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Civil procedure

Pre-Final Reviewer

RULE 14 Sec. 4. Return. When the service has been completed, the
SUMMONS server shall, within five (5) days therefrom, serve a copy of
the return, personally or by registered mail, to the plaintiff's
Section 1. Clerk to issue summons. Upon the filing of the counsel, and shall return the summons to the clerk who
complaint and the payment of the requisite legal fees, the issued it, accompanied by proof of service.
clerk of court shall forthwith issue the corresponding
summons to the defendants. The Sheriff’s Return will determine when the period to file an
Answer will start to run.
SUMMONS – a writ by which the defendant is notified of the
*must also be furnished to the plaintiff’s lawyer so he can
action brought against him.
determine the deadline for defendant to file Answer
- Counterpart f warrant of arrest in criminal cases
- Mandatory for the clerk of court to issue (upon the filing of Sec. 5. Issuance of alias summons. If a summons is returned
the complaint + payment of fees). without being served on any or all of the defendants, the
server shall also serve a copy of the return on the plaintiff's
PURPOSE counsel, stating the reasons for the failure of service, within
IN PERSONAM – to notify the defendant of the action against five (5) days therefrom. In such a case, or if the summons has
him and to acquire jurisdiction over his person. been lost, the clerk, on demand of the plaintiff, may issue an
*summons is required even if defendant is aware of of the alias summons.
filing of action against him ALIAS SUMMONS – summons issued by the clerk of court and
IN REM/QUASI IN REM - mainly to satisfy the requirement f due served after the first summons was lost or otherwise not served.
process (what is important is jurisdiction over the res). Sec. 6. Service in person on defendant. Whenever
Sec. 2. Contents. The summons shall be directed to the practicable, the summons shall be served by handing a copy
defendant, signed by the clerk of court under seal, and thereof to the defendant in person, or, if he refuses to receive
contain: and sign for it, by tendering it to him.
(a) the name of the court and the names of the parties to Sec. 7. Substituted service. If, for justifiable causes, the
the action; defendant cannot be served within a reasonable time as
(b) a direction that the defendant answer within the time provided in the preceding section, service may be effected (a)
fixed by these Rules; by leaving copies of the summons at the defendant's
(c) a notice that unless the defendant so answers, plaintiff residence with some person of suitable age and discretion
will take judgment by default and may be granted the then residing therein, or (b) by leaving the copies at
relief applied for. defendant's office or regular place of business with some
A copy of the complaint and order for appointment of competent person in charge thereof.
guardian ad litem, if any, shall be attached to the original and
each copy of the summons. MODES OF SERVICE TO INDIVIDUAL DEFENDANTS
SERVICE IN Effected by:
If service of summons is defective (i.e. summons was served
PERSON A) HANDING A COPY TO DEFENDANT IN
without a copy of the complaint) jurisdiction of the court must be
PERSON
questioned (i.e. appear in court to challenge) otherwise the
B) TENDERING SUMMONS TO HIM (IF HE
defect is deemed waived.
REFUSES TO RECEIVE AND SIGN FOR IT).
IF ADDITIONAL DEFENDANT IS INCLUDED? Summons must be
served to the additional defendant. Preferred mode of service.
PARTY ALREADY SUMMONED DIES? Service of the Court’s Order Wherever defendant may be found (cr, motel,
for the substitution is served to the legal representatives of the nightclub, bar, etc.)
decedent. Court process cannot be defeated by refusing
IF SUMMONS WAS SERVED AND LATER ON COMPLAINT IS to accept – court acquires jurisdiction even
AMENDED? depends on w.o.n. defendant has already made with refusal.
appearance in the action. Not the same as Personal Service in Rule 13.
a) IF DEFENDANT HAS NOT FILED AN ANSWER – another summons SUBSTITUTED When effective:
on the amended complaint is served (another 15 days to file SERVICE 1) Proof of service must indicate the
Answer). impossibility of service in person within
b) IF DEFENDANT HAS FILED AN ANSWER – no need of issuing reasonable time++ (there must be several
new summons on new complaint. attempts made – at least 3 times on at least
*Appearance is not limited to filing of an Answer, also includes 2 different dates).
filing of Motions for Extension of Time to File Answer or Bill of 2) That all efforts were exerted to locate
Particulars. defendant
Sec. 3. By whom served. The summons may be served by the 3) Summons was served on a person of
sheriff, his deputy, or other proper court officer, or for sufficient age and discretion++ residing in
justifiable reasons by any suitable person authorized by the the address or competent person++ in
court issuing the summons. charge of office or the regular place of
WHO CAN SERVE business
1) Sheriff
2) Deputy Sherriff
3) Other Proper Court Officer (Court Employees) When Substituted Service has been properly
4) Any Suitable Person Authorized by the Court (for justifiable made, it is immaterial that the defendant does
reasons) – there must be a court order authorizing him not receive the actual summons.
*policemen cannot properly serve summons without authority Where defendant prevents the service of
from the Court. summons (i.e. instructing security guard of
*Service may be made at night as well as during the day, or subdivision not to allow server inside – service
even on a Sunday of holiday because of its MINISTERIAL upon SG is valid) defendant must bear
character. consequences.

1 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

Substituted service is made in addition to Personality Service to person in charge of the place
Service by Publication. of business.
Prisoner Serve to the jail warden (automatically
SERVICE BY See Table for Sec. 14, 15, and 16 considered deputized).
PUBLICATION Minors and MINOR: To minor and his
++REASONABLE TIME – so much time necessary under the Incompetents parents/guardian
circumstances for a reasonably prudent and diligent man to do, INCOMPETENT: the incompetent and
conveniently, what the contract or duty requires that should be the guardian
done. Domestic Private President
*facts of impossibility of prompt service must be stated in the Juridical Entity Managing Partner
return. If not stated therein, the server may properly explain General Manager
to the court why substituted service was resorted to by Corporate Secretary
giving testimony. Treasurer
++SUITABLE AGE AND DISCRETION – one who has attained the full In-House Counsel
age of full legal capacity and is considered to have enough *enumeration is exclusive; substantial
discernment to understand the importance of summons (i.e. compliance argument is no longer
service is void where it was given to defendant’s 12 year old compelling
daughter who threw it away). Foreign Private Corporation must be doing business in
*the person must also have ‘RELATION OF CONFIDENCE’ Juridical Entity++ the Philippines.
with defendant ensuring the latter would receive or at least If with designated resident agent –
be notified of the receipt of summons. serve to the designated agent (15D to
++COMPETENT PERSON – must be the one managing the office file Answer).
or business of the defendant (it is enough that he appears to eb If w/out designated agent – serve to
in charge). the appropriate Phil govt. officer (30D
Sec. 8. Service upon entity without juridical personality. to file Answer).
When persons associated in an entity without juridical *When foreign corp. not doing business
personality are sued under the name by which they are
in the Phils. – cannot be sued.
generally or commonly known, service may be effected upon
*if not doing business in the Phils. but
all the defendants by serving upon any one of them, or upon
the person in charge of the office or place of business agrees to be sued – apply Sec. 15
maintained in such name. But such service shall not bind (extraterritorial service).
individually any person whose connection with the entity Public Corporations Republic of the Phils. – Solicitor General
has, upon due notice, been severed before the action was Provinces/Cities/Municipalities –
brought. Executive Heads/Legal Officer
Sec. 9. Service upon prisoners. When the defendant is a
prisoner confined in a jail or institution, service shall be ++Dissolved Corporation – serve to the last set of officers.
effected upon him by the officer having the management of ++Doing Business in the Phils. – there must be a continuity of
such jail or institution who is deemed deputized as a special conduct and intention to establish continuous business.
sheriff for said purpose.
Sec. 10. Service upon minors and incompetents. When the Sec. 14. Service upon defendant whose identity or
defendant is a minor, insane or otherwise an incompetent, whereabouts are unknown. In any action where the
service shall be made upon him personally and on his legal defendant is designated as an unknown owner, or the like, or
guardian if he has one, or if none, upon his guardian ad litem whenever his whereabouts are unknown and cannot be
whose appointment shall be applied for by the plaintiff. In ascertained by diligent inquiry, service may, by leave of
the case of a minor, service may also be made on his father or court, be effected upon him by publication in a newspaper of
mother. general circulation and in such places and for such time as
the court may order.
Sec. 11. Service upon domestic private juridical entity. When
the defendant is a corporation, partnership or association Sec. 15. Extraterritorial service. When the defendant does
organized under the laws of the Philippines with a juridical not reside and is not found in the Philippines, and the action
personality, service may be made on the president, managing affects the personal status of the plaintiff or relates to, or the
partner, general manager, corporate secretary, treasurer, or subject of which is, property within the Philippines, in which
in-house counsel. the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly
Sec. 12. Service upon foreign private juridical entity. When or in part, in excluding the defendant from any interest
the defendant is a foreign private juridical entity which has therein, or the property of the defendant has been attached
transacted business in the Philippines, service may be made within the Philippines, service may, by leave of court, be
on its resident agent designated in accordance with law for effected out of the Philippines by personal service as under
that purpose, or, if there be no such agent, on the section 6; or by publication in a newspaper of general
government official designated by law to that effect, or on circulation in such places and for such time as the court may
any of its officers or agents within the Philippines. order, in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known
Sec. 13. Service upon public corporations. When the address of the defendant, or in any other manner the court
defendant is the Republic of the Philippines, service may be may deem sufficient. Any order granting such leave shall
effected on the Solicitor General; in case of a province, city or specify a reasonable time, which shall not be less than sixty
municipality, or like public corporations, service may be (60) days after notice, within which the defendant must
effected on its executive head, or on such other officer or answer.
officers as the law or the court may direct.
Sec. 16. Residents temporarily out of the Philippines. When
SERVICE OF SUMMONS IN EXCCEPTIONAL CASES any action is commenced against a defendant who ordinarily
Entity w/out Juridical Service to any one (1) of them. resides within the Philippines, but who is temporarily out of

2 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

it, service may, by leave of court, be also effected out of the Section.
Philippines, as under the preceding section. SEC. 16 [D] is residing in the Phils. but temporarily out of
Sec. 17. Leave of court. Any application to the court under the country (i.e. on a world tour).
this Rule for leave to effect service in any manner for which Modes (same as Sec. 15):
leave of court is necessary shall be made by motion in a) Service in Person
writing, supported by affidavit of the plaintiff or some b) Publication + Mail
person on his behalf, setting forth the grounds for the c) Any Other Manner
application.
d) Sec. 7 (Substituted Service) may also be
Publication is a notice to the whole world that the proceeding applied in the situation contemplated
has for its object to bar indefinitely all who might be minded to under this section.
make an objection of any sort against the right sought to be Applies to any action (same with Sec. 14).
established.
To avail of summons by publication – LEAVE OF COURT is
necessary. Sec. 18. Proof of service. The proof of service of a summons
shall be made in writing by the server and shall set forth the
Newspaper of “General Circulation” – the summons and the manner, place, and date of service; shall specify any papers
complaint do not have to be published in a national newspaper, which have been served with the process and the name of the
as long as it can be presumed that the defendant can read it or person who received the same; and shall be sworn to when
at least somebody he knows will read it and inform him. made by a person other than a sheriff or his deputy.
SERVICE BY PUBLICATION SHERIFF’S RETURN – where the sheriff will state the manner, place
SEC. 14. a.k.a. Suing an Unknown Defendant – his and date, to whom served, etc.
whereabouts is unknown but he is definitely in
the Phils. Need not be sworn to except when made by a person other
2 Instances: than a sheriff or his deputy.
a) [D] is designated as UNKNOWN OWNER
b) [D] is known but his WHEREABOUTS ARE
Sec. 19. Proof of service by publication. If the service has
UNKNOWN and cannot be ascertained by been made by publication, service may be proved by the
diligent inquiry affidavit of the printer, his foreman or principal clerk, or of
Applies to any action. (notes say that it is the editor, business or advertising manager, to which
confusing, but mura’g mao ni stand ni Judge) affidavit a copy of the publication shall be attached, and by
SEC. 15. a.k.a. Extraterritorial Service an affidavit showing the deposit of a copy of the summons
and order for publication in the post office, postage prepaid,
REQUISITES
directed to the defendant by registered mail to his last known
1) [D] is not residing in the Phils.
address.
2) [D] is not in the Phils.
3) Action is either IN REM/QUASI IN REM Sec. 20. Voluntary appearance. The defendant's voluntary
a) Affects personal status of [P] appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other
b) Affects property in the Phils. in w/c [D]
grounds aside from lack of jurisdiction over the person of the
has claim or lien.
defendant shall not be deemed a voluntary appearance.
c) Affects property, wherein relief will
exclude [D] from any interest in the VOLUNTARY APPEARANCE – not necessarily an Answer; may be
property a motion for an extension of time to file an Answer or Bill of
d) Property of [D] has been attached in the Particulars.
Phils. SPECIAL APPEARANCE – when the defendant “appears”
MODES precisely to question the jurisdiction of the court over his person.
A) SERVICE IN PERSON – very expensive; will Not indicative of the intention to submit to the jurisdiction of
not have the effect of making the court the court – the inclusion in a M2D of other grounds aside
acquire jurisdiction over the person of the from lack of jurisdiction over the person of the defendant
[D] – for due process purposes only shall not be deemed a voluntary appearance.
b) PUBLICATION in a Newspaper + Summons
and Order of court is sent by REGISTERED RULE 15
MAIL to last known address of [D] – MOTIONS
publication is not required to be in the Section 1. Motion defined. A motion is an application for
foreign place where [D] resides (but it relief other than by a pleading.
would not be against the Rules if the court
Sec. 2. Motions must be in writing. All motions shall be in
requires publication to be done there). writing except those made in open court or in the course of a
*if case is a mix of In Rem and In hearing or trial.
Personam, unless the [D] submits himself
Sec. 3. Contents. A motion shall state the relief sought to be
to the jurisdiction of the court (i.e. file
obtained and the grounds upon which it is based, and if
Answer) court can only render
required by these Rules or necessary to prove facts alleged
judgment in the In Rem case. therein, shall be accompanied by supporting affidavits and
c) In ANY OTHER MANNER the court may other papers.
deem sufficient – i.e. court may allow
Sec. 4. Hearing of motion. Except for motions which the
service of summons to a non-resident
court may act upon without prejudicing the rights of the
abroad via registered mail (Carriage, Jr. v
adverse party, every written motion shall be set for hearing
Malaya) by the applicant.
*[D] is given 60D to file an Answer under this Every written motion required to be heard and the notice of
the hearing thereof shall be served in such a manner as to

