTER JAY ALAN E. Oct. 1. No.Oy v.SPECIAL PROCEDINGS C. anxiety. in any separate or independent action or proceeding. It involves public interest. L-62952. L-23135. if such places of residence be known. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Rule 76). 1985). G. Testator himself during his lifetime (Sec. DOCTRINE OF ESTOPPEL DOES NOT APPLY. if he not the petitioner. plus added 2. 4. Rule 76). To any person named as co-executor not petitioning. heirs Note: An interested party is one who would be benefited by the estate. 2. Nuguid. If the testator asks for the allowance of his own will. 1967) Q: What is the nature of a probate proceeding? A: 1.23638. (Fernandez v. Q: Why is probate necessary? A: To settle all questions concerning the capacity of the testator and the proper execution of his will. such partition shall stand in so far as it does not prejudice the legitime of the forced heir. such as an heir.It is binding upon the whole world. “if the testator should make a partition of his property by an act intervivos or by will. 26. Person interested in the estate. or Any creditor – as preparatory step for filing of his claim therein. L23445. Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will. as in the case of absolute preterition (Nuguid v. legatees and devisees of the testator resident in the Philippines at their places of residence. If the case where to be remanded for probate of the will. No. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 3. G. L. MASACAYAN & THEENA C. 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. expense. Designated or known heirs. (Sec. except by fraud. 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. a will may be sustained on the basis of Article 1080 of the NCC which states that. Dimagiba. Oct. 1967) 4. e. it will result to waste of time. PRODUCTION AND PROBATE OF WILL 1. 5. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. G. MARTINEZ 173 . as well as the approval thereof by said court. effort. 3. Devisee or legatee named in the will (Sec. 3.R. Ramagosa.because of the public policy to obey the will of the testator 4. (Fernandez v.No will shall pass either real or personal property unless it is proved and allowed in the proper court. L-27421.g. irrespective of whether its provisions are valid and enforceable. Rule 76) 4. 9. Note: However. (Mang. (Sumilang v. Rule 76).

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. Jurisdictional facts: I. MEMBERS: AKEMI B. JR. who may be asked questions with respect to matters pertaining to the will. Dec. compliance with publication and notice must first be shown before the introduction of testimony in support of the will. JUANENGO. 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. and if the court deems it necessary. PLATON III. 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. and Due execution of the will. 8. (Sec. GRETCHEN C. MARA KHRISNA CHARMINA F. or any of them.resident. his residence at the time of his death III. the province where the estate was left 2. 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. The subscribing witnesses are dead or insane. LIM. DUMLAO. (Sec. JUSTICE JAIME M. 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. MICHAEL ANGELO V. Rule 76) 1. Rule 76) 1. RHONDEE E. JUDGE CESAR D. MIJARES. FLORES. Holographic will Note: At the hearing. UNICA AMOR R. SHERY PAIGE A. BORJA. AIDA. MARIANO. (Sec. TERESE RAY-ANNE O.. SY. ages and residences of the heirs. DIANE CAMILLA R. The sanity of the testator. (Yuseco v. MANANQUIL. CONTENTS OF PETITION FOR ALLOWANCE FOR WILL Q: What are the contents of a petition for allowance of a will? A: 1. Nos. ROSALES . STAMARIA. 5. (Sec. 7. EDELISE D.R. (Sec. The name of the persons for whom letters are prayed. KATRINA NADINE G. (Sec. 4. L-40719-21. Rule 76) 174 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B.UST GOLDEN NOTES 2011 D. expert testimony may be resorted to. 2. The names. 7. The probable value and character of the property of the estate. PINEDA. 3. 11. Conclusive on the whole world. YRIZ TAMIE A. 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. Rule 76) Contested 1. In the absence of competent witness. ASST.. 11. QUIAMBAO. 29. The name of the person having custody of the will if it has not been delivered to the court. BAGANG. LANTIN. if not modified. HERRERA. (Sec. SR. JUSTICE OSCAR C. 5. RONN ROBBY D. DONNA GRAGASIN. legatees and devisees of the testator or decedent. ALBAÑA. or None of them resides in the Philippines. Q: What are the instances when the court may admit the testimony of witnesses other than the subscribing witnesses? A: 1. Not subject to collateral attack and it stands as final. if non. or reversed on appeal by a higher court. 2. or revoked by a direct proceeding. 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. CA. 8. 5. death of the testator and II. Note: The court may admit proof of handwriting of the testator and of the subscribing witnesses. (Sec. CONTRIBUTORS: VICENTE JAN O. SUBJECT HEAD: ANGELI P. MENDOZA. 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. KRISTINE P. AQUINO. 5. set aside. (Sec. if such witness testifies that the will was executed as is required by law. MA. 2. and 3. SUBJECT HEADS: DARRELL L. G.

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

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

(Gabriel v. or to any competent person named in the opposition (Sec. (Sec. The order of appointment of a regular administrator is appealable. 3.R. Rule 79). 4. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. G. 1. 1990). POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS. suffer the consequences of waste. 7. 3. the executor or administrator must file his application with the probate court which must grant the same. Vol. G. and may examine and take copies of books and papers relating to the partnership. improvidence or mismanagement. Rule 79). Note: He may attach thereto a petition for letters of administration and pray that letters be issued to himself. 3. G. Where no notice is required by Sec. have the higher interest and most influential motive to administer the estate correctly (Gonzales v. (Sec. Rule 84) 2. p. if such persons fail to appear when notified and claim the issuance of letters to themselves (Sec. from any cause. To have the benefit of their judgment and perhaps at all times to have different interests represented. Note: To exercise these rights. 3. He can make invoices of the property belonging to the partnership.) 4. 2. No. 1. Q: Is the order of Appointment of Regular Administrator final? A: No.R. the proceeding for the settelement of the estate is void and should be annulled. 101512. 1. Rule 84) ACADEMICS CHAIR: LESTER JAY ALAN E. 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. SABUGO & JOHN HENRY C. RESTRICTIONS ON THE POWERS Q: What are the rights of the executor or administrator of the deceased partner’s estate? A: 1. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY. 26751. 6. 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.SPECIAL PROCEDINGS Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute v. No. MASACAYAN & THEENA C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 74769. He shall at all times have access to.R. Q: What are the grounds for opposing a petition for administration? A: Any interested person may by filing a written opposition. or When a person entitled to the administration of an estate desires to have another competent person associated with him in the office. and property in the partnership’s hands or control shall be exhibited to such executor or administrator. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. III-A. an intricate and perplexing one to settle. Aguinaldo. papers. Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person. and the surviving partner or partners on request. Rule 79). 4. To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate. Aug. Jan. CA. 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. Sept. Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased. No. or Contestant's own right to the administration (Sec. (Herrera. 28. 1992) Incompetency of the person for whom letters are prayed therein. 94. though it appears that there are other competent persons having better right to the administration. 1969). and The books. 31. speedy and economical administration of the estate or on the other hand. Note: Letters of administration may be granted to any qualified applicant. 2. 2005 ed. 1. 5. Q: When may co-administrators be appointed? A: 1. CA. 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. MARTINEZ 177 . Where the estate is large or.

1996). GRETCHEN C. TERESE RAY-ANNE O. Mar. either in person or mediation of another. 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. 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. (Mananquil v. the property under administration. 2430. 6. Guadiz. G. AQUINO. DONNA GRAGASIN. MARIANO. KRISTINE P. SUBJECT HEADS: DARRELL L. L-48585. BORJA. Rule 80). To have access to. 31. 2. No. A. pp. Note: The administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval. it can only be exercised so long as it is necessary for the payment of debts and expenses of administration (Ruiz v. Q: Is the right of an executor/administrator to the possession and management of property of the deceased absolute? A: No. (Herrera. and 178 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. SY. He cannot profit by the increase or decrease in the value of the property under administration. BAGANG. JUSTICE JAIME M. KATRINA NADINE G. RONN ROBBY D.M. CONTRIBUTORS: VICENTE JAN O. ASST. DUMLAO. MANANQUIL. DIANE CAMILLA R. 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. He cannot borrow money without authority from the court. SHERY PAIGE A. 5. IIIA. CA. ROSALES . MEMBERS: AKEMI B. MENDOZA. or When the executor or administrator is a claimant against the estate he represents (Sec. Q: What are the qualifications of a special administrator? A: These are not spelled out in the Rules of Court. UNICA AMOR R. the appointment should be within the sound discretion of the court. He cannot lease the property under administration for more than 1 year. He cannot speculate with funds under administration. ALBAÑA. 4. RHONDEE E. Note: Only one special administrator at a time may be appointed. YRIZ TAMIE A. He cannot acquire by purchase. SR. JUANENGO. MICHAEL ANGELO V. Jan. Thus.) 7. even at public or judicial action. MARA KHRISNA CHARMINA F. No. since the appointment is merely temporary.118671. HERRERA. Q: What are the restrictions on the powers of administrator or executor? A: 1.R. SUBJECT HEAD: ANGELI P. Villegas. QUIAMBAO. G. 5. 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. JUDGE CESAR D. PINEDA. and ii) For the payment of expenses of administration powers of an 6.R. 30. Aug. PLATON III. 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. FLORES. 2005 ed. The fundamental and legal principles governing the choice of a regular administrator should also be taken into account in 5. 29. JUSTICE OSCAR C. Rule 86).UST GOLDEN NOTES 2011 Q: What are the general administrator or an executor? A: 1. 4. 1980). LIM. 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. LANTIN. JR. MIJARES. 1. STAMARIA.. EDELISE D. 3. 1990) Q: When are the grounds for the appointment of a special administrator? A: 1. He cannot continue the business of the deceased unless authorized by the court. MA. AIDA. 116-117.. 2. Vol. No. 2.

