P. 1
Rem Law Ateneo Reviewer

Rem Law Ateneo Reviewer

|Views: 327|Likes:
Published by Richard Navarro
Ateneo Bar Operations Reviewer for Rem Law
Ateneo Bar Operations Reviewer for Rem Law

More info:

Categories:Types, Reviews
Published by: Richard Navarro on Jan 15, 2013
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less






3. Special Proceedings – remedy by which a party seeks to establish a status, a right, or a particular fact.


ORDINARY ACTION Governed by rules. CIVIL ordinary SPECIAL CIVIL ACTION Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71). Special features not found in ordinary civil actions.

RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are not penal statutes. They cannot be given retroactive effect. They can, however, be made applicable to cases pending at the time of their passage and therefore are retroactive in that sense. Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations: 1. It must provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade; and 3. Shall not diminish, increase or modify substantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed by one court of justice. against another. One party prosecutes The moment said claim is another for the filed before a court, the enforcement or claim is converted into an protection of a right or action or suit. QuickT the prevention or redress ime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. of a wrong. APPLICABILITY: 1. Civil Action – one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. 2. Criminal Action – one by which the Stake prosecutes a person for an act or omission punishable by law.

Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court for by the law.

(B) As to object
ACTION IN REM Direct against the thing itself. Jurisdiction over the person of the defendant is NOT required. ACTION IN PERSONAM Directed against particular persona Jurisdiction over the person of the defendant IS required. ACTION QUASI IN REM Directed against particular persons. Jurisdiction over the person of the defendant is NOT required as long as jurisdiction over the res is acquired. A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it.

A proceeding to determine the state or condition of a thing.

An action to impose a responsibility or liability upon a person directly.

Judgment is binding on the whole world.

Ex. Probate proceeding; cadastral proceeding.

Judgment is binding only upon parties impleaded or their successors in interest. Ex. Action for specific performance; action for breach of contract.

Judgment binding upon particular persons.

Ex. An action for partition; action to foreclose real estate mortgage.

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
The distinction is important in determining whether or not jurisdiction over the persons of the defendant is required. (C) As to cause REAL ACTION PERSONAL ACTION Ownership or Personal possession of property is real property is sought to be involved. recovered or where damages for breach of contract are sought. Founded on Founded on privity of real privity of estate. contract. Filed in the Filed in the court where the court where the property or any plaintiff or any part thereof is of the situated defendants resides, at the option of the plaintiff Ex. Accion Ex. Action for a reinvidicatoria sum of money. MIXED ACTION Both real and personal properties are involved. The Rules of Court are applicable by analogy or in a suppletory character and whenever practicable and convenient. Section 5. Commencement of action A civil action is commencement by: 1. The FILING OF THE COMPLAINT (when an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such LATER PLEADING); and Cabrera v. Tiano 8 SCRA 54 (1963) Civil actions are deemed commenced from the date of the filing and docketing of the complaint, without taking into account the issuance and service of summons 2. The PAYMENT OF DOCKET FEES (determined not only in the amount of the claim but also by the amount of damages). NOTE: The amount of damages should be specified not only in the body of pleading but also in the prayer. Ex. Accion publicana with a claim for damages The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive or reglementary period. An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing and not the date of the receipt thereof by the clerk of court. Section 6. Construction GENERAL RULE: Liberal construction EXCEPTIONS: 1. reglementary periods; 2. rule on forum shopping.

Founded both.


The rules on venue of real actions shall govern.

The distinction is significant in determining the venue of an action. (D)As to place of filing LOCAL ACTION TRANSITORY ACTION Must be brought in a Dependent on the place particular place where the party resides where the subject regardless of where the property is located, cause of action arose subjec unless there is an to Section 4, Rule 4. agreement to the contrary (Section 4, Rule 4). Ex. Action to recover QuickTime™ and a to recover sum Ex. Action decompressor real property. TIFF (Uncompressed) this picture. of money are needed to see Section 4. In what cases not applicable

RULE 2 CAUSE OF ACTION Section 1. Ordinary Civil Actions, basis of

NOT APPLICABLE TO: 1. Election Cases; 2. Land registration/cadastral cases; 3. Naturalization; 4. Insolvency proceedings; 5. Other cases not provided in the Rules of Court.

Section 2. Cause of action defined CAUSE OF ACTION – is the act or omission by which a party violates the right of another.

Page 4 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
The essential requisite of a cause of action 1. LEGAL RIGHT of the plaintiff. 2. CORRELATIVE OBLIGATION of the defendant to respect plaintiff’s right; and 3. Act or omission of the defendant in VIOLATION of the plaintiff’s legal right. RIGHT OF ACTION – right of a person to bring and prosecute action to obtain judgment. The essential requisites of a right of action: 1. There must be a GOOD CAUSE; 2. Compliance with all the CONDITONS PRECEDENT; and 3. Action, must be instituted by the PROPER PARTY. CAUSE OF ACTION Delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. The reason action. for the 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. The remedy or means afforded or the consequent relief. The remedial right given to a person because of the occurrence of the alleged facts. A matter of right and depends on substantive law. Affected by defenses. affirmative Section 3. One suit for a single cause of action Section 4. Splitting a cause of action, effect of SPLITTING OF CAUSE OF ACTION – is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is NOT ALLOWED. PURPOSE: To avoid multiplicity of suits and unnecessary vexation and harassment of defendants. Applies NOT only to complaints counterclaims and cross-claims. but also to

Remedies against splitting a single cause of action: A. Motion to dismiss on the ground of: 1. Litis pendentia (Rule 16, Section 1 [e]); or 2. Res judicata (Rule 16, Section 1 [f]). B. An answer alleging either as affirmative defense. (Rule 16, Section 6) GENERAL RULE: A contract embraces only one cause of action even if it contains several stipulations. EXCEPTION: A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. (e.g., promissory not payable in several installments so long as there is no acceleration clause) Blossom & Co. v. Manila Gas Corp., 55 Phil.226 (1930) DOCTRINE OF ANTICIPATORY BREACH An UNQUALIFIED and POSITIVE REFUSAL to perform a contract, though the performance thereof is not yet due, may, if the renunciation goes into the whole contract, be treated as a complete breach which will entitle the injured party to bring his action at once. Section 5. Joinder of causes of action Joinder of causes of action is purely permissive. The plaintiff can always file separate actions for each cause of action.

The formal statement of the operative facts that gives rise to remedial right. A matter of procedure and depends on the pleadings filed by the parties. Not affected by affirmative defenses (fraud, prescription, estoppel, etc.). RELIEF REMEDY

SUBJECT MATTER The procedure The thing The redress, or appropriate wrongful act, protection, legal form of contractor award or relief QuickTime™ and a property which is of action coercive TIFF (Uncompressed) decompressor which maythis picture. directly involved measure are needed to see be availed of by in the action, which the the plaintiff as concerning which plaintiff prays the means to the wrong has the court to obtain the been done and render in his desired relief. with respect to favor as which the consequence controversy has of the delict arisen. committed by the defendant.

Page 5 of 289

One of the causes of action falls within the jurisdiction of the RTC. The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined. It causes ENCOURAGED. 4. 3. and b. The original plaintiff becoming a defendant to original defendant’s counterclaim. A natural person 2. Parties in interest REAL PARTY IN INTEREST – the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. the action can proceed even in their absence. No valid judgment if indispensable party is not joined. The party joining the causes of action must comply with the rules on joinder of parties. NECESSARY PARTIES Should be joined whenever possible. PROHIBITED. Rule 3). They are those with such an interest in the There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action.one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. their presence being a sine qua non for the exercise of judicial power. venue lies thereon. An unwilling plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto (Section 10. One necessary to a complete determination or settlement of the questions involved therein: Section 2. the amount of the demand shall be the totality of the claims in all causes of action. Where the claims in the causes of action are principally for recovery of money. It multiplicity of suits and minimizes multiplicity of double vexation on the suits and inconvenience QuickTime™ and a TIFF (Uncompressed) decompressor part of the defendant ed to seeonpicture. .A right to relief in respect to or arising out of the same transaction or series of transaction and . substantive law prevails over procedural laws. The joinder shall not include special and actions or actions governed by special rules. or 3. parties. RULE 3 PARTIES TO CIVIL ACTIONS Section 1. Where the causes of action are between the same parties but pertain to different venues or jurisdiction is with the Regional Trial Court. SPLITTING OF A JOINDER OF CAUSES CAUSE OF ACTION OF ACTION There is a single cause Contemplate several of action. (Totality Rule) NOTE: The following are the elements for a joinder of parties (Section 5. A juridical person. An entity authorized by law. provided that: a. plaintiff and defendant PARTIES TO A CIVIL ACTION 1. PLAINTIFF – one having an interest in the matter of the action or in obtaining the relief demanded. A misjoined case of action may be severed and proceeded with separately. Misjoinder of causes of action Not a ground for dismissal of an action. 2. They are those whose presence is necessary to Page 6 of 289 . embodied in the same complaint. the are need this Section 6. 2. irrespective of whether the causes of action arose out of the same or different transaction. causes of action. the aggregate amount claimed shall be the test of jurisdiction. DEFENDANT . NOTE: We will follow the totality rule in BP 129 because it is elementary in statutory construction that in case of conflict. and 3.A common question of law TOTALITY RULE UNDER BP129 [Section 33(1)] Where there are several claims or causes of actions between the same or different parties. Who may be parties. INDISPENSABLE PARTIES Must be joined under any and all conditions. Rule 3).Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REQUISITES FOR JOINDER OF CAUSES OF ACTION: 1. The term defendant may include: 1.

SERIES OF TRANSACTIONS – transactions connected with the same subject matter of the suit. State why said necessary arty is omitted in the pleading Should the court find the reason for the omission unmeritorious. A person NEED NOT be judicially declared incompetent. Unwilling co-plaintiff Tuason v. Pro forma parties. TIFF (Uncompressed) decompressor Section 3. and 2. Section 9. NOTE: The failure to comply with the court’s order to include or join a necessary party without justifiable cause shall be deemed a waiver of the claim against such party. Representative this picture. guardians. Right to relief arises out of the same transaction or series of transactions. Such joinder is not otherwise prescribed by the provisions of the rules on jurisdiction and venue. Necessary party JOINT DEBTORS – indispensable party in a suit against him but necessary party in a suit against his co-debtor.the rule on permissive joinder of parties is that they can be joined in one single complaint or may themselves maintain or be sued in separate suits. or administrators. Rule 3 of the Rules of Court requires that an action must be brought in the name but not necessarily by the real party in interest. In fact. to file the complaint in the name of the plaintiff. 2. Section 6. Permissive joinder of parties PERMISSIVE JOINDER . i. CLASSIFICATION OF PARTIES IN INTEREST: 1. Requisites of permissive joinder of parties: 1. 4. being sufficient that his incompetency be alleged in the corresponding pleadings. The beneficiary shall be included in the title of the case and shall be deemed to be real part in interest. 2. it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-defendant. Compulsory joinder of Indispensable parties Section 8. Non-joinder of necessary parties to be pleaded Duty of a pleader whenever a necessary party is not joined or impleaded: 1. executors. Minor or incompetent Under the present rules. adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them. a suit may be brought by or against a minor or incompetent but with the assistance of his parents or his guardian. Section 7. Indispensable parties-those without whom and final determination can be had of an action (must be joined under all conditions). State the name of the necessary party.those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Section 4.e.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 controversy that a final would necessarily affect their rights so that the court cannot proceed without their presence. Spouses as parties Section 5. it Page 7 of 289 . There is a question of law or fact common to all the plaintiffs or defendants. 5. Section 10. are needed to see as parties QuickTime™ and a Section 4. Bolanos 95 Phil 06 (1954) Section 2. if known. Necessary (or proper) parties – those who are not indispensable but ought to be joined as parties if complete relief is to be accorded as to those already parties. of for a complete determination or settlement of the claim subject of the action (may or may not be joined) 3. the practice is for an attorney in fact to bring the action. Representative parties – those acting in fiduciary capacity such as trustees.. Quasi parties – those in whose behalf a class or representative suit is brought. and 3.

3. defendant Unknown identity or name of REQUISITES: 1. NOTE: Service of summons upon a defendant whose identify is unknown may be made by publication in a newspaper of general circulation in accordance with Section 14of Rule 14. and 3. 5. A wrong or delict is committed against a third person in the course of such transaction.) CLASS SUIT There is one single action pertaining to numerous persons. PERMISSIVE JOINDER OF PARTIES There are multiple causes of action separately belonging to several perons. implying that if the parties are numerous and it is impracticable to bring them to court. 2001). i. There is a defendant 2. Amendment to the pleading when identify of true name is discovered. Whether the suit is or is not a class suit depends upon the attending facts. His identity or name is unknown. Class suit CLASS SUIT An action where one or more may sue for the benefit of all. he may be made a defendant and the reason therefore shall be stated in the complaint. Fictitious name may be used because of ignorance of defendant’s true name an said ignorance is alleged in the complaint. The persons are so NUMEROUS that it is impracticable to join them all as parties. or other designation. They enter into a transaction. Section 15. 2. The court should order the joinder of such party and non compliance with the said order would be a ground to the dismissal of the action (Feria. The non joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action.. and 3. Misjoinder and non-joinder of parties Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action NOTE: Objections to defects in parties should be made at the earliest opportunity. devisee. Identifying description may be used. are needed to see this picture.e. NOTE: Any party in interest shall have the right to intervene to protect his individual interest. (This is an instance when a person may intervene as a matter of right. but they cannot sue under such name. REQUISITES OF A CLASS SUIT: 1. There are two or more persons not organized as a juridical entity. 4. The representative sues or defends for the benefit of all. he may join any OR all of them in the alternative. although a right to relief against one may be inconsistent with a right to relief against the other. The action must however be converted into an action in rem or quasi by attaching the defendant’s property in the Philippines. or upon the Page 8 of 289 . Objections to misjoinder cannot be raised for the first time on appeal. 2. not a mere additional defendant. Defendant is the defendant being sued. Section 11. The service of summons may be effected upon all the defendants by serving upon any of them. Section 12. one or more may sue for their benefit. 4. the moment such defect becomes apparent. Community of interests. and 6. Subject matter of the controversy is one of common or GENERAL INTEREST to many persons. Alternative Defendants Where the plaintiff is uncertain against who of several persons he is entitled to relief. Entity without juridical personality as defendant REQUISITES: 1. Section 14. sued as unknown owner. NOTE: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known. by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 If the consent of any party who should be joined as plaintiff can not be obtained. Parties bringing the class suit are SUFFICIENTLY NUMEROUS AND REPRESENTATIVE of the class and can fully QuickTime™ protect the TIFF (Uncompressed)alland a interests of decompressor concerned. Section 13. heir. NOTE: An action does not become a class suit merely because it is designated as such in the pleadings.

C. the remaining plaintiffs can processed with their own cause of action. Incompetency or Incapacity In case a party becomes incompetent or incapacitated. duty of counsel This provision applies where the claim is NOT thereby extinguished as in cases involving property and property rights such as: 1. The party or officer affected has been given REASONABLE NOTICE of the application therefore and accorded an opportunity to be heard. within 30 days after the successor takes office. the there is a SUBSTANTIAL NEED for continuing or maintaining the action. The action must primarily be for RECOVERY OF MONEY. Action on contractual money claims REQUISITES 1. the action may proceed without the need to implead him. AROSE FROM CONTRACT. In this case. EXCEPTION: When the substitution by or joinder of the transferee is ordered by court. Transfer of Interest NOTE: The transfer of interest that is obviously referred to in this section is a transfer that occurs during the pendency of the action. OR INTEREST thereon. in which case. The substitute defendant need not be summoned. Section 18. Recovery of real and personal property against the estate. 8. However. D. the action survives and may be continued by against the incompetent incapacitated assisted by his legal guardian or guardian ad litem who is his legal representative. Rule 14). GENERAL RULE: The rule does not consider the transferee an indispensable party. Section 16. the court may appoint a guardian ad litem for them. Public officer is a PARTY TO AN ACTION in his official capacity. 2.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 person in charge of the office or place of business maintained under such name (Sec. Death or separation of a party who is a public officer REQUISITES: 1. The transferor would no longer be the real party in interest if the transfer is made before the commencement of the suit. Indigent party B. subject of the action. 3. The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there are several plaintiffs. Death of party. Page 9 of 289 . During the pendency of the action. Hence. INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER: A. The ORDER OF SUBSTITUTION shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. execution shall not issue in favor of the winning party. That the successor ADOPTS ORCONTINUES OR THREATENS TO ADOPT OR CONTINUE QuickTime™ and a TIFF (Uncompressed) decompressor the action of are needed to see this picture. It is satisfactorily shown to the court by any party. It should be filed as a claim against the estate of the decedent without need of proving the claim. Section 17. The claim. the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. The deceased shall be substituted by his legal representatives in the manner provided for in Section 16 of Rule 3 and the action continues until the entry of final judgment. 2. Section 20. and his predecessor. Recover for an injury to person or property by reason of tort or delict committed by the deceased. and 3. he either DIES. DEBT. 3. express or implied. Enforcement of client on such properties and. OR OTHERWISE CEASES to hold office. 4. RESIGNS. Defendant dies BEFORE THE ENTRY OF FINAL JUDGMENT in the court in which the action was pending NOTE: Under this section. Section 21. the death of the defendant will not result in the dismissal of the action. In case of minor heirs. 2. Section 19. 5.

v. such authority shall include: 1. May be changed by the written agreement of the parties. Were the defendant or any of the principal defendants resides. 2. Voluntary submission to the court where the case is filed. Exclusive nature of the venue. Jurisdiction over the subject matter over the nature of the action is conferred by law and cannot be waived. or 4.e. or 3. Substantive. 2. Procedural. VENUE OF PERSONAL ACTIONS: 1. or physical habitation of a person. Where the plaintiff or any of the principal plaintiffs resides. 2. If they are the subjects of two distinct transactions.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Indigent – one who has no money or property sufficient and available for food. An exemption from the payment of transcript of stenographic notes. actual residence or place of abode. In the case of a non-resident defendant. or 2. A valid written agreement. if the properties are the object of the same transaction. Where a specific rule or law provides otherwise (i. Section 22. and 3. QuickTime™ and a REQUISITES FOR VENUE TO BE EXCLUSIVE: 1. Laches. 2. Polytrade Corp. the action may be brought in the place where he may be found. Notice to the Solicitor General In the absence of qualifying or restrictive words. 2. Venue of personal actions Raymond v. An exemption from the payment of docket fees. actual. 3. If case involves two properties located in two different places: 1. VENUE Place where the action is instituted. and basic necessities. Court of Appeals 166 SCRA 50 (1988) RESIDENCE –should be viewed or understood in its popular sense. Failure to object via motion to dismiss. meaning the personal. separate actions should be filed in each place unless property joined. venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rules. If property is located at the boundaries of two places: File case in either place at the option of the plaintiff. Affirmative relief sought in the court where the case is filed. shelter. Page 10 of 289 . an action for damages arising from libel). NOTE: ALL AT THE ELECTION OF THE PLAINTIFF. Section 2. Maybe waived JURISDICTION Power of the court to hear and decide a case. Banco 30 SCRA 187 (1969) TIFF (Uncompressed) decompressor are needed to see this picture. Executed by the parties before the filing of the action. If one is authorized to litigate as an indigent. Examples of qualifying or restrictive words: ‘’Only’’ ‘’Solely’’ ‘’Exclusively in this court’’ Section 1. He need not be a pauper to entitle him to litigate in forma pauperis While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing. The rule on VENUE IS NOT APPLICABLE in cases: 1. Cannot be the subject of the agreement of the parties. Venue of real actions The venue is the place where the real property or any portion thereof is located. it may be contested by the adverse party at any time before judgment is rendered. file it in any of the two places. The parties have validly agreed in writing before the filing of the action in the exclusive venue thereof (Section 4). Means of waiving venue: 1. Venue of actions against non-residents RULE 4 VENUE OF ACTIONS VENUE – the place trial or geographical location in which an action or proceeding should be brought. Section 3.

