RULE I Q. When does an action deemed commenced? A. An action is deemed commenced upon the filing of the complaint.

This is the provision of the old rule. But this old rule that an action is deemed commenced as of the date the complaint is filed has been amended to include a provision which envisions a case when the action is already filed and is amended to include an additional defendant. Example: The case was filed Dec.2, 1997 by A against B only. Under this rule, the action is deemed commenced on Dec. 2, 1997 in so far as only A and B are concerned. On . Dec 3,1997 A filed an amended complaint including now C. Q. When is this action deemed commenced? A. Insofar as A and B are concerned, the action is deemed commenced on Dec. 2, 1997. But insofar as it concerns A and C, the action is deemed commenced on Dec. 3, 1997 (as to C). Q. Why do we distinguish the date of commencement of an action in this situation where the additional defendant? A. Because we have the law on prescription. is an

At the time the case was filed on Dec. 1, 1997, the action against B may not yet have prescribed. But when the complaint was amended on Dec. 3, 1997, the action of A against B and C may have already prescribed. That is why it is necessary to consider the situation like this when the action is being commenced with respect to an additional defendant. RENE NOTES: 1) An action is commenced by the filing of the complaint and the payment of the requisite docket fees within the prescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period. 2) An action can be commenced by filing the complaint by registered mail. It is the date of the mailing that is considered as the date of filing, and not the date of the receipt thereof by the clerk of court. 3) The amount of damages in the body of prayer of the pleading must enable the clerk of court to compute the docket fees required. 4) The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive period. With respect to actions, we have retained the provisions of the old code. With respect to some subject matter under the old rule, a party plaintiff can file only one complaint based on one single cause of action. He cannot split its cause of action. And when he splits his cause of action, the subsequent actions maybe the subject of a motion to dismiss. This rule has been retained in the New Rules in Civil Procedure. Example: (Splitting of causes of action which have been retained) Note: Same parties A is a resident of Sulu, B is of Batanes. There is a piece of land located in Sorsogon. The causes of action of A against B are as follows: 1) sum of money involving P200,000.00 2) reindivicacion over the lot valued at P50,000.00 Q. Can A file a complaint against B joining in one complaint the action for sum of money and the action for reinvidicacion (if it can, with what court and place)? A. Let us vary the facts, the claim for money is P201,000.00. The value of the property is P19,000.00 Q. Can A file only one complaint incorporating therein the sum of money of P201,000.00 and reindivicacion of lot valued at P19,000.00?

A.

Sec. 5 Rule 2(rules on joinder of causes of action ) A party may in one pleading assert, in the alternatives or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: a. the party joining the causes of action shall comply with the rules on joinder of parties; b. the joinder shall not include special civil action or actions governed by special rules; c. where the causes of action are between the same parties but pertain to different venue of jurisdictions, the joinder may be allowed in the RTC provided one of the cases of action falls within the jurisdiction of said court and the venue lies herein; and d. where the claims in all the causes of action are principally for recovery of money the aggregate amount claimed shall be the test of jurisdiction.

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The rule on joinder is as follows: A party may join two or more causes of action which he has in his favor in only one complaint. So if A has 10 causes of action against B, instead of A filing 10 separate action against B, he may be allowed to file only one complaint, and incorporating therein all the 10 causes of action. Q. A. Supposing his causes of action pertain to different venues or jurisdiction where will A, the plaintiff, file his 10 causes of action embodied only one complaint? The rule is, if these 10 causes of action pertain to different venues, the action may be filed in the appropriate RTC provided that the venue of the action lies therein.

In the former example, the first action was the sum of money involving P200,000.00 only and the second cause of action is reinvidicacion involving P50,000.00. Since A is not obliged to allege all causes of action in one complaint, he may elect to file two separate actions: 1) A vs. B for sum of money 2) A vs. B for reindivicacion. Q. If he were to file this action for sum of money only, in what court of what place may A file the complaint? A. You apply Rule 4 venue Since this is a personal action for sum of money, the venue could be the residence of plaintiff A, or the residence of the defendant B at the election of A. So this case can be filed either in Sulu or Batanes. Q. A. Q. A. Q. A. In what court in Sulu or in Batanes may this action of A be filed? Considering the amount which is only P200,000.00, this is within the jurisdiction of MTC. So this case can be filed either in the MTC of Sulu or in the MTC of Batanes. If A were to file an action for reindivicacion, over this lot located is Sorsogon, in what place should A file the case? We apply again Rule 4 Venue and that would be Sorsogon. In what court in Sorsogon should the action be filed? Considering the value P50,000.00, this action should be filed only in RTC of Sorsogon.

Let us assume however that A elected to file only one complaint involving these sum of money of P200,000.00 and this property involving P500,000.00. The court that has the jurisdiction over the sum of money of P200,000.00 is the MTC. The court that has the jurisdiction over reindivicacion is the RTC of Sorsogon. Q. A. Where can these two actions be filed? Only in the RTC of Sorsogon. It cannot be filed in Sulu or Batanes. It can be filed only in Sorsogon. Let us get the reverse… The value of sum of money is P200,000.00 and so this is within the jurisdiction of the RTC. The value of the property here is P19,000.00, this is within the jurisdiction of the MTC. Q. A. Can you now join these two? Yes, in the RTC of Sorsogon. Not in Sulu or Batanes, but in the RTC of Sorsogon.

Example: A resident of Sulu, sued B a resident of Batanes, in only one complaint alleging therein these two causes of action: 1. For recovery of P200,001.00 sum of money, 2. For forcible entry over a piece of land located in Sorsogon valued at P19,999.99. Q. Can A join only in one complaint on these two (2) causes of action? A. These two cannot be joined because one is an ordinary civil action (sum of money) and the other is a special civil action (forcible entry). This is one of the limitation of joinder of causes of action. A special civil action cannot be joined with another action which is ordinary. Example: A is a resident of Sulu, B of Batanes, C of Zamboanga. A loaned 1M to B, and the loan is evidenced by a promissory note which B signed. The promissory note matured without B paying the money notwithstanding. A has another cause of action against B and C for another 1M pesos, a promissory note was also executed and signed by B and C. The promissory note also matured but they did not pay. Q. Can A file only one complaint against both B and C incorporating therein these two causes of action? (The action against B for 1M pesos and another action against B and C for P1M)

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A. No, A cannot file only one complaint against B and C, otherwise, A will violate one of the limitations (Sec. 5 (a)) provided for in joinder of Causes of Action under Rule 2 Section 5. If A is permitted to do so, it will be a violation of the provision on Rules on Joinder of Parties under Rule 3 Sec. 6. C has nothing to do with the first promissory note executed by B. C has no interest on the first cause of action of A against B alone. Example: A has the following causes of action for recovery of money against B, all in the promissory notes that matured on: 1. Jan. 10, 1998 P 20,000.00 2. Jan. 20, 1998 30,000.00 3. Jan. 30, 1998 40,000.00 4. Feb. 10, 1998 50,000.00 5. Feb. 15, 1998 60,000.00 6. Feb. 20, 1998 70,000.00 ========= P270,000.00 A is a resident of Sulu and B of Batanes. B did not pay on Jan. 10, B did not pay on each and every maturity. But A waited for the maturity on this loan due on Feb. 20, 1998. Since he was not paid on Feb. 20, 1998, he now decided to file an action involving all these sum of money. Q. Should he (A) decide to file a case on Feb. 25, 1998, against B, in what court should the action be filed? A. It should be filed in the RTC of Sulu or in Batanes. Where all the causes of action are principally for money, the type of jurisdiction is the totality of the amounts in all the cases. If you were A and you want to file only an action for the recovery of P20,000.00 you will file this with the MTC. This is the same with respect to other causes of action. Individually, they are triable by the MTC. But if all these causes of action are joined in only one complaint, the totality or the language of the rule, “the aggregate,” of the amount furnish the jurisdictional test. So, since the amount is P270,000.00, this is an action triable by the RTC. So you file the action not in the MTC but in the RTC. RENE NOTES 1) In case the obligation is by installments, each installment constitute a cause of action HOWEVER, if at the time of bringing of the suit, several installments are already due, all must be included otherwise, others not included will be barred. Before April 9, 1999, the jurisdiction of the MTC was limited to P100,000.00 and the RTC’s in the amount in excess of P100,000.00. So under the old rule, before April 9, 1999, all claims (money claims) not exceeding P100,000.00 was triable by the MTC. All claims exceeding P100,000.00 were triable by the RTC. This is the provinces. Under the old rules, where the claim was for the money and the parties thereto was the residents of Metro Manila, the jurisdiction of the RTC’s in Metro Manila was in excess of P200,000.00. Beginning, however April 9, 1999, the jurisdiction of the MTC were expanded as follows: In areas outside Metro Manila, the jurisdiction of the MTC’s extended up to P200,000.00. But in Metro Manila, Beginning April 9, 1999, the jurisdiction of the MTC’s was P400,000.00 So, as of now the jurisdiction of the Metro Manila MTC’s is P400,000.00. But in areas outside Metro Manila, the jurisdiction of the MTC’s is up to P200,000.00 only. This now the new rule which implemented Sec. 5 of RA 7691. RA 7691 expanded the jurisdiction of the MTC’s. Q.state the rule on permissive joinder of parties A. Sec. 6 Rule 3 All persons in whom or against whom any right to relief in respect to or arising out of the same transactions is alleged to exist, whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connections with any proceedings in which he may have no interest. The rule contemplates a situation where there are two or more persons in whom a right to relief exist or against whom a right to relief exist. These two or more persons can join in one complaint or can be joined as defendants in one complaint provided that there exist between them a question of law common to both of them. As the term suggests , joinder is not mandatory . It may be availed of by parties as plaintiffs if they want to. If they do not want to join as parties, they cannot be compelled. Example: A, B and C are owners of adjoining houses. X is a driver of a gasoline tanker. Because of the manner X drove the tanker, the driver struck a Meralco Post. As a result, the tanker turned turtle (naging pagong ang tanker…) in the process, it exploded. The fire burned the houses of A, B, and C. A can sue X for the

It is defined in Sec. A. The negligent act of X. B and C or A and B alone. natural or judicial be likewise a party in interest. This is the rule on permissive joinder of parties. Why? A. Who can be parties to an action? Only natural persons or persons with judicial personality or entities authorized by law. It is necessary that the party. Q. What is the basis of the right of B against X? The same. the negligent act of X in driving. B can sue X for the loss of his own house. the complaint or suit cannot be maintained. the validity of the judgment may be questioned on appeal or certiorari. Where the person who sues is not the real party in interest. three (3) complaints against X. So they can join as parties. Who is considered a real party in interest? A. What is the basis of the right of relief of C against X? The same. If these were so. He is one . Series of Transcations-separate dealings with the parties but all of which dealings are directly connected with the same type of subject matter of the suit.4 loss of his house. there will be only one issue that the court will resolve. Q. 2) there is a question of law or fact common to all the plaintiffs or defendants. Can they validly do that? A. Can A. Q. A. which is common to all of them. or where the party sued is not the real party in interest. 1) right to relief arises out of the same transactions or series of transactions. What is the basis of their right to relief of A against X? A. Rene Notes: Compulsory Joinder-in the case of: 1) indispensable parties 2) necessary parties * The non-joinder of an indispensable or a necessary party is NOT by itself ipso-fato a ground for the dismissal of an action. They cannot be forced to join. Q. Is it enough that a person is a natural person or juridical person to entitle him to sue and be sued? A. The basis of the right of A against X is the negligent act of X in driving. they have each a separate cause of action against X. No. all of them can join in only one complaint. Yes. B and C sued X in one complaint. Right to relief exists in favor of all of them. Q. A. B and C filed separately the case. Q. or B and C. A and C sued X in one complaint. Q. Under the rule on joinder of parties. A. there will be now. On the other hand.  the court shall order joinder  non-compliance-ground for dismissal * If the court does not order the joinder of an indispensable party. if the parties A. and 3) such joinder is not otherwise prescribed by the provisions of the Rules on jurisdiction and venue. This rule also applies to counterclaims. 2 Rule 3 Sec. B and C. Parties to an Action Q. A. or A and C. If these were to be tried separately. No. sued X in one complaint. whether they will join or they will not join is a matter of them alone to decide. Q. Requisites of Persmissive joinder of parties. Permissive Joinder-parties can either be joined in a single complaint or may themselves maintained or be sued in separate suits. B and C be required or compelled to join in one complaint? A. C can sue X for the burning of his own house. they joined in one complaint against X. A real party in interest is the one who is benefited by the judgment. or better still. 2 Rule 3 A real party in interest is the party who stands to be benefited or injured by the judgment in the suit.

Q. A. A is not a real party in interest. A. Necessary Parties. “It is pointless. So if the person does not have the capacity which he alleges he has. because he was not a party to the case. But A and B said. he has the representation that he claims to have. B and C. the subject matter of the suit cannot be terminated. Q. a tenant of B sues to recover his land from C. He must always be there because without him. Is the judgment in the partition case binding on C? No. What else do you like? Q. there is already a declaration that this property be divided into 3 and it was already divided into three (3). B and C the owners of the estate and ordered the estate to be divided into three equal parts. Q. The party must likewise have the legal capacity to sue. A. whatever judgment rendered do not terminate the subject matter of the suit. to recover the ownership of the lot. Why? Because he has a right to be heard when A and B divided this property in the . He is not bound by the judgment. They agreed that the estate shall be divided into three equal parts as follows: A B C Q. Meaning. Natural person or judicial person. Can C be compelled to accept his part? A. Must be the real party in interest. No. he must always be impleaded because without his being impleaded as a party. because whatever judgment that he may be rendered in this case the real owner. What is the distinction between the two? In the case of an indispensable party.” “No. C said “I do not like that. he cannot sue or he cannot be sued. 2. No. will not at all affect Supposing A is claiming ownership of a lot and he sues C. No. Example: (Indispensable Party) Testator X was survived by three (3) children A. if A. But C does not like his part. 2. I like this part. What are the classes of parties to a suit? We have the: 1. Q. These are the requirements for suing or being sued: 1. Q. C is not the real party in interest. the tenant of B. So A and B agreed on how the estate be divided. 3. No. Is it enough that a party be a natural or judicial and a real party in interest to be entitled to sue or be sued? A. it is not correct. Is the reasoning of A and B correct? A. this is mine. because whatever judgment that may be rendered in favor of A cannot bind the owner B. Is A the real party in interest? A. and 4. Entity authorized by law to sue and be sued. He is not.” Q. Must have the capacity to sue or be sued. whether a plaintiff or defendant. C can file a case for the partition of the same estate asking that this be divided into three (3) equal parts. A sued B alone for a partition of alleging in fact the court declared A.5 who may be prejudiced by the judgment or it is he who may avail of the judgment. Indispensable Parties. it is not binding. No. What can C now do? A. Is C the real party in interest? A. When A and B showed C the 1/3 portion allotted to him. Example: So. Q. It is true that there was a division.

EXAMPLE: A is the creditor of B and C based in the promissory note signed by B and C for P1M. Since. if C was with the jurisdiction of the court at the time when the complaint was filed. A sued B only. he can file a case. That is why. C can file a motion to dismiss the complaint on the ground of “waiver of the claim of A against C on the failure of A to implead C in violation of the order of the court. Q. What for is the need to state why C was not impleaded? So that the court could determine whether the reason for the non-inclusion of C is valid or not. but he is not impleaded. C here is merely a necessary party because even without him. So. The liability of B and C are merely joint not solidary. A should have filed a complaint against both B and C. however. so that where C is already within the jurisdiction of the court. Whereas. Who is the necessary party? A. As a co-owner he has the right to be heard on how the division should be made.6 manner they want. 2) persons affected are so numerous that it is impracticable to bring them all before the court. . A can file a case against him to recover from him his share in the P1M. nevertheless. B and C have been impleaded in the case may it terminate. Q. his absence from the court as a plaintiff or a defendant does not prevent the case from being settled insofar as the parties thereto are concerned. He for left abroad. Q. What is the effect of such non-compliance on the right of A to recover from the claim filed? A. Even without C. the subject matter of the case would be fully adjudicated. The claim of A against C remain pending. the reason why he is not impleaded should be stated in the complaint. He did not sue C because at that time when the case was filed C was no longer in the Philippines. you see here. this claim of A against B can be settled. But if this omitted party could have been impleaded. A. This is what we meant when we say that “ an indispensable party ought to be impleaded either as a plaintiff or defendant in order to terminate the subject of the case. So the court will decide the case awarding A only P500.spouses sued jointly Exceptions: 1) Abandons or fails to comply with marital obligations 2) Spouse disposes exclusive property 3) Regime of complete separation of property 2) class suit Requisites of a class/representative suit 1) subject matter of the controversy is one of the common or general interest to many persons.” So. Can this case between A and B be finally settled? A. the case will be settled insofar as the parties are concerned. A necessary party is one who ought to be impleaded in order to accord complete relief to all the parties or in order that the claim respecting the subject matter of the case can be fully adjudicated.” Rene Notes: 1) spouses as parties G. Such failure on the part of A to comply operates as a waiver of his claim against C.000. If a case is filed and the necessary party is omitted. But you will know that the better judgment will be rendered in favor of A will cover only the part of B in the P1M. when an indispensable party is not impleaded. so that should A eventually file a case against C. the complaint may be dismissed. It is only when all the parties A. in alternative form. he was not heard. Q. But only partially. What will be the effect of filing by A of his claim against B and C at the same time? A.R. Should the court find the reason why C was not impleaded to benefit the merit. Should A fail to comply in the order of the court. the court will now order A to amend his complaint and implead C. the case filed can be terminated. Q. in violation of that order of the court. In order. . when a party is a necessary party. to settle the entire P1M. Yes. the first case did not terminate the question. His claim of P1M will be entirely settled in only one procedure.

In the case of incapacity or incompetency of the party. this fact will merely entail the appointment of a guardian ad litem by the court trying the case upon being informed thereof by counsel of the parties. But who of them is responsible. not a mere additional defendant Death of a Party Duty of counsel. This is the concept of alternative defendants.7 3) parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the concerned. * The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. the debtor dies. If Y is not liable. * A transferee pendente lite is a proper and not an indispensable party. . When may a party plaintiff sue defendants in the alternative? A. Example: A bought a machine from US. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased person. or even the appointment of an executor or administrator. the parties themselves. there was supposed to be an arrastre operator who should have taken upon its being unloaded in the port of Manila. The rule is this: A plaintiff may have the right but he is not certain or sure against whom that right should be asserted. this machine did not reach A. or other reliable sources. failure to do so does not w arrant the dismissal of the case. for delivery to A. it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. What can A do? A. devisee. If it is not X who is liable. the court does not acquire jurisdiction over the substitute party. Transfer of Interest * Substitution of parties is not mandatory. * No summons is required to be served on the substituted defendants. 20 Rule 3 When the action is for recovery of money arising from contract. heir. and judgment will bind the successors in interest. But he does not know who of them is liable under this rule. Rene notes: Unknown Identity or Name of Defendant * Service of summons is by publication Requisites: 1) there is a defendant 2) his identity or name is unknown 3) fictitious name may be used because of ignorance of defendant’s true name and such ignorance is alleged in the complaint 4) identifying description may be used: sued as unknown owner. the proceedings are not set aside. This is a situation where a contract involving money was entered into: This contract gave rise to the filing of a complaint against the debtor. Otherwise. he does not know. The carrier X brought this machine to the Phils.inform court within 30 days * The death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending. The fact is. Was it lost while this machine was in the custody of the arrestre? He does not know. the order of substitution shall be served upon the parties substituted in the action. it must be X. by a court of probate jurisdiction. * The continuance of a proceeding when a party dies without a valid substitution amounted to lack of jurisdiction and that the need of substitution is base on the right of a party to due process. but he has the right to recover the value of the machine. or other designation 5) amendment to a pleading when identity or true name is discovered 6) defendant is the defendant being sued. and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death. Sec. if there is no notice of death of party and the court has no knowledge thereof. There are two or more persons who may be liable to him in connection with his right. the entire proceeding is null and void. A can sue X and Y (arrestre) at the same time. He knows he has the right. HOWEVER. Q. the court would have no jurisdiction over the estate. When the case is pending against the debtor. * If there is failure to notify the fact of death: the case may continue and the proceedings will be held valid. the heirs and the executors or administrators. otherwise. Unless the substitution by or the joinder of the transferee is required by the court. but this time. express or implied. Concept of Alternative Defendants Q. he is entitled to sue all these persons in the alternative. Instead. it must be Y. He does not know who has custody of this machine at the time it was lost.

Why? Because the rules in venue likewise involve inferior court and under the RTC. How could A protect his right over his claim. The death of the debtor B does not extinguish the action. In Metro Manila where the action is for reindivicacion for instance. (MTC) Take note that when it comes to the venue of the property suits involving title to. possession of or interest in real property. This is the innovation under the new rules. if it was already dismissed in this case? He can now file his claim as an ordinary creditor in the proceeding. because it has already been settled by final judgment in that civil case.8 Q. venue is the proper court? A. by his heirs. B died. Q. even the inferior court have jurisdiction cases depending on the value of the property. This case will continue litigation until finality. however. While this case was pending. the venue is the inferior court. Can the administrator or executor contest in that special proceeding this claim now of A? A. RENE NOTES: Action on Contractual Money Claims Requisites: 1) The action must primarily be for recovery of money. Because under the new law. he extended. Where the value of the property involved in the reindivicacion cases does not exceed P20. possession of or interest in. Where the value of the property exceeds P20. * If the defendant dies before entering a final judgment in the court where it was pending at that time. This rule presuppose that the estate of B is under administration either in a testate proceeding or intestate proceeding. then A must file his claim in this case. Is that so now? A. No. Rule 4: Venue of Actions The rules on venue are now simplified. * Once a final judgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving the same. possession of or interest in real property. 2) The claim subject of the action. Of course with proper substitution of B by the administrator or executor if there is any. No.00. What now will be the status of this case filed upon the death of the debtor. This is true in cases involving title to. entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him. . (estate or intestate proceeding) for the settlement of estate of B. express or implied. real property. and the value of the property does not exceed P50. When a suit involves title to. He will file the case where the settlement of B’s estate is pending.000. the action for reindivicacion lands with the RTC. the action shall not be dismissed but shall be allowed to continue until entry of final judgment thereon. So under RA 86 A should file his claim in this proceeding.00. upon the death of B. arose from a contract. and not where the money sought therein is merely incidental thereto. possession of or interest in. Why the difference in the case involving title to. real property. So if there was a special proceeding under #SP 34 for the settlement of estate. the case not having been determined with finality? Can it continue or must be dismissed? A: Example: A the creditor sued B to recover the loan. Q.000. This will continue. or interest thereon. debt. In the event A wins the case and the judgment becomes final Q. actions may either be real or personal. How will A enforce his right as adjudged by the court? A.00. In forcible entry cases. the court where the action must be filed is specified and that is the inferior court. What are the rules on venue involving real property? A. the venue is the proper court of the place where the real property is located. For purposes of venue. But when it comes to forcible entry. this case will be dismissed. the venue of the action lie in the proper court of the place where the real or a part of the real property is located. Indigent Party * The amount of docket and other lawful fees shall be a lien on any favorable judgment upon the indigent party.000. Under the old rule. his claim based on this judgment. that action for reindivicacion is tried by the inferior (MTC) not the regional trial court. If there is none. Q. the venue of the action is the inferior court of the place where real property or part of the real property is located. Q. It does not say proper court. in areas outside Metro Manila.

the property was located in Manila in part. What court has jurisdiction and a court of what place will be the venue? A. So. A’s residence or in Tawi-Tawi at the option of A. an action for declaration of nullity of the marraige of A and B. He may file the case in Sulu or in Bulan. Example: If A file a complaint against B. he was found in Tawi-Tawi.9 This is the reason why the law does not specify what particular court the case must filed when it involves title to. the rule is specific. Sorsogon. B.S. Where real property is located partly in one place and partly in another. While A is a resident of Manila. Q. the venue may also be the place where he can be found. A can file action either in Sulu or Batanes at his option. Manila. But when it comes to forcible entry.99. the venue is the residence of the plaintiff or any of the principal plaintiffs or the residence of the defendant or any of the residence of the principal defendants at the option of the plaintiff. where the defendant is a non-resident. But if B is not a resident of the Philippines. except where the action is one for forcible entry. Bataan or Batangas. what will be the venue? A.999. B is a permanent resident U.C. Caloocan in part. possession of or interest in real properties. against the defendant B who is a resident of U. Example: A vs. “only on MTC of the place where the property or any part of the property is located. the venue of the action may be the residence of the plaintiff or it there are two or more plaintiffs. If this action is filed. the wife is a resident of Manila. Q. Sorsogon. the action may be filed in the MTC of the place where the property or part of the property is located. Example: A vs. Where the action involves title to.S. B was found in Tawi-Tawi. What will be the venue of this action? A. and the action is personal. a non-resident defendant does not reside in the Phils. So A can file the case in Manila. But at the time the action was filed. but is found in the Philippines. This lot is partly located in Pampanga. a non-resident of the Philippines. the action by A can be filed in Batanes. (as the term suggested.. “nonresident”). in part. this rule must be followed? . or of Batanes or of Bataan. or Tawi-Tawi at the election of the plaintiff. Example: The action between A and B involved let us say. A is a resident of Batanes.A. B the husband is a nonresident defendant of the Philippines whose permanent address is U. But at the time the action was filed. the action was one for money. MTC of Pampanga. Caloocan. or an action for reindivicacion its venue should be any of these places where property is located. the venue could not be the residence of the non-resident defendant for a simple reason that. The value of this property is P19. In our example. Q. that may be one of the venue. B for forcible entry or reindivicacion. in which case. Example: A sued B. Q. but came to the Philippines for a vacation and could be found in Bulan. possession of or interest in real property. However. the residence of the principal defendant. The venue is Batanes. Whether the case is tried by the inferior court or by RTC. at the option of the plaintiff. If the action is personal. where may A. is the rule that the venue of the action involving it should be the place where the property is located or where any part of the property is located absolute? So that in all cases. the action may be filed in the appropriate or proper court of the place where the property or part of the property is located. on the other hand.” In case of personal actions. it is that place where he may be found. whether the action involves forcible entry or detainer. who is a resident of Sulu file the case? A.C. the venue of the action may either be the residence of the plaintiff or the place where the defendant is found. In this last case. Q. in Q. the recovery of a lot which A claims as his but which B claims is his. Where the defendant is a non-resident defendant.S. That is why you cannot sue him in a place where he is not a resident. Q. Where the subject matter of a case is real property. the residence of the plaintiff or the residence of the defendant or in case there are two or more defendants. but he may be found in the Phils. for recovery of money and A is a resident of Sulu and B is from Batanes.

C. The agreement was oral. 2. the agreement of A and B was an oral agreement. the venue is the place where the property is located or where a part of the property is located. The venue should be Cotabato. PHHC and B now file a motion to dismiss on the ground of improper venue. The Secretary now files a motion to dismiss on the ground that the venue is improperly laid. not the residence of B in Batangas. the rule that the action should be filed in the place where the property is located does not apply. B now contested the action of the Secretary in awarding the right to A. not in Batanes.” A now sued B in Batanes. The subject matter although involving real property is . Q. Therefore the agreement is not enforceable.C. you are the judge. The action by A against B was filed with the Secretary of DENR. what will be the correct ruling on the motion to dismiss? A. Sorsogon. the rule on venue shall not apply where parties have not validly agreed in writing before the filing of the action on the exclusive venue thereof. The agreement between A and B is “that any action arising from this lot located in Tawi-Tawi must be filed only in MTC of Batanes. Example: The action is filed by B against A and Secretary of DENR. not Bacolod City. Must the venue of this action be the place where the property is located or where any part thereof is located or may there be a case where what is located or may there be a case where what is involved in a suit is a real property and yet the venue need not necessarily be the place where that property is found or where any part thereof is found.” “Since the property is located in Cotabato. and B. on the ground of improper venue. A. The action filed by B here is an action for certiorari against the Secretary of DENR and A. The Secretary awarded the right to the timber land to A. Under the rule. we say. After A paid so many installments on their lot. the agreement to be valid must be one which is in writing and the agreement on the venue must be “exclusive venue. may be filed in Batanes. This action was filed by B in his residence which is Batangas RTC. to a resident of Bacolod City. B now filed a motion to dismiss on the ground that the venue is improperly laid because the agreement called for the venue to be in Batanes.. They contended that the proper venue of the action is Q. the location of the property. the venue should be Cotabato. A now sued PHHC which has its office in Q.” Rule on themotion to dismiss filed by B. Therefore where the action involving real property does not concern title to the property or it does not concern the possession of real property or does not concern an interest in real property.10 A. what will be your correct resolution to the motion? Example: A and B agreed in 1990 that any action between them involving this lot in Tawi-Tawi. If you are the judge. a resident of Manila in the RTC of Bacolod City. B now filed a motion to dismiss. Deny the motion to dismiss under Sec. B now filed a motion to dismiss on the ground of improper venue being the property located in Tawi-Tawi and therefore Tawi-Tawi should be the venue. 4 (b) Rule 4. You are the judge. therefore. Rule on the motion. Q. In the above case. The prayer of A is for the cancellation of the resolution of PHHC canceling the prior award to A and awarding the same lot to B. B sued as well as the Secretary of DENR. To annul that order of PHHC canceling the award to A. The action involves possession of. Example: A and B are litigating who has the better right to timber concession located in Cotabato. Agreement in writing between A and B provided as follows:: “Any action arising from this land in Taw— Tawi.” Where the action involving real property concerns the title to the property.” Contrary to this writing. cases when what is involve is real property and yet the venue of the action need not be the place where the property or a part of the property is located. A filed the action in Tawa-Tawi. the PHHC unilaterally cancelled this award and awarded the same lot to B. There are. A is a resident of Manila and B of Batangas. A being a resident of Manila and B of Bulan.C. or possession of real property or interest in real property. what will your correct ruling on the motion to dismiss filed by the Secretary of DENR? Issue: What is involved here is a motion to dismiss filed by the Secretary.” Example: The PHHC awarded the lot in Q. 1. He said that the action should be filed in the inferior court of Tawi-Tawi. It is not absolute. the resident of plaintiff A. he said “any action contesting my decision should be filed in the court of the place where the property is located. For a violation of Forcible Entry. interest or in title to real property but the action is not forcible entry. Deny the motion to dismiss because the agreement used the word “may”. be filed in Batanes. A now sued B in Batanes although. that the lot is in TawiTawi.

the libel case was filed in Manila. it should be in Manila where the libel cases is filed but B countered this argument.e. Batanes would merely be an additional venue. In our example. in addition to these cases that i. or in the venue stated in the agreement. subsequently filed in the RTC of Ilocos Norte. where the law provides for a specific venue. for a specific venue.C. the agreement called for an exclusive venue. therefore. The rules on venue found in Rule 4 do not apply in two cases: 1. In the case of the annulment of the award made by the PHHC. the action may be filed in the proper venue according to Rule 4. So if the property is located in Twi-Tawi. i. B is a resident of Ilocos Norte. My option is to file my action in Ilocos Norte. that any action involving this property located in Tawi-Tawi can be filed “only” in Batanes. not Cotabato. If the written agreement on venue provides for a specific and exclusive venue. Why? Because the wording of the agreement. So venue would be the residence of plaintiff B or the residence of the Secretary. only the venue specified in the agreement can be the venue. the action can be filed where the property is located or in Batanes. the recovery of damages is a personal action. where the property is located. This is not an action involving title to. possession or interest in real property. an action for damages against A in manila. B. A was a resident of Manila. the civil action for damages arising form that libel should likewise be filed in the same court where the criminal case is pending. an agreement in writing. People vs. A now filed a motion to dismiss this action in Ilocos Norte. A filed suit in Tawi-Tawi where the property is located. then it should be that venue provided for by law. the venue need not necessarily be Q. RENE NOTES: Venue of Actions Real actions . However. where the agreement in writing does not provide for an exclusive venue. A filed in Manila. So in our example.e. is a resident of Ilocos Norte. is there another situation where the rules on venue mentioned in Rule 4 does apply because in this case. where the defendant PHHC reside. the venue agreement controls. In the first case. Meaning. under Rule 4.”only Batanes. in this case. we do not file the action. In violation of that written agreement. The action in effect is a personal action. The libel law provides that where a criminal action is filed in a particular venue. but merely an additional venue. Is the motion to dismiss proper? Yes. the place where the lot is located. In addition to this. So the motion to dismiss filed in Bacolod City is not proper because Bacolod City could be a venue.place where real property located Personal actions 1) residence of the plaintiff 2) residence of the defendant * Choice of the plaintiff Real actions . because although the property is located in Tawi-Tawi. the motion to dismiss is not proper Rule on the merits of the motion to dismiss Ans. Q. sec 2 (B) has the option to file any action either in my residence or the residence of the defendant A at my (B) option.C. Although B. venue can be the subject of stipulation and therefore the parties can agree that the venue of a particular action as filed and provided the agreement provides for an exclusive venue.11 actually the judgment of the Secretary. the law itself provides. Is there such a situation? Example: A published a libel in Manila. Is there another situation when the rule on venue does not apply other than the ground that there is an agreement is writing providing for a particular venue? The Rules on venue do not apply when there is an agreement in writing providing for an exclusive venue.” The motion to dismiss of B here should be granted. The rules on venue mentioned in Rule 4 do not apply in certain cases. when the agreement calls for an exclusive venue 2. Any action for damages arising form the libel filed must be filed in the place where the libel case was filed. his residence. but A and B agreed before any suit is filed that the venue of the action arising therefrom be in Batanes and this agreement was in writing before the action was filed. he cannot file the action in Ilocos Norte because the criminal case was filed in Manila. So. A and B agreed in writing before any suit arise. Since the action was filed in Q. Unlike jurisdiction which cannot be the subject of stipulation. In the second case. His ground is that the venue of the action should not be in Ilocos Norte. When the parties agreed in writing before any action is filed the venue of the action be in a particular place. in the place where the property or a part of the property is located or in the place where the plaintiff or the defendant is residing at the option of the plaintiff. B now files a motion to dismiss for improper venue. for instance.

may be waived 3. VS.2 Rule 6 (Pleadings Allowed) 1. venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule. place where the action is instituted 2. and 3) Agreement to the exclusive nature of the venue. Libel Libel Law . procedural 4. Sec. may be changed by the written agreement of the parties JURISDICTION 1. An answer may be responded to by a reply. cross-claim 4. Sec.1 Rule 6 Pleadings are written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. separate actions should be filed in each place. b) if they are the subjects of two distinct transactions. AR. L] 1) failure to object by means of motion to dismiss 2) affirmative relief sought in the court where the case is filed 3) voluntary submission to the court where the case is filed 4) laches IF PROPERTY IS LOCATED AT THE BOUNDARIES OF TWO PLACES : file one case in either place at the option of the plaintiff IF CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DIFFERENT PLACES: a) if the properties are the object of the same transaction. power of the court to hear and decide a case 2. Means of Waiving venue: [FO.12 1) action for the annulment or recision of a sale and the return of realty 2) to compel the vendor to accept payment of the purchased piece of land 3) to compel the vendor to deliver the certificate of title of the land Personal actions 1) action to recover the purchased price of the land 2) an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage 3) action to annul the cancellation of award of land in favor of the plaintiff Requisites for venue to be exclusive: 1) A valid written agreement 2) Executed by the parties before the filing of the action. or 5. substantive 4. When rules on venue NOT applicable 1) when parties agreed in writing for an exclusive venue before any action is filed 2) where the law provides for exclusive venue ex. jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot be waived 3. . VENUE 1. * In the absence of qualifying or restrictive words. the civil action for damages arising from that libel should likewise be filed in the SAME COURT where the criminal case is pending. complaint-in-intervention The defenses of a party are alleged in the answer to the pleading asserting a claim against him. What are pleadings? What are the kinds of pleadings? A.where a criminal action is filed in a particular venue. cannot be the subject of the agreement of the parties Rule 6: Pleadings Q. complaint The claims of a party are asserted in a: 2. etc. WHEN ALTERNATIVE RELIEF IS SOUGHT – venue would depend on the primary object of the action. file in any of the two places.) party complaint. third (fourth. counterclaim 3.

B. Yes. Q. 2) A counterclaim should be connected with the transaction which constitutes the basis of the action of the plaintiff against the defendant. Sec. . Any claim by B against A is a counterclaim. Example: If A filed a case against B. and subsequently. 6 Rule 6 A counterclaim is any claim which a defending party may have against an opposing party . On the other hand. A. the presence of third parties of whom the court cannot acquire jurisdiction. Q. Q. except that in an original action before the Regional Trial Court the counterclaim may be considered compulsory regardless of the amount. Two KINDS of counterclaims: 1. Q. being cognizable by the regular courts of justice. 1) A compulsory counterclaim is one which is cognizable by the court of justice. B for recovery of lot. This action of B against A for recovery of a lot is a permissive counterclaim. so that if he can file it separately there are now two cases. It is a claim by a party defending himself against a party who files a case against him. Can he file it separately. B files a separate action. arises out or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication. Insufficient denial or denial amounting to admissions 1) General 2) Denial in the form of a negative pregnant B. this case filed against him. the money claim irrespective of the amount is a compulsory counterclaim. Example: A files an action against B for collection for sum of money. however. Because if B wants to he can file his counterclaim against A in the same action. Affirmative Defenses in the Nature of Confession or Avoidance * Unlike the Complaint which alleges only ultimate facts. Compulsory Counterclaim 2. Why is this permissive? A. A vs. where the counterclaim is a money claim and the court in which the case is pending is the Regional Trial Court. Supposing he (B) does not file his counterclaim in this case against him. a permissive counterclaim is one which does not arise out of or is connected with the transaction which is the basis of the subject of the action. 7 Rule 6 A compulsory counterclaim is one which. he may not file if he does not want to file. has an action against A for recovery of lot. the Answer may cite legal provisions relied upon for defense Q. because this is a permissive counterclaim. However. 3) This counterclaim does not require for its adjudication the presence of a third person over whom the court does not require jurisdiction.13 RENE NOTES: 2 kinds of defenses that may be set forth in the answer A. What is a counterclaim? A. Permissive Counterclaim These two are different for in their component elements and the effect of their not being pleaded. Q. In the language of the rule. If he does not file it as a claim. When is counterclaim compulsory? A. B can file if he wants in to this main action. can A now file an action to dismiss a second action on the ground that this action of B against A should not be pleaded as a claim counter in nature in the civil case? A. What is the compulsory counterclaim? Sec. a counterclaim is compulsory when it is one which is cognizable by the court and arises out or is connected with the transaction or series of transactions which constitutes the basis of the action against him and does not require for its adjudication the presence of the third person over whom the court cannot acquire jurisdiction. A. Specific denials b. Why? Because it is not in any way related. Such a counterclaim must be with jurisdiction of the court both as to the amount and the nature thereof. No. NEGATIVE DEFENSES a.

00 Q. The counterclaim of B arising from this. there will be now two (2) actions Q. On the assumption that all the other elements are present.000. Example: The counterclaim of B consists of P200. This is cognizable by the DOLE Labor Arbiter or the NLRC.000.000. Supposing. In the RTC. that counterclaim is not a compulsory counterclaim. No. because this is a claim that is compulsory.00 and C is in U. Q. the value of the improvements which B introduced in this lot is P201. So. Can that be validly done? A. B’s counterclaim is not compulsory. Q. Q. irrespective of the amount.000.000. but merely permissive. In this case. Q. This an action filed outside Manila.00. this is the MTC. This is an action in the MTC. is not a ground to dismiss it.000. Is the motion to dismiss proper? A. So.00. The counterclaim must be one which arises from the transaction which is the basis of the action of the plaintiff against the defendant. Is this counterclaim here allowed to be filed by B as a counterclaim in this case? Yes.000. because the money claimed arising from the employer-employee relationship is not cognizable by the courts of justice. as long as the counterclaim is money. because this amount does not arise from the transaction constituting the claim by A against B. Q. because the amount claimed though arising from the action exceeds the jurisdiction of the MTC. And on the assumption that the counterclaim of B against A arises out of this action of A against B. Supposing. if A files his complaint and B pleads his money claim arising from the employer-employee relationship. Now he files a motion to dismiss on the ground that this counterclaim being connected in the claim of A against B should be pleaded. Is this money claim of B arising from the employer-employee relationship is not cognizable by the court? A. No. But supposing B does not file a separate case against A for a recovery of money such that if this is done. Example: This is an action of A against B for the recovery of a lot. it is not. B does not plead in his answer in the main case claim and after B files his separate action against A and C to recover his P200.14 4) This counterclaim is within the jurisdiction of the court except that where the counterclaim is a money claim and the action is filed in the RTC irrespective of the amount whether within or not within the jurisdiction of the court. A. it is always compulsory. this counterclaim although arising from that action is merely a permissive counterclaim not compulsory counterclaim because it requires for its adjudication the presence of a third person over whom the court does not acquire jurisdiction. Can A validly file a motion to dismiss this complaint on the ground that since this is a counterclaim. The counterclaim of B against A is for the recovery of money which represents the unpaid wages of B payable by A and the wages being the result of a contract of employer-employee relationship. however. Is the motion to dismiss proper? A. this is a recovery of money. So.000.00. Is this counterclaim compulsory or permissive? A. Should B interpose as a counterclaim this action for recovery of money here. let’s say. Instead. and the counterclaim is only P50.00 but the counterclaim of B is against A and C over this amount is solidary. The jurisdiction being only up to P200. Compulsory. He does not plead his counterclaim in this action.S. that this case is filed in the RTC. No. No. The claim of B is for money arising from a contract of loan being B the lender and A the borrower. the action is for reindivicacion because the value of the property is only P200. . It cannot be filed in this case.00. and the Court does not acquire jurisdiction over him. he files a separate action on the recovery of P201. this is allowed. Example: The action of B is for recovery of lot. the counterclaim is compulsory. A filed motion to dismiss on the ground that this should have been impleaded in the main case because it arose from this main case. This is a permissive counterclaim the fact that it is not pleaded in the answer in the main case. that should have been impleaded by B in the main case? A. because the presence of C is required in their litigation on this P200.

You are the judge. Q. Cross-claim * filed against a co-party * always arises out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Example: In the example that B sues to recover P201. (2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Reply Effect of Failure to Reply: new facts that were alleged in the answers are deemed converted. The counterclaim of B is for recovery of the value of the property improvements which B introduced. Does this action for recovery requires the presence of C. Is it money claim by nature cognizable by a court whether MTC or RTC? A. the counterclaim is a compulsory counterclaim. No. (3) It is barred if not set up in the action.00 representing the value of improvements introduced on the lot which is the subject matter of the complaint of A. both as to the amount and nature thereof. Is an action for recovery of a P201. Yes. a third person over whom the court cannot acquire jurisdiction? A. it is barred. Example: Compulsory Counterclaim This is an action for the recovery of a lot. it is connected.000. except when it is outside the jurisdiction of the court or if the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. bec. PERMISSIVE COUNTERCLAIM (1) It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim. Yes. which is the subject of the main case. 3) If a counterclaim if filed in the MTC in excess of its jurisdictional amount. What B did was to institute separate action against A for recovery of the improvements. because the amount being claimed represents the value of the improvements introduced by B in this lot. a counterclaim may be considered compulsory regardless of the amount. Q. So. a compulsory counterclaim not pleaded in the answer is considered barred. * If it is not set up in the action. . So. the defendant can be declared in default. (2) It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. * The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive.00 one with the jurisdiction of the RTC? A. Yes. is a ground to dismiss it. (4) Need not be answered. that counterclaim is barred. the fact that it not was pleaded in the main case. Q. He did not plead this as a counterclaim in the action of A. no default. A now files a motion to dismiss on the ground that. the excess is considered waived. 4) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set of the claims and file a separate action to collect the balance. (4) Must be answered. the elements of a compulsory counterclaim are present. 2) In an original action before the RTC.15 Let us now take a case where the counterclaim is compulsory. what will be your correct ruling on this motion of A to dismiss the case? A. Grant the motion. Q. Hence. otherwise. When a counterclaim is compulsory it must be pleaded in the answer. the filing of the reply is optional except for the denial of the genuineness and due execution of an actionable document used as defense in the answer.000. RENE NOTES: Rules on Counterclaim 1) A counterclaim before the MTC must be within the jurisdiction of said court. Is it connected with the case filed by A against B for recovery of the land? A. Q. otherwise. What is the rule? A. COMPULSORY COUNTERCLAIM (1) one of which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim. in all these cases therefore. Q. (3) It is NOT barred even if not set up in the action. but not a cross-claim seeking affirmative relief.

