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REMEDIAL LAW REVIEWER

(2) Land registration cases,


Civil Procedure (3)
(4)
Cadastral cases,
Naturalization cases,
REMEDIAL LAW (5) Insolvency proceedings 77
Criminal Procedure General Principles (6) Other cases not herein provided for
Civil Procedure Jurisdiction
Evidence Except by analogy or in a suppletory character and
Special Proceedings I. Actions whenever practicable and convenient [Rule 4, Sec.
II. Cause of Action 4]
III. Parties to Civil Actions
Prospectivity/Retroactivity
IV. Venue The Rules of Court are not penal statutes and cannot
V. Pleadings be given retroactive effect [Bermejo v Barrios
VI. Summons (1970)].
VII. Motions
VIII. Dismissal of Actions Rules of procedure may be made applicable to
IX. Pre-Trial actions pending and undetermined at the time of
X. Intervention their passage, and are deemed retroactive in that
XI. Subpoena sense and to that extent. [In the Matter to Declare
in Contempt of Court Hon. Simeon Datumanong
XII. Modes of Discovery
(2006)].
XIII. Trial
XIV. Demurrer to Evidence
B. Substantive Law as Distinguished
XV. Judgments and Final Orders
XVI. Post-Judgment Remedies from Remedial Law
XVII. Execution, Satisfaction and
Remedial law or Procedural law
Effect of Judgments
ƒ provides a method of enforcing the rights
XVIII. Provisional Remedies established by substantive law;
XIX. Special Civil Actions ƒ prescribes the method of enforcing rights or
obtaining redress for their invasion. [Bustos v
GENERAL PRINCIPLES Lucero (1948)]
ƒ Judicial process for enforcing rights and duties
A. Concept of Remedial Law recognized by substantive law and for justly
B. Substantive Law as Distinguished from administering remedy and redress for a disregard
Remedial Law or infraction of them. [Fabian v Desierto (1998)]
C. Rule-making Power of the Supreme Court
D. Nature of Philippine Courts Substantive law
ƒ is that part of the law which creates, defines and
regulates rights concerning life, liberty, or
A. Concept of Remedial Law property, or the powers of agencies or
instrumentalities for the administration of public
Concept affairs [Bustos v Lucero (1948)]
Remedial statute or statutes:
(1) relating to remedies or modes of procedure;
(2) do not take away or create vested rights;
C. Rule-making Power of the Supreme
(3) BUT operate in furtherance of rights already Court
existing. [Riano citing Systems Factor
Corporation v NLRC (2000)] ƒ The Rules of Court was adopted and
promulgated by the Supreme Court pursuant to
The Rules of Court, promulgated by authority of law, the provisions of Sec 5(5) of Art. VIII of the
have the force and effect of law, if not in conflict Constitution, vesting in it the power to:
with positive law [Inchausti & Co v de Leon (1913)]. - Promulgate rules concerning the protection
The rule is subordinate to the statute, and in case of and enforcement of constitutional rights,
conflict, the statute will prevail. [Shioji v Harvey pleading, practice and procedure in all
(1922)]. courts, the admission to the practice of
law, the Integrated Bar, and legal
Applicability assistance to the underprivileged.
The Rules of Court is applicable in ALL COURTS, ƒ The power to promulgate rules of pleading,
except as otherwise provided by the SC [Rule 1, Sec. practice, and procedure is no longer shared by
2]. the Supreme Court with Congress, more so with
the executive… [Riano citing Echegaray v
It governs the procedure to be observed in civil or Secretary of Justice (1999)]
criminal actions and special proceedings [Rule 1,
Sec. 3]. It does not apply to the following cases:
[ELCINO]
(1) Election cases,
REMEDIAL LAW REVIEWER

1. Limitations on the rule-making power then pending, EXCEPT to the extent that in the
of the Supreme Court opinion of the Court their application would not be
78 feasible or would work injustice. [Riano citing Rule
114]
ƒ Sec 5(5) of Art. VIII of the Constitution sets forth
the limitations to the power: [SUS]
- that the rules shall provide a simplified and D. Nature of Philippine Courts
inexpensive procedure for speedy disposition
of cases; 1. Meaning of a court
- that the rules shall be uniform for courts of
the same grade; and Definition
- that the rules shall not diminish, increase or ƒ A court is an organ of the government belonging to
modify substantive rights. the judicial department, the function of which is
the application of the laws to controversies
2. Power of the Supreme Court to amend brought before it (and) as well as the public
and suspend procedural rules administration of justice.
ƒ Generally, the term describes an organ of the
Power to amend remedial laws government consisting of one person or of several
ƒ The constitutional faculty of the Court to persons, called upon and authorized to administer
promulgate rules of practice and procedure justice. It is also the place where justice is
necessarily carries with it the power to overturn administered. [Riano citing Black’s and Am. Jur.
judicial precedents on points of remedial law and C. J. S.]
through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)]. 2. Court as distinguished from a judge
ƒ The SC has the sole prerogative to amend, repeal, Court Judge
or even establish new rules for a more simplified Tribunal officially Simply an officer of such
and inexpensive process, and the speedy assembled under tribunal
disposition of case [Neypes v CA (2005)] authority of law
An organ of the Person who sits in court
Power to suspend remedial laws government with a
ƒ It is within the inherent power of the Supreme personality separate and
Court to suspend its own rules in a particular case distinct from judge
in order to do justice [De Guia v De Guia (2001)]. An office A public officer [Riano]
ƒ When the operation of rules will lead to an
injustice or if their application tends to subvert
The circumstances of the court are not affected by
and defeat instead of promote and enhance
the circumstance that would affect the judge. The
justice, their suspension is justified [Republic v CA
continuity of a court and the efficacy of its
(1978)].
proceedings are not affected by the death,
ƒ There is no absolute rule as to what constitutes
resignation, or cessation from the service of the
good and sufficient cause that will merit
judge presiding over it. In other words, the judge
suspension of the rules. The matter is
may resign, become incapacitated, or be disqualified
discretionary upon the Court [Republic v Imperial
to hold office, but the court remains. The death of
Jr. (1999)].
the judge does not mean the death of the court
[Riano citing ABC Davao Auto Supply v. CA (1998)].
ƒ The bare invocation of "the interest of substantial
justice" is not a magic wand that will
automatically compel this Court to suspend 3. Classification of Philippine courts
procedural rules [Ramos v Sps Lavendia (2008)].
NOTE: Please see succeeding subsections for
ƒ Procedural rules are not to be belittled or discussions on a to d.
dismissed simply because their non-observance a. Courts of law and equity
may have resulted in prejudice to a party's
substantive rights. Like all rules, they are required b. Courts of Original and Appellate jurisdiction
to be followed except only for the most persuasive
of reasons when they may be relaxed to relieve a c. Courts of General and Special jurisdiction
litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying d. Constitutional and statutory courts
with the procedure prescribed. [Polanco v Cruz
(2009)]. e. Superior and Inferior courts
ƒ Superior courts – Courts which have the power
NOTE: Although not laws in the technical sense of of review or supervision over another and lower
the term, Rules of Court, promulgated by authority court.
of law, have the force and effect of law. [Riano ƒ Inferior courts – Those which, in relation to
citing Shioji v Harvey (1922)] another court, are lower in rank and subject to
review and supervision by the latter. [Regalado]
Applicability: Prospective
The Rules of Court shall govern cases brought after f. Courts of record and not of record
they take effect, and also all further proceedings
REMEDIAL LAW REVIEWER

ƒ Courts of record – Those whose proceedings are appropriate courts. [Riano citing Santiago v.
enrolled and which are bound to keep a written Vasquez]
record of all trials and proceedings handled by ƒ The principle is an established policy necessary
them. [Regalado] One attribute of a court of to avoid inordinate demands upon the Court’s 79
record is the strong presumption as to the time and attention which are better devoted to
veracity of its records that cannot be those matters within its exclusive jurisdiction,
collaterally attacked except for fraud. All and to preclude the further clogging of the
Philippine courts, including inferior courts, are Court’s docket [Lim v. Vianzon (2006)].
now courts of record. [Riano] ƒ When the doctrine/principle may be
ƒ Courts not of record – Courts which are not disregarded: A direct recourse of the Supreme
required to keep a written record or transcript Court’s original jurisdiction to issue writs
of proceedings held therein. (referring to the writs of certiorari, prohibition,
or mandamus) should be allowed only when
4. Courts of original and appellate there are special and important reasons
jurisdiction therefor, clearly and specifically set out in the
petition. [Mangahas v. Paredes (2007)]. The
Supreme Court may disregard the principle of
ƒ Courts of original jurisdiction – Those courts in
hierarchy of courts if warranted by the nature
which, under the law, actions or proceedings
and importance of the issues raised in the
may be originally commenced.
interest of speedy justice and avoid future
ƒ Courts of appellate jurisdiction – Courts which
litigations [Riano].
have the power to review on appeal the
decisions or orders of a lower court. [Regalado]
9. Doctrine of non-interference or
5. Courts of general and special doctrine of judicial stability
jurisdiction
ƒ The principle holds that courts of equal and
coordinate jurisdiction cannot interfere with
ƒ Courts of general jurisdiction – Those competent
each other’s orders [Lapu-lapu Development
to decide their own jurisdiction and to take
and Housing Corp. v. Group Management Corp.]
cognizance of all kinds of cases, unless
The principle also bars a court from reviewing or
otherwise provided by the law or Rules.
interfering with the judgment of a co-equal
ƒ Courts of special or limited jurisdiction – Those
court over which it has no appellate jurisdiction
which have no power to decide their own
or power of review [Villamor v. Salas].
jurisdiction and can only try cases permitted by
ƒ The doctrine of non-interference applies with
statute. [Regalado]
equal force to administrative bodies. When the
law provides for an appeal from the decision of
6. Constitutional and statutory courts an administrative body to the SC or CA, it means
that such body is co-equal with the RTC in terms
ƒ Constitutional courts – Those which owe their of rank and stature, and logically beyond the
creation and existence to the Constitution and, control of the latter [Phil Spinster Corp. v.
therefore cannot be legislated out of existence Cagayan Electric Power].
or deprived by law of the jurisdiction and
powers unqualifiedly vested in them by the
Constitution. e.g. Supreme Court;
Sandiganbayan is a constitutionally-mandated JURISDICTION
court but created by statute. A. Jurisdiction over the parties
ƒ Statutory courts – Those created, organized and
B. Jurisdiction over the subject matter
with jurisdiction exclusively determined by law.
[Regalado] C. Jurisdiction over the issues
D. Jurisdiction over the res or property in
7. Courts of law and equity litigation
E. Jurisdiction of Courts
Philippine courts are both courts of law and equity. F. Jurisdiction over small claims, cases
Hence, both legal and equitable jurisdiction is covered by the rules on Summary
dispensed with in the same tribunal [U.S. v. Procedure and Barangay Conciliation
Tamparong (1998)] G. Totality Rule

8. Principle of judicial hierarchy Jurisdiction


Jurisdiction is defined as the authority to try, hear
ƒ The judicial system follows a ladderized scheme and decide a case [Tolentino v. Leviste (2004)].
which in essence requires that lower courts
initially decide on a case before it is considered Judicial power includes the duty of the courts of
by a higher court. Specifically, under the justice: [Art 8, Sec. 1, Consti]
judicial policy recognizing hierarchy of courts, a ƒ To settle actual controversies involving rights
higher court will not entertain direct resort to it which are legally demandable and enforceable;
unless the redress cannot be obtained in the
REMEDIAL LAW REVIEWER

ƒ To determine WON there has been a grave abuse - fixed by agreement of the parties;
of discretion amounting to lack or excess of - cannot be acquired through, or waived,
80 jurisdiction on the part of any government enlarged or diminished by, any act or omission
branch/ instrumentality. of the parties;
- neither can it be conferred by the
All courts exercise judicial power. Only the Supreme acquiescence of the court [Regalado citing De
Court is the court created by the Constitution [Art 8, Jesus v Garcia (1967)].
Sec. 1, Consti]. The Sandiganbayan is a - cannot be subject to compromise (Civil Code,
Constitutionally mandated court, but it is created by Art 2035)
statute. [PD 1486] ƒ Jurisdiction over the subject matter is
determined by the allegations of the complaint.
Jurisdiction in general It is not affected by the pleas set up by the
defendant in the answer or in the answer or in a
motion to dismiss. [Sindico v. Diaz (2004)].
A. Jurisdiction over the parties ƒ Once attached to a court, it cannot be ousted
by subsequent statute.
NOTE: The mode of acquisition of jurisdiction over - Exception: The statute itself conferring new
the plaintiff and the defendant applies both to jurisdiction expressly provides for retroactive
ordinary and special civil actions. effect. [Southern Food v. Salas (1992)]
ƒ The filing of the complaint or appropriate
1. How jurisdiction over the plaintiff is initiatory pleading and the payment of the
acquired prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the
Jurisdiction over the plaintiff is acquired by filing of nature of the action [CB v. CA (1992)](2008 Bar
the complaint or petition. By doing so, he submits Exam).
himself to the jurisdiction of the court [Davao Light - Exception: Non-payment of docket fee does
& Power Co., Inc. v CA]. not automatically cause the dismissal of the
case on the ground of lack of jurisdiction as
2. How jurisdiction over the defendant is long as the fee is paid within the applicable
prescriptive or reglementary period, more so
acquired when the party involved demonstrates a
willingness to abide by the rules prescribing
ƒ Acquired by the (1) voluntary appearance or
such payment. [Go v. Tong (2003)]
submission by the defendant or respondent to
the court or (2) by coercive process issued by
the court to him, generally by the service of 2. Jurisdiction versus the exercise of
summons [de Joya v Marquez (2006), citing jurisdiction
Regalado]
ƒ In an action in personam, jurisdiction over the ƒ Jurisdiction: the authority to hear and
person is necessary for the court to validly try determine a cause — the right to act in a case.
and decide the case, while in a proceeding in [Arranza v. BF Homes (2000)].
rem or quasi in rem, jurisdiction over the person - ‘Exercise of Jurisdiction.’: the exercise of this
of the defendant is not a prerequisite to confer power or authority
jurisdiction on the court provided the latter has ƒ Jurisdiction is distinct from the exercise
jurisdiction over the res [Alba v. CA]. thereof. Jurisdiction is the authority to decide a
case and not the decision rendered therein.
B. Jurisdiction over the subject When there is jurisdiction over the subject
matter, the decision on all other questions
matter arising in the case is but an exercise of
jurisdiction. [Herrera v Baretto et al (1913)]
1. Meaning of jurisdiction over the
subject matter 3. Error of jurisdiction as distinguished
from error of judgment
Jurisdiction over the subject matter is the power to
deal with the general subject involved in the action, Error of jurisdiction Error of judgment
and means not simply jurisdiction of the particular It is one where the act It is one which the court
case then occupying the attention of the court but complained of was issued may commit in the
jurisdiction of the class of cases to which the by the court without or in exercise of its
particular case belongs (Riano citing CJS). excess of jurisdiction jurisdiction [Cabrera v.
[Cabrera v. Lapid Lapid].
It is the power to hear and determine cases of the (2006)].
general class to which the proceedings in question It includes errors of
belong [Reyes v. Diaz (1941)] procedure or mistakes in
the court’s mistakes in
How conferred and determined the court’s findings
ƒ It is conferred only by the Constitution or the [Banco Filipino Savings
law. v. CA (2000)]
ƒ Jurisdiction CANNOT be:
REMEDIAL LAW REVIEWER

Correctible only by the Correctible by appeal ƒ Earliest opportunity of a party to raise the issue
extraordinary writ of [Cabrera v Lapid] of jurisdiction is in a motion to dismiss filed
certiorari [Cabrera v before the filing or service of an answer. Lack of
Lapid] jurisdiction over subject matter is a ground for a 81
Renders a judgment void Ground for reversal only motion to dismiss. If no motion is filed, the
or voidable [Rule 16 Sec. if it is shown that defense of lack of jurisdiction may be raised as
1, Rule 65] prejudice has been an affirmative defense in the answer. [Riano
caused [Banco Español- citing Sec. 1(b) and 6 of Rule 16].
Filipino v Palanca ƒ Jurisdiction over subject matter may be raised
(1918)] at any stage of proceedings, even for the first
time on appeal [Calimlim v. Ramirez (1982)]
4. How jurisdiction is conferred and
determined 8. Effect of estoppel on objections to
jurisdiction
Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement Jurisdiction by estoppel
of the action determines the jurisdiction of the General Rule: Estoppel does not apply to confer
court. jurisdiction to a tribunal that has none over a cause
of action. Jurisdiction is conferred by law. Where
5. Doctrine of primary jurisdiction there is none, no agreement of the parties can
provide one. Settled is the rule that the decision of a
ƒ Courts cannot and will not resolve a controversy tribunal not vested with appropriate jurisdiction is
involving a question which is within the null and void. [SEAFDEC-AQD v. NLRC (1992)]
jurisdiction of an administrative tribunal,
especially where the question demands the Exception: Participation in all stages of the case
exercise of sound administrative discretion before the trial court, that included invoking its
requiring the special knowledge, experience and authority in asking for affirmative relief, effectively
services of the administrative tribunal to barred petitioner by estoppel from challenging the
determine technical and intricate matters of court’s jurisdiction. [Soliven v. Fastforms (2004)]
fact [Paloma v. Mora (2005)].
ƒ Objective is to guide a court in determining C. Jurisdiction over the issues
whether it should refrain from exercising its
jurisdiction until after an administrative agency ƒ The power of the court to try and decide issues
has determined some question or some aspect of raised in the pleadings of the parties [Reyes v.
some question arising in the proceeding before Diaz (1941)]
the court [Riano citing Omictin v. CA (2007)] ƒ How conferred & determined:
- Pleadings filed by the parties,
6. Doctrine of adherence of jurisdiction - Agreement in a pre-trial order or stipulation
[Rule 18, Sec. 2], or
ƒ Also known as doctrine of continuity of - Implied consent as by the failure of a party to
jurisdiction object to evidence on an issue not covered by
ƒ The court, once jurisdiction has been acquired, the pleadings in Rule 10, Sec. 5. [Regalado]
retains that jurisdiction until it finally disposes
of the case [Bantua v. Mercader (2001)].
ƒ As a consequence, jurisdiction is not affected by
D. Jurisdiction over the res or
a new law placing a proceeding under the property in litigation
jurisdiction of another tribunal, EXCEPT:
- where there is an express provision in the ƒ Refers to the court’s jurisdiction over the thing
statute or the property which is the subject of the
- the statute is clearly intended to apply to litigation.
actions pending before its enactment [Riano ƒ Acquired either by
citing People v. Cawaling]. - actual or constructive seizure by the court of
ƒ Jurisdiction being a matter of substantive law, the thing in question, thus placing it in
the statute in force at the time of the custodia legis (e.g.attachment or
commencement of the action determines the garnishment) or
jurisdiction of the court. [Municipality of - by provision of law which recognizes in the
Kananga v Madrona (2003)] court the power to deal with the property or
subject-matter within its territorial
7. Objections to jurisdiction over the jurisdiction (e.g. land registration) [Regalado]
subject matter
ƒ The Court may ex mero motu, or on its own
initiative take cognizance of lack of jurisdiction
[Fabian v. Desierto (1998)].
REMEDIAL LAW REVIEWER

Specific jurisdiction Distinction between Questions of Law and Fact


[Mendoza vs Salinas (2007)]
82 ƒ Question of law—exists when the doubt or
E. Jurisdiction of Courts controversy concerns the correct application of
law or jurisprudence to a certain set of facts;
1. Supreme Court when the issue does not call for an examination
of the probative value of the evidence
The judicial power shall be vested in one SC and in presented, the truth or falsehood of facts being
such lower courts as may be established by law. admitted.
[Art. 8, Sec. 1, Consti] ƒ Question of fact—exists when the doubt or query
invites calibration of the whole evidence
considering mainly the credibility of the
Powers of the Supreme Court [Art. 8, Sec. 5,
witnesses, and the existence and relevancy of
Consti]
specific surrounding circumstances, as well as
their relation to each other and to the whole,
a. EXERCISE original jurisdiction over: and the probability of the situation
ƒ Cases affecting ambassadors and other public
ministers and consuls; c. Assign temporarily judges of lower courts to
- RTC also has concurrent jurisdiction other stations as public interest may require,
ƒ Petitions for certiorari, prohibition, mandamus, which shall not last 6 six months without the
quo warranto, and habeas corpus. consent of the judge concerned.

b. Review/revise/reverse/modify/affirm on appeal d. Order a change of venue or place of trial to


or certiorari, final judgments/orders of lower avoid a miscarriage of justice.
courts In:
ƒ All cases in which the constitutionality/validity e. Promulgate rules on:
of any treaty, international or executive ƒ Protection and enforcement of constitutional
agreement, law, presidential rights;
decree/proclamation/order/ instruction, ƒ Pleading/practice/procedure in all courts;
ordinance or regulation is in question; ƒ Admission to the practice of law;
- NOTE: power of review contemplates the ff ƒ The Integrated Bar;
courts: CA, Sandiganbayan, CTA, RTC, and ƒ Legal assistance to the under-privileged.
other courts authorized by law.
ƒ All cases involving the legality of any tax Guidelines on the rules:
/impost /assessment /toll, or any penalty - Provide a simplified and inexpensive
imposed in relation thereto; procedure for the speedy disposition of cases;
ƒ All cases in which the jurisdiction of any lower - Uniform for all courts of the same grade;
court is in issue; - Not diminish/increase/modify substantive
ƒ All criminal cases in which the penalty imposed rights.
is reclusion perpetua or higher; - Rules of procedure of special courts and
ƒ All cases in which only errors/questions of law quasi-judicial bodies shall remain effective
are involved. unless disapproved by the SC.

Exceptions: [Josefa v. Zhandong (2003)] f. Appoint all Judiciary officials/employees in


- The conclusion is grounded on speculations/ accordance with the Civil Service Law.
surmises /conjectures;
- The inference is manifestly Constitutional commissions
mistaken/absurd/impossible; ƒ COMELEC and COA – Unless otherwise provided
- There is grave abuse of discretion; by this Constitution or by law, any
- The judgment is based on a misapprehension decision/order /ruling of each Commission may
of facts; be brought to the SC on certiorari by the
- The findings of fact are conflicting; aggrieved party, within 30 days from receipt of
- There is no citation of specific evidence on a copy thereof. [Art. 9-A, Sec. 7, Consti]
which the factual findings are based; ƒ CSC - Judgments/decisions/orders are within
- The finding of absence of facts is contradicted the exclusive appellate jurisdiction of the CA
by the presence of evidence on record; through Rule 43. [BP 129, as amended by RA
- The findings of the CA are contrary to those of 7902]
the trial court; ƒ Sandiganbayan
- The CA manifestly overlooked certain relevant - Decisions and final orders of the
and undisputed facts that, if properly Sandiganbayan shall be subject to review on
considered, would justify a different certiorari by the SC in accordance with Rule
conclusion; 45 of the Rules.
- The findings of the CA are beyond the issues - Whenever, in any case decided, the death
of the case; penalty shall have been imposed, the records
- Such findings are contrary to the admissions shall be forwarded to the SC whether the
of both parties. accused shall have appealed or nor, for
review and judgment. [PD 1606 Sec 7]
REMEDIAL LAW REVIEWER

2. Court of Appeals [Sec. 9, BP 129] 3. Court of Tax Appeals [Sec. 7, RA 1125,


as amended by RA 9282]
a. ORIGINAL JURISDICTION 83
a. Exclusive appellate jurisdiction to review
To issue writs of mandamus, prohibition, certiorari, by appeal
habeas corpus and quo warranto, and auxiliary
writs/processes, whether or not in aid of its
ƒ Decisions of the Commissioner of Internal
appellate jurisdiction.
Revenue in cases involving disputed
assessments, refunds of internal revenue taxes,
Note: former rule only allowed the CA to issue
fees or other charges, penalties in relation
auxiliary writs and processes in aid of jurisdiction.
thereto, or other matters arising under the
National Internal Revenue or other laws
- The power is concurrent with the SC.
administered by the BIR;
ƒ Inaction by the Commissioner of Internal
b. EXCLUSIVE ORIGINAL JURISDICTION Revenue in cases involving disputed
assessments, refunds of internal revenue taxes,
Annulment of RTC judgments. fees or other charges, penalties in relations
thereto, or other matters arising under the
c. EXCLUSIVE APPELLATE JURISDICTION National Internal Revenue Code or other laws
administered by the BIR, where the National
ƒ Final Internal Revenue Code provides a specific period
judgments/decisions/resolutions/orders/awards of action, in which case the inaction shall be
of: deemed a denial;
- RTCs; ƒ Decisions, orders or resolutions of the RTCS in
- Quasi-judicial agencies/instrumentalities/ local tax cases originally decided or resolved by
boards/commissions including: them in the exercise of their original or
o SEC; appellate jurisdiction;
o Social Security Commission; ƒ Decisions of the Commissioner of Customs in
o ECC; cases involving liability for customs duties, fees
o CSC. or other money charges, seizure, detention or
ƒ Exception: Those falling within the SC’s release of property affected, fines, forfeitures
appellate jurisdiction of the Supreme Court in or other penalties in relation thereto, or other
accordance with: matters arising under the Customs Law or other
- The Constitution; laws administered by the Bureau of Customs;
- Labor Code; ƒ Decisions of the Central Board of Assessment
- BP 129; Appeals in the exercise of its appellate
- Sec. 17, Par. 3(1) and Par. 4(4) of the jurisdiction over cases involving the assessment
Judiciary Act of 1948. and taxation of real property originally decided
by the provincial or city board of assessment
Review of decisions by the NLRC: [St. Martin’s appeals;
Funeral Home vs NLRC (1998)] ƒ Decisions of the Secretary of Finance on customs
ƒ Supposed appeals from the NLRC to the SC are cases elevated to him automatically for review
interpreted and hereby declared to mean and from decisions of the Commissioner of Customs
refer to Petitioners for Certiorari under Rule 65. which are adverse to the Government under
ƒ All such petitions should be initially filed in the Section 2315 of the Tariff and Customs Code;
CA in strict observance of the doctrine on the ƒ Decisions of the Secretary of Trade and Industry,
hierarchy of courts. in the case of nonagricultural product,
ƒ All special civil actions arising out of any commodity or article, and the Secretary of
decision or final resolution or order of the NLRC Agriculture in the case of agricultural product,
filed with the SC after June 1, 1999 shall not commodity or article, involving dumping and
longer be referred to the CA, but shall forthwith countervailing duties under Sec 301 and 302,
be dismissed. respectively, of the Tariff and Customs Code,
and safeguard measures under RA 8800, where
Powers of the Court of Appeals either party may appeal the decision to impose
ƒ Try cases and conduct hearings; or not to impose said duties.
ƒ Receive evidence
ƒ Perform any and all acts necessary to resolve b. Jurisdiction over cases involving criminal
factual issues raised, including the power to offenses:
grant and conduct new trials or further
proceedings. General rule: Exclusive original jurisdiction over all
criminal offenses arising from violations of the
Trials or hearings must be continuous and must be National Internal Revenue Code or Tariff and
completed within 3 months, unless extended by the Customs Code and other laws administered by the
Chief Justice. BIR or the Bureau of Customs
REMEDIAL LAW REVIEWER

BUT! Offenses or felonies where the principal ƒ Whenever, in any case decided, the death
amount of taxes and fees, exclusive of charges and penalty shall have been imposed, the records
84 penalties, claimed is less than P1,000,000.00 or shall be forwarded to the SC whether the
where there is no specified amount claimed shall be accused shall have appealed or nor, for review
tried by the regular Courts and the jurisdiction of and judgment. [PD 1606 Sec 7]
the CTA shall be appellate.
a. Original Exclusive Jurisdiction
Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and ƒ Violations of RA 3019 (Anti-graft and Corrupt
the corresponding civil action for the recovery of Practices Law);
civil liability for taxes and penalties shall at all times ƒ RA 1379 (Forfeiture of Illegally Acquired
be simultaneously instituted with, and jointly Wealth);
determined in the same proceeding by the CTA, the ƒ Crimes by public officers or employees
filing of the criminal action being deemed to embraced in Ch. II, Sec.2 Title VII, Bk. II of the
necessarily carry with it the filing of the civil action, RPC (Crimes committed by Public Officers)
and no right to reserve the filling of such civil action namely:
separately from the criminal action will be - Direct Bribery under Art. 210 as amended by
recognized. BP 871, May 29, 1985;
- Indirect Bribery under Art. 211 as amended by
c. Exclusive appellate jurisdiction in criminal BP 871, May 29, 1985;
offenses: - Qualified Bribery under Art. 211-A as
amended by RA 7659, Dec. 13, 1993;
ƒ Over appeals from the judgments, resolutions or - Corruption of public officials under Art. 212
orders of the RTCs in tax cases originally where one or more of the accused are
decided by them, in their respected territorial officials occupying the following positions in
jurisdiction. the government whether in a permanent,
ƒ Over petitions for review of the judgments, acting or interim capacity, at the time of the
resolutions or orders of the RTCs in the exercise commission of the offense:
of their appellate jurisdiction over tax cases o Officials of the executive branch occupying
originally decided by the MeTCs, MTCs and the positions of regional director and
MCTCs in their respective jurisdiction. higher, otherwise classified as Grade 27 and
higher, of the Compensation and Position
d. Jurisdiction over tax collection cases as Classification Act of 1989 Republic Act No.
herein provided: 6758) specifically including:
o Provincial governors, vice-governors,
General rule: Exclusive original jurisdiction in tax members of the sangguniang panlalawigan,
collection cases involving final and executory provincial treasurers, assessors, engineers
assessments for taxes, fees, charges and penalties: and other provincial department heads;
o City mayors, vice-mayors, members of the
BUT! collection cases where the principal amount of sangguniang panglungsod, city treasurers,
taxes and fees, exclusive of charges and penalties, assessors, engineers and other department
claimed is less than P1,000,000.00 shall be tried by heads;
the proper MTC, MeTC and RTC o Officials of the diplomatic service occupying
the position of consul and higher;
e. Exclusive appellate jurisdiction in tax o Philippine Army and Air force colonels,
naval captains and all officers of higher
collection cases: rank;
o Officers of the PNP while occupying the
Over appeals from the judgments, resolutions or
position of Provincial Director and those
orders of the RTCs in tax collection cases originally
holding the rank of Senior Superintendent
decided by them, in their respective territorial
or higher;
jurisdiction.
o City and provincial prosecutors and their
assistants; officials and the prosecutors in
Over petitions for review of the judgments,
the Office of the Ombudsman and special
resolutions or orders of the RTCs in the Exercise of
prosecutor ;
their appellate jurisdiction over tax collection cases
o President, directors or trustees or managers
originally decided by the MeTCs, MTCs and MCTCs, in
of government owned or controlled
their respective jurisdiction."
corporations, state universities or
educational institutions or foundations;
NOTE: RA9282 elevated CTA’s rank to the level of
- Members of Congress and Officials thereof
the Court of Appeals with special jurisdiction.
classified as Grade 27 and up under the
Compensation and Classification Act of 1989;
4. Sandiganbayan [Sec.4 of RA 8249] - Members of the Judiciary without prejudice to
the provision of the Constitution;
ƒ Decisions and final orders of the Sandiganbayan - Chairmen and members of Constitutional
shall be subject to review on certiorari by the Commissions, without prejudice to the
Supreme Court in accordance with Rule 45 of provision of the Constitution;
the Rules.
REMEDIAL LAW REVIEWER

- All other national and local officials classified b. Appellate Jurisdiction


as Grade 27 and higher under the
Compensation and Position Classification Act Over final judgments, resolutions or orders of the
of 1989. RTC whether in the exercise of their original or 85
ƒ Other offenses or felonies whether simple or appellate jurisdiction
complexed with other crimes committed in ƒ over crimes and civil cases falling within the
relation to their office by the public officials original exclusive jurisdiction of the
and employees mentioned above; Sandiganbayan but which were committed by
ƒ Civil and Criminal Cases filed pursuant to and in public officers below Salary Grade 27.
connection with EO 1, 2, 14 & 14-A issued in
1986 5. Regional Trial Courts
ƒ Petitions for issuance of Writ of mandamus,
prohibition, certiorari, habeas corpus, a. Exclusive Original Jurisdiction in Civil
injunction and other ancillary writs and
Cases [Sec. 19, BP 129, Asked in the 2002
processes in aid of its appellate jurisdiction;
- Provided, jurisdiction is not exclusive of the Bar Examinations]
Supreme Court
ƒ Petitions for Quo Warranto arising or that may ƒ Incapable of pecuniary estimation (2000 Bar
arise in cases filed or that may be filed under Exam);
EO 1, 2, 14 & 14- A - If the action is primarily for the recovery of a
ƒ OTHERS provided the accused belongs to Salary sum of money, the claim is considered
Grade 27 or higher: capable of pecuniary estimation, and
- Violation of RA 6713 - Code of Conduct and jurisdiction over the action will depend on the
Ethical Standards amount of the claim. [RCPI v. CA (2002)]
- Violation of RA 7080 – The Plunder Law - If the basic issue is something other than the
- Violation of RA 7659 - The Heinous Crime Law right to recover a sum of money, if the money
- RA 9160 - Violation of The Anti-Money claim is purely incidental to, or a
Laundering Law when committed by a public consequence of, the principal relief sought,
officer the action is one where the subject of the
- PD 46 referred to as the gift-giving decree litigation may not be estimated in terms of
which makes it punishable for any official or money. [Soliven v. Fastforms (1992)]
employee to receive directly or indirectly and
for the private person to give or offer to give - If the thing sought to be deposited or
any gift, present or other valuable thing on consigned is a sum of money, the amount of
any occasion including Christmas, when such the debt due is determinable and capable of
gift, present or valuable thing is given by pecuniary estimation. [Ascue v. CA (1991)]
reason of his official position, regardless of - Action for support is incapable of pecuniary
whether or not the same is for past favors or estimation because the court is asked to
the giver hopes or expects to receive a favor determine first WON the plaintiff is indeed
or better treatment in the future from the entitled to support. [Baito v. Sarmiento
public official or employee concerned in the (1960)]
discharge of his official functions. Included - Action for specific performance is incapable
within the prohibition is the throwing of of pecuniary estimation. [Manufacturer’s
parties or entertainment in honor of the Distributor’s v. Yu Siu Liong (1966)]
official or employee or his immediate - The jurisdiction of the respective courts is
relatives. determined by the value of the demand and
- PD 749 which grants immunity from not the value of the transaction out of which
prosecution to any person who voluntarily the demand arose.
gives information about any violation of - The alternative prayer for specific
Art.210, 211 or 212 of the RPC, RA 3019, performance is also of the same value, for the
Sec.345 of the NIRC, Sec. 3604 of the Customs alternative prayer would not have been made
and Tariff Code and other provisions of the in the complaint if one was more valuable
said Codes penalizing abuse or dishonesty on than the other.[Cruz v. Tan (1950)]
the part of the public officials concerned and - Rescission is a counterpart of specific
other laws, rules and regulations penalizing performance therefore also incapable of
graft, corruption and other forms of official pecuniary estimation. [Lapitan v. Scandia
abuse and who willingly testifies against the (1968)]
public official or employee subject to certain - Action for declaration of nullity of a deed of
conditions. partition is incapable of pecuniary estimation.
[Russel v. Vestil (1999)]
NOTE: Private individuals can be sued in cases - An action for expropriation is incapable of
before the Sandiganbayan if they are alleged to be in pecuniary estimation. [Bardillon v. Masili
conspiracy with the public officer. (2003)]

ƒ Title to, or possession of, real property (or any


interest therein) where the property’s assessed
REMEDIAL LAW REVIEWER

value exceeds P20K or P50K (for civil actions in


Metro Manila); d. Exclusive Appellate Jurisdiction [Sec. 22,
86 Exception: Forcible entry into and unlawful BP 129]
detainer of lands/buildings
All cases decided by MeTCs/MTCs/MCTCs in their
ƒ Admiralty and maritime jurisdiction where the respective territorial jurisdictions. Metropolitan,
demand/claim exceeds P300K or P400K (in Municipal and Municipal Circuit Trial Courts
Metro Manila);
- Maritime and admiralty cases involve trade 6. Family Courts
and transactions in the sea. Maritime
jurisdiction includes maritime tort. [Negre v.
a. Exclusive Original Jurisdiction
Cabahug (1966)]
ƒ Petitions for guardianship, custody of children,
ƒ Probate (testate and intestate) where the gross habeas corpus in relation to the latter;
value of the estate exceeds P300K or P400K (in ƒ Petitions for adoption of children and revocation
Metro Manila); thereof;
ƒ Complaints for annulment of marriage,
ƒ Marriage contract and marital relations; declaration of nullity of marriage and those
relating to marital status and property relations
b. General Original Jurisdiction of husband and wife or those living together
under different status and agreements, and
ƒ All cases not within the exclusive jurisdiction of petitions for dissolution of conjugal partnership
any court/tribunal/person/ body exercising of gains;
judicial or quasi-judicial functions; ƒ Petitions for support and/ or acknowledgement;
ƒ Summary judicial proceedings brought under the
ƒ Within the exclusive original jurisdiction of a Family Code;
Juvenile and Domestic Relations Court and of ƒ Petitions for declaration of status of children as
the Court of Agrarian Relations; abandoned, dependent or neglected children,
for voluntary or involuntary commitment of
ƒ All other cases where the demand (exclusive of children, and for suspension, termination or
interest, damages of whatever kind, attorney's restoration of parental authority under PD 603,
fees, litigation expenses and costs) or the value EO 56 s. 1986 and other related laws;
of the property in controversy exceeds P300K or ƒ Cases for domestic violence against women and
P400K in Metro Manila. children, as defined therein but which do not
- The exclusion of the term “damages of constitute criminal offenses subject to criminal
whatever kind” in determining the prosecution and penalties.
jurisdictional amount under Sec. 19(8) and
Sec. 33 (1) of BP 129, as amended by RA7691, 7. Metropolitan Trial Courts/Municipal
applies to cases where the damages are
merely incidental to or a consequence of the
Trial Courts
main cause of action. However, if the claim
for damages is the main cause of action, or a. Exclusive Original Jurisdiction [Sec. 33, BP
one of the causes of action, the amount of 129]
such claim shall be considered in determining
the jurisdiction of the court.[Admin Circ. 09- ƒ Civil actions and probate proceedings (testate
94] and intestate), including the grant of provisional
remedies, where the value of the personal
- Actions for damages based on quasi-delicts property, estate or amount of the demand does
are primarily and effectively actions for the not exceed P300K or P400K (in Metro Manila)
recovery of a sum of money for the damages (value excludes of interest, damages of
suffered because of the defendant’s alleged whatever kind, attorney’s fees, litigation
tortious acts. This money claim is the expenses, and costs);
principal relief sought, and is not merely - Interest, damages of whatever kind,
incidental thereto or a consequence thereof. attorney's fees, litigation expenses and costs
[Iniego v. Purganan (2006)] shall be included in the determination of the
filing fees.
c. Original Jurisdiction [Sec. 21, BP 129] - If there are several claims or causes of actions
between the same/different parties in the
ƒ Certiorari, prohibition, mandamus, quo same complaint, the amount of the demand
warranto, habeas corpus and injunction which shall be the totality of the claims in all the
may be enforced in any part of their respective causes of action, WON the causes of action
regions; arose out of the same/different transactions.
- CONCURRENT jurisdiction with SC and CA
ƒ Forcible entry and unlawful detainer
ƒ Actions affecting ambassadors and other public - If the defendant raises the question of
ministers and consuls. ownership in his pleadings and the question of
- CONCURRENT jurisdiction with SC possession cannot be resolved without
REMEDIAL LAW REVIEWER

deciding the issue of ownership, the issue of other auxiliary writs and processes in aid of its
ownership shall be resolved only to determine appellate jurisdiction.
the issue of possession.
- That the MeTC has jurisdiction even in cases b. Concurrent Jurisdiction with Civil Courts 87
where the issue of possession is closely
intertwined with the issue of ownership is now ƒ Petitions by Muslim for the constitution of a
a settled doctrine in ejectment proceedings. family home, change of name and commitment
[Heirs of B. Hernandez v. Vergara (2006)] of an insane person to an asylum;
ƒ All other personal and legal actions not
ƒ All civil actions that involve title to, or mentioned in paragraph 1 (d) wherein the
possession of, real property (or any interest parties involved are Muslims except those for
therein) where the assessed value of the forcible entry and unlawful detainer, which shall
property (or interest therein) does not exceed fall under the exclusive jurisdiction of the
P20K or P50K (in civil actions in Metro Manila). Municipal Circuit Court; and
- Value excludes interest, damages of whatever ƒ All special civic actions for interpleader or
kind, attorney’s fees, litigation expenses and declaratory relief wherein the parties are
costs Muslims or the property involved belongs
- If land is not declared for taxation purposes, exclusively to Muslims
the value of such property shall be
determined by the assessed value of the Shari’a Circuit Courts are courts where Muslims can
adjacent lots. file cases involving the following:
ƒ Offenses defined and punished under PD 1083
ƒ All civil cases subject to summary procedure. ƒ Disputes relating to :
- Marriage
b. Delegated Jurisdiction in Cadastral and - Divorce
Land Registration Cases [Sec. 34, BP 129] - betrothal or breach of contract to marry
- customary dower (mahr)
ƒ Lots where there is no controversy/ opposition; - disposition and distribution of property upon
or divorce
ƒ Contested lots the value of which does not - maintenance and support and consolatory
exceed P100K. gifts (mut’a)
- The value is to be ascertained: - restitution of marital right
o By the claimant’s affidavit; - Disputes relative to communal properties
o By agreement of the respective claimants,
if there are more than one; NOTE: The Shari’a District Court or the Shari’a
o From the corresponding tax declaration of Circuit Court may constitute an Agama Arbitration
the real property. Council to settle certain cases amicably and without
- MTC decisions in cadastral and land formal trial.
registration cases are appealable in the same
manner as RTC decisions. The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
8. Shariah Courts conflicting parties.

a. Original Jurisdiction (Article 143, CMPL) F. Jurisdiction over small claims,


cases covered by the rules on
ƒ All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
Summary Procedure and Barangay
the Code of Muslim Personal Laws; Conciliation
ƒ All cases involving disposition, distribution and
settlement of estate of deceased Muslims, [A.M. No. 08-8-7-SC, the Rule of Procedure for Small
probate of wills, issuance of letters of Claims Cases effective October 1, 2008]
administration or appointment of administrators
or executors regardless of the nature or 1. Definition
aggregate value of the property;
ƒ Petitions for the declaration of absence and Small claims courts are courts of limited jurisdiction
death for the cancellation or correction of that hear civil cases between private litigants
entries in the Muslim Registries mentioned in [Rationale of Proposed Rule].
Title VI, Book Two of the Code of Muslim
Personal Laws; 2. Purpose
ƒ All actions arising from the customary contracts
in which the parties are Muslims, if they have The purpose of small claims process is to provide an
not specified which law shall govern their inexpensive and expeditious means to settle disputes
relations; and over small amounts [Riano].
ƒ All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all
REMEDIAL LAW REVIEWER

3. Scope
G. Totality Rule
88 This rule governs the procedure in actions before the
Metropolitan trial Courts, Municipal Trial Courts in Where there are several claims or causes of actions
Cities, Municipal Trial Courts and Municipal Circuit between the same or different parties, embodied in
Trial Courts for payment of money where the value the same complaint, the amount of the demand shall
of the claim does not exceed One Hundred Thousand be the totality of the claims in all the causes of
Pesos (P100,000.00) exclusive of interest and costs. action, irrespective of whether the causes of action
[Sec. 2, Scope] arose out of the same or different transaction [Riano
citing Pantranco North Express v Standard Insurance
4. Applicability (2005)]

The Metropolitan Trial Courts, Municipal Trial Courts


CIVIL PROCEDURE
in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall apply this Rule in all actions I. ACTIONS
which are:
ƒ Actions, in general: An ordinary suit in a court of
ƒ purely civil in nature where the claim or relief justice by which one party prosecutes another
prayed for by the plaintiff is solely for payment for the enforcement/ protection of a right or
or reimbursement of sum of money, and the prevention/redress of a wrong [Santos vs.
ƒ the civil aspect of criminal action, or reserved Vda. De Caparas, (1959)]
upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of Action vs Cause of action
Criminal Procedure. (Asked in the 1999 Bar Exam)
These claims or demands may be: Cause of action Action
ƒ For money owed under any of the following; ƒ A cause of action is Ordinary suit in a court
- Contract of Lease; the basis of the action of justice, by which one
- Contract of Loan; filed [Rule 2, Sec.1] party prosecutes another
- Contract of Services; ƒ Fact or combination of for the enforcement or
- Contract of Sale; or facts which affords a protection of a right, or
- Contract of Mortgage; party a right to the prosecution or
judicial interference in redress of a wrong
ƒ For damages arising from any of the following; his behalf. [Into vs.
- Fault or negligence; Valle (2005)]
- Quasi-contract; or
- Contract; 1. Meaning of ordinary civil actions
ƒ The enforcement of a barangay amicable An ordinary civil action is one that is governed by
settlement or an arbitration award involving a the rules for ordinary civil actions [Rule 1, Sec. 3(a)
money claim covered by this Rule pursuant to par 2]
Sec. 417 of Republic Act 7160, otherwise known
as the Local Government Code of 1991. [Sec. 4, 2. Meaning of special civil actions
Applicability]
A special civil action is one that is subject to the
5. Prohibited Pleadings specific rules prescribed for a special civil action; it
is also governed by the rules for ordinary civil
The following pleadings, motions, and petitions shall actions [Rule 1, Sec. 3(a) par 2]
not be allowed in the cases covered by this Rule:
ƒ Motion to dismiss the compliant except on the 3. Meaning of criminal actions
ground of lack of jurisdiction;
ƒ Motion for a bill of particulars; A criminal action is one by which the State
ƒ Motion for new trial, or for reconsideration of a prosecutes a person for an act or omission
judgment, or for reopening of trial; punishable by law. [Rule 1, Sec. 3(b)]
ƒ Petition for relief from judgment;
ƒ Motion for extension of time to file pleadings,
4. Civil actions versus special
affidavits, or any other paper;
ƒ Memoranda; proceedings
ƒ Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the A civil action is one by which a party sues another
court; for the enforcement or protection of a right, or the
ƒ Motion to declare the defendant in default; prevention or redress of a wrong. [Rule 1, Sec. 3(a)
ƒ Dilatory motions for postponement; par 1]
ƒ Reply;
ƒ Third-party complaints; and A special proceeding is a remedy by which a party
ƒ Interventions. [Sec. 14, Prohibited pleadings and seeks to establish a status, a right, or a particular
motions] fact. [Rule 1, Sec. 3 (c)]
REMEDIAL LAW REVIEWER

matter in litigation must also involve any of the


Distinctions between Civil Actions and Special following issues: title to, ownership, possession,
Proceedings paritition, foreclosure or mortgage or any interest in
(Asked in the 1998 Bar Exam) real property. (Riano) 89
Action Special
Proceeding Real action Personal Mixed action
As to parties Involves 2 or more Involves at action
parties least 1 party or Ownership or Personal Both real and
2 or more possession of property is personal
parties in real property is sought to be properties are
proper cases involved recovered or involved
As to cause Involves a right May involve a damages for
of action and a violation of right, but there breach of
such right by the need not be a Contract or the
defendant which violation of this enforcement of
causes some right a contract are
damage/prejudice sought
upon the plaintiff Founded on Founded on Founded on
As to Requires the Requires no privity of real privity of both
formalities application of such estate contract
legal remedies in formalities, as Filed in the Filed in the The rules on
accordance with it court where the court where the venue of real
the prescribed may be granted property (or any plaintiff or any actions govern
rules upon portion thereof) of the
application is situated defendants
resides, at the
As to Ordinary rules of Special rules of plaintiff’s
governing procedure procedure option
rules
As to appeal Cannot be Can be 6. Local and transitory actions
from an directly and immediately
interlocutory immediately and directly Local action Transitory action
order appealed to the appealed to
appellate court the appellate ƒ One that could be ƒ One that could be
until after final court instituted in one prosecuted in any one
judgment on the specific place [2011 of several places
merits Reviewer] [2011 Reviewer]
ƒ Venue depends upon ƒ Its venue depends
the location of the upon the residence of
5. Personal actions and real actions
property involved in the plaintiff or the
the litigation (Riano) defendant at the
ƒ Real Actions: Actions affecting title to or
option of the plaintiff
possession of real property, or interest therein.
(Riano)
[Rule 4, Sec. 1 par 1]

ƒ Personal Actions: All other actions are personal 7. Actions in rem, in personam and quasi
actions. [Rule 4, Sec.2] in rem
Importance of Distinction: for purposes of [Riano citing Domagas v. Jensen, (2005) and Biaco v.
determining the venue of the action (Riano) Philippine Countryside Rural Bank, (2007)]
ƒ Real actions shall be commenced and tried n the
proper court which has jurisdiction over the Action in rem Action in Action
area wherein the real property involved, or a personam quasi in rem
portion thereof, is situated. [Rule 4, Sec.1] Directed Directed Directed
ƒ Personal actions may be commenced and tried against the against against
where the plaintiff or any of the principal thing itself particular particular
plaintiffs resides, or where the defendant or any persons persons
of the principal defendants resides, or in the Jurisdiction Jurisdiction Jurisdiction
case of a non-resident defendant, where he may over the person over the person over the person
be found, at the election of the plaintiff. [Rule of the of the of the
4, Sec.2] defendant is defendant is defendant is
NOT required required not required as
NOTE: Not every action involving a real property is a long as
real action because the realty may only be jurisdiction
incidental to the subject matter of the suit. To be a over the res is
real action, it is not enough that the action must acquired
deal with real property. It is important that the
REMEDIAL LAW REVIEWER

Action in rem Action in Action


personam quasi in rem II. CAUSE OF ACTION
90 A proceeding to An action to ƒ A proceeding
determine the impose to subject
state/condition responsibility the interest 1. Meaning of cause of action
of a thing or liability upon of a named
a person defendant A cause of action is the act or omission by which a
directly over a party violates a right of another. [Rule 2, Sec.2]
particular
property to Elements of a Cause of Action [cited in Riano]
an ƒ Plaintiff’s legal right;
obligation/lie ƒ Defendant’s correlative obligation to respect
n burdening plaintiff’s right;
it ƒ Defendant’s act/omission in violation of
ƒ Deal with the plaintiff’s right [Ma-ao Sugar Central v. Barrios
status, (1947)] (Asked in the 1997 Bar Exam).
ownership or
liability of a Every ordinary civil action must be based on a cause
particular of action [Rule 2, Sec. 1]
property but
which are A cause of action stems from the sources of
intended to obligations under Art. 1156, CC - Law, Contract,
operate on Quasi-contract, Acts and omissions punishable by law
these and Quasi-delict. [Sagrada Orden etc v. National
questions Coconut Corporation (1952)]
only as
between the 2. Right of action versus cause of
particular
parties to the
action [Regalado]
proceedings
and not to Right of action Cause of action
ascertain or The remedial right or The delict or wrongful
cut-off the right to relief granted by act or omission
rights or law to a party to committed by the
interest of all institute an action defendant in violation of
possible against a person who has the primary rights of the
claimants committed a delict or plaintiff
[Domagas v. wrong against him
Jensen Right to sue as a The delict or wrong
(2005)] consequence of the
Judgment is Judgment is Judgment is delict
binding on the binding only binding upon Whether such acts give Determined by the
whole world upon parties particular him right of action averments in the
impleaded or persons determined by pleading regarding the
their successors substantive law acts committed by the
in interest defendant
Ex: Accion Ex: Action for Ex: Action for
reivindicatoria; specific partition; NOTE: There can be no right of action without a
annulment of performance; action to cause of action being first established [Regalado
marriage; action to foreclose real citing Español v. The Chairman of PVA (1985)]
naturalization recover money estate
proceedings or property mortgage 3. Failure to state a cause of action
(real or
personal) ƒ There is a failure to state a cause of action if
the pleading asserting the claim states no cause
The question of whether the trial court has of action. This is a ground for a motion to
jurisdiction depends on the nature of the action, dismiss. [Rule 16, Sec.1(g)]
i.e., whether the action is in personam, in rem, or ƒ It is submitted that the failure to state a cause
quasi in rem. [Riano citing Biaco v. Philippine of action dos not mean that the plaintiff has “no
Countryside Rural Bank (2007)] cause of action.” It only means that the
plaintiff’s allegations are insufficient for the
The distinction is important to determine whether or court to know that the rights of the plaintiff
not jurisdiction over the person of the defendant is were violated by the defendant. (Riano)
required and consequently to determine the type of ƒ There is a failure to state a cause of action if
summons to be employed. [Riano citing Gomez v. allegations in the complaint taken together, do
Court of Appeals (2004)] not completely spell out the elements of a
particular cause of action. (Riano)
REMEDIAL LAW REVIEWER

ƒ A failure to state a cause of action is not the only 1 cause of action arises. [Joseph v. Bautista
same as an absence or a lack of cause of action. (1989)]
The former refers to an insufficiency in the
allegations of the complaint while the latter For a single cause of action or violation of a right, 91
refers to the failure to prove or to establish by the plaintiff may be entitled to several reliefs. It is
evidence one’s stated cause of action. (Riano) the filing of separate complaints for these several
reliefs that constitutes splitting up of the cause of
4. Test of the sufficiency of a cause action which is proscribed by Rule 2, Sec. 3 and 4.
[City of Bacolod v. SM Brewery (1969)]
of action
Whether or not admitting the facts alleged, the 6. Joinder and misjoinder of causes of
court could render a valid verdict in accordance with action
the prayer of the complaint [Santos v. de Leo (2005)]
Joinder of Cause of Action: It is the assertion of as
5. Splitting a single cause of action many causes of action as a party may have against
another in one pleading alone. It is also the process
and its effects of uniting 2 or more demands or rights of action in
one action. [Riano citing Rule 2, Sec. 5 and CJS]
Definition: The act of instituting two or more suits
on the basis of the same cause of action. [Rule 2, Purpose: promote the policy on avoiding multiplicity
Sec.4] of suits.
The act of dividing a single or indivisible cause of The rule however is purely permissive as the plaintiff
action into several parts or claims and bringing can always file separate actions for each cause of
several actions thereon. (Regalado) action. [Baldovir vs. Sarte, 36 Phil. 550]
Effects of splitting a cause of action: [Taken from Requisites [Rule 2, Sec. 5]:
2011 Reviewer] ƒ The party joining the causes of action must
ƒ The filing of one or a judgment upon the merits comply with the rules on joinder of parties;
in any one is available as a ground for the ƒ The joinder shall not include special civil actions
dismissal of the others. [Rule 2, Sec.4] or actions governed by special rules;
ƒ Filing of the 1st complaint may be pleaded in ƒ Where causes of action are between the same
abatement of the 2nd complaint, on the ground parties but pertain to different
of litis pendentia; or venues/jurisdictions, the joinder may be
ƒ A judgment upon the merits in any of the allowed in the RTC provided one of the causes
complaints is available as ground for dismissal of of action are within the RTC’s jurisdiction and
the others based on res judicata. the venue lies therein;
ƒ A MTD under Rule 16 Sec. 1(e) or (f) may be ƒ TOTALITY RULE - Where the claims in all the
filed in order that the complaint may be causes of action are principally for recovery of
dismissed. money, the aggregate amount claimed shall be
the test of jurisdiction.
Basis: A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3] Misjoinder of causes of action [Rule 2, Sec. 6]
ƒ Misjoinder of causes of action is not a ground for
Purpose [City of Bacolod v. SM Brewery (1969)] dismissal of an action.
ƒ To prevent repeated litigation between the ƒ A misjoined cause of action may, on motion or
same parties in regard to the same subject or motu propio, be severed and proceeded with
controversy; separately.
ƒ To protect the defendant from unnecessary ƒ There is no sanction against non-joinder of
vexation. Nemo debet vexare pro una et eadem separate causes of action since a plaintiff needs
causa (No man shall be twice vexed for one and only a single cause of action to maintain an
the same cause); action (Regalado).
ƒ To avoid the costs and expenses incident to
numerous suits.

