eee y San Beda College of Law ih 2011 CENTRALIZED BAR OPERATIONS REMEDIAL LAW memory atic) Civil Procedure Special Civil Actions Special Proceedings Criminal Procedure Evidence Special Laws‘San Beda College of Lato 2011 CENTRALIZED BAR OPERATIONS ADMINISTRATION Dean Virgilio B. Jara Vice Dean Pablito A. Perez ADVISER Atty. Marciano G. Delson EXECUTIVE COMMITTEE EZEKIEL JOSHUA VILLENA overall chairperson MINISTER MOISES DU chairperson for academics DJOANIVIE JOMARE JUNASA chairperson for hotel operations MARIE MICAELA STA. ANA vice-chairperson for operations MIKHAIL MAVERICK TUMACDER vice-chairperson for secretariat JACKIE LOU LAMUG vice-chairperson for finance DIANA JEAN TUAZON vice-chairperson for edp JASSEN RALPH LEE vice-chairperson for logistics SUBJECT COMMITTEES LOURESSE PATRICIA JANE SORIASO political law HAROLD CHRISTIAN TALLEDO labor law and social legislation JESUS ERICK STA. BARBARA civil law JOSE ANGELITO ILANO taxation law SARAH JEANE CARDONA commercial law JO ANN MARIE CASIO criminal law RYAN MERCADER remedial law AUFELENE ANNE LAXAMANA legal ethics and practical exercises‘an Beda College of Law 2011 CENTRALIZED BAR OPERATIONS REMEDIAL LAW COMMITTEE SUBJECT CHAIR RYAN MERCADER ASSISTANT SUBJECT CHAIR MARIA DESIREE FEDERIO EDP IVA FREYRITZ ERICA CAYABAN SUBJECT HEADS JANNA MAE TECSON and KRISTINE TUPAZ civil procedure KAREN KRISTI LACAP special civil actions MYRTLE CALVAN special proceedings KIMBERLY JOY BARAOIDAN criminal procedure CRISALYN LUMANGLAS evidence c HANZEL SANTOS special laws MEMBERS Ethel Joy Arriola, Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan Daniel Galang, Erika Gallego, Nicole Rose Margaret Jamilla, Frances Dyan Lim, Jane Kathyrine Lim, Ali Lorraine Manrique, Roniel Munoz, Kevin Averell Pangan, Ramiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabaloc, Norliza Villanueva, Jose Angelo David, Kamilie Deanne Lagasca, Raynan Larosa ADVISERS Dean Virgilio B. Jara Vice Dean Pablito A. Perez Judge Selma P. Alaras Judge Wilhelmina Jorge-Wagan Atty. Plaridel J. Bohol, It— Pee YF San Beda College of Law ey 2011 CENTRALIZED BAR OPERATIONS TABLE OF CONTENTS Introduction... Jurisdiction. Civil Cases (MTC, RTO Civil Cases (CA, SC). Criminal Cases (MTC, RTC, Sandiganbayan). Criminal Cases (CA, SC). Shari‘ah Courts, Civil Procedure. Matrix on Provisional Reme: Special Civil Actions... Venue and Jurisdiction... Special Proceeding Rules on Guardianship of Minors. Rules on Domestic Adoption.. Inter-Country Adoption Rule on Custody of Minors and Writ of Habeas Corpus in Relation to the Custody of Minors... Rule on the Writ of Amparo. Rule on the Writ of Habeas Data. RA 9048 (Clerical Error Act).. Comparative Chart of Habeas Corpus, Writ of Amparo and Habeas Dat: Venue and Jurisdiction of Special Proceedings. Criminal Procedure. Evidence... Anti-Wiretapping Act. Rule on DNA Evidence. Rule on Examination of Child Witness. Witness Protection, Security and Benefit Act... E-Commerce Law... Rules on Electronic Evidence. 218 330 356 364 365‘San Beda College of Lao 2011 CENTRALIZED BAR OPERATIONS Special Laws Katarungang Pambarangay... 375 Rule of Procedure for Small Claims Cases. 378 Revised Rules on Summary Procedure. 381 Rules of Procedure for Environmental Cases. 385 Alternative Dispute Resolution Act of 2004. 390 Special Rules of Court on ADR... 398 Guidelines in the Conduct of Pre trial and Deposition Discovery Measures. 406 PHILIA Resolution No. 06-22 (Juris Project). 407 Re: Proposed Rule on Provisional Orders.. 409 Declaration of Absolute Nullity of Void Marriages and Annulment/Legal Separation... 410 Proposed Rule on Commitment of Children. 416 Rule on Juveniles in Conflict with the Law... 418 Judiciary Act of 1948, 422 Annex Annulment of Voidable Marriages. 424 Procedure for Declaration of Absolute Nullity of Void Marriages. ~ 425 Annulment of Voidable Mariages and d Lega Separation 426 Bibliography... a : 427 This is the intellectual property of the San Beda College of Law 2011 Centralized Bar Operations. Unauthorized use and reproduction of this material is prohibited.San Beda College of Lato 2011 CENTRALIZED BAR OPERATIONS INTRODUCTION Cy ae accurate because only jurisdiction over the Subject matter Is conferred by substantive Wsthat port ofthe | refers fo the low which creates, |legoloton providing law. Jurisdiction over the partes, issues efines 0° reans or methods and resis governed by procedural aw. regulates rights [whereby causes of Eoncemingite, | sedon ansy be REQUISITES FOR THE VALID EXERCISE ery or property or effectuate, wrongs OF JURISDICTION thepowersor ecressed and let agencies of 2biained faiso known 3. That it must have jursciction over the instoumentaiies for | as ADJECTIVE LAW). the administration of parsons of the parties. ube affairs a Temakes vested | ha NO vested Mahi en fight possible, Py ara This prospecivein | i'governa acts and ee Mls acquired other by optcation. transactions weil took eet aeeenee place (Revoactve). _ Complaint petition or | appearance n court Teannotbe enacted |The Supreme Court iniatory pleeding ‘and his submission to bythe Supreme expressly empowered its authorty, orby Coun. to promuigate service of summons oF procedural rues. not there has been grave abuse of A rrtageal ‘+ Jurisdiction over the subject matter is tnanng otto aa nrc a utc ones et ee Government (Section 1, Article Vill, 1987 Ht A i F8ysis conferred, by ta Constitution), voluntary, a The power of judicial review is the Suprema Court's POWER TO DECLARE a law, treaty, internationat or executive agreement. presidential decree, proclamation, order. instruction, ordinance, or regulation UNCONSTITUTIONAL, Jurisdiction (Latin: “juris” and “dio” | speak of the Jaw) is the power and authority of a court to try, hear, and decide a case and to cany its judgments into effect, + The statement that “Vurisdiation is erred by substantive Iav"is NOT FZEKIEL OSHA VALERA eral chotwersen, MINSTER MOISES. IP creme ‘liner tor ect INCE LOM LANG ss hls fo Sil stages of the 1 arabs, DONATE JORIARE JUNASA inmanen fo ocr MRAN MAVERKK TUMACDER vce ‘ne, HAAN BAW THAZON vice chaiperson fr edp ASSEN YAN MERCADTE subjut cho, RAIA DESIRE. FLIND ext slat sf MA YON HL ¢AYARA cp, JANA MA THesOW oat occ, KAREN HNSIE AAP 00 emaens: tel Joy ios, Glory uaee Arugay Mav Jos ys Rielle es am Danke Giang Eiko Gallago, Mote Rose Marge ita, Panis Dy Kevin Averell Pan. mln Ohanto, very Thang, Lew feskno Ry Viaevas ose Angee Dav, Karle se agit ayn Lama gr, Dana jd, ine Monique Rona! Moz, nd tor hab Sinan, Cada Taba, NolanREMEDIAL LAW INTRODUCTION proceedings before the trial court and invoked its authority by asking for an aifirmative relief (Solven vs, Fastforms, Ine. G.R. No. 139031, Oct 18, 2004) ‘+ _ Jurisdiction is governed by the law atthe time the action is COMMENCED, withheld from the plenary powers of the court. + LIMITED jurisdiction ~ Exercised over and extends only to particular or specified cases. As to NATURE of the Cause: ‘+ ORIGINAL jurisdiction — Exercised by ‘Couns in the first instance, + APPELLATE jurisdiction — Exercised 5. That it must have jurisdiction over the res by @ superior court to review and (thing or property tinder tigation). decide cases previously decided by a + tis acquired eitner by the seizure of lower court now elevated for judicial the property under legal process or as review. @ result of the institution of legal Proceedings, in which the power of the AS to Nature and Extent of EXERCISE: court Is recognized and made + EXCLUSIVE jurisdiction ~ Confined to effective, @ particular court to the exclusion of other courts. 6. That it must have jurisdiction over the + CONCURRENT — jurisdiction = Perisins fo the authority tohear and deode issues as raised in the pleadings or by their agreement in a pre-trial order or those tied by the implied consent of the panies, Eeaoebaes Rniceiat ‘Any act of tie court pursuantto such authority including the ‘decision an its consequences, ‘Where there is an exercise of jurisdiction In the absence cf jurisdiction, the court would be commiting an error of jurisdiction, Where on the other hand, the court acted Pertaining to different courts over the same subject matter at the same time and piace. When two or more courts have concurrent jurisdiction over a ‘case, the court which hes first validly acquired jurisdiction takes it to the exclusion of the others (also referred fo as confluent or coordinate jurisgiction) As to SITUS: + TERRITORIAL jurisdiction ~ Exercised within the limits of the place where the court is located, + EXTRA-TERRITORIAL jurisdiction — Exercised beyond the confines of the territory where the court is located. COURTS OF LAW vs. COURTS OF EQUITY A COURT OF LAW decides a case according to\what the promulgated law is while a COURT with jurisdiction but committed procedural errors or errors in the appreciation of the facts or of the law. the error would be a mete error of judgment, not of jvrisdietion [One where the court, often or quasijeczis! | somymitin te oo [body acts without or in \juriedetin. nodes excess ofjurisacton, or lerrare of proces or wth grave abuse of | misiakes'n the courts ___ fanatege Mrenders a dame” | Such an error does net vetloralestedave, [make te cots secon svar [Conte Cone CLASSIFICATION OF JURISDICTION 1. AS 10 GASES Trice! + GENERAL jurisdiction —San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Created by the Constitution, ‘Created by law. May be abolched by | ‘Cannel be abolished by Congress without | Congress by just ‘amending the simply repealing the Constitution, lew which croated those courts. ‘Ex The Court of Tax Appaals Ex The Supreme Cour SUPERIOR COURT Vs. INFERIOR COURT SUPERIOR COURTS refer to those courts which have the power of review or supervision ‘over another lower court while INFERIOR COURTS are those which, in relation to another are lower in rank and subject to review and supervision of the latter. COURTS OF RECORD : Those whose proceedings are enrolled and which are bound fo keep 2 written record of all. trials and proceedings handled by them. RA No. 6031 mandates all Municipal Trial Courts fo.be counts of record. POLICY OF JUDICIAL HIERARCHY This policy means that a higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, White itis true that the SC, CA, and the RTC have concurrent original jurisdiction to Issue writs of Certiorari, Prohibition and Mandamus, Such concurrence does not accord itigants unrestrained freedom of choice of the court to which the application for the writ may be itected. The application should be fled with the court of lower level unless the importance of the issue involved deserves the action of the court of higher level DOCTRINE OF JUDICIAL STABILITY OR NON INTERFERENCE General Rule: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to ass upon or scrutinize and much less deciare as unjust a judgment of another court [Inusirial Enterprises Inc. vs. CA, GR. No. 88550, April 18, 1990). Exception: The doctrine of judicial stability does not apply where a third party claimant is involved (Santos vs. Bayhon, GR. No, 88643. huly 23. 1991) DOCTRINE OF JURISDICTION (Also Known As Continuity of Jurisdiction) ‘Once jurisdiction has been acquired, the court ‘etaing it until the final termination of the case. ADHERENCE TO General’ Rule: Law enacted during the pendency of a case which transfers jurisdiction to another court does not affect cases prior to its enactment Exceptions: 1. When the new law EXPRESSLY PROVIDES for a retroactive application; 2. When the change of jurisdiction is ‘CURATIVE in character. EXCLUSIONARY PRINCIPLE ‘The court first acquiring jurisdiction excludes all others. DOCTRINE OF PRIMARY JURISDICTION Under this doctrine, courts will not resolve a controversy involving @ question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the spectat knowledge and experience of said tribunal in determining technical and intricate matters of fact (Villffor vs CA, GR:No, 95694, Oct. 8, 1997) DOCTRINE OF ANCILLARY JURISDICTION it Involves the inherent or implied powers of the court to determine issues incidental to the exercise ofits primary jurisdiction Under its ancillary jurisdiction, @ court may determine all questions relative to the matters brought before it, regulate the manner in which 2 trial shall be conducted, determine the hours at hich the witnesses and lawyers may be‘ORIGINAL, Noto: The adjusted usdictional ‘amount is based on Seo. Sof RA, 7691, this year boing the 25. year period ‘mentioned therein REMEDIAL LAW JURISDICTION 4. Actions invaling personal property, whose value does NOT exceed 300,000 or In Metro Manila the ‘amount does NOT exceed P400,000; | 2. 2. Demand for money NOT exceeding 'P300,000 or in Metro Manila NOT ‘exceeding P-400,000, Note: Exclusive of Jnterest, damages cof whatever kind, attomey’s foes, ‘Migation expenses, and costs DALEC), the amount of which must be specifically alleged but the fling fees | 4 ‘heroon shall be paid, + The exclusion of the term “damages of whatever kind” applies to cases where the | 5. damages are merely incidental to ‘or 8 consequence of the main ‘cause of action. However. in cases where the claim for damages Is ‘the main cause of action, oF one of the causes of action, the amount cof such claim shall be considered in determining the Jurisietion of | the cour 3 Probate proceadings (testate of intestete) where the gross value ofthe | ‘estate does NOT exceed P300,000 or | In Metro Manila the value does NOT exceed P400,000; | 4. Actions involving title to or possession | ofreal property. or anyintrest eran | winore the aaeesed vate oF rest theron deca NOT excaou Poa 00 or | intro tenia, does NOT exceed” | Psd a00: 5 Inclusion and exclusion of voters (BE. 883, Soc 126) ‘Admirally and maritime cases where demand or claim does NOT exceed P200,000 ot in Metro Manila, does NOT exosed P400.000 ‘Those covered by the Rules on Procedures 8 Forcible Entry and Uniawtut Betainer (FEUD) | | + wath jrsesition to resove issue of ‘ownership to determine ONLY the Issue of possession, + Inespective of the amount of ‘damages or unpaid rentals Sought lobe recovered Where stiomeystoosae | ENO ary ‘The action is incapable of pecuniary estimation; Tite to or possession of real property or any interest therein, the assessed value EXCEEDS P20,000 or EXCEEDS. 50,000 in Metto Monit ‘Admiralty and mertime cases where ‘demand or claim EXCEEDS P'300,000 or EXCEEDS F400,000 in eto. Mania Matters et Probate (testate & intestate) where gross value of the estate EXCEEDS P300,000 or EXCEEDS 400,600 in Metro Mania: All actions involving the contract of ‘mariage and family reltions (See RA, 18369 amending BP. 122) Family Courts now have exclusive orignal juriseiction over: 8.” Petitions for guardianship, custody of children, habeas corpus in elation to the later (but the SC and the CA have net been | oprived of their original jurisdiction): b. Petitions for adoption of chitdren ‘and the revocation tnereof .&. Complaints for annulment and Geciaration of nulity of mariage, matter rotating to marital status ‘anc property relations of husband and ‘wife oF those iwing togather Under diferent status ot sgreament, and petitions for issolution of conjugal partnership of gains ro >eieorrenesecen et Trelating to-pac ee [elhegencos aad ee Lee al carat SEBS PRs Dake > Bees CN 4 rina a: ap ca — ang “Egan Rbibesieraiaep sare | Beers Tany | Caitmauiesysereanig | order apatnetttiggccused orSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Deena {INFERIOR COURTS) eae ‘awarded, the samme shall NOT ‘exceed F20,000, b. Other civil cases, except probate proceedings, where the total Smount of the plaintf’s claim does, NOT exceed 100,000 oF does NOT exceed 200/000 in Metro Manila, exclusive of interests and costs (as amended by AM. No 02-17-09-SC, effective Noverber 25, 2002), Cea roe) defendant upon verified application by the complainant oF the victim for relief from abuse; 'b, The court may order the temporary cusiody of chikren in all ivi actions for their custody, support pendent it, including deduction from the salary, and use of conjugal home and other properties inal evil actions for ‘support 6. Cases NOT win the exclusive jurisaiction of any court, tnbunal ‘person or body exercising judi ‘Qua8i-uallal functions (general jurisdiction of RTC), 7. Cull actions and special proceedings faling within the exciusive orginal jurisdietion of Juvenile anc Domestic Relations Court and of Court af ‘Agrarian Relations 2s now provides by law 2, fil other cages where demend EXCLUSIVE of IDALEC oF the value of ‘the propery in contioversy EXCEEDS 'P00,000 or EXCEEDS P400,000 in Metro Manila; ® Under Sec. 6.2 ofthe Securtios and Regulations Code hear and decide {2 Cases involving devices oF schemes employed by or any acts fof the board of directors, business associates, its officers oF | pannership, amounting to fraud ‘ane misrepresentation which may ‘be detrimental to the intarest of the public andor of the siccknoiders, rtners members af associations eeestoarieaton aieseovns —— Conirovesieg ang ott eg conser oF parhetenip relat Gomirversies inte eletene soranimentah ee gor estporstors seeocialons Petitons of corporations ships of aoe Ueialedp the state of susgeeion ‘of vines ih Cae wnerg he aie i | 2, progety as covey ts bs but EE rrecesoag Niggeer ten matt tah ue Geldnares wnoweigeeenny nas ‘ho eumevenansett Eover is Tijer bute Unger theREMEDIAL LAW JURISDICTION civ CASES Care Te ee ize telgosttia eae ‘management of a Rehabilitation Receiver or Management Commies, CONCURRENT | Win RTC — NONE With SC — Actions affecting ambassadors, | Public ministers and consuls. | With $C, CA and Sandiganbayan — Issuance of writs of cetioran, prohibition, mandamus, habeas corpus, quo warranto, injunction agsinst lower courts, With SC, CA and Sanaiganbayan — issuance of writ of amparo and habeas data With MTC, ete. ~ NONE. With insurance Commissiones ~ Claims. NOT exceeding P 100,000, DELEGATED | ‘May be assigned by the SC to hear ‘cadastal or land registration cases where there Is no controversy aver the land or in| case of contested fands, the value does NOT exceed 100,000 I SPECIAL | Petition for Habeas Corpus OR application | SC ray designate certain branches of RTC ‘APPELLATE Cay EXCLUSIVE ORIGINAL CONCURRENT Note: While the Rules provide for jmisdiction ainong the RTC, OA, net SC, the’ same. is lif subject 10 the principte of HIERARCHY OF COURTS, sg cece | With Court of Appeals (Ca) for bail n criminal cases in the absence of all RTC judges in ne province or city, Prasat Cee ere ry Petitions tor certioran, prehitition or mandamus against 3. CA b COMELEC, = Goa; 4 Sanciganbayan, 8 Petitions for certiorari, prohibition or mandamus (CPR against RTC. hhabeas corpus, qin warraeo, b Petions for eeriorar. prohbation of mmaniamis against the ML to try exctusively criminal cases, juvente fond ‘domestic relations Gases, agrarian 2886, urban land reform cases not faling wslin the Jurisdiction of any quastjuciial body and other spectal cases in the interest of ust Al! cases decides by the lower courts mh ‘Mel’ respective territorial jriegition except decisions of ‘ower courts m tho exorcise of dolegatad juriscltion, Coo ameg eaeSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Aan roe a Sega cies pursuant to Sec 4 OF Rule 65, With GA, the Sandiganbayan and RTC With CA, the Sanaiganbayan and RTC ‘3. Petitions for issuance of Writ of ‘© Petitions forissuance of Wit of “Amparo: ‘Amparo: Petitions for Habeas Data, where 4d. Petitions for Habeas Data, where {ne action involves public data or the action involves publie data or ‘government office. government office With the CA,, RTC and Sandiganbayan (With CA only unless otherwise provided by ‘a. Potiions for certiorar, prontstion or | Iaw ‘mandamus against inferior courts 2. Petitions for certiorari, prohibition ‘and other bodies; or mandamus égainst quasi- 'b.Petitons for habeas corpus end quo Judicial agencies (Ike CSC, C8AA, warranto, CTA, etes) (Amendments (> Rule 65, AM. No. 07-7-12-8C) with RTC ‘Actions against ambaesadore, her public | With the SC, RTC and Sandiganbayan ‘ministers and eoncule ‘2. Pettions fo certorar, prohibition or mandamus against inferior courts and other bodies: and b. Petitlone for habeae corpus and U0 warranto, APPELLATE | Review, revise, reverse, modify, oratfim on | Exclusive Appeliate jurisdiction over all appeal ar cerorar the following: final judgments, decisions, resolutions, 2. Allcases in which the Cconstitutonaity or vatty of any teealy, international o executive agreement, law, presidential decree, prostamation, order, Instruction, frdinance or regulation is in question; ‘Al 03588 Involving the legality of any tax. impact, essessment, or tll, or ‘any ponalty imposed in relation thoreto; Al cases in which the juridiction of ‘any lower courtis in esue; ‘Alleriminal