IAC 195 SCRA 641 (1991) The Court may not motu proprio dismiss a complaint on the ground of improper venue. Any property of said defendant located in the Philippines – venue: where the property or any portion thereof is situated or found. 2. except: 1. complaint may be dismissed. Section 4. may render judgment based on facts alleged in the complaint without prejudice to RULE 9 Sec 3 (c) Answer to counterclaim and crossclaim within 10 days If plaintiff fails to appear n preliminary conference. (). for real actions – where the property is located. 2. Defendant entitle to decision based on his counterclaim. The Supreme Court has the power to order a change of venue to prevent miscarriage of justice. b. Personal status of plaintiff – venue: where plaintiff resides. where a particular provision expressly or impliedly applies only to either of said courts or. for personal actions – where the plaintiff resides. NON-RESIDENT FOUND IN THE PHILIPPINESa. All crossclaim dismissed RULE 5 UNIFORM PROCEDURE IN TRIAL COURT Section 1. Uniform Procedure The procedure in the MTC shall be the dame as in the RTC. Meaning of terms QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. in civil cases governed by the Rule on Summary Procedure Section 2.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. Dacoycoy v. and b. plaintiff entitled to judgment based on complaint and what is proved therein Within 5 days after conference. NON-RESIDENT NOT FOUND IN THE PHILIPPINES – An action may be filed only when the case involves: a. If sole defendant fails to appear. An exception is provided in Section 4 of the Rule on summary Procedure. court issues record of preliminary conference Within 10 days from receipt of order submission by the parties of affidavits and position papers Rendition of judgment within 30 days from receipt of last affidavit or within 15 days after last clarificatory paper Page 11 of 289 . When Rule not applicable Preliminary conference within 30 days after last answer is filed RULES ON SUMMARY PROCEDURE SUMMARY PROCEDURE IN CIVIL CASES Filing of verified complaint with the MTC Court may summon the defendant Court may dismiss the case outright Within 10 days from receipt of summons defendant answers incorporating compulsory counterclaims or crossclaim & serves a copy on plaintiff If Defendant fails to answer in 10 days—the court motu propio or on plaintiffs own motion.

affidavits. Motion for a bill of particulars. and 2. The decision of the RTC (on appeal) in civil cases under this rule. 4. action. 8. Where the dispute involves real properties located indifferent cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. 8.00. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5. 2. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay. 3. Where one party is the government or any subdivision or instrumentality thereof. including ejectment cases. Petition for certiorari. Other evidence on the factual issues set forth in the pre-trial order. and the disputer relates to the performance of his official functions. All that is required is that within (10) days from receipt by the parties of the court’s pre-trial order. Flor 161 SCRA 393 (1988) Although a motion to dismiss is a prohibited pleading.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 their position papers setting forth the law and the facts relied upon by them. non criminal cases Page 12 of 289 . are IMMEDIATELY EXECUTORY.e. 12. or any other paper. or prohibition against any interlocutory order issued by the court. Where one party is a public officer or employee. and 2. EXCEPT: a. mandamus. RA 7160) No complaint petition. Offenses where there is no private offended party (i. 9. 10. That no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto. 3. Memorandum. 2. There has been CONFRONTATION BETWEEN THE PARTIES before the lupon chairman or pangkat. Disputes involving parties who actually reside in barangays of different cities or municipalities. Dilatory motions for postponement. 11. Interventions. Motion for a new trial or for reconsideration of a judgment or for reopening of trial. The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten0day period to submit the affidavitsQuickTime™ and a evidence. where such barangay units adjoin each other. Third party complaints. Reply. 4. Motion to declare defendant in default. Motion for extension of time to file pleadings. the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. genocide). 5. CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW (SUBSTANTIVE EXCEPTIONS): 1. and other TRIAL PROCEDURE IN CIVIL CASES No testimonial evidence is required nor cross examination of witnesses allowed. they shall submit: 1. together with TIFF (Uncompressed) decompressor are needed to see this picture. motu proprio refer the case concerned to the lupon for amicable settlement. The court may. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with prior barangay conciliation (referral to the Lupon). Such other classes of disputes which the President may determine in the interest of justice. The affidavits of their witnesses. Petition for relief from judgment. its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. and b. 6. PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE 1. at any time before trial. The filing of a prohibited pleading will not suspend the period to file an answer or to appeal Heirs of Olivas v. Book III. NOTE: While a motion to declare the defendant in default is prohibited by the rules on summary procedure. or proceeding involving any matter within the authority of the lupon shall be fired or instituted directly in court or any other government office for adjudication UNLESS 1. KATARUNGANG PAMBARANGAY LAW (Title One. 5. 6. 7. Judgments of inferior courts in cases governed by summary procedure are applicable to the RTC. the plaintiff may nevertheless file a motion to render judgment as may be warranted when the defendant fails to file an answer.000. 7.

the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing or the complaint with the punong barangay. or intimidation. and 8. 7. Any CLASS OF DISPUTE which the President may determine in the interest of justice or upon recommendation of the secretary of Justice. Page 13 of 289 . there are motions that actually seek judgment like a motion for judgment on pleadings (Rule34) and motion for summary judgment (Rule 35). 5. 4. conciliation. Where the action may otherwise be barred by the STATUTE OF LIMITATIONS. Residents of different barangays within the same city or municipality – in the barangay where the respondent or any of the respondents reside at the election of the complainant. LABOR Disputes (Montaya v. Disputes between residents of the same barangay shall be brought for settlement before lupon of said barangay. Actions to ANNUL JUDGMENT upon a compromise (Sanchez v. 9. 6. 2. PLEADING The purpose is to submit a claim or defense for appropriate judgment. 2. In such case arbitrational hearings shall follow order of adjudicative trials. and support pendente lite. Complaint. The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud. Counterclaim. CARL disputes. While the dispute is under mediation. Escayo 171 SCRA 442)).Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 not falling within the authority of the latter. Tupac. 1. Pleadings defined PLEADINGS – the written statements of the respective claims and defenses of the parties submitted to the court for appropriated judgment. attachment. PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. NOTE: HOWEVER. THE PARTIES MAY GO DIRECTLY TO COURT IN THE FOLLOWING INSTANCES (PROCEDURAL EXCEPTIONS): 1. Many kinds of motion are allowed. Where the accused is under police CUSTODY or detention. May be initiatory Always filed before judgment Only 9 kinds of pleading are allowed by the rules MOTION The purpose is to apply for an order not included in the judgment. Disputes involving real property or any interest therein – where real property or larger portion thereof is situated. Pleadings allowed 1. 3. Disputes involving the TRADITIONS of indigenous cultural community. Cannot be initiatory as they are always made in a case already filed in court. May be filed even after judgment. Where one of the parties is a juridical entity. delivery of personal property. Disputes arising at the WORKPLACE where the contending parties are employed or at the INSTITUTION where such parties are enrolled for study – in the barangay where such workplace or institution located. or arbitration. NOTE: A motion to dismiss is not pleading. 4. RULES ON VENUE UNDER THE KATARUNGAN PAMBARANAGAY LAW QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. and 9. violence. Section 2. 2. Such interruption shall not exceed 60 days from the time of the filing of the complaint with the punong barangay. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office for adjudication. Where the person has otherwise been deprived of personal liberty calling for HABEAS CORPUS proceeding. 3. 158 SCRA 459) The parties may at any stage of the proceeding AGREE IN WRITING to have the matter in dispute DECIDED by ARBITRATION either the LUPONG BARANGAT or PANGKAT. Where the ACTIONS are coupled with provisional remedies such as preliminary injunction.

Counter-counterclaim. it is not part of the answer. or incorrect inferences or conclusions from facts stated. the counterclaim may be considered compulsory regardless of the amount (Section 7. or 2. the same proceedings are had as in the original complaint. What are NOT ultimate facts: 1. 4. statements of law. AFFIRMATIVE DEFENSES. Cross-claim. 3. Section7.specific denial of the material facts or facts alleged in the pleading of the claimant essential to his cause of action.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. For this reason. Agustin v. 2. Third-party Complaint. release payment. 9. Counterclaim COUNTERCLAIM – any claim which a defending party may have against an opposing party. The details of probative matter or particulars of evidence. Defenses QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. both as to the amount and nature thereof. Legal conclusions. 7. 2. Page 14 of 289 . Complaint COMPLAINT – is the pleading alleging the plaintiff’s cause or causes of action. 8. would nevertheless prevent or bar recovery by him. It may likewise be the response to a counterclaim on a cross claim. General denial. Rule 6). the excess is considered waived Calo v. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. 5. 2 kinds of defenses that may be set forth in the answer: 1. Complaint-in-intervention. while hypothetically admitting the material allegations in the pleading of the claimant. Section 5. Counter-Cross claim. Ajax International 22 SCRA 996 (1968) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. Affirmative defenses include fraud. Section 6. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause of action. TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT: Determine whether upon the averment of facts. Compulsory Counterclaim A counterclaim before the MTC must be within the jurisdiction of said court. prescription. inferences and arguments. Upon its filing. not evidently facts or legal conclusions. Evidentiary or immaterial facts. Answer. 6. Bacalan 135 SCRA 340 (1985) If a counterclaim is filed in the MTC in excess of its jurisdictional amount. Compulsory. ULTIMATE FACTS – essential facts constituting the plaintiff’s cause of action. and any other matter by way of confession and avoidance. Permissive NOTE: In an original action before the RTC. Section 4. 4. Answer ANSWER – the pleading where the defendant sets forth his affirmative or negative defenses. NEGATIVE DEFENSES . COMPULSORY COUNTERCLAIM One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of PERMISSIVE COUNTERCLAIM It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim.allegation of anew matter which. conclusions or inferences of facts not stated. An allegation that a contract is valid or void is a mere conclusion of law. Denial in the form of a negative pregnant. Although it may be alleged in the answer. Reply. it must be answered within ten (10) days from service. a valid judgment may be properly rendered. Enumeration is not exclusive Section 3. 2. Nature of counterclaim: A counterclaim is in the nature of a cross-complaint. Counterclaims may either be: 1. Insufficient denial or denial amounting to admissions: 1.

It must arise out of. It is barred it not set up in the action. the defendant can be declared in default. it may be pleaded by filing a supplemental answer or pleading before judgment. If it is not set up in the action. A claim by one party against a co-party. to be no 1. Need not answered. in which case it is called a permissive counterclaim. Must be in respect of the opponent’s claim (Plaintiff). or be necessarily connected with. It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. Section 10. Must be answered. it is outside the jurisdiction of the court. May arise out of or be necessarily connected with the transaction or that is the subject matter of the opposing party’s claim in which case. Section 8. and 3. REQUISITES OF A COMPULSORY COUNTER CLAIM: 1. Gojo v. Cross-claim REQUIREMENTS FOR A CROSS-CLAIM: Section 9. 3. In the event that a defending party has around forQuickTime™ and a and a compulsory dismissal counterclaim at TIFF (Uncompressed) this picture. he on remedy. he may so plead his ground for dismissal as an affirmative defense in his answer. It is NOT barred even if not set up in the action. The cross-claimant is prejudiced by the claim against him by the opposing party. he will lose his counterclaim. the cross-claim is considered permissive. If he decide to file must a motion dismiss . It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. default. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. must choose only the needed to see decompressor are same time. It must be within the jurisdiction of the court. 2. it is barred except: 1. It must arise out of the subject matter of the complaint or of the counterclaim. principally because the issued raised in the counterclaim are deemed automatically joined by the allegations of the complaint. In which case. but not a cross-claim seeking an affirmative relief. it is called a compulsory counterclaim.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the opposing party’s claim. 2. Rule 11) NOTE: the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. EXCEPTION: If it is a counterclaim which either matured or was acquired by party after serving his answer. GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred. the transaction or occurrence that is the subject matter of the opposing party’s claim. (Section 9. or it may not. In this case. Counter-counterclaims and counter cross-claims Counter-Counterclaims – is a claim asserted against an original counterclaimant Counter-Crossclaims – is a claim filed against an original cross-claimant. 3rd party Complaint Against a person not a party to the action. or 2. The dismissal f the complaint carries with it the dismissal of a cross-claim which is purely defensive. Goyola 35 SCRA 557 (1970) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default . Reply Page 15 of 289 . When. Cross Claim Against a coparty Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein Counterclaim Against an opposing party. but if he opts to set up his counterclaim. otherwise. If the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim.

That to the best of his knowledge.) Section 11. in respect of his opponent’s claim. etc. EFFECT OF FAILURE TO REPLY GENERAL RULE: Filing a reply is merely optional. There could also be a fourth. THIRD-PARTY COMPLAINT Brings into the action a third person who was not originally a party. fourth etc-party defendant must be served for the court to obtain jurisdiction over his person. . in its discretion. 8. 2. RULE 7 PARTS OF A PLEADING Section 1. then the other necessary parties may be brought in under this section. Rule 8. The Body PARTS OF A PLEADING The Caption contains the following: 1. 3. third party defendant may assert any defenses which the third-party plaintiff has or may have to plaintiff’s claim Summons on third. Caption Section 2. Whether theare needed to see this picture.party complaint THIRD – PARTY COMPLAINT – a claim that a defending party may. Initiative is with the person already a party to the action. 2. it also has jurisdiction over the third party complaint. and 3. Section 12. etc. The title of the action. NOTE: A third party complaint is no proper in an action for declaratory relief. However. The date of the pleading Section 3. The relief prayed for: and 4. Where the trial court has jurisdiction over the main case. Initiative is with a nonparty who seeks to join the action. That he has read the pleading.). If one or more of the defendants in a counterclaim or cross-claim is already a party to the action. with leave of court. or although arising out of another or different transaction. indemnity. Whether it arises out of the same transaction on which the plaintiff’s claim is based. there is good ground to support it. New facts that were alleged in the answer are deemed controverted should a party fail o reply thereto. Republic v. subrogation or any other relief. Third (fourth. NOTE: An UNSIGNED PLEADING produces no legal effect. 2. The name of the court. Central Surety & Insurance 25 SCRA 641 (1968) . The allegation of the party’s claims and defenses. The Body sets forth: 1. It is not interposed for delay. The docket number if assigned. Bringing New Parties Distinguish from a 3rd party complaint: A 3rd party complaint is proper when not one of the third party defendants therein is a party to the main action. since he is not an original party. Page 16 of 289 TESTS to determine whether the third-party complaint is in respect of plaintiff’s claim: 1. and QuickTime™ and a TIFF (Uncompressed) decompressor 3. file against a person not a party to the action for contribution. the court may.party complaint with the same purpose and function. Its designation. information or belief. 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. allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay. EXCEPTION: Reply is required Where the answer is based on an ACTIONABLE DOCUMENT (Sec. 2. Signature and address The signature of the counsel is a certification: 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REPLY – the response of the plaintiff to the defendant’s answer the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. and 3. COMPLAINT IN INTERVENTION Same. regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the man action. is connected with the plaintiff’s claim.

Certification against forum-shopping FORUM SHOPPING – consists of filing multiple suits in different courts. Required ONLY for complaints or initiatory pleadings such as permissive counterclaim. omitting the statement of mere evidentiary facts. Has read the pleading. Section 4. 3. ULTIMATE FACTS – those which directly form the bases of the right sought to be enforced or the defense relied upon. 2. 1. or 4. cross-claim. Shall be ground for summary dismissal of the case with prejudice. Without prejudice to the filing administrative and criminal actions of EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING: 1. That the allegations therein are true and correct of his personal knowledge or based on authentic documents. Surla 294 SCRA 382 (1998) Certificate of non-forum shopping is not required in a compulsory counterclaim. (b) rights or causes of action. A counterclaim is not an initiatory pleading EFFECT OF FAILURE TO COMPLY: Not curable by mere amendment of the pleading but shall be cause for dismissal of the case. either simultaneously or successively. the cause of action would be insufficient. UST Hospital v. Deliberately signing a pleading in violation of the Rules. Test to determine the presence of forumshopping: Whether in the two (or more) cases pending. In general Every pleading shall contain in a methodical and logical form a plain. Deliberately filing an unsigned pleading. Alleging scandalous or indecent matter in the pleading. as well as its applicability to him Section 2. yet the plaintiff is so imperfectly informed that he can’t state them with certainty Plaintiff should state the DEFENDANT Defendant may state hypothetical allegations (affirmative defense) Defendant may also Page 17 of 289 . and not by counsel. omitting statement of mere evidentiary facts If defense relied is based on law. HOW A PLEADING IS VERIFIED By an affidavit that the affiant: 1. unless otherwise provided upon motion and after hearing EFFECT OF SUMBISSION FO FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UNDERTAKINGS THEREIN: QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Verification Pleadings need NOT be verified EXCEPT when otherwise provided by the law or rules. and (c) relief sought.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 DISCIPLINARY ACTION ON COUNSEL IN THE FOLLOWING CASES: 1. etc. EVIDENTIARY FACTS – those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts. Direct contempt. If the ultimate facts are NOT alleged. RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING Section 1. The certificate is to be executed by petitioner. COMPLAINT Filed by plaintiff ANSWER Filed by defendant Must contain a direct statement of the ultimate facts. involving the same parties. cite the pertinent legal provisions thereof. 2. and 2. as well as a cause for administrative sanctions. Alternative causes of action or defense PLAINTIFFS Alternative allegations – cases where the facts essential to the plaintiff’s cause are within the knowledge of the defendant. Indirect Contempt 2. there is identity of (a) parties. concise and direct statement of the ultimate facts. Failing to promptly report a change of his address. Section 5. without prejudice. to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief.

but can be sued) has license to do business in the and a country or is not doing QuickTime™ TIFF (Uncompressed) decompressor business are neededcountry in the to see this picture. failure to compromise. even on appeal. otherwise. or officers. Fraud. (BUT there must still be an allegation that the specific condition precedent has been complied with. IN SUMMARY: FACTS THAT MAY BE AVERRED GENERALLY: 1. it will be dismissed for lack of cause of action) 2. 5. If after the granting the motion for bill of particulars. Judgment The jurisdiction of the court a quo is presumed. Capacity to sue or be sued in a representative capacity. Section 4. Judgments of domestic or foreign courts. 3. intent. however. it may still be a ground for dismissal on reason of non-compliance with condition precedent. knowledge. (no need to show jurisdiction) 7. -foreign corporation must also aver its capacity to sue or be sued -Example of what the defendant must plead: -if the defendant wants to raise an issue as to the plaintiff’s legal capacity to sue. tribunals. Section 7. Failure to state the conditions precedent will make the complaint defective and vulnerable to dismissal. Capacity Facts showing the capacity to sue and be sued must be averred. Capacity to sue or be sued. mistake. compliance with conciliation process at the barangay level. if the defendant wants to raise an issue of his legal capacity to be sued. Conditions Precedent Pleading must state conditions precedent to the cause of action. FACTS THAT MUST BE AVERRED PARTICULARLY: Circumstances showing fraud or mistake in all averments of fraud or mistake. 6. i. Section 6. are merely conclusions of law. he should file a motion to dismiss on that ground or set it up as affirmative defense in the answer Page 18 of 289 . and are without statement of the facts to which such terms have reference. Conditions precedent. etc.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 facts within his knowledge with certainty. -Example of what must be pleaded: -that a foreign corporation (generally not allowed to sue. boards. or other condition of the mind. it is sufficient to aver the decision or judgment without setting forth matter showing jurisdiction to render it. 4. but to plead in alternative the doubtful facts which are wholly within the defendant’s knowledge and call upon the defendant to make full disclosure of these facts Plaintiff may state alternative causes of action.e. he should question the jurisdiction of the court over his person Section 5. Official document or act. Inconsistency does not operate as waiver or withdraw of defense in another portion of his answer It is sufficient that each is consistent with itself The defendant may move for a bill of particulars when the allegations of fraud. Legal existence of an organization. the plaintiff still refuses to do so. NOTE: Compliance with conciliation process is a condition precedent but not a jurisdictional requirement. be they compatible with each other or not plead as many defenses and counterclaims he may have -on the other hand. Action or defense based on document Section 3. the court may simply dismiss the complaint. condition of the mind Fraud or mistake must be stated with particularity while malice or intent must be averred generally. NOTE: a party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by SPECIFIC DENIAL which shall include supporting particulars within the pleader’s knowledge. A party desiring to raise the issue of lack of capacity to sue must do so by specific denial. Malice. on ground of lack of cause of action.

the failure to specifically deny under oath the same results in. it was not in words and figures exactly as set out in the pleading. 3. Two permissible ways of pleading an actionable document: 1. but. What to do? 1. mail) they have no place in a pleading A non-actionable document is some other extraneous document which is not the main object of the action. By specific denial under oath. that if signed by somebody else such representative had the authority to do so. At the time the document was signed. 4. Hodges 38 SCRA 159 (1971) Failure to specifically deny under oath the genuineness and due execution of an actionable document generally implies an admission of the same by the other party. Want of delivery. The corporation was not authorized under its charter to sign the instrument. do not put evidence yet. and that the formalities were complied. Duress. DUE EXECUTION mean that the document was signed voluntarily and knowingly by the party whose signature appears thereon. However. Mistake. By setting forth what is claimed to be the facts. Want or illegality of consideration. ex. By setting forth said document verbatim in the pleading. 3. 2. When the adverse party was not a party to the instrument. Defenses not waived despite specifically deny under oath: 1. 9. Payment. 5. in case of variance in the substance of the document set forth in the pleading and in the document attached). that it was duly delivered. When compliance with an order for an inspection was refused. counterfeit. Unauthorized signature. Compromise. Demand letter An actionable document is the main object of the action. 6. EXCEPT than an oath is not required: a. 4. OR b. as in the case of an agent signing for his principal. or 5. present the substance of the document in the pleading 2. Forgery in the signature. or of different import on its face from the one executed by the party or that the party whose signature it hears has signed it and that at the time it was signed. ex. such IMPLIED ADMISSION IS DEEMED WAIVED if the party asserting the same has allowed the adverse party to present evidence contrary to the contents of such document without objection Section 9 Official document or act Section 10 Specific Denial Page 19 of 289 . GENUINENESS means nothing more than that the instrument is not spurious. Section 8. even if in writing (ex letters. attach an original or copy of the document as an exhibit 3. Fraud. The document need not be formally offered in evidence. Statute of Limitations. deed of mortgage. or 2. The admission of thedecompressor genuineness and due TIFF (Uncompressed) are needed to see this picture. written contract ACTIONABLE DOCUMENT – written instrument upon which the action or defense is based. 2. By setting forth the substance of such document in the pleading and attaching said document thereto as an exhibit (contents of the document annexed are controlling. 2. 8. it was in words and figures exactly as set out in the pleadings. and 2. QuickTime™ and a 1. BUT the following defenses are waived: 1. Central Surety v. Minority or imbecility failure to The aforementioned defenses are not inconsistent with the genuineness and due execution of the document.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Applies to a cause of action or defense that relies on written document. Where the actionable document is properly alleged. 7. How to contest such document HOW TO CONTEST AN ACTIONABLE DOCUMENT: 1. execution of said document. Promissory note. Estopped.

Section 2. Allegations immaterial as to the cause of action. 4. Defendant FAILS TO ANSWER within the time allowed therefore. 2. it was not set up. and 3. whenever practicable. 2.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. Res Judicata Prescription of the action. but due to oversight. Allegations as to he amount of unliquidated damages. NOTE: this does not apply where the fact as to which want of knowledge is asserted is. and 4. By specifically denying the averment and. Interlocutorynot appealable JUDGMENT BY DEFAULT Rendered by the court following a default order or after it received. setting forth the substance of the matters relied upon for such denial. it is in effect. 2. or Crossclaim not set-up barred An AMENDED ANSWER is proper if the counterclaim or cross claim already existed at the time the original answer was filed. inadvertence. Allegation not specifically denied deemed admitted GENERAL RULE: allegations denied are deemed admitted. Final . ORDER OF DEFAULT Issued by the court. There must be a MOTION to declare the defendant in default. or excusable neglect. to the knowledge of the court. Sibonghanoy 23 SCRA 29 (1968) The court shall dismiss the claim if any of these grounds appears from the pleadings or the evidence on record. There must be PROOF of such failure to answer. These defenses may be raised at any stage of the proceedings even for the first time on appeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches. on plaintiff’s motion for failure of the defendant to failure his responsive pleading seasonably. ex parte. 2. Default. Striking out of pleading or matter contained therein Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. Lack of jurisdiction over the subject matter Litis pendentia. There must be NOTICE to the defendant by serving upon him a copy of such motion. NEGATIVE PREGNANT – a form of denial which at the same time involves an affirmative implication favorable to the opposing party. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading. WHERE NO DEFAULTS ARE ALLOWED: Page 20 of 289 . and 3. Section12. It is not his failure to appear nor failure to present evidence. Tijam v. NOT specifically EXCEPTIONS: 1. Section 3. declaration of DEFAULT – the failure of the defendant to answer within the proper period. 3. Section 11. REQUISITES FOR A DECLARATION OF DEFAULT: 1. Part admission and part denial. Defenses and objections not pleaded GENERAL RULE: Defenses and objections not raised in MOTION TODISMISS or in the ANSWER are deemed waived. an admission of the averment to pregnant with an admission of the substantial facts in the pleading responded to. so plain and necessarily within the defendant’s knowledge that his averment of ignorance must be palpable untrue.appealable EXCEPTIONS: 1. 3. Conclusion of law. A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-clam matures or is acquired after the answer is filed. plaintiff’s evidence. RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. Compulsory Counterclaim.