A single act/omission can be violative of various III. PARTIES TO CIVIL ACTIONS


rights at the same time, as when the act constitutes
juridically a violation of several separate and Requirements for a person to be a party to a civil
distinct legal obligations. However, where there is action:
only one delict/wrong, there is but a single cause of ƒ HE MUST BE EITHER [Rule 1, Sec.3]:
action regardless of the number of rights that may - A natural person;
have been violated belonging to one person. The - A juridical person;
singleness of a cause of action lies in the singleness o The State and its political subdivisions;
of the delict/wrong violating the rights of a person. o Other corporations, institutions and entities
If only 1 injury resulted from several wrongful acts, for public interest or purpose, created by
law; and
REMEDIAL LAW REVIEWER

o Corporations, partnerships and associations Note: A foreign corporation may be party to an


for private interest or purpose to which the action in Philippine courts:
92 law grants a juridical personality, separate ƒ If licensed to engage in business in the
and distinct from that of each shareholder, Philippines, it may sue or be sued in our courts;
partner or member [Art. 44, CC] ƒ If not licensed, it cannot sue, but it may be sued
- An entity authorized by law. in our courts;
o The estate of a deceased person [Limjoco ƒ If not engaged in business in the Philippines, it
vs. Intestate Estate of Fragante (1948)]; may sue in courts on a single isolated
o A political party incorporated under Act transaction, but it cannot be sued in our courts
1459 [now BP 68 (Corporation Code)]; on such transaction.
o A corporation by estoppel is precluded
from denying its existence and the Lack of legal capacity to Lack of legal
members thereof can be sued and be held sue personality to sue
liable as general partners. [Riano citing The plaintiff’s general The plaintiff is not the
Sec. 21, BP68, The Corporation Code of disability to sue, such as real party in interest
the Philippines] on account of minority,
o A contract of partnership having a capital insanity, incompetence,
of P3,000.00 or more but which fails to lack of juridical
comply with the registration personality or any other
requirements is nevertheless liable as a general disqualifications
partnership to third persons. [Riano citing It can be a ground for a It can be used as ground
Art. 1772 in rel. to Art. 1768, Civil Code] MTD [Rule 16 (1) (d)] for a MTD based on the
o A registered labor union [Sec. 243, PD 442 failure of complaint to
(Labor Code)], with respect to its state a cause of action.
property. [Rule 16 (1) (g)]
o A legitimate labor organization may sue
and be sued in its registered name. Parties to a civil action
[Riano citing Art. 2429(e), Labor Code] ƒ PLAINTIFF – One having interest in the matter
o The Roman Catholic Church has legal of the action or in obtaining the relief
capacity to sue. As to its properties, the demanded; the claiming party or the original
archbishop or diocese to which they claiming party and is the one who files the
belong may be a party. [Barlin v. Ramirez complaint [Riano]; does not exclusively apply to
(1906); Riano citing Barlin v. Ramirez and the original plaintiff [Rinao]; may refer to the
Versoza v. Fernandez(49 Phil. 627)]. claiming party, the counter-claimant, the cross-
o A dissolved corporation may prosecute claimant, or the third (fourth, etc.)-party
and defend suits by or gainst it provided plaintiff [Rule 3, Sec.1]
that the suits (i) occur within three years ƒ DEFENDANT – One claiming an interest in the
after its dissolution, and (ii) the suits are controversy or the subject thereof adverse to
in connection with the settlement and the plaintiff. The term may also include [Rule 3,
closure of its affairs. [Riano citing Sec. Sec 1):
122, Corporation Code] - UNWILLING CO-PLAINTIFF – A party who
should be joined as plaintiff but whose
ƒ HE MUST HAVE THE LEGAL CAPACITY TO SUE; consent cannot be obtained. He may be made
a defendant and the reason therefore shall be
ƒ HE MUST BE THE REAL PARTY IN INTEREST. stated in the complaint. [Rule 3, Sec. 10]
[Berman v. Cheng (2005)] - The original plaintiff becoming a defendant to
- Only natural or juridical persons or entities the original defendant’s counterclaim; also
authorized by law may be parties in a civil refers to the corss-defendant, or the third
case. (fourth, etc.)-party defendant. [Rule 3, Sec 1]
- A sole proprietorship is not vested with
juridical personality and cannot sue or file or
defend an action.
1. Real parties in interest;
- There is no law authorizing sole proprietorship indispensable parties; representatives
to file a suit. as parties; necessary parties; indigent
- A sole proprietorship does not possess a
judicial personality separate and distinct from
parties; alternative defendants
the personality of the owner of the
ƒ Real party in interest [Rule 3, Sec.2]
enterprise. [Rimbunan v. Oriental (2005)]
- The party who stands to be benefited/injured
- An unlicensed foreign corporation is
by the judgment in the suit;
nonetheless permitted to bring suit in the
- The party entitled to the avails of the suit.
Philippines if it is suing on an isolated
transaction.
Rules:
- Thus, the ascertainment of whether a foreign
o Every action must be prosecuted or
corporation is merely suing on an isolated
defended in the name of the real party in
transaction or is actually doing business in the
interest. [Rule 3, Sec.2]
Philippines requires the elicitation of at least
a preponderant set of facts.
REMEDIAL LAW REVIEWER

o The party’s interest must be direct,


substantial and material [Sumalo v. Litton Indispensable parties Necessary parties [Rule
(2006)]. [Rule 3, Sec. 7] 3, Sec. 8]
o Husband and wife shall sue and be sued Must be joined under Should be joined 93
jointly, except as provided by law [Rule 3, any and all conditions, whenever possible; the
Sec. 4] his presence being a action can proceed even
o A minor or a person alleged to be sine qua non for the in their absence because
incompetent may sue or be sued, with the exercise of judicial their interest is separable
assistance of his father, mother, guardian, power from that of the
or if he has none, a guardian ad litem. [Rule indispensable party
3, Sec. 5] No valid judgment if The case may be
o Minors (represented by their parents) are indispensable party is determined in court but
real parties in interest under the principle not joined. the judgment therein will
of intergenerational responsibility. [Oposa not resolve the entire
v. Factoran (1993)] Note: This doctrine is controversy if a necessary
inconsistent with Rule 3, Sec. 1 which party is not joined
provides that only natural or juridical They are those with They are those whose
persons may be parties in a civil action. such an interest in the presence is necessary to
o If a party becomes incompetent/ controversy that a final adjudicate the whole
incapacitated during the pendency of the decree would controversy but whose
action, the action survives and may be necessarily affect their interests are so far
continued by/against the incompetent/ rights so that the court separable that a final
incapacitated assisted by his legal guardian cannot proceed without decree can be made in
or guardian ad litem [Rule 3, Sec. 18] their presence. their absence without
affecting them.
ƒ Indispensable parties
- An indispensable party is a real party-in- - Whenever in any pleading in which a claim is
interest without whom no final determination asserted a necessary party is not joined, the
can be had of an action. [Rule 3, Sec.7] pleader is under obligation to: (i) set forth the
- A party who has such an interest in the name of the necessary party, if known, and
controversy or subject matter that a final (ii) state the reason why the necessary party
adjudication cannot be made, in his absence, is omitted. [Riano citing Rule 3, Sec. 9 par 1]
without injuring or affecting that interest. - The non-inclusion of a necessary party does
(Riano) not prevent the court from proceeding in the
- The joinder of a party becomes compulsory action, and the judgment rendered therein
when the one involved is an indispensable shall be without prejudice to the rights of
party. [Riano citing Rule 3, Sec.7] such necessary party [Rule 3, Sec. 9 par 3]
- A person is NOT an indispensable party if his
interest in the controversy or subject matter ƒ Indigent Party [Rule 3, Sec. 21]
is separable from the interest of the other - INDIGENT – One who has no money or
parties, so that it will not necessarily be property sufficient and available for food,
directly or injuriously affected by a decree shelter and basic necessities.
which does not complrete justice between - While the authority to litigate as an indigent
them. (Riano) party may be granted upon an ex parte
application and hearing, it may be contested
ƒ Representative as parties [Rule 3, Sec. 3] by the adverse party at any time before
- Those acting in fiduciary capacity, such as a judgment is rendered.
trustee/guardian/executor/administrator or a o If the court determines after hearing that
party authorized by law or ROC. the party declared indigent has sufficient
- The beneficiary shall be included in the title income or property, the proper docket and
of the case and shall be deemed to be the other lawful fees shall be assessed and
real party in interest. collected by the clerk of court.
- An agent acting in his own name and for the - The authority to litigate as an indigent shall
benefit of an undisclosed principal may sue or include an exemption from:
be sued without joining the principal. o Payment of docket fees and other lawful
fees;
Exception: If the contract involves things o Payment of TSN.
belonging to the principal. [Art. 1883, CC] - The amount of docket and other lawful fees is
a lien on any judgment rendered in favor of
ƒ Necessary Party [Rule 3, Sec. 8] indigent party, unless court otherwise
- One who is not indispensable but ought to be provides.
joined as a party if complete relief is to be
accorded as to those already parties, or for a ƒ Alternative Defendants [Rule 3, Sec. 13]
complete determination or settlement of the - Where the plaintiff is uncertain against whom
claim subject of the action of several persons he is entitled to relief, he
- Indispensable parties v. Necessary parties may join any or all of them in the alternative,
[taken from 2011 Reviewer and Riano]
REMEDIAL LAW REVIEWER

although a right to relief against one may be had been made in the honest conviction that it
inconsistent with a right to relief against the was proper and the subsequent dropping is
94 other. requested because it has turned out that such
inclusion was a mistake. [Riano citing Lim Tan
2. Compulsory and permissive joinder Hua v. Ramolete(1975)]
of parties
4. Class suit
ƒ Compulsory joinder of indispensable parties
[Rule 3, Sec 7] ƒ Requisites [Rule 3, Sec. 12]
- Parties in interest without whom no final - Subject matter of the controversy is one of
determination can be had of an action shall common/general interest to many persons;
be joined either as plaintiffs or defendants - The persons are so numerous that it is
ƒ Permissive joinder [Rule 3, Sec. 6] impracticable to join them all as parties (i.e.
- Parties can be joined, as plaintiffs or impracticable to bring them all before the
defendants, in one single complaint or may court);
themselves maintain or be sued in separate - Parties bringing the class suit are sufficiently
suits. numerous and representative of the class and
can fully protect the interests of all
Requisites (Regalado): concerned;
- Right to relief arises out of the same - The representative sues/defends for the
transaction or series of transactions; benefit of all.
Note: SERIES OF TRANSACTIONS – Transactions
connected with the same subject matter of ƒ Any party in interest shall have the right to
the suit. intervene to protect his individual interest.
- There is a question of law or fact common to [Rule 3, Sec. 12]
all the plaintiffs or defendants;
- Such joinder is not otherwise proscribed by ƒ If a class suit is improperly brought, the action
the rules on jurisdiction and venue. is subject to dismissal regardless of the cause of
action [Rule 16, Sec 1 (d)].
3. Misjoinder and non-joinder of ƒ A taxpayer's suit or a stockholder's derivative
parties suit is in the nature of a class suit, although
subject to the other requisites of the
ƒ A party is misjoined when he is made a party to corresponding governing law especially on the
the action although he should not be impleaded. issue of locus standi. [Regalado]
A party is not joined when he is supposed to be
joined but is not impleaded in the action. ƒ There is no class suit in an action filed by
(Riano) associations of sugar planters to recover
ƒ Neither misjoinder nor non-joinder of parties is damages in behalf of individual sugar planters
a ground for dismissal of an action. [Rule 3, Sec. for an allegedly libelous article in an
11] international magazine. There is no common or
ƒ Parties may be dropped or added by order of the general interest in reputation of a specific
court on motion of any party or on its own individual. Each of the sugar planters has a
initiative at any stage of the action and on such separate and distinct reputation in the
terms as are just. [Rule 3, Sec.11] community not shared by the others. [Riano
ƒ Any claim against a misjoined party may be citing Newsweek, Inc. v. Intermediate Appellate
severed and proceeded with separately. [Rule 3, court (1986)]
Sec. 11]
ƒ Non-joinder of an indispensable party is not a ƒ A class suit does not require a commonality of
ground for outright dismissal. Reasonable interest in the questions involved in the suit.
opportunity must be given for his inclusion by What is required by the Rules is a common or
amendment of the complaint [Cortez v Avila general interest in the subject matter of the
(1957)]. litigation. [Riano citing Mathay v. Consolidated
ƒ Objections to defects in parties should be made Bank &Trust Company (1974)]
at the earliest opportunity.
ƒ The moment such defect becomes apparent, a Class Suit Permissive Joinder of
motion to strike the names of the parties must Parties
be made. There is a single cause of There are multiple
ƒ Objections to misjoinder cannot be raised for action pertaining to causes of action
the first time on appeal [Regalado citing Garcia numerous persons. separately belonging to
v Chua]. several persons.
ƒ The rule on misjoinder or non-joinder of parties
does not comprehend whimsical and irrational CLASS SUIT AND DERIVATIVE SUIT, COMPARED
dropping or adding of parties in a complaint. (Asked in the 2005 Bar Examination)
What it really contemplates is erroneous or CLASS SUIT DERIVATIVE SUIT
mistaken non-joinder and misjoinder or parties.
The rule presupposes that the original inclusion
REMEDIAL LAW REVIEWER

When the subject matter An action brought by - The court may appoint a guardian ad litem for
of the controversy is one minority shareholders in the minor heirs.
of common or general the name of the
interest to many corporation to redress - The court shall order the legal 95
persons, and the parties wrongs committed representative(s) to appear and be
are so numerous that it against it, for which the substituted within 30 days from notice.
is impracticable to bring directors refuse to sue. - If no legal representative is named or if the
them all before the one so name shall fail to appear within the
court, one or more may It is a remedy designed specified period, the court may order the
sue or defend for the by equity and has been opposing party to procure the appointment of
benefit of all. [Rule 3, the principal defense of an executor or administrator for the estate.
Sec. 12] the minority
shareholders against - The substitute defendant need not be
abuses by the majority. summoned. The order of substitution shall be
served upon the parties substituted for the
In a derivative action, court to acquire jurisdiction over the
the real party in interest substitute party [Ferreria v Vda de Gonzales
is the corporation itself, (1986].
not the shareholders who
actually instituted it ƒ Death or separation of a party who is a public
[Lim vs. Lim Yu (2001)) officer [Rule 3, Sec. 17]
Requisites:
5. Suits against entities without - Public officer is a party to an action in his
official capacity;
juridical personality - During the pendency of the action, he either
dies/resigns or otherwise ceases to hold
Requisites [Rule 3, Sec.15] office;
ƒ There are 2 or more persons not organized as a - It is satisfactorily shown to the court by any
juridical entity; party, within 30 days after the successor takes
ƒ They enter into a transaction; office,
ƒ A wrong is committed against a 3rd person in o that there is a substantial need to
the course of such transaction. continue/maintain the action and
o The successor adopts/continues (or
Effect: Persons associated in an entity without threatens to do so) his predecessor’s action
juridical personality may be sued under the name by - The party or officer affected was given
which they are generally/commonly known, but they reasonable notice of the application therefore
cannot sue under such name. [Rule 3, Sec. 15] and accorded an opportunity to be heard.

The service of summons may be effected upon all Action on contractual money claims [Rule 3, Sec.
the defendants by serving upon any of them, or upon 20]
the person in charge of the office or place of ƒ Requisites:
business maintained under such name. [Rule 14, Sec. - The action must primarily be for recovery of
8] money/debt or interest thereon;
- The claim arose from express/implied
6. Effect of death of party litigant [this contract;
section is taken from the 2011 Reviewer] - Defendant dies before the entry of final
judgment in the court in which the action was
Substitution of parties pending.
ƒ Death of a party, where the claim is not ƒ The defendant’s death will not result in the
extinguished by the death of the party (e.g. dismissal of the action.
cases involving property and property rights ƒ The deceased shall be substituted by his legal
[Bonilla v Barcena (1976)]); [Rule 3, Sec. 16] representatives in the manner provided for in
(Asked in the 1998 and 1999 Bar Exams) Rule 3, Sec. 16, and the action will continue
- Counsel’s duty: until the entry of final judgment (Asked in the
o Inform court within 30 days after such 2000 Bar Exam)
death of the fact thereof; ƒ However, execution shall not issue in favor of
o Give the name and address of the legal the winning plaintiff. It should be filed as a
representatives. claim against the decedent’s estate without
need of proving the claim.
Note: Failure to comply with this duty is a
ground for disciplinary action. Transfer of interest during the pendency of the
action [Rule 3, Sec. 19]
- The heirs may be substituted for the deceased
without requiring the appointment of an ƒ General rule: The rule does not consider the
executor or administrator. transferee an indispensable party. Hence, the
action may proceed without the need to
implead him.
REMEDIAL LAW REVIEWER

ƒ Exception: When the substitution by or joinder


of the transferee is ordered by court. 3. Venue of personal actions
96 - The case will be dismissed if the plaintiff’s
interest is transferred to defendant unless At the plaintiff’s election: [Rule 4, Sec. 2]
there are several plaintiffs, in which case the ƒ Where the plaintiff or any of the principal
remaining plaintiffs can proceed with their plaintiffs resides;
own cause of action. ƒ Where the defendant or any of the principal
defendants resides;
ƒ In case of a non-resident-defendant, where he
IV. VENUE may be found.

Venue is the place, or the geographical are where an 4. Venue of actions against non-
action is to be filed and tried. In civil cases, it residents [Rule 5, Sec. 3] [also taken
relates only to the place of the suit and not to the from 2011 Reviewer]
jurisdiction of the court. [Riano citing Manila
Railroad Company v. Attorney General, (1911)] ƒ Non-resident found in the Philippines –
- For personal actions – Where the plaintiff
1. Venue versus jurisdiction [Riano] resides;
- For real actions – Where the property is
Distinctions between Venue and Jurisdiction located.
(Asked in the 2006 and 2008 Bar Exams) ƒ Non-resident not found in the Philippines – An
Venue Jurisdiction action may be filed only when the case involves:
Place where the action is Power of the court to - Personal status of plaintiff - Where plaintiff
instituted hear and decide a case resides;
- Any property of said defendant located in the
May be waived Jurisdiction over the Phil. - Where the property (or any portion
subject matter and over thereof) is situated/found.
the nature of the action
is conferred by law and
cannot-be waived 5. When the rules on venue do not
Procedural Substantive apply [Rule 4, Sec. 4]
May be changed by the Is fixed by law and
written agreement of the cannot be the subject of ƒ If a specific rule/law provides otherwise (e.g.
parties the agreement of the action for damages arising from libel);
parties ƒ Stipulations as to Venue is permitted if the
Establishes a relation Establishes a relation parties have validly agreed
between plaintiff and between the court and - in writing
defendant, or petitioner the subject matter - before the filing of the action
and respondent - on the exclusive venue
Not a ground for a motu Lack of jurisdiction over
propio dismissal (except the subject matter is a In the absence of qualifying restrictive words (e.g.
in cases of summary ground for a motu “only/solely/exclusively in such court”), venue
procedure; Rule 4, Rule proprio dismissal. stipulation is merely permissive; that is, the
on Summary Procedure) stipulated venue is in addition to the venue provided
for in the rules. [Polytrade Corp. v. Blanco (1969)]
2. Venue of real actions The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
ƒ Shall be commenced and tried in the proper bringing a case in other venues. The parties must be
court which has jurisdiction over the area able to show that such stipulation is exclusive. In the
wherein the real property involved, or a portion absence of qualifying or restrictive words, the
thereof is situated. [Rule 4, Sec. 1, par 1] stipulation should be deemed as merely an
ƒ Forcible entry and detainer actions shall be agreement on an additional forum, not as limiting
commenced and tried in the municipal court of venue to the specified place. [Riano citing Spouse
the municipality or city wherein the real Lantin v. Lantion, (2006)]
property involved, or a portion thereof, is
situated. [Rule 4, Sec. 1 par 2]
ƒ If the property is located at the boundaries of 2 6. Effects of stipulations on venue
places, file the case in either place (at the
plaintiff’s option). ƒ To be binding, the parties must have agreed on
ƒ If the case involves 2 properties located in 2 the exclusive nature of the venue of any
different places: prospective action between them. The
- If the properties are the object of the same agreement of parties must be restrictive and not
transaction, file it in any of the 2 places; permissive. [Regalado]
- If they are the objects of 2 distinct ƒ In the absence of qualifying restrictive words
transactions, separate actions should be filed (e.g. “only/solely/exclusively in such court”),
in each place unless properly joined. venue stipulation is merely permissive; that is,
REMEDIAL LAW REVIEWER

the stipulated venue is in addition to the venue court.


provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
ƒ The court may declare agreements on venue as Always filed before May be filed even after
97
contrary to public policy if such stipulation judgment judgment
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres 1. Kinds of Pleadings
(1978)].
Pleadings allowed [RULE 6, SEC. 2]
Other rules on venue 1) Complaint;
2) Answer;
ƒ IMPROPER VENUE: The Court may not motu 3) Counterclaim;
propio dismiss an action on the ground of 4) Cross-claim;
improper venue. [Dacoycoy v. IAC (1991)] 5) 3rd-party Complaint,
- Exception: In summary procedures. 6) Complaint-in-intervention;
ƒ CHANGE OF VENUE: The SC has the power to 7) Reply;
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti] a. Complaint [Rule 6, Sec. 3]
ƒ WAIVER OF VENUE:
- Until and unless the defendant objects to the Definition
venue in a motion to dismiss prior to a The pleading alleging the plaintiff’s cause/s of
responsive pleading, the venue cannot truly action. It should contain a concise statement of the
be said to have been improperly laid since for ultimate facts constituting the plaintiff’s cause/s of
all intents and purposes, the venue though action, not evidentiary facts or legal conclusions.
technically wrong may yet be considered
acceptable to the parties for whose It shall contain:
convenience the rules on venue had been ƒ in a methodical and logical form
devised. Although venue is mandatory, it is ƒ a plain, concise and direct statement of
waivable. [Diaz v. Adiong (1993)] ultimate facts on which the plaintiff relies for
- Means of waiving venue: his claim,
o Where parties validly agreed in writing ƒ omitting statement of mere evidentiary facts.
before the filing of the action on the [Rule 8, Sec 1]
exclusive venue thereof [Rule 4, Sec 4 (b)];
and Its function is to inform the defendant clearly and
o Failure to raise improper venue as definitely of claims made against him so that he may
affirmative defense or in motion to dismiss be prepared to meet the issues at trial.

It should inform the defendant of all material facts


V. PLEADINGS on which the plaintiff relies to support his demand.

1. Kinds of Pleadings It should state the theory of a cause of action which


2. Pleadings allowed in small claim cases and forms the bases of plaintiff’s claim of liability.
cases covered by the rules on summary [Tantuico v. Republic (1991)]
procedure
3. Parts of a pleading ULTIMATE FACTS – Essential facts constituting the
4. Allegations in a pleading plaintiff’s cause of action. A fact is essential if it
5. Effect of failure to plead cannot be stricken out without leaving the
statement of the cause of action insufficient.
6. Default [Remitere v. Montinola (1966)]
7. Filing and Service of pleadings
8. Amendment Not ultimate facts:
ƒ Evidentiary or immaterial facts;
Definition ƒ Legal conclusions, conclusions or inferences of
Pleadings are the written statements of the facts from facts not stated, or incorrect
respective claims and defenses of the parties, inferences or conclusions from facts stated;
submitted to the court for appropriate judgment ƒ Conclusions of law alleged in the complaint are
[Rule 6, Sec. 1] not binding on the court.
ƒ The details of probative matter or particulars of
Pleading Motion evidence, statements of law, inferences and
Purpose: To submit a Purpose: To apply for an arguments.
claim/defense for order not included in the
appropriate judgment judgment TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE
May be initiatory Cannot be initiatory as COMPLAINT: WON upon the averment of facts, a
they are always made in valid judgment may be properly rendered [Pamintan
a case already filed in v. Costales (1914)].
REMEDIAL LAW REVIEWER

ƒ In an original action before the RTC, the


b. Answer [Rule 6, Sec. 4] counterclaim may be considered compulsory
98 regardless of the amount. [Rule 6, Sec. 7]
Definition ƒ In the case of Agustin v. Bacalan, if a
The pleading where the defendant sets forth his counterclaim is filed in the MTC in excess of its
affirmative/negative defenses. It may also be the jurisdictional amount, the excess is considered
response to a counterclaim or a cross-claim. waived.
ƒ But in Calo v. Ajax, the remedy where a
Two kinds of defenses that may be set forth in the counterclaim is beyond the jurisdiction of the
answer [Rule 6, Sec 5] MTC is to set off the claims and file a separate
ƒ Negative Defenses – Specific denials of the action to collect the balance.
material facts alleged in the pleading of the
claimant essential to his cause of action. Kinds of counterclaims
- Negative Pregnant - Denial pregnant with an Compulsory Permissive
admission. It is a denial pregnant with the counterclaim counterclaim
admission of the substantial facts in the One which arises out of It does not arise out of
pleading responded to which are not squarely or is necessarily nor is it necessarily
denied. It is in effect an admission of the connected with the connected with the
averment it is directed to. [Philamgen v. transaction or subject matter of the
Sweet Lines (1993)] occurrence -that is the opposing party's claim.
ƒ Affirmative Defenses – Allegations of new subject matter of the
matters which, while hypothetically admitting opposing party's claim.
the material allegations in the claimant’s Does not require for its May require for its
pleading, would nevertheless prevent/bar adjudication the adjudication the
recovery by him. It includes fraud, prescription, presence of third parties presence of third parties
release, payment and any other matter by way of whom the court over whom the court
of confession and avoidance. cannot acquire cannot acquire
jurisdiction. jurisdiction.
c. Counterclaims [Rule 6, Sec. 6] Barred if not set up in Not barred even if not
the action. set up in the action.
Definition Need not be answered; Must be answered,
Any claim which a defending party may have against no default. otherwise, the
an opposing party. defendant can be
declared in default.
ƒ A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the ƒ A permissive counterclaim requires the payment
answer, it is not part of the answer. of docket fees. [Sun Insurance v. Asuncion
ƒ Upon its filing, the same proceedings are had as (1989)]
in the original complaint. ƒ A plaintiff who fails or chooses not to answer a
ƒ For this reason, it must be answered 10 days compulsory counterclaim may not be declared in
from service [Rule 11, Sec 4] (Asked in the 2002 default, principally because the issues raised in
and 2008 Bar Exams). the counterclaim are deemed automatically
joined by the allegations in the complaint. [Gojo
How to raise counterclaims v. Goyala (1970)]
ƒ Included in the answer:
- A compulsory counterclaim or a cross-claim i. Compulsory counterclaim
that a defending party has at the time he
files his answer shall be contained therein. Requisites of a compulsory counterclaim [Rule 6,
[Rule 11, Sec. 8] Sec 7] (Asked in the 1998 bar exam)
ƒ Exception: Pleadings may be amended under ƒ It must arise out of, or be necessarily connected
Rule 11, Sec. 10: with, the transaction/occurrence that is the
- By leave of court; subject matter of the opposing party's claim;
- Before judgment; ƒ It does not require for its adjudication the
- On the grounds of: presence of 3rd parties of whom the court
o Oversight; cannot acquire jurisdiction;
o Inadvertence; ƒ It must be within the court’s jurisdiction both as
o Excusable neglect; to the amount and the nature. [Regalado, citing
o When justice requires. Quintanilla v CA (1997)]

After the answer [Rule 11, Sec. 9] General rule: A compulsory counterclaim not set up
ƒ Counterclaims/cross-claims arising after the in the answer is deemed barred.
answer,
ƒ with the court’s permission, Exception: If it is a counterclaim which either
ƒ may be presented as a counterclaim/cross-claim matured or was acquired by a party after serving his
by supplemental pleading before judgment. answer. In this case, it may be pleaded by filing a
supplemental answer or pleading before judgment.
Rules on counterclaims [Rule 11, Sec. 9]
REMEDIAL LAW REVIEWER

adjudication of said cross-claim. In this case,


Note: the cross-claim is considered permissive.
ƒ The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible The dismissal of the complaint carries with it the 99
remedies. dismissal of a cross-claim which is purely defensive,
ƒ In the event that a defending party has a ground but not a cross-claim seeking an affirmative relief.
for dismissal and a compulsory counterclaim at [Torres v. CA (1973)]
the same time, he must choose only one
remedy. Cross Claim, Counterclaim and Third Party
ƒ If he decides to file a MTD, he will lose his Complaint
counterclaim. But if he opts to set up his (Asked in the 1997 and 1999 Bar Exams)
counterclaim, he may still plead his ground for Cross-claim Counterclaim 3rd Party
dismissal as an affirmative defense in his complaint
answer. Against a co- Against an Against a
ƒ If any of the grounds to dismiss under Rule 17, party opposing party person not a
Sec. 3 arise, the proper recourse for a party to the
defendant who desires to pursue his compulsory action
counterclaim in the same proceeding is not a Must arise May arise out of or Must be in
MTD. out of the be necessarily respect of the
ƒ Instead, he should only move to have the transaction connected with opponent’s
plaintiff declared non-suited on the complaint that is the the transaction or (plaintiff’s)
so that the latter can no longer present his subject the subject matter claim
evidence thereon, and simultaneously move that matter of the of the opposing
he be declared as in default on the compulsory original party’s claim
counterclaim, and reserve the right to present action or of a (compulsory
evidence ex parte on his compulsory counterclaim counterclaim), or
counterclaim. [BA Finance v. Co (1993)] therein it may not
(permissive
ii. Permissive counterclaim counterclaim)

[NOTE: Please also refer to table comparing Counter-counterclaims and counter-cross-claims


compulsory and permissive counterclaims] [Rule 6, Sec. 9]
ƒ Counter-Counterclaim - A claim asserted against
Test to determine whether a counterclaim is an original counter-claimant.
compulsory or permissive ƒ Counter-Cross-claim - A claim filed against an
LOGICAL RELATIONSHIP TEST: Where conducting original cross-claimant.
separate trials of the respective claims would entail
substantial duplication of effort and time and e. Third (fourth, etc.) party complaints [Rule
involves many of the same factual and legal issues. 6, Sec. 11]
[Meliton v. CA (1992)]
[NOTE: See also table in immediately preceding
iii. Effect on the Counterclaim when the subsection]
complaint is dismissed
Definition: It is a claim that a defending party may,
Under Section 3, Rule 17, dismissal of action due to with leave of court, file against a person not a party
plaintiff’s fault shall be without prejudice to the to the action for contribution, indemnity,
defendant’s right to prosecute his counterclaim in subrogation or any other relief, in respect of his
the same/separate action. opponent's claim.

d. Cross-claims [Rule 6, Sec. 8] There could also be a 4th/etc.-party complaint with


the same purpose and function.
Requisites for cross-claim
ƒ A claim by one party against a co-party; 3rd-party complaint Complaint in
ƒ It must arise out of the subject matter of the intervention
complaint or of the counterclaim; Brings into the action a Same
ƒ The cross-claimant is prejudiced by the claim 3rd person who was not
against him by the opposing party. originally a party
Initiative is with the Initiative is with a non-
General rule: A cross-claim is always compulsory. A person already a party to party who seeks to join
cross-claim not set up shall be barred. [Rule 9, Sec. the action the action
2]
3rd-party complaint Counterclaim
Exceptions: Need not be within the Must be within the
ƒ When it is outside the court’s jurisdiction; jurisdiction of the court jurisdiction of the court
ƒ If the court cannot acquire jurisdiction over 3rd trying the main case trying the main case
parties whose presence is necessary for the Diminishes/defeats the Need not
REMEDIAL LAW REVIEWER

recovery sought by the diminish/defeat the ƒ when he is so situated as to be adversely


opposing party recovery sought by the affected by a distribution or disposition of
100 opposing party property in the custody of the court or of an
Cannot exceed the May exceed in amount officer thereof.
amount stated in the or be different in kind
original complaint from that sought in the Not an independent action
original complaint Intervention is not an independent action, but is
ancillary and supplemental to an existing litigation.
Tests to determine whether the 3rd-party [Republic v. Sandiganbayan]
complaint is in respect of plaintiff's claim [Capayas ƒ It is neither compulsory nor mandatory but only
v. CFI (1946)] optional and permissive. [Mabayo v. CA (2002)]
ƒ WON it arises out of the same transaction on ƒ The Court has full discretion in permitting or
which the plaintiff's claim is based, or although disallowing intervention, which must be
arising out of another/different transaction, is exercised judiciously and only after
connected with the plaintiff’s claim; consideration of all the circumstances obtaining
ƒ WON the 3rd-party defendant would be liable to in the case. [Mago v. CA (1999)]
the plaintiff or to the defendant for all/part of ƒ It is not an absolute right as it can be secured
the plaintiff’s claim against the original only in accordance with the terms of applicable
defendant; statute or rule. [Office of Ombudsman v.
ƒ WON the 3rd-party defendant may assert any Samaniego (2010)]
defenses which the 3rd-party plaintiff has or
may have to the plaintiff’s claim. Requisites for valid intervention
ƒ There must be a motion for intervention filed
NOTE: before rendition of judgment by the trial court.
ƒ Leave of court to file a 3rd-party complaint may ƒ Movant must show in his motion that he has a:
be obtained by motion under Rule 15. - legal interest in (1) the matter of litigation,
ƒ Summons on 3rd (4th/etc.) – party defendant (2) the success of either of the parties in the
must be served for the court to obtain action or (3) against both parties.
jurisdiction over his person, since he is not an - that the movant is so situated as to be
original party. adversely affected by a distribution or other
ƒ Where the trial court has jurisdiction over the disposition of property in the custody of the
main case, it also has jurisdiction over the 3rd- court or an officer thereof
party complaint, regardless of the amount - that the intervention must not unduly delay or
involved as a 3rd-party complaint is merely prejudice the adjudication of the rights of the
auxiliary to and is a continuation of the main original parties and that the intervenor’s
action. [Republic v. Central Surety (1968)] rights may not be fully protected in a
ƒ A 3rd-party complaint is not proper in an action separate proceeding.
for declaratory relief.
Meaning of legal interest
f. Complaint-in-intervention The legal interest must be one that is actual and
material, direct and of an immediate character, not
Pleadings in intervention [Rule 19, Sec. 3] merely contingent or expectant so that the
ƒ COMPLAINT-IN-INTERVENTION – If intervenor intervenor will either gain or lose by the direct legal
asserts a claim against either or all of the operation of the judgment.
original parties.
ƒ ANSWER-IN-INTERVENTION – If intervenor Remedy for denial of motion for intervention
unites with the defending party in resisting a ƒ The movant may file a motion for
claim against the latter. reconsideration since the denial of a motion for
intervention is an interlocutory order.
Definition ƒ Alleging grave abuse of discretion, movant can
INTERVENTION is a remedy by which a third party, also file a certiorari case.
not originally impleaded in a proceeding, becomes a
litigant therein to enable him to protect or preserve g. Reply [Rule 6, Sec. 10]
a right or interest which may be affected by such
proceeding. Definition: The plaintiff’s response to the
defendant's answer,
Its purpose is "to settle in one action and by a single ƒ the function of which is to deny or allege facts
judgment the whole controversy (among) the in denial or in avoidance of new matters alleged
persons involved." [First Philippine Holdings v. by way of defense in the answer and
Sandiganbayan (1996); Rule 19] ƒ thereby join or make issue as to such new
matters.
When allowed
Intervention shall be allowed when a person has:
ƒ a legal interest in the matter in litigation;
ƒ or in the success of any of the parties;
ƒ or an interest against the parties; and
REMEDIAL LAW REVIEWER

Effect of failure to reply (Asked in the 2000 bar provided that the amount and nature thereof
exam) are within the coverage of this Rule and the
prescribed docket and other legal fees are paid.
General rule: Filing a reply is merely optional. New 101
facts that were alleged in the answer are deemed NOTE: Courts decision shall be contained in Form 13-
controverted should a party fail to reply thereto. SCC

Exception: Reply is required: Prohibited Pleadings and Motions:


ƒ Where the answer is based on an actionable ƒ Motion to dismiss the complaint except on the
document. [Rule 8, Sec. 8] ground of lack of jurisdiction;
ƒ Where the answer alleges the defense of usury. ƒ Motion for a bill of particulars;
[Rule 8, Sec. 11] ƒ Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
2. Pleadings allowed in small claim ƒ Petition for relief from judgment;
ƒ Motion for extension of time to file pleadings,
cases and cases covered by the rules affidavits, or any other paper;
on summary procedure ƒ Memoranda;
ƒ Petition for certiorari, mandamus, or prohibition
Under the Revised Rules on Summary Procedure against any interlocutory order issued by the
the only pleadings allowed to be filed are: court;
ƒ complaints; ƒ Motion to declare the defendant in default;
ƒ compulsory counterclaims and cross-claims ƒ Dilatory motions for postponement;
pleaded in the answer; and ƒ Reply;
ƒ the answers thereto. [Sec. 3] ƒ Third-party complaints; and
ƒ Interventions.
Prohibited pleadings, motions or petitions:
ƒ Motion to dismiss the complaint or to quash the 3. Parts of a pleading [Rule 7, Secs. 1
complaint or information except on the ground
of lack of jurisdiction over the subject matter, to 3]
or failure to comply with required barangay
conciliation proceedings; a. Caption
ƒ Motion for a bill of particulars;
ƒ Motion for new trial, or for reconsideration of a ƒ Caption - Court’s name, action’s title (i.e.
judgment, or for opening of trial; parties’ names) and docket number.
ƒ Petition for relief from judgment;
ƒ Motion for extension of time to file pleadings, ƒ Body - Pleading’s designation, allegations of
affidavits or any other paper; party's claims/defenses, relief prayed for and
ƒ Petition for certiorari, mandamus, or prohibition pleading’s date.
against any interlocutory order issued by the - Paragraphs must be numbered, and each
court; paragraph number must contain a single
ƒ Motion to declare the defendant in default; set of circumstances
ƒ Dilatory motions for postponement; - Headings: if more than one cause of
ƒ Reply; action, use "1st cause of action," 2nd
ƒ Third party complaints; and cause of action," etc.
ƒ Interventions. [Sec. 19] - Specify relief sought, but it may add a
general prayer for such further/other
Forms used under the Rule of Procedure under relief as may be deemed just/equitable.
Small Claims Cases: - Every pleading shall be dated.
ƒ Instead of filing complaint, a Statement of
Claim using Form 1-SCC shall be filed [Sec. 5] b. Signature and address
ƒ Answer shall be filed by way of a Response using
Form 3-SCC [Sec. 10] Pleading must be signed by the party/counsel. State
ƒ Defendant may file counterclaim if he possesses address (not PO box) in either case.
a claim against the plaintiff that (a) is within
the coverage of this Rule, exclusive of interest c. Verification and certification against forum
and costs; (b) arises out of the same transaction shopping [Rule 7, Sec 4]
or event that is the subject matter of the
plaintiff’s claim; (c) does not require for its Verification
adjudication the joinder of third parties; and (d) Pleadings need not be verified, unless otherwise
is not the subject of another pending action, the provided by the law/rules.
claim shall be filed as a counterclaim in the
Response; otherwise, the defendant shall be How a Pleading is Verified [Rule 7, Sec 4]
barred from suit on the counterclaim. By an affidavit:
ƒ That the affiant read the pleading;
The defendant may also elect to file a ƒ That the allegations therein are true and correct
counterclaim against the plaintiff that does not of his personal knowledge or based on authentic
arise out of the same transaction or occurrence, documents.
REMEDIAL LAW REVIEWER

Certification of Non-Forum Shopping (CNFS) [Rule ƒ Counsel’s signature is a certification that:


102 7, Sec. 5] - He has read the pleading;
Definition: The filing of multiple suits in different - To the best of his knowledge, information and
courts, simultaneously or successively, involving the belief there is good ground to support it;
same parties, to ask the courts to rule on the - It is not interposed for delay.
same/related causes and/or to grant the same or ƒ An unsigned pleading produces no legal effect.
substantially the same relief. [T'Boli Agro-Industrial ƒ However, the court may allow such deficiency
Development, Inc. (TADI) v. Solidapsi (2002)] (Asked to be remedied if it shall appear that the same
in the 2006 Bar Exam) was due to inadvertence and not intended for
delay.
Test to Determine WON there is Forum Shopping
(ASKED IN THE 2002 BAR EXAM) - WON in the 2 or 4. Allegations in a pleading
more cases pending, there is identity of:
ƒ Parties;
a. Manner of making allegations
ƒ Rights or causes of action;
ƒ Relief sought.
In general [RULE 8, SEC. 1]
ƒ In a methodical and logical form.
The CNFS is to be executed by the petitioner, not by
ƒ Plain, concise and direct statement of the
the counsel.
ultimate facts on which the party pleading relies
for his claim/defense.
CNFS is required only for complaints or initiatory
ƒ Omit evidentiary facts.
pleadings (e.g. permissive counterclaim, cross-claim
ƒ If defense relied on is based on law, cite the
etc.).
provisions and their applicability.
CNFS is not required in a compulsory counterclaim. A
Condition precedent - a general averment of the
counterclaim is not an initiatory pleading. [UST
performance or occurrence of all conditions
Hospital v. Surla (1998)]
precedent shall be sufficient [RULE 8, SEC. 3]
Failure to comply is not curable by mere amendment
Fraud, mistake, malice, intent, knowledge and
of the pleading but shall be cause for the dismissal
other condition of the mind, judgments, official
of the case, without prejudice and upon motion and
documents or acts - Circumstances constituting
after hearing, unless otherwise provided.
fraud or mistake must be stated with particularity
while malice, intent, knowledge or other condition
Effect of Submission of False CNFS or Non-
of the mind of a person may be averred generally
Submission of CNFS
[RULE 8, SEC. 5]
ƒ Indirect contempt;
ƒ Administrative and criminal actions.
Facts that may be Averred Generally
ƒ Conditions precedent; but there must still be
Effect of Willful and Deliberate Forum Shopping
an allegation that the specific condition
(Asked in the 2006 and 2007 Bar Exams)
precedent has been complied with, otherwise it
ƒ Ground for summary dismissal of the case with
will be dismissed for lack of cause of action;
prejudice;
[Rule 8, Sec 3]
ƒ Direct contempt and administrative sanctions.
ƒ Capacity to sue or be sued;
- Pleadings as well as remedial laws should be
ƒ Capacity to sue or be sued in a representative
liberally construed
capacity; [Rule 8, Sec 4]
- in order that the litigant may have ample
ƒ Legal existence of an organization;
opportunity to prove their respective claims,
- A party desiring to raise an issue as to the
and possible denial of substantial justice, due
legal existence or capacity of any party to sue
to technicalities, may be avoided. [Gerales v.
or be sued in a representative capacity shall
CA (1993)]
do so by specific denial which shall include
supporting particulars within the pleader's
Requirements of a corporation executing the
knowledge. [Rule 8, Sec 4]
verification/certification of non-forum shopping
ƒ Malice/intent/knowledge or other condition of
Only individuals vested with authority by a valid
the mind; [Rule 8, sec 5]
board resolution may sign the certificate of non-
ƒ Judgments of domestic/foreign courts,
forum shopping in behalf of a corporation. In
tribunals, boards or officers (without need to
addition, the Court has required that proof of said
show jurisdiction); [Rule 8, Sec 6]
authority must be attached. Failure to provide a
ƒ Official documents/acts. [Rule 8, Sec 9]
certificate of non-forum shopping is sufficient
ground to dismiss the petition. Likewise, the petition
Facts that must be Averred Particularly
is subject to dismissal if a certification was
Circumstances showing fraud/mistake in all
submitted unaccompanied by proof of the
averments of fraud/mistake [Rule 8, Sec 5]
signatory’s authority. [PAL v. FASAP (2006)]

d. Effect of the signature of counsel in a


pleading
REMEDIAL LAW REVIEWER

b. Pleading an actionable document ƒ DENIAL WITH QUALIFICATION - Specifies so


much of it as is true and material, and deny the
Actionable document remainder.
A document which is really the basis of the cause of ƒ SPECIFIC DENIAL FOR LACK OF 103
action (or defense), and not merely evidentiary KNOWLEDGE/INFORMATION sufficient to form
thereof. [Rule 8, Sec. 7] as belief as to the truth of a material averment
Genuineness and due execution of an actionable made in the complaint.
instrument shall be deemed admitted unless the ƒ SPECIFIC DENIAL UNDER OATH - Contests the
adverse party, under oath, specifically denies them, authenticity or due execution of an actionable
and sets forth what he claims to be the facts. [Rule document. [Rule 8, Sec. 8]
8, Sec. 8]
Disciplinary Action on Counsel Regarding Pleadings
Exception to the requirement of an oath: when the [Rule 7, Sec. 3]
adverse party does not appear to be a party to the ƒ Deliberately filing an unsigned pleading;
instrument. [Donato v. CA (1993)] ƒ Deliberately signing a pleading in violation of
the Rules;
How an action or defense may be based on a ƒ Alleging scandalous/Indecent matter in the
document: pleading;
ƒ By copying a substantial portion of the ƒ Failing to promptly report a change of his
document into the pleading; address.
ƒ By annexing /incorporating the document into
the pleading; Effect of failure to make specific denials
ƒ By both copying and annexing document into the ƒ General rule: Defenses and objections not
pleading. pleaded either in a MTD or in the answer, are
deemed waived. [Rule 9, Sec. 1]
c. Specific denials ƒ Exceptions:
- Lack of jurisdiction over the subject matter;
Three Ways of Making a Specific Denial - Litis pendentia;
ƒ SPECIFIC ABSOLUTE DENIAL – by specifically - Res judicata;
denying the averment and, whenever - Prescription
practicable, setting forth the substance of the
matters relied upon for such denial. When a specific denial requires an oath - Contests
the authenticity or due execution of an actionable
ƒ PARTIAL SPECIFIC DENIAL – part admission and document. [Rule 8, Sec. 8]
part denial;
5. Effect of failure to plead
ƒ DISAVOWAL OF KNOWLEDGE – by an allegation of
lack of knowledge or information sufficient to a. Failure to plead defenses and objections
form a belief as to the truth of the averment in
the opposing party's pleading. This does not ƒ General rule: Defenses and objections not
apply where the fact as to which want of pleaded in answer or motion to dismiss are
knowledge is asserted is, to the knowledge of deemed waived. (Omnibus Motion Rule) [Rule 9]
the court, so plain and necessarily within the ƒ Exceptions:
defendant's knowledge that his averment of - Lack of jurisdiction over the subject matter;
ignorance must be palpably untrue. - Litis pendentia between same parties for the
same cause
NOTE: - Res judicata
General rule: Allegations not specifically denied are - Action barred by statute of limitations.
deemed admitted [Rule 8, Sec. 11]
b. Failure to plead a compulsory
Exceptions: counterclaim and cross-claim
ƒ Allegations as to the amount of unliquidated
damages;
Compulsory counterclaim
ƒ Allegations immaterial to the cause of action;
ƒ General Rule: A compulsory counterclaim not
ƒ Allegations of merely evidentiary or immaterial
set up is considered barred. [Rule 9, Sec. 2]
facts may be expunged from the pleading or
ƒ Exception: If due to oversight, inadvertence,
may be stricken out on motion. [Rule 8, Sec. 12]
excusable neglect, etc. the compulsory
ƒ Conclusion of law.
counterclaim, with leave of court, may be set
up by amendment before judgment. [Rule 11,
Kinds of denial (Asked in the 2004 Bar Exam)
Sec. 10]
ƒ SPECIFIC DENIAL – Specifies each material
allegation of fact the truth of which he does not
Cross-claim
admit, and sets forth the substance of the
A cross-claim is always compulsory. A cross-claim not
matters upon which he relies to support his
set up shall be barred. [Rule 9, Sec. 2]
denial. [Rule 8, Sec. 10]
REMEDIAL LAW REVIEWER

6. Default [Rule 9, Sec. 3] c. Relief from an order of default [Rule 9, Sec


3(b)]
104 Definition: Failure of the defendant to answer
within the proper period. It is not his failure to ƒ Before judgment, a party declared in default
appear nor his failure to present evidence (Asked in may file a motion under oath to set aside the
the 2000 and 2001 Bar Exams) order of default upon proper showing that:
- His failure to answer was due to fraud,
accident, mistake or excusable negligence;
Order of default Judgment by default and that
Issued by the court on Rendered by the court - He has a meritorious defense.
plaintiff’s motion, for following a default order ƒ In such case, the order of default may be set
failure of the defendant or after it received ex aside on terms and conditions as justice
to file his responsive parte plaintiff’s requires.
pleading seasonably evidence
Interlocutory -Not Final – Appealable Remedies of a party declared in default
appealable ƒ Pleadings, as well as remedial laws, should be
liberally construed in order that litigants may
a. When a declaration of default is proper have ample opportunity to prove their
respective claims, and possible denial of
ƒ Court validly acquired jurisdiction over the substantial justice. [Gerales v. CA (1993)]
defendant’s person, either by service of
summons or voluntary appearance; ƒ Dulos v. CA (1990)
ƒ Defendant fails to answer within the time MOTION TO SET At any time after the discovery
allowed therefor; ASIDE ORDER OF of default and before
ƒ Motion to declare the defendant in default; DEFAULT [RULE 9, judgment, defendant may file a
ƒ Notice to the defendant by serving upon him a SEC. 3(B)] motion under oath to set aside
copy of such motion; order of default on the ground
ƒ Proof of such failure to answer. that his failure to file an
answer or appear on the date
b. Effect of an order of default (Asked in the set for the pre-trial was due to
fraud, accident mistake of law,
1999 Bar Exam) [Rule 9, Sec 3(a)] and excusable negligence and
that he has a meritorious
ƒ Party in default loses standing in court as a
defense
party litigant. His failure to answer operates as
MOTION FOR NEW ƒ If the judgment has already
a waiver of right to take part in the trial, of
TRIAL [RULE 37, been rendered when the
being heard, and of presenting evidence in his
SEC. 1(A)] defendant discovered the
favor.
default, but before the same
- If the defendant was declared in default upon
became final and executory.
an original complaint, the filing of the
ƒ It should be filed within the
amended complaint resulted in the
period for perfecting an
withdrawal of the original complaint.
appeal. Timely filing thereof
- Hence, the defendant was entitled to file
interrupts the 15-day
answer to the amended complaint as to which
reglementary period for an
he was not in default.
appeal.
ƒ The court shall proceed to render judgment
ƒ It is required that defendant
granting the claimant relief as his pleading may
file first a motion to lift
warrant, unless the court in its discretion
order of default to regain his
requires the claimant to submit evidence. Such
standing. [Tan v. CA (1997)]
reception of evidence may be delegated to the
PETITION FOR If the defendant discovered the
clerk of court.
RELIEF FROM default after the judgment has
ƒ The party in default shall be entitled to notice
ORDER, become final and executory
of subsequent proceedings but not to take part
JUDGMENT OR
in the trial.
OTHER
- A defendant declared in default cannot take
PROCEEDINGS
part in the trial, but he cannot be disqualified
[RULE 38, SEC. 1
from testifying as a witness in favor of non-
AND 2]
defaulting defendants. [Cavili v. Florendo
APPEAL FROM THE The defendant may also appeal
(1987)]
RTC [RULE 41, from the judgment rendered
- A party in default is entitled to notice of:
SEC. 1] against him as contrary to the
o Motion to declare him in default;
evidence or the law, even if he
o Order declaring him in default;
did not present a petition to
o Subsequent proceedings;
set aside the order of default
o Service of final orders and judgments.
ƒ An order of default is an interlocutory order
which is not appealable. A judgment by default
is a final disposition of the case and is
REMEDIAL LAW REVIEWER

appealable. [MERALCO v. La Campana Food was filed but defendant did not appear at the
Products (1995)] hearing, the award may exceed the amount or be
ƒ A petition for certiorari under Rule 65, although different in kind from that prayed for.
not a substitute for an available or lost appeal, 105
may be invoked while the orders of the lower f. Actions where default are not allowed
court are issued without or in excess of
jurisdiction. Cases where no defaults are allowed [Rule 9, Sec
ƒ Judgment by default being appealable, appeal 3(e)]
should be perfected within 15 days from receipt ƒ Annulment of marriage; Declaration of nullity of
of copy of order denying MFR of default marriage; Legal Separation;
judgment. [Oriental Media v. CA (1995)] 1) Here, the court shall order the prosecuting
ƒ A satisfactory showing by the movant of the attorney to investigate WON parties are
existence of fraud, accident, mistake or colluding and, if there is no collusion, to
excusable neglect is an indispensable intervene from the State to ensure that
requirement for the setting aside of a judgment evidence is not fabricated.
of default or an order of default. ƒ Special civil actions of certiorari, prohibition
ƒ A meritorious defense is only one of the two and mandamus, where comment (instead of an
conditions. The meritorious defense must concur answer) is required to be filed.
with the satisfactory reason for the non-
appearance of the defaulted party. If there is no Failure to appear at pre-trial
such reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2. [Ramnani Who fails to Effect
v. CA (1993)] appear
ƒ The jurisdiction was properly acquired by the TC Plaintiff Cause for dismissal of the
over the defendant’s person; he was therefore action which will be with
properly declared in default for not having filed prejudice, unless otherwise
any answer. ordered by the court
ƒ Despite his failure to file a motion to set aside Defendant Cause to allow plaintiff to
the declaration of default, he has the right to present evidence ex parte, and
appeal the default judgment. court to render judgment on
ƒ But in the appeal, only the evidence of the the basis thereof
petitioner may be considered, respondent not
having adduced any defense evidence. [Boticano
Default by defendant As in default
v. Chu (1987)]
(Rule 9, Sec. 3) (failure to appear by
plaintiff) (Rule 18, Sec.
d. Effect of a partial default [Rule 9, Sec 3(c)] 5)
Upon motion and notice Not required
If the pleading asserting a claim states a common to defendant.
cause of action against several defending parties, Requires proof of failure Not required
and some of the defending parties answer while the to answer
others fail, the court shall try the case against all
Court to render Court to allow plaintiff
defendants upon the answers filed and render
judgment, unless it to present evidence ex
judgment upon the evidence presented.
requires submission of parte, then the court
evidence shall render judgment
Exception: If the defense is personal to the one who
Relief awarded must be Relief awarded may be
answered; in which case, it will not benefit those
the same in nature and of different nature and
who did not answer.
amount as prayed for in amount from the relief
the complaint prayed for
e. Extent of relief
Lesaca v. CA (1992): A defendant who already filed
Extent of relief to be awarded
an answer cannot be declared in default. Only when
The award shall not exceed the amount or be
the defendant fails to file an answer to the
different in kind from that prayed for; nor award
complaint may the court proceed to render
unliquidated damages.
judgment.
Bayog v. Natino (1996): The Revised Rules on
Rationale: It is presumed that where the relief
Summary Procedure does not provide that an answer
demanded is greater or different in kind, defendant
filed after the reglementary period should be
would not have allowed himself to be declared in
expunged from the records.
default.
As a matter of fact, there is no provision for an entry
Datu Samad Mangelen v. CA (1992): In a judgment
of default if a defendant fails to file his answer.
based on evidence presented ex parte, judgment
should not exceed the amount or be different in kind
The defense of LOJ may have even been raised by
from that prayed for.
the defendant in a MTD as an exception to the rule
on prohibited pleadings in the Revised Rule on
On the other hand, in a judgment where an answer
Summary Procedure. Such a motion is allowed under
REMEDIAL LAW REVIEWER

Sec. 19(a) thereof. always be within the prescriptive period of the


action filed. [Sun Insurance v. Asuncion]
106 Malanyaon v. Sunga (1992): Where the failure to
appear at the pre-trial hearing was uncontrovertedly ƒ Further Modification by Heirs of Hinog v.
due to illness, the default order may be set aside on Melicor (2005): FEES AS LIEN. Where the trial
the ground of accident over which petitioner had no court acquires jurisdiction over a claim by the
control. filing of the pleading and the payment of the
prescribed filing fee, BUT SUBSEQUENTLY, the
Also, the order of arrest was illegal as there is judgment awards a claim not specified in the
nothing in the ROC which authorizes such a pleading, or cannot then be estimated, or a
consequence of a default order. claim left for determination by the court, then
the additional filing fee shall constitute a lien
Acquisition of jurisdiction on the judgment.