cases in ii the penalty imposed is rectusion erpetva oF higher, All cases in which only an error or ‘evestion of law is involved orders or awards of RTC and quasiusiclal agencies except those faling within the appellate urisetion of the Supreme Coun in accordance wih the Consituton, Labor Code, BP. 129 and of subparagraph 1 af tne 3% paragraph ‘ate subperagraph 4 of °F the 2" paragraph of section 17. of the Judiciary Act of 1948. ‘ORIGINAL ‘EXCLUSIVE, Offenses punishable with imprisoament NoT exezesing 80 (6) years | which exces irrespective of the | years impr amount of fine, and | and regardless of other imposable accessory oF ogee on ‘soriont ane. a oot RRA yo ei on coer 2, dagen 2 | firespecive of kind, | under the exclush ws saeREMEDIAL LAW JURISDICTION Ce SUA ors ‘hereof, Sendiganbayan ©. Otter oftesos or felonies whethor 2 Offenses involing | Note: In cases where the Simple or comploxed Damage “T0 | only penalty 8 fine, the wrth other etmes, PROPERTY through | amount thereof sal | 2. The tender carsnatng ‘iminal negigence determine utsciston, it | thovoflonse ime s So, the amount EXCEED | andeele a pubic ofeal Note: In cases where he only | P4009." RTS nave | Seccpyinga mois fenaly is fie, the emourt | jufscition (adnr Cro | Sanatfadon “Seas rade thereof Shall” determine | 94) 27 and higher Jurscteton. fie amount does 3. The offense was NOT exceed P4000, TCs commited in relation to have jurssion (Adm: Cir 09. oie. 24) eCHEEEEHE i & Those covered by he | Farily Coun Criinat’ | Chand crminal Gasca Bed | Res on Summary cases nhere Dutsuant 10. an in connection Provesire: 2 Oneerrmore ofthe | with Executive Orser Now fe a" Violations of rate accused isfre brow | 14) and 140 (fled by PEGG) fawo, roles ond igneen (18) years reoultions toge but rot eae ». Visions ofthe than rine () yeas of rental aoe. oF @. Vilations of b_Wihare ons ofthe municipal or ity vicina minor srdinanees the te ofthe a. Violatons ct BP 22, | commassion of ne ctherwise own as | oftonse Bouncing Checks «Capes against mnors Law (Al. ie 09-11- |" Sogneabie uaer ine 07°50, etecve Apri | Bangerowe Org Act 18, 2003), 4. Vilations of RA e. Al other oiina |” Zora othenmse cases where the | frown athe penaly ‘S| "Sper Brovecn of imprscrment not | Cntren Agomnet | Sroveding 5 montne | Smid abace ! andor P 7.000 tre | Exploitation and irospecive of other | Belsminaan Aer Benalies or owl | smenaeay Ba fepities wnsing | 7650" ana theteflom and in | © Cabos ef domestic tienes’ imWving |” wolonce sgenat damage to property | Women and ition theough Samal nepligence wera the 7 Impossbie fino rot xeeding P40.000, over tise pel i we 7 | excittive otneSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Ce oi Pe OTN Z Cos "APPELLATE, ‘AI cases decided by the | Appeals from the fin MTC in their reepactive terttrial jurisdiction, judgments, — resolutions orders of regular courts where all the accused are oncupying positions lower thon salary Grade 27 or not otherwise covered by the precéding enumeration eet eemaa EXCLUSIVE | Patifion for cactiorad, prohibition and | Actions for annulment of judgment of the ORIGINAL | mandamus against Court of Appeals and | Regional Trial Courts | Sansiganbayan, ames of Terrorism under Human Security Act of 2007. ‘CONCURRENT | Wih tha” GA paltions for caviorar, | With the SC: peltions {or cerliorar, prohibition prohibition and mandamus against the | ans mandamus against the RTC's RIC ‘With the GA and RTC: petitions for With the SC and RTO: petitions for ceriora centorai, prohiption and mandamus pranbiiion ana mandamus against the MC's. against the MTC's, ‘APPELLATE | By petition for review on Gertorart By Notice of Appeal > From the cA: From the RTC in the exerdise of its original |< From the Senciganhayan; Jurisdiction, except those eppeatabie to the From the RTC wnore only an error | Senciganbeyan, (or question ofl is involved From the RTC where penalty imposed is Note: In People vs. Meteo, G.R Nes, | ractsion pempetua ‘or fe imprisonment of T47678-87, sluly 7. 2004 the Supreme | where a lesser penaky iS imposed but for Court held that while the Fundamental Law | ffatses commited on the same occasion of requires @ mandatory fever by ihe | whith arose out of the Same pecurrence that | Subceme Gourt of cases were the penalty | gave rise to the more eerous offense fr which | imposed is. rectusion perpalue, Ife | the penalty of death, raciusion perpetua, or ie imprisonment, or death, nowhere, however, | imprearment ie imposed (Section 3 Flo 122 has it proscribed an intermediate review. Hi | 38 amended by AM. No 00-8-09-SC). nly Io ensure. utmost ecumspesion | Before the peneky of death. reclesion | BY automatic review (ie. no notice of appeals | perpetua or fe imprisonment is imposes. | Necessary | the Court now “deems. wise and | From the RTC, in cases wherein the death | compeliig, to provide in these cases. | Penal lsimposed | | | twa by the Gout of Apulstwore tho | ose is elevated to the Supreme Court | By pttion fogs bilor determination by the Cour of Appeals “afirom the REGuiniciacs ss fon, particularly, the factual Issues, woukt [ower uaa ee ol | mininige. the” possi of an enor of | Serdkentayen.s= claim against the latter SECTION 4. ANSWER TO A COMPLAINT: INCINTERVENTION Within 18 days ftom notice of the omer sdmitting the same Remedies for the Denial of Intervention: 1. APPEAL: or 2. MANDAMUS, if there Is grave abuse of discretion. + If there is improper granting of intervention, the remedy of the party is certiorari as eae ‘SECTION 1. CALENDAR OF CASES Preference shall be given 1. Habeas corpus cases; 2. Election cases; 3. . Special civil actions; and 4, Those so required by law. SECTION 2. ASSIGNMENT OF CASES Note: Assignment of cases Is required to be done exclusively by raffle. ie ‘An order to appear a pri ‘and testy or 0 complaint produce Books and | socumants May be servedios | Served onthe on-party Sefendant. | ‘Needs tender of ‘Does not need tender ketometrage, | ortelometrage ond aitercance fee and | other fees, reascnabie cost of rodsction fae SECTION 1. SUBPOENA AND SUBPOENA DUCES Tes “aifésled to a fing him an Ho: testity:athechearings arsthe 8160, oF af any investigatgaseon cattptent culhoriy gh epastion : subpoena 3 Peprocess cite {Ring wih hin tie RAGE under tis Bont 1 ee SECTION 2. BY. WHOM ISSUED: Who May tesue: 2 1 Court befor whom the witness is required to attend: siREMEDIAL LAW CIVIL PROCEDURE 2. Court of the place where the deposition’is tobe taken; 3. Officer or body authorized by law to do so in connection with investigations. conducted by said officer or body: or 4. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. ‘Subpoena to a Prisoner It must be for a valid purpose. If prisoner Tequired to appear in court is sentenced to death, reclusion perpetua or life imprisonment ‘and is confined in prison ~ must be authorized by the Sc. ‘SECTION 3. FORM AND CONTENTS ‘A subpoena: 1. Shall state the name of the court and the tite of the action or investigation; 2. It shall be directed to the person whose attendance is required; and 3. In the case of a subpoena duces tecum, it shall contain ‘a reasonable description of the books, documents or things demanded which must appear to the court to be prima facie relevant. ‘SECTION 4. QUASHING A SUBPOENA ‘A, Subpoena Duces Tecum may be quashed upon: (MPura) 4. Motion promptly made: AND 2. Proof that: 2 Itis unreasonable and oppressive; b. The articles sought to be Produced do nol appear prima facie to be relevant to the issues, © The person asking for the subpoena does not advance the cost for the production of the articles desired B. Subpoena Ad Testificandum may de gusshed if the wines is not bound thereby. in BITHER CASE, the subpoena may be uashed for failure to tender the witness fees and kilometrage allowed by the Rules, SECTION 5, DEPOSiTIONS SUBPOENA FOR SECTION 6. SERVICE Service of subpoena shall be made in the same manner.as personal or substituted service of summons. 4. The original shail be exhibited and a copy thereof be delivered to the person on whom it is served; 2. Tendering to him the fees for one day's attendance or kilometrage allowed by the Rules; except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made: 3. The service must be made so as to allow the witess a reasonable time for preparation and travel to the place of attendance; and 4. If the subpoena is duces tecum, the reasonable cost of producing the books, documents, or things demanded shall also be tendered, ‘SECTION 7. PERSONAL APPEARANCE IN court General Rule: 1. The court which issued the subpoena may issue a WARRANT FOR THE ARREST OF THE WITNESS and make him pay the ‘ost of such warrant and seizure, if the court should determine that his disobedience was wilful AND without just cause(Sec. 8), 2 The refusal to obey a subpoena without Sdequate cause shall be deemed CONTEMPT of the court issuing it (Sec, 9) SECTION 10. EXCEPTIONS competing of gt (Sec. 9) do Provisions: regarding the 'gBOT appl one Behe Was 891 July 21, 187San Reba College of Lat 2011 CENTRALIZED BAR OPERATIONS Eun nesa SECTION 1. HOW TO COMPUTE TIME ‘SECTION 2. EFFECT OF INTERRUPTION * Any extension of time fo file the required Pleading should be counted from the expiration of the period regardless of the fact that the said due date is a Saturday, Sunday, or legal holiday (A.M. No. 00-2- 14-SC, 'as explained in Luz vs. National Amnesty Commission, G.R. No. 1597028, Sept. 24, 2004). RULES OF DISCOVERY Discovery is a device employed by a party to obtain information about relevant matters on the case from the adverse party in the reparation for trial (Riano, 2007, p. 310) Purpose: To enable thé parties to obtain the fullest possible knowledge of the Issues and evidence long before the trial to prevent such trial from being carried on in the dark Modes of Discovery under the Rules of Court (D-DIAPP) \ 1, Depositions pending action (Rule 23); | 2 Bepositions ‘before action or pending appeal (Rule 24), \ Interrogetories to parties (Rule 25); Admission by adverse party (Rulo 26); Brocucton or inspection of Gocuments, or things (Rule 27); and Physical and mental persons (Rule 28). examination of + Modes of Discovery are intended to be CUMULATIVE, and not alternative nor mutually exclusive, Note: Discovery is NOT MANDATORY but failure 10 av and 26. carries sanctions in Rules 25 SaeIencc Deposition is 2 written testimony of 2 witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination of in response to. written interrogatories and where an opportunity if aglven, fer cross-examination, + Depositions are aifferent from affidavits since the latter are ex parte statements without formal interrogation and ‘opportunity for __cross-examination, Affidavits are NOT admissible in evidence except in cases governed by the Rule on ‘Summary Procedure or in ordinary cases Subject to cross-examination, Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit! proceeding Classification of Depositions 1. Depositions on oral examination and Depositions upon written interrogatories, 2. Depositions de bene esse - Those taken {er purposes of a pending action (Rule 23); and 3. Depositions in perpetuam rei memoriam — Those taken to perpetuate evidence for purposes of an anticipated action or further proceedings in @ case on appeal (Rule 24). SECTION 1. DEPOSITION PENDING ACTION, WHEN MAY BE TAKEN When Taken: A. With Leave of Court 4. After jurisdiction has been obtained over any defendant or over the property which Is the subject of the action but BEFORE an answer has been filed. Ratio: Leave of court is necessary because the issues are not yet joined and the disputed facts are not yet clear. Se * "B.cwitnout Leave etgourt "BETES. answer AND separ npisons 2 Sthh dnawdpax i diberout of cabundant ieabiiontisairtgsBe onkine safe fide) does not migkomneRewerles of an answer. Thus, when" fangwer ex abudarl Bupteln. js-Nleg, Sebostion may be. made MAITHEUT “jeaye: “of court iRoselte, vs. Lim GR. No. (136051, June 5, 2006) Be NeREMEDIAL LAW CIVIL PROCEDURE SECTION 2. SCOPE OF EXAMINATION ‘Scope of Examination in Depositions 1, Matter which is relevant fo tne subject of the pending action; ' 2. Not privileged; and 3. Not restricted by a protective order (Sections 16 and 18). SECTION 3. EXAMINATION AND CROSS- EXAMINATION SECTION 4. USE OF DEPOSITIONS Where the witness is available to testify and the situation is not ona of those excepted under Section 4, his deposition is inadmissible in evidence and he should be made to testify ‘Any parson. By any party for ‘contradicting o impeaching the ‘estimony of deponent | Sev | i | 2 parly or any one ‘who af the time ofthe deposition wes an OFFICER, DIRECTOR, or MANAGING AGENT Of a public oF private. | ‘orp. partnership, or associaton waich is & By an adverse party for ary purpose j pany eet Wiiness, whether or | By anv party for any [nota panty. Purpose ifthe court — | finds the $ instances | eee occurring : ‘+ Depositions can be used as evidence by a Party (‘for any purpose") under the specific onditions in Section 4 Five Instances Where Deposition of any Witness may be Used for any Purpose (OR Use) 4, The witness is dead; 2. The witness ‘tesides more than 100 Kilometers from the place of ‘tial or hearing, or is out of the Philippines. Unless it appears that his absence was procured by the party offering the deposition: 3, The witness is unable to testify because of 350. sickness, infirmity, or imprisonment 4. The party offering the deposition has been linable to procure the attendance of the witness by subpoena; OR 5. Upon application and notice, that such exceptional circumstances exist as to ‘Make it desirable in the interest of justice, Note: Certiorari will not lie against an order admitting oF rejecting a deposition in evidence. The remedy is an appeal from the final judgment, Ratio: Because it is merely an error of law not grave abuse of discretion, SECTION 5. EFFECT OF SUBSTITUTION OF PARTIES SECTION 6. OBJECTIONS TO ADMISSIBILITY SECTION 7. TAKING DEPOSITIONS EFFECT OF A party shail not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for iscovery and not for use as evidence. Exception: If a party offers the deposition in evidence. then he is deemed to have made the deponert his witness (Sec.8) Excoption to the exception: UNLESS tne ‘deposition is that of an opposing party OR the: deposition is used to impeach or contradict the deponent (Sec. 8) SECTION 9. REBUTTING DEPOSITION SECTION 10 AND 11. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN. Within the Philippines: 4. - Judge: ‘5 Bees, petsor.s authored. z isoed oy the’ Bares inSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTION 12, COMMISSION OR LETTERS ROGATORY Commission is an instrument Issued by 2 court of justice, or other competent tribunal, 10 authorize a person to take depositions or do any other act by authority of such court or ‘vibunel, Letters Rogatory is an instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a case Pending before the former, a witness who is within the jurisdiction of the judge or court 10 whom such letters are addressed (Feria, 2001, Pp. 518) Issued to a non-jdicial foreign officer wine wil directly take the. testimony Lotiors Rogatory Issued to the ‘appropriate judicial offcerof the foreign Country wico wil direct somebody in said foreign country to take down testimony. ‘Applicable rules of procedure are those of {he foreign court requested to act, Resorted to the ‘execution ofthe ‘commission is refused ‘Appkosble wulos of [procedure are these of {he requesting court Resored to? Permission of the foreign country is aiven inthe foreign county. Leave ofcourtisnot | Leave af court i= necessary, necessary. - SECTION 13. DISQUALIFICATION BY INTEREST NO depostion shal be taken beore = person wes 1, A relative within the 6" degree of affinity or consanguinity 2 An employee ar counsel of any of the fee 3. Retaive ithin| the same deoree, of eimpioyec of such course aed 4. Fano terested iso aston SECTION 14. STIPULATIONS REGARDING TAKING OF DEPOSITONS SECTION 15. DEPOSITION UPON ORAL EXAMINATION: NOTICE; TIME AND PLACE SECTION 16 ORDERS FOR THE PROTECTION OF PARTIES AND DEPONENTS SECTION 17. RECORD OF EXAMINATION; OATH; OBJECTIONS: SECTION 18. MOTION TO TERMINATE OR LIMIT EXAMINATION May be Filed: ‘Any time during the taking of the deposition; 2. On motion’ or petition of any party or of the deponent; and 3. Upon showing that the examination is ‘conducted in: a. Bad faith; b. In such manner as unreasonably to annoy, embarrass, or oppress the deponent or party. ‘© When the constitutional privilege against self-incrimination is invoked by deponent or his counsel, the trial court may stop the: examination (Isabela Sugar Co. vs. Macadaeg, GR. No, L-5924, Oct. 28, 1953) etc oer eck Provides such protection during the taking of Gapostion, ote eas Provides protecton to tre pany br wines Beto he ching ot epost oti led withthe couric the acon | spending ‘Motion or pebion is fled inthe court in which the | action fs pending OR the | RTC of the place where the depositions SECTION 19. SUBMISSION TO WITNESS; CHANGES; SIGNING ania % oa BY. OFFI seétions bo é 24 OF PARTY GIVING: iy The court may ander theiparty giving the notice fo pay. suchlcottier party thes amount of reasonable expens eouneel in, 89, attorney's fees ssREMEDIAL LAW CIVIL PROCEDURE SECTION 25. DEPOSITION UPON WRITTEN INTERROGATORIES; SERVICE OF NOTICE AND OF INTERROGATORIES SECTION 26. OFFICERS TO TAKE AND PREPARE RECORD SECTION 27. NOTICE OF FILING AND FURNISHING OF COPIES SECTION .28. ORDERS FOR THE PROTECTION OF PARTIES AND. DEPONENTS, SECTION 29. EFFECT OF ERROR AND IRREGULARITIES IN DEPOSITIONS. As to notice ~ Waived unless writen objection is promptly served upon the patty giving the notice, 2..As to disqualification of officer — Waived unless made before the taking oF the deposition begins or as soon thereafter as the disqualification becomes known 3. As to competency and relevancy of evidence — NOT waived by fallure to make them before or during the taking of the deposition unless the ground of the ‘objection is one which might have been obviated or removed if presented at that time, 4. As to oral examination ~ Waived unless Feasonable objections thereto is made at the taking of the deposition As to form of written interrogatories — Waived unless served in writing upan the Party prepounding them within the time allowed 6 As to manner of preparation ~ Waived unless 2 motion to suppress the deposition or some part thereof le made with Feasonable promptness afier such defect is, or with due diligence might have been, ascertained, = A. deposition before action and a deposition pending appeal'are referred to aS perpetuation of tostimony oF peipeliam £0! memorisin because their objective Is 10 Perpetuate the testimony of a witness for future use + Depositions under this Rule are also taken conditionally, to be used at the tial city in case the deponent is not availasis 56 ‘+ Depositons under this Rule do not prove the existence of any right and the testimony perpetuated is not in aself conclusive proof, either of the existence of any right or even of the facts to which they telate, as it can be controverted at the tial jn the same manner as though no perpetuation of testimony was ever had. However, in the absence of any objection to its taking, and even if the deponent aid not testify at the hearing, the perpetuated testimony Constitutes prima facie proof of facts referred to in the deposition SECTION 1. DEPOSITION BEFORE ACTION; PETITION A petition may be filed by any person: 1. Who wants to perpetuate his own testimony; or 2. Who wants to perpetuate the testimony of another person. Note: This may be availed of ONLY in civil ‘eases and NOT in criminal cases. For example, the petitioner has @ cause of action which has not yet accrued. In such a case, inasmuch as he cannot bring the action until the cause of action accrues, he may Perpetuate his testimony or that of another person (Feria, 2001, p, 534). SECTION 2. CONTENTS OF PETITION ‘The petition shall be veritied and shall be fled in the place of residence of any expected adverse party. It shall contain the matters set forth in Sec. 2 of Rule 24. SECTION 3. NOTICE AND SERVICE fhotice yron Hon cored TaNicon ois pected adivsloe pany topetherSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTION 6. USE OF DEPOSITION !t deposition is taken under this Rule, it may be used in_any action involving the SAME ‘SUBJECT MATTER subsequently brought. SECTION 7. APPEAL DEPOSITIONS PENDING Depositions are taken pending appeal with the view to their being used in the event of further proceedings in the COURT OF ORIGIN or APPELLATE COURT. For example, a party may perpetuate the testimony of a witness which was objected by the adverse party aitd ruled out by the coun. If the appeliate ‘court should reverse the decision/order of the lower court, it could admit the deposition as ADDITIONAL EVIDENCE or remand the case back to the lower court for such ADMISSION in accordance with Sections 4 and 5 of Rule 23 (Feria 2001, p. 537), ST Anaaalihe ae Purpose of Written interrogatories: To elicit facts from any adverse party (anawers may also be used as admissions of the adverse party) ‘+ Written interrogatories and the answers thereto must both be FILED and SERVED. Hence. the answers may constitute a3 JUDICIAL ADMISSIONS (Seo. 4 Rule 129), Ea ‘A party may properly Seek disclosure only of matters which define the issues and become 2 part ofthe pleadings, ees | A party may propery seek claclasure of | meters of proctwmich may later made 2 Ban ofthe records os visence Deer ore occa) ie ns Party or ordinary [mtingss. With intervention or the officer authorized by the court ie take [sepositon No intervention: Witten intorogatories are drecied othe | party himeelt. | As to Scope Direct, cross, redirect, Only one set of ro-cross, interrogatories. Eee No fixed tine, 15 days to answer Unless extensed or reduced by the cour. SECTION 4. INTERROGATION TO. PARTIES; SERVICE THEREOF A party may serve written interrogatories: 1. Without Leave of Court ~ After answer has been served, for the first set of interrogatories. 