You are on page 1of 73


Remedial Law

3. Special Proceedings – remedy by which a party

seeks to establish a status, a right, or a particular

(A) As to nature
Governed by ordinary Also governed by ordinary
RULE 1 rules. rules but SUBJECT to
GENERAL PROVISIONS specific rules prescribed
(Rules 62 to 71).
Section 1. Title of the Rules Formal demand of one’s Special features not found
legal rights in a court of in ordinary civil actions.
The Rules of Court are not penal statutes. They justice in the manner
cannot be given retroactive effect. They can, prescribed by the court
however, be made applicable to cases pending at the for by the law.
time of their passage and therefore are retroactive in
that sense. (B) As to object
Under the 1987 Constitution, the rule-making power REM PERSONAM IN REM
Direct against Directed against Directed against
of the Supreme Court has the following limitations:
the thing itself. particular particular
persona persons.
1. It must provide a simplified and inexpensive Jurisdiction over Jurisdiction over Jurisdiction over
procedure for the speedy disposition of the person of the person of the person of
cases; the defendant is the defendant the defendant is
2. Uniform for all courts of the same grade; and NOT required. IS required. NOT required
3. Shall not diminish, increase or modify as long as
substantive rights (Art: VIII Section 5[5]). jurisdiction over
the res is
Section 2. In what courts applicable
A proceeding to An action to A proceeding to
determine the impose a subject the
Section 3. Cases governed state or responsibility or interest of a
condition of a liability upon a named
ACTION CLAIM thing. person directly. defendant over
An ordinary suit in a A right possessed by one a particular
court of justice. against another. property to an
One party prosecutes The moment said claim is obligation or lien
another for the filed before a court, the burdening it.
enforcement or claim is converted into an Judgment is Judgment is Judgment
protection of a right or action or suit. binding on the binding only binding upon
the prevention or redress QuickTime™ and a
whole world. upon parties particular
of a wrong.
TIFF (Uncompressed) decompressor
are needed to see this picture.
impleaded or persons.
APPLICABILITY: successors in
1. Civil Action – one by which a party sues another Ex. Probate Ex. Action for Ex. An action
for the enforcement or protection of a right or the proceeding; specific for partition;
prevention or redress of a wrong. cadastral performance; action to
2. Criminal Action – one by which the Stake proceeding. action for foreclose real
prosecutes a person for an act or omission breach of estate
punishable by law. contract. mortgage.

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

The distinction is important in determining whether or The Rules of Court are applicable by analogy or in a
not jurisdiction over the persons of the defendant is suppletory character and whenever practicable and
required. convenient.

(C) As to cause Section 5. Commencement of action

ACTION ACTION A civil action is commencement by:
Ownership or Personal Both real and
possession of property is personal 1. The FILING OF THE COMPLAINT (when an
real property is sought to be properties are additional defendant is impleaded in a later pleading,
involved. recovered or involved. the action is commenced with regard to him on the
where date of the filing of such LATER PLEADING); and
damages for
breach of Cabrera v. Tiano 8 SCRA 54 (1963)
contract are Civil actions are deemed commenced from the
sought. date of the filing and docketing of the complaint,
Founded on Founded on Founded on without taking into account the issuance and service
privity of real privity of both. of summons
estate. contract.
Filed in the Filed in the The rules on
court where the court where the venue of real 2. The PAYMENT OF DOCKET FEES (determined
property or any plaintiff or any actions shall not only in the amount of the claim but also by the
part thereof is of the govern. amount of damages).
situated defendants
resides, at the NOTE: The amount of damages should be specified
option of the not only in the body of pleading but also in the prayer.
Ex. Accion Ex. Action for a Ex. Accion The court may allow the payment of the deficient
reinvidicatoria sum of money. publicana with docket fee within a reasonable period but not beyond
a claim for the applicable prescriptive or reglementary period.
An action can be commenced by filing the complaint
The distinction is significant in determining the venue by registered mail. In which case, it is the date of
of an action. mailing that is considered as the date of filing and not
the date of the receipt thereof by the clerk of court.
(D)As to place of filing
Must be brought in a Dependent on the place
particular place where the party resides GENERAL RULE: Liberal construction
where the subject regardless of where the
property is located, cause of action arose subjec EXCEPTIONS:
unless there is an to Section 4, Rule 4. 1. reglementary periods;
agreement to the 2. rule on forum shopping.
contrary (Section 4,
Rule 4).
Ex. Action to recover QuickTime™
Ex. Action and a to recover sum
real property. TIFFare(Uncompressed)
neededof money
to see
this picture.
Section 4. In what cases not applicable
Section 1. Ordinary Civil Actions, basis of
1. Election Cases; Section 2. Cause of action defined
2. Land registration/cadastral cases;
3. Naturalization; CAUSE OF ACTION – is the act or omission by
4. Insolvency proceedings; which a party violates the right of another.
5. Other cases not provided in the Rules of Court.

Page 4 of 289
Civil Procedure Summer Reviewer

The essential requisite of a cause of action

1. LEGAL RIGHT of the plaintiff. Section 3. One suit for a single cause of action
defendant to respect plaintiff’s right; and Section 4. Splitting a cause of action, effect of
3. Act or omission of the defendant in
VIOLATION of the plaintiff’s legal right. SPLITTING OF CAUSE OF ACTION – is the act of
dividing a single or indivisible cause of action into
RIGHT OF ACTION – right of a person to bring and several parts or claims and bringing several actions
prosecute action to obtain judgment. thereon. It is NOT ALLOWED.

The essential requisites of a right of action: PURPOSE: To avoid multiplicity of suits and
1. There must be a GOOD CAUSE; unnecessary vexation and harassment of defendants.
2. Compliance with all the CONDITONS
PRECEDENT; and Applies NOT only to complaints but also to
3. Action, must be instituted by the counterclaims and cross-claims.
Remedies against splitting a single cause of
Delict or wrongful act or Remedial right or right to
omission committed by relief granted by law to a A. Motion to dismiss on the ground of:
the defendant in violation party to institute an action 1. Litis pendentia (Rule 16, Section 1 [e]); or
of the primary rights of against a person who has 2. Res judicata (Rule 16, Section 1 [f]).
the plaintiff. committed a delict or
wrong against him. B. An answer alleging either as affirmative defense.
The reason for the The remedy or means (Rule 16, Section 6)
action. afforded or the
consequent relief. GENERAL RULE: A contract embraces only one
The formal statement of The remedial right given cause of action even if it contains several
the operative facts that to a person because of stipulations.
gives rise to remedial the occurrence of the
right. alleged facts. EXCEPTION: A contract to do several things at
A matter of procedure A matter of right and several times is divisible, and judgment for a single
and depends on the depends on substantive breach of a continuing contract is not a bar to a suit
pleadings filed by the law. for a subsequent breach. (e.g., promissory not
parties. payable in several installments so long as there is no
Not affected by Affected by affirmative acceleration clause)
affirmative defenses defenses.
(fraud, prescription, Blossom & Co. v. Manila Gas Corp., 55 Phil.226
estoppel, etc.). (1930)


The redress, The procedure The thing An UNQUALIFIED and POSITIVE REFUSAL to
protection, or appropriate wrongful act, perform a contract, though the performance thereof is
award or legal form of contractor not yet due, may, if the renunciation goes into the
coercive relief QuickTime™
of action property which is whole contract, be treated as a complete breach
and a
measure which
are neededmay bepicture. directly involved
TIFF (Uncompressed) decompressor
to see this
which will entitle the injured party to bring his action
which the availed of by in the action, at once.
plaintiff prays the plaintiff as concerning which
the court to the means to the wrong has Section 5. Joinder of causes of action
render in his obtain the been done and
favor as desired relief. with respect to Joinder of causes of action is purely permissive. The
consequence which the plaintiff can always file separate actions for each
of the delict controversy has cause of action.
committed by arisen.
the defendant.

Page 5 of 289
Civil Procedure Summer Reviewer

REQUISITES FOR JOINDER OF CAUSES OF There is no sanction against non-joinder of separate

ACTION: causes of action since a plaintiff needs only a single
1. The party joining the causes of action must cause of action to maintain an action.
comply with the rules on joinder of parties.
2. The joinder shall not include special and
actions or actions governed by special rules.
3. Where the causes of action are between the RULE 3
same parties but pertain to different venues PARTIES TO CIVIL ACTIONS
or jurisdiction is with the Regional Trial Court,
provided that: Section 1. Who may be parties; plaintiff and
a. One of the causes of action defendant
falls within the jurisdiction of
b. venue lies thereon. 1. A natural person
2. A juridical person; or
4. Where the claims in the causes of action are 3. An entity authorized by law.
principally for recovery of money, the
aggregate amount claimed shall be the test PLAINTIFF – one having an interest in the matter of
of jurisdiction. (Totality Rule) the action or in obtaining the relief demanded.

NOTE: The following are the elements for a DEFENDANT - one claiming an interest in the
joinder of parties (Section 5, Rule 3); controversy or the subject thereof adverse to the
- A right to relief in respect to or arising out of the plaintiff.
same transaction or series of transaction and
- A common question of law The term defendant may include:
1. An unwilling plaintiff or one who should be joined
TOTALITY RULE UNDER BP129 [Section 33(1)] as plaintiff but refuses to give his consent
Where there are several claims or causes of actions thereto (Section 10, Rule 3);
between the same or different parties, embodied in 2. The original plaintiff becoming a defendant to
the same complaint, the amount of the demand shall original defendant’s counterclaim; and
be the totality of the claims in all causes of action, 3. One necessary to a complete determination or
irrespective of whether the causes of action arose out settlement of the questions involved therein:
of the same or different transaction. Section 2. Parties in interest

NOTE: We will follow the totality rule in BP 129 REAL PARTY IN INTEREST – the party who stands
because it is elementary in statutory construction that to be benefited or injured by the judgment in the suit
in case of conflict, substantive law prevails over or the party entitled to the avails of the suit.
procedural laws.


There is a single cause Contemplate several
of action. causes of action. Must be joined under any Should be joined
PROHIBITED. It causes ENCOURAGED. It and all conditions, their whenever possible, the
multiplicity of suits and minimizes multiplicity of presence being a sine action can proceed even
double vexation on the suits and inconvenience qua non for the exercise in their absence.
QuickTime™ and a
part of the defendant
TIFF (Uncompressed)on the parties.
decompressor of judicial power.
are needed to see this picture.
No valid judgment if The case may be
Section 6. Misjoinder of causes of action indispensable party is not determined in court but
joined. the judgment therein will
Not a ground for dismissal of an action. A misjoined not resolve the entire
case of action may be severed and proceeded with controversy if a
separately. necessary party is not
They are those with such They are those whose
an interest in the presence is necessary to

Page 6 of 289
Civil Procedure Summer Reviewer

controversy that a final adjudicate the whole being sufficient that his incompetency be alleged in
would necessarily affect controversy but whose the corresponding pleadings.
their rights so that the interests are so far
court cannot proceed separable that a final Section 6. Permissive joinder of parties
without their presence. decree can be made in
their absence without PERMISSIVE JOINDER - the rule on permissive
affecting them. joinder of parties is that they can be joined in one
single complaint or may themselves maintain or be
sued in separate suits.
Tuason v. Bolanos 95 Phil 06 (1954)
Section 2, Rule 3 of the Rules of Court requires Requisites of permissive joinder of parties:
that an action must be brought in the name but not 1. Right to relief arises out of the same
necessarily by the real party in interest. In fact, the transaction or series of transactions;
practice is for an attorney in fact to bring the action, 2. There is a question of law or fact common to
i.e., to file the complaint in the name of the plaintiff. all the plaintiffs or defendants; and
3. Such joinder is not otherwise prescribed by
CLASSIFICATION OF PARTIES IN INTEREST: the provisions of the rules on jurisdiction and
1. Indispensable parties-those without whom
and final determination can be had of an SERIES OF TRANSACTIONS – transactions
action (must be joined under all conditions). connected with the same subject matter of the suit.

2. Necessary (or proper) parties – those who Section 7. Compulsory joinder of Indispensable
are not indispensable but ought to be joined parties
as parties if complete relief is to be accorded
as to those already parties, of for a complete Section 8. Necessary party
determination or settlement of the claim
subject of the action (may or may not be JOINT DEBTORS – indispensable party in a suit
joined) against him but necessary party in a suit against his
3. Representative parties – those acting in
fiduciary capacity such as trustees, guardians, Section 9. Non-joinder of necessary parties to be
executors, or administrators. The beneficiary pleaded
shall be included in the title of the case and
shall be deemed to be real part in interest. Duty of a pleader whenever a necessary party is
not joined or impleaded:
4. Pro forma parties- those who are required to 1. State the name of the necessary party, if
be joined as co-parties in suits by or against known; and
another party as may be provided by the 2. State why said necessary arty is omitted in
applicable substantive law or procedural rule the pleading
such as in the case of spouses under Section
4. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the
5. Quasi parties – those in whose behalf a class omitted necessary party if jurisdiction over his person
or representative suit is brought. may be obtained by ordering plaintiff to file an
amended complaint impleading the necessary party
QuickTime™ and a
TIFF (Uncompressed) decompressor
Section 3. Representative aspicture.
parties therein as co-defendant.
are needed to see this

Section 4. Spouses as parties NOTE: The failure to comply with the court’s order to
include or join a necessary party without justifiable
Section 5. Minor or incompetent cause shall be deemed a waiver of the claim against
such party.
Under the present rules, a suit may be brought by or
against a minor or incompetent but with the Section 10. Unwilling co-plaintiff
assistance of his parents or his guardian. A person
NEED NOT be judicially declared incompetent, it

Page 7 of 289
Civil Procedure Summer Reviewer

If the consent of any party who should be joined as CLASS SUIT PERMISSIVE JOINDER
plaintiff can not be obtained, he may be made a OF PARTIES
defendant and the reason therefore shall be stated in There is one single There are multiple causes
the complaint. action pertaining to of action separately
numerous persons. belonging to several
Section 11. Misjoinder and non-joinder of parties Community of interests. perons.

Neither misjoinder nor non-joinder of parties is a Section 13. Alternative Defendants

ground for dismissal of the action
Where the plaintiff is uncertain against who of several
NOTE: Objections to defects in parties should be persons he is entitled to relief, he may join any OR all
made at the earliest opportunity, i.e., the moment of them in the alternative, although a right to relief
such defect becomes apparent, by a MOTION TO against one may be inconsistent with a right to relief
STRIKE THE NAMES OF THE PARTIES impleaded. against the other.
Objections to misjoinder cannot be raised for the first
time on appeal. Section 14. Unknown identity or name of
The non joinder of an indispensable or a necessary
party is not by itself ipso facto a ground for the REQUISITES:
dismissal of the action. The court should order the 1. There is a defendant
joinder of such party and non compliance with the 2. His identity or name is unknown;
said order would be a ground to the dismissal of the 3. Fictitious name may be used because of
action (Feria, 2001). ignorance of defendant’s true name an said
ignorance is alleged in the complaint;
Section 12. Class suit 4. Identifying description may be used; sued as
unknown owner, heir, devisee, or other
CLASS SUIT designation;
An action where one or more may sue for the benefit 5. Amendment to the pleading when identify of true
of all, implying that if the parties are numerous and it name is discovered; and
is impracticable to bring them to court, one or more 6. Defendant is the defendant being sued, not a
may sue for their benefit. mere additional defendant.

NOTE: An action does not become a class suit NOTE: Service of summons upon a defendant whose
merely because it is designated as such in the identify is unknown may be made by publication in a
pleadings. Whether the suit is or is not a class suit newspaper of general circulation in accordance with
depends upon the attending facts. Section 14of Rule 14. The action must however be
converted into an action in rem or quasi by attaching
REQUISITES OF A CLASS SUIT: the defendant’s property in the Philippines.
1. Subject matter of the controversy is one of
common or GENERAL INTEREST to many Section 15. Entity without juridical personality as
persons; defendant
2. The persons are so NUMEROUS that it is
impracticable to join them all as parties; and REQUISITES:
3. Parties bringing the class suit are 1. There are two or more persons not organized as
REPRESENTATIVE of the class and can fully 2. They enter into a transaction; and
QuickTime™ and a
protect the TIFF
interests of all
(Uncompressed) concerned;
decompressor 3. A wrong or delict is committed against a third
are needed to see this picture.
4. The representative sues or defends for the person in the course of such transaction.
benefit of all.
NOTE: Persons associated in an entity without
NOTE: Any party in interest shall have the right to juridical personality may be sued under the name by
intervene to protect his individual interest. (This is an which they are generally or commonly known, but
instance when a person may intervene as a matter of they cannot sue under such name.
The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the

Page 8 of 289
Civil Procedure Summer Reviewer

person in charge of the office or place of business C.

maintained under such name (Sec. 8, Rule 14). Section 18. Incompetency or Incapacity

INSTANCES WHERE SUBSTITUTION OF PARTIES In case a party becomes incompetent or

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

Section 21. Indigent party

Page 9 of 289
Civil Procedure Summer Reviewer

Indigent – one who has no money or property In the absence of qualifying or restrictive words,
sufficient and available for food, shelter, and basic venue stipulation is merely permissive meaning that
necessities. He need not be a pauper to entitle him to the stipulated venue is in addition to the venue
litigate in forma pauperis provided for in the rules.

While the authority to litigate as an indigent party may Examples of qualifying or restrictive words:
be granted upon an ex parte application and hearing, Æ ‘’Only’’
it may be contested by the adverse party at any time Æ ‘’Solely’’
before judgment is rendered. Æ ‘’Exclusively in this court’’

If one is authorized to litigate as an indigent, such Section 1. Venue of real actions

authority shall include:
1. An exemption from the payment of docket fees; The venue is the place where the real property or any
2. An exemption from the payment of transcript of portion thereof is located.
stenographic notes.
If property is located at the boundaries of two places:
Section 22. Notice to the Solicitor General File case in either place at the option of the plaintiff.

If case involves two properties located in two different

RULE 4 1. if the properties are the object of the same
VENUE OF ACTIONS transaction, file it in any of the two places;
2. If they are the subjects of two distinct
VENUE – the place trial or geographical location in transactions, separate actions should be filed in
which an action or proceeding should be brought. each place unless property joined.