Note: Appellate docket and other lawful fees must


7. Filing and Service of pleadings be paid within the same period for taking an appeal.
Non-payment is a valid ground for dismissal of an
Definition appeal. [M.A. Santander v. Villanueva (2004)]
ƒ FILING – The act of presenting the pleading or However, delay in the payment of docket fees
other paper to the clerk of court. [Rule 13, Sec. confers upon the court discretionary and not
2] mandatory power to dismiss an appeal. [Villamor v.
ƒ SERVICE – The act of providing a party or his CA (2004)]
counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
b. Filing versus service of pleadings
Papers Required to be Filed and Served [RULE 13,
Filing is the act of presenting the pleading or other
SEC. 4]
papers to the clerk of court. [RULE, 13, SEC. 2]
ƒ Pleading subsequent to the complaint;
ƒ Appearance;
Service is the act of providing a party with a copy of
ƒ Written Motion;
the pleading or paper concerned. [RULE, 13, SEC. 2]
ƒ Notice;
ƒ Order;
ƒ Judgment;
c. Periods of filing of pleadings
ƒ Demand;
ƒ Offer of Judgment; ƒ Answer to the complaint - The defendant shall
ƒ Resolution; file his answer to the complaint within fifteen
ƒ Similar papers. (15) days after service of summons, unless a
different period is fixed by the court. [Rule
11.1]
a. Payment of docket fees
within thirty (30) days after receipt of summons
As a rule, the court acquires jurisdiction over the
of the foreign entity where the defendant is a
case only upon payment of prescribed fees
foreign private juridical entity and service of
summons is made on the government official
General rule: Without payment, case is considered
designated by law to receive the same, the
not filed. Payment of docket fees is mandatory and
answer shall be filed [Rule 11.2]
jurisdictional.
ƒ Answer to amended complaint - Where the
It is not simply the filing of the complaint or
plaintiff files an amended complaint as a matter
appropriate initiatory pleading but the payment of
of right, the defendant shall answer the same
the prescribed docket fee, that vests a trial court
within fifteen (15) days after being served with
with jurisdiction over the subject matter or nature
a copy thereof.
of the action [Proton Pilipinas v. Banque National de
Paris]
Where its filing is not a matter of right, the
defendant shall answer the amended complaint
Effect of Failure to Pay Docket Fees at Filing
within ten (10) days from notice of the order
admitting the same. An answer earlier filed may
ƒ Manchester v. CA (1987) [Old Rule]: AUTOMATIC
serve as the answer to the amended complaint
DISMISSAL. Any defect in the original pleading
if no new answer is filed.
resulting in underpayment of the docket fees
cannot be cured by amendment, such as by the
Note that this Rule shall apply to the answer to
reduction of the claim as, for all legal purposes,
an amended counterclaim, amended cross-
there is no original complaint over which the
claim, amended third (fourth, etc.) party
court has acquired jurisdiction
complaint, and amended complaint-in-
intervention. [Rule 11.3]
ƒ Modification by Sun Insurance v. Asuncion
(1989): NOT AUTOMATIC DISMISSAL BUT Court
may allow payment of fees within reasonable
period of time. Note that payment should
REMEDIAL LAW REVIEWER

ƒ Answer to counterclaim or cross-claim - A ƒ Service by (registered) mail [Rule 13, Sec. 7]


counterclaim or cross-claim must be answered - By depositing the copy in the office, in a
within ten (10) days from service. [Rule 11.4] sealed envelope, plainly addressed to the
party or his counsel at his office or at his 107
ƒ Answer to third (fourth, etc.)- party complaint residence (if known), with postage fully pre-
- Same rule as the answer to the complaint. paid, and with instructions to the postmaster
[Rule 11.5] to return the mail to the sender after 10 days
if undelivered.
ƒ Reply - within ten (10) days from service of the - If no registry service is available in the
pleading responded to. [Rule 11.6] locality of either sender or addressee, service
may be done by ordinary mail.
ƒ Answer to supplemental complaint - within ten
(10) days from notice of the order admitting the ƒ Substituted service [Rule 13, Sec. 8]
same, unless a different period is fixed by the By delivering the copy to the clerk of court, with
court. proof of failure of both personal service and service
by mail
Note that the answer to the complaint shall
serve as the answer to the supplemental Completeness Proof of service
complaint if no new or supplemental answer is of service (Rule (Rule 13 Sec. 13)
filed. 13 Sec. 10)
Personal Upon actual Written admission
NOTE: Upon motion and on such terms as may be service delivery of the party served,
just, the court may extend the time to plead OR
provided in these Rules. The court may also, upon Official return of
like terms, allow an answer or other pleading to be the server OR
filed after the time fixed by these Rules. [Rule Affidavit of the
11.11] party serving, with
a full statement of
d. Manner of filing the
date/place/manner
Manner of filing [Rule 13, Sec. 3] (Asked in the 2005 of service.
Bar particularly in comparison with filing in criminal Service by 10 days after Affidavit of the
actions) ordinary mailing, unless person mailing of
ƒ Personally. mail otherwise facts showing
- By personally presenting the original to the provided by the compliance with
clerk of court. court Sec. 7 of Rule 13.
- The pleading is deemed filed upon the receipt Service by Whichever is Affidavit of the
of the same by the clerk of court who shall registered earlier: person mailing of
endorse on it the date and hour of filing. mail ƒ Actual facts showing
- If a party avails of a private carrier, the date receipt by compliance with
of the court’s actual receipt of the pleading the Sec. 7 of Rule 13
(not the date of delivery to the private addressee
carrier) is deemed to be the date of the filing ƒ 5 days after AND
of that pleading. [Benguet Electric the
Cooperative v. NLRC (1992]] addressee Registry receipt
ƒ By registered mail. received 1st issued by the post
- Filing by mail should be through the registry postmaster's office
service (i.e. by depositing the pleading in the notice
post office).
- The pleading is deemed filed on the date it
Service of judgments, final orders or resolutions
was deposited with the post office.
[Rule 13, Sec. 9]
ƒ By personal service;
e. Modes of service [Rule 13, Sec. 5] ƒ By registered mail;
ƒ By publication at the expense of the prevailing
ƒ Personal service [Rule 13, Sec. 6] party if party was summoned by publication and
- Delivering personally a copy to the party or has failed to appear in the action.
his counsel.
- Leaving a copy in counsel's office with his Priorities in modes of service and filing [Rule 13,
clerk or with a person having charge thereof. Sec. 11]
- If no person is found in his office, or if his
office is unknown, or if he has no office – General rule: Personal filing and service. Resort to
Leaving the copy between 8am and 6pm at other modes of filing and service must be
the party's or counsel's residence (if known) accompanied by an explanation why the
with a person of sufficient age and discretion service/filing was not done personally. If there is no
then residing therein. written explanation, the paper is considered not
filed.
REMEDIAL LAW REVIEWER

- an affidavit of the person mailing containing


Exception: Papers emanating from the court. the facts showing compliance with Rule 13,
108 Sec. 7, AND
When service is deemed complete - the registry receipt issued by the mailing
ƒ Personal service is deemed complete upon office.
actual delivery [Rule 13, Sec. 10] - the registry return card which shall be filed
ƒ Service by registered mail is complete upon immediately upon its receipt by the sender,
actual receipt by the addressee or after 5 days or in lieu thereof of the unclaimed letter
from the date he received the first notice of the together with the certified or sworn copy of
postmaster, whichever date is earlier. [Rule 13, the notice given by the postmaster to the
Sec. 10] addressee.
ƒ Service by ordinary mail is complete upon the
expiration of 10 days after mailing, unless the Notice of lis pendens [Rule 13, Sec. 14]
court otherwise provides [Rule 13, Sec. 10] LIS PENDENS - Notice of a pendency of the action
ƒ Substituted service is complete at the time of between the parties involving title to or right of
delivery of the copy to the clerk of court possession over real property.
together with the proof of failure of both
personal service and service by mail. [Rule 13, Requisites: [AFP Mutual Benefit Association v. CA
Sec. 8] (2001)]
ƒ Action affects the title or the right of possession
Proof of filing and service of the real property;
ƒ Affirmative relief is claimed;
Proof of filing ƒ Notice shall contain the name of the parties and
ƒ Filing is proved by its existence in the record of the object of the action/defense and a
the case [Rule 13, Sec. 12]. description of the property affected thereby;
ƒ If it is not in the record [Rule 13, Sec. 12]. ƒ Action in rem.
- The notice serves as a warning to all persons,
When Proof of filing prospective purchasers or encumbrancers of
pleading is the property in litigation to keep their hands
deemed off the property in litigation unless they are
filed prepared to gamble on the result of the
Personally Upon receipt Written/stamped proceedings.
of the acknowledgment by - The defendant may also record a notice of lis
pleading by the clerk of court pendens when he claims an affirmative relief
the clerk of in his answer.
court - The notice of cannot be cancelled on an ex
By On the date Registry receipt, and parte motion or upon the mere filing of a
registered the pleading affidavit of the person bond by the party on whose title the notice is
mail was who did the mailing annotated, as Sec. 14 provides that such
deposited with: cancellation may be authorized only upon
with the ƒ Full statement of order of court, after proper showing that:
post office the date/place of [Roxas v. CA (1993)]
depositing the mail - The notice is for the purpose of molesting the
in the post office in adverse party; or
a sealed envelope - It is not necessary to protect the rights of the
addressed to the party who caused it to be recorded
court
ƒ Postage fully paid Amended and supplemental pleadings
ƒ Instructions to the
postmaster to 8. Amendment
return the mail to
the sender after 10 How to amend pleadings [Rule 10, Sec. 1]
days if undelivered ƒ Adding an allegation of a party;
ƒ Adding the name of a party;
Proof of Service [Rule 13, Sec. 13] ƒ Striking out an allegation of a party;
ƒ Proof of personal service shall consist of: ƒ Striking out the name of a party;
- a written admission of the party served, or ƒ Correcting a mistake in the name of a party; and
the official return of the server, OR ƒ Correcting a mistaken or inadequate allegation
- the affidavit of the party serving, or description in any other respect.
- Content: full statement of the date, place
and manner of service. Purpose: That the actual merits of the controversy
ƒ Proof of service by ordinary mail: may speedily be determined, without regard to
- an affidavit of the person mailing technicalities, and in the most expeditious and
- Content: facts showing compliance with Rule inexpensive manner.
13, Sec. 7
ƒ Proof of service by registered mail
REMEDIAL LAW REVIEWER

Barfel Development v. CA (1993): As a general subject only to the limitations that amendments
policy, liberality in allowing amendments is greatest should not substantially change the cause of
in the early stages of a law suit, decreases as it action or alter the theory of the case or made to
progresses and changes at times to a strictness delay the action. 109
amounting to a prohibition. ƒ Once exercised, it cannot be disturbed on
appeal, except in case of abuse thereof.
This is further restricted by the condition that the [Metropolitan Bank v. Presiding Judge (1990)]
amendment should not prejudice the adverse party
or place him at a disadvantage. c. Formal amendment [Rule 10, Sec. 4]

ƒ A defect in the designation of the parties and


Form [Rule 10, Sec. 7] other clearly clerical errors may be summarily
A new copy of the entire pleading, incorporating the corrected by the court motu proprio or by
amendments, which shall be indicated by motion at any stage of the action.
appropriate marks, shall be filed. ƒ Provided that no prejudice is caused to the
adverse party.
a. Amendment as a matter of right
d. Amendments to conform to or authorize
SUBSTANTIAL AMENDMENTS – once, made at any presentation of evidence [Rule 10, Sec. 5]
time before a responsive pleading is served. If it is a (Asked in the 2004 Bar Exam)
reply, once, made at any time within l0 days after it
is served. [Rule 10, Sec. 2] (Asked in the 2003 Bar ƒ If issues not raised by the pleadings are tried
Exam) with the express/implied consent of the parties,
they shall be treated in all respects as if they
If as a matter of discretion – Amendment requires had been raised in the pleadings.
leave of court if:
ƒ It is substantial; and ƒ Amendment of pleadings as may be necessary to
ƒ A responsive pleading has already been served. cause them to conform to the evidence and to
[Rule 10, Sec. 3] raise these issues, may be made upon motion of
any party, any time (even after judgment).
b. Amendments by leave of court - But failure to amend does not affect the
result of the trial of these issues.
SUBSTANTIAL AMENDMENTS - If as a matter of
discretion, requires leave of court if: ƒ If evidence is objected to at the trial on the
ƒ It is substantial; and ground that it is not within the issues made by
ƒ A responsive pleading has already been served. the pleadings, the court may allow the pleadings
[Rule 10, Sec. 3] to be amended and shall do so with liberality if
the presentation of the merits of the action and
Requisites for amendments by leave of court the ends of substantial justice will be subserved
ƒ Motion filed in court; thereby. The court may grant a continuance to
ƒ Notice to the adverse party; enable the amendment to be made.
ƒ Opportunity to be heard afforded to the adverse
party. Amendments vis-à-vis supplemental
(NOTE: In the 2008 Bar Exam, a question was asked
pleadings
on amendment of complaint to implead additional
parties) e. Different from supplemental pleadings

When amendment by leave of court may not be Supplemental pleadings (ASKED IN THE 2000 BAR
allowed EXAM)
ƒ If the cause of action, defense or theory of the Definition: One which sets forth transactions,
case is changed. occurrences or events which have happened since
ƒ If amendment is intended to confer jurisdiction the date of the pleading sought to be supplemented.
to the court. [Rule 10, Sec. 6]
- If the court has no jurisdiction in the subject
matter of the case, the amendment of the It is made upon motion of a party with reasonable
complaint cannot be allowed so as to confer notice and upon terms as are just.
jurisdiction on the court over the property. The cause of action stated in the supplemental
[PNB v. Florendo (1992)] complaint must be the same as that stated in the
ƒ If amendment is for curing a premature or non- original complaint. Otherwise, the court should not
existing cause of action. admit the supplemental complaint. [Asset
ƒ If amendment is for purposes of delay. Privatization Trust v. CA (1998)]

Note: A supplemental complaint/pleading supplies


ƒ Admitting an amended complaint in intervention deficiencies in aid of an original pleading, not to
is a matter addressed to the court’s discretion, entirely substitute the latter.
REMEDIAL LAW REVIEWER

Unlike in an amended complaint, the original corresponding summons to the defendants. [Rule 14,
complaint exists side by side with the supplemental Sec. 1]
110 complaint. [Shoemart v. CA (1990)]
Contents of summons [Rule 14, Sec. 2]
Amendments Supplemental pleadings Summons must be directed to the defendant, signed
Reason for the Grounds for the by the clerk of the court under seal, and contain:
amendment is available supplemental pleading (1) Name of the court and names of the parties;
at time of the 1st arose after the 1st (2) Direction that the defendant answer within the
pleading pleading was filed time fixed;
Either as a matter of Always a matter of (3) Notice that unless the defendant so answers,
right or a matter of discretion plaintiff will take judgment by default and may
discretion be granted the relief applied for.
Supersedes the pleading Supplements the
pleading (i.e. Exists side A copy of the complaint and order for appointment
by side with the original of guardian ad litem (if any) shall be attached to the
pleading) original and each copy of the summons.
When an amended A supplemental pleading
pleading is filed, a new does not require the NOTE that jurisdiction over person of defendant may
copy of the entire filing of a new copy of also be acquired through voluntary appearance.
pleading must be filed the entire pleading
2. Voluntary appearance
f. Effect of amended pleading
General rule: Defendant's voluntary appearance in
Effect [Rule 10, Sec. 8] the action shall be equivalent to service of
ƒ Amended pleading supersedes the pleading that summons;
it amends.
ƒ Claims and defenses in superseded pleading Exception: Special appearance to file a MTD.
which are not incorporated in the amended
pleading are deemed waived. BUT inclusion in the MTD of grounds other than LOJ
ƒ Admissions made in the superseded pleading over the defendant’s person, is not deemed a
may still be received in evidence against the voluntary appearance.
pleader.
Any mode of appearance in court by a defendant or
his lawyer is equivalent to service of summons,
absent any indication that the appearance of counsel
VI. SUMMONS for petitioner is precisely to protest the jurisdiction
1. Nature and purpose of summons in of the court over the person of the defendant.
relation to actions in personam, in rem [Delos Santos v. Montesa (1993)]
and quasi in rem
2. Voluntary appearance Who serves the summons [rule 14, sec. 3]
(1) The sheriff or his deputy;
3. Personal service (2) Other proper court officers;
4. Substituted service (3) For justifiable reasons, any suitable person
5. Constructive service (by publication) authorized by the court issuing the summons.
6. Extra-territorial service, when allowed (4) Officer having management of a jail or
7. Service upon prisoners and minors institution deputized as special sheriff when
8. Proof of service defendant is a prisoner [rule 14, sec. 9]

Definition: A coercive force issued by the court to Return of summons [rule 14, sec. 4]
acquire jurisdiction over the person of the defendant When the service has been completed, the server
(asked in the 1999 Bar Exam) shall, within 5 days therefrom, serve a copy of the
return (personally or by registered mail) to the
plaintiff's counsel, and shall return the summons to
1. Nature and purpose of summons in the clerk who issued it, accompanied by proof of
relation to actions in personam, in service.
rem and quasi in rem
Alias summons [rule 14, sec. 5]
Purpose Upon plaintiff’s demand, the clerk may issue an alias
(1) To acquire jurisdiction over the person of the summons if either:
defendant in a civil case; (1) Summons is returned without being served on
(2) To give notice to the defendant that an action any/all of the defendants.
has been commenced against him. (2) Summons was lost.

Issuance of summons The server shall also serve a copy of the return on
Upon the filing of the complaint and the payment of the plaintiff's counsel within 5 days therefrom,
legal fees, the clerk of court shall issue the stating the reasons for the failure of service.
REMEDIAL LAW REVIEWER

Modes of service of summons Absence in the sheriff's return of a statement about


Any application to the court under Rule 14 for leave the impossibility of personal service does not
to effect service in any manner for which leave of conclusively prove that the service is invalid.
court is necessary shall be made by: 111
(1) motion in writing, Proof of prior attempts at personal service may be
(2) supported by affidavit of the plaintiff or some submitted by the plaintiff during the hearing of any
person on his behalf, setting forth the grounds incident assailing the validity of the substituted
for the application. [Rule 14, Sec. 17] service.

3. Personal service While the sheriff's return carries with it the


disputable presumption of regularity in the sense
Service in person on defendant that the entries therein are deemed correct, it does
(1) By handing a copy of summons to him; not necessarily follow that an act done in relation to
(2) By tendering it to him, if he refuses to receive the official duty for which the return is made was
and sign for it. [Rule 14, Sec. 6] not done simply because it is not disclosed therein.
[Mapa v. CA (1992)]
4. Substituted service [Rule 14, Sec. 7]
5. Constructive service (by
(asked in the 2004 Bar Exam)
publication) [Rule 14, Sec. 14]
Rationale: Enjoyment of the privileges of residence
within the state, and the attendant right to invoke
the protection of its laws, are inseparable from the Requisites
various incidences of state citizenship. (1) The action is in rem or quasi in rem;
(2) Defendant's identity or whereabouts are
One such incident of domicile is amenability to suit unknown and cannot be ascertained by diligent
within the state even during sojourns without the inquiry;
state, where the state has provided and employed a (3) There must be leave of court.
reasonable method for apprising such an absent
party of the proceedings against him. [Northwest v. Summons by publication in a personal action cannot
CA (1995)] confer upon the court jurisdiction over the person of
the defendant, who does not voluntarily submit
For a valid substituted service of summons, the himself to the authority of the court.
following must be established in the proof of service:
[Sps. Ventura v. CA (1987)] The proper recourse for the plaintiff is to locate
(1) Impossibility of the personal service of summons properties of the defendant whose address is
within a reasonable time; unknown and cause them to be attached.
(2) Efforts made to find the defendant personally [Consolidated Plywood vs. Breve (1988)]
and the fact that such efforts failed; [Laus v. CA
(1993)] Service of summons upon different entities
(3) Service by leaving copy of summons either: See Annex A.
(a) With some person of suitable age and
discretion then residing in the defendant’s a. Service upon a defendant where his
residence; identity is unknown or where his
(b) With some competent person in charge of whereabouts are unknown [Rule 14, Sec. 14]
the defendant’s office or regular place of
business. With leave of court, by publication in a newspaper of
general circulation
For a substituted service to be valid, summons
served at the defendant's residence must be served b. Service upon residents temporarily outside
at his residence at the time of such service and not the Philippines [Rule 14, Sec. 16]
at his former place of residence.
With leave of court, may serve extraterritorially
"Dwelling house" or "residence" refer to the place
where the person named in the summons is living at Service of summons upon different entities
the time when the service is made, even though he Summons is validly served if it is left with some
may be temporarily out of the country at the time. person of suitable age and discretion then residing in
[Sps. Ventura v. CA (1987)] the defendant's residence, even if defendant was
abroad at that time. The fact that the defendant did
Substituted service must be used only as prescribed not actually receive the summons did not invalidate
and in the circumstances authorized by statute. the service of such summons. [Montalban v. Maximo
Statutes prescribing modes other than personal 1963]
service of summons must be strictly complied with
to give the court jurisdiction, and such compliance
must appear affirmatively in the return. [Laus v. CA
(1993)]
REMEDIAL LAW REVIEWER

6. Extra-territorial service, when Exception: Doctrine of substantial compliance– If


defendant actually received summons and complaint
allowed [Rule 14, Sec. 15] despite all these technicalities.
112
Requisites: (Asked in the 1997 and 2008 Bar Exam) Proof of service
(1) Defendant does not reside or is not found in the If personal or substituted service: In writing by the
Philippines; server and shall: [Rule 14, Sec. 18]
(2) Action either: (1) Set forth the manner/place/date of service;
(a) Affects the plaintiff’s personal status; (2) Specify any papers which have been served with
(b) Relates to or the subject matter of which is the process and the name of the person who
property within the Philippines in which received the same;
defendant has a lien/interest; (3) Be sworn to when made by a person other than
(c) Demands a relief which consists a sheriff or his deputy.
wholly/partially in excluding the defendant
from any interest in any property within the If by publication: [Rule 14, Sec. 19]
Philippines; (1) Affidavit of the printer, his foreman, principal
(d) Has defendant’s property in the Philippines, clerk, or the editor, business/advertising
attached. manager, with a copy of the publication
attached, AND
Modes of service (2) Affidavit showing the deposit of a copy of the
(1) With leave of court, serve outside the summons and order for publication in the post
Philippines by personal service; or office, postage prepaid, directed to the
(2) With leave of court, serve by publication in a defendant by registered mail to his last known
newspaper of general circulation, in which case address.
copy of the summons and order of the court
must also be sent by registered mail to the Effect of non-service of summons (asked in the
defendant’s last known address; 2006 Bar Exam)
(3) Any other manner the court deems sufficient Unless the defendant voluntarily submits to the
jurisdiction of the court,non-service or irregular
The court order granting extraterritorial service shall service of summons renders null and void all
specify a period of at least 60 days within which the subsequent proceedings and issuances in the action
defendant must answer. from the order of default up to and including the
judgment by default and the order of execution.
7. Service upon prisoners and minors
If the defendant has already been served with
Service upon prisoner [Rule 14, Sec. 9] summons on the original complaint, no further
Serve upon the officer having management of the summons is required on the amended complaint if it
jail/prison does not introduce new causes of action. [Ong Peng
v. Custodio 1961]
Service upon minors and incompetents [Rule 14,
Sec. 10] But if the defendant was declared in default on the
Serve upon the minor/incompetent and on his legal original complaint and the plaintiff subsequently
guardian. filed an amended complaint, new summons must be
ƒ If there is no guardian, plaintiff may apply for served on the defendant on the amended complaint,
the appointment of a guardian ad litem. as the original complaint was deemed withdrawn
ƒ If minor, may serve on his parents. upon such amendment. [Atkins v. Domingo 1923]

8. Proof of service Waiver of service of summons [Rule 14, Sec. 20]


ƒ General rule: Defendant's voluntary appearance
Return of service [Rule 14, Sec. 4] in the action shall be equivalent to service of
When service has been completed, the server shall summons;
serve a copy of the return within 5 days (personally
or by registered mail) to the plaintiff's counsel, and ƒ Exception: Special appearance to file a MTD.
shall return the summons to the clerk who issued it,
accompanied with the proof of service. ƒ Inclusion in the MTD of grounds other than LOJ
over the defendant’s person, is not deemed a
General rule: Return of service of summons voluntary appearance. Any mode of appearance
immediately shifts burden of evidence from plaintiff in court by a defendant or his lawyer is
to defendant since there is a presumption of equivalent to service of summons, absent any
regularity. indication that the appearance of counsel for
ƒ Without return of service: Burden is on plaintiff. petitioner is precisely to protest the jurisdiction
ƒ In the Mapa case though, while there was a of the court over the person of the defendant.
return, return was patently irregular, thus no [Delos Santos v. Montesa (1993)]
presumption of regularity could be had.
Service of summons upon different entities
See Annex A.
REMEDIAL LAW REVIEWER

VII. MOTIONS ƒ Exception: Oral motions:


(1) Made in open court;
1. Motions in general (2) In the course of a hearing/trial.
2. Motions for Bill of Particulars 113
3. Motion to Dismiss d. Notice of hearing and hearing of motions

Requisites of motions (not made in open court or


1. Motions in general in the course of hearing/trial)
(1) In writing; [Rule 15, Sec. 2]
a. Definition of a motion
(2) Hearing on the motion set by the applicant
An application for relief other than by a pleading Notice of hearing shall be addressed to all
[Rule 15, Sec. 1] parties, and shall specify the time and date of
the hearing which shall not be later than 10 days
Motion day [Rule 15, Sec. 7] from the filing of the motion. [Rule 15, Sec. 5]
Except for urgent motions, motions are scheduled
for hearing: Notice must be addressed to the counsels. A
(1) On Friday afternoons; notice of hearing addressed to the clerk of
(2) Afternoon of the next working day, if Friday is a court, and not to the parties, is no notice at all.
non-working day. Accordingly, a motion that does not contain a
notice of hearing to the adverse party is nothing
Motion for leave to file a pleading/motion [Rule 15, but a mere scrap of paper, as if it were not
Sec. 9] filed; hence, it did not suspend the running of
Must be accompanied by the pleading/motion sought the period to appeal. [Provident International
to be admitted Resources v. CA (1996)]

(3) Motion and notice of hearing must be served at


Motions not acted upon least 3 days before the date of hearing; [Rule
Parties and counsel should not assume that courts 15, Sec. 4]
are bound to grant the time they pray for. After all,
a motion that is not acted upon in due time is Purpose: To prevent surprise upon the adverse party
deemed denied. [Orosa v. CA (1996)] and to enable the latter to study and meet the
arguments of the motion.
b. Motions versus pleadings
Exceptions:
Motion Pleading (1) Ex parte motions;
Contains allegations of Contains allegations of (2) Urgent motions;
facts the ultimate facts (3) Motions agreed upon by the parties to be heard
Prays for a relief Prays for a relief on shorter notice, or jointly submitted by the
Grant of the relief does Grant of relief parties;
not extinguish the action extinguishes the action (4) Motions for summary judgment which must be
(interlocutory relief) (final relief) served at least 10 days before its hearing.
Generally in writing Always in writing
(with some exceptions) Proof of service [Rule 15, Sec. 6]
General rule: A written motion set for hearing will
General rule: A motion cannot pray for judgment. not be acted upon by the court if there is no proof of
service thereof.
Exception:
(1) Motion for judgment on the pleadings. What may be proof:
(2) Motion for summary judgment. (1) If by registered mail: Affidavit or registry
(3) Motion for judgment on demurrer to evidence. receipt or postmark on envelope or return card,
with an explanation.
c. Contents and form of motions (2) If by personal service: Affidavit or
acknowledgment of receipt by the other party.
Contents [Rule 15, Sec. 3]
(1) Relief sought to be obtained Exceptions:
(2) Grounds upon which it is based (1) If the motion is one which the court can hear ex
(3) If it is required/necessary to prove facts alleged parte.
in a motion, it shall be accompanied by (2) If the court is satisfied that the rights of the
supporting affidavits and other papers. adverse parties are not affected by the motion.
(4) Motions raising factual issues must be supported (3) If the party is in default because such a party is
by affidavits. not entitled to notice.

Form of motions [Rule 15, Sec. 2]


ƒ General rule: In writing.
REMEDIAL LAW REVIEWER

e. Omnibus motion rule [Rule 15, Sec. 8] The purpose of a BOP is to define/
clarify/particularize/limit/circumscribe the issues in
114 Definition: A motion attacking a pleading/order/ the case to expedite the trial and assist the court.
judgment/proceeding must include all objections
then available. All objections not included in the The only question to be resolved in a motion for a
motion are deemed waived. BOP is WON the allegations in the complaint are
averred with sufficient definiteness/particularity to
Exception: When the court’s jurisdiction is in issue: enable the movant to properly prepare his
(1) LOJ over subject-matter; responsive pleading and to prepare for trial.
(2) Litis pendentia; [Tantuico, Jr. v. Republic (1991)]
(3) Res judicata;
(4) Prescription. A BOP becomes part of the pleading for which it was
intended. [Rule 12, Sec. 6]
f. Litigated and ex parte motions
When applied for [Rule 12, Sec. 1]
Kinds of Motion (1) Before responding to a pleading
(1) MOTION EX PARTE - Made without notification (2) If the pleading is a reply, within 10 days from
to the other party because the question service thereof
generally presented is not debatable.
(2) LITIGATED MOTION - Made with notice to the What a motion for bill of particulars should point
adverse party so that an opposition thereto may out [Rule 12, Sec. 1]
be made. (1) The defects complained of;
(3) MOTION OF COURSE - Motion for a kind of (2) The paragraph wherein they are contained;
relief/remedy to which the movant is entitled to (3) The details desired.
as a matter of right, Allegations contained in
such motion do not have to be b. Actions of the court [Rule 12, Sec. 2]
investigated/verified.
(4) SPECIAL MOTION - Discretion of the court is (1) Deny;
involved. An investigation of the facts alleged is (2) Grant the motion outright;
required. (3) Allow the parties the opportunity to be heard.

g. Pro-forma motions c. Compliance with the order and effect of


non-compliance
PRO FORMA MOTION – A motion failing to indicate
time and date of the hearing Compliance with order [Rule 12, Sec. 3]
If motion for BOP is granted wholly/partially:
2. Motions for Bill of Particulars (1) Within 10 days from notice of order, BOP or a
more definite statement should be submitted
(unless court fixes a different period).
Bill of particulars (ASKED IN THE 2003 BAR EXAM)
(2) BOP or definite statement filed either as a
Definition: It is a detailed explanation respecting
separate pleading or as an amended pleading, a
any matter which is not averred with sufficient
copy of which must be served on the adverse
definiteness/particularity in the complaint as to
party.
enable a party to properly prepare his responsive
pleading or to prepare for trial. [Rule 12, Sec. 1]
Effect of non-compliance [Rule 12, Sec. 4]
In case of non-compliance or insufficient compliance
a. Purpose and when applied for
with the order for BOP, the court:
(1) May order the striking out of the pleading (or
It is filed by the plaintiff pursuant to a court order
portion thereof) to which the order is directed;
issued upon granting a motion for BOP filed by the
OR
defendant before the latter files an answer.
(2) Make such order as it may deem just.
In said motion, the defendant prays for a more
If the plaintiff fails to obey, his complaint may be
definite statement of matters which are not averred
dismissed with prejudice unless otherwise ordered
with sufficient definiteness in the complaint.
by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]
An action cannot be dismissed on the ground that
If defendant fails to obey, his answer will be
the complaint is vague/indefinite. The remedy of
stricken off and his counterclaim dismissed, and he
the defendant is to move for a BOP or avail of the
will be declared in default upon motion of the
proper mode of discovery. [Galeon v. Galeon (1973)]
plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17,
Sec. 4]
Purpose
To inform the adverse party more specifically of the
precise nature and character of the cause of action
d. Effect on the period to file a responsive
or defense alleged in the pleading, with the view of pleading [Rule 12, Sec. 5]
enabling him to prepare properly his responsive
pleading or to prepare for trial. A Motion for BOP interrupts the period to file a
responsive pleading.
REMEDIAL LAW REVIEWER

(a) Upon notice by plaintiff;


The period to which the movant is entitled at the (b) Upon motion by plaintiff;
time of filing of the motion, which shall not be less (c) Due to fault of plaintiff.
than 5 days in any event. (3) Demurrer to evidence after plaintiff has 115
completed the presentation of his evidence
NOTE the following distinctions: under Rule 33;
(4) Dismissal of an appeal.
Bill of Particulars (BOP) Intervention
Purpose is to enable a Purpose is to enable a Note:
party bound to respond person not yet a party to A MTD shall be proved/disproved according to the
to a pleading to get an action, yet having a rules of evidence.
more details about certain right or interest
matters which are in such action, the The hearing shall be conducted as an ordinary
alleged generally or opportunity to appear hearing and the parties shall be allowed to present
which are indefinite and and be joined evidence, except when the motion is based upon
vague, failure of the complaint to state a cause of action.
so he could assert or
so as to properly guide protect such right or When the MTD is based on facts not appearing of
such party in answering interest record, the court may hear the matter on
the pleading and to affidavits/depositions.
avoid surprise in the trial
of the case a. Grounds [Rule 16, Sec. 1] (Asked in the 2008
Available to the Available to any person Bar Exam)
defendant before he not yet a party to the
files his responsive action at any time after i. LOJ over the defendant’s person
pleading the commencement of ii. LOJ over the subject matter of the claim
an action, even during iii. Improper venue
the proceeding, but not iv. Plaintiff’s lack of legal capacity to sue
after the trial has been v. Litie pendentia
concluded vi. Res judicata
vii. Prescription
Terminating the action before trial viii. Failure to state a cause of action
ix. Extinguished claim
3. Motion to Dismiss x. Unenforceable claim under the Statute of Frauds
xi. Non-compliance with a condition precedent for
Definition filing claim
A remedy of the defendant, or the responding party
in general, which attacks the entire pleading and i. LOJ over the defendant’s person
seeks its dismissal based on: The objection of LOJ over the person on account of
(1) Grounds which are patent on the face of the lack of service or defective service of summons,
complaint; must be raised:
(2) Defenses available to the defendant at the time (1) At the very first opportunity;
of the filing of the complaint (2) Before any voluntary appearance is made.

It hypothetically admits the facts stated in the If a defendant had not been properly summoned, the
complaint. period to file a MTD for LOJ over his person does not
commence to run until he voluntarily submits to the
It is not a responsive pleading. It is not a pleading at jurisdiction of the court. [Laus v. CA (1993)]
all. It is subject to the omnibus motion rule since it
is a motion that attacks a pleading. Hence, it must Appearance of counsel is equivalent to summons,
raise all objections available at the time of the filing unless such is made to protest the jurisdiction of the
thereof. court over the person of the defendant. If grounds
other than invalid service of summons are raised, it
General rule: A court may not motu propio dismiss a cannot be considered as a special appearance. [De
case, unless a motion to that effect is filed by a los Santos v. Montesa (1993)]
party.
ii. LOJ over the subject matter of the claim
Exception: If the complaint shows on its face LOJ, the court
(1) Cases where the court may dismiss a case motu may dismiss the case outright instead of hearing the
propio; [Rule 9, Sec. 1] motion.
(2) Failure to prosecute; [Rule 17, Sec. 3]
(3) Sec. 4, Revised Rule on Summary Procedure. A MTD on the ground of LOJover the subject matter
may be raised either:
Types of dismissal of action (1) Before answer;
(1) MTD before answer under Rule 16; (2) After answer is filed;
(2) MTD under Rule 17: (3) After hearing had commenced;
REMEDIAL LAW REVIEWER

(4) At any stage of the proceeding, even for the (a) Nature of the controversy;
first time on appeal and even if no such defense (b) Comparative accessibility of the court to
116 is raised in the answer. the parties;
(c) Other similar factors.
iii. Improper venue
Unless and until the defendant objects to the venue In both tests, the parties’ good faith shall be taken
in a MTD prior to a responsive pleading, the venue into consideration.
cannot truly be said to have been improperly laid
since, for all practical intents and purposes, the The 1st case shall be abated if it is merely an
venue though technically wrong may yet be anticipatory action or defense against an expected
considered acceptable to the parties for whose suit. The 2nd case will not be abated if it is not
convenience the rules on venue had been devised. brought to harass. [Vitrionics Computers v. RTC
Improper venue may be waived and such waiver may (1993)]
occur by laches. [Diaz v. Adiong (1993)]
vi. Res judicata
A stipulation between the parties as to venue does Requisites (Asked in the 2000 Bar Exam):
not preclude the filing of suits in the residence of (1) Former judgment rendered by a court having
plaintiff/defendant under Rule 4, Sec. 2(b). In the jurisdiction over the subject matter and over
absence of qualifying/restrictive words which would the parties;
indicate that a specific place alone is the venue, an (2) Judgment must be a final judgment;
agreement as to venue is merely permissive and (3) Judgment must be on the merits;
there is no waiver of right to pursue remedy in other There can be res judicata without a trial, such
courts. [HSBC v. Sherman (1989)] as in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of
If the court erroneously denies the MTD, the remedy dismissal under Rule 17, Sec. 3.
is prohibition. (4) There must be identity of parties, of subject
matter and of the causes of action.
iv. Plaintiff’s lack of legal capacity to sue
The plaintiff lacks legal capacity to sue: For res judicata to apply, absolute identity of parties
(1) When he does not possess the necessary is not required because substantial identity is
qualification to appear at the trial (e.g. when sufficient. Inclusion of additional parties will not
he plaintiff is not in the full exercise of his civil affect the application of the principle of res
rights); judicata.
(2) When he does not have the character which he
claims, which is a matter of evidence (e.g. when The test of identity of cause of action lies not in the
he is not really a duly appointed administrator form of the action but on WON the same evidence
of an estate). would support and establish the former and the
present causes of action. [DBP v. Pundogar (1993)]
Lack of legal capacity to sue refers to plaintiff’s
disability; while lack of legal personality to sue Rationale: The sum and substance of the whole
refers to the fact that the plaintiff is not a real party doctrine is that a matter once judicially decided is
in interest, in which case the ground for dismissal finally decided because of:
would be that the complaint states no cause of (1) Public policy and necessity makes it the interest
action. of the State that there should be an end to
litigation;
v. Litis pendentia (2) The hardship on the individual that he should be
Requisites: [Anderson Group v. CA (1997) Asked in vexed twice for the same cause. [Nabus v. CA
the 2007 Bar Exam] (1991)]
(1) Identity of parties;
(2) identity of rights asserted and relief prayed for; Two concepts of res judicata [ABALOS V. CA 1993,
(3) Relief founded on the same facts and the same ASKED IN THE 1997 BAR EXAM)]
basis; (1) BAR BY PRIOR JUDGMENT – Judgment on the
(4) Identity in the 2 proceedings should be such that merits in the 1st case constitutes an absolute
any judgment which may be rendered in the bar to the subsequent action not only as to
other action will amount to res judicata on the every matter which was offered and received to
action under consideration. sustain or defeat the claim/demand, but also to
any other admissible matter which might have
It is not required to allege that there be a prior been offered for that purpose and to all matters
pending case. It is sufficient to allege and prove the that could have been adjudged in that case.
pendency of another case, even if same had been (Asked in the 2002 Bar Exam)
brought later.
(2) CONCLUSIVENESS OF JUDGMENT – Where the
It does not require that the later case be dismissed 2nd action between the parties is upon a
in favor of the earlier case. To determine which case different claim/demand, the judgment in the
should be abated, apply: 1st case operates as an estoppel only with
(1) The More Appropriate Action Test; regard to those issues directly controverted,
(2) The Interest of Justice Test, taking into upon the determination of which the judgment
account: was rendered.
REMEDIAL LAW REVIEWER

(b) A special promise to answer for the debt,


default, or miscarriage of another;
(c) An agreement made in consideration of
vii. Statute of limitations marriage, other than a mutual promise to 117
Prescription applies only when the complaint on its marry;
face shows that indeed the action has already (d) An agreement for the sale of goods, chattels or
prescribed. things in action, at a price not less than five
hundred pesos, unless the buyer accept and
If the fact of prescription is not indicated on the receive part of such goods and chattels, or the
face of the complaint and the same may be brought evidences, or some of them, of such things in
out later, the court must defer decision on the action, or pay at the time some part of the
motion until such time as proof may be presented on purchase money; but when a sale is made by
such fact of prescription. auction and entry is made by the auctioneer in
his sales book, at the time of the sale, of the
Prescription Laches amount and kind of property sold, terms of sale,
Concerned with the fact Concerned with the price, names of the purchasers and person on
of delay effect of delay whose account the sale is made, it is a sufficient
A matter of time A matter of equity memorandum;
Statutory Not statutory (e) An agreement for the leasing for a longer period
Applies in law Applies in equity than one year, or for the sale of real property or
Based on fixed time Not based on fixed time of an interest therein;
(f) A representation as to the credit of a third
person.
viii. Complaint states no cause of action
Failure to state a cause of action (not lack of cause
x. Non-compliance with a condition precedent
of action) is the ground for a MTD. The former
Non-compliance with PD 1508 (Katarungang
means there is insufficiency in the allegations in the
Pambarangay Law) may result in dismissal of the
pleading. The latter means that there is
case on the ground of non-compliance with a
insufficiency in the factual basis of the action.
condition precedent.
The failure to state a cause of action must be
evident on the face of the complaint itself. b. Resolution of Motion

Test: Assuming the allegations and statements to be During the hearing of the motion, parties shall
true, does the plaintiff have a valid cause of action? submit: [Rule 16, Sec. 2]
(1) Their arguments on questions of law;
A MTD based upon the ground of failure to state a (2) Their evidence on questions of fact.
cause of action imports a hypothetical admission by Exception: Those not available at that time.
the defendant of the facts alleged in the complaint.
If the case goes to trial, such evidence presented
If the court finds the allegations of the complaint to shall automatically be part of the evidence of the
be sufficient but doubts their veracity, it must deny party presenting the same.
the MTD and require the defendant to answer and
then proceed to try the case on its merits. After the hearing, the court may either: [Rule 16,
Sec. 3]
A complaint containing a premature cause of action (1) Dismiss the action/claim;
may be dismissed for failure to state a cause of (2) Deny the MTD;
action. (3) Order the amendment of pleadings.

If the suit is not brought against the real party-in- The court cannot defer the resolution of the MTD for
interest, a motion to dismiss may be filed on the the reason that the ground relied upon is not
ground that the complaint states no cause of action. indubitable.
[Tanpinco v. IAC (1992)]
The court’s resolution on the MTD must clearly and
viii. Extinguished claim distinctly state the reasons therefor.
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or c. Remedies of plaintiff when the complaint
otherwise extinguished. is dismissed

ix. Unenforceable claim under the statute of Remedies of plaintiff when motion to dismiss is
frauds granted
Article 1403 (2) CC requires certain contracts to be If the motion is granted, the complaint is dismissed.
evidenced by some note or memorandum in order to Since the dismissal is final and not interlocutory in
be enforceable, to wit: character, the plaintiff has several options:
(a) An agreement that by its terms is not to be (1) Depending upon the ground for the dismissal of
performed within a year from the making the action, the plaintiff may refile the
thereof;
REMEDIAL LAW REVIEWER

complaint, e.g when ground for dismissal is in a separate action) of a counterclaim pleaded in
anchored on improper venue. the answer.
118 (2) He may appeal from the order of dismissal
where the ground relied upon is one which bars f. When grounds pleaded as affirmative
refilling of complaint e.g. defenses [Rule 16, Sec. 6]
(a) Res judicata
(b) Prescription If no MTD was filed, the grounds in Rule 16, Sec. 1
(c) Extinguishment of the obligation may be pleaded as an affirmative defense and the
(d) Violation of Statutes of Fraud court may conduct a preliminary hearing thereon as
(3) The plaintiff may also avail of a petition for if a MTD was filed.
certiorari, alleging grave abuse of discretion.
[Riano] g. Bar by dismissal
d. Remedies of the defendant when the Subject to the right of appeal, an order granting a
motion is denied motion to dismiss based on paragraphs:
ƒ (f) – That the cause of action is barred by a prior
1. The movant shall file his answer within the judgment or by the statute of limitations;
balance of the period described in Rule 11 to which ƒ (h) – That the claim or demand set forth in the
he was entitled at the time of serving his motion, plaintiff’s pleading has been paid, waived,
but not less than 5 days in any event. abandoned, or otherwise extinguished; and
ƒ (i) - That the claim on which the action is
Appeal is not a remedy since denial of a motion to founded is enforceable under the provisions of
dismiss is an interlocutory order. As a general rule, the statute of frauds
defendant files his answer and then may appeal an
adverse judgment. shall bar the refiling of the same action or claim.
[Rule 16, Sec. 5]
2. Another remedy is to file a certiorari, case under
Rule 65 alleging grave abuse of discretion. [Riano] h. Distinguished from demurrer to evidence
under Rule 33
e. Effect of dismissal of complaint on certain
grounds MTD under Rule 16 MTD under Rule 33
(Demurrer to
i. Of dismissal: [Rule 16, Sec.5] evidence)
General rule: The action/claim may be re-filed. Based on preliminary Based on insufficiency
objections of evidence
Exception: The action cannot be re-filed (although May be filed by any May be filed only by the
subject to appeal) if it was dismissed on any of the defending party against defendant against the
following grounds: whom a claim is asserted complaint of the
(1) Res judicata; in the action plaintiff
(2) Prescription; Should be filed within May be filed only after
(3) Extinguishment of the claim/demand; the time for, but prior the plaintiff has
(4) Unenforceability under the Statute of Frauds. to, the filing of the completed the
[Rule 16, Sec. 1 (f),(h),(i)] defending party’s presentation of his
answer to the pleading evidence
ii. On periods for pleading: [Rule 16, Sec.4] asserting the claim
If MTD is denied – Movant must file his answer within against him
the balance of the period under Rule 11 to which he If denied, defendant If denied, defendant
was entitled at the time of serving his MTD (but not answers; else, he may may present evidence.
less than 5 days) computed from the his receipt of be declared in default. If granted, plaintiff
notice of the denial. If granted, plaintiff may appeals and the order
appeal or if a of the dismissal is
If pleading is ordered to be amended – movant must subsequent reversed; the defendant
file his answer within the period under Rule 11, case is not barred, he loses his right to
counted from service of the amended pleading may re-file the case present evidence.
(unless the court gives a longer period).

iii. On other grounds and omnibus motion rule:


MTD based on the following grounds may be filed VIII. DISMISSAL OF ACTIONS
even after filing an answer: [Rule 9, Sec. 1] 1. Dismissal upon notice by plaintiff; Two-
(1) LOJ over subject-matter;
(2) Litis pendentia;
dismissal rule
(3) Res judicata; 2. Dismissal upon motion by plaintiff; effect
(4) Prescription. on existing counterclaim
3. Dismissal due to the fault of plaintiff
Dismissal of the complaint under Rule 16, Sec. 6 is 4. Dismissal of counterclaim, cross-claim or
without prejudice to the prosecution (in the same or third-party complaint
REMEDIAL LAW REVIEWER

The case may be dismissed motu proprio or upon the


1. Dismissal upon notice by plaintiff; defendant’s motion if, without justifiable cause,
plaintiff fails either:
Two-dismissal rule (1) To appear on the date of the presentation of his 119
evidence-in-chief on the complaint;
Dismissal upon plaintiff’s notice [Rule 17, Sec. 1] ƒ The plaintiff’s failure to appear at the trial
Dismissal here is effected not by motion but by mere after he has presented his evidence and
notice before the service of either: rested his case does not warrant the dismissal
(1) The answer; of the case on the ground of failure to
(2) A motion for summary judgment. prosecute.
ƒ It is merely a waiver of his right to cross-
Upon plaintiff’s filing of notice, the court shall issue examine and to object to the admissibility of
an order dismissing the case. (i.e. the court has no evidence. [Jalover v. Ytoriaga (1977)]
discretion on WON to dismiss the case). (2) To prosecute his action for an unreasonable
length of time (nolle prosequi);
General rule: The dismissal is without prejudice. The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances, the
Exceptions: plaintiff is chargeable with want of due
(1) If the notice of dismissal provides that it is diligence in failing to proceed with reasonable
with prejudice. promptitude. [Calalang v. CA (1993)]
The dismissal is still with prejudice even it the (3) To comply with the ROC or any court order.
notice of dismissal does not so provide, where
such notice is premised on the fact of payment The dismissal has the effect of an adjudication on
by the defendant of the claim involved. the merits, unless the court declares otherwise,
[Serrano v. Cabrera (1953)] without prejudice to the right of the defendant to
prosecute his counter-claim in the same or separate
(2) TWO-DISMISSAL RULE – action.
If the plaintiff has previously dismissed an
action based on or including the same claim, the Rule 17, Sec. 2 Rule 17, Sec. 3
notice operates as an adjudication upon the Dismissal is at the Dismissal is not procured
merits.
plaintiff’s instance by plaintiff, although
justified by causes
2. Dismissal upon motion by plaintiff; imputable to him
effect on existing counterclaim Dismissal is a matter of Dismissal is a matter of
procedure, without evidence, an
Dismissal upon plaintiff’s motion [Rule 17, Sec. 2] prejudice unless adjudication on the
Here, dismissal of the complaint is subject to the otherwise stated in the merits
court’s discretion and upon such terms and court order or on
conditions as may be deemed proper by court plaintiff’s motion for
dismissal of his own
Leave of court for the dismissal is necessary because complaint.
the motion is made after a responsive pleading or a Dismissal is without Dismissal is without
motion for summary judgment has been served. prejudice to the prejudice to the
defendant’s right to defendant’s right to
If defendant pleaded a counterclaim prior to the prosecute his prosecute his
service upon him of the plaintiff’s motion for counterclaim in a counterclaim in the
dismissal, the dismissal shall be without prejudice to separate action (unless same or in a separate
the defendant’s right to either: within 15 days from action
(1) Prosecute his counterclaim in a separate action; notice of the motion he
(2) Have the counterclaim resolved in the same manifests his intention
action, by manifesting such preference within to have his counterclaim
15 days from being notified of plaintiff’s motion resolved in the same
for dismissal. action).