Q. In Branch II of Manila. * Third party is not yet impleaded. A filed a petition for receivership. the same action involving the same issues. or in a sworn certification annexed thereto and simultaneously file therewith: a) That he has not thereto commenced any action or filed any claim involving the same issues in any court. tribunal. A filed against B for reindivicacion involving the same lot. without prejudice to the corresponding administrative and criminal actions. Is there forum shopping on the part of A? A. The contents of the certificate. the plaintiff or in the proper case. The submission of a false certification or noncompliance with any of the undertakings therein shall constitute indirect contempt of court. Rule in non-FORUM SHOPPING ( Under SEC. CROSS-CLAIM * claim by a party against a co-party. he is required to accompany that complaint or initiatory pleading with a certificate. the certificate must be signed by the principal plaintiff. etc) – party complaint THIRD-PARTY COMPLAINT * seeks to recover form a non-litigant some relief in respect to the opposing party’s claim. he shall report the fact within five (5) days therefrom in the court wherein his aforesaid complaint or initiatory pleading has been filed Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice. In their action. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping. and (c) Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim. THIRD-PARTY COMPLAINT * brings into the action a third person who was not originally a party. We call the certificate the certificate of non-forum shopping.16 Third (fourth. * TEST to determine whether the third-party complaint is in respect of plaintiff’s claim : (a) Where it arises out of the same transaction on which the plaintiff’s claim is based. there is none because the two cases involves different issues. This is the reason why whenever the party files a complaint or an initiatory pleading. b) If there is such other pending action or claim. 5 RULE 7 ) The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief. Example: A filed an action against B in the RTC for reindivicacion. no such other action or claim is pending therein. the other action filed in another court not being the result of an appeal or a petition for certiorari. One is for forcible entry and the other for reindivicacion. Q. unless otherwise provided. (b) Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff’s claim against the original defendant. the two cases are different. COMPLAINT IN INTERVENTION *same * initiative is with a non-party who seeks to join the action. a complete statement of the present status thereof. and c) If he should thereafter learn the same or similar action or claim has been filed or is pending. Forum shopping is not allowed because this would be constituting to the judicial process making mockery out of the rules. upon motion and after hearing. or although arising out of another or different transaction. Branch 1 RTC of Manila. A filed another action against B also for reindivicacion. Forum shopping takes two forms: 1) Where a party files the same action involving the same issues either simultaneously or successively in more than one court. is connected with the plaintiff’s claim. quasi-judicial body or any other agency. * initiative is with the person already a party to the action. the principal plaintiffs. While this case was pending. Is there a forum shopping on the part of A? A. The certificate is signed by the plaintiff and if there are two or more plaintiffs and one is a principal plaintiff and the other is not. as well as a cause for administrative sanctions. Example: A filed an action against B for forcible entry of a particular lot. 2) Where a party files two or more actions in different courts. . tribunal or quasi-judicial agency and to the best of his knowledge. the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt. for issuance of an injunction. certifies the following: a) That he has not previously filed in another court. Q. No. No. * Cross-defendant is a co-party. What is forum shopping? A.

and if there is pending action in any other court. What is the undertaking there? A. i. Violations rule may consist of the following: 1) Failure to attach to the initiatory pleading in the complaint the required certificate of non-forum shopping. Is this all the sanction? A. Q. the status of this action pending in the other tribunal agency or quasi-judicial agaency. When is a pleading initiatory? A. Why? Because. Q. Take note that the party on whom the sanctions may be enforced is one who does not comply with this certificate of non-forum shopping. 1998 (294 S 380 ). That is why a counterclaim is a reaction to the complaint. 3) The violation consists in the failure of the party to comply with his undertaking thereafter. he may be proceeded against criminally. The failure to accompany the pleading with a certificate results in a dismissal without prejudice of the complaint or initiatory pleading upon a prior motion and a prior hearing. where the counterclaim is compulsory. either you do not accompany or you accompanied the pleading but the certificate contains a falsehood. is permissive than the pleading must be accompanied by a certificate of non-forum shopping. the violations consists of three (3). Why? Q. agency or quasi-judicial body. it is all again initiatory. Q. Where a counterclaim is compulsory . What is the sanction? A. Q. What are the sanctions? A.#129718 August 17. Q. In this case. So. this is an initiatory pleading . he undertakes to notify the court of that fact that there is a pending action. non-submission. To notify the court to the fact that another action is pending in another court.R. As the term suggests. when the truth is there is. Zula G. he did not know of the existence of pending of another action involving the same issues in another tribunal court. Should at the time he filed the pleading. or an initiatory pleading .17 b) c) That there is no pending action in any other court. the court may not motu proprio dismiss the complaint. it is one. he may be administratively proceeded against: When there is a false certification. the rule does not require that the pleading be accompanied by a certificate of non-forum shopping. it must be pleaded in the answer. otherwise. within five (5) days from his receipt or acquisition of knowledge of the pendency of that action. where the pleading require a certificate is not attached at. submitting a false certificate and failure to comply with the undertaking to inform the court of the pending case in another court. Where the forum-shopping is deliberate. 2) Statement in that certificate of non-forum shopping of a false certificate. No. What are the sanctions? A. for instance. The pleading will be dismissed with prejudice and the offending lawyer may be held in direct contempt without prejudice to administrative proceeding against.The counsel or the defendant may be held in contempt. Not only the pleading be dismissed. not only may the lawyer be proceeded against administratively. Q. it does not have to be accompanied by a certificate of non-forum shopping. In other words. quasi-judicial body or any other agency involving the same issues. “Only a complaint” or an initiatory pleading. In the case of UST vs. Where the pleading is other than the complaint. the court may dismiss it without prejudice. the certification stated that there was no pending case involving the same issue in another court. These are the three (3) matters certified by the plaintiff or the principal plaintiff. These are the forms of violation. but that he subsequently learns that there is such a pending action involving the same issues. What are the sanctions against violations of this certificate? A.e. because you cannot file an independent action involving a compulsory counterclaim. Consequently. There should first be a hearing either a motion of the defendant. Where a counterclaim is compulsory it is not an initiatory pleading. only in a case where the pleading which is not accompanied with the certificate is a complaint or an initiatory pleading. And in the case of the lawyer. Where the counterclaim however. which is filed for the first time. But when it comes to a permissive counterclaim. you cannot file a compulsory counterclaim unless there is a first complaint. A compulsory counterclaim is not an initiatory pleading. it is barred if it is filed in a separate action. tribunal. Therefore.

the failure to deny under oath the same results in: 1) The implied admission of the genuineness and due execution of said document except: (a) when the adverse party was not a party to the instrument. B can allege these as his defenses in his answer. 2) he inherited the land from C. it will be dismissed for failure to state cause of action. knowledge.S. because this compulsory counterclaim is not an initiatory pleading. Q. and (b) when an order for the inspection of the document was not complied with. The statement of B’s defense that he is the owner is made up of 4 inconsistent statements. Zula. tribunals. or (g) estoppel. Example: A vs. Analysis: The defenses are inconsistent with each other. intent.T. the pleading is not made insufficient by the insufficiency of the other statement of the claim or the other defense. (f) want or illegality of consideration. (c) compromise. if made independently of the other. (d) payment. either in one cause of action or defense or in separate causes of action or defenses. or other condition of the mind (c) judgment of foreign courts. So you call this a compulsory counterclaim. (b) malice. (U. State the rule on Alternative causes of action or defenses . Rule 8 Sec. the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. RENE NOTES: Facts that may be averred generally: (a) conditions precedent (BUT there must still be an allegation that the specific condition precedent has been complied with. Q. Q. in our example for instance. 2) The document need not be formally offered in evidence. 4) he acquired this by prescription. (e) prescription. otherwise. vs. if A filed a complaint against B for recovery of a lot B files a counterclaim for the value of the improvements over the land. . this is an action for recovery of a piece of land. The defense of B is that he (B) is the owner. you call this permissive counterclaim. A. 2) Where two or more statements of a claim or a defense are made and one is made independently of the other which is sufficient.18 because it can be filed even without a prior complaint having been filed against a permissive counter claimant. boards. Do you have to accompany this permissive counterclaim with a certificate of non-forum shopping? A. 3) this lot was donated to him by D.) Yes. The rule says that if the statement of the claim or defense is sufficient in itself. So. Without this complaint of A. Do you have to accompany this compulsory counterclaim of B with a certificate of B with a certificate of non-forum shopping? A. 1) Where a person has one claim or one defense he can state that one claim or one defense in two or more statements either hypothetically or in the alternative. But supposing this were a counterclaim for recovery of money which B loaned to A and B pleaded this claim of money as a counterclaim. When two or more statements are made in the alternative and one of them if made independently would be sufficient. 2 A party may set forth two or more statements of a claim or defense alternatively or hypothetically. Q. It is a reaction. Could this be validly alleged as B’s defense? A. because 1) he bought the land from A. there is no compulsory. No. (b) fraud. B. * Defenses that the opposing party may set up even after failure to deny under oath: (a) mistake. the pleading is not made insufficient by the insufficiency of the statement. or officers (no need to show jurisdiction) Facts that must be averred particularly: (a) circumstances showing fraud or mistake in all averments of fraud or mistake (b) capacity * Two permissible ways of pleading an actionable document: (a) By setting forth the substance of such document in the pleading and attaching said thereto as an annex (b) By setting forth said document verbatim in the pleading * Where the actionable document is properly alleged.

the denial will be deemed as an admission and entitles plaintiff to a judgment on the pleadings Averments in the complaint NOT deemed admitted even if NOT specifically denied: (a) Allegations as to the amount of damages (unliquidated). . SPECIFIC DENIAL THREE WAYS OF MAKING A SPECIFIC DENIAL: (a) BY specifically denying each material allegation of the party and of the other party and whenever possible. and Averments deemed admitted if not specifically denied under oath: (a) Allegations as to usury in the complaint (b) The authenticity and due execution of actionable documents thereto. (c) want of delivery. (b) Immaterial allegations. (c) Incorrect conclusions of fact. (c) 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. (b) past admissions or past denial. * A negative defense must be a specific denial. setting forth the substance of the matters relied upon for such denial. a general denial is regarded as admission on the facts stated in the complaint. * A denial cannot be general. Otherwise. (b) want of authority of an agent or corporation. or (d) the party charged signed the instrument in some other capacity.19 * BUT the following defenses are waived: (a) forgery in the signature.

1999 or Dec. All those defenses. if proceeded to trial. lis pendencia or prescription. Is jurisdiction here waived? A. This case was filed in the RTC. or although not raised as an affirmative defense. EXCEPTIONS to the G. Q. allege all them either in a motion to dismiss or alternative defenses in an answer. lack of jurisdiction or where the evidence shows res judicata already. Default here means. Example: A vs. Default. he could file a petition from relief of judgment within 60 days from notice of the judgment but within 6 months from entry thereof. He has only a period until Dec. There are certain defenses or grounds of objections however which may not be abandoned. if you will file. So B did not file a motion to dismiss for lack of jurisdiction. this is an action for forcible entry. we may say that B has already incurred in default. Rule 18 was limited to default. ALTERNATIVE AND SUCCESSIVE REMEDIES OF A PRTY DECLARED IN DEFAULT a) file a verified motion in set aside the order of default of any time after discovery of the FAME and before judgment b) if he did not file one or the same was denied. res judicata. the court can still dismiss the case although lack of jurisdiction was not so alleged. 26. Or where the evidence shows. If B was validly served under Rule 14. all those objections available but not so raised are deemed waived and abandoned. 1999 assuming that Dec. he would file a motion for a new trial at any time after service of judgment by default and within 30 days therefrom c) if he fail to file said motion or the same was denied. he could perfect his appeal from and on merits of said judgment by default within the balance of said 30-day period d) if he failed to take any of said steps. . the court has no jurisdiction over the subject matter of the case. So the general rule therefore is. the court can dismiss this action based on lack of jurisdiction. Q. B was summoned on Dec. So. The allegations are filed. Suppose the action has already. 1999. Suppose the case is already barred by the rule on res judicata. What is the rule of default? A. B. 1999 is a working day within which to file the answer or only appropriate pleading.R of FAILURE TO PLEAD For instance. the failure of the defendant who was validly served a summons to file the answer within the reglamentary period. A vs. then the court can dismiss the action. either if they were not initially raised in a motion to dismiss or as an affirmative defense. if not raised in the motion to dismiss or as affirmative defense in an answer are deemed waived or abandoned. 26. Default Used to be covered by Rule 18. if for instance. one that has prescribed. Neither this lack of jurisdiction of the court to try the forcible entry case alleged as an affirmative defense. 10.20 Rule 9: Effect of Failure to Plead General Rule: All of actions and defenses available at the time the pleading is filed. if you have defenses or objections. or statue of limitation. or where the evidence shows that the action has already prescribed or the evidence shows that there is lis pendencia. Although not raised in the motion to dismiss. and fails to file the answer within that period or fails to file any appropriate pleading within that period. but Rule 18 now which covered default. No. Suppose there is a lis pendencia and all these four are redeemed either on the basis of the pleadings themselves or under the basis of the evidence. 25. there is another subject of Rule 9.

must file a motion. Q. What follows after the court has validly declared the defendant in default? A. the court cannot moto proprio declare the defendant in default. the jurisprudence thereunder. the plaintiff in support of the allegations. Q. . a case where a defendant is not declared in default. Q. There are many. is the plaintiff A and B. that a default motion. No. 4) he cannot cross-examine. here the defendant is outside the ring looking at what A is doing. 3) he cannot present evidence on his behalf. Q. 1) The court may now render a judgment. The judgment may be either what is solely in the allegations in the complaint without the court receiving evidence from A. there must be a reason why he failed to file the answer. The limitations are: 1) The judgment cannot award an amount to the plaintiff in excess of what was claimed in complaint. Example: If B was not declared in default and the claim of A in his complaint for damages is P1M. Yes. Even if B has not filed an answer. he is in effect outside the ring. if the judgment has already become final. Q. is likened to a boxing fight where both opponents are in the ring slugging it out. 2) The court may receive evidence and therafter render a judgment on the basis of evidence presented by A. Q. In substance B loses many rights which pertain to a defendant who has not been declared in default: 1) he cannot file an answer. a motion to declare a defendant in default could be validly heard without notice to the defendant. What are the effects of a declaration of default on the defendant? A. he cannot be declared in default. Ruling of the court on the motion… The court may deny or grant the motion. Q. In other words. No!! even though the evidence of the plaintiff proved that sustained damages P1. Q. Under the old Rule 18. Since the default is by reason of failure of the defendant to file the answer.000. He must file a motion in court. But in the case of a defendant who has been declared in default. Where a judgment is rendered without the defendant having been declared in default. the judgment may be different from what has been prayed provided that judgment is sustained by the evidence. And this must be the reason he must alleged when he filed a motion to set aside the order of default. (the witness of the plaintiff) until he regains his standing as a defendant. So.01. the court cannot award an amount in excess of P1M (the amount claimed in the complaint).000. This is now the amendment to the old Rule 18. under the old rule. under Rule 14.000. But in a default case. furnish B with a copy of the motion and furnish B with a notice of hearing on the motion. How will A here secure the default of B? A. Yes. will be held ex parte.000. Are there limitations on the judgment that the court may render where the defendant is declared in default? A. the only person in the ring. the court may award A P1. looking at A doing his thing. the plaintiff.000. Is B. He must file a motion to set aside the order of default at any time before the judgment has become final.000. 2) The judgment that the court may render can never be different from the judgment prayed in the complaint. but what A proved was P1. 2) he cannot participate in the proceedings.21 Where the defendant has not been validly summoned. because the order declaring him in default is set aside. a motion to set aside the order of default is no longer proper. under the new rules. A here.01. This is not now the rule. A must file a motion.01 though it exceeds by one (1) centavo they are valid. He was not under the same rules and jurisprudence entitled to a notice of the hearing on the motion. It means therefore. How may the defendant regain his standing as a defendant? A. entitled to a notice of the hearing of the motion to declare in default? A. Can the court moto proprio declare B in default? A. What are the grounds of a motion to set aside a default order? A.

which prevented the defendant of filing the answer. You cannot declare a defendant in default ahead of the expiration of the period of the filing of the answer. So B now files a motion to set aside this default order. in the affidavit of merits. so I did not file the answer. 1999. 2) An accident befell me. When the declaration of default is premature because at the time he was declared B in default. 1999. No. But if after the court has examined the proposed evidence as stated in the affidavit of merit. then the court will have a basis of allowing B (defendant) to reacquire his status as a legitimate defendant. There are certain cases where a defendant cannot be validly declared in default even though he has not filed an answer within the reglementary period. 26.” No! State there what are your good defenses. 2) The good defenses of the defendant to the action So. negligence or accident. The court must first examine the defenses of the defendant. and finds that if this evidence are established. mistake or negligence. but notwithstanding he will not be still entitled to a judgment in his person. “I have a good defense. it would be pointless to allow him to go to trial and prove to state which do not entitle him anyway to any favorable ruling. the defendant here must recite the facts constituting the fraud. the defendant must state there the facts constituting his defense. Is the declaration in default proper? A. The rule is based on this supposition. not necessarily. No.) Q. Is it enough that these grounds be alleged in the motion to entitle the defendant to a restoration to his status as a defendant? A. Does he need to accompany his motion with an affidavit of merit? A. the period of the filing of the answer has not yet expire. the judgment may be favorable to defendant. the accident. 1999 within which to file the answer. The affidavit of merit is composed of two (2) facts: 1) The facts constituting the fraud. 24. fraud. Although a defendant has been validly summoned. 24.22 Q. So. YES. but my negligence is excusable because: 1) 2) 3) These are the grounds. He cannot simply say there. the mistake. mistake. You will say: "I fail to file my answer because of the following: 1) Fraud was committed against me. So you must state here. when he was declared default on Dec. Q. The court declared B in default on Dec. “ I failed to file my answer because there was fraud committed against me or that an accident befell me or that I committed a mistake or that I was negligent and that negligence is excusable. accident. To determine whether it is proper or not proper to set aside the order of default and allow the defendant to file his answer and adduced his evidence.” Why? Because these are merely conclusions. Q. Why> because the default order is illegal. The motion must be accompanied by the so-called affidavit of merit. . Why? Because he has until Dec. Q. What are these? A. can he nevertheless be declared invalidly in default even if he did not file the answer? A. (FAME) Q. B was not yet in default. This accident prevented me from filing the answer on time.” In what did consist of? State there! Same thing with the accident. No. So. Example: The last day for B to file the answer is Dec. What is the reason why the affidavit of merit indicates therein the good defense of the defendant is required? A. the excusable negligence which prevented the defendant from filing the answer. Q. he has still an additional two (2) days within which to file the answer. mistake or excusable negligence. Why? Because if the affidavit of merit does not show that the defendant has good defenses so that even if all those defenses alleged in the affidavit of merit were proven.(This is the purpose. No. Is the failure of the defendant to file the answer within the reglementary period a ground to declare him in default in all cases? A. 26. He cannot simply say. “Fraud was committed against me. 3) I committed a mistake and this mistake prevented me from filing the answer” If he said “ I was negligent in not filing.

C and D. the answer of B which was filed on Dec. Rule 10 : Amended Pleadings Amendment may be a matter of right or not a matter of right. and that if such prosecutor finds that there was no such collusions. as a matter of right . however. but the cause of action against the defendants is common to all. The plaintiff A filed his complaint against B on Dec. the fiscal should determine. there was no order for A to amend. B. What are these cases? A. It is as if this answer filed by B was filed not only for B but also for C and D. 1. 2) An action on legal separation. 1998. if B wins for instance. Q. C. What are the rules of amendment? A. On Dec. 7. 22. 22. however. Meaning. the procedure to be followed by the court is this. Amendment may also be of substantial matter or only on formal matters Q.23 Q. and D. 20 but served the copy of the answer on A on Dec. presuppose that the action of A is against all these defendants is common to them. not twice. the plaintiff may file an amendment pleading once. Sec. They are as follows: At any time before a responsive leading has been filed. the court will try the case on the basis of the answer filed by B. Does this mean therefore that the trial will no longer affect C and D? A. “at any time before a responsive pleading is served. legally proper? A. that a judgment rendered binds all the defendants. When the amended complaint was filed on Dec. as a matter of right. 1998. 21. 21. He can amend without getting a court order authorizing him to amend. A has a cause of action against B. A now filed any motion authorizing him to amend his complaint. 22. the complaint alleges the cause of action common to all the defendants. The answer filed by B inures to the benefit of C and D. A. This is the essence of Rule 9. meaning. When the answer of B was already filed a day ahead or on Dec. No. If B looses. one that is rest on the discretion of the court. meaning it can be exercise without a court order. 21. B moved that this amended complaint be stricken off the record on the ground that its filing was not authorized because A did not have the authority of the counsel to amend. C and D also loose. he has a period ending Dec. it is a matter of right. Let us say that B filed the answer on Dec. The cause of action is common to all. Where there are two or more defendants. The cases are the following: 1) An action for a declaration of nullity or annulment of a marriage. It was served only on Dec. So. 1 Rule 11 The defendant shall file his answer to the complaint within fifteen (15) days after service of summons. some of whom answered and some do not. The defendant B was summoned on Dec. 20. Q.” The right can be exercised only once.1998 within which to file the answer in conformity of Sec. you can declare C and D in default for their failure to file the answer but the case shall be rendered against them on the basis of B’s answer. This means to say therefore. Is the motion to strike by B. 20 was not yet served on A. the plaintiff does not have to get a prior authority from the court to amend. to direct the prosecutor to intervene for the purpose of seeing t it that the evidence of the plaintiff they adduced is not manufactured or a product of a concoction. Only B answered. How will the court proceed to try the case? Is C and D declared in default? Yes. Q. unless a different period is fixed by court. So. When A file the amended complaint on Dec. C and D might also win. So. This rule. 1998. What procedure should the court follow in determining the case? Example: A vs. In these cases where the defendant does not file the answer. The Rule is. The rule is. Trial… Q. . 1 Rule 11. the court must require the prosecutor to intervene and determine whether there was collusion between and among the parties. So. the party filing the pleading can amend once.

When a party therefore seeks to amend for the second or subsequent times. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings. our rule here. Q. . when B tried to prove this. he raised the following: 1) the action has already prescribed. B. there is a difference between filing and serving under Rule 13. even after judgment: but failure to amend does not affect the result of the trial of these issues. Q. The loan is already overdue. Is payment an issue? A. However. The prayer of A is that judgment be rendered: 1) ordering B to pay A the amount loaned. no demand whatsoever having made. He likewise denies that he was asked to pay A. The answer of B that he denies that he obtained from A. his pleading. No. This is the only defense that B alleged. the right to amend before the responsive pleading is served can be exercised only once. then this payment cannot be proven. The complaint of A. and under Rule 10. 2) when an issue not raised in the pleading or in the pre-trial order to be proven by a party and objected to be tried if the presentation of the merits of the case and substantial ends of justice are subserved thereby. B said that he already paid. under the ordinary rules of pleading particularly under Rule 13 there having been no issue raised in the pleading with respect to payment. 1999. he must obtain prior leave of court. As B’s defenses. A adduced evidence showing that there was no payment. he alleged among others that he gave a loan to B. He now tries to prove prescription. you are limited of proving only which you have alleged.24 But because the rule is very clear. Q. B here filed his answer on January 13. Provided of course that. Q. Give us the instances when the pleading may be amended to conform with the Evidence? Sec. 2) ordering B to pay damages to A. the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. So. Why could A not since the answer for the amended complaint was not yet served on him when he filed his second amended complaint? A. Because it was not raised in the pleading. Demands notwithstanding. 5 Rule 10 When issues raised by the pleadings are tried with the expressed or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. The rule says. the starting point of the right to amend a pleading is not the date of filing but the date of serving a copy of the pleading to the adverse party. B refused to pay. The rule is you cannot prove a defense not alleged. Example: A vs. Q. For him to amend again for the second time or any subsequent time. Nothing was said in the answer of B that he paid. It can consider it although there was no issue. he can no longer do so as a matter of right. And so the only way for his correction would be to file a second amendment complaint. No. May the court now in deciding the case consider the evidence of payment under this rule on amendments of pleadings to conform to the evidence? A. he now tries to prove payment. In other words. On the other hand. Let us say that the last day for B to file his answer to this amended complaint is January 15. In addition. that is disputed. Because the right to amend without leave of court can be exercised only once. There are two situations where a pleading may be amended to conform to the evidence: Instances when pleadings may be amended to conform to the evidence 1) when issues not raised in the pleading or in the trial order are tried expressly or implicitly with the consent of the parties thereto. B presented his evidence to prove his denial. 1999 and served A a copy of the answer on January 15. Could A validly file without leave of court that second amended complaint? A. The court may. 1999. 1999 A examined his amended complaint and found some deficiencies thereunder which he now wanted to correct. A did not object. Illustration: January 10. A filed his second amended complaint without leave of court. During the trial A presented his evidence and the allegations.

1. So. but which A forgot to allege and which facts are material to his case. 1996. Q. in the example. Can it pass on the issue of payment? A. a supplemental pleading does not put out of existence the original pleading. 1. 1996 and A wants to aver this in a supplemental pleading. permit him to serve a supplemental pleading setting forth transactions. So. 1995. facts and events that transpired after the original pleading was filed. Can he change his pleadings? How? A. He could not have ascertained in that complaint of his dated Dec. In order to justify the court ruling or deciding what is allowed to do under Rule 10? A. Q. then the action is deemed commenced upon the filing of the original complaint. whether the pleadings have been amended or not to conform with the evidence. as the term suggest. 1. B here will be allowed to amend the answer to allege therein payment. Yes. Why? Because he is not Nostradamus. you cannot allege facts not yet existing at the time the pleading is filed. 2) If the amended complaint alleges a new cause of action. 1. The adverse party may plead thereto within ten (10) days form notice of the order admitting the supplemental pleading. 2) amendment is intended to confer jurisdiction to the court. However. which supersedes the original pleading. 3) amendment to cure a premature or non-existing cause of action. Q. 1. Q. B. The court will say B is allowed to prove and if A cannot show that the reception of the evidence of payment would prejudice him. On the contrary. where the suppose offer of B to settle was made on Dec.1995 facts which would have occurred Dec. the court believes that presentation of evidence on this issue of payment will be served the merits of the case or in the language of the law. So. * Instances when amendment by leave of court not allowed: 1) when cause of action. The court may now order A and B to amend their respective pleadings to conform to the evidence on payment. . 1995. Yes. 4) amendment for purposes of delay Supplemental Pleading Sec. Because this matter could not have been alleged on Dec. the court can still rule on the issue that was impliedly or expressly agreed upon to be tried by the parties. A may now be allowed to amend his complaint to allege non-payment to conform to the evidence. B now introduces his evidence of payment. The rule is. Supposing there were facts already existing on Dec. 2 situations may arise: 1) If the complaint merely corrects or modifies the original complaint. RENE NOTES: * When the complaint is amended. You will notice that the supplemental pleading is intended. upon reasonable notice and upon such terms are just. Why supplemental? A. When A file this case on Dec. A objected on the ground that there was no allegation of payment under the cardinal rule on pleading. Unlike the amendment pleading. defense or theory of the case is changed. “you cannot prove what you have not allege”. What is a supplemental pleading? A. occurrences or events which have happened since the date of the pleading sought to be supplemented. on the part of A that issue of payment can be resolved by the court with or without the amendment of the pleading. He does not know what is tomorrow. he could have allege only facts that occurred before or until Dec. to supplement or to add to the original pleading. 1995 because it did not yet occurred. 6 Rule 10 Upon motion of a party the court may. So. the ends of justice are subserved by the amendments. Supposing the court did not order the amendment. then the new allegedly cause of action is deemed commenced upon the filing of the amended complaint. If there was already evidence of payment because there was objection in this case. 1. A supplemental pleading is one embodying therein occurrences.25 Q. the non-amendment of the pleading will not justify the court from refusing to resolve this issue of payment. Example: A vs. 1 or before that. by amended pleading to incorporate therein facts already existing at the time of the filing of the pleading or at the time before the pleading is filed.

the original pleading or complaint ceases to exist. but legally it is not there. It is merely an additional. A supplemental pleading should be answered within ten (10) days from the notice of the order admitting supplemental pleading. and therefore he is now entitled to the return of his money. it does not supersedes. Q. Q. Why? Because the answer he already filed to the original complaint serves as his answer to supplemental pleading. What happened here? A. The court denied the TRO. While it is true that the rule require a supplemental pleading to be answered. A now filed a motion to declare him in default with respect to the supplemental pleading. Does he have to file a separate complaint to recover what he paid? A. A now filed an urgent motion asking the court to resolve the application for restraining order. B now engaged Atty. A now furnished B. You can physically see it but legally you are blind to it because an amended pleading supersedes the original pleading.26 Example: In an amended pleading of B. the MERALCO. Q. the original pleading and the supplemental pleading. For obvious reasons. The event which is that electricity passing through the jumper is not recorded in the meter amounting to thousand of pesos. It is there. No. . When should it be answered? A. the ten (10) day period is counted from the receipt of the order admitting the supplemental pleading. Q. Under Rule 15. What legal procedure are you (Vanny) allowed to involve in order that this motion of A to declare your client in default may be thwarted? A. A paid under protest. What he can do is file supplemental pleading alleging therein what happened. How about a supplemental pleading? A. So that when a supplemental pleading is filed. 1. so the motion now carries the copy of the supplemental pleading a complaint. It is no longer legally a part of the record although it is there. Q. After he filed the complaint. It is non-existent. there are actually two pleadings now. * always with leave of court Effects of Amendment Pleading (a) Admissions in the superseded pleading can still be received in evidence against the pleader. Q. Example: Dec. when a motion is filed. That is why. he already had with him a copy. A prayed that a restraining order be issued while the case is going on. * taken together with the original pleading. B in this example. A’s prayer is that MERALCO be ordered to return to him the amount he paid. * take the place of the original pleading * can be made as a matter of right as when no responsive pleading has yet been filed SUPPLEMENTAL PLEADING * refers to facts arising after the filing of the original pleading. 1995 A sued B the MERALCO in an action to enjoin it from cutting off the electrical connection of A. The court furnishes B with a copy of supplemental pleading of A. he could not have set forth that fact because it did not have occurred when he filed the original complaint. did not file the answer to the supplemental pleading. Q. A supplemental pleading should be answered. alleged that A stole electricity by installing in its electrical connections a jumper. Q. RENE NOTES: AMENDED PLEADING * refers to facts existing at the time of the commencement of the action. Could he pray for that in his original complaint? A. the failure of the party to answer is not a ground to declare him in default. B. To avoid the cutting of the electricity. What would be the basis now of B in filing the answer to the supplemental pleading? How would B know the contents of the supplemental pleading? A. so MERALCO now threatened to carry out its original desire of cutting of the electricity. The contention of A is that he did not steal it. Marte as his counsel. MERALCO now threatened to cutoff his. when B received the order admitting the pleading of A. the court denied his application for TRO. the moment this is filed and this is accepted. the pleadings sought to be admitted are already attached to the motion. What is now A’s prayer? A. he paid under protest. electricity to avoid the cutting of the electricity.

when should it be answered? A. 4 Rule 15 (Complaint in Intervention) The complaint of intervention shall be filed within fifteen (15) days from notice of the order admitting the same. Q.within 10 days from service Sec. within what period should it be answered? A. What is the period to file the answer? A. The defendant in a counter-claim is the plaintiff. Within what period must it file its answer? A.27 (b) Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. 4 Rule 16 (Motion to Dismiss) If the motion is denied. sending a copy thereof on the adverse party. the compliance therewith must be effected within ten (10) days from notice of the order. In a case of a bill of particulars where the motion was denied or where the motion is granted. 4 Rule 11 (Counter-claim and Cross-claim) A Counter-claim or cross-claim must be answered within ten (10) days from service Sec. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading. 2 Rule 11 Where the defendant is a foreign private judicial entity and service of summons is made on the government official designated by law to receive the same. A third-party complaint or a fourth-party complaint or any complaint for that matter must be answered within fifteen (15) days from service of the summons. etc. Q. Sec. How about the cross-claim? A. when the bill of particulars was filed. the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion. either in whole or in part. 3 Rule 12 Bill of Particulars If the motion is granted. Sec. completed from his receipt of the notice of the denial. Give us the period within which a pleading may be answered : 1) Complaint – 15 days after service of summons: 30 if foreign corp. . Where the defendant is a foreign corporation doing business in the Philippines. Complaint in intervention must be answered within fifteen (15) days from receipt by the defendants in intervention of the order admitting the complaint-in intervention. he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading. the answer shall be filed within thirty (30) days after receipt of summons by such entity. 6 Rule 11 (Third-Party Complaint) The time to answer a third (fourth. unless a different period is fixed by the court. Sec. Q. Sec. unless a different period is fixed by the court. 60 days if done thru extraterritorial service 2) Counterclaim – 10 days form service 3) Cross-Claim . How about a counter-claim. If the pleading is ordered to be amended. Within ten (10) days from service of the counter-claim on the defendant with respect to the counterclaim.. unless a different period is fixed by the court. but not less than five (5) days in any event. Cross-claim must be answered within ten (10) days from service of this cross-claim to the proper party answering is the cross-defendant. Q. 1 Rule 11 Complaint The defendant shall file his answer to the complaint within fifteen (15) days after service of summons. Q. Sec. Within fifteen (15) days from service of summons to the defendant. RULE 11:WHEN TO FILE RESPONSIVE PLEADINGS Q. unless the court provides a longer period.) party complaint shall be governed by the same rule as the answer to the complaint. Complaint.10 days form service 4) Third Party Complaint – 15 days after service of summons 5) A Complaint-in-Intervention – 15 days form notice of the order admitting it 6) Answer-in a case where the motion to dismiss it is denied – balance of period required but not less than 5 days from receipt of notice of denial 7)Bill of particulars-within 10 days from the notice of the order 8)Supplemental pleading.

the answer must be filed within ten (10) days from service of the notice admitting the supplemental pleading. unless you know the description of this lot A is talking about. Example: This is an action filed by A against B for recovery of a lot. cannot be declared in default. so you file a motion to require A to submit a bill of particulars. When a motion for Bill of Particulars is filed. If you were B. he has a remedy to secure from the plaintiff a clear allegation of the facts. *If no new answer is filed by the defendant in case an amendment has been made after he has filed his answer. In this example. hence. Q. Q. In an action for recovery.But in no event should the period be less than five (5) days. Q. The defendant has a period representing the balance of the original period he has. the defendant whose motion for bill of particulars. then leave of court is required. A should have described in his complaint the boundaries. In the case of a bill of particulars. the period within which the defendant must file the answer would be the balance of the 15-days period within which he should have filed the answer but in no event less than five (5) days. Pleadings to be amended shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. This being so. Q. So the owner itself requires that the identity by its boundaries (technical description). What is the purpose in asking the court to order A to submit a bill of particulars? A. * If the filing of an amended complaint is not a matter of right. because unless you know the lot A talking about. At any time within the period for the filing of the answer. Q. the defendant may not possibly be in a position to file an answer. area etc. RENE NOTES: * The granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court.28 In a case of a complaint which was the subject of a motion to dismiss which was denied. the defendant considers as vague. The complaint or a pleading may be vague or ambiguous. What does it starts to run again? . The allegation in the complaint alleges that A is the owner of the lot in QC. the 10-day period to answer runs from notice of the court order granting the same. When may a motion for Bill of Particulars be filed? A. for a number of years until B ejected him (A) therfrom. The court may grant the continuance to enable the amendments to be made. Your purpose is to allow you to properly file your answer. Q. They may extend the time to file the pleadings but may not shorten them. within the period of the filing of the pleading. you cannot possibly file an intelligent answer. the period for the filing of the answer is suspended. the original answer of the defendant may serve as the answer to the amended complaint and hence. B can file a motion to require A to submit a Bill of Particulars. Which he has always been in possession of. What is the concept of Bill of Particulars? A. In the case of the supplemental pleading. do you know what is this lot in QC? A. the 15-day period to answer is counted from the service of the amended complaint. * If the filing of an amended complaint is a matter of right. So what are you allowed to do before you file the answer? A. You are B. Rule 12: Bill of Particulars Q. You want that land to be identified. is denied or where the bill of particulars was granted. Before he files the answer. of the lot in question. So the purpose therefore is to clarify an ambiguity in order to answer the complaint intelligently. the identity of the property must be stated. What is the effect of the filing of the motion for Bill of Particulars on the running of the period of the filing of the answer? A.

1999 within which to file the answer. Under the new rules. service upon him shall be made upon his counsel or one of them. That period cannot be shortened. which is the date it is delivered and received by the clerk of court and not on the date of deposit to JRS Express. he received on this day a copy of a bill of particulars. but in no event should the period be less than ten (10) days. not ordinary mail Example: Suppose a pleading is filed by JRS Express or LBC Jan. 10. “in no event shall the period be less than five (5) days. 1999. the answer may be stricken off the records and the defendant be declared in default upon the motion of the plaintiff. a motion for a bill of particular was a litigated motion because thereunder. 1990 – JRS Express delivered it to the court The date it is considered filed is on Jan. If any party has appeared by counsel. 12. Under the old rules. The sanctions against the failure of a party plaintiff to file the bill of particulars when ordered by the court. 2. unless the court desires that that motion be heard with due notice with the adverse party. This is why we have a provision that upon the filing of a motion for bill of particulars. 1999. He filed a motion for a Bill of Particulars on Jan. So. 3 Rule 17 may dismiss the action for failure to comply with an order. there is no registered mail service. On the other hand. What are the sanctions against the failure of the plaintiff to comply with the order of the court directing him to file a bill of particulars? A. unless service upon the party himself is ordered by the court. 1990 – the pleading was delivered to JRS Express Jan. he has still five (5) day period until Jan.” Q. Because the rule says. the court may order the stricking out of the pleading to which the motion for bill of particulars refers. Q. the plaintiff has filed a motion for Bill of Particulars and the defendant receives a copy of the Bill of Particulars. Or the court under Sec. 15. So. Sec. A. therefore he has eight (8) days. 1999. Why not Jan. his last day for the filing of the answer would be on Jan. the court must set for hearing a motion for bill of particulars. RENE NOTES: * If the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of insufficient compliance thereof. 2 Rule 13 Filing is the act of presenting the pleading or other paper to the clerk of court. he already consumed seven (7) days of the original 15-day period. because that is the balance to which he is entitled to at that time? A. B in Batanes. 10. then a copy of the pleading can be served only by ordinary mail. 1. it can be extended. Service is the act of providing a party with a copy of the pleading or paper concerned. Within what period should an answer be filed following the denial of the motion or following the receipt of the Bill of Particulars? The rule says that: The defendant is entitled to the balance of the period he was entitled to. 1999. So. 15. 9. if for instance. it is understood that he has a 10-day period. is. This is no longer the case. he shall only be entitled to one copy of any paper served upon him by the opposite side. if B filed a motion for a bill of particulars on Jan. B received the summons on Jan. In Sulu. 1999 the order denying the motion or he received on this day a copy of a bill of particulars submitted by A. If B received on Jan. the court can resolve the motion for a bill of particulars ex parte or with notice to the adverse party. When he received the order of denial on Jan. Example: A vs. 15. 1999. he must do so within the period fixed in the order. 10. . consequently he has only two (2) receiving days. It starts to run again when a motion for Bill of Particulars is denied and the defendant received a copy of the order of denial or it starts to run again when. 1999. Therefore. A filed the action against B. 15. Rule 13: Service and Filing of Pleadings Q.29 A. but never shortened. at the time he filed the motion. Filing (Manner) 1) personally to clerk of court 2) registered mail. Where one counsel appears for several parties. if the court does not fix the period within which A must file the bill. but in no event should the period be less than five (5) days. Give the desticntions between Service and Filing. after the motion has been granted. the clerk of court should refer the motion immediately to the court. so that when he filed the motion for a bill of particulars. B has eight(8) days counted from Jan. Should A be directed by the court to file a bill of particulars. 18. B 1) A resides in Sulu. 1999 and therefore he has already consumed thirteen days of the original 15 days period.

10. B in opposing this motion of A argued that he (B) actually received from the mail on Dec. Why? There is no record. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing. his residence is not known. The service on the clerk of court on that day it was served to him is equivalent to a service of to B. 5. there will be no definite starting point for the period to appeal or to that other legal acts. 1999 after receiving the copy of this notice of appeal of B. if B cannot prove that he served a copy of his motion to A. So he has to notify A of the motion. 20. But of course. or after five (5) days from the date he received the first notice of the postmaster. Service can be effected by ordinary mail. judgment. 5. because a litigated motion cannot be resolved by the court unless there is proof of service of a copy thereof to the adverse party. 10. B withdrew this mail on Dec. unless the court otherwise provides. A copy of that decision was sent to him by registered mail on Dec. B is deemed to have received the copy of the decision on Dec. Q. 1998. There must be a definite starting point Where the service is by ordinary mail. Q. registered or ordinary. Therefore. 1998 the judgment. 3) There is a registered service in Sulu. B. 5.30 2) There is a registered service in Sulu. How can he be served? The party serving must serve his pleading or other papers on the clerk of court by proving to the clerk of court. All that B does is to serve a copy of his motion to the clerk of court. 1998. Service by registered mail. On the other hand. 1998? A. and there is also a registered mail service in Batanes. What is the remedy available to B even if A was not personally served with the notice of the motion. whichever date is earlier. 1998. the hearing on Dec. 10 Rule 13 Emphasis on Last sentence Personal service is complete upon actual delivery. 1998. So the motion of A is not legally tenable.” Example: B files a motion (this is litigated). So. Therefore. 16 days already passed. but there is none in Batanes. let us say. A contented that under Rule 13. this motion can be heard on Dec. 4. you do not know where he is. 20. Service by registered mail is complete upon receipt by the addressee. So. 1998 within which to file the notice of appeal. this period expired on Dec. But when it is a registered mail. 4. 1998. there is a record. Jan. He cannot be furnished by mail (registered or ordinary). there is none. And since he has only a 15 day period from Dec. 5. service can be done only by registered mail Q. But in the case of ordinary mail. The hearing is set on Dec. “failure to serve personally or by mail. 20. 1998 cannot proceed because this is a litigated motion. for the simple reason that. B cannot serve a copy of the motion to A because the office of A is not known. 1998. Reason: There is such a thing as a period of appeal or for the performance of some legal acts. although he physically received it on Dec. So. the 15-day period is counted from Dec. 20. B received it on Dec. B has a period of 15 days counted from Dec. when it was filed on Jan. 10. 1998. B has to prove that B could not serve it on A’s office or residence either personally or by mail. B was deemed to have received it legally five (5) days after Dec. there is a record or whether it is a personal service. How about final order. Example: A vs. It can never be done by ordinary mail. the office the adverse party is not known. 1998 not on Dec. 1998 a notice to the effect that this mail is pending in the post office. What would be the correct ruling on the motion of A? A. he cannot be served by registered mail or by ordinary mail. either by personal service or by registered mail for that matter. 10. 5. within which to file his notice of appeal and the last day of this 15-day period is Jan. resolution. A now filed a motion to dismiss the appeal on the ground that it was filed late beyond the reglementery period. . 1999. 1. 5. Where a party wants to serve a copy of his pleading or other papers. For purposes therefore of the appeal. Q. 5. 20. how can they be served ? 1) Only by personal service and 2) By registered mail. 1998. Sec. When is service by registered mail deemed complete? A. 20. The postmaster sent to B on Dec. Q. 1999. His residence is not known also. 1998. A judgment was rendered against B. 1998. how can such pleading or other papers be served? (You cannot serve it personally because. B filed a notice of appeal on Jan. This is a remedy which does not appear to be appreciated – by many lawyers. within the fifteen (15) days period for the filing of the notice on appeal.

the service and filing of pleadings and other papers shall be done personally. or (b) After 5 days from the date he received the first notice of the postmaster. If there was no notice from the postmaster that he has a pending mail.tendering him a copy if he refuses . judgment. but if there is a first notice and the mail is not received within five (5) days from first notice. the service is deemed complete upon the expiration of five (5) days from the first notice. 20? A. of either sender or addresses. 1999. So whenever you serve.m. 2. 290 SCRA 605. If it is not in the record. JUDGMENTS. (c) Leaving the copy between 8 a. CA# 3200 August 5. service may be done by ordinary mail. RENE NOTES: * Modes of Service A. Effective June 1. this rule must be strictly followed. Service by ordinary mail: Complete upon expiration of 10 days after mailing. and 6 p. or . service by mail (a) If no registry service is available in the locality. with a person of sufficient age and discretion residing therein – if no person found in his office. What rule will apply if we now consider that he received it legally and physically on Dec. final order or resolution. .31 Q. per Sec. (b) With proof of failure of both personal and service by mail. Where service other than personal is resorted to. then you have to state why you furnish by means other than personal service. PLEADINGS 1. 11 Rule 13 is mandatory and this is exemplified in the case of Solar Theme Entertainment Inc. or if he has no office. in the absence of a notice given by a postmaster. you serve personally.They CANNOT be served by substituted service. What will be the effect of failure to comply with Sec. 4 was deemed complied. there must be an accompanying explanation why the pleading was served by means other than personal service. personal service (a) Delivering personally a copy to the party or his counsel or. Q. Personal Service . and there is no accompanying explanation of this. if party is summoned by publication and has failed to appear in the action. to the addressee. (b) Leaving a copy in counsel’s office with his clerk or with a person having charge thereof or. unless the court provides otherwise.They can be served only under the three modes. he has deemed to have receive it when he physically received it on Dec. 10 of Rule 13. and: . or (b) By service by mail. 1998. Priority in the Service of Pleadings – Personal Service Pleadings and other papers should be served whenever practicable by personal service. FINAL ORDERS AND RESOLUTIONS (a) By personal service. 3. Sec. * . the service is deemed complete upon actual receipt. or if his office is unknown. Service by registered mail: (a) Complete upon actual receipt by the addressee. When a pleading is served other than personal service.by handing a copy to defendant. whichever date is earlier. This sec.m. 11 Rule 13? A. If you do not serve personally. So. at the party’s or counsel’s residence. Proof of Filing * Filing is proved by its existence in the record of the case. if known. An omission of this explanation is fatal because this pleading shall be considered as not having been filed.complete upon actual delivery 2. (c) By service by publication. 11 Rule 13 Whenever practicable. 20 in which case the appeal on Jan. Completeness of a Service 1. then this pleading is deemed not to have been filed. B. Except with respect to papers emanating from the court. vs.