2. With Leave of Court — Before answer has been served Reason: At that time, the issues are not yet joined and the disputed facts are not yet clear. SECTION 2, ANSWER TO INTERROGATORIES ‘The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them + Answers cannot. be made by an agent or atiomey; answers not made by the parties are nullties (Herrera vol 2 p. 44) +A judgment by default may be rendered against a party who fails to answer written interrogatories, SECTION er NS Ess TERR Sher = Sar Bee cor Spctins 18 hy HPoroves } ret folafe eur Santi seiuiee tnereop witty aa jy eee resal ne cartes! oe. ee ascton a or oe ae ee ony thie leggy te same party is allowed © of count is 7REMEDIALLAW CIVIL PROCEDURE necessary for sets of interrogatories, succeeding SECTION 5. SCOPE AND USE OF INTERROGATORIES ‘The SCOPE of interrogatories shall be the matters mentioned in Sec. 2 Rule 29. The answers may be USED for the same purpose Provided in Sec. 4 of the some Rule. * Since answers to interrogatories may be used “for the same purposes” as depositions, they may also be the basis of a.summary judginent under Rule 35 SECTION 6. EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES. Uniess a party had been served writen interrogatories, he may not be compelled by the adverse party 1. To give testimony in open court or 2. Give a deposition pending appeal The only EXCEPTION ie when the court allows it for GOOD CAUSE shown and to Prevent a faifure of justice Note: The sanction adopted by the Rules is not one of compulsion in the sense that the Party is being compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him, eC esis SECTION 1. REQUEST FOR ADMISSION Purpose of written request for admission: To expedite trial and relieve the parties of the Costs of proving facts which will not be disputed on trial and the truth of which ean be ascertained by reasonable inquiry. When request may be made: At any time after the issues have been joined (afier the responsive pleading has been served), What request may include: 1. Admission of the genuineness of any ‘material and refevant document described in and exhibited with the request 2. Admission of the truth of any material and Felevant matter of fact set forth in the request; of 58 3. Under this rule, a matter of fact not related to any documents may be presented to the other party for admission ot denial Request for eure ‘Must be attached tothe ‘complaint or copied therein, ts genuineness and due ‘execution is deomed impliedly sdmites unless specially denied under oath by the adverse party, Proper ven the genuineness of an evidentiary document fs sought to be admitted. Wee denied under oath, its genuineness is. deemed impiety ‘admitted. Essentially 2 mode of ciscovery, SECTION 2. IMPLIED ADMISSION ach of the matters of which an admission is requested shall be ceemed admitted UNLESS the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission Is requested or setting forth the reasons why he cannot either admit or deny those matters, +The REMEDY of the party, in this case, is to file a motien to be ralieved of the consequences of + the implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since lis materiality nas not been aifected by the ‘amendment. SECTION 3. EFFECT OF ADMISSION Use: An admission under this Section Is for the purpose of the PENDING ACTION ONLY. ‘nd Cannot be used in other proveeuinge ae rate 01 im fromgiheréattey presenting UNLESS sre aes This Role'diinlie’ Ob to 4 pen the docurfients,or things eubjaee eanSan Beda College of Lan 2011 CENTRALIZED BAR OPERATIONS _ must be only those within the possession, ‘control, or custody of a party. any ee ors aia Essentially a mode of discovery, The Rules i imited the parties tothe action, “The order under tis Rule is issued only ‘upon motion with hotice tothe adverse arty ‘A means of competing production of evisance Rmay be directed ta person whether @ party oF nol may be sued upon ‘an ex parte applicaion, SECTION 4. MOTION FOR PRODUCTION OR INSPECTION; ORDER Production of documents affords more opportunity for discovery than a subpoena duces tecum, However, the rule is not intended for use as 2 dragnat or any fishing expedition ‘The DOCUMENTS to be produced: 1. Should not be privileged; and Should constitute or contain evidence Material to any matter involved inthe action, and which are in his (the party ordered) possession, custody, or control 2 + In @ petition for the production of papers and documents, they must be sufficiently Geséribed and identified. Otherwise, the petition cannot prosper * This mode ot discovery does not authorize the opposing party or the clerk or other functionaries of the court to distrain the articles or deprive the person who Produced the same of their possession, even temporarily (Tanda vs. Aldaya, L. 13423, Nov. 23, 1953) Se Seeger ers SECTION 1. WHEN EXAMINATION MAY BE ORDERED ‘This mode of discovery is available in en action in which the mental or physical condition of a party is in controversy +The mento! condition of a pany is in Controversy inproceedings for GUARDIANSHIP over an imbecile or Insane person, while the physical condition of the party’ is generally involved in PHYSICAL INJURIES cases + Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege (Sec 24h, Rule 130). SECTION 2. ORDER FOR EXAMINATION Requisites to Obtain an Order for Examination: 4. A MOTION must be filed for the physical ‘and menial examination; 2. The motion must show GOOD CAUSE for the examination; 3. NOTICE to the party to be examined and toall other parties; and 4, The motion shall SPECIFY the time, place, manner, conditions, and scope of the ‘examination and the person or persons by whom itis made. ‘SECTION 3. REPORT OF FINDINGS. {requested by the party examined, the party causing the examination to be made shall deliver to him 3 copy of a detalled written report of the examining physician After such request and delivery, the party causing the examination to be made shall be entitled upon request to recsive from the party examined a like report of any examination, Previously or thereafter made, of the same mental or physical condition. SECTION 4. WAIVER OF PRIVILEGE Where the pany examined requests. and bine capo oe eae! “he sxeminoyeatiis tate ace Se EET yor <2 ste repon of any previous & subgeent “Hyexamination of the. same. phys Stipéniel conditon! NO © <8 ae seen, ory Belen Si dojo “Ecnvovers) boarding Eger pena 59REMEDIAL LAW, CIVIL PROCEDURE 1 Riera sane my ae toa Sone Saray Th The cours nay upon perer appieston corel a retina deponeh fo arser | Sec, 2 granted and refisal fo | enewor® ited subst! | jit, cour moy reo ‘ho rousing party topey he proponent the apt othe Foasonae expenses inated in obtaining the order, reting Refusal to | eomnoys exe anewor any | Sy Seri ana me ‘estion | wincut Subatnt tiaton, Court may rete the proponent 1 poy to reusing pony be Simonton secconahis, Sxpenace ncurod in etaning ihe ter, elaing aterm 2. reuse to answer ater Ect rected byte Cou | todo so may be considered | secomempt teu Soe Refusal to be wom (See. 2) Gite the disobedient deponent in Contempt of court | The cour may make the following orders: 1. Prohibit the elzobedient baty to imroduce evidence (f physical oF mental condition = Reluse to Te Ratucal to disobedient party to support Seen. of oppose claims or ftesignatea | SiehPose Vefsrarts” |S StH ot lesinas organs | aoeeedues || 4. Stay further procaesings tosubmitto™ | & Dismiss me acon or | (physicat or | proceeding er any part | Pinemeal” | erect examination | 8. Rescer judgment by (See. 3) defsuit egainet dsobacient Party 7. Direct the amtast af any party or egent of a party disobeying any of such orders except an order to subir 10. physical or 60 Refusal To Cr eta Eroenes “The court, upor proper application, issue an order requiring the cther party to pay tim resonable expenses Incurred, including attorney's fees, The cour, on wiction and natioe, may! 1. Stike out all or any pat of any pleading of eisobediont Refusal to ‘Admit under Rule 28 (Sec. 4) | Failure of Party | party: toattend or | 2 Dismiss the action or | serve answers | “ proceeding or any part to written thereot, interrogatories | 3. Enter 2 judgment by dofeutt (See. 5) against disobedient party, 4. Order payment of aceete opeteee | feuredny eater HeESEEEHIEt ingatiomeys fees, | Ifa ary refuses to answer the whole witon Inrrogatanes, Section 6 oy Rule Se appiey, Where a pany retses to answer a natentar Question in the set of writen mioregatonee and ‘despite an erseecompeling fie te aewer, sl ruses to obey ihe orour, Section 52) wit apply (Zepeda. Chine Banking Comoration, OA ho. 175178 etooor S| S006) Expenses and attoey’s fees are not o be imposed upon the Repub ofthe Prippines Uneer tis at Trial is the judicial process of investigating and _detormining the. legal contoversies starting wih the OSB etauicense by te or aan Oe eso Sega! nu! ie PER ae A ae ary eeeprade extSption ee Bament wither i 5 1 ieee one ne ul a, 2. Slimmac/SulgiHent (Rule J5jc0— 3. “ikomenteneangeaice,’ SIE? 4. Judomensiby Conteseiont,.” See" 5 Ath Ereiidicc 2 é . Summary Provedufe; an Stipulation factSan Beds College ot Law 2011 CENTRALIZED BAR OPERATIONS SECTION 1. NOTICE OF TRIAL SECTION 4. REQUISITES OF MOTION TO POSTPONE TRIAL FOR ILLNESS OF PARTY OR COUNSEL Reception of evidence] Not confined in tal But Requisites: andther processes: | Gmbracee several the period forthe Stages of itgation inreducton of evidence | ncening tne rei oth partes, | stage Does not necessary ino pesenipion of evidence in dpen cout but the partes are afforded the opportunity io be her 1. A motion for postponement stating the {ground relied upon must be filed; and 2. The motion must be supported by an affidavit or sworn certification showing: a. The presence of such party or counse! at the trial is indispensable; and b. That the character of his illness is such as to render his non-attendance: excusable, SECTION 2. ADJOURNMENTS AND POSTPONEMENTS, + Postponements are addressed to the ‘A court may adjourn a trial from day to day, Sound discretion of the court. in the and to any stated time, as the expeditious and absence of grave abuse of discretion, it convenient transaction of business may ‘cannot be controlled by mandamus (Olsen require. v. Fressel & Co, GR. No. 12955, Nov. & + 1977), However, the court has no power te adjourn a trial for SECTION 5. ORDER OF TRIAL 1. A period longer than one month for each adjournment, OR Piaintif prasents evidence 2 More than 3 months in all, except. when authorized in writing by the court SECTION 3. REQUISITES OF MOTION TO ‘evidence te support demurrer to evidence: EVIDENCE counterclaim’ J 6. That due diligence has been used to with hearing + MWihe adverse party admits the facts to be given in evidence, the tial will not be postaoned even if he objects or Feserves the right to, object to their admissibility (Feria, Civil Procedure Atmotated. Vol. 1, p. 565). Note: This section COES NOT apply to criminal cases ae the rule on postponements in criminal cases is gavemed by Sec. 2, Rule 119, %. Sunmission of memoranda aREMEDIAL LAW CIVIL PROCEDURE Note: Subject to Section 2 of Rule 31 and unless the court for special reasons, otherwise directs, the trial shall be limited to the issues stated in the pre-tial order. Reverse Ordor of Tris Jn this situation, the defendant ‘evidence ahead of the piaintif presents When Proper: If the defendant in his answer relies upon an affirmative defense, a reverse order of tral is proper. Ratio: Plaintiff need not have to present evidence since judicial admissions do not require proof (See, 2, Rule 129). Note: Evidence offered in rebuttal is not ‘automatically excluded just because it would have been more properly admitted in the case in chief (Regalado, | Remedial Law Compendiun, Volume 1, 9” Ed, p. 378). SECTION 6. AGREED STATEMENTS OF FACT This is known as Stipulation of Facts and is ‘among the purposes of a pre-trial. Under the: Rules, it must be in writing. But it may also be verbally made in open court. Note: If NO EVIDENCE IS PRESENTED and the case is submitted for decision on an ‘agreement of the patties, the court should render judgment in accordance with said agreement The court cannot impose ups the partes 8 judgment different from their compromise agreement However, the compromise agreement must ot be contrary to law, morals, good customs, Public order and public poliey (Philippine Bank of Communications v. Echivert, GR. No. L~ 41795, Aug. 28, 1980) + Stipulations of Facts (SOF) are not permitted in actions for annulment of ‘marriage and for legal separation [May be signed by the nunsel alone who hes_| Must be signed both ‘a special power of vec my pet made verbaty | Swick mvt aia ocimwnting in writing Must be signed both by SECTION 7. STATEMENT OF JUDGE 62 ‘SECTION 8. SUSPENSION OF ACTIONS Under. ARTICLE 2030 of the Civil Code: Every lvl action or proceeding shail be suspended: 1. if willingness to discuss a possible ‘compromise is expressed by ané or both parties; OR 2. It appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer SECTION 9 JUDGE TO _ RECEIVE EVIDENCE; DELEGATION TO CLERK OF court. General Rule: The judge shalt personally fecelve and resolve the evidence to be adduced by the parties. HOWEVER, the reception of such evidence may be Uelegated under the following cenditions: 1. The delegation may be made only in defeuits or ex-parte hearings, and in any case where the parties agree in writing 2. The reception of evidence shall be made ‘only by the clerk of that court who is member of the bar; Said cierk shall have no power to rule on objections to any question or to admission ‘of evidence or exhibits; and 4, He shall submit his report and transcripts of the proceedings, together with the objections te be resolved by the court, ‘within 10 deys from the termination of the hearing, VET E ConsoligatiSitiaySYEs SEAR ctions having & cence ag er ne ae x Bronce | conténipigies S-Bitye havea. a, number ol tals creating tied-papty ec wnieh ay Be separately og ‘Constiatifh ts ‘ieretonary hes Exceptions: Conéolisaten becaimée 2 matter of cut wingrithe cases ere: 1 "Pending bétore the sori@judge: ORSan Beda College of Raw 2. Filed with different branches of the same RTC and one of such cases has NOT been partially tried, Purpose: To avoid muttiplicty of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simply the work of the trial court and save unnecessary costs and expenses. Requisites for Consolidation: 4, Actions which involve a common question of law or fact: and 2. There must be at least 2 actions pending before the same court, + if filed with DIFFERENT courts, en authorization from the SUPREME COURT is necessary. ‘Three (3) Ways of Consolidating Cases 1. By recasting the cases already instituted Reshaping of the cases by amending the pleading and dismissing some cases and retaining only one case. There must be Joinder of causes of action and of parties; 2 By consolidation proper ‘or by consolidating the oxisting cases — itis a joint ‘rial with joint decision, the cases retaining their original docket numbers: and 3, By test-case method - by hearing only the principal case and suspending the hearing On the otter cases until judgment has been rendered in the principal case. ‘The Cases retain their original docket numbers. consolidation cf cases on appeal and assigned to different divisions of the SC and the CA is also authorized. Note: The consolidation of civil with oriminal cases Is allowed. This is now sanctioned Under Section 2(a), Rule 111 of the Rules of criminal Procedure (Canos v. Peralta, GR. No. L-98952, Aug, $9, 1982). SECTION 2. SEPARATE TRIALS SECTION 1. REFERENCE BY CONSENT Commissioner — 9 person to whom @ case Pending in court is referred, for him to take festimony, hear the parties and report thereon to the court. and upon whose report, i confirmed, judgment is rendered (2 Mati, p. 18: 2011 CENTRALIZED BAR OPERATIONS. ‘+ Reference to a commissioner may be had by the written consent of both parties. Generai Rule: Trial by commissioner depends largely upon the discretion of the court; BUT the following are instances when such appointment is mandatory 41. Expropriation (Rute 67): 2. Partition (Rule 69): 3. Settlement of Estate of a Deceased Person in case of contested claims; and 4. Submission of accounting by executors or administrators. Note: An imegularily in the appointment of 2 ‘commissioner must be seasonably raised In the triat court where the defect could stil be femedied. It can be WAIVED by consent of the parties, express or implied, SECTION 2, REFERENCE ORDERED ON MOTION Situations when reference to a Commissioner may be made ON MOTION: [ETC-Q] ‘Examination of a long account; ‘Taking of an account is necessary: Garrying a judoment or order Into effect; or Question’ of fact, other than upon the pleading arises. SECTION 3. ORDER OF REFERENCE; POWERS OF THE COMMISSIONER Requisites of the Order of Referonce: 1. lemust state the purpose, 2 itmust be in writing: and 3. lt may specify or limit the power of the commission: Powers of Commissigner [RASIR] 1. "Exercise pa Fimergguiote the ‘ Sse Ee (Acts and. .take “a meGsores ‘for the, eficient ge BE 3. Swear winessegisami gay Pe 4 Bssue sudsoenas. ee duces sh ne ‘ 5. Ones a B2ercer of feference, jie UST The Suey of euenc eater i Se Hes Oe Baa 2 Note: Requirement gf hearing: e3nnot_be dispensed wsith as this’ # the essence of due process. S Secon 4 OATH OF COMMISSIONERREMEDIAL LAW CIVIL PROCEDURE SECTION 5. PROCEEDINGS BEFORE THE COMMISSIONER, SECTION 6. FAILURE OF PARTIES TO APPEAR BEFORE COMMISSIONER Where the order was merely to examine the eccounts involved in the counterclaim without any direction to hold hearings, the commissioner do not need the presence of the panties (Froifan v. Pan Oriental Shipping, G.R. No. £6060, September 30, 1954), SECTION 7. REFUSAL OF WITNESS Cisobedience 10 2 subpoena issued by the ‘commissioner is deemed a contempt of the ‘court which appointed the latter. 