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

2005 ed. G. TIME WHITIN WHICH CLAIMS SHALL BE FILED. the claims are barred forever.2 of Rule 86 is intended to give the court the discretion to fix the period for the filing of the claims. No. resigns. CLAIMS AGAINST THE ESTATE 1. for cause shown and on such terms as are equitable. ALBAÑA. 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. DUMLAO. 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. ROSALES . Rule 82) F. the court may. JUANENGO. (Quisumbing vs Guison. if contested between living persons. L-7840. MA. RHONDEE E.UST GOLDEN NOTES 2011 Q: Are the grounds for removal of executor or administrator the same for special administrator? A: No. Such period once fixed by the court is mandatory. (Sec. Q: What is absolute claim? A: It is one which. Aranzanso. until the will has been proved and allowed pursuant to Section 1. LIM. JUSTICE OSCAR C. Such period when fixed by the probate court becomes mandatory. 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. KATRINA NADINE G. AIDA. No. CONTRIBUTORS: VICENTE JAN O. 1957) 180 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. at any time before an order of distribution is entered. would be the proper subject of immediate legal action and would supply a basis of judgment for a sum certain. PINEDA. RONN ROBBY D. Note: Where an executor or administrator commences an action. LANTIN.R. p. If there is no remaining executor or administrator. 24. which is subject to the happening of a future uncertain event.R. GRETCHEN C. 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. Rule 86) 1. that money claims against the estate may be allowed at any time before an order of distribution is entered. SY. III-A.27657. 1. MANANQUIL. JUDGE CESAR D. 2. BORJA. at the discretion of the court for the cause and upon such terms as are equitable. (Sec. Aug. (Sec. Rule 82. TERESE RAY-ANNE O. 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. Dec. 132. Otherwise. MARIANO. (Buan v. QUIAMBAO. Q: What is the rule on proceedings upon death. or is removed the remaning executor or administrator may administer the trust alone. Vol. 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. BAGANG. G. unless the court gransts letters to someone act with him. ASST. EDELISE D. MENDOZA. 2. SUBJECT HEADS: DARRELL L. MARA KHRISNA CHARMINA F. 76 Phil 730) 2. allow such claim to be filed within a time not exceeding one (1) month. MEMBERS: AKEMI B. SUBJECT HEAD: ANGELI P. 30.. L. However.. Note: The range of period specified in Sec. FLORES. Q: Does the discovery of a will automatically terminate the letters of administration? A: No. on application of a creditor who has failed to file his claim within the time previously limited. Rule 86) The period prescribed in the notice to creditors is not exclusive. To prosecute or defend actions commenced by or against the former executor or administrator. AQUINO. MICHAEL ANGELO V. The probate court is permitted by the rule to set the period as long as it is within the limitation provided. (De Parreno v. SHERY PAIGE A. JR. JUSTICE JAIME M. Laya. UNICA AMOR R. 4. DIANE CAMILLA R. or prosecutes an action already commenced by the deceased in his lifetime. MIJARES. resignation or removal of an executor or administrator? A: When an executor or administrator dies. YRIZ TAMIE A. PLATON III. (Herrera. and To recover execution on judgments in the name of former executor or administrator. HERRERA. STAMARIA. KRISTINE P. DONNA GRAGASIN. Q: What is contingent claim? A: It is a conditional claim. administration may be granted to any suitable person.) 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. SR.

A: As expressly provided by the rule. at any time before an order of distribution is entered. express or implied. they would be barred. Estate of Alice O. Q: What if the effect of claims not filed? XPN: Belated claims. 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. 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. MASACAYAN & THEENA C. 20. Rule 86 of the Rules of Court. On application of a creditor who has failed to file his claim within the time previously limited. Q: What is the rule on Belated Claims? A: Belated claims may be filed even beyond the period fixed by the court: 1. 2. not due. (Sec. Hence. G.R. does not require a certification against non-forum shopping. otherwise. MARTINEZ 181 . Judgment for money against the decedent. Dec. 8. Mar. 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: 1.157912. or 4.SPECIAL PROCEDINGS claims he has against the decedent. and the defendant dies before entry of final judgment may be filed against the estate of the decedent. or (Sec. and mutual claims may be set off against each other in such action. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 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. Rule 86). All claims for funeral expenses. 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. heirs even after distribution are liable for such taxes. 2. 5. G. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 30. 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. All claims for money against the decedent. 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. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. Sheker. L-31364. However. 2007) Q: Should taxes due and assessed after the death of the decedent be presented in the form of a claim? A: No. Alan’s contingent money claim. all claims not presented within the time herein provided are barred. (Sec. 5. 2 . (Sheker v. 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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. the court may. Under Sections 1 and 5. express or implied. 3. more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. subject to certain exceptions. arising from contract. Moreover. the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him. whether the same be due. both statute of non-claims and statute of limitations must concur in order for a creditor to collect. Rule 86) estate may be commenced against the executor or administrator under Rule 87. No. 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. Is the trial court correct? A: No. (Vera v. SABUGO & JOHN HENRY C. or contingent. allow such claim to be filed not exceeding 1 month from the order allowing belated claims. Fernandez. 13. 1979) 3. The trial court dismissed the case. Expenses for the last sickness of the decedent. not being an initiatory pleading. for just causes. then the claim is barred forever. 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.R. (Sec. No. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate. after granting letters of testamentary or of administration.

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

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

SR. 5. BORJA. RHONDEE E. 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. STAMARIA. MA. Rule 88). Rule 88). the court here may authorize the executor or administrator to sell. PLATON III. or an interest therein. CONTRIBUTORS: VICENTE JAN O. MEMBERS: AKEMI B. 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. MIJARES. JUANENGO. (Sec. FLORES. 9. 7. 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. 6. and Give security therefore to the executor or administrator. Actions to recover real or personal property. Rule 87) Note: When an executor or administrator is appointed and assumes the trust. 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. 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. 2. according to their respective claims. 2. 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.UST GOLDEN NOTES 2011 the amount of their several liabilities. if the decedent fraudulently conveys property to defraud his creditors? A: 1. HERRERA. real or personal. Rule 87) Q: When should the court authorize sale. DONNA GRAGASIN. mortgage or encumber the property in the same manner as for the payment of debts and legacies in the Philippines (Sec. JUSTICE OSCAR C. 3. MARIANO. G. 9. LANTIN. KRISTINE P. Actions to recover damages for an injury to person or property. SUBJECT HEADS: DARRELL L. Q: What action may be brought by the executor or administrator? A: Recovery or protection of the property or rights of the deceased. MANANQUIL. BAGANG. in proportion to their respective credits (Sec. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS 2. 2. QUIAMBAO. ASST. from the estate. AQUINO. YRIZ TAMIE A. JUDGE CESAR D. SY. AIDA. 1... 3. SUBJECT HEAD: ANGELI P. action for causes which survive. A: Those claims which can proceed independently of the settlement proceeding such as: 1. ROSALES . Payment of cost and expenses. RONN ROBBY D. (Sec. MICHAEL ANGELO V. SHERY PAIGE A. 10. MENDOZA. DUMLAO. 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. JR. Application of the creditors. GRETCHEN C. Rule 89). MARA KHRISNA CHARMINA F. PINEDA. DIANE CAMILLA R. 3. ALBAÑA. KATRINA NADINE G. Rule 88). 1. LIM. UNICA AMOR R. Q: What are the requisites in order that executor/administrator may commence and prosecute an action for the recovery of property. JUSTICE JAIME M. 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. Rule 88). EDELISE D. There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration. (Sec. TERESE RAY-ANNE O. Enforcement of a lien. 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. and order how much and in what manner each person shall contribute (Sec. (Sec.

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

ROSALES . the payment of all debts. 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. AQUINO. he being the co-owner with other heirs of the estate.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. MENDOZA. 2.R. 1996) 3. G. the court may order the revision of the project of partition for its adjustment. ASST. As long as the order of the distribution of the estate has not been complied with. the order of distribution may be made even before the payment of all debts. 1. CA.If an heir appears after the court approved the project of partition. MICHAEL ANGELO V. 2005 ed. HERRERA. KATRINA NADINE G. Jan. JUSTICE JAIME M. MANANQUIL.) 2. DONNA GRAGASIN. Vol. No. 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. JUANENGO. STAMARIA. If it is proven that the heir has a right. SHERY PAIGE A. 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. SUBJECT HEAD: ANGELI P. LIM. No. YRIZ TAMIE A. allowance of widow and inheritance tax. (par. TERESE RAY-ANNE O. but the court is not enjoined from making the declaration of heirs prior to the satisfaction of these obligations. BAGANG. JUDGE CESAR D. SR. JUSTICE OSCAR C. The probate court shall determine whether such heir has a right to participate in the distribution of the residue. funeral expenses. EDELISE D.R. ALBAÑA. Judge of CFI of Pampanga. BORJA. G. MEMBERS: AKEMI B. Court approval is necessary only if specific property of the estate is sold. Feb. 1990) 2. 83308. CA.OPENING OF THE SETTLEMENT PROCEEDINGS-If the distribution has already been made. MOTION FOR THE RE. 1972) It is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. 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. However. (Solivio v. the probate proceedings cannot be deemed closed and terminated. MA. etc. allowances to the widow. Q: When is the order for distribution of residue made? A: GR: Order of distribution shall be made after payments of all debts. Rule 90) XPN: If the distributees or any of them gives a bond conditioned for the payment of said obligation. Rule 86 and must comply with the statute of non-claims. SY. expenses for administration. 31. DUMLAO. UNICA AMOR R. 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. He must still file his claim according to Section 9. Sec.26695. a motion for closure has already been granted. PINEDA. Remedial Law III-A. funeral expenses. An heir has the right to sell his undivided or ideal share of the estate. QUIAMBAO. L. CONTRIBUTORS: VICENTE JAN O. KRISTINE P.. AIDA. 12. 23. and not before. if the estate is insolvent. charges of administration. PLATON III. 118671. 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. SUBJECT HEADS: DARRELL L. MOTION TO SET ASIDE THE DISTRIBUTION. CA.. (Sec. (Guilas v. III-A. (Herrera. JR. No. Jan. G. 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. 1. the creditor shall not enjoy priority over other claimants. MARIANO. 119777. GRETCHEN C. G.R. 1997) Q: Does the finality of the approval of the project of partition by itself alone terminate the probate proceeding? A: No. 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. (Estate of Ruiz v. Oct. 213. FLORES. LANTIN. 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. p. 186 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. MIJARES. RHONDEE E. MARA KHRISNA CHARMINA F.R. No. 29. this is not mandatory. (Herrera. DIANE CAMILLA R. (Heirs of Pedro Escanlar v. RONN ROBBY D. The provision in the will should only establish the claim of the creditor against the estate.

XPNS: 1. To enforce payment of the expenses of partition. 3. Q: When is title to property vested to the heirs? A: It is vested from finality of order of distribution. G. expenses of administration or legacies or for the preservation of property or if sale will be beneficial to heirs. Judge of I. 228. MARTINEZ 187 . 85 Phil. legatees and heirs in possession of the decedent’s assets. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. if trustee dies. 4. the regulations contained in Rule 89. 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. And when the sale or mortgage is to be made. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 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. it becomes final. 29. MASACAYAN & THEENA C. To satisfy the costs when a person is cited for examination in probate proceedings. Sept. encumber or mortgage property if it is necessary for the purpose of paying debts. Otherwise. The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs. 2.R. (Vda. Q: Is the order that determines distributive share appealable? A: Yes.SPECIAL PROCEDINGS reglementary period. 7 should be complied with. 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. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR EXECUTOR/ ADMINISTRATOR Accounts are NOT under oath and except for initial and final submission of accounts. 1970) CFI of Mindoro. Lopez. legatees and devisees residing in the Philippines. and 3. TRUSTEES 1. L-28602. de Lopez v. No. SABUGO & JOHN HENRY C. 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. 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. provided the order of closure has not yet become final and executory. Sec. resigns or is removed in a contractual trust. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. To satisfy the distributive shares of the devisees. a writ of execution is not the proper procedure allowed by the Rules of Court for the payment of debts and expenses of administration. In the case of Aldamiz vs.If the order of closure has already become final and executory. ACCION REINVIDICATORIA.