Summons is served either by 1) personal service: 2)by substituted service. the court cannot validly render judgment. Just to show you that the jurisdiction of a court to the person of the defendant is a must. What does personal service consist? A. Q. Summons is intended to vest in the court the jurisdiction over the person of the defendant. the complaint and all other documents accompanying the complaint. There are four (4) means: Personal service – which is preferred. I will not receive. Then you go to his office. is it served? A. Supposing the defendant said. the complaint and all the other documents attached thereto with a person living in the house of the defendant. substituted service can be effected only when the defendant cannot be served personally within a reasonable time.32 if filed personally: proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same. is there a valid substituted service? A. nobody is there. In what way may substituted service be effected? A. he’s deemed to have already been served. So. So. How is summons served? A. Q. only a person of sufficient age and discretion. if the defendant is not there. 1. This is similar in the case of an accused who has not been arrested and has not been arraigned. Q. Q. or (c) Affidavit of the party serving Rule 14: Summons Summons is the compulsory process issued by the court notifying the defendant that a case been filed against him and requiring him to file the answer within the period stated in the summons with a warning that should he fail to answer within the reglementary period. Proof of Service * Proof of personal service: (a) Written admission of the party served. Substituted service is the interrogation of the rights of the defendant. “Ayaw ko. or (b) Official return of the server. Whether he signs or not in the acknowledgment of his receipt of the summons. Yes. You go the house of the defendant. The sheriff or process server must leave the summons. to confer to the court jurisdiction over his (defendant) person. 1 Rule 16 includes in its enumeration grounds of a motion to dismiss the fact that the court has not acquired jurisdiction over the person of the defendant. If you cannot serve it to him personally because you cannot find him in the place where you thought you could find him. Unless a defendant is within the jurisdiction of the court. or if filed by registered mail: proved by – (a) the registry receipt and (b) The affidavit of the person who did the mailing. It consist of actually giving to the defendant a copy of the summons. With any person? A. The purpose of the summons therefore is. What is the purpose of summons? A. because that visitor is not a person living in that house. What time will it be reasonable? . when the court has no jurisdiction over the person of the defendant.” the person serving it kick it towards the defendant. a judgment may be rendered against him on the basis of the evidence that the plaintiff may advance. the court cannot validly render a judgment in the case. is the fact that Sec.3) service by publication or4) by any other means which the court finds it proper. Q. Q. Q. Q. No. What is the jurisprudence of substituted service? A. Then you resort to a substituted service. Therefore. the process server goes to the house of the defendant but does not find the defendant there because he is out but finds a neighbor who is visiting in that house and leaves the summons with the visitor. Q. leave that summons with the person in charge of the office. even though the defendant did not sign. The court cannot render judgment against on accused who has not been brought under its jurisdiction. No.

15 of Rule 14. 2. by publication in a newspaper of general circulation for such period of time that the court may deem proper. the period depends on whom was the summons served. Where the service is substituted. where the property is a property of the defendant and this property has been attached. 15 thereof. “any other means that the court may find proper. or 2. Supreme Court overruled this contention. when the defendant is a non-resident defendant and the actions against him be any of the following: a. in which the defendant has or claims a lien or interest. is required to render a report on what he did. If on the other hand. or the subject matter of which is. In the Cariaga vs. how the summons was effected.” In the case of a foreign corporation doing business in the Philippines. the period is fifteen days. The defendants received the registered summons. The server. Where a defendant is summoned under Rule 14 under Sec. on whom it was served and how it was served. they could not be ascertained notwithstanding diligence in ascertaining such whereabouts. where the defendant is sued as an unknown defendant. by personal service This means to say that the court in the Philippines can send somebody abroad to serve personally the summons. summons by publication may be effected: 1. by any means that the court may find proper. the defendant has a period of sixty (60) days from notice within which to file the answer. How may a non-resident defendant be summoned when the case against him is any of the case above-mentioned (action involving the civil status of the plaintiff or an action involving real property in the plaintiff? A. service of a summons by registered mail is covered by the phrase. that summons cannot be served by registered mail. when the defendant is a resident defendant but is temporarily out of the Philippines. an action which involves the personal status of the plaintiff. In the following cases. sheriff or process server renders to the court on what he did with that summons (or sheriff’s return. the substituted service is null. There are several ways of serving: 1.other term for return of service). the impossibility of serving the summons personally. to exclude the defendant from any claim that he may have over that property. They contented. 3. whether he is the sheriff or the deputy sheriff or the process server. He must state in his return of service. What is required of a sheriff or process server to do when he resorts to substituted service? A. where the whereabouts of the defendant is unknown. meaning therein the particulars such as the date of service. Q. the defendant has a period of thirty (30) days from receipt of the summons within which to file an answer. the process server or whoever was commissioned to serve it must state in his report the following: 1. 2. 3. Malaya case. When may summons by publication be effected? A. or on which . b. in short. the sheriff. 3. Sec. 15 Rule 14 When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to. If the summons was served on its agent or representative in the Philippines. They argued that the summons effected then by means of registered mail was not a valid summons. So they file a motion to dismiss the complaint on the ground of lack of jurisdiction of the court over their persons. the reason for such impossibility. Supreme Court holding that under Sec. property within the Philippines. the then Judge Antonio Malaya of CFI Manila ordered the defendant residing in USA summoned by registered mail. the subject matter of the suit is real property The reliefs prayed for respecting the real property are as follows: 1. 2. But in this case. a copy of summons and the complaint and all the other papers attached to the complaint must be sent by registered mail to the last known address of the defendant. Q. the summons was served on a government officer. 4. actual or contingent.33 Supposing the sheriff or process server went to the house of the defendant once and did not find him there… Q. Unless all this data appear on the return. a return of service is the report that the server.

By personal service. unless when they are his legal guardians IN ANY EVENT. but not upon his parents. or c) any other manner the court deem sufficient. 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. SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY E. is equivalent to service except WHERE such appearance is precisely to object to the jurisdiction o the court over the person of the defendant. summons by publication is invalid as being violative of the due process clause. be effected out of the Philippines by personal service as under section 6. corporate secretary. which shall not be less than sixty (60) days after notice. or like public corporations – by serving on its executive head. or . SERVICE UPON RESIDENT TEMPORARILY OUT OF THE PHILIPPINES * Where the defendant is a resident and the action is personam.On any officer or agent of the corporation within the Philippines . Any order granting such leave shall specify a reasonable time. 1. wholly or in part. or the property of the defendant has been attached within the Philippines service may. SERVICE UPON PRISONER D. In case of incompetents: by serving on him personally AND upon his legal guardian. Substituted service or with leave of court. as the original complaint was deemed withdrawn upon such amendment.Serve on (15) resident agent. or if none. * Service of Summons on Different Entities A. Mode of Service a) with leave of court served outside the Phil. SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY F. city or municipality. RENE NOTES: * Where the defendant has already been served with summons on the original complaint. or in any other manner the court may deem sufficient. . by his agent authorized to do so.In case of a province. * Any form of appearance in court. * demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Philippines. managing partner. new summons must be served on the defendant on the amended complaint. or also upon either of his parents. * BUT where the defendant was declared in default to the original complaint and the plaintiff subsequently filed an amended complaint. in excluding the defendant from any interest therein. in which case. within which the defendant must answer. or by attorney. in case of minors: by serving upon the minor. or b) with leave of court served by publication in a newspaper of general circulation. * property of defendant has been attached to the Philippines 2. no further summons is required on the amended complaint IF it does not introduce new causes of action. a copy of summons and order of the court shall be sent by registered mail to the last known address of the defendant. treasurer or in-house counsel . SERVICE ON ENTITY WITHOUT JURIDICAL PERSONALITY B. or person in charge of office serve personally and on guardian or any person exercising parental authority over him. general manager. by the defendant.34 the relief demanded consists.Service upon a person other than those mentioned is invalid and does not bind the corporation.In case defendant is the Republic of the Philippines – by serving upon the Solicitor General . if the minor or incompetent has no legal guardian. . the plaintiff must obtain the appointment of a guardian ad item for him. personal service out of the Philippines as under extraterritorial service. Serve an officer having management of the jail or prison G. EXTRA-TERRITORIAL SERVICE To the president. Requisites a) defendant does not reside or is not found within the Philippines b) the action either: * affects the status of the plaintiff. AND upon his legal guardian. SERVICE UPON PUBLIC CORPORATIONS upon any or all defendants being sued under common name. H. . regardless of age. or by publication in a newspaper of a general circulation in such places and for such time as the court may order. or on such other officer or officers as the law or the court may direct. SERVICE UPON MINORS AND INCOMPETENTS C. by leave of court. * relates to or the subject of which is property within the Philippines on which defendant has a lien or interest.Gov’t official (30) designated by law.

A.35 * Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant5 shall not bee deemed a voluntary appearance. which a court can act upon without hearing the adverse party because the adverse party does not have the right to oppose application for relief and should the court resolve this motion without hearing the adverse party is nevertheless not prejudiced. Non-Litigated motion 2. Q. They are the complaint. which the court can resolve ex parte. B. What are the kinds of motions? A. What are pleadings? A. Rule 15: Motions Motion is defined as an application for a relief not embodied in the pleading. B. So that if the trial was set on Jan. Q. Example: Trial is set. complaint in intervention. What does B want as a relief? A. A prayed that he (B) declared the owner of the land. answer. whatever relief you want to obtain from the court before the judgment. Why? Because you cannot incorporate in your complaint or complaints in intervention this reliefs which will not constitute a judgment on the merits of the case. you can prove that by means of a complaint. There are two (2) kinds of motion: 1. Q. Will there be a trial on the merits of the case when this case will be dismissed/ A. this motion cannot be heard unless he (A) be first notified. third party complaint. incidents in connection with which a party may want to secure a particular relief. Example: A vs. Q. you can obtain that only by means of a motion. That is why Sec. the plaintiff have the right to resist this motion such that if he has. The relief prayed for by A is that a judgment be rendered against B declaring A owner of the land and ordering B to turn over to A the possession of the land. A. in between the course of the proceedings. 1 Rule 15 defines a motion as an application for a relief not included in a pleading. 24. May either of the parties secures any relief other than a judgment. 1 Rule 15 A motion is an application for relief other than by a pleading. B now files a motion to dismiss. Does A. Either A or B is not ready to go to the trial. between the tie this case is pending and times this case is decided. A motion for extension of this is one. counterclaim. or answer Sec. So. After this complaint was filed on Jan. etc. 1999. Dismissal of the complaint. the relief prayed for by B is the dismissal of the complaint of A. Example: A vs. Example: (Non-litigated Motion) B the defendant files a motion for extension of time within which to file the answer. ordering B to pay him damages. Q. So A or B wants the trial to be cancelled. None. In so far as B is concerned. you get that through a pleading called motion. there be many relief a party may prayed for but not a judgment. There are many incidents while a case is pending. counterclaim. You have a complaint then an answer and after trial you have the judgment or decision. Yes. cross-claim. 2. . either A or B will file with the court a paper asking therein that this date of hearing be cancelled. Litigated motion A non-litigated motion is one. So whatever you want to get from the court. But if you want to obtain a judgment on the merit. 1999.

he could file the amended complaint only after the court has already granted the motion. Motion for judgment on demurrer to evidence General Rule: 3-day notice rule-service of the copy of motions should be made in such a manner as shall ensure its receipt at least three days before the hearing Exceptions: 1. 1998. the motion should be set for hearing in such a manner that a ten 10-day period must elapse between the services of the motion to the adverse party and the date of the hearing. Why? Because had he been notified and would have objected and his objection may be considered by the court. When a party files a motion for the admission of a pleading. Consequently. Motion for judgment on the pleadings 2. There is one exception however to this rule. the court cannot hear it. is not entitled to judicial cognizance and does not affect any reglamentary period involved for the filing of the requisite pleading. The advantage is this. under the old rule. Under the new rule now. 1998. the period for the filing of responsive pleading is shortened. Urgent motions 3. It could not be set Dec. if a party wanted to file a motion for the admission of an amended complaint. the latest date this motion will be set for hearing is Dec. So if the motion is filed Dec. Q. The amendment not being a matter of right so in this motion. In other words. 5 and 6 of Rule 15 is a mere scrap of paper. however. 12. It must done so within 10 days. that party must attach to the motion the pleading desired to be admitted. without giving the adverse party the opportunity to object therein. The complaint will be dismissed even without being heard. then therefore. Why? Because a litigated motion adversely affects the right of the adverse party. Why is it litigated? What would be the effect if the court would now grant the motion to dismiss? A. B. So. unless the adverse party is notified of the hearing of that motion. 11. This is if you follow strictly the rule. Why? Because even though the court acts on the motion. will prejudice A. without the previous notice on the adverse party. B. and that is a motion for summary judgment. . the motion to dismiss may be denied. Example: (Litigated Motion) A vs. Motions for summary judgment which must be served at least ten days before its hearing * Any motion that does not comply with sections 4. Example: A vs. should not be accepted for filing. A may resist the motion. and if the court hears it. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties 4.36 Meaning. the plaintiff. the court cannot validly act on the motion. A should already attach the copy of the amended pleading. The hearing without notice of A. The court resolves his motion to dismiss without a prior notice given. attach that to your motion. This is not proper. Where. It is non-litigated. Under the rule on summary judgment. So. if you want the pleading to be admitted. the court cannot validly rule on the motion. unlike the old rule. Is the action of the court in resolving the motions without giving notice to A proper? A. So we say that in a motion to dismiss. the hearing is void. Q. 1. because it exceeds already. the plaintiff A. under the rule on summary procedure. because this is a litigated motion. RENE NOTES: Kinds of Motions a) Motion ex parte – made without the presence of a notification to the other party because the question generally presented is not debatable b) Motion of course – where the movant is entitled to 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 d) Special motion – motion addressed to the discretion of the court General Rule: A motion cannot pray for judgment Exceptions: 1. It can be heard without notice of A. A motion must be set for hearing not later than ten (10) days from the date of its filing . you cannot set your motion for hearing earlier than ten days. No. B files a motion to amend the complaint. without the presence of the adverse party. it will not in anyway prejudice the right of A. there will be considerable delay. the motion is litigated. Motion for summary judgment 3. no more. B files a motion to dismiss. Ex parte motions 2. A the plaintiff has the right to be heard or to resist the motion and unless the motion is heard in accordance with Rule 15. and if filed.

on the ground that he was not validly summoned and therefore the court has never acquired jurisdiction over his person. Litis pendentia 6. 1 1. the filing of the motion does not amount to a submission of himself to the jurisdiction of the court. Example: B. Is B deemed to have voluntarily submitted himself to the jurisdiction of the court by filing this motion to dismiss? A. By the voluntary appearance of the defendant before the court. When should a motion to dismiss be filed? A. the foremost of these is that. Q. No. extinction of claim by reason of payment. With respect to voluntary appearances the voluntarines of the appearance may be manifested by the filing of the pleading with which a party seeks a relief other than the dismissal of the complaint based on lack of jurisdiction of the court over the persons of the defendant. B opposes the motion saying that the court has not acquired jurisdiction over his erson because he was not summoned. but in addition to this ground he adds other grounds. lack of legal capacity of the plaintiff to sue 5. waiver or any other ground of extinction of the obligation 7. he filed in court a motion for extension of time to file the answer. he is deemed to have submitted himself to the jurisdiction of the court. In addition to this ground. the defendant was not validly summoned. 2) the facts alleged in the complaint do not constitute a cause of action. By the issuance of the summons and its valid service on the defendant. Example: A sued B. No. unless the court acquire jurisdiction over the person of the defendant. the claim is barred by statute of fraud or barred by res judicata 8. Let us assume in this example that B files a motion to dismiss on several grounds. and in addition. improper venue 4. B did not file the answer. By so filing the motion. lack of jurisdiction of the court over the subject matter of the case 3. however. B was not summoned. 19 Enumerates the cases triable by RTC . you know very well that. The court granted the motion. added other grounds such as improper venue or failure of the complaint to state the cause of action. There are two (2) ways the court may acquire jurisdiction over the person of the defendant : 1. What is meant by. the court did not acquire jurisdiction over his person because no valid summons was served on him. At anytime within the period for pleading but before the answer has been filed. So. abandonment. Sec. the court cannot validly render a judgment. he prayed for a relief and that is the extension of the time. where the motion to dismiss is based on lack of jurisdiction of the court over the person of the defendant. No.37 Rule 16: Motion to Dismiss Q. No cause of action 10. because when B filed a motion for extension of time to file the answer. the action is barred by prescription 9. Blg. he voluntarily recognized the jurisdiction of the court over his person. Q.P. See B. He prayed for the dismissal of the complaint. is B deemed to have submitted himself to the jurisdiction of the court? A. 129 The Judiciary Reorganization Act of 1980 as amended. if a defendant files a motion to dismiss. because he was not validly summoned. he also invoke the following: 1) the venue is improperly laid. lack of jurisdiction of the court over the person of the defendant 2. Q. Jurisdiction of the court over the subject matter of the case simply means that the court has under the law the authority to decide that particular case. He nevertheless filed a motion to dismiss on the ground that the court has not acquired jurisdiction over his person. Upon hearing. he was sued. because precisely he contested the jurisdiction of the court over his person. Is the contention of B correct? A. The motion was denied. “lack of jurisdiction of the court over subject matter of the case”? A. The plaintiff now moves that B declared in default. Q. failure to comply with certain conditions precedents With respect to jurisdiction over the person of the defendant. Grounds of Motion to Dismiss are specifically mentioned on Sec. Under the old rule. Jurisdiction is conferred by law. The motion was denied. 2.

Reason: While it is true CFI has no jurisdiction to try the case. B may present his evidence to support his motion. CA denied. was already too long. So the case was decided in favor of A. Therefore. they cannot be proceeded after the motion is filed. So. This is best illustrated in the case of Tijam vs. Reason: CFI of Manila did not have jurisdiction to render a judgment because the subject matter was within the jurisdiction of the MTC not the CFI. if you have five (5). Q. He files this in the RTC. The judgment sought to be against C was acted as surety of B. Of course A has a right to oppose. judgment was rendered by the trial court.38 Sec. there is such a thing as “estoppel by laches in jurisdiction”. The matter reaches the SC. Therefore. the prevailing party. the defendant files an answer. A. A suit was filed by A against B in CFI of Manila to recover an amount. CA affirmed the judgment of CFI against C. A may also adduce his evidence. In another case. C is estopped already to question the lack of jurisdiction of the CFI. At the time of the appeal. Yes. He went to trial never raising the question of lack of jurisdiction of then CFI of Manila. but the parties went to trial. Yes Q. Example: Under B. It cannot defer ruling on a motion to dismiss on the ground of the motion is not indubitable.000. take positive stand to order amendment. If he dismisses. went to CA have this appeal litigated. the court could defer ruling on a motion to dismiss of the ground that the basis therefore is not indubitable. B. 129 Sec. therefore a court tries a case which is not among those enumerated under the law as within the competence to try. The judgment became final. C resisted the action. So. C filed a motion for reconsideration. is lodged with SC.P. The court may either order the amendment of the complaint or dismiss the complaint. Let us assume however that instead of filing a motion to dismiss. May there be a situation when a court does not have jurisdiction over the subject matter of the case and yet the court can validly try and decide the case? A. Q. B here is the movant. A now contented that the appeal of B would not be entertained by CA for lack of jurisdiction of CA. Issue: Whether the judgment of CFI affirmed by CA is valid? SC ruled that the judgment is valid. jurisdiction over cases involving more than P200. So. because if you do not allege all the others already available but not raised are deemed waived. 33 Enumerates the cases triable by inferior court Where. 33 as well as under Rule 17 and under the Rule on Summary Procedure. When does the court not have jurisdiction but it can decide validly the case. SC ruled that because of the doctrine of estopped by laches. Therefore. But an action for declaration of nullity of marriage is one triable by the RTC.you must allege all of them. the parties went to trial without raising the question of jurisdiction and because of the long passage of time between the rendition of the judgment and the time the motion questioning the lack of jurisdiction was raised. Sibunghanay. we say that the court has no jurisdiction over the subject matter and therefore that is a ground to dismiss. B appealed to CA. A vs. A. now can file a motion to dismiss. . All the grounds enumerated under Rule 16 as grounds for motion to dismiss must be averred in the motion to dismiss. B. The amount involved is more than P200. the remaining two (2) are deemed waived. This case. Under the old rules. it means it grants the motion to dismiss.000. A sued B for forcible entry. Here is now the motion to dismiss by B filed in this case of A. yes Q. the court will resolve the case. Denied! It was only thereafter that he now files a motion questioning the jurisdiction of the court to decide the case. What are the requirements? A. The trial of the motion to dismiss may require the presentation of the evidence of the movant. On the strength of the omnibus motion rule. grant the motion or deny the motion. The court must. The amount sought to recover was one within the jurisdiction of the MTC. A by agreeing that that this appeal be litigated in CA is estopped to question the appellate jurisdiction of CA. No one raised the question of lack of jurisdiction of the court. C argued that jurisdiction can be raised at anytime on appeal. Is B here within his rights to file a motion to dismiss based on the ground of lack of jurisdiction of the court to try the case? A. filed a suit for declaration of nullity of marriage. He can file his opposition. C elevated the matter to the CA. an action for forcible entry and detains is triable exclusively by the MTC. This was filed in the MTC. This is not now. C allowed the case to be tried as against him to enforce his liability as a surety of B. if you have five (5) grounds and you raised only three (3).

Can B prove this ground alleged in his defenses even before A presented evidence? A.where the defendant alleged as defenses in his answer grounds for a motion to dismiss is granted . unenforceability of the contract to the bond based on the Statute of frauds 3. which a counterclaim is supposed to stand. However. Y and Z. Unless for some valid reasons the court may order the trial to be reversed. can the plaintiff re-file the case? Supposing the complaint was dismissed on the ground of improper venue. On the theory that a counterclaim derives its life from the complaint. the counterclaim survives the dismissal. The rule is. What is the effect of the denial on the evidence of the parties adduced during the hearing of the motion? For instance. It becomes final. he filed an answer. Q. Q. abandoned or waived or otherwise extinguished 4. it will receive evidence on the defenses or it may deny hearing. the defendant may allege in his answer as defenses all the grounds of a motion to dismiss. the complaint does not state the facts constituting a cause of action. Q. Q. It is a matter governed by the discretion of the court. Where a complaint is dismissed. Can the case be re-filed? A. The action cannot be revived. Q. B may file an independent civil case based on that counterclaim. the counterclaim pleaded in the answer is not dismissed. the court will grant the motion for a preliminary hearing on the defenses is a matter of discretion on the part of the court. What becomes now the testimony of X. In our example B. What is the defendant allowed to do if he files an answer with respect to the grounds of a motion to dismiss? A. If the motion to dismiss is granted. B presented X. it is the plaintiff who starts presenting the evidence. Yes. Therefore. C. or lack of legal capacity. he may now file a motion for a preliminary hearing on the defenses. This means therefore that. even though there is no longer any complaint. It is not the defendant. for instance. that where the dismissal of complaint arising from a grant of a motion to dismiss may bar the re-filing of that case in the following cases: 1. Let us assume in this example. Under Rule 30 on Trial. the claim has been paid. Q. during the hearing of the motion. depending on the ground of the motion to quash. If the motion for preliminary hearing the evidence of A can now receive the evidence of B with respect to those defenses. The rule is. which will serve as the basis of a counterclaim. Let us suppose that in the answer. This means if the complaint no longer exist. It is as if he filed a motion to dismiss. without reverse order of trial under Rule 30. But in this case. the order of dismissal is res judicata. The dismissal is limited to the complaint. If in the answer he alleges as defenses the grounds for a motion to dismiss. the court have the defenses founded to be established. there is no longer any legal basis. the motion to dismiss was denied. the court can grant the motion and in this case. Prescription In all these cases. Don’t worry. D and E. If the counterclaim can subsist. instead of filing a motion to dismiss. . Supposing the motion to dismiss was heard during which the parties presented their evidence and the motion to dismiss is denied. he can move the counterclaim be litigated in the same case. the counterclaim is automatically dismissed. What becomes the counterclaim with the dismissal of the complaint of A? A.39 Q. res judicata 2. D and E? The rule is their testimonies will be deemed reproduced automatically during the trial on the merits of the case. It is not a right of the defendant. This is the old rule. B pleaded a counterclaim against A. The new rule now is. Q. Y and Z and A presented C. may B be allowed to prove his defenses even before A has proven his case? A. improper venue. B after filing the answer. or 2. the case will dismissed even without A having presented his evidence. because the law has given the defendant two (2) options: 1. in what proceeding can it be prosecuted considering that the main case is already been dismissed? A.

23. Under the old rule. Q. B was summoned Dec. 10. he would have only 6 days counted from Jan. 15. 1999. not “serving”. It could have meant “filing” because the usual counting of the period starts from the date of filing. But if you’re counting on the date of filing of the motion. there was no day anymore left of the original 15-day period. Q. So that in our example. So. B served this order on Jan. Look at Sec. 15. MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) * based on insufficiency of evidence. If you apply Rule 16. What now becomes of the evidence received during the hearing? A. 1998. The motion to dismiss was denied in an order dated Jan. Y and Z. if we apply this rule. 1999. B. he was given a new period of 15 days. 1998. if the ground of the motion to dismiss is other than any of these grounds already mentioned. when motion of a Bill of Particulars is denied and that the defendant is to answer. B has a period ending Dec. 21. RENE NOTES: MOTION TO DISMISS UNDER RULE 16 * grounded on preliminary objections * may be filed by any defending party against whom a claim is asserted in the action. * should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him. 20. the order dismissing is not res judicata. the situation would be like this… Example: A vs. 4 Rule 16 If the motion is denied. X. the court can consider the testimonies of X. This is not the rule now. He (B) filed his motion to dismiss on Dec. (Judge Laggui is still wondering up to this very moment you are reading this note whether this word “serving” would have been an error. the remaining period is counted from the balance of the pleadings counted from the day he “filed” the moiton. he (B) can still file the answer within five (5) days from Jan. Sec. when court decides the case on the merits. the defendant was given anew 15 days from receipt of the order denying the motion to dismiss. he (B) furnished a copy on A Dec. * may be filed only by the defendant against the complaint of the plaintiff. 17. you count the period from Dec. 15. Y and Z no longer appear during the trial on the merits of the case. 1999 or on Jan. he shall be granted a period representing the balance of the period following the “service” of the motion. But we have to follow because there is no reason why we should not follow.) But in all events. Y and Z even though X. within what period should the defendant filed the answer? A. That means to say therefore. 1999 so the end would be on Jan. If we apply literally this provision. (Judge Lagui was wondering whether this could have been an error. irrespective of the number of days left. 1998. 1998 but served a copy of that motion on A on Dec. unless the court provides a longer period. 23. This is only the provision which makes the starting point “the date of service”. You count now the period from the date the motion to dismiss was served. not the date of serving. * may be filed only after the plaintiff has completed the presentation of his evidence. . but not less than five (5) days in any event. he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading. he had eight (8) days. Under the new rules. If the pleading is ordered to be amended. All other provision of the Rules make the “filing” the basis. Would not this word “serving” meant “filing”. So. This word “service” could have been meant “filing” because it is the usual period. 23. 4. when he received the order of denial on Jan. 1999. When the motion to dismiss has been denied. 1999. the same complaint may be re-filed. therefore. 1. 15. the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of “serving” his motion. So.40 On the other hand. So 8 days would give you until Jan. Look at Rule 12. within what period should B file the answer? A. Under Rule 11 Sec. 15. You no longer count the period from the day you filed the motion to dismiss. who testified on the motion to dismiss. the minimum is five (5). 8. Where the evidence of the parties is received in support of the motion to dismiss and/or support of the position to the motion and the motion is denied. In other words. if that is the case. 17. 1999. computed from his receipt of the notice of the denial. 1998. 1998 within which to file the answer. Evidence will be automatically reproduced as evidence of the parties during the trial of the merits of the case. 1999. Q. and the trial should thereafter proceed.

EFFECTS OF ACTION OF MTD 1. This means to say that he filed a notice of dismissal for the second time. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. It was served only on Dec. the plaintiff may dismiss his action by filing a notice of dismissal. 1997 within which to file the answer. the dismissal is with prejudice. 1997. Q. There are two (2) situations covered: The rule says. Why? Because the filing of the notice of dismissal automatically dismisses the complaint. 3. A filed an action against B who was summoned Dec. Under Sec. because it (answer) was not yet served. This means to say therefore that the plaintiff cannot re-file the action for the third time. 1997. 2. 1 Rule 11. whereas under Sec. What is the effect of this notice of dismissal? A. he cannot dismiss without court authority. that anytime before an answer or a motion for summary judgment has been served on the plaintiff. which is different. 1. 1 contemplates a situation where the plaintiff initiates the dismissal of the action.41 Effect of motion to dismiss: . Yes. ORDER GRANTING motion to dismiss is a final order 2. When can he not re-file the case by reason by his having filed a motion of dismissal? A. Q. A person goes over the record will now know what happened with his case. What is the effect of this dismissal of A? REMEDY 1. In Sec. such admission is limited only to all material and relevant facts which are well pleaded in the complaint. 15. and 4? A. However. it would now be clear that the case was dismissed. Because with that confirmation. if you did not know Rule 17 and you went over the record of the case where a notice of dismissal was filed. 1. The situations covered by Rule 17 are dismissal of a complaint or a counterclaim or a cross-claim or of a complaint in intervention or of a third-party complaint.(TWO DISMISSAL RULE) Q. In Sec. where the plaintiff has filed a notice of dismissal but he previously filed a notice of dismissal. * An action cannot be dismissed on the ground that the complaint is vague or indefinite. Let us assume that B filed the answer on Dec. What are the situations covered by Sec. 2 covers the situation where the plaintiff still initiates the dismissal of the action. 16 considering that the answer was filed on Dec. Sec. it is the dismissal of the counterclaim or cross-claim. 16. 1997. where the complaint is dismissed for the second time because of a notice of dismissal filed the second time. 15? A. What does the rule say? A. Q. on Dec. ORDER DENYING the motion to dismiss is interlocutory Rule 17: Dismissal of Actions Q. you would not know what is the status of the case. However. No. A filed a notice of dismissal. certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction . It means to say that. it is a dismissal of the action of the plaintiff either at the instance of the defendant or at the instance of the court. The dismissal filed for the second time produces a dismissal with prejudice. This means that plaintiff can re-file the case. 17. Sec. The notice of dismissal produces a dismissal without prejudice. he can dismiss as a matter of right without court authority. Could A file his notice of dismissal on Dec. What is the action that the court must take when a notice of dismissal is filed? Will it order the dismissal of the complaint? A. All that it does is to issue an order confirming the fact that the plaintiff dismissed the complaint. 3. 1. Q. 2. appeal from the order of dismissal 2. How does Sec. 4. When in his notice of dismissal he started that the dismissal is with prejudice. But in this innovation now requiring the court to issue an order confirming the dismissal. the rule says. Q. And so. However. 1 operate? A. Under the old rules. 1997.A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. the court was not required to do anything upon the filing of the notice of dismissal. Example: Dec. Q. B has until Dec. 20. 5. In Sec.

All that the court has to do is to confirm the dismissal. it must be on application of the plaintiff and upon approval of the court. It may be prosecuted in the same case provided that within 15 days from receipt of motion to dismiss. The law provides the effect. The second dismissal produced by the filing on Jan. If the court grants it. 1998. 1998. This must be now dismissed because this is barred by the second dismissal. When may a plaintiff dismiss his action with leave of court? A. B has a period until Jan. the court may impose a condition for the dismissal. Q. Is the contention of B correct? A. a dismissal produces a dismissal with prejudice if filed by a person who previously filed a notice of dismissal. 1998. otherwise. 10. A said it is with prejudice. maybe subject to certain conditions that the court may impose. It is a dismissal with prejudice. It is unnecessary. however its dismissal is no longer a matter of right. On Dec. Sec. What is the effect of the dismissal under Sec. That motion maybe granted by the court. No. A now files a motion of dismissal without leave of court. 25. It is automatically dismissed. 1998. In what proceeding may it therefore be prosecuted? A. Should a compulsory counter-claim be pleaded in the answer. The counterclaim is not dismissed. will the resulting dismissal be also without prejudice? A. 1998. Supposing in the notice of dismissal filed on Jan. Q. A filed a case against B. This section embodies the so-called “Two Dismissal Rule”. 1997.42 A. This is now a dismissal with prejudice regardless of what A stated in the notice of dismissal. because the court cannot characterize the effect of the second dismissal. 25. Q. Q. Q. Why is the dismissal with prejudice now? A. 16 when the notice of dismissal was filed. Q. A filed the second notice of dismissal. Can he validly do that? A. Yes. 2 Rule 17 on the counterclaim? A. 1? A. . B was summoned on Jan. What is the effect of the second notice of dismissal? A. Because Sec. If ever any dismissal is granted. No. 20. March 10. but with a proper motion that he be allowed to dismiss. It is a dismissal without prejudice except when the notice of dismissal stated that it is with prejudice. He now says “this third complaint is barred by res judicata. Dec. B served on A. But can he still file it? A. Does the court have to the order the dismissal? A. 1998. After a responsive pleading have already been served on the plaintiff or after a motion for summary judgment has already been served on the plaintiff. 1998. 2 Rule 17 even if granted by the court. 22. Supposing the court issued the order saying that the dismissal is without prejudice. B now files a motion to dismiss on the ground of res judicata. B now filed the answer Jan. because it is not for the plaintiff to characterize the effect of the dismissal as provided by law. 15. what would be the effect of the dismissal under Sec. NO. 22. But the dismissal under Sec. A re-filed the same case. what happened now with the complaint filed on Dec. Q. a copy of the answer on Jan. 1 says . the counterclaim maybe litigated in a separate action. 20. 2 Rule 17 is still a dismissal at the instance of the plaintiff. Q. the plaintiff manifest to the court that he desires that the counterclaim be litigated in the same case. B either serve on A his answer or his motion for summary judgment on Dec. 1998 is a dismissal with prejudice. is that order valid? A. No. On Jan. 10. Q. He can no longer dismiss as a matter of right. Example: Q. Q. But there will be no legal objection if the court issues an order not only confirming the dismissal but also an order of dismissal. On Dec. He can dismiss it only upon application of the plaintiff and upon approval by the court of the motion. Yes. 22. 2 Rule 17? A. Q. However. It is always a dismissal with prejudice. Q. It is still a dismissal without prejudice unless the court provides otherwise. 1998.

questioning the order of the RTC. 2 Rule 17. the failure of the plaintiff to comply with this Rules or with the order of the court. The counterclaim is unaffected. When you say “with prejudice”. Q. He should now move that A. he may now be considered as having failed to appear for the pre-trial on the counterclaim. 2 Rule 17. If the complaint therefore no longer exist. it is not dismissed. with respect to the effect of the dismissal on the counterclaim traces its rules to the case of B. This is the concept of dismissal under Sec. if he (B) objects. When may B prosecute his counterclaim in the same case? A. A failed to appear. What would be the effect of a motion of A to dismiss his complaint? A. A cannot only prove it. and the defendant has a counterclaim. the complaint is there. The theory being that. On motion of B. Do not move for the dismissal of the complaint. This was an obiter dictum. 3. the failure of a defendant to appear for a pre-trial may be a ground to declare him as in default with respect to the counterclaim. 2 Rule 20). (This is not the ruling of the court. the court may grant the motion but subject now to the dismissal of the action. the failure of the plaintiff to prosecute for an unreasonably period of time his action. CA ruled that the order was wrong. CA Facts: A. There are three (3) grounds for a dismissal under Sec. The RTC sustained the opposition applying the rule then.” Q. it’s a side issue. the dismissal of the complaint carries with it automatically the dismissal of the counterclaim. So. What is the nature of dismissal under this case? . This is the basis of this rule now that the dismissal under Sec. this should be the procedure to be adopted by the defendant. Simply. Q. Meaning in substance. under the rules and jurisprudence then obtaining. 3 Rule 17? A. the defendant with respect to the counterclaim is A. therefore. So the dilemma cause by this ruling is this… What then would be the remedy of a defendant with respect to his counterclaim if the complaint is dismissed? There can be no way by which the defendant-counterclaimant can prosecute his counterclaim. The plaintiff cannot prove his complaint. B now moved that a date is set on the reception of his evidence on the counterclaim. 2 Rule 17 of the complaint does not operate as a dismissal without prejudice unless either the plaintiff manifest in his motion that the dismissal be with prejudice or that the court orders that the dismissal is with prejudice. Q. So. It is there but it cannot be proven. It is now at the instance either of the defendant or of the court itself. the next move of B now is to prove with his evidence his counterclaim. B has a right to have that counterclaim be litigated and resolved. Where the complaint is dismissed. Where B has a counterclaim. What next should be done by B following the declaration of non-suit of the plaintiff? A. with the complaint still subsisting although it can no longer be proven. there is no longer any basis for the counterclaim to subsist. a compulsory counterclaim derives its life from the complaint. But the complaint subsists. 3 Rule 17: 1. otherwise. If A now be declared as in default with respect to the counterclaim. the counterclaim must be litigated in a separate action. What is the dismissal under Sec. the corporation sued B. there would still be a basis for the counterclaim. On pre-trial.A. After the dismissal of the complaint. that the dismissal of the complaint of A and B could no longer litigate and prove his counterclaim. What is the effect of a non-suit? A. he manifests to the court that he desires that his counterclaim be litigated in the same case. the ponente suggested this remedy. B now elevated the matter to CA. Finance vs. Q. What B should do here is to move that A be declared as in default with respect to the counterclaim. Why? Because A is merely non-suited. So. This time. 2.) Justice Bellosillo. the plaintiff be declared as in default with respect to the counterclaim. but it is there. B. Why is it no longer a matter of right on the part of the plaintiff to file a notice of dismissal after he has been served the answer or a motion for summary judgment? A. it means that the complaint cannot be received or re-filed. If within 15 days from receiving the notice of dismissal. Under the old rule then (Sec. This Sec. (Motion for Hearing on the Counterclaim) A opposed the motion on the ground that. A was declared nonsuited and the complaint dismissed. If the motion is granted on the counterclaim the dismissal of the action is limited to the complaint.43 Q. So that he can prosecute his counterclaim. Q. the dismissal is no longer at the instance of the plaintiff. can litigate the counterclaim either in the same case or B may file in a separate action to enforce the counterclaim. the failure of the plaintiff to appear for hearing on a day during which he is supposed to present his evidence in chief on his complaint. Since A did not appear for the pre-trial. that the plaintiff be declared “non-suited.

A received the notice of hearing. 1998 A was supposed to present his rebuttal evidence. Q. Subsequently. Q. Example: Following the pre-trial. but the trial on the merits is postponed. after the last pleading has already been filed. Q. because his absence amounts merely to a waiver of the presentation of his rebuttal evidence.44 A. or on motion of the defendant. the dismissal is with prejudice. the case was set for hearing on Dec. it is the duty of the plaintiff to move ex parte for a pre-trial to be held. 10. but he had partially produced his evidence. Because let us assume that A did not finish his presentation of his initial evidence in chief. he is supposed to present his evidence in chief. 1998. No. No. the court may dismiss the action. but he did not appear. May his action now be dismissed? A. Under the rule. He does not appear for the hearing on this day without valid reason. It is now the duty of the plaintiff to see to it that after the last pleading has been filed. When there is no compliance with this rule such that neither is the text of the document quoted in the pleading nor a copy of the document is attached to the pleading. 10. Take note that the absence of the plaintiff for a hearing is not in itself a ground for a dismissal under Sec. his initial evidence on his complaint. He does not reset it but still remain unconcern the action may be dismissed. then the court motu proprio may dismiss the action. It depends upon the appreciation of the court according to its peculiar circumstances. No. 3 Rule 17. a copy of that document must always be attached to the pleading or the text of the document should be quoted verbatim in the pleading without the necessity of attaching to the pleading a copy thereof or an action based on an actionable documents. So. he was absent and the motion of the defendant the court ordered that the presentation of the evidences of the plaintiff so he was unable to complete. 3 Rule 17? A. On this day (Dec. How long a period of time should elapse following the filing of the complaint in order that the inaction of the plaintiff to prosecute it may be considered an inaction for an unreasonably long period of time? A. It was the turn of B. Take for instance this actionable documents. Supposing on Dec. 3 Rule 17. this is a plain violation of the rule on actionable documents. for the simple reason that it was no longer his turn to present the evidence in chief on this day. the court can dismiss the action of A. Supposing on the hearing on Dec. Q. He already produced his evidence in chief. it simply says that the complaint be dismissed pursuant to Sec. There is no fix period considered as reasonable. There is no fix period. . So. A dismissal under Sec. no fixed date was set in the order of the court. which will be the basis of that judgment The failure of plaintiff to prosecute for an unreasonably long period of time. The failure of the plaintiff to comply with the rules (Rules of Court) and with the order of the court. A simply waits for the court to set the case for hearing. a trial has been set following a pre-trial. where an action or defense is placed in an actionable document. in some cases of an inaction for a year would be unreasonable. but A was not present on this day. or his evidence in chief. Or. or part of his evidence in chief. Can the action now be dismissed? A. Remember that under Rule 18. They are commands from the court and therefore should not be taken lightly. or to be implemented. the action may be dismissed. 10). 3 Rule 17. His absence on any other hearing is not a ground for dismissal under Sec. 1998 is for the reception of evidence of B or the reception of the rebuttal evidence of A. 10. It is no longer the duty of the clerk of court under the new rules to set the case for pre-trial. Each case must have to be determined according to the peculiar circumstances of the case. 3 Rule 17. what are the penalties? A. may the complaint of A be dismissed under Sec. It is an absence during the hearing during which he is supposed to present his evidence in chief on his complaint. meaning. Under Sec. a pre-trial be held. The complaint cannot be dismissed because this situation presupposes that A already presented his main evidence. You don’t realize how potent a weapon is this in the hands of the court because orders are meant to be carried out.3 Rule 17 is a dismissal with prejudice unless the court provides otherwise. When the dismissal order is not qualified. If the plaintiff does not move to set for pre-trial case following the filing and service of the last pleading and the intervening period between the filing and service of the last pleading and the inaction of the plaintiff and in the view of the court unreasonable. Q. or on motion of B.

Cross-claim 3. None. and the period for filing thereof does not yet expire. the duty to move that the pre-trial be set. One that is authorized by the Rules. RENE NOTES: Two Dismissal Rule * The second notice of dismissal operates as an adjudication on the merits. RULE 18: PRE-TRIAL Example: A B C 1. with the period of filing thereof already expired. an adjudication on the merits. this failure of the plaintiff to comply with the order of the court may give rise to dismissal. 2. it was the duty of the Clerk of Court to set the case for pre-trial upon the filing of the last pleading or the expiration of the period for the filing thereof. What are the things to be considered during the pre-trial? . 3 of Rule 17. the case is now ready for pre-trial. Reply to A’s counterclaim of B answer to answer to counterclaim counterclaim 3. 3. Q. Answer to counterclaim of D D 1. however. Answer to C’s 6. pre-trial is premature. Q. dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action. dismissal is a matter of evidence. Is there any other pleading required to be filed after these pleadings have been filed? A.) 2. This rule is no longer obtains. under Sec. Answer to 5. dismissal is a matter of procedure. Where the last pleading has not yet been filed. SECTION 3 1.also applicable to special proceedings * The court is not required to issue an order of dismissal but is required only to issue an order confirming the fact that the plaintiff dismissed the complaint. Counterclaim 2. before introduction of evidence at trial or hearing SECTION 2 1. -When voluntary dismissal applicable: 1. is now lodged with the plaintiff. If none. Reply to the answer of the counterclaim Q. The rule is this. But this is not a requirement. dismissal is at the instance of the plaintiff. may the pre-trial be held? A. Q. when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim . The rule now is. Answer to C’s third party complaint 3. without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint. Answer to B’s counterclaim answer to crosscross-claim claim 7. Answer to A’s 1. Yes. pre-trial may be held upon the filing of the last pleading without the last pleading having been filed. 3. Answer to B’s third party complaint 2. Under the Old Rule. Counterclaim against A against A 3. Answer to A’s complaint complaint 2. Take note. They are specified in the rules. 2. Before a motion of summary judgment is served 3. dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action. Reply to A’s 5. dismissal is not procured by plaintiff though justified by causes imputable to him. Counterclaim against B 4. What things shall be considered in pre-trial? A. Third party against D (After these. Reply to C’s 6. Answer to B’s against C cross-claim 4. that the order referred to it must be a lawful order. Before a responsive pleading is served 2. Complaint 1. So. Supposing the last pleadings required are not filed.45 So. the pleadings are filed.

however. When the absence of the party is justified or when the absent party is represented by a person who is duly authorized in writing to act for the party for purposes of pre-trial. So. where a party can be absent from a pre-trial and yet the absence will not give rise to the corresponding sanctions? A. X. Atty. but his counsel. they are as follows: • to consider the possibility of a settlement of the case. Q. Let us reverse. Supposing a party is notified of a pre-trial but does not attend the pre-trial. but there is no such settlement.. Atty. Yes. Atty. Example: A vs. . What is the sanction against B? A. the parties must be notified of the pre-trial date. Normally. among the many purposes of a pre-trial is to allow the parties to sit down together and enter into a settlement if they can. A was not present during the pre-trial. Supposing it is B who was absent. If they are represented by a counsel. • to consider the possibility of stipulations of facts to be arrived at. Q. Y was not. provided Atty. was. Q. There is a enumeration in the Code. A was notified of the pre-trial. He may appoint his lawyer. The preliminary purpose of pre-trial is to terminate as soon as possible a case so that if a case can be settled during the pre-trial. will the action now of the plaintiff or defendant for that matter during the pre-trial carry with it a sanction against the absent party? A. Q. Y carries with him a written authority. • stipulations of as to waiver of objections to documentary exhibits that may be presented. Atty. he may commission another person to appear for him for purposes of the pre-trial. No. Q. a lawyer cannot enter a settlement on behalf of their clients unless they are specifically armed with written authority. In the same way if B is not present. Q. It is the absence of the parties. not their respective counsels that may give rise to the imposition of the corresponding sanction against the absent party. Atty. the waiver of objections to the admissibility of exhibits. their respective counsel will be the one to be notified of the pre-trial and it is now the duty of the counsel to notify their respective clients of the pre-trial. This is the reason why they must be present. May there be a situation. his lawyer. So. Q. A was present during the pre-trial. X carries with him a written authority. For instance. there is no need for the parties to be notified. so much the better. his lawyer may appear for him provided that Atty. if A cannot personally appear. Y was present. Notice: For purposes of the pre-trial. Y to act for him. Supposing B was present. No. • the possibility of the rendition of a judgment on the pleading or of a summary judgment • the limitation of the issues. meaning in the absent of defendant B. The plaintiff A will now be allowed to present his evidence ex parte. His complaint may be dismissed with prejudice. B. Why is there a need for the presence of the parties during a pre-trial? A. Is it enough that the person authorized carries with him a written authority in order that he can validly appear for the litigant for purposes of pre-trial? A. but his lawyer does. Substantially. he can appoint a third person. the marking of exhibits. Q. • the marking of the exhibits. What is the sanction against A? A. • and all other matters that may lead to speedy disposition of the case. the limitations of the issues will all contribute towards the early disposition of the case. that stipulations that may be agreed upon. Will the absence of the counsel now entitle B to present his evidence? A. Y was not. only the parties can agree on the settlement. Why? Because in this case. but lawyer. No. Because the written authority must specify these three (3) specific powers of the agent.46 A. will that now allow A to present his evidence? A. Because.

the gist of the proposed testimony of a witness. Can the court immediately following the pre-trial render a summary judgment or a judgment on the pleadings? A. When must the pre-trial brief be filed? A. For instance. the court is required to issue a corresponding pre-trial order. Q. So. The written authority must specify these three (3) authorities.47 So if A appointed Atty. when the plaintiff for instance does not file its pre-trial brief. the authority to enter into stipulations of facts or admission of documents  3. the following are required to be stated in a pre-trial brief: 1. If the defendant does not file his pre-trial brief. in the case of a judgment on the pleading. X or Atty. as the case may be. This is the sanction. The natural consequence of this is… if B has any counterclaim. 2. will be dismissed because of his (B) action. the numbers of witnesses of a party. summary in character or the rendition of a judgment on the pleadings may be proper. Q. If it is the defendant who is absent. there must be a motion filed for the rendition of a judgment. otherwise. Take note that during the pre-trial. So. the pre-trial brief must include the gist of the testimony of a witness or the purpose for which the documents are offered in evidence. Q. 3. So. Y. X as his agent for purposes of pre-trial or if B appoint Atty. the pre-trial brief must have already been filed and served on the adverse party. Q. the plaintiff is allowed to present his evidence ex parte. 4. Pre-trial Brief The rule requires that the parties must file a pre-trial brief. Take note that what the Rules authorized to be done during the pre-trial is only to consider the possibility. There must first be a hearing in accordance with the pertinent rules. Y as his agent for purposes of pre-trial. the pre-trial brief must state the purpose for which the documents are offered. if an agent appears for the plaintiff or a defendant with a written authority. What is the sanction against the failure of a party to file a pre-trial brief? A. the plaintiff will be allowed to present his evidence ex parte. So. the sanction is this his complaint is dismissed with prejudice. the authority to settle the case by way of a compromise.  2. Meaning that. Following the inclusion of a pre-trial. the power of attorney of Atty. What is the sanction against the failure of a party to appear a pre-trial? A. Why? Because there are requirements before a judgment summary in nature or a judgment on the pleadings can be rendered to be complied with. must state the following:  that X or Y is authorized to the following (X for A or Y for B):  1. the purpose of the offer must be specified and that no evidence shall be admitted unless it is formally offered and the purpose of the offer is justified. the failure to file a pre-trial brief may be given the effect the failure of a party to appear for a pre-trial. A pre-trial brief must be filed at least three (3) days before the pre-trial. the sanction is. but the written authority does not specify all these three (3) authorities. his complaint may be dismissed. If it is the plaintiff who is absent and the absence is unjustified or that he has no authorized agent. copies of documents that may be offered for admissions. What is a pre-trial order? What is its importance? . The rule says that. the rendition of a judgment. Rule 132 requires that before a witness testify. Among others . the written authority is incomplete for purposes of pre-trial. Take note also that a pre-trial brief requires certain matters to be specified therein. meaning in the absence of A. the authority to submit the case to other alternative modes of disputes resolution. the court cannot immediately following a pre-trial. this written authority is incomplete and he cannot legally appear for the plaintiff or defendant. at least three (3) days before the pre-trial. Likewise in the case of a summary judgment under Rule 35. not that the court will immediately render a summary judgment or that the court will render a judgment on the pleading. there must be a motion for the rendition of a summary judgment. This is the basis of this requirement. then the counterclaim. render a judgment on the pleading for a judgment summary in nature. This requires that the gist of the testimony of a witness or that copies of documents intended to be submitted in evidence attached to the pre-trial brief is requirement that finds the justification in Rule 132. Q.