2. an amendment AFTER the denial of a motion to dismiss is still considered as a matter of right. Summary procedure EFFECT OF AN ORDER OF DEFAULT: entitled to notice of 1. Subsequent proceedings. the filing of the amended complaint resulted in the withdrawal of the original complaint. in which case. it will not benefit those who did not answer. 3. 2. REMEDIES FROM JUDGMENT BY DEFAULT Judgment by default TIFF (Uncompressed) decompressor Motion for new trial or to see this picture. Subsequent amendments should be made only by leave of court even if the other party has not yet served a responsive pleading. Correcting a mistake or inadequate allegation or description in any other respect. Amendments as a matter of right Amendment is a matter of right before a responsive pleading is SERVED. within 10 days after it was SERVED. Order declaring him in default. 2. Such rights can only be exercised ONCE. Requisites: 1. EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the one who answered. prohibition and mandamus where comment instead of an answer is required to be filed 5. and 4. or in case of a REPLY. If the defendant was declared in default upon an original complaint. PARTIAL DEFAULT: 1. There must be a motion filed in court. Hence. Motion to declare him in default. Amendments in general Pleadings may be amended: 1. and 5. As such. NOTE: a motion to dismiss is not a responsive pleading. If the amendment is substantial. Florendo 154 SCRA 610 (1987) A defendant declared in default cannot take part in the trial.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. Declaration of nullity of marriage. The default asserting a claim states a common cause of action against several defending parties. hence the defendant was entitled to file the answer to the amended complaint as to which he was not in default. AND 2. The answer interposes a common defense. Correcting a mistake in the name of a party. Correcting a mistake in the name of a party. 4. RULE 10 AMENDED AND SUPPLEMENTAL Section 1. and 6. Legal Separation. Striking out the name of a party. Section 2. but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. reconsideration at any time are needed after service of judgment by default and within 15/30 days therefrom QuickTime™ and a Failure to appeal without defendants fault Petition for relief from judgment within 60 days from notice of the judgment but within 6 months from entry thereof Annulment of Judgment under RULE 47 EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT B DEFAULT: Shall not exceed the amount OR be different in kind from that prayed for NOR award unliquidated damages. 2. and 3. Adding an allegation of a party. and Failure to file a motion for new trial/ denial of said motion Perfect appeal from said judgment by default within the balance of said 15/30 day period Page 21 of 289 . 2. it may be done without leave of court. Adding the name of a party. A responsive pleading had already been served. Special civil actions of certiorari. Amendments by leave of court Leave of court is required: 1. Notice to the adverse party. Section 3. Service of final orders and judgments Cavili v. 4. 3. Some of the defending parties answer and the others fall to do so. 3. Annulment of marriage.

2. They shall be treated as if raised in the pleading. NOTE: Some authors are of the opinion that admissions in superseded pleadings need not be offered in evidence pursuant to Section 4 of Rule 129. Can be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) court decompres of right as when nosee this picture. 3.193) RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. When an amended A supplemental pleading pleading is filed. Amendment is intended to confer jurisdiction to the court. Section 7. Section 4. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. Answer to the complaint Section 2. if it has a resident agent. Formal Amendments Section 5. original pleading. UNLESS a different period is fixed by the court. CA 229 SCRA 627) AMENDED PLEADING SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading. In case the defendant is a foreign private juridical entity. 2. b. 3. a.within 15 days after service of summons to him. Amendment to cure a premature or non-existing cause of action. An amended pleadings supersedes the pleading that it amends. p. Section 6. 2002. anew does not require the filing copy of the entire of a new copy of the pleading must be filed. Supplemental pleadings SUPPLEMENTAL PLEADINGS – is one which sets forth transactions. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by Refers to facts existing at the time of the commencement of the action. occurrences. 2. but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer. and 3. Answer of a defendant foreign private juridical entity Answer to a complaint 1. Amendment for purposes of delay. defense or theory of the case is changed. Failure to amend does not affect the result of the trial of these issues. 3. EFFECT OF AMENDED PLEADING 1. Pleadings may be amended to conform to the evidence. Filing of amended pleadings Page 22 of 289 .sor are needed to responsive pleading has yet been filed. Opportunity to be heard afforded to the adverse party. Instances when amendment by leave of court may not be allowed: 1. if it has no resident agent. (Regalado. Admissions in the superseded pleading can still be received in evidence against the pleader. or events which have happened since the date of the filing of the complaint.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. and 4. Take the place of the Taken together with the original pleading. it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. entire pleading. When cause of action. c. Amendment to conform to or authorize presentation of evidence When issues NOT RAISED in the pleadings are tried with the express implied consent of parties 1. 2. NOTE: The cause of action stated in the supplemental complaint must be the same as that stated in the court should not admit the supplemental complaint (Asset Privatization Trust v. Within 15 days after service of summons. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may be proved by the party relying thereon by formal offer in evidence.

If the filing of an amended complain is NOT a matter of right—within 10 days counted from notice of the court order admitting the same. Section 8. RULE 12 BILL OF PARTICULARS BILL OF PARTICULARS – a more definite statement of any matter which is not averred with sufficient definiteness or particularity.)-party complaint The third party defendant is served with summons just like the original defendant. Hence. etc. Answer to counterclaim or cross-claim Section 1. and 3. which shall NOT be less than 60 days after notice (rule 14. Section 6. as the case may be. Section 5. NOTE: The rule shall apply to the answer to an amended counterclaim. The paragraphs wherein contained. they are Page 23 of 289 . On such terms as may be just. Extension of time to plead REQUISITES: 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 publication. he also has 15. Galeon v. inadvertence. 60 days from service of summons. PURPOSE: to aid in the preparation of a responsive pleading. the period to answer should be at least 60 days. Answer to third (fourth. and amended complaint-in-intervention) If no new answer is filed. unlike the former. to file his answer. Section 7. or excusable neglect or when justice requires may be set up by the pleader BEFORE JUDGMENT. purpose A counterclaim or cross-claim must be answered within 10 days from service. Answer to supplemental complaint Answer to a supplemental complaint must be filed within 10 days from notice of the order admitting the same. Section 3. With service of such motion to other party. Counterclaim or cross-claim arising after answer Section 10. The details desired. There must be a motion. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. Existing counterclaim or cross-claim Section 9. answer to original pleading shall be deemed as answer to the amended pleading. Leave of court is necessary. 30. it must be filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading. The motion shall point out: 1. amended cross-claim. etc. and 3. The defects complained of: 2. In the filing of an amended complaint is a matter of right—within 15 days from service of amended complaint 2. Answer to amended pleadings 1. The court may extend the time to file the pleadings but may not shorten them.party complaint. answering the supplemental complaint in lieu of the10-day reglementary period. However. Section 4. Omitted counterclaim or cross-claim Counterclaims or cross-claims omitted through oversight. As in the case of the filing of an amended pleading with leave of court. Section 15) 4. Reply A reply may be filed within 10 days from service of the pleading responded to. hence. 2. amended third (fourth. the filing of supplemental complaint requires leave of court. in case of a non-resident defendant on whom extraterritorial service of summons is made. Galeon 60 SCRA 234 (1976) An action cannot be dismissed on the ground that the complaint is vague or indefinite. the court may fix a different period for QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. When applied for.. Section 11. The motion for bill of particulars shall be filed before responding to a pleading.

Compliance with order EFFECTS OF MOTION 1. The bill of particulars may be filed either in a separate or in an amended pleading. or Page 24 of 289 . in whole or in part. Deny: or 2. Contempt) -if represented by 2 counsels. Section 1. if the plaintiff fails to obey. Stay of period to file responsive pleading QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. 2. defined FILING OF PLEADINGS -Act of presenting the pleading or other paper to the clerk of court a) personally to the clerk of court b) sending them by registered mail SERVICE OF PLEADINGS Act providing a party with a copy of the pleading or paper concerned -judgment. Section4. Rule 17. Rule 9. 2. Manner of Filing FILING – act of presenting the pleasing or other paper to the clerk of court Manner of filing 1. Section 4. Grant it outright: or 3. he will still have such balance of the reglementary period to file his responsive pleading. Coverage Notice given to a party who is represented by counsel is a nullity. Section 3) Section 5. If his motion is denied. he shall have not less than 5 days to file his responsive pleading. If the order is not obeyed or in case of insufficient compliance therewith. Section 6. Allow the parties the opportunity to be heard. 4. Action by court The court may either: 1. make such order as it may deem just. Where party is represented by more than one counsel of record. If defendant fails to obey. except: 1) when he has no counsel 2) when counsel of record can’t be located 3) when party himself is directed by court to show cause (ex. unless service thereof on the party himself was ordered by the court or the technical defect was waived. Personal Service. service of notice on any of the latter is sufficient. his complaint may be dismissed with prejudice UNLESS otherwise ordered by the court. hi answer will be stricken off and his counterclaim dismissed. serving a copy thereof on the adverse party. Filing and service. counted from service of the order denying his motion. Effect of non-compliance Effect of non-compliance: 1. JUDGMENTS AND OTHER PAPERS Note: This rule is not arranged per section but per topic. It becomes part of the pleading sought to be clarified. the court: a. Rule 17. Section 3) 3.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 2. (Rule 12. may order the striking out of the pleading or the portion thereof to which the order is directed. Section 2. and he will be declared in default upon motion of the plaintiff. pleadings and orders are served to counsel. If the motion is granted. (Rule 12. Bill a part of pleading RULE 13 FILING AND SERVICE OF PLEADINGS. Sec. NOTE: If ether case. the movant can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading. Section3. Section 4. notice may be made either upon both or either of them MODES OF SERVICE a) personally b) mail c) substituted service Section 3. or b.

with 2) by leaving it instructions of in his office return to with clerk or sender if person undelivered having within 10 days charged thereof 3) leaving it at the residence of either. Service by mail Section 8. Order. service may be done by ordinary mail. Papers required to be filed and served 1. 5. Demand. 6.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. Benguet Electric Cooperative. Personal Service PERSONAL SERVICE. a QuickTime™ and TIFF (Uncompressed) d 9. the date of actual receipt is the one counted clerk of court. Pleading subsequent to the complaint. because you must first serve a copy thereof to the plaintiff. Resolution. Written Motion. 10. If registry service is not available in the locality of either sender or addressee. Pleadings subsequent to original complaint and written motions should first be served on the parties before they are filed with court. the date of actual receipt by the court of such pleading and not the date of delivery to the private carrier. v. Registered mail Filing by mail should be through the registry service which is made by deposit of the pleading in the post office. 3. Modes of Service SERVICE OF PAPERS SERVICE OF JUDGMENTS. NLRC 209 SCRA 55 (1992) If a private carrier is availed of by the party. Substituted Service SUBSTITUTED SERVICE Delivering copy to the clerk of court with proof of failure of both personal and service by mail (different from substituted service under Sec. signed by him –only then can you file an answer with proof of service. to see thiecompressor are needed or s picture. Offer of judgment. Section 5. 2. Appearance. Similar papers Papers subsequent to complaint must be filed with court and served upon parties. 8. 7. 4. 7. Notice. Rule 14) Section 4. PERSONALLY TO THE CLERK OF COURT Clerk of court endorse the date and hour of the filing SENDING THEM BY REGISTERED MAIL Date of mailing shall be considered as the date of filing Registered mail only -reason: government postal service enjoys the presumption of regularity -date of mailing = date of filing Private letter couriers -not recognized because you can’t apply the presumption of regularity to private entity -nevertheless.Actual delivery of the processes to him (includes service at the residence or his attorney) Section 7. RESOLUTIONS a) personal service b) registered mail c) publication a) personal service b) registered mail c) ordinary mail Promulgation of decision in criminal cases = reading of judgment Promulgation of decision in civil cases = date when the copy was served on the counsel by registered mail 3 KINDS OF SERVICE: PERSONAL SERVICE BY SERVICE MAIL Depositing Deliver copy in the personally: 1) party or post office. FINAL ORDERS. Judgment. with a person of sufficient age and discretion residing therein Section 6. and not through other means of transmission. is deemed to be the date of the filing of that pleading. or counsel residence. This simply means that defendant’s answer can’t be filed at once to the Page 25 of 289 . Inc.

m. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof. service may be done by ordinary mail. If it is not in the record. Final Orders or Resolutions Service by publication = only when he absconds and defendant’s address is unknown Section 10. Affirmative relief is claimed. place and manner of service. or c. Proof of filing Filing is proved by its existence in the record of the case. 2. at the party’s or counsel’s residence. PERSONAL SERVICE (SECTION 6) a. if known. With postage fully paid. registry receipt and the affidavit of the person who did the mailing with a full statement of: a. of either sender or addressee. Leaving the copy between 8 a. 3. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered. or if his office is unknown. Proof of service by ordinary mail: Affidavit of the person mailing showing compliance of Section 7 Rule 13. 1. and c. Affidavit of the party serving. 2. If filed TIFF (Uncompressed) decompressor proved by the by registered mall: are needed to see this picture. or 3. Registry receipt issued by the mailing office Section 14. b. Page 26 of 289 . or 2. Affidavit of maller showing compliance of Section 7 Rule 13. with a person of sufficient age and discretion then residing therein—if no is person found in his office. Notice of lis pendens LIS PENDENS – a notice of a pendency of the action between the parties involving title to or right of possession over real property. and.Act of providing a party with a copy of the pleading of paper concerned SUMMARY OF MODES OF SERVICE 1. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court. REQUISITES: 1. SERVICE BY MAIL (SECTION 7) If no registry service is available in the locality. or if he has no office.m. containing the date. and 6 p.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 9 Service of Judgments. and 2. Written admission of the party served. and Completeness begins the running of the period for filing of the responsive pleadings Section 11. or b. Section 13 Proof of Service Proof of personal service: 1. Priorities in modes of service and filing Personal service is preferred and written explanation is needed why such was not taken Service by registered mail may be done if the distance from the court to the adverse party is considered Section 12. If filed personally: proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same: or QuickTime™ and a 2. Completeness of Service Service is completed when: Personal Registered service mail Upon actual Upon actual delivery receipt by the addressee or 5 days from the date he received 1st notice from postmaster -1st notice from postmaster needs conclusive proof Ordinary mail Upon expiration of 10 days after mailing SERVICE. SUBSTITUTED SERVICE (SECTION 8) Delivering the copy to the clerk of court with proof of failure of both personal and service by mail. Proof of service by registered mail: 1. Official return of the server. Delivering personally a copy to the party or his counsel. Action affects the title or the right of possession of the real property.

Upon the filing of the complaint. To give notice to the defendant than an action has been commenced against him (right to due process). The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. and 3. or 4. Section 2. v. The notice is for the purpose of molesting the adverse party. as the original complaint was deemed withdrawn upon such amendment. In cases of substitution of the deceased under Section16 of Rule 3. Domingo 44 Phil 680 (1923) But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint. Section 1. One Peng v. Sheriff. summons must be served upon him. 327 SCRA 203) NOTE: This serves as a warning to all persons. SUMMONS – is the writ by which he defendant is notified of the action brought against him. . Clerk to issue summons Summons to be issued: 1. Custodio 1 SCRA 780 (1961) Where the defendant has already been served with summons on the original complaint. Where upon the death of the original defendant his infant heirs are made parties. case. new summons must served on the defendant on the amended complaint. CA. PURPOSE OF SUMMONS: 1. Sheriff’s deputy. Other proper court officers. nonservice or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and Section 5. Enumeration is EXCLUSIVE Section 4. by any suitable person authorized by the court issuing the summons. Contents Section 3. Inc. Notice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated. By whom served Summons may be served by: 1. including the judgment by default and the order of execution. GENERAL RULE: When an additional defendant is joined. prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. Return EFFECT OF NON-SERVICE: Unless the defendant voluntary submits to the jurisdiction of the court. CA 214 SCRA 242 (1992) Jurisdiction over the person of the defendant in a civil case is acquired either by his VOLUNTARY APPEARANCE or SERVICE OF SUMMONS upon him. 2. no further summons is required on the amended complaint if it does not introduce new cause of action Atkins v.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. and defendantsee decompressor in a civil are needed to 2. as section 14 provides that such cancellation may be authorized ONLY upon order of court after proper showing that: 1. To acquire jurisdiction over the person of QuickTime™ and a the TIFF (Uncompressed) this picture. It s not necessary to protect the rights of the party who caused it to be recorded. 4. When the administrator of a deceased party defendant substitutes the deceased. EXCEPTION: 1. 2. NOTE: In these instances. Notice shall contain the name of the parties and the object of the action or defense an a description of the property affected thereby. the service of the deceased under Section 16 of Rule 3. AND 2. Action in rem (AFP Mutual Benefit Association . or 3. For justifiable reasons. Issuance of Alias Summons ALIAS SUMMONS – is one issued when the original has not produced its effect because of a defect in Page 27 of 289 RULE 14 SUMMONS Minucher v. or 2. Payment of the requisite legal fees.

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
form or in the manner of service, and when issued, superseded the first writ. Section 6. Service in person on defendant Section 7. Substituted Service Section 8. Service upon entity without juridical personality Section 9. Service upon prisoner Section 10. incompetents Service upon minors and Citizen Surety v. Melencio-Herrera 38 SCRA 369 (1971) In action in personam where the defendant cannot be served with summons personal or by substituted service, the case must first be converted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. If no property can be found, the action shall be archived but shall not be dismissed, SERVICE ENTITIES OF SUMMONS ON DIFFERENT C. Publication (Section 14) Requisites: 1. The action is in rem or quasi in rem; 2. Defendant’s identity and whereabouts are unknown and cannot be ascertained or diligent inquiry and 3. there must be leave of court

Section 11. Service juridical entity




Section 12. Service upon foreign private juridical entity Section 13. Service upon public corporations Section 14. Service upon defendant whose identity or whereabouts are unknown Section 15. Extraterritorial Service Section 16. Residents temporarily outside the Philippines MODES OF SERVICE OF SUMMONS: A. Service in person on defendant (Section 6) 1. By handling a copy of summons to him, OR of he refuses to receive it; 2. By tendering it to him. B. Substituted Service (Section 7) For substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of the personal service of summons within a person reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient QuickTime™ and a Tage and discretion residing in the IFF (Uncompressed) decompressor are needed to see this picture. same place as defendant OR some competent person in charge of his office or regular place of business. Spouses Venturanza v. CA 156 SCRA 305 (1987) In substituted service, the sheriff’s return must show that an effort or attempt was exerted to personally serve the summons on the defendant and that the same had failed.

Service on entity without juridical personality (Section 8) Upon any or all the defendants being sued under common name; or person in charge of the office Service upon minors and incompetents (Section 10) In case of minors: by serving upon the minor regardless of age, AND upon his legal guardian, or also upon either of his parents In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless they are his legal guardians In any event, if the minor or incompetent has no legal guardian the plaintiff must obtain the appointment of a guardian ad litem for him. Service upon prisoner (Section 9) Serve on officer having management of the jail or prisoner (warden) Service upon domestic private juridical entity (Section 11) To the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.
Page 28 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
NOTE: Service upon a person other than those mentioned is invalid and does not bind the corporation. The enumeration is EXCLUSIVE. c) any other manner the court may deem sufficient Service upon a resident temporarily outside the Philippines (Section 16) Substituted service or with leave of court, personal service out of the Philippines as under extraterritorial service. Service upon an unknown defendant or whose whereabouts are unknown (Section 14) with leave of court, by publication in a newspaper of general circulation Montalban v. Maximo 22 SCRA 1070 (1968) Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant’s residence, even if defendant was abroad at that time. The fact that defendant did not actually receive the summons did not invalidated the service of such summons. Section 17. Leave of Court Section 18. Proof of Service Section 19. Proof of Service by Publication Section 20. Voluntary Appearance Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant. NOTE: Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance.