3 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

ensure its receipt by the other party at least three (3) days RULE 16
before the date of hearing, unless the court for good cause MOTION TO DISMISS
sets the hearing on shorter notice. Section 1. Grounds. Within the time for but before filing the
Sec. 5. Notice of hearing. The notice of hearing shall be answer to the complaint or pleading asserting a claim, a
addressed to all parties concerned, and shall specify the time motion to dismiss may be made on any of the following
and date of the hearing which must not be later than ten (10) grounds:
days after the filing of the motion. (a) That the court has no jurisdiction over the person of
Sec. 6. Proof of service necessary. No written motion set for the defending party;
hearing shall be acted upon by the court without proof of (b) That the court has no jurisdiction over the subject
service thereof. matter of the claim;
(c) That venue is improperly laid;
Sec. 7. Motion day. Except for motions requiring immediate (d) That the plaintiff has no legal capacity to sue;
action, all motions shall be scheduled for hearing on Friday (e) That there is another action pending between the
afternoons, or if Friday is a non-working day, in the same parties for the same cause;
afternoon of the next working day. (f) That the cause of action is barred by a prior judgment
Sec. 8. Omnibus motion. Subject to the provisions of section or by the statute of limitations;
1 of Rule 9, a motion attacking a pleading, order, judgment, (g) That the pleading asserting the claim states no cause
or proceeding shall include all objections then available, and of action;
all objections not so included shall be deemed waived. (h) That the claim or demand set forth in the plaintiff's
pleading has been paid, waived, abandoned, or
Sec. 9. Motion for leave. A motion for leave to file a pleading
otherwise extinguished;
or motion shall be accompanied by the pleading or motion
(i) That the claim on which the action is founded is
sought to be admitted.
unenforceable under the provisions of the statute of
Sec. 10. Form. The Rules applicable to pleadings shall apply frauds; and
to written motions so far as concerns caption, designation, (j) That a condition precedent for filing the claim has not
signature, and other matters of form. been complied with.
MOTION – asking the court for a favor other than what is MOTION TO DISMISS (M2D) - hypothetically admits the truth of
contained in a pleading. the factual allegations of the complaint – such matters of fact
EXCEPT: that have been sufficiently pleaded.
a) Motion for judgment to the Demurrer to Evidence Conclusions of law not deemed hypothetically admitted.
b) Motion for Judgment on the Pleadings Apply Omnibus Motion Rule.
c) Motion for Summary Judgment *SC has advised against the filing of M2D and instead, has
encouraged the alleging of the grounds as defenses in the
REQUISITES FOR A VALID MOTION Answer.
1. Shall be IN WRITING. Filed before the filing of an Answer (15D).
EXCEPT those made in open court in the course of a
hearing or trial GROUNDS
2. Shall state the relief sought and the ground upon which it is I. THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF
based. THE DEFENDING PARTY;
3. Must be accompanied by supporting affidavits and other When there is absence of summons/improper service of
papers (if required by the Rules and necessary to prove the summons.
fats alleged). SO MANY EXCEPTIONS According to Iniego
But if already on record, court can check a) Waiver
4. Notice of hearing attached to the motion and the adverse b) Voluntary Appearance
party must receive the motion at least 3 days before date f c) Improper Service but Defendant Came to Know About
hearing. It
UNLESS the court for good cause sets the hearing on d) Linger Case – why should the sheriff’s fault affect the
shorter notice plaintiff?
5. Notice of hearing addressed to all parties concerned and II. THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT
shall specify the time and date of the hearing w/c must not MATTER OF THE CLAIM;
be later than ten (10) days after filing. i.e. unlawful detainer case must be filed with the MTC, not
6. There must be proof of service of the motion to adverse the RTC.
party.
IMPORTANT PRINCIPLES RE: JURISDICTION
GR: a motion cannot be filed ex-parte.
1) DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT -
EXCEPT those not controversial (can be filed ex-
Not by the allegations of the defendant in his M2D
parte).
(except when agrarian dispute).
*Motion w/c fails to comply with requirements is a useless piece HYPOTHETICAL ADMISSION OF THE ALLEGATIONS IN THE
of paper. COMPLAINT – you may not present evidence that the
*when filing a motion, the pleading to be admitted must already court has no jurisdiction.
be included/attached. If the lack of jurisdiction becomes apparent in the
OMNIBUS MOTION – one attacking a pleading, order, judgment, course o the trial, you may move to dismiss then.
or a proceeding which shall include all objections then available 2) JURISDICTION ONCE ACQUIRED IS RETAINED – any
and objections not so included shall be deemed waived. subsequent development or any subsequent
EXCEPT: amendment of the law will no longer deprive the court
1) Lack of jurisdiction over the subject matter of jurisdiction.
2) Litis Pendentia EXCEPT when the law is intended to be curative.
3) Res Adjudicata
4) Prescription

4 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

3) LACK OF JURISDICTION OVER THE SUBJECT MATTER MAY *Substantial identity of parties will suffice i.e. when
BE RAISED ANY TIME EVEN FOR THE FIRST TIME ON there is community of interest or privity of interest
APPEAL. between a party in the 1st and 2nd
EXCEPT Tijam v Sibonghanoy – estoppel by laches [RJ] is applicable in quasi-judicial proceedings but not it
(but only in highly exceptional cases). criminal proceedings (double jeopardy).
III. THAT VENUE IS IMPROPERLY LAID; STATUTE OF LIMITATIONS – Prescription; filed out of time.
IV. THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE; *Note that Prescription is one of those grounds outside
2 POSSIBLE MEANINGS the operation of the Omnibus Motion Rule.
1) Plaintiff does not possess the necessary qualifications to VII. THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE
appear at the trial (i.e. minor cannot file a case without OF ACTION;
being assisted by parents). Every civil action must be based on a cause of action.
2) Plaintiff does not have the character or representation (Elements of a Cause of Action: R.O.V.D.)
which he claims (i.e. claims to be a guardian when he
is not). Here, there is hypothetical admission [HA] of the truth of the
allegations, but even then, the plaintiff is still not entitled to
NO LEGAL CAPACITY V NO LEGAL PERSONALITY the relief prayed for.
The former refers to disability of the plaintiff (ground for [HA] is limited to material allegations of ultimate facts.
dismissal: lack of capacity to sue) while the latter refers to Those that have no place in a pleading (evidentiary
the fact that plaintiff is not a real party in interest (ground: matters, conclusions of law/fact) are not.
no cause of action).
Note: The ground here is FAILURE TO STATE A CAUSE OF
V. THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME ACTION, not lack of cause of action. The latter becomes
PARTIES FOR THE SAME CAUSE; evident only in the course of the trial while the former is
ELEMENTS easily determined from the allegations in the complaint.
1) Identity of Parties between the 2 actions or at least Where evidence has already been presented in the main
represent the same interest cause of action i.e. due to application of provisional
2) Identity of rights asserted and relief prayed for. remedy (preliminary injunction) the evidence there
3) The relief must be founded on the same facts. presented may be considered when defendant moves to
4) Any judgment rendered on the other action will, dismiss.
regardless of the party successful, amount to res
adjudicata. VIII. THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFF'S
PLEADING HAS BEEN PAID, WAIVED, ABANDONED, OR
*action raised in a counter-claim cannot be made an issue OTHERWISE EXTINGUISHED;
in a subsequent independent action.
*annulment of mortgage and foreclosure of mortgage – Above are modes of extinguishing obligations.
not litis pendentia Laches is included under this ground being within the ambit
*accion publiciana and quieting of title – there is litis of “abandoned” and “otherwise extinguished”
pendentia But where LACHES is alleged, court must set a hearing
where elements are proved thru presentation of
Either one of the cases (1st or 2nd) will be dismissed. evidence.
Considerations:
a) Date of filing – with preference to 1st action filed IX. THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED IS
b) w.o.n. the action was filed merely to preempt UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF
the later action or to anticipate its filing and lay FRAUDS; AND
the basis for its dismissal. SOME CONTRACTS COVERED BY STATUTE OF FRAUDS.
c) w.o.n. the action is the appropriate vehicle for a) Contract to be performed within 1 year from its making
litigating the issues between the parties. b) Special promise to answer for the debt, default, or
An action becomes pending upon the filing of the case in miscarriage of another
court and the payment of docket and other legal fees. c) Agreement made in consideration of marriage, other
than a mutual promise to marry
VI. THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR d) Sale of goods, chattels, or things in action at a price
JUDGMENT OR BY THE STATUTE OF LIMITATIONS; not less than P500
CONCEPTS OF RES JUDICATA [RJ] e) Lease for more than 1 year and sale of real property or
a) BAR BY PRIOR JUDGMENT – bars prosecution of a 2nd interest therein
action upon the same claim, demand, or cause of f) Representation of a credit of a 3rd person
action. X. THAT A CONDITION PRECEDENT FOR FILING THE CLAIM HAS
b) CONCLUSIVENESS OF JUDGMENT – a fact or question NOT BEEN COMPLIED WITH.
w/c was in issue in a former suit and was there judicially EXAMPLES:
passed upon and determined by a court of competent 1) Failure to exhaust administrative remedies
jurisdiction, is conclusively settled by the judgment 2) Failure to undergo barangay conciliation
therein as far as the parties to that action and actions 3) Art. 151 of the FC on suit between family members
in privity with them are concerned. Direct filing in court is allowed when you file a case
ELEMENTS OF [RJ] against nephew or the adverse parties are mixed
1) Former judgment must be FINAL (brother + stranger).
2) Court w/c rendered it had JURISDICTION NOT SUBJECT TO COMPROMISE:
3) Judgment must be on the MERITS a. CIVIL STATUS of persons
4) Between the 1st and 2nd actions, there must be IDENTITY b. VALIDITY of marriage or legal separation
of parties, subject matter, and causes of action. c. Any GROUND for legal separation