In effect. C may come in to the picture as an intervenor. the issue is.need for motion 9. Of course we take into account also another rule that is the rule on amendment of the pleadings to conform to the evidence. so the trial will now be governed in accordance with the pre-trial order. conciliation 3. Q. Where a pre-trial order has already been issued. So that if there are only two (2) issues mentioned in the pre-trial order. These are the exceptions to the rule that unless otherwise specified in the pre-trial order. So.need for motion 10. Can anybody just file a motion for intervention? A. and in the case this issue can be tried 2. no issue can be tried. RENE NOTES: What are considered at pre-trial 1. those stipulations are reflected in the pre-trial order. A says. While this Rule 18 does not expressly state that the pre-trial must specify the issues. Unless. possibility of summary judgment . possibility of obtaining stipulation of facts or admissions of facts 6. Issues that may not have been raised during the pre-trial may be tried during the trial under these two (2) situations : 1. to avoid injustice being committed? A. a party seeks to prove an issue which is not incorporated in the pre-trial order. subject to the amendment of the pleading to conform with the evidence. if necessary to avoid injustice being committed if trial is limited to what is stated in the pre-trial order. reference to a commissioner 8. no party is allowed to introduce evidence on any matter other than on these two (2) issues. submission to alternative modes of dispute resolution a. If there are stipulations in the pre-trial. File a motion for intervention. possibility of judgment of the pleading . that pre-trial order cannot be changed. mediation c. What is the importance of a pre-trial order? A. Rule 19 :Intervention A vs. B says. the presentation of evidence of the party is limited to the issues raised in the pre-trial order. What is the remedy? A. suspending the proceedings 12. B. “I am the owner”. . the adverse party objects but the court finds that the presentation of that merits of the case would best be sub-served by allowing this issue to be proven. amendment to the pleadings 5. he (C) is allowed to intervene in this case. “who is the owner?” However. What is the significance of this rule that the pre-trial order governs the subsequent course of the trial and the pre-trial order cannot be amended unless necessary. this pre-trial order may be modified. possibility of an amicable settlement 2. Rule 30 implies that the pre-trial order must specify the issues. arbitration b. it is a summary of what happened. Q. How can C protect his right over this land? A. The pre-trial order governs the subsequent course of the trial so that. his right will be adversely affected and he has no way of protecting himself because he is “outside the kulambo”. They are litigating for a piece of land. Q. “I am the owner”. any party cannot prove it as a matter of right because they are limited only to prove the issues raised in the pre-trial order. the trial will be limited only to those issues that have been raised in the pre-trial order. However. as a matter of fact he conforms. a party tries the issue and the other does not object. dismissal of action 11.48 A. claims that he is the owner of the lot in question. Q. No. simplification of the issues 4. Why? Because under Rule 30. If there is a third issue. a third person. The pre-trial order is a resumé of what transpired during the pre-trial. Q. other matters that may aid in the prompt disposition of the action * The pre-trial and trial on the merits of the case must be held on a separate dates. limitation of the number of witnesses 7.

Or he may file an answer in intervention if he joins B as against A. then the court can hear the case. then the court may grant the motion for intervention. What may the pleading (intervention) that he (C) can file? A. even before they receive the order granting the motion for intervention. meaning. He may be interested in the success of B or he may have an interest adverse to A. Whatever pleading he will file. If the answer to the second question is “yes”. did not file formally a motion to withdraw the complaint. In an intervention and an independent action in the sense that if the complaint is dismissed. Q. he will file an answer in intervention. by furnishing them a copy. How will A and B know what the allegations are in the complaint in intervention since they are not summoned under Rule 14 with respect to the complaint in intervention? A. This means to say therefore. Q. Remember what we said earlier when C filed the motion for intervention. At any time before a judgment has been rendered in the case. It may be a pleading in intervention called a “complaint in intervention”. Why did this Matictic people want to file an intervention motion? Because through this lot sought to be appropriated was a road. Y and Z for expropriation of lot. Yes. may the right of C. Q. The party intervening may have an interest against the plaintiff in this case. the intervention. the mayor of Norzagaray manifested his intention to withdraw the complaint. So. Q. But they had to pay the owners passage fee. They must file the answer to the complaint in intervention within fifteen (15) days from receipt of the order of the court admitting the motion for intervention. then the court may deny the motion. Why? Because the municipality was unable to procure the presidential approval of the exercise of the municipality of the right to expropriate. and therefore he has an interest against for A and B or he may be so situated that any disposition of the property in the hands of the court affect him.49 Q. Expropriation case Municipality of Norzagaray filed an action against X. Because of . that pleading must be attached to the motion for intervention. So. then the court may deny the motion for intervention. So. (Unanswered… Judge Lagui became ill…) When he returned… We have two (2) cases of this: 1. will the intervention delay the case between A and B? 2. he can now intervene in this case. attached to the motion was already a copy of the complaint in intervention. If the intervention filed by C is a complaint in intervention require an answer? A. having heard of the intention of the mayor to withdraw filed now an intervention motion. When will C in our example file a motion for intervention? A. If he (C) joins A against B or if he has an interest against both A and B. The people of certain barrio of Norzagaray. The law at that time require a presidential approval on the exercise by the municipality of the right to expropriate. Will the court grant or deny the motion for intervention? A. when a complaint in intervention or an answer in intervention. The Mayor however. It was served to them by C. the intervention will not delay the right of C cannot be protected in another proceeding. The answer depends on the answer to the following questions: 1. Q. After the intervention is allowed. the complaint in intervention may likewise be dismissed or is a complaint in intervention one that can be treated independently of the main case so that regardless of the outcome of the main case. the intervention will delay the disposition of the case. the motion for intervention is accompanied either by the complaint in intervention or by the answer in intervention. Within what period must they file? A. What would be the justification for an intervention? A. Q. the intervention remains unaffected? A. While this case was pending. the case is between A and B and thereafter. A and B if they are the defendants in the intervention may file an answer to the complaint in intervention. which the people of Matictic used in going to the highway. C protected in a proceeding other than in this case between A and B? If the answer to the first question is “yes”. that C will notify both A and B of the hearing of this motion for intervention. The motion for intervention will have to be heard in accordance with Rule 15 (Motions). meaning. So that he can protect whatever rights he alleges he has. Q. Matictic. Remember that the complaint in intervention is not served on A and B by summons. it was to their interest therefore that this property be expropriated so that they would be relieved of the burden of paying. so he will file a complaint in intervention. A and B already have with them the copy of the complaint in intervention. If the answer to both questions is “no”. This will now be heard by the court. So.

The matter reached the SC. So with these. it would seem that it’s no longer correct. Reason: Since A was already allowed to intervene. it is like a three-cornered flight like that of “KARAMBOLA. In the Matictic case. Later on Y questioned the propriety of the court having authorized the amendment of the complaint in intervention of A. But in the case of Metrobank. In the meantime. The Rule is clear. Q. it can be determined independently of the main case. On this building where installed were aircon units which subject of a chattel mortgage in favor of Y. they have no right whatsoever that could be affected by the dismissal. Why? Because the court never ruled on the intervention. With the dismissal of the case. tried to reconcile the two. when the complaint was dismissed. Y now filed a suit against C for replevin for the recovery of this aircon units claiming that he (Y) furnished the aircon units to X. one who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof INTERVENTION * an ancillary action. In other words. In this Metrobank case. A filed a motion for intervention on the ground that if he (A) supplied X the money with which X acquired these aircon units. the barrio people of Matictic never became intervenors. one who has interest against both parties d. because in the first. This contention was overruled. this intervention of A can no longer subsist on the theory that an intervention is merely an adjunct of the main case. Years later… another case involving the foreclosure of mortgages. an agreement or a contract binds only parties thereto. one who has legal interest in the matter in litigation b. And he came out with a conclusion that actually there is no contradiction between the two. and which X gave Y by way of chattel mortgage. the court motu proprio dismissed the complaint for failure to prosecute and of course for lack of presidential authority. the intervention would likewise be dismissed. it would seem that as long as an intervention has been allowed. Apparently. Q. This is how Justice Regalado. they are contradictory. Issue: Whether the intervention of Matictic people could still survive because of the dismissal. The matter reached the SC. And so. This building was eventually sold to C. Y and C entered into an amicable settlement. the dismissal of the main complaint notwithstanding. the right of the intervenor could no longer be adversely affected by whatever agreement the original parties have because it (Metrobank) was not a party to the agreement. Rule: The intervention could no longer be entertained because of the dismissal of the case. He dismissed the case outrightly. So. By reason of this settlement. Their agreement was binding only on themselves. Issue: Whether the trial court was correct in still maintaining this intervention of A notwithstanding the dismissal. and therefore. This is the theory. Q. which in whole or in part. the court will hear the case of A and B and receive the evidence of the parties. of real and chattel. While this case was pending. there was as yet no intervention to speak of. is not disputed by the other parties to . then the court will also receive the evidence of C and thereafter decide the case. this complaint of Y was dismissed. the intervention could be maintained. the intervention could no longer be maintained. there was already an intervention allowed at the time dismissal of the main complaint was effected. the intervention of A still continue even if after the main case has already been dismissed. The dismissal took place before the court could rule on this motion for intervention. But are they in fact conflicting? A. So. * proper in any of the four situations mentioned in this Rule.” RENE NOTES: Who may intervene a. X obtained various loans from different mortgages and to guarantee the payment. Going back to the last example… where C is interested. How did he reconcile? A. SC said that this dismissal of the complaint of Y against C did not affect at all the intervention of A. INTERPLEADER * an original action * presupposes that plaintiff has no interest in the subject matter of the action or has an interest therein. with the dismissal of the complaint. Among the many assets of X subject of the mortgages was a building (GEA Building). he acquired a right to participate and therefore. one who has legal interest in the success of either parties c. it did not bind A. that right cannot be adversely affected by the agreement between Y and C. The original comment on this rule is that a motion for intervention is merely an auxiliary proceeding giving risk to the implication that if the main case of which it is merely an auxiliary. ceases to exist because of the dismissal. In the second. The motion for intervention was granted and so A now filed the complaint in intervention which as a matter of fact was amended later on. X constituted real estate mortgages and chattel mortgages. What do you notice upon these two (2) cases? A.50 this. our commentator in Remedial Law. its heirs and successors in interest.

attendance fee and * does not need tender of kilometrage and other fees reasonable cost of production fee SUBPOENA AD TESTIFICANDUM – a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action. from sunset to sunrise. The court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure. IF the court should determine that this disobedience was willful and without just cause. or for the taking of his deposition. c. no tender of witness fee or kilometrage Consequences of an Unjustifiable refusal to obey subpoena: a. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines * The clerk of court shall issue under the authority of the judge. if the witness is not bound thereby 2. you compute this 15-day period from Dec. 1999. Example: A vs. Under the provisions of Article 13 of the New Civil Code. B. “exclude the first and include the last” rule. It is reasonable and oppressive. * No prisoner sentenced to DEATH. days or nights. Court before whom the witness is required to attend b. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body d. by the rules. SUBPOENA DUCES TECUM – a process directed to a person requiring him to bring with him books.51 * defendants are already original parties to the pending suit the action * defendants are being sued precisely to implead them. but Jan. documents or other things under his control. as thus computed. they shall be computed by the number of days. Subpoena duces tecum may be quashed upon proof that: a. months. B has a period of fifteen (15) days from service of summons on him. or at any investigation conducted by competent authority. 17. the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. the time shall not run until the next working day. reclusion perpetua or life improsonment shall be brought out of a penal institution UNLESS authorized by the Supreme Court. 1999. falls on a Saturday. and the last day included. The person asking for the subpoena does not advance the cost of production of the articles desired. b. 1999. or by an order of the court. Under Sec. Who may issue subpoenas: a. Subpoena ad testificandum may be quashed: 1. The refusal to obey the subpoena shall be deemed a contempt of the court issuing it. days. Rule 21: SUBPOENA SUBPOENA SUMMONS * an order to appear and testify or to produce books and * order to answer complaint documents * may be served to a non-party * served on the defendant * needs tender of kilometrage. If the last day of the period. A was summoned Dec. which they respectively have. so the 15-day period . Court of the place where the deposition is to be taken c. So you will have up to Dec. But Dec. Just know what Article 13 of the Civil Code says on the matter. it shall be understood that years are of three hundred sixty five days each. so the next day will be Jan. and nights. 31 is usually a legal holiday. Sec. a Sunday or a legal holiday. Rule 22:Computation of time Rule 22 refers to the computation of a period fixed by the law. the first day shall be excluded. 1. months of thirty days. of twenty-four hours. The articles sought to be produced do not appear prima facie to be relevant to the issues. b. 1 is also a holiday. 1 of Rule 11. In computing a period. or by order of the court. Article 13 of the New Civil Code When the law speak of years. 16. 31. If months are designated by their name. 1 says: In computing any period of time prescribed or allowed by these Rules. or by any applicable statute.

So if the court sits in Manila. This is the cause of the cessation of the stopping of the running. assuming that Jan.. this starts to run March 11. 20. the running must resume. What is the effect of the filing on Jan. 7. the day of the act or event from which the period starts to run is excluded. 1999. Let us assume however that B filed on Jan. B has a period ending Jan. It will start to run. or a legal holiday in the place where the court sits. 2 is not a Saturday or is not a Sunday or is not a legal holiday in the place where the court sits. Q. 3 and ending Jan. Example: B was summoned Jan. but in Q. Why? Because it started but when the motion to dismiss was filed. a 5-day period has already elapsed. 26. there is now an expressed provision in the rules that when the last day of performance is a Saturday. the date of performance is moved to the next working day.17. the running was interrupted but when the motion to dismiss was denied. there were ten (10) days remaining because between Jan. and the last day in Manila is Dec. “this allowable period shall start to run the day following the receipt of the notice of the cessation of the period. a motion to dismiss. 2 Rule 22 Should an act be done which effectively interrupts the running of the period. So.C. What does this mean? (This provision is very complicated. Q. In computing a period. 17? A. the day of performance here is the last day. No. The day of the act that caused the interruption shall be included in the computation of the period .” So. We say that when the order of denial the period of 10-day starts to run.” (The committee wanted to be different. 1 of Rule 11. Under Sec. 17. 13 of NCC. 25.” Where an act effectively interrupts the running of a period. a Sunday. 1 Rule 11. probably) Conclusion: Rule 22 did not actually amend Art. There was a period of ten (10) days remaining. 1999. “Exclude the first. This is the day of performance (Jan. Take note that the legal holiday referred to here is the legal holiday in the place where the court sits. 1 of Rule 22 say? A. Since there were five (5) days of the 15-day period under Sec. 7. Let us assume that B received the order of denial on March 10. 24. When will this “allowable period” start to run? A. the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. this allowable period starts to run the day following the receipt. Sec. What is the effect of the denial of the motion to dismiss on the remaining period within which to file the answer? A. What is the allowable period that starts to run after this order denying the motion to dismiss was issued? A. (Hinto! …tapos… Takbo!) Q. the allowable period shall start to run the day following the receipt of the notice of the cessation of the cause thereof. 2. This is what actually Article 13 of Civil Code is saying: “The day of performance is included. It will resume its running. 1999 (10 days starting March 11 is March 21. What does Sec. Q. It suspended the running of the period. in our example. 2 Rule 22. This is still an application of Article 13 which is “exclude the first. include the last. The filing of the answer. What are the modes of discovery? . which is not a holiday. Will the last day of performance be moved to the next working day? A. which is in Manila. Q. 27 and 28. 1999. 20 is a holiday. because the holiday is not in the place where the court sits. 1999). On the assumption that this motion to dismiss is denied. 1999 on the running of this period starting Jan. But under Article 13. 7. Dec. Q.52 will expire on the following day. This10-day period remaining of the original 15-day period is the so-called “allowable period” referred to in Sec. The law says. include the last day. Q. Q. 1999. Modes of Discovery Rules 23. What is “the day of performance” here? A. 1999). 2 and Jan. except in one respect.) A. Why? What interrupts it? The period was interrupted by this order March 10. 1999.” Q.

if there was. A may be able to know facts that B may have. Why? Very few avail of it. Example: A vs.S. all that he could know in so far as A is concerned is what appears in the complaint or pleading of A. So. So. to compel the resort to modes of discovery. B may be able to know facts that A has. Yes. Actually therefore. because if these rules on discovery were not allowed. In the case of B. This is why. what will this notice to take deposition contain? A. So. with the rules on request for admission. While the case is pending in court. Q. they were never appreciated. so that when the trial proceeds. so that even before trial A will already know what X will say so. the plaintiff and B. Is it necessary for A to obtain leave of court in order that he can take the deposition of X? A. a party to a case already knows what the adverse party may have. If you were A now. these modes of discovery are remedies the law allows a party to a case to avail of for the purpose of getting in advance knowledge of facts related to a case which the adverse party may have knowledge of so that when trial proceeds. The notice will be worded this way: To B. Supposing it is B who suspects that A will present Y as his witness.53 A. the defendant. there are certain sanctions that the court may impose on a party who fails to comply with the rules written interrogatories. for decades. So that when the trial comes. how will you proceed taking the deposition of X? A. all that A would normally know about the case in so far as he is concerned is what appears in the answer or pleading of B. if A and B are litigants. can B also take the deposition of Y? A. what do we conclude on from this? A. B (They are litigating a piece of land) A suspects that B may present as his (B) witness X against him (A). So. then A must file first a motion asking for leave to take the deposition of X. a party to a case would know nothing about the adverse party’s case except those which are alleged in the pleading. As the term suggests. A can now take the deposition of X without leave of court. Q. If A now were to take the deposition of X. Greetings… . these modes of discovery are intended to allow a party to discover what the other party has. each party already know what the other party has. This is the concept of discovery. no leave of court. when he will be called upon to testify? A. defendant. Let us assume that A would want to take the deposition of X. Q. A can resort to Rule 23 (Deposition Pending Action) Q. But with the modes of discovery we mentioned. What is the remedy available to A. A would want to know in advance what X is going to say.S. before trial. If an answer has already been served on A . the party may now discover facts either from the adverse party or from any other persons. This contemplates a situation where a case is already pending in court. there is nothing that is not known to the adverse party. The right to take a deposition belongs to both parties. This is how extensively these remedies are utilized in U. B could already know all the facts about A. Q. While these rules have been with us. Q. and therefore X may not answer that. The rule is: A can take deposition of X on any matter related to the claim of A or related to the defense of B. whether leave of court is required on that would depend on an answer to a question “was an answer already serve on the plaintiff?” If there was none. Rule 23: Deposition Pending Action This is denominated as Deposition Pending Action. So. The first is for A to send B a notice to take depositions. what can be the subject matter of the inquiries made by A? A. A could already know all the facts about A. provided these matters are not privilege in character . The rule is this: If no answer has as yet been served on A. they cannot be the subject of inquiry. The deposition may either be on oral examination or on written interrogations. leave of court is required. that where the matter sought to be inquired by A from X are privilege. This practice is widely used in U. It does not belong only to one. Q. Meaning. rules of relevant facts would be limited to what is disclosed only in the pleadings. if A.

then X may again be questioned by A or by A’s lawyer. After he (A) finished the re-direct examination. the plaintiff A can proceed with the deposition of X as long as B was notified. is not allowed to rule on the objection. we called this word examination the re-cross examination. the deposition officer or a notary public or a judge for that matter will have to indicate in the records the reason why X changed his answers. He may appear if he wants to. He may not sign if. Q.C.. So. he may appear if he likes. what shall be done now? A. May B be allowed nevertheless to question X after X finished his direct testimony? A. is the same examination that may be conducted as if he were actually before the court in which the case is pending. the deposition officer forwards now the records of the deposition taking to the court where the case is pending. a question appears to be objectionable to B. The testimony of X as stenographically recorded during the proceedings. C. that is therefore. Q. Can he (B’s counsel) object? A. Let us assume that the deposition is going on. After the signing of the transcript or if the deponent refused to sign. if he has any. 1999 in the office of the notary public Z? A. In examination of “deponent. Q. If B were present or his lawyer is present. Yes. Yes. Its no problem because of personally appearing in court. In other words. then he can change them out in this case. Q. must have to sign the transcript. He may disappear if he wants to. X in our example.54 Pls. for instance. the notary public or whoever is the deposition officer. 1999 at 8:00 AM? A. let’s say he agree that there is no need. the proceedings are concluded. he will simply record the objection. on Jan. Unlike the judge. X may again be examined by B or his (B’s) lawyer. B can send his written questions to the notary public. What do you notice? A. This is the second examination called the re-direct examination. X and the lawyer of A. a motion for the issuance of subpoena to X so that X will be subpoena. In any event when X refuses or fails to sign. 10. But how about if B is not there? A. What will happen on Jan. Q. Q. After its transcription. How will A compel the presence of X before the notary public on Jan. Q. X testified in the absence of B or the counsel of B. Q. the notary public or the judge who acted as the deposition officer. If there were exhibits presented during the deposition taking the deposition officer should also forward it to the court. Q. Q. the transcript is shown to X for him to read or for that transcript to be read to him. will now be transcribed. Whatever his wishes are. 10. Q. A can file with the court in Q. The notary public will now read these questions to X one by one and X will answer them also one by one. The rule in a subpoena to a witness in deposition taking may be issued by the court in the place where his deposition is taken. Is there a duty on the part of the deposition officer to notify the parties of the fact that he has forwarded the records to the court? . 10. Be notified that the undersigned plaintiff A will take deposition on oral examination of X before the notary public Z at his office at 123 Timog Ave. I will now forward to the court the entire records. 1999 at 8:00 AM Signed A B received the notice. Let us assume in our example that B received the notice but did not appear either personally or through counsel. rule on the objections? A. X may sign or may not sign the transcripts. A will now question X on anything related to the claim of A or related to the defense of B provided they are not privileges. Q. or X himself for any reason may refuse to sign. after the certification by the notary public or the deposition officer. 10. 1999 at 8:00 AM? A. If there are parts in the transcript which he desires to change. Q. How about B? A. No. he may not appear if he does not like. So that in our example. or A will appear before the notary public. Will the notary public however. Following the conclusion of examination of X. What happens on Jan. How about B? A. Let us assume also that B’s counsel is present while A’s counsel is questioning X. B or the lawyer can cross-examine X. if I were the deposition officer.

Are the parties entitled to receive a copy of the transcript of the testimony of the witness. The transcript will be given to him to read or to be read to him. 4 Rule 23. This is now furnished to B. This is how it will be done: B. X is there now… he is now sworn by the notary public or the judge. If B desires. the deposition officer will forward to the clerk of court where the case is pending the entire records of the case. following his receipt of the cross-interrogatories? A. Thereafter. Then X will answer. Within three (3) days of his (B) receipt of the re-direct interrogatories. A can take also the deposition of X by written interrogations. Q. Signed by A Q. This is what the notary public or the judge will do: He will now take the first set. Q. if he wants to make corrections. A now has with him the cross-examination interrogatories of B. the deposition officer or notary public will read one-by-one the questions and X will answer them one-by-one. Q. So attached now to the notice is a copy of the direct interrogatories by A. What will the notary public or the judge do? A. What are these “cross-interrogatories”? A. It will be used in accordance with Sec. You call this the “direct interrogatories”. So. if he wants to sign. provided he pays for the cost thereof. A may serve on B another set of interrogatories. What is this “direct written interrogatories”? A. Under the Rule.55 A. he may within ten (10) days from his receipt of the notice and the direct interrogatories also furnish A a so-called cross-interrogatories. The proceeding after X finished answering the four (4) sets of interrogatories will be the same as if X testified on oral interrogatories. Within five (5) days from his receipt of the cross-interrogatories. He will sign. This is how he deposition is taken. what do you notice now? A. This means to say that the testimonies of X will be transcribed. This would have been the question which A would ask X have had been personally questioned by A. Cross-Interrogatories (B) 3. . What is he (B) authorized to do following his receipt of the notice and of the direct interrogatories? A. B may serve on A a set of questions again. What is A now allow to do. in the example of X? (Is A entitled to receive a copy? Is B entitled to receive a copy of the branch record?) A. How will this notice to take deposition of X by written interrogatories be worded? A. He will now proceed to the deposition officer together with X. So. Q. They are the questions. you called the re-cross interrogatories. Yes. the so-called directinterrogatories. which B would have asked to be answered by X on cross-examination. Re-Direct Interrogatories (A) 4. He will give this cross-interrogatories to A. The law requires that the deposition officer must notify the parties of the fact that he already sent the copies of the deposition record to the court. 1 to X. defendant Greetings! You are hereby notified that the undersigned plaintiff A will take the deposition of X by means of written interrogatories. Introduce all of it which is relevant to the part introduced and any party may introduce any other part. Q. A will serve on B a copy of his re-direct interrogatories. Attached herewith is the direct written interrogatories. Q. A has with him all sets of interrogatories: 1. the so-called re-direct interrogatories. What is the right of B upon receipt of this re-direct interrogatories of A? A. It is that document that X has asked all the questions on direct examination. This is only by way of deposition through oral examination. How would this be done? A. He will now read question no. Direct-Interrogatories (A) 2. Q. Q. Q. This is what the notary public will do. Yes. What for? So that the notary public will now question X or the notary public or the judge who acted as a deposition officer. Re-Cross Interrogatories (B) Q. Q. So. So. A takes the deposition of X by written interrogations. What shall A do with all these sets of interrogatories? A. How will the deposition of X be used? A. He will make corrections.

and d. or 4. “ a party who takes the deposition of another does not make that party his witness. 4 of Rule 23. only under the conditions mentioned in Sec. unless it appears that his absence was procured by the party offering the deposition. Let us assume that B presented as his witness X. Take note that under Sec. 1. to allow the deposition to be used. I will now present his deposition. or imprisonment. “Your Honor. A and B are supposed to present their evidence. sickness. he cannot do that unless the exceptions will apply (Sec. If only part of the deposition is offered in evidence by a party. whether or not a party. he already had given his deposition.” Ruling: “The manifestation is out-of-order. X is a witness of A for purposes of that deposition. my witness is X.” So.” The deposition of a party may be used by anyone. except for purposes under Sec. Q. Q. the deposition of X was taken by A.56 Let us assume that the deposition of X was already taken. Yes. Your Honor. the only use of deposition of X in the hands of A is to impeach X. the law is clear. Q. As long as a deponent is alive and kicking. This was already received in the clerk of court.” Court: “Right. infirmity. he does not know Rule 23. or 2. Exhibit A cannot be used. or 5. that such exceptional circumstances exist as to make it desirable. On this day (trial). A said. 15. Q. Is the observation of the court correct? A. For what use will the deposition of X be utilized? A. 4 Rule 23). partnership or association which is a party may be used by any adverse party for any purpose. But as long as he is alive. upon application and notice. A does not know Rule 23. that the witness is unable to attend or testify because of age. A can use that deposition of X but only for one purpose to impeach X. he cannot use his deposition. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. it can be done. that the witness is dead. which I now asked to be marked as exhibit A. in lieu of his personally testifying in court. So. X is not a witness for purposes of the trial of the merits of the case. Honor. Court: “Why?” B: “Your.” Q. in open court. Can that be done? A. or 3. 1998.(a). His deposition is now here in court. Sec. The deposition of a witness. You’re correct. in accordance with anyone of the following provisions: a. How may this deposition of X be utilized by A? A. 4 of Rule 23 as evidence. Why? Because a deposition is used only in anticipation of the inability of the deponent to testify in court . may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof. What is impeachment? . in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally. or managing agent of a public or private corporation. any part or all of a deposition. Why? Because the rule says. In our example. that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing or is out of the Philippines. Yes. 1998. No. “Any deposition may be used by any party for the purpose of contracting or impeaching the testimony of deponent as witness. b. may be used by any party for any purpose if the court finds: 1. this deposition can be used. Can A utilize the contents of the deposition of X to prove the truth of what is stated there? A. Notwithstanding that he (A) claimed that he has been a lawyer for fifty (50) years. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. so far as admissible under the rules of evidence. I will not present X anymore. The deposition of a party or of any one who at the time of taking the deposition was an officer. the adverse party may require him to utilize X as his witness. Trial is on Dec. He is now a witness of B. 4 Rule 23 At the trial or upon the hearing of a motion or an interlocutory proceeding. c. Q. director. In our premise. Dec. nothing more.” Court: “What does B said on the manifestation of A? B: Your Honor. 4 of Rule 23 par. his deposition cannot be used in court.

“for impeaching and any other purposes. Can A take the deposition of his adverse party? A. for what use may this deposition of B be taken? A. between the use of a deposition of an ordinary witness and the use of the deposition of a party to a case? A. 3. A does not concede that the dog is blue. that a witness has been previously convicted of a crime. for any and all other purposes.” B said. he cannot be compelled to appear and so his deposition may be used to prove the truth of what is stated there or if X cannot be subpoena unless the failure to subpoena X was the result of the manipulation on the part of A himself (if he is the one presenting) or there are some circumstances that may be established which would make the presentation of the deposition justified.“The dog is blue. Q. may a deposition be used. He simply said that X is telling a lie. This would be favorable to him. Q. he is not obliged to obey the summons. Q. Q. 4 (C) says: …the deposition of a witness. not only for purposes of impeachment. “This land used to be the property of C. In our example. that can be done. 1. This is usable only in the hands of A to contradict the statement of X in court that the dog is red. if there is any. he said the dog of B is blue. A may introduce this deposition even if B is alive. Under the rules of summons. A now examines him on cross-examination. or if alive. Impeachment is the process whereby a party tries to make evidence against him worthless by showing that the witness or the evidence is not credible. may be used by any party for any purpose if the court finds: . 2. But by this showing. but B himself. Supposing the issue is: “What is the color of the dog of B?” A said. and (2) for any other purpose.” So. he said. Rule 23 Sec. “The dog is red. 1) when X is already dead. How can A use the deposition of B? A. Q. What then is the difference. integrity and truth is bad. The rule says. Let us assume in our example that the deponent is no longer X. a party who resides in a place more than 100 km away from the court to which he is summoned. there is something said in the deposition of B favorable to A. the father of A. this statement may be favorable to A because it will give credence to his claim that he inherited this lot from C. Can A introduce in evidence this deposition of B even if he (B) is alive? A.” Let us assume now that B testified. cannot testify 2) he lives in a place more than 100 km away from the court where he is supposed to be summoned to testify. Yes. the only use by A of the deposition of X is to show that X is not a credible witness. When. by evidence that the reputation of the witness for honesty. by evidence that a witness has given statements contrary to what he said in court prior inconsistent statements.” X said while testifying for B. 4. Remember how a witness may be impeached or recall by a party against whom the evidence is given may impeached a witness giving the evidence by any of the following means: 1. it is used only for one purpose. our proponent here is X. but for any other purpose? A. This is only to show that X is not telling the truth. When can this deposition of X be introduced as evidence to prove the truth of what is stated there? A. Supposing in the deposition of B. whether or not a party. however. In this case. 2. by contrary evidence. No. When can the deposition of witness either an ordinary witness or a party to a case to be used to prove the truth of what is said there? In other words. In the hands of A. X resides more than 100 km away from the court room. for two (2) purposes: (1) to impeach. Yes. In a case of a party. that is to impeach.” But in his deposition. For instance. Q. Q.” Q.57 A. “The dog of B is red. Will this statement now prove that the dog is blue and that there A can introduce that in evidence to prove that the dog is blue? A. In the case of an ordinary witness. So in this case. to impeach B.

the plaintiff wanted to take the testimony of his witness residing in Taiwan. Reyes (1988). A now will file a motion in court asking that letters rogatory be issued for the purpose of having the testimony of X taken on written interrogatories. as we do not now have.e. Legation or the consul general or the consul or a vice consul or any other officer in the foreign service of the Republic of the Philippines in the US. deposition may be used under any of these circumstances: Our example here presupposes that the witness is in the Philippines. Supposing now. for obvious reason. Dasmariñas Garments vs. In one case. So. This letters rogatory are letters to the court. Q. So. sickness. The deposition can be done. He will file a motion in court asking that the commissioner be authorized to receive the testimony of X. or 2. the deposition of X may be taken. to allow the deposition to be used. What is meant by letters rogatory? A. that such exceptional circumstances exist as to make it desirable. and there is only one China i. Q. Supposing we have no consular officers. the Chief Justice of Timbuktu. Why? Because at that time we did not have. (witness of Dasmariñas). according to Red China. We shall render to you the same assistance when requested. let’s say. How can the deposition of X be taken in Timbuktu? A. or 3. or we have no embassy in the US. The court will name the particular person who will take the deposition in the US of X. We have no nothing. Example: A wants to take the deposition of X in Timbuktu. the defendant elevated the matter to the SC. we did not have an embassy or a consular office in Taiwan. By letters rogatory. But we have an office there euphemistically called MECO. it can be done. any diplomatic relation with Taiwan as we recognize the One-China Policy. We do not have diplomatic relation there. the SC sustained the ruling of the Manila Trial Court. since we have diplomatic relation with Red China. Taiwan is a mere province of. How may the deposition of X be taken by the so-called commission? How will A go about securities commission? A. or 4. that the witness resides at a distance more than 100 km away from the trial or hearing or is out of the Philippines. the deposition cannot be taken by the commissioner unless there is an authority from the court. In the case of a commission. Letters Rogatory Q. we cannot. Dasmariñas filed a motion asking that the deposition of his witness be taken. Procedure: A will give notice to B that he will take a deposition of X in the US. infirmity or imprisonment. The deposition of X must be taken before the Secretary of the Embassy. will now address a letter to.58 1. as distinguished from a situation where we have a consular officer or when we have diplomatic relations. Can that be done? A. So. Taiwan as another state. say RTC of Manila. Issue: Whether the Manila court can order the MECO to take the deposition of X. Red China. he filed an application with the trial court in Manila where the case was pending for the appointment of the commissioner. and… Under this section. Greetings!!! You are hereby requested to take the deposition or written interrogatories of X who lives within your territorial jurisdiction. . of Red China. unless it appears that his absence was procured by the party offering the deposition. recognize. What is letters rogatory? A. The court where the case is pending. This is supposed to be an office taking charge of the commercial interest of the Philippines in Taiwan. So. in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. Q. Held: Under this rule (Rule 23). We do not have any consular office there. even though the witness is alive. that the witness is dead. upon application and notice. even without prior leave of court. or 5. where the deposition of a witness have been taken before those persons already named. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. Attached are the interrogatories. The Manila Trial Court granted the motion. A wants to take the deposition of X who is in the US. Q. So. The court grants the motion. Yes. that the witness is unable to attend or testify because of age. In our example. So.

Why? They first put up a bamboo fence. But I don’t have the money right now. B resides in Batanes. What is the remedy? A. How can I file a case?” So. This is how Rule 23 works! RENE NOTES: Persons before whom depositions may be taken: . So. Batanes. and X is already gone. into the property of A. or if he is alive. A said. Q. requesting the court of the place to take the deposition of X. here comes a typhoon. What is the remedy? So that when the case shall have been filed. A lives in Sulu. How will this preservation be made? A. consul general. Another typhoon truck. this time intruding another 1 ft. consul . he is waiting for B to file a case. A Sulu B Batanes Q. there will be a time when he will no longer have any inch of land to stay on. that testimony of X can still be used as evidence? (because it was preserved). vice consul. A and B are neighbors. (But A is from Sulu? Never mind that is what the law says.59 Letters rogatory is a letter from one court to another court. he may already be six ft. What is the remedy now available to A. By that time he will already be fenced out of the property.Within the Philippines: (a) judge (b) notary public (c) any person authorized to administer oaths. But B is not going to file a case because he is still waiting for the many typhoons to come. so that his testimony or the testimony of X will be preserved? A. B now puts up this fence but intrudes 1 ft. under the ground. or consular agent of the phil.) Q. But who will file the case? A. the typhoon went down. The only trouble is. MTC? RTC? . B again put up another fence. before a secretary of embassy or legation. A anticipates that if all these expected typhoon will materialize. He will now file a case against B in the places where he (B) resides i. under the ground. Q. “I may file the case. as stipulated by the parties in writing . his expected witness X may also be already six ft. To file a case. (b) before such person or officer as may be appointed by commission or letters rogatory (c) any person authorized to administer oaths. B has a piece of land too joining A’s lot. (Depositions in Perpetuam Rei Memoriam ) Example: A has a piece of land. he cannot compel B to file a case. So. A and B did not believe that good fences makes good divide.Outside the Philippines (a) on notice. Imagine how many typhoons we have in one year. he expects that by that time a case is filed. Q. either by himself against B or by B against himself. as stipulated by the parties in writing COMMISSION LETTERS ROGATORY * issued to a non-judicial foreign officer who will * issued to the appropriate judicial officer of the foreign directly take the testimony country who will direct somebody in said foreign country to take down testimony * applicable rules of procedure are those of the * applicable rules of procedure are those of foreign court requesting court requested to act * resorted to IF permission of the foreign country is * resorted to IF the execution of the commission is given refused in the foreign country * leave of court is not necessary * leave of court is necessary Rule 24: Depositions before Action A party before any action has been instituted in court may take the deposition of himself or of a third person for the purpose of preserving that testimony for use in the event a case would later be filed . In the meantime. Their respective properties are divided by fence. Q. In what court will this case be filed by A? A.e. It simply says “court”. So. The rule does not say.

1 of Rule 23 applies to Sec. the testimony of any person. by deposition upon oral . This was only taken in anticipation that a case may later on be filed. What are interrogatories? (written) A. Q. it may be used in any action involving the same subject matter subsequently brought. There is nothing said. How will B know that a petition against him has been filed? A. to be used at the trial only in case the deponent is not available. Rule 25: Written Interrogatories to Parties Q. He would state in the petition the facts which he wants to prove. So while the rule does not specifically state the summons should be issued and served in accordance with Rule 15. * Depositions under the Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof. Well. 4 of Rule 23 will apply in so far as the deposition of A or his witness is concerned. Q. an action incapable of pecuniary estimation is within the jurisdiction of the RTC. Q. The rule says that the court will hear the petition and if granting the petition will avoid failure of justice court will grant the petition. This is how Rule 24 works. may be taken at the instance of any party. * If deposition is taken under this Rule. The rule does not say that B or A will be allowed to present evidence. 1 of Rule 23 By leave of court after jurisdiction has been obtained over the defendant or over property which is the subject of the action.60 A. Well principally A will allege the reason why he wants his testimony or that of his witness X be preserved. Q. Q. Is there an oral interrogatories? A. In the same manner a deposition is taken under Rule 23. His prayer is that the court may authorize him to take his deposition or to take the deposition of X. Questions (Nakasulat) Q. What is his prayer? A. Why do you call it “deposition before action”? A. Look at the provision. The court in granting the petition will now authorize A to take his deposition or to take the deposition of X or any witness for that matter in accordance with the rule either by means of oral pending appeal. The hearing must be set by A on a date which is not earlier than 20 days from service by A on B of the copy of the petition and of the copies of hearing. Q. Q. either of the existence of any right nor even of the facts to which they relate. Because at the time it was taken there was yet no case. 19 of B. what will the court do? A. Naturally. Once the petition is filed. Sec. Remenber Sec. What will be the allegations? A. in the sense that evidence may be received by the court for A and B? A. the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. and even if the deponent did not testify at the hearing. which is incapable of pecuniary estimation. as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. (questioning) Q. Q. in other words. This is the gist of Rule 24. This will be served on B in the manner that the summons is served to a defendant under Rule 14. 1 of Rule 25 Sec. That B has the right to file an answer for an opposition. What is the meaning of that? A. However. there is nothing said on the following: 1. # 129. When may a party address written interrogatories to the adverse party? A. the action by reason of its nature should be filed in the RTC. So. If you examine a court witness. What will happen on the day set for hearing? Will there be a trial. The court will now issue a summons to B notifying him of the date of hearing as set in the notice of B. the interrogation is oral. while this rule does not specifically state that the action should be filed in the RTC. whether a party or not. the rule requires A to furnish B with a copy of his petition and the notice of hearing thereof. in the absence of any objection to its taking.P. An action of this nature to preserve the testimony is an action. How will the deposition of either A or X be used? A. examination or written interrogatories. Sec. RENE NOTES: * Depositions under this Rule are also taken conditionally. or without such leave after an answer has been served.

in the discretion of the court. he may not be compelled by the adverse party: a) to give testimony in open court b) give a deposition pending appeal Exception: When the court allows it for good cause shown and to prevent a failure of justice. But here comes another question. depositions shall be taken only in accordance with these rules. RENE NOTES: * A judgment by default may be rendered against a party who fails to answer written interrogatories . Let us say that A wants to address written interrogatories to B. or if the party served is a public or private corporation or a partnership or association. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. a party can send only one set of written interrogatories . direct. What is the remedy available to B here? A. no intervention. Supposing the written interrogatories include questions that are improper. The subject may be one that relates to the claim of the plaintiff or one that relates to the defense of the defendant. It could be as many questions as a party can conceive of as long as his questions are related to the claim of the plaintiff or to the defense of the defendant provided they are not privileged. for instance those are questions for the ownership of the land. Q. There is no limit. The questions asked by A is in his interrogatories relevant to the matters concerning the claim of A and defenses of B. Is the number of wives relevant to the matter on issue? A. by any officer thereof competent to testify in its behalf. redirect. “How many wives do you have?” Q. Sec. the written interrogatories may be taken only with leave of court.61 examination or written interrogatories. So. How many questions may be addressed in written interrogatories? A. However.000 questions to ask. 15 days to answer unless extended or reduced by the . Q. any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served. No. Q. File a motion to strike out that question. If an answer has already been served on A. Q. The only limitation is that the question relate to the claim of the plaintiff or to the defense of the defendant and they are not privileged. What can be the subject of the written interrogatories? A. * General Rule: Unless a party had been served written interrogatories. B. Q. written interrogatories may be served without leave of court. re-cross Interrogatories Interrogatories to Parties under Rule 25 1. Q. with intervention of the officer authorized by the Court to take deposition As to scope 3. 25 As to Deponent 1. B. 1 of Rule 23. When must a party reply to written interrogatories? A. a party or ordinary witness As to procedure 2. A vs. provided that these matters are not privileged. only one set of written interrogatories may be sent. be not require answer. 000 questions. The period is suspended. only one set of interrogatories 4. A motion praying therein that B. The party to whom the written interrogatories were sent must answer then within 15 days from service to him of the interrogatories. can you again send another written interrogatories consisting only of one question? A. Example: A vs. party only 2. The rule is. Depositions upon Written Interrogatories to Parties under Rule 23 Sec. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. if you have 1. 1 Rule 25 Under the same conditions specified in Sec. If no answer has yet been served by B on A. What is the effect of that motion on the part of B to strike out that improper question to the running of the period for the filing of the reply? A. ask the 1. If you have only 999 questions. Of course not because they are not litigating in the number of wives. Written interrogatories are directed to the party himself 3. Q. Is there an exception to this rule that only one set of written interrogatories may be sent? A. cross. The general rule is. The number of questions is not limited. A can address this written interrogatories to B either with or without leave of court. another set of written interrogatories may be sent.