Dismissal here is without prejudice, unless otherwise 4. Dismissal of counterclaim, cross-


provided in the order.
claim or third-party complaint [Rule
Court approval of the court is necessary in the 17, Sec. 4]
dismissal/compromise of a class suit.
This Rule applies to the dismissal of counterclaims,
3. Dismissal due to the fault of cross-claims or 3rd-party complaints.
plaintiff Where a counterclaim is made the subject of a
separate suit, it may be abated upon a plea of auter
Dismissal due to plaintiff’s fault [Rule 17, Sec. 3] action pendentia and/or dismissal on the ground of
res judicata. Res judicata, however, is not
REMEDIAL LAW REVIEWER

applicable since the court held that it did not ƒ Thus, to obviate the element of surprise, parties
acquire jurisdiction due to non-payment of docket are expected to disclose at a pre-trial
120 fees. conference (PTC) all issues of law and fact
which they intend to raise at the trial, except
Dismissal on the ground of LOJ does not constitute such as may involve privileged or impeaching
res judicata, there being no consideration and matters. The determination of issues at a pre-
adjudication of the case on the merits. Neither is trial conference bars the consideration of other
there litis pendentia. [Meliton v. CA (1992)] questions on appeal. [Caltex v. CA (1992)]
ƒ When conducted: After the last pleading has
been served and filed, it shall be the plaintiff’s
IX. PRE-TRIAL duty to move ex parte that the case be set for
pre-trial. [Rule 18, Sec. 1]
1. Concept of pre-trial ƒ A pre-trial cannot validly be held until the last
2. Nature and purpose pleading has been filed, which last pleading may
3. Notice of pre-trial be the plaintiff's reply, except where the period
4. Appearance of parties; effect of failure to to file the last pleading has lapsed.
ƒ Discretion to declare a party non-suited in PTC
appear
must not be abused. Unless a party is so
5. Pre-trial brief; effect of failure to appear negligent, irresponsible, contumacious, or
6. Distinction between pre-trial in civil case dilatory as to provide substantial grounds for
and pre-trial in criminal case dismissal for non-appearance, the court should
7. Alternative Dispute Resolution (ADR) consider lesser sanctions which would still
amount to achieving the end desired. [Calalang
1. Concept of pre-trial v. CA (1993)]

Definition 3. Notice of pre-trial [Rule 18, Sec. 3]


A mandatory conference and personal confrontation
before the judge between the parties litigant and Notice of pre-trial shall be served on counsel, or on
their representative counsels, called by the court the party who has no counsel.
after the joinder of issues in a case or after the last
pleading has been filed and before trial, for the Counsel served with such notice has a duty to notify
purpose of settling the litigation expeditiously or the party he represents.
simplifying the issues without sacrificing the
necessary demands of justice (Asked in the 1999 Bar At the start of the preliminary conference, the judge
Examination, Examiner asked to compare this with is mandated to refer the parties and/or their
proceedings in the Katarungang Pambarangay). counsels to the mediation unit of the Philippine
Mediation Center (PMC) for purposes of mediation. If
2. Nature and purpose the mediation fails, the judge will schedule the
continuance of the preliminary conference. This rule
Purpose applies to Metro Manila, Cebu Davao City, and other
To consider: [Rule 18, Sec. 2] place where PMC Units may be further organized and
ƒ Possibility of an amicable settlement or of a designated. [Admin, Circular No. 20-2002; Admin.
submission to alternative modes of dispute Circular No. 50-2005, April 26, 2005]
resolution;
ƒ Simplification of the issues; 4. Appearance of parties; effect of
ƒ Necessity/desirability of amendments to the failure to appear
pleadings;
ƒ Possibility of obtaining stipulations or admissions Appearance of parties [Rule 18, Sec. 4]
of facts and of documents to avoid unnecessary It is the duty of the parties and their counsel to
proof; appear at the pre-trial.
ƒ Limitation of the number of witnesses;
ƒ Advisability of a preliminary reference of issues A party’s non-appearance may be excused only if
to a commissioner; either:
ƒ Propriety of rendering judgment on the ƒ Valid cause is shown for it;
pleadings, or summary judgment, or of ƒ A representative appears in his behalf, fully
dismissing the action should a valid ground authorized in writing:
therefor be found to exist; - To enter into an amicable settlement;
ƒ Advisability/necessity of suspending the - To submit to alternative modes of dispute
proceedings; and resolution;
ƒ Other matters that may aid in the prompt - To enter into stipulations/admissions of facts
disposition of the action. and of documents.
Note: Citibank v. Chua (1993): SC admonishes the courts
ƒ Pre-trial is primarily intended to make certain against precipitate orders of default as they have
that all issues necessary to the disposition of a the effect of denying the party the chance to be
case are properly raised. heard.
REMEDIAL LAW REVIEWER

5. Pre-trial brief; effect of failure to


There are instances when parties may properly be
defaulted, but such is the exception rather than the
appear
rule and should be used only in clear cases of 121
obstinate refusal or inordinate neglect to comply Pre-trial brief [Rule 18, Sec. 6]
with court orders. ƒ Parties shall file and serve their respective pre-
trial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
Failure to appear at pre-trial
ƒ Pre-trial brief’s contents (Asked in the 2001 Bar
Exam):
Who fails to Effect
- Statement of their willingness to enter into
appear
amicable settlement or alternative modes of
Plaintiff Cause for dismissal of the
dispute resolution, indicating the desired
action which will be with
terms thereof;
prejudice, unless otherwise
- Summary of admitted facts and proposed
ordered by the court
stipulation of facts;
Defendant Cause to allow plaintiff to
- Issues to be tried/resolved;
present evidence ex parte, and
- Documents/exhibits to be presented, stating
court to render judgment on
the purpose thereof;
the basis thereof
- Manifestation of their having availed or their
intention to avail themselves of discovery
Default by defendant As in default procedures or referral to commissioners;
(Rule 9, Sec. 3) (failure to appear by - Number and names of the witnesses, and the
plaintiff) (Rule 18, Sec. substance of their respective testimonies.
Upon motion and notice Not required
to defendant. NOTE: Failure to file the pre-trial brief shall have
Requires proof of failure Not required the same effect as failure to appear at the pre-trial.
to answer
Court to render Court to allow plaintiff Record of pre-trial [Rule 18, Sec. 6]
judgment, unless it to present evidence ex ƒ The pre-trial proceedings shall be recorded.
requires submission of parte, then the court Upon termination of such proceedings, the court
evidence shall render judgment shall issue the pre-trial order.
Relief awarded must be Relief awarded may be ƒ Pre-trial order’s contents:
the same in nature and of different nature and - Matters taken up in the conference;
amount as prayed for in amount from the relief - Action taken thereon;
the complaint prayed for - Amendments allowed on the pleadings;
- Agreements/admissions made by the parties
ƒ A defendant who already filed an answer cannot as to any matters considered;
be declared in default. Only when the - Should the action proceed to trial, the
defendant fails to file an answer to the explicit definition and limit of the issues to be
complaint may the court proceed to render tried.
judgment. [Lesaca v. CA (1992)] ƒ Consequence: The contents of the order shall
ƒ The Revised Rules on Summary Procedure does control the subsequent course of the action,
not provide that an answer filed after the unless modified before trial to prevent manifest
reglementary period should be expunged from injustice.
the records. ƒ Upon manifestation of the parties of their
ƒ As a matter of fact, there is no provision for an willingness to discuss a compromise, the TC
entry of default if a defendant fails to file his should order the suspension of the proceedings
answer. to allow them reasonable time to discuss and
ƒ The defense of LOJ may have even been raised conclude an amicable settlement.
by the defendant in a MTD as an exception to ƒ If despite all efforts exerted by the TC and the
the rule on prohibited pleadings in the Revised parties the settlement conference still fails,
Rule on Summary Procedure. then the action should have continued as if no
ƒ Such a motion is allowed under Sec. 19(a) suspension had taken place. [Goldloop
thereof. [Bayog v. Natino (1996)] Properties v. CA (1992)]
ƒ Where the failure to appear at the pre-trial
hearing was uncontrovertedly due to illness, the Note: AM 03-1-09-SC (No termination of pre-trial for
default order may be set aside on the ground of failure to settle)
accident over which petitioner had no control.
ƒ Also, the order of arrest was illegal as there is Calendar of Cases
nothing in the ROC which authorizes such a ƒ Under the direct supervision of the judge, the
consequence of a default order. [Malanyaon v. clerk of court shall keep a calendar of cases for
Sunga (1992)] pre-trial, for trial, those whose trials were
adjourned/postponed, and those with motions
to set for hearing. [Rule 20, Sec. 1]
REMEDIAL LAW REVIEWER

ƒ Preference shall be given to habeas corpus Civil Case Criminal Case


cases, election cases, special civil actions, and A pre-trial brief is A pre-trial brief is not
122 those so required by law. [Rule 20, Sec. 1] specifically required to specifically required.
ƒ The assignment of cases to the different be submitted [Rule 18,
branches of a court shall be done exclusively by Sec. 6]
raffle. The assignment shall be done in open
session of which adequate notice shall be given
so as to afford interested parties the
opportunity to be present. [Rule 20, Sec. 2] 7. Alternative Dispute Resolution
(ADR)
6. Distinction between pre-trial in X. INTERVENTION
civil case and pre-trial in criminal 1. Requisites for intervention
case (Bar 1997, Riano) 2. Time to intervene
3. Remedy for the denial of motion to
Civil Case Criminal Case
intervene
Set when the plaintiff Ordered by the court and
moves ex parte to set no motion to set the
Definition of intervention (Asked in the 2003 Bar
the case for pre-trial case for pre-trial is
[Rule 18, Sec. 1] required from either the Exam)
prosecution or the A legal remedy whereby a person is permitted to
defense [Rule 118, Sec. become a party in a case, by either:
1] ƒ Joining the plaintiff;
ƒ Joining the defendant;
Made after the pleading Ordered by the court
ƒ Asserting his right against both plaintiff and
has been served and after arraignment and
defendant, considering that either:
filed [Rule 18, Sec. 1] within 30 days from the
- He has a legal interest in the subject matter
sate the court acquired
of the action;
jurisdiction over the
- He is going to be adversely affected by the
person of the accused
disposition of the property in the custody of
[Rule 118, Sec. 1]
the court
Considered the Does not include the
possibility of an considering of the
Metropolitan Bank v. Presiding Judge (1990):
amicable settlement as possibility of amicable
Intervention is a proceeding in a suit/action by
an important objective settlement of one’s
which a 3rd person is permitted by the court to
[Rule 118, Sec. 2(a)] criminal liability as one
make himself a party, either joining plaintiff in
of its purposes [Rule
claiming what is sought by the complaint, or uniting
118, Sec. 1]
with defendant in resisting the claims of plaintiff, or
The arrangements and (Stricter procedure)
demanding something adversely to both of them.
admissions in the pre- All agreements or
trial are not required to admissions made or
Cariño vs. Ofilada (1993): It is the act/proceeding
be signed by both parties entered during the pre-
by which a 3rd person becomes a party in a suit
and their counsels. trial conference shall be
pending between others.
Under the Rules, they reduced in writing and
are instead to be signed by both the
It is the admission, by leave of court, of a person not
contained in the record accused and counsel;
an original party to pending legal proceedings, by
of pre-trial and pre-trial otherwise, they cannot
which such person becomes a party thereto for the
order [Rule 18, Sec. 7] be used against the
protection of some right of interest alleged by him
accused. [Rule 118, Sec.
to be affected by such proceedings.
[AM No. 03-1-09] - 2]
requires the proceedings
An intervenor is a party to the action as the original
during the preliminary
parties are, and to make his right effectual he must
conference to be
necessarily have the same powers as the original
recorded in the “Minutes
parties. He is entitled to have the issues raised
of Preliminary
between him and the original parties tried and
Conference” to be
determined.
signed by both parties
and/or counsel.
Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation.
(Note: either party or his
Its purpose is to afford one not an original party, yet
counsel is allowed to
having a certain right/interest in the pending case,
sign)
the opportunity to appear and be joined so he could
The sanctions for non- Sanctions are imposed
assert or protect such right/interest.
appearance are imposed upon the counsel for the
upon the plaintiff and accused or the
Hence, the final dismissal of the principal action
the defendant [Rule 18, prosecutor [Rule 118,
results into the dismissal of said ancillary action.
Sec. 4] Sec. 3]
Who may intervene [Rule 19, Sec. 1]
REMEDIAL LAW REVIEWER

ƒ One who has a legal interest in the matter in Magsaysay-Labrador v. CA (1989): Interest in the
litigation; subject means a direct interest in the cause of
ƒ One who has a legal interest in the success of action as pleaded and which would put the
either of the parties; intervenor in a legal position to litigate a fact 123
ƒ One who has an interest against both parties; alleged in the complaint, without the establishment
ƒ One who is so situated as to be adversely of which plaintiff could not recover.
affected by a distribution/disposition of
property in the court’s custody. Pleadings in intervention [Rule 19, Sec. 3]
ƒ COMPLAINT-IN-INTERVENTION – If intervenor
asserts a claim against either or all of the
Meaning of legal interest original parties.
ƒ One that is actual and material, direct and of an
immediate character, not merely contingent or ƒ ANSWER-IN-INTERVENTION – If intervenor
expectant so that that intervenor will either unites with the defending party in resisting a
gain or lose by the direct legal operation of the claim against the latter.
judgment.
Answer to complaint-in-intervention [Rule 19, Sec.
ƒ When the title to the property if declared void 4]
by final judgment, intervention will not revive It must be filed within 15 days from notice of the
or reinstate the movant’s title derived from the order admitting the complaint-in-intervention,
title declared void. [Firestone Ceramics vs. CA unless a different period is fixed by the court.
(1999)]

ƒ The assignee of a property who assumed Intervention Interpleader


payment of whatever amount may be finally An ancillary action An original action
adjudged against the assignor, may intervene in Proper in any of the four Presupposes that the
a proceeding involving the execution of the situations mentioned in plaintiff has no interest
property pursuant to a judgment. [Robles vs. Rule 19 in the subject matter of
Timario (1962)] the action or has an
interest therein, which
ƒ In an action for foreclosure of mortgage, the in whole or in part is not
alleged owners of the land sought ot be disputed by the other
foreclosed may intervene. [Roxas vs. Dinglasan parties to the action
(1969)] There is already a Defendants are being
defendant among the sued precisely to
1. Requisites for intervention original parties to the implead them
pending suit
How intervention is done
By a motion to intervene, with the pleading-in- 2. Time to intervene
intervention attached. Must also serve copy of the ƒ Intervention is allowed any time before TC
pleading-in-intervention on the original parties. renders judgment. [Rule 19, Sec. 2]
[Rule 19, Sec. 2] ƒ After rendition of judgment, a motion to
intervene is barred, even if the judgment itself
General rule: Allowance of intervention is recognizes the movant’s right. The movant’s
discretionary with the court. remedy is to file a separate action.
Exception: When the intervenor is an indispensable
party. 3. Remedy for the denial of motion to
intervene
Factors considered in allowing intervention
ƒ WON intervention will unduly delay or prejudice Remedies
the adjudication of the rights of the original ƒ For denial of intervention:
parties. - Appeal.
- Mandamus, if there is GAD.
ƒ WON the intervenor's rights may be fully ƒ For improper granting of intervention:
protected in a separate proceeding. Certiorari.

Carino vs Ofilada (1993): The interest must be


actual and material, direct and immediate; not
XI. SUBPOENA
simply contingent or expectant. 1. Subpoena duces tecum
2. Subpoena ad testificandum
It must be in the matter in litigation and of such 3. Service of subpoena
direct and immediate character that the intervenor 4. Compelling attendance of witnesses;
will either gain or lose by the direct legal operation Contempt
and effect of the judgment.
5. Quashing of subpoena
REMEDIAL LAW REVIEWER

Subpoena is a process issued by court which is ƒ Exception: Tender not required if subpoena is
either: issued by or on behalf of the Republic or an
124 Types (and definition) of subpoena [Rule 21, Sec. officer/agency thereof.
1] ƒ For subpoena duces tecum, also tender the
ƒ Subpoena duces tecum reasonable cost of producing the
ƒ Subpoena ad testificandum books/documents/things demanded.
ƒ Service must be made so as to allow the witness
reasonable time for preparation and travel to
By whom issued [Rule 21, Sec. 2] the place of attendance
ƒ The court before whom the witness is required
to attend; 4. Compelling attendance of
ƒ The court of the place where the deposition is
to be taken; witnesses; Contempt
ƒ The officer/body authorized by law to do so in
connection with investigations conducted by Personal appearance in court [Rule 21, Sec. 7]
said officer/body; A person present in court before a judicial officer
ƒ Any SC/CA Justice in any case or investigation may be required to testify as if he were in
pending within the Philippines. attendance upon a subpoena issued by such
court/officer.
Form and contents of subpoena [Rule 21, Sec. 3]
ƒ Name of court; Application for subpoena to prisoner [Rule 21, Sec.
ƒ Title of action/investigation; 2]
ƒ Directed to a person whose attendance is ƒ The judge/officer shall examine and study the
required application carefully to determine WON it is
ƒ If subpoena duces tecum, a reasonable made for a valid purpose.
description of the books/documents/things ƒ However, no prisoner sentenced to death,
demanded which must appear to the court reclusion perpetua or life imprisonment and who
prima facie relevant. is confined in a penal institution shall be
brought outside for appearance/attendance in
Subpoena for depositions [Rule 21, Sec. 5] any court unless authorized by the SC.
ƒ Proof of service of a notice to take a deposition
is sufficient authorization for the issuance of Remedy in case of witness’ failure to attend
subpoena ad testificandum for the persons Upon proof of service of subpoena and of witness’
named in the notice. failure to attend, the court/judge issuing the
ƒ Issued by the clerk of court of the place in subpoena may issue a warrant to the sheriff to arrest
which the deposition is to be taken. the witness and bring him before the court/officer
ƒ However, subpoena duces tecum for depositions where his attendance is required. [Rule 21, Sec. 8]
cannot be issued without court order.
The cost of warrant and seizure shall be paid by the
witness if the court determines that the failure to
1. Subpoena duces tecum attend was willful and without just excuse.
Process directed to a person, requiring him to bring Such failure shall be deemed a contempt of the
with him any books/documents/things under his court which issued the subpoena. [Rule 21, Sec. 9]
control. (Asked in the 1997 Bar Exam)
If subpoena was not issued by a court, the
Subpoena duces tecum distinguished from Order disobedience shall be punished by applicable law or
for production or inspection ROC.
See Annex B.
Exception: Arrest warrant and contempt not
2. Subpoena ad testificandum applicable to: [Rule 21, Sec. 10]
ƒ A witness who resides more than 100km from his
Process directed to a person, requiring him to attend residence to the place where he is to testify.
and to testify at the hearing/trial of an action or at ƒ A detention prisoner, if there is no permission
any investigation conducted by competent authority, from the court in which his case is pending.
or for the taking of his deposition.
5. Quashing of subpoena [Rule 21,
3. Service of subpoena [Rule 21, Sec. Sec. 4]
6]
Upon motion promptly made, at/before the time
ƒ Same manner as personal or substituted service specified in the subpoena.
of summons.
ƒ The original shall be exhibited and a copy Grounds for quashing:
delivered to person on whom it is served, with ƒ Subpoena duces tecum:
tender of fees for one day’s attendance and - It is unreasonable and oppressive;
kilometrage. - The relevancy of the books/documents/
things does not appear;
REMEDIAL LAW REVIEWER

- The person in whose behalf the subpoena is documents, or other tangible things and the
issued fails to advance the reasonable cost of identity of any persons having knowledge of
production; relevant facts. [Rule 23, sec. 2]
- Witness fees and kilometrage were not 125
tendered when subpoena was served. c. Uses of deposition pending action
ƒ Subpoena ad testificandum:
- That the witness is not bound thereby; Dasmariñas Garments,Inc. v. Reyes (1993):
- That witness fees and kilometrage were not
tendered when the subpoena was served. General Rule: A deposition is not generally supposed
to be a substitute for the actual testimony in open
court of a party or witness. If the witness is available
XII. MODES OF DISCOVERY to testify, he should be presented in court to testify.
If available to testify, a party’s or witness’
1. Depositions pending action; Depositions deposition is inadmissible in evidence for being
before action or pending appeal hearsay.
2. Written interrogatories to adverse parties
3. Request for Admission Exception: [Rule 23, Section 4]
4. Production or inspection of documents or ƒ Any deposition may be used by any party for the
things purpose of contradicting or impeaching the
testimony of deponent as a witness;
5. Physical and mental examination of
ƒ The deposition of a party or of any one who at
persons the time of taking the deposition was an officer,
6. Consequences of refusal to comply with director, or managing agent of a public or
modes of discovery private corporation, partnership, or association
which is a party may be used by an adverse
1. Depositions pending action; party for any purpose;
ƒ The deposition of a witness, whether or not a
Depositions before action or pending party, may be used by any party for any purpose
appeal [RULES 23 and 24] if the court finds:
- that the witness is dead; or
Depositions Under Rule 23 - that the witness resides at a distance more
than one hundred (100) kilometers from the
a. Meaning and purpose of deposition place of trial or hearing, or is out of the
Philippines, unless it appears that his absence
ƒ Deposition is chiefly a mode of discovery, the was procured by the party offering the
primary function of which is to supplement the deposition; or
pleadings for the purpose of disclosing the real - that the witness is unable to attend to testify
points of dispute between the parties and because of age, sickness, infirmity, or
affording an adequate factual basis during the imprisonment; or
preparation for trial. - that the party offering the deposition has
ƒ The liberty of a party to avail of such modes of been unable to procure the attendance of the
discovery is unrestricted if the matters inquired witness by subpoena; or
into are relevant and not privileged, and the - upon application and notice, that such
inquiry is made in good faith and within the exceptional circumstances exist as to make it
bounds of the law. desirable, in the interest of justice and with
ƒ Limitations would arise if the examination is due regard to the importance of presenting
conducted in bad faith; or in such a manner as the testimony of witnesses orally in open
to annoy, embarrass or oppress the person under court, to allow the deposition to be used; and
examination; or when the inquiry touches upon ƒ If only part of a deposition is offered in
the irrelevant or encroaches upon the evidence by a party, the adverse party may
recognized domains of privilege. require him to introduce all of it which is
ƒ Under certain conditions and for certain limited relevant to the part introduced, and any party
purposes, it may be taken even after trial has may introduce any other parts.
commenced and may be used without the
deponent being actually called to the witness d. Before whom taken
stand. [Jonathan Landoil v Mangudadatu (2006)]
General Rule: Depositions may be taken before any
b. Scope of examination judge, notary public, or the person referred to in
section 14 (which refers to any person authorized to
administer oaths designated by the parties by
Unless otherwise provided by the court, the
stipulation).
deponent may be examined regarding any matter not
privileged, which is relevant to the pending action,
whether relating to the claim or defense of any Exceptions: In our jurisdiction, depositions in
party foreign countries may be taken:
ƒ including the existence, description, nature, ƒ on notice before a secretary of embassy or
custody, condition and location of any books, legation, consul general, consul, vice consul, or
REMEDIAL LAW REVIEWER

consular agent of the Republic of the interposed during the course of the deposition
Philippines; although any objections shall be noted by him upon
126 ƒ before such person or officer as may be the deposition. Any evidence that is objected to
appointed by commission or under letters shall still be taken but subject to the objection.
rogatory; or [Rule 23, Section 17]
ƒ before any person authorized to administer
oaths as stipulated in writing by the parties. f. When may taking of deposition be
terminated or its scope limited

The court in which the action is pending or the RTC


of the place where the deposition is being taken may
COMMISSION LETTERS order the officer conducting the examination to
ROGATORY cease from taking the deposition, or may limit the
Addressed Any authority in a A judicial scope and manner of taking the deposition
to whom foreign country authority in the
authorized therein foreign country WHEN: At any time during the taking of the
to take down deposition, on the motion or petition of any party or
depositions of the deponent
Rules that Rules laid down by Rules laid down by
govern the court issuing such foreign GROUND: that the examination is being conducted in
the the commission judicial authority bad faith or in such a manner as unreasonably to
deposition annoy, embarrass or oppress the deponent or party
When Preferred over Generally resorted [Rule 23, sec. 18]
issued letters rogatory to when there is
since the process difficulty or If the order made terminates the examination, it
is simpler impossibility of shall be resumed only upon the order of the court in
(generally, no obtaining the which the action is pending.
need to resort to deposition by
diplomatic commission g. When may objections to errors and
channels unlike in (Regalado) irregularities be made [Rule 23, sec. 29]
letters rogatory)
Objection When Made
No deposition shall be taken before a person who is: As to notice to Waived, unless written objection
[Rule 23, sec. 13] parties is promptly served upon party
ƒ a relative within the sixth degree of giving notice
consanguinity or affinity, or
Deposition Waived, unless made before the
ƒ employee or counsel of any of the parties, or
officer is taking of the deposition or as
who is a relative within the same degree, or
disqualified soon as the disqualification
employee of such counsel; or
becomes known or could be
ƒ who is financially interested in the action.
discovered with reasonable
certainty
e. Procedure Lack of NOT waived by failure to make
relevance, them before or during the taking
A party desiring to take the deposition of any person materiality and of the deposition, unless the
upon oral examination shall give reasonable notice in competence of ground for the objection is one
writing to every party to the action stating the time the deposition which might have been obviated
and place for taking the deposition and the name to the action or removed if presented at that
and address of each person to be examined. [Rule time
23, Section 15] Error in the Waived, unless reasonable
p manner of objection is made at the taking
After the notice is served, the court may make any taking the of the deposition
order for the protection of the parties and the deposition
deponent. [Rule 23, Section 16] Error in the Waived, unless served in writing
p form of written upon the party propounding them
The attendance of the witnesses may be compelled interrogatories within the time allowed for
by the use of subpoenas. [Rule 23, Section 1] serving succeeding cross or other
p interrogatories and within 3 days
The deponent may be examined or cross examined after service of the last
following the procedures for witnesses in a trial. He interrogatories
may be asked questions on direct, cross, re-direct or Error in the Waived, unless a motion to
re-cross. He has the same rights as a witness and manner of suppress the deposition or some
may be impeached like a court witness because preparing the part thereof is made with
Sections 3 to 18 of Rule 132 apply to deponent. [Rule deposition reasonable promptness after such
23, Section 3] defect is, or with reasonable
p diligence might have been,
The officer before whom the deposition is being ascertained
taken has no authority to rule on objections
REMEDIAL LAW REVIEWER

h. Other rules to rely on such a defense, that person must move for
the taking of the deposition of his witnesses within
Effect of substitution of parties [Rule 23, Sec. 5] the time provided for filing a pre-trial motion.
ƒ Substitution of parties does not affect the right 127
to use depositions previously taken; The use of discovery procedure in criminal cases is
ƒ and, when an action has been dismissed and directed to the sound discretion of the trial judge.
another action involving the same subject is The deposition taking cannot be based nor can it be
afterward brought between the same parties or denied on flimsy reasons. Discretion has to be
their representatives or successors in interest, exercised in a reasonable manner and in consonance
ƒ all depositions lawfully taken and duly filed in with the spirit of the law.
the former action MAY BE USED IN THE LATTER
AS IF ORIGINALLY TAKEN THEREFOR. Dasmariñas Garments v. Reyes (1993): Any
deposition offered to prove the facts therein at the
Effect of taking deposition [Rule 23, Sec. 7] trial of the case, in lieu of actual testimony of the
ƒ A party shall not be deemed to make a person deponent in court, may be opposed and excluded for
his own witness for any purpose by taking his being hearsay save in specific instances under the
deposition. Rules.

Effect of using deposition [Rule 23, Sec. 8] Depositions Before Action Under Rule 24
ƒ General Rule: Introduction in evidence of
deposition or any part thereof for any purpose Purpose
makes the deponent the witness of the party To perpetuate the testimony of witnesses for
introducing the deposition. probable use in the event of further proceedings in
ƒ Exception: if the purpose is to contradict or said court.
impeach the deponent.
Procedure
Leave of court [Rule 23, Sec. 1]
ƒ Leave of court is NOT required after an answer FILE A VERIFIED PETITION IN THE COURT OF THE
has been served. PLACE OF THE RESIDENCE OF ANY EXPECTED
ƒ It is required before the service of an answer ADVERSE PARTY.
but after jurisdiction has been acquired over the
defendant or over the property subject of the The petition shall be entitled in the name of the
action. petitioner and shall show:
ƒ ONLY INSTANCE WHEN ONE ALWAYS NEEDS ƒ that the petitioner expects to be a party to an
LEAVE OF COURT BEFORE TAKING DEPOSITIONS: action in a court of the Philippines but is
Where the deponent is in jail. presently unable to bring it or cause it to be
brought;
Written Interrogatories under Rule 23 ƒ the subject matter of the expected action and
his interest therein;
ƒ A deposition need not be conducted through an ƒ the facts which he desires to establish by the
oral examination. It may be conducted through proposed testimony and his reasons for desiring
written interrogatories which shall be served to perpetuate it;
upon every other party. ƒ the names or a description of the persons he
ƒ The party served may also serve cross- expects will be adverse parties and their
interrogatories upon the party proposing to take addresses so far as known; and
the deposition within 10 days from service of ƒ the names and addresses of the persons to be
the written interrogatories. The latter may, examined and the substance of the testimony
within 5 days serve re-direct interrogatories and which he expects to elicit from each, and shall
within 3 days the other party may serve re-cross ask for an order authorizing the petitioner to
interrogatories [Rule 23, Sec. 25] take the depositions of the persons to be
ƒ Copies of all these interrogatories shall be examined named in the petition for the purpose
delivered to the officer before whom the of perpetuating their testimony.
deposition is taken and who shall take the p
responses and prepare the record. [Rule 23, Sec. NOTICE AND SERVICE to each person named in the
26] petition as an expected adverse party, together with
a copy of the petition, stating that the petitioner
People v. Hubert Webb (1999): DEPOSITION, WHEN will apply to the court, at a time and place named
AVAILABLE IN CRIMINAL CASES: A deposition, in therein, for the order described in the petition.
keeping with its nature as a mode of discovery, p
should be taken BEFORE AND NOT DURING TRIAL. At least twenty (20) days before the date of the
hearing, the court shall cause notice thereof to be
In fact, rules on criminal practice - particularly on served on the parties and prospective deponents in
the defense of alibi, which is respondent’s main the manner provided for service of summons.
defense in the criminal proceedings against him in
the court below - states that when a person intends p
REMEDIAL LAW REVIEWER

ORDER AND EXAMINATION: If the court is satisfied NOTE: Interrogatories under RULE 25 are served
that the perpetuation of the testimony may prevent directly upon the adverse party unlike written
128 a failure or delay of justice, it shall make an order interrogatories under RULE 23 which are delivered to
designating or describing the persons whose the officer before whom the deposition is to be
deposition may be taken and specifying the subject taken.
matter of the examination and whether the
depositions shall be taken upon oral examination or c. Answer
written interrogatories.
ƒ The interrogatories shall be ANSWERED FULLY IN
Note: Procedure for taking deposition by oral WRITING and shall be SIGNED AND SWORN TO BY
examination or written interrogatories will be THE PERSON MAKING THEM.
governed by Rule 23 on depositions de bene esse. ƒ The party upon whom the interrogatories have
been served shall file and serve a copy of the
Depositions Pending Appeal Under Rule 24 answers on the party submitting the
interrogatories within fifteen (15) days after
J. Regalado believes that the following procedure is service thereof unless the court on motion and
applicable to civil and criminal cases. for good cause shown, extends or shortens the
time. [Rule 25, Sec. 2]

Procedure: d. Effect of objections to interrogatories


DURING THE PENDENCY OF AN APPEAL, the court in
which the judgment was rendered may allow the When objections to any interrogatories is presented
taking of depositions of witnesses to perpetuate to the court within 10 days after service thereof,
their testimony in the event of further proceedings with notice as in case of a motion, the answer shall
in the said court. be deferred until the objections are resolved [Rule
p 25, Sec. 3]
The party who desires to perpetuate the testimony
may make a motion in the said court for leave to e. Number of interrogatories
take the depositions, upon the same notice and
service thereof as if the action was pending therein. No party may, without leave of court, serve more
The motion shall state: than one set of interrogatories to be answered by
ƒ the names and addresses of the persons to be the same party. [Rule 23, Sec. 4]
examined and the substance of the testimony
which he expects to elicit from each, and f. Scope of interrogatories
ƒ the reason for perpetuating their testimony.
p Any matter
ORDER ALLOWING THE DEPOSITION: If the court finds ƒ not privileged, and
that the perpetuation of the testimony is proper to ƒ relevant to the subject of the pending action,
avoid a failure or delay of justice, it may make an whether relating to the claim or defense of any
order allowing the deposition to be taken. other party, including the existence,
description, nature, custody, condition, and
2. Written interrogatories to adverse location of any books, documents, or other
tangible things and the identity and location of
parties [RULE 25] persons having knowledge of relevant facts.
a. Purpose g. Use of interrogatories
This mode of discovery is availed of by the party to Same as Rule 23, Sec. 4 mutatis mutandis.
the action for the purpose of eliciting material and
relevant facts from any of the adverse party. [Rule
h. Failure to file written interrogatories
25, Sec. 1]
A party not served with written interrogatories may
b. Procedure not be compelled by the adverse party to give
testimony in open court, or to give a deposition
ƒ By leave of court after jurisdiction has been pending appeal, UNLESS allowed by the court for
obtained over any defendant or over property good cause shown and to prevent failure of justice.
which is the subject of the action, or
ƒ Without such leave after an answer has been
i. Consequences of refusal to answer
served, any party desiring to elicit material and
relevant facts from any adverse parties shall file
ƒ The party serving the interrogatories may apply
and serve upon the latter written
to the court for an order to compel an answer.
interrogatories to be answered by the party
ƒ If court also finds that the refusal to answer was
served, or if the party served is a public or
without substantial justification, it may require
private corporation or a partnership or
the refusing party or deponent or the counsel
association, by any officer thereof competent to
advising the refusal, or both of them, TO PAY
testify in its behalf.
THE PROPONENT THE AMOUNT OF THE
REASONABLE EXPENSES INCURRED IN OBTAINING
REMEDIAL LAW REVIEWER

THE ORDER, INCLUDING ATTORNEY'S FEES (Rule - setting forth in detail the reasons why he
29, Sec. 1). cannot truthfully either admit or deny those
ƒ Refusal to comply with an order of the court to matters.
compel an answer may be considered CONTEMPT 129
of that court (Rule 29, Sec. 2)
ƒ The subject of discovery shall be DEEMED
ADMITTED OR ESTABLISHED (Rule 29 Sec. 3a).
ƒ The disobedient party shall be prohibited from d. Deferment of compliance
introducing CONTRADICTORY EVIDENCE (Rule 29,
Sec. 3b) To avoid the implied admission, the party requested
ƒ STRIKING OUT OF PLEADINGS OR PARTS may have the compliance of the filing and service of
THEREOF (RULE 29, SECTION 3c) the sworn statement be deferred by filing with court
ƒ STAYING FURTHER PROCEEDINGS UNTIL THE objections to the request for admission.
ORDER IS OBEYED (RULE 29, SECTION 3c)
ƒ DISMISSING THE ACTION OR PROCEEDING OR ANY Compliance shall be deferred until such objections
PART THEREOF(RULE 29, SECTION 3c) are resolved by the court. [Rule 26, Sec. 2 par. 2]
ƒ RENDERING A JUDGMENT BY DEFAULT AGAINST
THE DISOBEDIENT PARTY; AND (RULE 29, e. Effect of admission
SECTION 3c)
ƒ In lieu of any of the foregoing orders or in Any admission made by a party pursuant to such
addition thereto, an order directing the arrest request is for the purpose of the pending action only
of any party or agent of a party for disobeying and shall not constitute an admission by him for any
any of such orders [RULE 29, Sec. 3c] other purpose nor may the same be used against him
in any other proceeding. [Rule 26, Sec. 3]
3. Request for Admission [RULE 26]
f. Withdrawal
a. Purpose
The court may allow the party making an admission,
ƒ To allow one party to request the adverse in whether express or implied under the Rule to
writing to admit certain material and relevant withdraw or amend it upon such terms as may be
matters which most likely will not be disputed just.
during the trial.
ƒ To avoid unnecessary inconvenience to the The admitting party must file a motion to be
parties in going through the rigors of proof, relieved of the effects of his admissions.
before the trial, a party may request the other
to: g. Effect of failure to file and serve request
- admit the genuineness of any material for admission
and relevant document described in and
exhibited with the request; or General rule: The party who fails to file a request
- admit the truth of any material and shall not be permitted to present evidence on such
relevant matter of fact set forth in the facts.
request [Rule 26, Sec. 1]
Exception: Unless otherwise allowed by the court
b. When may request be made for:
- good cause shown and
At any time after issues have been joined. - to prevent a failure of justice,
a party who fails to file and serve a request for
Duque v. CA (2002): The request for admission admission on the adverse party of material and
MUST BE SERVED ON THE PARTY and NOT ON THE relevant facts at issue which ARE, OR OUGHT TO BE,
COUNSEL. This is an exception to the general rule WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER
that notices shall be served upon counsel and not [Rule 26, Sec. 5]
upon the party.
4. Production or inspection of
c. Implied admission by adverse party documents or things [RULE 27]
EACH OF THE MATTERS OF WHICH AN ADMISSION IS
REQUESTED SHALL BE DEEMED ADMITTED unless, a. Procedure
ƒ within a period designated in the request, which
shall not be less than 15 days after service A motion must be filed by the party seeking the
thereof, or within such further time as the court production or inspection of documents and things
may allow on motion, and the motion must show good cause supporting the
ƒ the party to whom the request is directed files same. [Rule 27, Sec. 1]
and serves upon the party requesting the p
admission a SWORN STATEMENT either The court in which the action is pending shall issue
- denying specifically the matters of which an an order:
admission is requested, or ƒ which shall specify the time, place and manner
REMEDIAL LAW REVIEWER

of making the inspection and taking copies and previously or thereafter made, of the same
photographs, and mental or physical condition.
130 ƒ which may prescribe such terms and conditions ƒ If the party examined refuses to deliver such
as are just. [Rule 27, Sec. 1] report, the court on motion and notice may
make an order requiring delivery on such terms
as are just
ƒ If it is the physician who fails or refuses to make
such a report the court may exclude his
b. What the court may order testimony if offered at the trial. [Rule 28, Sec.
3]
ƒ To PRODUCE and PERMIT THE INSPECTION and
copying or photographing, by or on behalf of the d. Waiver or privilege
moving party, of any documents, papers, books,
accounts, letters, photographs, objects or By requesting and obtaining a report of the
tangible things, not privileged, which constitute examination so ordered or by taking the deposition
or contain evidence material to any matter of the examiner, the party examined waives any
involved in the action and which are in the privilege he may have in that action or any other
possession, custody or control of the party to involving the same controversy, regarding the
whom the order is addressed. testimony of every other person who has examined
ƒ To PERMIT ENTRY upon designated land or other or may thereafter examine him in respect of the
property in the position or control of the party same mental or physical examination.
to whom the order is addressed for the purpose
of inspecting, measuring, surveying, or e. Physician-Patient Privilege
photographing the property or any designated
relevant object or operation thereon. ƒ Inapplicable because the results of the
[Rule 27, Sec. 1] examination are intended to be made public.
ƒ Such examination is not necessary to treat or
NOTE: This mode of discovery does not mean that cure the patient but to assess the extent of
the person who is required to produce the document injury or to evaluate his physic al or mental
or the thing will be deprived of its possession even condition.
temporarily. It is enough that the requesting party
be given the opportunity to inspect or copy or
photograph the document or take a look at the 6. Consequences of refusal to comply
thing. (Regalado) (Asked in the 2002 Bar Exam) with modes of discovery
See Annex C.
5. Physical and mental examination of
persons [Rule 28]
XIII. TRIAL
a. Motion requesting Examination 1. Adjournments and postponements
2. Requisites of motion to postpone trial
Requisites a. For absence of evidence
ƒ The physical or mental condition of a party (NOT b. For illness of party or counsel
A WITNESS!) is in controversy
3. Agreed statement of facts
ƒ Motion must be filed showing good cause
ƒ Notice given to the party to be examined and to 4. Order of trial; reversal of order
all other parties 5. Consolidation or Severance of hearing or
ƒ Notice must specify the time, place, manner, trial
conditions and scope of examination 6. Delegation of reception of evidence
ƒ Notice must also specify person/s who will make 7. Trial by commissioners
the examination a. Reference by consent or ordered on
motion
b. Court to issue the order for examination in b. Powers of the commissioner
its discretion. c. Commissioner’s report; notice to
parties and hearing on the report
c. Report of findings
Trial, defined
ƒ If requested by the party examined, the party
A trial is the judicial process of investigating and
causing the examination to be made shall
determining the legal controversies, starting with
deliver to him a copy of a detailed written
the production of evidence by the plaintiff and
report of the examining physician setting out his
ending with his closing arguments [Acosta v. People].
findings and conclusions.
ƒ After such request and delivery, the party A hearing is a broader term. It is not confined to the
causing the examination to be made shall be trial and presentation of the evidence because it
entitled upon request to receive from the party actually embraces several stages in the litigation. It
examined a like report of any examination,
REMEDIAL LAW REVIEWER

includes the pre-trial and the determination of


granting or denying a motion. [Trocio v Labayo] ƒ Parties may agree in writing upon the facts
involved in the litigation, and submit the case
Notice of trial [Rule 30, Sec. 1] for judgment without introduction of evidence. 131
Upon entry of a case in the trial calendar, the clerk ƒ If the parties agree to only some of the facts in
shall notify parties the date of its trial, ensuring issue, trial shall be held as to the disputed facts
receipt of the notice at least 5 days before the trial in such order as the court shall prescribe.
date.
4. Order of trial; reversal of order
1. Adjournments and postponements
[Rule 30, Sec. 2] Conduct of trial [Rule 30, Sec. 5]
General rule: Trial shall be limited to the issues
General rule: The court may adjourn a trial from stated in the pre-trial order.
day to day to any stated time, as the expeditious
and convenient transaction of business may require. Exception:
ƒ Provisions on separate trials in Rule 31, Sec. 2
Exception: Court may not adjourn for longer than 1 ƒ When for special reasons the court directs
month for each adjournment, nor more than 3 otherwise.
months in all.
General order of trial
Exception to exception: When authorized in writing
by the SC Court Administrator. Plaintiff shall adduce evidence in support of his
claim;
Note: Postponement is not a matter of right. It is p
addressed to the sound discretion of the court. Defendant shall adduce evidence in support of his
[Riano, citing Garces v Valenzuela] defense, counterclaim, cross-claim and 3rd-party
complaint;
2. Requisites of motion to postpone p
3rd-party defendant (if any) shall adduce evidence
trial of his defense, counterclaim, cross-claim and 4th-
party complaint;
a. for absence of evidence p
4th-party (and so forth) shall adduce evidence of the
b. for illness of party or counsel material facts pleaded by them;
p
Ground for Requisite for motion to postpone Parties whom any counterclaim or cross-claim has
postponement been pleaded, shall adduce evidence in support of
of trial their defense, in the order prescribed by the court.
For absence of Affidavit showing: p
evidence [Rule ƒ The materiality/relevancy of Parties may respectively adduce rebutting evidence
30, Sec. 3] such evidence; only.
ƒ That due diligence has been
used to procure the evidence Exception: When the court permits them to adduce
evidence upon their original case, for good reasons
But if the adverse party admits the and in furtherance of justice.
facts to be given in evidence, trial p
shall not be postponed even if he Upon admission of evidence, the case shall be
objects or reserves the right to deemed submitted for decision, unless the court
object to their admissibility. directs the parties to argue or to submit their
For illness of Affidavit or sworn certification: respective memoranda or any further pleadings.
party/counsel ƒ That the presence of such
[Rule 30, Sec. party/counsel at the trial is If several defendants or 3rd-party defendants having
4] indispensable; separate defenses appear by different counsel, the
ƒ That the character of his illness court shall determine the relative order of
is such as to render his non- presentation of their evidence.
attendance excusable.

Subpoena
5. Consolidation or Severance of
See separate part for Subpoena BUT please take hearing or trial
note that Subpoenas are issued within the context
of a Trial and taking depositions under Modes of Consolidation of trial [Rule 31, Sec. 1]
Discovery. When actions involving common question of law/fact
are pending before the court, it may:
3. Agreed statement of facts [Rule 30, ƒ Order a joint hearing/trial of any/all the
matters in issue in the actions;
Sec. 6] ƒ Order all the actions consolidated;
REMEDIAL LAW REVIEWER

ƒ Make such orders concerning the proceedings as a. Reference by consent or ordered


to avoid unnecessary costs or delay.
on motion
132
Where a case has been partially tried before one
judge, the consolidation of the same with another Order of reference [Rule 32, Sec. 2 to 12]
related case pending before another judge who had ORDER OF REFERENCE: When a reference is made,
no opportunity to observe the demeanor of the the clerk shall furnish the commissioner with a copy
witness during trial makes the consolidation not of the order of reference.
mandatory. [PCGG v. Sandiganbayan (1992)]
MEETING: The commissioner shall set a time/place
Severance of trial [Rule 31, Sec. 2] for the first meeting and shall notify
The court may issue separate trials for convenience parties/counsels.
or to avoid prejudice:
ƒ Of any claim, cross-claim, counterclaim or 3rd- REPORT: Upon completion of the trial/hearing, the
party complaint; commissioner shall file a written report with the
ƒ Of any separate issue; court.
ƒ Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or issues. NOTICE: The clerk shall notify parties of the filing of
the report. The parties 10 days to object to the
Statement of judge [Rule 30, Sec. 7] report’s findings.
During the hearing/trial of the case, any statement
made by the judge shall be made of record in the HEARING: After the 10 days, the report shall be set
TSN if made with reference to the for hearing. The court may issue an order
case/parties/witnesses/ counsels. adopting/modifying/rejecting the report or part of
it.
Suspension of actions [Rule 30, Sec. 8]
Governed by the CC provisions When parties stipulate that the Commissioner's
findings of fact are final, only questions of law shall
thereafter be considered.
6. Delegation of reception of
evidence [Rule 30, Sec. 9] b. Powers of the commissioner
General rule: The judge of the court where the case [Rule 32, Sec. 3]
is pending shall personally receive the evidence to
be adduced by the parties. When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of
Exception: The court may delegate the reception of reference. The order may:
evidence to its clerk of court who is a member of the ƒ Specify/limit the commissioner’s power
bar in: ƒ Direct him to report only upon particular issues,
ƒ Default hearings; to do/perform particular acts, or direct him to
ƒ Ex parte hearings; receive and report evidence only
ƒ Cases where parties agree in writing. ƒ May fix the date for beginning and closing the
hearings and for the filing of his report.
However, the clerk of court has no power to rule on
objections to any question/admission of exhibits. Powers of the Commissioner:
ƒ Regulate the proceedings in every hearing
Objections shall be resolved by the court upon before him [subject to other specifications &
submission of the clerk’s report and TSN within 10 limitations in the order]
days from termination of the hearing. ƒ Power to do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order
7. Trial by commissioners [subject to other specifications & limitations in
the order]
COMMISSIONER – Includes a referee, an auditor or an ƒ He may issue subpoenas and subpoenas duces
examiner. [Rule 32, Sec. 1] tecum, swear witnesses.
ƒ He may rule upon the admissibility of evidence,
Kinds of trial by commissioner [Rule 32, Secs. 1 & unless otherwise provided in the order of
2] reference.
ƒ Reference by consent of both parties.
ƒ Reference ordered on motion when: The trial or hearing before him shall proceed in all
- Trial of an issue of fact requires the respects as it would if held before the court.
examination of a long account on either side
- Taking of an account is necessary for the
court’s information before judgment, or for c. Commissioner’s report; notice
carrying judgment/order into effect. to parties and hearing on the
- A question of fact, other than upon the report
pleadings, arises in any stage of a case or for
carrying a judgment/order into effect. Report of commissioner [Rule 32, Sec. 9]
REMEDIAL LAW REVIEWER

Upon the completion of the trial or hearing or Grant of demurrer Denial of demurrer
proceeding before the commissioner, he shall file
The case shall be The defendant shall have
with the court his report in writing upon the matters
dismissed the right to present 133
submitted to him by the order of reference.
evidence
The court should set the
When his powers are not specified or limited, he
date for the reception of
shall set forth his findings of fact and conclusions of
the defendant’s
law in his report.
evidence-in-chief
[Northwest Airlines v.
He shall attach thereto all exhibits, affidavits,
CA]
depositions, papers and the transcript, if any, of the
Plaintiff's remedy would xxx
testimonial evidence presented before him.
be to appeal.
Notice to parties of the filing of report [Rule 32,
However, if the order
Sec. 10]
granting the demurrer is
Upon the filing of the report, the parties shall be
reversed on appeal, the
notified by the clerk, and they shall be allowed 10
defendant loses his right
days within which to signify grounds of objections to
to present evidence.
the findings of the report, if they so desire.
[Rule 33, Sec 1; Republic
v. Tuvera]
Objections to the report based upon grounds which
were available to the parties during the proceedings
The appellate court
before the commissioner, other than objections to
should render judgment
the findings and conclusions therein, set forth, shall
on the basis of the
not be considered by the court unless they were
evidence submitted by
made before the commissioner.
the plaintiff.
Hearing on the report [Rule 32, Sec. 11]
[Radiowealth Finance v.
Upon the expiration of the 10-day period in Rule 32,
Del Rosario]
Sec. 10, the report shall be set for HEARING.
Equivalent to judgment An interlocutory order
After which the court shall issue an ORDER: (i.e. based on the merits and not appealable.
ƒ Adopting (in whole or in part), of the evidence However, it may be the
ƒ Modifying (in whole or in part) presented so far) subject of a petition for
ƒ Rejecting the report (in whole or in part), certiorari for GAD under
ƒ Recommitting the report with instructions, or Rule 65 [Katigbak v.
ƒ Requiring the parties to present further Sandiganbayan]
evidence before the commissioner or the court.
MTD Demurrer
When to Before the service After the plaintiff
File and filing of the rests his case
XIV. DEMURRER TO EVIDENCE answer
1. Ground Ground Those enumerated Only ground: The
2. Effect of denial in Rule 16 plaintiff has
shown no right to
3. Effect of grant
relief (i.e.
4. Waiver of right to present evidence evidence is
5. Demurrer to evidence in a civil case insufficient)
versus demurrer to evidence in a criminal Effect If a MTD is granted,
case the complaint is
likewise dismissed.
1. Ground But, depending on
the ground, the
complaint may be
Definition: A species of MTD that may be invoked
re-filed
based on insufficiency of evidence (i.e. upon the
facts and the law the plaintiff has shown no right to
If the MTD is denied,
relief). [Rule 33, Sec. 1]
the defendant shall
file his responsive
It is invoked after the plaintiff has presented all the
pleading
evidence available to him.

2. Effect of denial 4. Waiver of right to present evidence


3. Effect of grant If the order granting the demurrer is reversed on
appeal, the defendant loses his right to present
Grant of demurrer Denial of demurrer evidence. [Rule 33, Sec .1; Republic v. Tuvera]
REMEDIAL LAW REVIEWER

ƒ Judgment must be in writing, personally and


directly prepared by the judge;
134 ƒ Note: A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan]
ƒ Judgment must state clearly the facts and the
law upon which the decision is based, signed by
the judge and filed with the clerk of court.
5. Demurrer to evidence in a civil [Rule 35, Sec. 1]
case versus demurrer to A decision need not be a complete recital of the
evidence in a criminal case evidence presented. So long as the factual and legal
bases are distinctly and clearly set forth, the
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND judgment is valid. [Chan v. CA]
CRIMINAL CASES
(Asked in the 2003 and 2007 Bar Exams) Kinds of judgment
Demurrer in civil cases Demurrer in criminal ƒ JUDGMENT UPON COMPROMISE - It is one
cases conferred on the basis of a compromise
Defendant need not ask May be filed with or agreement entered into between the parties. It
for leave of court without leave of court. is immediately executory in the absence of a
motion to set aside on the ground of FAME.
Note: Leave of court is
necessary so that the ƒ JUDGMENT UPON CONFESSION - It is one
accused can present his rendered by the court when a party expressly
evidence in case the agrees to the other party’s claim or
demurrer is denied [Rule acknowledges the validity of the claim against
119, Sec.23] him.
If the demurrer is The order of dismissal is
granted, the order of not appealable because Judgment upon Judgment by confession
dismissal is appealable it will constitute double compromise
jeopardy The provisions and terms An affirmative and
If a demurrer is denied, The accused may adduce are settled by the voluntary act of the
the defendant may his evidence only if the parties to the action. defendant himself. The
proceed to present his demurrer is field with The judgment is entered court exercises a certain
evidence leave of court in the record by consent amount of supervision
of the court. over the entry of
judgment.
XV. JUDGMENTS AND FINAL
Kinds of judgment by confession:
ORDERS - JUDGMENT BY COGNOVIT ACTIONEM – After
1. Judgment without trial service, the defendant, instead of entering a
2. Contents of a judgment plea, acknowledged and confessed that the
plaintiff’s cause of action was just and
3. Judgment on the pleadings
rightful.
4. Summary judgments - JUDGMENT BY CONFESSION RELICTA
5. Judgment on the pleadings versus VERIFICATIONE – After pleading and before
summary judgments trial, the defendant both: (a) confessed the
6. Rendition of judgments and final orders plaintiff’s cause of action and (b) withdrew
7. Entry of judgment and final order his plea or other allegations, whereupon
judgment was entered against him without
JUDGMENT proceeding to trial.
The final ruling by a court of competent jurisdiction
regarding the rights and obligations of the parties or Remedy against judgment by consent,
other matters submitted to it in an confession or compromise is to first file a
action/proceeding [Macahiling vs. Heirs of Magalit] motion to set it aside; if denied, file the
appropriate petition under Rule 65.
REQUISITES OF A VALID JUDGMENT [RULE 36, SEC.
ƒ JUDGMENT UPON THE MERITS - It is one that is
1; ART. 8, SEC. 14, 1987 CONSTITUTION] AJOEWS
rendered after consideration of the evidence
ƒ Court/tribunal must be with authority to hear
submitted by the parties during the trial of the
and determine the matter before it;
case. A judgment is “on the merits” when it
ƒ Court must have jurisdiction over the parties
amounts to a legal declaration of the respective
and the subject matter;
rights and duties of the parties, based upon the
ƒ Parties must have been given an opportunity to
disclosed facts
adduce evidence in their behalf;
ƒ Evidence must have been considered by the
ƒ CLARIFICATORY JUDGMENT - It is rendered to
tribunal in deciding the case; [Acosta v.
clarify an ambiguous judgment or one difficult
COMELEC]
to comply with.
REMEDIAL LAW REVIEWER

- A judgment is considered rendered upon the


ƒ JUDGMENT NON PRO TUNC - Literally, “now for filing of the signed decision.
then”. It is a judgment intended to enter into - This includes an amended decision because an
the record the acts which had already been amended decision is a distinct and separate 135
done, but which do not appear in the records. judgment and must follow the established
[Lichauco v Tan Pho] procedural rule.

ƒ JUDGMENT SIN PERJUICIO - It may refer to a 1. Judgment without trial


dismissal of a case without prejudice to it being
re-filed. When trial is not necessary – PSADSA (Asked in the
1996 Bar Exams) [Riano]
ƒ CONDITIONAL JUDGMENT - It is one the ƒ The pleadings of the parties tender no issue at
effectivity of which depends upon the all – judgment on the pleadings may be directed
occurrence or non-occurrence of an event. Such by the court [Rule 34]
a judgment is generally void because eof the ƒ There is actually no genuine issue from the
absence of a disposition [cu-unjieng v mabalacat pleadings, affidavits, depositions and other
sugar co.] papers – court may render a summary judgment
[Rule 35]
ƒ SEVERAL JUDGMENT - It is one rendered by a ƒ Parties entered into a compromise or an
court against one or more defendants and not amicable settlement either during the pre-trial
against all of them, leaving the action to or during the trial [Rule 18; Art. 2028 Civil Code]
proceed against the others. [Rule 36, sec. 4] It ƒ Complaint has been dismissed with prejudice
is proper when the liability of each party is [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5
clearly separate and distinct from his co-parties (last par.)]
such that the claims against each of them could ƒ Case falls under the Rules on Summary
have been the subject of separate suits, and the Procedure
judgment for or against one of them will not ƒ Agreed statement of facts [Rule 30, Sec. 6]
necessarily affect the other.