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

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

2. Q: What are the general powers and duties of guardians? A: 1.) Note: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. 7.M. 1. GRETCHEN C. To have the care and custody of the person of the ward. UNICA AMOR R. if the market value or annual income of the child is P 50. CONDITIONS OF THE BOND OF THE GUARDIAN Q: What are the conditions of the bond of the guardian? A: 1. JUANENGO. 4. 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. MENDOZA.14.M. 03-02-05-SC). SR. 2005 ed. 1-8. at the time designated by the rules and such other times as the court directs. KRISTINE P. 3. 1909) Q: What is the order of liability of the ward’s property? A: 1.R. JUSTICE OSCAR C. and moneys remaining in his hands. ROSALES . No. custody. JUDGE CESAR D. III-A. FLORES. Personal estate and income of real estate 2. KATRINA NADINE G. JR.000 or below. DONNA GRAGASIN. BORJA. to guarantee the performance of the obligations prescribed for general guardians (Sec. PINEDA. 03-02-05-SC) 3. To faithfully execute the duties of his trust. June 1957) 2. LANTIN. (Guerrero v. and education of the ward. Render verified inventory within 3 months after his appointment and annually thereafter. collect debts. p. EDELISE D. L-9620. G. MICHAEL ANGELO V. Manage the estate of the ward frugally.M. the parent concerned shall furnish a bond in such amount as the court may determine. to the person lawfully entitled thereto. effects. STAMARIA. Mar. Sec. QUIAMBAO. Administrator of Veteran Affairs. MARIANO. Teran. DUMLAO. A. within 3 months.. L4898. DIANE CAMILLA R. Real estate Q: What are the requisites to authorize the guardian to join in the partition proceedings after hearing? A: 1. No. Vol. and at the expiration of his trust. BAGANG. but in no case less than 10% of the value of such property or annual income. 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. ASST. MARA KHRISNA CHARMINA F. and apply the proceeds to the maintenance of the ward. To make and return to the court. 282. SUBJECT HEAD: ANGELI P. MA. XPN: If the market value of the property or the annual income of the child exceeds P50. RHONDEE E. MANANQUIL. Rule 96.UST GOLDEN NOTES 2011 v. settle his accounts with the court and deliver and pay over all the estate. 17. SY. to the possession or knowledge of any other person for him. 4. 5. LIM. TERESE RAY-ANNE O. To render a true and just account of all the estate of the ward in his hands. Sec.. 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. and To perform all orders required by the court (Sec. Rule 94. MIJARES. MEMBERS: AKEMI B. YRIZ TAMIE A. and to provide for the proper care. A. SHERY PAIGE A. To settle accounts. JUSTICE JAIME M. (Secs. manage and dispose of the estate according to the rules for the best interests of the ward. No. 03-02-05SC). 6. and/or the management of his estate. 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. 2. CONTRIBUTORS: VICENTE JAN O. and of all proceeds or interest derived there from. ALBAÑA. SUBJECT HEADS: DARRELL L. and appear in actions for the ward. A. Hearing Notice to relatives of the ward. AQUINO. 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. 3.000. and of the management and disposition of the same. 2. RONN ROBBY D. or due from him on such settlement. AIDA. Pay the debts of the ward. 19. and upon application of interested persons. and upon application of interested persons Consent to a partition of real or personal property owned by ward jointly or in common with others. HERRERA. 16. No. PLATON III. A: GR: No.

4. RULE ON GUARDIANSHIP OVER MINOR Q: Who may petition for appointment of guardian for resident? A: 1. 4. In such case. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Any relative. 5. Minor himself is 14 years of age. 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. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 3. 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. No. Lack of conflict of interest with the minor. Financial status. or incapacity of his parents. Q: What are the factors to be considered for the appointment of guardian of minors? ACADEMICS CHAIR: LESTER JAY ALAN E. unless unfit or disqualified. (Section 2.M. Q: Who may be appointed as guardian of a minor? A: In default of parents or a court-appointed guardian.M. in case several grandparents survive. 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. 10. the guardianship court may issue an order directing its delivery or return. 2. observing. mental. or both. who in the sound discretion of the court would serve the best interests of the minor (Sec. the court may appoint a guardian of the person or property. Suspension. 3. A. 3. Availability to exercise the powers and duties of a guardian for the full period of the guardianship. or to any suitable person named in the opposition (Sec. 03-02-05-SC). 03-02-05-SC. Relationship of trust with the minor. A. this Rule shall be suppletory to the provisions of the Family Code on Guardianship (Section 1.M. or that letters of guardianship issue to himself. Q: What are the grounds for the appointment of a guardian over the person or property. Rule 9). A. unless unfit or disqualified. 5. 2. as far as practicable. Moral character. 4. Other person on behalf of the minor. and psychological condition. Majority of the alleged minor.SPECIAL PROCEDINGS 3. Any other person. MARTINEZ 191 . or When the best interests of the minor so require (Sec. A. 2. the court shall select any of them taking into account all relevant considerations. the following order of preference: 1. Secretary of Social Welfare and Development AND by the Secretary of Health in case of insane minor who needs to be hospitalized. 2. (Sec. 2. SABUGO & JOHN HENRY C. A. No. No.M. 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.M. 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. 3. continued absence. A. of a minor. MASACAYAN & THEENA C. 10. Oldest brother or sister of the minor over 21 years of age. or both. Sec. 03-02-05-SC). 03-02-05-SC). No. Physical. or 4. Death. No. 4. deprivation or termination of parental authority. if the latter is found unsuitable to exercise parental authority. 6. XPN: When the ward’s right or title to the property is clear and undisputable. Remarriage of surviving parent.M. 03-02-05-SC). A: 1. 7. 6. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.9. Actual custodian of the minor over 21 years of age. 4. of a minor? A: 1. or Unsuitability of the person for whom letters are prayed for (Sec. 03-02-05-SC). Q: What are the grounds for opposition to petition of guardianship of minors? A: 1. and Ability to manage the property of the minor (Sec. Surviving grandparent and.

MEMBERS: AKEMI B. however. L-24006. 15.. GR No. of good moral character. (Sec. 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. 15. SY. PLATON III. 2(5). 105308. and who is in a position to support and care for 192 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. KATRINA NADINE G. No. a proceeding in rem. No. it must be duly proven.R. BAGANG. 1996). G. CA. Nov. A: 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. The certification. has not been convicted of any crime involving moral turpitude. (Cang v.R. 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. 1998). LIM.. Oct. SUBJECT HEADS: DARRELL L. (Republic v. JUANENGO. 25. Elepano. thus making the entire process administrative in nature. (Republic v. in possession of full civil capacity and legal rights. ADOPTION Q: What is adoption? A: It is a juridical act.R. JR. 9523). for all intents and purposes. the philosophy behind adoption statutes is to promote the welfare of the child and every reasonable intendment should be sustained to promote that objective. DONNA GRAGASIN. or one who was voluntarily committed by his/her parent(s) or legal guardian.A. R. 92542. at the time Jurisdiction Who May adopt 1) Any Filipino citizen of legal age. null and void for lack of jurisdiction both as to party and as to the subject matter. RHONDEE E. TERESE RAY-ANNE O. ASST. 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.). care. BORJA. MENDOZA. 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. so far as the correction of entry was concerned.UST GOLDEN NOTES 2011 L. 1967) 1. MARA KHRISNA CHARMINA F. Mar. ALBAÑA. the primary evidence that the child is legally available in a domestic adoption and in an inter-country adoption proceeding (Sec. (Marcaida v. understanding and security towards the full and harmonious development of his personality. MARIANO. at least sixteen (16) years older than the adoptee. UNICA AMOR R. MANANQUIL. MICHAEL ANGELO V. RONN ROBBY D. Moreover. ROSALES . MA. AIDA. No. Ibid. JUSTICE OSCAR C. Aglubat. 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. G. SHERY PAIGE A. In taking a deposition. DUMLAO. 8. 103695. 1991). QUIAMBAO. G. Abandonment cannot be merely presumed. GRETCHEN C. It is to be understood. 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. JUSTICE JAIME M. 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. FLORES. DIANE CAMILLA R. CA. Adoption cannot be had without the written consent of a natural parent who has allegedly abandoned them. shall be. EDELISE D. SUBJECT HEAD: ANGELI P. SR. HERRERA. that the effects of such adoption shall be governed by laws of the Philippines. Sept. 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. which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. AQUINO. who is emotionally and psychologically capable of caring for children. 25. STAMARIA. LANTIN. there should be proof of emotional abandonment. MIJARES. CONTRIBUTORS: VICENTE JAN O. 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. JUDGE CESAR D. PINEDA.

Husband and wife shall jointly adopt. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other. and has undergone the appropriate counseling from an accredited counselor in his/her country. 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 his country has diplomatic relations with the Republic of the Philippines. joint parental authority shall be exercised by the spouses. 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. 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. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Provided. b) If married. or (iii) If the spouses are legally separated from each other. and i) Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. SABUGO & JOHN HENRY C. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. he/she is not required to meet the above age requirement. except in the following cases: (i) Iif one spouse seeks to adopt the legitimate child of one spouse by the other spouse. d) Not convicted of a crime involving moral turpitude. MARTINEZ 193 . (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.SPECIAL PROCEDINGS his children in keeping with the means of the family. 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. including the child to be adopted. Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody) of application. Convention on the Rights of the Child. That the other spouse has signified his consent thereto. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. all expenses borne by adopter) ACADEMICS CHAIR: LESTER JAY ALAN E. Supervised Custody Trial Within the country of the adopter (Mandatory. the U. e) Eligible to adopt under his/her national law. c) With capacity to act and assume all rights and responsibilities of parental authority under his national laws. however. or (ii) If one spouse seeks to adopt his own illegitimate child: Provided. (ii) One who seeks to adopt the legitimate child of his Filipino spouse. and to abide by the rules and regulations issued to implement the provisions of this Act. and that his government allows the adoptee to enter his country as his adopted child. g) Agrees to uphold the basic rights of the child as embodied under Philippine family laws. (3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. MASACAYAN & THEENA C. 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. further. 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. 2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided. XPN: if the adopter is the parent by nature of the child to be adopted or the spouse of such parent. his/her spouse must jointly file for the adoption.N.