Service upon foreign private juridical entity (Section 12) Serve on resident agent; or if none; on government official designated by law; or any officer or agent of the corporation within the Philippines Service upon public corporations (Section 13) In case defendant is the Republic of the Philippines: by serving upon the Solicitor General In case of province , city or municipality, or like public corporations: by serving on its executive head or on such other officer or officers as the law or the court may direct Extraterritorial Service (Section 15) Requisites 1. defendant does not reside or is not found the Philippines; 2. The action must be an action in rem or quasi in rem. It either: a) affects the personal status of plaintiff; b) relates to the subject which is property within the Philippines in which defendant has a lien or interest; c) demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Philippines; or d) property of defendant has been attached in the Philippines 3. Mode of Service a) with leave of court, serve outside QuickTime™ and a the Philippine by personal TIFF (Uncompressed) decompressor are needed to see this picture. service; or b) with leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or

RULE 15 MOTIONS Section 1. Motion, defined Motion - is an application for relief other then by a pleading KINDS OF MOTIONS

Page 29 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
a. motion EX PARTE – made without the presence or a notification to the other party because the question generally presented is not debatable. (i.e. motion for extension of time to file pleadings) b. motion OF COURSE – where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court. c. LITIGATED motion – one made with notice to the adverse party to give an opportunity to oppose. (i.e. motion to dismiss) d. SPECIAL motion – motion addressed to the discretion of the court. GENERAL judgment. RULE: A motion cannot pray for 4. Motion and notice of hearing must be served at least 3 DAYS BEFORE THE DATE OF HEARING; (Section 4) and 5. PROOF OF SERVICE.(Section 6) EXCEPTIONS TO THE 3 DAYNOTICE RULE: 1. Ex parte motions; 2. Urgent motions; 3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties; and 4. Motions for summary judgment which must be served at least 10 days before its hearing. NOTE: Any motion that does not comply with Sections 4,5 and 6 of this Rule (requirements 4-5) is a mere scrap of paper. It does not interrupt the reglementary period for the filing of the requisite pleading. Section 7. Motion Day Friday afternoon Section 8. Omnibus Motion Omnibus Motion Rule – A motion attacking a pleading, order judgment or proceeding shall include all objections then available. Objections not included shall be deemed waived except the defense referred in Section 1 Section9. Motion for leave Contents: 1. The relief sought to be obtained; 2. The ground upon which it is based; and 3. If required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. Section 4. Hearing of Motion Section 5. Notice of Hearing Section 6. Proof of Service Necessary
QuickTime™ REQUISITES OF A MOTIONand a NOT TIFF (Uncompressed) decompressor MADE IN OPEN are needed to see this picture. COURT OR IN THE COURSE OF HEARING OR TRIAL: 1. it must be in WRITING; 2. HEARING OF MOTION set by the applicant; 3. NOTICE OF HEARING shall be addressed to all parties concerned not later than 10 days from the filing of the motion; (Section 5)

EXCEPTIONS: 1. Motion for judgment on the pleadings; 2. Motion for summary judgment; 3. Motion for judgment on demurrer to evidence. Section 2. Motion must be in writing GENERAL RULE: Motions must be in writing. EXCEPTIONS: Those made in OPEN COURT or in the COURSE OF HEARING or TRIAL. Section 3. Contents

Section 10. Form

RULE 16 MOTION TO DISMISS A MOTION TO DISMISS is NOT a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. GENERAL RULE: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party thereto. EXCEPTIONS: 1. Those cases where the court may dismiss a case motu proprio (Section 1, Rule 9); 2. Section2 Rule 17; (Upon the plaintiff’s own motion)
Page 30 of 289

2. However. LACHES Concerned with the effect of delay. If denied. 5. Applies at law. Not based on fixed time Page 31 of 289 Grounded on preliminary objections. not necessarily in the one instituted first. REQUISITES OF RES JUDICATA 1. Claim is unenforceable under the Statute of Frauds. There is substantial identity in the cause of action and relief sought. 2. There must be identity of parties. or else he may present evidence may be declared in if granted. May be filed only by the defendant against the complaint of the plaintiff. Claim or demand has been paid. defendant If denied. 11. Non-statutory Applies in equity. 4. Based on fixed time. would amount to res judicata in the other case. or otherwise extinguished. May be filed by any defending party against whom a claim is asserted in the action. prior to to see decompressor the plaintiff has are needed the filing of the answer completed the of the defending party presentation of his to the pleading evidence. Rule on Summary Procedure (Section 4. Upon motion by plaintiff. It hypothetically admits the allegations stated in the complaint. regardless of which party is successful. 4. 2. NOTE: a motion to dismiss generally partakes the nature of a demurrer. PRESCRIPTION A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed. 7. 3. Prescription. MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) Based on insufficiency of evidence. Litis pendentia. If granted appeals and the order . the relief being founded on the same facts. The identity in the two cases should be such that any judgment that may be rendered in one. NOTE: There could be res judicata without a trial. Improper venue. 9. asserting the claim against him. 3. a summary judgment (Rule 35). Motion to dismiss before answer under Rule 16. 8. 1991 Revised Rule on Summary Procedure) TYPES OF DISMISSAL OF ACTION: 1. 2. Judgment upon the merits. no legal capacity to sue. plaintiff default. Failure to state a cause of action. Statutory. Previous final judgment. and 3. defendant answers. Res judicata. Identify of parties or at least such parties representing the same interests in both actions. plaintiff may appeal or if subsequent case is not barred. A matter of equity. A matter of time.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. REQUISITES OF LITIS PENDENTIA 1. No jurisdiction over the subject matter of the calm. of subject matter and of cause of action between the first and second actions. Motion to dismiss called a demurer to evidence after plaintiff has completed the presentation of his evidence under Rule 33. 3. Jurisdiction over the subject matter and the parties by the court rendering it. Due to fault of plaintiff. abandoned. Dismissal of an appeal Section 1. 6. he may refile the case. or an order of dismissal under Section 3 of Rule 17. waived. such as in a judgment on the pleadings (Rule 34). Upon notice by plaintiff. the admission extends ONLY to material and relevant allegations. Motion to dismiss may be filed in either suit. Should be filed within kTime™ and a filed only after May be Quic the time for but TIFF (Uncompressed) this picture. Grounds 1. Motion to dismiss under Rule 17. of the dismissal is reversed. the defendant loses his right to present evidence. Non-compliance with a condition precedent for filing claim. PRESCRIPTION Concerned with the fact of delay. No jurisdiction over the person of the defending party. 4. 10.

2. Deny the motion. In these instances. A preliminary hearing mat be had thereon. may be pleaded as affirmative defenses and a preliminary hearing may be had thereon in the discretion of the court. or c. NON-COMPLIANCE WITH A CONDITION PRECEDENT Non-compliance with P. Appeal Certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under rule 65 Section 4. b. the remedy of the plaintiff is APPEAL. Section 6. Res judicata. Time to plead Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss. The former means there is insufficiency in the allegations in the pleading. the defendant can PROSECUTE his counterclaim. and 4. Hearing of Motion Section 3.D 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the ground on non-compliance with a condition precedent. The 2nd par. EXCEPTION: if the court acts without or in excess of jurisdiction or with grave abuse of discretion in denying the motion. RULE 17 DIMISSAL OF ACTIONS Section 1. and in the event the complaint too dismissed. Prescription. Extinguishment of the claim or demand. Dismissal upon notice by plaintiff Page 32 of 289 . he can appeal from the judgment and assign as error the denial of the motion to dismiss. Section 5. Amend the pleading. Instead.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 COMPLAINT STATES NO CAUSE OF ACTION When the ground for dismissal is that the complaint states no cause of action. are needed to see this picture. any of the grounds for dismissal provided for in rule 16. Unenforceability under the Statue of Frauds. 3. Pleading grounds as affirmative defenses If no motion to dismiss had been filed. he should NOT file a motion to dismiss. GENERAL RULE: an order denying a motion to dismiss is interlocutory. The latter means that there is insufficiency in the factual basis of the action. such fact can be determined only from the facts alleged in the complaint. The ordinary procedure is for the defendant to file hi answer and go to trial and if the decision is adverse. Effect of dismissal GENERAL RULE: the action or claim may be re-filed EXCEPTION: the action cannot be re-filed if it was dismissed on any of these grounds: 1. EFFECTS OF ACTION ON MTD Order granting motion to dismiss is final order (without prejudice) Order granting motion to dismiss (with prejudice) Order denying the motion to dismiss is interlocutory REMEDY Refile the complaint. The dismissal of the action. of Sec. CERTIORARI or PROHIBITON QuickTime™ and a TIFF (Uncompressed) decompressor lies. but not less than 5 days in any event. Resolution of Motion The court may order: a. 6 clearly provides that the dismissal of the complaint without prejudice to the prosecution of the counterclaim. NOTE: if the defendant would want to file a counterclaim. he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim. Section 2. counted from his receipt o the denial order. FAILURE TO STATE A CAUSE OFACTION and NOT LACK ORABSENCE OFCAUSE OF ACTION is the ground for a motion to dismiss. INCLUDING IMPROPER VENUE.

2. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless w/in 15 days from notice SECTION 3 Dismissal is not procured by plaintiff though justified by causes imputable to him. Dismissal under this rule is WITHOUT PREJUDICE. TIFF remedies of decompressor These alternative (Uncompressed) this picture. EXCEPT: 1. Dismissal upon motion of plaintiff Under this section. Plaintiff fails to comply with these Rules or any order of the court. unless otherwise declared by the court. Cabrera 93 Phil. SECTION 2 Dismissal is at the instance of the plaintiff. To have the same resolved in the same action. Such dismissal shall be without prejudice to the right of the defendant to either: 1. Where the notice of dismissal so provides. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence Complaint may be dismissed 1. Dismissal due to fault of plaintiff CAUSES FOR DISMISSAL 1. The answer. or 2. 774 (1953) The dismissal is still with prejudice even if the notice of dismissal does not so provide. Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA). EXCEPTION: 1. Plaintiff fails to prosecute his action for an unreasonable length of time. In this case. (NOLLEPRODEQU!) 3. 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (TWO-DISMISSAL RULE) Serrano v. When stated to be with prejudice in the order of the court. QuickTime™ and a 2. Dismissal is a matter of evidence. Section 3. Dismissal is a matter of procedure. the dismissal of the complaint is subject to the DISCRETION of the court and upon such terms and conditions as may be just. If a counterclaim has been pleaded by the defendant PRIOR TO THE SERVICE upon hum of the plaintiff’s motion for dismissal. The rule requires a COURT ORDER confirming the dismissal. an adjudication on the merits. where such notice is premised on the fact of payment by the defendant of the claim involved Section 2. Prosecute his counterclaim in a separate action.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the SERVICE of: 1. A motion for summary judgment.the defendant are are needed to see available to him REGARDLESS OFWHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE. Upon motion of the defendant. Jalover v. GENERAL RULE: Such dismissal is WITHOUT PREJUDICE. Page 33 of 289 . Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint. Ytoriaga 80 SCRA 100 (1977) 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. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same separate action. or 2. defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss. When otherwise stated in the motion to dismiss. OR 2. the dismissal shall be limited to the complaint. Upon the court’s own motion. without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint. The approval of the court is necessary in the dismissal or compromise of a class suit.

Such OTHER MATTERS as may aid in the prompt disposition of the case. Enter into an amicable settlement. or of dismissing the action should a valid ground therefore be found to exist. Section 7. Sarmiento v. whether of of securing picture. Juan 120 SCRA 403 (1983) The “last pleading” need not be literally construed as the actual filing of the last pleading. The possibility of obtaining STIPULATIONS or ADMISSIONS of facts and documents to avoid unnecessary proof. 3. RULE 18 PRE-TRIAL PRE-TRIAL – a mandatory conference and personal confrontation before the judge between he parties and their respective counsel. 8. but must be complemented by a showing of valid cause for the non-appearance of the party himself. For purposes of the pre-trial. Record of pre-trial The contents of the PRE-TRIAL order shall control the subsequent course of the action. 7. Dismissal of counterclaim. and 9. facts or evidence. is essentially voluntary. The advisability or necessity of SUSPENDING THE PROCEEDINGS. Whether of facts or evidence. unless otherwise ordered by the court. The advisability of a PRELIMINARY REFERENCE of issues to a commissioner. Submit alternative modes of dispute resolution. 5.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the motion he manifests his intention to have his counterclaim resolved in the same action. b. Filoil Marketing Corp. the court must close the pre-trial and proceed with the trial of the case. UNLESS modified before trial to prevent manifest injustice. If a valid cause is shown therefore. NOTE: the mere presentation of such written authority is not sufficient. Enter into stipulations or admissions of facts and of documents. If a representative shall appear in his behalf fully authorized in writing to: a. The property of RENDERING JUDGMENT on the pleadings. Effect of failure to appear EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal of the action. of the number of Page 34 of 289 . When conducted The plaintiff should promptly file a motion ex parte that the case be set for pre-trial. 2. is essentially voluntary. and this he must do upon the service and filing of the last pleading. Nature and purpose The court shall consider: 1. The necessity or desirability of AMENDMENTS TO THE PLEADINGS. 2. c. The limitation WITNESSES. Appearance of parties When non-appearance of a party may be excused: 1. Section 1. Section 4. Dy Pac & Co. The possibility of an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resolution. the expiration of the period for filing the last pleading is sufficient . Section 5. 4. v. Section 6. with prejudice. or summary judgment. Pre-trial brief Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial. The SIMPLICATION OF ISSUES. EFFECT OF NON-APPEARANCE OF DEFENDANT: Cause the plaintiff to present evidence ex parte and for the court to render judgment on the basis thereof. Section 3. Section 2. Notice of Pre-trial Section 4. When the parties are unable to arrive at a stipulation of agreed facts. cross-claim or third party complaint 6. 160 SCRA 133 (1988) QuickTime™ and a TIFF (Uncompressed) decompressor The process are needed to see this admissions.

a motion to intervene is barred. court may hear evidence of plaintiff ex parte PRE-TRIAL No settlement Amicable Settlement Failure to appear Agreements made by parties. Whether the in intervenor’s rights may be fully protected in a separate proceeding. Schedule of trial If plaintiff is absent. court rules in favor of either one or dismisses the case Defendants are already original parties to the pending suit RULE 19 INTERVENTION Intervention . 2. QuickTime™ and a Section 2. One who has an interest against both parties or 4. even if the judgment itself recognizes the right of the movant. Complaint-in-intervention if intervenor asserts a claim against either or all of the original parties. Answer-in-intervention Section 1. 2. the court may dismiss the case The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. INTERVENTION An ancillary action Proper in any of the four situations mentioned in this Rule. One who has a legal interest in the success of either of the parties 3. FACTORS TO BE CONSIDERED BY THE COURT 1. Amendments to pleading. The remedy of the movant is to file a separate action. Section 3. Whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. an independent never are needed to proceeding but is ancillary and supplemental to an existing litigation. as well as in cross-examining the witness in regard to said evidence.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pre-trial order. when so required to attend. NOTE: After rendition of judgment. Hence the final dismissal of the principal action results into dismissal of said ancillary action. Time to intervene The motion to intervene must be filed at any time before the rendition of judgment by the trial court. Defendants are being sued precisely to implead them. and 2. Who may intervene 1. One who has legal interest in the matter in litigation Page 35 of 289 .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 TIFF (Uncompressed) decompressor NOTE: Intervention is see this picture. INTERPLEADER An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which in whole or in part is not disputed by the other parties to the action. One who is so situated as to be adversely affected by distribution of other disposition of property in the custody of the court or of an officer thereof. TRIAL Court renders If evidence is sufficient to prove plaintiff’s cause of action or defendant’s counterclaim. If defendant is absent. Pleadings-in-intervention 1.

The officer or body authorized by law to do so in connection with its investigations conducted by said officer or body. or 4. the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. RULE 21 SUBPOENA Section 1. (Section 1) 2. (Section 2) A subpoena is signed by the Clerk of Court. b. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. Subpoena duces tecum – process directed to a person which requires him to bring with him a. Philippine Vegetable Oil 39 Phil 60 (1918) If a subpoena duces tecum is improperly issued. competent authority. (and) shall be directed to the person required to attend. 3. a proper remedy is motion to vacate or set aside the subpoena. By who issued Section 3. (Section1) Section 2. (Section 3) FORM AND CONTENTS OF A SUBPOENA DUCES TECUM 1. reclusion perpetua or life imprisonment and (2) who is confined in any penal institution shall be brought outside the penal institution for appearance or attendance in any court unless authorized by the Supreme Court. the name of the court and 2. It must contain a reasonable description of the books. documents or things demanded which must appear to the court prima facie relevant. other things under his control. TIFF (Uncompressed) decompressor conducted by at any investigation are needed to see this picture. documents. the title of the action or investigation 3. (Section 2) No prisoner (1) sentenced to death. Subpoena and subpoena duces tecum TWO KINDS OF SUBPOENA 1. Section 4) Liebnow v. Answer to a complaint-in-intervention Within 15 days from notice of the order admitting the same REMEDIES FOR THE DENIAL OF INTERVENTION 1. Section1) FORM AND CONTENTS OF A SUBPOENA AD TESTIFICANDUM A subpoena shall state: 1. or QuickTime™ and a b. 4. Calendar of cases Section 2. Form and Contents WHO ISSUES A SUBPOENA . the name of the court and 2. any books. Assignment of cases. if there is grave abuse of discretion If there is improper granting of intervention. The court of the place where the deposition is to be taken. or c.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 if intervenor unites with the defendant in resisting a claim against the latter 1. 2. Subpoena ad testificandum – process directed to a person requiring him to attend and to testify a. the title of the action or investigation 3. Mandamus. at the hearing or the trial of an action. for the taking of his deposition. (Rule 23. or c. (and) shall be directed to the person required to attend. the remedy of the party is Certiorari. (Section 3) Page 36 of 289 Section 4. (Rule 136. (Section 2) The deposition of a prisoner confined in prison may be taken only by leave of court on such terms as the court prescribes. Appeal 2. IF SUBPOENA IS ISSUED TO A PRISONER When application for a subpoena to a prisoner is made. RULE 20 CALENDAR OF CASES Section 1. The court before whom witness is required to attend.

The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. (Section 6 SUBPOENA An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage. Subpoena for deposition Section 6. b. in any event. cost of production fees and attendance Notifies party that a complaint against him has been filed and that he should file an answer within a given period Issued only once at the start. (Section 4) 2. Section 5. b. this is subject to the provisions of Section11 of the Anti-Money Laundering Act which gives the Anti-Money Laundering Council the right to examine any particular deposit or investment upon order of any competent court in cases of violation of the AMLA but there is no need for court order if such violation of the AMLA is related to kidnapping for ransom. the fees for one day’s attendance and the kilometrage allowed by these rules EXCEPT THAT. Service HOW IS SERVICE OF A SUBPOENA MADE? Service of a subpoena shall be made in the same manner as personal or substituted service of summons. for the court to acquire jurisdiction and for the issues to be joined SUMMONS Order to answer complaint a Served on the defendant Does not need tender of kilometrage and other fees Notice of the date of the hearing of which he is required to attend May be issued more than once at anytime Page 37 of 289 . the Comprehensive Dangerous Drugs Act of 2002 and hijacking. The witness is not bound thereby When is witness not bound? if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel. violations of QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. or 3. Quashing a Subpoena GROUNDS FOR QUASHING A SUBPOENA 1. if (grounds) It is unreasonable and oppressive. the tender need not be made. The relevancy of the books. at or before the time specified therein c. Witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. the original shall be exhibited and a copy thereof delivered to the person on whom it is served. or The person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. upon order of a competent court in cases of bribery or dereliction of duty of public officials. a written permission of the depositor. in cases where the money deposited or invested is the subject matter of the litigation. tendering to him a. if subpoena duces tecum. or 4. 1. Subpoena duces tecum The court may a. when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof. fees for one’s days attendance subject to the same exception as a subpoena ad testificandum the reasonable cost of producing the books. b. (Section 4) Section 2 of RA 1405 provides in summary that bank deposits can only be examined when there is: 1. documents or things demanded if subpoena duces tecum 3. 2. in cases of impeachment. documents or things does not appear. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. or 2. However.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. Subpoena ad testificandum a. if subpoena ad testificandum. upon motion promptly made and. if he is a detention prisoner and no permission is obtained from the court in which his case is pending.

How to compute time HOW IS TIME COMPUTED? In computing any period of time prescribed or allowed by these Rules. (Section 9) ARE THERE ANY EXCEPTIONS TO COMPELLING ATTENDANCE OF WITNESSES ISSUED A QuickTime™ and a TIFF (Uncompressed) decompressor SUBPOENA AND FROM BEING HELD IN are needed to see this picture. or legal holiday. time shall not run until the next working day. Compelling Attendance Section 9. proof of the service thereof and 2. applicable only in civil cases). (Section 8) If the failure to attend was willful and without just cause. No. 2000) Page 38 of 289 . the allowable period after such interruption shall start to run after notice of the cessation of the cause of such interruption. Since the motion to dismiss filed interrupts the period to file the answer. upon: 1. or a legal holiday. (Section 7) Section8. you exclude that day in the computation of the period and so the allowable period would be 11 days. or his deputy.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Violation: default Violation: contempt indirect 2. When the last day of the period falls on a Saturday. Personal Appearance in court CAN A PERSON PRESENT IN COURT BE REQUIRED TO TESTIFY? YES. proof of the failure of the witness. to arrest the witness and bring him before the court or officer where his attendance is required. QUESTION: If the defendant files a motion to dismiss on the fifth day. if the witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel (known as viatory right. CONTEMPT OR PUNISHED FOR DISOBEDIENCE? YES. what is the balance of his allowable period? ANSWER: 11 days. may issue a warrant to the sheriff of the province.M. the extension should be counted from the last day which is a Saturday. There are two instances: 1. to a detention prisoner if no permission of the court in which his case is pending is obtained. the court or judge issuing the subpoena. it shall be deemed as contempt of the court from which the subpoena is issued (Section 9) What if the subpoena was not issued by the court? The disobedience to the subpoena shall be punished in accordance with the applicable law or Rule. In case of a failure of a witness to attend. 00-2-14-SC. the cost of the warrant and seizure of such witness shall be paid by the witness (Section 8) 2. or by any applicable statute. the first day (or the day of the act or event from which the designated period is to run) shall be excluded while the last day (the date of performance) shall be included. (Section 10) Section 7. A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. a Sunday. Contempt CAN THE COURT COMPEL THE ATTENDANCE OF A PERSON TO WHOM A SUBPOENA HAS BEEN ISSUED? YES. or RULE 22 COMPUTATION OF TIME Section 1. 1. (Re: Computation of Time when the Last Day Falls on a Saturday. or Legal Holiday and a Motion for Extension Filed on Next Working Day is Granted. If the last day falls on a Saturday. The day of the act that caused the interruption shall be excluded in the computation of the period. Sunday. (Section 1) Section 2. or by order of the court. A. Sunday or a nonworking legal holiday in the place where the court sits. Effect of Interruption WHAT IS THE EFFECT OF INTERRUPTION? If period is interrupted. and a party is granted an extension of time. Sunday.