ƒ SEPARATE JUDGMENT - It is one rendered 2. Contents of a judgment


disposing of a claim among several others
presented in a case, after a determination of Parts of a judgment
the issues material to a particular claim and all ƒ Body, Ratio decidendi, or Opinion of the court –
counterclaims arising out of the transaction or It contains the findings of facts and conclusions
occurrence that is the subject matter of said of law;
claim. [Rule 36, sec. 5] It is proper when more ƒ Fallo, or Disposition of the case – It is the
than one claim for relief is presented in an dispositive part of the judgment that actually
action for the determination as to the issues settles and eclares the rights and obligation sof
material to the claim has been made. the parties, finally, definitevely, and
authoritatively [Light Rail Transit Authority v
The judgment shall terminate the action with CA]; The part of the judgment that is subject to
respect to the claims disposed of, and shall execution [Riano]
proceed as to the remaining claims. The court ƒ Signature of the judge.
may stay its enforcement until rendition of
subsequent judgments, and may prescribe Distinction Between Judgment and Opinion of the
conditions to secure the judgment’s benefits. Court (ASKED IN THE 2006 BAR EXAM)
ƒ A judgment (or FALLO) must be distinguished
Judgment may be given for/against one or more from an opinion.
of several plaintiffs/defendants. The court may ƒ The latter is the informal expression of the
require the parties on each side to file adversary views of the court and cannot prevail against its
pleadings as between themselves. [Rule 36, Sec. final order or decision.
3] ƒ While the two may be combined in one
instrument, the opinion forms no part of the
If judgment is rendered against 2 or more judgment.
persons sued as an entity without juridical ƒ So there is a distinction between the findings
personality, the judgment shall set out their and conclusions of a court and its judgment.
individual names (if known). [Rule 36, Sec. 6] ƒ While they may constitute its decision and
amount to a rendition of a judgment they are
ƒ PROMULGATION - The process by which a not the judgment itself.
decision is published, officially announced, ƒ They amount to nothing more than an order for
made known to the public or delivered to the judgment, which, of course, must be
clerk of court for filing, coupled with notice to distinguished from the judgment. [Freeman on
the parties or their counsel. Judgments, Vol. I, 5th Edition, page 6, quoted in
Casilan vs. Salcedo (1969)]
ƒ MEMORANDUM DECISION - A decision of the
appellate court which adopts the findings and Conflict between the dispositive portion and body
conclusions of the TC. of the decision
REMEDIAL LAW REVIEWER

Rule: Where there is a conflict between the fallo


and the body of the decision, the fallo controls. Definition, nature
136 A judgment granted by the court for the prompt
Qualification: This rule applies only when the disposition of civil actions, if it clearly appears (after
dispositive part is definite, clear, and unequivocal the issues had been joined and on the basis of the
[Union Bank v Pacific Equipmetnt Corporation] pleadings and papers filed) that there exists no
genuine issue/controversy as to any material fact,
Basis: The fallo is the final order. The opinion in the except as to the amount of damages. [Ley
body is merely a statement ordering nothing [Poland Construction v. Union Bank; Agbada v Inter-Urban
Industrial Limited v. National Development Developers; Raboca v Velez]
Company]
Also called accelerated judgment.
3. Judgment on the pleadings [Rule
Genuine issue
34] (Asked in the 1999 and 2005 Bar ƒ An issue of fact which calls for the presentation
Exams) of evidence; as distinguished from an issue
which is sham, fictitious, contrived and patently
Grounds: insubstantial so as not to constitute a genuine
If the answer either issue for trial.
ƒ Fails to tender an issue; ƒ When the facts as pleaded appear uncontested
Note: An answer fails to tender an issue due to or undisputed, then there is no real/genuine
either: issue as to the facts.
- General denial of the material allegations of ƒ The TC cannot motu propio issue a summary
the complaint; judgment. A party must move for summary
- Insufficient denial of the material allegations judgment. [Riano]
of the compliant.
ƒ Admits the material allegations of the adverse Procedure [Rule 35, Sec. 3]
party’s pleading.
Movant files a motion for summary judgment with
Cannot be rendered motu proprio supporting affidavits, depositions or admission
A judgment on the pleadings can be done only upon p
MOTION to that effect filed by the appropriate Service to the adverse party at least 10 days the
party. It cannot be rendered by the court motu hearing
proprio. p
Adverse party may serve opposing affidavits,
Exception: If at pre-trial the court finds that a depositions or admissions at least 3 days before the
judgment on the pleadings is proper, it may render hearing
such judgment motu proprio. [Rule 18, Sec. 2(g)]
p
Hearing – Court shall determine if a genuine issue as
When judgment on the pleadings will not apply
to any material fact exists and if the movant is
ƒ Declaration of nullity of marriage;
entitled to a summary judgment as a matter of law
ƒ Annulment of marriage;
ƒ Legal separation. p
Judgment
Effect: judgment on the pleadings will not lie and
material facts alleged in the complaint must always a. for the claimant [Rule 35, Sec. 1]
be proved
b. for the defendant [Rule 35, Sec. 2]
Effects
ƒ By moving for judgment on the pleadings, the Who may file When
plaintiff waives his claim for unliquidated the motion
damages (because claims for such damages must Claimant May file the motion only after the
be alleged and proved). answer has been served
ƒ One who prays for the judgment on the Defendant May file the motion any time
pleadings without offering proof as to the truth
of his own allegations and without giving the Filing of a motion for summary judgment does not
opposing party an opportunity to introduce interrupt the running of the period for filing an
evidence must be understood to admit all answer. Hence, the movant must also file a Motion
material and relevant allegations of the for Extension of Time to File Answer.
opposing party and to rest his motion for
judgment upon those allegations taken together Bases of summary judgment: When, upon the
with such of his own as are admitted in the following, no genuine issue as to any material fact
pleadings. [Falcasantos v. How Suy Ching (1952)] exists:
ƒ Affidavits made on personal knowledge;
4. Summary judgments [Rule 35] ƒ Depositions of the adverse or a 3rd party; (Rule
(Asked in the 1986, 1989, 1996 and 23)
ƒ Admissions of the adverse party; (Rule 26)
1999 Bar Exams)
REMEDIAL LAW REVIEWER

ƒ Answers to interrogatories. (Rule 25) Based on the Based solely Based on the
pleadings, upon the complaint and
c. When the case not fully adjudicated depositions, pleadings evidence, if court
admissions and requires its 137
Partial summary judgment (Asked in the 2004 Bar affidavits presentation
Exam) There is no The answer No issues as no
Applies when for some reason there can be no full genuine issue fails to tender answer is filed by
summary judgment. Trial should deal only with the between the an issue or the defending
facts not yet specified or established. parties there is an party
admission of
the material
Duty of court [Rule 35, Sec. 4] allegations
ƒ Ascertain what material facts exist without Available to Generally Available to the
substantial controversy and what are actually both plaintiff available only plaintiff alone
and in good faith controverted based on: and defendant to the
- An examination of the pleadings and evidence plaintiff,
before it unless the
- Interrogation of the counsel defendant
ƒ Make an order specifying the facts and the presents a
extent of the amount of damages that appear counterclaim
without substantial controversy 10-day notice 3-day notice 3-day notice rule
ƒ Direct further proceedings as are just required required applies
ƒ Conduct trial on the controverted facts May be On the merits On the merits
accordingly interlocutory
or on the
Effect merits
A partial summary judgment is not a final judgment, Usually Available in Available in any
but merely a pre-trial adjudication that said issues in available in any action, action, except
the case shall be deemed established for the trial of actions to except annulment of
the case. [Guevarra v. CA (1983)] recover a debt, annulment of marriage or legal
or for a marriage or separation cases
d. Affidavits and attachments liquidated sum legal
of money, or separation
Form of affidavits and supporting papers [Rule 35, for declaratory cases
Sec. 5] relief
ƒ Made on personal knowledge
ƒ Shall set forth such facts as would be admissible 6. Rendition of judgments and final
in evidence
ƒ Shall show affirmatively that the affiant is orders
competent to testify to the matters stated
therein. Form of judgment [Rule 36, Sec. 1]
ƒ In writing
Attachments [Rule 35, Sec. 5] ƒ Personally and directly prepared by the judge
Certified true copies of all papers or parts thereof ƒ Stating clearly & distinctly the facts and the law
referred to in the affidavit shall be attached thereto on which it is based
OR served therewith. ƒ Signed by the judged
ƒ Filed with the clerk of court.
Affidavits in bad faith [Rule 35, Sec. 5]
Definition – Affidavits presented under this Rule Definition of rendition of judgment
which appear to the court at any time as presented It is the filing of the judgment with the clerk of
in bad faith or solely for the purpose of delay court. It is not the pronouncement of the judgment
in open court that constitutes the rendition. Even if
Effects: the judgment has already been put in writing and
ƒ Court shall order the offending party or counsel signed, it is still subject to amendment if it has not
to pay the other party – amount of reasonable yet been filed with the clerk of court and before its
expenses which the filing of the affidavits filing does not yet constitute the real judgment of
caused him to incur, including attorney’s fees the court. [Ago v. CA]
ƒ Court may adjudge the offending party or
counsel guilty of contempt, after hearing Period within which decision is to be rendered
[1987 Constitution, Art. VIII, Sec. 15]
ƒ All cases filed must be decided or resolved by
5. Judgment on the pleadings versus the Supreme Court within 24 months from the
summary judgments date of their submission for decision.
ƒ Unless reduced by the SC, within 12 months for
Summary Judgment on Judgment by lower collegiate courts and within 3 months for
judgment the pleadings default all other lower courts.
REMEDIAL LAW REVIEWER

A case is deemed submitted for resolution upon the ƒ To make corrections of clerical errors, not
filing of the last pleading, brief or memorandum substantial amendments, as by an amendment
138 required by the Rules of Court or by the court. non pro tunc;
ƒ To clarify an ambiguity which is borne out by
An extension of the period may be set by the SC and justifiable in the context of the decision;
upon request by the judge concerned on account of ƒ In judgments for support, which can always be
heavy caseload or by other reasonable excuse [Arap amended from time to time.
v Mustafa]
Amended/clarified Supplemental decision
Interpretation of the judgment judgment
Where the judgment is difficult to execute because An entirely new decision Does not take the place
of ambiguity in its terms, the remedy of the party is and supersedes the of or extinguish the
to file a motion for clarificatory judgment and not to original judgment original judgment
assail the judgment as void. [Poland Industrial Court makes a thorough Serves to add to the
Limited v National Development Company] study of the original original judgment
judgment and renders
7. Entry of judgment and final order the amended and
clarified judgment only
Definition of entry of judgment after considering all the
The entry of judgment refers to the physical act factual and legal issues
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become final XVI. POST-JUDGMENT REMEDIES
and executory. [Riano]
1. Motion for New Trial or reconsideration
Rendition of judgment Entry of judgment 2. Appeals in General
Filing of the judgment Act of clerk of court in 3. Relief from judgments, orders and other
with the clerk of court entering the dispositive proceedings
portion of the judgment 4. Annulment of Judgments or final orders
in the book of entries of and resolutions
judgment
5. Collateral attack of judgments
Entry of Judgments and Final Orders [Rule 36, Sec.
2] Remedies BEFORE finality of judgment
If there is no appeal/MNT/MFR filed within the ƒ Motion for Reconsideration
prescribed periods, the clerk of court shall enter the ƒ Motion for New Trial
judgment or final order in the book of entries of ƒ Appeal
judgments.
1. Motion for New Trial or
Date of finality of the judgment = Date of its entry in Reconsideration
the book
Motion for reconsideration
Note: the periods for filing the following pleadings A motion for reconsideration under Rule 37 is
are reckoned from the date of entry of judgment directed against a judgment or final order. It is not
ƒ Execution of a judgment by motion (5 years the motion for reconsideration of interlocutory
from entry) [Rule 39, Sec. 6] order, which often precedes a petition for certiorari
ƒ Petition for relief (as one of its periods, not under Rule 65. It does not apply to cases that fall
more than 6 months from entry of the judgment under Summary Procedure.
or final order) [Rule 38, Sec. 3]
Contents of motion for new trial or
The record: reconsideration
ƒ Shall contain the judgment’s dispositive part Rule 37, Sec.2. Contents of motion for new trial or
ƒ Shall be signed by the clerk of court with a reconsideration.—The motion shall be made in
certificate that the judgment has become final writing stating the ground or grounds therefor, a
and executory. written notice of which shall be served by the
movant on the adverse party.
Amendments to judgment (Asked in the 2008 Bar
Exams) A motion for new trial shall be proved in the manner
The power to amend judgments is inherent to the provided for proof of motions. A motion for the
court before judgment becomes final and executory. cause mentioned in paragraph (a) of the preceding
section shall be supported by affidavits of merits
General rule: The court cannot amend the judgment which may be rebutted by affidavits. A motion for
once it has become final and executory. the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom
Exception: such evidence is expected to be given, or by duly
authenticated documents which are proposed to be
introduced in evidence.
REMEDIAL LAW REVIEWER

The aggrieved party may move the trial court to set


A motion for reconsideration shall point out aside the judgment or final order and grant a new
specifically the findings or conclusions of the trial for one or more of the following causes
judgment or final order which are not supported by materially affecting the substantial rights of the said 139
the evidence or which are contrary to law, making party:
express reference to the testimonial or documentary ƒ FAME (Extrinsic Fraud, Accident, Mistake or
evidence or to the provisions of law alleged to be Excusable Negligence) which ordinary prudence
contrary to such findings or conclusions. could not have guarded against and by reason of
which the aggrieved party has probably been
A pro forma motion for new trial or reconsideration impaired in his rights.
shall not toll the reglementary period of appeal. - The motion shall be supported by affidavits of
merit. Non-compliance with this requirement
would reduce the motion to a mere pro forma
motion.
a. Grounds
- The affidavits of merit must show the facts
(not mere conclusions or opinions)
Rule 37, Sec.1. Grounds of and period for filing constituting the valid cause of action or
motion for new trial or reconsideration.—Within the defense which the movant may prove in case
period for taking an appeal, the aggrieved party may a new trial is granted. Otherwise, if the
move the trial court to set aside the judgment or complaint is after all groundless or the
final order and grant a new trial for one or more of defense is ineffective, a new trial would serve
the following causes materially affecting the no purpose.
substantial rights of said party: ƒ Newly discovered evidence, which he could
(a) Fraud, accident, mistake or excusable not, with reasonable diligence, have discovered
negligence which ordinary prudence could not and produced at the trial, and which if
have guarded against and by reason of which presented would probably alter the result.
such aggrieved party has probably been - The motion shall be supported by: affidavits
impaired in his rights; or of the witnesses by whom such evidence is
(b) Newly discovered evidence, which could not, expected to be given; and/or duly
with reasonable diligence, have discovered and authenticated documents which are proposed
produced at the trial, and which if presented to be introduced in evidence.
would probably alter the result. - Non-compliance with this requirement would
reduce the motion to a mere pro forma
Within the same period, the aggrieved party may motion.
also move for reconsideration upon the grounds that
the damages awarded are excessive, that the
evidence is insufficient to justify the decision or Tumang vs. CA: Newly discovered evidence may and
final order, or that the decision or final order is does commonly refer to evidence already in
contrary law. existence prior to or during trial but which could not
have been secured and presented during the trial
Grounds for a motion for reconsideration despite reasonable diligence on the part of the
ƒ The evidence is insufficient to justify the litigant.
decision;
ƒ The damages awarded are excessive; Extrinsic fraud: any fraudulent scheme executed by
ƒ The decision or final order is contrary to law. the prevailing party outside of the trial against the
losing party who, because of such fraud, was
Form and content of a motion for reconsideration prevented from presenting his side of the case.
Motion for reconsideration must be in writing, a
written notice of which must be served on the Intrinsic fraud: acts of a party during the trial which
adverse party. does not affect the presentation of the case.

It is not sufficient to mention the ground relied Accident: an event that occurs without one’s
upon. It is necessary for the motion for foresight or expectation.
reconsideration to point out specifically the findings
or conclusions of the judgment or final order which Mistake: generally, mistakes of facts or law where,
are not supported by the evidence or which are in good faith, the defendant was misled in a case.
contrary to law, making express reference to the
testimonial or documentary evidence or to the b. When to file
provisions of law alleged to be contrary to such
findings or conclusions. The motion must be filed within the period for
appeal.
Non-compliance with this requirement would reduce
the motion to a mere pro forma motion, which shall The period for appeal is within 15 days after notice
not toll the period for appeal. to the appellant of the judgment or final order
appealed from. The 15-day period is deemed to
Grounds for motion for new trial commence upon receipt by the counsel of record,
REMEDIAL LAW REVIEWER

which is considered notice to the parties. Service The prohibition on a second motion does not apply
upon the parties themselves is prohibited and is not to a motion for reconsideration of an interlocutory
140 considered as official receipt of judgment. order.

No motion for extension of time shall be allowed. Denial of motion for new trial
The judgment or final order shall stand as is.
Where a record on appeal is required, the appellant
shall file: Rule 37, Sec.8. Effect of order for partial new
ƒ a notice of appeal, and trial.—When less than all of the issues are ordered
ƒ record on appeal within 30 days from notice of retried, the court may either enter a judgment or
the judgment or final order. final order as to the rest, or stay the enforcement of
such judgment or final order until after the new
A record on appeal is required only in: trial.
ƒ Special proceedings;
ƒ Other cases of multiple or separate appeals. When there is an order for partial new trial, the
court may either enter a judgment or final order as
Resolution of the motion to the rest, or stay the enforcement of such
Rule 37, Sec.4. Resolution of motion.—A motion for judgment or final order until after the new trial.
new trial or reconsideration shall be resolved within
30 days from the time it is submitted for resolution. When a second motion for new trial is permissible:
When a ground for new trial was not existing or
Effect of filing available when the first motion was made.
The filing of a timely motion interrupts the period to
appeal. d. Grant of the motion; effect

The 30-day period to resolve the motion is held to be Grant of motion for reconsideration
mandatory [Gonzales vs Bantolo (2006)] The court may amend the judgment or final order
accordingly. The amended judgment is in the nature
Rule 37, Sec.3. Action upon motion for new trial or of a new judgment, which supersedes the original
reconsideration.—The trial court may set aside the judgment.
judgment or final order and grant a new trial, upon
such terms as may be just, or may deny the motion. Grant of motion for new trial
If the court finds that excessive damages have been The original judgment shall be vacated, and the
awarded or that the judgment or final order is action shall stand for trial de novo. The recorded
contrary to the evidence or law, it may amend such evidence upon the former trial shall be used at the
judgment or final order accordingly. new trial without retaking them (if they are material
and competent).
c. Denial of the motion; effect
e. Remedy when motion is denied, Fresh 15-
Denial of motion for reconsideration day period rule
The judgment or final order shall stand as is.
Rule 37, Sec.9. Remedy against order denying a
Rule 37, Sec.7. Partial new trial or motion for new trial or reconsideration.—An order
reconsideration.—If the grounds for a motion under denying a motion for new trial or reconsideration is
this Rule appear to the court to affect the issues as now appealable. (As modified by AM 07-7-12)
to only a part, or less than all of the matter in
controversy, or only one, or less than all, of the Remedy if motion is denied
parties to it, the court may order a new trial or ƒ To appeal from the judgment or final order
grant reconsideration as to such issues if severable itself.
without interfering with the judgment or final order ƒ The order denying the motion for new trial or
upon the rest. reconsideration may itself be assailed by a
petition for certiorari under Rule 65.
Single motion rule
Rule 37, Sec.5. Second motion for new trial.—A Habaluyas vs. Japson (1986): A motion for new
motion for new trial shall include all grounds then trial or reconsideration is not a prerequisite to an
available and those not so included shall be deemed appeal, a petition for review or a petition for review
waived. A second motion for new trial based on a on certiorari. And since the purpose is to expedite
ground not existing or available when the first the final disposition of cases, a strict but prospective
motion was made, may be filed within the time application of said ruling is in order.
herein provided excluding the time during which the
first motion had been pending. Fresh period rule
Neypes vs. CA (2005): If the motion is denied, the
No party shall be allowed a second motion for movant has a “fresh period” of 15 days from receipt
reconsideration of a judgment or final order. or notice of the order denying the motion for new
trial or motion for reconsideration within which to
file an appeal.
REMEDIAL LAW REVIEWER

distinctly state the such a requirement


This “fresh period rule” shall also apply to: law and the facts on
ƒ Rule 40 governing appeals from the Municipal which it is based
Trial Courts to the Regional Trial Courts; 141
ƒ Rule 42 on petitions for review from the b. Matters not appealable
Regional Trial Courts to the Court of Appeals;
ƒ Rule 43 on appeals from quasi-judicial Not appealable under Rule 41
agencies to the Court of Appeals; and ƒ Order denying motion for new trial or
ƒ Rule 45 governing appeals by certiorari to the reconsideration;
Supreme Court. ƒ Order denying petition for review or any similar
motion seeking relief from judgment;
The new rule aims to regiment or make the appeal ƒ Interlocutory order;
period uniform, to be counted from receipt of the ƒ Order disallowing/dismissing appeal;
order denying the motion for new trial, motion for ƒ Order denying motion to set aside judgment by
reconsideration (whether full or partial) or any final consent or confession or compromise on ground
order or resolution. of fraud or mistake or duress or any other
vitiation of consent;
2. Appeals in General ƒ Order of execution;
ƒ While the case is pending, judgment or final
order:
a. Judgments and final orders subject to
- For/against one or more of several
appeal parties;
- In separate claims, counterclaims, cross-
Rule 41 [as amended by A.M. 07-7-12 (2007)] claims, third-party complaints.
SECTION 1. Subject of appeal. An appeal may be Exception: If court allows appeal.
taken from a judgment or final order that ƒ Order dismissing an action without prejudice.
completely disposes of the case, or of a particular
matter therein when declared by these Rules to be In the 8 cases not appealable under Rule 41, the
appealable. aggrieved party may file a special civil action under
Rule 65.
No appeal may be taken from:
(a) An order denying a petition for relief or any c. Remedy against judgments and orders
similar motion seeking relief from judgment;
which are not appealable
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a d. Modes of appeal
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or i. Ordinary appeal
any other ground vitiating consent;
(e) An order of execution; Procedure in the Court of Appeals
(f) A judgment or final order for or against one or
more of several parties or in separate claims, Ordinary appealed cases
counterclaims, cross-claims and third-party Rule 44, Sec. 1. Title of cases.—In all cases
complaints, while the main case is pending, appealed to the Court of Appeals under Rule 41, the
unless the court allows an appeal therefrom; title of the case shall remain as it was in the court of
and origin, but the party appealing shall be further
(g) An order dismissing an action without prejudice. referred to as the appellant and the adverse party as
the appellee.
In any of the foregoing circumstances, the aggrieved
party may file an appropriate special civil action as Counsels and guardians
provided in Rule 65. Rule 44, Sec. 2. Counsel and guardians.—The
counsel and guardians ad litem of the parties in the
SIGNIFICANCE OF THE AMENDMENT court of origin shall be respectively considered as
An order denying motion for new trial or their counsel and guardians ad litem in the Court of
reconsideration is NOW APPEALABLE! Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the
FINAL ORDER INTERLOCUTORY ORDER adverse party and filed with the court.
Disposes of the matter Does not dispose of a case
in its entirety, leaving completely but leaves Order of transmittal of record
nothing more to be something more to be Rule 44, Sec. 3. Order of transmittal of record.—If
done but to enforce decided upon. the original record or the record on appeal is not
execution transmitted to the Court of Appeals within 30 days
Appealable Not appealable except after the perfection of appeal, either party may file
through a petition for a motion with the trial court, with notice to the
certiorari under Rule 65 other, for the transmittal of such record or record on
Must clearly and No need to comply with appeal.
REMEDIAL LAW REVIEWER

(a) A subject index of the matter in the brief with a


Case docketing digest of the arguments and page references,
142 Rule 44, Sec. 4. Docketing of case.—Upon receiving and a table of cases alphabetically arranged,
the original record or the record on appeal and the textbooks and statutes cited with references to
accompanying documents and exhibits transmitted the pages where they are cited;
by the lower court, as well as the proof of payment (b) An assignment of errors intended to be urged,
of the docket and other lawful fees, the clerk of which errors shall be separately, distinctly and
court of the Court of Appeals shall docket the case concisely stated without repetition and
and notify the parties thereof. numbered consecutively;
(c) Under the heading “Statement of the Case,” a
Within 10 days from receipt of said notice, the clear and concise statement of the nature of the
appellant, in appeals by record on appeal, shall file action, a summary of the proceedings, the
with the clerk of court 7 clearly legible copies of the appealed rulings and orders of the court, the
approved record on appeal, together with the proof nature of the judgment and any other matters
of service of 2 copies thereof upon the appellee. necessary to an understanding of the nature of
the controversy, with page references to the
Any unauthorized alteration, omission or addition in record;
the approved record in appeal shall be a ground for (d) Under the heading “Statement of Facts,” a clear
dismissal of the appeal. and concise statement in a narrative form of
facts admitted by both parties and of those in
Record completion controversy, together with the substance of
Rule 44, Sec. 5. Completion of record.—Where the proof relating thereto in sufficient detail to
record of the docketed case is incomplete, the clerk make it clearly intelligible, with page
of court of the Court of Appeals shall so inform the references to the record;
court and recommend to it measures necessary to (e) A clear and concise statement of the issues of
complete the record. It shall be the duty of said fact or law to be submitted to the court for its
court to take appropriate action towards the judgment;
completion of the record within the shortest possible (f) Under the heading “Argument,” the appellant’s
arguments on each assignment of error with
time.
page references to the record. The authorities
relied upon shall be cited by the page of the
Rule 44, Sec. 6. Dispensing with complete record.— report at which the case begins and the page of
Where the completion of the record could not be the report on which the citation is found.
accomplished within a sufficient period allotted for (g) Under the heading “Relief,” a specification of
said purpose due to insuperable or extremely the order of judgment which the appellant
difficult cases, the court, on its own motion or on seeks; and
motion of an of the parties, may declare that the (h) In cases not brought up by record on appeal, the
record and its accompanying transcripts and exhibits appellant’s brief shall contain, as an appendix,
so far available are sufficient to decide the issues a copy of the judgment or final order appealed
raised in the appeal, and shall issue an order from.
explaining the reasons for such declaration.
Rule 44, Sec. 15. Questions that may be raised on
The failure of appellant to take the necessary steps appeal.—Whether or not the appellant has filed a
for the correction or completion of the record within motion for new trial in the court below, he may
the time limited by the court in its order is a ground include in his assignment of errors any question of
for dismissal of the appeal. law or fact that has been raised in the court below
and which is within the issues framed by the parties.
Appellant’s brief
Rule 44, Sec.7. Appellant’s brief.—It shall be the
Rule 124, Sec. 7. Contents of brief.—The briefs in
duty of the appellant to file with the court, within
45 days from receipt of the notice of the clerk that criminal cases shall have the same contents as
all the evidence, oral and documentary, are provided in sections 13 and 14 of Rule 44. A certified
attached to the record, 7 copies of his legibly true copy of the decision or final order appealed
from shall be appended to the brief of the appellant.
written, mimeographed or printed brief, with proof
of service of 2 copies thereof upon the appellee.
Appellee’s brief
Important numbers to remember Rule 44, Sec. 8. Appellee’s brief.—Within 45 days
ƒ File brief within 45 days from receipt of notice, from receipt of the appellant’s brief, the appellee
ƒ File seven copies of the brief, shall file with the court 7 copies of his legibly type-
ƒ Serve two copies to appellee and file proof of written, mimeographed or printed brief, with proof
service. of service of 2 copies thereof upon the appellant.

Contents of appellant’s brief Contents of appellee’s brief


Rule 44, Sec. 13. Contents of appellant’s brief.— Rule 44, Sec. 14. Contents of appellee’s brief.—The
The appellant’s brief shall contain, in the order appellee’s brief shall, in the order herein indicated,
herein indicated, the following: the following:
REMEDIAL LAW REVIEWER

(a) A subject index of the matter in the brief with a to present to the court in concise form the points
digest of the arguments and page references, and questions in controversy, and by fair argument
and a table of cases alphabetically arranged, on the facts and law of the case to assist the court in
textbooks and statutes cited with references to arriving at a just and proper conclusion. 143
the pages where they are cited;
(b) Under the heading “Statement of Facts,” the The brief should be so prepared as to minimize the
appellee shall state that the accepts the labor of the court in the examination of the record
statement of facts in the appellant’s brief, or upon which the appeal is heard and determined.
under the heading “Counter-Statement of
Facts,” he shall point out such insufficiencies or Failure to comply with required contents of
inaccuracies as he believes exist in the appellant’s brief is cause for dismissal of the
appellant’s statement of facts with references petition.
to the pages of the record in support thereof,
but without repetition of matters in the Dismissal of appeal
appellant’s statement of facts; and Rule 50, Sec. 1. Grounds for dismissal of appeal.—
(c) Under the heading “Argument,” the appellee An appeal may be dismissed Court of Appeals, on its
shall set forth his arguments in the case on each own motion or on that of appellee, on the following
assignment of error with page references to the grounds:
record. The authorities relied on shall be cited
by the page of the report at which the case (a) Failure of the record on appeal to show on its
begins and the page of the report on which the face that the appeal was taken within the
citation is found. period fixed by these Rules;
(b) Failure to file the notice of appeal of the record
Reply brief on appeal within the period prescribed by these
Rule 44, Sec. 9. Appellant’s reply brief.—Within 20 Rules;
days from receipt of the appellant’s brief, the (c) Failure of the appellant to pay the docket and
appellee shall file with the court 7 copies of his other lawful fees as provide in section 5 of Rule
legibly typewritten, mimeographed or printed brief, 40 and Section 4 of Rule 41;
with proof of service of 2 copies thereof upon the (d) Unauthorized alterations, omission or additions
appellant. in the approved record on appeal as provided in
section 4 of Rule 44;
Memoranda in special cases (e) Failure of the appellant to serve and file the
required number of copies of his brief or
Rule 44, Sec. 10. Time for memoranda in special
memorandum within the time provided by these
cases.—In certiorari, prohibition, mandamus, quo
Rules;
warranto and habeas corpus cases, the parties shall
(f) Absence of specific assignment of errors in the
file, in lieu of briefs, their respective memoranda
appellant’s brief, or of page references to the
within a non-extendible period of 30 days from
record as required in section 13, paragraphs (a),
receipt of the notice issued by the clerk that all the
(c), (d) and (f) of Rule 44;
evidence, oral or documentary, is already attached
(g) Failure of the appellant to take the necessary
to the record.
steps for the correction or completion of the
record within the time limited by the court in its
The failure of the appellant to file his memorandum
order;
within the period therefore may be a ground for
(h) Failure of the appellant to appear at the
dismissal of the appeal.
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
Several or plurality of appellant’s, appellees the court without justifiable cause; and
and/or counsel (i) The fact that the order or judgment appealed
Rule 44, Sec. 11. Several appellants or appellees or from is not appealable.
several counsel for each party.—Where there are
several appellants or appellees, each counsel PNB vs. Philippine Milling (1969): CA has discretion
representing one or more but not all of them shall to dismiss or not to dismiss appeal. Although said
be served with only one copy of the briefs. When
discretion must be a sound one, to be exercised in
several counsel represent one appellant or appellee, accordance with the tenets of justice and fair play,
copies of the brief may be served upon any of them. having in mind the circumstances obtaining in each
case, the presumption is that it has been so
Extension of time for filing briefs exercised.
Rule 44, Sec. 12. Extension of time for filing Padasdas vs. CA (1974): Failure to file appellant’s
briefs.—Extension of time for the filing of briefs will brief within the reglementary period need not
not be allowed, except for good and sufficient necessarily cause dismissal of appeal where the
cause, and only if the motion for extension is filed same was due to force majeure.
before the expiration of the time sought to be
extended. Dismissal of improper appeal
Rule 50, Sec. 2. Dismissal of improper appeal to the
The brief Court of Appeals.—An appeal under Rule 41 taken
De Liano vs. CA (2001): The purpose of the brief is from the Regional Trial Court to the Court of Appeals
REMEDIAL LAW REVIEWER

raising only questions of law shall be dismissed, p


issues purely of law not being reviewable by said The supersedeas bond shall be transmitted by the
144 court. Similarly, an appeal by notice of appeal MTC, with the other papers, to the clerk of the RTC
instead of by petition for review from the appellate to which the action is appealed.
judgment of a Regional Trial Court shall be p
dismissed. All amounts so paid to the appellate court shall be
deposited with said court or authorized government
An appeal erroneously taken to the Court of Appeals depositary band, and shall be held there until the
shall not be transferred to the appropriate court but final disposition of the appeal, UNLESS the court:
shall be dismissed outright. ƒ by agreement of the interested parties, or
ƒ in the absence of reasonable grounds of
Atlas Consolidated vs. CA (1991): Circular No.2-90 opposition to a motion to withdraw, or
now prohibits the transfer of appeals erroneously ƒ for justifiable reasons, shall decree otherwise.
taken to the SC or CA to whichever of these tribunals p
has appropriate appellate jurisdiction. But where SC Should the defendant fail to make the payments, the
believes that there are factual issues which must be appellate court, upon motion of the plaintiff, and
resolved, it may, in the exercise of its sound upon proof of such failure, shall order the execution
discretion and considering the attendant of the judgment appealed from with respect to the
circumstances, either itself take cognizance of and restoration of possession, but such execution shall
decide such issues or refer them to CA for not be a bar to the appeal taking its course until the
determination. final disposition thereof on the merits.
p
Cu-unjieng vs. CA (2006): Nonpayment of the After the case is decided by the Regional Trial Court,
appellate court docket and other lawful fees within any money paid to the court by the defendant for
the reglementary period as provided under Rule 41, purposes of the stay of execution shall be disposed
Sec. 4 is a ground for the dismissal of an appeal of in accordance with the provisions of the judgment
under Rule 50, Sec. 1(c). The Supreme Court has of the Regional Trial Court.
invariably sustained the Court of Appeal’s dismissal
p
on technical grounds under the afore-quoted
In any case wherein it appears that the defendant
provision unless considerations of equity and
has been deprived of the lawful possession of land or
substantial justice present cogent reasons to hold
building pending the appeal by virtue of the
otherwise. True, the rules may be relaxed but only
execution of the judgment of the Municipal Trial
for persuasive and weighty reasons, to relieve a
Court, damages for such deprivation of possession
litigant of an injustice commensurate with his failure
and restoration of possession may be allowed the
to comply with the prescribed procedure.
defendant in the judgment of the Regional Trial
Court disposing of the appeal.
Withdrawal of appeal
Rule 50, Sec. 3. Withdrawal of appeal.—An appeal Habere Facias Possessionem; definition
may be withdrawn as of right at any time before the The name of the process commonly resorted to by
filing of the appellee’s brief. Thereafter, the the successful party in an action for ejectment, for
withdrawal may be allowed in the discretion of the the purpose of being placed by the sheriff in the
court. actual possession of the land recovered.

Stay of execution San Pedro vs CA: Judgments in ejectment cases


which are favorable to the plaintiff are immediately
General rule: If judgment is rendered against the executory. They can be stayed by the defendant only
defendant, execution shall issue immediately upon by:
motion. ƒ perfecting an appeal;
ƒ filing a supersedeas bond; and
Exception: Immediate execution of judgment may be ƒ making a periodic deposit of the rental or the
stayed if the following requisites concur: reasonable compensation for the use and
ƒ an appeal has been perfected occupation of the property during the pendency
ƒ the defendant files a sufficient supersedeas of the appeal.
bond, approved by the MTC and executed in These requisites must concur.
favor of the plaintiff to pay the rents, damages
and costs accruing down to the time of the Puncia vs Gerona: A stay of execution may also be
judgment appealed from warranted once the writ is issued:
ƒ during the pendency of the appeal, the ƒ where the delay in the deposit is due to fraud,
defendant deposits with the appellate court the accident, mistake, or excusable negligence; or,
amount of rent due from time to time under the ƒ where supervening events occurring subsequent
contract; in the absence of a contract, he shall to the judgment bring about a material change
deposit with the RTC the reasonable value of in the situation of the parties which makes
the use and occupation of the premises for the execution inequitable
preceding month or period at the rate ƒ where there is no compelling urgency for the
determined by the judgment of the lower court execution because it is not justified by the
on or before the 10th day of each succeeding prevailing circumstances
month or period
REMEDIAL LAW REVIEWER

Rule 39, Sec. 2. Discretionary execution.— occupation as fixed by the court which rendered
(a) Execution of a judgment or a final order the decision.
pending appeal.—On motion of the prevailing ƒ Decision of the MeTC, MTC or MCTC or the RTC
party with notice to the adverse party filed in where execution pending appeal has been 145
the trial court while it has jurisdiction over the granted by the court of origin or in a proper
case and is in possession of either the original case by the appellate court upon good reasons
record or the record on appeal, as the case may to be stated in the order.
be, at the time of the filing of such motion, said ƒ Decision of the RTC rendered in the exercise of
court may, in its discretion, order execution of a its appellate jurisdiction on cases tried and
judgment or final order even before the decided by the court of origin under Summary
expiration of the period to appeal. Procedure.
ƒ Decision of a quasi-judicial agency under the
After the trial court has lost jurisdiction, the Rule 43, Sec. 12, UNLESS otherwise provided by
motion for execution pending appeal may be the Court CA;
filed in the appellate court. ƒ Decision in cases of injunction, receivership,
support and accounting.
Discretionary execution may only issue upon
good reasons to be stated in a special order Service Specialists vs Sheriff of Manila: An appeal
after due hearing. from the order denying the petition for relief does
not stay the judgment from which relief is sought. In
(b) Execution of several, separate or partial order to stay execution, it is necessary to obtain a
judgments.—A several, separate or partial writ of preliminary injunction.
judgment may be executed under the same
terms and conditions as execution of a judgment When case is submitted for judgment
or final order pending appeal. Rule 51, Sec. 1. When case deemed submitted for
judgment.—A case shall be deemed submitted for
Sec. 21, Revised Rules on Summary Procedure. judgment:
Appeal. — The judgment or final order shall be
appealable to the appropriate RTC which shall A. In ordinary appeals.—
decide the same in accordance with Sec. 22 of BP Where no hearing on the merits of the main case is
129. The decision of the regional trial court in civil held, upon the filing of the last pleading, brief, or
cases governed by this Rule, including forcible entry memorandum required by the Rules or by the court
and unlawful detainer, shall be immediately itself, or the expiration of the period for its filing.
executory, without prejudice to a further appeal
that may be taken therefrom. Section 10 of Rule 70 When such hearing is held, upon its termination or
shall be deemed repealed. upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
Rule 43, Sec. 12. Effect of appeal.—The appeal
shall not stay the award, judgment, final order or
B. In original actions and petitions for review.—
resolution sought to be reviewed unless the Court of
Where no comment is filed, upon the expiration of
Appeals shall direct otherwise upon such terms as it
the period to comment.
may deem just.
Where no hearing is held, upon the filing of the last
Rule 39, Sec. 4. Judgments not stayed by appeal.— pleading required or permitted to be filed by the
Judgments in actions for injunction, receivership, court, or the expiration of the period for its filing.
accounting and support, and such other judgments
as are not or may hereafter be declared to be Where a hearing on the merits of the main case is
immediately executory shall be enforceable after held, upon its termination or upon the filing of the
their rendition and shall not be stayed by an appeal last pleading or memorandum as may be required or
taken therefrom, unless otherwise ordered by the permitted to be filed by the court, or the expiration
trial court. On appeal therefrom, the appellate court of the period for its filing.
in its discretion may make an order suspending,
modifying, restoring or granting the injunction, The period within which a court must render a
receivership, accounting, or award of support. decision is mandatory [New Frontier Mines vs
NLRC]
General rule: In ordinary appeals, execution is
stayed. Judgment
Rule 51, Sec. 2. By whom rendered.—The judgment
Exceptions shall be rendered by the members of the court who
ƒ Decision in forcible entry and unlawful detainer. participated in the deliberation on the merits of the
Exception to exception: If appellant stays case before its assignment to a member for the
immediate execution by filing a notice of writing of the decision.
appeal, supersedeas bond and depositing in
court a monthly rental or compensation for the
Rule 51, Sec. 3. Quorum and voting in the court.—
The participation of all three Justices of a division
REMEDIAL LAW REVIEWER

shall be necessary at the deliberation and the and prosecuted; and execution of the judgment of
unanimous vote of the three Justices shall be affirmance may be had accordingly, and costs may
146 required for the pronouncement of a judgment or be adjudged in such cases, as the court shall deem
final resolution. If the three Justices do not reach a proper.
unanimous vote, the clerk shall enter the votes of
the dissenting Justices in the record. Thereafter, the Rule 51, Sec. 8. Questions that may be decided.—No
Chairman of the division shall refer the case, error which does not affect the jurisdiction over the
together with the minutes of the deliberation, to the subject matter or the validity of the judgment
Presiding Justice who shall designate two Justices appealed from or the proceedings therein will be
chosen by raffle from among the other members of considered unless stated in the assignment of errors,
the court to sit temporarily with them, forming a or closely related to or dependent on an assigned
special division of five Justices. The participation of error
all the five members of the special division shall be
necessary for the deliberation required in section 2
Rule 51, Sec. 9. Promulgation and notice of
of this Rules and the concurrence of a majority of
such division shall be required for the judgment.—After the judgment or final resolution
pronouncement of a judgment or final resolution. and dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
Rule 51, Sec. 4. Disposition of a case.—The CA, in thereon the date of promulgation and cause true
the exercise of its appellate jurisdiction, may affirm, copies thereof to be served upon the parties or their
reverse, or modify the judgment or final order counsel.
appealed from, and may direct a new trial or further
proceedings to be had.
ii. Petition for review
Sec.40, BP 129. Form of decision in appealed iii. Petition for review on certiorari
cases.—Every decision or final resolution of a court
in appealed cases shall clearly and distinctly state Procedure in the Supreme Court (Appealed
the findings of fact and the conclusion of law on Cases)
which it is based, which may be contained in the
decision or final resolution itself, or adopted by Mode of appeal
reference from those set forth in the decision,
Rule 56, Sec. 3. Mode of appeal.—An appeal to the
order, or resolution appealed from.
Supreme Court may be taken only by a petition for
review on certiorari, except in criminal cases where
Rule 51, Sec. 5. Form of decision.—Every decision or the penalty imposed is death, reclusion perpetua or
final resolution of the court in appealed cases shall life imprisonment.
clearly and distinctly state the finding of fact and
the conclusions of law on which it is based, which Procedure
may be contained in the decision or final resolution
Rule 56, Sec. 4. Procedure.—The appeal shall be
itself, or adopted from those set forth in the
governed by and disposed of in accordance with the
decision, order, or resolution appealed from.
applicable provisions of the Constitution, laws, Rules
45, 48, sections 1, 2 and 5 to 11 of Rules 51, 52 and
The body of the judgment must contain the reasons this Rule.
or conclusions of the court to serve as a guide or
enlightenment to determine the ratio decidendi. But
Grounds for dismissal of appeal
what actually constitutes the resolution of the court
which is the subject of the execution is the Rule 56, Sec. 5. Grounds for dismissal of appeal.—
dispositive portion of the fallo. [Olac vs. CA] The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:
Rule 51, Sec. 6. Harmless error.—No error in either
(a) Failure to take the appeal within the
the admission or the exclusion of evidence and no
reglementary period;
error or defect in any ruling or order or in anything
(b) Lack of merit in the petition;
done or omitted by the trial court or by any of the
(c) Failure to pay the requisite docket fee and
parties is ground for granting a new trial or for
other lawful fees or to make a deposit for costs;
setting aside, modifying, or otherwise disturbing a
(d) Failure to comply with the requirements
judgment or order, unless refusal to take such action
regarding proof of service and contents of and
appears to the court inconsistent with substantial
the documents which should accompany the
justice. The court at every stage of the proceedings
petition;
must disregard any error or defect which does not
(e) Failure to comply with any circular, directive or
affect the substantial rights of the parties.
order of the Supreme Court without justifiable
cause;
Rule 51, Sec. 7. Judgment where there are several (f) Error in the choice or mode of appeal; and
parties.—In all actions or proceedings, an appealed (g) The fact that the case is not appealable to the
judgment may be affirmed as to some of the Supreme Court.
appellants, and revered as to others, and the case
shall thereafter be proceeded with, so far as Improper appeal
necessary, as of separate actions had been begun
REMEDIAL LAW REVIEWER

Rule 56, Sec. 6. Disposition of improper appeal.— Agote vs. Lorenzo (2005): A question of law does
Except as provided in section 3, Rule 122 regarding not involve an examination of the probative value of
appeals in criminal cases where the penalty imposed the evidence presented by any of the litigants.
is death, reclusion perpetua or life imprisonment, an 147
appeal taken to the Supreme Court by notice of There is a question of law in a given case when the
appeal shall be dismissed. doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact
An appeal by certiorari taken to the Supreme Court when the doubt or difference arises as to the truth
from the Regional Trial Court submitting issues of or the falsehood of the facts alleged.
fact may be referred to the Court of Appeals for
decision or appropriate action. The determination of Alsua-Betts vs. CA (1979):
the Supreme Court on whether or not issues of facts General rule: CA’s findings of fact are final and
are involved shall be final. conclusive and cannot be reviewed on appeal to the
SC, provided they are borne out by the record or are
Rule 122, Sec. 3. How appeal taken.— based on substantial evidence.
(a) The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the Exception: CA’s findings of fact may be reviewed by
Regional Trial Court in the exercise of its the SC on appeal by certiorari when:
original jurisdiction, shall be by notice of appeal 1. Conclusion is a finding grounded entirely on
filed with the court which rendered the speculations, surmises or conjectures (Joaquin
judgment or final order appealed from and by vs. Navarro).
serving a copy thereof upon the adverse party. 2. Inference made is manifestly mistaken, absurd
(b) The appeal to the Court of Appeals in cases or impossible (Luna vs. Linatok).
decided by the Regional Trial Court in the 3. There is grave abuse of discretion in the
exercise of its appellate jurisdiction shall be by appreciation of facts (Buyco vs. Pp).
petition for review under Rule 42. 4. Judgment is based on a misapprehension of facts
(c) The appeal in cases where the penalty imposed (De la Cruz vs. Sosing).
by the Regional Trial Court is reclusion perpetua 5. The Court of Appeal’s findings of fact are
or life imprisonment, or where a lesser penalty conflicting (Casica vs. Villaseca).
is imposed but for offenses committed on the 6. The Court of Appeals, in making its findings,
same occasion or which arose out of the same went beyond the issues of the case and the
occurrence that gave rise to the more serious same is contrary to the admissions of both
offense for which the penalty of death, appellant and appellee [Nakpil & Sons vs. CA
reclusion perpetua, or life imprisonment is (1986)].
imposed, shall be by notice of appeal to the 7. The Court of Appeals manifestly overlooked
Court of Appeals in accordance with paragraph certain relevant facts not disputed by the
(a) of this Rule. parties and which, if properly considered, would
(d) No notice of appeal is necessary in cases where justify a different conclusion [Abellana vs.
the Regional Trial Court imposed the death Dosdos (1965)].
penalty. The Court of Appeals shall 8. The Court of Appeal’s findings of fact are
automatically review the judgment as provided contrary to those of the trial court, or are mere
in Section 10 of this Rule. conclusions without citation of specific
(e) Except as provided in the last paragraph of evidence, or where the facts set forth by the
section 13, Rule 124, all other appeals to the petitioner are not disputed by the respondent,
Supreme Court shall be by petition for review on or where the findings of fact of the Court of
certiorari under Rule 45. Appeals are premised on absence of evidence
but are contradicted by the evidence of record
[Manlapaz vs. CA (1987)].
General rule: An appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
Perez-Rosario vs. CA (2005): Rule 65 cannot cure
the failure to appeal thru Rule 45.
Exception: Appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment. e. Issues to be raised on appeal

Equally divided Cognizable judgments/issues


The appellate court has no jurisdiction to review a
Rule 56, Sec. 7. Procedure if opinion is equally
judgment which is immediately final and executory
divided.—Where the court en banc is equally divided
by express provision of law. [Republic v. Bermudez-
in opinion, or the necessary majority cannot be had,
Lorino (2005)]
the case shall again be deliberated on, and if after
such deliberation no decision is reached, the original
Rationale: Appeal is merely a privilege conferred by
action commenced in the court shall be dismissed; in
law upon the litigants.
appealed cases, the judgment or order appealed
A party cannot change the theory on appeal. Only
from shall stand affirmed; and on all incidental
issues pleaded in the lower court and properly raised
matters, the petition or motion shall be denied.
may be resolved by the appellate court. [Medina v.
CA (1992)]
Questions of Fact vs. Questions of Law
REMEDIAL LAW REVIEWER

From RTC (original) to CA to SC and from MTC to


However, issues which are inferred from or RTC (appellate) to CA to SC and from CA to SC and
148 necessarily connected with the issue properly raised from QJA to CA to SC
and pleaded may be resolved by the appellate court. 15 days from notice of judgment or final order or
[Espina v. CA (1992)] from denial of petitioner’s motion for
reconsideration or new trial. The SC may grant a 30
Notice of appeal day extension for justifiable reasons.
The notice of appeal shall indicate the parties to the
appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing
the timeliness of the appeal. From QJA to CA
15 days from notice of the award, judgment, final
Record of appeal order or resolution or from date of last publication if
Required only in: required by law. The CA may grant a 15 day
ƒ Special proceedings; extension. No further extension shall be granted
ƒ Multiple or separate appeals where the law or except for the most compelling reasons and in no
the Rules of Court so requires. case longer than 15 days.
Distinctions Between Rule 45 and
Rule 40, Sec.2. When to appeal.—The appeal is Rule 65 Based on J. Regalado’s Commentary
taken by filing a notice of appeal with the court that (Asked in the 1999 and 2008 Bar Exams )
rendered the judgment or final order appealed from. Rule 45 Appeal by Certiorari Rule 65 Original Action
Where a record on appeal is required, the appellant for Certiorari
shall file a notice of appeal and a record on appeal 1. Issues Raised
within 30 days after notice of the judgment or final
order. Questions of Law Grave Abuse of
Discretion Amounting to
The period of appeal shall be interrupted by a timely Lack or Excess of
motion for new trial or reconsideration. No motion Jurisdiction
for extension of time to file a motion for new trial or 2. Against What Court
reconsideration shall be allowed. Action Directed

Neypes vs. CA (2005) on the fresh period rule: Review of the judgment, Directed Against an
Definition: Period of appeal is interrupted by a award or final order on the Interlocutory Order of
timely motion for new trial or reconsideration. merits the court prior to appeal
Motion for extension of time to file motion for new from the judgment, or
trial or reconsideration is not allowed. where there is no appeal
or any other plain speedy
Applicability: and adequate remedy
ƒ Rule 40 on appeals from MTC to RTC. 3. Reglementary Period
ƒ Rule 42 on petitions for review from RTC to CA.
ƒ Rule 43 on appeals from QJA to CA. Must be filed within the Not later than sixty (60)
ƒ Rule 45 on appeals by certiorari to SC. reglementary period for days from notice of the
appeal. judgment, order or
Rationale: To standardize the appeal periods resolution sought to be
provided in the Rules of Court and to afford litigants assailed.
fair opportunity to appeal their cases, the court 4. Effect on the
deems it practical to allow a fresh period of 15 days Proceedings Below
within which to file the notice of appeal in the
Regional Trial Court, counted from receipt of the Judgment, award or order No effect (i.e.,
order dismissing a motion for new trial or appealed from is stayed by proceedings below
reconsideration. the Appeal continue) unless a writ of
preliminary injunction or
f. Period of appeal a temporary restraining
order has been issued
From MTC to RTC and from RTC (original) to CA 5. Parties Involved
ƒ By notice of appeal: 15 days from notice of the
judgment or final order Original Parties to the action The parties are the
ƒ By record of appeal: 30 days from notice of the remain the same during aggrieved party against
judgment or final order appeal (albeit with the the lower court/Quasi-
ƒ From MTC to RTC (appellate) to CA: 15 days corresponding appellation of judicial agency and the
from notice of the judgment or final order but appellant and appellee), the prevailing parties, who
the Court of Appeals may grant a 15 day lower court or quasi-judicial thereby respectively
extension. No further extension shall be granted agency is not to be become the petitioner
except for the most compelling reasons and in impleaded. and the respondents.
no case longer than 15 days.
REMEDIAL LAW REVIEWER

Distinctions Between Rule 45 and Matrix of Periods


Rule 65 Based on J. Regalado’s Commentary
(Asked in the 1999 and 2008 Bar Exams )
Rule 45 Appeal by Certiorari Rule 65 Original Action Period to Extensions Effect of 149
for Certiorari Appeal MR or MNT
6. Requirement of Motion By notice of No extensions Interrupts
for Reconsideration appeal - 15 allowed the period
days from to appeal
For purposes of appeal, MR MR is a CONDITION notice of the
is not required PRECEDENT subject only judgment or
MTC
to certain exceptions. final order
to
7. Exercise of Jurisdiction By record of
RTC
appeal – 30
The Appellate Court Higher Court exercises days from
exercises its appellate original jurisdiction notice of the
jurisdiction and power of under its power of judgment or
review control and supervision final order
over the proceedings of By notice of No extensions Interrupts
lower courts. appeal - 15 allowed the period
days from to appeal
notice of the
This “fresh period rule” shall also apply to: judgment or
ƒ Rule 40 governing appeals from the Municipal RTC final order
Trial Courts to the Regional Trial Courts; to CA By record of
ƒ Rule 42 on petitions for review from the appeal – 30
Regional Trial Courts to the Court of Appeals; days from
ƒ Rule 43 on appeals from quasi-judicial notice of the
agencies to the Court of Appeals; and judgment or
ƒ Rule 45 governing appeals by certiorari to the final order
Supreme Court. The new rule aims to regiment 15 days from The CA may Fresh
or make the appeal period uniform, to be notice of the grant a 15 day period to
counted from receipt of the order denying the judgment or extension. No appeal
motion for new trial, motion for reconsideration final order further from
(whether full or partial) or any final order or OR from extension denial MR
MTC
resolution. [Neypes vs. CA, (2005)] denial of MR shall be or MNT
to
or MNT granted
RTC
A party litigant may now file his notice of appeal except for the
to CA
either within fifteen days from receipt of the most
original decision or within fifteen days from the compelling
receipt of the order denying the motion for reasons and in
reconsideration. no case longer
then 15 days.
Being procedural in nature, Neypes is deemed to be 15 days from The CA may Fresh
applicable to actions pending and undetermined at notice of the grant a 15 day period to
the time of its effectivity and is thus retroactive in award, extension. No appeal
that sense and to that extent. [First Aqua Sugar v. judgment, further from
BPI (2007)] final order or extension denial MR
resolution or shall be or MNT
QJA
g. Perfection of appeal from date of granted
to CA
last except for the
Perfection of an appeal in the manner and within the publication if most
period laid down by law is mandatory and required by compelling
jurisdictional. [Balgami vs. CA (2004)] law OR from reasons and in
denial of MR no case longer
Rationale: Appeal is merely a statutory privilege, or MNT then 15 days.
and may be exercised only in the manner and in 15 days from The SC may Fresh
RTC
accordance with the provisions of the law. It is notice of grant a 30 day period to
to SC
neither a natural right nor a part of due process. judgment or extension for appeal
RTC
final order justifiable from
to CA
Effect of failure to perfect appeal OR from reasons. denial MR
to SC
ƒ Defeats a party’s right to appeal. denial of or MNT
CA to
ƒ Precludes appellate court from acquiring petitioner’s
SC
jurisdiction. MR or MNT.
reglementary period confers only a discretionary
Camposagrado vs. Camposagrado (2005): Failure (not mandatory) power to dismiss the proposed
to pay the appellate court docket fee within the appeal. Such discretion should consider all attendant
REMEDIAL LAW REVIEWER

circumstances and must be exercised with a view to of the petition.


substantial justice. p
150 The petition shall be filed and served within 15 days
Republic v. Bermudez-Lorino (2005): Appellate from notice of the decision sought to be reviewed or
court has no jurisdiction to review a judgment which of the denial of petitioner’s MNT or MR filed in due
is immediately final and executory by express time after judgment.
provision of law.
p
Upon proper motion and the payment of the full
Medina vs. CA (1992): A party cannot change the
amount of the docket and other lawful fees and the
theory on appeal. Only issues pleaded in the lower
deposit for costs before the expiration of the
court and properly raised may be resolved by the
reglementary period, the CA may grant an additional
appellate court.
period of 15 days only within which to file the
petition for review. No further extension shall be
Espina vs. CA (1992): However, issues which are
granted except for the most compelling reason and
inferred from or necessarily connected with the
in no case to exceed 15 days. [Rule 42, Sec. 1]
issue properly raised and pleaded may be resolved
by the appellate court.
(Asked in the 1999 and 2002 Bar Exam)
Appeal from MTC to RTC: the rules on perfection of
Petition for review from RTC to CA [Rule 42]
appeal from RTC to CA applies.
APPLICABILITY - Appeal of RTC decision rendered in
exercise of appellate jurisdiction [Rule 42, Sec. 1]
From the Regional Trial Court to CA:
ƒ By notice of appeal: perfected as to party who
CERTIFICATE OF NON-FORUM SHOPPING (CNFS) -
filed notice upon filing of the same in due time
Petitioner in a petition for review in CA/SC must
- The court loses jurisdiction over the case
submit a CNFS with the petition. However, this rule
upon perfection of appeal AND expiration
is relaxed where there is need to conduct a review.
of time to appeal of the other parties.
In those instances, petitioner may comply with the
ƒ By record on appeal: perfected as to the party
requirement after he has filed the petitions. [Rule
who filed appeal and with respect to the subject
42, Sec.1]
matter thereof upon approval of the record filed
in due time
MTC to RTC to CA to SC
- The court loses jurisdiction upon approval
of the records on appeal AND expiration
of the time to appeal of the other parties Rule 41. Sec.2(c). Appeal by certiorari.—In all cases
where only questions of law are raised or involved,
From MTC to RTC (appellate jurisdiction) to CA: the appeal shall be to the SC by petition for review
upon timely filing of a petition for review and the on certiorari in accordance with Rule 45.
payment of the corresponding docket and other
lawful fees. Rule 45, Sec.1. Filing of petition with Supreme
ƒ The RTC loses jurisdiction upon perfection of Court.—A party desiring to appeal by certiorari from
appeals filed in due time AND the expiration of a judgment or final order or resolution of the CA,
time to appeal of other parties. the Sandiganbayan, the RTC or other courts
whenever authorized by law, may file with the SC a
h. Appeal from judgments or final orders of verified petition for review on certiorari. The
the MTC petition may include an application for a writ of
preliminary injunction or other provisional remedies
MTC to RTC and shall raise only questions of law which must be
distinctly set forth. The petitioner may seek the
Rule 40, Sec.1. Where to appeal.—An appeal from a same provisional remedies by verified motion filed in
judgment or final order of a MTC may be taken to the same action or proceeding at any time during its
the RTC exercising jurisdiction over the area to pendency.
which the former pertains. The title of the case shall (Asked in the 2002 Bar Exams)
remain as it was in the court of origin, but the party
appealing the case shall be further referred to as the Applicability of Rule 45
appellant and the adverse party the appellee. Rule 45, Sec.9. Rule applicable to both civil and
criminal cases.—The mode of appeal prescribed in
The other provisions governing appeal from RTC to this Rule shall be applicable to both civil and
CA so long as they are not inconsistent are criminal cases, except in criminal cases where the
applicable to appeal from MTC to RTC. penalty imposed is death, reclusion perpetua or life
imprisonment.
MTC to RTC to CA
Filing of petition
File a verified petition for review with the CA, ƒ File with the SC a verified petition for review on
paying at the same time to the clerk of said court certiorari.
the corresponding docket and other lawful fees, ƒ In 18 copies, with the original copy intended for
depositing the amount of P500 for costs and the court being indicated as such by the
furnishing the RTC and the adverse party with a copy petitioner.
REMEDIAL LAW REVIEWER

ƒ Petition shall raise only questions of law which Review is discretionary


must be distinctly set forth. A review is not a matter of right, but of sound
judicial discretion, and will be granted only when
Contents of petition (Sec. 4) there are special and important reasons therefore. 151
ƒ Full name of the appealing party (petitioner)
and the adverse party (respondent). The following, while neither controlling nor fully
ƒ Without impleading the lower court or judges as measuring the court's discretion, indicate the
petitioners/respondents. character of reasons which will be considered:
ƒ Material dates: ƒ When the court a quo has decided a question of
- When notice of the judgment or final order or substance, not theretofore determined by the
resolution subject thereof was received; SC, or has decided it in a way probably not in
- When a motion for new trial or accord with law or with the applicable decisions
reconsideration (if any) was filed and when of the SC; or
notice of the denial thereof was received. ƒ When the court a quo has so far departed from
ƒ Concise statement of the matters involved, and the accepted and usual course of judicial
the reasons/arguments relied on for the proceedings, or so far sanctioned such departure
allowance of the petition; by a lower court, as to call for an exercise of
ƒ A clearly legible duplicate original, or a the power of supervision.
certified true copy of the judgment or final
order or resolution certified by the clerk of
court of the court a quo and the requisite May require pleadings and documents
number of plain copies thereof, and such Rule 45, Sec.7. Pleadings and documents that may
material portions of the record as would support be required; sanctions.—For purposes of determining
the petition; whether the petition should be dismissed or denied
ƒ Certificate of non-forum shopping. pursuant to sec.5 of this Rule, or where the petition
is given due course under sec.8 hereof, the SC may
File petition within 15 days from notice: require or allow the filing of such pleadings, briefs,
ƒ of the judgment or final order or resolution memoranda or documents as it may deem necessary
appealed from, or within such periods and under such conditions as it
ƒ of the denial of the petitioner's motion for new may consider appropriate, and impose the
trial or reconsideration filed in due time after corresponding sanctions in case of non-filing or
notice of the judgment. unauthorized filing of such pleadings and documents
p or non-compliance with the conditions therefor.
On motion duly filed and served, with full payment
of the docket and other lawful fees and the deposit Due course and elevation of records
for costs before the expiration of the reglementary Rule 45, Sec.8. Due course; elevation of records.—If
period, the SC may for justifiable reasons grant an the petition is given due course, the SC may require
extension of 30 days only within which to file the the elevation of the complete record of the case or
petition. [Rule 45, Sec. 2] specified parts thereof within 15 days from notice.