A. No. MARA KHRISNA CHARMINA F. (Secs. May 21. 117209. SY. [Sec.) While the right of a natural parent to name the child is recognized. at least initially to use the surname of the adopter. KRISTINE P. 193. place of birth. LIM. MICHAEL ANGELO V. R. (Republic vs. 3. the following: registry number. TERESE RAY-ANNE O. dependent or neglected child or foundling 1. MENDOZA. 2. registration date. PINEDA. Declaration that child is abandoned. when applicable. 8552) Q: What is the effect of the petition for adoption in relation to use of surnames? A: Pursuant to Art. EDELISE D. even for the most noble intentions and moving supplications.R. the law on testamentary succession shall govern. GRETCHEN C. 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. DUMLAO.. if the adoptee and his biological parent/s had left a will. Hernandez. G. sex. Handbook on Special Proceedings. CONTRIBUTORS: VICENTE JAN O. KATRINA NADINE G. name and citizenship of adoptive mother and father. RHONDEE E. STAMARIA. SR. Legitimate or illegitimate child of a spouse 3. Prayer for change of name 2. FLORES. 3. and In legal and intestate succession. he may file a petition for a change of surname. as the use by the adoptee of the surname of the adopter is more an incident rather than the object of adoption proceedings. BORJA. JR. 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. MA. JUSTICE OSCAR C. ALBAÑA. 16. SHERY PAIGE A.. (Agpalo. 9. and that upon reaching the age of majority. name of child. (Republic v. G. 2003 ed. the adopter/s and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. guaranteed and protected under the law. p. including the right of the adopted to use the surname of the adopter. 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. 4. ASST. except where the biological parent is the spouse of the adopter. UNICA AMOR R. BAGANG. YRIZ TAMIE A. However. JUANENGO. DIANE CAMILLA R. 1996). RONN ROBBY D.R. MANANQUIL. JUSTICE JAIME M. ROSALES . Any child legally declared available for adoption 2. SUBJECT HEAD: ANGELI P. DOMESTIC ADOPTION a. HERRERA. Rectification of simulated birth 3. QUIAMBAO.UST GOLDEN NOTES 2011 Petition adoption for May include 1. 3(b)] 194 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. date of birth. CA. JUDGE CESAR D. 2. All legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested on the adopter/s. Feb. is unheard of in law and consequently cannot be favorably considered. and the date and place of their marriage. EFFECTS OF ADOPTION Q: What are the effects of adoption? A: 1. 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. SUBJECT HEADS: DARRELL L. for he has the right and obligation. 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. MARIANO. AQUINO. No. MEMBERS: AKEMI B. AIDA. To repeat. PLATON III. the adoptee has both the right and obligation to use the surname of the adopter. 97906. 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. LANTIN. 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. MIJARES. 5. 16-18. the so-called right of an adoptive parent to re-name an adopted child by virtue or as a consequence of adoption. DONNA GRAGASIN.

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

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

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

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

6. March 10. The health. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 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. (Sec. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. (Art. 2006). incapacity. (Sec. 213. 5. 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. 2. Pre-trial is mandatory. 164915. 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. 14. 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. 5. spiritual. and feelings of security of the minor and most encouraging to his physical. dangerous drugs or regulated substances. 03-04-04-SC) emotional violence which endangers the safety and best interests of the minor. Q: What are the stages in the pre-trial? A: 1. except when there is an existing threat or danger of physical. Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor. Q: When will the court take into consideration the choice of the child? A: The child. the court may designate other persons or an institution to take charge of the child. such as the paternal or maternal grandparent of the child. habitual drunkenness. 03-04-04-SC) Note: If the second stage does not produce an amicable settlement.R. 03-0404-SC). 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. who is over 7 years of age. No. psychological and educational environment for the holistic development and growth of the minor. Family Code) Note: If both parents are unfit. AM No. mental. The nature and frequency of contact with both parents. SABUGO & JOHN HENRY C. unless the parent so chosen is unfit to take charge of the child by reason of moral depravity. or some reputable and discreet person. unless the court finds compelling reasons to order otherwise. by mere motion of either party. 03-04-04-SC) Q: What are the other factors that the court may consider in awarding custody? A: 1. or poverty. Q: When is a child not allowed to be separated from the mother? A: Under Article 213 (2) of the Family Code. including anyone courting the parent. AM No. Such other matters which are relevant to the custody of the minor. 3. 03-04-04-SC) ACADEMICS CHAIR: LESTER JAY ALAN E. may choose which parent he prefers to live with. The most suitable physical. G. 4. AM No. no child under 7 years of age shall be separated from the mother. First stage – the parties may agree on the custody of the minor. (Sec. or his oldest brother or sister. MARTINEZ 199 . It also means the least detrimental available alternative for safeguarding the growth and development of the minor. AM No. 8. (Sec. 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. AM No. 4. 7.SPECIAL PROCEDINGS 4. safety and welfare of the minor. The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent. emotional. (Yu v. Certificate of Non-Forum Shopping signed personally by the petitioner. 14. (Sec. 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. 12. and The preference of the minor over seven years of age and of sufficient discernment. (Sec. 12. the court will proceed with the pre-trial conference. 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. unless the parent chosen is unfit. MASACAYAN & THEENA C. psychological and emotional development. Marital misconduct. protection. Habitual use of alcohol. 9. 03-04-04-SC) 2. AM No. 14. Yu.

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

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

SUBJECT HEAD: ANGELI P. EDELISE D. 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. to identify witnesses and obtain statements from them concerning the death or disappearance. LANTIN. to verify the identity of the aggrieved party. GRETCHEN C. b. and If the respondent is a public official or employee. BORJA. (Sec. EFFECTS OF FAILURE TO FILE A RETURN Q: What happens when the respondent fails to file a return? A: The court. A: The omnibus waiver rules states that all defenses not raised in the return are deemed waived. QUIAMBAO.. LIM. OMNIBUS WAIVER RULE Q: What is the Omnibus Waiver Rule? 202 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. HERRERA. JR. CONTRIBUTORS: VICENTE JAN O. liberty and security of the aggrieved party. STAMARIA. INSTITUTION OF SEPARATE ACTION Q: May a separate action be filed after filing a petition for a writ of amparo? A: Yes. MANANQUIL. to determine the cause. justice or judge shall proceed to hear the petition ex parte. It does not preclude the filing of separate criminal. MIJARES. manner. 3. (Sec. BAGANG. RONN ROBBY D. DUMLAO. The reliefs under the writ shall be available by motion in the criminal case. 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. 12).. 11. RHONDEE E. MARIANO. PLATON III. MICHAEL ANGELO V. location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance. 2. act or omission. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life. KATRINA NADINE G. All relevant information in the possession of the respondent pertaining to the threat. 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. PINEDA. (Sec. 5. 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. the court. 22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. 21) 10. 4. 8. 6. (Sec. SUBJECT HEADS: DARRELL L. FLORES. ASST. 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. YRIZ TAMIE A. 10). SY. and f. civil or administrative actions. (Sec. UNICA AMOR R. (Sec. the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. to bring the suspected offenders before a competent court. (Sec. d. 13) 9. AQUINO. DIANE CAMILLA R. its resolution and the prosecution of the case. 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. c. JUDGE CESAR D. e. MEMBERS: AKEMI B. Note: After consolidation. MARA KHRISNA CHARMINA F. ALBAÑA. 9) 7. through any act or omission. SR. JUSTICE JAIME M. JUSTICE OSCAR C. 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. the return shall further state the actions that have been or will still be taken: a. MA. SHERY PAIGE A. Note: A general denial of the allegations in the petition shall not be allowed. to identify and apprehend the person or persons involved in the death or disappearance. DONNA GRAGASIN. JUANENGO. However. AIDA.UST GOLDEN NOTES 2011 1. PROCEDURE FOR HEARING Q: What is the nature of the hearing? A: The hearing on the petition shall be summary. KRISTINE P. TERESE RAY-ANNE O. ROSALES . MENDOZA. Other matters relevant to the investigation. act or omission against the aggrieved party.

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

7. STAMARIA. collecting or storing of data or information regarding the person. JUSTICE OSCAR C. MANANQUIL. liberty or property. they assert. 1) Information or data written. FLORES. 2) 5. The Manalo brothers claim that they are under the threat of being once again abducted. rectification. the Manalo brothers’ right to security as freedom from threat is violated by the apparent threat to their life. liberty and security of person. SHERY PAIGE A. GRETCHEN C. or In default thereof. AVAILABILITY OF WRIT Q: What is writ of habeas data? 4. registers or databases. CONTENTS OF PETITION Q: What are the contents of the verified petition? A: 1. in possession or in control of the data or information. the relief may include a prayer for an order enjoining the act complained of. In blatant violation of guarantees to life. SY. DISTINGUISH FROM HABEAS CORPUS AND WRIT OF AMPARO Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. 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. LANTIN. Oct. No. SUBJECT HEADS: DARRELL L. 3. SUBJECT HEAD: ANGELI P. DIANE CAMILLA R. children and parents.. or of a private individual or entity engaged in the gathering. WRIT OF HABEAS DATA (AM No. 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. home and correspondence of the aggrieved party. A: It is a remedy available to any person whose right to privacy in life. kept captive or even killed. 2008) O. JR. G. AIDA. LIM. JUDGE CESAR D. BAGANG. JUANENGO. It is a procedure designed to safeguard individual freedom from abuse in the information age. 08-1-16-SC) 1. MENDOZA. tends to threaten violation of constitutional right to life. YRIZ TAMIE A. 204 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 6. (Sec. family. or of a private individual or entity engaged in the gathering. MICHAEL ANGELO V. descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. MEMBERS: AKEMI B. SR.UST GOLDEN NOTES 2011 detention and are physically free. namely: the spouse. KRISTINE P. UNICA AMOR R. and the person in charge. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file a petition for the writ of habeas data. suppression or destruction of the database or information or files kept by the respondent. In case of threats. However. MARIANO. JUSTICE JAIME M. 6) 2. DUMLAO. (Secretary of National Defense v. 4. these rights are snuffed out from victims of extralegal killings and enforced disappearances. the petition may be filed by: 1. HERRERA. 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. The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. PINEDA. TERESE RAY-ANNE O. Any member of the immediate family of the aggrieved party. which constitute a direct violation of their right to security of person. MARA KHRISNA CHARMINA F. BORJA. AQUINO. 180906. (Sec.. Should the court granted the petition? A: Yes. which may include the updating.R. Manalo. 2. liberty and security. family. in cases of extralegal killings and enforced disappearances. 5. ROSALES . A: Refer to page 205. MIJARES. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. 3. Such other relevant reliefs as are just and equitable. KATRINA NADINE G. home and correspondence of the aggrieved party. MA. PLATON III. ASST. DONNA GRAGASIN. They filed a petition for writ of amparo. EDELISE D. RONN ROBBY D. RHONDEE E. and may be ordered destroyed by the court. CONTRIBUTORS: VICENTE JAN O. the government office. 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. 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. ALBAÑA. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. any ascendant. if known The reliefs prayed for. 2. collecting or storing of data or information regarding the person. (Sec. QUIAMBAO.