5 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

d. Future SUPPORT the court, a preliminary hearing may be had thereon as if a


e. JURISDICTION of Courts motion to dismiss had been filed.
f. Future LEGITIME The dismissal of the complaint under this section shall be
without prejudice to the prosecution in the same or separate
Sec. 2. Hearing of motion. At the hearing of the motion, the action of a counterclaim pleaded in the answer.
parties shall submit their arguments on the questions of law
Filing an M2D is optional.
and their evidence on the questions of fact involved except
Grounds for an M2D may be alleged as Affirmative Defenses in
those not available at that time. Should the case go to trial,
the evidence presented during the hearing shall the Answer.
automatically be part of the evidence of the party presenting Then you may ask for a Preliminary Hearing.
the same. When the Affirmative Defenses in the Answer with Counterclaim
cause the dismissal of the complaint the counterclaim:
GR: on hearing a M2D defendant is allowed to present evidence
a) May be prosecuted in a SEPARATE action
to prove the ground for his dismissal.
b) May remain and be prosecuted in the SAME action
EXC: Lack of jurisdiction over the subject matter
Pleading states no cause of action RULE 17
*bec. in these 2 instances you are hypothetically admitting DISMISSAL OF ACTIONS
the allegations.
Section 1. Dismissal upon notice by plaintiff. A complaint
*the evidence presented in the M2D forms part of evidence
may be dismissed by the plaintiff by filing a notice of
during trial (no need to present them again). dismissal at any time before service of the answer or of a
Sec. 3. Resolution of motion. After the hearing, the court motion for summary judgment. Upon such notice being filed,
may dismiss the action or claim, deny the motion, or order the court shall issue an order confirming the dismissal.
the amendment of the pleading. Unless otherwise stated in the notice, the dismissal is
The court shall not defer the resolution of the motion for the without prejudice, except that a notice operates as an
reason that the ground relied upon is not indubitable. adjudication upon the merits when filed by a plaintiff who
In every case, the resolution shall state clearly and distinctly has once dismissed in a competent court an action based on
the reasons therefor. or including the same claim.
After Hearing the M2D, the Court may: Sec. 2. Dismissal upon motion of plaintiff. Except as
a) DISMISS the Action provided in the preceding section, a complaint shall not be
b) DENY the Motion dismissed at the plaintiff's instance save upon approval of
c) Order the AMENDMENT of the Pleading the court and upon such terms and conditions as the court
d) DEFER the motion for the reason that the ground relied deems proper. If a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiff's
upon is indubitable.
motion for dismissal, the dismissal shall be limited to the
Plaintiff can still amend his complaint even if an M2D has been complaint. The dismissal shall be without prejudice to the
filed – it is not a responsive pleading. right of the defendant to prosecute his counterclaim in a
Amendment may even be made after the order of dismissal so separate action unless within fifteen (15) days from notice of
long as it has not yet become final and executor. the motion he manifests his preference to have his
counterclaim resolved in the same action. Unless otherwise
Sec. 4. Time to plead. If the motion is denied, the movant specified in the order, a dismissal under this paragraph shall
shall file his answer within the balance of the period be without prejudice. A class suit shall not be dismissed or
prescribed by Rule 11 to which he was entitled at the time of compromised without the approval of the court.
serving his motion, but not less than five (5) days in any Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable
event, computed from his receipt of the notice of the denial. cause, the plaintiff fails to appear on the date of the
If the pleading is ordered to be amended, he shall file his presentation of his evidence in chief on the complaint, or to
answer within the period prescribed by Rule 11 counted from prosecute his action for an unreasonable length of time, or to
service of the amended pleading, unless the court provides a comply with these Rules or any order of the court, the
longer period. complaint may be dismissed upon motion of the defendant
Sec. 5. Effect of dismissal. Subject to the right of appeal, an or upon the court's own motion, without prejudice to the
order granting a motion to dismiss based on paragraphs (f), right of the defendant to prosecute his counterclaim in the
(h) and (i) of section 1 hereof shall bar the refiling of the same or in a separate action. This dismissal shall have the
same action or claim. effect of an adjudication upon the merits, unless otherwise
The Complaint may be re-filed or not depending on the ground declared by the court.
for the dismissal of the action. Sec. 4. Dismissal of counterclaim, cross-claim, or third-party
complaint. The provisions of this Rule shall apply to the
GR: A dismissed case can be re-filed. dismissal of any counterclaim, cross-claim, or third-party
EXC: when grounded on res judicata/prescription complaint. A voluntary dismissal by the claimant by notice as
Claim/demand in the complaint has already been in section 1 of this Rule, shall be made before a responsive
paid, waived, abandoned, extinguished pleading or a motion for summary judgment is served or, if
Claim is unenforceable (statute of frauds) there is none, before the introduction of evidence at the trial
If the ground of the dismissal bars re-filing, APPEAL from the order or hearing.
is the proper remedy. DISMISSAL OF ACTIONS (PLAINTIFF)
CERTIORARI may be availed of when the court gravely abused SEC. 1 Upon Notice by Plaintiff
its discretion and is the appropriate remedy when the dismissal is Plaintiff files a Notice of Dismissal
without prejudice. Before the service of the Answer or a Motion for
Summary Judgment (a matter of right)
Sec. 6. Pleading grounds as affirmative defenses. If no
If Answer/Motion for SJ already filed – LEAVE OF
motion to dismiss has been filed, any of the grounds for
dismissal provided for in this Rule may be pleaded as an COURT is required (Sec. 2).
affirmative defense in the answer and, in the discretion of *Court will issue Order confirming the Notice of

6 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

Dismissal Section 1. When conducted. After the last pleading has been
served and filed, it shall be the duty of the plaintiff to
Dismissal is generally, WITHOUT PREJUDICE. promptly move ex parte that the case be set for pre-trial.
EXCEPT:
a) Plaintiff himself states that he is dismissing PRE-TRIAL is mandatory in civil cases.
complaint w/ prejudice (also when the Called by the plaintiff thru an ex-parte motion filed w/in 5D after
grounds stated by the plaintiff prevent re-filing the last pleading has been served and filed.
i.e. prescription, res judicata, or Clerk of Court – issues notice if [P] fails to do so.
extinguishment). *the last pleading – the reply – may not actually be served.
b) By operation of the 2-Dismissal Rule++ 10D after the Answer is served and no Reply is made, pre-
*When you wish to revive an action you have earlier trial may be called.
dismissed you: Sec. 2. Nature and purpose. The pre-trial is mandatory. The
a) If within 15D from Order of Dismissal, ask court court shall consider:
to set aside the order confirming the dismissal (a) The possibility of an amicable settlement or of a
and revive the case submission to alternative modes of dispute resolution;
b) If Order is already final (after 15D), file an (b) The simplification of the issues;
(c) The necessity or desirability of amendments to the
entirely new action.
pleadings;
SEC. 2 Upon Motion By Plaintiff (d) The possibility of obtaining stipulations or admissions of
Not a matter of right – LEAVE is required (Answer or facts and of documents to avoid unnecessary proof;
Motion for SJ already served). (e) The limitation of the number of witnesses;
Dismissal is WITHOUT PREJUDICE EXCEPT when the (f) The advisability of a preliminary reference of issues to a
court so specifies. commissioner;
Dismissal is LIMITED to the COMPLAINT. (g) The propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a
COUNTERCLAIM SURVIVES and may be
valid ground therefor be found to exist;
prosecuted in a separate or in the same action (h) The advisability or necessity of suspending the
(notifying the court of his preference w/in 15D). proceedings; and
CLASS SUITS can only be dismissed by plaintiff under (i) Such other matters as may aid in the prompt disposition
this section (w/ LEAVE) w.o.n. Answer/Motion of the action.
already filed. I. THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A
SEC. 3 Due to Fault of Plaintiff SUBMISSION TO ALTERNATIVE MODES OF DISPUTE RESOLUTION;
GROUNDS:
The policy of the state is settlement to save time and
A) [P] FAILS TO APPEAR ON DATE OF PRESENTING
expense.
EVIDENCE-IN-CHIEF
If [P] fails to attend when [D] present II. THE SIMPLIFICATION OF THE ISSUES;
evidence – no dismissal – [D] can present Issues will be simplified/lessened/reduced to the most
ex-parte important and relevant ones.
B) [P] FAILS TO PROSECUTE FOR AN
III. THE NECESSITY OR DESIRABILITY OF AMENDMENTS TO THE
UNREASONABLE LENGTH OF TIME
PLEADINGS;
C) [P] FAILS TO COMPLY WITH THE ROC OR ANY
ORDER OF THE COURT FOR NO JUSTIFIABLE Where there is an amendment made, a new pre-trial is not
REASON OR CAUSE. mandatory unless the parties agree to conduct another pre-
trial.
*Dismissal here = adjudication on the merits = w/
PREJUDICE (unless the court provides otherwise) IV. THE POSSIBILITY OF OBTAINING STIPULATIONS OR ADMISSIONS
There is a presumption that the court has OF FACTS AND OF DOCUMENTS TO AVOID UNNECESSARY
jurisdiction when it orders the dismissal, otherwise, PROOF;
it is without prejudice. There will be no need of proving facts already agreed.
*Dismissal here may be upon motion of the Stipulation of facts is encouraged, but is essentially voluntary.
defendant or motu propio++ Cannot be forced upon the parties under pain of
*Counterclaim survives (same as in Sec. 2) dismissal.
SEC. 4 The above sections apply to dismissal of
counterclaim, cross-claim, 3rd party complaint, etc. V. THE LIMITATION OF THE NUMBER OF WITNESSES;
++2-DISMISSAL RULE applies when the plaintiff: VI. THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO
1) Twice dismissed actions A COMMISSIONER;
2) Based on or including the same claim Commissioner – a person appointed by the court to assist in
3) In a court of competent jurisdiction. determining certain issues.
i.e. Action to collect P300K. 1st dismissal was in RTC, 2nd See Rule 32
dismissal was in MTC. – No application of 2DR – 1st
dismissal was not in a competent court. VII. THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS,
++Other instances when Court may dismiss MOTU PROPIO: OR SUMMARY JUDGMENT, OR OF DISMISSING THE ACTION
a) When on its face the complaint shows the court has no SHOULD A VALID GROUND THEREFOR BE FOUND TO EXIST;
jurisdiction The court may render a judgment on the pleadings or a
b) When there is litis pendentia, res judicata, or prescription summary judgment if there is a ground.
c) Under the Summary Rules Grounds may not be apparent in the Complaint may
RULE 18 crop up during the course of the pre-trial (i.e. the plaintiff
PRE-TRIAL admits something).

7 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

VIII. THE ADVISABILITY OR NECESSITY OF SUSPENDING THE (f) The number and names of the witnesses, and the
PROCEEDINGS; AND substance of their respective testimonies.
The case will be held in abeyance i.e. when at any time one Failure to file the pre-trial brief shall have the same effect as
of the parties (or both) offered to discuss a possible failure to appear at the pre-trial.
compromise. See Art. 2030 NCC Filed at least 3D before the date of Pre-Trial.
IX. SUCH OTHER MATTERS AS MAY AID IN THE PROMPT In the Pre-Trial Brief – you summarize everything covered by your
DISPOSITION OF THE ACTION. pleadings.
Anything under the sun daw.. ☺ Representations and statements made in the Brief bind the
parties – in the nature of Judicial Admissions.
Sec. 3. Notice of pre-trial. The notice of pre-trial shall be FAILURE TO FILE BRIEF shall have the same effect as failure to
served on counsel, or on the party who has no counsel. The appear during the pre-trial.
counsel served with such notice is charged with the duty of Dismissal shall be discretionary on the part of the court.
notifying the party represented by him.
Notice must be given on counsel or to the party who has no Sec. 7. Record of pre-trial. The proceedings in the pre-trial
counsel. shall be recorded. Upon the termination thereof, the court
shall issue an order which shall recite in detail the matters
If [D] fails to appear during the pre-trial, [P] may present evidene taken up in the conference, the action taken thereon, the
ex-parte. amendments allowed to the pleadings, and the agreements
Sec. 4. Appearance of parties. It shall be the duty of the or admissions made by the parties as to any of the matters
parties and their counsel to appear at the pre-trial. The non- considered. Should the action proceed to trial, the order
appearance of a party may be excused only if a valid cause is shall explicitly define and limit the issues to be tried. The
shown therefor or if a representative shall appear in his contents of the order shall control the subsequent course of
behalf fully authorized in writing to enter into an amicable the action, unless modified before trial to prevent manifest
settlement, to submit to alternative modes of dispute injustice.
resolution, and to enter into stipulations or admissions of
facts and of documents. Pre-trial is done in the judge’s chambers, not in open court.
Parties together with counsel must appear at the pre-trial. Everything is recorded.
Appearance of lawyer alone/person other person is not After the pre-trial conference is terminated, the court will issue
sufficient unless there is a valid cause (i.e. sickness) OR he has what is known as pre-trial order.
written authority (SPA) to: Pre-trial order – issued upon the termination of the pre-trial.
1) Enter into amicable settlement - Issued w/in 10D after the termination of the pre-trial.
2) Submit to ADR - It recites the ff:
3) Enter into stipulations/admissions of facts and documents i. Matter taken up in the conference
*If corporations – only the BOD can bind them. ii. Actions taken thereon
An officer of the corporation must be authorized by the BOD thru iii. Amendments allowed to the pleadings
a board resolution. iv. Agreements or admissions made by the parties

Sec. 5. Effect of failure to appear. The failure of the plaintiff The Pre-trial order supersedes the pleadings.
to appear when so required pursuant to the next preceding Only the issues in the pre-trial order will be considered by the
section shall be cause for dismissal of the action. The court.
dismissal shall be with prejudice, unless otherwise ordered UNLESS modified by the court to prevent manifest injustice.
by the court. A similar failure on the part of the defendant *Even if an issue is not in the Order, it may still be raised and
shall be cause to allow the plaintiff to present his evidence ex proven when the other party does not object.
parte and the court to render judgment on the basis thereof.
***NOTES:
EFFECT OF FAILURE TO APPEAR If all efforts to settle fail, the judge shall endeavor to achieve the
[P] fails to appear – dismissal of the case with prejudice (unless other purposes of a pre-trial.
the court provides otherwise).
The JUDGE shall be the one to ASK QUESTIONS on issues raised by
If [D] fails to appear – [P] can present evidence ex-parte and
the parties and all questions or comments by counsel or parties
there will be a judgment thereon.
must be directed to the judge to avoid hostilities between the
REMEDY parties.
[P] may APPEAL from the Order of Dismissal.
Rules on PT apply to Summary Proceedings except when
[D] may file a MOTION FOR RECONSIDERATION.
inconsistent with the rules on Summary Procedure.
Sec. 6. Pre-trial brief. The parties shall file with the court and KATARUNGANG PAMBARANGAY
serve on the adverse party, in such manner as shall ensure
APPLICABILITY/INAPPLICABILITY (Examples)
their receipt thereof at least three (3) days before the date of
the pre-trial, their respective pre-trial briefs which shall a. when the parties residing in the same city/municipality
contain, among others: b. when the parties are from different cities/municipalities but
(a) A statement of their willingness to enter into amicable their barangays adjoin each other and they consent/agree
settlement or alternative modes of dispute resolution, thereto
indicating the desired terms thereof; c. does not apply when one of the parties is a juridical person
(b) A summary of admitted facts and proposed stipulation of d. does not apply when one of the parties is outside the scope
facts; of katarungang pambarangay i.e. you are suing a person
(c) The issues to be tried or resolved; from the same city together with a corporation
(d) The documents or exhibits to be presented, stating the
purpose thereof; VENUE
(e) A manifestation of their having availed or their intention a. where the [D] resides
to avail themselves of discovery procedures or referral to b. when the dispute arose in a workplace or school, where the
commissioners; and workplace or school is located

8 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

c. if real property is in dispute, where the property is located C) LEGAL INTEREST AGAINST BOTH
RESIDENCE – physical presence + membership in the barangay i.e. parties quarrel over a piece of land, you join the fray
(Bejer Case). arguing also that the land is yours.