VENUE JURISDICTION Section 2. Venue of personal actions

Place where the action is Power of the court to
instituted. hear and decide a case. Raymond v. Court of Appeals 166 SCRA 50 (1988)
Maybe waived Jurisdiction over the RESIDENCE –should be viewed or understood in
subject matter over the its popular sense, meaning the personal, actual, or
nature of the action is physical habitation of a person, actual residence or
conferred by law and place of abode.
cannot be waived.
Procedural. Substantive. VENUE OF PERSONAL ACTIONS:
May be changed by the Cannot be the subject of 1. Where the plaintiff or any of the principal
written agreement of the the agreement of the plaintiffs resides;
parties. parties. 2. Were the defendant or any of the principal
defendants resides; or
The rule on VENUE IS NOT APPLICABLE in 3. In the case of a non-resident defendant, the
cases: action may be brought in the place where he
1. Where a specific rule or law provides otherwise may be found.
(i.e. an action for damages arising from libel); or NOTE: ALL AT THE ELECTION OF THE
2. The parties have validly agreed in writing before PLAINTIFF.
the filing of the action in the exclusive venue
thereof (Section 4).QuickTime™ and a Means of waiving venue:
TIFF (Uncompressed) decompressor
are needed to see this picture. 1. Failure to object via motion to dismiss;
REQUISITES FOR VENUE TO BE EXCLUSIVE: 2. Affirmative relief sought in the court where the
1. A valid written agreement; case is filed;
2. Executed by the parties before the filing of the 3. Voluntary submission to the court where the
action; and case is filed; or
3. Exclusive nature of the venue. 4. Laches.

Polytrade Corp. v. Banco 30 SCRA 187 (1969) Section 3. Venue of actions against non-residents

Page 10 of 289
Civil Procedure Summer Reviewer


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

Rendition of judgment
within 30 days from receipt
of last affidavit or within 15
days after last clarificatory

Page 11 of 289
Civil Procedure Summer Reviewer

their position papers setting forth the law

and the facts relied upon by them.
THE RULE ON SUMMARY PROCEDURE Judgments of inferior courts in cases governed by
1. Motion to dismiss the complaint or to quash summary procedure are applicable to the RTC.
the complaint or information except on the
ground of lack of jurisdiction over the subject The decision of the RTC (on appeal) in civil cases
matter or failure to comply with prior under this rule, including ejectment cases, are
barangay conciliation (referral to the Lupon); IMMEDIATELY EXECUTORY.
2. Motion for a bill of particulars;
3. Motion for a new trial or for reconsideration of KATARUNGANG PAMBARANGAY LAW
a judgment or for reopening of trial; (Title One, Book III, RA 7160)
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, No complaint petition, action, or proceeding involving
affidavits, or any other paper; any matter within the authority of the lupon shall be
6. Memorandum; fired or instituted directly in court or any other
7. Petition for certiorari, mandamus, or government office for adjudication UNLESS
prohibition against any interlocutory order 1. There has been CONFRONTATION
issued by the court; BETWEEN THE PARTIES before the lupon
8. Motion to declare defendant in default; chairman or pangkat; and
9. Dilatory motions for postponement; 2. That no conciliation or settlement has been
10. Reply; reached OR unless the settlement has been
11. Third party complaints; repudiated by the parties thereto.
12. Interventions.
The filing of a prohibited pleading will not suspend PAMBARANGAY LAW (SUBSTANTIVE
the period to file an answer or to appeal EXCEPTIONS):
1. Where one party is the government or any
Heirs of Olivas v. Flor 161 SCRA 393 (1988) subdivision or instrumentality thereof;
Although a motion to dismiss is a prohibited 2. Where one party is a public officer or
pleading, its filing after the answer had already been employee, and the disputer relates to the
submitted does not constitute a pleading prohibited performance of his official functions;
by the summary rules. What the rules proscribe is a 3. Offenses punishable by imprisonment
motion to dismiss that would stop the running of the exceeding 1 year or a fine exceeding
period to file an answer and cause undue delay. P5,000.00;
4. Offenses where there is no private offended
NOTE: While a motion to declare the defendant in party (i.e. genocide);
default is prohibited by the rules on summary 5. Where the dispute involves real properties
procedure, the plaintiff may nevertheless file a motion located indifferent cities or municipalities
to render judgment as may be warranted when the UNLESS the parties thereto agree to submit
defendant fails to file an answer. their differences to amicable settlement by an
appropriate lupon;
The issuance of the pre-trial order is an important 6. Disputes involving parties who actually reside
part of the summary procedure because it is its in barangays of different cities or
receipt by the parties that begins the ten0day period municipalities, EXCEPT:
to submit the affidavitsQuickTime™
and other evidence. a. where such barangay units adjoin each
and a
TIFF (Uncompressed) decompressor other; and
are needed to see this picture.
TRIAL PROCEDURE IN CIVIL CASES b. the parties thereto agree to submit their
differences to amicable settlement by an
No testimonial evidence is required nor cross appropriate lupon;
examination of witnesses allowed. All that is required 7. Such other classes of disputes which the
is that within (10) days from receipt by the parties of President may determine in the interest of
the court’s pre-trial order, they shall submit: justice;
1. The affidavits of their witnesses; and 8. The court may, at any time before trial, motu
2. Other evidence on the factual issues set proprio refer the case concerned to the lupon
forth in the pre-trial order, together with for amicable settlement, non criminal cases

Page 12 of 289
Civil Procedure Summer Reviewer

not falling within the authority of the latter;

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

Page 13 of 289
Civil Procedure Summer Reviewer

3. Cross-claim; release payment, and any other matter by way of

4. Third-party Complaint; confession and avoidance.
5. Complaint-in-intervention;
6. Answer; 2. NEGATIVE DEFENSES - specific denial of the
7. Reply; material facts or facts alleged in the pleading of the
8. Counter-counterclaim; claimant essential to his cause of action.
9. Counter-Cross claim.
Insufficient denial or denial amounting to
Enumeration is not exclusive admissions:
1. General denial;
Section 3. Complaint 2. Denial in the form of a negative pregnant.

COMPLAINT – is the pleading alleging the plaintiff’s Section 6. Counterclaim

cause or causes of action. It should contain a concise
statement of the ultimate facts constituting the COUNTERCLAIM – any claim which a defending
plaintiff’s cause of action, not evidently facts or legal party may have against an opposing party.
Nature of counterclaim: A counterclaim is in the
ULTIMATE FACTS – essential facts constituting the nature of a cross-complaint. Although it may be
plaintiff’s cause of action. A fact is essential if it alleged in the answer, it is not part of the answer.
cannot be stricken out without leaving the statement Upon its filing, the same proceedings are had as in
of the cause of action insufficient. the original complaint. For this reason, it must be
answered within ten (10) days from service.
ALLEGED IN THE COMPLAINT: Determine whether Section7. Compulsory Counterclaim
upon the averment of facts, a valid judgment may be
properly rendered. A counterclaim before the MTC must be within the
jurisdiction of said court, both as to the amount and
What are NOT ultimate facts: nature thereof.
1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of Counterclaims may either be:
facts not stated, or incorrect inferences or 1. Compulsory; or
conclusions from facts stated; 2. Permissive
3. The details of probative matter or particulars of
evidence, statements of law, inferences and NOTE: In an original action before the RTC, the
arguments; counterclaim may be considered compulsory
4. An allegation that a contract is valid or void is a regardless of the amount (Section 7, Rule 6).
mere conclusion of law.
Agustin v. Bacalan 135 SCRA 340 (1985)
Section 4. Answer If a counterclaim is filed in the MTC in excess of
its jurisdictional amount, the excess is considered
ANSWER – the pleading where the defendant sets waived
forth his affirmative or negative defenses. It may
likewise be the response to a counterclaim on a cross Calo v. Ajax International 22 SCRA 996 (1968)
claim. The remedy where a counterclaim is beyond the
jurisdiction of the MTC is to set off the claims and file
QuickTime™ and a
Section 5. Defenses
TIFF (Uncompressed) decompressor a separate action to collect the balance.
are needed to see this picture.

2 kinds of defenses that may be set forth in the COMPULSORY PERMISSIVE

One which arises out It does not arise out of nor is
1. AFFIRMATIVE DEFENSES- allegation of anew of or is necessarily it necessarily connected with
matter which, while hypothetically admitting the connected with the the subject matter of the
material allegations in the pleading of the claimant, transaction or opposing party’s claim.
would nevertheless prevent or bar recovery by him. occurrence that is
Affirmative defenses include fraud, prescription, the subject matter of

Page 14 of 289
Civil Procedure Summer Reviewer

the opposing party’s 1. A claim by one party against a co-party;

claim. 2. It must arise out of the subject matter of the
It does not require It may require for its complaint or of the counterclaim; and
for its adjudication adjudication the presence of 3. The cross-claimant is prejudiced by the claim
the presence of third third parties over whom the against him by the opposing party.
parties of whom the court cannot acquire
court cannot acquire jurisdiction. If it is not set up in the action, it is barred except:
jurisdiction. 1. When, it is outside the jurisdiction of the court; or
2. If the court cannot acquire jurisdiction over third
It is barred it not set It is NOT barred even if not parties whose presence is necessary for the
up in the action. set up in the action. adjudication of said cross-claim.

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

Page 15 of 289
Civil Procedure Summer Reviewer

REPLY – the response of the plaintiff to the Where the trial court has jurisdiction over the
defendant’s answer the function of which is to deny main case, it also has jurisdiction over the third party
or allege facts in denial or in avoidance of new complaint, regardless of the amount involved as a
matters alleged by way of defense in the answer and third party complaint is merely auxiliary to and is a
thereby join or make issue as to such new matters. continuation of the man action.

EFFECT OF FAILURE TO REPLY NOTE: A third party complaint is no proper in an

action for declaratory relief.
GENERAL RULE: Filing a reply is merely optional.
New facts that were alleged in the answer are Section 12. Bringing New Parties
deemed controverted should a party fail o reply
Distinguish from a 3rd party complaint: A 3rd party
EXCEPTION: Reply is required complaint is proper when not one of the third party
Where the answer is based on an ACTIONABLE defendants therein is a party to the main action. If
DOCUMENT (Sec. 8, Rule 8.) one or more of the defendants in a counterclaim or
cross-claim is already a party to the action, then the
Section 11. Third (fourth, etc.)- party complaint other necessary parties may be brought in under this
THIRD – PARTY COMPLAINT – a claim that a
defending party may, with leave of court, file against
a person not a party to the action for contribution,
indemnity, subrogation or any other relief, in respect RULE 7
of his opponent’s claim. There could also be a fourth, PARTS OF A PLEADING
etc, - party complaint with the same purpose and
function. Section 1. Caption


Brings into the action a Same. PARTS OF A PLEADING
third person who was not
originally a party. The Caption contains the following:
Initiative is with the Initiative is with a non- 1. The name of the court;
person already a party to party who seeks to join 2. The title of the action; and
the action. the action. 3. The docket number if assigned.

TESTS to determine whether the third-party The Body sets forth:

complaint is in respect of plaintiff’s claim: 1. Its designation;
1. Whether it arises out of the same transaction on 2. The allegation of the party’s claims and
which the plaintiff’s claim is based, or although defenses;
arising out of another or different transaction, is 3. The relief prayed for: and
connected with the plaintiff’s claim. 4. The date of the pleading
2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for all or Section 3. Signature and address
part of the plaintiff’s claim against the original
defendant; and QuickTime™ and a The signature of the counsel is a certification:
3. Whether the third party
TIFF (Uncompressed) defendant may assert
are needed to see this picture.
1. That he has read the pleading;
any defenses which the third-party plaintiff has 2. That to the best of his knowledge, information or
or may have to plaintiff’s claim belief, there is good ground to support it; and
3. It is not interposed for delay.
Summons on third, fourth etc-party defendant must
be served for the court to obtain jurisdiction over his NOTE: An UNSIGNED PLEADING produces no legal
person, since he is not an original party. effect. However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear that
Republic v. Central Surety & Insurance 25 SCRA the same was due to inadvertence and not intended
641 (1968) for delay.

Page 16 of 289
Civil Procedure Summer Reviewer

1. Indirect Contempt
DISCIPLINARY ACTION ON COUNSEL IN THE 2. Without prejudice to the filing of
FOLLOWING CASES: administrative and criminal actions
1. Deliberately filing an unsigned pleading;
2. Deliberately signing a pleading in violation of the EFFECT OF WILLFUL AND DELIBERATE FORUM
3. Alleging scandalous or indecent matter in the 1. Shall be ground for summary dismissal of the
pleading; or case with prejudice;
4. Failing to promptly report a change of his 2. Direct contempt, as well as a cause for
address. administrative sanctions.

Section 4. Verification

Pleadings need NOT be verified EXCEPT when RULE 8

otherwise provided by the law or rules. MANNER OF MAKING ALLEGATIONS IN A
By an affidavit that the affiant: Section 1. In general
1. Has read the pleading; and
2. That the allegations therein are true and correct Every pleading shall contain in a methodical and
of his personal knowledge or based on authentic logical form a plain, concise and direct statement of
documents. the ultimate facts, omitting the statement of mere
evidentiary facts.
Section 5. Certification against forum-shopping
ULTIMATE FACTS – those which directly form the
FORUM SHOPPING – consists of filing multiple suits bases of the right sought to be enforced or the
in different courts, either simultaneously or defense relied upon.
successively, involving the same parties, to ask the
courts to rule on the same or related causes and/or to If the ultimate facts are NOT alleged, the cause of
grant the same or substantially the same relief. action would be insufficient.

Test to determine the presence of forum- EVIDENTIARY FACTS – those which are necessary
shopping: Whether in the two (or more) cases to prove the ultimate fact or which furnish evidence
pending, there is identity of (a) parties, (b) rights or of the existence of some other facts.
causes of action, and (c) relief sought.
The certificate is to be executed by petitioner, and not Filed by plaintiff Filed by defendant
by counsel. Must contain a direct If defense relied is based
statement of the ultimate on law, cite the pertinent
Required ONLY for complaints or initiatory pleadings facts, omitting statement legal provisions thereof,
such as permissive counterclaim, cross-claim, etc. of mere evidentiary facts as well as its applicability
to him
UST Hospital v. Surla 294 SCRA 382 (1998)
Certificate of non-forum shopping is not required Section 2. Alternative causes of action or defense
in a compulsory counterclaim. A counterclaim is not
an initiatory pleading PLAINTIFFS DEFENDANT
QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.
Alternative allegations – Defendant may state
EFFECT OF FAILURE TO COMPLY: cases where the facts hypothetical allegations
Not curable by mere amendment of the pleading but essential to the plaintiff’s (affirmative defense)
shall be cause for dismissal of the case, without cause are within the
prejudice, unless otherwise provided upon motion knowledge of the
and after hearing defendant, yet the
plaintiff is so imperfectly
EFFECT OF SUMBISSION FO FALSE informed that he can’t
THE UNDERTAKINGS THEREIN: Plaintiff should state the Defendant may also

Page 17 of 289
Civil Procedure Summer Reviewer

facts within his plead as many defenses -on the other hand, if the defendant wants to
knowledge with certainty, and counterclaims he raise an issue of his legal capacity to be
but to plead in alternative may have sued, he should question the jurisdiction of
the doubtful facts which the court over his person
are wholly within the
defendant’s knowledge Section 5. Fraud, mistake, condition of the mind
and call upon the
defendant to make full Fraud or mistake must be stated with particularity
disclosure of these facts while malice or intent must be averred generally.
Plaintiff may state Inconsistency does not
alternative causes of operate as waiver or The defendant may move for a bill of particulars
action, be they withdraw of defense in when the allegations of fraud, etc. are merely
compatible with each another portion of his conclusions of law, and are without statement of the
other or not answer facts to which such terms have reference.
It is sufficient that each is
consistent with itself If after the granting the motion for bill of particulars,
the plaintiff still refuses to do so, the court may simply
Section 3. Conditions Precedent dismiss the complaint.

Pleading must state conditions precedent to the Section 6. Judgment

cause of action, i.e. failure to compromise,
compliance with conciliation process at the barangay The jurisdiction of the court a quo is presumed, it is
level. sufficient to aver the decision or judgment without
setting forth matter showing jurisdiction to render it.
Failure to state the conditions precedent will make
the complaint defective and vulnerable to dismissal, IN SUMMARY: FACTS THAT MAY BE AVERRED
even on appeal, on ground of lack of cause of action. GENERALLY:
1. Conditions precedent; (BUT there must still be an
NOTE: Compliance with conciliation process is a allegation that the specific condition precedent
condition precedent but not a jurisdictional has been complied with, otherwise, it will be
requirement; however, it may still be a ground for dismissed for lack of cause of action)
dismissal on reason of non-compliance with condition 2. Capacity to sue or be sued;
precedent. 3. Capacity to sue or be sued in a representative
Section 4. Capacity 4. Legal existence of an organization;

Facts showing the capacity to sue and be sued must NOTE: a party desiring to raise an issue as to the
be averred. legal existence or capacity of any party to sue or
be sued in a representative capacity shall do so
A party desiring to raise the issue of lack of capacity by SPECIFIC DENIAL which shall include
to sue must do so by specific denial. supporting particulars within the pleader’s
-Example of what must be pleaded: 5. Malice, intent, knowledge, or other condition of
-that a foreign corporation (generally not the mind;
allowed to sue, but can be sued) has license 6. Judgments of domestic or foreign courts,
to do businessQuickTime™
in the and country or is not doing tribunals, boards, or officers; (no need to show
businessTIFFin the country
(Uncompressed) decompressor jurisdiction)
are needed to see this picture.
-foreign corporation must also aver its 7. Official document or act.
capacity to sue or be sued
-Example of what the defendant must plead: PARTICULARLY: Circumstances showing fraud or
-if the defendant wants to raise an issue as to mistake in all averments of fraud or mistake.
the plaintiff’s legal capacity to sue, he should
file a motion to dismiss on that ground or set Section 7. Action or defense based on document
it up as affirmative defense in the answer

Page 18 of 289
Civil Procedure Summer Reviewer

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

Page 19 of 289
Civil Procedure Summer Reviewer


1. By specifically denying the averment and,
whenever practicable, setting forth the 1. Lack of jurisdiction over the subject matter
substance of the matters relied upon for such 2. Litis pendentia;
denial; 3. Res Judicata
2. Part admission and part denial; and 4. Prescription of the action.
3. By an allegation of lack of knowledge or
information sufficient to form a belief as to the Tijam v. Sibonghanoy 23 SCRA 29 (1968)
truth of the averment in the opposing party’s The court shall dismiss the claim if any of these
pleading. grounds appears from the pleadings or the evidence
on record.
NOTE: this does not apply where the fact as to which These defenses may be raised at any stage of
want of knowledge is asserted is, to the knowledge of the proceedings even for the first time on appeal
the court, so plain and necessarily within the EXCEPT that lack of jurisdiction over the subject
defendant’s knowledge that his averment of matter may be barred by laches.
ignorance must be palpable untrue.
Section 2. Compulsory Counterclaim, or Cross-
NEGATIVE PREGNANT – a form of denial which at claim not set-up barred
the same time involves an affirmative implication
favorable to the opposing party; it is in effect, an An AMENDED ANSWER is proper if the counterclaim
admission of the averment to pregnant with an or cross claim already existed at the time the original
admission of the substantial facts in the pleading answer was filed, but due to oversight, inadvertence,
responded to. or excusable neglect, it was not set up.