Production or inspection of documents.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 MODES OF DISCOVERY (RULES 23-29) DISCOVERY – disclosure of facts resting in the knowledge of the defendant. “A copy of the order of the court requiring the parties to avail of interrogatories to parties under Rule 25 Page 39 of 289 . It is of great assistance in ascertaining the truth and in checking and preventing perjury. 312 SCRA 573. 1999) PURPOSES OF TAKING DEPOSITIONS 1. (People v. to narrow and clarify basic issues between the parties. in order to maintain the right or title of the party asking it. The witness (including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous. It is a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. however. A. No. Admission by adverse party (Rule 26) 5. 238 SCRA 88. or things in his possession or power. and reduced to writing and duly authenticated. MODES OF DISCOVERY UNDER THE RULES OF COURT 1. 3. to support a motion for summary judgment. Depositions pending action (Rule 23) 2. 2. it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare his answers in advance. Webb.. in a suit or proceeding. Aug. or under a general law or court rule on the subject. [Insular Life Assurance Co. Interrogatories to parties (Rule 25) 4. and intended to be used in preparation and upon the trial of a civil or criminal prosecution. Irrelevant 4. subject to the inquiry. or things (Rule 27) 6. not in open court. 92 (1994)] PURPOSE OF THE MODES OF DISCOVERY 1. 16.M. TIFF (Uncompressed) decompressor embarrass. Denial of Bills of Particulars does not bar the use of the Modes of Discovery. Ltd. It is cumulative. 2004) RULE 23 DEPOSITIONS PENDING ACTIONS DEPOSITION – is the testimony of a witness taken upon oral examination or written interrogatories. When it can be shown that the examination is being conducted in such a manner as to QuickTime™ and annoy. not to supply evidentiary matters To prepare for responsive pleading MODES OF DISCOVERY To discover evidentiary facts To prepare for (abbreviates trial) trial and request for admission by adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rule 27 and 28 within 5 days from the filing of the answer shall be served upon the defendant together with the summons and upon the plaintiff. readily manufacture testimony in contradiction to his deposition. or aoppress the person are needed to see this picture.” (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures. v. as a device for ascertaining the facts relative to those issues 3. but in pursuance of a commission to take testimony issued by a court. 03-1-09-SC. Privileged matters Using of the modes of discovery is highly encouraged by the court. or as production of deeds. c. writings. CA. A party or witness whose deposition has been taken at an early stage in the litigation cannot. (Rule 35) BILL OF PARTICULARS To make ultimate facts more definite. The witness (including a party) is examined while his memory is fresh: b. Depositions before action or pending appeal (Rule 24) 3. When it can be shown that the examination is being conducted in bad faith 2. The reasons for this are: a. at a later date. Physical and mental examination of persons (Rule 28) LIMITATIONS TO MODES OF DISCOVERY 1. Where the examination is upon written interrogatories.

1. It is an effective means of detecting and exposing false. If unknown. It facilitates both the preparation and trial of the cases. After an answer has been served. Testimony is preserved. prevents delays. (Rule 24. WHEN MAY DEPOSITIONS BE TAKEN? 1. Motion to Take Oral Deposition or Written Interrogatories (By Leave of Court) 2. 5. and sham claims and defenses. Depositions upon Written Interrogatories (Secs. the name and address of each person to be examined. convenient. Depositions on Oral Examinations (Secs. a general description sufficient to identify him or the particular class or group to which he belongs. 2. and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried. Deposition De Bene Esse – taken for purposes of pending action 2. No. thereby expediting the trial. and narrows and simplifies the issues to be tried. Notice to take Oral Deposition or Written Interrogatories (Without Leave of Court) CONTENTS OF THE NOTICE 1. the court may for cause shown enlarge or shorten the time) and b. Section 3) At least 20 days before the date of the hearing. 1994) NOTICE AND SERVICE Deposition a party desiring to take a deposition pending shall give reasonable notice in writing action to every other party to the action (Rule 23. saves the time of the courts.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 d. except with great difficulty and sometimes not at all. (Fortune v. The name or descriptive title and address of the officer before whom the deposition is to be taken Proof of service of a notice to take a deposition as provided in Sections 15 and 25 of Rule 23 shall constitute sufficient authorization for the issuance of subpoenas for the persons named in Page 40 of 289 . thereby encouraging settlements out of court. Deposition pending appeal (Rule 24.R. the time and place for the taking of the deposition (upon motion of any party upon whom the notice is served. fraudulent. his deposition is available. The names and address of the person who is to answer and b. the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. 3. 108119. IAC. 6. and often inexpensive way facts which otherwise could not have been proved. After jurisdiction has been obtained over any defendant or over property which is the subject of the action but before answer. 7. For deposition upon written interrogatories a. 1-14) Section 1. It makes available in a simple. 15-24) 2. It expedites the disposal of litigation. Section 7) The party must make a motion for leave to take deposition in the court which rendered judgment and give notice in writing to every other party to the action 2. Depositions in Perpetuam Rei Memoriam – those taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal KINDS OF DEPOSITIONS 1. 4. when may be taken QuickTime™ and WHAT TO FILETIFF(SECTION 1) aressor (Uncompressed) decomp are needed to see this picture. G. so that if a witness unexpectedly dies or becomes unavailable at the trial. Depositions pending action. if known. 25-28) GENERAL PROVISIONS ON DEPOSITIONS (Secs. together with a copy of the petition stating the time and place. It educates the parties in advance of trial as to the real value of their claims and defenses. It safeguards against surprise at the trial. For a deposition upon oral examination (Section 15) a. Section 15) Deposition the petitioner shall serve a notice before upon each person named in the action petition as an expected adverse party.

may be used against any party who was present or represented during the taking of the deposition or who had notice thereof in accordance with any one of the following provisions: 1. examination without formal interrogation and cross-examination Can be competent Not admissible in testimonial evidence evidence except in cases governed by the Rule on Summary Procedure Section 4. which is admissible in evidence. Section 24) husband and wife attorney and client doctor and patient public officer priest and confessant b. for any purpose if the court finds that: Witness is dead. DEPOSITION AFFIDAVIT Written testimony of witness Mere sworn written in course of judicial statements proceedings. that such exceptional circumstances exist as to make it desirable. (Cross reference to Rule 24 Section 6 and 7) For depositions before action. or an interlocutory proceeding. non-disclosure of trade secrets. Examination and cross-examination may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. including the existence. description. Section 1) Any part or all of a deposition. however. infirmity. or tangible things and the identity and location of persons having knowledge of relevant facts (Section 2) 3. it may be used in an action involving the same subject matter. in advance of trial and hearing QuickTime™ and a TIFF (Uncompressed) decompressor parte Opportunity for neededcross. or is out of the Philippines. not privileged a. issue a subpoena duces tecum to any such person without an order of the court. (Rule 24. deposition of a witness – may be used by any party a. the deponent may be examined regarding ANY MATTER (should concur) 1. Page 41 of 289 . (Rule 23. candidate voted for except in an election case 2. Scope of Examination WHAT IS THE SCOPE OF EXAMINATION? Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule. Witness is unable to testify because of age. (Rule 21. Ex : secrecy of bank deposits. sickness. 16 and 18) Section 3. and location of any books. result of census. nature. to contradict or impeach the deponent’s testimony as a witness b. UNLESS it appears that absence of witness is procured by party offering the deposition. Section 5) Section 2.pictEx statements are to see this ure. the list of privileged communication is not exclusive. not restricted by protective order or motion to limit examination (Secs. relevant to the subject of the pending action. or upon application and notice. depositions may be used at the trial. upon hearing of a motion. and with due regard to the importance of presenting the testimony of witnesses orally in open court. in the interest of justice. or imprisonment. condition. custody. before action and pending appeal. documents. privileged communication (Rule 130. Witness resides at a distance more than 100 km from place of trial or hearing. to allow the deposition to be used. Use of depositions WHAT ARE THE USES OF DEPOSITIONS? Rule 23 Section 4 is applicable in depositions pending action. whether relating to the claim or defense of any other party. Section 6) For depositions pending action or pending appeal. Party offering the deposition has been unable to procure the attendance of the witness by subpoena.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 said notice by the clerk of court of the place in which the deposition is to be taken. The clerk shall not.

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 in interest. (Section 4) Where the witness is available to testify and the situation is not one of those excepted under Section 4. Effect of Substitution of Parties WHAT IS THE EFFECT OF SUBSTITUTION OF PARTIES TO DEPOSITIONS PREVIOUSLY TAKEN? Rule 23 Section 5 is applicable in depositions pending action. Section 10. Effect of taking depositions ] Section 8. Within the Philippines a. In foreign countries a. (Section 9) Section 7. If only part of the deposition is introduced.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. b. Any Judge b. Notary public c. before a secretary of any embassy or legation. Persons before who depositions may be taken within the Philippines Section 11. Why is an ambassador not included? Because an ambassador is only concerned with political matters. consular agent of the Philippines.(b) Section4) Defendant may present witness even if it was the plaintiff who took the witness’s deposition. Before such person or officer as may be appointed by commission or under letters rogatory Page 42 of 289 . Deposition is used to impeach or contradict 2. and any party may introduce any other parts. director. adverse party may require that all of it which is relevant to the part introduced be introduced. Persons before who depositions may be taken in foreign countries BEFORE WHOM MAY DEPOSITIONS BE TAKEN 1. Deposition of an officer of a corporation (par. (Section 5) Section 6. Effect of using depositions Section 9. Objections to admissibility WHEN ARE OBJECTIONS TO ADMISSIBILITY OF DEPOSITION MADE? Objection may be made at the trial or hearing to receive 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. BUT: the introduction in evidence of the deposition or any part thereof makes the deponent the witness of the party introducing the deposition (Section 8) EXCEPTIONS to Section 8: 1. his deposition is inadmissible in evidence and he should be made to testify. (Cross reference to Rule 24 Section 6 and 7) Substitution of parties does not affect the right to use depositions previously taken. or anyone who at the time of taking the deposition was an officer. On notice. consul. consul-general. (Section 6) And it is also at trial or hearing when any party mayQuickTime™ and a relevant evidence rebut any TIFF (Uncompressed) decompressor are needed to see this picture. Rebutting depositions WHAT IS THE EFFECT OF TAKING DEPOSITIONS? A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (Section 7) Deposition is a mode of discovery and so it is possible that you will not use the deposition as part of your evidence and so by taking depositions. you do not make the deponent automatically your witness. or managing agent of a public or private corporation – may be used by an adverse party for any purpose 3. Deposition of your opponent does not make him your witness 3. and. vice-consul. all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore. contained in a deposition whether introduced by him or by any other party. Section5. Any person authorized to administer oaths if the parties so stipulate in writing (Section 10) 2. A party may refuse to present witness even if his deposition was taken. before action and pending appeal. deposition of any party.

GROUNDS FOR NOT TAKING A DEPOSITION 1. on application and notice. Applicable rules of procedure are those of the foreign court requested to act Resorted to if the execution of the commission is refused in the foreign country Leave of court is necessary. time and place Section 16. embarrassment or opposition (Section 16 and 18) The court in which the action is pending Makes an order that: 1. a witness who is within the jurisdiction of the judge or court to whom such letter is addressed Applicable rules of procedure are those of the requesting court Resorted to if permission of the foreign country is given Leave of court is not necessary. This is implicit in the provisions of the Rules of Court cited by appellants themselves. embarrass. Employee of any party 3. these provisions expressly authorize the court to either prevent the taking of a deposition or stop one that is already being taken. Section 15. Disqualification by interest WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS? 1. (Section 11) Autographics. or oppress the deponent or party The court in which the action is pending or the RTC of the place where the deposition is being taken Orders the officer conducting the examination to Section 12. Section 13. Relative within the same degree of any party’s counsel 5. Depositions upon oral examination. Relative within 6th degree of consanguinity or affinity of any party 2. Employee ofQuickTime™ and a party’s counsel TIFF financiallydecompressor (Uncompressed) interested in the action 6. on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy. to protect a party or witness from annoyance. Any person authorized to administer oaths if the parties so stipulate. Orders for the protection of parties and deponents PROTECTION ORDERS OF PARTIES AND DEPONENTS (Section 16 and Section 28) After notice is served for taking a deposition upon motion seasonably made by any party or by the person to be examined and for good cause shown (which means it will be done before the taking of the deposition) MOTION TO TERMINATE OR LIMIT EXAMINATION (Section 18) At any time during the taking of the deposition. v. GR No. and on such terms and with such direction as are just and appropriate An instrument issued by Instrument sent in the the court of justice or name and by authority of tribunal to authorize a a judge or court to person to take another judge or court depositions or to do any requesting the latter to other act by authority of custody examine upon such court or tribunal interrogatories filed in a case pending in the former. In such instances. notice. Counsel of any party 4. 1 July 1993 The right of a party to take depositions as means of discovery is not exactly absolute.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 c. sections 16 and 18 of Rule 24. Anyoneare needed to see this picture. Inc. not relevant (Section 1) 2. deposition shall not be taken 2.95863. CA. it may be taken only at Page 43 of 289 . Commission or letters rogatory COMMISSION LETTERS ROGATORY Issued only when necessary or convenient.

or may limit the scope and manner of the taking of the deposition. oath. changes. 8. or oppression cease forthwith from taking the deposition. 7. it shall be resumed only upon order of the court in which the action is pending. the deposition shall be opened only by order of the court that secret processes. who shall propound them to the witness and record the answers verbatim. record the testimony of the witness. oath. examination Record of Examination.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 some designated place other than that stated in the notice it may be taken only on written interrogatories or only upon oral examination certain matters shall not be inquired into the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel that after being sealed. Motion to terminate or limit . parties served with notice of taking a deposition may transmit written interrogatories to the officers. or that it shall not be taken before the officer designated in the notice (Section 28) any other order which justice requires to protect the party or witness from annoyance. signing (Section 19) When the testimony is fully transcribed. the court may QuickTime™ and a TIFF (Uncompressed) decompressor impose upon either party or upon the witness the are needed to see this picture. In granting or refusing such order. 4. All objections made at the time of the examination to the qualifications of the officer taking the deposition. or that the parties shall simultaneously file specified documents or information enclosed in a sealed envelope to be opened as directed by the court. objections (Section 17) The officer before whom the deposition is to be taken shall put the witness on oath and shall personally. the deposition shall be submitted to the witness for examination and shall be read to or by him unless such examination and reading are waived by the witness and by the parties. or to the evidence presented. Upon demand of the objecting party or deponent. If the deposition is not signed by the witness. 10. In lieu of participating in the oral examination. signing Section 20. the officer shall sign it and state on the record the facts of the waiver or of the illness or absence of the witness or the fact Page 44 of 289 3. requirement to pay such costs or expenses as the court may deem reasonable Section 17. and any other objection to the proceedings. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. Submission to witness. the taking of the deposition shall be suspended for the time necessary to make a notice for an order. 9. or to the manner of taking it. 5. The testimony shall be taken stenographically unless the parties agree otherwise. If the order made under Section 18 terminates the examination. 2. Record of examination. Submission to witness. Notice of Filing Section 22. or by some one acting under his direction and in his presence. The deposition shall then be signed by the witness. shall be noted by the officer upon the deposition. Certification and filing by officer Section 21. or research need not be disclosed. unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. Evidence objected to shall be taken subject to the objections. objections Section 18. or to the conduct of any party. changes. embarrassment. developments. 6. Section 19. Furnishing Copies PROCEDURE FOR TAKING ORAL DEPOSITIONS 1.

(Section 24) 2. Effect of errors and irregularities in depositions WHAT ARE THE EFFECTS OF ERRORS AND IRREGULARITIES IN THE DEPOSITIONS? 1. SUBPOENA UPON THE WITNESS? If another party attends in person or by counsel because he expects the deposition of that witness to be taken and the witness fails to attend because of the failure of the party giving notice to serve a subpoena upon the witness. As to notice – waived unless written objection is promptly served upon the party giving the notice 2. in the manner provided by sections 17. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “Deposition of (here insert the name of witness)” and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. the party so served with the notice may serve cross-interrogatories upon the party proposing to take the deposition. and file or mail the deposition. unless a motion to suppress is filed. 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 attend. Certification and filing by officer (Section 20) The officer shall 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. interrogatories Deposition upon written service of notice and Section 26. the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (Section 24) Section 25 interrogatories. Officers to take responses and prepare record Section 27. Within 5 days thereafter.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the refusal to sign together with the reason given therefore. Section 23. (Section 23) Section 24. certify. Failure to attend of party giving notice WHAT HAPPENS IF A PARTY GIVING THE NOTICE OF THE TAKING OF THE DEPOSITION FAILS TO ATTEND AND PROCEED WITH THE TAKING OF DEPOSITION? If the party giving the notice fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice. then the same consequence as above. Failure of party giving notice to serve subpoena HOW ABOUT IF THEQuickTime™ and FAILS TO SERVE A PARTY a TIFF (Uncompressed) decompressor are needed to see this picture. attaching thereto the copy of the said notice and the interrogatories received by him. the officer taking it shall promptly give notice thereof to all the parties. (Section 24) 4. 19. and 20 of this Rule. to take the testimony of the witness in response to the interrogatories and to prepare. After service of notice. Orders for the protection of parties an deponents PROCEDURE FOR DEPOSITION UPON WRITTEN INTERROGATORIES 1. (Section 27) Section 29. the party proposing to take the deposition may serve re-direct interrogatories upon a party who has served cross-interrogatories. Notice of filing and furnishing copies Section 28. A copy of the notice and copies of all interrogatories served shall be delivered to the officer designated in the notice who shall proceed promptly. Furnishing copies (Section 22) Upon payment of reasonable charges therefor. within 10 days thereafter. and the deposition may be used fully as though signed. Notice of filing (Section 21) The officer taking the deposition shall give prompt notice of its filing to all the parties. 3. (Section 26) 5. (Section 24) 3. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as Page 45 of 289 . and may furnish copies to them or to the deponent upon payment of reasonable charges therefore. 4. including reasonable attorney’s fees. Within 3 days after being served with redirect interrogatories. 5. if any. When a deposition upon interrogatories is filed. the officer shall furnish a copy of the deposition to any party or to the deponent. a party may serve recross-interrogatories upon the party proposing to take the deposition.

and errors of any kind which might be obviated.R. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. indorsed. 4. 3. As to form of written interrogatories 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 the service of the last interrogatories authorized. Objections to re-direct interrogatories can made within 3 days.Errors occurring at the oral examination in the manner of taking the deposition. cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition. filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is. sealed. Objections to direct interrogatories can made within 10 days. Hon. or with due diligence might have been. Objections to re-cross interrogatories can made within 3 days. 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. in the form of questions and answers. transmitted. the substance of the testimony which he expects to elicit from each. the names or a description of the persons he expects will be adverse parties and their addresses so far as known. 4. 4. certified. 27 Nov 1998 A trial court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be. ascertained. the reason for perpetuating their testimony (Section 7) What to file? a verified petition. Diman v. Objections to cross interrogatories can made within 5 days. 131466. be be be be 3. signed. G. 2. or in conduct of parties. d tthe this picture. removed.errors as to manner in which the testimony is transcribed or the deposition is prepared.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the disqualification becomes known or could be discovered with reasonable diligence As to competency or relevancy of evidence . the names and addresses of the persons to be examined and the substance of the Page 46 of 289 . unless ground is one which might have been obviated or removed if presented at that time As to oral examination and other particulars . it is the law which makes that determination. in oath or affirmation. the names and addresses of the persons to be examined and 2. 6. subject are neede o see his interest therein. No. and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. 5. contents of which are: 1. (Section 29) RULES ON OBJECTIONS 1. and 5. and 3. contents of which are: The petition shall be entitled in the name of the petitioner and shall show: 1. RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Who apply? can DEPOSITIONS BEFORE ACTION A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Section 1) DEPOSITIONS PENDING APPEAL Any person can perpetuate their testimony for use in the event of further proceedings in the said court (Section 7) motion upon notice and service. Alumbres. 3.NOT waived by failure to make them before or during the taking of the deposition. QuickTime™ and a TIFF (Uncompressed) decompressor matter of the expected action and 2. As to manner of preparation .