WHEN CERTIFICATE TO FILE ACTION IS GIVEN AND WHO ISSUES D) SO SITUATED AS TO BE ADVERSELY AFFECTED BY A
a. BY THE LUPON SECRETARY AND ATTESTED BY THE LUPON DISTRIBUTION OR OTHER DISPOSITION OF PROPERTY IN THE
CHAIRMAN (BRGY. CAPT.) – there was confrontation, CUSTODY OF THE COURT OR OF AN OFFICER THEREOF.
conciliation or settlement w/c is later on repudiated. i.e. a preliminary attachment against A is executed but the
B. PANGKAT SECRETARY ATTESTED BY PANGKAT CHAIRMAN property happens to be yours.
i. When there is confrontation but no settlement Sec. 2. Time to intervene. The motion to intervene may be
ii. No confrontation before the Pangkat w/out fault of filed at any time before rendition of judgment by the trial
complainant court. A copy of the pleading-in-intervention shall be
c. BARANGAY CAPTAIN - dispute involves members of the attached to the motion and served on the original parties.
same indigenous cultural communities Sec. 3. Pleadings-in-intervention. The intervenor shall file a
complaint-in-intervention if he asserts a claim against either
or all of the original parties, or an answer-in-intervention if
RULE 19
he unites with the defending party in resisting a claim
INTERVENTION
against the latter.
Section 1. Who may intervene. A person who has a legal Sec. 4. Answer to complaint-in-intervention. The answer to
interest in the matter in litigation, or in the success of either the complaint-in -intervention shall be filed within fifteen
of the parties, or an interest against both, or is so situated as (15) days from notice of the order admitting the same, unless
to be adversely affected by a distribution or other disposition a different period is fixed by the court.
of property in the custody of the court or of an officer thereof REQUISITES BEFORE A NON-PARTY MAY INTERVENE
may, with leave of court, be allowed to intervene in the 1) There must be a motion for intervention before rendition of
action. The court shall consider whether or not the
judgment by the trial court
intervention will unduly delay or prejudice the adjudication
of the rights of the original parties, and whether or not the 2) The movant must show that he has legal interest in:
intervenor's rights may be fully protected in a separate a) the matter in litigation
proceeding. b) the success of either of the parties
c) against both
INTERVENTION – proceeding in a suit or action in which a 3rd d) or is so situated as to be adversely affected by a
person, not a party to the case, is permitted by the court to distribution or other disposition of property in the
make himself a party to the case. custody of the court or of an officer thereof
- ancillary and supplemental to an existing litigation.
- Cannot alter the nature of the action and the issues Pleading in intervention must already be attached when filing
already joined. the motion for intervention.
- Neither compulsory nor mandatory but only optional
and permissive – therefore, court has DISCRETION to Intervention is either a COMPLAIN-IN-INTERVENTION when you
permit or disallow the same. assert a claim against one or all parties or an ANSWER-IN-
The court will consider w.o.n. the intervention will INTERVENTION when you resist the plaintiff together with the
unduly delay or prejudice the adjudication of the defendant.
rights of the original parties and w.o.n. the Intervention must be answered within 15D.
intervenor’s rights may be fully protected in a If AMENDED:
separate proceeding. As a matter of right – within 15D.
*Intervention is a MATTER OF RIGHT in the following instances: As a matter of discretion – within 10D.
a) Intervenor is an INDISPENSABLE PARTY EFFECT OF DISMISSAL OF MAIN ACTION
b) Action is a CLASS SUIT Depends on the kind of intervention.
DISTINGUISHED FROM: If the Intervention is mainly to assist a party – i.e. debtor assisting
a) 3rd PARTY COMPLAINT wherein the 3rd party is forced into the the surety – Intervention will not survive.
case; and If the Intervention asserts an independent claim – i.e. X joins the
b) CROSS-CLAIM wherein a co-party is sued. case of A & B regarding ownership of a piece of land –
Intervention will survive.
GROUNDS
A) LEGAL INTEREST ON THE MATTER UNDER LITIGATION *Intervenor is different from a Transferee Pendente Lite because
Legal interest – must be one that is actual and material, the latter is already a party to the case, the law considers him
direct and of an immediate character, not merely joined or substituted in the pending action the moment the
contingent or expectant so that the intervenor will either transfer of interest was perfected.
gain or lose by the direct legal operation of the judgment.
Examples: RULE 20
CALENDAR OF CASES
assignee of property who assumed payment of whatever
may be adjudged against assignor Section 1. Calendar of cases. The clerk of court, under the
alleged owners of land sought to be foreclosed may direct supervision of the judge, shall keep a calendar of cases
intervene for pre-trial, for trial, those whose trials were adjourned or
heirs – i.e. when the parents are already dead (if not, postponed, and those with motions to set for hearing.
interest is still expectant or inchoate) Preference shall be given to habeas corpus cases, election
B) LEGAL INTEREST IN THE SUCCESS OF EITHER OF THE PARTIES cases, special civil actions, and those so required by law.
i.e. principal debtor may intervene in a case filed by Sec. 2. Assignment of cases. The assignment of cases to the
creditor against surety different branches of a court shall be done exclusively by
raffle. The assignment shall be done in open session of which

9 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

adequate notice shall be given so as to afford interested When the subpoena is not specific or does not contain a
parties the opportunity to be present. reasonable description of the books/documents required.
RULE 21 B) RELEVANCY DOES NOT APPEAR
SUBPOENA No connection between the documents sought and the
Section 1. Subpoena and subpoena duces tecum. Subpoena is issues in the case.
a process directed to a person requiring him to attend and to
C) FAILURE TO ADVANCE THE REASONABLE COSTS FOR THE
testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the PRODUCTION OF THE BOOKS/DOCUMENTS
taking of his deposition. It may also require him to bring GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
with him any books, documents, or other things under his WITNESS IS NOT BOUND THEREBY – outside 100km from the place
control, in which case it is called a subpoena duces tecum. of the trial.
TYPES Sec. 5. Subpoena for depositions. Proof of service of a notice
a) SUBPOENA AD TESTIFICNADUM – requiring a person to to take a deposition, as provided in sections 15 and 25 of Rule
attend and to testify at the hearing or trial of an action or at 23, shall constitute sufficient authorization for the issuance
any investigation conducted by competent authority or for of subpoenas for the persons named in said notice by the
the taking of his deposition. clerk of the court of the place in which the deposition is to be
b) SUBPOENA DUCES TECUM – requiring a person to bring with taken. The clerk shall not, however, issue a subpoena duces
him any books, documents, or other things under his control. tecum to any such person without an order of the court.
Sec. 2. By whom issued. The subpoena may be issued by: See discussion of Depositions
a) the court before whom the witness is required to attend; Sec. 6. Service. Service of a subpoena shall be made in the
b) the court of the place where the deposition is to be taken; same manner as personal or substituted service of summons.
c) the officer or body authorized by law to do so in The original shall be exhibited and a copy thereof delivered
connection with investigations conducted by said officer or to the person on whom it is served, tendering to him the fees
body; or for one day’s attendance and the kilometrage allowed by
d) any Justice of the Supreme Court or of the Court of these Rules, except that, when a subpoena is issued by or on
Appeals in any case or investigation pending within the behalf of the Republic of the Philippines or an officer or
Philippines. agency thereof, the tender need not be made. The service
When application for a subpoena to a prisoner is made, the must be made so as to allow the witness a reasonable time
judge or officer shall examine and study carefully such for preparation and travel to the place of attendance. If the
application to determine whether the same is made for a subpoena is duces tecum, the reasonable cost of producing
valid purpose. the books, documents or things demanded shall also be
No prisoner sentenced to death, reclusion perpetua or life tendered.
imprisonment and who is confined in any penal institution
Sec. 7. Personal appearance in court. A person present in
shall be brought outside the said penal institution for
court before a judicial officer may be required to testify as if
appearance or attendance in any court unless authorized by
he were in attendance upon a subpoena issued by such court
the Supreme Court.
or officer.
AUTHORIZED TO ISSUE SUBPOENA
Service shall be made in the same manner as personal or
a) Court where witness required to attend
substituted service of summons.
b) Court of place where deposition is to be taken
c) Officer or body authorized by law (in connection with GR: A person cannot be compelled to testify if he has not been
investigations conducted by said officer or body). served with a subpoena.
d) Any Justice of the Supreme Court or CA (in any case EXC: when a person present in court before a judicial officer
pending within the Phils. – even when not before SC/CA). may be required to testify as if he is under subpoena.
Prisoner can only be subpoenaed after careful examination of Sec. 8. Compelling attendance. In case of failure of a witness
the valid purpose for issuing the process. to attend, the court or judge issuing the subpoena, upon
proof of the service thereof and of the failure of the witness,
Only the SC can subpoena a person sentenced to death,
may issue a warrant to the sheriff of the province, or his
RP, life imprisonment. deputy, to arrest the witness and bring him before the court
Sec. 3. Form and contents. A subpoena shall state the name or officer where his attendance is required, and the cost of
of the court and the title of the action or investigation, shall such warrant and seizure of such witness shall be paid by the
be directed to the person whose attendance is required, and witness if the court issuing it shall determine that his failure
in the case of a subpoena duces tecum, it shall also contain a to answer the subpoena was willful and without just excuse.
reasonable description of the books, documents or things
Sec. 9. Contempt. Failure by any person without adequate
demanded which must appear to the court prima facie
cause to obey a subpoena served upon him shall be deemed a
relevant.
contempt of the court from which the subpoena is issued. If
Sec. 4. Quashing a subpoena. The court may quash a the subpoena was not issued by a court, the disobedience
subpoena duces tecum upon motion promptly made and, in thereto shall be punished in accordance with the applicable
any event, at or before the time specified therein if it is law or Rule.
unreasonable and oppressive, or the relevancy of the books,
EFFECTS OF FAILURE TO APPEAR
documents or things does not appear, or if the person in
whose behalf the subpoena is issued fails to advance the a) Court may be asked to issue a warrant for the arrest of the
reasonable cost of the production thereof. witness (warrant to arrest a recalcitrant witness)
The court may quash a subpoena ad testificandum on the b) Declare him in contempt of court for failure to obey the
ground that the witness is not bound thereby. In either case, subpoena
the subpoena may be quashed on the ground that the witness Sec. 10. Exceptions. The provisions of sections 8 and 9 of this
fees and kilometrage allowed by these Rules were not Rule shall not apply to a witness who resides more than one
tendered when the subpoena was served. hundred (100) kilometers from his residence to the place
GROUNDS TO QUASH SUBPOENA DUCES TECUM where he is to testify by the ordinary course of travel, or to a
A) UNREASONABLE AND OPPRESSIVE