The claim of A is that this sale is evidenced by a deed of sale purportedly signed by D. (the genuineness of the signature). If he (A) follows the rules in evidence. B denied the material allegations of the complaint. copies of which are annexes A. “who is the owner of the land. no fixed time court RULE 26: Admission By Adverse Party Example: Let us say that A and B are litigating over a piece of land. in our example. issues are now joined. “No document offered as authentic document shall be admitted in evidence unless the genuineness and due execution of that document is proven.” A now is in possesion of these documents (The request for admission to which was attached a copy of the documents. any of the parties may now address to the adverse party a request for admission.62 4. 20.” This is an issue because they dispute on the color of the dog.” B said. The claim of A is that he bought this lot from D. Q. the party sending the request ask the party to whom the request is sent. B serves his answer to A. . Q. How will these rules on discovery have shortened the time for proving facts in accordance with these rules in Evidence? A. He is cleared to have admitted that the signature over the name of B is the genuine signature of him. B defendant. Q. Sec. After A have already received for instance. he will address a request for admission. He must file it in court. 2) A has been paying the taxes of his lot as evidenced by tax receipts. Rule 138. to admit the truth of the matters of fact stated in the request or the genuineness of the document the copy of which is attached to the request. (This is an innovation now. if he denies that the signature over the name of B is his signature. In his answer. The Rule says.” Why? Because A says. This is how it is done… Let us assume that the answer of B has already been served. copy of which is attached as annex “D” Copies of these private documents are now attached for admission. So. So.” A will have to prove that he is the owner. he will say there. is a private document. Q. When is an issue joined? A. the issue is. Within the period granted to him under the written request. “B denies the truth of the matters stated in the written request an denies that the signature over the name B in annex “D” is his signature. What is the duty of B upon receipt of the request? A. What will B do with that copy of answer? A. he will have to prove that he is the owner. When the parties are certained and it is disputed Example: If A said. City of Manila. To deny under oath the truth of these matters of facts. For instance. but no less than 15 days. the rules said after the issues have been joined. So. the answer and issues having been joined. This document however. In this request. B will file his answer to the request and serve a copy thereof on A. it was not so under the old rule) So. 3) The genuineness of the document. A may also have declared this lot for tax purposes (tax declaration) and A have paid the taxes on this land. he denies that A has declared his land for tax purposes. B. More particularly this is what A ask B in that request for admission. you are not the owner.) Q. this is what he will do.” B said. Under the rules on request for admission . we have a rule on how to prove a private document. if he denies the truth of these facts. Greetings!! You are hereby requested to admit under oath within 15 days from receipt thereof the truth of the following facts: 1) A declared a lot for tax purposes per tax declaration #1234. “You are hereby requested to admit that the signature over the name B in Annex B is the genuine signature of B. he has to prove every facts in accordance with the rules in evidence. “No. He is cleared to have admitted the truth of those matters of facts. “the color of the dog is blue. What would be the effect of the failure of B? A. “I am the owner. “the color of the dog is red. B and C.

Q. No more. Why? Because if there is no denial under oath of the genuineness of that signature. in all probability A will refuse. No. under the party making the admission is allowed to withdraw the admission because he can show that the admission that he made was a result of a palpable mistake or that he did not actually make an admission. B). For instance in our example. For what purpose? So that the party asking for the production of document may examine the document. Q. Remedy. RENE NOTES: * The effect of a failure to make a reply to a request for admission is that each of the matters of which n admission is requested is deemed admitted. Do you think A will agree? A. in this case (A vs. “A can you kindly lend me for my securing this document you mention. A cannot present B as his witness. Can he (B) now prove during the trial that the signature is a forgery. This admission of B is only for the purpose. you (B) doubt that your father C sold this property. Is the ruling correct? A. They are deemed proven. so that before the trial B can now have an idea whether this is a genuine document or not? A. the father of B. Of course. What would be the effect now of the failure of B to answer in demand within the period mentioned in the request? A. why? Because you are not allowed to contradict your admission. Rule 27 : Production or Inspection of Documents or Things Supposing in our example. B said. the genuineness of that signature is cleared to have admitted them consequently. facts judicially admitted do not require proof and cannot be contradicted. In the meantime. This request for admission will shorten the proceedings. B wants to see this supposed deed referred to in the complaint of A has evidence of his claim that he bought this lot from C. Rule 27 Under this rule. may copy the document may photograph the document. Under the rules on evidence. that there is a limited use for an admission. B said. there is no need for A to prove it. A alleges in his complaint that he brought this lot in question from C. Reason: A did not send me any request for admission. Q. there is no denial of the truth of the fact that A paid the taxes. that he did not affix that signature? A. So you will now appreciate how this request for admission can help discover the facts. A called on B as his witness. Take note however. “Under Rule 26.” Ruling object of B is sustained. a party to a case for good reason shown may file a motion requesting the adverse party to produce a document or object under the control or custody of the adverse party.” Q. I cannot be compelled to be a witness of A. will he (A) still prove the signature over the name of B is the genuine signature of B? A. Does A have the duty to produce this document even before the trial for the scrutiny of B. A should have first addressed to B request for admission of matters in issue of which B has personal knowledge. Since this is a document material to the claim of A. Yes. So A cannot call B to prove these matters within the knowledge of B unless A previously sent a request for admission to B on this matter. before A can call on B as his witness. that he paid the taxes. Why? Because these are admissions of facts judicially made. He cannot be compelled. Why? Because under the new rule now modifying the rules on evidence. It cannot be used as evidence against B in another proceeding. Let us assume that B after he failed to deny made oath the genuineness of that document. B objected. The truth of the matters of facts. He will say. Q. A does not have to prove these facts anymore. * each matter must be denied SPECIFICALLY under oath setting forth in detail the reason why he cannot truthfully admit or deny. The rule is.63 Q. “You will have the opportunity to see this document in court when I present it as evidence. Is there a particular time when this motion on the part of B may be filed? . USE: An admission under this section is for the purpose of the pending action only and cannot be used in any other proceedings. if there is no denial of he truth that A has declared the lot for tax purposes. Q. I can only be compelled to be a witness of A if A sent one request for admission on matters of facts of which I have of personal knowledge. This is allowed but this right of a party to utilize the adverse party as a witness is no longer absolute in the sense that there may be instances when a party cannot call on the adverse party as his witness. Will A still have to prove during the trial that he declared the land for tax purposes.

When? On the date and hour mentioned in the order. etc. Let us assume that A wants to see the land in question. So he can now. which is now in the possession of B. in which case the court will require A to do the following: 1. the motion must be filed in accordance with Rule 15. he is only authorized to examine it before the clerk of court. Q. you would approach B to allow you enter and see the land and have it surveyed. for what purpose? To determine. Q. Q. to produce the document before a specified person on a specific time. how big is the area thereof developed or planted by B so that A can estimate the damages. for instance. Normally. Example: . the document specifies the officer before whom the document should be produced. and therefore pray that A be ordered to produce the document. Q. Rule 27 does not specify the period when a party can avail of this remedy. so that B can examine the document. it is the clerk of court who is designated as the officer before the document should be produced. If you were B in this example. So in our example. i. Rule 28: Physical and Mental examination of Persons Rule 28 contemplates a situation where the mental condition or physical condition of a party is an issue. If you were A. So with the entry now of A upon the land. copy the document if he (B) wants.e with due notice of A. for instance. And the determination of that issue is required in order that a proper judgment can be rendered. State the reason why you want to examine it. A. A. of B. State in your motion the fact that this document referred to in the complaint contains evidence material to the case that this document is under the custody or control of A. On the day of the hearing. how would you avail of the benefits of Rule 27? A. No. Can B however take hold of this document and bring it home for scrutiny? A. that he may have sustained by reason of his having been deprived of the fruits of the property. What is the prayer in the motion? That B be ordered to allow A to enter upon the land survey. he will be able to determine the extent of the cultivation See. the court may report A to produce that document before its clerk of court on a particular date and hour. the court will hear the parties and thereafter will rule on the motion whether to deny the motion in which case A will not be ordered to produce the document or grant the motion. move that A be required to submit this document for examination by a handwriting expert. This is what you will do: File a motion that A be required to produce that deed of sale he referred to. which fix a period within which his remedies may be amended of. unlike a deposition pending action or written interrogatories or request for admission.64 A. photograph the document. it must be heard. he can take steps to have this matter inquired into. Normally. Where? Before the person named in the order. Do you think B will allow you? A. Q. This rule equally applies within respect to real property or an object for that matter. He will not. how their discovery will help A!!! RENE NOTES: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS * essentially a mode of discovery * the Rules is limited to the parties to the action * the order under this Rule is issued only upon motion with notice to the adverse party SUBPOENA DUCES TECUM * means of compelling production of evidence * may be directed to a person whether a party or not * may be issued upon an ex parte application. What will be the advantage of this examining? A. when an order is issued by the court directing a party to produce the document. Of course. If after B examining the document believes that that is a forgery. The order will direct A to allow B to go over the document. No. photograph the document. copy the document. What is the remedy? A will file a motion. Q.

But H is one who is easily daunted by this adverse report. Q. So in announcing the purpose for which she offered the testimony of Dr. Why? Because what was represented to be a “deadly weapon” turned out to be a “dead weapon”. when a party to whom the request for admission is sent. Of course this motion must be with due notice to H. H represented himself to be more than able to perform what is expected of a husband to the effect and dismay of W. Because by obtaining the copy of the report of Dr. would embarrass the patient. Y. So what did he do? He engaged Dr. The advice that the doctor gave to the patient. Under Rule 26. the only instance where a party refuses may not be arrested is the case of the party who is required to submit himself to physical or mental examination. Why? Because whereas before marriage. he said. a surgeon cannot without the consent of his patient testify on the following: 1. the party who refuses may be arrested.. Upon reading it. X. X. he cannot be arrested. so under the rules on evidence. The representation turned otherwise. W said “W your honor. he actually fainted! Why? Because the result of Dr. he cannot. In gist. Y. now that he received the copy of the report of Dr. The information that the doctor obtained in the course of attending professionally to the patient when information was necessary to enable the doctor to properly attend to the patient and which information if revealed.” The court overruled the objection and allowed Dr. he nearly fainted. X. I have not given him my consent to testify. W now called on Dr. 3. Rule 29 : Refusal to Comply with Modes of Discovery Rule 29 enumerates the sanctions that may be imposed by the court where a party does not comply to any of these modes of discovery. under Rule 28 when he disobeys. H obtained the copy of the report of Dr. What are the sanctions against the party to whom the request was given? A. “Tarantadong doktor ito. So the answer of H is “Anong sinasabi ng asawa ko sa complaint ay hindi naman totoo. the adverse party to examine a document or and object or to permit an entry into premises. When a party refuses to allow. what are the sanctions against him. he has almost fainted. Rule 28 therefore. Saan kaya nag-aral ito hindi marunong. Trial…………………. Y’s testifying. He got also a copy of the report. Y. Y. H waived the benefit that he may have over the testimony of Dr.” So W moved. what are the sanctions? A. Y. you could just imagine what happen now! Whereas when he got a copy of the report of Dr. Q. You remember the rule that a doctor of medicine. . Y’s examination confirmed the findings of Dr. qualifies the provision. under Rule 23. The examination was finished. these are the sanctions: Under Rule 29. The examination was conducted out of curiosity. when a witness in a deposition refuses to be sworn to or refuses to answer. X. What are the sanctions? A. denies the truth of the matters stated therein and subsequently the party making the request proves it. and (b) he waives any privilege that he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him. For instance. offers the testimony of Dr. Under Rule 25 (Written Interrogatories) when a party to whom written interrogatories are addressed refused to answer. Why? Because the result confirmed the allegation of the wife.65 W sued the husband H for declaration of nullity of marriage on the ground of fraud. in all other cases the refusing party may be arrested. Is the ruling of the court correct? A. So this rule does not apply when Rule 28 is involved. X examine him. which should be taken into account in relation to the rule on the confidentiality of the communication between a patient and a doctor. an obstetrician. Q.” H said “I object to Dr. 2. So this is therefore a rule (Rule 28). Y to prove that H cannot do it. y to testify on his findings. X. in disobedience to a court order. Yes. What for? To examine him also on the matter in connection with which Dr. by filing a motion that H be directed to submit himself to an examination of his physical condition before Dr. When a party refuses to submit himself when ordered by a court to examination of his physical or mental condition. RENE NOTES: * Where the party examined requests and obtains a report on the results of the examination the consequences are: (a) he has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition. The treatment that the doctor administer to the patient. Q. Kaya ko! Kaya ni Mister!” So he wanted to disprove.

a party may not be allowed to introduce evidence to support Support a fact. That is why the pre-trial order if there are only two issues the parties cannot present any evidence on any other issues except on the issues in the pre-trial order. when an issue is tried by a party with the objection of the adverse party. if there is any. Third. but the court finds that the presentation on that merits of the case would best be served by allowing evidence to be received in this case. Fifth. Unless otherwise stated by the order of the court. Just a reminder: there are two instances where issues are not raised in the pleadings may be tried in the court: 1. a judgment may be immediately rendered. where an issue is tried by a party without objection on the part of the adverse party. Sixth. a party may be declared in default. The only issues which the parties are allowed to present their evidence are those specified in the pre-trial order. trial. a complaint may be dismissed. the order of trial is as follows: 1) the plaintiff presents his evidence in support of his compliant. However.66 Second. 2. Fourth. Seventh. you take into account Rule 10 which allows amendment on pleadings to conform to the evidence. a contention of a party in connection with certain matters would be deemed established in accordance with his claim. So. 2) thereafter the defendants will present their evidence on: a) their answer to the complaint. Rule 30: Trial Unless otherwise provided by the court the order of trial is as follows: The evidence of the parties is limited to the issues in the pre-trial order. these issues though not raised in the pleading may be proven during the We go now to Rule 30 proper. in these two (2) cases. the party who refuses may be ordered to pay the expenses Party including attorney’s fees. .

Answer to complaint of A 2. 4) thereafter. his counterclaim against A. Q. Answer to Reply to Counterclaim of B – rebuttal evidence of B B. decision. memoranda. C 4. 3rd party complaint 5. What is the pleading of B? A. may now adduce his evidence. B A. There being a counterclaim against him (A). B. 1. B A – Answer to counterclaim of B and C B – Answer to counterclaim of D C – Answer to cross-claim of C Q. if there is any. if he wants to. A must produce evidence to support the factual allegations in his complaint. and still he (B) will win. Answer to complaint counterclaim vs. Example: A vs. Q. Answer to reply to Counterclaim – Rebuttal 3. A 3. if there is any 3) thereafter. rebuttal evidence. After A finished presenting his evidence on the complaint. if there is any.67 b) their counterclaim. So A now presents his evidence first on his complaint. Let us apply it. Let us apply the order of trial. Counterclaim vs. – reply to counterclaim – claim of C C. he may adduce his evidence”? A. A has only his complaint. Because B is not compelled to present his evidence. On what manners will he now present his evidence? . d) their third-party complaint. 1. Q. 1. This is the order of trial. 6) oral arguments. He (A) will limit himself to only his complaint. they may have to adduce their evidence in support of their answer to these claims. Let us assume that B elects to present his evidence. Q. 5) it may be followed by sub-rebuttal evidence. Cross-claim vs. No. What are the pleadings of A? A. Unless otherwise ordered by the court. Answer counterclaim of B D. Why do we say “If B wants to. B does not have to introduce his evidence. which is preponderance of evidence. Complaint – Evidence in Chief 2. You call this as his evidence in chief. Counterclaim vs. c) their cross-claim. Ans. In other words. B rebut evidence of A 3. There will be a time for him to adduce evidence on the second pleading. Will A now prove his defenses to the counterclaim of B? A. 8) thereafter. the parties against whom counterclaims or cross-claims were pleaded. A 2. His answer to the complaint. If A failed to adduce the quantum of evidence required to present. Answer 3rd party complaint of B 2. or 7) in addition thereto. the initial presentation of the evidence in chief is commenced by A. the other pleading of A is his answer or reply to the counterclaim of B. which are disputed in the answer of B. 1.

B can rebut the rebuttal evidence of A. So those matters taken up in the evidence in-chief of B. then we say. in so far as the answer to a complaint is concerned. He will have his answer or reply to the counterclaim of C. this is how it is done… you will note that. There will be a time for that. After the evidence is in. C now will also present his evidence. Let us assume that B filed a cross-claim against C. There may also be new matters taken up in the rebuttal evidence of A. Not yet. The pleading of C will be his answer to the complaint of A. 2. or evidence against the cross-claim. So. since he has a cross-claim against C. not yet. What are these rebuttal evidence? A. Under the order…… Rebuttal evidence meaning A can rebut the evidence of B. he may now adduce evidence on his counterclaim. During the presentation of B of his evidence. his rebuttal to the evidence of B. First he will adduce his evidence in support of his answer to the complaint of A. he may at the same time present his evidence of B.68 A. Q. there are two(2) defendants (B and C). when A is proving his answer to the counterclaim of B. Q. Q. There may be evidence taken up when he presented his own evidence. So you will notice if he (B) has a cross-claim. this is the order of presentation of his evidence. if we follow the order. what would be the added pleading of A? A. in actual practice. he will also produce his evidence in support of his cross-claim. But in the actual practice where the parties are only the plaintiff and the defendant. You call these rebutting evidence of B the Sub-rebuttal Evidence. and he will have his answer to the crossclaim of B. In actual practice. He will adduce his evidence first with respect to his defense in his answer. . per rule 30. There is another stage for the presentation of the rebuttal evidence. there will be three (3) stages when A would present his evidence. these two (A presents his evidence. his counterclaim against A. may now be rebutted by A. In our example for instance. what are the pleadings will he have? A. Will this end now the trial? A. in which case B can rebut these rebutting evidence of A. Q. Q. What will be the pleading of C? A. What follows next? A. Q. Will he (C) now adduce evidence in support of his answer to the cross claim of B? A. he will now rest his case. What will be the added pleading of B? A. This being the case. When he present his evidence on his complaint. there is a separate stage for the presentation of evidence against the counterclaim. 3. there is no need for A to present his evidence in support of his answer to reply to the counterclaim. After he has finished presenting his evidence on his counterclaim. So. When he present his evidence in support of his answer to the counterclaim. Let us assume that B has likewise a third-party complaint against D. How about B. Q. So whatever defenses he alleges in the answer will be the subject matter of his evidence. his cross-claim against C. His (B) evidence on his answer to the complaint of A. So the evidence in-chief now of B has also been terminated. After he has presented his evidence on these matters alleged in his answer. Q. then the court may order the case submitted for decision unless the court require parties either to orally argue or file a memorandum or require both parties to do both (orally argue and submit a memoranda). and at the presents at the same time the rebuttal are held simultaneously). He will have his 3rd party complaint. 1. No. He will have his answer or reply to the counterclaim of C. Why? Because A may present now his evidence on these matters (Answer or reply to B’s counterclaim because if B did not. Later. He will present his evidence in support of his counterclaim against A.

is there a counterclaim pleaded against him? A. B and C. Another line of decision tells that the clerk of court have no such authority. This settles the conflicting decisions of the SC on the question of whether or not a clerk of court can be commissioned to receive the evidence. He will have his answer or reply to the counterclaim of D. Yes. This terminates the presentation of the evidence in chief of A. The same things still with A in the order he presents his evidence to support his complaint and nothing else. This is the order of trial under Rule 30. C and D. who now will present his evidence? A. Yes. Following this. May judgment be rendered by the court without a trial during. What then will be the added pleading of B? A. Order of Trial………. So C will produce his evidence in support of his answer to the crossclaim. 2. is there a counterclaim pleaded against him? A. Yes. How about B. So. this is possible when for instance the parties stipulate on facts and the facts stipulated upon are enough to serve as basis of a judgment. In one line of decision held that the clerk of court have such authority. 3. Same (as before) Q. This provision now settles the question. Q. His cross-claim against C. So A now will produce his evidence in support of his answer to the counterclaims of B and C. Q. How about D? A. the counterclaim of D. 4. None. then decision. He will now present his evidence in support of his counterclaim against B. Q. He will now have his counterclaim against B. the only persons who will present their evidence in support of their answers to the counterclaim or cross-claim are A. Under Rule 30. His third-party complaint against D. None. the court may delegate the reception of evidence to a clerk of court who is a lawyer. provided the facts are sufficient as basis of a judgment. B. Q. Q. How about D. How about the pleading now of D? A.69 Q. Q. He will have his answer to the third party complaint of B. The clerk of court can receive the evidence provided the clerk of court is a member of the Philippine Bar. He will present his evidence in support of his answer to the third party complaint of B. Grounds of Postponement You will note that under Rule 30 that a trial may be postponed on these two (2) grounds: . which the parties may not present their evidence anymore? A. Following that. Answer to the complaint of A. The parties against whom a counterclaim or a cross-claim have been pleaded. In our example. Sub-Rebuttal then oral argument or memoranda or both. How about C? A. we go again to the same order Rebuttal. but there is a cross-claim. How about C.. Q. there is a counterclaim pleaded against A by B and C. Q. How about B? A. May a judgment be rendered on the basis of the stipulations of facts? A. is there a counterclaim pleaded against him? A. Counterclaim against A. B will now introduce evidence on the following: 1. Q.

although he may later on object to their admissibility the rule says. Example: A collision took place between the vehicles driven by A and the vehicle driven by B. the affidavit must state the materiality of the evidence that is not produced and the efforts exerted to. absence of evidence 2. SC issued a circular directing judges of the trial court to implement this rule on postponement strictly meaning postponement should be granted except when there is a compliance with this rule that any motion for postponement based on absence of evidence should be accompanied with its required affidavit. Rule 31: Consolidation or Severance Q. Y and Z. or 2. The rule requires that the motion must be supported by affidavit. together with the objections to be resolved by the court within ten (10) days from the termination of the hearing. he makes his own medical certificate. He presents a medical certificate. These are unethical practices!!! Just stick to the rule and you’ll never go wrong!!! RENE NOTES: Notice of Trial . The same thing is true when the ground of postponement is the ailment of the lawyer or of the client such motion for postponement may be granted or acted upon if it is supported by an affidavit showing that the presence of a counsel or a party before the court is necessary and that the character of the ailment is such as to excuse the non-appearance of the ailing lawyer or litigant.three months over all Exception Authorized by the Supreme Court administrator General Rule: The judge must himself personally receive and resolve the evidence of the parties. the clerk of court notifies the parties at least five (5) days before trial. What is the requirement in order that a motion based on these grounds maybe validly acted upon and granted by the court? A.one month for each adjournment . And worst of all. The lawyer is not realizing that for introducing in evidence this fake medical certificate he can also be held criminally liable. So.70 1. Suspension of Actions Article 2030 NCC Every civil action or proceeding shall be suspended 1. damages were suffered by the buses and the passengers. (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar. Sometime however. illness of party or illness of a counsel Q. where a lawyer does not feel like going to court. sued A and B in the RTC of Cavite. (c) said clerk of court shall have no power to rule on objections to any question or to admission of evidence or exhibits. Again. then he justifies it. However.Upon entry of the case in the trial calendar. if it appears that one of the parties. he cannot find immediately a doctor friend. before the commencement of the action or proceeding. the reception of such evidence may be delegated under the following conditions: (a) The delegation may be made only in defaults or ex parte hearings or an agreement in writing by the parties. Limitation on Adjournments . the motion for postponement should not be granted. and (d) He shall submit his report and transcripts of the proceedings. The only problem on this rule is. But even then. When does consolidation take place? A. X. The passengers who were injured as a result of the collision. These things that actually happen practice. if willingness to discuss a possible compromise is expressed by one or both parties. offered to discuss a possible compromise but the other party refused to offer. So A now sued B in the RTC of Quezon. during the incumbency of Chief Justice Marcelo Fernan. If two or more cases have between or among them common questions of fact or of law. is a situation where the lawyer himself becomes a doctor. These were both passenger buses. it has been interpreted to be merely directory. Q. Where did he get this medical certificate? From a doctor friend who will say “Anong sakit gusto mo?” these doctors are not realizing that for falsely certifying they incur criminal liability under RPC. if the adverse party states that he does not have any objection to the facts supposed to be established by the testimony of the absent witness. it is more often honored in its break than in its compliance. they may be consolidated in one court. In case the ground is absence of evidence. As a result of the collision. the only trouble with this is. What is the fact common to both cases? . For instance.

71 A. In the meantime that this case is decided and these two other causes of action are not yet decided. What is the justification for the consolidation here? A. Under this option. This is how the rule works. Yes. render only one decision as if these two cases are only one. so to avoid this (the possibility of conflict) it is better that these two cases be tried by only one court so that there will be no possibility of conflicting decisions. Q. court may hear only one cause of action remaining unheard the other causes of action. what would happen if cases were tried separately. the Cavite court cannot be compelled to try. if there are five (5). They originated from one and the same incident. Q. The possibility of a judgment rendered by Quezon RTC being different from the judgment rendered by the Cavite RTC insofar as the cause of the accident is concerned may be conflicting. If they were to go to Quezon. Why? Those who filed the case in Cavite are residents of Cavite. As a matter of fact when consolidation is proper. The complaint alleges three (3) causes of action. After the reception of evidence in this first cause of action. i. In a case of severance. the court again can hear these other causes of action. that would entail much expense to the party. the court where the cases are consolidated may try only the principal case. This presuppose that there are several cases of the same nature. then the court will render only one judgment. Under this rule on severance. In our cases here. It is the opposite of consolidation. Under the old rule .e… the collision. the court will try this first cause of action. Can this be the subject of enforcement already on it. Thereafter. In what court? A. but the court can suspend the enforcement pending the disposition of these two other causes of action. the first case (the principal of them) will be heard first. a party can join all these causes of action against another in only one complaint subject only to the conditions of joinder. The court where the cases are consolidated may try all the cases at the same time and render only one judgment. under the second mode of trying these cases. Either in the court of Quezon or in the court of Cavite. Why? For practical purposes to minimize expenses. There is this complaint of A involving three (3) causes of action. May the two cases be joined? A. . SC ordered the consolidation of these two cases in the RTC of Cavite. These different causes of actions and you know under the rule. There is a common question of fact or of law common in both cases. When cases are consolidated in one sala. no more. there may be several claims or several reliefs in which case. What is severance? A. In this example. to receive the evidence of the principal case leaving unheard the other cases. the court will now render judgment leaving undecided these two cases (these two causes of action). B now has a counterclaim against A in respect to his first cause of action. Q. RENE NOTES: . If these cases were consolidated in Cavite. can be the subject of an appeal? A. See. the Cavite court could try the Quezon case and the Cavite case at the same time. There is another method of consolidation. On the other hand. After the main case has already been tried. But under this severance. In other words. A vs. What would be the proper method for the court to adopt in resolving these cases? A. if these case is consolidated there. these parties in the court of Quezon both being bus companies could afford the expenses of going to Cavite. instead of the court conducting a hearing on all the claims at the same time it will limit itself to the hearing of a particular claim. Normally the trial would be conducted on all these causes of action and thereafter the court will render only one judgment. Say. In this particular case. Q. Q. B. Is a court obliged to hear cases for consolidation? A. The theory is that the court cannot be compelled to hear the case of another court. leaving untried the four (4) other cases. including the counterclaim of B. if the Cavite Court did not want to hear Quezon case. Q. This is the concept of consolidation. it is a trial by installments. Q. Under the present ruling. consolidation is mandatory. Yes.

They are the following: 1. delegate the reception of the evidence to the Clerk of Court.” Sec. the party who receives the evidence is other than the judge. Q. if the specific issue for instance is the only matter in connection with which he is authorized to receive evidence. when tried before the same judge. Take note that under Rule 30 the reception of the evidence is by the judge himself or the court may in case of a default case. when a question of fact other than upon the pleadings arises upon motion or otherwise in any of stage of a case. b) by consolidating the existing cases and holding only one hearing and rendering only one decision. It is a third person called the Commissioner. That is why this is governed by this rule. What is the situation contemplated here? A. When a reference is made. but the other refuses. There are three (3) instances when the court can appoint a commissioner even without the written agreement of the parties or even over the objection of the parties. this issue is the one. the clerk shall forthwith furnish the commissioner with a copy of the order of reference. then it is only in respect to that issue he may receive the evidence. The court may refer the reception of evidence with regard to the case in its entirety. or to receive and report evidence only. Q. 3. Supposing there are three (3) issues raised. Three Ways of Consolidating Cases a) by recasting the cases already instituted. This last situation contemplates that a motion is filed based on facts not on record. The order of reference here is the order issued by the court appointing a commissioner and stating the commissioner what he is supposed to act on. That is what referred to here as the “order of reference. Supposing the parties did not agree in writing that a commissioner be appointed or that one wants a commissioner to be appointed. May a commissioner nevertheless be appointed? A. So. he may even resolve the objections to the admissibility of evidence. The court may refer this case to a commissioner for a trial of. Rule 32: Trial by Commissioner Q. the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures . In effect. and for the filing of his report. conducting only one hearing and rendering only one decision. What then is the authority of the commissioner? A. Q. Example: A vs. Under Rule 32. 2. Exception: When consolidation a matter of duty: 1. c) by hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case (Test-case method). the order does not say anything with respect to the limits of his authority. Yes. What is the extent of the power of the commissioner? A. These are the three (3) situations where a commissioner may receive the evidence even over the objection of the parties. who is a member of the bar. however. his powers are specified in the order appointing him. The general rule is. B. or of purposes of carrying a judgment into effect. When may the case be tried by a “Commissioner”? A. and may fix the date for beginning and closing the hearings. when the taking of the accounts is necessary for the purpose of informing the court before judgment is rendered. Q.72 General Rule: Consolidation is discretionary with the trial court. or to do or perform particular acts. and may direct him to report only upon particular issues. if filed with different branches of the same court having jurisdiction and one of such cases has not been partially tried. the commissioner here would be acting as if he were a judge actually trying the case. Then in the hearing on this motion a commissioner may be appointed to receive the evidence. 2. As a matter of fact. the clerk shall forthwith furnish the commissioner with the copy of the order of reference. The order may specify or limit the powers of the commissioner. where there is a need for the reception of evidence consisting of a long accounts either from one or both of the parties. Where the parties agreed in writing that a commissioner be appointed. What he can do are specified. Supposing. let’s say only of issue #1. which is referred to the commissioner. So. or both refused to agree to a commissioner. Subject to the specifications and limitations stated in the order. 3 Rule 32 When a reference is made.

Q. What the judge can do. What is the first then that the commissioner does when he receives the order of preference involving parties to a conference? A. Q. It is as if he was the one who evaluates the evidence. after which the court shall issue an order adapting. if they so desire. Sec. and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report. What shall he now do? A. Q. it is merely recommendatory. Before the commissioner sets the date of the hearing. 10 Rule 32 Upon the filing of the report. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner. the commissioner conducts the hearing as if he were a judge. he (A) will formally offer his documentary exhibits. So. recommit the report to the commissioner or require the parties to present their evidence either before the commissioner himself or before the court itself. A will say. or rejecting the report in whole or in part. he can rule on the admissibility of evidence. Q. (Thereafter the court will decide the case. or recommitting it with instructions. the parties will appear before him. After the hearing.73 necessary or proper for the efficient performance of his duties under the order. The Clerk of Court is mandated to furnish to the parties A and B copies of the report. “B” and “C”. the court will resolve the report. What shall be done with this report upon the filing of these comments/objections or upon the expiration of the period of the filing thereof? A. for instance. Then he have exhibits “A”. he forwards then to the court the entire records including the transcripts of the proceedings. What for? A. he can do. his witnesses are X. He will now prepare a report. He may issue subpoenas and subpoena duces tecum. Y and Z) finished testifying. 11 Rule 32 Upon the expiration of the period of ten (10) days referred to in the proceeding section. Sec. it is now the turn of the defendant to present his evidence.) RENE NOTES: * Refusal of witness to testify or give evidence – deemed indirect contempt of the court which appointed the commissioner. the report shall be set for hearing. What is the situation contemplated by this rule? A. the exhibits if there are any. your Honor.” Court: What does B say? B: “I do not have any objection. In short. The trial or hearing before him shall proceed in all aspects as it would if held before the court. or requiring the parties to present further evidence before the commissioner or the court. so he will conduct the trial. A has no further evidence to adduce. So he finishes the trial.” Meaning. So after these three (3) (X. What is the duty of the Clerk of Court upon receipt of this report? A. So that in what he can do (underlined provision) if he is not restrained by the order. A said “I now rest my case. The report concerns the proceedings that were conducted before him. he may rule upon the admissibility of evidence. Q. Rule 33: Demurrer to Evidence Q. Q. “I have no more testimonial evidence to offer. So. he can submit his findings of fact. generally. They can do this within ten (10) days from their receipt of the copy of the report. If he is not prohibited by the order of preference. either to approve the report or disapprove the report. other than objections to the findings and conclusions therein set forth shall not be considered by the court unless they were made before the commissioner . The court will now set the report for hearing. After the plaintiff has rested its case. Submit the report to the court. Conference must be held not later than ten (10) days from his receipt from order of reference. What is meant by this? A.” . Q. swear witnesses and unless otherwise provided in the order of reference. I now present formally my documentary exhibits. the parties shall be notified by the clerk. Y and Z. What is this report all about? A. So that A and B can make their comments on the report of their objections to that report. The report is not binding on the court. modifying. In our example. Your honor. A finished presenting his evidence.

therefore the complaint must be dismissed.” Q. Q. Court: “Exhibits “A”. What is the implication of that? A. Y and Z and the document exhibits “A”. But supposing in our example at the time B filed the demurrer to evidence. This is the assumption when B files the demurrer to evidence. “B”. he simply says in effect. Q. it is the duty of A to discharge the burden of proof and since he failed. From the point of view of the court. reserved the right to present my evidence. “I will not present any evidence. The complaint of A is dismissed. Q. the order of dismissal is reversed. Demurrer to evidence. “B” and “C” are admitted. the following exhibits: “A”. No. because an objection may be proper but the ground is improper. What is the concept of demurrer to evidence? A. that the evidence of A is sufficient to prove his case. Therefore. if he (B) does not want any evidence. Will this reservation allow him to present his evidence? A. The trouble arises when the order says. What then would be the effect of grant? A. It is now the turn of B to present his evidence if he wants to. The court has options in ruling on this demurrer to evidence. Court: What is the ground? B: “Bahala na kayo judge!” You must state the ground for objections so that the court may rule on whether the objection is proper or not. Q. your honor. So. RENE NOTES: . Q. Therefore. What legal device is he allowed to utilize? A. The possibilities are. Q. What is the effect of the reversal order of dismissal on the right of B to present his evidence? Can he present his evidence or not? A. “B” and “C” even if given all their weight they are utilized to is not simply sufficient to prove the case of A. the complaint remains dismissed. (When you object always state the legal ground. Q. But instead of immediately saying.. He cannot be compelled. no power on earth can compel him. And so. the appellate court may affirm the order of dismissal or it may reverse the order of dismissal. but the ground raised is improper.” he wants to test whether the evidence of A is sufficient or not.74 Court: “Proceed A” A: “I offer. So. It is a pronouncement by the court that the evidence of A is not sufficient to prove his case. Why “if he wants to”? Because he (B) may not like to present his evidence. The objection can be ruled upon only on the basis of the ground relied. the order of dismissal is set aside. The implication is. it simply means that the appellate court agrees with the trial court that the evidence of the plaintiff is insufficient. “I object” and then sit down. he in effect submitted the case for decision solely on the basis of the evidence of the plaintiff (A).” Q. It may deny the demurrer to evidence. “in the event the demurrer to evidence is granted and the order of dismissal is reversed. What is the implication of the order of the court granting the demurrer? A. The evidence of A is insufficient. to prove the following. it is useless for me to present my evidence because under Rule 133. But this order of dismissal may be appealed by A. to prove…. “C”………. What is now the next thing for B to do? A. You cannot reserve the right to present evidence in the event the order of dismissal is reversed on the appeal. he said. the evidence of A is sufficient prima facie to support his case. So the court will overrule the objection. The court may grant the demurrer. He cannot present his evidence. When B files a demurrer to evidence. You cannot say.” Or “I object to Exhibit “C”. This is the reason why the objection should always be stated with its respective ground. You cannot compel him because a party has to choose the evidence he presents. What is the implication of its denial of the demurrer to evidence? A. it’s not my duty anymore to prove my defense.” Court: What does B say? B: “I have no objection. It is proper to object. because by electing to file the demurrer to evidence. the order of dismissal is improper. The evidence of A consisting of the testimonies of X.

the rule requires him. Under the rule on denial. Why? Because for a specific denial. Q. This kind of denial is the effect of the specific denial. leave of court is necessary so that the accused could present his evidence if the demurrer is denied. was there a specific denial of the allegations in the complaint? None. B has not paid the loan notwithstanding demand on him to do so. What is now the prayer of A? A. double jeopardy sets in. Is there an issue tendered by the answer of B? A. if the court finds the plaintiffs evidence insufficient . B. What is his (B) prayer now? A. So. part of which he denies. there is nothing to be proven by A here. The judgment of dismissal is appealable by the plaintiff. No. If the allegation is made up of two or more facts. he now admits for his failure to deny under oath the promissory note. 3. If the plaintiff appeals and judgment is reversed by the appellate court. Q. 3. 2) allege the facts in support of his denial. Q. 3) if he is not in a position to state whether he admits or denies the allegations. This kind of denial is the effect of the specific denial.… Q. The complaint alleges in substance that A extended a loan to B as evidence by a promissory note signed by B. defendant need not ask for leave of court 2. This is a general denial. Since the promissory note is an actionable document because that is the basis of the action of A. it will grant the demurrer by dismissing the complaint. That the complaint of A be dismissed. Q. it will grant the demurrer by rendering judgment acquitting the accused. accused may present his evidence. A may now file a motion that a judgment be rendered on the basis of only what is alleged in the complaint. What is the effect of failure of B to deny under oath the genuineness and due execution of this document? A. 2. he is required to state that he has no knowledge sufficient to form a belief as to the truth of the allegation in the complaint. This is an action for recovery of sum of money. Rule 34: Judgment on the Pleadings This rule presupposes that the answer of the defendant does not tender any issue. the answer against the material allegations in the complaint. What is the effect of a general denial? A. . That a judgment be rendered against B to pay the amount of promissory note. A copy of that promissory note is attached to complaint as Annex “A”. B denies all the allegations in the complaint. Did B complied? A. the rule require the defendant to do any of the following: 1) specify the matters he denies. the period for the payment thereof having already become due. everything is already admitted. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. specify so much of the allegation that he admits as true and deny the rest. Q. Example: A vs. (b) if demurrer was without leave of court. defendant will present his evidence. What is the answer of B? A. No res judicata in dismissal due to demurrer. if the court finds the prosecutions evidence insufficient. if court denies the demurrer (a) if demurrer was with leave of court. So. Judgment of acquittal is not appeallable. MOTION TO DISMISS * presented before a responsive pleading (answer) is made by the defendant * it may be based on any of those enumerated in Rule 16 CRIMINAL CASES 1. In this case.75 DEMURRER TO EVIDENCE * it is presented after the plaintiff has rested his case * the ground is based on insufficiency of evidence TWO KINDS OF DEMURRER TO EVIDENCE CIVIL CASES 1. He is deemed to have admitted the genuineness of the note. Before that. Q. 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. to be specific. part of which he admits. An admission of all the allegations. if court denies demurrer .

In a summary judgment. Q.76 Q. In other words. there is evidence received but it is evidence. B signed a promissory note to evidence the loan. but there is no proof of this amount of the unliquidated damages. thereafter. 34 of Rule 1331 (Presentation of Evidence). annulment of marriage 3. We have a rule with respect to attorneys fees that. you have to prove the amount thereof. In this case. with respect to judgment of the pleading. when a judgment is rendered. not every litigant who prevails in the case is entitled to attorneys fees. There is one limitation. That B did not pay the loan. If there was any loan extended to me (B). because to do so would be to make prejudice on the right of A. . which is rendered by the court on motion of a party. Can there be a judgment including damages and attorneys fees done in which case if the plaintiff wants a judgment include attorneys fees and damages he must produce evidence? A. in the case of unliquidated damages. a trial should be held during which A and B are to prove their respective sides of the issues. either of the plaintiff or the defendant where there is actually no genuine issue between the parties. The period for payment of the loan has already expired and demands notwithstanding. Q. nullity of marriage 2. What is the answer of B? A. the defendant must assert his evidence. Who is entitled to a summary judgment? A. In the case of the plaintiff . that he signed the promissory note. What is the concept of summary judgment? A. In the absence thereof. B (For Sum of Money) The allegations in the complaint are substantially as follows: A extended a loan to B. That the demand was made. A summary judgment is one. That judgment be rendered ordering B to pay him the amount of loan. No more.Material facts of the complaint shall always be proved. From the face of the pleadings. there are issues: 1) Did he (A) extend the loan? 2) Did he (B) sign the promissory note? 3) Did he (B) pay if there was a loan? Under Rule 30. a plaintiff must present his evidence. no award of attorneys fees can be rendered unless the attorneys fees is considered as liquidated damages. That B indeed signed the promissory note. Rule 35: Summary Judgments Q. he already paid the loan. What is the prayer now of A? A. Annex “A”. But the truth however is this: That A indeed gave a loan to B. Q. For attorneys fees to be awarded. In the absence of that justification. The reception of evidence is governed by Sec. however. Will the court receive evidence either for A or B before judgment can be rendered? A. the decision must always state attorneys fees awarded the basis thereof. you cannot render a judgment of the pleadings on damages. the defendant who has a counterclaim. legal separation . RENE NOTES: What cases not applicable: 1. What is his (B) defense? A. This is how the judgment on the pleading is rendered. a judgment is rendered on the basis of evidence which is not receive in the manner that evidence is received under Rule 30 (Trial) Remember that we took up in Rule 30. Again. the plaintiff who has a right to a declaratory relief may file a motion for summary judgment. the court will decide the case. When? After an answer to his claim has been served on him. where damages. Q. Q. Example: A vs. B failed to pay the loan. which are not liquidated are alleged and attorneys fees are also asked to be paid. the basis thereof must be stated in the decision. There is no reception anymore. Either the plaintiff or the defendant. B denies the allegations in the complaint that he obtained money from A. which is not formally offered in evidence.

Why? Because between the filing and the hearing.” B replied to me. What shall the court do? A. What do we learn about the request? A. What is the remedy available to A. the affidavit of A. a period of not less than 10 days must first elapsed to allow the defendant to file his opposition if there is any to the motion. Under Rule 35. It means to say. the pleadings and the documents attached to the pleadings and motions and oppositions. On the appointed day of hearing. so that even without a formal presentation in evidence by A and B. The court will examine both and if the court find from the documents. this is the remedy available to A… Let us say A takes the deposition of X under Rule 23. he may also file an opposition to the motion for summary judgment. the fact that X went to B to demand payment and the answers of B to the demands of X. The matters related to the law. Q. (defendant) Greetings! You are hereby requested to admit the truth of the following statements: That X went to you to demand in my name that you pay the promissory note. That B did not send A within the time mentioned in the request any denial under oath of the matters referred to in the request. He will file them and serve a copy thereof on B at least ten (10) days before the hearing of the motion. What is the content of the affidavit? A. that a motion for summary judgment being litigated must be set for hearing strictly in accordance with Rule 15. Q.77 Q. a motion should be heard not later than 10 days after it is filed. What does A now do with these papers? A. the request for admission. If he (B) so desires.” I went back to B on the date he specified. Note that under Rule 15 (Motions). What shall B do after he have been served? A. What do you notice now? A. This is what the court will do: It will examine the complaint. the motion for summary judgment and the documents attached thereto. A now has in his hands the deposition of X. the answer. How will the court proceed to hear the motion? A. He will attach them now to a motion in which he prays for a summary judgment. the opposition if any and the documents attached thereto. The court will now hear the motion. That you told him that you will pay me after you shall have sold the tobacco leaves you expect to harvest from your farm. Like A. Naturally he must file it with the court and serve on A a copy later on. 1) 2) 3) 4) Q. What will B do with the opposition? A. “Tell A that I will pay him after I have sold the tobacco leaves I expect to harvest from my land. Q. which is not earlier than 10 days following the filing thereof… Q. Q. he may also support his opposition with his sworn affidavit. This Rule 35 is an exception to the Rule 15. Why? Because you cannot hear the motion for summary judgment within 10 days from its filing. deposition. the failure of B to pay. A sent a request for admission to B. and That he went back to you on the specified date and you told him that you cannot pay me because you have not planted any tobacco in your field That you do not have any receipt showing that you paid any amount. Why did I not harvest? Because I did not plant!” This is the deposition. What did X say in his deposition? “I was asked by A to go to B and collect from him the amount covered in the promissory. A now executed an affidavit. Q. Q. Q. B said. Q. a judgment may now be rendered in favor of A? A. What does A do with this motion to which are attached these documents? A. the court finds that except to the . “I cannot pay A because I was not able to harvest any tobacco leaf. or other documents. execution by B of the promissory note. To B.