(Section 1. (Section 4 & 7) INTERROGATORIES Disclosure of matters of proof May be made part of the records as evidence BILL OF PARTICULARS Disclosure only of matters which define the issues Become a part of the pleadings RULE 25 NTERROGATORIES TO PARTIES Section 1 Interrogatories to parties. answered fully in writing and 2. Section 4) Section 2. 10 days to object. then it will be answered by any officer competent to testify in its behalf. signed and sworn to by the person making them. and answers shall be deferred until the objections are resolved. cross refer to Rule 23 Section 1) Interrogatories and the answers thereto should be filed in court and served on adverse parties. In case objection is denied. specify whether the depositions shall be taken upon oral examination or written interrogatories. (Section 1) DO YOU NEED LEAVE OF COURT FOR WRITTEN INTERROGATORIES? DEPENDS. and 6. (Section 3) 15 days to answer. with notice as in case of a motion. Where to apply? When to file? Court order and examination the court in which the judgment was rendered (Section 7) At any time before judgment becomes final: 1. Answer to interrogatories WHAT IS THE FORM OF AN ANSWER TO INTERROGATORIES? 1. If an appeal has been taken from a judgment of a court. designate or describe the persons whose deposition may be taken and 2. (Section 2) Section 3. Depositions before action is only applicable in civil cases. QuickTime™ and a you need leave TIFF (Uncompressed) this picture. If an answer has NOT YET BEEN served. service thereof WHO CAN APPLY? ANY PARTY desiring to elicit material and relevant facts FROM ANY ADVERSE PARTY shall file and serve upon the latter written interrogatories to be answered by the party served. which shall be set at an early time.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 testimony which he expects to elicit from each. or 2. partnership or association. you still have 5 days to file an answer. it may make an order allowing the depositions to be taken. including the Court of Appeals in proper cases.tobutdecompressor if the are needed see served. which shall: 1. 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. Objections to interrogatories WHEN DO YOU MAKE OBJECTIONS TO INTERROGATORIES? Objections to any interrogatories may be presented to the court within ten (10) days after service thereof. (Section 1 & 2) in the court of the place of the residence of any expected adverse party (Section 1) Before the action. If the person served is a private or public corporation. before the taking of an appeal if the time therefore has not expired (Section 7) If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice. then you do not need leave of court. as practicable. Page 47 of 289 . specify the subject matter of the examination and 3. answer HAS BEEN of court. (Rule 129. so that the answers may constitute judicial admissions.

without leave of court. Court of Appeals 164 SCRA 668 (1998) A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact. If not denied under oath in accordance with Section 2. Section 5) Same (Rule 25. Distinguished from Written Interrogatories Page 48 of Procedure Deponents Coverage Uses Interrogatories . its genuineness it deemed admitted. Section 5) 15 days to answer unless extended or reduced by the RULE 26 ADMISSION BY ADVERSE PARTY Intervention by the Court With intervention of the office who is authorized to take the deposition court No intervention since interrogatories are directed to the party himself Section 1. serve more than one set of interrogatories to be answered by the SAME party. particularly the adverse party Same (Rule 25.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. Request for admission Purpose of written request for admission To expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry What request may include: 1. to give a deposition pending appeal. either party or witness Any matter as long as relevant and not privileged Rule 23. Scope and use of interrogatories Section 6. UNLESS thereafter allowed by the court 1. (Section 4) Section 5. and its genuineness and due execution is deemed impliedly admitted unless specifically denied under oath by the adverse party. whose purpose is to establish said party’s cause of action or defense. Under this rule. or 2. Admission of the genuineness of any material and relevant document described in and exhibited with the request 2. recross. redirect. or documents described in and exhibited with the request. If the document is actionable. or copied therein. Po v. Section 4 No fixed time Interrogatories to Parties (Rule 25) File and serve questions and the party has to answer them Only a party to the case. a matter of fact not related to any documents may be presented to the other party for admission or denial Distinguished from Rule on Actionable Documents A request for admission is proper when the genuineness of an evidentiary document is sought to be admitted. compelled by the adverse party to give testimony in open court. the original or a copy should be attached to the complaint. Effect of failure to serve written interrogatories WHAT IS THE EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES? A party not served with written interrogatories may not be 1. to prevent a failure of justice (Section 6) WHAT IS THE EFFECT TO FAILURE TO ANSWER INTERROGATORIES? Case may be dismissed or a judgment by default may be given Depositions under Written upon Written Interrogatories (Rule 23) Direct. You just serve QUESTIONS Any person. Number of interrogatories HOW MANY INTERROGATORIES CAN YOU FILE? No party may. Admission of the truth of any material and relevant matter of fact set forth in the request 3. cross. for good cause shown and 2.

and which are in his (the party ordered) possession. or control Contents of the Order a. If an adverse party denies a fact within his personal knowledge. or custody of a party Limitations of the Order 1. Rule only applicable to: a pending action and the documents or things subject of the motion must be only those within the possession. This rule is also not intended to open all of a party’s records to other party on vague chance than they might contain some material relevant to some theory advanced by the other party. Effect of admission Use of the admission An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings. Paragraph (b) applies to Real/Personal property Distinguished from Subpoena Duces Tecum PRODUCTION OR SUBPOENA DUCES INSPECTION OF TECUM DOCUMENTS OR THINGS Essentially a mode of Means of compelling discovery production of evidence The Rules is limited to the May be directed to a parties to the action person whether a party or not The order under this Rule May be issued upon an is issued only upon motion ex parte application with notice to the adverse party Section 2. Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution. Effect of failure to make a reply to a request for admission Each of the matters of which an admission is requested is deemed admitted. custody. Documents constitute or contain evidence material to any matter involved in the action. place and manner of making the inspection and taking copies AND b. Effect of failure to file and serve request for admission. Withdrawal. Implied admission The motion for extension of time to answer the request for admission should be served on the adverse party but need not be set for hearing. order Purpose of the rule This rule is not intended for use as a dragnet or any fishing expedition. The amendment of the complaint per se cannot set aside the legal affects of the request for admission since its materiality has not been affected by the amendment. Page 49 of . control. Section 4.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WRITTEN INTERROGATORIES Adverse party or witness NOT required to deny or admit anything Written request must be filed in court and served on the adverse party Must be objected within 10 days (Rule 25) REQUEST FOR ADMISSSION Adverse party only Required to admit or deny something Written request must be filed in court and served on the adverse party Must be objected within 15 days RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1. If facts are admitted or deemed admitted. Shall specify the time. Section 5. Documents should not be privileged 2. party may move for summary judgment. Remedy of the party File a motion to be relieved of the consequences of the implied admission. a party may present evidence regarding said fact even if he failed to file a request for admission. May prescribe such terms and conditions which are just. Motion for production or inspection. Section 3.

Contempt of court Contempt of court: 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 Section 3. and shall specify the time. . The proponent may apply to the court for an order to compel an answer.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 1. When examination may be ordered This applies only to parties. The Court must first determine whether a physical examination is necessary. Complete other matters 2. The defendant seeking physical examination of a plaintiff has no absolute right to choose his own physician. Apply to court for order Section 2. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Section 1. then determine the physician who shall conduct the examination. Examples of Mental or Physical Condition of a party in controversy: 1. The proponent or his counsel to pay the expenses incurred in opposing the application. including attorney’s fees (if it finds the application to be without substantial justification) Where to file for the order to compel RULE 23 Depositions pending actions – application for an order must be filed with the court of the place where the deposition is being taken RULE 25 Interrogatories to parties – application for an order must be filed with the court where the action is pending Remedies 1. conditions and scope of the examination and the person or persons by whom it is to be made. the mental condition of the ward is in controversy Section 24(b). place. Waiver of privilege. Other consequences Other consequences If a party/officer or managing agent of a party refuses to obey an order requiring him: Page 50 of . Adjourn 3. manner. NOT witnesses. and upon notice to the party to be examined and to all other parties. The refusing party or his counsel to pay the expenses incurred in obtaining the order. Section 2. Refusal to answer If a party or other deponent refuses to answer any question upon oral examination. Rule 130 – Since the results of the examination are intended to be made public. the same are not covered by the physician-patient privilege. Refusal to answer. Section 3. Report of findings Discretion of Court The Court exercises full discretion in regulating physical and mental examinations of a party to a controversy. In a petition for guardianship on the ground of insanity. In an action to recover damages for personal injury. The court may then order: i. the physical condition of the plaintiff in controversy 2. Section 4. including the attorney’s fees (if it finds the refusal to answer without substantial justification) ii. Order for examination The order for examination may be made only: on motion for good cause shown. What is good cause When the ends of justice so require and the examination may be made without danger to the party’s life or health or the infliction upon him of serious pain. the examination may be completed on other matters or adjourned as the proponent of the question may prefer.

the court may: a. SANCTIONS: 1.(c)) Section 4. or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories. may: strike out all or any part of any pleading of that party. For while the modes of discovery are intended to attain the resolution of litigations with great expediency. b. A decision should not be made without trial EXCEPTIONS: 1. c. Judgment with Prejudice (Rule 17) Page 51 of . That the matters regarding which the questions were asked. Summary Judgment (Rule 35) 3. Affect disposition of the case (Section3 par. The prohibition of the disobedient party to present evidence. Strike out all or any part of any pleading of that party. To answer designated questions b. having always in mind the paramount and overriding interest of justice. The striking out of the pleadings or parts thereof d. Dismiss the action or any part thereof. NOTE: Orders enumerated above are NOT exclusive. b. v. order him to pay reasonable expenses incurred by the other. The dismissal of the action or parts thereof d. Order that party to pay reasonable expenses incurred.(d)) 2. including attorney’s fees. To submit to a physical or mental examination The court may order: a. or the character of the land or the thing. Insular Life Assuarance Co. In lieu of any of the foregoing orders or in addition thereto. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination If a party refuses to attend or serve answers. Rendering judgment by default against the disobedient party OR e. Judgment by Confession 5. the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case pends. Enter a judgment by default against that party. Expenses on refusal to admit Failure of party to attend or serve answer If a party or an officer or managing agent of a party willfully: fails to appear before the officer who is to take his deposition. ultimately to be of injustice. Expenses against the Republic of the Philippines RULE 30 TRIAL TRIAL It is the judicial process of investigating and determining the legal controversies. including attorney’s fees. an order directing the arrest of any party or agent of a party for disobeying any of such orders. and in its discretion. or the physical and mental condition of the party be taken to be established. they are not contemplated. or enter a judgment by default against that party. after being served with a proper notice. The disallowance of the disobedient party’s claims c.. Ltd. starting with the production of evidence by the plaintiff and ending with his closing arguments GENERAL RULE: There should be a trial when an issue exists.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. however. Facts will be deemed established (Section3 par. Contempt (Section2) 4. Section 6. Pay expenses Arrest (Section3 par.(b)) 6. CA 238 SCRA 88 (1994) The matter of how. To produce a thing for inspection or to permit entry upon property c.(a)) 5. The court on motion and notice. EXCEPT an order to submit to a physical or mental examination. or dismiss the action or proceeding or any part thereof. OR/AND d. and when. (Section1) 3. Judgment on the Pleading (Rule 34) 2. Prohibiting from introducing evidence (Section3 par. Judgment on Compromise 4.

Section 4. Rebuttal evidence by parties Third party defendant presents evidence. That the character of his illness is such as to render non-attendance excusable. 2.oral arguments. and 2.submission of memoranda DECISION Reverse Order of Trial In this situation. Agreed statement of facts This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial. Order of trial Plaintiff presents evidence in support of his complaint If the adverse party admits the facts for which evidence is to be presented. continues with hearing After presentation of evidence. That the presence of the party or counsel at the trial is indispensable. a reverse order of trial is proper Section 6. such Defendant presents evidence to support his defense/counterclaim/c ross-claim/third party complaint Defendant files: demurrer to evidence Section 5. and (2) due diligence in procuring it. Requisites of motion to postpone trial for absence of evidence There must be an affidavit showing: (1) materiality or relevance of evidence. such as Page 52 of . The parties may also stipulate verbally in open court. Notice of trial Notice at least 5 days before the trial date is a part of procedural due process. the defendant presents evidence ahead of the plaintiff When Reverse Order of Trial Proper If the defendant in his/her answer relies upon an affirmative defense. Requisites of motion to postpone trial for illness of party or counsel REQUISITES An affidavit showing that: 1. Adjournments and postponements Section 3. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown. Section 2. the trial will not be postponed.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. 1. if any Court grants motion: renders dismissal Court denies motion.

The actions are pending before the same court. crossclaim. • If filed with different courts. Judge to receive evidence. Section 7. Generally. conducting only one hearing and rendering only one decision. prevent delay. Consolidation GENERAL RULE: Consolidation is discretionary upon the court.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 error or fraud. Statement of judge Section 8. NOTE: Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAGE and for LEGAL SEPARATION. If it appears that one of the parties. the case which was appealed later and bearing the higher docket number is consolidated with the case having the lower docket number. (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation. clear congested dockets. RULE 31 CONSOLIDATION OR SEVERANCE CONSOLIDATION Involves several actions having a common question of law or fact which may be jointly tried. By consolidating the existing cases and holding only one hearing and rendering only one decision. EXCEPTIONS: Consolidation becomes a matter of duty when: 1. 2. If willingness to discuss a possible compromise is expressed by one or both parties. Contemplates a single action having a number of claims. delegation to clerk of court GENERAL RULE: The judge must himself personally receive and resolve the evidence of the parties. PURPOSE To avoid multiplicity of suits. Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. 3 WAYS OF CONSOLIDATING CASES: 1. REQUISITES FOR CONSOLIDATION: 1. or issues which may be separately tried. or 2. By hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case. within 10 days from the termination of the hearing. If the cases are pending before the same judge. and 2. REQUSITES ON VALID DELEGATION OF POWER TO RECEIVE (a) The delegation may be made only in defaults or ex parte hearings. and (d) He shall submit his report and transcripts of the proceedings. OR 2. simplify the work of the Trial Court and save unnecessary costs and expenses. Suspension of actions ART. If filed with different branches of the same RTC and one of such cases has not been partially tried. 2030 OF THE CIVIL CODE. authorization from the SC is necessary. SEVERANCE Page 53 of . before the commencement of the action or proceeding. By recasting the cases already instituted. and 3. Section 1. etc. offered to discuss a possible compromise but the other party refused the offer. together with the objections to be resolved by the court. (TEST-CASE METHOD) Section 2. Separate trials on any claim. Section 9. guard against oppression or abuse. EVERY CIVIL ACTION OR PROCEEDING SHALL BE SUSPENDED 1. third-party complaints. cross-claims. counterclaims. (c) Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits. Actions which involves a common question of law or fact. or an agreement in writing by the parties.

Notice to parties of the filing of report UPON FILING OF THE REPORT OF THE COMMISSIONER: 1. Order of reference. other than upon the pleadings. Objections to the report based upon grounds which were available to the parties during the proceedings before the Commissioner shall not be considered by the court. Commissioner shall avoid delays Section 9. Section 13. in any stage of the case Section 3. Oath of Commissioner before he enters into his duties Section 5. It can be waived by consent of the parties expressly or impliedly. The parties shall be allowed 10 days within which to object to the findings of the report. judgment is rendered. Unless otherwise provided in the order of reference. Section 11. Section 1. powers of the Commissioner Order may specify or limit the powers of the Commissioner. giving notice to the absent party or his counsel of the adjournment. for him to take testimony. Compensation of Commissioner RULE 32 TRIAL BY COMMISSIONER COMMISSIONER A person to whom a case pending in court is referred. Reference to Commissioner by consent of both parties Reference to a commissioner may be had by the written consent of both parties. AND 2. Report of Commissioner Section 10. 3. arises upon motion or otherwise. only questions of law shall thereafter be considered. or to do or perform particular acts. Failure of parties to appear before Commissioner If a party fails to appear at the time and place appointed. The parties shall be notified by the clerk. POWERS OF THE COMMISSIONER 1. and upon whose report. in his discretion. Stipulations as to findings When the parties stipulate that a commissioner’s findings of fact shall be final. adjourn the proceedings to a future day. includes a referee. Cases when reference by motion of one of the parties or motu proprio SITUATIONS WHEN REFERENCE TO A COMMISSIONER MAY BE MADE ON MOTION 1. UNLESS they were made before the Commissioner. Proceedings before Commissioner Section 6. he may rule upon the admissibility of evidence Section 4. it may render separate judgments on each claim. An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. hear the parties and report thereon to the court.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 When the separate trial of claims is conducted by the court under this section. the commissioner may proceed ex parte or. Swear witnesses 5. Refusal of witness to obey subpoena issued by Commissioner Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which appointed the latter. Report only upon particular issues. if confirmed. an auditor and an examiner. Issue subpoenas and subpoenas duces tecum 4. Section 8. Trial requires examination of a long account of either side 2. Hearing upon report Section 12. Section 2. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect 3. Exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties Page 54 of . Section 7. or to receive and report evidence only 2. Question of fact.

Rule 36 should be complied with. Leave of court is necessary so that the DEMURRER TO EVIDENCE It is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law. 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. made after Page 55 of . If the motion is denied. If plaintiff appeals and judgment is reversed by the appellate court. If the court finds the prosecution’s evidence insufficient. Order of the court is an ADJUDICATION ON THE MERITS. If court denies demurrer. the defendant may present his evidence. The judgment of dismissal is appealable by the plaintiff. If court denies demurrer. the plaintiff has shown no right to relief. Demurrer to evidence DEMURRER TO EVIDENCE It is presented after the plaintiff has rested its case. will not apply. the requirement in Section 1. If the court finds plaintiff’s evidence insufficient. 2 SCENARIOS: MOTION DENIED MOTION GRANTED BUT REVERSED ON APPEAL MOTION TO DISMISS Presented before a responsive pleading (answer) is made by the defendant. It may be used on any of those enumerated in Rule 16. If court denies the demurrer: a. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. defendant will present his evidence. it will grant the demurrer by rendering judgment acquitting accused. The remedy of the plaintiff is to APPEAL. if the demurrer was without leave. if demurrer was with leave. If court denies the demurrer: a. double jeopardy sets in. accused may present evidence b. 1. If the motion is denied. accused may present evidence b. JUDGMENT ON DEMURRER TO EVIDENCE It is a judgment rendered by the court dismissing a case upon motion of the defendant.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 accused could present his evidence if the demurrer is denied. Movant is deemed to have waived his right to present evidence. Movant shall have the right to present his evidence. no res judicata in dismissal due to demurrer. defendant will present his evidence. the complaint may be re-filed. hence. RULE 33 DEMURRER TO EVIDENCE Section 1. The ground is based on insufficiency of evidence. Sec. Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based). Judgment of acquittal is not appealable. defendant may file his responsive pleading. if the demurrer was without leave. CIVIL CASES Defendant need not ask for leave of court. the complaint is dismissed and depending on the ground. The decision of the appellate court will be based only on the evidence of the plaintiff. it will grant the demurrer by dismissing the complaint. as the defendant loses his right to have the case remanded for reception of his evidence. If the motion is granted. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. the complaint is dismissed. The denial is NOT appealable. If the motion is granted. CRIMINAL CASES May be filed with or without leave of court. Denial is interlocutory. if demurrer was with leave.

. counterclaim. GENUINE ISSUE It is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is sham. RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. How Suy Ching 91 Phil 456 (1952) One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence. contrived. Section 1. GROUNDS: 1. fictitious.” or to recover a debt or a liquidated demand for money. the court finds that a judgment on the pleadings is proper. also unavailable in actions for annulment of a and declaration of nullity of marriage. on the ground that upon the facts presented by the plaintiff and the law on the matter.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 plaintiff has rested his case. Legal separation JUDGMENT ON THE PLEADINGS The defendant answered. general denial of the material allegations of the complaint. RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS It is a judgment rendered by the court dismissing a case upon motion of the defendant. Evidence is not received as the same is based on JUDGMENT BY DEFAULT The defendant did not file an answer. counterclaim. Claim for such damages must be alleged and proved. Answer admits material allegations of the adverse party’s pleading. May be asked for by a party seeking to recover upon a claim. on the ground that upon the facts presented by the plaintiff and the law on the matter. By moving for judgment on the pleading. Declaration of nullity of marriage 2. but did not tender an issue or admitted the material allegations in the complaint. cross-claim or third-party complaint. MOTION TO DISMISS Decision is based on the evidence presented. Although Rule does not specifically provide. plaintiff has not shown any right to relief. must be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings. or to obtain a declaratory relief. Filed by defendant to a complaint. b. it may render such judgment motu proprio. the pleadings alone. Annulment of marriage 3. ACTIONS WHERE THE MATERIAL FACTS ALLEGED IN THE COMPLAINT MUST ALWAYS BE PROVED 1. plaintiff waives his claim for unliquidated damages. and for legal separation since Section 1 refers to actions “to recover upon a claim. and patently unsubstantial so as not to constitute a genuine issue for trial. When judgment on the pleadings is proper A judgment on the pleadings must be on motion of the claimant. MOTION FOR JUDGMENT ON THE PLEADINGS Filed by the plaintiff if the answer raises no issue. if at pre-trial. Falcasantos v. or “to obtain declaratory relief”. Page 56 of Evidence is received. crossclaim. Answer fails to tender an issue because of: a. made after plaintiff has rested his case. However. If the complaint states no cause of action. plaintiff has not shown any right to relief. insufficient denial of the material allegations of the complaint or 2. Decision is based on the allegations in the pleadings. a motion to dismiss should be filed and no a motion for judgment on the pleading.

Affidavits in bad faith Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith. summary judgment is not proper. There is no genuine issue between the parties. Section 2. or admissions at least 3 days before the hearing. Affidavits made on personal knowledge. i. an issue of fact the resolution of which calls for the presentation of evidence. Section 5. Section 3. c. all intended to show that: a. contrived. a summary judgment may still be rendered if the issues tendered are NOT genuine. unless the defendant presents a counterclaim. depositions. 2. including attorney’s fees. Answers to interrogatories under Rule 25. SUMMARY JUDGMENT Based on the pleadings. The trial shall be conducted on the controverted facts only. Castillo 156 SCRA 753 (2000) Where the pleadings under a genuine issue i. depositions. the judgment sought shall be rendered forthwith if the pleadings. admissions. show that. or patently unsubstantial. supporting affidavits. Case not fully adjudicated on motion. Available to plaintiff. The adverse party may serve opposing affidavits. set-up in bad faith. if presentation is required. and patently unsubstantial. except as to the amount of damages. 4. It may. Mallilin v. After the hearing. set-up in bad faith. Summary judgment for claimant May be filed at any time after the pleading in answer thereto has been served. contrived. are sham. depositions. JUDGMENT BY DEFAULT (Rule 9) Based on the complaint and evidence. after hearing. The answer fails to tender an issue or there is an admission of material allegations. and admissions on file. 10-day notice required. Depositions of the adverse party or a third party under Rule 23 3. except damages which must always be proved. Suelto 156 SCRA 753 (1987) Even if the answer does tender an issue. Admissions of the adverse party under Rule 26. or solely for the purpose of delay. Section 4. there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Motion and proceedings thereon. This is intended to expedite or promptly dispose of cases where the facts appear undisputed and certain from the pleading’ admissions and affidavits. This rule does not vest in the court summary jurisdiction to try the issue on pleadings and affidavits but gives the court limited authority to enter summary judgment only if it clearly appears that there is no genuine issue of material fact. the court shall forthwith order the offending party or counsel to pay to the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur. Form of affidavits and supporting papers Section 6. as distinguished from an issue which is sham. 3-day notice rule applies.e. BASES OF SUMMARY JUDGMENT 1. May be interlocutory or No issues as no answer is filed by the defending party. On the merits. and affidavits. the movant is entitled to a judgment as a matter of law. Available to both plaintiff and defendant. there is no genuine issue as to any material fact.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. On the merits. Velasco v. fictitious. JUDGMENT ON THE PLEADINGS Based solely on the pleadings Generally available only to the plaintiff. and therefore a judgment on the pleadings is NOT proper. Summary judgment for defending party May be file at any time. The motion shall be served at least 10 days before the time specified for the hearing. and b. CA 156 SCRA 753 (2005) Trial courts are authorized to grant relief by summary judgment. 3-day notice required. further adjudge the offending party or counsel guilty of contempt. Page 57 of .e. Vergara v. there may be issues but these are irrelevant.