7 SECTION 8. AVOID DELAYS COMMISSIONER SHALL, ‘SECTION 9. REPORT OF COMMISSIONER Roser aces Ca Ceara ‘Clerk of court must be | Commissioner need not 3 lewyer bea lawyer Clerk of court cannot | Commissioner can rule ule on objections or on | on objections or or admissioity of the admissibily of id | Detegation is made | curing wat, iramomate | SECTION 10. NOTICE TO THE PARTIES OF THE FILING OF REPORT Upon the filing of the report of the commissioner: 1. The parities shall be notified by the clerk: AND. 2. The parties shall be allowed 10 days ‘within which to object to the findings of the report. Note: Objections to the report based upor grounds which were available to the parties during the proceedings before the commissioner shall not be considered by the court, UNLESS they were made before the SECTION 41. HEARING UPON REPORT SECTION 42. STIPULATIONS aS TO FINDINGS When the partics atipuiste that a commissioner's finding shall be final, only 6a questions of law shall thereafter be consideres. SECTION 13. COMPENSATION OF COMMISSIONER Rue nacualeticc SECTION 1. DEMURRER TO EVIDENCE Domurrer to Evidence is a motion to dismiss based on the ground of insufficiency of evidence and 's presented after the plaintft resis his case, Mature: There is only a one-sided tral, ie., it is only the piaintit who has presented evidence, Purpose: To discourage prolonged itigations reer nae ee aoe tis presented attr the | Presented before a plant has ested his | responsive pleadira oese. (answer) Is made by the defendant Itmay be based on any "The ground is based on insufficiency of of those enumerated in evdence, Rule 16. Ifthe metionis denied, | the mation to diemise | « fine defendant may" | is denied, the defendant may fie his present nis evidence | responsive pleading Ifthe motion i granted, the compisintis |sismesed. Tha REMEDY ofthe plointif 1S APPEAL lithe mation to dismiss is granted, compiz is damaged ‘and depending on the ground, the complaint may be re-fled, meee “ine scolinen we : Paes 4 oe eee his vanish case | ceurbadeertor UA of iSan Beda College of Law 2011 CENTRALIZED BAROPERATIONS —_/ Ce ee aD een 1d On Appeal evidence, Denial Order of the cours INTERLOCUTORY. | an ADJUDICATION See. 1, Rule 36 (That | ON THE MERITS, Judgment should state | Hence, the Glearly and distinetly the facts and the lave on which itis based), mill not apply, | The donial is NOT. sppealable romero pom ‘May be fled with of for leave of court without leave of cour, Leave of eourt is necessary 80 tnat the accused could resent his evidence Inthe demurrer ie lene Fequirementin Sec. 1, Rule 36 should be ‘complied with, ‘fie cour Tage ifthe cour finda he plaints evidence prosecutian’s evidence inouficient,itwill grant | insufficient, twill grant the demurrer by the demurrer by dismissing the rendering judgment complaint, ‘acquitting the accused, Judgment of ‘acquittal is not Sppealabie; double jeopardy sete-in, ‘Judgment of acqulial ismissal is appealable. | is nol eppeatanie FFoiaimit appeals and | double jeopardy sets | judgments reversed by | in the appellate court it | will decide the ease on | the basis of the plaintiffs evidence with the consequence that the defendant already loses his right to Present evcence; “The judgment ar ‘The plain Fes @ The cour may 7 motion io deny mation | prone dany the lo demunerto motion, evidence. | Foou dens the] Feourt ‘denrrer, defersant wil | cemirie: present hie evida! | Weomurrer was with leave, accused may | i demurrer was | without feave, | | 'Prasent his evicenoe ‘and submits the case for decision based on the prosecution's evidence. Judgment on Demurrer to Evidence is 2 judgment rendered by the court dismissing 2 case upon motion of the defendant, made after plaintiff has rested his case, on the GROUND that upon the facts presented and the law on the matter, plaintif has not shown any right to relief, Note: The requirement under this Rule would apply if the demurrer is granted, for in this event, there would in fact be adjudication Upon the merits of the case, leaving nothing more to be dane (Nepomuceno v. COMELEC, G.R. No. L-60601, Dec. 28, 1989) eT fein TON THE: Judgment on the Pleadings is a judgment tendered by the court if the answer falls 10 or otherwise admits the material allegations of the adverse party's Itis rendered without a trial, or even without 2 pre-trial SECTION 4. PLEADINGS: JUDGMENT ON THE A judgment on the pleadings must be on mmotion of the claimant. HOWEVER, if at the prestial the court finds that a judgment on the ieadings is proper, it_ may vender such en DNS 6 Wyedt Me moots pa - “allegations fake. toceiner With Buth of his hn 25) ae i thle “pleadings Belenca Hy Gis Gr No 20) 1882)" < Allegatii "ea pia by esting as gt Ure rie of Judgmen 2 ae and 4. relevantREMEDIAL LAW CIVIL PROCEDURE 3. Allegations of damages in the complaint. Grounds for Judgment on the Pleadings 1. The answer fails to tender an issue because of a. General denial of the material allegations of the complaint; b. Insufficient denial of the material allegations of the complaint; OR 2 The answer admits material allegations of the adverse party's pleading, Note: By moving for judgment on the Pleadings, plaintiff waives his claim for unliquidated damages. Claim for such ‘damages must be alleged and proved No Judgment on the Pleadings In Actions for: 4. Declaration of Nulity of Marriage; 2. Annulment of marriage; and 3. Legal Separation. Motion te Dismiss ens enor Fie by the plaintiff the answeriaisto | | elim ora party Note: If the complaint states no cause of action, a motion to dismiss should be filed and et a motion for judgment on the pleadings. Filed by a detendant 10 2 complains, counterclaim, cross- ‘A Motion for Judgment on the Pleadings is one that is considered ex parte because upon Particular facts thus presented, the plaintif Is nfited to judgment, or motu’ proprio under Rule 18 (29) (Dino v. Valencia, GR. No. L 43886, July 79, 1989) een ad ‘Summary Judgment is a judgment rendered by @ couit without trai i is clear that there exists NO GENUINE ISSUE or controversy as {fo any material fact, EXCEPT as to the amount of damages, Genuine Issue is an issue of fact which calls fer the presentation of evidence as distinguished from an issue which is a sham, fetitious, contrived, and patently unsubstantial 80 85 NCL Io constitute a genuine issue for tial rae are ae Based onthe | Based solely, rT Pleadin 7 Ean a Dleaaings, | on tre compisint and depositors, | placings, | exidonce. admissions presentation and afidovts. irom ‘Avalabie to | Ganavaly | Aveatle to bom paintit | avaiable only | plant and to he pisintt detendant. | Unless he detendant presente 8 Eountertaim [resis [The answer | Notooue 2 no genie | fais totoncer | noaramer's issue between | anieave or | fiedby ine thepartes, "| ihoeie an | defending ‘2 there may | aamesion ot | pars Deissues but | material these ae | Stogttns, | irelevan. ‘0-day notice [S-day notice | 3-day ratce requted. | requted._| rule sppten May be Tn he mari | On the mer Inenocutary cronie ments = Avalati only | Avalobie | Avoiabem inaction to | ny ecion’ | anyacton recovers | exceni except 96toF ora | anuimentot | annuiment of lguiated sum | mariage or | mariage ot | otmoney or” | log toga! fordecaratory | separation | seteration ‘elie cates, eases [Wed by | mere There ms paint falemcy an | ananer fsa ‘musts fice | answer Hes atany tine ater an Served We! by afyefenca Ser Pay time eveng| 3 Bifate teres el atsrswer specifically 5 9 gama be gh preesing a3; 5954) \Giments “are made oe ical ble A &repecial evil action Soccer asSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTIONS 1 & 2. SUMMARY JUDGMENT FOR CLAIMANT; SUMMARY JUDGMENT FOR DEFENDING PARTY Who can file: 1. Plaintiff: May file the motion after the answer has been served, and therefore, must wait until the issues "have been jpine. 2. Defendant: He can move for summary © judgment at any time, Test: Whether or not the pleadings, affidavits ‘and exhibits in support of the motion are Sufficient to overcome the opposing papers. and to justify the finding that, as 2 matter of Jaw, there is no defense to the action or claim is clearly meritorious (Estrada v. Consolacion, et al, G.R. No. L-40948, tine 29, 1976). SECTION 3. MOTION AND PROCEEDINGS. THEREON ‘The motion must also satisty the requirements under Rule 15, SECTION 4. CASE NOT FULLY ADJUDICATED ON MOTION ‘This authorizes rendition of pertial summary judgment but such is interlocutory in nature ‘and is not a final and appeaiabie judgment (Guevarra v.'CA, G.R. No. L-49017, Aug. 30, 1983). SECTION 5. FORM OF AFFIDAVITS AND ‘SUPPORTING PAPERS Requisites of affidavits: Based on personal knowledge; 2 Set fort ete bo woud semis in evidence; Affiant is competent to testify on matters stated therein; and Certified copies of all papers smust be attached thereto and sewed on the opposing party. SECTION 6. AFFIDAVITS IN BAD FAITH Sanctions: 1. Bay to the other party the amount of the Teasonable expenses including atlorney’s fees: and 2. Affer hearing, adjudged offending pariy guilty of eontempt. Bases of Summary Judgment 1. AFFIDAVITS made — on knowledge 2. DEPOSITIONS of the adverse party or a third party under Rule 23 ADMISSIONS of the adverse party under Rule 26; and 4. ANSWERS to interrogatories under Rule 25. Allintended to show that: @ There is no genuine issue as to any material fact, except damages which must always be proved: and b. The movant is entitled to a judgment as a matter of law. personal + Even if the answer does tender an issue, and therefore a judgment on the pleadings is. NOT proper, @ summary judgment may stil be rendered ifthe issues tendered are NOT genuine, are sham, fictitious, contrived, set-up in bad faith, and patentiy lunsubstantial (Vergara vs. “Suelto, GR. No. L-74766, December 21, 1987). Judgment is the final consideration and Getermination of a court of competent jurisdiction upon the matters submitted to iin an action or proceeding Parts of a Judgment 1. The opinion of the court ~ Contains ihe findings of facts and conclusions of law: 2. The disposition of the case — The final and actual disposition of the rights itigated (the dispositive part); and 2. Signature of the judge (Herrera, p. 145) ine isd ok is Be eisised win fautndiy ig fe sfmine thie matter SBetore 2. Paymaint of the. Docket: Fees! TheSueson who fitksthe goriplaint st Sadcket ane attigplourl es an ests ane otis Htatigd expenses © The coche a FeatCteEs paid by the party whe filed Blainf uder thisible, as Srellas the gosts and Itgaton experi, shal Consttte.a ten ¢r charge Uno BRE subject trder otheraite Se nmae 2SSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ‘+The court determines only the isstie of WHO HAS A BETTER RIGHT among the cconficting claimants, ‘An origina! action, ‘An aneltary action Commenced by the | Commenced by 2 fling ofa complaint, | matien to intervene filed Ina pending case, Proper in any of these: four situatione: A person having (a) Legat interest in the matter in litigation, oF (b) Interest in the success of ether of the parties, oF e) Interest against both, or (G) Ie so stuated as to be adversely affected by a distribution or other disposition of roperty In the custody fof the court or ofan | officer thereof (Rule 19, Presupposes tat plaintifnas no interest in the subject matter of the action ar has Interest mevein in whole oF in part which is not disputed by the other partes, See) | Defendants are beng | Defenfans av orginal sued precisely to partes to the pending interplesd ther, suits, ES ein Wit of execution is available. There is breach or violation of right Motion to dismiss ~ Rules 16 anc 17 ‘No wit of execution 'No breach or vilation, Eas ‘Adaitional ground for | Motion to Bismiss Rute 63 Sar. 5 (Count may refuse to exereise the power to declare tights and to construe instruments where a decision would nat terminate the uncertainty or { controversy oF where Seciaravion is pot necessary and proper under the zcumsiances) SECTION 1. WHO MAY FILE PETITION Any person interested under @ deed, wil Contract, or other writen instrument, or whos fights are affected by 2 statute, executive ‘order or regulation, ordinance, or any other governmental regulation. Purpose of Declaratory Relief: To relieve the litigants of the common law rule that no declaration of rights may be judicially adjudged niess a right has been violated and for the Violation of which relief may be granted, Declaratory judgments are to be distinguished from those which are advisory in character, since they are res judicata and binding upon the parties and those in privity with them, and from decisions of abstract or moot questions since they must involve a real controversy (16 Am. Jur. Declaratory Judgments) Roquisites for Declaratory Relief (SANDRA) 4. The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order (or ragulation, or ordinance: 2 There must be an actual justiciable controversy or the “ripening seeds" of one between persons whose interests are adverse; 3. There must have been no breach of the documents in question: 4. The terms of said documents and the validity thereof are doubtful and require Judicial construction; 5. The issue must ‘be fipe for judicial cetermination, 2s, for example, where all administrative remedies have been exhausted; 6. Adequate relief is not avaliable through ‘other means er other forms of action or proceeding, Actual Controversy — a controversy which is definite and concrete, touching the legal relations “oF partes ang gaiverse. egal inigrests, ft mu BRapsubstantal sy Zgyting oF SS spear Uidligiya deciee of 9 conclusive, characte meafistan existing case, or coftfoversy thal appropiiéie oF" *ipe' {6° determination, S¥or Lory conjecti susti , The counimust"bg Sausnied ‘nat controversy’ cr the! ripening seeds o€fSne ‘exists betiyéen patties, all ofzwhom ‘ee6zou! Jims and:bgfere the:coun, ‘andthe declaration Sought wile a"piuetical helt in eaoing the controverspi{Feria*Voliine 2.8.43) .8 Roquisites of Sesticiability 1 here must Selsal pars ioterest 2. Asserting advise cinime; afd 3. Presenting a ripeissue. 225REMEDIAL LAW SPECIAL CIVIL ACTIONS + To be RIPE FOR JUDICIAL DETERMINATION or to constitute the "RIPENING SEEDS" of a controversy, it must appear that, under the facts of the ccase, there is a threatened litigation in the Immediate future, which Iitgation is imminent and inevitable unless prevented by the declaratory relief sought (Tolentino vs Board of Accountancy, L-3062, Septomber 28, 1951) May a court decision be subject of Petition for Dectaratory Relief? NO, because if a party is not agreeable to a decision either on question of law or of fact, he may fle with the trial court a motion for reconsideration or'a new trial in order that the: defect may be corrected. The fundamental ‘feason is predicated upon the prineiple of ras Judicata which stamps the mark of finality on a ‘case which has been fully and definitely tigated in court. Actions Similar to Declaratory Relief 1. An action for the reformation of an instrument: 2. An action to quiet title to real property or remove clouds therefrom; and 3,_An action to consolidate ownership under Article 1607 of the NCC (Section 1, 2° par} These three remedies are considered similar 10 declaratory relief because they also result in the adjudication of the legal ‘rights of the ltigants. offen without the need of execution to ‘carry the jucigment into effect. Note: A procedural distinction between the two remedies is that in actions felling under the second and third paragraphs the court is BOUND to render judgment, whereas. in ‘actions falling under the first paragraph, the Court MAY REFUSE to exercise the power to declare rights and to construe instruments SECTION 2. PARTIES 4. Person (a) who is interested under a deed, will, contract or other written Instrument OR (b) whose rights will be affected by 2 statute, executive order or regulation, ordinance ar other government regulation All persons who have or cleim any interest which would be affected by the declaration, A deciaration shail nol, EXCEPT as otherwise Provided in the Rules, prejudice the sights of persons not parties to the action, 128 Purpose of Sec. 2: Failure to join all the necessary parties would deprive. the declaration of that final and pacifying function the action for declaratory relief is calculated to ‘subserve as they would not be bound by the declaration that may raise the identical issue. Non-oinder of necessary parties is not a jurisdictional defect but may be a ground for dismissal under Section 5. + A\Nolary public who is not a party to the contract is not entitled to file declaratory relief. None of his rights or duties thereunder need be declared (Tadeo vs. Prov. Fiscal of Pangasinan, G.R. No. L- 16474, January 31, 1962). SECTION 3, NOTICE ON SOLICITOR GENERAL In any action which involves the validity of a statute, executive order or regulation, or any ‘other governmental regulation, the Solicitor General shail be notified by the party assaling the same and shall be entitled to be heard ‘upon such question. SECTION 4, LOCAL ORDINANCES GOVERNMENT If the action involves the validity of a local government ordinance, the corresponding Prosecutor of the local governmental unit involved shall be notified and heard. If such ‘ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and heard. court SECTION 5, ACTION DISCRETIONARY our as agai ant Bedlaratory felt og ne 1a e Beitre it por sorte GE svoversy Ot estagy ong, 4 eu eee ok 2. The dedlaray sy neggSsary g This ptavision dees NOF falling under the 2% paraara 8 Pee claratory religh#-Zaid to ‘process Note: Judgment in stand by fself ‘atd!iho execuloy Follows os of use (Rin 2.977San Beda College of Lato 2011 CENTRALIZED BAR OPERATIONS SECTION 6. CONVERSION INTO ORDINARY ACTION When is Conversion Proper: If before the final termination of the case, a breach or Violation of the instrument or statute occurs, then the same may be converted into an ordinary action. If there has been a breach of statute BEFORE the fling of the action, the remedy of declaratory relief CANNOT be availed of. + The law does not require that there shail be an actual pending case. It is sufficient that there is a breach of the law, an actionable violation to bar a complaint for declaratory relief (Borja vs. Viladolid, L- 1897, November 28, 1949), When An Action For Declaratory Relief Will Not Lio: (CIT “DPD BACRE) ‘Action to obtain judicial declaration. of ‘clizenship; 2. Action to establish illegitimate flation and ‘actions to determine hereditary rights 3. Where the terms of the assailed crdinances are not ambiguous or of oubttul meaning: 4. The subject of ‘the action is a court ecision 5. Action to resolve 2 political question or issue: ©. Those determinative of the issues rather than a construction of definite status, rights and relations; 7. Where the contract or statute on which on Is based has been breached: 8. Action is merely to seek advisory opinion from the court on a moot question; 9. When the petition is based on the happening of a contingent event: 10. When petitioner is net the real party-in- interest 11, Where ‘administrative remadies have net yet been exhausted. © A third pary complaint \s inconceivable when the main case is one for nothing more than a declaratory relief. In a third Party complaint, the defendant or third Parly piaintitf ‘is supposed to seek contribution. indemnity, subrogation ov any other reliof from the third pany defendant in respect to the claim of the plaintiff against hin {Commissioner of Customs US. Clonibat, £27036, Jkne 30, 197) + However, the court can GRANT SUCH OTHER AFFIRMATIVE RELIEF as may be warranted by the evidence if the Complaint is sufficient to make out a case for specific performance or recovery of Property with claims for damages and the defendants did not raise such issue in the trial court to challenge the remedy availed of (Adlaman vs. IAC, GR. No. 73022, February 9, 1989), © Compulsory counterclaim based on or arising from the same transaction, deed, ‘or contract on which the petition is based may be filed and entertained in declaratory proceedings because there is nothing in the nature of Declaratory Relief that proscribes the fling of counterclaims and the Rules on Ordinary Civil Action apply to Special Civil Action Suppletoniy (Visayan Packing Comp. vs. Reparations Commission, L-29673, November 12, 1987). Where to Fil General Rule: The petition for declaratory relief must be fled with the RTC. Ratio: It is an action incapable of pecuniary estimation Exception: If the petition has far-reaching Implications and it raises questions that should be resolved, it may be treated as one for prohibition or for mandamus, which the SC oF CA may take cognizance (Regalado, p. 771). Note: Where the action is one for quieting of title the jurisdiction will depend upon the assessed value of the property (Riano p.615) iS Saeco GI Wels axel tee Roa oreo keer SI y 1. Seppe evieWe of juagriaite ae — os Note: rer a Sector aD . eee ate eden ell transferring fhe revisth This petition 3 the Supreme Cou 127REMEDIAL LAW SPECIAL CIVIL ACTIONS: This refers to Rule 65 as an independent civil action and not as a mode of appeel, SECTION 3. TIME TO FILE PETITION Thirty (30) days from notice of judgment. If ‘motion for reconsideration is denied, the Petition must be fled within the remaining Period, but which shal not be less than 5 days im any event, reckoned from notice of denial Note: Fresh Period Rule is Inapplicable. General Rule: Failure to file a motion for Feconsideration before the issuing forum results in the dismissal ofthe petition, Exceptions: 1. To prevent a miscarriage of justice; 2. When the issue involves the principle of social justice or the protection of fabor. 3. The decision or resolution is a nullity; 4. Need for rellef is extremely urgent and certiorari is the only adequate remedy (ABS-CBN ys. COMELEC, GR. No. 139486, January 28, 2000). SECTION 4, LAWFUL FEES. DOCKET AND OTHER Upon the filing of the pettion, the petitioner shalt pay to the clerk of court the docket and other lawful fees and deposit the amount of 500.00 for costs. SECTION 5. FORM AND CONTENTS OF PETITION 1. Verifies petition in 18 copies 2 Agarieved partylies as petitioners while Commission concerned and person inferested in sustaining judgment shall be respondents. 3. Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable, 4. The petition shall state the specific material dates chowing that it was filed on time, 5. It shall be accompanied by a swom certification against forum shopping, 6. There must be proof of service of iis copy on the Commission and adverse party, ‘and of payment of docket and lawfui fees State the facts: present the issues; se! forth the grounds rolied upon and brie! arguments: pray for judgment annulling or modifying the questioned Judgment, final order or resolution 8 A clearly legible duplicate original or cerlified true copy of the judgment, final 128 order or resolution, together with certified true copies of such material portions of the record and other documents relevant and pertinent thereto, ‘The FAILURE OF PETITIONER TO COMPLY with ANY of the requirements mentioned in this section shall be a ground for the DISMISSAL of the petition. SECTION 6. ORDER TO COMMENT If the Court finds that the petition is sufficient in form and substance, it shall order respondents to file their comments within 10 days from notice thereof. Otherwise, the Court may ismiss the petition outright. ‘The Court may also dismiss the petition if it was filed (a) manifestly for delay, or (b) the questions raised are too unsubstantial to warrant further proceedings. The order to comment under Section 6, Rule 64 in case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action, However, the defendant who did not file his comment CANNOT BE DECLARED IN DEFAULT. SECTION 7. COMMENTS OF. RESPONDENTS. 1. Eighteen (18) copies shall contsin plain copies cf all documents attached to the original, 2 The ORIGINAL must be accompanied by Certified true copies of material portions of the record as referred to therein together vith other supporting papers; No other pleadi be filed by any wed by the crn crf efDP UNE . Order of hearing published, ONCE A WEEK FOR 3 CONSECUTIVE WEEKS in a newspaper of general circulation, Notice shail be served upon such interested persons as the courl may direct: 260 4. Bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Sec. 4. Procedure in Summary Sottloment of Estates of Small Value Applicaton for summary eetiament ‘with an allegation thatthe gross value of the estate does not exceed P40, 000.00 Publication of notioe ofthe fact of summary settlement ance a week for 2 cansecutve weeks in a newspaper of general ereulation {the court may alsa order notice to be given to other persons as such court may direct Hearing to be held not less than 1 month ror more than 3 months from the date of ° the last publication of notice SSeS eeSee eee Court to procaed summary, without appointing ‘on executor/administrator, and fo make orders ‘ae may be necassary, such 2, oC jasessnssnansanl SOIAGISIASESINGISL [[Siaiowace afte a Ta Persons entiied to estate Pay debts of estate which are cue Filing of bond fixed by the court ee. Parthion of the estate Secu Bob 10 Be HebsbY DISTRIBUIEES 7 Se eee Sto ot court, une an, oxtrajiidicial: st where the organ is. personalSan Meda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTION 4. LIABILITY OF DISTRIBUTEES AND ESTATE, When settlement of estates in the courts may be compelled: 1. If there is an undue deprivation of fawful participation in the estate: 2. The existence of debts against the estate; 3. if there is an undue deprivation of lawful participation payable in money. Note: The bar against distributes from objecting to an extrajudicial partition atter the expiration of two years is applicable only’ 2. To persons who have participated or taken: part or had notice of the extrajudicial partition, and b. When all the persons or heirs of the decedent nave taken part in the extrajudicial settlement (Sampilo vs. CA, £10474, February 28, 1958) Remedies of the Aggrieved Parties After Settiement of tho Estate Within two (2) yrs. - claim against the bond or the real estate or both (Rule 74, Sec. 4} 2 Rescission in case of pretertion of compulsory heir in partition tainted with bad faith (Article 1104, NCC): Reconveyance of real property; Action to annul 3 deed of extrajudicial settlement on the ground of fraud which should be filed within 4 years from the discovery of trauss Potition for Relief on the ground of FAME ~ fraud, accident, mistake, excusable negligence ~ 60 days after the petitioner learns of the juégment, final order ot other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered (Rule 38); Reopening by Intervention within anytime before rendition of judgment, as long as it is within the reglementary' period of 2 year New ‘action to annul settlement within regiomentary periad of 2 years An heir deprived of his share may file an action for reconveyance based on an im oF constructive trust which prescribes 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud ifthe registration was made in bad faith (Marquez vs, CA, GR No. 128715. December 29, 1998) Where the estate has been summarily settled, the unpaid creditor may, within 2 years, fle 2 motion in court wherein such summary settlement was had, for the payment of his credit, After the lapse of 2 years, an ordinary action may be insttuted against the distributees within the statute of limitations BUT NOT acainst the bond, ‘The 2-year fen upon the real property distributed by extrajudicial or summary settlement shall be annotated on the title issued to the distributes and after 2 years will be cancelled by the register of deeds without need of court order (LC CIRCULAR 143). Such lien cannot “be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established (Rebong vs. Jbanez, 11578, September 30, 1947) SECTION 5. PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON If on the date of the expiration of the two-year period, the creditor or heir is 4. Amminor: or 2. incapacitated; or 3, in prison; or 4. Outside the Philippines He may present his claim within ONE YEAR atter such disability is removed (Sec. 5 Rule 75), ica oun its ua ee sald ESSARY, SECTION Acca EONCLUSWE AS'TO EXEC Nati of Probas Ingen bin of personal pune os ae However.’a-wil may Bélsystainag én the basis ‘of AMtible: 4080. Of the Tay) Code which states. that “ifsthé testajor should make # partitign’of his propertieg by an act inter vivés, oF BY-wvill, Such partition shall stand In.80'far 23 does 6aREMEDIAL LAW ‘SPECIAL PROCEEDINGS legitimé of the forced heir" (Mang-Oy vs. CA, L-27421, September 12, 1986), 3. ‘Imprescriptible ~ because of the public policy to obey the will of the testator. 4, The doctrine of estoppel does not apply. ‘The presentation and probate of the wil is required by public policy. It involves public interest (Femandez vs, Dimagiba, L- 23698, October 12, 1967). SECTION 2, CUSTODIAN OF WILL TO DELIVER : The custodian must deliver the wil to the court or to the executor within 20 days after he leams of the death of the testator. SECTION 3. EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUST The executor of the will shall, within 20 days after he knows of the testator's death or after he knows that he is named an executor if he knows it atter the testator's death shall 1. Present the will to the court (unless it has Teached the court in any other manner). and 2. Signity in writing his acceptance or refusal of the trust. SECTION 4. CUSTODIAN AND EXECUTOR ‘SUBJECT TO FINE FOR NEGLECT Afine not exceeding ° 2,000. SECTION 5. PERSON RETAINING WILL MAY BE COMMITTED. tes oy ier trace penetra Probate is the act of proving in 2 court a document purporting 10 be the last will ane testament of a deceased person in order that It may be officially recognized, registered and Provisions carried out insofar as they are in Accordance with the law (siso refermad fo as allowance of the wil, SECTION 4. WHO MAY PETITION FOR THE ALLOWANCE OF WiLL, Executor, 2. Devisee ar legatee named in the wil 3. Person inieresied in the estate; (ov heirs) 162 An INTERESTED PARTY is ons who would be benefited by the estate, such 2¢ aan heir, or one who has a claim against the estate, such as a creditor (Sumilarig vs Ramagosa, 1-23135, December 26, 1967) 4. Testator himself during his lifetime; 5. Any creditor - as preparatory step for fling of his claim therein (Regalado, p.30), Who may be a party in probate? Jn general, any person having a direct and ‘material interest in the will or estate. SECTION 2. CONTENTS OF PETITION 1. The jurisdictional facts ~ death of the testator and his residence at the time of Geath or the province where estate was left by the decedent who is a non-resident; 2, The names, ages, and residences of the heirs, legates, ‘and devisees of the testator or decedent; 3. The probable value and character of the property of the estate: 4. The name of the person for whom letters are prayed; and 5, The name of the person having custody of the wil if it has not been delivered to the court But no defect in the petition shall render void the allowance of the will, or the issuance of letiers testamentary or of administration with the will annexed, Effect of the Probate of a Will tis conclusive as to the EXECUTION and the VALIDITY of the wil (even against the State) Thus, a criminal case against the forger may not le after the wil has been probated, Issue In the, i) extige vaisiy Hat MMe nHttfble. vata valdieoyteslammbntary aopottion dV = SSan Beda College of Lav 2011 CENTRALIZED BAR OPERATIONS Is apparent on its face (Acain vs. IAC GR No. 72706, October 27, 1987; Nepumuceno-vs. CA, L-62952, October 9, 1985). Extrinsic Validity means due execution of the wil. Moaning of Due Execution That the will was executed sticily in accordance with the formalities required by faw; 2. That the testator was of sound and disposing mind when he executed the 3, That there was no vitiation of consent through duress, fear or threats! 4. That it was not procured by undue or improper pressure or influence on the part of the beneficiary, or some other person for his benefit; 5, That the signature of the testator is genuine. ie., it was not procured through fraud and that the testator intended that what he executed was his last will and testament, SECTION 3. COURT TO APPOINT TIME FOR PROVING WILL. NOTICE THEREOF TO BE PUBLISHED Jurisdictional Requirements PUBLICATION for 3 WEEKS successively of the order setting the case for hearing AND sending NOTICES to all persons interested are JURISDICTIONAL REQUIREMENTS. If the petition for probate is on the testator’s ‘own initiative during his lifetime (Ante Mortem) 1. No publication is necessary (Sec. 3); and 2. Notice shall be made only to the compulsory heirs (Sec. 4). Note: Three (3) weeks successively is not strictly 21 days, It is sufficient that publication has been made once a week successively three times, even if less than twenty- one days intervened between the first and last publication SECTION 4. HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY SAIL OR PERSONALLY Persons to be Given Notice: 1. Designated or known heirs, legatees and devisees, and 2 Execuior and co-executor if not the petitioner, ‘Modes of Notification 1, IF by mall: 20 days before hearing 2. IF through personal service: 10 days before hearing SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST Atthe hearing, compliance of publication and ‘notice must first be shown before introduction of testimony in suppor of the will Evidence Required in Support of a Will 1. Uncontested will (Sec.5) a. Notarial Wills - Testimony of at least ‘one of the subscribing witnesses may be allowed, if such witness testifies that the will was executed as is required by law. i If all subscribing witnesses reside outside the province — deposition is allowed (See.7) i, If the subscribing witnesses aro dead, insane, or none of them resides in the Philippines ~ The court may admit testimony of other witnesses to prove the sanity of the testator, and the ‘due execution of the wil, and as evidence of the execution of the will, may admit proof of the handwriting of the testator and fof the subscribing witnesses or of any of them (Sec. 8). b. Holographic Wills - the testimony of fone witness who knows the handwriting and signature of the testator. In the absence thereof and if the court deem it necessary, expert testimony may he resorted to. 2. Gontested Wil (Sec.11) 2 Notarial Wi nce subscribing oe 5 y-aealthe wines ee eee il Tle eS! Sond cre, he a AY Bo alowed ‘the Yeourt’'¢,. selisied from) the Tesimeny of ater upigesse! gh rom il the evideris eented tgethe wl alee an” atte: ‘in the ec by oman igh ny eae on SE spiepet ¢ > 163REMEDIAL LAW ‘SPECIAL PROCEEDINGS b. Holographic Wills - 3 witnesses who know the handwriting of testator. In the absence thereof and if the court doom it necessary, testimony of an expert witness may be resorted to HOWEVER, in Codoy vs. Calugay, GR no. 123486, Aug. 12, 1999, SC ruled that if the holographic willis. contested, 3 witnesses who know the handwriting and signature of the testator are now required/mandatory to prove its authenticity and for ts allowance. General Rule: A holographic will if destroyed CANNOT be probated, Exception: if there exists a Photostatic or Xerox copy thereof (Gan vs. Yap, L-12190, August 30, 1956). SECTION 6. PROOF OF LOST OR DESTROYED = WILL. CERTIFICATE THEREUPON This section applies 10 a lost or destroyed notarial will and not to a holographic wil FACTS which should be PROVED in order that @ lost or destroyed will may be allowed! 1. That the will has been duly executed by the testator; 2. That the will was in existence when the testator died, of If it was net, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge: ana 3. The provisions of the will are cleanly established by at least two credible witnesses, SECTION 7. PROOF WHEN WITNESSES DO NOT RESIDE IN PROVINCE SECTION 8. PROOF WHEN WITNESSES DEAD OR INSANE OR DO NOT RESIDE IN THE PHILIPPINES SECTION 8. GROUNDS FOR DISALLOWING WiLL Grounds provided for are exclusive: (rious) 1. Hot executed and attested as required by law: (formalities) If the testator was insane, of otherwise ‘mentally incapable to make a wil, at the time of ts execution, 164 3. If it was executed under duress, or the Influence of fear, or throats; 4, If it was procured by undue and improper Pressure and influence, on the part of the beneficiary, or of some other person for his benefit, 5. if the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the fime of fixing his signature thereto. Substantial Compliance Rule If the will has been executed in substantial compliance with the formalities of the law, and the possibitiy of bad faith and fraud is obviated, said will should be admitted to probate (Art. 809, NCC). Separate wills which contain essentially the same provisions and pertain to properties ‘which in all probability are conjugal in nature, practical considerations dictate their joint probate (Va, De Perez vs. Tolete, GR. No. 76714, Juno 2, 1994) SECTION 10. CONTESTANT TO FILE GROUNDS OF CONTEST Contestant must: 1. Stale in writing his grounds for opposing the allowance of the will and 2. Serve a copy thereof to petitioner and other interested partias. SECTION 11. SUBSCRIBING WITNESSES PRODUCED OR ACCOUNTED FOR WHERE WILL CONTESTED. SECTION 12. PROOF WHERE TESTATOR PETITIONS — FOR ALLOWANCE OF HOLOGRAPHIC WILL ig ro is ndiantest testator, fi" that” the: holographic awrifanc., (he Sofatire are in ie code hare SuTesger euidenee ot tne Genuine nes nd Sve etseuteh hoger ages Ge Incas corte ay A prot on the contestant Pe SECTION: | 13; ALLOWANCE ATTACHEL WILL. 7Q.BE RECORDED IN OF REGISTER OF: poneSan Meda College of Zaww 2011 CENTRALIZED BAR OPERATIONS een aat Me a) Cada an oy Ul ADMINISTRATION OF ESTATE Manet ‘SECTION 4: WILL PROVED OUTSIDE THE PHILIPPINES MAY BE PROVED HERE. \tis a requirement that a wil that was probated Ina foreign country be re-probated in the Philippines. if the decedent owns properties in different countries, separate proceedings must bbe had to cover the same. SECTION 2: NOTICE OF HEARING FOR ALLOWANCE. What should be filed: Patition for allowance accompanied with: 1. Authenticated copy of the will 2. Authenticated decree of the allowance thereof. ‘The court will then fix a time and place for hearing and cause notice thereof to be given, Matters to be proven during a re-probate proceeding: 1. That the testator was domiciled in a forelgn county. 2, That the will igs been admitted to probate in such country: 3. That the foreign court was, under the laws of ‘said forelgn country, a probate court with jurisdiction over the proceedings; 4, The lew on probate procedure in sald foreign country proof of compliance therewith; end 5. The legal requirements in sald foreign country for the valid execution of the will Effects of the allowance of a will under Fale 7: ‘The’ will shall be treated as if originally proved and allowed in Philippine courts; 2. Letters testamentary or administration with will annexed shall extend to all estates in the Philippines, 3. After payment of just debts and expenses Cf administration, the residue of the estate shall be disposed of 3s provided by law in cases of estates in the Phitppimes belonging to persons who are inhabitants cf another state or country Notes: in the absence of proof of the forsh law, it is presumed that itis the same as that in the Philippines. testator ane appay The venue for the petition for re-probate is the same as that provided for in Rule 73. Rimage erat) eNO MELE Go Creme) Who can administer the estate? 1. Executor - the one named by the testator in his will for the administration of his property after his death, 2. Administrator, regular or special (Rule 60) ~ the one ‘appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate, 3. Administrator with a will annexed (Rule 79, Section 1) - the one appointed by the court in cases when, slthough there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to seve as such, Who may serve as an executor or administrator? ‘Any COMPETENT person may serve as executor or administrator, SECTION 1. WHO ARE INCOMPETENT To SERVE AS EXECUTORS = OR ADMINISTRATORS: 4. A minor 2. Anonresident; 3. One who in the opinion of the court is unfit to exercise the duties of the trust by reason of: a. ies a Bidteorty: Connor ee aR oneal Itng 4 She executor: oF C ; adiister the estate ofp tekeator, Appeirtedby fr Hi gpae He stat ot Nominstediby the: eihcecrogua st annexéc) orf the will vas disalloyed ce it a Porsopidid nct make 2 eatapestle Sugbebsion by court 165,REMEDIAL LAW ‘SPECIAL PROCEEDINGS itor ‘Must present wil to the ‘court within 20 days after he knows ofthe ‘death of teatator or ater he knew that he was ‘appointed as executor (ithe obiained such knowledge after death oftestator), uniess the will hes reached the ‘court in any manner No such duty TTestator may provide that he may serve without a bond (BUT | Required untess court may direct him to | exempted by law sive a bond conditioned ‘only to pay debts) ‘Compensation may be provided for by the Compensation is testator inthe wil, ‘govemed by See. 7, otherwise Sec. 7, Rute | Rule 8S 85 il be followed. SECTION 2. EXECUTOR OF EXECUTOR NOT TO ADMINISTER ESTATE SECTION 3. MARRIED WOMEN MAY SERVE SECTION 4. LETTERS "TESTAMENTARY ISSUED WHEN WILL ALLOWED. Letters Testamentary is an authority issued to an executor named in the will fo administer the estate. Letters of Administration is an authority Issued by the court to a COMPETENT person to administer the estate of the deceased who died intestate Letters of Administration with a will Annexed is an authority issued by the court to @ COMPETENT person to administer the estate of the deceased Ifthe executor named in the will refused to accept the office SECTION WHERE SOME co. EXECUTORS DISQUALIFIED, OTHERS MAY ACT SECTION 6. WHEN ARD TO WHOM LETTERS OF ADMINISTRATION GRANTED Order of Preference in Granting Letters of Administration 1. The surviving husband of wite oF the next of kin, oF both jn the discretion of the court, fof to such person as such surviving Spouse oF next of kin, requests to have 166 appointed, if competent and willing to serve (SURVIVING SPOUSE OR NEXT OF KIN OR THEIR NOMINEE); Next of Kin has been defined as those persons who are entitled by law to receive the decedent's property (Regalado, Remedial Law Compendium, (2008), p. 46). 