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. CONTENTS OF RETURN Q: What should the respondent allege in his verified return? A: The respondent. INSTITUTION OF SEPARATE ACTION Q: Does the filing of a petition for the writ of habeas data prohibit the filing of separate criminal. When a subsequent criminal action is 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. 2. 20). state secrets. A: 1. the procedure under the Rule shall continue to govern the disposition of the reliefs in the petition. 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. unless reasonably extended by the Court. 12) 8. and the purpose for its collection. A disclosure of the data or information about the petitioner. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. 11. and Other allegations relevant to the resolution of the proceeding. 3. In case of respondent in charge. MASACAYAN & THEENA C. The currency and accuracy of the data or information held. and c. destruction. confidentiality of the source of information of media and others. or order the deletion. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data. (Sec. 16. Note: After consolidation. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 9. civil or administrative actions. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M.SPECIAL PROCEDINGS 6. shall allege: 1. MARTINEZ 205 . or when the data or security and that it cannot be divulged to the public due to its nature or privileged character. or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable. otherwise. (Sec. 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. If the allegations in the petition are proven by substantial evidence. SABUGO & JOHN HENRY C. 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. b. Note: A general denial of the allegations in the petition shall not be allowed. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. the nature of such data or information. the privilege of the writ shall be denied. 21) 2. the petition shall be consolidated with the criminal action. within 5 working days from the service of the writ. (Sec. (Sec. (Sec. 7. in possession or in control of the data or information subject of the petition: a.). the Petition for the writ of Habeas Data shall be consolidated with the criminal action. the court shall enjoin the act complained of. 22). The lawful defenses such as national security. 10. privileged communication. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information.

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

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

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

Nature Judicial. Initiated by Sworn affidavit. Rule 108 Correction of or substantial errors of entries in the Civil Registry/ cancellation of entries. all in good faith and without prejudicing anybody. hearing is not necessary. Owner’s spouse. sisters. Owner of the record. MARTINEZ 209 . Order for hearing shall be published once a week for 3 consecutive weeks. MASACAYAN & THEENA C. Grounds Civil registrar as respondent. Local Civil Registry office where the record RTC where the corresponding civil is kept. decree or order concerning brothers. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. Name is ridiculous. The change will avoid confusion. The petitioner finds the first name or nickname to be 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. Publication Order for hearing in case of change of first name/nickname shall be published once a week for 2 consecutive weeks. Order for hearing shall be published once a week for 3 consecutive weeks. 3. 2. hearing is necessary. tainted with dishonor or extremely difficult to write or pronounce. 2. 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. or 6. 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. unaware of her alien parentage. 5. R. 4. Verified petition. Who must be notified Interested parties/Solicitor General need not be notified. Anyone authorized by law or owner of the record. Verified petition. Consul general. A sincere desire to adopt a Filipino name to erase signs of former alienage. parents. grandparents. The change will avoid confusion. N/A ACADEMICS CHAIR: LESTER JAY ALAN E. Any person interested in the act. 2. Solicitor General/ Interested parties. Judicial. 2. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C.A. tainted with dishonor or extremely difficult to write or pronounce. SABUGO & JOHN HENRY C. guardian. the civil status of persons. event. Consequence of a change of status. 1. Where to appeal . LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Habitual and continuous used and been known since childhood by a Filipino name. Where to file 1. children. hearing is necessary Summary if it involves clerical errors Adversarial if it involves substantial errors.SPECIAL PROCEDINGS A: Rule 103 Change of first name or surname. CA under Rule 41 Filed by the person desiring to change his name. Administrative. in case of adverse decision Civil Registrar General under Sec. or 3. registry is located. Solicitor General/ Interested parties. RTC of the province where the petitioner resides at least 3 months. 9048 Scope Change of first name or nickname/ correction of clerical errors of entries in the Civil Registry.

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

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

June 29. 2004). 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. Barco v.R. JUANENGO. ALBAÑA. EDELISE D. CA. (2007 Bar Question) Q: Helen is the daughter of Eliza.. supra. RONN ROBBY D. such petition may be filed within 5 years from time the petitioner discovered the error or mistake in the civil registry. LANTIN. 20. PINEDA. trustee or guardian. MA. 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. Allows or disallows a will. Procedural requirements include: (a) filing a verified petition. Determines who are the lawful heirs of a deceased person. MARIANO. CA. or any claim presented on behalf of the estate in offset to a claim against it. 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. JUDGE CESAR D. and not from the date the birth certificate was registered in the civil registry. administrator. What petition should Helen file and what procedural requirements must be observed? Explain. G. AIDA. KATRINA NADINE G. PLATON III.R. Allows or disallows. or the distributive share of the estate to which such person is entitled. SR. 140305. therefore. did not acquire jurisdiction. Settles the account of an executor. 170340. SUBJECT HEAD: ANGELI P. 412 of Civil Code may be filed. Jan. Alba v. a directly concerned party. (Lee v. Alternative Answer: It should not be granted. publication of the order is insufficient because Jeanie. 9048. DONNA GRAGASIN. 120587. QUIAMBAO. BAGANG. DUMLAO. 2. LIM. CONTRIBUTORS: VICENTE JAN O. any claim against the estate of a deceased person. who is married to another woman living in China. An in rem proceeding is validated essentially through publication. 4. or the administration of 3. a Filipina. and Tony. TERESE RAY-ANNE O.R. 2005. JR. Accordingly. in whole or in part. 5. The decision on the petition binds not only the parties thereto but the whole world. in the proceedings relating to the settlement of the estate of a deceased person. UNICA AMOR R.) 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. MARA KHRISNA CHARMINA F. SY. saying that she was not notified of the petition and hence. Celine opposed saying that the publication of the court order was sufficient compliance with due process. No. the decision was issued in violation of due process. 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. The RTC granted the petition.A. YRIZ TAMIE A. CA. Summons was served on the Civil Registrar but there was no appearance during the hearing. DIANE CAMILLA R. BORJA. 2007. JUSTICE OSCAR C. No. July 29. (c) issuance of an order fixing the time and place of hearing. MICHAEL ANGELO V. A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. In this case. G.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.R. MEMBERS: AKEMI B. JUSTICE JAIME M. 9.. AQUINO. MENDOZA. RHONDEE E. G. 164041. HERRERA. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. Jeanie filed a petition for annulment of judgment before the CA. ASST. ROSALES . FLORES. Rule. (2005 Bar Question) S. STAMARIA. 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. 212 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. G. The lower court. A: The petition for annulment of judgment before the CA should be granted. SHERY PAIGE A. (Ceruila v. GRETCHEN C. Delantar. MANANQUIL. KRISTINE P. 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. a Chinese. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. (b) naming as parties all persons who have or claim any interest which would be affected. 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. 2005). A petition for correction is an action in rem. No. (d) giving reasonable notice to the parties named in the petition. No. denied due process. Dec. Constitutes. SUBJECT HEADS: DARRELL L. an action against a thing and not against a person. hence. was not given reasonable notice. and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. APPEALS IN SPECIAL PROCEEDINGS 1. Kho. MIJARES.

Order made in administration proceedings relating to the inclusion or exclusion of items of property in the inventory of executor or administrator. 1. SABUGO & JOHN HENRY C. 4. MARTINEZ 213 . MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. MASACAYAN & THEENA C. 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. 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 41 (Appeal from the RTC to CA in exercise of its original jurisdiction) – By ordinary appeal by filing a notice of appeal. habeas data and kalikasan. Rule 42 (Petition for review from the RTC to the CA in exercise of its appellate jurisdiction) – By filing a notice of appeal. MODES OF APPEAL Q: What are the modes of appeal. Dec. 5. Order directing the administrator to take action to recover an amount due to the estate. ACADEMICS CHAIR: LESTER JAY ALAN E. a final determination in the lower court of the rights of the party appealing. 2) 6. A: 1. G. the court may. record on appeal and payment of appeal fees on questions of law or fact or both. 3. record on appeal and payment of appeal fees on questions of law or fact or both. Order appointing a special administrator. permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees. 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. and affects the substantial rights of the person appealing. record on appeal and payment of appeal fees on questions of law or fact or both. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.SPECIAL PROCEEDINGS a trustee or guardian. how perfected and their grounds? 2. 3. 22. 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. 2. (Sec. No. 4. except orders granting or denying a motion for new trial or for reconsideration (Sec. in its discretion and upon such terms as it may deem proper and just. upon compliance with the conditions set forth in Rule 90 of these rules. 2. Is the final order or judgment rendered in the case. Rule 40 (Appeal from MTC to RTC) – By filing a notice of appeal. L-29460. Rule 109).R. Order granting or denying a motion for new trial or for reconsideration. Q: What are the orders that are not appealable? A: 1. Yangco. 1928) 3. (Panis v. except that no appeal shall be allowed from the appointment of a special administrator.

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

the case falls within the exclusive jurisdiction of the Municipal Trial Court. p. 88232.R. No. The RTC has jurisdiction where the fine is more than 4. yet by the nature of the offense. 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. Q: Which court has jurisdiction over crimes punishable by destierro? A: Where the imposable penalty is destierro. No. Jan. No. how is jurisdiction determined? A: In cases where the only penalty provided by law is a fine.000 pesos including offenses committed by public officers and employees in relation to their office. a court can dismiss a case motupropio XPN: The party raising the question is guilty of estoppel or laches (Tijam v. MARTINEZ 215 .estafa and libel). 1968) 3. MASACAYAN & THEENA C. Feb. G. When there is a prejudicial question which is subjudice. Q: What is the principle of adherence? A: It provides that once jurisdiction is vested in the court. Apr.R. Sibonghanoy. Garcia. 15. SABUGO & JOHN HENRY C. Vol.CRIMINAL PROCEDURE 3. L-46934. When double jeopardy is clearly apparent. 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. Moya. 71 of the RPC.). Polo. IV. 2007 ed. Apr. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions. Where the prosecution is under an invalid law. XPNs: 1. or is construed that it shall have retroactive effect to pending case (Herrera. No. But the court which first acquires jurisdiction excludes the other courts. To afford adequate protection to the constitutional rights of the accused. the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. 1988). forcibly by warrant of arrest or upon his voluntary submission to the court. Jurisdiction over the person of the accused – The person charged with the offense must have been brought to its presence for trial. 6. 2. 3. 4.R. Q: If fine is the only penalty. G. G. As such. 65192. 1989). Eduarte. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 1988). Accessory penalties and civil liabilities are no longer determinative of criminal jurisdiction.R. Q: Is there an exception to the principle of adherence? A: Yes. 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. how is the jurisdiction of a court determined? ACADEMICS CHAIR: LESTER JAY ALAN E. Apr. G. 26. 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. where the amount of the fine does not exceed 6. When the acts of the officer are without or in excess of authority. 27. Q: In complex crimes. 5. No.g. considering that in the hierarchy of penalties under Art. 75097. Note: GR: Questions of jurisdiction may be raised at any stage of the proceedings and for lack of it. destierrofollowsarresto mayor which involves imprisonment (People v. when the subsequent statute expressly provides.000 pesos or less. 26. L-21450.000 pesos (SC Court Circular No. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Q: Which court has jurisdiction over continuing crimes? A: Continuing offenses are consummated in one place. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 4. 9.R. it is retained up to the end of litigation (Dela Cruz v. The MTC has jurisdiction where the fine is 4. 15. G. the amount thereof shall determine the jurisdiction of the court. 1990). 09-94) except in cases of criminal negligence involving damage to property which falls under the exclusive original jurisdiction of the MTC. ordinance or regulation.