10 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

detention prisoner if no permission of the court in which his 3) Request for Admission of Adverse Parties
case is pending was obtained. 4) Production or Inspection of Documents and Things
SUBPOENA SUMMONS 5) Physical and Mental Examination of Persons
Directed to a witness Directed to a defendant DEPOSITION – written testimony of a witness given in the course
Directs witness to Defendant is informed of a of a judicial proceeding, in advance of the trial or hearing, upon
appear/testify or to bring complaint filed against him oral examination or in response to written interrogatories, and
documents and that he must file an where an opportunity is given for cross-examination.
Answer Distinguished from an Affidavit where statement is taken ex-
Witness will be declared in Failure to comply will result to parte (no cross examination).
contempt or can be arrested an order of default 2 MODES OF DEPOSITION TAKING
for failure to obey 1) Upon Oral Examination
Applies to both criminal and Applies only to civil cases 2) Upon Written Interrogatories
civil cases
100km limits its enforceability There is no limitation Sec. 1 presupposes a pending civil case.
W.O.N. Leave of Court is Necessary
RULE 22 When Answer Already Filed – NO LEAVE
COMPUTATION OF TIME When Answer not yet Filed (But Jurisdiction Already Acquired) –
MOTION/LEAVE is required.
Section 1. How to compute time. In computing any period of Also when Deposition of Prisoner is to be taken.
time prescribed or allowed by these Rules, or by order of the
court, or by any applicable statute, the day of the act or event A person can be compelled to give his deposition thru a
from which the designated period of time begins to run is to subpoena under Rule 21.
be excluded and the date of performance included. If the last Clerk of Court (COC) issues the subpoena upon giving proof
day of the period, as thus computed, falls on a Saturday, a of notice of deposition. If Duces Tecum, must be with court
Sunday, or a legal holiday in the place where the court sits, order.
the time shall not run until the next working day. If deponent is in another court’s jurisdiction, subpoena must
EXCLUDE THE FIRST AND INCLUDE THE LAST DAY RULE. be issued there.
Sec. 2. Effect of interruption. Should an act be done which Sec. 2. Scope of examination. Unless otherwise ordered by
effectively interrupts the running of the period, the allowable the court as provided by section 16 or 18 of this Rule, the
period after such interruption shall start to run on the day deponent may be examined regarding any matter, not
after notice of the cessation of the cause thereof. privileged, which is relevant to the subject of the pending
The day of the act that caused the interruption shall be action, whether relating to the claim or defense of any other
excluded in the computation of the period. party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other
ILLUSTRATION: tangible things and the identity and location of persons
January 31 – served with summons having knowledge of relevant facts.
February 8 – files M2D
February 15 – Receives notice denying M2D Deponent may be asked/examined regarding any matter
How many days left to file Answer? related to the claim or defense of a party.
8! Because you exclude the day of the act that caused Somewhat a “fishing expedition”
the interruption (Feb. 8 is not counted). LIMITATIONS
RULE 23 A) MATTER IS PRIVILEGED
DEPOSITIONS PENDING ACTIONS Marital Privilege
Lawyer-Client Privilege
Section 1. Depositions pending action, when may be taken.
By leave of court after jurisdiction has been obtained over Physician-Patient Communication Rule
any defendant or over property which is the subject of the Priest-Penitent Communication Rule
action, or without such leave after an answer has been Business Trade Secrets
served, the testimony of any person, whether a party or not, B) NOT RELEVANT TO THE SUBJECT OF THE PENDING ACTION
may be taken, at the instance of any party, by deposition
upon oral examination or written interrogatories. The C) COURT ISSUED ORDERS TO PROTECT THE PARTIES AND
attendance of witnesses may be compelled by the use of a DEPONENTS
subpoena as provided in Rule 21. Depositions shall be taken While leave of court not always be required, the court
only in accordance with these Rules. The deposition of a still has control over the case.
person confined in prison may be taken only by leave of court Sec. 3. Examination and cross-examination. Examination
on such terms as the court prescribes. and cross-examination of deponents may proceed as
Discovery – a device employed by a party to obtain information permitted at the trial under sections 3 to 18 of Rule 132.
about relevant matters (evidentiary matters) on the case from Sec. 4. Use of depositions. At the trial or upon the hearing of
the adverse party in preparation for trial. a motion or an interlocutory proceeding, any part or all of a
Purpose: to prevent trials from being carried on in the dark. deposition, so far as admissible under the rules of evidence,
To be distinguished from a Motion for a Bill of Particulars where a may be used against any party who was present or
party is compelled to clarify vague statements of ultimate facts. represented at the taking of the deposition or who had due
notice thereof, in accordance with any one of the following
Considered as vital components of case management – order provisions:
requiring parties to avail of interrogatories served with summons. (a) Any deposition may be used by any party for the purpose
5 MODES OF DISCOVERY of contradicting or impeaching the testimony of deponent as
1) Deposition Pending action and Before Action or Pending a witness;
Appeal (b) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing
2) Written Interrogatories to Parties

11 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

agent of a public or private corporation, partnership, or In Evidence, the party is not obliged to offer in evidence the
association which is a party may be used by an adverse party documents which are against his cause – that is the job of
for any purpose; the other lawyer -- he is not precluded from presenting the
(c) The deposition of a witness, whether or not a party, may other half of the story.
be used by any party for any purpose if the court finds: (1)
that the witness is dead; or (2) that the witness resides at a Sec. 5. Effect of substitution of parties. Substitution of
distance more than one hundred (100) kilometers from the parties does not affect the right to use depositions previously
place of trial or hearing, or is out of the Philippines, unless it taken; and, when an action has been dismissed and another
appears that his absence was procured by the party offering action involving the same subject is afterward brought
the deposition; or (3) that the witness is unable to attend or between the same parties or their representatives or
testify because of age, sickness, infirmity, or imprisonment; successors in interest, all depositions lawfully taken and duly
or (4) that the party offering the deposition has been unable filed in the former action may be used in the latter as if
to procure the attendance of the witness by subpoena; or (5) originally taken therefor.
upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of Depositions previously taken may be used against parties
justice and with due regard to the importance of presenting substituted to the original parties or when a case is re-filed after
the testimony of witnesses orally in open court, to allow the being dismissed.
deposition to be used; and Sec. 6. Objections to admissibility. Subject to the provisions
(d) If only part of a deposition is offered in evidence by a of section 29 of this Rule, objection may be made at the trial
party, the adverse party may require him to introduce all of it or hearing to receiving in evidence any deposition or part
which is relevant to the part introduced, and any party may thereof for any reason which would require the exclusion of
introduce any other parts. the evidence if the witness were then present and testifying.
THE DEPOSITION MAY BE USED DURING Evidence offered during the deposition taking may be objected
A) TRIAL to but the deposition officer cannot rule on them.
b) Hearing of a MOTION The objection is recorded and the judge will rule on the
c) Hearing of INTERLOCUTORY PROCEEDING objection during trial.
MAY BE USED AGAINST (Who are bound by it?) Sec. 7. Effect of taking depositions. A party shall not be
a) Any party who was present deemed to make a person his own witness for any purpose by
b) Any party who was represented at the taking of the taking his deposition.
depositions Sec. 8. Effect of using depositions. The introduction in
c) Against a party who did not appear or was not represented evidence of the deposition or any part thereof for any
but was duly notified of the scheduled deposition taking purpose other than that of contradicting or impeaching the
I. ANY DEPOSITION MAY BE USED BY ANY PARTY FOR THE deponent makes the deponent the witness of the party
PURPOSE OF CONTRADICTING OR IMPEACHING THE introducing the deposition, but this shall not apply to the use
TESTIMONY OF DEPONENT AS A WITNESS by an adverse party of a deposition as described in paragraph
(b) of section 4 of this Rule.
The deposition of the witness cannot be used as evidence.
Only for impeaching or contradicting his testimony – PRIOR GR: by merely taking the deposition, the deponent is not made a
INCONSISTENT TESTIMONY. witness for the party introducing the deposition.
Deposition is not a substitute for the testimony of the witness EXC: when presented in court, especially when the person is
in court. dead or is 100 kms away.
EXC to EXC (still not a witness even if offered in court):
II. THE DEPOSITION OF A PARTY OR OF ANY ONE WHO AT THE
a) When deposition is offered to contradict or impeach
TIME OF TAKING THE DEPOSITION WAS AN OFFICER, DIRECTOR,
the witness
OR MANAGING AGENT OF A PUBLIC OR PRIVATE
b) Deposition of the adverse party is presented – what
CORPORATION, PARTNERSHIP, OR ASSOCIATION WHICH IS A
the adverse party says in favor of the other binds but
PARTY MAY BE USED BY AN ADVERSE PARTY FOR ANY
not when it is not, it will not bind.
PURPOSE
The deposition of the party himself may be used for any purpose Sec. 9. Rebutting deposition. At the trial or hearing, any
i.e. as evidence or as a tool to impeach or contradict. party may rebut any relevant evidence contained in a
deposition whether introduced by him or by any other party.
*if the adverse party is a corporation, you may take the
Sec. 10. Persons before whom depositions may be taken
deposition of any f its officers, directors, or managing agents.
within the Philippines. Within the Philippines, depositions
III. THE DEPOSITION OF A WITNESS, WHETHER OR NOT A PARTY, may be taken before any judge, notary public, or the person
MAY BE USED BY ANY PARTY FOR ANY PURPOSE IF THE COURT referred to in section 14 hereof.
FINDS: Sec. 11. Persons before whom depositions may be taken in
GR: a witness’ deposition may only be used to contradict or foreign countries. In a foreign state or country, depositions
impeach his testimony. may be taken (a) on notice before a secretary of embassy or
EXCEPT in the following: legation, consul general, consul, vice-consul, or consular
A. DEATH agent of the Republic of the Philippines; (b) before such
b. 100 KMS AWAY - When the deponent cannot be person or officer as may be appointed by commission or
subpoenaed by the court where the action is pending under letters rogatory; or (c) the person referred to in
he cannot be compelled to testify therein. section 14 hereof.
C. WITNESS NOT FOUND – when after taking his testimony, Sec. 12. Commission or letters rogatory. A commission or
the deponent can no longer be found. letters rogatory shall be issued only when necessary or
convenient, on application and notice, and on such terms
IV. IF ONLY PART OF A DEPOSITION IS OFFERED IN EVIDENCE BY A
and with such direction as are just and appropriate. Officers
PARTY, THE ADVERSE PARTY MAY REQUIRE HIM TO INTRODUCE may be designated in notices or commissions either by name
ALL OF IT WHICH IS RELEVANT TO THE PART INTRODUCED, AND or descriptive title and letters rogatory may be addressed to
ANY PARTY MAY INTRODUCE ANY OTHER PARTS the appropriate judicial authority in the foreign country.

12 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

WHERE DEPOSITION OFFICERS AUTHORIZED other order which justice requires to protect the party or
TAKEN witness from annoyance, embarrassment, or oppression.
WITHIN THE a) ANY JUDGE – not necessarily the judge Sec. 17. Record of examination; oath; objections. The officer
PHILIPPINES where case is pending, can be where before whom the deposition is to be taken shall put the
the deposition is to be taken. witness on oath and shall personally, or by some one acting
B) NOTARY PUBLIC under his direction and in his presence, record the testimony
c) PERSON REFERRED TO IN SEC. 14 – any of the witness. The testimony shall be taken stenographically
unless the parties agree otherwise. All objections made at the
person authorized to administer oaths
time of the examination to the qualifications of the officer
(i.e. prosecutors, COC, labor arbiters)
taking the deposition, or to the manner of taking it, or to the
agreed upon by the parties IN evidence presented, or to the conduct of any party, and any
WRITING. other objection to the proceedings, shall be noted by the
ABROAD a) SEC. OF THE PHIL. EMBASSY OR officer upon the deposition. Evidence objected to shall be
CONSULATE; CONSUL, VICE-CONSUL – taken subject to the objections. In lieu of participating in the
Coursed thru the Department of oral examination, parties served with notice of taking a
Foregin Affairs deposition may transmit written interrogatories to the
b) PERSONS REFERRED TO IN SEC. 14 – see officers, who shall propound them to the witness and record
above the answers verbatim.
c) PERSONS AUTHORIZED BY COMMISSION Sec. 18. Motion to terminate or limit examination. At any
– addressed to officers designated by time during the taking of the deposition, on motion or
name or descriptive title; somebody petition of any party or of the deponent and upon a showing
other than Philippine Consul i.e. Head that the examination is being conducted in bad faith or in
of Trade Mission in Taiwan such manner as unreasonably to annoy, embarrass, or
d) THRU LETTERS ROGATORY – request to a oppress the deponent or party, the court in which the action
judge in a foreign court requesting for is pending or the Regional Trial Court of the place where the
deposition is being taken may order the officer conducting
the taking of the deposition of a
the examination to cease forthwith from taking the
particular witnesses with the offer of on deposition, or may limit the scope and manner of the taking
the part of the requesting court to of the deposition, as provided in section 16 of this Rule. If the
return the favor. order made terminates the examination, it shall be resumed
*may be availed of only when thereafter only upon the order of the court in which the
Commission was 1st resorted to. action is pending. Upon demand of the objecting party or
Sec. 13. Disqualification by interest. No deposition shall be deponent, the taking of the deposition shall be suspended for
taken before a person who is a relative within the sixth the time necessary to make a notice for an order. In granting
degree of consanguinity or affinity, or employee or counsel or refusing such order, the court may impose upon either
of any of the parties; or who is a relative within the same party or upon the witness the requirement to pay such costs
degree, or employee of such counsel; or who is financially or expenses as the court may deem reasonable.
interested in the action. UPON MOTION AND FOR GOOD CAUSE SHOWN, THE COURT MAY
Sec. 14. Stipulations regarding taking of depositions. If the ORDER:
parties so stipulate in writing, depositions may be taken a) That the deposition shall not be taken
before any person authorized to administer oaths, at any b) That it be taken only at a designated place other than that
time or place, in accordance with these Rules, and when so stated in the notice
taken may be used like other depositions. c) That it may be taken only on written interrogatories
Sec. 15. Deposition upon oral examination; notice; time and d) That certain matters shall not be inquired into
place. A party desiring to take the deposition of any person e) That the scope of the examination shall be held with no one
upon oral examination shall give reasonable notice in writing present except the parties to the action and their officers or
to every other party to the action. The notice shall state the counsel
time and place for taking the deposition and the name and f) That after being sealed, the deposition shall be opened only
address of each person to be examined, if known, and if the by order of the court
name is not known, a general description sufficient to g) That secret processes, developments, or research need not
identify him or the particular class or group to which he be disclosed
belongs. On motion of any party upon whom the notice is
h) That the parties shall simultaneously file specified documents
served, the court may for cause shown enlarge or shorten the
or information enclosed in sealed envelopes to be opened
time.
as directed by the court
Sec. 16. Orders for the protection of parties and i) The court may make any other order which justice requires
deponents. After notice is served for taking a deposition by to protect the party or witness from annoyance,
oral examination, upon motion seasonably made by any
embarrassment, or oppressions.
party or by the person to be examined and for good cause
shown, the court in which the action is pending may make an *applies to Sec. 16 (BEFORE deposition) and 18 (DURING
order that the deposition shall not be taken, or that it may be deposition).
taken only at some designated place other than that stated in Deposition Upon Oral Examination must be under oath.
the notice, or that it may be taken only on written - Recorded by a stenographer
interrogatories, or that certain matters shall not be inquired - Objections will be recorded
into, or that the scope of the examination shall be held with Objections shall be noted and the deponent shall
no one present except the parties to the action and their
answer.
officers or counsel, or that after being sealed the deposition
The court, thru the judge, will rule on the objection.
shall be opened only by order of the court, or that secret
processes, developments, or research need not be disclosed, Objections not made during the deposition shall not be
or that the parties shall simultaneously file specified allowed during trial.
documents or information enclosed in sealed envelopes to be EXCEPT when based on a new ground non-existent
opened as directed by the court; or the court may make any during the deposition.