Section 11. Allegation not specifically denied A SUPPLEMENTAL ANSWER is proper if the
deemed admitted counterclaim or cross-clam matures or is acquired
after the answer is filed.
GENERAL RULE: allegations NOT specifically
denied are deemed admitted. Section 3. Default, declaration of

EXCEPTIONS: DEFAULT – the failure of the defendant to answer

1. Allegations as to he amount of unliquidated within the proper period. It is not his failure to appear
damages; nor failure to present evidence.
2. Allegations immaterial as to the cause of action;
3. Conclusion of law. DEFAULT
Issued by the court, on Rendered by the court
Section12. Striking out of pleading or matter plaintiff’s motion for following a default order
contained therein failure of the defendant or after it received, ex
to failure his responsive parte, plaintiff’s evidence.
Allegations of merely evidentiary or immaterial facts pleading seasonably.
may be expunged from the pleading or may be Interlocutory- not Final - appealable
stricken out on motion. appealable


QuickTime™ and a
TIFF (Uncompressed) decompressor
1. Defendant FAILS TO ANSWER within the time
are needed to see this picture.
EFFECT OF FAILURE allowed therefore;
TO PLEAD 2. There must be a MOTION to declare the
defendant in default;
Section 1. Defenses and objections not pleaded 3. There must be NOTICE to the defendant by
serving upon him a copy of such motion; and
GENERAL RULE: Defenses and objections not 4. There must be PROOF of such failure to
raised in MOTION TODISMISS or in the ANSWER answer.
are deemed waived.

Page 20 of 289
Civil Procedure Summer Reviewer

1. Annulment of marriage; Failure to appeal without defendants fault

2. Declaration of nullity of marriage;
3. Legal Separation; Petition for relief from judgment within 60 days from
4. Special civil actions of certiorari, prohibition and notice of the judgment but within 6 months from entry
mandamus where comment instead of an thereof
answer is required to be filed
5. Summary procedure Annulment of Judgment under RULE 47


notice of
1. Motion to declare him in default; EXTENT OF RELIEF TO BE AWARDED IN A
2. Order declaring him in default; JUDGMENT B DEFAULT:
3. Subsequent proceedings; and Shall not exceed the amount OR be different in kind
4. Service of final orders and judgments from that prayed for NOR award unliquidated
Cavili v. Florendo 154 SCRA 610 (1987)
A defendant declared in default cannot take part
in the trial, but he cannot be disqualified from
testifying as a witness in favor of non-defaulting RULE 10

If the defendant was declared in default upon an Section 1. Amendments in general

original complaint, the filing of the amended
complaint resulted in the withdrawal of the original Pleadings may be amended:
complaint, hence the defendant was entitled to file 1. Adding an allegation of a party;
the answer to the amended complaint as to which he 2. Adding the name of a party;
was not in default. 3. Striking out the name of a party;
4. Correcting a mistake in the name of a party; and
PARTIAL DEFAULT: 5. Correcting a mistake in the name of a party; and
1. The default asserting a claim states a common 6. Correcting a mistake or inadequate allegation or
cause of action against several defending description in any other respect.
2. Some of the defending parties answer and the Section 2. Amendments as a matter of right
others fall to do so; and
3. The answer interposes a common defense. Amendment is a matter of right before a responsive
pleading is SERVED, or in case of a REPLY, within
EFFECT OF PARTIAL DEFAULT: The court will try 10 days after it was SERVED. Such rights can only
the case against ALL defendants upon the answer of be exercised ONCE. Subsequent amendments
some EXCEPT where the defense is personal to the should be made only by leave of court even if the
one who answered, in which case, it will not benefit other party has not yet served a responsive pleading.
those who did not answer.
NOTE: a motion to dismiss is not a responsive
REMEDIES FROM JUDGMENT BY DEFAULT pleading. As such, an amendment AFTER the denial
of a motion to dismiss is still considered as a matter
Judgment by default of right. Hence, it may be done without leave of court.
QuickTime™ and a
Motion for new trial
TIFF or reconsideration
(Uncompressed) decompressor
are needed to see this picture.
at any time Section 3. Amendments by leave of court
after service of judgment by default and within 15/30
days therefrom Leave of court is required:
1. If the amendment is substantial; AND
Failure to file a motion for new trial/ denial of said 2. A responsive pleading had already been served.
Perfect appeal from said judgment by default within 1. There must be a motion filed in court;
the balance of said 15/30 day period 2. Notice to the adverse party; and

Page 21 of 289
Civil Procedure Summer Reviewer

3. Opportunity to be heard afforded to the adverse EFFECT OF AMENDED PLEADING

party. 1. An amended pleadings supersedes the pleading
that it amends;
Instances when amendment by leave of court 2. Admissions in the superseded pleading can still
may not be allowed: be received in evidence against the pleader;
1. When cause of action, defense or theory of the 3. Claims or defenses alleged therein but not
case is changed; incorporated or reiterated in the amended
2. Amendment is intended to confer jurisdiction to pleading are deemed waived.
the court;
3. Amendment to cure a premature or non-existing NOTE: Admission in a superseded pleading is an
cause of action; and EXTRAJUDICAL ADMISSION and may be proved by
4. Amendment for purposes of delay. the party relying thereon by formal offer in evidence.
(Regalado, 2002, p.193)
Section 4. Formal Amendments
NOTE: Some authors are of the opinion that
Section 5. Amendment to conform to or authorize admissions in superseded pleadings need not be
presentation of evidence offered in evidence pursuant to Section 4 of Rule
When issues NOT RAISED in the pleadings are tried
with the express implied consent of parties
1. They shall be treated as if raised in the pleading;
2. Pleadings may be amended to conform to the RULE 11
3. Failure to amend does not affect the result of the
trial of these issues. Section 1. Answer to the complaint

Section 6. Supplemental pleadings Section 2. Answer of a defendant foreign private

juridical entity
SUPPLEMENTAL PLEADINGS – is one which sets
forth transactions, occurrences, or events which have Answer to a complaint
happened since the date of the filing of the complaint. 1. Within 15 days after service of summons,
NOTE: The cause of action stated in the UNLESS a different period is fixed by the
supplemental complaint must be the same as that court;
stated in the court should not admit the supplemental 2. In case the defendant is a foreign private
complaint (Asset Privatization Trust v. CA 229 SCRA juridical entity;
627) a. if it has a resident agent- within 15
days after service of summons to
PLEADING b. if it has no resident agent, but it has
Refers to facts existing at Refers to facts arising an agent or officer in the Philippines
the time of the after the filing of the – within 15 days after service of
commencement of the original pleading. summons to said agent or officer;
action. c. it has no resident agent nor agent
Take the place of the Taken together with the nor officer – in which case service of
original pleading. original pleading. summons is to be made on the
Can be made as a matter Always with leave of proper government office which will
QuickTime™ and a
of right as when no
TIFF (Uncompressed) court
decompressor then send a copy by registered mail
are needed to see this picture.
responsive pleading has to the home office of the foreign
yet been filed. private corporation – within 30 days
When an amended A supplemental pleading after receipt of summons by the
pleading is filed, anew does not require the filing home office of the foreign private
copy of the entire of a new copy of the entity.
pleading must be filed. entire pleading. 3. In case of service of summons by publication
– within the time specified in the order
Section 7. Filing of amended pleadings granting leave to serve summons by

Page 22 of 289
Civil Procedure Summer Reviewer

publication, which shall NOT be less than 60 answering the supplemental complaint in lieu of
days after notice (rule 14, Section 15) the10-day reglementary period.
4. in case of a non-resident defendant on whom
extraterritorial service of summons is made, Section 8. Existing counterclaim or cross-claim
the period to answer should be at least 60
days. Section 9. Counterclaim or cross-claim arising
after answer
The court may extend the time to file the pleadings
but may not shorten them. Section 10. Omitted counterclaim or cross-claim

Section 3. Answer to amended pleadings Counterclaims or cross-claims omitted through

oversight, inadvertence, or excusable neglect or
1. In the filing of an amended complaint is a when justice requires may be set up by the pleader
matter of right—within 15 days from service BEFORE JUDGMENT. Leave of court is necessary.
of amended complaint
2. If the filing of an amended complain is NOT a Section 11. Extension of time to plead
matter of right—within 10 days counted from
notice of the court order admitting the same. REQUISITES:
1. There must be a motion;
NOTE: The rule shall apply to the answer to an 2. With service of such motion to other
amended counterclaim, amended cross-claim, party; and
amended third (fourth, etc.- party complaint, and 3. On such terms as may be just.
amended complaint-in-intervention)

If no new answer is filed, answer to original pleading

shall be deemed as answer to the amended pleading. RULE 12
Section 4. Answer to counterclaim or cross-claim
Section 1. When applied for; purpose
A counterclaim or cross-claim must be answered
within 10 days from service. BILL OF PARTICULARS – a more definite statement
of any matter which is not averred with sufficient
Section 5. Answer to third (fourth, etc.)-party definiteness or particularity.
PURPOSE: to aid in the preparation of a responsive
The third party defendant is served with summons pleading.
just like the original defendant, hence, he also has
15, 30, 60 days from service of summons, as the Galeon v. Galeon 60 SCRA 234 (1976)
case may be, to file his answer. An action cannot be dismissed on the ground that
the complaint is vague or indefinite. The remedy of
Section 6. Reply the defendant is to move for a bill of particulars or
avail of the proper mode of discovery.
A reply may be filed within 10 days from service of
the pleading responded to. The motion for bill of particulars shall be filed before
responding to a pleading. Hence, it must be filed
Section 7. Answer to supplemental complaint within the period granted by the Rules (Rule 11) for
QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.
the filing of a responsive pleading.
Answer to a supplemental complaint must be filed
within 10 days from notice of the order admitting the The motion shall point out:
same. 1. The defects complained of:
2. The paragraphs wherein they are
As in the case of the filing of an amended pleading contained; and
with leave of court, the filing of supplemental 3. The details desired.
complaint requires leave of court. However, unlike
the former, the court may fix a different period for

Page 23 of 289
Civil Procedure Summer Reviewer

Section 2. Action by court Section 6. Bill a part of pleading

The court may either:

1. Deny: or
2. Grant it outright: or RULE 13
3. Allow the parties the opportunity to be FILING AND SERVICE OF PLEADINGS,

Section3. Compliance with order Note: This rule is not arranged per section but per
1. If the motion is granted, in whole or in part, the Section 1. Coverage
movant can wait until the bill of particulars is
served on him by the opposing party and then Notice given to a party who is represented by counsel
he will have the balance of the reglementary is a nullity, unless service thereof on the party himself
period within which to file his responsive was ordered by the court or the technical defect was
pleading; waived.
2. If his motion is denied, he will still have such
balance of the reglementary period to file his Where party is represented by more than one
responsive pleading; counted from service of the counsel of record, service of notice on any of the
order denying his motion. latter is sufficient.

NOTE: If ether case, he shall have not less than 5 Section 2. Filing and service, defined
days to file his responsive pleading.
The bill of particulars may be filed either in a separate PLEADINGS
or in an amended pleading, serving a copy thereof on -Act of presenting the Act providing a party with
the adverse party. It becomes part of the pleading pleading or other paper a copy of the pleading or
sought to be clarified. to the clerk of court paper concerned
a) personally to the -judgment, pleadings and
Section 4. Effect of non-compliance clerk of court orders are served to
b) sending them by counsel, except:
Effect of non-compliance: registered mail 1) when he has no
1. If the order is not obeyed or in case of 2) when counsel of
insufficient compliance therewith, the court: record can’t be located
a. may order the striking out of the 3) when party himself is
pleading or the portion thereof to directed by court to show
which the order is directed; or cause (ex. Contempt)
b. make such order as it may deem -if represented by 2
just. counsels, notice may be
made either upon both or
2. if the plaintiff fails to obey, his complaint may either of them
be dismissed with prejudice UNLESS MODES OF SERVICE
otherwise ordered by the court; (Rule 12, a) personally
Sec. 4; Rule 17, Section 3) b) mail
QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.
c) substituted
3. If defendant fails to obey, hi answer will be service
stricken off and his counterclaim dismissed,
and he will be declared in default upon Section 3. Manner of Filing
motion of the plaintiff. (Rule 12, Section 4;
Rule 17, Section4; Rule 9, Section 3) FILING – act of presenting the pleasing or other
paper to the clerk of court
Section 5. Stay of period to file responsive
pleading Manner of filing
1. Personal Service; or

Page 24 of 289
Civil Procedure Summer Reviewer

2. Registered mail clerk of court, because you must first serve a copy
thereof to the plaintiff, signed by him –only then can
Filing by mail should be through the registry service you file an answer with proof of service.
which is made by deposit of the pleading in the post
office, and not through other means of transmission. Section 5. Modes of Service

If registry service is not available in the locality of SERVICE OF PAPERS SERVICE OF

either sender or addressee, service may be done by JUDGMENTS, FINAL
ordinary mail. ORDERS,
Benguet Electric Cooperative, Inc. v. NLRC 209 a) personal service a) personal service
SCRA 55 (1992) b) registered mail b) registered mail
If a private carrier is availed of by the party, the c) ordinary mail c) publication
date of actual receipt by the court of such pleading
and not the date of delivery to the private carrier, is Promulgation of decision in criminal cases = reading
deemed to be the date of the filing of that pleading. of judgment

PERSONALLY TO THE SENDING THEM BY Promulgation of decision in civil cases = date when
CLERK OF COURT REGISTERED MAIL the copy was served on the counsel by registered
Clerk of court endorse Date of mailing shall be mail
the date and hour of the considered as the date of
filing filing 3 KINDS OF SERVICE:
-reason: government SERVICE MAIL SERVICE
postal service enjoys the Deliver Depositing Delivering copy
presumption of regularity personally: copy in the to the clerk of
-date of mailing = date of 1) party or post office, or court with proof
filing counsel residence, with of failure of both
Private letter couriers 2) by leaving it instructions of personal and
-not recognized because in his office return to service by mail
you can’t apply the with clerk or sender if (different from
presumption of regularity person undelivered substituted
to private entity having within 10 days service under
-nevertheless, the date of charged Sec. 7, Rule 14)
actual receipt is the one thereof
counted 3) leaving it at
the residence
of either, with
Section 4. Papers required to be filed and served
a person of
1. Pleading subsequent to the complaint;
sufficient age
2. Appearance;
3. Written Motion;
4. Notice;
5. Order;
6. Judgment;
7. Demand;
Section 6. Personal Service
8. Offer of judgment;
QuickTime™ and a
9. Resolution; orsee this picture.
TIFF (Uncompressed) decompressor
are needed to
PERSONAL SERVICE- Actual delivery of the
10. Similar papers
processes to him (includes service at the residence
or his attorney)
Papers subsequent to complaint must be filed with
court and served upon parties. Section 7. Service by mail
Pleadings subsequent to original complaint and Section 8. Substituted Service
written motions should first be served on the parties
before they are filed with court. This simply means
that defendant’s answer can’t be filed at once to the

Page 25 of 289
Civil Procedure Summer Reviewer

Section 9 Service of Judgments, Final Orders or

Resolutions SERVICE- Act of providing a party with a copy of the
pleading of paper concerned
Service by publication = only when he absconds and
defendant’s address is unknown SUMMARY OF MODES OF SERVICE
Section 10. Completeness of Service a. Delivering personally a copy to the
party or his counsel; or
Service is completed when: b. Leaving a copy in counsel’s office
Personal Registered Ordinary mail with his clerk or with a person having
service mail charge thereof; or
Upon actual Upon actual Upon expiration c. Leaving the copy between 8 a.m.
delivery receipt by the of 10 days after and 6 p.m. at the party’s or counsel’s
addressee or 5 mailing residence, if known, with a person of
days from the sufficient age and discretion then
date he residing therein—if no is person
received 1st found in his office, or if his office is
notice from unknown, or if he has no office.
-1st notice from 2. SERVICE BY MAIL (SECTION 7)
postmaster If no registry service is available in the locality, of
needs either sender or addressee, service may be done
conclusive proof by ordinary mail.

Completeness begins the running of the period for 3. SUBSTITUTED SERVICE (SECTION 8)
filing of the responsive pleadings Delivering the copy to the clerk of court with proof
of failure of both personal and service by mail.
Section 11. Priorities in modes of service and
filing Section 13 Proof of Service
Personal service is preferred and written explanation Proof of personal service:
is needed why such was not taken 1. Written admission of the party served; or
2. Official return of the server; or
Service by registered mail may be done if the 3. Affidavit of the party serving, containing the
distance from the court to the adverse party is date, place and manner of service.
Proof of service by ordinary mail: Affidavit of the
Section 12. Proof of filing person mailing showing compliance of Section 7 Rule
Filing is proved by its existence in the record of the
case. Proof of service by registered mail:
1. Affidavit of maller showing compliance of
If it is not in the record, and; Section 7 Rule 13; and
1. If filed personally: proved by the written or 2. Registry receipt issued by the mailing office
stamped acknowledgement of its filing by the
clerk of court on a copy of the same: or Section 14. Notice of lis pendens
QuickTime™ and a
2. If filed TIFF
registered mall: proved by the
are needed to see this picture.
registry receipt and the affidavit of the person LIS PENDENS – a notice of a pendency of the action
who did the mailing with a full statement of: between the parties involving title to or right of
a. The date and place of depositing the possession over real property.
mail in the post office in a sealed
envelope addressed to the court; REQUISITES:
b. With postage fully paid; and 1. Action affects the title or the right of
c. With instructions to the postmaster to possession of the real property;
return the mail to the sender after 10 2. Affirmative relief is claimed; and
days if undelivered.