Rule 45, Sec.3. Docket and other lawful fees; proof MTC to SC
of service of petition.—Unless he has theretofore ƒ The remedy is a petition for certiorari under
done so, the petitioner shall pay the corresponding Rule 65.
docket and other lawful fees to the clerk of court of ƒ This is not an appeal.
the Supreme Court and deposit the amount of
P500.00 for costs at the time of the filing of the i. Appeal from judgments or final orders of
petition. Proof of service of a copy thereof on the the RTC
lower court concerned and on the adverse party
shall be submitted together with the petition. RTC to CA
Under Rule 41, an appeal of judgment or final order
Dismissal or denial of petition under that completely disposes of either:
Rule 45, Sec.5. Dismissal or denial of petition.—The ƒ The case;
failure of the petitioner to comply with any of the ƒ A particular matter in the case, when declared
foregoing requirements regarding the payment of by ROC to be appealable.
the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of Not appealable under Rule 41
and the documents which should accompany the ƒ Order denying motion for new trial or
petition shall be sufficient ground for the dismissal reconsideration;
thereof. ƒ Order denying petition for review or any similar
motion seeking relief from judgment;
The SC may on its own initiative deny the petition on ƒ Interlocutory order;
the ground that the appeal is without merits, or is ƒ Order disallowing/dismissing appeal;
prosecuted manifestly for delay, or that the ƒ Order denying motion to set aside judgment by
questions raised therein are too unsubstantial to consent or confession or compromise on ground
require consideration. of fraud or mistake or duress or any other
vitiation of consent;
REMEDIAL LAW REVIEWER

ƒ Order of execution; j. Appeal from judgments or final orders of


ƒ While the case is pending, judgment or final the CA
152 order:
- For/against one or more of several parties; CA to SC
- In separate claims, counterclaims, cross- The remedy is a petition for review on certiorari
claims, third-party complaints. under Rule 65.
Exception: If court allows appeal.
ƒ Order dismissing an action without prejudice. k. Appeal from judgments or final orders of
the CTA
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action under
RA 9282: Decisions of the CTA are now appealable to
Rule 65.
the SC by petition for review on certiorari under
Rule 45.
Interlocutory order
Definition: If it does not dispose of the case but
leaves something else to be done by the trial court
l. Review of final judgments or final orders of
on the merits of the case. [Investments, Inc. vs. CA the COA
(1987)]
m. Review of final judgments or final orders
For purposes of appeal, an order is final if it disposes of the COMELEC
of the entire case. An order for partial summary
judgment is an interlocutory order which cannot be n. Review of final judgments or final orders
appealed from. The trial court had not yet rendered of the CSC
a complete final judgment. [GSIS vs. Phil. Village
Hotel (2004)] The remedy of an aggrieved party from a resolution
issued by the CSC is to file a petition for review
Multiple appeals thereof under Rule43 of the Rules of Court within
Civil cases which admit of multiple appeals: fifteen days from notice of the resolution. [DECS v.
ƒ Judgment in an action for recovery or for Cuanan (2008)]
partition of property is separately appealable
from the proceedings on that part of the o. Review of final judgments or final orders
judgment wherein accounting for receipts from of the Ombudsman
the property is ordered as a primary or
incidental relief. When such accounting is p. Review of final judgments or final orders
submitted and either approved or rejected by
of the NLRC
the trial court, another appeal lies therefrom.
ƒ Special civil actions:
- Expropriation; (Rule 67) Rule 43, Sec.2. Cases not covered.—This Rule shall
- Judicial partition; (Rule 69) not apply to judgments or final orders issued under
- Judicial foreclosure of mortgage; (Rule 68) the Labor Code of the Philippines.

Special proceedings also admit of multiple appeals. NLRC judgments and final orders or resolutions are
now reviewable, in the first instance, by the Court
Ko vs. PNB (2006): The order of dismissal due to of Appeals on certiorari under Rule 65, but those of
failure to prosecute is appealable by notice of the Employees Compensation Commission should be
appeal under Rule 41. brought to the Court of Appeals through a petition
for review under this Rule. Also, appeals from the
Philexport vs. PI (2004): But an order of dismissal Office of the Ombudsman in administrative
without prejudice is not appealable under Rule 41. disciplinary cases are now covered by this Rule.
[Fabian vs. Desierto (1998)]
Lanaria v. Planta (2007): Submission of a document
together with the motion for reconsideration q. Review of final judgments or final orders
constitutes substantial compliance with compliance of quasi-judicial agencies
with Section 2, Rule 42 or the requirement that
relevant or pertinent documents be submitted along QJA to CA
with the petition, and calls for the relaxation of
procedural rules Applicability
Appeals from judgments or final orders of the CTA
RTC to CA to SC and from awards, judgments, final orders or
The remedy is a petition for review on certiorari resolutions of or authorized by any quasi-judicial
under Rule 45. agency (QJA) in the exercise of its quasi-judicial
functions: (arranged alphabetically)
RTC to SC
ƒ The remedy is a petition for certiorari under ƒ Agricultural Inventions Board (AIB);
Rule 65. ƒ Board of Investments (BOI);
ƒ This is not an appeal. ƒ Bureau of Patents, Trademarks and Technology
Transfer (BPTTT);
REMEDIAL LAW REVIEWER

ƒ Central Board of Assessment Appeals (CBAA); ƒ when the questioned order amounts to an
ƒ Civil Aeronautics Board (CAB); oppressive exercise of judicial authority. [DECS
ƒ Civil Service Commission (CSC); v. Cuanan (2008)]
ƒ Construction Industry Arbitration Commission; 153
ƒ Department of Agrarian Reform (DAR under RA QJA to CA to SC
6657) Remedy is a petition for review on certiorari under
ƒ Employees Compensation Commission (ECC); Rule 45.
ƒ Energy Regulatory Board (ERB);
ƒ Government Service Insurance System (GSIS); QJA to SC
ƒ Insurance Commission; Remedy is a petition for certiorari under Rule 65,
ƒ Land Registration Authority (LRA); which is not an appeal.
ƒ National Electrification Administration (NEA);
ƒ National Telecommunications Commission 3. Relief from judgments, orders and
(NTC);
ƒ Office of the President (OP); other proceedings
ƒ Philippine Atomic Energy Commission (PAEC);
ƒ Securities and Exchange Commission (SEC); Definition: It is a legal remedy whereby a party
ƒ Social Security Commission (SSC); seeks to set aside a judgment rendered against him
ƒ Voluntary arbitrators authorized by law. by a court whenever he is unjustly deprived of a
hearing or was prevented from taking an appeal
A resolution of the DOJ Secretary is not appealable because of fraud, accident, mistake or excusable
under Rule 43. Recourse should be to the President, negligence.
instead of the CA, under the established principle of
exhaustion of administrative remedies. [Orosa vs. Francisco vs. Puno: A party who has filed a timely
Roa (2006)] motion for new trial or motion for reconsideration
can no longer file a petition for relief from judgment
Exhaustion of administrative remedies: If an after his motion has been denied. These remedies
appeal/remedy obtains or is available within the are mutually exclusive. It is only in appropriate cases
administrative machinery, this should be resorted to where a party aggrieved by the judgment has not
before resort can be made to the courts. been able to file a motion for new trial or motion for
reconsideration that a petition for relief can be
Under Rule 43, Sec. 4 the petition should be filed filed.
within 15 days from:
ƒ Notice of the final order; or a. Grounds for availing of the remedy
ƒ The date of its last publication, if publication is
required by law for its effectivity; or Rule 38, Sec.1. Petition for relief from judgment,
ƒ The denial of the petitioner’s MFR duly filed order, or other proceedings.—When a judgment or
according to the governing law of the court or final order is entered, or any other proceeding is
agency a quo. [Villorente vs. Laiya (2005)] thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence,
Under Rule 43, there is no need to implead the lower he may file a petition in such court and in the same
court or agency which rendered the assailed case praying that the judgment, order or proceeding
decision. [Basmayor v. Atencio (2005)] be set aside.

Submission of the duplicate original or certified true The relief provided for by Rule 38 is of equitable
copy of judgment, order, resolution or ruling subject character and is only allowed in exceptional cases,
of a petition for certiorari is essential to determine that is where there is no other available or adequate
whether or not the court, body or tribunal which remedy. A petition for relief is not regarded with
rendered the same indeed committed grave abuse of favor and judgment will not be disturbed where the
discretion. Either a legible duplicate original or party complaining has or by his exercising proper
certified true copy thereof shall be submitted. If diligence would have had an adequate remedy at
what is submitted is a copy, then it is required that law, as where petitioner could have proceeded by
the same is certified by the proper officer of the appeal to vacate or modify the default judgment.
court, tribunal, agency or office involved. This is to [Manila Electric vs. CA (1990))
assure that such copy is a faithful reproduction of
the judgment, order, resolution or ruling subject of Petition for relief under Rule 38 is an admission that
the petition. [Coca-cola v. Cabalo (2006)] the period to appeal from the decision had already
expired. [David vs CA (1992))
Recourse to a petition for certiorari under Rule 65
renders the petition dismissible for being the wrong
b. Time to file petition
remedy. Nonetheless, there are exceptions to this
rule:
ƒ when public welfare and the advancement of Rule 38, Sec.3. Time for filing petition; contents
public policy dictates; and verification.—A petition provided for in either of
ƒ when the broader interest of justice so requires; the preceding sections of this Rules must be verified,
ƒ when the writs issued are null and void; or filed within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set
REMEDIAL LAW REVIEWER

aside, and not more than 6 months after such


judgment or final order was entered, or such 4. Annulment of Judgments or final
154 proceeding was taken; and must be accompanied
with affidavits showing the fraud, accident, mistake, orders and resolutions
or excusable negligence relied upon, and the facts
constituting the petitioner’s good and substantial a. Grounds for annulment
cause of action or defense, as the case may be.
b. Period to file action
Both periods must concur. They are also non-
extendible and never interrupted. c. Effects of judgment of annulment

c. Contents of petition 5. Collateral attack of judgments


Rule 38, Sec.2. Petition for relief from denial of Remedies from a Void Judgment (Asked in the 2004
appeal.—When a judgment of final order is rendered BAR EXAMS)
by any court in a case, and a party thereto, by
fraud, accident, mistake, or excusable negligence, What is a void judgment?
has been prevented from taking an appeal, he may A void judgment is no judgment at all. It cannot be
file a petition in such court and in the same case the source of any right nor of any obligation. All acts
praying that the appeal be given due course. performed pursuant to it and all claims emanating
from it have no legal effect. Hence, it can never
Under both grounds, the petition shall be filed in the become final and any writ of execution based on it is
same court which rendered the judgment and in the void. It may be said to be a lawless thing which can
very same case. be treated as an outlaw and slain at sight, or ignored
wherever and whenever it exhibits its head.
Prayer in petition for relief from judgment:
ƒ That the judgment/order/proceeding be set A void judgment never acquires finality. A void
aside; judgment is not entitled to the respect accorded to
ƒ That the appeal be given due course. a valid judgment, but may be entirely disregarded or
declared inoperative by any tribunal in which effect
Form and content of petition: is sought to be given to it. It is attended by none of
ƒ Must be verified; the consequences of a valid adjudication. It has no
ƒ Must be accompanied by an affidavit showing legal or binding effect or efficacy for any purpose or
the fraud, accident, mistake or excusable at any place. It cannot affect, impair or create
negligence relied upon; rights. It is not entitled to enforcement and is,
ƒ The affidavit of merit accompanying the ordinarily, no protection to those who seek to
petition must also show the facts constituting enforce. All proceedings founded on the void
the petitioner’s good and substantial cause of judgment are themselves regarded as invalid. In
action or defense. other words, a void judgment is regarded as a
nullity, and the situation is the same as it would be
An affidavit of merit serves as the jurisdictional basis if there were no judgment. It, accordingly, leaves
for the court to entertain a petition for relief. the parties litigants in the same position they were
However, it is not a fatal defect to warrant denial of in before the trial.
the petition so long as the facts required to be set
out also appear in the verified petition. A judgment may be void for lack of due process of
law. [Spouses Benatiro vs. Heirs of Cuyos (2008))
When an affidavit of merit is not necessary:
ƒ When there is lack of jurisdiction over the How do you attack a void judgment?
defendant; It may be assailed anytime, collaterally or in a direct
ƒ When there is lack of jurisdiction over the action or by resisting such judgment or final order in
subject matter; any action or proceeding whenever it is invoked,
ƒ When judgment was taken by default; unless barred by laches. [Spouses Benatiro vs. Heirs
ƒ When judgment was entered by mistake or was of Cuyos (2008))
obtained by fraud; or
ƒ Other similar cases. What are your remedies?
If the reglementary period for appeal has not yet
Two hearings in a petition for relief from judgment: lapsed, some remedies are New Trial and
ƒ Hearing to determine whether or not the Reconsideration. Appeal, Petition for Relief, and
judgment should be set aside; Other Appropriate Remedies such as Certiorari may
ƒ If option a) is in the affirmative, hearing upon also be used.
the merits of the case.
If the appropriate remedies are no longer available
Other remedies after finality of judgment: without the fault of the petitioner, the equitable
ƒ Action to Annul a Judgment and extraordinary remedy of Petition for Annulment
ƒ Certiorari of Judgment may be resorted to.
ƒ Collateral Attack of a Judgment that is Void on
its Face
REMEDIAL LAW REVIEWER

When all else fails, there is jurisprudence to the The term “finality of judgment for purposes of
effect that a patently void judgment may be dealt appeal” refers to interlocutory orders which:
with by a Main Action for Injunction.
ƒ are not decisions within the constitutional 155
Some jurisprudential basis definition [Armargo v. CA]
Remedial Law Jurisprudence such as Spouses ƒ are those that determine incidental matters
Benatiro vs. Heirs of Cuyos, (2008) and Agustin vs. that do not touch on the merits of the case or
Bacalan, (1985) on the matter of void judgment put an end to proceedings. The following are
particularly refer to Rule 47 as a remedy against a examples of an interlocutory order:
void judgment. This remedy, however, should be - an order denying a motion to dismiss;
availed of only when the appropriate remedies are - an order granting an extension of time to file
no longer available without fault on the part of the a pleading, or one authorizing an amendment
petitioner. thereof;
- order granting or denying applications for
Although Section 2 of Rule 47 of the Rules of Court postponement or inspection of documents.
provides that annulment of a final judgment or order [Riano]
of an RTC may be based "only on the grounds of
extrinsic fraud and lack of jurisdiction," The word interlocutory refers to something
jurisprudence recognizes denial of due process as intervening between the commencement and the
additional ground therefore (Spouses Benatiro Case). end of a suit which decides some point or matter but
is not a final decision of the whole controversy.
Montinola vs. Judge Gonzales (1989): A VOID [Ramiscal, Jr. v. Sandiganbayan]
JUDGMENT IS LIKE AN OUTLAW WHICH MAY BE SLAIN
AT SIGHT WHEREVER OR WHENEVER IT EXHIBITS ITS A final judgment or order is one that finally disposes
HEAD. The proper remedy in such case, after the of a case, leaving nothing more to be done by the
time for appeal or review has passed, is for the Court in respect thereto, e.g., an adjudication on
aggrieved party to bring an action to enjoin the the merits which, on the basis of the evidence
judgment. presented at the trial, declares categorically what
the rights and obligations of the parties are and
Assuming the judgment to have been void as alleged which party is in the right; or a judgment or order
by the proponent of this motion, the proper remedy that dismisses an action on the ground, for instance,
was by an original proceeding and not by motion in of res judicata or prescription. Once rendered, the
the cause" (Banco Espanol vs. Palanca). A final task of the Court is ended, as far as deciding the
judgment may be annulled on the ground of lack of controversy or determining the rights and liabilities
jurisdiction, fraud, or that it is contrary to law. of the litigants is concerned. Nothing more remains
(Panlilio vs. Garcia, 119 SCRA 307) to be done by the Court except to await the parties'
next move (which among others, may consist of the
filing of a motion for new trial or reconsideration, or
the taking of an appeal) and ultimately, of course,
XVII. EXECUTION, SATISFACTION to cause the execution of the judgment once it
AND EFFECT OF JUDGMENTS becomes 'final or, to use the established and more
distinctive term, 'final and executory.
1. Difference between finality of judgment
for purposes of appeal; for purposes of The proper remedy to question an improvident
execution interlocutory order is a petition for certiorari under
2. When execution shall issue Rule 65, not Rule 45. A petition for review under
3. How a judgment is executed Rule 45 is the proper mode of redress to question
4. Properties exempt from execution only final judgments. Investments, Inc. v. Court of
5. Proceedings where property is claimed by Appeals
third persons
Execution is a matter of right upon the expiration of
6. Rules on Redemption the period to appeal and no appeal was perfected
7. Examination of Judgment Obligor When from a judgment or order that disposes of the action
Judgment is unsatisfied or proceeding. [Rule 39.1, RoC]
8. Examination of Obligor of Judgment
Obligor It can be noted that the Supreme Court made a
9. Effect of Judgment or Final Orders hairline distinction between finality of order for
10. Enforcement and Effect of Foreign appeals and for execution. It is submitted that upon
Judgments or Final Orders court’s issuance of a judgment touching upon the
merits of a case, it is final for the purposes of an
appeal, but NOT for execution. Finality for the
1. Difference between finality of purposes of execution refers to the expiration of the
judgment for purposes of appeal; for period to appeal and no appeal was perfected.
purposes of execution
REMEDIAL LAW REVIEWER

2. When execution shall issue After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be
156 General rule: When the judgment or order becomes enforced by action.
executory, the court cannot refuse to issue a writ of
execution. The revived judgment may also be enforced by
motion within five (5) years from the date of its
Exceptions: The issuance of a writ of execution entry and thereafter by action before it is barred by
which issues as a matter of right can be countered in the statute of limitations.
any of the following cases (R-I-N-S-E-D):
ƒ When a PETITION FOR RELIEF or an action to The maximum period within which a final and
enjoin judgment is filed and a preliminary executory judgment may be executed is 20 years
injunction is prayed for and granted (Rule 38.5); (Rule 39.6 in relation to New Civil Code provision on
ƒ When the judgment turns out to be INCOMPLETE prescription of judgment).
OR IS CONDITIONAL since as a matter of law,
such judgment CANNOT BE FINAL; Exceptions:
ƒ When the judgment has been NOVATED BY THE ƒ Judgments for support WHICH DO NOT BECOME
PARTIES DORMANT AND WHICH CAN BE EXECUTED BY
ƒ When SUBSEQUENT FACTS AND CIRCUMSTANCES MOTION [Canonizado v. Benitez] except for
transpire as to render such execution unjust or support in arrears beyond 10 years from the
impossible date they become due;
ƒ On EQUITABLE GROUNDS as when there has been ƒ Contempt orders by reason of unauthorized
a change in the situation of the parties which reentry on the land by the ejected defendant
makes execution INEQUITABLE. [Azotes v. Blanco];
ƒ When the judgment becomes DORMANT, the 5- ƒ Issuance of writs of possession in FORECLOSURE
year period under Rule 39.6 having expired CASES within the statute of limitations;
without the judgment having been revived. ƒ Land registration proceedings (and other special
proceedings), hence the right to ask for a WRIT
a. Execution as a matter of right OF POSSESSION THEREIN NEVER PRESCRIBES

See Annex D. b. Discretionary execution

General rule: An ex parte motion for the issuance of See Annex E.


the writ of execution would suffice since the trial
court may take judicial notice of the record of the General rule: Under the Rule on Discretionary
case to determine the propriety of the issuance Execution (also called execution pending appeal),
thereof. the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
Exception: However when the losing party shows execution pending appeal (Asked in the 2002 Bar
that subsequent facts had taken place which would Exam). It is the execution of a judgment or final
render the execution unjust, a hearing on the order before it attains finality. The court which
motion should be held. [Luzon Surety v. Beson rendered the decision can grant an execution
(1976)] pending appeal if it still retains jurisdiction over the
case and is in possession of the records at the time
General rule: An appeal seasonably perfected shall of the filing of the motion; otherwise, the motion
stay the execution of the judgment, unless shall be acted upon by the appellate court. To be
discretionary execution is granted by the court. valid, there should be a good reason to justify the
execution of the judgment pending appeal, the same
Exceptions: However, judgments in the following to be stated in the order granting it.
action, despite perfection of an appeal, shall be
executed, unless the court orders otherwise: Exception: This rule, however, is inapplicable in the
ƒ injunction case of the Court of Appeals.
ƒ receivership ƒ The Rule on Discretionary Execution
ƒ accounting contemplates a situation where a judgment or
ƒ support final order rendered in the exercise of its
ƒ such other judgments as shall now or may original jurisdiction and the prevailing party in
hereafter be declared to be immediately said decision seeks immediate execution during
executory the pendency of an appeal.
ƒ The CA has no authority to issue IMMEDIATE
Judgments in these actions shall be enforceable EXECUTION PENDING APPEAL OF ITS OWN
after their rendition and shall not, be stayed by an DECISIONS THEREIN.
appeal taken therefrom, UNLESS OTHERWISE ƒ Discretionary execution is allowed pending
ORDERED BY THE TRIAL COURT. appeal of judgment or final order of the trial
court upon good reasons to be stated in a
General rule: A final and executory judgment or special order.
order may be executed on motion within five (5)
years from the date of its entry. [Sec. 6, Rule 39]
REMEDIAL LAW REVIEWER

Heirs of Justice J.B.L. Reyes v. CA (2000): A then deliver said payment to the judgment obligee
JUDGMENT OF THE CA CANNOT BE EXECUTED in satisfaction of the judgment.
PENDING APPEAL. It is acquired either by the arrest p
of the accused or by his voluntary appearance in The excess, if any, shall be delivered to the
157
court. judgment obligor while the lawful fees shall be
retained by the clerk of court for disposition as
General rule: The filing of a supersedeas bond is provided by law. In no case shall the executing
sufficient to stay the enforcement of a discretionary sheriff demand that any payment by check be made
execution. payable to him.

Exception: However, THE FILING OF SUPERSEDEAS ii. Satisfaction by levy


BOND does not entitle the judgment debtor to the
suspension of execution as a MATTER OF RIGHT. Nature: LEVY MEANS THE ACT OR ACTS by which an
Where the needs of the prevailing party are officer sets apart or appropriates a part or the whole
URGENT, the Court can order immediate execution of the property of the judgment debtor for purposes
despite such SUPERSEDEAS BOND. [Regalado] of the prospective execution sale [Llenares v.
Vandevella (1966)].
3. How a judgment is executed If susceptible of appropriation, the officer REMOVES
AND TAKES THE PROPERTY FOR SAFEKEEPING;
a. Execution by motion or by independent otherwise the same is placed under sheriff’s guards.
action Without valid levy having been made, ANY SALE OF
THE PROPERTY THEREAFTER is void.
b. Issuance and contents of a writ of
execution Procedure:

c. Execution of judgments for money (asked If the judgment obligor cannot pay all or part of the
in the 2007 Bar Exam) obligation in cash, certified bank check or other
mode of payment acceptable to the judgment
i. Immediate payment on demand obligee, the officer shall levy upon:
ƒ the properties of the judgment obligor of every
Procedure: kind and nature whatsoever which may be
disposed, of for value, and
The sheriff or executing officer demands from the ƒ not otherwise exempt from execution
judgment obligor the immediate payment of the full p
amount stated in the writ of execution and all lawful The sheriff gives the judgment obligor the option as
fees. to which of the property or part thereof may be
p levied upon, sufficient to satisfy the judgment.
The judgment obligor shall pay in cash, certified p
bank check payable to the judgment obligee, or ANY If the judgment obligor does not exercise the option,
OTHER FORM OF PAYMENT ACCEPTABLE TO THE the officer shall first levy on the personal properties,
LATTER (e.g., dacion en pago), the amount of the if any, and then on the real properties if the
judgment debt under proper receipt directly to the personal properties are insufficient to answer for the
judgment obligee or his authorized representative if judgment.
present at the time of payment. p
p The sheriff shall sell only a sufficient portion of the
The lawful fees shall be handed under proper receipt personal or real property of the judgment obligor
to the executing sheriff who shall turn over the said which has been levied upon.
amount within the same day to the clerk of court of p
the court that issued the writ. When there is more property of the judgment obligor
p than is sufficient to satisfy the judgment and lawful
If the judgment obligee or his authorized fees, he must sell only so much of the personal or
representative is not present to receive payment, real property as is sufficient to satisfy the judgment
the judgment obligor shall deliver the aforesaid and lawful fees.
payment to the executing sheriff. The latter shall
turn over all the amounts coming into his possession
within the same day to the clerk of court of the Levy Garnishment
court that issued the writ, or if the same is not seizure of property, the process of notifying
practicable, deposit said amounts to a fiduciary personal and/or real, a third person (the
account in the nearest government depository bank belonging to the garnishee) to retain and
of the Regional Trial Court of the locality. judgment debtor for attach the property he
p subsequent execution has in his possession or
The clerk of said court shall thereafter arrange for sale to satisfy judgment under his control
the remittance of the deposit to the account of the Garnishment is belonging to the
court that issued the writ whose clerk of court shall judgment debtor, to
make disclosure to the
REMEDIAL LAW REVIEWER

court concerning the Under this situation, there is a judgment which


same, and to dispose of directs a party to execute a conveyance of land or
158 the same as the court personal property, or to deliver deeds or other
shall direct to satisfy the documents, or to perform, any other specific act IN
judgment. (Sec. 9, Rule CONNECTION THEREWITH.
39)
If the party so ordered fails to comply within a
iii. Garnishment of debts and credits specified period, there are two possible remedies.
Either:
Scope: The officer may levy on debts due the ƒ the court may DIRECT THE ACT TO BE DONE AT
judgment obligor and other credits, including bank THE COST OF THE DISOBEDIENT PARTY by some
deposits, financial interests, royalties, commissions other person appointed by the court and the act
and other personal property not capable of manual when so done shall have like effect as if done by
delivery in the possession or control of third parties. the party, or
The process of levying shall be called garnishment if ƒ if real or personal property is situated within
the property involved is money, stocks, or other the Philippines, the court in lieu of directing a
incorporeal property in the HANDS OF THIRD conveyance thereof may by an order divest the
PERSONS. Garnishment merely sets apart such funds title of any party and vest it in others, which
but does not constitute the creditor as owner of the shall have the force and effect of a conveyance
garnished property. executed in due form of law.

Garnishment is not a violation of RA 1405 on the ii. Sale of real or personal property
secrecy of bank deposits. [Chinabank v. Ortega] If judgment is rendered ordering the sale of real or
personal property, an order for execution shall be
Procedure: issued describing such property as may be ordered
sold, selling it, and applying the proceeds in
Levy shall be made by SERVING NOTICE UPON THE conformity with the judgment’s instructions.
PERSON OWING SUCH DEBTS OR HAVING IN HIS
POSSESSION OR CONTROL SUCH CREDITS TO WHICH iii. Delivery or restitution of real property
THE JUDGMENT OBLIGOR IS ENTITLED. The The officer shall demand of the person against whom
garnishment shall cover only such amount as will the judgment for the delivery or restitution of real
satisfy the judgment and all lawful fees. property is rendered and all persons claiming rights
p under him to peaceably vacate the property within
The garnishee shall make a WRITTEN REPORT to the three (3) working days, and restore possession
court within five (5) days from service of the notice thereof to the judgment obligee.
of garnishment stating whether or not the judgment
obligor has sufficient funds or credits to satisfy the Otherwise, the officer shall oust all such persons
amount of the judgment. If not, the report shall therefrom with the assistance, if necessary, of
state how much funds or credits the garnishee holds appropriate peace officers, and employing such
for the judgment obligor. means as may be reasonably necessary to retake
possession, and place the judgment obligee in
p
possession of such property.
The garnished amount in cash, or certified bank
check issued in the name of the judgment obligee,
ANY COSTS, DAMAGES, RENTS OR PROFITS AWARDED
shall BE DELIVERED DIRECTLY TO THE JUDGMENT
BY THE JUDGMENT SHALL BE SATISFIED IN THE SAME
OBLIGEE within ten (10) working days from service of
MANNER AS A JUDGMENT FOR MONEY.
notice on said garnishee requiring such delivery,
except the lawful fees which shall be paid directly to
the court. iv. Removal of improvements on property subject
of execution
p When the property subject of the execution contains
In the event there are two or more garnishees improvements constructed or planted by the
holding deposits or credits sufficient to satisfy the judgment obligor or his agent, the officer shall not
judgment, the judgment obligor, if available, shall destroy, demolish or remove said improvements
have the right to indicate the garnishee or except upon special order of the court, issued upon
garnishees who shall be required to deliver the motion of the judgment obligee after the hearing
amount due, otherwise, the choice shall be made by and after the former has failed to remove the same
the judgment obligee. within a reasonable time fixed by the court.
p
The executing sheriff shall observe the same v. Delivery of personal property
procedure under IMMEDIATE PAYMENT ON DEMAND In judgment for the delivery of personal property,
with respect to delivery of payment to the judgment the officer shall take possession of the same and
obligee. forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided.
e. Execution of special judgments
d. Execution of judgments for specific acts
When a judgment requires the performance of ANY
i. Conveyance, delivery of deeds, or other specific ACT OTHER THAN THOSE MENTIONED IN THE TWO
acts
REMEDIAL LAW REVIEWER

PRECEDING SECTIONS (EXECUTION OF JUDGMENT ƒ The right to receive legal support, or money or
FOR MONEY AND SPECIFIC ACTS), a certified copy of property obtained as such support, or any
the judgment shall be attached to the writ of pension or gratuity from the Government;
execution and shall be served by the officer upon ƒ Properties specially exempted by law. (e.g., 159
the party against whom the same is rendered, or property mortgaged to the DBP [Section 26, CA
upon any other person required thereby, or by law, 458]; savings of national prisoners deposited
to obey the same, and such party or person may be with the POSTAL SAVINGS BANK [Act 2489];
punished for contempt if he disobeys such judgment. benefits from private retirement systems of
companies and establishments with limitations
Special judgments are those which can be complied [RA 4917]; laborer’s wages except for debts
with by the judgment obligor because of his personal incurred for food, shelter, clothing and medical
qualifications or circumstances (e.g., a judgment attendance [ART 1708, CIVIL CODE]; benefit
ordering a partner to render an accounting, a payments from SSS [Section 16, RA 1161 AS
judgment ordering a party to comply with his AMENDED])
recording contract otherwise, pay damages).
Exception: However, no article or species of
Note the difference with sections 9 and 10 (on property mentioned in this section shall be exempt
execution of money judgments and specific acts) from:
where contempt is not a remedy against ƒ execution issued upon a judgment recovered for
disobedience by a party. its price, or
ƒ upon a judgment of foreclosure of a mortgage
f. Effect of levy on third persons thereon.

4. Properties exempt from execution


[Herrera v. Mcmicking]: The exemptions MUST BE
General rule: Except as otherwise expressly CLAIMED, otherwise they are deemed waived. It is
provided by law, the following property, and no not the duty of the sheriff to set off the exceptions
other, shall be exempt from execution: (FOTNUP- on his own initiative.
LBS-GMRE)
ƒ The judgment obligor's family home as provided Return of writ of execution
by law, or the homestead in which he resides, The writ of execution shall be returnable to the
and land necessarily used in connection court issuing it immediately after the judgment has
therewith; been satisfied in part or in full.
ƒ Ordinary tools and implements personally used
by him in his trade, employment, or livelihood; If the judgment cannot be satisfied in full within
ƒ Three horses, or three cows, or three carabaos, thirty (30) days after his receipt of the writ, the
or other beasts of burden, such as the judgment officer shall report to the court and state the reason
obligor may select necessarily used by him in his therefor.
ordinary occupation;
ƒ His necessary clothing and articles for ordinary Such writ shall continue in effect during the period
personal use, excluding jewelry; within which the judgment may be enforced by
ƒ Household furniture and utensils necessary for motion.
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the The officer shall make a report to the court every
judgment obligor may select, of a value not thirty (30) days on the proceedings taken thereon
exceeding one hundred thousand pesos; until the judgment is satisfied in full, or its
ƒ Provisions for individual or family use sufficient effectivity expires.
for four months;
ƒ The professional libraries and equipment of The returns or periodic reports shall set forth the
judges, lawyers, physicians, pharmacists, whole of the proceedings taken, and shall be filed
dentists, engineers, surveyors, clergymen, with the court and copies thereof promptly furnished
teachers, and other professionals, not exceeding the parties. [Section 12, Rule 39]
three hundred thousand pesos in value;
ƒ One fishing boat and accessories not exceeding Notice requirement
the total value of one hundred thousand pesos Before the sale of property on execution, notice
owned by a fisherman and by the lawful use of thereof must be given as follows:
which he earns his livelihood; ƒ In case of perishable property, by posting
ƒ So much of the salaries, wages, or earnings of written notice of the time and place of the sale
the judgment obligor for his personal services in three (3) public places, preferably in
within the four months preceding the levy as are conspicuous areas of the (CPM) municipal or city
necessary for the support of his family; hall, post office and public market in the
ƒ Lettered gravestones; municipality or city where the sale is to take
ƒ Monies, benefits, privileges, or annuities place, for such time as may be reasonable,
accruing or in any manner growing out of any considering the character and condition of the
life insurance; property;
REMEDIAL LAW REVIEWER

ƒ In case of other personal property, by posting a judgment obligor in judicial foreclosure of


similar notice in the three (3) public places mortgage.
160 above-mentioned for not less than five (5) days; ƒ The difference lies in the fact that under Rule
ƒ In case of real property, by posting for twenty 68, a definite period is given.
(20) days in the three (3) public places
abovementioned a similar notice particularly Concluding the execution sale
describing the property and stating where the When the purchaser is the judgment obligee, and no
property is to be sold, and if the assessed value third-party claim has been filed, he need not pay the
of the property exceeds fifty thousand amount of the bid if it does not exceed the amount
(P50,000.00) pesos, by publishing a copy of the of his judgment. If it does, he shall pay only the
notice once a week for two (2) consecutive excess. [Section 21, Rule 39]
weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major By written consent of the judgment obligor and
regional language published, edited and obligee, or their duly authorized representatives,
circulated or, in the absence thereof, having the officer may adjourn the sale to any date and
general circulation in the province or city; time agreed upon by them. Without such agreement,
ƒ In all cases, written notice of the sale shall be he may adjourn the sale from day to day if it
given to the judgment obligor, at least three (3) becomes necessary to do so for lack of time to
days before the sale, except as provided in complete the sale on the day fixed in the notice or
paragraph (a) hereof where notice shall be given the day to which it was adjourned [Section 22, Rule
the same manner as personal service of 39]. Written consent is essential, otherwise the
pleadings and other papers as provided by adjournment will be void [Abrozar v. IAC (1988)]
section 6 of Rule 13. Upon a sale of real property , the officer must give
to the purchaser a certificate of sale containing:
The notice shall specify the place, date and exact ƒ A particular description of the real property
time of the sale which should not be earlier than sold;
nine o'clock in the morning and not later than two ƒ The price paid for each distinct lot or parcel;
o'clock in the afternoon (9am-2pm). ƒ The whole price paid by him;
ƒ A statement that the right of redemption
The place of the sale MAY BE AGREED UPON BY THE expires one (1) year from the date of the
PARTIES. In the absence of such agreement, the sale registration of the certificate of sale. Such
of the property or personal property not capable of certificate must be registered in the registry of
manual delivery shall be held in the office of the deeds of the place where the property is
clerk of court of the Regional Trial Court or the situated. [Section 25, Rule 39]
Municipal Trial Court which issued the writ of or
which was designated by the appellate court. How property sold on execution (See table on
Service of summons upon different entities)
In the case of personal property capable of manual
delivery, the sale shall be held in the place where 5. Proceedings where property is
the property is located. [Section 15, Rule 39]
claimed by third persons
PENALTIES
(Selling without notice and defacing notice) a. in relation to third party claim in
An officer selling A person willfully attachment and replevin
without the notice removing or defacing the
prescribed by section 15 notice posted Remedies of a Third-Party Claimant
of this Rule ƒ Summary hearing before the court which
pay punitive damages in if done before the sale, authorized the execution
the amount of P5,000 to or before the satisfaction ƒ “Terceria” or third-party claim filed with the
any person injured of the judgment if it be sheriff
thereby, in addition to satisfied before the sale, ƒ Action for damages on the bond posted by the
his actual damages, both shall be liable to pay judgment creditor
to be recovered by P5,000 to any person ƒ Independent reivindicatory action
motion in the same injured by reason
action thereof, in addition to The aforementioned are cumulative remedies and
his actual damages, to be may be resorted to by a third-party claimant
recovered by motion in independently of or separately from and without
the same action need of availing of the others. [Sy vs. Discaya (1990)]

Preventing execution sale Rules regarding terceria (third-party claims)


At any time before the sale of property on (ASKED IN THE 2000 & 2005 BAR EXAMS)
execution, the judgment obligor may prevent the
sale by paying the amount required by the execution The third person whose property was levied on must
and the costs that have been incurred therein. make an affidavit of his title thereto or right to the
[Section 18, Rule 39] possession thereof stating the grounds of such right
ƒ This is akin to the equitable right of redemption or title. He must serve the same upon the officer
under Rule 68, which is available to the making the levy and copy thereof upon the judgment
REMEDIAL LAW REVIEWER

obligee. The officer shall not be bound to keep the - REDEMPTIONER, within one year from the
property as a general rule. date of registration of the certificate of sale;
p or within 60 days from the last redemption by
Sheriff is bound to keep the property when the another redemptioner. 161
judgment obligee, on demand of the officer, files a - BUT IN ALL CASES, the judgment obligor shall
bond approved by the court to indemnify the third- have the entire period of 1 YEAR from the
party claimant in a sum not less than the value of date of registration of the sale to redeem the
the property levied on. property.
- IF THE JUDGMENT OBLIGOR REDEEMS, no
p
further redemption is allowed and he is
In case of disagreement as to such value of the restored to his estate.
bond, the same shall be determined by the court - THE PERIOD FOR REDEMPTION IS NOT
issuing the writ of execution. SUSPENDED by an action to annul the
foreclosure sale.
No claim for damages for the taking or keeping of
the property may be enforced against the bond ƒ If the certificate of sale is not registered, the
unless the action therefor is filed within one period for redemption does not run (Garcia vs.
hundred twenty (120) days from the date of the Ocampo). But where parties agreed on the date
filing of the bond. of redemption, the statutory period for legal
redemption was converted into one of
The officer shall not be liable for damages for the conventional redemption and the period binding
taking or keeping of the property, to any third-party on them is that agreed upon. [Lazo v. Republic
claimant if such bond is filed Surety & Insurance Co., Inc (1970)]

Apart from Rule 39, the only other provisions of the ƒ The right of redemption is transferable and may
Rules of Court dealing with terceria or third party be voluntarily sold [Gomez v. La Germinal] but
claims are Rule 57.14 on preliminary attachment and said right cannot be levied upon by the
Rule 60.7 on replevin. judgment creditor. The creditor may not
deprive the debtor of any further rights to the
Sierra v. Rodriguez and Northern Motors v. property [Lichauco v. Olegario]
Coquia: The third party claimant CANNOT APPEAL
NOR AVAIL OF CERTIORARI AS A REMEDY in the event ƒ In effecting redemption, the mortgagor has the
that his claim was denied since HE IS A NONPARTY to duty of tendering payment (actual tender of
the original action. payment of the redemption price) before the
redemption period expires. [Banco Filipino
Intervention by a third-party claimant whose Savings and Mortgage Bank v. CA (2005)]
property had been levied upon by the sheriff in the However, neither to make an offer to redeem
action from which the writ pursuant to which the nor to make tender of payment of the
levy was made was issued must be made before repurchase price is necessary when the right to
rendition of judgment by the trial court. He can no redeem is exercised through the filing of a
longer intervene once the trial court already issues a complaint to redeem. The filing of an action to
writ of execution. [Bautista] redeem within that period is equivalent to a
formal offer to redeem. [Vda. de Panaligan v.
6. Rules on Redemption CA (1996)]

ƒ There is no right of redemption where the ƒ Redemption price varies depending on who the
property sold at judicial sale is personal redemptioner is:
property. - If judgment obligor: Purchase price
o 1 % interest thereon up to the time of
ƒ Real property sold or any part thereof sold redemption
separately, may be redeemed in the manner o Any amount of assessments or taxes which
hereinafter provided, by the following persons: the purchaser may have paid thereon after
- The judgment obligor; or his successor in purchase and interest on such last named
interest in the whole or any part of the amount at the same rate.
property; o If the purchaser be also a creditor having
- A creditor having a lien by virtue of an prior lien to that of the redemptioner,
attachment, judgment or mortgage on the other than the judgment under which such
property sold, or on some part thereof, purchase was made, the amount of such
subsequent to the lien under which the other lien, with interest.
property was sold. Such redeeming creditor is
termed a redemptioner. [Section 27, Rule 39] - If redemptioner: Amount paid on the last
redemption
ƒ Redemption can be made by either: o 2% interest thereon.
- JUDGMENT OBLIGOR, within one year from o Any amount of assessments or taxes which
the date of registration of the certificate of the last redemptioner may have paid
sale thereon after redemption by him with
interest on such last named amount;
REMEDIAL LAW REVIEWER

o Amount of any liens held by said last period of redemption. In all, the judgment
redemptioner prior to his own with interest debtor shall exercise the following rights:
162 - Remain in possession of the property
Effects of redemption - He cannot be ejected;
[Section 29, Rule 39] - Use the property in the same manner it was
ƒ If the judgment obligor redeems he must make previously used;
the same payments as are required to effect a - Make Necessary repairs to buildings thereon
redemption by a redemptioner, whereupon, no while he occupies the property
further redemption shall be allowed and he is - Use it in the ordinary course of husbandry
restored to his estate. - Collect rents, earnings and income derived
ƒ The person to whom the redemption payment is from the property until the expiration of
made must execute and deliver to him a period of redemption.
certificate of redemption acknowledged before
a notary public or other officer authorized to [Section 33, Rule 39]
take acknowledgments of conveyances of real ƒ If no redemption be made within one (1) year
property. from the date of the registration of the
ƒ Such certificate must be filed and recorded in certificate of sale, the purchaser is entitled to a
the registry of deeds of the place in which the conveyance and possession of the property; or,
property is situated and the registrar of deeds ƒ if so redeemed whenever sixty (60) days have
must note the record thereof on the margin of elapsed and no other redemption has been
the record of the certificate of sale. made, and notice thereof given, and the time
ƒ The payments mentioned in this and the last for redemption has expired, the last
preceding sections may be made to the redemptioner is entitled to the conveyance and
purchaser or redemptioner, or for him to the possession;
officer who made the sale. ƒ but in all cases the judgment obligor shall have
the entire period of one (1) year from the date
[Section 30, Rule 39] of the registration of the sale to redeem the
A redemptioner must produce to the officer, or property.
person from whom he seeks to redeem, and serve ƒ The deed shall be executed by the officer
with his notice to the officer making the sale or by his successor in office,
ƒ a copy of the judgment or final order under and in the latter case shall have the same
which he claims the right to redeem, certified validity as though the officer making the sale
by the clerk of the court wherein the judgment had continued in office and executed it.
or final order is entered, OR, ƒ Upon the expiration of the right of redemption,
ƒ if he redeems upon a mortgage or other lien, a the purchaser or redemptioner shall be
memorandum of the record thereof, certified by substituted to and acquire all the rights, title,
the registrar of deeds, OR interest and claim of the judgment obligor to
ƒ an original or certified copy of any assignment the property as of the time of the levy.
necessary to establish his claim; AND ƒ The possession of the property shall be given to
ƒ an affidavit executed by him or his agent, the purchaser or last redemptioner by the same
showing the amount then actually due on the officer unless a third party IS ACTUALLY
lien. HOLDING THE PROPERTY adversely to the
judgment obligor.
[Section 31, Rule 39]
ƒ Until the expiration of the time allowed for Recovery of purchase price and revival of judgment:
redemption, the court may, as in other proper ƒ A judgment co-debtor may compel a
cases, restrain the commission of waste on the contribution from the others:
property by injunction, on the application of the - When property liable to an execution against
purchaser or the judgment obligee, with or several persons is sold thereon, and
without notice; - more than a due proportion of the judgment
ƒ but it is not waste for a person in possession of is satisfied out of the proceeds of the sale of
the property at the time of the sale, or entitled the property of one of them, or
to possession afterwards, during the period - one of them pays, without a sale, more than
allowed for redemption, to continue to use it in his proportion,
the same manner in which it was previously ƒ A surety may compel repayment from the
used, or to use it in the ordinary course of principal:
husbandry; or to make the necessary repairs to - When a judgment is upon an obligation of one
buildings thereon while he occupies the of them, as security for another, and the
property. surety pays the amount, or any part thereof,
ƒ The purchaser or a redemptioner shall not be either by sale of his property or before sale.
entitled to receive the rents, earnings and [Section 35, Rule 39].
income of the property sold on execution, or the -
value of the use and occupation thereof when
such property is in the possession of a tenant. 7. Examination of Judgment Obligor
ƒ All rents, earnings and income derived from the
property pending redemption shall belong to the When Judgment is unsatisfied
judgment obligor until the expiration of his
REMEDIAL LAW REVIEWER

8. Examination of Obligor of - UNLESS a revocation of his authority is filed,


or upon the endorsement of such admission by
Judgment Obligor the judgment obligee or his counsel, on the
face of the record of the judgment. [Sec. 44, 163
Does a Party Litigant Enjoy Any Discovery Rights Rule 39]
After the Promulgation of Final and Executory
Judgment? ƒ Whenever a judgment is satisfied in fact, or
Yes. See Secs. 36-38, Rule 39 [Bautista] otherwise than upon an execution on demand of
the judgment obligor,
Remedies of Judgment Creditor in Aid of - the judgment obligee or his counsel must
Execution [Sections 36-43] execute and acknowledge, or indorse an
(Asked in the 2008 Bar Exam particularly steps to be admission of the satisfaction as provided in
taken if writ of execution is unsatisfied) the last preceding section,
- and after notice and upon motion the court
ƒ If the execution is returned unsatisfied, he may may order either the judgment obligee or his
cause the examination of the judgment debtor counsel to do so, or may order the entry of
as to his property and income [Sec. 36] (asked in satisfaction to be made without such
the 2002 bar exam) admission. [Sec. 45, Rule 39]
ƒ He may cause examination of the debtor of the
judgment debtor as to any debt owed by him or
to any property of the judgment debtor in his 9. Effect of Judgment or Final Orders
possession [Sec. 37].
ƒ If after examination, the court finds the RES JUDICATA IN JUDGMENTS IN REM
property of the judgment debtor either in his
own hands or that of any person, the court may Judgments or final Conclusive as to
order the property applied to the satisfaction of order
the judgment. Against a specific thing Title of the thing
ƒ A party or other person may be compelled by an Probate of a will or The will or
order or subpoena to attend before the court or administration of the administration. However,
commissioner to testify as provided in sect 36- estate of a deceased the probate of a will or
37. person granting of letters of
- if the court finds the earnings of the judgment administration shall only
debtor are more than sufficient for his be prima facie evidence
family’s needs, it may order payment in of the death of the
installments [Sec. 40] testator or intestate;
- the court may appoint a receiver for the IN RESPECT TO THE Condition, status or
property of the judgment debtor not exempt PERSONAL, political, or relationship of the
from execution or forbid a transfer or legal condition or status person,
disposition or interference with such property of a particular person or
[Sec. 41] his relationship to
- if the court finds the judgment debtor had an another
ascertainable interest in real property either
as mortgagor, mortgagee or otherwise, and RES JUDICATA IN JUDGMENTS IN PERSONAM
his interest can be ascertained without In other cases, the judgment or final order is, with
controversy, the court may order a sale of respect to the matter directly adjudged or as to any
such interest [Sec. 42]. other matter that could have been missed in relation
- if the person alleged to have the property of thereto, conclusive:
the judgment debtor or be indebted to him, ƒ between the parties and
claims an adverse interest in the property or ƒ their successors in interest, by title subsequent
denies the debt, the court may authorize the to the commencement of the action or special
judgment creditor to institute an action to proceeding, litigating for the same thing and
recover the property, forbid its transfer and under the same title and in the same capacity.
may punish disobedience for contempt [Sec.
43] CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF
ISSUES (AUTER ACTION PENDANT)
Entry of satisfaction In any other litigation between the same parties or
ƒ Satisfaction of a judgment shall be entered by their successors in interest, that only is deemed to
the clerk of court in the court docket, and in have been adjudged in a former judgment or final
the execution book, order which appears upon its face to have been so
- upon the return of a writ of execution adjudged, or which was actually and necessarily
showing the full satisfaction of the judgment, included therein or necessary thereto.
or
- upon the filing of an admission to the BAR BY FORMER CONCLUSIVENESS OF
satisfaction of the judgment executed and JUDGMENT (RES JUDGMENT
acknowledged in the same manner as a JUDICATA)
conveyance of real property by the judgment There is identity of Identity of parties and
obligee or by his counsel parties, subject matter subject matter.
REMEDIAL LAW REVIEWER

and causes of action ƒ In either case, the judgment or final order may
The first judgment The first judgment is be repelled by evidence of a want of
164 constitutes an absolute conclusive only as to jurisdiction, want of notice to the party,
bar to all matters matters directly collusion, fraud, or clear mistake of law or fact
directly adjudged and adjudged and actually (Rule 39 Sec. 48).
those that might have litigated in the first ƒ Such limitation on the review of foreign
been adjudged. action. Second action judgment is adopted in all legal systems to avoid
can be prosecuted. repetitive litigation on claims and issues,
prevent harassment of the parties and avoid
REQUISITES OF RES JUDICATA undue imposition on the courts.
ƒ finality of the former judgment; ƒ This policy of preclusion rests on principles of
ƒ the court which rendered it had jurisdiction comity, utility and convenience of nations.
over the subject matter and the parties ƒ As a generally accepted principle of
ƒ it must be a judgment on the merits international law, it is part of the law of the
ƒ there must be, between the first and second Philippines by virtue of the Incorporation Clause
actions, identity of parties, subject matter and (Section 2, Article II) of the 1987 Constitution
causes of action [Perez v. CA (2005)] [Regalado].