13 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

Sec. 19. Submission to witness; changes; signing. When the (5) days thereafter, the latter may serve re-direct
testimony is fully transcribed, the deposition shall be interrogatories upon a party who has served cross-
submitted to the witness for examination and shall be read to interrogatories. Within three (3) days after being served with
or by him, unless such examination and reading are waived re-direct interrogatories, a party may serve recross-
by the witness and by the parties. Any changes in form or interrogatories upon the party proposing to take the
substance which the witness desires to make shall be entered deposition.
upon the deposition by the officer with a statement of the
There is no personal confrontation of the witnesses.
reasons given by the witness for making them. The
The questions are prepared in advance, in written form, and
deposition shall then be signed by the witness, unless the
parties by stipulation waive the signing or the witness is ill or served to the party to be deposed.
cannot be found or refuses to sign. If the deposition is not FLOW
signed by the witness, the officer shall sign it and state on the 1) Direct interrogatories are served to the party.
record the fact of the waiver or of the illness or absence of 2) 10 days are given for the service of cross-interrogatories.
the witness or the fact of the refusal to sign together with the 3) 5 days are given for the service of re-direct interrogatories.
reason given therefor, if any, and the deposition may then be 4) 3 days are given for the service of re-cross interrogatories.
used as fully as though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the court holds Sec. 26. Officers to take responses and prepare record. A
that the reasons given for the refusal to sign require copy of the notice and copies of all interrogatories served
rejection of the deposition in whole or in part. shall be delivered by the party taking the deposition to the
The deposition officer shall submit the deposition to the officer designated in the notice, who shall proceed promptly,
deponent for his examination -- he may change his answers with in the manner provided by sections 17, 19 and 20 of this Rule,
reasons given for such changes. to take the testimony of the witness in response to the
EXAMINATION by the deponent may be WAIVED by the interrogatories and to prepare, certify, and file or mail the
parties or may be dispensed with due to sickness of the deposition, attaching thereto the copy of the notice and the
interrogatories received by him.
deponent or because he cannot be found or refuses to sign
– the deposition officer shall be the one to sign. Sec. 27. Notice of filing and furnishing copies. When a
deposition upon interrogatories is filed, the officer taking it
Sec. 20. Certification and filing by officer. The officer shall
shall promptly give notice thereof to all the parties, and may
certify on the deposition that the witness was duly sworn to
furnish copies to them or to the deponent upon payment of
by him and that the deposition is a true record of the
reasonable charges therefor.
testimony given by the witness. He shall then securely seal
the deposition in an envelope indorsed with the title of the Sec. 28. Orders for the protection of parties and
action and marked "Deposition of (here insert the name of deponents. After the service of the interrogatories and prior
witness)" and shall promptly file it with the court in which to the taking of the testimony of the deponent, the court in
the action is pending or send it by registered mail to the clerk which the action is pending, on motion promptly made by a
thereof for filing. party or a deponent, and for good cause shown, may make
any order specified in sections 15, 16 and 18 of this Rule
Sec. 21. Notice of filing. The officer taking the deposition
which is appropriate and just or an order that the deposition
shall give prompt notice of its filing to all the parties.
shall not be taken before the officer designated in the notice
Sec. 22. Furnishing copies. Upon payment of reasonable or that it shall not be taken except upon oral examination.
charges therefor, the officer shall furnish a copy of the
Sec. 29. Effects of errors and irregularities in depositions.
deposition to any party or to the deponent.
(a) As to notice.- All errors and irregularities in the notice for
Sec. 23. Failure to attend of party giving notice. If the party taking a deposition are waived unless written objection is
giving the notice of the taking of a deposition fails to attend promptly served upon the party giving the notice.
and proceed therewith and another attends in person or by (b) As to disqualification of officer.- Objection to taking a
counsel pursuant to the notice, the court may order the party deposition because of disqualification of the officer before
giving the notice to pay such other party the amount of the whom it is to be taken is waived unless made before the
reasonable expenses incurred by him and his counsel in so taking of the deposition begins or as soon thereafter as the
attending, including reasonable attorney’s fees. disqualification becomes known or could be discovered with
Sec. 24. Failure of party giving notice to serve subpoena. If reasonable diligence.
the party giving the notice of the taking of a deposition of a (c) As to competency or relevancy of evidence.- Objections to
witness fails to serve a subpoena upon him and the witness the competency of a witness or the competency, relevancy, or
because of such failure does not attend, and if another party materiality of testimony are not waived by failure to make
attends in person or by counsel because he expects the them before or during the taking of the deposition, unless
deposition of that witness to be taken, the court may order the ground of the objection is one which might have been
the party giving the notice to pay to such other party the obviated or removed if presented at that time.
amount of the reasonable expenses incurred by him and his (d) As to oral examination and other particulars.- Errors and
counsel in so attending, including reasonable attorney’s fees. irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions
When the party giving the notice of the taking of the deposition or answers, in the oath or affirmation, or in the conduct of
the parties and errors of any kind which might be obviated,
fails to attend or fails to subpoena a witness causing the witness’
removed, or cured if promptly prosecuted, are waived unless
failure to attend – he shall be liable for the reimbursement of the
reasonable objection thereto is made at the taking of the
expenses incurred by the other party upon motion. deposition.
Sec. 25. Deposition upon written interrogatories; service of (e) As to form of written interrogatories.- Objections to the
notice and of interrogatories. A party desiring to take the form of written interrogatories submitted under sections 25
deposition of any person upon written interrogatories shall and 26 of this Rule are waived unless served in writing upon
serve them upon every other party with a notice stating the the party propounding them within the time allowed for
name and address of the person who is to answer them and serving succeeding cross or other interrogatories and within
the name or descriptive title and address of the officer before three (3) days after service of the last interrogatories
whom the deposition is to be taken. Within ten (10) days authorized.
thereafter, a party so served may serve cross-interrogatories (f) As to manner of preparation.- Errors and irregularities in
upon the party proposing to take the deposition. Within five the manner in which the testimony is transcribed or the

14 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

deposition is prepared, signed, certified, sealed, indorsed, Sec. 7. Depositions pending appeal. If an appeal has been
transmitted, filed, or otherwise dealt with by the officer taken from a judgment of a court, including the Court of
under sections 17, 19, 20 and 26 of this Rule are waived Appeals in proper cases, or before the taking of an appeal if
unless a motion to suppress the deposition or some part the time therefor has not expired, the court in which the
thereof is made with reasonable promptness after such judgment was rendered may allow the taking of depositions
defect is, or with due diligence might have been, ascertained. of witnesses to perpetuate their testimony for use in the
RULE 24 event of further proceedings in the said court. In such case
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL. the party who desires to perpetuate the testimony may make
a motion in the said court for leave to take the depositions,
Section 1. Depositions before action; petition. A person who upon the same notice and service thereof as if the action was
desires to perpetuate his own testimony or that of another pending therein. The motion shall state (a) the names and
person regarding any matter that may be cognizable in any addresses of the persons to be examined and the substance
court of the Philippines, may file a verified petition in the of the testimony which he expects to elicit from each; and (b)
court of the place of the residence of any expected adverse the reason for perpetuating their testimony. If the court
party. finds that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an order
Done thru the filing of a Petition to Perpetuate the Testimony.
allowing the depositions to be taken, and thereupon the
Relevance or importance of the testimony must be proven
depositions may be taken and used in the same manner and
for the court to issue the order. under the same conditions as are prescribed in these Rules
Filed in the court of the place of residence of the expected for depositions taken in pending actions.
adverse party. RULE 25
Sec. 2. Contents of petition. The petition shall be entitled in INTERROGATORIES TO PARTIES
the name of the petitioner and shall show: (a) that the Section 1. Interrogatories to parties; service thereof. Under
petitioner expects to be a party to an action in a court of the the same conditions specified in section 1 of Rule 23, any
Philippines but is presently unable to bring it or cause it to be party desiring to elicit material and relevant facts from any
brought; (b) the subject matter of the expected action and his adverse parties shall file and serve upon the latter written
interest therein; (c) the facts which he desires to establish by interrogatories to be answered by the party served or, if the
the proposed testimony and his reasons for desiring to party served is a public or private corporation or a
perpetuate it; (d) the names or a description of the persons partnership or association, by any officer thereof competent
he expects will be adverse parties and their addresses so far to testify in its behalf.
as known; and (e) the names and addresses of the persons to
be examined and the substance of the testimony which he RULE 23 RULE 25
expects to elicit from each, and shall ask for an order Taken before deposition There is no deposition officer.
authorizing the petitioner to take the depositions of the officer.
persons to be examined named in the petition for the
Questions are prepared Questioning is direct – no 3rd
purpose of perpetuating their testimony.
beforehand, submitted to the party shall interevene.
Sec. 3. Notice and service. The petitioner shall serve a notice DO and answers are recorded
upon each person named in the petition as an expected by him.
adverse party, together with a copy of the petition, stating
that the petitioner will apply to the court, at a time and place Deposition of any one, Only send the questions only to
named therein, for the order described in the petition. At whether a party or not may be the party.
least twenty (20) days before the date of the hearing, the taken.
court shall cause notice thereof to be served on the parties
and prospective deponents in the manner provided for Leave of court may or may not be required depending on
service of summons. whether an Answer has already been filed (same as Rule 23,
Sec. 1).
Notice shall be served to all the expected adverse parties
Sec. 2. Answer to interrogatories. The interrogatories shall
together with a copy of the petition.
be answered fully in writing and shall be signed and sworn to
Notice shall be served by the court 20D before the date of
by the person making them. The party upon whom the
the hearing. interrogatories have been served shall file and serve a copy
of the answers on the party submitting the interrogatories
Sec. 4. Order and examination. If the court is satisfied that within fifteen (15) days after service thereof, unless the
the perpetuation of the testimony may prevent a failure or court, on motion and for good cause shown, extends or
delay of justice, it shall make an order designating or shortens the time.
describing the persons whose deposition may be taken and
specifying the subject matter of the examination and whether Sec. 3. Objections to interrogatories. Objections to any
the depositions shall be taken upon oral examination or interrogatories may be presented to the court within ten (10)
written interrogatories. The depositions may then be taken days after service thereof, with notice as in case of a motion;
in accordance with Rule 23 before the hearing. and answers shall be deferred until the objections are
resolved, which shall be at as early a time as is practicable.
Sec. 5. Reference to court. For the purpose of applying Rule
23 to depositions for perpetuating testimony, each reference Objections to questions may be raised in the court where the
therein to the court in which the action is pending shall be case is pending within 10D from service.
deemed to refer to the court in which the petition for such Sec. 4. Number of interrogatories. No party may, without
deposition was filed. leave of court, serve more than one set of interrogatories to
Sec. 6. Use of deposition. If a deposition to perpetuate be answered by the same party.
testimony is taken under this Rule, or if, although not so There can be no piecemeal interrogatories.
taken, it would be admissible in evidence, it may be used in
If an additional interrogatory is sought to be served, leave is
any action involving the same subject matter subsequently
required.
brought in accordance with the provisions of sections 4 and 5
of Rule 23. Sec. 5. Scope and use of interrogatories. Interrogatories may
relate to any matters that can be inquired into under section
See Rule 23