Page 26 of 289
Civil Procedure Summer Reviewer

3. Notice shall contain the name of the including the judgment by default and the order of
parties and the object of the action or execution.
defense an a description of the property
affected thereby; One Peng v. Custodio 1 SCRA 780 (1961)
4. Action in rem (AFP Mutual Benefit Where the defendant has already been served
Association , Inc. v. CA, 327 SCRA 203) with summons on the original complaint, no further
summons is required on the amended complaint if it
does not introduce new cause of action
NOTE: This serves as a warning to all persons,
prospective purchasers or encumbrancers of the Atkins v. Domingo 44 Phil 680 (1923)
property in litigation to keep their hands off the But where the defendant was declared in default
property in litigation unless they are prepared to on the original complaint and the plaintiff
gamble on the result of the proceedings. subsequently filed an amended complaint, new
summons must served on the defendant on the
The defendant may also record a notice of lis amended complaint, as the original complaint was
pendens when he claims an affirmative relief in his deemed withdrawn upon such amendment.
GENERAL RULE: When an additional defendant is
Notice of lis pendens CANNOT be cancelled on an joined, summons must be served upon him.
ex parte motion or upon the mere filing of a bond by
the party on whose title the notice is annotated, as EXCEPTION:
section 14 provides that such cancellation may be 1. When the administrator of a deceased party
authorized ONLY upon order of court after proper defendant substitutes the deceased;
showing that: 2. Where upon the death of the original defendant
his infant heirs are made parties; and
1. The notice is for the purpose of molesting the 3. In cases of substitution of the deceased under
adverse party; or Section16 of Rule 3.
2. It s not necessary to protect the rights of the
party who caused it to be recorded. NOTE: In these instances, the service of the
deceased under Section 16 of Rule 3.

Section 1. Clerk to issue summons

SUMMONS Summons to be issued:
1. Upon the filing of the complaint; AND
Minucher v. CA 214 SCRA 242 (1992) 2. Payment of the requisite legal fees.
Jurisdiction over the person of the defendant in a
civil case is acquired either by his VOLUNTARY Section 2. Contents
him. Section 3. By whom served

SUMMONS – is the writ by which he defendant is Summons may be served by:

notified of the action brought against him. 1. Sheriff;
2. Sheriff’s deputy; or
PURPOSE OF SUMMONS: 3. Other proper court officers; or
1. To acquireQuickTime™
jurisdictionand a
over the person of 4. For justifiable reasons, by any suitable
the TIFF
(Uncompressed)in a civil
are needed to see this picture.
case; and person authorized by the court issuing
2. To give notice to the defendant than an the summons.
action has been commenced against him Enumeration is EXCLUSIVE
(right to due process).
Section 4. Return
EFFECT OF NON-SERVICE: Unless the defendant
voluntary submits to the jurisdiction of the court, non- Section 5. Issuance of Alias Summons
service or irregular service of summons renders null
and void all subsequent proceedings and issuances ALIAS SUMMONS – is one issued when the original
in the action from the order of default up to and has not produced its effect because of a defect in

Page 27 of 289
Civil Procedure Summer Reviewer

form or in the manner of service, and when issued,

superseded the first writ. C. Publication (Section 14)

Section 6. Service in person on defendant Requisites:

1. The action is in rem or quasi in rem;
Section 7. Substituted Service 2. Defendant’s identity and
whereabouts are unknown and
Section 8. Service upon entity without juridical cannot be ascertained or diligent
personality inquiry and
3. there must be leave of court
Section 9. Service upon prisoner
Citizen Surety v. Melencio-Herrera 38 SCRA 369
Section 10. Service upon minors and (1971)
incompetents In action in personam where the defendant
cannot be served with summons personal or by
Section 11. Service upon domestic private substituted service, the case must first be converted
juridical entity into an in rem or quasi in rem action by attaching the
property of the defendant found in the Philippines
Section 12. Service upon foreign private juridical before summons can be served by publication. If no
entity property can be found, the action shall be archived
but shall not be dismissed,
Section 13. Service upon public corporations
Section 14. Service upon defendant whose ENTITIES
identity or whereabouts are unknown
Service on entity without juridical personality
Section 15. Extraterritorial Service (Section 8)
- Upon any or all the defendants being
Section 16. Residents temporarily outside the sued under common name; or person in
Philippines charge of the office
MODES OF SERVICE OF SUMMONS: Service upon minors and incompetents
A. Service in person on defendant (Section 10)
(Section 6) - In case of minors: by serving upon the
1. By handling a copy of summons to minor regardless of age, AND upon his
him, OR of he refuses to receive it; legal guardian, or also upon either of his
2. By tendering it to him. parents
B. Substituted Service (Section 7) - In case of incompetents: by serving on
For substituted service of summons to be valid, it him personally AND upon his legal
is necessary to establish the following: guardian, but not upon his parents,
1. The impossibility of the personal unless they are his legal guardians
service of summons within a person - In any event, if the minor or incompetent
reasonable time; has no legal guardian the plaintiff must
2. The efforts exerted to locate the obtain the appointment of a guardian ad
person to be served; and litem for him.
3. Service upon a person of sufficient
QuickTime™ and a
Tage and
IFF (Uncompressed)discretion
decompressor residing in the Service upon prisoner
are needed to see this picture.
same place as defendant OR some (Section 9)
competent person in charge of his - Serve on officer having management of
office or regular place of business. the jail or prisoner (warden)

Spouses Venturanza v. CA 156 SCRA 305 (1987) Service upon domestic private juridical entity
In substituted service, the sheriff’s return must (Section 11)
show that an effort or attempt was exerted to - To the president, managing partner,
personally serve the summons on the defendant and general manager, corporate secretary,
that the same had failed. treasurer, or in-house counsel.

Page 28 of 289
Civil Procedure Summer Reviewer

- NOTE: Service upon a person other than c) any other manner the court may
those mentioned is invalid and does not deem sufficient
bind the corporation. The enumeration is
EXCLUSIVE. Service upon a resident temporarily outside the
Service upon foreign private juridical entity (Section 16)
(Section 12) - Substituted service or with leave of court,
- Serve on resident agent; or if none; on personal service out of the Philippines as
government official designated by law; or under extraterritorial service.
any officer or agent of the corporation
within the Philippines Service upon an unknown defendant or whose
whereabouts are unknown
Service upon public corporations (Section 14)
(Section 13) - with leave of court, by publication in a
- In case defendant is the Republic of the newspaper of general circulation
Philippines: by serving upon the Solicitor
General Montalban v. Maximo 22 SCRA 1070 (1968)
- In case of province , city or municipality, Summons is validly served if it is left with some
or like public corporations: by serving on person of suitable age and discretion then residing in
its executive head or on such other the defendant’s residence, even if defendant was
officer or officers as the law or the court abroad at that time. The fact that defendant did not
may direct actually receive the summons did not invalidated the
service of such summons.
Extraterritorial Service
(Section 15) Section 17. Leave of Court
1. defendant does not reside or is not found Section 18. Proof of Service
the Philippines;
2. The action must be an action in rem or Section 19. Proof of Service by Publication
quasi in rem. It either:
a) affects the personal status of Section 20. Voluntary Appearance
b) relates to the subject which is Any form of appearance in court, by the defendant,
property within the Philippines in by his agent authorized to do so, or by attorney, is
which defendant has a lien or equivalent to service of summons EXCEPT where
interest; such appearance is precisely to object to the
c) demands a relief which consists jurisdiction of the court over the person of the
wholly or in part in excluding the defendant.
defendant from any interest in
any property within the NOTE: Inclusion in a motion to dismiss of other
Philippines; or grounds aside from lack of jurisdiction over the
d) property of defendant has been person of the defendant shall NOT be deemed a
attached in the Philippines voluntary appearance.
3. Mode of Service

a) with leave of court, serve outside

QuickTime™ and a
TIFF (Unthe
decompressor by personal RULE 15
are needed to see this picture.
service; or MOTIONS
b) with leave of court, serve by
publication in a newspaper of Section 1. Motion, defined
general circulation, in which case
copy of the summons and order Motion - is an application for relief other then by a
of court must also be sent by pleading
registered mail to the last known
address of defendant; or KINDS OF MOTIONS

Page 29 of 289
Civil Procedure Summer Reviewer

a. motion EX PARTE – made without the 4. Motion and notice of hearing must be served at
presence or a notification to the other least 3 DAYS BEFORE THE DATE OF
party because the question generally HEARING; (Section 4) and
presented is not debatable. (i.e. motion 5. PROOF OF SERVICE.(Section 6)
for extension of time to file pleadings)
movant is entitled to the relief or remedy 1. Ex parte motions;
sought as a matter of discretion on the 2. Urgent motions;
part of the court. 3. Motions agreed upon by the parties to be heard
c. LITIGATED motion – one made with on shorter notice or jointly submitted by the
notice to the adverse party to give an parties; and
opportunity to oppose. (i.e. motion to 4. Motions for summary judgment which must be
dismiss) served at least 10 days before its hearing.
d. SPECIAL motion – motion addressed to
the discretion of the court. NOTE: Any motion that does not comply with
Sections 4,5 and 6 of this Rule (requirements 4-5) is
GENERAL RULE: A motion cannot pray for a mere scrap of paper. It does not interrupt the
judgment. reglementary period for the filing of the requisite
1. Motion for judgment on the pleadings; Section 7. Motion Day
2. Motion for summary judgment;
3. Motion for judgment on demurrer to evidence. Æ Friday afternoon

Section 2. Motion must be in writing Section 8. Omnibus Motion

GENERAL RULE: Motions must be in writing. Omnibus Motion Rule – A motion attacking a
pleading, order judgment or proceeding shall include
EXCEPTIONS: Those made in OPEN COURT or in all objections then available. Objections not included
the COURSE OF HEARING or TRIAL. shall be deemed waived except the defense referred
in Section 1
Section 3. Contents
Section9. Motion for leave
1. The relief sought to be obtained; Section 10. Form
2. The ground upon which it is based; and
3. If required by the Rules or necessary to prove
facts alleged therein, shall be accompanied by
supporting affidavits and other papers. RULE 16
Section 4. Hearing of Motion
A MOTION TO DISMISS is NOT a responsive
Section 5. Notice of Hearing pleading. It is not a pleading at all. It is subject to the
omnibus motion rule since it is a motion that attacks a
Section 6. Proof of Service Necessary pleading. Hence, it must raise all objections available
at the time of the filing thereof.
QuickTime™ and a
(Uncompressed) NOT MADE IN OPEN
are needed to see this picture.
TRIAL: dismiss a case unless a motion to that effect is filed
1. it must be in WRITING; by a party thereto.
2. HEARING OF MOTION set by the applicant;
3. NOTICE OF HEARING shall be addressed to all EXCEPTIONS:
parties concerned not later than 10 days from 1. Those cases where the court may dismiss a
the filing of the motion; (Section 5) case motu proprio (Section 1, Rule 9);
2. Section2 Rule 17; (Upon the plaintiff’s own

Page 30 of 289
Civil Procedure Summer Reviewer

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

Page 31 of 289
Civil Procedure Summer Reviewer


When the ground for dismissal is that the complaint Section 4. Time to plead
states no cause of action, such fact can be
determined only from the facts alleged in the Defendant is granted only the balance of the
complaint. reglementary period to which he was entitled at the
time he filed his motion to dismiss, counted from his
FAILURE TO STATE A CAUSE OFACTION and receipt o the denial order, but not less than 5 days in
is the ground for a motion to dismiss. The former
means there is insufficiency in the allegations in the Section 5. Effect of dismissal
pleading. The latter means that there is insufficiency
in the factual basis of the action. GENERAL RULE: the action or claim may be re-filed

NON-COMPLIANCE WITH A CONDITION EXCEPTION: the action cannot be re-filed if it was

PRECEDENT dismissed on any of these grounds:
Non-compliance with P.D 1508 (Katarungang 1. Res judicata;
Pambarangay Law) may result to dismissal of the 2. Prescription;
case on the ground on non-compliance with a 3. Extinguishment of the claim or demand;
condition precedent. and
4. Unenforceability under the Statue of
Order granting motion Refile the complaint. In these instances, the remedy of the plaintiff is
to dismiss is final order APPEAL.
(without prejudice)
Order granting motion Appeal Section 6. Pleading grounds as affirmative
to dismiss (with defenses
Order denying the Certiorari and If no motion to dismiss had been filed, any of the
motion to dismiss is prohibition if there is grounds for dismissal provided for in rule 16,
interlocutory grave abuse of INCLUDING IMPROPER VENUE, may be pleaded
discretion amounting as affirmative defenses and a preliminary hearing
to lack or excess of may be had thereon in the discretion of the court.
jurisdiction under rule
65 NOTE: if the defendant would want to file a
counterclaim, he should NOT file a motion to dismiss.
GENERAL RULE: an order denying a motion to Instead, he should allege the grounds of a motion to
dismiss is interlocutory. The ordinary procedure is for dismiss as affirmative defenses in his answer with a
the defendant to file hi answer and go to trial and if counterclaim. A preliminary hearing mat be had
the decision is adverse, he can appeal from the thereon, and in the event the complaint too
judgment and assign as error the denial of the motion dismissed, the defendant can PROSECUTE his
to dismiss. counterclaim.

EXCEPTION: if the court acts without or in excess of The 2nd par. of Sec. 6 clearly provides that the
jurisdiction or with grave abuse of discretion in dismissal of the complaint without prejudice to the
denying the motion, CERTIORARI or PROHIBITON prosecution of the counterclaim.
QuickTime™ and a
lies. TIFF (Uncompressed) decompressor
are needed to see this picture.

Section 2. Hearing of Motion

Section 3. Resolution of Motion DIMISSAL OF ACTIONS

The court may order: Section 1. Dismissal upon notice by plaintiff

a. The dismissal of the action;
b. Deny the motion; or
c. Amend the pleading.

Page 32 of 289
Civil Procedure Summer Reviewer

Dismissal is effected not by motion but by mere 2. When stated to be with prejudice in the
NOTICE of dismissal which is a matter of right order of the court.
1. The answer; or The approval of the court is necessary in the
2. A motion for summary judgment. dismissal or compromise of a class suit.

The rule requires a COURT ORDER confirming the Section 3. Dismissal due to fault of plaintiff
GENERAL RULE: Such dismissal is WITHOUT 1. Plaintiff fails to appear for no justifiable
PREJUDICE, cause on the date of the presentation of
his evidence in chief on the complaint;
EXCEPTION: 2. Plaintiff fails to prosecute his action for
an unreasonable length of time;
1. Where the notice of dismissal so provides; (NOLLEPRODEQU!)
2. Where the plaintiff has previously dismissed the 3. Plaintiff fails to comply with these Rules
same case in a court of competent jurisdiction or any order of the court.

Serrano v. Cabrera 93 Phil. 774 (1953) Jalover v. Ytoriaga 80 SCRA 100 (1977)
The dismissal is still with prejudice even if the The plaintiff’s failure to appear at the trial after he
notice of dismissal does not so provide, where such has presented his evidence and rested his case
notice is premised on the fact of payment by the DOES NOT WARRANT the dismissal of the case on
defendant of the claim involved the ground of failure to prosecute. It is merely a
waiver of his right to cross-examine and to object to
Section 2. Dismissal upon motion of plaintiff the admissibility of evidence

Under this section, the dismissal of the complaint is Complaint may be dismissed
subject to the DISCRETION of the court and upon 1. Upon motion of the defendant; or
such terms and conditions as may be just. 2. Upon the court’s own motion.

If a counterclaim has been pleaded by the defendant Dismissal shall have the effect of an ADJUDICATION
PRIOR TO THE SERVICE upon hum of the plaintiff’s UPON THE MERITS (RES JUDICATA), unless
motion for dismissal, the dismissal shall be limited to otherwise declared by the court.
the complaint.
Such dismissal shall be without prejudice to the right Dismissal is at the Dismissal is not procured
of the defendant to either: instance of the plaintiff. by plaintiff though justified
1. Prosecute his counterclaim in a separate by causes imputable to
action; OR him.
2. To have the same resolved in the same Dismissal is a matter of Dismissal is a matter of
action. In this case, defendant must procedure, without evidence, an adjudication
manifest such preference to the trial prejudice unless on the merits.
court within 15 days from notice to him of otherwise stated in the
plaintiff’s motion to dismiss. order of the court or on
QuickTime™ and a plaintiff’s motion to
These alternative remediesdecompressor
TIFF (Uncompressed) of the defendant are
are needed to see this picture. dismiss his own
available to him REGARDLESS OFWHETHER HIS complaint.
COUNTERCLAIM IS COMPULSORY OR Dismissal is without Dismissal is without
PERMISSIVE. prejudice to the right of prejudice to the right of
the defendant to the defendant to
Dismissal under this rule is WITHOUT PREJUDICE, prosecute his prosecute his
EXCEPT: counterclaim in a counterclaim on the same
1. When otherwise stated in the motion to separate action unless separate action.
dismiss; w/in 15 days from notice

Page 33 of 289
Civil Procedure Summer Reviewer

of the motion he 6. The advisability of a PRELIMINARY

manifests his intention to REFERENCE of issues to a
have his counterclaim commissioner;
resolved in the same 7. The property of RENDERING
action. JUDGMENT on the pleadings, or
summary judgment, or of dismissing the
Section 4. Dismissal of counterclaim, cross-claim action should a valid ground therefore be
or third party complaint found to exist;
8. The advisability or necessity of
RULE 18 9. Such OTHER MATTERS as may aid in
PRE-TRIAL the prompt disposition of the case.