XVIII. PROVISIONAL REMEDIES


RES JUDICATA VS. “LAW OF THE CASE” VS. STARE
1. Nature of provisional remedies
DECISIS [Ayala Corporation v. Rosa-Diana Realty,
(2000)]
2. Jurisdiction over provisional remedies
3. Preliminary Attachment
Res Judicata “Law of the Stare Decisis 4. Preliminary Injunction
Case” 5. Receivership
The ruling in Operates only 6. Replevin
one case is in the
carried over to particular and 1. Nature of provisional remedies
another case single case
between the where the Definition
same parties ruling arises Writs and processes available during the pendency of
and is not the action which may be resorted to by a litigant for
carried into the preservation or protection of their rights and
other cases as a interests therein pending rendition, and for purposes
precedent of the ultimate effects, of a final judgment in the
The ruling Once a point of case; also known as ancillary or auxiliary remedies.
adhered to in law has been
the particular established by They are applied to a pending litigation, for the
case need not the court, that purpose of securing the judgment or preserving the
be followed as point of law status quo, and in some cases after judgment, for
a precedent in will, generally, the purpose of preserving or disposing of the subject
subsequent be followed by matter. [Calo vs. Roldan, 1946]
litigation the same court
between other and by all Orders granting or denying provisional remedies are
parties courts of lower merely interlocutory and cannot be the subject of an
rank in appeal. They may however be challenged before a
subsequent superior court through a petition for certiorari under
cases where Rule 65.
the same legal
issue is raised
2. Jurisdiction over provisional
10. Enforcement and Effect of remedies
Foreign Judgments or Final Orders All inferior courts can grant appropriate provisional
remedies provided that the main action is within
EFFECT OF FOREIGN JUDGMENTS (Asked in the their jurisdiction. [B.P. 129]
2005 Bar Exam)
ƒ In case of a judgment or final order upon a
specific thing, the judgment or final order, is
conclusive upon the title to the thing (Rule 39,
Sec. 48).
3. Preliminary Attachment (Asked in
ƒ In case of a judgment or final order against a the 2002 Bar Exam)
person, the judgment or final order is
presumptive evidence of a right as between the Definition: A provisional remedy issued upon order
parties and their successors in interest by a of the court where an action is pending to be levied
subsequent title (Rule 39 Sec. 48). upon the property of the defendant so the property
may be held by the sheriff as security for the
REMEDIAL LAW REVIEWER

satisfaction of whatever judgment may be rendered ƒ Action against a party who has removed or
in the case [Davao Light v CA 204 SCRA 343] disposed of his property, or is about to do so,
AND with intent to defraud his creditors; or
Purposes 165
ƒ To seize the property of the debtor in advance ƒ Action against a party who does not reside and
of final judgment and to hold it for purposes of is not found in the Philippines, OR on whom
satisfying the said judgment. summons may be served by publication.
ƒ To enable the court to acquire jurisdiction over
the action by the actual or constructive seizure NOTE: the rule also refers to persons on whom
of the property in those instances where summons may be served by publication and
personal service of summons on the creditor against whose property, preliminary attachment
cannot be effected. [Quasha vs. Juan (1982)] may be availed of such as:
- Residents defendants whose identity or whose
a. Grounds for issuance of writ of attachment whereabouts are unknown (Rule 14.14)
[Rule 57.1] (Asked in 2001 and 2005) - Resident defendants who are temporarily out
of the country (14.16)
A preliminary attachment may be applied for
ƒ at the commencement of the action or
ƒ at any time before the entry of judgment.
Stages in the grant of preliminary attachment
It may be applied for by the plaintiff OR any proper ƒ The court issues the order granting the
party (including a defendant who filed a application
counterclaim, cross-claim, or a third party ƒ The writ of attachment issues pursuant to the
complaint) order granting the writ
ƒ The writ is implemented
There are only specific situations where preliminary
attachment may issue: For the first two stages, jurisdiction over the person
ƒ Action for recovery of a specified amount of of the defendant is NOT necessary. However, once
money or damages, EXCEPT moral and the implementation of the writ commences, the
exemplary, court must have acquired jurisdiction over the
- on a cause of action arising from law, defendant. [Cuartero, supra]
contract, quasi-contract, delict, or quasi-
delict b. Requisites
- against a party who is about to depart from
the Philippines with intent to defraud his ƒ Case must be any of those where preliminary
creditors; attachment is proper
ƒ Applicant must file a motion (ex parte or with
ƒ Action for money or property, embezzled or notice and hearing)
fraudulently misapplied or converted to his own ƒ Applicant must show by affidavit (under oath)
use by either: that there is no sufficient security for the claim
- a public officer, an officer of a corporation, sought to be enforced;
an attorney, factor, broker, agent, or clerk, in ƒ Applicant must post an attachment bond
the course of his employment as such, executed to the adverse party (Rule 57.3)
- OR by any other person in a fiduciary
capacity, or for a willful violation of duty; c. Issuance and contents of order of
attachment; affidavit and bond
ƒ Action to recover the possession of property
unjustly or fraudulently taken, detained or Issuance and contents of order of attachment
converted, [Rule 57.2]
- when the property, or any part thereof, has ƒ An order of attachment may be issued EITHER
been concealed, removed, or disposed of to - ex parte or
prevent its being found or taken by the - upon motion with notice and hearing
applicant or an authorized person; by the court in which the action is pending,

NOTE: rule makes no distinction between real ƒ It must require the sheriff of the court to attach
and personal property [Riano] so much of the property in the Philippines of the
party against whom it is issued, not exempt
ƒ Action against a party who has been guilty of a from execution, as may be sufficient to satisfy
fraud in contracting the debt or incurring the the applicant's demand, EXCEPT if such party
obligation upon which the action is brought, OR makes deposit or gives bond in an amount equal
in the performance thereof; to that fixed in the order. The amount may be
- sufficient to satisfy applicant’s demand, or
NOTE: the delivery of counterfeit money or - the value of the property to be attached,
knowingly issuing a bounced check are exclusive of costs.
considered as grounds under this rule [Riano]
REMEDIAL LAW REVIEWER

ƒ Several writs may be issued at the same time to until jurisdiction over the person is acquired by
the sheriffs of the courts of different judicial service of summons. Otherwise, the implementation
166 regions. is null and void. [Riano]

Contents of affidavit of applicant [Rule 57.3] EXCEPTIONS TO CONTEMPORANEOUS SERVICE OF


An order of attachment shall be granted only when it SUMMONS: [Rule 57.5]
appears in the affidavit that: ƒ Summons could not be served personally or by
ƒ a sufficient cause of action exists substituted service despite diligent efforts, or
ƒ the case is one of those mentioned in 57.1 ƒ Defendant is a resident of the Philippines
ƒ there is no other sufficient security for the temporarily absent therefrom, or
claim sought to be enforced by the action ƒ Defendant is a non-resident, or
ƒ the amount due to the applicant or the value of ƒ The action is in rem or quasi in rem.
the property the possession of which he is
entitled to recover, is as much as the sum for Sheriff’s Return [57.6]
which the order is granted above all legal The sheriff, after enforcing the writ, shall make a
counterclaims. return to the court which issued the writ stating the
ff:
The affidavit and the bond must be filed with the ƒ a full statement of his proceedings under the
court before the order issues. writ
ƒ a complete inventory of the property attached,
Condition of applicant’s bond [Rule 57.4] together with any counter-bond given by the
Applicant must give a bond executed to the adverse party against whom attachment is issued
party in the amount fixed by the court in its order
granting the issuance of the writ conditioned that The sheriff shall serve copies of the return to the
the applicant will pay: applicant.
ƒ all the costs which may be adjudged to the
adverse party and Manner of attachment of real and personal
ƒ all damages which the adverse party may sustain property [Rule 57.7]:
by reason of the attachment if the court shall ƒ Real property, or growing crops thereon, or
finally adjudge that the applicant was not any interest therein
entitled thereto. - filing with the registry of deeds:
o a copy of the order, together with a
NOTE: the bond shall only be applied to all damages description of the property attached,
sustained due to the attachment. It cannot answer o notice that it is attached, or that such real
for those that do not arise by reason of the property and any interest therein held by or
attachment (Riano). standing in the name of such other person
are attached,
d. Manner of attaching real and personal - leaving a copy of such order, description, and
property; when property attached is claimed notice with the occupant of the property, if
by third person any, or with such other person or his agent if
found within the province.
Manner of attaching property [Rule 57.5]
The sheriff enforcing the writ shall attach only so Where the property has been brought under the
much of the property in the Philippines of the operation of either the Land Registration Act or
adverse party not exempt from execution as may be the Property Registration Decree, the notice
sufficient to satisfy the applicant’s demand, UNLESS shall contain a reference to the number of the
ƒ Party against whom writ is issued makes a certificate of title, the volume and page in the
deposit with the court from which the writ is registration book where the certificate is
issued, or registered, and the registered owner or owners
ƒ He gives a counter-bond executed to the thereof.
applicant
ƒ Personal property capable of manual delivery
The levy on attachment shall be preceded or - by taking and safely keeping it in the sheriff’s
contemporaneously accompanied by service on the custody, after issuing the corresponding
defendant within the Philippines of: receipt therefor;
ƒ summons
ƒ copy of complaint ƒ Stocks or shares, or an interest in stocks or
ƒ application for attachment shares, of any corporation or company
ƒ affidavit and bond of applicant - by leaving with the president or managing
ƒ order and writ of attachment. agent thereof,
o a copy of the writ, and
e. Rule on prior or contemporaneous service o a notice stating that the stock or interest of
the party against whom the attachment is
of summons issued is attached in pursuance of such writ;
General Rule: A writ of attachment may be issued
ƒ Debts and credits, including bank deposits,
ex parte even before the summons is served upon
financial interest, royalties, commissions, and
the defendant. BUT a writ may not be implemented
other personal property not capable of manual
REMEDIAL LAW REVIEWER

delivery - having in their possession or under their


- by leaving with the person owing such debts, control any credits or other similar personal
or having in his possession or under his property belonging to the adverse party, or
control, such credits or other personal - owing any debts to him, at the time of service 167
property, or with his agent, upon them of the copy of the writ of
o a copy of the writ, and attachment and notice
o A notice that the debts owing by him to the shall be liable to the applicant for the amount of
party against whom attachment is issued, such credits, debts or other similar personal
and the credits and other personal property property, until the attachment is discharged, or
in his possession, or under his control, any judgment recovered by him is satisfied, unless
belonging to said party, are attached in such property is delivered or transferred, or such
pursuance of such writ; debts are paid, to the clerk, sheriff, or other
proper officer of the court issuing the attachment.
ƒ Interest of the party whom attachment is
issued in property belonging to the estate of Garnishment - a species of attachment for reaching
the decedent the property or credits pertaining or payable to a
- by serving the executor or administrator or judgment debtor (asked in the 1999 Bar Exams in
other personal representative of the decedent comparison with Attachment). It is a warning to a
with a copy of the writ and notice that said person who has in possession property or credits of
interest is attached and the judgment debtor not to pay the money nor
- By filing a copy of the writ and notice in the deliver the property to latter but to appear and
office of the clerk of the court in which said answer the plaintiff’s suit.
estate is being settled and served upon the
heir, legatee or devisee concerned. Perla Compania v. Ramolete, 1991: Service of
summons upon the garnishee is not necessary. All
Note: that is necessary is the service upon him of the writ
Property in custodia legis may be attached by: of garnishment, as a consequence of which he
ƒ filing a copy of the writ of attachment with the becomes a virtual party or a forced intervenor in the
proper court or quasi-judicial agency case.
ƒ Serving a notice of attachment upon the
custodian of the property [Rule 57.7] ii. Attachment of interest in property belonging to
the estate of a decedent [RULE 57.9] –
A previously attached property may also be ƒ The attachment of the interest of an heir,
subsequently attached. But the first attachment legatee, or devisee in the property belonging to
shall have priority over subsequent attachments. the estate of a decedent shall not impair the
[Riano] power of the executor, administrator, or other
personal representative of the decedent over
Proceedings Where Attached Property Claimed By such property for the purpose of administration.
Third Person ƒ When any petition for distribution is filed, such
A third person who has a claim to the property personal representative shall report the
attached may avail of the following remedies: attachment to the court, and in the order made
ƒ By terceria – making an affidavit of his title or upon such petition, distribution may be awarded
right to possession, stating the grounds of such to such heir, legatee, or devisee, but the
right or title. The affidavit must be served upon property attached shall be ordered delivered to
the sheriff and the attaching procedure [57.14] the sheriff making the levy, subject to the claim
of such heir, legatee, or devisee, or any person
NOTE: the same procedure under Rule 39.16 is claiming under him.
Followed
Sale of attached property
ƒ Motion for summary hearing on his claim Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with
ƒ File a separate action to nullify the levy with notice to both parties, that
damages due to the unlawful levy and seizure. ƒ the party attached is perishable, or that
ƒ the interests of all the parties to the action will
The remedies stated are CUMULATIVE and any one of be will be subserved by the sale thereof,
them may be resorted to without availing of the the court may order such property to be sold at
other remedies (Ching v CA 423 SCRA 356) public auction in such manner as it may direct, and
the proceeds of such sale to be deposited in court to
f. Discharge of attachment and the counter- abide the judgment in the action. [Rule 57.11]
bond
NOTE: This is an exception to the general rule that
Effects of attachment the issuance of a writ of attachment is only a
i. Attachment of debts, credits and all other similar provisional remedy, thus no sale of the property
personal property [RULE 57.8] – should be made during the pendency of the action.
ƒ All persons [Riano]
REMEDIAL LAW REVIEWER

Recovery Upon the Counter-Bond; Disposition of


Deposit/ Attached Property After Judgment Such damages may be awarded only after hearing
168 ƒ When the judgment has become executory, the and shall be included in the judgment on the main
surety or sureties on any counter-bond given to case. [Rule 57.20]
secure the payment of the judgment shall
become charged on such counter-bond and Procedure for claiming damages is EXCLUSIVE. Such
bound to pay the judgment obligee upon claims for damages cannot be the subject of an
demand the amount due under the judgment, independent action.
which amount may be recovered from such
surety or sureties after notice and summary EXCEPTIONS:
hearing in the same action. [Rule 57.17] ƒ Where the principal case was dismissed for lack
of jurisdiction by the trial court without giving
ƒ Where the party against whom attachment had opportunity to the party whose property was
been issued has deposited money instead of attached to apply for and prove his claim; and
giving counter-bond, it shall be applied under ƒ Where the damages by reason of the attachment
the direction of the court to the satisfaction of was sustained by a third person who was not a
any judgment rendered in favor of the attaching party to the action wherein such writ was
party, and after satisfying the judgment the issued. [Santos v. CA, 95 Phil 360]
balance shall be refunded to the depositor or his
assignee. 4. Preliminary Injunction
ƒ If the judgment is in favor of the party against a. Definitions and Differences: Preliminary
whom attachment was issued, the whole sum
Injunction and Temporary Restraining Order
deposited must be refunded to him or his
assignee. [Rule 57.18]
A preliminary injunction is an order granted at any
stage of an action or proceeding prior to the
ƒ If judgment be rendered against the attaching
judgment or final order, requiring a party or a court,
party, all the proceeds of sales and money
agency or a person to either
collected or received by the sheriff, under the
ƒ refrain from a particular act or acts or
order of attachment, and all property attached
ƒ require the performance of a particular act or
remaining in any such officer's hands, shall be
acts, in which case it shall be known as a
delivered to the party against whom attachment
preliminary mandatory injunction
was issued, and the order of attachment
discharged. [Rule 57.19]
A suit for injunction is an action in personam. It is an
ancillary or preventive remedy that is meant to be
Discharge of attachment
temporary and subject to the final disposition of the
After a writ of attachment has been enforced, the
principal action [Riano]
party whose property has been attached, or the
person appearing on his behalf, may move for the
Purpose: To prevent future injury and maintain the
discharge of the attachment wholly or in part on the
status quo (i.e. the last actual, peaceable,
security given.
uncontested status which preceded the pending
controversy) for [Kencht vs CA, 1993]
Grounds for discharge:
ƒ Debtor has posted a counter-bond or has made
NOTE: the injunction should not establish new
the requisite cash deposit [Rule 57.12];
relations between the parties but merely re-
ƒ Attachment was improperly or irregularly issued
establish the pre-existing relationship between
[Rule 57.13] as where there is no ground for
them.
attachment, or affidavit and/or bond filed
therefore are defective or insufficient;
TRO vs. Injunction
ƒ Attachment is excessive but the discharge shall
be limited to the excess [Rule 57.13];
ƒ Property attached is exempt from execution TRO INJUNCTION
[Rules 57.2 and 57.5]; May be granted ex Cannot be granted
ƒ Judgment is rendered against the attaching parte if great and without notice and
creditor [Rule 57.19]. irreparable injury hearing
would result otherwise

ƒ A TRO is issued in order to preserve the status


quo until the hearing of the application for
g. Satisfaction of judgment out of property preliminary injunction. (Bacolod City Water v.
Labayen 446 SCRA 110)
attached
ƒ Same requirements for application as
Improper, Irregular or Excessive Attachment
preliminary injunction.
(Asked in the 2008 bar exam)
An application for damages must be filed before the
ƒ An application for a TRO shall be acted upon
trial, or before appeal is perfected, or before the
only after all parties are heard in a summary
judgment becomes executory.
hearing, which shall be conducted within 24
REMEDIAL LAW REVIEWER

hours after the sheriff's return of service and/or General rule: TRO is effective only for a period of
the records are received by the branch selected 20 days from service on the party or person sought
by raffle. [Rule 58.4] to be enjoined
169
Status Quo Order vs. Injunction (Asked in the 2006 Exceptions: If the matter is of extreme urgency and
bar exams) the applicant will suffer grave injustice and
A status quo order is in the nature of a cease and irreparable injury: effective for only 72 hours from
desist order. It is resorted to when the projected issuance
proceedings in the case made the conservation of
the status quo desirable or essential, but the Issued Effectivity:
affected party neither sought such relief nor did the by:
allegations in his pleading sufficiently make out a RTC 20 days, non-extendible (including the
case for a temporary restraining order. original 72 hours)
CA May be effective for 60 days from service
It does NOT direct the doing or undoing of acts but is on the party or person sought to be
an order to maintain the last, actual, peaceable and enjoined.
uncontested state of things which preceded the SC May be effective until further orders
controversy.
c. Kinds of Injunction
b. Requisites
i. Preliminary preventive injunction – prohibits the
Requirements for preliminary injunction [Rule performance of a particular act or acts
58.4]
ƒ There must be a verified application When preventive injunction does not lie:
ƒ The application must show facts entitling the ƒ To restrain collection of taxes (Valley Trading vs
applicant to the relief demanded. CA), EXCEPT where there are special
- It must establish he has a right and the act circumstances that bear the existence of
against which the injunction is directed is irreparable injury. [Churchill & Tait vs Rafferty
violative of such right (PNB v Timbol 451 SCRA (1915)]
163) ƒ To restrain the sale of conjugal properties
ƒ A bond must be filed, unless exempted, in the where the claim can be annotated on the title
court where the action/proceeding is pending, as a lien, such as the husband’s obligation to
in an amount to be fixed by the court (asked in give support. [Saavedra vs Estrada (1931)]
the 2006 Bar exam) ƒ To restrain a mayor proclaimed as duly elected
ƒ Prior notice and hearing for the party/person from assuming his office. [Cereno vs Dictado
sought to be enjoined. (1988)]
ƒ To restrain registered owners of the property
EXCEPTIONS: from selling, disposing and encumbering their
- Great or irreparable injury would result to the property just because the respondents had
applicant before the matter can be heard on executed Deeds of Assignment in favor of
notice. petitioner. [Tayag vs. Lacson (2004)]
o The court may issue a TRO effective for 20 ƒ Against consummated acts. [PNB vs Adi; Rivera
days from service on the party sought to be v. Florendo, 1986; Ramos, Sr. v. CA, 1989; Zabal
enjoined. vs CA]
o Injury is “irreparable” if it is of such EXCEPTION: If the act is of continuing nature
constant and frequent recurrence that no and in derogation of plaintiff’s right at the
fair or reasonable redress can be had outset.
therefore in court of law or where there is ƒ Against disposing of the case on the merits
no standard by which their amount can be [Ortigas and Company Limited Partnership vs CA
measured with reasonable accuracy. (1988)]
- Matter is of extreme urgency and the ƒ To stop the execution of judgment where the
applicant will suffer grave injustice and judgment was already executed. (Meneses vs
irreparable injury Dinglasan)
o Judge may issue ex parte a TRO effective EXCEPTION: But where the lower court enforced
for 72 hours from issuance. its judgment before a party against whom the
o Within 72 hours, judge shall conduct a execution was enforced could elevate her
summary hearing to determine whether the appeal in an injunction suit, which was
TRO shall be extended until the application instituted to prevent said execution, an
for preliminary injunction can be heard. independent petition for injunction in the Court
o Maximum period of effectivity of TRO=20 of Appeals is justified. [Manila Surety and
days (including 72 hrs) Fidelity vs Teodoro (1967)]
ƒ The CFI has no power to issue a writ of
If the application for preliminary injunction is denied injunction against the Register of Deeds if its
or not resolved within said period, the TRO is effect is to render nugatory a writ of execution
deemed automatically vacated. issued by the National Labor Relations
Commission. [Ambrosio vs Salvador (1978)]
EFFECTIVITY OF TRO [58.5]
REMEDIAL LAW REVIEWER

ƒ Transfer of possession of property to party with utilization, exploration, and/or development of


disputed legal title via preliminary injunction the natural resources of the Philippines.
170
EXCEPTIONS: ƒ Sec. 2, PD 385: no restraining order, temporary
ƒ Forcible entry and unlawful detainer cases in or permanent injunction shall be issued by the
which the court may issue preliminary court against any government financial
mandatory injunction [Rule 70.15] institution in any action taken by such
ƒ Property covered by Torrens Title when there is institution in compliance with the mandatory
a clear finding of ownership and possession of foreclosure whether such restraining order,
the land. (GSIS vs Florendo) temporary or permanent injunction is sought by
the borrower(s) or any third party or parties,
Other instances where writ is not available: except after due hearing in which it is
ƒ Sec. 3, RA 8975: No court, except the Supreme established by the borrower and admitted by
Court, shall issue any TRO, preliminary the government financial institution concerned
injunction or preliminary mandatory injunction that twenty percent (20%) of the outstanding
against the government, or any of its arrearages has been paid after the filing of
subdivisions, officials or any person or entity, foreclosure proceedings.
whether public or private acting under the
government direction, to restrain, prohibit or ii. Preliminary mandatory injunction – requires the
compel the following acts: performance of a particular act or acts
- Acquisition, clearance and development of
the right-of-way and/or site or location of any Requisites of mandatory injunction:
national government project; ƒ Invasion of the right is material and substantial
- Bidding or awarding of contract/ project of ƒ Right of the complainant is clear and
the national government as defined under unmistakable
Section 2 ƒ Urgent and paramount necessity for the writ to
- Commencement prosecution, execution, prevent serious damages [Bautista v. Barcelona,
implementation, operation of any such 100 Phil 1078]
contract or project; ƒ The effect would not be to create a new
- Termination or rescission of any such relation between the parties [Alvaro v. Zapata,
contract/project; and (1982)]
- The undertaking or authorization of any other
lawful activity necessary for such Mandatory injunction does not lie in the following
contract/project. instances:
ƒ to compel cohabitation [Arroyo v. Vasquez
This prohibition shall apply in all cases, disputes (1921)]
or controversies instituted by a private party, ƒ cancellation of attachment [Levy Hermanos v.
including but not limited to cases filed by Lacson (1940)]
bidders or those claiming to have rights through ƒ release imported goods pending hearing before
such bidders involving such contract/project. the Commissioner of Customs. [Commissioner of
Customs v. Cloribel (1967)]
This prohibition shall NOT APPLY when the ƒ to take property out of the possession or control
matter is of extreme urgency involving a of one party and place it into that of another
constitutional issue, such that unless a whose title has not clearly been established [Pio
temporary restraining order is issued, grave v. Marcos (1974)]
injustice and irreparable injury will arise.
INJUNCTION PROHIBITION
The applicant shall file a bond, in an amount to Generally directed Directed against a
be fixed by the court, which bond shall accrue against a party in the court/tribunal/person
in favor of the government if the court should action exercising judicial
finally decide that the applicant was not powers
entitled to the relief sought. Does not involve the may be on the ground
court’s jurisdiction that the court against
ƒ Sec. 78, RA 9136: the implementation of the whom the writ is sought
provisions of the Electric Power Industry Reform acted without/in excess
Act of 2001 shall not be restrained or enjoined of jurisdiction
except by an order issued by the Supreme Court. May be the main action Always a main action
itself, or just a
ƒ Sec. 1, PD 605: no court of the Philippines shall provisional remedy in
have jurisdiction to issue any restraining order, the main action
preliminary injunction or preliminary mandatory
injunction in any case involving or growing out d. When writ may be issued
of the issuance, approval or disapproval,
revocation or suspension of, or any action
e. Grounds for issuance of preliminary
whatsoever by the proper administrative official
or body on concessions, licenses, permits,
injunction [Rule 58.3]
patents, or public grants of any kind in (ASKED IN THE 2006 BAR EXAM)
connection with the disposition, exploitation,
REMEDIAL LAW REVIEWER

ƒ Applicant is entitled to the relief demanded,


and the relief consists in If it appears that the extent of the preliminary
- restraining the commission or continuance of injunction or restraining order granted is too great,
the acts or acts complained of, or it may be modified. 171
- in requiring performance of an act or acts;
ƒ Commission, continuance or non-performance of Global Injunction of a Foreign Court (Asked in the
the acts complained of during the litigation 2007 Bar Exam)
would probably work injustice to the applicant; A global injunction issued by a foreign court to
or prevent dissipation of funds against the defendant
ƒ A party, court, agency or a person is doing, who has assets in the Philippines may be enforced in
threatening, or is attempting to do, or is our jurisdiction, subject to our procedural laws
procuring or suffering to be done, some act or (Suggested Answers to the 2007 Bar Exam, UP Law
acts probably in violation of the rights of the Center)
applicant respecting the subject of the action or
proceeding, and tending to render the judgment As a general rule, no sovereign is bound to give
ineffectual. effect within its dominion to a judgment or order of
a tribunal of another country.
Rule 58 Provides for both a Main Action for
Injunction and an Ancillary Writ of Preliminary However, under the rules of comity, utility and
Injunction (Asked in the 2006 Bar Exam) convenience, nations have established a usage
among civilized states by which final judgments of
INJUNCTION PRELIMINARY foreign courts of competent jurisdiction are
INJUNCTION reciprocally respected and rendered efficacious
Main action Ancillary; exists only as under certain conditions that may vary in different
part or incident of an countries. [St. Aviation Services vs. Grand
independent action or International Airways (2006)]
proceeding
seeks a judgment sole object of which is to Note: In Pangalangan and Coquia’s book on Conflict
embodying a final preserve the status quo of Laws (2000), citing Cheshire, it was stated that an
injunction until the merits can be interlocutory or provisional judgment of a foreign
heard court, creates no obligation on the forum court to
Based on all evidence based solely on initial enforce it.
gathered by court to and incomplete evidence
determine main action h. In relation to RA 8975, Ban on issuance of
TRO or Writ of Injunction in cases involving
As a matter of course, in an action for injunction, government infrastructure projects
the auxiliary remedy of preliminary injunction, Sec. 3, RA 8975: No court, except the Supreme
whether prohibitory or mandatory, may issue. Court, shall issue any TRO, preliminary injunction or
preliminary mandatory injunction against the
The evidence needed to establish the requisites for a government, or any of its subdivisions, officials or
preliminary injunction need not be conclusive or any person or entity, whether public or private
complete. It is generally based on initial, acting under the government direction, to restrain,
incomplete evidence that gives the court an idea of prohibit or compel the following acts:
the justification for the preliminary injunction ƒ Acquisition, clearance and development of the
pending the decision of the case on the merits. . right-of-way and/or site or location of any
national government project;
NOTE: It does not necessarily proceed that when a ƒ Bidding or awarding of contract/ project of the
writ of preliminary injunction is issued, a final national government as defined under Section 2
injunction will follow [Urbanes vs. CA (2001)] hereof;
ƒ Commencement prosecution, execution,
f. Grounds for objection to, or for the implementation, operation of any such contract
dissolution of injunction or restraining order or project;
ƒ Termination or rescission of any such
Grounds for Objection to/Motion for Dissolution of contract/project; and
Injunction/Restraining Order [Rule 58.6] ƒ The undertaking or authorization of any other
ƒ Insufficiency of application lawful activity necessary for such
ƒ other grounds (e.g. applicant’s bond is contract/project.
insufficient/defective), upon affidavits of the
party or person enjoined This prohibition shall apply in all cases, disputes
ƒ if it appears after hearing that although the or controversies instituted by a private party,
applicant is entitled to the injunction or including but not limited to cases filed by
restraining order, the issuance or continuance bidders or those claiming to have rights through
thereof would cause irreparable damage to the such bidders involving such contract/project.
party/person enjoined, while the applicant can
be fully compensated for such damages as he This prohibition shall NOT APPLY when the
may suffer, provided the former files a bond matter is of extreme urgency involving a
REMEDIAL LAW REVIEWER

constitutional issue, such that unless a judgment, or otherwise to carry the judgment
temporary restraining order is issued, grave into effect;
172 injustice and irreparable injury will arise. The ƒ Whenever in other cases it appears that the
applicant shall file a bond, in an amount to be appointment of a receiver is the most
fixed by the court, which bond shall accrue in convenient and feasible means of preserving,
favor of the government if the court should administering, or disposing of the property in
finally decide that the applicant was not litigation. [Rule 59.1]
entitled to the relief sought.
Specific situations when a receiver may be
5. Receivership (Asked in the 2001 appointed
ƒ If a spouse without just cause abandons the
Bar Exam) other or fails to comply with his/her obligations
to the family, the aggrieved spouse may petition
Nature the court for receivership. [Family Code, Article
Receiver: person appointed by the court in behalf of 101]
all the parties to the action for the purpose of ƒ The court may appoint a receiver of the
preserving and conserving the property in litigation property of the judgment obligor; and it may
and prevent its possible destruction or dissipation, if also forbid a transfer or other disposition of, or
it were left in the possession of any of the parties. any interference with, the property of the
judgment obligor not exempt from execution.
Purpose: The purpose of a receivership as a [Rule 39.41]
provisional remedy is to protect and preserve the ƒ After the perfection of an appeal, the trial court
rights of the parties during the pendency of the main retains jurisdiction to appoint a receiver of the
action, during the pendency of an appeal or as an property under litigation since this matter does
aid in the execution of a judgment when the writ of not touch upon the subject of the appeal. [Rule
execution has been returned unsatisfied. The 41.9; Acuña v. Caluag (1957)]
receivership under Rule 59 is directed to the ƒ After final judgment, a receiver may be
property which is the subject of the action and does appointed as an aid to the execution of
not refer to the receivership authorized under judgment. [Philippine Trust Company v.
banking laws and other rules or laws. Rule 59 Santamaria (1929)]
presupposes that there is an action and that the ƒ Appointment of a receiver over the property in
property subject of the action requires its custodia legis may be allowed when it is
preservation. Receivership under Rule 59 is ancillary justified by special circumstances, as when it is
to the main action. (Riano). reasonably necessary to secure and protect the
rights of the real owner. [Dolar v. Sundiam
Commodities Storage v. CA (1997): The guiding (1971)]
principle is the prevention of imminent danger to
the property. If an action by its nature, does not Alcantara v. Abbas (1963): The general rule is that
require such protection or preservation, said remedy neither party to the litigation should be appointed as
cannot be applied for and granted. a receiver without the consent of the other because
a receiver is supposed to be an impartial and
Arranza v. B.F. Homes (2000): Receivership is disinterested person.
aimed at the preservation of, and at making more
secure, existing rights; it cannot be used as an Abrigo v. Kayanan (1983): A clerk of court should
instrument for the destruction of those rights. not be appointed as a receiver as he is already
burdened with his official duties.
a. Cases when receiver may be appointed
b. Requisites
ƒ When it appears from the verified application
and other proof that the applicant has an
c. Requirements before issuance of an Order
interest in the property or fund which is the
subject of the action or proceeding, and that
Requisites and Procedure
such property or fund is in danger of being lost,
ƒ Verified application filed by the party
removed, or materially injured unless a receiver
requesting for the appointment of the receiver;
be appointed to administer and preserve it;
ƒ Applicant must have an interest in the property
ƒ When it appears in an action by the mortgagee
or funds subject of the action;
for the foreclosure of a mortgage that the
ƒ Applicant must show that the property or funds
property is in danger of being wasted or
is in danger of being lost, wasted, or dissipated;
dissipated or materially injured, and that its
ƒ Application must be with notice and must be set
value is probably insufficient to discharge the
for hearing;
mortgage debt, or that the parties have so
ƒ Before appointing a receiver, the court shall
stipulated in the contract of mortgage;
require applicant to post a bond in favor of the
ƒ After judgment, to preserve the property during
adverse party. When the receiver is appointed,
the pendency of an appeal, or to dispose of it
the receiver shall file a bond then take his oath.
according to the judgment, or to aid execution
ƒ Before entering upon his duties, the receiver
when the execution has been returned
must be sworn to perform his duties faithfully.
unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the
REMEDIAL LAW REVIEWER

Who appoints receiver ƒ notice to all interested parties and hearing


ƒ court where the action is pending [Rule 59.8]
ƒ CA
ƒ SC Effect: 173
ƒ During the pendency of an appeal, the appellate ƒ Settle accounts of receiver
court may allow an application for the ƒ Delivery of funds to person entitled
appointment of a receiver to be filed in and ƒ Discharge of receiver
decided by the court of origin. [Rule 59.1] ƒ Receiver entitled to reasonable compensation to
be taxed as costs against defeated party.
Denial of application or discharge of receiver
ƒ If the appointment sought or granted is without 6. Replevin (Asked in the 1999 Bar
sufficient cause
ƒ Adverse party files a sufficient bond to answer Exam)
for damages [Rule 59.3]
ƒ Bond posted by the applicant for grant of a. When may writ be issued
receivership is insufficient
ƒ Bond of receiver is insufficient Nature
Replevin may be a main action or provisional
d. Powers of a receiver remedy. As a principal action its ultimate goal is to
recover personal property capable of manual
delivery wrongfully detained by a person. Used in
ƒ Bring and defend in such capacity actions in his
this sense, it is considered as a suit in itself.
own name with leave of court
Replevin under Rule 60 is the provisional remedy.
ƒ Take and keep possession of the property in
[Riano]
controversy
ƒ Receive rents
ƒ Collect debts due to himself as receiver or to REPLEVIN PRELIMINARY
the fund, property, estate, person, or ATTACHMENT
corporation of which he is the receiver Available only where the Available even if the
ƒ Compound for and compromise the same principal relief sought in recovery of personal
ƒ Make transfers the action is recovery of property is only an
ƒ Pay outstanding debts personal property, the incidental relief sought
ƒ Divide the money and other property that shall other reliefs (e.g. in the action.
remain among the persons legally entitled to damages) being merely
receive the same’ incidental thereto.
ƒ Generally, to do such acts respecting the Can be sought only May be resorted to even
property as the court may authorize where the defendant is if the personalty is in the
ƒ Invest funds in his hands, ONLY by order of the in actual or constructive custody of a third
court upon the written consent of all the possession of the person.
parties. [Rule 59.6] personalty involved.
Extends only to personal Extends to all kinds of
No action may be filed against a receiver without property capable of property, whether real,
leave of the court which appointed him. manual delivery. personal or incorporeal.
Available to recover To recover the
Liability for refusal or neglect to deliver property personal property even if possession of personal
to receiver the same is not property unjustly
ƒ Contempt; and concealed, removed or detained (presupposed
ƒ Be liable to the receiver for the money or the disposed of. that the same is being
value of the property and other things so concealed, removed or
refused or neglected to be surrendered together disposed of to prevent
with all damages that may have been sustained its being found or taken
by the party or parties entitled thereto as a by the applicant.
consequence of such refusal or neglect. [Rule Cannot be availed of if Can still be resorted to
59.7] the property is in even if the property is in
custodia legis (e.g. custodia legis.
e. Two (2) kinds of bond under attachment,
seized under a search
ƒ Applicant’s bond warrant).
ƒ Receiver’s bond
EXCEPT:
ƒ when the seizure is
f. Termination of receivership
illegal; [Bagalihog v.
Fernandez (1991)]
Ground: the necessity for a receiver no longer exists
and
ƒ where there is
Procedure:
reason to believe
ƒ motu proprio or on motion of either party
that the seizure will
not anymore be
REMEDIAL LAW REVIEWER

followed by the A writ of replevin may be served anywhere in the


filing of the criminal Philippines.
174 action in court or
there are conflicting d. Sheriff’s duty in the implementation of the
claims. [Chua v. CA writ; when property is claimed by third party
(1993)]
Disposition of Property by Sheriff
b. Requisites ƒ The sheriff shall retain the property for 5 days.
The adverse party may object to the sufficiency
Application of the bond or surety or he may file a redelivery
Who may apply: party praying for the recovery of bond.
possession of personal property. Applicant need not ƒ If after 5 days and the adverse party failed to
be the owner. It is enough that he has right to its object or his redelivery bond is insufficient, the
possession. (Yang vs Valdez, 177 SCRA 141) sheriff shall deliver the property to the
applicant. [Rule 60.6]
When: ƒ The defendant is entitled to the return of the
ƒ at the commencement of the action or property under a writ of replevin if:
ƒ before the answer [unlike attachment, - He seasonably posts a redelivery bond [Rule
injunction and support pendente lite (anytime 60.5]
before final judgment) and receivership - Plaintiff’s bond is found to be insufficient or
(anytime even after final judgment)]. defective and is not replaced with proper
bond
The applicant must show by his own affidavit or that - Property is not delivered to the plaintiff for
of some other person who personally knows the any reason [Rule 60.6]
facts:
ƒ That the applicant is the owner of the property Where Property Claimed by Third Person
claimed, particularly describing it, or is entitled When third party claims the property and such
to the possession thereof; person makes affidavit of his title thereto stating his
ƒ That the property is wrongfully detained by the grounds, and serves such affidavit upon the sheriff
adverse party, alleging the cause of detention while the latter has possession of the property and a
thereof according to the best of his knowledge, copy upon the applicant, the sheriff SHALL NOT BE
information, and belief; BOUND to keep property under replevin or deliver
ƒ That the property has not been distrained or property to the applicant UNLESS the applicant files
taken for a tax assessment or a fine pursuant to a bond approved by the court in favor of the third
law, or seized under a writ of execution or person (the bond should not be less than the value of
preliminary attachment, or otherwise placed stated under Sec. 60.2; the court shall determine
under custodia legis, or if so seized, that it is the value in case of disagreement).
exempt from such seizure or custody; and
ƒ The actual market value of the property. [Rule No claim for damages for the taking or keeping of
60.2] the property may be enforced against the bond
UNLESS the action is filed within 120 days from filing
Bond of the bond.
The applicant must also give a bond, executed to the
adverse party in double the value of the property as
stated in the affidavit. [Rule 60.2]
XIX. SPECIAL CIVIL ACTIONS
c. Affidavit and bond; Redelivery Bond 1. Nature of special civil actions
2. Ordinary civil actions versus special civil
Please refer to immediately preceding subsection actions
for discussion on affidavit and bond. 3. Jurisdiction and venue
4. Interpleader
Redelivery bond: The adverse party may, at any
5. Declaratory Reliefs and Similar Remedies
time before the delivery of the property to the
applicant, require the return of the property by 6. Review of Judgments and Final Orders or
filing with the court where the action is pending a Resolution of the COMELEC and COA
bond executed to the applicant, in double the value 7. Certiorari, Prohibition and Mandamus
of the property as stated in the applicant’s affidavit. 8. Quo Warranto
[Rule 60.5] 9. Expropriation
10. Foreclosure of Real Estate Mortgage
Order of Replevin 11. Partition
Upon the filing of affidavit and approval of the bond,
12. Forcible Entry and Unlawful Detainer
the court shall issue an order and the corresponding
writ of replevin describing the personal property 13. Contempt
alleged to be wrongfully detained and requiring the
sheriff forthwith to take such property into his 1. Nature of special civil actions
custody. [Rule 60.3]
REMEDIAL LAW REVIEWER

Rules on ordinary civil actions shall apply to special


civil actions insofar as they are not inconsistent with 3 special civil actions within the jurisdiction of
or may supplement the rules governing the latter. inferior courts:
[Rule 1.3] ƒ interpleader, provided the amount involved is 175
within its jurisdiction [Makati Development
Since a civil action in general is one by which a party Corp. v. Tanjuatco (1969)]
sues another for the enforcement of a right, or the ƒ ejectment suits [Rule 70]
prevention or redress of a wrong, a special civil ƒ contempt [Rule 71]
action is generally brought or filed for the same
purpose. [Riano] 4. Interpleader
How commenced: Definition: A remedy whereby a person who has
ƒ COMPLAINT property in his possession or has an obligation to
- interpleader render wholly or partially, without claiming any right
- expropriation in both, comes to court and asks that the defendants
- foreclosure of real estate mortgage who have made conflicting claims upon the same
- partition property or who consider themselves entitled to
- forcible entry and unlawful detainer demand compliance with the obligation be required
ƒ PETITION to litigate among themselves in order to determine
- declaratory relief who is entitled to the property or payment or the
- review of adjudications of Constitutional obligation [Beltran v. PHHC, 1969]
commissions
- certiorari Purpose
- prohibition ƒ To compel conflicting claimants to interplead
- mandamus and litigate their several claims among
- quo warranto themselves. [Rule 62.1]
- contempt ƒ To protect a person against double vexation in
respect of one liability [Beltran, supra]
Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas corpus issued a. Requisites for interpleader
by RTCs are enforceable within their respective
ƒ There must be two or more claimants with
judicial regions. [B.P. 129]
adverse or conflicting interests to a property in
the custody or possession of the plaintiff.
2. Ordinary civil actions versus ƒ The plaintiff has NO CLAIM upon the subject
special civil actions matter of the adverse claims, or if he has an
interest at all, such interest is NOT DISPUTED by
The fact that an action is subject to special rules the claimants.
other than those applicable to ordinary civil actions ƒ The subject matter of the adverse claims must
is what makes a civil action special. [Riano] be one and the same.

Ordinary Civil Action Special Civil Action Procedure


Governed by ordinary Also governed by Complaint filed by the person against whom
rules ordinary rules but conflicting claims are or may be made. [ibid]
subject to specifically
prescribed rules (Rules The docket and other lawful fees paid by the
62 to 71) complainant, and costs and litigation expenses shall
constitute a lien or charge upon the subject matter
Some concepts applicable to ordinary civil actions of the action, unless otherwise ordered by the court.
are not applicable in special civil actions. E.g.: [R62.7]
ƒ the definition of a cause of action requiring p
violation of a right does not appear to be Court order requiring the conflicting claimants to
relevant to the special civil action of interplead with one another. If the interests of
declaratory relief and interpleader; justice so require, the court may direct that the
ƒ ordinary civil actions may be filed initially in subject matter be paid or delivered to the court.
MTC or RTC depending on jurisdictional amount [Rule 62.2]
while some special civil actions can only be filed p
in MTC (forcible entry and unlawful detainer) Summons, copy of complaint and order served upon
and some cannot be commenced in MTC the conflicting claimants. [Rule 62.3]
(certiorari, prohibition, mandamus). [Riano] p
Each claimant shall file his answer within 15 days
3. Jurisdiction and venue from service of the summons, serving a copy thereof
upon each of the other conflicting claimants, who
Venue is governed by the general rules on venue, may file their reply thereto.
except as otherwise indicated in the particular rules p
for special civil actions. If claimant fails to plead within the time herein
REMEDIAL LAW REVIEWER

fixed, the court may, on motion, declare him in Validity of a local Prosecutor or attorney
default and render judgment barring him from any government ordinance of the LGU
176 claim in respect to the subject matter. Constitutionality of a local Sol Gen
p government ordinance
Within the time for filing an answer, each claimant
may file a motion to dismiss. Grounds: Baguio Citizens Action vs. City Council of Baguio
ƒ impropriety of the interpleader action, or (1983): Non-joinder of interested persons is not a
ƒ other appropriate grounds specified in Rule 16 jurisdictional defect; but persons not joined shall
not be prejudiced in their interests unless otherwise
The period to file the answer shall be tolled. provided by the Rules.
p
If the motion is denied, an answer may be filed Commission of Customs vs. Cloribel (1977): A
within the remaining period, in no case less than 5 third-party complaint is not available in a
days (reckoned from notice of denial) [Rule 62.4]. declaratory relief.
p
The parties may file counterclaims, cross-claims, Visayan Packing vs. Reparations Commission
third-party complaints and responsive pleadings (1987): A compulsory counterclaim may be set up in
thereto. [Rule 62.5] a petition for declaratory relief.
p
Pre-trial Where filed
ƒ in the proper RTC [Rule 63.1]
p
ƒ not within the original jurisdiction of the
Court shall determine conflicting claimants’
Supreme Court, even if pure questions of law
respective rights and adjudicate their several claims.
are involved. [Remotigue vs. Osmeña (1967)]
[Rule 62.6]
b. Requisites of action for declaratory relief
b. When to file
ƒ subject matter of the controversy must be a
Whenever conflicting claims upon the same subject
deed, will, contract or other written
matter are or may be made against a person who
instrument, statute, executive order or
claims no interest in the subject matter or an
regulation, or ordinance [Rule 63.1];
interest which is not disputed by the claimants.
ƒ the terms of said documents and the validity
[Rule 62.1]
thereof are doubtful and require judicial
construction [Santos v. Aquino, 94 Phil 65]
Cannot be availed of to resolve the issue of breach
ƒ no breach of the documents in question.
of undertakings made by defendants, which should
[Reparations Commission v. Northern Lines
be resolved in an ordinary action for specific
(1970)] Otherwise, an ordinary civil action is the
performance or other relief [Beltran, supra].
remedy.
- Concept of a cause of action in ordinary civil
5. Declaratory Reliefs and Similar actions does not apply.
Remedies - If before the final termination of the case, a
breach or violation of an instrument or a
a. Who may file the action statute, etc. should take place, the action
may be converted into an ordinary action.
ƒ a person interested under a deed, will, contract [Rule 63.6]
or other written instrument ƒ actual justiciable controversy [Velarde v SJS
ƒ a person whose rights are affected by a statute, (2004)]
executive order or regulation, ordinance or any ƒ adverse interests between the parties
other governmental regulation [Rule 63.1] - A declaratory relief is not available for a
declaration of citizenship [Villa-Abrille vs.
Parties Republic (1956)] or the validity of a
ƒ all persons who have or claim any interest registration certificate [Obiles vs. Republic
which would be affected by the declaration (1953)] as they are unilateral in nature and
[Rule 63.2] without conflicting adverse interests.
ƒ If action involves the validity of a ƒ issue must be ripe for judicial determination
statute/executive order/regulation/other [Velarde v SJS (2004)]
governmental regulation, the Solicitor General ƒ adequate relief is not available through other
shall be notified. [Rule 63.3] means or other forms of action or proceedings.
ƒ If action involves the validity of a local [Ollada v. Central Bank (1962)]
government ordinance, the prosecutor/attorney - A court decision cannot be the subject of a
of the LGU involved shall be notified. [Rule declaratory relief since there exists other
63.4] remedies, i.e., appeal or a motion for
clarificatory judgment [Tanda vs. Aldaya
(1956)]
Subject Matter Notice Given To
Validity of a statute, EO or Sol Gen
regulation, or any c. When court may refuse to make judicial
governmental regulation declaration
REMEDIAL LAW REVIEWER

from being cast upon title to real property or any


ƒ where a decision would not terminate the interest therein.
uncertainty or controversy which gave rise to Art. 481. The procedure for the quieting of title or
the action, or the removal of a cloud therefrom shall be governed 177
ƒ where the declaration or construction is not by such rules of court as the Supreme Court shall
necessary and proper under the circumstances. promulgated.
[Rule 63.5]
6. Review of Judgments and Final
d. Conversion to ordinary action
Orders or Resolution of the COMELEC
Requisites: and COA
ƒ before the final termination of the case
ƒ a breach or violation of an instrument or a Scope
statute, executive order or regulation, ƒ Applicable only to judgments and final orders of
ordinance, or any other governmental regulation the COMELEC and COA [Rule 64.1]
should take place ƒ Judgments/orders of the Civil Service
Commission are now reviewable by the Court of
Effect: The parties shall be allowed to file such Appeals under Rule 43, eliminating recourse to
pleadings as may be necessary or proper. [Rule 63.6] the Supreme Court (SC). [RA 7902; SC Revised
Administrative Circular No. 1-95]
e. Proceedings considered as similar ƒ An aggrieved party may bring the questioned
remedies judgment, etc. directly to the SC on certiorari
under Rule 65. [Rule 64.2]
i. Reformation of an instrument (Arts. 1359-1369
Such petition for certiorari shall not stay the
Civil Code)
execution of the judgment, etc. sought to be
reviewed unless otherwise directed by the Supreme
Definition: Art. 1359. When, there having been a
Court [Rule 64.8]
meeting of the minds of the parties to a contract,
their true intention is not expressed in the
Procedure
instrument purporting to embody the agreement, by
reason of mistake, fraud, inequitable conduct or
accident, one of the parties may ask for the File a petition for review.
reformation of the instrument to the end that such When [Rule 64.3]:
true intention may be expressed. ƒ Within 30 days from notice of judgment/final
order/resolution sought to be reviewed
If mistake, fraud, inequitable conduct, or accident ƒ Filing of motion for reconsideration/new trial
has prevented a meeting of the minds of the parties, with Constitutional commission interrupts the
the proper remedy is not reformation of the 30-day period. If motion is denied, aggrieved
instrument but annulment of the contract. party may file petition within remaining period,
Art. 1369. The procedure for the reformation of which shall not be less than 5 days from notice
instrument shall be governed by rules of court to be of denial.
promulgated by the Supreme Court
Form [Rule 64.5]: verified and accompanied by
ii. Consolidation of ownership (Art. 1607 Civil Code) (annexes):
[Rule 63.1 par. 2] ƒ a clearly legible duplicate original or certified
true copy of the subject judgment, etc.
Definition: Art. 1607. In case of real property, the ƒ certified true copies of such material portions of
consolidation of ownership in the vendee by virtue of the record referred to in the petition
the failure of the vendor to comply with the ƒ other documents relevant and pertinent to the
provisions of article 1616 shall not be recorded in petition
the Registry of Property without a judicial order, ƒ proof of service of a copy of the petition on the
after the vendor has been duly heard. Commission and the adverse party
ƒ proof of the timely payment of the docket and
iii. Quieting of title to real property (Arts. 476-481 other lawful fees
Civil Code)
in 18 legible copies (containing plain copies of all
Definition: Art. 476. Whenever there is a cloud on documents attached to the original copy of the
title to real property or any interest therein, by petition)
reason of any instrument, record, claim,
encumbrance or proceeding which is apparently Contents [Rule 64.5]:
valid or effective but is in truth and in fact invalid, ƒ name of aggrieved party (petitioner)
ineffective, voidable, or unenforceable, and may be ƒ respondents: Commission concerned and
prejudicial to said title, an action may be brought to person(s) interested in sustaining the judgment
remove such cloud or to quiet the title. a quo
ƒ facts
An action may also be brought to prevent a cloud ƒ issues involved
ƒ grounds and brief arguments relied upon for
REMEDIAL LAW REVIEWER

review is denied, the aggrieved


ƒ prayer for judgment annulling or modifying the party may file the
178 question judgment, etc. petition within the
ƒ material dates showing that it was filed on time remaining period, but
ƒ certification against non-forum shopping which shall not be less
than 5 days reckoned
Findings of fact of the Commission supported by from the notice of
substantial evidence shall be final and non- denial.
reviewable.
7. Certiorari, Prohibition and
Failure to comply with foregoing requirements shall
be sufficient ground for dismissal. Mandamus
p
Order to Comment [Rule 64.6] The original action of certiorari is not a substitute
If the SC finds the petition sufficient in form and for appeal. [Lobite vs. Sundiam 1983]
substance, it shall order the respondents to file their
comments on the petition within 10 days from notice Exceptions:
thereof. ƒ appeal is not a speedy and adequate remedy
[Salvadores vs. Pajarillo (1947)]
Grounds for dismissal: ƒ the orders were issued either in excess of or
ƒ Petition not sufficient in form and substance without jurisdiction [Aguilar vs. Tan (1970)]
ƒ Petition was filed manifestly for delay ƒ special considerations, i.e., public welfare or
ƒ the questions raised are too unsubstantial to public policy [Jose vs. Zulueta (1961)]
warrant further proceedings. ƒ the order is a patent nullity [Marcelo vs. De
Guzman (1982)]
p
ƒ the decision in the certiorari case will avoid
Comments of Respondents [Rule 64.7]
future litigations [St. Peter Memorial Park vs.
Requirements:
Campos (1975)]
ƒ original copy with certified true copies of
material portions of the record as are referred
NOTE: In the 2005 and 2008 Bar Exams, bar
to in the comment and certified true copies of
examinees were asked to compare Petition for
other supporting papers
review on Certiorari and Certiorari.
ƒ 18 legible copies with plain copies of all
documents attached to the original
Certiorari
ƒ Copy of the comment shall be served on the
petitioner. Suarez v. NLRC (1998): Questions of fact cannot be
raised in an original action for certiorari. Only
p established or admitted facts may be considered.
Decision [Rule 64.9]
Case is deemed submitted for decision upon: Medran vs. CA (1949): Findings of fact of CA are not
ƒ filing of the comments on the petition, and such binding upon SC in an original action for certiorari.
other pleadings or papers as may be required or
allowed.
Prohibition
ƒ expiration of the period to file the pleadings.
Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
Exceptions: SC sets the case for oral argument or
sought to be prevented during the pendency of the
requires parties to submit memoranda.
proceedings for the writ, the petitioner should
obtain a restraining order and/or writ of preliminary
a. Application of Rule 65 under Rule 64 injuction. [Regalado]

b. Distinction in the application of Rule 65 to Enriquez v. Macadaeg, 84 Phil 674: Prohibition is


judgments of the COMELEC and COA and the the remedy where a motion to dismiss is improperly
application of Rule 65 to other tribunals, denied.
persons and officers

Rule 64 Rule 65 Mandamus


Directed only to the Directed to any tribunal, A writ of mandamus will not issue to control the
judgments, final orders board, or officer exercise of official discretion or judgment, or to
or resolutions of exercising judicial or alter or review the action taken in the proper
COMELEC and COA quasi-judicial functions exercise of the discretion of judgment, for the writ
Filed within 30 days from Filed within 60 days from cannot be used as a writ of error or other mode of
notice of the judgment notice of the judgment direct review.
The filing of a MR or a The period within which
Motion for New Trial if to file the petition if the However, in extreme situations generally in criminal
allowed, interrupts the MR or new trial is cases, mandamus lies to compel the performance of
period for the filing of denied, is 60 days from the fiscal of discretionary functions where his
the petition for notice of the denial of actuations are tantamount to a wilful refusal to
certiorari. If the motion the motion. perform a required duty. [Regalado]
REMEDIAL LAW REVIEWER

General rule: In the performance of an official duty p


or act involving discretion, such official can only be JUDGMENT
directed by mandamus to act but not to act in one If after such hearing or submission of memoranda or
way or the other. the expiration of the period for the filing thereof, 179
EXCEPTION: gross abuse of discretion, manifest the court finds that the allegations of the petition
injustice, palpable excess of authority [Kant Wong v. are true, it shall render judgment for the relief
PCGG (1987)] prayed for or to which the petitioner is entitled.