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

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

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

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

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

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

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

Apr. G. EXCEPTION Q: What does duplicity of offenses means? 3. DUPLICITY OF OFFENSES. then the indictment must show that the accused does not fall within the exemptions (Herrera. trespass to dwelling. Rule 110).S. Surprises the accused in any way (U. and The qualifying and aggravating circumstances (Sec. within the territorial jurisdiction of the court.R. The test is whether the offense cannot exist without the office (Crisostomo v. the place of the commission must be alleged with particularity (e.). Jan. but prescribes certain limitation or exceptions from its violation. 8. destructive arson. MARTINEZ 223 . 2. 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. 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. 28 Phil. G. 2007 ed. 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. ACADEMICS CHAIR: LESTER JAY ALAN E. The phrase is merely “a conclusion of law”. p. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Q: What is the “duplicity rule”? A: GR: A complaint or information must charge only one offense. Sandiganbayan. without explicitly negating the exception.CRIMINAL PROCEDURE 3. 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. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. not a factual averment that would show close intimacy between the offense charged and the discharge of the accused’s official duties. SABUGO & JOHN HENRY C.R. Panlilio. 20. 1999). No. What is controlling is the specific actual allegations in the information (Lacson v. 128006. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 9. it is not necessary to employ the words used in the statute alleged to have been violated. XPN: When the place of commission is an essential element of the offense. 2005). CAUSE OF ACCUSATION Q: What is the purpose of designating the cause of accusation? A: 1. the complaint or information is sufficient if it alleges facts which the offender did as constituting a violation of law. the defendant can be convicted of the offense proven. MASACAYAN & THEENA C.g. 130. vs. Vol. 152398. 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. 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 rule with respect to the cause of accusation? A: In informing the accused of the cause of accusation against him. 14. as the exception is a matter of right which the accused has to prove. Executive Secretary. 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. To enable the court to pronounce proper judgment. To furnish the accused with such a description of the charge as to enable him to make a defense. 10. 7. The offense being charged The acts or omissions complained of as constituting the offense. No. 3. 2. IV. robbery in an inhabited house) (Sec. 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.

Silva. or 2. It does not involve a change in the basic theory of the prosecution. 3.. GR No.). RATIO: The State should not heap upon the defendant two or more charges which might confuse him in his defense. 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. IV. JUSTICE OSCAR C. SUBJECT HEAD: ANGELI P. SUBJECT HEADS: DARRELL L.covers only formal amendments provided: a. (Almeda v. STAMARIA. b. SR. HERRERA. An information filed before the effectivity of the law punishing the offense may not be amended after the law had come into effect (Herrera.31665. QUIAMBAO. PLATON III. 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. 3. YRIZ TAMIE A. AFTER THE PLEA. Rule 120). Rule 117). MARA KHRISNA CHARMINA F. MICHAEL ANGELO V. Special complex crimes. DIANE CAMILLA R. 1990) 9. p.UST GOLDEN NOTES 2011 XPNs: 1. LANTIN. With notice to the offended party. FLORES. ALBAÑA. there is a need for another arraignment of the accused under the amended information. ROSALES . Leave of court is obtained. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION Note: Section 14 applies only to original case and not to appealed case. KATRINA NADINE G. 2. 1975) Q: What are the kinds of amendment? A: 1. BORJA. ASST. in which case. AQUINO. 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. MANANQUIL. b. MARIANO. Q: Is Splitting of case allowed? A: NO. A defendant should not be harassed with various prosecution based upon the same act by splitting the same into various charges. EDELISE D. JUSTICE JAIME M. Q: What may be amended? A: Only valid information may be amended. BAGANG. and c. CONTRIBUTORS: VICENTE JAN O. This is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution. KRISTINE P. 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. With LEAVE of COURT 2. Villaluz. Q: What constitutes formal amendment? Complex crimes. DUMLAO. JUANENGO. 3. RHONDEE E. PINEDA. Crimes susceptible of being committed in various modes. MIJARES. JUDGE CESAR D. GRETCHEN C. the charge does not deprive the accused of a fair opportunity to present his defense. The test is whether or not the act was done in furtherance of a political end. Otherwise. August 6. Vol. Upon motion of the prosecutor. 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. it neither affects nor alters the nature of the offense charged. MENDOZA. 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. SY. 2007 ed. The political motive of the act should be conclusively demonstrated (Enrile v. DONNA GRAGASIN. JR. BEFORE THE PLEA GR: any amendment formal or substantial. EXCEPT when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime. 5. 4. Continuous crimes or delicto continuado.. all emanating from the same law violated when the prosecution could easily and well embody them in a single information (People v. RONN ROBBY D. the accused must move for the quashal of the same before arraignment (Sec. June 5. AIDA. UNICA AMOR R. Salazar GR NO 92163. Crimes of which another offenses is an ingredient A: Where: 1. Such amendment is not prejudicial to the rights of the accused. MEMBERS: AKEMI B. or 3. L. SHERY PAIGE A. 224 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. TERESE RAY-ANNE O. MA. 162. 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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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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RHONDEE E. EDELISE D. SHERY PAIGE A. JR. LANTIN. MARA KHRISNA CHARMINA F. Oct. KATRINA NADINE G. The parties do not have the right to examine or cross-examine each other or the witnesses.. MICHAEL ANGELO V. Drilon. HERRERA. 4Rule 112). UNICA AMOR R. FLORES. c. DONNA GRAGASIN. has personally examined the complainant and his witnesses. CONTRIBUTORS: VICENTE JAN O. DIANE CAMILLA R. MENDOZA. 232 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 4 Rule 112) Within five days from his resolution. MIJARES. the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial (Sec. GRETCHEN C. 4. a hearing may be set by the investigating officer. SUBJECT HEAD: ANGELI P. BORJA. ROSALES . RONN ROBBY D. MEMBERS: AKEMI B. G. They shall act on the resolution within ten days from their receipt thereof and shall immediately inform the parties of such action (Sec. as amended by AM 05-8-26-SC. an authorized officer. That the accused is probably guilty thereof That the accused was informed of the complaint and of the evidence submitted against him. JUANENGO. he shall recommend the dismissal of the complaint (Sec. PCGG. 1991). After preliminary investigation. 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. Q: Who are the officers authorized to conduct preliminary investigation? A: 1. 2. AQUINO. then the motion to dismiss is a mere scrap of paper. KRISTINE P. MANANQUIL. MA. ALBAÑA. and Other officers as may be authorized by law (COMELEC. 2. The judge cannot change the charge in the complaint but must make a finding on whether or not the crime charged has been committed. SY. JUDGE CESAR D.R. d. No. Note: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions (Sec. PLATON III. 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. MARIANO. ASST. Clarificatory hearing. 3. Resolution of the investigating officer Within ten days from the termination of the investigation. or as shown by the record. AIDA. If the respondent does not later on submit a counter-affidavit. QUIAMBAO.. YRIZ TAMIE A. 3(f)) If the investigating officer finds cause to hold the respondent for trial. That he. if necessary Within ten days from the submission of the counter-affidavit. 3. 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. only if there are facts and issues to be clarified either from a party or a witness. JUSTICE JAIME M. and That he was given an opportunity to submit controverting evidence (Sec. PINEDA. it will constitute a waiver on his part to file a counter-affidavit. he may file any case as warranted by the facts. 96080. LIM. TERESE RAY-ANNE O. e. JUSTICE OSCAR C. 4) The information shall contain a certification by the investigating officer under oath in which he shall certify the following: a.UST GOLDEN NOTES 2011 Note: If one files a motion to dismiss and he only asserts that the case should be dismissed. (Paderanga v. 3(e)) Note: Parties are not allowed to cross examine the witnesses during the clarificatory proceeding. BAGANG. 19. he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor. Ombudsman) 5. However. SUBJECT HEADS: DARRELL L. the parties and their lawyers are not precluded from submitting questions to the prosecutor who may ask such questions at his discretion. Otherwise. they shall submit the questions to the investigating officer who shall ask the questions (Sec. 2005). Provincial or city prosecutors and their assistants: National and Regional State Prosecutors. b. DUMLAO. STAMARIA. Apr. other affidavits and documents filed by the respondent. If they have questions to ask. SR. That there is reasonable ground to believe that a crime has been committed.

L-29590. 273.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. R. Nor is its record part of the record of the case in the RTC.A. Cruz v. 161629. No. 2007 ed.) Note: It does not place the person against whom it is taken in jeopardy. No. Vol. 2005). Q: May prosecutors conduct preliminary investigation of offenses falling within the original jurisdiction of the Sandiganbayan? A: No.R. 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.R.R. (P/Supt. 10905. A. CA. Nov. MASACAYAN & THEENA C. 83938-40. improper or inefficient. MARTINEZ 233 . Dec. the investigation of such cases (Sec. Gomez. 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. 1). 105581. 1916). 30. Vol. It is not a trial of the case on the merits (Herrera. the Ombudsman has primary authority to investigate and exclusive authority to file and prosecute Sandiganbayan cases (Ledesma v. The Ombudsman is authorized to take over at any stage. No. SABUGO & JOHN HENRY C. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal. 287. July 29.M.R. Note: A prosecutor however has shared authority to investigate and prosecute Ombudsman cases not cognizable by the Sandiganbayan(Herrera. IV. G. the accused is entitled to another preliminary investigation (US v. 6770). 2007 ed. from any investigatory agency of the government. Breva. March 6. G. 145938. p. No. unjust. p. 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. 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. IV. it may deputize other prosecuting arms of the government to conduct preliminary investigation and prosecute offenses (People v. De Asis. it is for the purpose of determining whether or not there exist sufficient ground for the filing of information. Sept. No. 9. 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. 15. 1. The dismissal of the case by the investigator will not bar the filing of another complaint for the same offense. 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. 1989). G. No. 2006). Feb. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.R. 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. but if re-filed. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. Judge Areola. Dec. by failure to invoke the right prior to or at least at the time of plea (People v. Q: Is preliminary investigation considered part of the trial? A: No. and should be held for trial (Sec.) Q: Who may conduct preliminary investigation of election cases? A: The Commission on Elections is vested the power to conduct preliminary investigations. G. 10. 7.G. 6.R. Q: Can the right to preliminary investigation be waived? A: Yes. G. Marfori. Basilla. 1982). it is not part of the trial of the criminal action in court. RTJ-01-1642. committed and the respondent is probably guilty thereof. 1993).