PRE-TRIAL – a mandatory conference and personal Section 3. Notice of Pre-trial

confrontation before the judge between he parties
and their respective counsel. Section 4. Appearance of parties

Section 1. When conducted When non-appearance of a party may be

The plaintiff should promptly file a motion ex parte 1. If a valid cause is shown therefore;
that the case be set for pre-trial, and this he must do 2. If a representative shall appear in his
upon the service and filing of the last pleading. behalf fully authorized in writing to:
a. Enter into an amicable settlement;
Sarmiento v. Juan 120 SCRA 403 (1983) b. Submit alternative modes of dispute
The “last pleading” need not be literally construed resolution;
as the actual filing of the last pleading. For purposes c. Enter into stipulations or admissions of
of the pre-trial, the expiration of the period for filing facts and of documents.
the last pleading is sufficient .
NOTE: the mere presentation of such written
Section 2. Nature and purpose authority is not sufficient, but must be complemented
by a showing of valid cause for the non-appearance
The court shall consider: of the party himself.
1. The possibility of an AMICABLE
SETTLEMENT or of a submission to Section 5. Effect of failure to appear
alternative modes of dispute resolution;
3. The necessity or desirability of Cause for dismissal of the action, with prejudice,
AMENDMENTS TO THE PLEADINGS; unless otherwise ordered by the court.
4. The possibility of obtaining
facts and documents to avoid DEFENDANT:
unnecessary proof; Cause the plaintiff to present evidence ex parte and
for the court to render judgment on the basis thereof.
Filoil Marketing Corp. v. Dy Pac & Co. 160 SCRA
Section 6. Pre-trial brief
133 (1988) QuickTime™ and a
TIFF (Uncompressed) decompressor
The process ofneeded
are securing
to see this admissions,
picture. whether of
Failure to file pre-trial brief has the same effect as
facts or evidence, is essentially voluntary. Whether of
failure to appear at the pre-trial.
facts or evidence, is essentially voluntary. When the
parties are unable to arrive at a stipulation of agreed
Section 7. Record of pre-trial
facts, the court must close the pre-trial and proceed
with the trial of the case.
The contents of the PRE-TRIAL order shall control
the subsequent course of the action, UNLESS
5. The limitation of the number of modified before trial to prevent manifest injustice.

Page 34 of 289
Civil Procedure Summer Reviewer

A party is deemed to have waived the delimitations in 2. One who has a legal interest in the success
a pre-trial order if he failed to object to the of either of the parties
introduction of evidence on an issue outside of the 3. One who has an interest against both parties
pre-trial order, as well as in cross-examining the or
witness in regard to said evidence. 4. One who is so situated as to be adversely
affected by distribution of other disposition of
property in the custody of the court or of an
officer thereof.
1. Whether the intervention will unduly delay or
No settlement Amicable Failure to prejudice the adjudication of the rights of the
Settlement appear original parties; and
2. Whether the in intervenor’s rights may be
fully protected in a separate proceeding.
If plaintiff is absent, If defendant is The interest which entitles a person to intervene in a
when so required absent, court may
Agreements made to attend, the court hear evidence of suit must be on the matter in litigation and of such
by parties; may dismiss the plaintiff ex parte direct and immediate character that the intervenor will
Amendments to case either gain or lose by the direct legal operation and
pleading; Schedule
of trial
effect of the judgment.

An ancillary action An original action
Proper in any of the Presupposes that the
four situations plaintiff has no interest
mentioned in this Rule. in the subject matter of
If evidence is sufficient to the action or has an
TRIAL Court prove plaintiff’s cause of interest therein which
renders action or defendant’s
in whole or in part is
counterclaim, court rules
in favor of either one or not disputed by the
dismisses the case other parties to the
Defendants are Defendants are being
already original parties sued precisely to
to the pending suit implead them.

RULE 19 Section 2. Time to intervene

The motion to intervene must be filed at any time
Intervention - is a legal proceeding by which a third before the rendition of judgment by the trial court.
person is permitted by the court to become a party by
intervening in a pending action after meeting the NOTE: After rendition of judgment, a motion to
conditions and requirement set by the Rules of Court intervene is barred, even if the judgment itself
QuickTime™ and a
recognizes the right of the movant. The remedy of
NOTE: Intervention are neededis neverpicture. an
TIFF (Uncompressed) decompressor
to see this independent the movant is to file a separate action.
proceeding but is ancillary and supplemental to an
existing litigation. Hence the final dismissal of the Section 3. Pleadings-in-intervention
principal action results into dismissal of said ancillary
action. 1. Complaint-in-intervention
- if intervenor asserts a claim against
Section 1. Who may intervene either or all of the original parties.

1. One who has legal interest in the matter in 2. Answer-in-intervention


Page 35 of 289
Civil Procedure Summer Reviewer

- if intervenor unites with the defendant in 1. The court before whom witness is required to
resisting a claim against the latter attend;
2. The court of the place where the deposition
Section 4. Answer to a complaint-in-intervention is to be taken;
3. The officer or body authorized by law to do
Within 15 days from notice of the order admitting the so in connection with its investigations
same conducted by said officer or body; or
4. Any Justice of the Supreme Court or of the
REMEDIES FOR THE DENIAL OF INTERVENTION Court of Appeals in any case or investigation
pending within the Philippines. (Section 2)
1. Appeal
2. Mandamus, if there is grave abuse of ‚ A subpoena is signed by the Clerk of Court.
discretion (Rule 136, Section 4)

If there is improper granting of intervention, the Liebnow v. Philippine Vegetable Oil 39 Phil 60
remedy of the party is Certiorari. (1918)
If a subpoena duces tecum is improperly issued,
a proper remedy is motion to vacate or set aside the
‚ When application for a subpoena to a
Section 1. Calendar of cases prisoner is made, the judge or officer shall
examine and study carefully such application
Section 2. Assignment of cases. to determine whether the same is made for a
valid purpose. (Section 2)
‚ No prisoner (1) sentenced to death, reclusion
perpetua or life imprisonment and (2) who is
RULE 21 confined in any penal institution shall be
SUBPOENA brought outside the penal institution for
appearance or attendance in any court
Section 1. Subpoena and subpoena duces tecum unless authorized by the Supreme Court.
(Section 2)
TWO KINDS OF SUBPOENA ‚ The deposition of a prisoner confined in
1. Subpoena duces tecum – process directed prison may be taken only by leave of court on
to a person which requires him to bring with such terms as the court prescribes. (Rule 23,
him Section1)
a. any books,
c. other things under his control. TESTIFICANDUM
(Section 1) A subpoena shall state:
2. Subpoena ad testificandum – process 1. the name of the court and
directed to a person requiring him to attend 2. the title of the action or investigation
and to testify 3. (and) shall be directed to the person required
a. at the hearing or the trial of an to attend. (Section 3)
action, or
b. TIFF anyQuickTime™
at (Uncompressed) and a
decompressor conducted by FORM AND CONTENTS OF A SUBPOENA DUCES
are needed to see this picture.
competent authority, or TECUM
c. for the taking of his deposition. 1. the name of the court and
(Section1) 2. the title of the action or investigation
3. (and) shall be directed to the person
Section 2. By who issued required to attend.
4. It must contain a reasonable description of
Section 3. Form and Contents the books, documents or things demanded
which must appear to the court prima facie
WHO ISSUES A SUBPOENA relevant. (Section 3)

Page 36 of 289
Civil Procedure Summer Reviewer

the Comprehensive Dangerous Drugs Act of

Section 4. Quashing a Subpoena 2002 and hijacking.

GROUNDS FOR QUASHING A SUBPOENA Section 5. Subpoena for deposition

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

Page 37 of 289
Civil Procedure Summer Reviewer

Violation: default Violation: indirect 2. to a detention prisoner if no permission of the

contempt court in which his case is pending is
obtained. (Section 10)
Section 7. Personal Appearance in court


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

Page 38 of 289
Civil Procedure Summer Reviewer

MODES OF DISCOVERY and request for admission by adverse

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

Page 39 of 289
Civil Procedure Summer Reviewer

d. Testimony is preserved, so that if a NOTICE AND SERVICE

witness unexpectedly dies or Deposition a party desiring to take a deposition
becomes unavailable at the trial, his pending shall give reasonable notice in writing
deposition is available. action to every other party to the action
2. It is an effective means of detecting and (Rule 23,
exposing false, fraudulent, and sham claims Section
and defenses. 15)
3. It makes available in a simple, convenient, Deposition the petitioner shall serve a notice
and often inexpensive way facts which before upon each person named in the
otherwise could not have been proved, except action petition as an expected adverse party,
with great difficulty and sometimes not at all. (Rule 24, together with a copy of the petition
4. It educates the parties in advance of trial as to Section 3) stating the time and place.
the real value of their claims and defenses, At least 20 days before the date of
thereby encouraging settlements out of court. the hearing, the court shall cause
5. It expedites the disposal of litigation, saves notice thereof to be served on the
the time of the courts, and clears the docket of parties and prospective deponents in
many cases by settlements and dismissals the manner provided for service of
which otherwise would have to be tried. summons.
6. It safeguards against surprise at the trial,
prevents delays, and narrows and simplifies Deposition The party must make a motion for
the issues to be tried, thereby expediting the pending leave to take deposition in the court
trial. appeal which rendered judgment and give
7. It facilitates both the preparation and trial of (Rule 24, notice in writing to every other party to
the cases. (Fortune v. IAC, G.R. No. 108119, Section 7) the action


1. Deposition De Bene Esse – taken for
purposes of pending action 1. For a deposition upon oral examination
2. Depositions in Perpetuam Rei Memoriam (Section 15)
– those taken to perpetuate evidence for
purposes of an anticipated action or further a. the time and place for the taking of
proceedings in a case on appeal the deposition (upon motion of any
party upon whom the notice is
KINDS OF DEPOSITIONS served, the court may for cause
1. Depositions on Oral Examinations shown enlarge or shorten the time)
(Secs. 15-24) and
2. Depositions upon Written Interrogatories
(Secs. 25-28) b. the name and address of each person
to be examined, if known. If unknown,
GENERAL PROVISIONS ON DEPOSITIONS (Secs. a general description sufficient to
1-14) identify him or the particular class or
group to which he belongs.
Section 1. Depositions pending action, when may
be taken 2. For deposition upon written
QuickTime™ and a
(Uncompressed) decomp a. The names and address of the
are needed to see this picture.
1. After jurisdiction has been obtained over any person who is to answer and
defendant or over property which is the b. The name or descriptive title and
subject of the action but before answer, address of the officer before whom
Motion to Take Oral Deposition or Written the deposition is to be taken
Interrogatories (By Leave of Court)
2. After an answer has been served, Notice to ‚ Proof of service of a notice to take a deposition
take Oral Deposition or Written as provided in Sections 15 and 25 of Rule 23
Interrogatories (Without Leave of Court) shall constitute sufficient authorization for the
issuance of subpoenas for the persons named in

Page 40 of 289
Civil Procedure Summer Reviewer

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

Page 41 of 289
Civil Procedure Summer Reviewer

2. deposition of any party, or anyone WHAT IS THE EFFECT OF TAKING

who at the time of taking the DEPOSITIONS?
deposition was an officer, director, A party shall not be deemed to make a person his
or managing agent of a public or own witness for any purpose by taking his deposition.
private corporation – may be used (Section 7)
by an adverse party for any purpose ‚ Deposition is a mode of discovery and so it is
3. possible that you will not use the deposition
‚ If only part of the deposition is as part of your evidence and so by taking
introduced, adverse party may require that depositions, you do not make the deponent
all of it which is relevant to the part automatically your witness. A party may
introduced be introduced, and any party may refuse to present witness even if his
introduce any other parts. (Section 4) deposition was taken.
‚ BUT: the introduction in evidence of the
‚ Where the witness is available to testify and the deposition or any part thereof makes the
situation is not one of those excepted under deponent the witness of the party introducing
Section 4, his deposition is inadmissible in the deposition (Section 8) EXCEPTIONS to
evidence and he should be made to testify. Section 8:
1. Deposition is used to impeach or
Section5. Effect of Substitution of Parties contradict
2. Deposition of your opponent does
WHAT IS THE EFFECT OF SUBSTITUTION OF not make him your witness
PARTIES TO DEPOSITIONS PREVIOUSLY 3. Deposition of an officer of a
TAKEN? corporation (par.(b) Section4)

Rule 23 Section 5 is applicable in depositions ‚ Defendant may present witness even if it was
pending action, before action and pending appeal. the plaintiff who took the witness’s
(Cross reference to Rule 24 Section 6 and 7) deposition.

Substitution of parties does not affect the right to use Section 10. Persons before who depositions may
depositions previously taken; and, when an action be taken within the Philippines
has been dismissed and another action involving the
same subject is afterward brought between the same Section 11. Persons before who depositions may
parties or their representatives or successors in be taken in foreign countries
interest, all depositions lawfully taken and duly filed in
the former action may be used in the latter as if BEFORE WHOM MAY DEPOSITIONS BE TAKEN
originally taken therefore. (Section 5) 1. Within the Philippines
a. Any Judge
Section 6. Objections to admissibility b. Notary public
c. Any person authorized to administer
WHEN ARE OBJECTIONS TO ADMISSIBILITY OF oaths if the parties so stipulate in writing
Objection may be made at the trial or hearing to 2. In foreign countries
receive in evidence any deposition or part thereof for a. On notice, before a secretary of any
any reason which would require the exclusion of the embassy or legation, consul-general,
evidence if the witness were then present and consul, vice-consul, consular agent
testifying. (Section 6) And it is also at trial or hearing of the Philippines;
QuickTime™ and a
when any partyTIFFmay rebutdecompressor
(Uncompressed) any relevant evidence Why is an ambassador not
are needed to see this picture.
contained in a deposition whether introduced by him included?
or by any other party. (Section 9) Because an ambassador is
only concerned with political
Section 7. Effect of taking depositions matters.
] b. Before such person or officer as may
Section 8. Effect of using depositions be appointed by commission or
under letters rogatory
Section 9. Rebutting depositions

Page 42 of 289
Civil Procedure Summer Reviewer

c. Any person authorized to administer Autographics, Inc. v. CA, GR No.95863, 1 July

oaths if the parties so stipulate. 1993
(Section 11) The right of a party to take depositions as means
of discovery is not exactly absolute. This is implicit in
Section 12. Commission or letters rogatory the provisions of the Rules of Court cited by
appellants themselves, sections 16 and 18 of Rule
COMMISSION LETTERS ROGATORY 24. In such instances, these provisions expressly
Issued only when necessary or convenient, on authorize the court to either prevent the taking of a
application and notice, and on such terms and with deposition or stop one that is already being taken.
such direction as are just and appropriate
An instrument issued by Instrument sent in the Section 15. Depositions upon oral examination;
the court of justice or name and by authority of notice; time and place
tribunal to authorize a a judge or court to
person to take another judge or court Section 16. Orders for the protection of parties
depositions or to do any requesting the latter to and deponents
other act by authority of custody examine upon
such court or tribunal interrogatories filed in a PROTECTION ORDERS OF MOTION TO
former, a witness who is (Section 16 and Section 28) OR LIMIT
within the jurisdiction of EXAMINATION
the judge or court to (Section 18)
whom such letter is After notice is served for taking a At any time
addressed deposition upon motion during the
seasonably made by any party or taking of the
Applicable rules of Applicable rules of by the person to be examined and deposition, on
procedure are those of procedure are those of for good cause shown (which motion or
the requesting court the foreign court means it will be done before the petition of any
requested to act taking of the deposition) party or of the
Resorted to if permission Resorted to if the deponent and
of the foreign country is execution of the upon a showing
given commission is refused in that the
the foreign country examination is
Leave of court is not Leave of court is being
necessary. necessary. conducted in
bad faith or in
Section 13. Disqualification by interest such manner
DEPOSITIONS? to annoy,
1. Relative within 6th degree of consanguinity embarrass, or
or affinity of any party oppress the
2. Employee of any party deponent or
3. Counsel of any party party
4. Relative within the same degree of any The court in which the action is The court in
party’s counsel pending which the
5. Employee ofQuickTime™
party’sand counsel
a action is
6. Anyone TIFF financially interested
(Uncompressed) decompressor
are needed to see this picture.
in the action pending or the
RTC of the
1. not relevant (Section 1) the deposition
2. to protect a party or witness from is being taken
annoyance, embarrassment or opposition Makes an order that: Orders the
(Section 16 and 18) 1. deposition shall not be officer
taken conducting the
2. it may be taken only at examination to

Page 43 of 289
Civil Procedure Summer Reviewer

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

Page 44 of 289
Civil Procedure Summer Reviewer

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

Page 45 of 289
Civil Procedure Summer Reviewer

the disqualification becomes known or could certified, sealed, indorsed, transmitted, filed
be discovered with reasonable diligence or otherwise dealt with by the officer are
3. As to competency or relevancy of waived unless a motion to suppress the
evidence - NOT waived by failure to make deposition or some part of it is made with
them before or during the taking of the reasonable promptness after such defect is,
deposition, unless ground is one which might or with due diligence might have been,
have been obviated or removed if presented ascertained. (Section 29)
at that time
4. As to oral examination and other RULES ON OBJECTIONS
particulars - Errors occurring at the oral 1. Objections to direct interrogatories can be
examination in the manner of taking the made within 10 days.
deposition, in the form of questions and 2. Objections to cross interrogatories can be
answers, in oath or affirmation, or in conduct made within 5 days.
of parties, and errors of any kind which might 3. Objections to re-direct interrogatories can be
be obviated, removed, cured if promptly made within 3 days.
prosecuted are waived unless reasonable 4. Objections to re-cross interrogatories can be
objection is made at the taking of the made within 3 days.
5. As to form of written interrogatories - Diman v. Hon. Alumbres, G.R. No. 131466, 27 Nov
waived unless served in writing upon the 1998
party propounding them within the time A trial court has no discretion to determine what
allowed for serving succeeding cross or other the consequences of a party's refusal to allow or
interrogatories and within 3 days after the make discovery should be; it is the law which makes
service of the last interrogatories authorized. that determination; and it is grave abuse of discretion
6. As to manner of preparation - errors as to for the Court to refuse to recognize and observe the
manner in which the testimony is transcribed effects of that refusal as mandated by law.
or the deposition is prepared, signed,