Mandamus can be availed of only by the party who The court, however, may dismiss the petition if it
has direct legal interest in the right sought to be finds the same to be (1) patently without merit, (2)
enforced. HOWEVER, if the question is one of public prosecuted manifestly for delay, or that (3) the
right, it is sufficient to show that the petitioner is a questions raised therein are too unsubstantial to
citizen. [Tanada v. Tuvera (1985)] require consideration. [Rule 65.8]
p
SERVICE AND ENFORCEMENT OF ORDER OR
a. Definitions and distinctions JUDGMENT
A certified copy of the judgment rendered shall be
b. Requisites served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person
c. When petition for certiorari, prohibition concerned in such manner as the court may direct,
and mandamus is proper and disobedience thereto shall be punished as
See Annex F. contempt.

Procedure An execution may issue for any damages or costs


awarded in accordance with section 1 of Rule 39.
[Rule 65.9]
FILE PETITION FOR CERTIORARI / PROHIBITION /
MANDAMUS.
When filed: d. Injunctive relief
ƒ Not later than 60 days from notice of
judgment/order/resolution Rule 65.7 provides for the issuance of a temporary
ƒ If a motion for reconsideration/new trial is restraining order, and not only for a writ of
filed, the 60-day period shall be counted from preliminary injunction, but such order shall be
notice of denial of motion. subject to the rules on the grounds and duration
ƒ Extension may be granted for compelling thereof. [Regalado]
reasons, not exceeding 15 days. [Rule 65.4]
e. Certiorari distinguished from Appeal by
Where filed: Certiorari; Prohibition and Mandamus
ƒ Supreme Court distinguished from Injunction; when and
ƒ Court of Appeals where to file petition
- If it involves the acts of a quasi-judicial
agency, the petition shall be filed only in CERTIORARI DISTINGUISHED FROM APPEAL
the CA, unless otherwise provided by law CERTIORARI APPEAL
or the Rules. Proper to correct errors Proper where error is not
ƒ Regional Trial Court, if it relates to acts / of jurisdiction one of jurisdiction but an
omissions of a lower court / corporation / board committed by lower error of law or fact
/ officer / person. courts, grave abuse of which is a mistake of
ƒ Sandiganbayan, if it is in aid of its appellate discretion which is judgment
jurisdiction. [Rule 65.4] tantamount to lack of
p jurisdiction
ORDER TO COMMENT Certiorari invokes Appeal when filed
If the petition is sufficient in form and substance to original jurisdiction of invokes the appellate
justify such process, the court shall issue an order the court jurisdiction of the court
requiring the respondent(s) to comment on the Within 60 days from Filed within period of
petition within 10 days from receipt of a copy notice of judgment, appeal
thereof. order or resolution
An original and Continuation of the
Such order shall be served on the respondents in independent action original case
such manner as the court may direct, together with Impleads the tribunal, Parties to an appeal are
a copy of the petition and any annexes thereto. court, board or officer the original parties of
[Rule 65.6] the case
p
HEARING OR MEMORANDA PROHIBITION DISTINGUISHED FROM INJUNCTION
After the comment or other pleadings required by PROHIBITION INJUNCTION
the court are filed, or the time for the filing thereof Directed to the court or Directed against a party
has expired, the court may hear the case or require tribunal directing it to to the action
the parties to submit memoranda. [Rule 65.8]
REMEDIAL LAW REVIEWER

refrain from the Quo warranto is the remedy to try disputes with
performance of acts respect to the title to a public office.
180 which it has no
jurisdiction to perform a. Distinguish from Quo Warranto in the
Omnibus Election Code
MANDAMUS DISTINGUISHED FROM INJUNCTION
MANDAMUS INJUNCTION
Special civil action Ordinary civil action
Directed against a Directed against a ROC Rule 66 OEC Sec. 253
tribunal, corporation litigant Filed Solicitor General or Any voter
board or officer by Public Prosecutor in
Purpose is for the Purpose is for the whom behalf of the
tribunal, corporation, defendant either to Republic; Individual
board or officer to refrain from an act or to Where By SolGen: RTC COMELEC, if
perform a ministerial perform not necessarily a filed Manila, CA or SC; against election of
and legal duty legal and ministerial duty Otherwise, RTC with a Member of
Purpose is to perform a Purpose is to prevent an jurisdiction over Congress, Regional,
positive legal duty and act to maintain the territorial area Provincial or City
not to undo what has status quo between the where respondent Officer;
been done parties resides, CA or SC
appropriate RTC or
f. Exceptions to filing of motion for MTC, if against a
reconsideration before filing petition municipal or
barangay officer
General rule: A motion for reconsideration must Period Within 1 year from Within 10 days
first be availed of before certiorari – to enable the for ouster, or from the after proclamation
lower court to correct its mistakes without the filing time the right to of results
intervention of the lower courts. [BA Finance vs. the position arose
Pineda (1982)] Against A person, who Ineligibility or
whom, usurps, intrudes into disloyalty to the
Exceptions: grounds or unlawfully holds Republic
ƒ the order is a patent nullity [Vigan Elec. Light or exercises a public
vs. Public Service Commission (1964)] office, position or
ƒ the questions raised in the certiorari have been franchise;
duly raised and passed upon by the lower court
[Fortich-Celdran vs. Celdran (1967)] or are the A public officer,
same as those raised and passed upon in the who does or suffers
lower court [Pajo vs. Ago (1960)] an act which, by
ƒ there is an urgent necessity for the resolution of provision of law,
the question and delay would prejudice the constitutes a ground
interests of the government [Vivo vs.Cloribel for forfeiture of
(1966)] office
ƒ the MR would be useless [People vs. Palacio
(1960)] How commenced
ƒ the petitioner was deprived of due process and By a verified petition [Rule 66.1]
there is extreme urgency for relief [Luzon
Surety vs. Marbella (1960)] By whom/against whom
ƒ the proceeding was ex parte in which the
petitioner had no opportunity to object b. When the government commences an
[Republic vs. Maglanoc (1963)] action against individuals
ƒ the issue raised is purely a question of law or
where the public interest is involved [PALEA vs. ƒ By Government, brought in the name of the
PAL (1982)] Republic of the Philippines, against:
- A person who usurps, intrudes into, or
g. Reliefs petitioner is entitled to unlawfully holds or exercises a public office,
position or franchise
h. Actions/Omissions of MTC/RTC in election - A public officer who does not or suffers an act
cases which, by the provision of law, constitutes a
ground for the forfeiture of his office
- An association which acts as a corporation
i. Where to file petition within the Philippines without being legally
incorporated or without lawful authority so to
j. Effects of filing of an unmeritorious act [Rule 66.1]
petition
ƒ When Solicitor General or public prosecutor
8. Quo Warranto MUST commence action:
REMEDIAL LAW REVIEWER

- When directed by the President of the ƒ The complaint shall join as defendants all
Philippines. persons owning or claiming to own, or occupying
- When upon complaint or otherwise, he has any part thereof or any interest therein,
good reason to believe that any case specified showing as far as practicable the separate 181
in Sec. 1 can be established by proof. [Rule interest of each defendant.
66.2] ƒ The following must be clearly stated in the
complaint , if applicable:
ƒ When Solicitor General or public prosecutor - If the title to any property sought to be
MAY commence action: expropriated appears to be in the Republic of
- with permission of the court the Philippines, although occupied by private
- at the request and upon the relation of individuals;
another person - If the title is otherwise obscure or doubtful so
- Officer bringing such action may first that the plaintiff cannot with accuracy or
require an indemnity for the expenses and certainty specify who are the real owners.
costs of the action in an amount approved [Rule 67.1]
by and deposited in court. [Rule 66.3]
b. Two stages in every action for
c. When individual may commence an action expropriation

By a person claiming to be entitled to a public i. Determination of the authority of the plaintiff to


office or position, brought in his own name, against exercise the power of eminent domain and the
another who usurped or unlawfully held or exercised propriety of its exercise in the context of the
such public office or position [Rule 66.5] facts.

d. Judgment in Quo Warranto action This stage is terminated by either an order of


dismissal of the action or order of the condemnation
When the respondent is found guilty of usurping, declaring that expropriation is proper and legal.
intruding into, or unlawfully holding or exercising a These orders are final and therefore appealable.
public office, position, or franchise, judgment shall [Municipality of Biñan v. Garcia (1989)]
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the It includes an inquiry into the propriety of the
petitioner or relator recover his costs. [Rule 66.9] expropriation – its necessity and public purpose.
[Riano]
e. Rights of a person adjudged entitled to
public office ii. Determination of just compensation.
This is done with the assistance of not more than
If judgment be rendered in favor of the person three (3) commissioners.
averred in the complaint to be entitled to the public
office he may, after taking the oath of office and The order fixing just compensation is also final and
executing any official bond required by law, take appealable (Ibid). Just compensation is to be
upon himself the execution of the office, and may determined as of the date of the taking of the
immediately thereafter demand of the respondent propriety or the filing of the complaint, whichever
all the books and papers in the respondent's custody comes first.
or control appertaining to the office to which the
judgment relates. Ansaldo v. Tantuico (1990): There is taking when
the owner is actually deprived or dispossessed of his
The person adjudged entitled to the office may also property; when there is a practical destruction or a
bring action against the respondent to recover the material impairment of the value of his property or
damages sustained by such person by reason of the when he is deprived of the ordinary use thereof.
usurpation. [Rule 66.10]
Bardillon v. Bgy. Masili (2003): An expropriation
suit is incapable of pecuniary
estimation. Accordingly, it falls within the
jurisdiction of RTCs, regardless of the value of the
9. Expropriation subject property.

a. Matters to allege in complaint for


expropriation c. When plaintiff can immediately enter into
possession of the real property, in relation to
The complaint for expropriation must be VERIFIED. RA 8974

Contents: Sec. 4. of RA 8974 otherwise known as “An Act to


ƒ The right and purpose of expropriation facilitate the acquisition of right-of-way, site or
ƒ Description of the real or personal property location for national government infrastructure
sought to be expropriated; projects and for the purposes”: [w]henever it is
necessary to acquire real property for the right-of-
REMEDIAL LAW REVIEWER

way or location for any national government See table of comparison under the preceding
infrastructure project through expropriation, the subsection, column of RA 8974.
182 appropriate implementing agency shall initiate the
expropriation proceedings before the proper court
under the following guidelines:

ƒ Upon the filing of the complaint, and after due


notice to the defendant, the implementing
agency shall immediately pay the owner of the
property the amount equivalent to the sum of e. Defenses and objections
(1) 100% of the value of the property based on
the current relevant zonal valuation of the NO OBJECTION OR HAS OBJECTION
Bureau of Internal Revenue (BIR); and (2) the DEFENSE TO THE OR DEFENSE TO
value of the improvements and/or structures as TAKING THE TAKING
determined under Section 7 hereof; What to Notice of Answer to the
ƒ In provinces, cities, municipalities and other file and appearance and complaint
areas where there is no zonal valuation, the BIR serve manifestation
is hereby mandated within the period of sixty Period Time stated in the summons
(60) days from the date of the expropriation to file
case, to come up with a zonal valuation for said Con- Manifestation to Specifically
area; and tents the effect that he designating/identif
ƒ In case the completion of a government has no objection or ying the property
infrastructure project is of utmost urgency and defense; in which he claims
importance, and there is no existing valuation of to have an interest
the area concerned, the implementing agency Specifically in and the nature
shall immediately pay the owner of the property designating/identif and extent of the
its proffered value taking into consideration the ying the property interest;
standards prescribed in Section 5 hereof. in which he claims
to be interested ALL his objections
Upon compliance with the guidelines above- and defenses to
mentioned, the court shall immediately issue to the the complaint or
implementing agency an order to take possession of any allegation
the property and start the implementation of the therein
project. Prohibit Counterclaim,
ed cross-claim, third
Riano opines that Sec. 2 of Rule 67 is deemed party complaint in
modified by RA 8974. He noted the following any pleading
differences:
A foreclosure action must be brought in the RTC of
Rule 67 RA 8974 the province where the land or any part thereof is
Before issuance of writ Upon filing of the situated.
of possession complaint
Expropriation Right-of-way, site or A defendant waives all defenses and objections not
proceedings initiated by location of national so alleged, but the court, in the interest of justice,
the national government government may permit amendments to the answer not to be
infrastructure projects made later than ten (10) days from filing thereof.

Initial deposit with an Immediate payment to At the trial of the issue of just compensation,
authorized government the property owner whether the defendant has previously appeared or
depositary answered, he may present evidence as to the
Amount for deposit Amount to be paid is: amount of the compensation to be paid for his
equivalent to 100% ƒ 100% of the value of property, and he may share in the distribution of the
assessed value of the the land as stated in award. [Rule 66.3]
property for purposes of the tax declaration or
taxation. current zonal f. Order of Expropriation
valuation, whichever
is higher, and the It declares that the plaintiff has a lawful right to
value of take the property sought to be expropriated for the
improvements, OR public use or purpose described in the complaint,
ƒ in the case of utmost upon payment of just compensation to be
urgency, the determined as of the date of the taking of the
proffered value of the property or the filing of the complaint whichever is
property to be seized earlier.

d. New system of immediate payment of It is issued by the court in which the complaint for
initial just compensation expropriation is filed when:
REMEDIAL LAW REVIEWER

ƒ objections or defenses of the defendant have EXCEPTION: when the parties agree otherwise,
been overruled, or the commissioners cannot view and examine the
ƒ the defendant raised no such defense or property
objection, or - The commissioners shall assess the 183
ƒ No party appears to defend. [Rule 67.4] consequential damages to the property taken
and deduct from such consequential damages
the consequential benefits derived by the
owner from the public use or purpose of the
property taken, the operation of its franchise
by the corporation or person taking the
g. Ascertainment of just compensation property.
- In no case shall the consequential benefits
Just compensation is defined as the full and fair assessed exceed the consequential damages
equivalent of the property taken from its owner by assessed, or the owner be deprived of the
the expropriator. actual value of his property so taken. [Rule
67.6]
Determined as of the date of taking of the property, ƒ The commissioners shall make full and accurate
or the filing of the complaint, whichever came first. report to the court of all their proceedings.
[Rule 67.4] - The report shall be filed within 60 days from
The measure is not the taker’s gain, but the owner’s the date the commissioners were notified of
loss. To compensate is to render something which is their appointment.
equal in value to that taken or received. - Upon filing of the report, the clerk of court
shall serve copies thereof on all interested
The word “just” is used to intensify the meaning of parties, with notice that they are allowed ten
the word “compensation”; to convey the idea that (10) days within which to file objections to
the equivalent to be rendered for the property taken the findings of the report, if the parties
shall be real, substantial, full, and ample. desire. [Rule 67.7]
ƒ After the 10-day period for objecting to the
In eminent domain or expropriation proceedings, the commissioners’ report, the court, after hearing,
general rule is that the just compensation which the may:
owner of condemned property is entitled to is the - ACCEPT the report and render JUDGMENT in
market value. accordance therewith;
- RECOMMIT the report to the commissioners for
Market value is “that sum of money which a person further report of facts;
desirous but not compelled to buy, and an owner - SET ASIDE the report and APPOINT new
willing but not compelled to sell, would agree on as commissioners;
a price to be given and received therefore.” [BPI v. - ACCEPT the report IN PART and REJECT it IN
CA (2004)] PART;

Upon the rendition of the order of expropriation, the And make such order or render judgment as
court shall appoint not more than 3 competent and shall secure to the plaintiff the property
disinterested persons as commissioners to ascertain essential to the exercise of his right of
and report to the court the just compensation for expropriation and to the defendant just
the property sought to be taken. [Rule 67.5] compensation for the property so taken. [Rule
67.8]
h. Appointment of Commissioners;
Commissioner’s report; Court action upon i. Rights of plaintiff upon judgment and
commissioner’s report payment

Order of appointment to be served on the parties. ƒ Right to enter upon the property expropriated
Objections to the appointment of any of the and appropriate it for the public use or purpose
commissioners shall be filed in court within ten (10) as stated. Upon payment by the plaintiff to the
days, and shall be resolved within thirty (30) days defendant of the compensation fixed by the
after all the commissioners have received copies of judgment, with legal interest thereon from the
the objections. taking of the possession of the property, or after
tender to him of the amount so fixed and
Powers and duties of commissioners: payment of the costs, the plaintiff shall have
ƒ Parties can present evidence before the the right to enter upon the property
commissioners and the latter have the power to expropriated and to appropriate it for the public
administer oaths or hearings before them; use or purpose defined in the judgment, or to
ƒ They can, after due notice to the parties to retain it should he have taken immediate
attend, view and examine the property sought possession thereof under Sec. 2. [Rule 67.10]
to be expropriated and its surroundings and may ƒ Right to enter upon the property even pending
measure the same; appeal. The right of the plaintiff to enter upon
the property of the defendant and appropriate
REMEDIAL LAW REVIEWER

the same for public use or purpose shall not be


delayed by an appeal from the judgment.
184
The judgment entered in expropriation proceedings b. Sale of mortgaged property; effect
shall state definitely, by an adequate description,
the particular property or interest therein ƒ When the defendant fails to pay the amount of
expropriated, and the nature of the public use or the judgment within the period specified
purpose for which it is expropriated. [Rule 67.13] therein, the court, upon motion, shall order the
property to be sold in the manner and under the
provisions of Rule 39 and other regulations
governing sales of real estate under execution.
- It is the ministerial duty of the court to order
j. Effect of recording of judgment the foreclosure of the property when the debt
is not paid within the period specified.
When real estate is expropriated, a certified copy of - A motion for such order of sale is non-litigable
the judgment entered in expropriation proceedings and may be made ex parte. [Gov’t of P.I. v De
shall be recorded in the registry of deeds of the las Cajigas, 55 Phil 667]
place in which the property is situated, and its ƒ Such sale shall not affect the rights of persons
effect shall be to vest to plaintiff the title to the holding prior encumbrances upon the property
real estate so described for such public use or or a part thereof, and
purpose. [Rule 67.13] ƒ When confirmed by an order of the court, also
upon motion, it shall operate to divest the rights
10. Foreclosure of Real Estate in the property of all the parties to the action
and to vest their rights in the purchaser, subject
Mortgage (Asked in the 2003 Bar Exam) to such rights of redemption as may be allowed
by law.
The cause of action in a foreclosure suit is generally ƒ POSSESSION: Upon the finality of the order of
the non-payment of the mortgage loan, but it may confirmation or upon the expiration of the
be on other grounds which under the contract period of redemption when allowed by law, the
warrant the foreclosure, such as the violation of the purchaser at the auction sale or last
other conditions therein. redemptioner, if any, shall be entitled to the
possession of the property, unless a third party
Foreclosure may be made: is actually holding the same adversely to the
ƒ judicially – governed by Rule 68 judgment obligor.
ƒ Extrajudicially – proper only when so provided in ƒ The said purchaser or last redemptioner may
contracts in accordance with Act. No. 3135; secure a writ of possession, upon motion, from
governed by A.M. No. 99-10-05-0. the court which ordered the foreclosure. [Rule
68.3]
Monte de Piedad v. Rodrigo, 56 Phil 301: A ƒ The purchaser is entitled to a writ of possession
foreclosure action must be brought in the RTC of the and it is ministerial upon the court to issue a
province where the land or any part thereof is writ of possession in his favor upon an ex parte
situated. motion. [Barican, et al v Caguioa, et al, (1986)]
If a mortgage contract covers several distinct parcels c. Disposition of proceeds of sale
of land situated in different provinces, the action
may be brought in the RTC of any of the provinces Claims to be satisfied by the proceeds of the public
and the judgment will be enforceable against any of sale of mortgaged property (in order):
the parcels of land involved. ƒ Costs incurred in the sale of property
ƒ Claim of the person foreclosing the property
a. Judgment on foreclosure for payment or ƒ Claims of junior encumbrancers in the order of
sale their priority

Judgment If proceeds of the sale exceeds the cost of the sale


PAYMENT: If upon the trial, the court shall find the as well as the claims of the person foreclosing the
facts set forth in the complaint to be true, it shall property and junior encumbrancers, if any the
ascertain the amount due to the plaintiff upon the residual amount shall be given to the mortgagor or
mortgage debt or obligation, including interest and his agent, or to the person entitled to it. [Rule 68.4]
other charges as approved by the court, and costs, If the proceeds of the sale is less than the amount of
and shall render judgment for the sum so found due the claims to be satisfied, the person foreclosing the
and order that the same be paid to the court or to property may move for a DEFICIENCY JUDGMENT
the judgment obligee within a period of not less from the court confirming the foreclosure sale, to
than 90 days nor more than 120 days from the entry recover the amount of the deficiency in his claim.
of judgment (“equity of redemption”).
d. Deficiency judgment
SALE: In default of such payment the property shall
be sold at public auction to satisfy the judgment. i. Instances when court cannot render deficiency
[Rule 68.2] judgment
REMEDIAL LAW REVIEWER

Registration [RULE 68.7]


Definition: A judgment against a debtor for the A CERTIFIED COPY of the final order confirming the
unpaid balance of the debt if a foreclosure sale or a sale shall be registered in the Registry of Deeds.
sale of repossessed personal property fails to yield 185
the full amount of the debt due; also termed a IF NO RIGHT OF IF A RIGHT OF
deficiency decree. (Black’s Law Dictionary) REDEMPTION EXISTS REDEMPTION EXISTS
The Certificate of Title The Certificate of Title
General rule: Sec. 6 provides for a deficiency in the name of the in the name of the
judgment which shall be rendered, on motion, when mortgagor shall be mortgagor shall NOT be
the foreclosure sale did not produce proceeds cancelled, and a new cancelled, but the
sufficient to satisfy the judgment. one issued in the name Certificate of Sale and
of the purchaser. the order confirming the
In extrajudicial foreclosure, the mortgagee can also sale shall be registered
recover by action any deficiency in the mortgage and a brief
account which was not realized in the foreclosure memorandum thereof
sale. [PNB v. CA (1999)] shall be made by the
Registrar of Deeds upon
A motion for deficiency judgment may be made only the certificate of title
after the sale and after it becomes known that a
deficiency exists. [Governor of the Philippine Islands IF THE PROPERTY IS IF THE PROPERTY IS
v. Torralba Vda. de Santos (1935)] REDEEMED NOT REDEEMED
The Deed of The FINAL Deed of Sale
If the debtor dies, the deficiency may be filed as a Redemption shall be executed by the sheriff
claim against his estate. [Rule 86.7] registered with the in favor of the
Registry of Deeds and a purchaser at the
EXCEPTIONS: brief memorandum foreclosure sale shall
ƒ Third Party Mortgagor - No deficiency judgment thereof shall be made be registered with the
may be rendered where the mortgage was by the Registrar of Registry of Deeds.
executed by a third person to secure the Deeds on said
obligation of a debtor, such third person not certificate of title. The Certificate of Title
having assumed personal liability for the debt. in the name of the
The remedy is an ordinary action against the mortgagor shall be
debtor. [Philippine Trust Co. v. Echaus Tan cancelled and a new
Siusa (1929)] one shall be issued in
the name of the
ƒ Extrajudicial Foreclosure - There can be no purchaser.
deficiency judgment because there was no
judicial proceeding in the foreclosure. Recovery f. Equity of redemption versus right of
can be made through a separate action. [DBP v
redemption
Mirang (1975); DBP v Zaragosa, 1978; PNB v CA
(1999)]
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
Right of the defendant Right of redemption is
e. Judicial foreclosure versus extrajudicial
mortgagor to extinguish the right granted to the
foreclosure the mortgage and retain debtor-mortgagor, his
ownership of the successor-in-interest or
JUDICIAL FORECLOSURE EXTRAJUDICIAL property by paying the any judicial creditor of
FORECLOSURE amount fixed in the said debtor-mortgagor or
Governed by the Rules of Governed by Act 3135 as decision of the court any person having a lien
Court amended within 90 to 120 days in the property
Involves the filing of an Does not require filing of after entry of judgment subsequent to its
independent action an action or even after the mortgage or deed of
Equity of redemption Right of redemption foreclosure sale but prior trust, under which the
EXCEPT if the to its confirmation. property is sold, to
foreclosure is in favor of [Limpin v. Intermediate redeem the property
banks as mortgagees, a Appellate Court (1988)] within 1 year from the
Right of redemption registration of the
exists sheriff’s certificate of
There could be a No deficiency judgment foreclosure sale. [De
deficiency judgment because there is no Castro v. Intermediate
judicial proceeding Appellate Court [1988)]
BUT deficiency can be The mortgagor may The right of redemption
recovered exercise his equity of in relation to a mortgage
Recovery of deficiency is Recovery of deficiency is redemption in judicial is understood in the
by mere motion for a by an independent foreclosure before the sense of a prerogative to
deficiency judgment action sale is confirmed by the re-acquire mortgaged
court (Raymundo v property after
REMEDIAL LAW REVIEWER

EQUITY OF REDEMPTION RIGHT OF REDEMPTION unserviceable for the use for which is it
Sunico, 1913; Rosales v registration of the intended [Art. 495 CC] or
186 Suba, 2003). foreclosure sale. It exists ƒ When the condition imposed upon voluntary
No right of redemption is only in the case of the heirs before they can demand partition has not
recognized in a judicial extrajudicial foreclosure yet been fulfilled. [Art. 1084 CC]
foreclosure, except only of the mortgage.
where the mortgagee is b. Matters to allege in the complaint for
the Philippine National partition
Bank or a bank or
banking institution. Contents of complaint for partition
[Huerta Alba Resort, Inc. ƒ Nature and extent of the complainant’s title
v. CA (2000)] ƒ Adequate description of the real estate of which
the partition is demanded
Confirmation of the sale of mortgaged real property ƒ All other persons interested in the property
vests title in the purchaser including the equity of must be impleaded. [Rule 69.1]
redemption, it retroacts to the date of the sale. It
cuts off all the rights or interests of the mortgagor c. Two (2) stages in every action for partition
and of the mortgagee. [Lozame v Amores (1985]].
i. Determination of the propriety of partition
The motion for the confirmation of the sale requires This involves a determination of whether the subject
a hearing to grant an opportunity to the mortgagor property is owned in common and whether all the
to show cause why the sale should not be confirmed co-owners are made parties in the case.
[Tiglao v Botones, 90 Phil 275], as by proof of The order may also require an accounting of rents
irregularities therein or of gross inadequacy of the and profits recovered by the defendant. This order
price. Lack of notice vitiates the confirmation of the of partition is appealable. [Miranda v. Court of
sale. Appeals (1976)]

If not appealed, then the parties may partition the


11. Partition common property in the way they want. If they
cannot agree, then the case goes into the second
stage. However, the order of accounting may in the
Partition of property may be:
meantime be executed. [De Mesa v. CA (1994)]
ƒ Extrajudicial – by agreement
ƒ Judicial – compulsory; governed by Rule 69
ii. The actual partitioning of the subject property
This is also a complete proceeding and the order or
Even if the parties resorted to judicial partition,
decision is appealable.
they may still make an amicable partition of the
property. [Secs. 2 and 12]
When there was a prior partition, the fact that the
share of each co-heir has not been technically
a. Who may file complaint; who should be described and the title over the whole lot remains
made defendants uncancelled does not negate such partition.
Filed by person having the right to compel the There can be no partition again because there is no
partition of real estate, [Sec. 1], or of personal more common property. [Noceda v. CA (1999)]
property, or of both real and personal property.
[Sec. 13] Crucillo v. IAC, 1999: Oral partition of land when
the same is fully consummated is valid and binding
The plaintiff is the person who is supposed to be a upon the parties thereto.
co-owner of the property. The defendants are all the
co-owners, who are indispensable parties. Maglucot-aw et al. v. Maglucot et al. (2000):
Parties to a partition proceeding, who elected to
Sepulveda v. Pelaez (2005): All persons considered take under partition, and who took possession of the
as co-owners and interested in the property to be portion allotted to them, are estopped to question
partitioned are indispensable parties to the action title to portion allotted to another party. A person
and must be impleaded. cannot claim both under and against the same
instrument. In other words, they accepted the lands
Exceptions to the Right to Ask for Partition: awarded them by its provisions, and they cannot
ƒ When there is a stipulation against it, not accept the decree in part, and repudiate it in part.
exceeding 10 years [Art. 494 CC]
ƒ When partition is prohibited by the donor or They must accept all or none. Parties who had
testator for a period not exceeding 20 years received the property assigned to them are
[Art. 494, 1083 CC] precluded from subsequently attacking its validity of
ƒ When partition is prohibited by law (e.g. ACP, any part of it.
party wall) [Art. 494 CC]
ƒ When the property is not subject to a physical Partition may be inferred from circumstances
division and to do so would render it sufficiently strong to support the presumption. Thus,
after a long possession in severalty, a deed of
REMEDIAL LAW REVIEWER

partition may be presumed. A final order decreeing partition and accounting may
be appealed by any party aggrieved thereby. [Rule
Recitals in deeds, possession and occupation of land, 69.2]
improvements made thereon for a long series of 187
years, and acquiescence for 60 years, furnish e. Partition by commissioners; Appointment
sufficient evidence that there was an actual of commissioners, Commissioner’s report;
partition of land either by deed or by proceedings in Court action upon commissioner’s report
the probate court, which had been lost and were not
recorded. Appointment of commissioners
If the parties are unable to agree upon the partition,
Where a tract of land held in common has been the court shall appoint not more than 3 competent
subdivided into lots, and one of the lots has long and disinterested persons as commissioners to make
been known and called by the name of one of the the partition, commanding them to set off to the
tenants in common, and there is no evidence of any plaintiff and to each party in interest such part and
subsequent claim of a tenancy in common, it may proportion of the property as the court shall direct.
fairly be inferred that there has been a partition and [Rule 69.3]
that such lot was set off to him whose name it bears.
Duties of Commissioners [Rule 69.4]:
ƒ view and examine the real estate, after due
Venue notice to the parties to attend at such view and
Actions for partition should be filed in the RTC of the examination
province where the property or part thereof is ƒ hear the parties as to their preference in the
situated. portion of the property to be set apart to them
and the comparative value thereof
If several distinct parcels of land are situated in ƒ set apart the same to the parties in lots or
different provinces, venue may be laid in the RTC of parcels as will be most advantageous and
any of said provinces. [Pancho v. Villanueva, 99 Phil equitable, having due regard to the
611] improvements, situation and quality of the
different parts thereof.
d. Order of partition and partition by
agreement General rule: If the commissioners should determine
that the real estate cannot be divided without
Order of partition prejudice to the interests of the parties, the court
After trial, if the court finds that the plaintiff has may order that the property be assigned to one of
the right to the property subject of partition, it shall the parties willing to take the same PROVIDED he
issue an order demanding the partition of the real pays to the other parties such amounts as the
estate among all the parties in interest. [Sec. 2] commissioners deem equitable
(Refers to 1st stage of partition)
EXCEPTION: if one of the parties asks that the
Partition by agreement property be sold instead of being so assigned, then
the court shall ORDER the commissioners to sell the
After the issuance of the order of partition, the real estate at public sale under such conditions and
parties will then be asked if they agree to make within such time as the court may determine. [Rule
partition of the property among themselves. 69.5]
p
If they agree, proper instruments of conveyance will Commissioner’s report
be executed to effect the partition.
The commissioners shall make a full and accurate
p report to the court of all their proceedings as to the
After the execution of instruments of conveyance, partition, or the assignment of real estate to one of
the court shall confirm the partition through a final the parties or the sale of the same.
order.
p Upon filing the report, the clerk of court shall serve
The final order of partition and the instruments of copies thereof on all interested parties with notice
conveyance shall be registered with the Registry of that they are allowed 10 days within which to file
Deeds where the property is situated. [Rule 69.2] objections to the findings of the report, if they so
p desire.
If they do not agree, there will be a partition by
commissioners. No proceeding had before or conducted by the
commissioners shall pass the title to the property or
A party shall recover from another his just share of bind the parties until the court accepts the
rents and profits received by such other party from commissioners’ report and rendered judgment
the real estate in question, and the judgment shall thereon. [Rule 69.6]
include an allowance for such rents and profits.
[Rule 69.8] Upon the expiration of the 10-day period, or even
before the expiration of such period but after the
REMEDIAL LAW REVIEWER

interested parties filed their objections to the adversely occupies the property without recognizing
report/statement of agreement, the court, upon the co-ownership [Cordova v. Cordova, 102 Phil
188 hearing, may: 1182] in which case, acquisitive prescription may set
ƒ ACCEPT the commissioners’ report and render in.
JUDGMENT based upon it.
ƒ RECOMMIT the report to the commissioners for If a co-owner repudiates the co-ownership and
further report of facts if there is cause to do the makes known such repudiation to the other co-
same owners, then partition is no longer a proper remedy
ƒ SET ASIDE the report and APPOINT new of the aggrieved co-owner. He should file an accion
commissioners reivindicatoria, which is prescriptible. [Roque v. IAC
ƒ ACCEPT the report IN PART and REJECT it IN (1988)]
PART
ƒ Make such order and render such judgment as 12. Forcible Entry and Unlawful
shall effectuate a fair and just partition of the
real estate or of its value, if the property is
Detainer (Asked in the 2000 Bar Exam
assigned or sold between the several owners in Relation to a Pending Action for
thereof. [Rule 69.7] Specific Performance)
f. Judgment and its effects a. Definitions and Distinction
CONTENTS OF EFFECTS OF Forcible Entry
JUDGMENT JUDGMENT ƒ Resorted to when a person is deprived of
IF ACTUAL Judgment shall Judgment shall possession of any land or building by (1) force,
PARTITION state definitely, vest in each (2) intimidation, (3) strategy, (4) threat, or (5)
IS by metes and party to the stealth. (FISTS)
PROPERLY bounds and action in ƒ Must be brought at any time within 1 year after
MADE adequate severalty the such unlawful deprivation in the proper MTC
description, the portion of the against the person unlawfully depriving him of
particular real estate possession or against any person or persons
portion of the assigned to him. claiming under them.
real estate ƒ Action must be for the restitution of possession
assigned to each of property together with damages and costs.
party. [Rule 70.1]
IF THE Judgment shall Judgment shall ƒ The owners of a property have no authority to
WHOLE state the fact of vest in the party use force and violence to eject alleged usurpers
PROPERTY such payment making the who were in prior physical possession of it.
IS ASSIGNED and of the payment the ƒ They must file the appropriate action in court
TO ONE OF assignment of whole of the real and should not take the law into their own
THE the real estate to estate free from hands. [Laurora v. Sterling Technopark (2003)]
PARTIES the party making any interest on
AFTER the payment. the part of the Unlawful Detainer
PAYMENT other parties. ƒ Resorted to when a lessor, vendor, vendee, or
IF Judgment shall Judgment shall other person against whom the possession of any
PROPERTY state the name vest the real land or building is unlawfully withheld, after the
IS SOLD AND of the purchaser estate in the expiration or termination of the right to hold
SALE IS or purchasers purchaser(s), possession by virtue of an express or implied
CONFIRMED and a definite making the contract.
BY THE description of payment(s) free ƒ May also be brought by the legal representative
COURT the parcels of from the claims or assigns of any such lessor, vendor, vendee, or
real estate sold of any parties to other persons.
ƒ Must be brought at any time within 1 year after
A certified copy of the judgment shall in either case the unlawful withholding of possession in the
be recorded in the registry of deeds of the place in proper Municipal Trial Court against the person
which the real estate is situated. [Rule 69.11] unlawfully withholding possession or persons
claiming under them.
g. Partition of personal property ƒ Action must be for the restitution of possession
of property together with damages and costs.
The provisions of Rule 69 shall apply to partitions of [Rule 70.1]
estates composed of personal property, or of both
real and personal property, in so far as the same FORCIBLE ENTRY UNLAWFUL DETAINER
may be applicable. [Rule 69.13] Possession becomes Possession was lawful at
unlawful right from the first but later becomes
h. Prescription of action very start (i.e. from the illegal, as when the
time of entry) as he lease contract has
The right of action to demand partition does not acquires possession by expired and the lessee
prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT FISTS. refuses to vacate the
where one of the interested parties openly and premises despite
REMEDIAL LAW REVIEWER

demand. It is thus an action whereby plaintiff alleges


The deprivation of The unlawful withholding ownership over a parcel of land and seeks recovery
physical possession of of possession is made of its full possession. [Javier v. Veridiano (1994)]
land and building is after the expiration or 189
effected through force, termination of the right c. How to determine jurisdiction in accion
intimidation, strategy, to hold possession under publiciana and accion reinvindicatoria
threat or stealth (FISTS). any contract, express or
implied. A/P and A/R are actions involving title to or
The issue centers on who The issue centers on possession of real property or an interest therein
was in prior possession whether the defendant’s ƒ RTC has jurisdiction where the assessed value of
de facto. right to possess has the property exceeds P20K or, in MM, P50k
expired or not. ƒ MTC has jurisdiction if the assessed value does
Previous demand upon Previous demand to not exceed said amounts
defendant to vacate not vacate required
required. (jurisdictional). d. Who may institute the action and when;
The plaintiff must allege The plaintiff need not be against whom the action may be maintained
and prove that he was in in prior physical
prior physical possession possession. Who may File, When, Against Whom
of the premises until Who: A person deprived of the possession of any
deprived thereof. land or building by force, intimidation, threat,
1-year period counted 1-year period counted strategy, or stealth, or a lessor, vendor, vendee, or
from date of actual from date of last other person against whom the possession of any
entry on the land. demand or last letter of land or building is unlawfully withheld after the
demand. expiration or termination of the right to hold
possession, by virtue of any contract, express or
b. Distinguished from accion publiciana and implied, or the legal representatives or assigns of
accion reinvindicatoria any such lessor, vendor, vendee, or other person

i. Accion Interdictal When: At any time within 1 year after such unlawful
ƒ the summary action for forcible entry deprivation or withholding of possession in the
(detentacion) proper MTC
ƒ where the defendant’s possession of property is
illegal ab initio, or Against Whom: The person or persons unlawfully
ƒ the summary action for unlawful detainer withholding or depriving of possession, OR any
(desahucio) where the defendant’s possession person or persons claiming under them [Rule 70.1]
was originally lawful but ceased to be so by the
expiration of his right to possess, e. Pleadings allowed
ƒ both of which must be brought within one year
from the date of actual entry to the land, in Pleadings must be verified. [Rule 70.4]
case of forcible entry, and from the date of last
demand, in case of unlawful detainer, Allowed pleadings [Rule 70.4]:
ƒ in the proper MTC or MeTC ƒ Complaint
ƒ Compulsory Counterclaim pleaded in the answer
Nature: ƒ Cross-claim pleaded in the answer
ƒ special civil action involving realty; ƒ Answer
ƒ subject to the Rules on Summary Procedure;
[Rule 70.3] f. Action on the complaint
ƒ under the original exclusive jurisdiction of first
level courts; From the examination of the allegations in the
ƒ nature of the action is determined by the complaint and such evidence as may be attached
allegation of the complaint and the character of thereto, the court may:
the relief sought; [Abrin v. Campos (1991)] ƒ DISMISS the case outright based on the grounds
ƒ one co-owner may institute the action. for dismissal for ordinary civil actions apparent
in the complaint, or
ii. Accion Publiciana ƒ ISSUE SUMMONS, if no ground for dismissal is
A plenary action for recovery of the right to possess found. [Rule 70.5]
and which should be brought in the proper regional
trial court when the dispossession has lasted for Cases requiring referral to conciliation, where there
more than one year. is no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
iii. Accion Reivindicatoria revived only after that requirement have been
Also called accion de reivindicacion, it seeks the complied with. [Rule 70.12]
recovery of ownership and includes the jus utendi
and the jus fruendi, which must be brought in the g. When demand is necessary
proper regional trial court.
REMEDIAL LAW REVIEWER

In cases of unlawful detainer, the action by the Uy v. CA (1989): Refusal to collect or accept rentals
lessor shall be commenced only after: is not a defense. There must be consignation.
190 ƒ demand to pay or comply with the conditions of
the lease and to vacate is made upon the lessee, Procedure
or
ƒ by serving written notice of such demand upon Filing of complaint.
the person found on the premises, or p
ƒ by posting such notice on the premises if no After the court has examined the allegations in the
person be found thereon, and the lessee fails to complaint and supporting evidence attached to the
comply therewith after 15 days in the case of same, the court may:
land or 5 days in the case of buildings. [Rule ƒ DISMISS the case outright based on the grounds
70.2] for dismissal for ordinary civil actions apparent
in the complaint, or
EXCEPTIONS (prior demand not required): ƒ ISSUE SUMMONS, if no ground for dismissal is
ƒ Where purpose of the action is to terminate the found. [Rule 70.5]
lease by reason of the expiry of its term, and is
not for failure to pay rentals or comply with the Cases requiring referral to conciliation, where there
terms of the lease contract. [De Santos v. Vivas, is no showing of compliance with such requirement,
96 Phil 538] shall be dismissed without prejudice, and may be
ƒ When the purpose of the suit is not for revived only after that requirement have been
ejectment but for the enforcement of the terms complied with. [Rule 70.12]
of the contract. [Guanson v. Ban, 77 Phil 7]
p
ƒ When the defendant is not a tenant but a mere
The defendant shall file his ANSWER and serve a
intruder. [id]
copy of it to the plaintiff within 10 days from service
of summons. [Rule 70.6]
Jakihaca v. Aquino (1990): Demand upon a tenant
may be oral. Failure of the defendant to answer within the period
provided above shall give power to the court, motu
Dakudao v. Consolacion (1983): A person who propio or on motion, to render judgment as may be
occupies the land of another at the latter's tolerance warranted by the facts alleged in the complaint and
or permission, without any contract between them is limited to what is prayed for therein. [Rule 70.7]
necessarily bound by an implied promise that he will
vacate upon demand, failing which, an action for Affirmative and negative defenses and cross-claims
unlawful detainer may be instituted against him. and compulsory counterclaims not pleaded in the
answer are deemed waived.
Muñoz v. CA (1992): This rule as to tolerance does
not hold true in a case where there was forcible EXCEPTION: lack of jurisdiction over the subject
entry at the start, but the lawful possessor did not matter.
attempt to oust the intruder for over 1 year, and
p
only thereafter filed forcible entry suit following
Answers to the counterclaims or cross-claims shall
demand to vacate.
be served and filed within 10 days from service of
the answer in which they are pleaded.
Refugia v. CA (1996): Tolerance must be presented
right from the start of possession sought to be p
recovered to categorize a cause of action as one of Where there is a defense of tenancy, there must be a
unlawful detainer. preliminary hearing on the question of tenancy
relations. [Bayog v. Natino (1996)] If there is a prima
Zobel v. Abreu (1956): When failure to pay rent or facie showing of tenancy, the court should dismiss
comply with the condition of lease is the ground for the case for lack of jurisdiction (jurisdiction belongs
ejectment, plaintiff should give 2 demands (which to the DARAB). [Baranda v. Padios (1987)]
may be embodied in 1 demand letter): p
ƒ demand to pay rental or comply with conditions Not later than 30 days after the last answer is filed,
of the lease, and if this is not complied with, a PRELIMINARY CONFERENCE shall be held.
ƒ demand to vacate
Rule 18 applicable. Effects of failure to appear:
Yap v. Cruz (1992): Notice and demand to vacate is ƒ When the plaintiff does not appear
required on a lease on a month-to-month period to - It shall be a cause for dismissal of his
render effective the termination of the lease upon complaint
the expiration of the month, and prevent an implied - All cross-claims shall be dismissed
renewal of the lease. - The defendant who appears in the
absence of the plaintiff shall be entitled
Penas, Jr. v. CA (1994): An alternative demand to to the judgment on his counterclaim
either renew the expired lease contract at a higher ƒ When the defendant does not appear
rental rate or vacate is not a definite demand to - The plaintiff shall be entitled to
vacate and therefore, insufficient basis for the filing judgment (This is true when there is only
of an action for unlawful detainer. one defendant or when all of the
defendants did not appear)
REMEDIAL LAW REVIEWER

General rule: No postponement of the preliminary


conference shall be granted. If the trial court finds that the allegations of the
complaint are TRUE, it shall render judgment in
Exception: Highly meritorious grounds and without favor of the plaintiff for 191
prejudice to such sanctions as the court in the ƒ restitution of the premises,
exercise of sound discretion may impose on the ƒ the just sum due as arrears of rent or
movant. [Rule 70.8] reasonable compensation for the use and
p occupation of the premises.
The court shall issue an ORDER stating matters ƒ attorney’s fees and costs. [Rule 70.17]
taken up during the preliminary conference within 5
days after the termination of the same. If the court finds that the allegations of the
plaintiffs are NOT TRUE, it shall render judgment for
Contents of the Order: the defendant to recover his costs. [Ibid.]
ƒ Whether the parties have arrived at an amicable
settlement, and if so, terms thereof; The judgment rendered in an action for forcible
ƒ The stipulations or admissions entered into by entry shall be conclusive with respect to the
the parties; possession only, and it shall not in any way affect
ƒ Whether, on the basis of the pleadings and the the title or ownership of the land or building. Hence,
stipulations and admissions made by the parties, such judgment shall not bar an action between the
judgment may be rendered without the need of same parties with respect to the title of the land or
further proceedings, in which event the building.
judgment shall be rendered within 30 days from
issuance of the order; The judgment or final order shall be appealable to
ƒ A clear specification of material facts which the appropriate RTC. [Rule 70.18]
remain controverted; p
ƒ Such other matters intended to expedite the Execution of judgment
disposition of the case. [Rule 70.9] GENERAL RULE: If judgment is rendered against a
p defendant, execution shall issue immediately. [Rule
The parties shall submit affidavits of their witnesses 70.19 and 70.21]
and other evidence on the factual issues defined in
the order, together with their position papers setting EXCEPTION: Appeal has been duly perfected by the
forth the law and the facts relied upon by them defendant and bond has been posted.
within 10 days from receipt of the order. [Rule
70.10] Lu v. Siapno (2000): Although immediately
executory, the judge should not order immediate
Affidavits required to be submitted shall state only execution in his decision.
facts of direct personal knowledge of the affiants
which are admissible in evidence, and shall show Kaw v. Anunciacion (1995): There must be notice of
their competence to testify to the matters stated the judgment and a motion with notice to the
therein. adverse party.

Violation of this requirement may subject the party h. Preliminary injunction and preliminary
or the counsel who submits the same to disciplinary mandatory injunction
action and shall be cause to expunge the
inadmissible affidavit or portion thereof from the Preliminary injunction
records. [Rule 70.14] The court may grant preliminary injunction in
p accordance with Rule 58 to prevent the defendant
Judgment from committing further acts of dispossession
GENERAL RULE: The court shall render judgment against the plaintiff.
within 30 days from the date of its receipt of the
affidavits and position papers OR the expiration of A possessor deprived of his possession may move for
the period for filing the same. [Rule 70.11] a preliminary mandatory injunction within 5 days to
restore him in his possession of the property. The
EXCEPTION: Should the court find it necessary to court then shall decide the motion within 30 days
clarify certain material facts, it may during the 30- from the filing thereof. [Rule 70.15]
day period issue an ORDER specifying the matters to
be clarified and require the parties to submit i. Resolving defense of ownership
affidavits or other evidence on the said matters
within 10 days from receipt of said order. Judgment When ownership is raised as a defense, the court
shall be rendered within 15 days after receipt of the may resolved the issue of ownership but only under
last affidavit or the expiration of the period for filing these conditions:
the same. [Ibid.] ƒ When the issue of possession cannot be resolved
without resolving the issue of ownership; and
The court shall not resort to the foregoing procedure ƒ The issue of ownership shall be resolved only to
just to gain time for the rendition of the judgment. determine the issue of possession [Rule 70.16].
[Id.]
REMEDIAL LAW REVIEWER

When the defendant asserts ownership over the GENERAL RULE: If judgment is rendered against a
property, the inferior court is not divested of its defendant, execution shall issue immediately. [Rule
192 jurisdiction [Rural Bank of Sta. Ignacia, Inc v 70.19 and 70.21]
Dimatulac]
EXCEPTION: Appeal has been duly perfected by the
The judgment rendered in an action for forcible defendant and bond has been posted.
entry or unlawful detainer shall be conclusive with
respect to the possession only, and it shall not in any Procedure for staying the execution of judgment:
way affect the title or ownership of the land or ƒ defendant perfects his appeal in due time;
building. Hence, such judgment shall not bar an ƒ defendant files a sufficient supersedeas bond
action between the same parties with respect to the approved by the Municipal Trial Court; and
title of the land or building. [Rule 70.18] ƒ during the pendency of the appeal, he deposits
with the appellate court the amount of rent due
Matters Not Constituting Prejudicial Question to from time to time under the contract, if any, on
Ejectment [Arcal vs. Court of Appeals (1998)] or before the 10th day of each succeeding
ƒ Injunction suits instituted in the RTC by month. [Rule 70.19]
defendants in ejectment actions in the
municipal trial courts or other courts of the first BUT upon motion of the plaintiff within 10 days from
level [Nacorda v. Yatco (1996)] do not abate the the perfection of the appeal to the RTC, the court
latter, and neither do proceedings on may still issue a preliminary mandatory injunction to
consignation of rentals [Lim Si v. Lim (1956)] restore the plaintiff in possession if the court is
ƒ An ‘accion publiciana’ does not suspend an satisfied that the defendant’s appeal is frivolous or
ejectment suit against the plaintiff in the dilatory, or that the appeal of the plaintiff is prima
former [Ramirez v. Bleza (1981)]. facie meritorious. [Rule 70.20]
ƒ A ‘writ of possession case’ where ownership is
concededly the principal issue before the k. Summary procedure, prohibited pleadings
Regional Trial Court does not preclude nor bar
the execution of the judgment in an unlawful Prohibited pleadings and motions [Rule 70.13]:
detainer suit where the only issue involved is ƒ Motion to dismiss
the material possession or possession de facto EXCEPTIONS:
of the premises [Heirs of F. Guballa, Sr. v CA - Motion to dismiss based on lack of jurisdiction
(1988)]. over the subject matter
ƒ An action for quieting of title to the property is - Motion to dismiss for failure to comply with
not a bar to an ejectment suit involving the section 12 (referral to Lupon for conciliation)
same property [Quimpo v. de la Victoria ƒ Motion for a Bill of Particulars
(1972)]. ƒ Motion for New Trial
ƒ Suit for specific performance with damages do ƒ Motion for reconsideration of a judgment
not affect ejectment actions (e.g., to compel ƒ Motion for reopening of trial
renewal of lease contract) [Desamito v. ƒ Petition for relief from judgment
Cuyegkeng (1966)]; (Asked in the 2000 Bar ƒ Motion for extension of time to file pleadings,
Exam) affidavits or other papers
ƒ An action for reformation of instrument (e.g. ƒ Memoranda
from deed of absolute sale to one of sale with ƒ Petition for Certiorari, Mandamus or Prohibition
pacto de retro ) does not suspend an ejectment against any interlocutory order issued by the
suit between the same parties [Judith v. court
Abragan (1975)]. ƒ Motion to declare defendant in default
ƒ An action for reconveyance of property or ƒ Dilatory motions for postponement
‘accion reivindicatoria’ also has no effect on ƒ Reply
ejectment suits regarding the same property ƒ Third-party complaints
[Del Rosario v. Jimenez (1963)]. ƒ Interventions
ƒ Neither do suits for annulment of sale, or title,
or document affecting property operate to 13. Contempt
abate ejectment actions respecting the same
Definition
property [Salinas v. Navarro - annulment of
Contempt of court is a defiance of the authority,
deed of sale with assumption of mortgage
justice or dignity of the court, such conduct as tends
and/or to declare the same an equitable
to bring the authority and administration of the law
mortgage (1983); Ang Ping v. RTC - annulment
into disrespect of, to interfere with, or prejudice
of sale of title (1987); Caparros v. C.A. -
parties litigant or their witnesses during litigation.
annulment of title (1989); Dante v. Sison -
It is defined as a disobedience to the court by
annulment of sale with damages 174 SCRA 517;
setting up an opposition to its authority, justice and
Galgala v. Benguet Consolidated, Inc. -
dignity.
annulment of document (1989)].
It signifies not only a willful disregard or
j. How to stay the immediate execution of disobedience to the court’s order but such conduct
judgment as tends to bring the authority of the court and the
administration of law into disrepute or in some
manner to impede the due administration of justice.