2. Ifthe surviving spouse or the next of kin or the person selected by them be incompetent or unwilling to serve, of if the surviving spouse or next of kin neglects for 30 days after the death of the decedent to apply for administration by them or their nominee, ANY one or more of the PRINCIPAL CREDITORS, if competent and willing to serve; 3. If there is no such creditor competent and willing to serve, it may be granted to such ‘other person as the court may select (STRANGER), Note: As 2 general rule, the court cannot set aside the order of preference under Sec. 6 Rute 76. Exception: In case the persons who have the preferential right to be appointed under the RULE are not competent or are unwiling to serve, administration or they neglect to apply for letters of administration for 30 days afer the decedent's death, the letters may be granted to such other person as the court may apport. The Order of Appointment of Regular Administrator ie final and eppealeble. Basis for the Preferenti Right ‘The underiyingugssUBBUSAEEtpiatsoce who ib coap ee nde ceaipical Bt svatign of ne etc en Pe ane tae BE UE coer waste" iinprovidehoe of inisanagerhénth tne higher interest ang paeetnuertial mete co ee vs. aati weet Note: a forthe, benef interestec 2675. Seope or mI The general Fug only to the asséts ofSan Beda College of Lan 2011 CENTRALIZED BAR OPERATIONS the state or country where it was granted, so that an administrator appointed in one state or country has no power over the property in another state or country (Leon —_v. Manufacturers Life Insurance Co. 90 Phil. 459, 463), RSA Do OR GA enor CN aca ie etd EOUISuanueh SECTION 1. OPPOSITION TO ISSUANCE OF LETTERS _TESTAMENTARY. SIMULTANEOUS PETITION FOR ADMINISTRATION The main issue is the determination of the Person who is rightfully entitled to. administration Persons to oppose the issuance of letter Any person interested in the wil, In order to be a patty, @ person must have material and direct, and not one that is only indirect or contingent, interest. The opposition may be accompanied by a Patition for the issuance of Letters of Administration with the will annexed. SECTION 2, CONTENTS OF A PETITION FOR LETTERS OF ADMINISTRATION 4. The jurisdictional facts: ‘The names, ages. residences of heirs and the names and ages of the creditors; 3. The probable value and character of the estate; and 4. The name of the person for whom letters are prayed for, No defect dr the peiltion strait render void the Issuance of the letters of administration. SECTION 3. COURT TO SET TIME FOR HEARING, NOTICE THEREOF Publication for 3 weeks and notice to heirs, creditors and other persons believed to hav: an interest in the estate is required before hearing, Note: Sec 3 of this Rule is JURISDICTIONAL, ‘Where no notice as required by this section has been given to persons believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annutied (Eusebio vs. Valmores G.R. No. L-7019, May 31, 1958). SECTION 4. OPPOSITION TO PETITION FOR ADMINISTRATION Grounds for Opposition: 1. Incompetence; 2. Preferential right of the heir under Sec. 6, Rule 78. SECTION 5. HEARING AND ORDER FOR LETTERS TO ISSUE Letters of Administration shall issue if it is proven that 1. Notice as required in Sec. 3 was given; and 2. The decedent left no will or there is no competent and wiling executor. SECTION 6. WHEN LETTERS OF ADMINISTRATION GRANTED TO ANY APPLICANT Letters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court ieee ica SECTION 14. APPOINTMENT OF SPECIAL ADMINISTRATOR When may a probate court appoint a special administrator? 1. Delay in granting of tetters by any cause Including appeal In the probate of the will, 2, Executor is a claimant of the estate he represents (Seotion 8 Rule 86) ‘Ba jocelP tan nave tne ar boa aennne thagia general arn ori ppc a i The Bete decerded ED 78 of the Rules oF Court! toa su Souse mars "He EaBonerane St seieoubr Sammistaiol, NOT. 10. that of spect ea recs, igetee fae Moccioear me ee Br cnpleiin the laters lid probate. cou ts. Do Guirea: GR No” iguembor 29, 1966)ape. gt oe 167REMEDIAL LAW ea ert ‘Order of Appointment Order of Appointment | is NTERLOCUTORY is FINAL and is pny APPEALABLE ApEn AB ‘One of the obligations isto pay the debts of || Cannot pay debts of Senee the estate ‘Appoinied when ‘Appointed when there ‘decedent died le delay in granting intestate or did nat | letters testamentary or ‘appoint an executor in| administration or when {he wil ocwilwas | the executors @ disallowed, leimant of the estate, SECTION 2. POWERS AND DUTIES OF SPECIAL ADMINISTRATOR 4. Possession and charge of the goods, chattels, rights, oredits, and estate of the deceased; 2. Preserve the same; 3, Commence and maintain suit for the estate: 4, Sell ONLY: 2. Perishable property; and b. Other property ordered sold by the court, 5. Pay debls ONLY as may be ordered by the court ‘The special administrator has also the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond (See 4, Rule 81). SECTION 3. WHEN POWERS OF SPECIAL ADMINISTRATOR CEASE. TRANSFER OF EFFECTS. PENDING SUITS When does the power of a special administrator cease? After the questions causing the delay are resolved and letlers are granted to regular executor or administrator. [san appointment of a special administrator appealable? NO, as expressly provided for in See. 4, Rule 109, HOWEVER, appointment of @ REGULAR ADMINISTRATOR is appealabie because itis a final order Note: it is possible for the executor or administiator whose appointment is 68 SPECIAL PROCEEDINGS challenged by appeal to be appointed also as the special administrator pending such appeal. ‘There is no harm in appointing the same person as special administrator because there is a vast difference between the powers and duties of the two positions. While 2 special administrator may commence ‘and maintain suits under Sec. 2, he cannot be sued by a creditor for the payment of the debts of the deceased (De Gala vs. Gonzales, et al, 53 Phil 704). Such suit must await the appointment of regular administrator. terra ass Cees SECTION 4. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS. When filed: Before an executor or administrator enters upon the execution of his trust Amount: To be fixed by the court Conditions of the Bond: i. Make within 3 MONTHS a true and complete INVENTORY of the property of the deceased which came to his knowledge and possession; 2. ADMINISTER the estate’ and pay and discharge all debts, legacies and charges, Including dividends declared by the court from the proceeds 3, Render a true and just ACCOUNT within ONE YEAR and when required by the court 4. PERFORM all orders of the court Amini pone Gareitons % a the. plebate eal Tetans. asi the bah arpa Feb, aso Sirciy ¥8 Yanuay 3 1984). SECTION, BOND. OF EXECUTOR: DIRECTED IN WILL WHENSURTHER;BOND REQUIRED, EE ee Even it the tela hae dregt Siri win tat his executor Serve tno sa"BUd, the courtSan Beda College of Lav 2011 CENTRALIZED BAR OPERATIONS may stil require him to file a bond conditioned. conly to pay the debts of the testator. SECTION 3. BONDS OF JOINT EXECUTORS AND ADMINISTRATORS SECTION 4. BOND OF SPECIAL ADMINISTRATOR Conditions of the Bonds: 1. Make and return a true inventory; 2. Render accounting when required by court; and 3. Deliver the estate to the person appointed executor or administrator or other authorized persons. The bond is effective as long as the court has Jurisdiction over the proceedings, Riera ave hd CUA Ue ALTA eo AND REMOVAL OF EXECUTORS AND. COURSES SECTION 1, ADMINISTRATION REVOKED IF WILL DISCOVERED. PROCEEDINGS THEREUPON When letters revoked and powers cease When the decedent's will is allowed and proved by the court after the issuance of letters of administration Duty of Administrator upon revecation of the letters, 4. Sumrender the letters to the court; and 2, Render his account within such time as the court may direct. Whether the intestate proceeding already commenced should be discontinued and a ew proceeding under a separate number and tile should be constituted is entirely a matter of form and lies within the sound discretion of the court (Reynosa vs. Santiago, L-3039, December 29, 1949), Note: The discovery of a will does NOT ipso facto nullify the letters of administration ready issued untit the will hac beers proved and allowed pursuant to Rule 82. Sec. 1 (Oe Paneno vs. Arunzanso, GR No. L-27657. Aug. 36. 198: SECTION 2. COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH, RESIGNATION OR REMOVAL Grounds for Removal of Executor or Administrator 1, Neglect to render accounts (within 1 year and when required by the cour), 2. Neglect to settie estate according to these rules; 3. Neglect to perform an order or judgment of the court or a duty expressly provided by these rules; 4, Absconding; or 5. Insanity or incapability or unsuitability 10 discharge the trust Other Valid Grounds For Removal Of An Administrator: 1. Adverse interest of an administrator to that of the state (Garcia v. Vasquez, 32 SCRA 490). 2. Physical’ inability ana consequent unsuitability to manage the estate (De Borja v. Tan, 93 Phil 167). False representation by an administrator in securing his appointment (Cabarrublas v. Dizon, 76 Phi 209), The Order of Removal is APPEALABLE (Borromee v, Borromeo, 97 Phit, 548). Note: Grouncs are NOT exclusive. The position of the administrator is one of jence and when the court finds that the administrator's not entitled to. such confidence, It is justified in withdrawing the appointment and giving ne valid efficacy thereto (Cobarubias vs. Dizon, 1-226, February 26, 1946) ‘Dogroe of is eee ee a fens@pable diligence anise in entralgaee famigie rotormance ofa ust ee section a acis eee iON, Lawful dete: of an administrator or: @kdoutor before the levscation; resignation, or refnoval are valid 169_ REMEDIAL LAW SPECIAL PROCEEDINGS ‘SECTION 4. POWERS OF NEW EXECUTOR OR ADMINISTRATOR. RENEWAL OF LICENSE TO SELL REAL ESTATE Power of the New Administrator 1, Collect and seitle the estate not administered; 2. Prosecute or defend actions commenced by or against the former executor or ‘administrator; and Have execution on judgments recovered in the name of former executor or ‘administrator. Executor or Authority to sell previously given to the former executor or administrator may be renewed without notice or hearing, eere nner anee acct aaa ed SECTION 1. INVENTORY AND APPRAISAL TO BE RETURNED WITHIN THREE MONTHS Inventory and appraisal must be made within 3 MONTHS from the grant of letters testamentary or of administration, The three-month period is not mandatory. The fact that an inventory was fed after the three-month period would not deprive the Probate court of jurisdiction to approve it. However, an administrator's unexplained dolay in fling the inventory may be a ground for his removal (Sebial vs. Sebial, L-23419, June 27. 1975) Approval of en inventory is not a conclusive determination of what assets constituted the decedent's estate and of the valuation thereof ‘Such determination is only provisional and a rina Facie finding of the issue of ownership, Property claimes by third parsons may be included in the inventory as part of the assets Of the estate and the probate court may order such inclusion, but such order of the probate court is only a prima facie determination and does not preclude the claimants from ‘maintaining an ordinary civil action for the determination of tile (Vala, De Paz v. Vda, Do Madtrigat, 100 Pht 1085}. 170 SECTION 2. CERTAIN ARTICLES NOT TO BE INVENTORIED 1. Wearing apparel of the surviving spouse and minor children; 2. Marriage bed and bedding: 3. Provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. ‘SECTION 3. ALLOWANCE TO WIDOW AND FAMILY Allowance fefers to the monetary advances Which are subject to collation and are likewise deductible from their share in the estate of the decedent. Persons entitled to allowance during proceedings 1. Legitimate surviving spouse (Nepomuceno vs. CA, L-62952, October 9, 1985); and 2. Children of the decedent. Note: According to Art. 188 of the Civil Code, the chiliren need not be minors or incapactated to be entitled to allowance (Santero vs. CFI of Cavite, GR No. 61700-03, ‘Sept. 24, 1987). Grandchildren are NOT entitled to allowance under Rule 83 (Rulz vs. CA, G.R. No. 118671, January 29, 7986). When liabilities exceed the assets of the estate. his widow and children are not entitled to support pending the liquidation of the intestate estate, on the ground that such support, having the character of an advance payment, to be deducted from the respective share of each heir during distribution (Wagner vs. Moor, L-25842, March 18, 1927) ies SEE a ities taco SUT Feiienes SECTION | 1. {| EXEGE ADMINISTRATOR" 70) PARTNERSHIP BOOKS "At HOW RIGHT ENFORCED secrion’, ie PEON ck ADMINISTRATOR, 70. KEEP! / BUIEDINGS IN REPAIR OURS Bar Gee oatsSan Beda College ot Law 2011 CENTRALIZED BAR OPERATIONS SECTION 3. EXECUTOR or ADMINISTRATOR TO RETAIN WHOLE ESTATE TO PAY DEBTS AND TO ADMINISTER ESTATE NOT WILLED. Powers of the Executor or Administrator of the Estate (BERIP) 1. To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner. 2. To examine and make invoices of the property belonging to the partnership in case of a deceased partner; 3, To maintain in tenantable repairs, houses and other structures and fences and to eliver the same in such repair to the heirs of devisees when directed so to do by the court, 4, To make jmprovemenié on the properties under administration with the necessary court approval except for necessary repairs; 5, “To possess and manage the estate when necessary 2. For the payment of debts: and For payment of expenses of ‘administration, Some Restrictions on the Power of an Administrator or Executor 4. Cannot acquire by purchase, even’ at public or judicial auction, either in person or mediation of another, the property under administration: 2. Cannot borrow money without authority of the cour; 3 Cannot " speculate with fund under administration: 4. Cannot lease the property for mare than fone year, Cannot continue the business of the deceased unless authorized by the court, 6 Cannot profit by the increase or decrease im the ‘velue of the property under adrministration, Note: The right of an executor or administrator to the possession and managenient of the real ‘and personal properties of the deceased is NOT absolute and can only be exercised so jong as iis necessary for the payinenl of the debis and expenses of the administration (Estate of Hilavio Ruiz v. CA. GR No. 1586711. 252 SCRA 541), Rear ne COMPENSATION OF EXECUTO BONS SECTION 4. EXECUTOR «OR ADMINISTRATOR CHARGEAELE WITH ALL ESTATE AND INCOME General Rule: The executor or administrator ‘is accountable for the whole estate of the deceased. Exception: He is not accountable for Properties which never came to his possession. Exception to the Exception: When through Untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator falled to recover part of the estate which came to his knowledge, SECTION 2 NOT TO PROFIT BY INCREASE OR LOSE BY DECREASE IN VALUE ‘Administrator or executor shall not profit by the ingrease of the estate nor be liable for any decrease which the estate, without his fauit, ‘might have sustained, SECTION 3. WHEN NOT ACCOUNTABLE FOR DEBTS DUE ESTATE The executor or administrator is not accountable if debt remains uncollected vwetnout his fault SECTION 4. ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM cetues; oF The persons jpfefestedsuiter loss amREMEDIAL LAW ‘SPECIAL PROCEEDINGS SECTION 6. WHEN ALLOWED MONEY PAID AS COSTS SECTION 7. WHAT EXPENSES AND FEES ALLOWED. EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE FOR SERVICES. AS ATTORNEY. COMPENSATION PROVIDED BY WILL CONTROLS UNLESS RENOUNCED Expenses of Administration refers to those necessary for the management of the property, for protecting It against destruction or deterioration, and possibly for the production of fut, Compensation if there Is No Provision in the Will 1. P4.00 a day for the time actually and necessarily employed; OR 2, COMMISSION. 3. A GREATER SUM may be allowed if a. the estate is large: b. the settlement has been attended with great difficulty: ©. the settlement has required a high degree of capacity of the executor or administrator. An administrator may not recover atlomey's fees from the estate; his compensation is fixed by the rule but such compensation is in the nature of executor’s or administrator's, commissions, and never as attomey's fees Procedure for Collection of Attomey's Fees 1 Request the administrator 0 make: payment and file an action against him in his personel capacity and not as administrator should he fail to pay; or 2. Petition in the testate or intestate proceeding asking the court, after notice to all persons interested, 10 allow his claim and direct the administrator to pay it ae an ‘expense of adrminietration, SECTION 6. WHEN EXECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT General Rule: Within one year from the time. of receiving letlers testamentary or lelters of administration Exception: An oxtension of lime is allowed by the court for presenting claims against, or paying the debis of the estate, or for disposing Of the estate; and he shall render such further accounts as'the court may requie until the estate is wholly settled, 172 The fact that the final accounts had been approved does not divest the court of jurisdiction to require supplemental accounting for, aside from the initial accounting, the Rules provide that “he shall render such further accounts as the court may require until the estate is wholly settied.” SECTION 9. EXAMINATIONS ON OATH WITH RESPECT TO ACCOUNT Examination may be dispensed with when: 1. No objection is made to the allowance of the account; and 2, Its correctness is satisfactorily established by competent proof. The heirs, levatees, distributes and creditors have the same prisilege of being examined SECTION 10, ACCOUNT TO BE SETTLED ON NOTICE SECTION 11. SURETY ON BOND MAY BE PARTY TO ACCOUNTING. Ried SECTION 4. NOTICE TO CREDITORS TO BE ISSUED BY COURT Im refers to any debt or pecuniary demand against the decedent's estate. When may the court. issue notices to creditors to file their claims? Immediately after granting letters testamentary oF of administration, Purpose: For the speedy setlement of the aifare of the deceased. person and eaty delvery of theaocg iio te Pegg of te HSA Fee cath eh BE Gein casa be presei FE GE Law hes i Flleral expenses; angSun Beda College of Lao 2011 CENTRALIZED BAR OPERATIONS The heirs, even alter distribution, are lable for Innertance and estate taxes. (Government of the Philippine istands vs. Pamintuan, L-33139, October 11, 1936). SECTION 2. TIME WITHIN WHICH CLAIMS. SHALL BE FILED. Statute of Non-Claims is the period fixed by the rule for the fling of the claims against the estate, REASON for the Rute For the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributes, legates or hairs. When to File Claims General Rule: Within the time fixed in the hotice which shall not be more than 12 MONTHS nor less than 6 MONTHS after the date of the FIRST PUBLICATION. Otherwise, they are BARRED FOREVER, + | Even ifthe testator acknowledged the debt in his will and instructed the executor to Pay the debt, the statute of non-clams ‘must stil be complied with; otherwise the claim may also be barred Exception: BELATED CLAIMS Belated Claims are claims not filed within the original period fixed by the cour. On application of a creditor who has failed to file his claim within the time previously limited, at ANY TIME BEFORE an order of distribution is entered, the court may, for cause shown and fon such terms as are equitable, allow such claim to be filed within a’ time NOT EXCEEDING 1 MONTH from the order allowing belated claims, Take Note: The Statute of Non-Claims SUPERSEDES the Statute of Limitations insofar as the debts of deceased persons are concemed because if 2 creditor fails to file his claim within fhe time fixed by the court in the otice, then the claim is barred forever. However, BOTH statute of Non-Claims and Statute of Limitations MUST CONCUR in order for a creditor to collect HOWEVER, a creditor barred by the Statue of Nomclaims’ may file a claim as a COUNTERCLAIM in any suit that the executor or administrator may bring against such creditor (Sec 5). SECTION 3. PUBLICATION OF NOTICE TO CREDITORS. Publish the notice for 3 successive weeks in a newspaper of general circulation in. the province and post the same in 4 public places in the province and in 2 public places in the ‘municipality where the decedent last resided. SECTION 4. FILING COPY OF PRINTED NOTICE. Ten {10} days after publication and posting. Note: A notice to creditors to file their claims is not proper if only @ special administrator has been appointed as a special administrator is generally not empowered to pay the debts of the deceased (Sec. 2, Rule 60) and his bond, Unlike that of a regular administrator, is not ‘conditioned upon the payment of such debts (Regalado, Vol. 2, 19” ed, p. 74). SECTION 5. CLAIMS WHICH MUST BE FILED UNDER NOTICE. IF NOT FILED, BARRED; EXCEPTIONS. Clzims referred to under this section refer to claims for the recovery of money and which are not secured by a lien against the property of the estate (Olave vs. Canlas, 1-12709, February 28, 1962) Claims which should be filed under the Statute of Non-claims 1. Money claims, debts incurred by deceased during his lifetime arising trom contract: 2, Express or Implied, b, Que or not due; ._ Absolute or contingent. 