Who can A person who desires to perpetuate his own Any person can perpetuate their
apply? testimony or that of another person regarding any testimony for use in the event of further
matter that may be cognizable in any court of the proceedings in the said court (Section 7)
Philippines (Section 1)

What to file? a verified petition, contents of which are: motion upon notice and service,
The petition shall be entitled in the name of the contents of which are:
petitioner and shall show: 1. the names and addresses of the
1. that the petitioner expects to be a party to an persons to be examined and
action in a court of the Philippines but is 2. the substance of the testimony
presently unable to bring it or cause it to be which he expects to elicit from
brought; each; and
QuickTime™ and a
TIFF (Un2. the decompressor
compressed) subject matter of the expected action and 3. the reason for perpetuating their
are needed to see this picture.
his interest therein; testimony (Section 7)
3. the facts which he desires to establish by the
proposed testimony and his reasons for
desiring to perpetuate it;
4. the names or a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
5. the names and addresses of the persons to
be examined and the substance of the

Page 46 of 289
Civil Procedure Summer Reviewer

testimony which he expects to elicit from

each, and
6. shall ask for an order authorizing the petitioner
to take the depositions of the persons to be
examined named in the petition for the
purpose of perpetuating their testimony.
(Section 1 & 2)
Where to in the court of the place of the residence of any the court in which the judgment was
apply? expected adverse party (Section 1) rendered (Section 7)
When to file? Before the action. Depositions before action is only At any time before judgment becomes
applicable in civil cases. final:
1. If an appeal has been taken from a
judgment of a court, including the
Court of Appeals in proper cases,
2. before the taking of an appeal if
the time therefore has not expired
(Section 7)
Court order If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of
and justice, it may make an order allowing the depositions to be taken, which shall:
examination 1. designate or describe the persons whose deposition may be taken and
2. specify the subject matter of the examination and
3. specify whether the depositions shall be taken upon oral examination or written
interrogatories. (Section 4 & 7)

NTERROGATORIES TO PARTIES Disclosure of matters of Disclosure only of
proof matters which define the
Section 1 Interrogatories to parties; service issues
thereof May be made part of the Become a part of the
records as evidence pleadings
ANY PARTY desiring to elicit material and relevant Section 2. Answer to interrogatories
facts FROM ANY ADVERSE PARTY shall file and
serve upon the latter written interrogatories to be WHAT IS THE FORM OF AN ANSWER TO
answered by the party served. INTERROGATORIES?
If the person served is a private or public corporation, 1. answered fully in writing and
partnership or association, then it will be answered by 2. signed and sworn to by the person making
any officer competent to testify in its behalf. (Section them. (Section 2)
Section 3. Objections to interrogatories
DEPENDS. If an answer has NOT YET BEEN served,
you need leave TIFF
court, but if the answer HAS BEEN
needed to see this picture. Objections to any interrogatories may be presented to
served, then you do not need leave of court. (Section the court within ten (10) days after service thereof,
1, cross refer to Rule 23 Section 1) with notice as in case of a motion; and answers shall
be deferred until the objections are resolved, which
‚ Interrogatories and the answers thereto should be shall be set at an early time, as practicable. (Section
filed in court and served on adverse parties, so 3)
that the answers may constitute judicial
admissions. (Rule 129, Section 4) ‚ 15 days to answer. 10 days to object. In
‚ case objection is denied, you still have 5 days
to file an answer.

Page 47 of 289
Criminal Law Summer Reviewer

Section 4. Number of interrogatories Intervention With No intervention
by the Court intervention of since
HOW MANY INTERROGATORIES CAN YOU FILE? the office who is interrogatories
No party may, without leave of court, serve more than authorized to are directed to
one set of interrogatories to be answered by the take the the party himself
SAME party. (Section 4) deposition

Section 5. Scope and use of interrogatories

Section 6. Effect of failure to serve written RULE 26


WHAT IS THE EFFECT OF FAILURE TO SERVE Section 1. Request for admission

Purpose of written request for admission
A party not served with written interrogatories may not To expedite trial and relieve the parties of the costs of
be proving facts which will not be disputed on trial and
1. compelled by the adverse party to give the truth of which can be ascertained by reasonable
testimony in open court, or inquiry
2. to give a deposition pending appeal.
What request may include:
UNLESS thereafter allowed by the court 1. Admission of the genuineness of any material
1. for good cause shown and and relevant document described in and
2. to prevent a failure of justice (Section 6) exhibited with the request
2. Admission of the truth of any material and
WHAT IS THE EFFECT TO FAILURE TO ANSWER relevant matter of fact set forth in the request
INTERROGATORIES? 3. Under this rule, a matter of fact not related to
Case may be dismissed or a judgment by default may any documents may be presented to the
be given other party for admission or denial

Depositions Interrogatories Distinguished from Rule on Actionable

under Written to Parties Documents
upon Written (Rule 25) A request for admission is proper when the
Interrogatories genuineness of an evidentiary document is sought
(Rule 23) to be admitted. If not denied under oath in
Procedure Direct, cross, File and serve accordance with Section 2, its genuineness it
redirect, questions and deemed admitted. If the document is actionable,
recross. You the party has to the original or a copy should be attached to the
just serve answer them complaint, or copied therein, and its genuineness
QUESTIONS and due execution is deemed impliedly admitted
Deponents Any person, Only a party to unless specifically denied under oath by the
either party or the case, adverse party.
witness particularly the
adverse party Po v. Court of Appeals 164 SCRA 668 (1998)
Coverage Any matter as Same (Rule 25, A request for admission is not intended to merely
long as relevant Section 5) reproduce or reiterate the allegations of the
and not requesting party’s pleading but should set forth
privileged relevant evidentiary matters of fact, or documents
Uses Rule 23, Section Same (Rule 25, described in and exhibited with the request, whose
4 Section 5) purpose is to establish said party’s cause of action or
Interrogatories No fixed time 15 days to defense.
answer unless
extended or Distinguished from Written Interrogatories
reduced by the

Page 48 of
Criminal Law Summer Reviewer
Adverse party or witness Adverse party only RULE 27
NOT required to deny or Required to admit or PRODUCTION OR INSPECTION OF DOCUMENTS
admit anything deny something OR THINGS

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

Page 49 of
Criminal Law Summer Reviewer


Section 1. When examination may be ordered Section 1. Refusal to answer. .

This applies only to parties, NOT witnesses. Refusal to answer

If a party or other deponent refuses to answer any
Examples of Mental or Physical Condition of a question upon oral examination, the examination may
party in controversy: be
1. In an action to recover damages for personal ƒ completed on other matters or
injury, the physical condition of the plaintiff in ƒ adjourned
controversy as the proponent of the question may prefer.
2. In a petition for guardianship on the ground of
insanity, the mental condition of the ward is in The proponent may apply to the court for an order to
controversy compel an answer. The court may then order:
i. The refusing party or his counsel to pay the
Section 24(b), Rule 130 – Since the results of the expenses incurred in obtaining the order,
examination are intended to be made public, the including the attorney’s fees (if it finds the
same are not covered by the physician-patient refusal to answer without substantial
privilege. justification)
ii. The proponent or his counsel to pay the
Section 2. Order for examination expenses incurred in opposing the
application, including attorney’s fees (if it finds
The order for examination may be made only: the application to be without substantial
ƒ on motion for good cause shown, and justification)
ƒ upon notice to the party to be examined and to all
other parties, and shall specify the time, place, Where to file for the order to compel
manner, conditions and scope of the examination RULE 23 Depositions pending actions – application
and for an order must be filed with the court of the place
ƒ the person or persons by whom it is to be made. where the deposition is being taken

What is good cause RULE 25 Interrogatories to parties – application for

When the ends of justice so require and the an order must be filed with the court where the action
examination may be made without danger to the is pending
party’s life or health or the infliction upon him of
serious pain. Remedies
1. Complete other matters
Section 3. Report of findings 2. Adjourn
3. Apply to court for order
Discretion of Court
The Court exercises full discretion in regulating Section 2. Contempt of court
physical and mental examinations of a party to a
controversy. The defendant seeking physical Contempt of court:
examination of a plaintiff has no absolute right to If a party or other witness:
choose his own physician. The Court must first ƒ refuses to be sworn or
determine whether a physical examination is ƒ refuses to answer any question after being
necessary, then determine the physician who shall directed to do so by the court of the place in
conduct the examination. which the deposition is being taken

Section 4. Waiver of privilege. Section 3. Other consequences

Other consequences
If a party/officer or managing agent of a party refuses
to obey an order requiring him:

Page 50 of
Criminal Law Summer Reviewer

a. To answer designated questions If a party or an officer or managing agent of a party

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

Page 51 of
Criminal Law Summer Reviewer

Section 1. Notice of trial

Notice at least 5 days before the trial date is a part of Section 5. Order of trial
procedural due process.
Plaintiff presents evidence
Section 2. Adjournments and postponements in support of his complaint

Section 3. Requisites of motion to postpone trial

for absence of evidence
Defendant presents Defendant files:
There must be an affidavit showing: evidence to support his demurrer to
(1) materiality or relevance of such defense/counterclaim/c evidence
evidence; and ross-claim/third party
(2) due diligence in procuring it. complaint

If the adverse party admits the facts for which

evidence is to be presented, the trial will not be
Third party Court grants Court
Section 4. Requisites of motion to postpone trial defendant motion: denies
for illness of party or counsel presents renders motion,
evidence, if any dismissal continues
with hearing
An affidavit showing that:
1. That the presence of the party or counsel at
the trial is indispensable; and
2. That the character of his illness is such as to
render non-attendance excusable. After presentation
Rebuttal evidence of evidence;
by parties 1.oral arguments;
2.submission of


Reverse Order of Trial

In this situation, the defendant presents evidence
ahead of the plaintiff

When Reverse Order of Trial Proper

If the defendant in his/her answer relies upon an
affirmative defense, a reverse order of trial is proper

Section 6. Agreed statement of facts

This is known as STIPULATION OF FACTS and is

among the purposes of a pre-trial. The parties may
also stipulate verbally in open court. Such
stipulations are binding unless relief therefrom is
permitted by the court on good cause shown, such as

Page 52 of
Criminal Law Summer Reviewer

error or fraud. But counsel cannot stipulate on what Contemplates a single action having a number of
their respective EVIDENCE consists of and ask that claims, counterclaims, cross-claims, third-party
judgment be rendered on the basis of such complaints, or issues which may be separately
stipulation. tried.

NOTE: Stipulations of facts are not permitted in PURPOSE

actions for ANNULMENT OF MARRIAGE and for To avoid multiplicity of suits, guard against oppression
LEGAL SEPARATION. or abuse, prevent delay, clear congested dockets,
simplify the work of the Trial Court and save
Section 7. Statement of judge unnecessary costs and expenses.

Section 8. Suspension of actions Section 1. Consolidation

ART. 2030 OF THE CIVIL CODE. EVERY CIVIL GENERAL RULE: Consolidation is discretionary
1. If willingness to discuss a possible EXCEPTIONS: Consolidation becomes a matter of
compromise is expressed by one or both duty when:
parties; or 1. If the cases are pending before the same
2. If it appears that one of the parties, before the judge; OR
commencement of the action or proceeding, 2. If filed with different branches of the same
offered to discuss a possible compromise but RTC and one of such cases has not been
the other party refused the offer. partially tried.

Section 9. Judge to receive evidence; delegation Consolidation of cases on appeal and assigned to
to clerk of court different divisions of the SC and the CA is also
authorized. Generally, the case which was appealed
GENERAL RULE: The judge must himself personally later and bearing the higher docket number is
receive and resolve the evidence of the parties. consolidated with the case having the lower docket
(a) The delegation may be made only in defaults 1. Actions which involves a common question of
or ex parte hearings, or an agreement in law or fact; and
writing by the parties. 2. The actions are pending before the same
(b) The reception of evidence shall be made only court.
by the clerk of that court who is a member of • If filed with different courts, authorization
the bar. from the SC is necessary.
(c) Said clerk shall have no power to rule on
objections to any question or to admission of 3 WAYS OF CONSOLIDATING CASES:
evidence or exhibits; and 1. By recasting the cases already instituted,
(d) He shall submit his report and transcripts of conducting only one hearing and rendering
the proceedings, together with the objections only one decision;
to be resolved by the court, within 10 days 2. By consolidating the existing cases and
from the termination of the hearing. holding only one hearing and rendering only
one decision; and
3. By hearing only the principal case and
suspending the hearing on the others until
RULE 31 judgment has been rendered in the principal

CONSOLIDATION Section 2. Separate trials on any claim, cross-

Involves several actions having a common claim, etc.
question of law or fact which may be jointly tried.


Page 53 of
Criminal Law Summer Reviewer

When the separate trial of claims is conducted by the 3. Issue subpoenas and subpoenas duces tecum
court under this section, it may render separate 4. Swear witnesses
judgments on each claim. 5. Unless otherwise provided in the order of
reference, he may rule upon the admissibility of

RULE 32 Section 4. Oath of Commissioner before he enters


Section 5. Proceedings before Commissioner

A person to whom a case pending in court is Section 6. Failure of parties to appear before
referred, for him to take testimony, hear the parties Commissioner
and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered; includes If a party fails to appear at the time and place
a referee, an auditor and an examiner. appointed, the commissioner may proceed ex parte
or, in his discretion, adjourn the proceedings to a
Section 1. Reference to Commissioner by consent future day, giving notice to the absent party or his
of both parties counsel of the adjournment.

Reference to a commissioner may be had by the Section 7. Refusal of witness to obey subpoena
written consent of both parties. issued by Commissioner

An irregularity in the appointment of a commissioner Disobedience to a subpoena issued by the

must be seasonably raised in the trial court where the commissioner is deemed contempt of the court which
defect could still be remedied. It can be waived by appointed the latter.
consent of the parties expressly or impliedly.
Section 8. Commissioner shall avoid delays
Section 2. Cases when reference by motion of one
of the parties or motu proprio Section 9. Report of Commissioner

SITUATIONS WHEN REFERENCE TO A Section 10. Notice to parties of the filing of report
1. Trial requires examination of a long account of UPON FILING OF THE REPORT OF THE
either side COMMISSIONER:
2. Taking of an account is necessary for the 1. The parties shall be notified by the clerk; AND
information of the court before judgment or for 2. The parties shall be allowed 10 days within
carrying a judgment order into effect which to object to the findings of the report.
3. Question of fact, other than upon the pleadings,
arises upon motion or otherwise, in any stage of Objections to the report based upon grounds which
the case were available to the parties during the proceedings
before the Commissioner shall not be considered by
Section 3. Order of reference; powers of the the court, UNLESS they were made before the
Commissioner Commissioner.

Order may specify or limit the powers of the Section 11. Hearing upon report
Section 12. Stipulations as to findings
1. Report only upon particular issues, or to do or When the parties stipulate that a commissioner’s
perform particular acts, or to receive and report findings of fact shall be final, only questions of law
evidence only shall thereafter be considered.
2. Exercise the power to regulate the proceedings
in every hearing before him and to do all acts Section 13. Compensation of Commissioner
and take all measures necessary or proper for
the efficient performance of his duties

Page 54 of
Criminal Law Summer Reviewer

accused could present

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

Page 55 of
Criminal Law Summer Reviewer

plaintiff has rested his case, on the ground that upon the pleadings alone.
the facts presented by the plaintiff and the law on the Decision is based on the Decision is based on the
matter, plaintiff has not shown any right to relief. allegations in the evidence presented.


Filed by defendant to a Filed by the plaintiff if the
complaint, counterclaim, answer raises no issue.
JUDGMENT ON THE PLEADINGS cross-claim or third-party
It is a judgment rendered by the court dismissing a complaint.
case upon motion of the defendant, made after If the complaint states no cause of action, a motion to
plaintiff has rested his case, on the ground that upon dismiss should be filed and no a motion for judgment
the facts presented by the plaintiff and the law on the on the pleading.
matter, plaintiff has not shown any right to relief.

Section 1. When judgment on the pleadings is Falcasantos v. How Suy Ching 91 Phil 456 (1952)
proper One who prays for judgment on the pleadings
without offering proof as to the truth of his own
A judgment on the pleadings must be on motion of the allegations and without giving the opposing party an
claimant. However, if at pre-trial, the court finds that a opportunity to introduce evidence, must be
judgment on the pleadings is proper, it may render understood to ADMIT all MATERIAL and RELEVANT
such judgment motu proprio. ALLEGATIONS of the opposing party and to rest his
motion for judgment on those allegations taken
By moving for judgment on the pleading, plaintiff together with such of his own as are admitted in the
waives his claim for unliquidated damages. Claim for pleadings.
such damages must be alleged and proved.

1. Answer fails to tender an issue because of: RULE 35
a. general denial of the material SUMMARY JUDGMENTS
allegations of the complaint;
b. insufficient denial of the material SUMMARY JUDGMENT
allegations of the complaint or One granted by the court for the prompt disposition of
2. Answer admits material allegations of the civil actions wherein it clearly appears that there
adverse party’s pleading. exists no genuine issue or controversy as to any
material fact.
PROVED It is an issue of fact which calls for the presentation of
evidence as distinguished from an issue which is
1. Declaration of nullity of marriage sham, fictitious, contrived, and patently unsubstantial
2. Annulment of marriage so as not to constitute a genuine issue for trial.
3. Legal separation
ƒ May be asked for by a party seeking to
JUDGMENT ON THE JUDGMENT BY recover upon a claim, counterclaim, cross-
PLEADINGS DEFAULT claim, or to obtain a declaratory relief.
The defendant The defendant did not file
answered, but did not an answer. ƒ Although Rule does not specifically provide,
tender an issue or also unavailable in actions for annulment of a
admitted the material and declaration of nullity of marriage, and for
allegations in the legal separation since Section 1 refers to
complaint. actions “to recover upon a claim,” or to
Evidence is not received Evidence is received. recover a debt or a liquidated demand for
as the same is based on money, or “to obtain declaratory relief”.