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amount of damages the plaintiff is entitled as a matter of law to a judgment because the issues raised are not substantial but they are merely sham, then the court will render a judgment in favor of the plaintiff. But if the court examined the pleadings, documents attached to the motions and oppositions and finds that they are disputed and therefore cannot render a judgment on the call of the motion, then the court will, in addition to examining the records shall determine what are the facts that are not substantially disputed, separate them and determine the facts which are not disputed, thereafter the court will conduct a trial on the matters that are disputed and thereafter render the judgment. See now why it is summary. Because there is no reception of evidence if the court finds from the pleadings that a judgment can properly be rendered in favor of the plaintiff. Q. What now would be the basis of the judgment? A. Only the pleadings and the documents attached to the motion and the documents attached to the opposition if there is any. Q. Did you notice in our example whether these documents attached to the motion or to the opposition were personally offered? A. No, they were not formally offered. They are merely attached. Q. What do we learn about the “offer of exhibits”? A. No evidence shall be considered unless the offer is made and the purpose of the offer is specified. Here there was no purpose, here the purpose was not specified, but they were introduced. That is how summary judgment works. In our case, it was the plaintiff alone who filed it. Q. When will A file his motion for summary judgment? A. After B has served his answer on A. Q. Cannot B also file a motion for summary judgment? A. Yes, the rule says, “at any time.” Q. Does that (“at any time”) mean that even before B has served his answer on A, he can now file a motion for summary judgment? A. Yes. This is the distinction between a motion for summary judgment on the part of the plaintiff and the motion for summary judgment on the part of the defendant. In the case of the plaintiff , he cannot file the motion for summary judgment until he has been served the answer. And this is for obvious reason, how can A determine whether there are issues generally raised if there is no answer which have been filed. But in the case of the defendant, no! He does not have to file the answer, because on the basis only of the complaint, a summary judgment can be effected. A subject for a summary judgment on the part of the plaintiff is not limited to the claim he has against B (defendant). It may also include a claim arising from a right involving a declaratory relief. Summary judgment for claimant. A party seeking to recover upon a claim, counterclaim or crossclaim or to obtain a declaratory relief may any time after the pleading and answer thereto has been served, moved with supporting affidavit, depositions, admissions for summary judgments in his favor upon all or any party thereto. Q. How does this rule that a summary judgment may be obtained in case of a counterclaim or a crossclaim arise? A. In our example for instance, in this action for money, B has a counterclaim against A. Q. Can B file a motion for summary judgment on this counterclaim? A. Yes. Q. When? A. After A has served on B his answer to the counterclaim, then B can move a summary judgment on the counterclaim. Let us suppose that B has a cross-claim against C. Q. Can B file a motion for summary judgment on the cross-claim against C? A. Yes, after C has served on B his answer to the cross-claim. Q. What will be the procedure? A. The same procedure that may be adopted by A if he files a motion for summary judgment against B. The right to file a motion for summary judgment belongs both to the plaintiff and the defendant. The only difference being that, in the case of the plaintiff, he can file a motion only after he has been

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served with the answer to his claim. In the case of the defendant, he can file his motion for summary judgment at any time even before he serve his answer. A counterclaimant, a cross-claimant can likewise file a motion for summary judgment with respect to the counterclaim, with respect to the cross-claim at anytime after an answer thereto has been served on him. RENE NOTES: * Summary Judgment is especially applicable to special civil action for declaratory relief. * Proper only in actions 1. to recover a debt 2. for a liquidated sum of money 3. for declaratory relief SUMMARY JUDGMENT * based on the pleadings, depositions, admissions and affidavits * available to both plaintiff and defendant * there is no genuine issue between the parties, i.e. there may be issues but these are irrelevant * 10-day notice required * may be interlocutory or on the merits JUDGMENT ON THE PLEADINGS * based solely on the pleadings * generally available only on the plaintiff, unless the defendant presents a counterclaim. * there is no issue or there is an admission of the material allegations. * 3-day notice required * on the merits JUDGEMENT BY DEFAULT (Rule 9) * based on the complaint and evidence, if presentation is required * available to plaintiff * no issues as no answer is filed by the defending party. * 3-day notice rule applies * on the merits

Rule 36: Judgments, Final Orders and Entry Thereof Section 1. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly, the facts and the law on which it is based, signed by him and filed with the clerk of court . Section 1 of Rule 36 provides that the court must render a judgment. The rule requires that the judge himself must personally prepare the judgment. Q. Does this mean that the rule requires the judge to be a typist or stenographer? A. No. Why? The requirement that the judge must personally prepare the judgment simply says that the judge must be the one to ascertain the facts that are established by the evidence. The judge for instance, cannot commission the clerk of court to study records of the case, evaluate the evidence and then write the decision. The rule requires the court to examine the records and evaluate the evidence, come up with the conclusion and thereafter make the decision. The mechanical act of writing a decision can be delegated to a third person. So, this is how it is done. The judge examines the evidence hereafter arrives at a conclusion. Q. So what does he (judge) do? A. He now calls on his secretary or his stenographer and dictate to the stenographer. The stenographer thus writes the decision. Thereafter the judge signs it. Q. Is this a decision that must be personally prepared by the judge? A. Yes, because the rule does not require he (judge) would be the typist or stenographer, otherwise he would not have devoted so many years of his life studying law only to become a typist or a stenographer. The rule further requires that the judge must make in his decision the complete findings of fact. Q. What is meant by this (complete findings of fact) ? A. A complete finding of fact presupposes that the court has studied the evidence and found out what the facts that have been established in by the evidence. What the law requires him to do is to make a finding of facts. The rule does not require him to make a conclusion of facts. For instance, the issue is whether A is the owner of the land in question. The court now assesses the evidence of A consisting of the testimonies of X, Y and Z. Evidence of B consisting of the testimonies of C, D and E. Exhibits of A are Exhibits “A”, “B” and “C”. Exhibits of B are Exhibits “1”, “2” and “3”.

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This is what the court wrote in the decision… “After going over the evidence presented by A and B, the court finds that A is the owner of the land. Wherefore, judgment is rendered declaring A the owner of the land and ordering B to surrender its possession to A. The court further orders B to pay A in damages in the amount of P1,000,000.01.” Q. Is that a findings of fact? A. No. That is a conclusion brought on the evidence. Q. What would have been the findings of fact here? A. The court should have stated in the decision the basis of its findings that A is the owner. Q. In this example, is there anything said in the decision, which supports the conclusion of the court? A. There’s nothing. So that when B for instance, appeals from the judgment, what will be the basis of his assigned error when there is nothing in the decision for which an error may have occurred. This is what the court should have done to support its conclusion that A is the owner of the land. For instance, it will say, “the evidence shows that this land originally belonged to X, the father of A. This land is covered by a Certificate of Title in the name of X. (exhibit “A”), X paid the taxes of this land. (Exhibit “B”) A has been in possession of this land until he died 1980. After the death of X, A, his son, took possession of the land. So, from this, you can infer why A is the owner. Those statements after the findings of fact. Those are supposed to be stated. A judgment should be in writing, dated and signed by the judge . Unless it is in writing and signed by the judge and dated, it is not a judgment at all. Q. Supposing the court promulgated a judgment in open court, is that a valid judgment? A. No. Why? Because a judgment is supposed to be in writing and duly promulgated. As long as the judgment, though signed by the judge is not promulgated, it is no judgment … Q. When is judgment deemed promulgated? A. A judgment is deemed promulgated on the day the judge gives his judgment or decision to the clerk of court. It Is the filing of the judge with the clerk of court that constitutes the promulgation thereof . In our example, the court render judgment in favor of A, already signed, but kept his judgment on his chamber. Q. Is this a judgment within the meaning of Rule 36? A. No. Why? Because it has not been delivered to the clerk of court. Supposing the judge delivers this to the clerk of court, Dec. 1, 1998. Q. When is the judgment deemed to have been promulgated? A. On this day, Dec. 1, 1998. It’s the delivery of the judgment to the clerk of court that constitutes its promulgation. Q. What are the parts of the judgment? A. You have the following: 1) opinion of the court; 2) dispositive portion of the judgment; 3) date of judgment; and 4) promulgation Q. What is meant by the opinion of the court? A. The opinion of the court consists of the findings of fact of the court. Its findings of facts would be the basis of dispositive portion of the judgment. For instance, A. vs. B. The court rendered a decision. The first part of the judgment is the discussion of the court of the evidence. Supposing, from its discussion the court concludes that A is the owner of the land. Q. What now is the judgment of the court here? A. It is that part of judgment or decision which adjudicates the rights of the parties. It says here… “WHEREFORE, the court hereby renders judgment declaring the owner of the land.” This is the judgment. This is the adjudication of the issues of the parties. Q. Is it possible that there be a contradiction between the opinion of the court and the judgment of the court? A. Yes, it is possible.

(joint) a judgment may be rendered against one or some of them in the meantime. But the dispositive portion says.00 which pertains to C. .000. Thereafter.” You will notice that there is a discrepancy between the opinion of the court and the dispositive portion. Its suspended. in the jurisdiction of the court. After the court has heard all these (two causes) causes of action including counterclaims that A had been raised with respect to these two causes of action. Can you have this case? A. In the case of several judgments.000. Q. So the court can tender a judgment at here. Let us assume that A prosecute his case against B only because in the meantime C although sued and inspite his answer in that in the meantime. what is the difference between a separate judgment and a several judgment? A. Let’s say. the judgment that may be rendered here will only cover the liability of B to the extent of P250. Q. A is the owner. permissive counterclaim against A. So we call these judgments here several judgments. The private counsel appeared for a preliminary investigation. So there are three causes of action against B. there are two or more defendants and the liability that they have with respect to the obligation is joint. and in the dispositive portion. So what do you notice here? A. There are two judgments. So the court tries the case with respect to B only. Let us say. Q. The liability of B and C is joint. In case like this. the court ruled the motion to disqualify the private counsel is denied. However. In the meantime that this case against B is being heard. One with respect to A and B and the other with respect to A and C. You render a judgment only one. Q. What can be done in the trial of this case? A. in our example here. B has several defenses. Then the court will render a judgment on these two causes of action holding in abeyance the hearing on the third cause of action.00. this cannot be done. So if the obligation of B and C is solidary. the case against the others may be held in abeyance and thereafter. the court hereby declares B the owner of the land and dismisses the complaint. Q.000. (Notice that the opinion varies with the dispositive portion. So the court rendered a judgment against B in favor of A. 2. the court will limit its judgment to the amount of P250. “Wherefore. When C is back in the Philippines. No. the discussion and the opinion points to this conclusion that A is the owner of the land. What’s the concept of several judgments? A. If the liability is solidary. Can this be done? A. How about separate judgment. Yes. the judgment will be limited only to P250. Since the public prosecutor was not in court and there was no authority of the private counsel to represent the state he has brought to present the evidences of the state. The owner of the cow supposedly stolen engaged a private counsel. the court may now hear the case against C and another judgment may now be rendered.81 For instance. Since the liability is joint. This reminds Judge Laggui of an incident where the counsel for the accused appeared for preliminary investigation in the case of theft of large cattle. The dispositive portion should prevail) Q. Q. So this case by A against B can proceed to finality.0 corresponding to the liability of C. another judgment may be rendered. so when the court renders its judgment with respect to C. he is not the owner. Example: A is the creditor of B and C. 000. 3. what becomes of his case in so far as A and C are concerned? A. it is B. it will not affect the other P250. The court may conduct a trial with respect to these first two causes of action holding in abeyance the hearing on the third cause of action. the counsel for the private party is required to first secure the authority of the fiscal before he can proceed. After arguments.000. the court will hear this third cause of action. the counsel for the accused moved that the private counsel be disqualified on the theory that private counsel cannot appear for the state unless the public prosecutor has authorized him to do so. they argued a promissory note in favor of A for P500. Example: The causes of action of A are 1. This applies only where the liability of the defendant is joint and severable. Whereas the opinion of the court the discussion of the court. Because there was no prosecutor representing the state.

You remember the rule that entities without juridical personalities may be sued but when the answer is filed. This Sec. There are three (3). RENE NOTES: Requisites of A Judgment 1. Not yet. what are several are the number of defendants. if known . Y and Z will be set up in the answer. personally and directly prepared by the judge 2. Y and Z are sued as an entity but they do not have a separate juridical personality. when a several judgment is a prosper. the court. In case a separate judgment is rendered. Q. leaving the action to proceed against the others . what is several are the causes of action or claims or counterclaims. the names of the persons making up that entity without juridical personality must be stated. Then the court will render a judgment on this third cause of action. then the judgment against them will set out the names of the parties making up this entity. 6 Rule 36 refers to a case when the judgment involves an entity which has not juridical personality. the judgment against X. Must state clearly and distinctly the facts and the law on which it is based 3. may render a separate judgment disposing of such claim. In the case of several judgments. So here. made known to public or delivered to the clerk of court for filing. * The power to amend the judgment is inherent to the court before judgment becomes final and executory. no further amendment or correction can be made by the court except for clerical error or mistakes. the court may order its enforcement until the rendition of a subsequent judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. So how many judgments now do you have? A. The court will also hear separately the permissive counterclaim and thereafter render a judgment thereof. What do you consider as the difference between separate judgments and several judgments? A. It should contain a dispositive part and it should be signed by the judge and filed with the clerk of court. Several Judgments (Sec. Separate Judgments (Sec. It should be in writing. 6 Rule 36 When a judgment is rendered against two or more persons sued as an entity without juridical personality. if the entity is sued as X. . Q. Marketing. The judgment shall terminate the action with respect to the claim disposed of and the action shall proceed as to the remaining claims. This is what is meant by separate judgment. may it be executed or may be the subject of an appeal? A. 4 Rule 36) In an action against several defendants. Y and Z. Marketing. So you have separate judgments. because the court may defer the enforcement thereof to await the result of the hearing of the other cause of action. So. In separate judgments. the court may. Sec. Q. Y and Z. Not appealable. Promulgation – The process by which a decision is published. Once a judgment has attained finality (expiration of the period to appeal). upon 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. render judgment against one or more of them. This is now what is required when the judgment is rendered with respect to group of people who will not have separate juridical personality. for instance. officially announced. at any stage. the names of the individual persons who made that namely X. if X. coupled with notice to the parties of their counsel. * A judgment based on a compromise otherwise known as judicial compromise has the force of law and is conclusive between parties.82 So you will see that there is already a judgment on the first two causes of action. In this case of separate judgments. after the judgment in the first two causes of action has become final. 5 Rule 36) When more than one claim for relief is presented in an action. the judgment shall set out their individual or proper names.

the affidavit of merit consists of facts constituting all the fame. Procedure… now… Q. Because of FAME. At any time before the judgment has become final. otherwise the court will deny. the court will resolve the motion whether to grant it or to deny it. After the judgment has become final. relief from judgment. with respect to the ground. Q. he could not procure it. Let’s say. On what facts may this affidavit of merit may be filed? A. All the grounds for the motion for new trial must be alleged in the motion . after finality 1. Let us say. for instance. the affidavit of merit shall state the fact constituting his cause of action. not a motion for new trial. the ground is FAME. Mistake or Excusable negligence (FAME). if the motion for new trial of B is granted. then the motion will be granted. What are the requirements so that B must comply with? A. Q. which is prejudicial to his interest. The motion may if it was established that there were FAME that resulted in the rendition of judgment against B in this example. The judgment already rendered is set aside. appeal b. There are only two grounds for motion for new trial : 1) Fraud. it may be another remedy already such as petition for relief under Rule 38 but certainly. he discovered evidence which could either be testimonial or documentary and which evidence he could not have presented during the trial because even if he exerted efforts to procure it.) So. he must have to file a motion for reconsideration stating therein the ground(s). Why? Any ground already available at the time the motion is filed but not alleged therein is deemed waived. If the ground is newly discovered evidence. the newly discovered evidence is the document or a copy of the document must be attached to it. 2) Newly discovered evidence (NDE). Example: A vs. the motion now is set for hearing in accordance with Rule 15.83 * Attack of judgment may be direct or collateral Direct Attack a. What now will happen with this motion filed by B? A. Evidence which the movant could not have presented during the trial and which if presented will probably alter the result of the cast. Accompanying the motion must be his affidavit of merit. the judgment already rendered against him is set aside. If the basis is newly discovered evidence and the court finds that the newly discovered evidence. the remedy is no longer a motion for new trial. Within what period the motion for new trial or a motion for reconsideration may be filed? A. Q. Of course. What is the effect of the grant of the motion for new trial? A. In this example. then. who filed. So this FAME resulted in a judgment. Rule 47 Rule 37: New Trial or Reconsideration This presupposes that a judgment has already been rendered either for the plaintiff against the defendant or for the defendant against the plaintiff. So. (With respect to the affidavit of merit. This is a litigated motion and therefore should be set for hearing strictly in accordance with Rule 18. as if no judgment at all was rendered. Any of them can file a motion for reconsideration. Q. Q. which resulted in the judgment against the movant. He now wants that this judgment against him (B) is set aside and that a new trial be held. B The judgment was rendered against B. This evidence if presented will probably alter the result of the case. he should accompany his motion with a statement of a fact constituting his defense. Rule 38 2. If it is the plaintiff for instance. motion for new trial or reconsideration 2. So there are the only two (2) grounds. Accident. then the court will grant. before finality 1. What was the reason why a judgment was rendered against B? A. the motion must be accompanied by the statement of the person with whose testimony the newly discovered evidence is based. Because after a judgment. annulment of judgment. in case it is the defendant who filed a motion for new trial. .

meaning that more than one motion for new trial may be filed? A. that’s the basis. Q. If the new trial involves only C. their testimonies will be considered. only there. It will disregard the testimony of X. this will be set aside. The testimonies of Y and Z and exhibits A. The court may render another judgment after conducting the new trial. what evidence should be taken into account? A. Q. Q. Newly discovered evidence. it will be taken into account. Q. Supposing the defendants B and C. because at that time the first motion was filed. B and C. then the new trial will be limited between A and B. If there are additional witnesses. Y and Z. a party can file only one motion for new trial. What now is the effect of the order granting the motion for new trial on the evidence already received? A. Q. It will not include C. So the court will conduct a trial. It will not include B. then his testimony will also be taken into account. 2) when the judgment is contrary to law. B and C. Yes. Q. Nothing is discovered because they are not affected by these newly discovered evidence. Is there such a thing as “partial new trial”? A. All the evidence previously presented by A. Yes. The grounds for a motion for reconsideration are different. May a new trial be held only with respect to one of the issues? A. So.84 Q. they will be taken into account. because each of these defendants has his own right. In deciding this case now.” So if the evidence that is affected by this fraud is that coming from X. Supposing there are three (3) issues in the case. all the evidence previously presented by B including exhibit “I” and testimony of F. If the motion for new trial is based on FAME. When the ground of the second motion for new trial was a ground not existing at the time the first motion for new trial was filed. . For instance. What evidence may the court take into account? A. In deciding the case. let’s say. They are: 1) when the judgment has awarded damages which are excessive. In a motion for new trial. Q. What now becomes the evidence? A. a new trial is conducted with respect to B only. 3) when the judgment is contrary to the evidence. How many motions for new trial may be filed? A. Yes. Q. How about these testimonies affected by B? A. Yes. Yes. While this motion is pending. the grounds are those we already specified. This is if the ground is FAME. Q. Can B now file another motion for new trial based now or newly discovered evidence? A. The judgment on the second and third issues will no longer be disturbed. “the evidence affected by the FAME will be set aside. the only evidence consisting of the so-called newly discovered evidence is exhibit “I” for instance and F testimony. If they are not affected by FAME. the rule says. Q. the plaintiff being A. the evidence of the party consisted of the testimonies of X. So the court will render a judgment based on these evidence remaining. Yes. The general rule is. then the case will only be between A and C. Their testimonies will be considered. which qualifies as newly discovered evidence. B and C will remain. So. Q. testimonies of Y and Z and exhibits A. If there are two or more parties in one separate case. What is the distinction between a motion for new trial and a motion for reconsideration? A. So. This is how the motion for new trial is conducted. may a partial motion for new trial be granted? A. In this case. in the example the witness who already testified do not have to be recalled anymore. the motion for new trial is filed on the basis of FAME. A new trial does not have to cover the entire case. May a partial new trial be conducted only with respect to B and only with respect to C? A. if another witness will testify and say E. If there was another witness who testified. Is there an exception to this rule. and exhibits A. Q. the new trial will be limited to a trial of that only issue. this second ground was not yet in existence. defendant-movant B found evidence. So.

16. Rule 38 : Relief From Judgments. Remember the grounds: 1) Excessive Damage – all that the court does is to review the evidence and find out whether the damages are excessive or not. in the case of a motion for reconsideration. Commanded B to pay damages of P1M.when it does not comply with Rule 15 and Rule 37. No matter how the judgment is erroneous. 1998. the court can no longer alter its judgment. Why is it. the law recognizes the possibility that B may have lost the case by reason of matters not imputable to him. it does not point out specifically the findings or conclusions of the judgment as are contrary to law. Beginning Dec. A can now execute this judgment. that beginning Dec. Requisites for newly-discovered evidence a) must have been discovered after trial b) could not have been discovered and produced at the trial c) if presented would alter the result of the action Otherwise. under Rule 39. ans is merely intended to delay the proceedings or if there is no affidavit of merit. He has until Dec. all that the court does is to set aside the judgment and amend it? A. RENE NOTES: * Fraud must be extrinsic or collateral not intrinsic. However. * Forgotten evidence is not a ground for new trial. like in this case ……………. 17. but not with respect to the merits thereof. 2) Judgment is contrary to law – all that the court does is to review the law on that matter. If he does not. one of these days until Dec. No matter how erroneous this judgment is. 17. A can now execute this judgment under Rule 39. they can be filed only before the judgment has become final. the judgment was rendered against him by reason of FAME. These are the only things it can do. They. or Other Proceedings Petition for relief from judgment . 16. in the case of a motion for reconsideration. Orders. In the case of a motion for trial. Then the rule recognizes this. it is called forgotten evidence * A motion suspends or tolls the running of the reglamentary period for appeal except when the same is pro-forma. This is the judgment. Let’s say.g. we said. So these two differ. this assumes that the judgment has already become final. Ordered B to vacate the lot. So the only thing that can be done after the judgment has become final is to correct the clerical error or in a proper case. there is no reception of evidence. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. however. there is nothing that can be done but to execute it. The only thing that the court can do after a judgment has become final is to execute it under Rule 39. So . 1998 within which to do any of the following: 1) Motion for new trial. share a common point and that is. 3) Judgment is contrary to the evidence – all that the court does is to review the evidence. That’s why there is no need of trial. The inequity that may result to be. may clarify the judgment. as of Dec. e.85 With respect to the reception of evidence . 1. Of course. For instance. there is a reception of evidence. And the matter of fact that the judgment or final order has already been entered. there is no trial anymore. Dec. in our example. 1998. 1998. Let us say that the judgment in favor of A declared A the owner of the land. 17. if this judgment procured under that circumstances will be made. 1998. there are certain things that a court may do with respect to a judgment that has already become final. Q. PRO-FORMA MOTION . So. you receive the judgment in favor of A. 2) Motion for reconsideration. 1998. You know that once a judgment has become final.

The fact that his own lawyer connived with the plaintiffs for his defeat. Q. Q. 1998 within which to file his notice of appeal. for example. Period within which a petition of relief must be filed within 60 days from the time the petitioner learned of the judgment of the proceedings and in no event beyond six (6) months from entry of judgment. B lost. After trial. In our example. the judgment was rendered against B. This is the concept of Petition for Relief of Judgment There is another matter covered by a petition for review and this is a situation where a loosing party was prevented from taking an appeal therefrom. B now wants to file a petition for relief from the judgment rendered. a judgment rendered by an inferior court (MTC for instance) and which a party thereto desires to file a petition for relief. case. the party who desires to avail of this benefit should do so subject to the conditions thereof. . or 2) A deprivation of a party of the right to appeal by reason of FAME. So. In what court should a petition for relief be filed? Let’s assume that this case between A and B was filed in the RTC Branch 1 of Manila with Civil Case#2345. he has until Dec. it is not extendible. He tried to investigate. Q. he is entitled to appeal. 1) A judgment rendered by reason of FAME or a proceeding attended by FAME. Q. Under the old rule. Q. Is this period extendible? A. So. In one case. a case was filed against B in the MTC. So if the case was filed in the MTC. Nevertheless. So. if B files the petition. the petition for relief must be filed with RTC. So. So there are two things that can be the subject of petition for relief. in 1995. That’s why Rule 38 speaks of Petition for Relief. A. But there can be case where this period may be extended. That means to say that he asked that this judgment be set aside. there was no FAME which gave rise to the judgment. the law gives B the opportunity to be relieved from his judgment. Why cannot the period be extended? A.86 under Rule 38. Consequently. he did not know the status of the case. Civil Case#2345. So the case will be now B vs. In what court and in what case should B file his petition for review. But he was prevented from filing the appeal by reason of FAME. he will ask that he will be relieved from this judgment. if you file a petition on the 61 st day following your knowledge of the judgment. what did he do? A. that petition is already filed out of time. So. The only time he had learned of the status of the case was when he received a writ of execution against him. It shows that a petition for relief is a continuation in effect of the case wherein the judgment was rendered. under Rule 38. A. What did he find? A. Because Rule 38 is an act of grace on the part of the state in favor of a party. Where will he file the case? A. then this petition for relief must be filed in the MTC in the same There is an amendment of the old Rule 38 in the present Rule 38. He should file his petition for relief in the RTC of Manila Branch 1 and in the same case (Civil Case #2345). No. 16. Q. File it in the RTC. This is not so now! The court which rendered the judgment is the court before the petition for relief should be filed. the defendant after engaging a lawyer never heard anymore from the lawyer. in our example for instance. Q.

Is it mandatory for A to file a comment or opposition on the petition? A. Is the court truly bound to give due course to a petition for relief? A. Judgment now will be whatever judgment. So. the court will first examine the petition to determine whether it is sufficient in form and substance. the court will grant the petition. the court may require B to post a bond in favor of A. 1) The court may deny the petition. Q. (Did you notice in our discussion whether B furnish A a copy of his petition.87 A vs B. B may file a motion for issuance of an injunction to restrain the execution of the judgment. engaged Atty. No. but after the period of filing thereof has expired. it does not want to hear the petition. Q. Let us assume in this example that the court gave due course to the petition of B. The rule says. B is required to post an injunction bond. In the absence of any period. The court allowed the petition for relief to be given course.” 2) The court found that there is FAME which resulted in the judgment and in the case. How would A know that a petition was filed against him by B? A. So. In the meantime B filed a petition for relief. “thereafter. What now is the effect of the grant of the petition on the judgment already rendered? A. What would the court do in this case? A. But if he denies due course. The judgment previously rendered is set aside. Q. What is the available remedy to B so that pending the termination of this hearing of the petition for relief. A will not succeed in having that judgment he executed? A. Whether or not there is a comment or opposition. A. before the court restrains the sheriff from enforcing his judgment. Of course the court will grant A a period of time within which to file his comment. it is the court that serves on A a copy of the petition. thereafter the court will resolve the petition. the court shall hear the case as if a timely motion for new trial are granted. . So. What do you notice here? A. Q. Based on these facts. the court after giving due course to the petition of B. No. Q. So. it is not B. C. If the court finds that the petition was sufficient in form and in substance. It will now issue an order directing A to file a comment on the petition. What are the possibilities? A. Q. the judgment has already become final. Accompanied in this order is a copy of the petition of B. For the purpose however of protesting also the right of A. it agrees to hear it. So it says “there is no FAME that resulted into a judgment against B. If it is not. B now filed a petition for relief long after the judgment against him has become final. issued an order commanding A to file his comment. Atty. B must present evidence in support of his petition. A already filed a motion for execution. the court will now set the date for the hearing of the petition. the court will receive evidence addressed during the hearing so that it may be considered thereafter the court will render a judgment. Q. In our example. it will give it due course. It may happen that under the second judgment may be in favor of B now or may still be in favor of A. the period shall not be less than 15 days from service of the order. if he so desire. there’s no longer any judgment to speak of. Q. This case will be the second judgment. In other words. then the court will dismiss it. Let us see why…… After B for instance has filed his petition for relief. Why? If A files a comment or opposition as if he does not file the comment or opposition. in our example. may present evidence in opposition. What follows after that? A.” The court will now hear the case anew as if a motion for new trial was granted. He was a victim of a fraud committed by his very own counsel. the court will set the petition for hearing to determine whether said petition is meritorious or is not meritorious. He did not serve the petition to A. Q. C connived with A.) . There is such a thing as an injunction that the court may issue while the petition for relief is pending. meaning.

* FAME * Judgment on final order * Two Hearings (a) hearing to determine the judgment be set aside (b) if yes. What is the prayer for that petition for relief? A. the judgment was rendered by the RTC Br. Satisfaction and Effect of Judgments Q. B files a petition to be relieve from the fact that he was not able to file the appeal. Q.and 2) pay A P1M. In our example. What is the concept of Rule 39? A. the petition to be relieved from failure to appeal is granted. Then the court will order the appeal to be given due course and that therefore. He wants now that he be allowed to appeal. Why? Because you can still avail of this other remedies. It is said. it involves also the failure of a party to appeal because he was so prevented by FAME. 1 will give due course to the appeal of B. So. 1 Manila and petition for relief prayed that the appeal of B from the judgment be allowed. this is the last resort that a loosing party can avail of to set aside an unfavorable judgment. Then what is the relief that the court would grant? A. So. So. No. * More on equity (Discretionary) * FAME only * Relief from judgment/order on other proceeding. What could be the reason that would justify the grant of his petition? A. Let’s see the other aspect of a petition for relief. a hearing on the merits of the case Rule 39: Execution. 1998. Q. if the motion for reconsideration is still available. What is the remedy? A. So that if B does not pay him damages awarded to A. the petition was denied or after hearing the case. . Can you avail a petition for relief? A. So the procedure to be followed by B would be the same as he would have followed if the petition was to set aside the judgment by reason of FAME. Q. In case damages where suffered by A as a result of the issuance of the injunction and after hearing the petition. So in our example. This judgment became final on Dec. he was prevented from appealing because of the FAME. the RTC of Manila Br. File a petition for relief. 1. B failed to file the appeal. Q. the court where the petition was filed and which rendered the judgment appealed from will elevate the records tot the appellate court. then A can go after the bond. The justification was. Example: The judgment commanded B to do these things: 1) vacate the land. The judgment has become final. the court will now elevate to the appellate court the entire records. 1998? 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. So. That he be allowed to appeal. may now be answered by the bond B posted. Q. then whatever damages A may have suffered by reason of the issuance of the writ of injunction.88 Q. Petition for Relief It is available only when the other remedies against a judgment are no longer available. For what is this bond responsible? A. * A legal right. Judgment not yet final. 2. Can this judgment now be altered on Dec. the judgment is nevertheless in favor of A. Then when the petition is granted. or if a motion for new trial is still available: Q. RENE NOTES: NEW TRIAL/RECONSIDERATION * must be filed within the appeal period. So. the motion for new trial having been granted. in our example.

1998 and by B by Dec. the order does not put an end to a case. that cannot be altered anymore.” We mean to say that B should now be required to vacate the land and pay P1M to A. Why? Because effective Dec. Suppose the motion to dismiss was granted and therefore the complaint is dismissed. A has only until Dec. the order denying the motion to dismiss is an interlocutory order. Let us take the case of order of dismissal granting the motion to dismiss. Final with respect to the appealability of the judgment or order. 1998 within which to file a notice of appeal. This is how it is distinguished… Q. How will this command of the court be carried out? A. Let us say. considered in the sense with respect to the appealability of the judgment or order. Thereafter. Is this order of denial a final order from the point of view of appealability A. In the case of interlocutory order . What is meant by final judgment? By final order? A. So in our example therefore. Then we say that this judgment is final from the point of view of enforceability. That is carried out in accordance with Rule 39. In our example. 18. to execute it. 1998 and B has only until Dec. it can be set aside at any time. The rule said. pre-trial and then judgment. after its judgment. The sheriff cannot execute this except in the manner Rule 39 provides. “in a judgment. Every step that finally leads to the accomplishment or the execution of its judgment is provided for in Rule 39. . B will file the answer. it cannot be executed. the prevailing party.” Q. You cannot appeal from an interlocutory order because by its very nature. No matter how erroneous this judgment is.” This means to say that. a final order or a final judgment is one which can already be enforced because the period for an appeal therefrom is already without an appeal having been taken. if an order has not yet become final. This is the essence of an interlocutory order. This is the general rule. The sheriff is the officer entrusted by the rules to execute this. it can no longer be set aside. Form the point of view of appealability Q. the order finally disposes the matters involved in the case. a motion for reconsideration or a motion for new trial. A in our example. When we say.89 A. there is still something to be done with respect to the merits of the case. What makes an order interlocutory. Q. Q. For instance. 2. What makes an order final from the point of view of appeallability? A. “all that is to be done is to implement that judgment. Q. What kinds of judgment or order can be executed? A. 16. Of course this is subject to Rule 38. Is this order granting the petition appealable? A. What are the matters to be taken up under Rule 39? Q. “only a final judgment or order can be the subject of execution. It is always within the control of the court as oppose to a final order. 1. From the point of view of enforceability . B. Why? Because after the order has been issued. Yes. 17. can already enforce this. Q. It does not put an end to a case. B filed a motion to dismiss. From the point of view of appealability…. There is something else to be done after its issuance. if a judgment was received by A on Dec. Why? An interlocutory order is not appealable. A vs. No more. But they have not done this up to this day. Justice Regalado points out in his book the concepts in which a final order or judgment is considered final. The motion to dismiss was denied. Let us see…. All that is to be done now is to execute it. No. This is the concept of Rule 39 (Execution). Why? Bec. In carrying out the judgment. So. This is not a final order from the point of view of appealability. Meaning to implement it. 1998. there is still something to be done with respect to the merits of the case. This is the meaning of a final order or judgment from the point of view of enforceability. 1998. From the point of view of appealability and from the point of view of enforceability…… what is a final order? A. the sheriff must follow strictly Rule 39.

B. 2003 within which to execute this judgment by mere motion. That the judgment was not executed by motion within five (5) years from its finality of judgment. He has a period ending five (5) years from Dec. Q. A will file this motion for execution in the same court. 1. Q. Where will the action be filed? A. 1. Example: A vs. It is not a real action. 2003. the venue could be the residence of the plaintiff or the residence of the defendant at the option of the plaintiff. it will be governed by Rule 4. A can file this action. A is a resident Sulu. 1998. Q. 2003? A. This being a personal action. all that A does to secure this writ of execution is to file a motion on the same case Civil Case #2345 RTC Manila Br. A now file an action against B for revival of judgment in the RTC of Sulu or Batanes at the option of A. 2003 is the last day of the filing period. What is now your prayer? A. Q. by action.90 Q. Q. Because an action to revive a judgment is a personal action. You can enforce it if you can procure a judgment in this RTC of Sulu or Batanes. Your allegation would be this… That you received a judgment in your favor in Civil Case # 2345. 2. 1. Within what period can A file a motion for the issuance of a writ of execution? A. What we are talking about in Rule 39 is a final order from the point of view of enforceability . 2003. It can now be enforced by action. 2003 within which to file the action. Q. this judgment can no longer be enforced by motion. So. it became final Dec. 2003 or Dec. 2. What is the effect? A. That is why it can now be a subject of the appeal. Q. Why not Zambales? A. 1. 1. Do you revive a dead man? A. Q. No more. B is a resident of Batanes. 2003. . What do you notice? A. Dec. what would you allege in your complaint? A. 1998 to Dec. there was no appeal from this judgment. There is nothing else to be done on the merits of the case. Q. Q. can this judgment now against B be enforced by motion? A. A wants a writ of execution to be issued. We said that the complaint is dismissed. 1998. So. So this judgment rendered in Civil Case #2345 can no longer be enforced by mere motion. Our assumption is. Let us assume that the land is located in Zambales. 2003. Yes. 2. Within what period can A file his action? A. What do you associate revival? Q. No more. No. He has five (5) years from finality of judgment which is equivalent to entry of judgment within which to do so. Example: Within this five-year period from Dec. 1. What does this mean? A. Let us suppose that Dec. Is there a remedy by which A can still enforce this judgment after Dec. A separate action. This judgment was not executed by motion within his five (5) years. Q. Starting Dec. Q. You now pray that the judgment rendered in that case be revived. Is there anything else to be done in the case after the complaint is already dismissed? A. Dec. this is the difference between a final order from the point of view of appeallability and from the point of view of enforceability. 1. This judgment because final on Dec. If you were A here. 1. 1. So. So. Sulu or Batanes. 1. The judgment has already become final in the RTC. he (A) has up to Dec.

an action to revive? A. Where will you file the motion for execution? A. The rule says. B appealed to CA. Civil Case #2345. Who then is revived? A. he will now get a copy of entry of judgment duly certified by the CA. the five year period ended Dec.” Q. The remedy…… A will secure a certified copy of the CA judgment. Q. the judgment became final Dec. Yes. In this example. This case is still with the CA but the judgment already became final Dec. 1998. Here are the possibilities…. Q. 1. Can you now execute the judgment of revival? A. Q. Q. 1998. By motion again. You now can file the action within five years again.91 Q. B RTC of Manila. Q. So. 1998. “it must be filed before the action is barred. For the purpose of filing the action for revival. Q. 1. in what case then will you now file the motion in the RTC? A. Q. Our assumption here is. Yes. there are periods fixed. CA rendered a judgment affirming the RTC judgment of the CA became final Dec. A has a period of five years from the expiration of the original 5 years within which to file the action for revival. So you can revive the revived judgment if it was not executed within the 5-year period. Q. Let’s take the second possibility…… A vs. Within what period? A. 1. Q. Why do we call this action to enforce the judgment rendered in the civil case. Civil code provisions state the periods during which actions may be filed. What do you do? A. 2003. Revive so it can be enforced. Dec 1. Because after the 5-year period during which the judgment was not enforced that judgment in a sense fell into a coma. You did not execute the judgment in that revived action within the 5-year period from its entry. Where do you find the rule to apply whether the action is barred or not? A. You can file in the RTC. In effect therefore. You resurrect him if you can. Q. in what court may you now file the motion for execution? A. in our example. By motion also within 5 years from entry of judgment in the revival action. In certain actions. How? A. We are talking of a judgment. Let us assume that the judgment for revival is granted. What do you do with it? A.. 1. you have 10 years from Dec. 1998. 1. 2003. But the records of the case are not yet in the RTC. What will A do with these two? . If you were A. But the records are still there. Q. You are A who would want the judgment of CA be executed. He who is unconscious. You now want that judgment in CA affirming the judgment of RTC executed. Can you now execute it? A. Within what period should an action to revive be filed? A. Q. which can be enforced or executed only after it has become final and that it can be executed in the court where the judgment was rendered. the action to revive the judgment should be filed within 10 years from the day the judgment in Civil Case #2345 has become final or when it was entered.

1997. a recognized writer in Remedial Law opines that the CA may still issue the order directing the RTC to issue the writ although the records are already with the RTC. Q. So. What is the effect of this notice of appeal filed by B in so far as he is concerned? A. 16? A. It cannot modify anymore the judgment insofar as B is concerned. 16. Yes. Now. Yes. Will the CA issue the writ? A. 15. May A file still with the CA a motion for execution? (The records are already in the RTC. the appeal here of B does not affect the rights of A up to Dec. Q. 13. Yes. Q. Q. Q. Attached to that motion. Can the court still reconsider this judgment insofar as A is concerned? A. B received the judgment on Nov. That is only the view of Mr. which has not yet become final be the subject of execution? A. the RTC in our example. if A files a motion for reconsideration on this judgment let’s say on Dec. Justice Regalado. Q. but it can no longer change the judgment insofar as B is concerned. you distinguish between the order directing the issuance of a writ of execution and the writ of execution itself. This motion for execution is now accompanied by these two certified copies so that although the records are still in the CA. Q. Look… Is this judgment already final insofar as A is concerned? Not yet. B has Dec. So far we have been talking of execution of judgments. B . A receive the judgment favorable to him on Dec. 2) Motion for new trial. Yes. A can file with the CA the motion for execution. Q. Regalado. Don’t be misled by this comment on this as you may find in his book you can opine otherwise and be sustained by the SC. What will it (CA) issue? A. Example: A vs. no longer with the CA? A. 1997. or 3) Notice of appeal. 1. 16. 16 within which to do any of the above-stated. 1997. and 2) Entry of judgment Of course the motion for execution filed in the RTC should be heard in accordance with Rule 15 . 11? A. He will now attach them to the motion for execution. 28. No. 15 or four (4) days after the appeal of B has been filed. certified copy of: 1) CA judgment. he can still file. A file a motion for execution. Q. So A has until Dec. That means to say that B must be notified. File in the RTC a motion for execution. the court can no longer touch the judgment. but then this is the exception.) May the CA nevertheless issue an order directing the RTC to issue the writ considering the records are already in the RTC. May a judgment or order. B filed a notice of appeal. This is what happens… On Dec. In other words. 1997. Can the RTC now enforce this judgment of CA although the records are still there? A. Why? Because this is a litigated motion. Yes. 1997. Yes. Insofar as B is concerned. *This is not a decided case. What RTC issues is the writ itself.92 A. 11. to issue the writ of execution. because A has until Dec. . Q. It will merely issue an order directing the trial court. May not A file in the CA the motion for execution while the records are still with the CA? A. the RTC can now act on the motion. Supposing these records are already turned over to the RTC and that’s already final. Can A still file his motion for execution considering that the judgment is not yet final insofar as A is concerned because this will become final only as to him on Dec. what is issued by the CA is the resolution directing the trial court to issue the writ. On Dec. In this example. 1997 within which to do any of the following: 1) Motion for reconsideration. But can the court still modify this judgment insofar as A is concerned after Dec.

Yes. So the case is pending now in the Q. Q. Is it only in the trial court that the motion for execution pending appeal may be filed? A. to place them beyond the reach of the plaintiff A who obtained a judgment in his favor. What is the lifetime of a writ of execution? A. What is a special reason? A. Can this judgment nevertheless be executed? A. Can the court rule on this motion of A for execution is filed. A. Q. Q.93 Insofar as B is concerned. No more. and the judgment become final. in our example. this is an appeal to the judgment. Yes. 21? A. Q. B is already on the verge of bankruptcy. So this is a matter that is left to the discretion of the court to determine. Will this be a good reason? A. No. The imminent bankruptcy of B and the fact that he was disposing his properties with evident intention of depriving A of the benefits of the judgment may be considered a specified reason. The rule says simply that the court may issue execution for a special reason to be stated in a special order. If it thinks that it is a good reason to execute the judgment is affirmed on appeal. the plaintiff is already assured of payment. the law requires that the order must state the special reason why the writ of execution was issued. he started disposing his properties. So. In the absence of the statement in the order of what constitutes a special reason. the period for appeal has not yet expired. there will be a violation by the trial court of this Rule 39. which is not yet final. special or otherwise. what will happen to these perishable goods if you still wait until the judgment become final to execute it. Q. What is a writ? A. they may have already been spoiled. Should A file a motion for execution based on this ground? A. there will be nothing left already on the assets of B which can be levied upon to satisfy the judgment. it is the court that determines. What would be the justification for the court to issue an execution against B while the case is pending appeal? A. 1997. The rule does not say so. Why? Because if you wait until the judgment become final. Q. Q. were elevated to the CA on Dec. 20. . Supposing the judgment ordered the defendant to deliver A a quantity of perishable goods. A writ is a command of the court addressed to a proper officer normally the sheriff commanding him to execute the judgment. Evidently. It’s up to the court. Supposing the records however. While the case was pending. the court has not yet lost jurisdiction of the case insofar as A is concerned.) Now if the court issues a writ of execution pending appeal. Why? The records are no longer with the court. Meaning…. may it now be a special reason that because of the nature of the goods. Q. Can the court now rule on this motion for execution on Dec. the prevailing party may also file therein a motion for execution. the execution of a judgment is proper to avoid these goods being lost? A. None. CA. The court then will determine whether there is or there is no special reason for the issuance of a writ pending the appeal. the case has been appealed by B to the CA. a motion can be filed by A in CA. So. By that time. 5 years Q. (It is the court that determines on a case-to-case basis. also as to him. When a case is pending in the appellate court. A judgment is rendered against the defendant B to pay a sum of money. Can A file in the CA a motion for execution of the judgment pending resolution of the case by CA? A. Whether the reason is good or not. let’s say meat for instance. Q. Q. Do you find any enumeration in the rules particularly Rule 39 on what constitutes special reason which justifies the issuance of the writ of execution pending appeal? A. Q.