it can always be amended from time to time. 3. NOTE: A JUDGMENT is considered RENDERED: the filing of the signed decision constitutes the rendition of a judgment. Available in any action except annulment of marriage or legal separation cases. A judgment based on a compromise otherwise known as JUDICIAL COMPROMISE has the force of law and is conclusive between parties. and 3. or for a liquidated sum of money or for declaratory relief. Opinion of the court (findings of fact and conclusions of law) 2. The process by which a decision is published. coupled with notice to the parties or their counsel. To clarify an ambiguity which is borne out by and justifiable in the context of the decision. JUDGMENT NON PRO TUNC A judgment intended to enter into the records acts which had already been done. Available in any action except annulment of marriage or legal separation cases. after finality 1. as by an amendment nunc pro tunc. Disposition of the case (dispositive portion) 3. before finality 1. Section 1. Signature of the judge JUDGMENT UPON THE MERITS Judgment rendered after consideration of the evidence submitted by the parties during the trial of the case. even if the purpose is to correct perceived erroneous conclusions of the facts or law. personally and directly prepared by the judge. 2. upon matters submitted to it in an action or proceeding. 2. or 4. Judgment is the result. officially announced. PROMULGATION Page 58 of . RULE OF IMMUTABILITY OF JUDGMENT A final judgment cannot be modified. Rule 47 RULE 36 JUDGMENTS. MEMORANDUM DECISION The judgment or final resolution of the appellate court may adopt by reference the findings of facts and conclusions of law contained in the decision of the trial court. Where the judgment is void. made known to the public or delivered to the clerk of court for filing. NOTE: Attack of judgment maybe direct or collateral Direct attack a. not substantial amendments.appeal b. In judgments for support.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 on the merits. relief from judgment. Rendition of judgments and final orders REQUISITES OF A JUDGMENT 1. EXCEPTIONS: 1. Must state clearly and distinctly the facts and the law on which it I based. annulment of judgment.motion for new trial or reconsideration 2. DATE OF FINALITY OF JUDGMENT/ORDER Date of the finality of the judgment or final order shall be deemed to be the date of its entry. It is NOT appealable. but which do not appear in the records. Rule 38 2. It should be in writing. It should contain a dispositive and should be signed by the judge and filed with the clerk of court PARTS OF A JUDGMENT 1. The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or reconsideration is filed within 15 days. To make corrections of clerical errors. Available only in actions to recover a debt. The power to amend a judgment is inherent to the court before judgment becomes final and executory. FINAL ORDERS AND ENTRY THEREOF JUDGMENT Final consideration and determination by a court of the rights of the parties. or the dispositive part of the decision while the opinion gives the grounds for the decision. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule.

or motion for new trial It is proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. judgment becomes final and executory Court maintains decision Court grants motion: 1. Section 6. The action shall proceed as to the remaining claims. Several judgments is proper where the liability of each party is clearly separable and distinct from his coparties such that the claims against each of them could have been the subject of separate suits. if known.grants new trial REMEDIES AGAINST JUDGMENTS OR FINAL ORDERS Before finality of judgment or final order: 1. Section 3. which terminates such claim. Action shall proceed as to other claims. and the Page 59 of . Section 5. It is not proper in actions against solidary debtors. and 3. Separate judgments PROMULGATION OF JUDGMENT Court Renders Decision Losing Party Filing appeal within 15 days from notice of judgment SEPARATE JUDGMENT Judgment rendered to dispose of one of the several claims for relief presented in an action. Several judgments SEVERAL JUDGMENT Judgment rendered by a court against one or more several defendants and not against all of them leaving the action to proceed against the others. Petition for Certiorari Losing party may appeal within the remaining period Section 2. Motion for New Trial. Annulment of Judgment. Relief from Judgment or Final Order.modifies decision. Accepts decision without further contest Within 15 days from notice of judgment: Motion for reconsideration. Motion for Reconsideration. Appeal After Finality of the judgment or final order: 1. and 3. If no appeal is taken or did not avail of remedies. 2. Judgment for or against one or more of several parties Section 4. 2. The date of finality of the judgment or final order shall be deemed to be the date of its entry if no appeal or MNT or MR The date of finality of the judgment or final order shall be the date of its entry. or 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 judgment for or against one of them will not necessarily affect the other. upon 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 the claim. Judgment against entity without juridical personality The judgment shall set out their individual or proper names. made at any stage.

or 2.) duly authenticated documents to be introduced Required: 1. or new evidence is introduced. 2. Fraud (Extrinsic). will have to wait for the judgment and appeal therefrom If denied. must be in writing 2. the motion for new trial or reconsideration is considered PRO-FORMA or merely a scrap of scratch paper and will not toll the reglementary period for appeal Second motion may be allowed If a new trial is granted the trial court will set aside the judgment or final order Second motion from same party is prohibited If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law. not appealable. not appealable. The decision or final order is contrary to law. will have to wait for the judgment and appeal therefrom GROUNDS: MOTION FOR NEW TRIAL Page 60 of . it may amend such judgment or final order accordingly If denied. express reference to testimonial or documentary evidence or to provisions of law RULE 37 NEW TRIAL OR RECONSIDERATION Filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution. (a. with MOTION FOR RECONSIDERATION The grounds are: 1. or both steps are taken. affidavit of the existence of FAME and newly discovered evidence. affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action. 4.) affidavit of new witnesses. or 3.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 reasonable diligence. Absent the requirements above. Must point out specifically the conclusion of judgment. in case of newly discovered evidence. (b. Newly discovered evidence which could not. The evidence is insufficient to justify the decision or final order. have discovered and produced at the trial. MOTION FOR A NEW TRIAL The grounds are: 1. 2. Order denying motion for new trial Second motion for new trial based on grounds not existing or available when 1st motion was filed Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new trial Order denying a motion for new trial is not appealable Section 1. whereby errors of law or irregularities are expunged from the record. and which if presented would probably alter the result Required: 1. Mistake or Excusable Negligence (FAME). Grounds of and period for filing motion for new trial or reconsideration NEW TRIAL It is the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory. 3. The damages awarded are excessive. Accident.

however. If presented. Decision is contrary to law Section 2. Evidence is insufficient to justify the decision or final order 3. it does not point out specifically the findings or conclusions of the judgment as are contrary to law. applies only where the judgment sought to be reconsidered is one rendered on the merits. Action upon motion for new trial or reconsideration The Court may either:: 1. and is merely intended to delay the proceedings or if there is no affidavit of merit. Section 3. or excusable negligence (FAME).Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. Lucas v. "The motion prohibited by this Section is that which seeks reconsideration of the judgment rendered by the court after trial on the merits of the case. in good faith. 2. MISTAKE – generally refers to mistakes of fact or law where. a second motion is allowed but must be based on a ground not existing or available when the first motion was made. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. or for reopening of trial. Partial new trial or reconsideration when issues severable Section 8. Second motion for new trial Section 6. Effect of order for partial new trial EFFECTS OF AN ORDER FOR PARTIAL NEW TRIAL 1. which may be filed during the remainder of the 15-day period. no second motion is allowed. mistake.g. PRO-FORMA MOTION It is that which does not comply with Rule 15 and Rule 37. Discovered after trial 2. accident. Effect of granting of motion for new trial When motion is granted. EXCUSABLE NEGLIGENCE – depends upon the circumstances of the case." Section7. Extrinsic fraud connotes any fraudulent scheme executed by the prevailing party outside the trial against the missing party who because of such fraud is prevented from presenting his side of the case. Newly discovered evidence FRAUD – Must be extrinsic fraud. set aside judgment or final order and grant new trial 2. shall be used at the new trial taking the same. is a prohibited pleading under Section 19 of the Revised Rule on Summary Procedure. Fabros 324 SCRA 1 (2000) A Motion for new trial. deny the motion for new trial or motion for reconsideration 3. Damages awarded are excessive 2. Remedy against order denying a motion for new trial or reconsideration is appeal from the judgment Page 61 of . NOTE: New trial. stay the enforcement of such judgment Section 9. GROUNDS FOR MOTION FOR RECONSIDERATION 1. enter a judgment or final order as to the rest of the issues. REQUSITES TO BE CONSIDERED AS NEWLY DISCOVERED EVIDENCE 1. or 2. but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues. This rule. Resolution of motion Section 5. Could not have been discovered and produced at trial despite the exercise of reasonable diligence 3. however. ACCIDENT – an event that takes place without one’s foresight or expectation. could probably alter the result of the action Otherwise it is called forgotten evidence. amend such judgment or final order accordingly Section 4. NOTE: Motion for reconsideration. Contents of motion for new trial or reconsideration and notice thereof A motion suspends or tolls the running of the reglementary period except when it is pro-forma. the original judgment is thereby vacated and the action stands for trial de novo. or for reconsideration of a judgment. Fraud. e. the defendant was mislead in the case.

Section 6. court shall give due course to appeal. Section 5. court shall order adverse parties to answer within 15 days from receipt. Petition for relief from judgment. it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. the losing party must never have had a chance to controvert the adverse party’s evidence. counsel’s failure to specify the date and time for hearing of petitioner’s motion for reconsideration should rightly be deemed excusable negligence. Time for filing petition. Proceedings after answer is filed TWO HEARINGS: RULE 38 RELIEF FROM JUDGMENTS. NEW TRIAL/ RECONSIDERATION Must be filed within the appeal period. Petition for relief from denial of appeal GROUNDS FOR PETITION FOR RELIEF 1. if granted against denial of appeal. Basco v. and 3. If granted. ORDERS. The petition for relief must be verified. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal For fraud to be extrinsic. court shall issue an order requiring adverse parties to file answer within 15 days from receipt of the notice. The two remedies are exclusive of one another. or 2. Judgment not yet final. Order to file an answer If petition is sufficient in form and substance to justify relief. RELIEF FROM JUDGMENT Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered. An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. court shall hear the petition. CA 326 SCRA 768 (2000) In view of the peculiar circumstance of this case.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Not more than 6 months after such judgment FORM AND CONTENTS OF THE PETITION 1. Judgment or final order entered against a party by FAME. order. Section 4. More on equity FAME only Relief from judgment/order on other proceeding A legal right FAME + Newly Discovered Evidence Judgment on final order Section 3. or other proceedings Section 2. After answer is filed or expiration of period therefore. contents and verification Filed within 60 days after learning of judgment Page 62 of . Such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. 2. However. The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense. Preliminary Injunction is granted upon filing of the petitioner of the BOND in favor of adverse party. such that the defective notice of hearing on petitioner’s motion for reconsideration was due to the day-long brownouts that plagued the metropolis. judgment set aside and court shall proceed as if timely motion for new trial has been granted. OR OTHER PROCEEDINGS Section 1. Preliminary injunction pending proceedings PURPOSE This is to preserve the rights of the parties. It must be supported by affidavit showing the FAME relied upon. Uniform procedure for relief from judgments of MTC and RTC After petition is filed. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied.

Forcible entry and detainer 2. Terms of the judgment not clear. or determine the rights of parties Still subject to appeal FINAL AND EXECUTORY JUDGMENTS Becomes final & excecutory by operation of law After lapse of period to appeal and no appeal was perfected. Controversy has never been submitted to the judgment of the court. Conditional judgments 3. WHEN EXECUTION OF FINAL AND EXECUTORY JUDGMENT MAY BE ENJOINED 1. Upon expiration of the period to appeal therefrom and no appeal has been duly perfected. w/o any stated facts in support of the conclusion) 2. On equitable grounds Section 1. Procedure where the denial of an appeal is set aside The lower court shall be required to give due course to the appeal and to elevate the record of the appealed cases as if a timely and proper appeal had been made. on motion. If the court of origin refuses to issue a writ of execution. leaves room for interpretation. Injunction. 3. Award. Attack against a judgment which is void for lack of jurisdiction. 6. Sin perjuico judgments (judgment. Writ of execution improvidently issued.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 (a) Hearing to determine whether the judgment be set aside (b) If in the affirmative. When relief sought may be the allowance of an appeal after the expiration of the period to appeal. Execution of judgment not a matter of right Execution of judgment a matter of right JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE EXPIRATION OF TIME TO APPEAL 1. When appeal has been duly perfected and resolved. Execution is sought against property exempt from execution 5. or obtained through fraud 3. writ has been issued w/o authority. Upon judgment or order that disposes of the action or proceeding. Change in the situation of the parties which makes the execution inequitable or unjust. accounting and support 3. Execution upon judgments or final orders WHEN EXECUTION IS A MATTER OF RIGHT 1. direct the court of origin to issue the writ. receivership. Incomplete judgments GENERAL RULE: Trial Court has a ministerial duty to order execution of final and executory judgments. On motion. defective in substance. or resolution of quasi-judicial agencies appealable to CA INTERLOCUTORY ORDER EXECUTED Support pendente lite THAT MAY BE RULE 39 EXECUTION. In the above exceptions. 4. 2. 2. SATISFACTION AND EFFECT OF JUDGMENTS JUDGMENTS THAT ARE NOT APPEALABLE: 1. adjudicate. no further action can be had Page 63 of . FINAL JUDGMENTS Dispose of. 4. Writ of execution varies judgment. Section 7. When relief sought may be the staying of immediate execution due to FAME. final order. Upon filing of a petition for relief from judgment 2. remedy is certiorari under Rule 65. 2. EXCEPTIONS: 1. 3. the appellate court may. issued against the wrong party. judgment. judgment debtor has been paid or otherwise satisfied. It cannot refuse execution and is compellable by Mandamus. by filing a motion with the court of origin submitting true copies of the final judgment or final order sought to be enforced. a hearing on the merits of the case WHEN TRIAL ON THE MERITS NOT NECESSARY 1.

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. clerical errors or mistakes. 2) Good reasons for issuing execution. leaving the action to proceed as to the remaining claims EXECUTION AS A MATTER OF RIGHT Issued when period to appeal has already lapsed and no appeal has been perfected Ministerial duty of the provided there are no supervening events REQUISITES FOR EXECUTION PENDING APPEAL 1) On motion by the prevailing party. • e. Examples of good reasons 1) Where education of a person to be supported would unduly be delayed 2) The immediate execution of an order to support is valid 3) The judgment debtor is insolvent. Discretionary execution WHEN ISSUANCE OF WRIT OF EXECUTION IS DISCRETIONARY 1. and 3) The good reasons must be stated in a special order. A final and executory judgment can no longer be amended by adding thereto relief not originally included e. leading the action to proceed against others DISCRETIONARY EXECUTION May issue before the lapse of period to appeal Discretionary upon the court. • Support depends not only on the varying conditions affecting the ability of the obligor to pay. but also upon the ever-changing needs of the beneficiary himself. CLERICAL ERROR Errors not the result of exercise of judicial functions May be modified. agreement entered into by the parties other than terms of payment Judgment for support is not final in a sense that it cannot be modified.g. there is inquiry on whether there is good reason for execution SEPARATE/PARTIAL JUDGMENTS Rendered at any stage of the action regarding a particular claim. GENERAL RULE: Final and executory judgment cannot be amended or modified • Any amendment w/c substantially affects a final and executory judgment is null and void for lack of jurisdiction EXCEPTION: JUDGMENT MAY BE MODIFIED AS TO: 1.g. or 3. Execution pending appeal (a) While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal. by inadvertence has not been entered. w/o any allegation that the defendant is insolvent or is about to dispose of his properties 2) Where the reason given is that an appeal is frivolous or dilatory. or considered and erroneously decided Cannot be modified must be done in another case/suit (b) When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court. Page 64 of 2. corrected even after judgment has become final and executory JUDICIAL ERROR Mistake relates to something the court did not consider or pass on. . except when a co-defendant is solvent and his liability is subsidiary What are not good reasons: 1) the mere fact that a claim is not secured. (c) When trial court has lost jurisdiction and has transmitted records motion for execution pending appeal with appellate court 2. award of ownership does not necessarily include possession Section 2. In cases falling under the (6) exceptions above Judgment novated by a subsequent agreement cannot be executed. to clarify ambiguity.to make a present record of an order w/c the court rendered at a previous term but. Execution of several. the trial judge may not rightfully determine the same 3) Mere posting of a bond Award for actual and compensatory damages may be ordered executed pending appeal. but not moral and exemplary damages. separate or partial judgments SEVERAL JUDGMENTS Rendered against one or more of several defendants. to enter nunc pro tunc orders . with notice to the adverse party.

A final and executory judgment or order may be executed: 1) On motion. unless otherwise ordered by the trial court: 1. by another action w/in 10 years from finality of the revived judgment.execution upon a void judgment . Page 65 of . Stay of discretionary judgment Stay of execution may be allowed at the discretion of the court by filing a supersedeas bond SUPERSEDEAS BOND It is one filed by a petitioner and approved by the court before judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. Aside from the supersedeas bond.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Moral and exemplary damages depends on actual result of the appeal Execution pending appeal is not applicable in land registration proceedings Section 3. an aggrieved party may file a special civil action of certiorari under Rule 65 against the order granting execution pending appeal where the same is not founded upon good reasons. The supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal. Accounting. issue restitution or reparation in an event of a reversal after a petition for relief under Rule 38.judgment has been paid . title of 3rd person is protected. not other things like damage to property pending the appeal. 4. 2. or annulment of judgment under Rule 47 is granted How restitution is made. Such other judgments declared to be immediately executory unless otherwise ordered by the trial court. can be revived against one of them only. except when there is want of jurisdiction over the subject matter He may be required to surrender the property Creditor may be required to account for the value received by virtue of the sale to the 3rd party. Support. Receivership. w/in 5 years from entry. Execution by motion or by independent action. Effect of reversal of executed judgment The trial court may. and 5. Effects of reversal. Section 5. on motion. This remedy may be availed of notwithstanding the fact that 1) he has appealed from the judgment. or 2) has filed a supersedeas bond. but subsequently sold to a 3rd party Section 6. modification. Injunction. not the original judgment EXECUTION OF A JUDGMENT BY COMPROMISE WITH A TERM If a compromise agreement w/ a term suspends the enforceability of a final judgment. not from the date of entry REVIVAL OF A JOINT AND SEVERAL JUDGMENT A judgment rendered against several defendants. unless writ of execution is absolutely void. enforceable after their rendition and shall not be stayed by an appeal.execution levied on wrong party Sale of a creditor to himself in a public sale Sale to a creditor. He can be required to restore the excess realized upon the execution over and above the amount finally awarded Sale is not affected by reversal. COMPLETE SPECIFIC RESTITUTION Sale by sheriff to a 3rd person REVERSAL Modified judgment Creditor may not be compelled to make specific restitution. jointly and severally. Judgments not stayed by an appeal The following judgments are immediately executory. 3. or 2) By filing another action w/in 10 years from entry Lifespan of writ of execution= 5 years A revived judgment is again enforceable by motion w/in 5 years and thereafter. where: . the 5 year/10 year period must be counted from the end of such term. title of 3rd party is protected. Section 4.

land registration proceedings NOTE: An action for support does not prescribe and may still be enforced by motion even after the lapse of 5 year period since the obligation is a continuing one. damages. DEATH OF A OBLIGOR Section 7. before or after entry. Section 6 This section applies when a party dies after rendition of judgment.e. administrator. administrator.execution will issue 2. aside from the principal obligation Special sheriffs for the service of writ of execution are not authorized by law. Issuance.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WHEN 5/10 YEAR PERIOD SUSPENDED 1) When the enforceability of a final decision is suspended by the court. Death After Levy: execution will issue since the property is already separated from the estate of the deceased and is deemed in custodia legis. or profits due as of the date of issuance of the writ. Page 66 of . form. otherwise it is null and void. costs. Execution in case of death of party. Action for a sum of money – execution will NOT issue. for purposes of execution and enforcement Governed by Rule 39. Section 1 JURISDICTION TO ENFORCE JUDGMENT Continues even after judgment has become final. A judgment of foreclosure of mortgage is enforceable by execution against the executor or administrator whether the judgment obligor died before or after entry of judgment. at the election of the plaintiff. rents. MODIFY JUDGMENT Terminates when the judgment becomes final Governed by Rule 39. The court never loses jurisdiction to enforce such.does not prescribe . DEATH OF A OBLIGEE Execution will issue in any case Upon application of his executor. Section 8. or successorin-interest Death Before Levy: 1.may still be enforced by motion even after the 5 year period 2) Special proceedings . The motion for execution and the writ of execution must state specifically the amount of interest. real action where the property is located DEFENSES AVAILABLE IN AN ACTION FOR ENFORCEMENT OF JUDGMENT prescription satisfaction of claim counterclaims JURISDICTION TO CHANGE. The writ of execution must conform to the judgment to be executed. Against his executor. ALTER.g. Action for recovery of real or personal property or any lien . and contents of a writ of execution. 2) When the 5 year period is interrupted or suspended by agreement of the parties 3) When the judgment creditor institutes supplementary proceedings to the execution 4) When delays are caused by judgment obligor’s own initiatives and for her advantage A valid execution issued and levied w/in the 5 year period may be enforced by sale even after the lapse of the said period The levy is the essential act by which the property is set apart for satisfaction of judgment However. the execution sale must take place w/in the 10 year period WHEN 5 AND 10 YEAR PERIODS NOT APPLICABLE 1) Judgment for support . In this case. VENUE OF ACTION FOR ENFORCEMENT OF JUDGMENT personal action where plaintiff resides or defendant resides. or successorin-interest An appeal is the remedy for an order denying the issuance of a writ of execution. the judgment obligee should file claim against the estate of the judgment obligor under Rule 86.