Page 56 of
Criminal Law Summer Reviewer

Section 1. Summary judgment for claimant Vergara v. Suelto 156 SCRA 753 (1987)
Even if the answer does tender an issue, and
May be filed at any time after the pleading in answer therefore a judgment on the pleadings is NOT proper,
thereto has been served. a summary judgment may still be rendered if the
issues tendered are NOT genuine, are sham,
Section 2. Summary judgment for defending party fictitious, contrived, set-up in bad faith, and patently
May be file at any time.
Mallilin v. Castillo 156 SCRA 753 (2000)
Section 3. Motion and proceedings thereon. Where the pleadings under a genuine issue i.e.
an issue of fact the resolution of which calls for the
The motion shall be served at least 10 days before presentation of evidence, as distinguished from an
the time specified for the hearing. The adverse party issue which is sham, contrived, set-up in bad faith, or
may serve opposing affidavits, depositions, or patently unsubstantial, summary judgment is not
admissions at least 3 days before the hearing. After proper.
the hearing, the judgment sought shall be rendered
forthwith if the pleadings, supporting affidavits, Velasco v. CA 156 SCRA 753 (2005)
depositions, and admissions on file, show that, except Trial courts are authorized to grant relief by
as to the amount of damages, there is no genuine summary judgment. This is intended to expedite or
issue as to any material fact and that the moving party promptly dispose of cases where the facts appear
is entitled to a judgment as a matter of law. undisputed and certain from the pleading’ admissions
and affidavits. This rule does not vest in the court
Section 4. Case not fully adjudicated on motion. summary jurisdiction to try the issue on pleadings and
affidavits but gives the court limited authority to enter
The trial shall be conducted on the controverted facts summary judgment only if it clearly appears that there
only. is no genuine issue of material fact.

Section 5. Form of affidavits and supporting SUMMARY JUDGMENT JUDGMENT

Section 6. Affidavits in bad faith Based on the Based solely Based on the
pleadings, on the complaint and
Should it appear to its satisfaction at any time that any depositions, pleadings evidence, if
of the affidavits presented pursuant to this Rule are admissions, and presentation is
presented in bad faith, or solely for the purpose of affidavits. required.
delay, the court shall forthwith order the offending
Available to both Generally Available to
party or counsel to pay to the other party the amount
plaintiff and available only plaintiff.
of reasonable expenses which the filing of the
defendant. to the plaintiff,
affidavits caused him to incur, including attorney’s
unless the
fees. It may, after hearing, further adjudge the
offending party or counsel guilty of contempt.
presents a
1. Affidavits made on personal knowledge.
There is no The answer No issues as
2. Depositions of the adverse party or a third
genuine issue fails to tender no answer is
party under Rule 23
between the an issue or filed by the
3. Admissions of the adverse party under Rule
parties, i.e. there there is an defending
may be issues admission of party.
4. Answers to interrogatories under Rule 25; all
but these are material
intended to show that:
irrelevant. allegations.
a. there is no genuine issue as to any
10-day notice 3-day notice 3-day notice
material fact, except damages which
required. required. rule applies.
must always be proved; and
b. the movant is entitled to a judgment May be On the merits. On the merits.
as a matter of law. interlocutory or

Page 57 of
Criminal Law Summer Reviewer

on the merits. The process by which a decision is published,

Available only in Available in any Available in any officially announced, made known to the public or
actions to action except action except delivered to the clerk of court for filing, coupled with
recover a debt, annulment of annulment of notice to the parties or their counsel.
or for a marriage or marriage or
liquidated sum legal legal MEMORANDUM DECISION
of money or for separation separation The judgment or final resolution of the appellate court
declaratory cases. cases. may adopt by reference the findings of facts and
relief. conclusions of law contained in the decision of the
trial court.

A judgment based on a compromise otherwise known

RULE 36 as JUDICIAL COMPROMISE has the force of law
JUDGMENTS, FINAL ORDERS AND ENTRY and is conclusive between parties. It is NOT
THEREOF appealable.

The power to amend a judgment is inherent to the

JUDGMENT court before judgment becomes final and executory.
Final consideration and determination by a court of
the rights of the parties, upon matters submitted to it RULE OF IMMUTABILITY OF JUDGMENT
in an action or proceeding. A final judgment cannot be modified, even if the
purpose is to correct perceived erroneous conclusions
Judgment is the result, or the dispositive part of the of the facts or law.
decision while the opinion gives the grounds for the
decision. EXCEPTIONS:
1. To make corrections of clerical errors, not
DATE OF FINALITY OF JUDGMENT/ORDER substantial amendments, as by an
Date of the finality of the judgment or final order shall amendment nunc pro tunc;
be deemed to be the date of its entry. The judgment 2. To clarify an ambiguity which is borne out by
or final order shall be entered by the clerk in the book and justifiable in the context of the decision;
of entries of judgments if no appeal or motion for new 3. Where the judgment is void; or
trial or reconsideration is filed within 15 days. 4. In judgments for support, it can always be
amended from time to time.
Section 1. Rendition of judgments and final orders
REQUISITES OF A JUDGMENT A judgment intended to enter into the records acts
1. It should be in writing, personally and directly which had already been done, but which do not
prepared by the judge; appear in the records.
2. Must state clearly and distinctly the facts and
the law on which it I based; and NOTE: A JUDGMENT is considered RENDERED: the
3. It should contain a dispositive and should be filing of the signed decision constitutes the rendition of
signed by the judge and filed with the clerk of a judgment. This includes an amended decision
court because an amended decision is a distinct and
separate judgment and must follow the established
PARTS OF A JUDGMENT procedural rule.
1. Opinion of the court (findings of fact and
conclusions of law) NOTE: Attack of judgment maybe direct or collateral
2. Disposition of the case (dispositive portion)
3. Signature of the judge Direct attack
a. before finality
JUDGMENT UPON THE MERITS 1.motion for new trial or reconsideration
Judgment rendered after consideration of the 2.appeal
evidence submitted by the parties during the trial of b. after finality
the case. 1. relief from judgment, Rule 38
2. annulment of judgment, Rule 47

Page 58 of
Criminal Law Summer Reviewer

judgment for or against one of them will not

necessarily affect the other. It is not proper in actions
against solidary debtors.

Section 5. Separate judgments

Judgment rendered to dispose of one of the several claims
Court Renders Decision for relief presented in an action, made at any stage, upon a
determination of the issues material to a particular claim
and all counterclaims arising out of the transaction or
Filing appeal within occurrence which is the subject matter of the claim, which
Losing Party 15 days from terminates such claim. Action shall proceed as to other
notice of judgment

It is proper when more than one claim for relief is

Within 15 days from
notice of judgment:
presented in an action and a determination as to the
Accepts decision issues material to the claim has been made. The
without further Motion for action shall proceed as to the remaining claims.
contest reconsideration; or
motion for new trial Section 6. Judgment against entity without
juridical personality
If no appeal
is taken or
did not avail The judgment shall set out their individual or proper
of remedies, names, if known.
judgment Court Court grants
becomes final maintains motion:
executory decision; or
2.grants new Before finality of judgment or final order:
trial 1. Motion for New Trial;
2. Motion for Reconsideration; and
3. Appeal

Losing party may appeal within After Finality of the judgment or final order:
the remaining period 1. Relief from Judgment or Final Order;
2. Annulment of Judgment; and
3. Petition for Certiorari
Section 2. The date of finality of the judgment or
final order shall be deemed to be the date of its
entry if no appeal or MNT or MR

The date of finality of the judgment or final order shall

be the date of its entry.

Section 3. Judgment for or against one or more of

several parties
Section 4. Several judgments

Judgment rendered by a court against one or more
several defendants and not against all of them leaving
the action to proceed against the others.

Several judgments is proper where the liability of each

party is clearly separable and distinct from his co-
parties such that the claims against each of them
could have been the subject of separate suits, and the

Page 59 of
Criminal Law Summer Reviewer

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

Page 60 of
Criminal Law Summer Reviewer

1. Fraud, accident, mistake, or excusable negligence NOTE: New trial, however, a second motion is
(FAME); allowed but must be based on a ground not existing
2. Newly discovered evidence or available when the first motion was made, which
may be filed during the remainder of the 15-day
FRAUD – Must be extrinsic fraud. Extrinsic fraud period.
connotes any fraudulent scheme executed by the
prevailing party outside the trial against the missing Section 3. Action upon motion for new trial or
party who because of such fraud is prevented from reconsideration
presenting his side of the case.
The Court may either::
ACCIDENT – an event that takes place without one’s 1. set aside judgment or final order and grant
foresight or expectation. new trial
2. deny the motion for new trial or motion for
MISTAKE – generally refers to mistakes of fact or law reconsideration
where, in good faith, the defendant was mislead in the 3. amend such judgment or final order
case. accordingly

EXCUSABLE NEGLIGENCE – depends upon the Section 4. Resolution of motion

circumstances of the case.
Section 5. Second motion for new trial
DISCOVERED EVIDENCE Section 6. Effect of granting of motion for new
1. Discovered after trial trial
2. Could not have been discovered and produced
at trial despite the exercise of reasonable When motion is granted, the original judgment is
diligence thereby vacated and the action stands for trial de
3. If presented, could probably alter the result of novo, but the recorded evidence taken upon the
the action former trial so far as the same is material and
Otherwise it is called forgotten evidence. competent to establish the issues, shall be used at
the new trial taking the same.
RECONSIDERATION Lucas v. Fabros 324 SCRA 1 (2000)
1. Damages awarded are excessive A Motion for new trial, or for reconsideration of a
2. Evidence is insufficient to justify the decision or judgment, or for reopening of trial, is a prohibited
final order pleading under Section 19 of the Revised Rule on
3. Decision is contrary to law Summary Procedure. This rule, however, applies only
where the judgment sought to be reconsidered is one
Section 2. Contents of motion for new trial or rendered on the merits. "The motion prohibited by this
reconsideration and notice thereof Section is that which seeks reconsideration of the
judgment rendered by the court after trial on the
A motion suspends or tolls the running of the merits of the case."
reglementary period except when it is pro-forma.
Section7. Partial new trial or reconsideration
PRO-FORMA MOTION when issues severable
It is that which does not comply with Rule 15 and Rule
37, e.g. it does not point out specifically the findings Section 8. Effect of order for partial new trial
or conclusions of the judgment as are contrary to law,
making express reference to the testimonial or EFFECTS OF AN ORDER FOR PARTIAL NEW
documentary evidence or to the provisions of law TRIAL
alleged to be contrary to such findings or conclusions, 1. enter a judgment or final order as to the rest
and is merely intended to delay the proceedings or if of the issues, or
there is no affidavit of merit. 2. stay the enforcement of such judgment
NOTE: Motion for reconsideration, no second motion Section 9. Remedy against order denying a
is allowed. motion for new trial or reconsideration is appeal
from the judgment

Page 61 of
Criminal Law Summer Reviewer

Not more than 6 months after such judgment


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

Section 3. Time for filing petition; contents and Section 6. Proceedings after answer is filed
Filed within 60 days after learning of judgment

Page 62 of
Criminal Law Summer Reviewer

(a) Hearing to determine whether the judgment Execution of judgment not Execution of judgment a
be set aside a matter of right matter of right
(b) If in the affirmative, a hearing on the merits of
1. When relief sought may be the allowance of 1. Forcible entry and detainer
an appeal after the expiration of the period to 2. Injunction, receivership, accounting and
appeal. support
2. When relief sought may be the staying of 3. Award, judgment, final order, or resolution of
immediate execution due to FAME. quasi-judicial agencies Æ appealable to CA

Section 7. Procedure where the denial of an INTERLOCUTORY ORDER THAT MAY BE

appeal is set aside EXECUTED
Support pendente lite
The lower court shall be required to give due course
to the appeal and to elevate the record of the JUDGMENTS THAT ARE NOT APPEALABLE:
appealed cases as if a timely and proper appeal had 1. Sin perjuico judgments
been made. (judgment, w/o any stated facts in support of
the conclusion)
2. Conditional judgments
3. Incomplete judgments
JUDGMENTS order execution of final and executory judgments. It
cannot refuse execution and is compellable by
Section 1. Execution upon judgments or final

WHEN EXECUTION IS A MATTER OF RIGHT 1. Change in the situation of the parties which
1. On motion; makes the execution inequitable or unjust;
2. Upon judgment or order that disposes of the 2. Writ of execution varies judgment;
action or proceeding; 3. Controversy has never been submitted to the
3. Upon expiration of the period to appeal judgment of the court;
therefrom and no appeal has been 4. Execution is sought against property exempt
duly perfected; from execution
4. When appeal has been duly perfected and 5. Terms of the judgment not clear; leaves room
resolved, by filing a motion with the court of for interpretation;
origin submitting true copies of the final 6. Writ of execution improvidently issued,
judgment or final order sought to be enforced. defective in substance, issued against the
wrong party, judgment debtor has been paid
If the court of origin refuses to issue a writ of or otherwise satisfied, writ has been issued
execution, the appellate court may, on motion, direct w/o authority.
the court of origin to issue the writ.
In the above exceptions, remedy is certiorari under
Dispose of, adjudicate, or Becomes final & JUDGMENT MAY BE ENJOINED
determine the rights of excecutory by operation 1. Upon filing of a petition for relief from
parties of law judgment
Still subject to appeal After lapse of period to 2. Attack against a judgment which is void for
appeal and no appeal lack of jurisdiction, or obtained through fraud
was perfected, no further 3. On equitable grounds
action can be had

Page 63 of
Criminal Law Summer Reviewer

4. In cases falling under the (6) exceptions (b) When trial court has lost jurisdiction but has
above not transmitted records of the case to the
appellate court;
Judgment novated by a subsequent agreement (c) When trial court has lost jurisdiction and has
cannot be executed. transmitted recordsÆ motion for execution
• e.g. agreement entered into by the parties other pending appeal with appellate court
than terms of payment 2. Execution of several, separate or partial judgments

Judgment for support is not final in a sense that it SEVERAL SEPARATE/PARTIAL

cannot be modified. JUDGMENTS JUDGMENTS
• Support depends not only on the varying Rendered against one or Rendered at any stage of
conditions affecting the ability of the obligor to more of several the action regarding a
pay, but also upon the ever-changing needs of defendants, leading the particular claim, leaving
the beneficiary himself. action to proceed the action to proceed as
against others to the remaining claims
GENERAL RULE: Final and executory judgment
cannot be amended or modified DISCRETIONARY EXECUTION AS A
• Any amendment w/c substantially affects a EXECUTION MATTER OF RIGHT
final and executory judgment is null and void May issue before the Issued when period to
for lack of jurisdiction lapse of period to appeal appeal has already lapsed
and no appeal has been
TO: Discretionary upon the Ministerial duty of the
1. clerical errors or mistakes; court; there is inquiry on provided there are no
whether there is good supervening events
Errors not the result of Mistake relates to
exercise of judicial something the court did REQUISITES FOR EXECUTION PENDING APPEAL
functions not consider or pass on, or 1) On motion by the prevailing party, with notice
considered and to the adverse party;
erroneously decided 2) Good reasons for issuing execution; and
May be modified, Cannot be modified Æ 3) The good reasons must be stated in a special
corrected even after must be done in another order.
judgment has become case/suit
final and executory Examples of good reasons
1) Where education of a person to be supported
would unduly be delayed
2. to clarify ambiguity; or 2) The immediate execution of an order to
3. to enter nunc pro tunc orders support is valid
- to make a present record of an order w/c the 3) The judgment debtor is insolvent, except
court rendered at a previous term but, by when a co-defendant is solvent and his
inadvertence has not been entered. liability is subsidiary
A final and executory judgment can no longer be What are not good reasons:
amended by adding thereto relief not originally 1) the mere fact that a claim is not secured, w/o
included e.g. award of ownership does not any allegation that the defendant is insolvent
necessarily include possession or is about to dispose of his properties
2) Where the reason given is that an appeal is
Section 2. Discretionary execution frivolous or dilatory, the trial judge may not
rightfully determine the same
1. Execution pending appeal Award for actual and compensatory damages may
(a) While trial court has jurisdiction over the case be ordered executed pending appeal, but not moral
and is in possession of either the original and exemplary damages.
record or record on appeal;

Page 64 of
Criminal Law Summer Reviewer

ƒ Moral and exemplary damages depends on REVERSAL

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

Page 65 of
Criminal Law Summer Reviewer


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

Section 7. Execution in case of death of party.