2. Claims for funeral expenses: 3. For the last iiness of the decedent 4 eo tb vated under tie Ful subjecet anaton aga eee oF ‘administrator (Sec. 1, RuleB7) of against the halts (Bevamata vs, Rol £ 24096: Nov. +8 1967.) ee Be oe Unpaid taxes are. slotute of none claus. a5 these’ Bre eon igations created (VereRet al, ys Fetfandes, ef hb 31S teh 30, 173REMEDIAL LAW SPECIAL PROCEEDINGS Absolute Claim is such a claim as, if contested between living persons, would’ be Proper subject of immediate legal action and Would supply a basis of a judgment for a cum certain. Contingent Claim is a conditional claim or claim that Is subject to the happening of a future uncertain event. Claims not yet due or contingent may be approved at their present value A deficiency judgment Is a contingent claim and therefore, must be filed with the probate court where the settlement of the deceased is, pending, within the period fixed for the filing of Claims (First National City Bank of New York v. Cheng Tan, 4 SCRA 501), rrr) pe Claim is not ‘extinguished by death | Personal toither of | but shall be | the parties and Is prosecuted as @ ‘extinguished by death | money claim against the estate of the deceased nl Exanple contsctva money ceim | Examples: legal ‘Separation, annuiment of marriage, eciaration of nulity of mariage Where the defendant dies while the action for @ sum of money is pending against him in the Court of Appeals, he shall be substitutes therein by his legal representative but the final judgment of the appellate court shail not be enforceable by a writ of execution but should be fled in the probate court as a money claim in accordance with Sec. 5 of Rule 86 (Paredes, et al. v, Moya, 1-38057, Dec. 26, 1973) If final judgment had already been rendered against the decedent prior ta his death, but without levy on execution having been effected against his property, such judgment must alse be filed as a claim against the estate in the manner provided for by this Rule. if levy has already “been made before his death, ‘execution shall procesd, (See. 7fe). Rule SECTION 6. SOLIOARY OBLIGATION OF DECEDENT Claim should be fied against decedent as if he were the only debtor without preutice on the 174 part of the estate to recover contribution trom the other debtor. Joint obligation of decedent ‘The claim must be confined to the portion belonging to the decedent. SECTION 7. MORTGAGE DEBT DUE FROM ESTATE Creditor Holding a Claim Secured by a ‘Mortgage or Other Collateral Security Alternative Romodics: (AFR) Abandon or waive the security and prosecute his claim against the estate and Share in the general distribution of the assets cf the estate; 2. Foreciose his mortgage or realize upon his ‘security by action In court making the executor or administaior a party defendant and if there is judgment for DEFICIENCY, he may file a claim (contingent) against the estate within the statute of non-ciaims; 3. Rely solely on his mortgage and foreciose Gudicial “or extrajudicial) the same at anytime within the period of the statute of limitations but he cannot be admitted 2s creditor and shall not receive in the distribution of the other assets of the estate, Note: These remedies are ALTERNATIVE, the availment of one bars the availment of other remedies SECTION @. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE This is one of the instances where a special aérinnicbe ie gpenics Te pee meg act only ci reney Pe POP) ee Aw Tee How ea 2 A wp How to file a clain W "Deliver the Galt win. me. negeBoay vovehers te tnaicieicet cout. 2. Serve. copy. thereot.bf Ine exscilr or sximinisraton 2 5. Ihe clans den must be sippeted by Sridavt Sting 1h8-ompunt-dee and the fact thot there Has been 16 ctselsSan Beda College of Zaw 2011 CENTRALIZED BAR OPERATIONS 4, if the claim is not due or contingent, it must be accompanied by affidavit stating the particulars thereot, 5. Executor must fie his answer fo the claim within 18 days after service of a copy of the claim SECTION 10. ANSWER OF EXECUTOR OR ADMINISTRATOR. OFFSETS Executor shail fle answer within 15 days from service of claim. The executor or administrator may interpose any counterciaim in offset of 3 claim against the estate. Said counterclaim is regarded as a compulsory counterciaim as the fallure to fle the same shall bar the claim forever. SECTION 11. DISPOSITION OF ADMITTED CLAIM The heir, tegatee or devise may oppose the ciaim admitted by the executor or administrator. SECTION 12. TRIAL OF CONTESTED CLAIM refer the claim The cour may wo a commissioner SECTION 13. JUDGMENT APPEALABLE Judgment against the and aciministrator shall not create any Hen upon the Property of the estaie or does not constitute @ specific in which may be reaistered on such Property. Judgment of a probate court approving or disapproving a claim is appealable, Note: The mode of appeal is record on appeal and must be filed within 30 DAYS ‘rom notice of judgment SECTION 14. cosTS eto caro pier SECTION 1, ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT AGAINST EXECUTOR AND ADMINISTRATOR ‘Actions which may be commenced directly it the executor of administrator: 4. Recovery of real or personal property or any interest therein from the estate; 2. Enforcement of a lion thereon, 3. Acton to recover damages for any injury fo person or property, real or personal (ortuous acts). These are actions that SURVIVE the death of the decedent ‘An action for revival of money judgment may be filed against the administrator to preempt Prescription of judgment (Romualdez vs. Tigiao, 1-51151, July 24, 1981). Rule 87, S00. 7 | Retions that may be commenced directly gainsl the executor ‘and administrator | Aalions that may be commenced against the estate of the deceased Toney las, Gable incurred by the deceased during bis Iietime arising frr contract Claims for funeral expenses oF for the Action to recover last lnass of the damages arising fram | cecedent tort. sluagment for money sins! decedent Recovery of real personal property (or any interest therein} from the estate; Enforcement of a ben thereon: TON 2 acto) sechon HGR Soy 5 Fesiduelis kriown} the heits no catige meng he or abe She recht le Flo legal property of dency of 75REMEDIAL LAW SPECIAL PROCEEDINGS Exception W the executor or administrator is unwilling fr refuses to bring sult; and 2 When the administrator is alleged to have participated in the act complained of and he is made a party defendant. SECTION 4. EXECUTOR OR ADMINISTRATOR MAY COMPOUND WITH DEBTOR SECTION 5. MORTGAGE DUE ESTATE MAY BE FORECLOSED Note: There is no need of a special authority from the court for the administrator or executor to bring an action for foreciosure on behalt of the estate (Calmbas vs. Paguio, 1-22197, December 2, 1924), SECTION 6, PROCEEDINGS WHEN PROPERTY CONCEALED, EMBEZZLED, OR FRAUDULENTLY CONVEYED Purpose: To elicit information or to secure evidence from those persons suspected of having possession or knowledge of property or witl of the deceased, or of having concealed, embezzled or conveyed away any properties of the deceased, SECTION 7. PERSON ENTRUSTED WITH ESTATE COMPELLED TO RENDER ACCOUNT SECTION 8, EMBEZZLEMENT BEFORE LETTERS ISSUED The responsible person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzied, or alienated, to be recovered for tha benefit of the estate, SECTION 9. PROPERTY FRAUDULENTLY CONVEYED BY DECEASED MAY BE RECOVERED. WHEN EXECUTOR OR. ADMINISTRATOR MUST BRING ACTION This provision applies when there is a deficiency of assets in the hands of the executor of administrator for the payment of the cebts and expenses for administration The executor or administrator may, an his awn iniative or on option of the creditors and as sirected by the court instilule an action for the recovery of seit property, but the court may direct the creditors to deftay part of the costs and expenses of the sul since said action is for thelt own benefit (Regrlad, p. 93). 176 SECTION 10. WHEN CREDITOR MAY BRING ACTION. LIEN FOR COSTS Requisites Before Action may be filed by Creditors: (D-FAN LaB2N) 1. There is a deficiency of assets in the hands of an executor or administrator for the payment of debis and expenses of administration; 2. The deceased in his lifetime had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law the conveyance would be void as against his creditors; 3. The subject of the attempted conveyance would be liable to attachment in his lfeuime; 4, The executor or administrator has shown fo desire to fle action or failed to institute the same within 2 reasonable time; 5 Leave is granted by the court to the Creditor fo file the action; A bond is filed by the creditor, ‘The action by the creditor is in the name of the executor or administrator. Note: The lest three requisites are unnecessary where the grantee is the executor or administrator himself, in which ‘event, the action should be in the name of all the creditors. ie aud gu ee boeus SECTION 1. DEBTS PAID IN FULL IF ESTATE SUFFICIENT A wit of execution is not the proper procedure to satisfy debts. The court must ORDER THE degedent, raza fen upon a'propery of 2 ao prgeedure is for the Sut sao fateh the gh preter the wil,San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS. 2. From the personal property, and 3. From the real property. Exception: The court, on petition of interested Parties, may modify such order of disposition. SECTION 2. PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION MADE BY WILL If the testator makes a provision in his will or designates the estate to be appropriated for the payment of his debts that will be followed, But fits not sufficient, such part of the estate as 's not disposed of by wil, if any, shall be appropriated for that purpose. SECTION 3. PERSONALTY _ FIRST CHARGEABLE FOR DEBTS, THEN REALTY ‘Two (2) Instances When Realty is Liable for Debts and Expenses 1. When the personal estate of the decedent is not sufficient for that purpose: 2, Where the sale of such personally would be to the detriment of the participants of the estate, SECTION 4. ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS Hf the court is satisfied that the contingent claim duly filed is valid, it may order the executor or administrator fo retain in his hands a sufficient part of the estate to pay a portion equal to the dividend of the creditors. Requisites: 4. Contingent claim is duly filed: 2. Court is satisfied that the claim is valid and 3. The claim nas become absolute, SECTION 5. HOW CONTINGENT CLAIM BECOMING ABSOLUTE IN TWO YEARS ALLOWED AND PAID. 1. If such contingent claim becomes absotute and is presented to th cur as an absolute claim within two years from the time allowed for the presentation of claims, it will be paid in the same manner as the other absolute claims 2. If the contingent claim matures after tite expiration of the two years, the creditors, may sue the distributes, who are fable in proportion to the shares in the estate respectively received by them (Jaucian vs Quero}, L-11307, Octover 5, 1918) It has been ruled thet the only instance wherein a creditor can fle an action against @ distributee of the debtor's assets is under Sec. 5, Rule 88 of the Rules of Cour. The contingent clsims must. first have been established and allowed in the probate court before the creditors can file an action directly against the distributes (De Bauilista vs. De Guzman, L-26298, November 25, 1983). SECTION 6. COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES, LEGATEES, OR HEIRS HAVE BEEN IN POSSESSION SECTION 7. ORDER OF PAYMENT IF ESTATE INSOLVENT estate Is insolvent, as in liabilities are more than the assets, Sec.7 in roletion to Art, 1059 and 2239 f0' 2251 of the Civil Code (Concurrence and Preference of Credits) must epply. SECTION 8. DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS. SECTION 9, ESTATE OF INSOLVENT NONRESIDENT, HOW DISPOSED OF Im case administration is token in the Philippines of the estate of @ person wha was at the time of his death an inhabitant of another country, and who died INSOLVENT. his estate in the Philppmes shall be so disposed of that his cresitors in and ouside: the Philippines may receive an equal share, in proportion to their respactive credits, SECTION 10. WHEN AND HOW CLAIM ee ad ae cet Egtare P of avai n the Of Un INSOLVENT RESIGENT and te wil be distributed equally among: those efeitos Principle of Reciprocity 7 The benefits of Sections’9 ain 10:earinot be extended fe Ye treeiors in another county i the propertlyof stich ‘ceceasedspeison there found Is “nBtwequally apportioned to the Greditors residingifthe Philippines 7REMEDIAL LAW SECTION 11. ORDER FOR PAYMENT OF DEBTS SECTION 12, ORDERS RELATING TO PAYMENT OF DEBTS WHERE APPEAL 1S TAKEN. SECTION 13. WHEN SUBSEQUENT DISTRIBUTION OF ASSETS ORDERED Conditions: 4. Whole of the debts are not paid; 2. Whole assets are not distributed, OR other assets afterwards come to the hands of the executor or administrator. SECTION 14, CREDITORS TO BE PAID IN ACCORDANGE WITH TERMS OF ORDER SECTION 15. TIME FOR PAYING DEBTS AND LEGACIES FIXED, OR EXTENDED AFTER NOTICE, WITHIN WHAT PERIODS. Shall not exceed 4 year in the frst instance. But court may extend period on application of executor or administrator and after hearing {and notice on the following conditions: 1. The extension must not exceed six months for single extension. 2. The whole perica allowed to the original executor or administrator shall not exceed 2 years. Note: The provision is directory and extensions of the period may be granted by ‘the court taking into account the circumstances attending the distribution of the estate (Regalado, Vol. 2, 11" ed, p. 96). SECTION 16. SUCCESSOR OF OEAD EXECUTOR OR ADMINISTRATOR MAY HAVE TIME EXTENDED ON NOTICE WITHIN A CERTAIN PERIOD Successor of deceased executor or administrator may be given an extension not to exceed 6 months, SECTION 4 PERSONALTY ORDER OF SALE OF The court may order the whole of part of the PERSONAL estate to be sold if necessary 1. To pay debts and expenses of administration: SPECIAL PROCEEDINGS 2. To pay legacies; or 3. To cover expenses for the preservation of the estate, SECTION 2. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE, OR OTHER ENCUMBRANCE OF REALTY TO PAY DEBTS AND LEGACIES THOUGH PERSONALTY NOT EXHAUSTED, 1. If personal estate is NOT sufficient to pay debts, expenses of administration and legacies; or 2. If the sale of personal estate may injure the business or other interests of those Interested in the estate; and 3. If the testator has NOT made sumcient provision for payment of such debts, ‘expenses and legacies; 4. If the deceased was in his lifetime under contract, binding in law to deed real property to beneficiary (Section 8) 5. If the deceased during his lifetime held teal property in trust for another person (Section 9); Requisites: 1, Application of Executor/Administrator 2. Written notice to heirs, devisees and fegatees; and 3. Hearing. Note: Assets in the hands of executor/administrator will not be reduced to prevent a creditor from receiving his full debt (or diminish his dividends, Notice’ is mandatory. Without notice and hearing, the sele, mortuage or encumbrance is void. : The iasoa etd. Bs tiabaje ell are he presume owners Siné8! they sucBésd 16. allthe rights Spic obfigalion oF the deceased from thé Wicnigitbor thellets coat, ahey ae thereat affected by the,sele or morgage é - hese cannotbe depfives 61 the: property! exlepr in the manner provided by lawe(Mencqlaniy vs Bown, 1-27876, Apni 22, 7992).."" S SECTION2. PERSONS INTERESTED MAY PREVENT ‘SUCH SALE, ETC., BYSGIVING BOND ; ¥ io £ IF the oapositdate the salig"based on the fact that the” dppositor Stlewshaper of general cicxation “Jedgmany grantingidenying the-change of | ~osttiieg gerne dion une Dipte! en agy sass seater 209REMEDIAL LAW SECTION 1. VENUE ‘The RTC of the province where the petitioner has been residing for 3 years prior to the filing of the petition. * Achange of name is a proceeding IN REM and as such, strict compliance with alt jurisdictional requirements, particularly on publication, is essential in order to vest the ‘count with jurisdiction (Herrera, p. 511) SECTION 2. CONTENTS OF PETITION 4, That petitioner is a bona fide resident of the province where petition is filed for at least three years prior to the date of fling; Cause for change of name; Name asked for, Ail names by which petitioner is known (Secan Kok vs. Republic, -27621, August 30, 1973). + The petition shall be signed and verified by the person desiring his name changed or some other person in his behatt ‘+ Requirement of verification Is 2 formal, and NOT a jurisdictional requisite. It is not ‘a ground for dismissing petition Jurisdictional Requirements 4. The verified petition should be published for three successive weeks in some Rewspaper of general circulation in the province; 2. Both the title or caption of the petition and its body shel recite a. Nameinames or aliases of the applicant: b. Cause for which the change of name is sought: ©. New name asked for. (Secan Kok vs. Republic, supra.) Ratio: A change of name Is a matter of public. Interest (Secan Kok vs. Republic, supra). SECTION 3. ORDER FOR HEARING Hearing shall not be within 30 days prior to an ‘election nor within 4 MONTHS affer the LAST PUBLICATION of notice of hearing, Effect of Discrepancy in the Petition and Published Order ‘The defect in the petition and the order, as to the spelling of the name of the petitioner. is substantial, because it dia not correctly identity the party' to sad proceedings {Tan vs Republic, L-16384, Apt! 26, 1962) 210 SPECIAL PROCEEDINGS Grounds for Change of Name (R-CHEN) 1, Name is sidiculous, tainted with dishonor or extremely dificult to write or pronounce, 2. Consequence of a change of status; ©.9. legitimated child; 3. Habitual and continuous use and has been known since childhood by a Fitipino name, unaware of her alien parentage: 4. A:sincere desire to adopt a Filipino name to grase signs of former alienage, all in good faith and without _prejudicing anybody, oF 5. Necessity to avoid confusion; Title of Petition Must Contain the Following: 4. Official name (birth certificate) ~ be very particular with the spelling because it may avoid or annul the proceedings; it is jurisdictional; 2. All sliases; and 3. Name asked for. Note: All the names or aliases must appear in the tile or caption of the petition, because the reader usually merely glances at the ttle of ‘the petition and may only proceed to read the ‘entire petition if the title is of interest to him (Secan Kok vs, Republic, supra). | The notinclusion of all the names of aliases of the applicant in the caption of the order or in the title of the petition defeats the very purpose of the required publication (Republic vs. Zosa, L-48702, Sept, 12, 1988), SECTION 4. HEARING SECTION 5. JUDGMENT SECTION 6. SERVICE OF JUDGMENT oof ds sgn Rule 103 oa Cece ee eee :} register eroogisnh=, Ee iene | Sos ge 2 | nogresider eee Che cia includes Bigege IE | yooateelyeabtfr and name. change, ottgbname oF Sic | nikeSan Beda College of Lato 2011 CENTRALIZED BAR OPERATIONS SUeerren rer Ceca gaat) ones Note: Dissolution of corporations should now be filéd wit the Securities and Exchange Commission and is covered by Tile XIV, Sections 117 to 122 of the Corporation Code of the Philippines. AM. No. 00-11-03-SC, promulgated on November 21, 2000, designated some RTC branches NATIONWIDE also known as Corporate courts) to try and decide SEC cases enumerated under Sec. 5 of P.D. 902-A RUS ene acca Mem a nore ett Tey Rea) Note: The matter of the filiations of ilegitimate Chiiren and the proof thereof is governed by Articles 172 and 173, in relation to Article 175, of the Family Code. Art. 172. The Sliation of legitimate children is established by any of the following 1 The record of birth appearing in the civil register or a final judgment; of 2. An admission of legitimate filation in @ public document or a private handwritten instrument and signed by the parent concemed, In the absence of the foregoing evidence, the legitimate fiiation shal be proved by: 1. The open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws. (2659, 266a, 2670) In effect, Judicial approval of voluntary recognition is required only when fiiation is proved by’ 4. Open and continuous possession of status of a legitimate child; or 2 Any cther means allowed by the Rules of Court and other special laws. (Gona-Javier v. CA, 239 SCRA 503) Art. 173. The action to clsim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs chall have 2 