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

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

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

LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. No. 6. No. G. G.R. 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. Aug. 5. 149148. Of Justice. People. Jan. 15. such may be nullified by a writ of certiorari (Mendoza-Arce v. 165596. 134744. Vivar. 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. 164317. G. Nov. they have the power to review the findings of prosecutors in preliminary investigations (Social Security System v.1982). G. DOJ. before the CA pursuant to Rule 43 (De Ocampo v. No. Sec. The resolution of the Ombudsman. i. Apr. 158131. 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. A. Q: Are there instances where a new preliminary investigation is not necessary? A: Yes. Office of the Ombudsman.e. 2006). No. 18. Note: In the absence of grave abuse of discretion. Sandiganbayan. 2005). MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. 2005). Feb. CA. 2002). No. The Secretary of Justice may also motuproprio reverse or modify the resolution. and 3. Article VI. 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. June 30. G. Nos. 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. 2007). The Secretary of Justice may reverse or modify the resolution. 2001). 16. IV. 4). Jan. Apr. Herrera. MASACAYAN & THEENA C. Sec. 6. G.R. p. the Ombudsman. 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.R. Alternative Answer: The resolution of the DOJ is appealable administratively before the Office of the President. 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. Ombudsman. 8. 2005. G. 2006) When the officer conducting a conducting a preliminary investigation. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. the court orders the filing of correct information involving a cognate offense (Sy Lim v. Vol. 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. 2.CRIMINAL PROCEDURE days reckoned from the date of the filing of the petition for review.R. 2007 ed. No. Of Justice. Aug. 2006). 159190. 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. R. Mar. No. acts without or in excess of authority and resolves to file an information despite the absence of probable cause. Talavera. amendment to information is not substantial (Villaflor v.R. SABUGO & JOHN HENRY C. G.M.R. No. L-37494. 109727-28. 25. 30. RTJ-05-1909.R. 147392. 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.R. Q: Does the SC and CA have the power to review preliminary investigation? A: Yes. may be nullified by a writ of certiorari(Ramiscal v.) 5. 281. G. 6. if the latter acted without or in excess of jurisdiction. MARTINEZ 237 . No. when: 1.

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. SR. MANANQUIL. CONTRIBUTORS: VICENTE JAN O. However. 7. By the MTC 1. the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. If the preliminary investigation was conducted by the MTC judge and his findings are affirmed by the prosecutor. BORJA. LANTIN. Q: When may a warrant of arrest be issued? A: By the RTC 1. p. JUSTICE OSCAR C. 3. MARIANO.). 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. MA. UNICA AMOR R. DONNA GRAGASIN. ALBAÑA. Within 10 days from the filing of the complaint or information. JUANENGO. GRETCHEN C.. 3. 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. LIM. JR. YRIZ TAMIE A. If he finds probable cause. DUMLAO. RHONDEE E. Vol.UST GOLDEN NOTES 2011 person or persons upon the grounds stated therein (Herrera. SUBJECT HEAD: ANGELI P. 345. HERRERA. RONN ROBBY D. an examination in writing and under oath of the complainant and his witnesses 2. same procedure as above 2. 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. then the warrant is valid. 2007 ed. 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. JUSTICE JAIME M. IV. 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. TERESE RAY-ANNE O. SY. SUBJECT HEADS: DARRELL L. DIANE CAMILLA R. KATRINA NADINE G. In the absence of an inquest prosecutor. 3. 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. MIJARES. without waiting for the conclusion of the investigation. ROSALES . Since their objectives are different. and the corresponding information is filed. The judge must decide independently and must have supporting evidence other than the prosecutor’s bare report. In case of doubt on the existence of probable cause. Q: When is a warrant of arrest not necessary? A: 1. EDELISE D. 2. Q: What are the principles governing the finding of probable cause for the issuance of a warrant of arrest? A: 1. PINEDA. He must have sufficient supporting documents upon which to make his independent judgment. ASST. 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. 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. He may immediately dismiss the case if the evidence fails to establish probable cause. 2. FLORES. KRISTINE P. MEMBERS: AKEMI B. 3. PLATON III. AIDA. JUDGE CESAR D. BAGANG. he may issue a warrant of arrest if he finds after: 1. he shall issue a warrant of arrest. MENDOZA. MICHAEL ANGELO V. AQUINO. QUIAMBAO. MARA KHRISNA CHARMINA F.. SHERY PAIGE A. But if there is sufficient description to identify the person to be arrested. STAMARIA. 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. 4. The prosecutor determines it for the purpose of filing a complaint or information. If the preliminary investigation was conducted by a prosecutor. 2 months and 1 day. 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. 238 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. 2. There is a distinction between the objective of determining probable cause by the prosecutor and by the judge.

MASACAYAN & THEENA C. he may issue summons instead of warrant of arrest. he must sign a waiver of the provisions of Article 125 of the Revised Penal Code. 3. 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. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION Q: If there was no preliminary investigation conducted. what are the remedies of the accused? A: 1. Refuse to enter plea upon arraignment and object to further proceedings upon such ground. the accused who desires a preliminary investigation. before he is granted the preliminary investigation asked for by him. GR No. CFI. the procedure in Rule 112 Section 3a shall be observed. Banzuela. Otherwise inquest proper shall be conducted Determination of Probable Cause If there is probable cause. October 1. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. the detained person shall be released otherwise a preliminary investigation shall be conducted. L-21236. the penalty is at least four years. 1923 9. However. Insist on preliminary investigation. In the absence or unavailability of an inquest prosecutor. 3. may.. information shall be filed. File a certiorari. MARTINEZ 239 . an inquest will be conducted instead of preliminary investigation. If the complaint or information has been filed without a preliminary investigation. 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. As long as he is satisfied that there is no need for the necessity of placing the accused under custody. he may ask that a preliminary examination be conducted. two months and one day. GR No. 2.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. the issuance of the warrant of arrest is discretionary on the part on the part of the judge. 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. 4. Raise lack of preliminary investigation as error on appeal (US v. File for Prohibition (Conde v.1915) 5. an information or complaint may be filed against him without need for a preliminary investigation. 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. 10172. 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. 2 months and 1 day. SABUGO & JOHN HENRY C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 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 evidence does not warrant the conduct of a preliminary investigation. within five days from the time he learns of its filing. If a person is arrested lawfully without a warrant involving an offense which requires a preliminary investigation. ask for a preliminary investigation (Sec. if refused.e. If he has been arrested in a place where an inquest prosecutor is available. 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. 8. otherwise release shall be recommended. i.

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

The person must be delivered to the judicial authorities within the period specified in Art. SABUGO & JOHN HENRY C. the Court ruled as invalid the warrantless arrest that took place: 1. 19 hours after the commission of the crime of murder (People v. 125 is a procedural requirement in case of warrantless arrest. he would have fled the law as his two companions did. Del Rosario. 2. A case must be filed in court. 219 SCRA 756) Note: There is no rule on the exact proximity of the commission of the offense to the arrest. but it includes cases where the arresting officer hears the disturbance created and proceeds at once to the scene. In the following instances. Roberto was arrested three hours after the killing. Two days after a drug offense was committed (People v. An offense has been committed (close proximity between the arrest and the time of commission of the crime). Q: What is meant by personal knowledge? NOTE: the probable cause justifying a warrantless arrest must. Where the accused attempt to leave the country without permission of the court. 124 of the RPC. ACADEMICS CHAIR: LESTER JAY ALAN E.CRIMINAL PROCEDURE 4.R. The officer must have personal knowledge of offense just committed. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. No. Is the arrest a valid warrantless arrest? A: Yes. By the bondsmen for the purpose of surrendering the accused. IV. Gerente. A neighbor of the accused who witnessed the killing. 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. 3. 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. Under the abovementioned circumstances. The offense has just been committed. Art. (People v. p. 125 (Delay in the delivery of detained persons to the proper judicial authorities). 6. Q: What are the elements of hot pursuit arrest? A: 2. MARTINEZ 241 . Kimura. MASACAYAN & THEENA C. 1996) Q: What is required by the phrase “in his presence”? 1. 5. One day after the crime of robbery was committed (People v. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. 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. 125 of the RPC. he may be held criminally liable for arbitrary detention under Art. 3. they could lawfully arrest Roberto without a warrant. 104378. Vol. Q: What is the obligation of the arresting officer after the warrantless arrest? A: He must comply with the provisions of Art.Jurisdiction over the person arrested must be transferred to the judicial authorities. Manlulu. 2007 ed. 418.) A: It does not necessarily require that the arresting officer sees the offense. and Probable cause based on personal knowledge of facts or circumstances that the person/s to be arrested committed it (Herrera. of the Dangerous Drugs Law. Where the person who has been lawfully arrested escapes or is rescued. otherwise. Juatan. If they had postponed his arrest until they could obtain a warrant. 305 SCRA 740) 3. pointed to Roberto as one of the assailants. under the Rules. G. (People v. 1. 20. 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. 231 SCRA 701) 2. 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. be based on personal knowledge of facts and circumstances on the part of the person making the arrest. Aug. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. 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: 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.