Real or personal property situated w/in the Philippines: court in lieu of conveyance may give order divesting title and may vest it in others 2) Sale of real or personal property 3) Delivery or restitution of real property . judgment debt has been paid. demolish. including bank deposits. certified bank check payable to the judgment obligee. Execution of judgments for specific act SPECIFIC ACTS 1) Conveyance. EXCEPTIONS: 1) Usufruct 2) Ascertainable interest in real estate as mortgagor. officer shall levy 1st on personal property. or other credits. The officer shall levy upon properties of the judgment obligor not otherwise exempt from execution Judgment obligor exercises option to chose w/c property levied upon. to the sheriff. garnishment of debts and credits Page 67 of GARNISHMENT An act of appropriation by the court when property of debtor is in the hands of third persons. and restore possession to judgment obligee. satisfaction by levy LEVY An act by which an officer sets apart or appropriates a part or whole of the property of the judgment debtor for purposes of the execution sale. and interest of the judgment obligor in such property at the time of the levy. otherwise officer shall oust such persons 4) Removal of improvements on property subject of execution . title. levy on a barge by registration w/ Philippine Coast Guard (constructive) Section 10. Execution of judgments for money.g. financial interests. or if not present. 4) controversy has never been submitted to the judgment of the court. delivery of deeds. 2) change in the situation of the parties making execution inequitable and unjust. 3. 6) writ of execution is improvidently issued. or if ‐ not practicable. how enforced 3 WAYS TO ENFORCE A JUDGMENT FOR MONEY 1. subject to liens and encumbrances then existing.if party fails to comply within the time specified. to a fiduciary account 2.officer shall not destroy. if not exercised. 5) terms of judgment are not clear and there remains room for interpretation. the court may direct the act to be done at the cost of the disobedient party . or writ issued without authority Section 9.officer shall demand person to peaceably vacate property w/in 3 working days. The on execution creates a lien in favor of the judgment obligee over the right. not capable of manual delivery in the possession or control of 3rd parties Notice served on 3rd party (garnishee) ‐ GENERAL RULE: All property belonging to judgment obligor not exempt from execution may be attached. vesting title . or any other form of payment acceptable to the latter ‐ payment made to the judgment obligee or his representative. or otherwise 3) Unused balance of an overdraft account (credit not subject to garnishment) Levy on personal property may be actual or constructive e.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 GROUNDS FOR QUASHING A WRIT OF EXECUTION: 1) writ of execution varies judgment. then on real property The sheriff shall sell only property sufficient to satisfy the judgment and other lawful fees. mortgagee. or remove improvements except upon special order of the court . issued against the wrong party. defective in substance. ‐ The sheriff may levy on debts due to debtor. commissions and other personal property. or other specific acts. royalties. 3) execution sought to be enforced against property exempt from execution. Immediate payment on demand ‐ judgment obligor shall pay in cash.

clothing. work animals. or livelihood 3) 3 horses. or other beast of burden necessarily used in his ordinary occupation 4) necessary clothing and articles for ordinary personal use. deliver – the sheriff will take possession and deliver it to the winning party. CIR L-17874 31 August 1963) (Regalado. subject to limitations (Section21. or the sale or delivery of real or personal property Failure to comply with special judgment under Section 11 is punishable as contempt by imprisonment Section 12. shelter. RA 6389) 7) Benefits from private retirement systems of companies and establishments. vacate the property – the sheriff must oust the party.3. except for debts incurred for food. However. benefits. defeated party is given reasonable period to look for another place. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. and medical attendance (Art. Section 239. with limitations (RA 4917) 8) Labor wages. 65. cows. CA 458) 2) Property taken over by Alien Property Administration (Section 9[f]. F. NCC) 9) Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24. privileges. or annuities accruing out of any life insurance 12) Properties specially exempt from execution OTHER PROPERTIES SPECIALLY EXEMPT FROM EXECUTION 1) Property mortgaged to DBP (Section 26. Execution of special judgment SPECIAL JUDGMENT A special judgment is one that can be complied with only by the judgment obligor himself. 447-448). pp. 2. except jewelry 5) household furniture and utensils necessary for housekeeping ≤ P100K 6) Provisions for individual or family use sufficient for 4 months 7) Professional libraries and equipment 8) One fishing boat and accessories ≤ P100K used in livelihood 9) Salaries. carabaos. land necessarily used in connection therewith 2) ordinary tools and implements used in trade. It requires the performance of any other act than payment of money. or homestead. 1708. 3. Property exempt from execution PROPERTIES EXEMPT FROM EXECUTION 1) family home. after judgment obligor failed to remove the same 5) Delivery of personal property officer shall take possession of the same and deliver it to the judgment oblige • Failure to comply with specific acts under Rule 39 Sec. employment. if a party refuses to: 1. Remedial Law Compendium Vol. 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 • No time limit w/in which an order of demolition should be carried out. RA 8293) 11) Bonds issued under RA 1000 (NASSCO v. and farm implements of agricultural lessees. ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD but writ of execution must be served w/in 5 years order of demolition ancillary to writ Certiorari is available if requirements for issuance of order of demolition are not followed Section 11. Effect of Levy on execution as to third persons Section 13. and 177) 10) Copyrights and other rights in intellectual property under the former copright law (PD 49 cf. 8th ed.. or earnings as are necessary for support of family w/in 4 months preceding levy 10) Lettered gravestones 11) Monies. 1. wages. 10 is not necessarily punishable by contempt. Page 68 of .Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 special order issued upon motion. US Trading With The Enemy Act) 3) Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4) Backpay of pre-war civilian employees (RA 304) 5) Philippine Government backpay to guerillas (RA 897) 6) Produce.

sheriff not liable for damages if bond is filed 2.amount of bond not less than value of property .claim must be w/in 120 days from filing of bond Page 69 of . Return of writ of execution Writ of execution is returnable to the court after judgment it satisfied Sheriff shall report to the court w/in 30 days after receipt and every 30 days until the judgment is satisfied in full Lifetime of writ of execution – 5 years from entry of judgment The rules do not provide any lifetime for a writ of attachment unlike writ of execution Section 15.000: Publication once a week for 2 character & condition consecutive weeks and of the property . Notice of sale of property on execution REQUISITES FOR REQUISITES FOR NOTICE OF SALE OF NOTICE OF SALE OF PERSONAL REAL PROPERTY PROPERTY . Liable in solidum because liability is joint and solidary Want of notice does not invalidate the execution sale where purchaser is innocent and no collusion appears (buyer in good faith) Section 16.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 14. The sheriff may or may not require the judgment obligee to file a bond. and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. INDEMNITY BOND FILED Action for damages brought against the principal and sureties on the bond Sheriff not liable for damages Sheriff bound to keep property on behalf of judgment obligee NO INDEMNITY BOND FILED Action for damages may be brought against sheriff himself Sheriff liable for damages Sheriff not bound to keep property under levy REMEDY OF THE CREDITOR 1. so as long as the sheriff has the possession of the property levied upon.In all cases. File a separate action for damages against the sheriff (if no bond filed) 3. File a bond to indemnify 3rd party complainant . Sheriff and creditor are joint tortfeasors 2. Proceedings where property claimed by third persons 3RD PARTY CLAIM A claim by any person other than the judgment debtor or his agent on property levied on execution PURPOSE OF 3RD PARTY CLAIM 1) To recover property levied on by sheriff (although 3rd party can vindicate claim in a separate action) 2) To hold sheriff liable for damages for the taking or keeping of such property WHEN TO FILE A 3RD PARTY CLAIM At any time. except as provided in paragraph (a) hereof where notice shall be given at any time. written notice of the sale shall be given to the judgment obligor.perishable property: . or before the property is sold under execution WHAT IS THE PROCEDURE FOR A 3RD PARTY CLAIM 3rd party should make an affidavit of his title thereto.no intervention allowed since judgment final & executory 2. EFFECTS OF AN EXECUTION SALE WITHOUT THE REQUIRED NOTICE 1.000: notice posted in 3 public notice posted in 3 places for 20 days public places for such time as may be reasonable considering the . File a claim for damages against 3rd party in the same or separate action . File a claim for damages against the bond . at least 3 days before the sale. or right of possession thereof. Vindicate his claim in a separate action .other personal notice posted in 3 public property: notice places for 20 days posted in 3 public places for not less than 5 days .If > 50.based on the ground that 3rd party claim is frivolous or plainly spurious REMEDY OF THE 3RD PARTY 1.If ≤ 50.

Adjournment of Sale If both obligee and obligor agree in writing. sale may be adjourned to any date and time agreed upon Without such agreement. notice posted in 3 public places) What is the liability? 1. or 2. Adjournment = waiver of publication of another notice requirement Section 23. who issued the writ of execution Officer conducting sale. Section 19. or his deputy EFFECT OF SALE OF REAL PROPERTY IN MASS GENERAL RULE: Valid EXCEPTION: 1. 2. to the highest bidder 3. Shocking inadequacy of price may be ground for setting aside sale Who has jurisdiction to set aside execution sale? Court w/c rendered judgment that became final and executory has exclusive jurisdiction After sufficient property has been sold to satisfy the execution. a sale of less than whole would be sufficient to satisfy debt Mere inadequacy of price is not material if there is a right of redemption. Judgment obligee as purchaser Officer may sell again the property to the highest bidder refusing purchaser may be liable for amount of loss occasioned by such refusal Refusing purchaser may be punished for contempt Officer may reject subsequent bid of refusing purchaser If judgment obligee is the successful bidder BID ≤ JUDGMENT IF BID > JUDGMENT Judgment obligee not required to pay bid Judgment obligee required to pay excess Section 22. Without an indemnity bond. Refusal of purchaser to pay Section 21. the sheriff must deliver the property capable of manual delivery to the purchaser If desired the sheriff shall execute and deliver a certificate of sale No right of redemption in sales of personal property on execution Page 70 of . sale may be adjourned from day to day if it becomes necessary to o so for lack of time. No sale if judgment and costs paid If judgment obligor paid the amount of judgment NO writ of execution may be issued or implemented. Section 20. or removing or defacing notice PERSONS LIABLE UNDER SECTION 17 1) Officer selling without notice 2) Any person willfully removing or defacing notice posted (e. Penalty for selling without notice. unless otherwise directed by the judgment or order of the court. to start at the exact time fixed in the notice Sale of real properties must be made in the province where the same are situated Purpose is to obtain the best price PERSONS PROHIBITED FROM BUYING Judge. Conveyance to purchaser of personal property capable of manual delivery After purchaser pays the purchase price. How property sold on execution. punitive damages to any person injured thereby = P5000. no more sale shall be made and any excess shall be promptly delivered to the judgment obligor or his authorized representative. Section 17. at a public auction 2. when it appears that a larger sum would have been realized from a sale in parcels. who may direct manner and order of sale All sales of property under execution must be made: 1.g. The judgment creditor cannot be compelled to file a bond because he is at complete liberty to do so.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The sheriff is at complete liberty to suspend or not to suspend execution if the judgment creditor does not file a bond. actual damages Section 18. the sheriff acts at his own risk if he keeps the property (can be liable for damages).

joint debtors) When? Within 1 year from the date of registration of the certificate of sale REDEMPTIONER One who has a lien by virtue of another attachment. or his successor in interest (e. The purchaser is not entitled to possession during the period of redemption. The auction sale retroacts to the date of the levy. certificate thereof given to purchaser and filed with registry of deeds CERTIFICATE OF SALE MUST CONTAIN 1) Description of real property sold. not obligor Right of redemption cannot be levied on by judgment creditor The judgment debtor may. the officer must execute and deliver to purchaser certificate of sale (symbolic delivery) Section 25. notice to be given and filed PERIOD OF REDEMPTION JUDGMENT REDEMPTIONER OBLIGOR Judgment Obligor 1st redemptioner has 1 year to has 1 year from redeem registration of 2nd redemptioner has 60 to redeem after 1st redemption certificate of sale 3rd redemptioner has 60 days after 2nd. through no fault of redemptioner. Once he redeems. Real Property – there is a right of redemption WHO MAY REDEEM? JUDGMENT DEBTOR Judgment obligor. A surety is NOT a successor in interest By paying the debt. a 3rd party claim was filed after the levy. although Sec. judgment. Further redemption allowed. etc. The fact that the 3rd party claim was presented 1 day before the execution sale is immaterial. 2) Price paid (per lot) 3) Whole price paid 4) Statement of right of redemption 1 year from date of registration of certificate of sale ORDINARY SALE ON EXECUTION Need not be confirmed Right of redemption Purchaser acquires upon expiration redemption period title of EXECUTION IN JUDICIAL FORECLOSURE OF MORTGAGE Needs judicial confirmation No right of redemption (except where mortgagee is a bank) Purchaser acquires title after judicial confirmation of sale 2. 9. Section 26. Within 1 year from the date of registration of the certificate of sale. Personal Property – None. Who may redeem real property so sold RIGHT OF REDEMPTION: 1. Auction sale retroacts to date of levy E. redemption invalid If check became stale for not being presented. no further even after lapse of 1 year.g. heirs. the sale is also valid. successive redemptions. interest and claim of judgment obligor. Certificate of sale where property claimed by 3rd person The certificate of sale to be issued shall make express mention of the existence of such third-party claim. assignee. or 2. sale is absolute . transferee. Within 60 days from the last redemption by another redemptioner. he stands in the place of the creditor. Conveyance of real property. redemption valid Page 71 of Purchaser acquires only right. Purchaser of property registered under Torrens system acquires the same free from liens or encumbrances not noted thereon. of course. legally sell his right of redemption Section 28. Section 27. Time and manner of. Rule 39 allows certified bank check If check is dishonored. title. Conveyance to purchaser of personal property not capable of manual delivery For personal property not capable of manual delivery. or mortgage on property SUBSEQUENT to the lien under which the property was sold When? 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 24. as redemption is long as each redemption is allowed made w/in 60 days after the last Payment – how and to whom made Tender of redemption money may be made to purchaser or sheriff If tender to sheriff – duty to accept Medium of payment Cash. If the levy is valid. and amounts payable on.g.

showing amount due on lien Failure to produce proof by redemptioner is waived by refusal on other grounds. During the period of redemption. 2) Use in the ordinary course of husbandry. income and fruits derived still belong to the debtor.memorandum of record. and income of property sold on execution. the purchaser now has his own right and Page 72 of Section 29. certified by clerk of court . After 1 year. w/ interest interest + assessment or taxes If based on Mortgage or other lien. expenses. interest and claim of judgment obligor to property. receive the rents. 3) Make necessary repairs to buildings thereon Section 32. Deed and possession to be given at expiration of redemption period.Amount of liens held by last redemptioner prior to price + 2% his own. title. possession 2. Effect of redemption by judgment obligor.must serve copy of judgment or final order. Payments may be made redemptioner. AND . earnings and income of property pending redemption During the period of redemption. Section 30. If interest + purchaser also assessment creditor w/ prior or taxes lien If he redeems from If he redeems from redemptioner . or any assignment. reimbursement for improvements Section 33. Upon expiration when no redemption has been made within 6 months. purchaser is entitled to conveyance and possession of property. A formal offer to redeem is not necessary where the right to redeem is exercised through the filing of a complaint to redeem in the courts. Proof required of redemptioner PROOF REQUIRED JUDGMENT OR FINAL ORDER No proof required Right of redemption appears on record REDEMPTIONER If based on judgment or final order: . Within 1 year purchaser acquires only the rights.Amount of lien. certified bank checks. Validity of redemption not affected by failure to present proof If person to whom redemption was offered accepts without requiring proof – redemption valid Section 31. the purchaser or redemptioner is not entitled to: 1.Same as .affidavit. to the purchaser. The rule is construed liberally in allowing redemption (aid rather than to defeat the right) and it has been allowed to in the case of a cashier’s check. last redemptioner is entitled to conveyance and possession of property.Purchase judgment obligor price + 1% . Rents. Manner of using premises pending redemption. must serve: . the court issues an order to restrain the commission of waste on the property by injunction. waste restrained During the period pending the redemption. 3. earnings.Redemption . or sheriff. and even checks. by whom executed or given Upon expiration when no redemption has been made within 1 year. all rents.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Amounts Payable On Redemption JUDGMENT REDEMPTIONER OBLIGOR If he redeems from the If he redeems from the purchaser: purchaser: . Redemption can be paid in other forms than cash. to whom payments on redemption made If judgment obligor redeems. within the period to redeem.Same as judgment obligor redemptioner . no further redemption is allowed. and a certificate to be delivered and recorded thereupon. WHAT IS NOT COMMISSION OF WASTE 1) Use in the same a manner previously used. The Person to whom redemption was made must execute and deliver to the judgment obligor a certificate of redemption.

investigate income. to be applied to the satisfaction of the judgment Investigation of income and expenses if it appears earnings more than necessary for support of family court may order that he pay judgment in fixed monthly installments otherwise contempt Page 73 of of Section 34. in the hands of either himself or another. Section 39. Order for application of property and income to satisfaction of judgment. successors-in-interest . property exempt from execution. Writ of possession may be enforced against judgment obligor. requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). 40 – order to apply to obligor’s property in the hands of another.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 acquires right to the property. Court may order property of judgment obligor. Recovery of price if sale not effective. 41 – appoint receiver 7) Sec. Section 38. 37 – examination of judgment obligor’s debtor (garnishee) 3) Sec. or 2) have original judgment revived for whole price w/ interest Section 35. judgment reversed. or so much w/c is not returned to judgment obligor. It is at this time that the writ of possession is issued.but NOT against persons whose right possession is adverse to the latter 5) Sec. Examination of obligor of judgment obligor Any person or corporation who has property of the debtor. the creditor may ask the court to require the debtor to appear and his property or income be examined . court may order creditor to institute action against such person to pay debt Section 37. evicted. and judgment is still unsatisfied. or 3rd party vindicated claim. and more than due proportion has been satisfied one who pays may compel contribution from the others If surety pays principal he may compel repayment from the Section 36. 36 – examination of judgment obligor’s property 2) Sec. or money due him. revival of judgment If purchaser fails to recover possession. 38 – enforcement of attendance and conduct of examination (punishable by contempt) 4) Sec. earnings order fix monthly payments 6) Sec. to attend before the court or commissioner to testify as provided in Sections 36 & 37. It is to compel the disclosure of any property that is not exempt from execution 1) Sec. PROCEEDINGS SUPPLEMENTARY TO EXECUTION The proceedings are to aid judgment creditors in discovery of debtor’s property and its application to the satisfaction of judgment. or is indebted to the debtor court may order such person to be examined to bind the credits due to debtor CITATION The garnishee becomes a forced intervenor. Obligor may pay execution against obligee Persons indebted to the debtor may pay sheriff. expenses. Right to contribution or reimbursement If property is executed against several persons. Failure to obey such order or subpoena may be punished for contempt. Enforcement of attendance and conduct of examination A party or other person may be compelled by an order of subpoena. 43 – if garnishee denies debt. 39 – judgment obligor’s debtor may pay sheriff Sheriff’s receipt shall mean a discharge for the amount paid and shall be credited by the obligee on execution Section 40. purchaser may. 42 – sale of debtor’s interest in real estate 8) Sec. Examination of judgment obligor when judgment unsatisfied Upon return of writ of execution. on motion or in a separate action: 1) recover from creditor price paid w/ interest.

But. Sale of ascertainable interest of judgment obligor in real estate. Debtor who voluntary satisfies judgment loses right to appeal.principal also bound by judgment . the debtor who is compelled to pay does NOT lose right to appeal. surety must still file separate action for reimbursement but principal can no longer set up defenses w/c he could have set up in the original action . forbid transfer or other disposition of such interest or debt w/in 120 days from notice of order. and order entry of satisfaction of judgment . claims an interest in property adverse to him or denies debt Court may: 1.surety should notify principal and request him to join in defense. may punish disobedience of such order as for contempt.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 41. must consign payment w/ court Section 46.judgment may be rendered against them jointly & severally . When principal bound by judgment against surety SURETY SUED ALONE .If tender refused. authorize judgment obligee to institute action against person or corporation for recovery of such interest or debt. Appointment of receiver The sheriff is not a proper person to be appointed as receiver. Proceedings when indebtedness denied or another person claims property. Section 42. or 3. If Judgment obligor has interest in real estate (as mortgagor or mortgagee.principal has no cause of action against surety The principal is bound by the same judgment from the time he has notice of the action or proceeding and Page 74 of . Entry of satisfaction with or without admission Judgment obligee is obliged to execute and acknowledge admission of satisfaction of judgment only if judgment obligor demands ENTRY OF SATISFACTION OF JUDGMENT-WHEN MADE 1) upon return of execution satisfied 2) upon filing of admission of satisfaction by creditor 3) upon indorsement of such admission 4) upon order of the court Creditor who compels satisfaction of judgment loses right of appeal. 2. TENDER OF PAYMENT OF JUDGMENT TENDER OF PAYMENT OF CONTRACTUAL DEBT . or otherwise) Receiver may be ordered to sell and convey real estate or interest therein Section 43. he may set up defenses in a subsequent action PRINCIPAL AND SURETY JOINTLY SUED . not necessary to make consignation . Person or corporation having property of obligor or indebted to him. Entry of satisfaction of judgment by clerk of court Section 45.if principal not notified.If tender refused.Court may direct money to be paid to the court. Court cannot make a finding that 3rd person has in his possession property belonging to judgment debtor or is indebted to him and to order said person to pay amount to judgment creditor Execution may issue only upon an incontrovertible showing that 3rd party holds property of judgment obligor or is indebted to him Section 44.surety should file cross-claim for reimbursem ent PRINCIPAL SUED ALONE .

RES JUDICATA OR BAR BY FORMER JUDGMENT .identity of parties. REQUISITES OF RES JUDICATA 1) Former judgment or order must be final and executory.Absolute bar to subsequent action . RECOGNITION OF A FOREIGN JUDGMENT Raise the foreign judgment as res judicata in the defense (not in a separate action). SM only Section 48. or relationship of the person CONCLUSIVENESS OF JUDGMENT Issues are actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action. Effect of foreign judgments or final orders. on the points and matters in issue in the first suit. and cause of action between first and second action. political. to join the defense. the judgment may be repelled by evidence of want of jurisdiction.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 has been given an opportunity at the surety’s request. only prima facie evidence of the death of the testator or intestate Condition.Refers to another action between same parties but involves different claim . JUDGMENT OR FINAL ORDER Against A specific thing Probate of a will or administration of the estate of a deceased person In respect to the personal. 2) Court has jurisdiction over subject matter and parties.there is finality as to the claim or demand in controversy. Paragraph (a) refers to rule on Res Judicata in judgments IN REM. Effect of judgment or final orders. Page 75 of . collusion. ENFORCEMENT OF FOREIGN JUDGMENTS By filing an action based on said judgment. Section 47. status. not only to matters presented. fraud. 2) Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. an existing final judgment or decree rendered on the merits is conclusive upon the rights of the parties or their privies. SM. NOT between co-parties Paragraph (c) is known as “conclusiveness of judgment” or preclusion of issues or rule of AUTER ACTION PENDANT . Test to determine IDENTITY OF CAUSE OF ACTION Whether the same evidence would sustain both causes of action NOTE: Res Judicata applies only between adverse parties in a former suit. foreign judgment is presumed to be valid and binding.identity of parties. but as to any other admissible matter w/c might have been presented . 4) Identity of parties. EFFECT OF A FOREIGN ORDER OR TRIBUNAL: 1) Against a specific thing – conclusive upon title to the thing. However. claim or demand . In both instances. notice.Refers to same action. or legal condition or status of a particular person EFFECT: CONCLUSIVE AS TO the title of the thing Will or administration.judgment merely an estoppel only as to those matters in issue or controverted Paragraph (b) refers to as “bar by former judgment or Res Judicata in judgments IN PERSONAM RES JUDICATA It is a matter adjudged. 3) Former judgment or order was on merits. in all other actions or suits in the same or any other judicial tribunal. or clear mistake of law or fact. It is based on the principle that parties should not litigate the same matter more than once. cause of action ESTOPPEL BY JUDGMENT OR CONCLUSIVENESS BY JUDGMENT . subject matter.

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->