Where lies the difference? A. These are not the only acts involve in a judgment. Under the old Rule 39. there may be a judgment commanding the loosing party to turn over the prevailing party the piece of land. To the sheriff. we now have a longer lifetime of a writ of execution. Who carries this (writ) into effect? A The clerk of court. It means to say further that during this five-year period. The lifetime corresponds to the period within which a judgment may be executed by mere motion. (Let us just take them for illustrative purposes). Consequently. the party who prevailed and who wants the judgment executed must again file a motion for the issuance of another writ of execution. To whom is this writ directed? A. What is a lifetime of a writ of execution? A. What then was the result under the old Rule 39? A. We have a judgment for instance which calls for a judgment involving special one. Q. Is it addressed to B? A.94 Example: On motion of A. What will the writ say? A. another writ can be issued such that by the end of the 5th year. under the old rule. the clerk of court issues this writ. This means to say that if the judgment is not executed within that 60-day period. Q.” Q. This is the final judgment that Judge Laggui would like to discuss to us… Example: . The clerk of court will issue in the name of the court the so-called “writ of execution. ( the dispositive portion of the judgment is quoted). Q. Q. (There is another directive there…) of the properties of B you are commanded to make up the sum of so much to pay the amount adjudged in the decision. 2. the court issued an order directing that a writ be issued for the execution. What is the modification now? A. Whereas this judgment has become final on this date (put the date) hence the court in its order dated so directed that a writ be issued. a judgment was rendered by this court the dispositive portion which read. No. “Whereas on Jan. no other writ of execution is required to be issued. There are several kinds of judgments that may be the subject of execution. What will the clerk of court do? A. Q. So. To pay A so much money… Q. So. And we could have a judgment called special judgment secured by A against B provided that B should tear down a concrete fence with B erected on a lot belonging to A. A judgment commanding specific acts to be done may involve any of the following: 1) payment of money 2) delivery of property 3) execution of deed conveyance These are among the judgments calling for specific acts. a writ has only a lifetime of 60 days counted from the day the sheriff received it. the writ must recite the dispositive portion of the decision and thereafter command the sheriff to implement it. 1998. Why? Because you now have to file an action to revive the judgment. you are commanded to execute the foregoing judgment. Wherefore. Q. What does this writ command the sheriff do? A. The sheriff can enforce that within this five-year period for as long as the judgment is not satisfied within the 5-year period. The rule says. that writ can no longer be enforced after the 60th day. this kind of judgment is not any of this judgment for specific acts. there may be a judgment commanding a party to execute a deed of conveyance. there can be no more writ to be issued thereafter. In our example. the judgment ordered B to deliver the land to A. Therefore. any service of the writ after the 60 th day would be already be an invalid service. all the writs have not been implemented.” So. It is addressed to the court personnel. Q. it automatically lost its force beginning the 61 st day. Q. If the writ was not executed within the 60-day period. there could be as many writs of execution issued within the five-year period for as long as the writ was not implemented within the 60-day period. So. Under the new rule.

the writ of execution issued to the sheriff is not accompanied by a copy of judgment. The difference lies in this fact. Province of Rizal. Can he (B) order the sheriff to do it? A. the writ of execution addressed to the sheriff is accompanied with a certified copy of the judgment. Judgment NOVATED by parties 4. What is the remedy under this rule? A. General Rule: Court cannot refuse execution UNLESS: (UCNID) 1. presents to the Registrar of Deeds. In the case of a special judgment … Q. arrest him! Send him to jail. Q. Q. Judgment has become DORMANT *Quashal of writ proper when: 1. It cannot vary the terms of the judgment it seeks to enforce. Improvidently issued 2. if B does not execute the deed. When will you release him? A. The court will simply say. No. Province of Rizal is ordered to cancel the title No. Will you release him? A. Judgment already satisfied . So he does not want to tear it down.” Bahala ka sa sarili mo! Tear it down. defendant here. must conform strictly to the decision or judgment which gives it life. commanding him to execute a deed of transfer in favor of A. Q. In our example. Meaniing since he was commanded to tear down that concrete fence. B must do it himself. 3) The Registry of Deeds. He himself must do it. “I will not. A. There’s another remedy. That in the case of judgment involving specific acts . Why? Because he must obey the judgment. this deed signed by C (not by B). Registrar of Deeds will register that and cancel the title of B.” Q. “I cannot do it. Q. Q. Q. A. What can the court do? A. the deed executed by this third person C is just as good as if it were B. B says. the the What is the effect of this deed executed not by B but by C? The rule says. Issued against the wrong party 4. In the enforcement of this writ of execution. Execution is enjoined 5. he will rot in jail. Execution is UNJUST or IMPOSSIBLE 2. B refused to comply with this order. Who will execute the judgment? Is it the sheriff? A. No. “the Registrar of Deeds. If he does not tear it down. Defective in substance 3. Equitable grounds like a CHANGE IN SITUATION 3. A vs. Q. So that when A. But he might say. It is the party. Province of Rizal is so ordered to cancel the title and issue another in the name of A. RENE NOTES: *A Writ of Execution to be valid. 2) B is ordered to execute a deed of transfer of this lot in favor of A. prevailing party.95 Supposing in this example. How does this differ from a judgment involving specific acts. How will this judgment be carried out? Let us suppose in our example. the court rendered judgment the dispositive portion of which commanded the following: 1) A is the declared owner of the lot in question covered by TCT No. B. involving special judgment. No. 2345 Registry of Deeds Province of Rizal. Q. 2345 in the name of B and issue another in the name of A. The remedy is this… The court will commission a third person to execute the deed in favor of A. What is the remedy? A Declare him in contempt of court. When he has obeyed tearing down. But in the case of a special judgment.

and cases involving the relation of a person to another. You will note that Sec. and that is when it comes to the probate of a will or the administration of the estate. issued without authority *Remedies of the Losing Party 1. GENERAL RULE: an order of execution is not appealable otherwise there would be no end to the litigation between the parties. “I am the owner”. What is the issue? A. cases involving the administration of the estate of the decedent. or to the condition. “No. After the trial. There are good reasons stated in a special order after due hearing. In 1998. There is only one exception to this rule that judgment is not conclusive. The first section covers: cases involving title to specific property. There is a motion for execution filed by the winning party 2. or in respect to the probate of a will. order an execution before the expiration of the time within which to appeal provided. the will of the administration. or status of a particular person or his relationship to another. The rule says (1) the judgment is with respect to the specific property. conclusive between the parties and their successors in interest of title subsequent to the commencement of the action or special proceeding. A said. C now files a case against A for recovery of this lot. conclusive on the title to the property. Rule 39 Sec. Direct or Collateral Attack against judgment SUPERSEDEAS BOND . may be as follows: a) In case of a judgment or final order against a specified thing. is dead. litigating for the same thing and under the same title and in the same capacity. (4) the judgment is conclusive on the personal. in its discretion. with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto. cases involving the political. 47: Effects of Judgment rendered by a Philippine Court The effect of a judgment or final order rendered by a court of the Philippines. or which was actually and necessarily included therein or necessary thereto . status or relationship of the person. This title now is in the name of A. When the terms of the judgment are not very clear. 47 of Rule 39 groups into three (3) the actions covered by the section. Let us assume that this judgment became final on 1978. “Who is the owner?” . When the order of execution varies with the tenor of the judgment * A revived judgment is a new judgment thus another 5/10-year period to execute and revive is given the party. b) In other cases.96 5. the judgment or final order is.” Q. or against the administration of the estate of a deceased person. 1) 2) 3) 4) 5) Q. political or legal condition of a person. and 3. Example: A filed an application for registration of title to a lot. The judgment became final. There is a notice of said motion to the adverse party. The judgment here is merely prima facie evidence that the testator or the person whose estate is under administration. (3) the judgment is conclusive to the administration of the estate.Petition for relief (Rule 38) or 2. however. The LRA issued the decree of registration pursuant thereto. * Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal. 1. Only B opposed. legal and personal condition or status of a person. the probate of a will granting a letter of administration shall only be prima facie evidence of the death of the testator or intestate. EXCEPTIONS: 1. I am the owner.one filed by a petitioner and approved by the court before the judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. a corresponding certificate of title OCT #1234. having jurisdiction to pronounce the judgment or final order. the judgment or final order is conclusive upon the title to the thing. cases involving probate of a will. C said. that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged. not other things like damage to property pending the appeal. 2. c) In any other litigation between the same parties or their successors in interest. What does the rule say with respect to the judgment that may be rendered in these cases? A. and (5) the judgment is conclusive on the relation of a person to another. * The court may. judgment was rendered confirming the title of A. (2) the judgment is conclusive on the probate of the will. It can be proven that he is alive.

This means therefore that the testator signed the will. a judgment in a probate case is conclusive as to the probate . If C has any claim over this lot. No! He may recover. 1. Supposing that he can show that the ownership of the land later on pass from A to him. Here now is A who filed a petition for the probate of the will. The law says. Why? Because the ownership was already decided with finality in that case. The court admitted the will in probate. as to whether the dispositions in the will are valid or not. This is not decided. No. Q What is meant by this? A. that title of A cannot be challenge anymore in any proceeding.” These are among the many formalities that the testator must have to follow. B now says that this will was a forgery because the signature was affixed by X without the knowledge of T. “ the judgment in that registration case is pertaining to as it does to a specific property is conclusive on the title. A says. “B” and “C” are admitted. “I am the owner. Why? Because under Sec. “I offer your honor Exhibits “A”. Of course. legal or political condition. He should have intervened. and i. the admission of the will in probate is merely prima facie evidence that T died.” On his own right deriving his title from A. Never mind!) Under Sec.” Exhibits “A”. the law says. “B” and “C” to prove that I am the registered owner. Q. “I have all these properties described as follows to my #2 for services rendered…” Q. However.” (even if it was actually signed by X.” So. So. This means to say that the will was validly executed as to the form. That means to say that C cannot be declared the owner of that land. “B” and “C” respectively. or his relation to another is conclusive as to such personal condition.97 During the trial. the judgment binds not only A and B but the whole world including C who was not a party. So the issue is: Is A the son or not of B? . But. Probate of Will The rule says. can it later be proven that T is still alive? A. and the decision.” Court: “Objection overruled. Q. Therefore. He did not. this does not mean to say that C may not be able to recover this lot. he should have filed his claim during the registration proceeding. Then all claims over this land that were not presented were deemed extinguished when the judgment was rendered. legal or personal condition of a person. Example: A sues B for compulsory recognition as a natural son of B. Because the judgment in the probate proceeding is conclusive that this will was validly executed. the certificate of title issued in that case. But supposingly. The parties thereto being only A and B. 47 (a) Rule 39. Is the ruling of the court correct? A. but in another cause of action. After his will was admitted on probate. You know that under the New Civil Code. A now was sued involving this will now. 1999. as contended by B. then he can recover. Yes. this being a proceeding in res. (Don’t forget that what is decided in a probate case is not the merits or validity of the dispositions in the will.) What is decided in the probate of the will is merely the question of whether or not the will was executed in accordance with the formalities required by law. So. This is what is meant by conclusiveness of the judgment in a case involving title to specific property. so that the will he executes shall be valid. Here. This is the meaning. Exhibits “A”. The judgment becomes final on Dec. the testator said. 47 Rule 39. the will was admitted for probate. Why? Because the presumption is that T is dead is rebutted by his appearance. each page if the will consists of more than one page be numbered and that the will must be attested by three attesting witnesses. Q. presented in evidence the judgment of the court in that Registration case. “the will must be signed by the testator at the end thereof and on every page on the left side. that is not decided. This what is meant by conclusiveness of title. Example: Here is the will of J. the truth is. E. status or relation. Yes. “the will was signed by T. A judgment involving the political. “I signed it!!!” Whether he did actually or not. I am not bound by the judgment. Will the court decide that in the probate? A. So for instance. A now the defendant. But if he simply says. because that was into the intrinsic validity. No more.” Court: “What does B says?” C: “ I object on the ground that I was not a party to the case. they must be acknowledged by the testator and the attesting witnesses before a notary public. This means to say therefore that his will was signed by the testator. that the will was signed by X? Never mind. in the will. there is a qualification here. there are certain formalities that must be followed by the testator so that the will will not be valid. Can the question of forgery of this will be raised later on? A. no longer matters!!! This is the meaning. B denied the claim of A that he is his son..

Since B has an estate. “”B is the father of A. 10. But the heirs of B alleged that A is not a son of B. Issue: same – ownership. the issue is: “Who is the owner?” Trial… A presents evidence to prove his ownership. Res judicata is a ground for motion to dismiss. You can litigate an issue only once. what do you do? You skin the carabao or the cow. Why are the parties the same when A and B are dead and the parties litigating are just their respective heirs? A. conclusive and cannot be altered. There is logic here… Supposing the heirs of B if allowed to prove that A is not the son of B. This is what is meant by the conclusiveness by the judgment in a case involving the relation of a person. Two. The judgment rendered in the first case on the issue of ownership is binding on all the parties in the second case.” The judgment became final on Dec. in Sec. This is the so-called rule involving res judicata. B presents his evidence to prove his ownership. B’s heirs said “We are the owners. Because their heirs merely stepped into the shoes of A or B respectively. Reindivicacion – Why? B’s heirs wants to recover. What did you notice here? A. And if a litigation is brought involving the same issue. involving the same causes of action. it’s either heirs of B against A or Heirs of B against heirs of A.” A’s heirs said. 1994. The judgment in any of these cases mentioned.” Issue: Who are the owners? Q. the parties are the same. Can this be decided in this case? A. Q. Example: A vs. A alleged that he is the natural son of B. Q.” So. That which have been decided in another case involving the same subject matter. Q. Q. they may now introduce evidence that A is the son of C and the court believes that C is the father of A. B now or if he (B) is dead. that issue cannot be litigated again. No more.98 After trial. the court said. You cannot litigate again for the same issue. . What is the nature of the action? A. A vs. In both cases. What do we learn from this? A. B or heirs of B vs. A is the son of B. In 1995. This question cannot be litigated again. where will this end? So there can be as many fathers as can be proven… This is not allowed. tomorrow he will be the son of C. the judgment rendered in the first case may now be pleaded in the second case. that which has been adjudged in a case or any matter that could have been raised in relation to that matter that has been adjudged is conclusive between or among the parties and their successors in interest by title subsequent to the commencement of the action or proceeding litigating for the same thing under the same capacity under the same title and in the same capacity.” B says. 47 (b) Rule 39 In other cases. So. Why? Because that judgment toward this issues which has been raised and decided is already conclusive and can never be changed anymore insofar as the same parties or their successors in interests are involved. The cause of action is the same. A’s heirs wants to recover. Q. “We are the owners.” Years later. What is the issue? A says. What is meant by this? A. A sued the heirs of B. heirs of A. 47 (a) Rule 39 is binding. The subject matter is the same – the land. “I am the owner. You cannot place the status of a person in a state of uncertainty because if he (A) is now the son of B. No more. Can the relationship of A as a natural son be litigated anew? A. B died succeeded by his several children. This is the evil sought to be avoided by this rule. Can you skin the same animal twice? You can skin it only once. Example: If you kill a cow or a carabao and you want to eat the flesh. the heirs of B. B for reindivicacion. “I am the owner. It simply means that where an issue has already been decided in one case. now. Q. Sec. file a case against A or if A is not alive. How many fathers now does A have? A. Judgment: “A is the owner. Q. A’s heirs.

99 Q. What is the basis now of the claim of B or the heirs of B in recovery of P1M? A. as plaintiff and B.” B says. Another rule… The fact that the parties in the subsequent case may not be exactly be the same as the parties in the prior case does not affect the application of the rule of res judicata. Can this suit for recovery of damages be maintained by B? Look… Q. Q. Naturally A filed a motion to dismiss on the ground of res judicata. Q. Q. he/they would not recover. Their claim of ownership. It was decided. Is the contention of the plaintiffs B and S. Yes. What are the other rules with respect to res judicata? A. That the effects of res judicata cannot be avoided by simply changing the nature of the action. “I am the owner. they argued that in the first case. correct? A. If she were sued then. they are not the same!) Q. Q. identity of causes of action. B and S are now the main plaintiffs. Example: You will note that this case between A and B. Q. What does this example illustrate? A. So long as the parties in the subsequent case represents substantially the same interest as represented in the prior case . What is the cause of action in the first? A. identity of parties. “I am the owner. Q. you have here. Here are the rules… The effects of res judicata cannot be avoided or evaded simply by changing the nature of the subsequent cause of action. What is the subject matter of the first case? A. Why S? Because S is the wife of B. Reivindicacion. Why? Because the money represents the value of the lot. Lot and money… is that so? A. identity of subject matter. then you have here res judicata. Ownership. In the second case. What is the subject matter of the second case? A. because if they were not the owner. But B and S argued that the rule on res judicata does not apply. Why? Because the parties in the first case and the parties in the second case are not the same. What the defendant A or heirs of A can do is to file a motion to dismiss under Rule 16 on the ground or res judicata. (So. in order that this second case will not be tried anymore on the merits? A.” Q. If these were the situation. Q. The judgment became final. But was not this question of ownership already decided? A. So. B and S now filed an action to recover the value of the land. but both actions are founded in the same facts. Money. Q. what is the remedy available to A or the heirs of A. A lot. she could have been sued merely as a nominal party. So. No. There was a mere change in the nature of action. What is the nature now of the second action? A. Recovery of money. So. Why? Because S being merely a spouse was not an indispensable or even a necessary party in the first case. This is a very simple form of res judicata. S was never a party. With her addition . What is the cause of action in the second case? A. No. So there is no identity. the issue is: Who is the owner of the land? That judgment was rendered in favor of A. the parties thereof are A. A says. What is the nature of the action in the first case? A. as defendant. he was declared the owner. Example: In the first case the defendant was only B. B now sued A for recovery of damages representing the value of this lot. In the second case. let’s say P1M. Q. Their ownership of the land. the parties are B and S as plaintiffs and A as defendant.

Sec. were not indispensable parties in the prior case. Par (c) of Sec. the question of possession is res judicata. in a forcible entry case. . “Who has the right of possession of the land?” Let us say that the judgment was in favor of A. Under this set of cases. the law says. Q. Therefore. and (b) In case of a judgment or final order against a person . Q. what do you notice here? A. So. there is or there are parties who were not parties in the prior case. “the other cases involving the same parties. so that if the question of possession can still be disputed. What was adjudged in a forcible entry? A. So. To allow the Municipal Trial Court to determine who is the lawful possessor. Why? Because the question of possession was already settled in the forcible entry case. Q. Only the question of possession the question of ownership here can still be decided. the judgment or final order is conclusive upon the title of the thing. Ownership. The only issue in forcible entry in . Here is an illustration of what we said earlier that in the subsequent case. C of Sec. What do you recall about forcible entry? A. What is his basis? He now argued that the judgment in the forcible entry case is already res judicata. which can now be decided. the additional parties. So B says. Why? Because under this rule (Sec. The court having found that A had been in possession of the land for 20 years continuously until B ejected him therefrom. It is already res judicata.” that has been adjudged in a prior case which appear on its face to have been directly adjudged or this could have been necessarily included therein. B in Civil Case # 1234. that judgment rendered in the first case is introduced as evidence in the second case. Example: A vs. this time for reivindicacion. the question of ownership may be decided. 47 of Rule 39 involves partial res judicata. 48 Rule 39: Effect of Judgment rendered by a Foreign Court The effect of a judgment or final order of a tribunal of a foreign country. After the judgment in favor of A has become final. only those matters that have been decided in that prior case is deemed res judicata in the second case. So. the rule says. The question of ownership can again be litigated. 47 (c) Rule 39 presupposes that there was a prior case between parties and that judgment in the prior case is invoked in a subsequent case between the same parties . But can there be now a dispute as to the question of possession. “In other cases involving the same parties that is deemed decided in the prior case which appears on its face to have been directly adjudged. So. That cannot be litigated anymore. Although you will recall that in BP 129 as now included in Rule 70 that.” Q. But only for this purpose. will not be a res judicata in the second case. A was declared the lawful possessor. No. this action for reindivicacion can no longer be litigated. the judgment will have been applied equally to S. Under the par. B for forcible entry. having jurisdiction to render the judgment or final order is as follows: (a) In a case of judgment or final order upon a specific thing . This is what A did. The issue is. involving possession. Since the question of possession has already been decided in that forcible entry case. in our example. 47 (c) Rule 39). 47 Rule 39. He filed a motion to dismiss this second case. 47 Rule 39. then the question of ownership may be decided. B sued A. what is settled in the forcible entry case is the question of possession. what is the issue here? A. So. Is the contention of A correct? A. The question of ownership is not decided in forcible entry. This is his (A) contention. It is only good in that case. The third part of Sec.100 as a plaintiff in the subsequent case. But with the introduction in evidence of the judgment in the first case. A judgment was rendered in that case. Can no longer be decided in the second case. That is what is meant by par (c) of Sec. But the decision is only for the purpose of determining who is the lawful possessor. that will not strengthen the case of the husband because with or without the wife impleaded in the first case. Q. But then the findings of the MTC as to who is the owner is not final. will not affect the application of the rule on res judicata. Example: A vs. “I am the owner. Q. No more. the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. B can prove that A was not in possession of the lot? A. there is still a part of the case in the second case. the rule says. That is why. So in the reindivicacion. Subsequent to that. there is another case between A and B or between B and A. “When the question of ownership is raised and the question of possession cannot be decided without deciding the question of ownership.

that judgment is conclusive on the title to that property. A judgment rendered by a foreign court cannot be enforced in the Philippines except by action. If a foreign judgment rendered in an action involving title to specific property. fraud or clear mistake of law or fact. clear mistake of law or fact. “the judgment of the US court is conclusive to the title. the judgment of US court insofar as title to the property is concerned is final. the right can be contested by showing lack of jurisdiction of the court. a party against whom the judgment is sought to be enforced in the Philippines can still question the judgment because it says here. lack of notice. “In any case. He (A) now files in the Philippines. it cannot be done. collusion.101 In either case. B was ordered to pay A money. fraud or clear mistake of law or fact. fraud. lack of notice. What is the effect of this judgment of the US court on the title on that property? What is the effect of this judgment of the US court with respect to his money? A. Q. OL 3. But in the last part. RTC of Manila for the enforcement of an action involving title or he will now file an action to enforce his judgment. 128803 Sept. Our courts do not enforce foreign judgment. What is the remedy available to A so that he can enforce this judgment? A. well. B involving specific property or personal action. B may repel the judgment by proof of lack of jurisdiction of the US court to render the judgment. “the judgment or final order may be repelled by evidence of a want of jurisdiction. the law says. With respect to the second case. want of notice to the party. OF&L . Q. Where the case in inferior court involves a special proceeding or one which involves multiple appeal is 30 days a record on Questions Raised 1.” meaning. the judgment or final order may be repelled by evidence of a want of jurisdiction. Q. “in either case. Lack of notice a clear mistake of fact or of law committed by US court. A and B came to the Philippines. collusion. QF 2. clear mistake of fact or of law. This case was filed in the USA. What is strange here is this… In the case of title to specific property. or the action in connection which a judgment may have been rendered is a personal action. want of notice to the party. Let’s say that the judgment was rendered in any case in favor of A. whether the judgment involves title to specific property or whether the judgment involves personal action. “it can be repelled by proof of want of jurisdiction. That is why under the last paragraph. since this is merely a presumptive evidence of right of A against B. Can that be done? A. but it can be repelled. Example: A vs. the action for money. CA G. So that is something strange about this… Foreign Judgment: Asiabest Limited vs. it was not enforced or executed in USA. NO. that judgment is merely a presumptive evidence that A has a claim against B. The trouble was.” Whereas under par (a). MTC (Rule 40) Mode of Appeal Notice of Appeal within the MTC Appellate Court RTC (No trial denovo) Period of Appeal Within 15 days from notice of judgment and on proper case within 30 days. Q. So. No. He must file an action in the Philippine courts for the enforcement of that judgment. 1998 (296 SCRA 539 Appeals Rule 40: Appeal from MTC to RTC A vs. 25. “In the case of title to specific property. Q. although this judgment has already became final in the USA. What is strange here? A. the rule says. in the case of specific property. he is declared the owner. Final. In the case of personal judgment. collusion. The rule says. B 1. In the case of personal action. yet under the last paragraph. A now files a motion in court for the execution of that judgment in USA. collusion.R. fraud.

Where the case in the inferior court involves a multiple appeal. RTC 15/30 days Q. What is needed for B here to perfect his appeal? A. B here cannot appeal directly to the CA.B. Q. File the notice on appeal on time. 15 days or in a proper case 30 days. a record on appeal being required. When there is a motion for reconsideration of the judgment of RTC.102 2. Judgment was Appealed to RTC Petition for Review on Certiorari (Rule 45) (question law only) CA: Petition Review for SC CA (Regardless of the nature of the question raised) Same (15 or 30 days) Let us first take the case of a judgment of the MTC. Only the corresponding RTC. the period of appeal is 30 days. What is the appellate court? A. this case now of A and B in the RTC. Q. Q. There is only one mode of appeal from a judgment of an inferior court and that is notice of appeal. Why? Because the RTC now will decide the appeal of B solely on the basis of the records of the case. There can be no direct appeal from the MTC to any court other than the corresponding RTC. Q. Same (15 or 30 days) Issue raised on appeal b) Appellate Jurisdiction Ex.) CA (15/30) appeal being required. So. A vs. So. the evidence presents as forwarded by the clerk of court of the MTC to the clerk of court of the RTC. What now is the duty of the clerk of court of the MTC upon the filing of the notice of appeal and payment of the appellate docket fee? . What would be his mode of appeal? (Mode of Appeal) A. RTC Exercise of: a) Original j. Q. but not by appeal. and pay the appellate docket fee on time. there are two things as an appellant here must do. Within the period for the taking of an appeal. He cannot appeal directly to the SC. So. the appeal period is counted from the receipt of the appellant of same (15 or 30 days) the order denying the motion for reconsideration. The period of appeal is as a rule 15 days from notice of judgment . he can go there. And on a proper case 30 days. B for specific performance (A won: B appeal) issues raised on appeal Notice of Appeal Filed with the same RTC that rendered judgment (question of law and question of fact or question or fact only. MTC Q. if the case is one between A and B and B appeals from the judgment. No. To what court must he direct the appeal? (Period of Appeal) A. A vs. So. With what court is this notice of appeal be filed? A. Notice of Appeal Q. N. How will this case of B be resolved by the RTC? Will there be a trial de novo when this case is before the RTC? A. If he wants to go to the SC. Within what period must he file the appeal? (Period of Appeal) A. B should also pay the appellate docket fee. B MTC. there is no trial de novo.

Q. the court dismissed it because the MTC has jurisdiction over (reivindicacion) cases only when the value of the property outside Metro Manila does not exceed P20. Let us take the second situation. the clerk of court of the RTC will now send a notice to both A and B informing them of the fact that. “the MTC has no jurisdiction. Let us say that the RTC agrees with the finding of the MTC that it has no jurisdiction. What will be the action of the RTC on appeal? A. So. 8 Rule 40. The appellate court. A may also file his apellee’s memorandum within 15 days from receipt of the appellant’s brief or memorandum. the motion to dismiss that the court has no jurisdiction but the RTC found that the MTC has jurisdiction. the court rendered now a judgment in favor of A. What is the effect of the failure of B to file the appellants brief. his memorandum? A. here dismissed the complaint of A on the basis of the motion to dismiss filed by B. It will not dismiss.000 and this property is outside Metro Manila. the MTC. The court will now decide the case on the basis only of the records and the evidence forwarded by the inferior court to the RTC. (Let us assume that A is the appellant…) The appeal may have been the result of the following: A for instance appealed from an order disposing the case without trial. So. He must furnish the parties: A and B with that certificates. Q. Upon receipt of the records. What now will the RTC do on the case? A. Q.000.” Let us assume that in this example. may now file his memorandum on appeal. It will return the case to the MTC for further proceedings. It will return the case to the MTC for further proceedings. Q. What is the duty of the clerk of court with respect to this certificate issued? A. What will the RTC now do? A. The appellee. So B appealed. No jurisdiction notwithstanding.103 A. Q. That could be a cause for the dismissal of the appeal of B. Sec. B now files a motion to dismiss on the ground of lack of jurisdiction. the basis for the motion to dismiss by B is proper. The court (MTC) has no jurisdiction. the appellant. What now is the duty imposed by the rules on the clerk of court? A. Q. So. the MTC has no jurisdiction. Let us suppose that the motion to dismiss was based on lack of jurisdiction. will have the power to affirm the order or reverse the order. Supposing the apellee A does not file the apellee’s brief or memorandum. it will try the case. contrary to the holding of the MTC. the court found that. So it’s the duty of appellant B to file his memorandum on appeal within 15 days from notice or from within such period that appellate court may grant. the brief is called memorandum. the court will try the case if this case was originally filed with the RTC. The court found that indeed the MTC have no jurisdiction. So. but in case like this. What will be the remedy available to the RTC? A. The RTC affirms the order. Q. certify to the completeness of the records. Here. So. Why? Because anyway the memorandum of the appellant B is already there. Let say B filed a motion t dismiss on the ground that the complaint does not state the cause of action. Yes. Will not the court then hear A and B and receive their evidence? A. RTC. In fact the RTC says. Since the RTC has jurisdiction over reinividicacion involving this amount. the RTC will not try the case. (Reason: The MTC has no jurisdiction). in our example for instance. The general rule is: NO! The court will only decide on the basis of what was presented in the lower court. The records of the case are now with the RTC clerk of court. Q. It will affirm the order of the court or it can order a hearing to be held as if this case was filed directly with the RTC. Like the first case. There was a trial between A and B in the MTC. So. For what? So that B . Q. Illustration: This is an action filed by A against B for reivindicacion in the MTC.000 it (MTC) has no jurisdiction. that is A here may also file the so-called Appellees brief. 8 Rule 40 . records are already there. This is what is mentioned in Sec. since the value exceeds P20. can the court decide the case? A. The value of the property is P50. A now appeals. He will now examine the records of the case preparatory to the elevation of the appropriate RTC and certify to the correctness of the records. So there are the effects of appeal in the MTC.

order execution pending appeal under Rule 39 Sec. the mode of appeal is a simple notice of appeal filed with the RTC. Regardless of the nature of the question raised on appeal. If the question raised on appeal is only a question of fact. Appeal from judgment of SC-Appellate Court is God! Mode of Appeal-Period of Appeal-Eternally! (Joke only) Why? Q. Q. But when there is a motion for reconsideration of the judgment of the RTC. Is there an appeal from the judgment of SC? A. Where the appeal involves only a question of law. to approve compromise prior to the transmittal of the record. the mode of appeal is a petition for review or certiorari under Rule 45 and the appellate court is the SC. the appellate court is the CA. What would be the appellate court? A. if it has jurisdiction thereover. The mode of appeal is a petition for review (R 42). If the case was tried on the merits by the lower court. The question raised on appeal may be a question of fact. A vs. lack of jurisdiction. The judgment of the RTC can be rendered in the exercise of its ORIGINAL JURISDICTION or in the exercise of its APPELLATE JURISDICTION. if the only issue raised by B on appeal is question of law. Appellate court…. The distinction is important because the modes of appeals are not the same. 3. What would the be mode of appeal? A.104 Appeal from orders dismissing case without trial. permit appeal by an indigent. B now wants to appeal. 4. or a question of fact and law at the same time. the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof. B) was judgment of the MTC which the court ruled upon on appeal and this judgment of the RTC affirming. What would be the mode of appeal of B? A. without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. the Regional Trial Court. or it can be a question of fact and law at the same time. It would be a simple notice of appeal filed with the same RTC that rendered the judgment. but shall decide the case in accordance with the preceding section. without prejudice to a further appeal that may be taken therefrom. – If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits. shall try the case on the merits as if the case was originally filed with it. 15 or 30 days. * Residual power of the court prior to the transmittal of the original record or record on appeal : 1. to issue orders of the preservation of the rights which do not involve matters litigated by appeal. B in the exercise of its original jurisdiction. the appellate court would no longer be the CA but the SC. modifying or reversing the MTC judgment is in turned appealed. court can still decide appeal based on appellant’s brief * The judgment on appeal of the RTC is immediately executory. the mode of appeal may be a simple notice of appeal or a petition of certiorari depending on the question that is raised. the mode of appeal is prayer. CA However. (n) Let us take the case of RTC. then the mode of appeal is no longer a notice of appeal but under Rule 45 in which the case. For instance. this (A vs. the appeal period is counted from receipt by appellant of the order denying the motion for reconsideration. it may only be a question of law.2 (motion for execution was filed before the expiration of the period to appeal) ORDINARY APPEAL * Matter of right PETITION FOR REVIEW * Discretionary . The period is the same. Let us assume that the RTC decided a case. Q. the Regional Trial Court may affirm or reverse it. 2. Let us say that A won the case. In case of reversal. the case shall be remanded for further proceedings. as the case may be. Let me stress… with respect to the judgment of the RTC rendered in the exercise of its original jurisdiction. without jurisdiction over the subject matter. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter. Q. No more that’s why the only appellate court would be God. * The Summary Rules no longer apply when the cases is on appeal. Period of Appeal… The same. It is the CA that has jurisdiction. (Forget that!) RENE NOTES: * failure to file appellants brief cause for dismissal of appeal * failure to file appellee’s brief. How about the judgment of the RTC rendered in the exercise of its appellate jurisdiction? A.

mistake. INTERLOCUTORY orders 6. * If the case was tried on the merits by the lower court without jurisdiction over the subject matter : .RTC may: (a) Affirm. * Within 15 days from the notice of the judgment for notice of appeal and within 30 days for records on appeal / The period for filing is interrupted by a timely motion for Petition for review (Rule 42) * Case is decided by the MTC.no proof of service 4. and P500 as deposits for costs with the CA / Furnish RTC and adverse party copy of such (R42). APPEAL – Orders disallowing or dismissing an Appeal 5.Special civil action of certiorari or prohibition if there is lack of jurisdiction or grave abuse of discretion or mandamus if there is no performance of duty. DENIALS – Orders denying P. or (b) Reverse. in which case.105 * All the records are elevated from the court of origin * Notice of record on appeal is filed with the record of origin * If lower court dismissed the case without trial on merits: .RTC shall dismiss the case. Within 15 days from notice of the decision to be reviewed or form the denial of a MR or new trial. Petition for review on certiorari Rule 45 * The case raises only a question of law. the questions raised are unsubstantial * No records are elevated unless the court decrees it * Filed with the CA Ordinary Appeal (appeal by writ of error) * Case is decided by the RTC in its original jurisdiction Appealed to the CA * File a notice of appeal or a record on appeal with the court of origin (RTC) and give a copy to the adverse party. and shall admit amended pleadings or additional evidence. PENDING – Judgments or final orders for or against one or more of several parties or in separate claims while the main case is pending 4. failure to comply with the proper form for the petition 5. EXECUTION – Order of Execution 3. * A judgment based only on compromise is not appealable and is immediately executory.) * Remedy in cases where appeal is not allowed: . duress or any ground vitiating consent. * If dismissal is due to lack of jurisdiction over the subject matter: . Rule 41: Appeal from Regional Trial Courts * What cannot be appealed? Clue: (WE PAID) 1.S. * File a verified petition for review on certiorari with the SC (R45) / Pay docket and lawful fees and P500 for costs / Submit proof of service of a copy to the lower court and adverse party. if it has original jurisdiction. prosecuted manifestly for delay 7. by consent. required fees were not paid 3.M. * File a verified petition for review with the CA / Pay the docket and lawful fees. Appealed to the RTC. petition patently without merit 6.RTC may: (a) Affrim: if RTC has jurisdiction. Rule 42 :Grounds for Outright Dismissal 1. copies of the petition were not served on the adverse party . but shall decide the case. it shall remand the case for further proceedings. Motion for new trial or reconsideration and motion to Set aside a judgment. in which case. Petition for review with the CA. or (b) Reverses. . petition was filed out of time 2. shall try the case on the merits as if the case was originally filed with it. * Within 15 days from notice of the judgment or order of denial of the MR or new trial. (Petition for relief. it remand the case for further proceedings. WITHOUT PREJUDICE – Order dismissing an action without prejudice 2. confession or compromise on the ground of fraud.

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reconsideration or new trial. Rule 42: Petition for Review from the Regional Trial Courts to the Court of Appeals * Failure to comply with the requirements on form such as: 1) certification against forum shopping 2) non-payment of docket, lawful fees and 3) deposit for costs and 4) failure to show proof of service of the same petition to the adverse party are grounds for dismissal. * Outright dismissal allowed – Petition for review is not a matter of right but discretionary on the part of the CA. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law. * ACTIONS ON THE PETITION Court may 1. require respondent to file comment - 10 days 2. dismiss the petition if it finds that: a) it is patently without merit b) prosecuted manifestly for delay c) the questions raised are unsubstantial * It is merely discretionary on the CA to order the elevation of the records. This is because until the petition is given due course, the trial court may still issue a warrant of execution pending appeal and in some cases such as ejectment and those of Summary Prcedure, the judgments are immediately executory. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records of the case. See Table Rule 43: APPEALS FROM THE CTA AND QUASI JUDICIAL AGENCIES TO APPEALS Sec. 1 Rule 43 Sec. 1 of Rule 43, the different quasi-judicial bodies which decisions are subject to appeal to the Court of Appeals are enumerated under. To this list, you add two other bodies whose decisions are appellate to the Court of Appeals: 1. the orders of the ombudsman is administrative discipline cases In case of Fabian vs. Desierto, the court declared unconstitutional the provision of the law creating the office of the ombudsman which empowered the SC to review judgment of the ombudsman iN administrative-disciplinary cases. So, under this decision, judgment or orders of the ombudsman in administrative-disciplinary proceedings, are reviewable by the CA. Fabian vs. Desierto G. R. #129742 Sept 16, 1998 2. NLRC (National Labor Relations Commission) Judgment of NLRC are not appealable to the SC but to the CA. Before the decision in Saint Martin Funeral Homes vs. NLRC, the judgment of NLRC were reviewable be certiorari before the SC. In this case, (Saint Martin Funeral Homes vs. NLRC) G.R. # 130866, Sept 16, 1998 295 SCRA 494, SC held that there is no law which authorizes appeals from judgment of the NLRC to the SC. In this case, the SC traced the legislative history of the NLRC and it came into the conclusion that no one of the laws relative the NLRC provided for an appeal from judgment of the NLRC to the SC. Of course you will notice that under Sec. 2 of Rule 43, judgments of the Labor Law of the Philippines are not covered by Rule 43. But under this decision now, Saint Martin case, the decision of the NLRC are now covered by the Rule 43. Except for some differences, the procedure of an appeal from judgment of the quasi-judicial bodies are practically the same as the procedure for the disposition of an appeal from the judgment of the RTC in the exercise of its appellate jurisdiction. They are practically the same. With this difference only. Both are reviewable by petition for review. Example: A vs. B in SEC B lost the case in the SEC. B now wants to appeal from the judgment of the SEC. Q. What is the mode of appeal? A. Petition for Review Q. Period? A. The same. The period is within 15 days from receipt of the copy of the award, judgment or order of the SEC. THE COURT OF

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In case, however, the judgment of a quasi-judicial body requires it to be published in order that a judgment may be valid, the 15 days period is counted from the last day of publication. In case there is a motion for reconsideration of the judgment, order or award of the SEC, the 15-day period is counted from the receipt of the resolution denying the motion for reconsideration. Contents of Petition, Documents to be attached thereto… I leave this to you, so we can move… Scope of Sec. 1 Rule 43 1) Appeals from judgment or final orders of the court of Tax Appeals; 2) Appeals form awards, judgments, final orders or resolution of or authorized by any quasi-judicial agency in the exercise of the quasi-judicial functions. List of Agencies 1) Civil Service Commission 2) Central Board of Assessment Appeals 3) Securities and Exchange Commission 4) Office of the President 5) Land Registration Authority 6) Social Security Commission 7) Civil Aeronautics Board 8) Bureau of Patents, Trademarks and Technology Transfer 9) National Electrification Administration 10) Energy Regulatory Board 11) NTC 12) Department of Agrarian Reform under R. A. No. 6657 13) Government Insurance System 14) Employees Compensation Commission 15) Agricultural Inventions Board 16) Insurance Commission 17) Philippine Atomic Energy Commission 18) Board of Investment 19) Construction Arbitrators Authorized by Law 20) National Labor Relations Commission (Saint Martin Funeral Homes vs. NLRC) 21) Ombudsman (Fabian vs. Desierto) 22) Voluntary Arbitrators Action of the CA on the petition… It may dismiss outrightly the petition on the ground for instance that (1) the motion was filed out of time; (2) the required fees were not paid; (3) copies of the petition were not served by the adverse party, etc. The court may find that petition is not meritorious at all or the court may find that the petition was filed merely for purposes of delay, or the court may find the issues raised in the petition are too insubstantial to require further proceedings. On the other hand, the court may find it proper to direct the respondent to file a comment with 10 days from notice. So if the court gives the respondent time to comment that means to say that the court may grant to determine whether to give due course or not, to this petition. Let us say now that the comments have been filed Q. What now will the action of the court thereafter? A. The court may then give due course to the petition or deny due course. Q. When will the court give due course here? A. If from the pleading, the comment on the petition itself if there is a prima facie showing that the body whose judgment is subject of petition may have committed an error. This error is of fact or of law. Q. Is it enough that the error was committed either of fact or of law? A. No. An error that may warrant a reversal of the judgment, order or award appeals from or which may warrant at least a modification of the judgment appeals. Q. If the court gives due course, how will the CA decide now the case? A. At its option, it may now require the quasi-judicial body, SEC in our example, elevate to the CA the records of the case. Let us assume that the records have been elevated to the appellate court. Q. Will the case now be submitted for decision? A. Not yet. CA may require the parties to submit their memorandum within a given period of time. Upon the filing of the memorandum or the expiration of the period of the filing thereof, the case may now be submitted for decision. (That’s how simple it is!)

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Q. What is the difference between the effect of an appeal from a judgment rendered by a quasi-judicial body on the execution of the judgment appealed from the effect of an appeal in an ordinary case from the judgment of CA where the judgment is that of a RTC? A. In the case of a judgment of the quasi-judicial body, the appeal therefore does not stay the execution of the judgment. It is immediately executory. However, this is subject to an exception where the appeal from the judgment of the SEC or any quasi-judicial body for that matter stay the execution when the CA itself orders the stay of an execution. On the other hand, a judgment of the RTC appealed from cannot be executed during the pendency of the appeal, that is the general rule. In other words, an appeal from a judgment of the RTC to the CA is stayed. Q. Is there a case however, where a judgment is that of a RTC and yet an appeal therefore does not stay the execution? A. Yes. That is when the judgment rendered by the RTC involves a case which is decided under the rules on summary procedure in which case, the appeal therefore does not stay the execution of the judgment. Example: The RTC affirmed the judgment of the inferior court in a forcible entry case, which ordered the defendant to vacate the premises. The RTC affirmed the judgment. The defendant B filed a petition for review under Rule 42 (petition for Review from the RTC to SC). Q. May this judgment against him be enforced notwithstanding his appeal therefore in CA? A. Yes. It’s the only exception. RENE NOTES: Grounds for Outright Dismissal 1. Petition filed out of time 2. Required fees were not paid 3. Copies of the petition were not served on the adverse party 4. Contents of appeal does not follow the prescribed form Grounds for Dismissal (Upon motion) 1. Patently without merit 2. Prosecuted manifestly foe delay 3. Questions raised are unsubstantial to require consideration PROCEDURE IN THE COURT OF APPEALS RULE 44: Ordinary Appealed Cases Time to File a) appellant’s brief - 45 days from notice of clerk of court b) appellee’s brief - 45 days from receipt of appellant’s brief c) appellant’s reply brief - 20 days from receipt of appellee’s brief * Failure to file appellant’s brief on time is a ground for dismissal of the appeal. * If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted. * The failure of the appellant to make specific assignment for errors in his brief or page references to the record as required in this section is a ground for dismissal for his appeal. Rule 45: Appeal by Certiorari to the Supreme Court * Appeals to the Supreme Court can be taken from a judgment or final order for resolution of the CA, the Sandiganbayan, the RTC or such other court as may be authorized by law and only by a verified petition for review on certiorari on questions of law except in appeals from judgments of the RTC in criminal cases wherein the penalty imposed is life imprisonment, or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is subject to automatic review. QUESTIONS OF LAW * doubt of controversy as to what the law is on ceratin facts * if the appellate court can determine the issue raised without reviewing or evaluating the evidence * can involve questions of interpretation of the law with respect to the ceratin set of facts QUESTIONS OF FACT * doubt or difference arises as to the truth or falsehood of facts, or as to probative value of the evidence presented * the determination involves evaluation or review of evidence * qeury invites the calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding

When the findings of fact are conclusions without citation of specific evidence on which they are based. and auxiliary writs or processes. The court acquires jurisdiction: (1) Over petitioner by filing of the petition (2) Over the respondent by the service on the latter of the order or resolution indicating the courts initial action on the petition and NOT by the service on him of the petition. the CA has original jurisdiction to issue writ of mandamus. 5. 11. When there is grave abuse of discretion in the appreciation of facts. When the CA in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees. 129. 2. 9. 7. Procedural Outline (original cases in the Court of Appeals) 1) Filing of the petition 2) Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to requirements also form and payment of docket and other legal fees. habeas corpus and quo warranto. speedy or adequate remedy * filed not later than 60 days from notice of judgment. and it has executive original jurisdictions over actions for annulment of judgments of Regional Trial Courts. prohibition. When the finding is grounded entirely on speculations. * Certiorari under Rule 45 vs. the SC has to review the evidence in order to arrive at the correct findings based on the record. 3) Require respondents to file COMMENT within 10 days from NOTICE 4) Court may require the filing of a REPLY or such other pleadings as it may deem necessary 5) Determination of FACTUAL ISSUES . 4. surmise of conjecture. When inference made is manifestly absurd. the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC.the court may delegate the reception of evidence on such issues to any of its members. Exceptions to Conclusiveness of Facts: 1. 10. Matter 002-03) * court exercises original jurisdiction * the petitioner and the respondent are the original parties to the action. 6. if taken into account. would alter the result of the case in that they would entitle the accused to acquittal. mistaken or impossible.109 circumstances and relation to each other and the whole probabilities of the situation * As a general rule. and the lower court or quasijudicial agency is not impleaded * Motion for reconsideration is not required * the court is in the exercise of its appellate jurisdiction and the power of review Rule 46:Original Cases (In the CA) Under BP Blg. When certain material facts and circumstances have been overlooked by the trial court which. order of resolution appealed from * unless a writ of preliminary injunction or temporary restraining order is issued does not stay the challenged proceeding * the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties * Motion for reconsideration or for new trial is required * File a motion for reconsideration or new trial is filed. certiorari under Rule 65 (special civil action) CERTIORARI UNDER RULE 45 * petition is based on questions of law It is a mode of appeal * involves the review of the judgment award or final order on the merits * must be made within the reglementary period * stays the judgment or order appealed from CERTIORARI UNDER RULE 65 * petition raises the issue as to whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion Special civil action * directed against an interlocutory order of the court or where there is no appeal or any other plain. Rule 47: Annulment of Judgment or Final Orders and Resolutions . When the findings of fact of the CA are at variance with those of the trial court. certiorari. 8. When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents. When the findings of facts are conflicting. 3. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the evidence on record. When the judgment is premised on a misrepresentation of facts. whether or not they are in aid of its appellate jurisdiction. the period shall not only be interrupted but another 60 days shall be given to the petitioner (SC Admin.