15 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

2 of Rule 23, and the answers may be used for the same fails to file and serve a request for admission on the adverse
purposes provided in section 4 of the same Rule. party of material and relevant facts at issue which are, or
ought to be, within the personal knowledge of the latter, shall
Any question may be asked as long as they are related to the
not be permitted to present evidence on such facts.
related/relevant to the claim/defense and are not privileged.
The deposition may then be used for impeachment or any Failure to serve or file a request for admission of material and
other purpose. relevant facts which are or ought to be within the personal
Sec. 6. Effect of failure to serve written knowledge of the latter shall not be permitted to present
interrogatories. Unless thereafter allowed by the court for evidence on such facts.
good cause shown and to prevent a failure of justice, a party Unless allowed by the court, for good cause shown and prevent
not served with written interrogatories may not be failure of justice.
compelled by the adverse party to give testimony in open Request must be directed to the party whose admission is
court, or to give a deposition pending appeal. sought. Service to any other is not valid.
Unless written interrogatories are previously served to the adverse But the party may delegate to the lawyer the right to answer the
party, he may not be called by the other party to the stand. request (w/ valid authorization).
RULE 26 RULE 27
ADMISSION BY ADVERSE PARTY PRODUCTION OR INSPECTION OF DOCUMENTS OR
Section 1. Request for admission. At any time after issues THINGS
have been joined, a party may file and serve upon any other Section 1. Motion for production or inspection; order. Upon
party a written request for the admission by the latter of the motion of any party showing good cause therefor, the court
genuineness of any material and relevant document in which an action is pending may (a) order any party to
described in and exhibited with the request or of the truth of produce and permit the inspection and copying or
any material and relevant matter of fact set forth in the photographing, by or on behalf of the moving party, of any
request. Copies of the documents shall be delivered with the designated documents, papers, books, accounts, letters,
request unless copies have already been furnished. photographs, objects or tangible things, not privileged,
which constitute or contain evidence material to any matter
To be distinguished from Rule 25 where the answer to the
involved in the action and which are in his possession,
question is not simply a “yes” or a “no” and may be done even custody or control; or (b) order any party to permit entry
before filing of an Answer via leave of court. upon designated land or other property in his possession or
Presupposes that an Answer has already been filed. control for the purpose of inspecting, measuring, surveying,
or photographing the property or any designated relevant
Sec. 2. Implied admission. Each of the matters of which an
object or operation thereon. The order shall specify the time,
admission is requested shall be deemed admitted unless,
place and manner of making the inspection and taking copies
within a period designated in the request, which shall not be
and photographs, and may prescribe such terms and
less than fifteen (15) days after service thereof, or within
conditions as are just.
such further time as the court may allow on motion, the
party to whom the request is directed files and serves upon REQUISITES
the party requesting the admission a sworn statement either 1) Motion filed by party showing good cause therefor
denying specifically the matters of which an admission is 2) Notice of the motion given to all parties
requested or setting forth in detail the reasons why he 3) Motion must be sufficiently describe the document or thing
cannot truthfully either admit or deny those matters. sought to be produced or inspected
Objections to any request for admission shall be submitted to 4) The document or thing sought to be produced or inspected
the court by the party requested within the period for and must constitute or contain evidence material to the
prior to the filing of his sworn statement as contemplated in
pending action
the preceding paragraph and his compliance therewith shall
be deferred until such objections are resolved, which 5) The document or thing sought to be produced or inspected
resolution shall be made as early as practicable. must not be privileged
6) The document or thing sought to be produeced or
15D are allowed to be given to the party to whom the request is inspected must be in the possession of the adverse party or
directed – otherwise, there will be an implied admission of the at least in his control
things asked.
*where a matter has already been denied by the party in his RULE 27 SUBPOENA DUCES TECUM
pleading (i.e. Answer/Reply) there is no need to ask for the Mode of discovery Compels production of
admission of the same – therefore, there is no implied admission. evidence which must be
Sec. 3. Effect of admission. Any admission made by a party brought to court
pursuant to such request is for the purpose of the pending Limited to parties in the action May be directed to any
action only and shall not constitute an admission by him for person, party or not
any other purpose nor may the same be used against him in Issued only upon motion with May be issued upon Ex-parte
any other proceeding. notice to adverse party application
Any admission made by a party is limited only to the particular PRIVILEGED MATTERS (in addition to those mentioned in p. 12)
proceeding/case – cannot be used in any other. a) Public officer and public interest
Sec. 4. Withdrawal. The court may allow the party making an b) Editors and source of published news
admission under this Rule, whether express or implied, to c) Voters and the persons they voted for
withdraw or amend it upon such terms as may be just. d) Trade secrets
Admissions, implied or expressed, are binding. e) Information contained in tax census returns
But the admitting party may be allowed to withdraw, F) Bank deposits
amend, or change the previous admissions. RULE 28
Sec. 5. Effect of failure to file and serve request for PHYSICAL AND MENTAL EXAMINATION OF PERSONS
admission. Unless otherwise allowed by the court for good Section 1. When examination may be ordered. In an action in
cause shown and to prevent a failure of justice, a party who which the mental or physical condition of a party is in

16 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

controversy, the court in which the action is pending may in refusal, or both of them, to pay the proponent the amount of
its discretion order him to submit to a physical or mental the reasonable expenses incurred in obtaining the order,
examination by a physician. including attorney’s fees.
If the application is denied and the court finds that it was
Must be a neutral doctor, psychiatrist, etc.
filed without substantial justification, the court may require
INSTANCES the proponent or the counsel advising the filing of the
a) Annulment of marriage on the ground of psychological application, or both of them, to pay to the refusing party or
incapacity deponent the amount of the reasonable expenses incurred in
b) Annulment of marriage on the ground of impotency opposing the application, including attorney’s fees.
c) Annulment of contract on the ground of insanity at the time Refusal to answer depositions can be cause for asking an order
of execution from the court compelling the witness or party to answer he may
d) Physical disability due to quasi-delicts also be held liable for reasonable expenses incurred in obtaining
REQUISITES the order.
1) The physical or mental condition must be the subject of Sec. 2. Contempt of court. If a party or other witness refuses
controversy of the action to be sworn or refuses to answer any question after being
2) A motion showing good cause must be filed directed to do so by the court of the place in which the
3) Notice of motion must be given to the party to be deposition is being taken, the refusal may be considered a
examined and all other parties. contempt of that court.
Sec. 2. Order for examination. The order for examination Sec. 3. Other consequences. If any party or an officer or
may be made only on motion for good cause shown and upon managing agent of a party refuses to obey an order made
notice to the party to be examined and to all other parties, under section 1 of this Rule requiring him to answer
and shall specify the time, place, manner, conditions and designated questions, or an order under Rule 27 to produce
scope of the examination and the person or persons by whom any document or other thing for inspection, copying, or
it is to be made. photographing or to permit it to be done, or to permit entry
upon land or other property, or an order made under Rule
Sec. 3. Report of findings. If requested by the party 28 requiring him to submit to a physical or mental
examined, the party causing the examination to be made examination, the court may make such orders in regard to
shall deliver to him a copy of a detailed written report of the the refusal as are just, and among others the following:
examining physician setting out his findings and (a) An order that the matters regarding which the questions
conclusions. After such request and delivery, the party were asked, or the character or description of the thing or
causing the examination to be made shall be entitled upon land, or the contents of the paper, or the physical or mental
request to receive from the party examined a like report of condition of the party, or any other designated facts shall be
any examination, previously or thereafter made, of the same taken to be established for the purposes of the action in
mental or physical condition. If the party examined refuses accordance with the claim of the party obtaining the order;
to deliver such report, the court on motion and notice may (b) An order refusing to allow the disobedient party to
make an order requiring delivery on such terms as are just, support or oppose designated claims or defenses or
and if a physician fails or refuses to make such a report the prohibiting him from introducing in evidence designated
court may exclude his testimony if offered at the trial. documents or things or items of testimony, or from
Sec. 4. Waiver of privilege. By requesting and obtaining a introducing evidence of physical or mental condition;
report of the examination so ordered or by taking the (c) An order striking out pleadings or parts thereof, or
deposition of the examiner, the party examined waives any staying further proceedings until the order is obeyed, or
privilege he may have in that action or any other involving dismissing the action or proceeding or any part thereof, or
the same controversy, regarding the testimony of every other rendering a judgment by default against the disobedient
person who has examined or may thereafter examine him in party; and
respect of the same mental or physical examination. (d) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or agent of
If A was examined upon motion filed by B and he asks for the
a party for disobeying any of such orders except an order to
findings from B, B may ask for the findings of A’s personal doctor
submit to a physical or mental examination.
previously made or after.
If A will not comply the court may order delivery and if the In addition to Sec. 1, the court can order:
physician does not comply his testimony shall be excluded a) That the matters regarding which the questions were asked
during trial. are deemed established
b) Refusing to allow disobedient arty from supporting or
Once a party asks for the report of the examination, he waives opposing claims or defenses.
doctor-client privilege. c) Striking out of the complaint (or other pleading) or part
thereof or staying further proceedings or rendering
RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY judgment of default++
d) Arrest of the party or his agent (except in an order to submit
Section 1. Refusal to answer. If a party or other deponent to a physical and mental examination).
refuses to answer any question upon oral examination, the
examination may be completed on other matters or ++exception to the GR that default only rendered against party
adjourned as the proponent of the question may prefer. The who fails to file an Answer.
proponent may thereafter apply to the proper court of the Sec. 4. Expenses on refusal to admit. If a party after being
place where the deposition is being taken, for an order to served with a request under Rule 26 to admit the
compel an answer. The same procedure may be availed of genuineness of any document or the truth of any matter of
when a party or a witness refuses to answer any fact, serves a sworn denial thereof and if the party requesting
interrogatory submitted under Rules 23 or 25. the admissions thereafter proves the genuineness of such
If the application is granted, the court shall require the document or the truth of any such matter of fact, he may
refusing party or deponent to answer the question or apply to the court for an order requiring the other party to
interrogatory and if it also finds that the refusal to answer pay him the reasonable expenses incurred in making such
was without substantial justification, it may require the proof, including attorney’s fees. Unless the court finds that
refusing party or deponent or the counsel advising the

17 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

there were good reasons for the denial or that admissions Sec. 3. Requisites of motion to postpone trial for absence of
sought were of no substantial importance, such order shall evidence. A motion to postpone a trial on the ground of
be issued. absence of evidence can be granted only upon affidavit
If X proves something that Y refused to admit, Y can be held showing the materiality or relevancy of such evidence, and
liable for expenses and attorney’s fees. that due diligence has been used to procure it. But if the
adverse party admits the facts to be given in evidence, even if
Sec. 5. Failure of party to attend or serve answers. If a party he objects or reserves the right to their admissibility, the
or an officer or managing agent of a party willfully fails to
trial shall not be postponed.
appear before the officer who is to take his deposition, after
being served with a proper notice, or fails to serve answers to Sec. 4. Requisites of motion to postpone trial for illness of
interrogatories submitted under Rule 25 after proper service party or counsel. A motion to postpone a trial on the ground
of such interrogatories, the court on motion and notice, may of illness of a party or counsel may be granted if it appears
strike out all or any part of any pleading of that party, or upon affidavit or sworn certification that the presence of
dismiss the action or proceeding or any part thereof, or enter such party or counsel at the trial is indispensable and that
a judgment by default against that party, and in its the character of his illness is such as to render his non-
discretion, order him to pay reasonable expenses incurred by attendance excusable.
the other, including attorney’s fees. GROUNDS FOR POSTPONEMENT
More or less the same as the previous consequences. a) absence of evidence
This section provides again an exception to the GR rule on the there must be a verified affidavit showing materiality or
rendering of a judgment in default. relevancy of the evidence not available and due diligence
This section applies only when the parties refuses to answer the to procure it
whole set of interrogatories and not just a particular question. *The adverse party may admit the evidence, reserving the right
If only a particular question, Sec. 3 (c) applies. to object to its admissibility – there will be no postponement.
b) sickness of a party/counsel
*the court is given the leeway of w.o.n. to apply the ultimate
there must be affidavit or sworn statement (medical
sanctions – discretionary – having in mind the paramount and
certificate and state that the presence of the witness or
overriding interest of justice.
counsel is indispensable and the character of the witness as
*the various modes of are intended to be CUMULATIVE – you
to render non-attendance excusable)
may use one or the other all at once or one at a time.
if sudden and unexpected sickness – med cert may follow
Sec. 6. Expenses against the Republic of the within reasonable time.
Philippines. Expenses and attorney’s fees are not to be
imposed upon the Republic of the Philippines under this Motions for Postponement are left to the sound discretion of the
Rule. court.
RULE 30 Sec. 5. Order of trial. Subject to the provisions of section 2 of
TRIAL Rule 31, and unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated in the
Section 1. Notice of trial. Upon entry of a case in the trial pre-trial order and shall proceed as follows:
calendar, the clerk shall notify the parties of the date of its (a) The plaintiff shall adduce evidence in support of his
trial in such manner as shall ensure his receipt of that notice complaint;
at least five (5) days before such date. (b) The defendant shall then adduce evidence in support of
his defense, counterclaim, cross-claim and third-party
The COC sends notices to the parties at least 5D before the date complaint;
of trial. (c) The third-party defendant, if any, shall adduce evidence
TRIAL – an examination before a competent tribunal of the facts of his defense, counterclaim, cross-claim and fourth-party
or law put in issue in a case, for the purpose of determining such complaint;
issue. (d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
INSTANCE WHEN CIVIL CASE MAY BE ADJUDICATED WITHOUT (e) The parties against whom any counterclaim or cross-
TRIAL claim has been pleaded, shall adduce evidence in support of
a) When the pleadings tender no issue at all their defense, in the order to be prescribed by the court;
b) Where from the pleadings/affidavits, other papers, there is (f) The parties may then respectively adduce rebutting
actually no genuine issue evidence only, unless the court, for good reasons and in the
c) Parties entered into a compromise agreement furtherance of justice, permits them to adduce evidence
d) Complaint was dismissed with prejudice upon their original case; and
e) When under Rules on Summary Procedure (g) Upon admission of the evidence, the case shall be deemed
f) When parties agree in writing upon the facts involved and submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any
submit the case for judgment on the facts agreed upon
further pleadings.
Sec. 2. Adjournments and postponements. A court may If several defendants or third-party defendants, and so
adjourn a trial from day to day, and to any stated time, as the forth, having separate defenses appear by different counsel,
expeditious and convenient transaction of business may the court shall determine the relative order of presentation
require, but shall have no power to adjourn a trial for a of their evidence.
longer period than one month for each adjournment, nor
more than three months in all, except when authorized in BASIC PATTERN OF TRIAL
writing by the Court Administrator, Supreme Court. 1. Plaintiff – Evidence-in-Chief Proving Cause of Action
2. Defendant – Evidence-In-Chief proving Defense
Trials are done in a staggered basis. Plaintiffs in Counter-claim, Cross Claim, 3rd party
Postponement cannot be for more than 1 month per complaint
postponement and there can be no more than 3 Defendant in Counter-claim, Cross Claim, 3rd party
postponements. complaint
The case must terminate in 90D EXCEPT when authorized by 3. Plaintiff – Rebuttal Evidence++
the court administrator. 4. Defendant – Sur-rebuttal Evidence++