period of five years within which to institute the action, Art. 175. Wiesitimate chiigren may establish their illegitimate filation in the same way and. ‘on the same evidence as legitimate children. ‘The action must be brought within the ‘same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought: dung the lifetime of the alleged parent PU Un Ska HOME Note: The rule has already been repealed by the Family Code, which took effect on August 3, 1988, Note: There is no need to constitute the family home judicially or extrajudicilly. if the family actually resides in the premises, it is, therefore, a family home as contemplated by lew. Includes persons suffering the penalty of ‘Gul interdiction or who are hospitalized lepers, prodigais, deaf and ‘Sumb who are unable to read and write, those Who sre of unsound ‘mind, and persons who ‘are unable to take care of themselves and ‘manage their property by reason of age, disease, weak mind and ftter similar causes. ‘One who disappears from hie domisle and his whareabauts being ‘unknown and without hhaving lef an agent to administer his property Or the power of agent has expired, der of heady Beis i esi ss reg orld ak fest etre afer its publcetd mae newssSaper of Sereral a roulatewosh ty court te ti gat zaREMEDIAL LAW SPECIAL PROCEEDINGS Procedures in the Rule on Absentees Peition for Appointment of Representative ‘Application for Declaration of absence ‘nd appointment of Trustee or ‘Administrator n of Adminitration/ Trusteeship Appointment of Representative: + When a person disappears, whereabouts ‘are unknown, leaves no agent or upon expiration of power of agent, during the first two (2) years. Declaration of Absonce and Appointment of Administrator: + When “a person disappears and_ stil without any news since the receipt of the last news about him, after two (2) years if without administrator or after five (5) years ‘f with administrator + Petition may be instituted by (a) the Spouse present; (b) the heirs instituted in a wil; (6) relatives who would succeed by aw of intestacy: (6) those who have over the property:cf the absentee some right Subordinated to the condition of his death SECTION 4 REPRESENTATIVE APPOINTMENT OF SECTION 2, DECLARATION OF ABSENCE; WHO MAY PETITION Who May File A Petition for Appointment of Administrator or Trustee: 1. The spouse present; 2. The heirs instituted in @ wil, whe may Present an authentic copy of the same: 3. The relatives who would succeed by the lew of intestacy, 4. Those who have over the property of the absentee some right subordinated to the condition of his death, Purpose of Petition: To appoint an administrator over the properties of the absentee, Hence, if absentee fet no. Properties, such petition is unnecessary SECTION 3. CONTENTS OF PETITION 1. The jurisdictional facts 2 The names, ages, and residences of the heirs instituted in the wil, copy of which 212 shall be presented, and of the relatives who would succeed by the law of intestacy; 3. The names and residences of creditors and others who may have any adverse interest over the property of the absentee; 4. The probable value, location and character of the property belonging to the absentee, Patton far Appointment of Representative (unless the C2 years | absentee left an agent to administer his property) DyeasT years Peiition for dectaration of (Syearsto7 | absence and appointment of. years incase the | administrator or trustee may be ‘absentee lett an | fled agen) Considered cad for all intents ‘and purpeses except for urpases of succession (it ‘isappeared unser Beyond 7 years | syeraorainary circumstances, (Gosence of | ited dead st SEBS eres, | purposes, even succession); Riasrsnary | Eo perpoacs cr Mortage’ years continuous absence shall be suticiant for present spouse to remany, 2 years only under ‘extraordinary circumstance SECTION 4. TIME OF HEARING; NOTICE AND PUBLICATION THEREOF Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatses, devisees, creditors and other interested persons, at least ten (10) days eae ; mo. ee i cottefuive weeks! Brin Ao desigiiod fox the hearloa, ip: crafts mat wher 8 aljsentge re seen | ' SECTION's. !OPROSITION | Se. oeeege Oppositer mut 1. Stale wedi 2 Seed other: tenes % Fees, 2 restediparties on of Welore the oo ORDER SECTION 6, PROOR)AT: MEARINSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTION 7. WHO MAY BE APPOINTED Appointment of Representative/Trustee: 1. Spouse present (preferred); or 2. Any competent person. SECTION 3. ADMINISTRATION TERMINATION OF Grounds for Administration Absentee appears personally or through an agent; 2. Absentee’s death is proven and heirs appear, 3, Third person appears showing that he acquired tite over the property of the absentee. Termination of the General rule: No independent action for Declaration of Presumption of Death. Exception: The need fer deciaration of Presumptive death for purposes of remarriage (Aticle 41 of the Farnity Coce). Note: The Family Code provides thet for the purpose of contracting a second marriage, the present spouse must file a summary Proceeding for the declaration of the Presumptive death of the absentee, without Drejudice to the latter's reappearance. RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN THE CIViL feceuats Procedure for Cancellation or Correction of Entrios under Rule 108 Pilon for Cancellation or ‘Correction of any entry refating to an ‘acl, event order or decree {onceening the civil status ¥ ‘Court order fixing the dete and place fer Hearing t Publication ofthe court order atleast once a week for 3 successive weeks in a newspaper ‘of general circulation, with reasonable notice siver to persons named in the petition Fling of opposition by the civil registrar and ny person having/ciaiming interast under the enity whose cancellatonicoraction is ought, ‘within 15 days from notica of tha pation or fiom the last date of publication ofthe notice Hearing on the Petillon “Judgment granting/aenying the pation, Copy ‘ofthe judgment shal be served upon the owl | registrar, who shall annotate,the same SECTION 4. WHO MAY FILE PETITION Any person interested in any act, event, order or, sce sean ae of RILEY he BrBvince wn coffffpoMaing.civikrégitirais estes Proseeitings ot summary oF ade 4. es lanes ; dyersati the i a S nally pay or gry oer substaftial 213REMEDIAL LAW SPECIAL PROCEEDINGS Requisites of Adversarial Proceedings 1, Proper petition is filed where the Civil Registrar and all parties interested are impleaged; 2. The order of the hearing must be Published once a week for three Consecutive weeks; 3. Notice thereof must be given to the Civil Registrar and all parties affected thereby: 4, The civil registrar and any person having oF claiming any interest under the entry whose cancellation or correction is sought may, within 15 days from notice of the Petition or from the last date of publication ‘of such noticg, file his opposition thereto; 5. Full blown tral + Proceedings for the correction of entries should not be considered as establishing one’s status in 3 manner conclusively beyond dispute. The status corrected would not havé_a Superior quality for evidentiary purposes. There is no increase fF diminution of substantive right (Chiao Ben Lim vs. Zosa, L- 49252, December 29, 1986) SECTION 2. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION (BMD LAVLAA- NEC Jvc) Births, ‘Marriages; Deaths; Legal separations; Judgments of annulments of marriage; Judgments declaring marriages void from the beginning: 7. Legitimations, 8. Adoptions, 9. Acknowledgments of natural children; 40. Naturalization; 11. Election, loss or recovery of citizenshig; 12. Givi interdiction; 13. Judicia! determination of fliation: 14. Voluntary emancipation of a minor, 15. Change of name + Even substantial errors Jn a civil registry May be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings (Republic vs, Valencia, (-22181, March 5 1986) Adversarial Proceeding means one thal has opposing parties; contested ax distinguished from an ex parto application, one of which the party seeking relief fas given legal warning to the other party, and afforded the latler an 2a ‘opportunity to contest it (Republic v. Valencia, ‘No. L-32161, Mar. 5, 1986). Rule 108, when all the procedural requirements thereunder are followed, is the ‘appropriate adversary proceeding to effect ‘substantial correction and changes in entries of the civil register (Lee v. CA, G.R. No. L- 198387, Oct. 11, 2001). SECTION 3. PARTIES 1. Civil registrar: 2. All persons who have or claim any interest which would be affected thereby, ‘SECTION 4. NOTICE AND PUBLICATION Order of hearing shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province and all persons named in the petition shall be notified. SECTION 5, OPPOSITION ‘The following are entited to oppose the petition: 1. The Clull Registrar; and 2. Any person having or claiming any interest Under the entry whose cancellation or correction is sought. Within 15 days from notice of the petition or from date of last publication, SECTION 6. EXPEDITING PROCEEDINGS ‘The court may also grant preliminary injunetion ‘or the preservation of the rights of the parties pending such proceedings. SECTION 7. ORDER. ‘thé Civil Regisiter stall BEGWEAEE py of ahd annatst, hg gare on Petitions for the Coen es oe Pettign fo be Hed a. be RTE hore he fg? potivon@nresidas. peteSan Beda College of Zao 2017 CENTRALIZED BAR OPERATIONS Ce er Toney ea ers coer (Rule 103) ees (eer Solicitor General must ‘also be notified by service ofa copy of the petition Pelion is fied by any ‘person interested in any ACT, EVENT, ORDER ‘or DECREE concerning the cil status of persons, ‘Order shalt also be published once a week for three consecutive ‘weeks and court shal ‘cause reasonable notice to persons named in pation, ‘Oniy typographical terrors may be changes. Petition is fled by person desiring to change his name, (Order for hearing shall bbe published once a week for three consecutive weeks, | Firstname of Taat name (there must be may be changed, Service of judgment shall be upon the civ register concerned. Republic Act No. 9048 which was passed by Congress on February 8, 2001 substantially amended Article 412 of tne New Civil Code, te wit: No entry in @ civil register shall be changed of corrected without 3 judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concemed city of municipal civil registrar or consul general in accordance with the provisions Of this Act and its implementing rules and Fegulations, Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or misspelled place of birth or the like which is visible to the eyes or obvious to the understanding. and can be corrected or changed only by reference to other existing record or records: Proviiod, however. That no correction must involve the change of nationality, age, status or sex of the peiltioner (Sec. 2(3) RA 9046) Note: The law is clear. Clerical or typographical errors in entries of the civil register are now to be corrected and changed without need of a judicial order and by the city ‘or municipal civil registrar or consul general The obvious effect is to remove from the ambit of Rule 108 the correction or changing of Clerical or typographical errors in entries of the civil register. Hence, what is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register (Lee vs. CA, GR No. 118387, October 11, 2007), Patition for change of name (Rule 103) and petition for cancellation or correction of entries (Rule 108) are DISTINCT PROCEEDINGS. Hence, a party cannot change name and correct an entry in a single petition without satisfying the jurisdictional requirements, Grounds: 1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. The new first name or nickname has been habitually-and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; oF 3. The change wil avoid contusion. Who may file; Any person of legal age, having direct and personal interest in the correction of a clerical or typographical error in ‘an entry and/or change of first name or nickname in the civil register Person with direct and personal interest: It is assumed that 2 decision on the merits had already Deen rendered by the lower court and it 26 is the civ aspect of the case which the offended party is appealing. Suspension of prescriptive periods of cases falling under the authority of the “upon Under Sec. 410(c) of the Local Govemment Code of 1991, while under _ mediation, Conciliation, or arbitration, the prescriptive period shall be suspended from the time of the filing of complaint with the Punong Barangay which suspension shall not exceed 60 days. The prescriptive period shall resume upon receipt of the certificate of repudiation or certificate to file action, Remedios of the offended party if the Prosecutor refuses to file an information: 4. File an action for mandamus, in case of grave abuse of discretion; Lodge a new complaint before the court having jurisdiction over the offense where there is no double jeopardy: 3. Take up the matter with the Secretary of Justice in accordance with the Revised Administrative Code or with the President in special cases, 4. Insitute administrative charges against the ering prosecutor, 5. File criminal action against the prosecutor Under Art, 208 of RPC for negligence to prosecute or tolerance of the crime, 6. File civil action for damages under Art. 27 of the New Civil Code for failure to render service by a public officer, 7. Ask for @ special prosecutor. (Hoey vs. Prov. Fiscal of Rizal, G.R. No. L-61923-24, June 29, 1984) May Injunction Issue to Restrain Criminal Prosecution? Géierat Ru NOE be prota ot Anak he reason being, interest requires thai irre rhage the piatéetin ae Sanaiganbayan, 1995) Except 1. Toa the conalttion "Becused (Hemanges v8 sAlBano, GR. NesC-19272, Jan, 2574967) 8 inn eee 1968 the orderly administration Soe BUGe or to” avoid Sppression of munpisty of actions.San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS (Hernandez vs. Albano, supra.); 3. When there is a prejudicial question which is subjudice; 4. When the acts of the officer are without or in excess of authority (Planas vs, Gil, G.R. No, L-46440, January 18, 1939): 5. When the prosecution is under an invalid faw, ordinance or regulation (Young vs. Rafferty, GR. No, L-10981, February 14, 1916); When double jeopardy is clearly apparent; When the court had no jutisdiction over the offense (Lopez vs. Gity Judge. GR. No. L-25785, Oct. 29, 1966); 8. When it is @ case of persecution rather than prosecution; 8. When the charges are manifestly false and motivated by the lust for vengeance: 10. When there is clearly.no prima facie case against the accused end a motion to quash on that ground has been denied (Salonga vs. Pano, GR. No. L-59524 Feb. 18, 1985); and 11, Prevent the threatened uniawful arrest of petitioners (Brocka vs, Enrile, GR, Nos. 69663-65, December 10, 7990). SECTION 2. FORM OF THE COMPLAINT OR INFORMATION Common Requisites as to the Form of ‘Complaint and of information: 1 Inwriting: 2. In the name of the People of the Philippines; ana 3. Against all persons who appear to be reeponsible for the offense involved SECTION 3. COMPLAINT DEFINED Complaint is a swom written statement charging a person with an offense subscribed by the offended party, any peace officer, or public officer charged with the enforcement of the law violated, + The complaint as defined under Section 3 is different from the complaint fled with the Prosecutor's Office. ‘Th complaint mentioned in this section refers to one filed in court for the commencement of a enimival prosecution tor violation of a crime, usually cagnizable by municipal trial courts a8 welt as to a complaint fled by an offended party in private crimes or those: ‘which cannot be prosecuted We officio Requisites of a Complaint: 1. Ti must be in writing and under oath; 2. It must be in the name of the People of the Philippines; 3. I must charge’ @ person with an offense: and 4. It must be subscribed by the offended party, by any peace officer or public officer charged with the enforcement of the law violated, Note: A complaint presented by a private person when not sworn to by him is not necessarily veid. The want of an oath is a mere defect of form which does not affect the substantial rights of the defendant on the merits (Poople v. Historilio, G.R, No, 130408, June 16, 2000). The COMPLAINT FILED WITH THE PROSECUTOR'S OFFICE, from which the latter may initiate a preliminary investigation, refers to: 1. Any written complaint 2. Filed by an offended party or not: 3, Not necessarily under oath, except in 2 instances: a. Complaint for commission of an offense which cannot be prosecuted de officio or ts private in nature b. Where the law requires that itis to be started by a complaint swom to by the offended party, or when it pertains to those which need to be enforced by ‘specified public officers Persons who can file a complaint: 1. Offended perty 2. Any peace officer: 3. Other public officer charged with the enforcement of the law violated (e.g. Internal Revenue Officer for violation of the IIRC, custom agents with Fespect violations of the Tariff and Customs Code). | Suxgerved by ofa pry iy pescesgficer ooh Sree ged with | Sntorcaent of te violated; 3 ay Be fed ier aoe concn e |__prosecuter’s si nee Sy ose ‘6ffice. i a] usually elarsto. publeicvres. must be rgde nde ‘oath : usually weferBie. piivate cuir 227REMEDIAL LAW Under the Rule on Summary Procedure: complaint may be directly filed in the MTC, Provided that in Metro Manila and in chartered cities, the criminal action may only. be ‘commenced by the fling of information, which means, only by the prosecutor, except when the offense cannot be prosecuted de officio as in private crimes, SECTION 4, INFORMATION DEFINED Information is an accusation in writing charging a person with an offense, subscribed dy the prosecutor and filed with the court Requisites: 4. It must be in writing: 2. Itmust charge a person with an offense: 3. It must be subscribed by the fiscal: and 4. Itmust be filed in court. Persons authorized to file information: 1. City or provincial prosecutor and. their assistants; and 2. Duly appointed special prosecutors. Note: Prosecution in the RTC is always commenced by information, except: + In certain crimes against chastity (coneubinage, adultery, seduction. abduction, acts of lasciviousness): and + Defamations imputing any of the aforessis offenses wherein a sworn written complaint is required in accordance with ‘Section § of this Rule. * Incase of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls (People vs. Oso, G.R. No. £-42571, October 10, 1935). + Am information not propery signed cannot be cured by silence, acquiescence or even by express consent (Villa vs. ibanez, G.R. No, 4313, March 20, 1954} SECTION 5. WHO MUST PROSECUTE CRIMINAL ACTIONS Full discretion and contro! of the: prosecutor All criminal actions commenced by @ complaint OF information shall be prosecutes under the direction and control of the presecuter, Note: The institution of a criminal action depends upon the sound discretion of the fiscal, But once the case is already files in ‘court, the seme can no longer be withdrawn cr cisimissed without the cour's approval, Shoula the fiscal find it proper to conduct a 228, CRIMINAL PROCEDURE reinvestigation of the case at such stage, the Permission of the Court must be secured (Crespo vs. Mogul, G.R. No. 53973, June 30, 1987). Conditions for a private prosecutor to prosecute a criminal action 1, The public prosecutor has a heavy work schedule, or there is no public prosecutor ‘assigned in the province or city; 2. The private prosecutor is authorized in writing by the Chief of the Prosecutor Office or the Regional State Prosecutor (RsPy; 3. The authority of the private prosecutor must be approved by the court; 4, The private prosecutor shall continue to prosecute the case until the end of the trial Unless the authority is withdrawn or otherwise revoked (A.M. No, 02-2-07-SC, ‘effactive May 1, 2002); 5. In case of the withdrawal or revocation of the authority of the private prosecutor, tne same must be approved by court (Memo Cire, No. 25, April 26, 2002, Regarding Amendment fo Sec. 5, Rule 110) In appeals before the CA and the SC, itis only the Solicitor “General that is authorized to bring and defend actions in behaif of the People of the Philippines (People vs. Nano, G.R. No. 94639, 13 Jonuaty 1992) + In all cases elevated tothe Sandiganbayan and fromthe Sanoiganbayan to the SC, the Office of the Ombudsman, through its Special Prosecutor shall represent the People of the Philippines, except in cases. fled Pursuant to £.0. Nos. 1, 2, 14 and 14-A, ‘issued in 1986. (Sec. 4, RA 8248). ta = ses rpsecution nae diganbajath* Gha"be under oe sive cof pn orth discretion 4. What oa No. (26228 xis