BY OFFICER WITH WARRANT b. MARIANO. MICHAEL ANGELO V. 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.. HERRERA. FLORES. the 3 accused jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. LANTIN. 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. 2). a serach substantially contemporaneous with an arrest can precede the arrest at the outset of the search. ROSALES . UNICA AMOR R. SR. Objects which are fruits of the crime. when he has escaped. PINEDA. and Dangerous weapons and those which may be used as evidence in the case. GRETCHEN C. NOTE: Reasonable amount of force may be used to effect arrest . when the person to be arrested is engaged in the commission of an offense or is pursued immediately its commission. the RTC judge issued the warrants of arrest. LIM. RHONDEE E. when the person to be arrested is engaged in the commission of an offense or is pursued immediately The officer shall inform its commission. KATRINA NADINE G. Learning of the issuance of the warrants. an officer having the right to arrest an offender may use such force as necessary to effect his purpose. On the date set for hearing of their motion. 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. or forcibly resists cause of the arrest w/out before the officer has an a warrant opportunity to so inform him. 8) 1. SUBJECT HEAD: ANGELI P. MEMBERS: AKEMI B. the person to be arrested 2. This rule is applicable both where the arrest is under a warrant. 1. of his authority and the flees. PLATON III. MENDOZA. AIDA. ASST. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec.. TERESE RAY-ANNE O. BORJA. 3. the process cannot be reversed. When the giving of such information will imperil the arrest. Arrest by a private person (Sec. Alberto and Romeo were charged with murder. when the giving of such information will imperil the arrest. JUSTICE OSCAR C. and 3. QUIAMBAO. 242 REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Note: Arrest must precede the serach. when he has escaped. Upon filing of the information. and to a great extent he is made the judge of the degree of force that may be properly exerted. ALBAÑA. 3. KRISTINE P. The officer has announced his authority and purpose for entering therein. otherwise. SY. Q: May an officer break into a building or enclosure to make an arrest? What are the requisites? A: Yes. EDELISE D. Note: Private person must deliver the arrested person to the nearest police station or jail. AQUINO. or forcibly resists before the officer has an opportunity to so inform him. flees. The person to be arrested is or reasonably believed to be in the said building. STAMARIA. 2. BAGANG. 5. and 3. JUANENGO. 2. MARA KHRISNA CHARMINA F. and where there is a valid warrantless arrest. 9) The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. if the person arrested so requires. JUDGE CESAR D. DONNA GRAGASIN. By his submission to the custody of the person making the arrest a. 2. SHERY PAIGE A. Note: A lawful arrest may be made anywhere. METHOD OF ARREST Q: What are the modes of effecting arrest? A: 1. Nevertheless. and 3. JUSTICE JAIME M. When the person to be arrested flees. Arrest by officer without a warrant (Sec. 1.UST GOLDEN NOTES 2011 3. none of the accused showed up in the court for fear of being arrested. Reliable information alone is not sufficient to justify a warrantless arres under Sec. JR. 2. provided that: 1. CONTRIBUTORS: VICENTE JAN O. even on a private property or in a house. DIANE CAMILLA R. 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. Q: Jose. Q: What can be confiscated from the person arrested? A: 1. he may be held criminally liable for illegal detention. when the giving of such information will imperil the arrest. When he forcibly resists before the officer has an opportunity to inform him. BY OFFICER WITHOUT WARRANT c. By actual restraint of the person to be arrested. Rule 113. Those which might be used by the arrested person to commit violence or to escape. MIJARES. 11). MANANQUIL. YRIZ TAMIE A. 2. He has requested and been denied admittance (Sec. MA. RONN ROBBY D. SUBJECT HEADS: DARRELL L. 4. DUMLAO. Objects subject of the offense or used or intended to be used in the commission of the crime.

Bogart waived any irregularities relating to their warrantless arrest when he failed to file a motion to quash the Information on that ground. 2. As Solicitor General. not later than the start of the trial on the case (Sec. 26. such as the New People’s Army.. Only in such instance should rebellion be considered a continuing crime (People v. as the accused. 120670. he may no longer question his detention by petition for habeas corpus. Is he now barred from questioning the illegality of the arrest? A: Yes. Jurisdiction over the person of the accused can only be obtained through arrest or voluntary surrender (Dimatulac v. SABUGO & JOHN HENRY C.R. MASACAYAN & THEENA C. 23.CRIMINAL PROCEDURE The RTC judge denied their motion. Once a person has been duly charged in court. Nov. G. Macam. he was arrested without a warrant. since rebellion has been held to be a continuing crime. No. 127107. 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.R. Nos. in this case. Rule 112]. Rule 113. 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. complaint or information is for an offense penalized by fine only [Sec. 4. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Suzuki.e. Bogart raised the illegality of his arrest for the first time on appeal to the Supreme Court. No. 12. Oct. 134203.R. his remedy is to quash the information and/or the warrant of arrest. He is now estopped from questioning the legality of their arrest (People v. as provided under Sec. Complaint or information was filed pursuant to a valid warrantless arrest. Oct. Accused is already under detention. G. an information was filed in court. or to object to any irregularity in their arrest before they were arraigned. However. The court shall resolve the matter as early as possible. Q: May authorities resort to warrantless arrest in cases of rebellion? A: Yes. 2004). Rule 112]. provided that he raises them before entering his plea. 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.R. L-91011-12. Q: May an accused who has been duly charged in court question his detention by a petition for habeas corpus? A: No. However. 8 (b). the avowed purpose of which is the armed overthrow of the organized and established government. Ejandra. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G.1994) Q: Bogart was charged with the crime of kidnapping for ransom. No. otherwise it is deemed waived. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MARTINEZ 243 . Alternative Answer: No. relating to subversive armed organizations. this doctrine should be applied to its proper context – i. May 27. 3. 1998). Their filing the motion is tantamount to voluntary submission to the court’s jurisdiction and constitutes voluntary appearance. He pleaded not guilty during arraignment. irregular or lack of preliminary investigation? A: No. without raising the issue of jurisdiction over their person. he was found guilty by the court. G. 2003). After preliminary investigation. (People v. 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. 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. On appeal he claims that judgment was void due to his illegal arrest. Q: Is an application for bail a bar to questions of illegal arrest. 5. Q: Fred was arrested without a warrant. Complaint or information is filed with the MTC and it involves an offense which does not require preliminary investigation. G. After trial on the merits. Villon. 24. authorities may resort to warrantless arrests of persons suspected of rebellion. has voluntarily submitted himself to the jurisdiction of the court. Rule 114). (2008 Bar Question) Q: When is warrant of arrest not necessary? A: When the: 1. 5 (c). Objection to the illegality must be raised before arraignment. 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.

KRISTINE P. 1990). JR. No. 85866.1990) 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. for the purpose of either filing an information in court or dismissing the charges against the respondent. BAGANG. 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. examination of the accused (Alimpoos v. 32. MIJARES. and He may also be held administratively liable. GR No L-27331. SR. RHONDEE E. AIDA. DUMLAO. UNICA AMOR R. MEMBERS: AKEMI B. DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A JUDGE Q: Who may conduct the determination of probable cause? A: FISCAL. Determined personally by the judge after examination after oath of the complainant and the witnesses he may produce 3. 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. THE COURT.November 14. JUDGE CESAR D. if the determination of probable cause is for the purposes of issuance of warrant of arrest. 5. 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.UST GOLDEN NOTES 2011 raising the question. BORJA.R. QUIAMBAO. 1998). Rule 114) 5. GRETCHEN C. STAMARIA. Jan. ASST. such finding will not be disturbed by the court unless there is finding of grave abuse of discretion. issue warrant or require further affidavits (People v. MANANQUIL.G. 1981) NOTE: Posting of bail does not bar one from questioning illegal arrest (Section 26. In connection with specific offense or crime Note: A warrant of arrest has NO expiry date. RONN ROBBY D. REQUISITES OF A VALID WARRANT OF ARREST Q: What are the essential requisites of a Valid Warrant of Arrest? A: 1. PLATON III. MARIANO. 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. RPC. 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. Court of Appeals. MICHAEL ANGELO V. July 30.. CA. PINEDA. YRIZ TAMIE A. 4.R. JUSTICE JAIME M. 269. things or articles seized following the illegal arrest are inadmissible in evidence. AQUINO. NOT a petition for habeas corpus. DIANE CAMILLA R.. EDELISE D. 4. 3.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. Arresting officer may be held civilly liable for the damages under Art. G. which is judicial function (People vs. which is an executive function. TERESE RAY-ANNE O. SUBJECT HEADS: DARRELL L. KATRINA NADINE G. FLORES. HERRERA. Makasiar GR No L-82585. SY. Inting. JUANENGO. No. MENDOZA. July 24. LANTIN. 301 SCRA 475). DONNA GRAGASIN. The arresting person may be held criminally liable for illegal arrest under Art. SHERY PAIGE A. Issued upon probable cause 2. MARA KHRISNA CHARMINA F. the proper remedy is a petition to quash it. JUSTICE OSCAR C. ALBAÑA. The warrant must particularly describe the person to be arrested. ROSALES . The judge must personally evaluate the report of the prosecutor and the evidence adduced during the preliminary examination (Soliven v. CONTRIBUTORS: VICENTE JAN O. 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. NCC. CFI GR No 82760 August 30. 112035. 4. LIM. MA. SUBJECT HEAD: ANGELI P. Q: What are the consequences of illegal arrests? A: 1. 16. Cabiles. It remains valid until arrest is effected or warrant is lifted (Manangan v. The documents.

determines whether a warrant of arrest should be issued against the accused. F. 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 6. and 2.e. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. Baldado AM No. Thus. (P/Supt. In no case shall bail be allowed after the accused has commenced to serve sentence.CRIMINAL PROCEDURE to be made by the judge. he may be allowed temporary liberty under his bail. 55) Q: What are the purposes of bail? A: 1. 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. A prosecution witness may be required to post bail to ensure his appearance at the trial of the case where: 1. August 5. MARTINEZ 245 . Rule 114). BAIL 1. SABUGO & JOHN HENRY C. August 5. 2002) appearance at the trial (Almeda v. Rule 119) Q: What are the forms of bail? A: 1.M. A. No. March 6. The judge. Villaluz GR No L31665. MASACAYAN & THEENA C. i. 2. To honor the presumption of innocence until his guilt is province beyond reasonable doubt. Note: If before such finality. 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. 3. 1. RTJ-01-1642.. furnished by him or a bondsman. Upon the filing of information by the prosecutor. 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. Court of Appeals. 1993) Q: When may a judge issue a warrant of arrest? A: When probable cause exists. 1. 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. Corporate surety/ Bail bond. Q: May prosecution witness be required to post bail? A: Yes. Where the court believes that a material witness may not appear at the trial (Section 14. 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. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. the accused applies for probation. (Dinapol v. Rule 119). 77 Phil. 2. the right to bail only accrues when a person is arrested or deprived of his liberty. 92. a. 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. or Upon application of a peace officer. 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. The right to bail presupposes that the accused is under legal custody (Paderanga v. 1975).898. Bernabe. 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. to guarantee his appearance before any court as required under the conditions prescribed under the rules (Sec. Rule 114). 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. 1993) Q: May bail still be filed after final judgment? A: Bail may not be filed once there is already a final judgment (Sec. Baldado AM No 92898. 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. 24. on the other hand. Judge Areola. Cruz v. There is substitution of information (Section 4.

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

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

UNICA AMOR R. 2007 ed. his bail shall be cancelled and he shall thereafter be placed in confinement. MENDOZA. Sison. the judge is required to take into account a number of