Let’s illustrate each of them… Example: Supposing during the trial. When a judgment becomes final. On the day of the pre-trial. This judgment became final.110 Court) (Annulment of Judgments rendered by the RTC and Annulment of Judgment rendered by the Inferior Q. there is nothing left to be done but to execute it. Yes. Q. there is an opportunity for the adverse party to counteract that fraud. These are the only periods. because B failed to file a petition for relief. The judgment in favor of A became final. B now wants to file an action for annulment based on extrinsic fraud. It’s either extrinsic fraud or lack of jurisdiction These are the only two (2) grounds available to B. then B cannot file an action for annulment. Why did this judgment become final? A. Well. What is the difference? A. however A appeared in court. Thereafter. he Has four (4) years from discovery of the fraud with which to file an action. What is an extrinsic fraud as contradicting intrinsic fraud? A. the court rendered judgment. The court has already granted it. Because of the absence of B. it is correct. If the ground is fraud. I already filed a motion for postponement. Exhibit “A”. Q. Q. Let’s reverse the situation… Example: A and B received the notice of pre-trial setting the pre-trial for specific date. Because B failed to file a notice of appeal. If a judgment has already become final and the loosing party lost the right to file a petition for review or lost any other remedy against this judgment without his fault then he may file a petition for annulment of this judgment. A now moves that he be allowed to present his evidence ex parte. If it is lack of jurisdiction . Is this ground (forgery) an extrinsic fraud? A. No. In the case of an intrinsic fraud. the court rendered a judgment in favor of A. A met B and said. And on the basis of this forged document alone.” Believing on the truthfulness of A. Q. at any time before the action is barred by laches or estoppel. Q. According to him (B). This means to say that if the party against whom the judgment was rendered lost the right to file a petition for relief or lost any other remedy which could have been available to him because of his fault. Whereas. B files an action to annul this judgment on the ground of extrinsic fraud. Q. With what extrinsic fraud consist of? A. the parties were A and B. A judgment was rendered against B. When may a judgment of the RTC be the subject of a petition for annulment in the CA? A. Why? That kind of a fraud committed against him was committed outside the trial. If the lost of any of these remedies was on account for the fault of B. A submitted in evidence a forged document. Period within which B may now file an action for annulment in CA… The period depends on the ground whether the ground is extrinsic fraud or the ground is lack of jurisdiction. B did not appear for the pre-trial. Q. “B. Is it the contention of B here correct? A. Because B failed to file a motion for reconsideration: because B failed to file a motion for new trial. The lost of any of these rights was not due to the fault of B. the misrepresentation of A that the pre-trial set on the scheduled date was cancelled. what did we learn under Rule 39? A. Before the date of the pre-trial. what then? Intrinsic fraud. in the RTC. Example: In the RTC. then he cannot avail of this Rule 47. What are the grounds? A. the fraud consisting in the introduction of evidence in court of that Exhibit “A” is an intrinsic fraud. You do not have to appear anymore in the court for the pre-trial. Q. .

So these are the options available to the CA. an appropriate judge. where the judgment or final order or resolutions set aside on the ground of extrinsic fraud. Q. regarding the Evidence which it is required to receive. The petition should be accompanied by affidavits of witnesses of the party filing the petition . So the decision of the RTC stands. B would not have rebut it with contrary evidence because that was not committed outside the trial. Q. Why? Because the power delegated to him is the power to receive the evidence. not the power to decide the case. But in the case of the second misrepresentation. B will be required to file his answer and thereafter. If B is to file the petition. No. How? The rule now says. This is the concept of extrinsic fraud. will it immediately give the due course or it can dismiss outright the petition? A. do not have to repeat. In our example. What now will be the action of CA. except for this matter. trial shall proceed as if this were a case pending in the RTC. the petition of B should be accompanied by affidavits of his witnesses. 2) The court finds the petition to be impressed with merits (with prima facie merit). B could have presented on the fact that this document is a forgery. the affidavit of his witnesses must be those which would support his defense against the action of A. 8 Rule 47 Suspension of Prescriptive Period The prescriptive period for the refilling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment . It will still be the CA that will render the judgment. the court may on motion order trial to try the case as if a timely motion for new trial had been granted therein. That is his (B) fault. What is the extent of the power of the RTC judge to whom the reception of the evidence of the parties has been delegated by the CA? May the RTC decide the case? A. Then it will give it due course. Ground the petition in its (CA) view is not impressed with merits. The CA may delegate the reception of the evidence to another judge. Q. Will there be an actual trial in the CA or in short may the CA receive the evidence itself? A. Then what shall CA do? A. “that this case will now be treated as if it were an ordinary case filed in the RTC.A. The petition is now there in court (CA). the . The judgment of the CA may be to grant the already expired decision. Q. However. If it were A who filed his petition. So. without prejudice to the original action being refilled in the proper court. It may authorize any of its members to receive the evidences. it is not meritorious. There are two (2) causes of action that CA may take this case: 1) immediately dismiss the petition. since he was the defendant in the trial below (RTC). 8 Rule 47) Sec.111 In this case. The decision may be dismissal of the petition. Then the court can immediately dismiss it. The contents of the petition are stated in Rule 47. Q. Of course the other ground is lack of jurisdiction. Judge of the RTC. This means to say that the grounds have not been proven. He did not. What will be required of B here? A.” That’s why the respondent in this case now. However. A will have to be summoned. the members of the CA assigned to receive the evidence will act as if he were a judge of RTC conducting a trial. There are several options available to the C. In other words. Sec. This is what is meant by this suspension of prescriptive period (Sec. the CA will now decide the case. Procedure. So after the reception of the evidence either by the CA itself or by a judge of the RTC. In other words. his petition should be accompanied by affidavits of his witnesses on the cause of action of A. 7 Rule 47 (Effect of Judgment) A judgment of annulment shall be set aside the questioned judgment or final order or resolution and render the same null and void. Any judge? No.

We said that. only one (1) year of the prescriptive period remained. B. Note* Nine (9) years have elapsed. the CA may direct the RTC to continue hearing the case. A judgment annulling this decision of the RTC that was rendered by the CA and became final on Jan. 1999. Therefore. Not suspended because extrinsic fraud by A. 3. where the judgment is declared void. The ground was extrinsic fraud. Example: The judgment of the RTC was set aside. if you add therefore the period from Jan. 2. We say that as a result of this judgment. 6. He only has four (4) years. 1994 Judgment in RTc became final. What do you notice here? A. B filed an action for annulment on Jan. 1993 (first case was filed to) January 6. However. 1997 The judgment of CA annulling the decision of the RTC became final January 7. 1997). at the time this case was re-filed. the trial may be declared to hear anew the case as if a motion for new trial was granted. 1999. (By reason of extrinsic fraud committed by A) January 5. 1995 B filed an action for annulment by reason of extrinsic fraud committed by A. the period between the time he filed the original complaint (Jan. 7. this judgment however. if the basis of the CA in setting aside the judgment of the RTC was lack of jurisdiction. A.   The period from January 2. Judgment in favor of A. this was not suspended. He filed this case A vs. the CA cannot direct the RTC to hear this case. where the ground. 1990. 1990 A vs. It has to be re-filed. Note that the cause of action in the above example prescribes in four (4) years. A filed a complaint against B in RTC (original complaint) (at the time of filing. The prescriptive period for the filing of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of judgment of annulment. Q. B on Jan. in the CA now. 1997) became final. 5.112 prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. Q. 1997. 1. only one (1) year left in the prescriptive period) January 3. 1993. 6. January 6. It is as if there was a new trial granted. the cause of action already prescribed. may re-file the case or instead of refilling the case. This judgment in favor of A became final on Jan. which serves as the basis of the CA in setting aside the judgment of RTC was extrinsic fraud. The cause of action prescribes in four (4) years from happening. was rendered in favor of A. At the time the action was filed. for purposes of refilling the case. Has his action prescribe or did not prescribe? A. Prescribed! If however. The period between the first time the case was filed and time of the judgment of CA (Jan. 1990 to January 7. However. So. instead of having this case refilled. Let say this cause of action became the subject of a complaint filed by A against B on January 2. 1990 to the time he filed the second action (Jan. 1994. RENE NOTES: Rule 47: When to File . he (A) (elected to) re-filed the case in the RTC. this period is suspended. not fraud. 1993) and the time judgment became final (jan. 1997 (CA decision became final) was not suspended because the extrinsic fraud was committed by a (plaintiff). 1. The law says… Since A was the one guilty of extrinsic fraud. 7. the prescriptive period cannot be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. Example: RTC-A vs.if failed to file without fault 1) notice of appeal 2) motion for reconsideration 3) motion for new trial 4) petition for relief . Therefore. 1999 Since the extrinsic fraud was committed by A. Since the extrinsic fraud by A and A elected to re-file the case in the RTC. the plaintiff here. So. A vs. 1999). B January 2. this action can be refilled. 6. B. January 1. from January 1. However. you have already a period of nine (9) years. 1995. obviously. the ground of the annulment was not in jurisdiction. the period may not have yet prescribed. 1993 The cause of action arose on Jan. Let’s say that the cause of action that can be brought within four (4) years from the happening.

Rule 52: Motion for Reconsideration . (c) Failure of the appellant to pay the docket fee and other lawful fees as provided in Section 5 of Rule 40 and Section 4 of Rule 41. or c) expiration of the period for filing. Rule 50: Dismissal of Appeal Grounds for Dismissal (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules. b) upon the filing of the last pleading or memorandum. formulation or stipulation of facts 4. (d) and (f) of Rule 44. (1a) * An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. or b) expiration of the period for filing. or of page references to the record as required in Section 13.it was availed of or could have been availed of in a: a) motion for new trial b) petition for relief Effect of Judgment a) annulment based on lack of jurisdiction – original action may be refilled. paragraph (a).113 Extrinsic Fraud . (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders. or directives of the court without justifiable cause. the withdrawal will be allowed in the discretion of the court. b) based on extrinsic fraud – trial court will try the case. brief or memorandum. possibility of an amicable settlement 2. (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules. or b) expiration of the period for filing 2) Where hearing on the merits of the main case is held a) upon its termination. (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order. (c). omissions or additions in the approved record on appeal as provided in Section 4 of Rule 44. 2) Where no hearing is held a) upon the filing of the last pleading.Fraud committed outside the trial and not in the course of the trial * extrinsic fraud shall NOT be a valid ground if: . In ordinary appeals 1) Where no hearing on the merits of the main case is held a) upon the filing of the last pleading. * An appeal will be withdrawn as a matter of right at anytime before the filing of the appellee’s brief. In original action and petition for review – 1) Where no comment is filed a) upon the expiration of the period to comment. (as if a motion for new trial was granted) Rule 48: Preliminary Conference * Not mandatory Things taken up: 1. clarification of issues 3. (f) Absence of specific assignment of errors in the appellant’s brief. or c) expiration of the period for filing B. circulars. Rule 51: Judgment A case shall be deemed submitted for judgment: A. (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules. 3) Where hearing is held a) upon its termination. b) upon the filing of the last pleading or memorandum. (d) Unauthorized alterations. and (i) The fact that the order or judgment appealed from is not appealable. Thereafter. other matters which may aid in the prompt disposition of the case Rule 49: Oral Argument * Not mandatory * The oral argument shall be limited to such matters as the court may specify in its order or resolution.

Q. the last day for him to file would be Dec. 1. When then can he file a motion for new trial? A. When should this motion for new trial be resolved? A. So. Q. until then the court still retains jurisdiction. This is a distinction between the two. 1998 to Dec. reclusion perpetua. The motion for new trial in the CA can be based only on one ground that is newly discovered evidence. There is only one ground for a motion for new trial under Rule 53. 1998) before the court lost its jurisdiction. B in this example. Rule 53: New Trial Q. Certiorari 2. When may a motion for new trial in CA be filed? A. Evidence which would not have been discovered while the case is pending before trial in RTC (in our example). There are two grounds where a judgment which has been rendered against a party because of FAME that affected the substantial rights. What is the jurisdiction here? A. a motion for new trial in a civil case can be heard only by CA itself . Within what period must he file it? A. Quo warranto 5. Q. B in the RTC. Prohibition 3. Habeas Corpus 6. Let us assume also that B received the copy of the decision on Dec. Let’s say that B appealed to CA. 18. . Mandamus 4. How will the CA here resolve this motion for new trial? A. 1. other public ministers and consuls * An appeal to SC can only be taken by petition for review on certiorari . Q. The law says. 1998. the judgment already becomes final. what will be the next proceeding? Unless the court otherwise directs.114 * The rules now prohibit a second motion for reconsideration. This is not available in the CA. 3. Q. or life imprisonment. 1998. the procedure in the new trial shall be the same as that granted by the RTC. 1. So. Grounds for dismissal of appeal by SC: a) Failure to take appeal within the reglementary period. Example: A vs. * The pendency of a motion for reconsideration filed on time shall stay the execution of the judgment. * The rules now require the service of the motion to the adverse party. the following day. Let us say that the appeal made was perfected on Dec. 18). B wants to file a motion for new trial. This is in contrast with the ground of a motion for new trial under Rule 37. RENE NOTES: PROCEDURE OF THE SUPREME COURT Rule 56: Original and Appeal Cases Original Cases Cognizable 1. 1 to Dec. Q. “at anytime after the appeal has been perfected”. Unlike a motion for new trial in a criminal case which can be conducted by a trial court. 18. Assuming now that the motion for new trial has been granted. So. Even with due diligence. would not have presented that evidence and which if presented will probably alter the judgment of CA already rendered. It will conduct a hearing. except in criminal cases where the penalty imposed is death. Let us say that a judgment was rendered by the CA on Dec. At anytime after the appeal has been perfected up to the time the CA has not yet lost jurisdiction over the case. he has a 15-day period therefrom within which to file a petition for certiorari in the SC. between these two dates (Dec. How RTC conducts a trial following the grant of a motion for new trial. Who may receive the evidence in this case? A. At anytime between the date (Dec. Because if there is no perfected petition for certiorari as of Dec. Within 90 days from the date the motion for new trial is submitted for resolution. 1998. Cases affecting ambassadors. 1998. Disciplinary proceedings against members of the judiciary and attorneys 7. the court no longer has any jurisdiction. 18.

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b) lack of merit in petition; c) failure to pay the requisite docket fee and other lawful fees to make deposit for costs; d) failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; e) failure to comply with any circular, directive or order of the SC without justifiable cause; f) error in choice or mode of appeal; g) case is not justifiable to SC. * Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial. *GR: Appeal to SC by notice of appeal shall be dismissed Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Sec. 3, Rule 122). * Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision for appropriate action, without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 42. PROVISIONAL REMEDIES Rule 57: Preliminary Attachment * Provisional remedies (anciliary/auxiliary) – writs and processes available during the pendency of the action may be resorted to by a litigant to reserve and protect rights and interests therein pending rendition, and for the purpose of ultimately effecting a final judgment in the case.  PROVISIONAL – constituting temporary measures availed of during the pendency of the action.  ANCILIARY – incidents in and dependent on the result of the main action. *Preliminary Attachment a) available even if the recovery of personal property is only an incidental relief sought in the action; b) may be resorted to even if the personal property is in the custody of a third person; c) extends to all kinds of property, real or personal or incorporeal; d) to recover possession of personal property unjustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant; e) can still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or is one in which he has proprietary interests, AND with permission of the court. *Grounds a) recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the Phils with the intent to defraud creditors; b) action for money or property embezzled or for willful violation of duty by public officers, officers of corp, agent or fiduciary; c) recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or disposed of to prevent is being found or taken; d) action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof; e) action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors; f) action against party who is not a resident of the Phils and cannot be found therein upon who service by publication can be made. * PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICITON (Preliminary Attachment) - Enforcement of writ of preliminary attachment must be made preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem. * When preliminary attachment is discharged a) debtor posts a counterbond or makes requisite cash deposit – if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court; in all other cases, amount of counterbond should be equal to the amount fixed in the order of attachment. * CASH DEPOSIT OF COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER b) applicant’s bond is insufficient or sureties fail to justify; c) attachment was improperly or irregularly issued; d) property attached is exempt from execution; e) judgment is rendered against attaching party; f) attachment is excessive – discharge is with respect to the excess * Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment. * When to apply for damages against the attachment bond a) before trial; b) before appeal perfected; c) before judgment becomes executory; d) in the appellate court for damages pending appeal, before judgment becomes executory.

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* When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing. There is no need to first execute judgment against obligor before proceeding against sureties. * Claims for damages cannot be subject of independent action except: a) when principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages; b) when damages sustained by a third person not a party to the action. Rule 58: Preliminary Injunction * Preliminary injunction distinguished from Prohibition Preliminary Injunction Generally directed against party to the action but may be against any person Does not involve the jurisdiction of the court Prohibition Directed against a court, tribunal, or person exercising judicial powers May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction Always a main action

May be main action itself or just a provisional remedy in the main action * Grounds for Preliminary Injunction a) plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction); b) the commission of acts or non-performance during pendency of litigation would probably work injustice to the plainitiff; c) defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual. * Injunction may be refused or dissolved when: a) complaint is insufficient; b) defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated; c) plaintiff’s bond is insufficient or defective. * No preliminary injunction or TRO may be issued without posting of bond and notice to adverse party and hearing. * PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION: When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant’s affidavit and bond, upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resdent of the Phils. * difference with principle in prelim attachment – in attachment, the principle applies only in the implementation of the writ, while in applications for injunction or TRO, this principle applies before the raffle and issuance of the writs or TRO. * TRO good for only 20 days from service; 60 days for CA; until further orders from SC. * TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury. Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether the TRO should be extended for 20 days. In no case can TRO be longer than 20 days including 72 hours. Rule 59: Receivership * When receiver may be appointed: a) party has an interest in the property or fund subject of the action and such is in danger of being lost, removed or materially injured; b) action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in the contract of mortgage; c) after judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment. d) when appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation. * When receivership may be denied/lifted: a) appointment sought is without sufficient cause; b) adverse party files sufficient bond for damages; c) applicant or receiver’s bond is insufficient. * Both the applicant for receivership and the receiver appointed must file separate bonds. * In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether it is damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s management (in the latter case, no longer need to file a separate action). Rule 60: Replevin

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* Replevin a) available only where the principal relief sought in the action is the recovery of possession of personal property; b) can be sought only where the defendant is in the actual or constructive possession of the personal property involved. c) extends only to personal property capable of manual delivery; d) available to recover personal property even if the same is not being concealed, removed, or disposed of; e) cannot be availed of if property is in custodia legis, as where it is under attachment, or was seized under a search warrant or distrained for tax assessment. * Defendant entitled to return of property taken under writ if: a) he seasonable posts redelivery bond b) plaintiff’s bond if insufficient or defective c) property is not delivered to plaintiff for any reason. - replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. Thus, surety not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaint Special Civil Actions Rule 62: Interpleader Q. Why are these called “Special Civil Actions”? A. Because of their nature, there are special procedures to follow. The first of this special civil action is the case of an interpleader. Q. What is the concept of an interpleader? A. Example: A leased an apartment to B. So, pursuant to this agreement, B have been occupying this apartment paying the rentals. After the lease period has run, let’s say, six (6) months, here now surfaces C. C said, “B does not pay anymore the rentals to A, this apartment is mine. Pay to me.” B is in a dilemma. If he (B) pays to A and it turns out later that C has a better right, he runs the risk of paying twice. If he pays to C, he runs the risks of paying again to A because C may not have the right. Q. If you were B, what is the remedy available to you, so that regardless of who is the party entitled to receive, you will be protected? A. File a suit for interpleader. B vs. A and C. Why? So that A and C can fight it out in this case. So, B initiates the complaint against two (2) people who do not want to go to court and litigate. So, this process of interpleader, A and C are compelled to fight each other. That is the concept of interpleader. Sec. 1 Rule 62 Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever is the subject matter, or an interest which in whole and in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. We now have this complaint by B against A and C. Q. What is the prayer of B here? A. That A and C be directed to interplead with each other. Meaning, that A and C should fight it out and have this matter of who is entitled to the rental. Actually, it is not B who is fighting A or C. It is A and C who are fighting each other. Q. But who initiated the fight between the two (2)? A. B. Q. What now is the procedure to be followed by the court when this interpleader action was filed? A. Actually, A and C will also be summoned under Rule 14. But with this difference, accompanying the summons is an order of the court. Sec. 2 Rule 62 Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court. So, the sheriff now serves on A and C the summons. Together with the summon is that order of the court directing A and C to interplead with one other. So, A will file his answer.

the movant may file his answer within the remaining period. So. A is the plaintiff against him. In an ordinary civil action. (Rule 19. declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. before they file their answer? (coz remember under Rule 16. So. each will assert his right to the rental in this example. Under Rule 62. Q. Q. C will file his answer. reckoned from notice of denial. 5 Rule 62 covers that situation already mentioned earlier. there is nothing special about this. the court shall proceed to determine their respective rights and adjudicate their counterclaims. Sec. 4 Rule 62. 1) . the motion to dismiss can be filed only before the answer has been filed. Yes. or (c) an interest against both. Q. third-party complaints and responsive pleadings thereto. After A and C have been summoned. presupposes that plaintiff has no interest in the subject matter of the action or has interest therein in whole or in part which is not disputed by the other parties INTERVENTION 1. A and B. cross-claims. or (d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an offer thereof. the defendants furnish each other. Section 4 Rule 62 Within the time of filing an answer. cross-claims. it is. Sec. serving a copy thereof upon each other conflicting claimants who may file their reply thereto as provided by these Rules. trial proper will now proceed. This is how Rule 62 works. ancillary action 2. the court will now determine who between A and C is entitled to this rental. Who will be furnished copy of the answer of A? A. Why? Because they are the ones litigfating. It means to say following the pre-trial. A.118 Q. But here. the grounds for a motion to dismiss under Rule 62 are more encompassing than the ground of a motion to dismiss under Rule 16. but shall not be less than five (5) days in any event. This question is answered by this Sec. In ordinary civil action. Do you now see why this is a special civil action? A. Sec. they will file their answer serving the plaintiff B and other defendants of the copy of the answer. as provided by these Rules. insofar as A is concerned. third-party complaints and responsive pleadings thereto as provided by these Rules. an original action 2. What do you notice with respect to the ground of a motion to dismiss an interpleader action and a motion to dismiss in an ordinary civil action? A. or (b) success of either of the parties. May a motion to dismiss the action for interplead be filed by A and C? Can A and C avail of Rule 16. the plaintiff against him is C. Who will be furnished with the copy of the answer of C? A. except with this provision where they have to furnish each other with copies of their pleadings. do the defendants furnish each other copies of their answers? No. What now is the disposition of the court with respect to these cases? A. The period to file the answer shall be tolled and if the motion is denied. May any of them A and C file also a counterclaim. Q. After the court has conducted the pre-trial and received the evidence. So. The parties in an interpleader action may file counterclaim. He will give his reasons why the rental should be paid to him. the impropriety of the action is not a ground for a motion to dismiss. 5 Rule 62 Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him. If any claimant fails to plead within the time herein fixed. Q. will adjudicate the counterclaims. Insofar as C is concerned. on motion. A will furnish B and C. And of course. the court may. Q. a cross-claim? A. proper in any of the four situations: persons having (a) legal interest in the matter of litigation. RENE NOTES: INTERPLEADER 1. In the answer of A and C. The parties in an interpleader action may file counterclaims. After the pleadings of the conflicting claimants have been filed and pre-trial have been conducted in accordance with the rules. each claimant may file a motion to dismiss on the ground of impropriety of the interpleader or on other appropriate grounds specified in Rule 16.

The provisions of the written instrument or the law may be vague giving rise to uncertainties. under a written instrument or a law. Example: A and B entered into an agreement. because if you will not determine this. in the case then of the declaratory relief. the instrument. and . the idea of the party filing the case is to know before there is a breach of the law on the agreement or written instrument. a contract or any other written instrument under a law. when brought under the provisions on Declaratory Reliefs cannot be dismissed by the court. Q. there is a will. Of course. the court is actually called upon to render an opinion in a case involving these documents agreed upon.119 3. What is the situation contemplated by Rule 63? A. can he now file an action against the authorities to determine what his rights are or his obligations are under this ordinance? A. So. suits that may be brought under the provisions of these rules on declaratory which the courts cannot decline to entertain. this law affects him so he wants to know what his rights are. on what the rights of B are. what his obligations are under the law or under a written document? A. he may be affected by an instrument. his rights under this law or instruments are affected. The idea here is to secure from the court a declaration as to the validity of the instrument or of the law. Q. That is why. he wants to know in advance what his rights are. It must have to entertain. It cannot settle abstract matters. what is the idea behind the suit now that the party in this written instrument may file? A. We said that the court. It settles only actual conflicts. But in the case of A. So. For this declaratory relief rules to apply. what must be established is the concurrence of all these circumstances: 1) There is an instrument. And he (A) fears that there may be a litigation arising out of it. 4) At the time the suit is brought. Q. what his rights are. That is the concept of a declaratory relief. the possibility of a suit arising out of this vagueness of this instrument or this doubtful character. So. Yes. So. It is being ask merely to interpret an instrument or a law or it may be asked only to declare what would be the proper construction or interpretation of the law or of the written instrument. there is a written contract or there is law 2) This written instrument or this law affects the right of a person. to be given a construction. Take note that a court is supposed to determine actual controversies. an action for the reformation of an instrument. under the contract or under the written agreement or under the instrument or under the law. Can he now file an action in court against B for the purpose only of obtaining a declaration from the court on what his rights are. what his obligations are under this law. under this law the court may or may not agree to entertain an action for declaratory relief. (he may be affected by a law). There are also provisions here. that can be done only before there has been a breach of the written document. These three (3) actions mentioned. an ordinance. So he goes to the court and in effect to ask for an opinion. Can you now bring an action in court to determine what his rights are. an action for consolidation of ownership where the subject matter of the suit involves a contract of sale with right to repurchase. But other cases of declaratory relief may be denied due course by the court. executive order. which confer on A certain rights and imposes him certain obligations. As a rule. or there is a law or ordinance. he cannot quite comprehend it. He may want to know what his rights are or what his obligations are. a court is not required to give advisory opinions. does not as a matter of course render an opinion on abstract matters or hypothetical cases. A person whose interest thereunder is a deed. there must be a threatened suit that may arise out of it. Q. What is the subject matter of a declaratory relief? A. defendants are original parties to the pending suits Rule 63: Declaratory Reliefs and Similar Remedies Q. But this is a sort of an exception to this. But under the law on declaratory relief. on what his obligations are. there will be a suit that will arise. what his obligations are. A is a liquor distributor. A person may be interested in a law. a will. defendants are being sued precisely to interplead them 3. relief. which impose on B certain obligations and also certain rights. There are certain provisions here. 1) 2) 3) There are however. say regulating sale of liquor. These are the following actions: an action to quite title to a property or to remove a cloud over a property. 3) A person wants this law or this instrument to be interpreted. these provisions are vague. in other words.

then B can go to the court to declare what his rights are. The law says.120 5) This controversy is justifiable.” Q. So. Let us assume that in our contract. the court may opt to consider it so it will hear the case. The other subject matter of a rule on declaratory relief. Pursuant to this contract of A and C now says to B. He doesn’t know what his rights are. A. Let us now assume that the petition for declaratory relief is filed. Q. Q. Does this contract bind him or it does not bind him? So. For instance. Why? Because the party who is necessary can always later on question an instrument or the law in a separate proceeding and so this declaratory relief will not put an end. “all those persons whose rights are affected by this instrument must have to be made parties. It will simply be a declaration of whatever or not this law is valid or not. here are the obligations. What obligations he has. B here may file an action for declaratory relief against C and A. that A undertakes to deliver supplies to B. He will now pray that the court interpret this contract involved here and find out what his rights are.” It cannot be enforced by execution because there is nothing to enforce. on business establishments selling liquor. Is B bound by this contract? A. Although there is a decision cited in the book of Moran to the effect that when a necessary party is not impleaded. there is a violation of the agreement. A was supposed to load this supplies on a ship belonging to A for delivery to B. what his obligations are. the court can decline. To find out whether he is liable under this or he is not liable. may he (B) be held liable? Q. I will now be the one to supply you the materials which A under the contract supposed to deliver to you. it will be useless. It will simply declare what rights of A has under the contract. now he is supposed to pay. Example: You will notice that this case here illustrates that first part of the rule where a party filing the case is interested under a contract. one way or the other. The court refuses to give it due course. in our example. let’s say. before there is any breach by A and B or C on this contract. or there is a violation of the law. A. Q. And those who are not made parties are not affected by whatever judgment may be rendered in a case. No. On the other hand. What will be the prayer now of B here? A. On the 9 th year of the period. C now is the transferee. It does not resolve an actual controversy. A Assigns his rights under this contract to C. This contract calls for a ten (10) year period. Example: (how this rule works) Here is a contract entered into between A and B. This law. Can the petition for declaratory relief be maintained? A. who is a license dealer of liquor. Ground for instance. . there is a breach. What will be the judgment? A. The law says. Why? Because this is merely declaratory. “here are the rights. C now delivers to B what A was supposed to deliver. This is his main purpose. No more. affects him. Q. under this contract. Is there anything in the judgment that can be executed? A. But he is in doubt whether this is applicable to him or not applicable to him because of the vagueness of the law. It merely declares. what his obligations are under this contract of C and A. “B beginning this 10th year. is a law. This is the sole purpose. and B refuses. Who will be the parties against whom. The municipality of X for instance which passed an ordinance on taxes. an ordinance or an executive order which affects the rights of a person. Q. What is he allowed to do before there is any breach of this law by him? A. which affected by that law or contract or ordinance? Who will be the defendants? A. What is the remedy here? A. then a declaratory relief petition may be filed. So. whatever judgment the court may render will not put an end to the uncertainty that brought about the controversy. taxes which are much higher than the amount he is presently paying. He can file an action against the municipality of X for declaration of whether this law is valid or not. That is all! Q. Here is Y. “if the petition was entertained by the court but while the case is pending in court. It is as if it were an ordinary civil case.

So. Q. he wanted to find out what his rights are under that judgment. When the case was pending. Nevertheless. Why not? First. Q. Q. No. B now filed an action for declaratory relief based on this judgment. this cannot be resorted to. there can possibly be no question of doubt arising from that unilateral act. Can this declaratory relief be continued? A. That has been already resolved with finality. Since the subject of the petition for declaratory relief is a written instrument or a law or an ordinance. So. For instance. What was his purpose here? A. The court will now treat this as an ordinary civil action. the judgment was rendered against B. So. this is your obligation. And the judgment there can be enforced by execution. the suit was filed by A against B. there must be no breach or violation of instrument or statute 6. Let’s go back to the cases mentioned which can be filed under this provision… on rules on declaratory relief namely: 1) an action to quite title to property or to remove a cloud on a property. What will happen then? A. So. justiciable controversy 2. he registered himself as a Chinese citizen. there are other remedies available to A to find out what his rights are. In other words. Q. It can no longer be continued. In one case. In his petition he alleged that because of his fear. But in a case of validity or invalidity. Can there be an action for declaratory relief to declare that a certain person is or is not a Filipino citizen? A. Because it is merely a statement. These cases cannot be declined to be entertained by the court. Q. or 2) an action for reformation of an instrument. he now instituted an action for declaratory relief against the government. there is one compelling reason why this petition was dismissed and that is the rule on res judicata. he always considered himself as a Filipino. subject matter is a written instrument or a statute 4. The documents. It must have to decide those cases. there is nothing that it can be enforced. his having registered himself as a Chinese notwithstanding. or 3) an action for consolidation of ownership. it will now try the case and render a judgment which can be enforced. the court can no longer simply declare what are the rights and obligations. So. in 1941 when war was about to break. The documents. In other words. No one is interested in that document which he executed except himself. The court will now resolve with finality the rights of the plaintiff and his obligations. To serve a declaration that he is a Filipino. So that he now wants that he be declared a Filipino citizen.121 Let’s assume in this example of A filing the action against the Municipality to contest the validity of the tax ordinance. this petition for declaratory relief is available only when there is no other available remedy against a written instrument or against a law . Why? Because an action of this nature is not based on any document. he could have filed a motion in court to clarify the judgment. X went to the office of the municipal treasurer of his town and registered himself as a Chinese citizen. there is a written instrument. Could the petition for declaratory relief be validly filed to secure a declaration that a person is a Filipino citizen? A. there is already a breach of the law sought to be clarified. In one case. After the war. If he was in doubt as to what his rights are. Why? Because that was a unilateral act on his part. etc…” So. Q. No. it is not based on any written agreement. adverse claim between real parties in interest 3. The petition was dismissed outrightly. he could have filed a motion for clarificatory judgment. which he signed when he registered himself as a Filipino does not constitute a written agreement. plaintiff A paid the taxes. proper in this case? A. this in essence is the concept of Declaratory Relief. when there are still available remedies. Is the remedy of a declaratory relief petition. But of course. relief sought is merely a determination of the rights and duties 5. RENE NOTES: Requisites for Declaratory Relief 1. which is the basis of this petition. no other available or sufficient remedy . He could have appealed from the judgment. It cannot be subject of another litigation. No more. There is another remedy. “this is your right. First. in our example here. which is the basis of this petition. if taxpayer paid the taxes while the case is pending.

a writ of prohibition may be issued by the RTC against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi-judicial function. Can you appeal if you were B from this order denying your motion to dismiss? A. patently without merit 2. The remedy could be a petition for certiorari. The appeal is by certiorari under Rule 45. you will go to a process of getting this case heard and decided by the MTC. there must be no other plain. Grounds for Dismissal of Petition: 1. Q. the court may order dismissal of the complaint because it is part of the incidental relief (Newsweek vs. there must be a controversy 2. The judgments of the Sandiganbayan may be appealed to the SC. Prohibition and Mandamus There are two (2) types of certiorari. the MTC has jurisdiction. it is in this sense that in this (Rule 45) certiorari is not the certiorari mentioned in Rule 65 because Rule 65 does not contemplate an appeal. the order of denial is wrong. You cannot appeal from an interlocutory order. questions raised are too unsubstantial to warrant further proceedings . declaratory relief may still be availed even if there is breach or violation IF : 1.judgment and there is an appeal therefrom on a question of law. So. The motion is denied. One. What is the remedy here if you cannot appeal? A. not objected to by the adverse party and the court has rendered judgment after full blown trial [Matalin Coconut Producers (143 SCRA 1)] Rule 65: Certiorari. speedy and adequate remedy Requisites of Mandamus: 1. not a certiorari under Rule 65. speedy and adequate remedy in the ordinary course of law * A writ of certiorari can never be issued by an RTC against an administrative agency because an administrative agency when exercising quasi-judicial functions is considered as of the same rank as the RTC. it concerns future application of the instrument or law [Gomez vs. the respondent is exercising judicial or quasi-judicial functions 3. or else the essence will be defeated 3. as an appealed remedy from a final judgment or order of for instance. the respondent is exercising judicial or quasi-judicial or ministerial functions 3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion 4. there must be no other plain. duty or act to be performed must be existing – correlative right will be denied if not performed by the respondents 5. there must be a controversy 2. You could just imagine the waste of time. and you are B. speedy and adequate remedy Requisites of Prohibition: 1. money and effort if the proceedings will continue until terminated. B may question the order denying the motion to dismiss. the RTC ---------------------. Under Rule 65.122 GR: Declaratory relief is available BEFORE there is actual breach or violation of an instrument or statute. if you do not correct this error. there must be a clear legal right or duty 2. prosecuted manifestly for delay 3. He then said. The judgment of the CA may be appealed to the SC. But definitely. No. the remedy is certiorari under Rule 45. * The jurisdiction of the Sandiganbayan over certiorari proceedings is only in aid of its appellate jurisdiction. Palomar (25 SCRA 827)] or 2. Why? Any judgment rendered by the MTC here will be void.” Q. However. respondent must be exercising a ministerial duty – a duty which is absolute and imperative and involves merely its execution 4. The remedy is certiorari under Rule 45. To better have an idea of what Rule 65 covers we may have this situation. Look the order of dismissal is merely interlocutory. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion 4. 1 (c) of Rule 41. B here filed a motion to dismiss on the ground of lack of jurisdiction. This is clear in Sec. no plain. the act to be performed must be practical – within the powers of the respondent to perform such that if the writ of mandamus was issued. he can comply with it. Exceptions:. Example: A sued B in the MTC for nullity of marriage. So. RENE NOTES: * In a petition for certiorari. IAC) Requisites of Certiorari: 1.

if the assailed judgment/order is a patent nullity 2.All properties may be expropriated except: 1.the petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds. 2 MANDAMUS Applicable only in cases where the right to the office is NOT in dispute Quo Warranto in Electoral Proceeding . When the owner refuses to sell 2. who. the right to the office itself is disputed Quo Warranto in Electoral Proceeding . Rule 67: Expropriation . if for public purpose 6. QUO WARRANTO Designed to try the right or title to the office. (SC Admin. Its purpose is to give the court a quo the opportunity to correct itself. be the * If a motion for reconsideration or new trial is filed the period shall not only be interrupted but another 60 days shall be given to the petitioner. When he agrees to sell but an agreement as to price cannot be reached *Purpose of Preliminary Deposit under Sec. forfeiture.To contest the right of an electoral public officer to hold public office. EXCEPTION: If after judgment an appeal has been perfected.an electoral proceeding under the Omnibus Elections Code for the exclusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold the office . 184 SCRA SCRA 230) * Mere filing of petition for certiorari under this rule will not stay execution of judgment. Quo warranto may also be used when an association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. even if the petition prospers.petition must be filed within 10 days from the proclamation of the candidate . CERTIORARI *Intended as a corrective remedy *Annul and modify a proceeding Discretionary act Exercising judicial and quasi-judicial function PROHIBITION Prevent the commission or carrying out of an act Discretionary and ministerial act Judicial/or non-judicial function MANDAMUS Intended to compel performance of an act desired Ministerial act Judicial and/or judicial function non- Act sought to controlled. and adequate remedy. position or franchise and to oust the person holding or exercising such office. speedy. Cir.presupposes that the respondent is already actually holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose .three grounds: usurpation. can call upon any person to show by what title he holds a public office or exercises a public franchise . speedy and adequate remedy. EXCEPT: 1. Hence. . a motion for reconsideration is an essential precondition for the filing of the petition for certiorari as a form of a plain. position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position.may be filed by any registered candidate for the same office and. or illegal association . if the issue is purely a question-of-law 5. in such a case appeal is deemed abandoned. when there is extreme urgency 3. would not be entitled for that office. Purpose of the writ. .if suggested by the court a quo GENERAL RULE: If after judgment the petition for certiorari is availed of when appeal is plain. Money 2. Choses in action * When is expropriation proper? 1. appeal and certiorari are remedies that does not exclude each other. speedy and adequate remedy then the petition must fail for certiorari may not be resorted to as a substitute for appeal.123 * As a GENERAL RULE. CA. (Lansang vs. a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be the plain. 002-03) Rule 66: Quo Warranto Quo Warranto – A proceeding or writ issued by the court to determine the right to use an office. in this light. if the issue has been raised and promptly passed upon by the court 4. office or franchise . With respect respondent.prerogative writ by w/c the govt. Preliminary injunction must be sought.

in severally the portion of the estate assigned to him.right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt w/in 90-120 days after the entry of the judgment or even after the foreclosure sale but prior to confirmation . 10) . b) buyer bought the property in good faith .governed by Secs. no other responsive pleadings are allowed * Declaration of Default . the . the mortgagee must file his claim with the probate court 4. the remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a specified time *Remedy of Mortgage against the Buyer of the Mortgage Property: . advance payment for just compensation * Only an ANSWER is allowed under Sec.right of the debtor. the mortgagee must annotate a notice of lis pendens in the certificate of title so that subsequent buyer(s) have notice. upon payment of just compensation (Sec. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff (Section 10) Rule 68: Foreclosure of Real Estate Mortgage *Effect in the Encumbrancer is not Impleaded a. 19 Rule 3) However.The defendant cannot be declared in default.124 1. his right is not affected because he is merely a necessary party not an indispensable party c. Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on just compensation.Mortgagees can substitute or implead the buyer. and 2. Recto law 2. * Instances where Court cannot render Deficiency Judgment 1. and 2. upon registration (Sec. this rule shall not apply if: a) the property is covered by the Torrens System. the assignment of the real estate to the party making the payment The judgment shall state: 1. Upon filing of complaint.To prevent this. the fact of such payment. 7 Rule 86 when mortgagor dies. 3 Rule 67. * When may plaintiff enter into possession of property ? 1. Determination of JUST COMPENSATION. (Sec.if real property. To vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action To vest the real estate in the If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court If the property is sold and the sale is CONTENTS OF JUDGMENT The judgment shall state definitely: (1) by metes and bounds and adequate description.if personal property. his equity or right of redemption is not affected or barred by the judgment of the court (Sunlife Insurance vs. Diez) b. Sec. Third person owned the property mortgaged but not solidarily liable with the debtor JUDICIAL FORECLOSURE Requires court intervention There is only an equity of redemption Alternative remedy to personal action for the amount due to satisfy mortgage debt EQUITY OF REDEMPTION . serving notice to defendant and after depositing of assessed value of property for taxation purposes with authorized government depository (Section 2) 2. (2) the particular portion of the estate assigned to each party The judgment shall state: 1. 13) STAGES IN EXPRORIATION 1.governed by Rule 68 JUDGMENT If actual partition of property is made EXTRAJUDICIAL FORECLOSURE No court intervention necessary Right of redemption exists Proper only when provided for in the contract RIGHT OF REDEMPTION . his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having alien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property w/in one year from the registration of the Sheriff’s certificate of foreclosure sale . provide damages if court finds plaintiff has no right to expropriate 2. 29-31 of Rule 39 EFFECT OF JUDGMENT To vest in each party to the act. * When is Title Vested in Expropriation: . Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved. Non-resident mortgagor unless there is attachment 3.

or 2. strategy or stealth? Third. does the plaintiff ask the restoration of possession? (Dizon vs. threat. CFI of Sorsogon) *The doctrine of tolerance applies only if possession is lawful from the start. (Munoz vs.000 outside Metro Manila. Concina) . Rule 70: Forcible Entry and Unlawful Detainer Three (3) Kinds of Action for Recovery of Possession ACCION INTERDICTAL *summary action for the recovery of physical possession where the dispossession has not lasted for more than one year. either forcible entry or unlawful detainer *All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC. there can still be unlawful detainer because ejectment considers implied contracts. or b.125 confirmed by the court name of the purchaser(s). ACCION PUBLICIANA *a plenary action for the recovery of the real right of possession has lasted for more than one year. . appeal of plaintiff is prima facie meritorious. Whether or not a co-ownership exists 2.000 within Metro Manila. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible entry can really prescribe. upon motion of plaintiff within 10 days from perfection of appeal. 214 SCRA 216) *Questions to be resolved in an action for forcible entry are: First. Threat or Stealth (FISTS) *no previous demand for the defendant to vacate the premises is necessary *the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant *the 1 year period is generally counted from the date of actual entry on the land Tenor of Demand: a.000 outside Metro Manila. P50. In short said doctrines applies only to unlawful detainer cases and not to forcible entry because: 1. *ejectment proceeding under Rule 70. and 2. a definite description of the parcels of the real estate sold to each purchaser purchaser(s) making the payment(s). defendant’s appeal is frivolous or dilatory. Two (2) Issues in an Action for Petition 1. was the possessor ousted therefrom within one year from the filing of the complaint by force. How to actually partition the property * The appointment of Commissioners is mandatory unless there is an extra-judicial partition between the parties. non-payment of rentals. failure to comply with lease of contract *the plaintiff need not have been in prior physical possession *period is counted from the date of last demand or last letter of demand *Judgment on Ejectment Proceeding are Immediately Executory Unless the Defendant: (1) perfects his appeal. 2.000 – outside Metro Manila. P50. the violation of the right in forcible entry authorizes speedy redress. Comply with the condition of the lease AND Vacate UNLAWFUL DETAINER *possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract w/ the plaintiff *demand is jurisdictional if the ground is: 1. (2) files sufficient superseades bond to pay the rents.000 – outside Metro Manila. damages and costs occurring down to the time of judgment appealed from. *RTC has jurisdiction if the value of the property exceeds P20. or 2. the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period. *MTC has jurisdiction if the value of the property does not exceed P20.000 within Metro Manila FORCIBLE ENTRY *possession of the land by the defendant is unlawful from the beginning as he acquires possession by Force. free from the claims of the parties to the action.If there is no formal contract between parties. Pay AND Vacate. * However the RTC may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that : 1. P50. ACCION REINDIVICATORIA *an action for the recovery of ownership w/c necessarily includes the recovery of possession. who had actual possession over the piece of real property? Second. and (3) deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract.000 within Metro Manila *RTC has jurisdiction if the value of the property exceeds P20. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner: (Peran vs.000 within Metro Manila. CA. *MTC has jurisdiction if the value of the property does not exceed P20. Intimidation. Strategy. P50.

liquidated damages since they are already part of the contract Rule 71: CONTEMPT DIRECT CONTEMPT *summary in nature GROUNDS: a) misbehavior in the presence of or near a court as to obstruct or interrupt the proceedings b) disrespect towards the court c) Offensive personalities towards others. b. INDIRECT CONTEMPT Punished after being charged and hearing GROUNDS: a) misbehavior of an officer of a court in the performance of his official duties or in his official transactions. The execution of the judgment shall be suspended pending resolution of the petition. *Remedies to Challenge Contempt Judgments: Direct Contempt . RTC – fine not exceeding P2. b) Disobedience of or resistance to a lawful writ. Unauthorized intrusion to any real property after being ejected. e) Assuming to be an attorney or an officer of the court w/o authority. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in contempt. c) Any abuse or any unlawful interference w/ the proceedings not constituting direct contempt d) Any improper conduct tending to degrade the administration of justice. the fair and reasonable value of the use and enjoyment of the property or the rent arising from the loss of possession.000 or imprisonment not exceeding 6 months or both. order. arrears. b.The person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition.126 * The court can award damages in ejectment cases provided the damages refer only to: a.000 or imprisonment not exceeding (10) days or both b. Indirect Contempt . c. If committed against: a. -The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond. RTC – fine not exceeding P30. f) failure to obey a subpoena g) Rescue. MTC – fine not exceeding P200 or imprisonment not exceeding one (1) day. of a person or property in the custody of an officer. or both. MTC – fine not exceeding P5.The person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal cases. d) Refusal to be shown or to answer as witness or to subscribe an affidavit or deposition. process. provided such person files a bond and conditioned that he will abide by and perform the judgment should the petition be decided against him.000 or imprisonment not exceeding (1) month or both If committed against: a. or judgment. . or attempted rescue.

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