Page 66 of
Criminal Law Summer Reviewer


1) writ of execution varies judgment; An act of appropriation by the court when
2) change in the situation of the parties making property of debtor is in the hands of third
execution inequitable and unjust; persons.
3) execution sought to be enforced against
property exempt from execution; ‐ The sheriff may levy on debts due to
4) controversy has never been submitted to the debtor, or other credits, including bank
judgment of the court; deposits, financial interests, royalties,
5) terms of judgment are not clear and there commissions and other personal
remains room for interpretation; property, not capable of manual delivery
6) writ of execution is improvidently issued, in the possession or control of 3rd parties
defective in substance, issued against the ‐ Notice served on 3rd party (garnishee)
wrong party, judgment debt has been paid, or
writ issued without authority GENERAL RULE: All property belonging to judgment
obligor not exempt from execution may be attached.
Section 9. Execution of judgments for money,
how enforced EXCEPTIONS:
1) Usufruct
3 WAYS TO ENFORCE A JUDGMENT FOR MONEY 2) Ascertainable interest in real estate as mortgagor,
1. Immediate payment on demand mortgagee, or otherwise
‐ judgment obligor shall pay in cash, 3) Unused balance of an overdraft account (credit
certified bank check payable to the not subject to garnishment)
judgment obligee, or any other form of
payment acceptable to the latter Levy on personal property may be actual or
‐ payment made to the judgment obligee or constructive
his representative, or if not present, to the ƒ e.g. levy on a barge by registration w/ Philippine
sheriff, or if Coast Guard (constructive)
‐ not practicable, to a fiduciary account
Section 10. Execution of judgments for specific
2. satisfaction by levy act


An act by which an officer sets apart or 1) Conveyance, delivery of deeds, or other specific
appropriates a part or whole of the property of acts; vesting title
the judgment debtor for purposes of the - if party fails to comply within the time
execution sale. specified, the court may direct the act to
be done at the cost of the disobedient
ƒ The officer shall levy upon properties of party
the judgment obligor not otherwise - Real or personal property situated w/in
exempt from execution the Philippines: court in lieu of
ƒ Judgment obligor exercises option to conveyance may give order divesting title
chose w/c property levied upon; if not and may vest it in others
exercised, officer shall levy 1st on 2) Sale of real or personal property
personal property, then on real property 3) Delivery or restitution of real property
ƒ The sheriff shall sell only property - officer shall demand person to peaceably
sufficient to satisfy the judgment and vacate property w/in 3 working days, and
other lawful fees. restore possession to judgment obligee,
ƒ The on execution creates a lien in favor of otherwise officer shall oust such persons
the judgment obligee over the right, title, 4) Removal of improvements on property subject of
and interest of the judgment execution
obligor in such property at the time of - officer shall not destroy, demolish, or
the levy, subject to liens and remove improvements except upon
encumbrances then existing. special order of the court

3. garnishment of debts and credits

Page 67 of
Criminal Law Summer Reviewer

- special order issued upon motion, after 2) ordinary tools and implements used in trade,
judgment obligor failed to remove the employment, or livelihood
same 3) 3 horses, cows, carabaos, or other beast of
5) Delivery of personal property officer shall take burdenÆ necessarily used in his ordinary
possession of the same and deliver it to the occupation
judgment oblige 4) necessary clothing and articles for ordinary
personal use, except jewelry
• Failure to comply with specific acts under Rule 39 5) household furniture and utensils necessary
Sec. 10 is not necessarily punishable by contempt. for housekeeping ≤ P100K
However, if a party refuses to: 6) Provisions for individual or family use
sufficient for 4 months
1. vacate the property – the sheriff must oust the 7) Professional libraries and equipment
party. A demolition order from the court is required 8) One fishing boat and accessories ≤ P100K
to effect removal of an improvement constructed by used in livelihood
the defeated party. 9) Salaries, wages, or earnings as are
2. deliver – the sheriff will take possession and necessary for support of family w/in 4 months
deliver it to the winning party. preceding levy
3. comply – the court can appoint some other 10) Lettered gravestones
person at the expense of the disobedient party and 11) Monies, benefits, privileges, or annuities
the act shall have the same effect as if the required accruing out of any life insurance
party performed it 12) Properties specially exempt from execution

• No time limit w/in which an order of demolition

should be carried out; defeated party is given OTHER PROPERTIES SPECIALLY EXEMPT FROM
reasonable period to look for another place. EXECUTION
1) Property mortgaged to DBP (Section 26, CA
AFTER THE 5 YEAR PERIOD 2) Property taken over by Alien Property
ƒ but writ of execution must be served w/in 5 years Administration (Section 9[f], US Trading With
ƒ order of demolition ancillary to writ The Enemy Act)
3) Savings of national prisoners deposited with
Certiorari is available if requirements for issuance of the Postal Savings Bank (Act 2489)
order of demolition are not followed 4) Backpay of pre-war civilian employees (RA
Section 11. Execution of special judgment 5) Philippine Government backpay to guerillas
(RA 897)
SPECIAL JUDGMENT 6) Produce, work animals, and farm implements
A special judgment is one that can be complied with of agricultural lessees, subject to limitations
only by the judgment obligor himself. (Section21, RA 6389)
7) Benefits from private retirement systems of
It requires the performance of any other act than companies and establishments, with
payment of money, or the sale or delivery of real or limitations (RA 4917)
personal property 8) Labor wages, except for debts incurred for
food, shelter, clothing, and medical
Failure to comply with special judgment under Section attendance (Art. 1708, NCC)
11 is punishable as contempt by imprisonment 9) Benefit payments from the SSS (Section 16
RA 1161 as amended by PDs 24, 65, and
Section 12. Effect of Levy on execution as to third 177)
persons 10) Copyrights and other rights in intellectual
property under the former copright law (PD 49
Section 13. Property exempt from execution cf. Section 239.3, RA 8293)
11) Bonds issued under RA 1000 (NASSCO v.
PROPERTIES EXEMPT FROM EXECUTION CIR L-17874 31 August 1963) (Regalado, F.
1) family home, or homestead, land necessarily Remedial Law Compendium Vol. 1, 8th ed.,
used in connection therewith pp. 447-448).

Page 68 of
Criminal Law Summer Reviewer

Section 14. Return of writ of execution

Writ of execution is returnable to the court after 1) To recover property levied on by sheriff
judgment it satisfied (although 3rd party can vindicate claim in a
separate action)
Sheriff shall report to the court w/in 30 days after 2) To hold sheriff liable for damages for the
receipt and every 30 days until the judgment is taking or keeping of such property
satisfied in full
Lifetime of writ of execution – 5 years from entry of At any time, so as long as the sheriff has the
judgment possession of the property levied upon, or before the
property is sold under execution
The rules do not provide any lifetime for a writ of
attachment unlike writ of execution WHAT IS THE PROCEDURE FOR A 3RD PARTY
Section 15. Notice of sale of property on 3rd party should make an affidavit of his title thereto,
execution or right of possession thereof, and should serve such
affidavit upon the sheriff and a copy thereof to the
PERSONAL REAL PROPERTY The sheriff may or may not require the judgment
PROPERTY obligee to file a bond.
- perishable property: - If ≤ 50,000: notice
notice posted in 3 posted in 3 public INDEMNITY BOND NO INDEMNITY BOND
public places for such places for 20 days FILED FILED
time as may be Action for damages Action for damages may
reasonable brought against the be brought against sheriff
considering the - If > 50,000: Publication principal and sureties on himself
character & condition once a week for 2 the bond
of the property consecutive weeks and Sheriff not liable for Sheriff liable for damages
- other personal notice posted in 3 public damages
property: notice places for 20 days Sheriff bound to keep Sheriff not bound to keep
posted in 3 public property on behalf of property under levy
places for not less judgment obligee
than 5 days
- In all cases, written notice of the sale shall be given REMEDY OF THE CREDITOR
to the judgment obligor, at least 3 days before the 1. File a bond to indemnify 3rd party complainant
sale, except as provided in paragraph (a) hereof - amount of bond not less than value of
where notice shall be given at any time. property
- sheriff not liable for damages if bond is filed
THE REQUIRED NOTICE 2. File a claim for damages against 3rd party in
1. Sheriff and creditor are joint tortfeasors the same or separate action
2. Liable in solidum because liability is joint and - based on the ground that 3rd party claim is
solidary frivolous or plainly spurious

Want of notice does not invalidate the execution sale REMEDY OF THE 3RD PARTY
where purchaser is innocent and no collusion appears 1. Vindicate his claim in a separate action
(buyer in good faith) - no intervention allowed since judgment
final & executory
Section 16. Proceedings where property claimed 2. File a separate action for damages against
by third persons the sheriff (if no bond filed)
3. File a claim for damages against the bond
3RD PARTY CLAIM - claim must be w/in 120 days from filing of
A claim by any person other than the judgment debtor bond
or his agent on property levied on execution

Page 69 of
Criminal Law Summer Reviewer

The sheriff is at complete liberty to suspend or not to

suspend execution if the judgment creditor does not Shocking inadequacy of price may be ground for
file a bond. setting aside sale

The judgment creditor cannot be compelled to file a Who has jurisdiction to set aside execution sale?
bond because he is at complete liberty to do so. Court w/c rendered judgment that became final and
executory has exclusive jurisdiction
Without an indemnity bond, the sheriff acts at his own
risk if he keeps the property (can be liable for After sufficient property has been sold to satisfy the
damages). execution, no more sale shall be made and any
excess shall be promptly delivered to the judgment
Section 17. Penalty for selling without notice, or obligor or his authorized representative, unless
removing or defacing notice otherwise directed by the judgment or order of the
1) Officer selling without notice Section 20. Refusal of purchaser to pay
2) Any person willfully removing or defacing
notice posted (e.g. notice posted in 3 public Section 21. Judgment obligee as purchaser
ƒ Officer may sell again the property to the highest
What is the liability? bidder
1. punitive damages to any person injured thereby = ƒ refusing purchaser may be liable for amount of
P5000, 2. actual damages loss occasioned by such refusal
ƒ Refusing purchaser may be punished for
Section 18. No sale if judgment and costs paid contempt
ƒ Officer may reject subsequent bid of refusing
If judgment obligor paid the amount of judgment Æ purchaser
NO writ of execution may be issued or implemented.
If judgment obligee is the successful bidder
Section 19. How property sold on execution; who BID ≤ JUDGMENT IF BID > JUDGMENT
may direct manner and order of sale
Judgment obligee not required Judgment obligee required
All sales of property under execution must be made: to pay bid to pay excess
1. at a public auction
2. to the highest bidder Section 22. Adjournment of Sale
3. to start at the exact time fixed in the notice
ƒ If both obligee and obligor agree in writing, sale
Sale of real properties must be made in the province may be adjourned to any date and time agreed
where the same are situated upon
ƒ Purpose is to obtain the best price ƒ Without such agreement, sale may be adjourned
from day to day if it becomes necessary to o so
ƒ Judge, who issued the writ of execution ƒ Adjournment = waiver of publication of another
ƒ Officer conducting sale, or his deputy notice requirement

EFFECT OF SALE OF REAL PROPERTY IN MASS Section 23. Conveyance to purchaser of personal
GENERAL RULE: Valid property capable of manual delivery

EXCEPTION: ƒ After purchaser pays the purchase price, the

1. when it appears that a larger sum would have sheriff must deliver the property capable of
been realized from a sale in parcels, or manual delivery to the purchaser
2. a sale of less than whole would be sufficient ƒ If desired the sheriff shall execute and deliver a
to satisfy debt certificate of sale
ƒ No right of redemption in sales of personal
Mere inadequacy of price is not material if there is a property on execution
right of redemption.

Page 70 of
Criminal Law Summer Reviewer

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

Page 71 of
Criminal Law Summer Reviewer

Amounts Payable On Redemption If based on Mortgage or

JUDGMENT REDEMPTIONER other lien, must serve:
OBLIGOR - memorandum of record, or
If he redeems from the If he redeems from the any assignment, AND
purchaser: purchaser: - affidavit, showing amount
- Purchase - Same as due on lien
price + 1% judgment obligor
interest + - Amount of lien, If Failure to produce proof by redemptioner is waived by
assessment purchaser also refusal on other grounds.
or taxes creditor w/ prior
lien Validity of redemption not affected by failure to
If he redeems from present proof
If he redeems from redemptioner If person to whom redemption was offered accepts
redemptioner - Same as judgment obligor without requiring proof – redemption valid
- Redemption - Amount of liens held by
price + 2% last redemptioner prior to Section 31. Manner of using premises pending
interest + his own, w/ interest redemption; waste restrained
or taxes During the period pending the redemption, the court
issues an order to restrain the commission of waste
on the property by injunction.
Section 29. Effect of redemption by judgment
obligor, and a certificate to be delivered and WHAT IS NOT COMMISSION OF WASTE
recorded thereupon; to whom payments on 1) Use in the same a manner previously used;
redemption made 2) Use in the ordinary course of husbandry;
3) Make necessary repairs to buildings thereon
If judgment obligor redeems, no further redemption is
allowed. The Person to whom redemption was made Section 32. Rents, earnings and income of
must execute and deliver to the judgment obligor a property pending redemption
certificate of redemption.
During the period of redemption, all rents, expenses,
Payments may be made to the purchaser, income and fruits derived still belong to the debtor.
redemptioner, or sheriff.
During the period of redemption, the purchaser or
Redemption can be paid in other forms than cash. redemptioner is not entitled to:
The rule is construed liberally in allowing redemption 1. possession
(aid rather than to defeat the right) and it has been 2. receive the rents, earnings, and income of
allowed to in the case of a cashier’s check, certified property sold on execution;
bank checks, and even checks. 3. reimbursement for improvements

A formal offer to redeem is not necessary where the Section 33. Deed and possession to be given at
right to redeem is exercised through the filing of a expiration of redemption period; by whom
complaint to redeem in the courts, within the period to executed or given
Upon expiration when no redemption has been made
Section 30. Proof required of redemptioner within 1 year, purchaser is entitled to conveyance and
possession of property.
JUDGMENT OR REDEMPTIONER Upon expiration when no redemption has been made
FINAL ORDER within 6 months, last redemptioner is entitled to
No proof required If based on judgment or final conveyance and possession of property.
Right of redemption - must serve copy of Within 1 year purchaser acquires only the rights, title,
appears on record judgment or final order, interest and claim of judgment obligor to property.
certified by clerk of court After 1 year, the purchaser now has his own right and

Page 72 of
Criminal Law Summer Reviewer

acquires right to the property. It is at this time that the 5) Sec. 40 – order to apply to obligor’s property
writ of possession is issued. in the hands of another, investigate income,
expenses, earnings Æ order fix monthly
Writ of possession may be enforced against payments
judgment obligor, successors-in-interest 6) Sec. 41 – appoint receiver
- but NOT against persons whose right of 7) Sec. 42 – sale of debtor’s interest in real
possession is adverse to the latter estate
8) Sec. 43 – if garnishee denies debt, court may
Section 34. Recovery of price if sale not effective; order creditor to institute action against such
revival of judgment person to pay debt

If purchaser fails to recover possession, evicted, Section 37. Examination of obligor of judgment
judgment reversed, property exempt from execution, obligor
or 3rd party vindicated claim, purchaser may, on
motion or in a separate action: Any person or corporation who has property of the
1) recover from creditor price paid w/ interest, or debtor, or is indebted to the debtor Æ court may order
so much w/c is not returned to judgment such person to be examined Æ to bind the credits due
obligor; or to debtor
2) have original judgment revived for whole price
w/ interest CITATION
The garnishee becomes a forced intervenor, requiring
Section 35. Right to contribution or him to pay his debt not to the judgment debtor but to
reimbursement the creditor (a form of involuntary novation).

If property is executed against several persons, and Section 38. Enforcement of attendance and
more than due proportion has been satisfied Æ one conduct of examination
who pays may compel contribution from the others
A party or other person may be compelled by an order
If surety pays Æ he may compel repayment from the of subpoena, to attend before the court or
principal commissioner to testify as provided in Sections 36 &
Section 36. Examination of judgment obligor
when judgment unsatisfied Failure to obey such order or subpoena may be
punished for contempt.
Upon return of writ of execution, and judgment is still
unsatisfied, the creditor may ask the court to require Section 39. Obligor may pay execution against
the debtor to appear and his property or income be obligee
Persons indebted to the debtor may pay sheriff.
EXECUTION Sheriff’s receipt shall mean a discharge for the
The proceedings are to aid judgment creditors in amount paid and shall be credited by the obligee on
discovery of debtor’s property and its application to execution
the satisfaction of judgment. It is to compel the
disclosure of any property that is not exempt from Section 40. Order for application of property and
execution income to satisfaction of judgment.

1) Sec. 36 – examination of judgment obligor’s Court may order property of judgment obligor, or
property money due him, in the hands of either himself or
2) Sec. 37 – examination of judgment obligor’s another, to be applied to the satisfaction of the
debtor (garnishee) judgment
3) Sec. 38 – enforcement of attendance and
conduct of examination (punishable by Investigation of income and expenses Æ if it appears
contempt) earnings more than necessary for support of family Æ
4) Sec. 39 – judgment obligor’s debtor may pay court may order that he pay judgment in fixed monthly
sheriff installments Æ otherwise contempt

Page 73 of
Criminal Law Summer Reviewer

3) upon indorsement of such admission

Section 41. Appointment of receiver 4) upon order of the court

The sheriff is not a proper person to be appointed as Creditor who compels satisfaction of judgment loses
receiver. right of appeal.

Section 42. Sale of ascertainable interest of Debtor who voluntary satisfies judgment loses right to
judgment obligor in real estate. appeal.

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

Page 74 of
Criminal Law Summer Reviewer

has been given an opportunity at the surety’s request, CONCLUSIVENESS OF JUDGMENT

to join the defense. Issues are actually and directly resolved in a former
suit cannot again be raised in any future case
Section 47. Effect of judgment or final orders. between the same parties involving a different cause
of action.
Paragraph (a) refers to rule on Res Judicata in
Against A specific thing the title of the thing - Refers to same - Refers to another action
action, claim or between same parties
Probate of a will or Will or administration. demand but involves different
administration of the However, only prima facie claim
estate of a deceased evidence of the death of - Absolute bar to - judgment merely an
person the testator or intestate subsequent action estoppel only as to those
In respect to the Condition, status, or - there is finality as to matters in issue or
personal, political, or relationship of the person the claim or demand controverted
legal condition or status in controversy, not
of a particular person only to matters
presented, but as to
Paragraph (b) refers to as “bar by former judgment or any other admissible
Res Judicata in judgments IN PERSONAM matter w/c might
have been
RES JUDICATA presented
It is a matter adjudged; an existing final judgment or - identity of parties, - identity of parties, SM
decree rendered on the merits is conclusive upon the SM, cause of action only
rights of the parties or their privies, in all other actions
or suits in the same or any other judicial tribunal, on Section 48. Effect of foreign judgments or final
the points and matters in issue in the first suit. orders.

It is based on the principle that parties should not EFFECT OF A FOREIGN ORDER OR TRIBUNAL:
litigate the same matter more than once. 1) Against a specific thing – conclusive upon title
to the thing.
REQUISITES OF RES JUDICATA 2) Against a person – presumptive evidence of a
1) Former judgment or order must be final and right as between the parties and their
executory; successors in interest by a subsequent title.
2) Court has jurisdiction over subject matter and
parties; In both instances, the judgment may be repelled by
3) Former judgment or order was on merits; evidence of want of jurisdiction, notice, collusion,
4) Identity of parties, subject matter, and cause fraud, or clear mistake of law or fact.
of action between first and second action.
Test to determine IDENTITY OF CAUSE OF By filing an action based on said judgment; foreign
ACTION judgment is presumed to be valid and binding.
Whether the same evidence would sustain both
Raise the foreign judgment as res judicata in the
NOTE: Res Judicata applies only between adverse defense (not in a separate action).
parties in a former suit, NOT between co-parties

Paragraph (c) is known as “conclusiveness of

judgment” or preclusion of issues or rule of AUTER

Page 75 of