18 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

5. Arguments of the Parties – via Memoranda++ GR: judge shall receive the evidence
The order may be “reversed” i.e. when the plaintiff alleges that a EXC: when delegated to the Clerk of Court (COC)
loan was incurred and unpaid and the defendant admits the in default or ex-parte hearings
loan and alleges payment – the defendant may be made to go in any case where the parties agree in writing
1st and prove payment – “there is nothing basically wrong with COC with no power to rule on objections.
an affirmative defense being heard ahead of the plaintiff,
especially when the plaintiff has nothing to prove anymore” RULE 31
Trial shall be limited to the issues in the pre-trial order (GR). CONSOLIDATION OR SEVERANCE
UNLESS modified by the court to prevent manifest injustice. Section 1. Consolidation. When actions involving a common
question of law or fact are pending before the court, it may
++GR: parties are not allowed to present evidence-in-chief
order a joint hearing or trial of any or all the matters in issue
during the presentation of rebuttal evidence
in the actions; it may order all the actions consolidated; and
EXC: for good reason and in the furtherance of justice it may make such orders concerning proceedings therein as
INSTANCES: newly discovered evidence may tend to avoid unnecessary costs or delay.
Evidence was admitted thru inadvertence
or mistake WHEN PROPER
Purpose is to correct evidence previously 1) WHEN 2 OR MORE ACTIONS INVOLVE THE SAME OR A
offered COMMON QUESTION OF LAW OR FACT
Additional evidence offered is material and Achieves the same effect as permissive joinder of parties.
not merely cumulative or impeaching i.e. when 30 passengers hurt in an accident sue the bus
++MEMORANDUM – practically a thesis where you will summarize company hiring 1 lawyer – permissive joinder of parties
your position and you argue why you should win; more than just when the 30 passengers sue with different lawyers and
stating the ultimate facts – you argue the facts, the law, interpret cases are pending before different salas of the same court –
the evidence and convince the court. lawyer for bus co. can move for consolidation.
2) THE SAID ACTIONS ARE PENDING BEFORE THE SAME COURT
Sec. 6. Agreed statement of facts. The parties to any action Remember that a court may be composed of a number of
may agree, in writing, upon the facts involved in the
salas presided by different judges (but still the same court
litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence. i.e. RTC of Cebu City).
If the parties agree only on some of the facts in issue, the trial *consolidation may be done even during appeal.
shall be held as to the disputed facts in such order as the *a civil action filed ahead and deemed suspended upon the
court shall prescribe. filing of the criminal action can be consolidated with the criminal
If the parties agree in writing the facts involved in the litigation case.
and they submit the case for decision – JUDGMENT BASED ON Sec. 2. Separate trials. The court, in furtherance of
STIPULATION OF FACTS. convenience or to avoid prejudice, may order a separate trial
Agreed statement of facts is conclusive upon the parties as well of any claim, cross-claim, counterclaim, or third-party
as on the court. complaint, or of any separate issue or of any number of
When there is agreement on some facts only – partial stipulation claims, cross-claims, counterclaims, third-party complaints
of facts is had and trial will only cover those not agreed upon. or issues.
Sec. 7. Statement of judge. During the hearing or trial of a There is only 1 case with several claims i.e. counter-claim, cross-
case any statement made by the judge with reference to the claim, and 3rd party complaints.
case, or to any of the parties, witnesses or counsel, shall be The court may order a separate hearing for these other claims.
made of record in the stenographic notes. RULE 32
Sec. 8. Suspension of actions. The suspension of actions shall TRIAL BY COMMISSIONER
be governed by the provisions of the Civil Code. Section 1. Reference by consent. By written consent of both
The trial can be suspended at any time when one of the parties parties, the court may order any or all of the issues in a case
would like to discuss a possible amicable settlement or to be referred to a commissioner to be agreed upon by the
compromise (Art. 2030, NCC). parties or to be appointed by the court. As used in these
If the parties cannot agree after the trial was suspended, do not Rules, the word "commissioner" includes a referee, an
dismiss – the action is continued. auditor and an examiner.
Resorted to when there is something to be tried which requires
MATTERS THAT CANNOT BE COMPROMISED:
some technical expertise.
a) Legal status
b) Validity of marriage or legal separation The parties must agree in writing to submit to trial by
c) Ground for legal separation commissioner.
d) Future support They shall agree on the commissioner to be appointed or the
e) Jurisdiction of court court shall appoint one.
f) Future Legitime Sec. 2. Reference ordered on motion. When the parties do
Sec. 9. Judge to receive evidence; delegation to clerk of not consent, the court may, upon the application of either or
court. The judge of the court where the case is pending shall of its own motion, direct a reference to a commissioner in
personally receive the evidence to be adduced by the parties. the following cases:
However, in default or ex parte hearings, and in any case (a) When the trial of an issue of fact requires the
where the parties agree in writing, the court may delegate the examination of a long account on either side, in which case
reception of evidence to its clerk of court who is a member of the commissioner may be directed to hear and report upon
the bar. The clerk of court shall have no power to rule on the whole issue or any specific question involved therein;
objections to any question or to the admission of exhibits, (b) When the taking of an account is necessary for the
which objections shall be resolved by the court upon information of the court before judgment, or for carrying a
submission of his report and the transcripts within ten (10) judgment or order into effect;
days from termination of the hearing.

19 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

(c) When a question of fact, other than upon the pleadings, commissioner to proceed with all reasonable diligence.
arises upon motion or otherwise, in any stage of a case, or Either party, on notice to the parties and commissioner, may
for carrying a judgment or order into effect. apply to the court for an order requiring the commissioner to
expedite the proceedings and to make his report.
WHEN THE PARTIES DO NOT MUTUALLY AGREE, ONE OF THE
PARTIES MAY MOVE FOR TRIAL BY COMMISSIONER GROUNDED Sec. 9. Report of commissioner. Upon the completion of the
ON: trial or hearing or proceeding before the commissioner, he
a) Examination of a long account shall file with the court his report in writing upon the
b) Taking of an account is necessary for court’s info before matters submitted to him by the order of reference. When
his powers are not specified or limited, he shall set forth his
judgment or effecting the same
findings of fact and conclusions of law in his report. He shall
c) When question of fact arises, other than the pleadings, in attach thereto all exhibits, affidavits, depositions, papers and
any stage or for effecting the order or judgment the transcript, if any, of the testimonial evidence presented
Examples: before him.
Partition under Rule 69 Sec. 10. Notice to parties of the filing of report. Upon the
Expropriation under Rule 67 filing of the report, the parties shall be notified by the clerk,
Sec. 3. Order of reference; powers of the and they shall be allowed ten (l0) days within which to
commissioner. When a reference is made, the clerk shall signify grounds of objections to the findings of the report, if
forthwith furnish the commissioner with a copy of the order they so desire. Objections to the report based upon grounds
of reference. The order may specify or limit the powers of the which were available to the parties during the proceedings
commissioner, and may direct him to report only upon before the commissioner, other than objections to the
particular issues, or to do or perform particular acts, or to findings and conclusions therein set forth, shall not be
receive and report evidence only, and may fix the date for considered by the court unless they were made before the
beginning and closing the hearings and for the filing of his commissioner.
report. Subject to the specifications and limitations stated in Sec. 11. Hearing upon report. Upon the expiration of the
the order, the commissioner has and shall exercise the period of ten (l0) days referred to in the preceding section,
power to regulate the proceedings in every hearing before the report shall be set for hearing, after which the court shall
him and to do all acts and take all measures necessary or issue an order adopting, modifying, or rejecting the report in
proper for the efficient performance of his duties under the whole or in part, or recommitting it with instructions, or
order. He may issue subpoenas and subpoenas duces tecum, requiring the parties to present further evidence before the
swear witnesses, and unless otherwise provided in the order commissioner or the court.
of reference, he may rule upon the admissibility of evidence.
Sec. 12. Stipulations as to findings. When the parties
The trial or hearing before him shall proceed in all respects
stipulate that a commissioner’s findings of fact shall be final,
as it would if held before the court.
only questions of law shall thereafter be considered.
The COMMISSIONER is in effect, an “ASSISTANT JUDGE”.
The court shall schedule the hearing of the commissioner’s
He is issued an ORDER OF REFERENCE which will specify or limit
report.
the powers of the commissioner, among others.
The court shall hear the objections raised by the parties, if any,
THE COMMISSIONER WILL HAVE THE AUTHORITY TO: and shall issue an order:
a) Issue subpoenas Adopting, modifying, rejecting the report in whole or in part
b) Swear Witnesses Recommitting it to the commissioner with instruction
c) Rule upon Admissibility of Evidence (Unless otherwise Requiring the parties to present further evidence
provided in the order of the court and subject to the final *objections available during the proceedings with the
approval of the court). commissioner and were not raised therein shall not be
Sec. 4. Oath of commissioner. Before entering upon his considered by the court (sort of a waiver/estoppel).
duties the commissioner shall be sworn to a faithful and
honest performance thereof. *the parties may agree that the findings of fact of the
Sec. 5. Proceedings before commissioner. Upon receipt of the commissioner is final and only questions of law may be
order of reference and unless otherwise provided therein, considered by the court.
the commissioner shall forthwith set a time and place for the Sec. 13. Compensation of commissioner. The court shall
first meeting of the parties or their counsel to be held within allow the commissioner such reasonable compensation as
ten (l0) days after the date of the order of reference and shall the circumstances of the case warrant, to be taxed as costs
notify the parties or their counsel. against the defeated party, or apportioned, as justice
Sec. 6. Failure of parties to appear before commissioner. If a requires.
party fails to appear at the time and place appointed, the Reasonable compensation to the commissioner shall be
commissioner may proceed ex parte or, in his discretion, charged to the defeated party or apportioned. (usually, it is 50-
adjourn the proceedings to a future day, giving notice to the 50).
absent party or his counsel of the adjournment.
WHEN A PARTY FAILS TO APPEAR: RULE 33
a) Commissioner may proceed ex-parte DEMURRER TO EVIDENCE
b) Adjourn the proceedings to a future day (giving notice to
parties) Section 1. Demurrer to evidence. After the plaintiff has
completed the presentation of his evidence, the defendant
Sec. 7. Refusal of witness. The refusal of a witness to obey a may move for dismissal on the ground that upon the facts
subpoena issued by the commissioner or to give evidence and the law the plaintiff has shown no right to relief. If his
before him, shall be deemed a contempt of the court which motion is denied, he shall have the right to present evidence.
appointed the commissioner. If the motion is granted but on appeal the order of dismissal
A WITNESS WHO REFUSES to comply will be reported to the court is reversed he shall be deemed to have waived the right to
and the court shall declare the witness in contempt. present evidence.
Sec. 8. Commissioner shall avoid delays. It is the duty of the

20 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

Demurrer – a motion to dismiss filed by the defendant after the


plaintiff had rested his case on the ground of insufficiency of
evidence.
Properly made during the trial, after plaintiff has completed
presentation of evidence wherein he fails to prove his cause
of action.
*To be distinguished from “no cause of action” under Rule
16 where the ground is solely the allegations in the
complaint.
EFFECTS
DENIAL GRANTING
Defendant shall have the right Case shall be dismissed.
to present his evidence. BUT, if on appeal the order is
reversed, the defendant loses
The court sets the date for the right to present evidence.
reception of the defendant’s
evidence in chief. The appellate court cannot
therefore remand the case to
Order denying demurrer is the trial court – it should render
interlocutory – cannot be judgment based on plaintiff’s
appealed from (but can be evidence.
subject of Certirorari).
DEMURRER: CIVIL ACTION DEMURRER: CRIMINAL ACTION
When denied, defendant will If demurrer is denied, he is
present his evidence to prove deemed to have waived his
his defense (he does not waive right to present evidence (if
his right to present). demurrer was w/out leave).
If granted and order is If demurrer is granted – no
appealed and reversed on more appeal (double
appeal – judgment is rendered jeopardy).
ifo the plaintiff.
No such thing as motu propio Court may dismiss motu propio
demurrer

*** *** end *** ***

If at first you don't succeed, try, try, again. Then quit.


There's no use in being a damn fool about it.
-- W.C. Fields

Enjoy!

21 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law
Civil procedure
Pre-Final Reviewer

APPENDIX 1

MODES OF DISCOVER: WHEN LEAVE OF COURT REQURED


DEPOSITIONS Pending Action, NO Answer Filed Yet REQUIRED
Pending Action, Answer Already NOT REQUIRED
Filed
Before Action/Pending Appeal REQUIRED
INTERROGATORIES No Answer Filed REQUIRED
Answer Already Filed NOT REQUIRED
REQUEST FOR NT REQUIRED
ADMISSION
PRODUCTION OF REQUIRED
DOCUMENTS OR THIGNS
PHYSICAL AND MENTAL REQUIRED
EXAMINATION OF
PERSONS

22 By: RJ MARTINEZ
II – LLB, EH 405, University of San Carlos – College of Law