Remedial Law

Bar 2011 Notes

Roland Glenn T. Tuazon

Jurisdiction over the offense. This is essentially the same as

jurisdiction over subject matter.
Jurisdiction over the person. This is jurisdiction over the person of
the accused.
Filing fees are not necessary.

Ateneo de Manila University

TABLE OF CONTENTS:
1.

2.
3.
4.
5.

CIVIL PROCEDURE
a. POST-JUDGMENT REMEDIES
b. PROVISIONAL REMEDIES
c. SPECIAL CIVIL ACTIONS
CRIMINAL PROCEDURE
EVIDENCE
SPECIAL PROCEEDINGS
ENVIRONMENTAL CASES

PART I: CIVIL PROCEDURE

Jurisdiction
Stuff to take note of in jurisdiction:

What is the definition of jurisdiction?

Jurisdiction over the case or the subject matter? (Subject matter
jurisdiction)
Jurisdiction over the person or the defendant?
Know the rules on filing fees.

N.B. vis--vis for criminal cases:

Definition the same, as conferred by law, except you have to add that
venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in
civil cases, where parties can agree on venue or it can be subject to
waiver.

What is the definition of jurisdiction?

o The power of the court to hear, try, or decide the case
o As conferred by law
How will the court know that it has jurisdiction?
o From the allegations of the complaint.
o What if the defense interposes claims or defenses outside
the jurisdiction of the court?

It does not divest the court of its jurisdiction;

otherwise, jurisdiction will be at the mercy of the
defense.
Where do you take jurisdiction over the case?
o Conferred by law as well.
o Study BP 129, amended by RA 7691.

Do not assume that RA 7691 tells all. There are other

laws too.
Distinguish jurisdiction from venue:
o Jurisdiction is the power to hear and decide a case. Venue is
where the action is instituted and tried.
o Venue can be waived; jurisdiction, not.
Distinguish errors of jurisdiction from errors of judgment:
o When a court takes cognizance of a case over the subject
matter of which it has no jurisdiction, it commits an error of
jurisdiction. It is reviewable by certiorari.
o When a court makes errors in the exercise of such jurisdiction,
it is just an error of judgment, reviewable by appeal.
What is the jurisdiction of the RTC?
o 1. Right/title/interest over real property, where value is: Value
is > 20K (OMM), > 50K (MM)

Claim for ejectment due to unpaid rentals of over

400K. Which has jurisdiction?

MTC. Ejectment is always under MTC,

regardless of the claim over unpaid rentals.

Recovery of possession, not ejectment. Fair

market value of property is 1.5M. The assessed
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?

RTC, based on assessed value (not FMV)

which is over 50K. Recovery of possession
does not necessarily mean ejectment (ex.
Accion publiciana).

Value is determined by assessed value if it

involves right, title, or interest

Ouano case?

There was discussion whether FMV or

assessed value dictates. Assessed value
wins.
2. Amount incapable of pecuniary estimation

Examples: rescission, reformation of contract, specific

performance

Is expropriation capable of pecuniary estimation?

Expropriation is always filed with the RTC.

Though the subject matter is capable of
pecuniary
estimation,
the action
is
exclusively instituted in the RTC.

What about declaratory relief?

RTC always has jurisdiction, and the SC

does not except when there is an issue of
constitutionality.

There is no such thing as determination of

value; just a determination of validity.

What about support?

Even if its amount can be determined, the

law confers it to the Family Courts.

Foreclosure of mortgage?

Two views: one says that its always with the

RTC, because it only covers the security of
the property. The original action is always
for recovery of money.

The other view is that it must be governed by

the value of the security.
o 3. Family cases/marriage

Includes support, annulment, nullity, etc.

o 4. Juvenile/agrarian case
o 5. Other claims, where claim exceeds 300K (OMM) or 400K
(MM)

The original text gives lower values. When was it

adjusted?

Original costs took effect March 25, 1994

1999 adjusted OMM from 100K to 200K

2004 adjusted both MM and OMM to 400K

and 300K respectively

Always take note of the word exceeding so the exact

amount is for the lower court.
o 6. Probate of will, determination of inheritance same amounts

Considering that the MTC has jurisdiction over

probate cases, at times, what if the value of the
estate is 100K? Can the probate of a will be
subject to summary procedure?

No.
The rules on summary procedure
explicitly exclude probate proceedings.

Note that the MTC has a number of procedures.

There are ordinary proceedings and summary
proceedings, and now, small claims.

So the not exceeding 100K (OMM) and not

exceeding 200K (MM) only applies for
summary proceedings.
But it explicitly
excluded probate proceedings.

What is the jurisdiction of the MTC over small

claims?

Not exceeding 100K.

o 7. Admiralty cases same amounts
o 8. All cases not within the exclusive jurisdiction of any court,
tribunal, person, or body exercising judicial or quasi-judicial
functions
In determining the 300K/400K, can you include damages, interest,
attorneys fees, litigation costs, etc?

NO. Only limit the amount to the demand or the claim. The
totality rule only covers purely money claims, and does not
include incidental claims.
o But remember that there can be a principal action for
damages, in which the amount of damages claimed
determines the amount. This is not covered by RA 7691, this
is covered by 95-9-94.
Small claims
o What is the amount?

Not exceeding 100K.

o Is there a distinction between OMM and MM in small
claims?

No.
o What should be included in the 100K?

The claim itself.

Exclusive of damages

What if the principal action is for damages?

Does not apply. Actions for damages are

not covered by small claims actions,
because these have to be ascertained.
These are not akin to sum-of-money cases.
o Does it cover quasi-delicts?

Yes. (Covers: fault/negligence, quasi-contract, or

contract)
o What if it arises from commission of an offense?

Yes for the civil aspect of such (fault/negligence).

Just remember that when you file a criminal case, the

civil aspect is likewise filed (unless reserved, waived,
or filed ahead). So it cannot be the subject of small
claims.

BUT if it is filed ahead or reserved, then it can be the

subject of an action for small claims.
o What, therefore, are the actions covered by small claims?

A. Money owed under:

Contract of lease

Contract of loan

Contract for services

Contract of sale

Contract of mortgage

B. Damages from:

Fault or negligence

Quasi-contract

Contract

C. Enforcement of a barangay amicable settlement

Do you need a lawyer to file the complaint? Do you need
to prepare a regular complaint?

No need for a lawyer. There is also a standard form

provided.
What must be filed in the MTC to commence the claim?

1. Accomplished and verified Statement of Claim

(Form 1-SCC)

2. CNFS

3. 2 photocopies of the actionable document

4. Affidavits of witnesses and other evidence

Is joinder allowed?

Yes, as long as the aggregate amount

doesnt exceed 100K
What is the next step?

1. Court may dismiss the small claim

2. Otherwise, it issues summons on the same day

directing respondent to submit a verified response

3. Court also issues a notice to both parties directing

them to appear for hearing on a specified date with
warning against unjustified postponement.

4. Respondent submits verified response within 10

days from receipt of summons, with photocopies of
documents and affidavits of witnesses.

What if there is no response?

o Court grants the claim.
o But may reduce the amount of
damages claimed, if excessive.
When is a counterclaim allowed requisites?

1. It is within the coverage of the small claims court,

exclusive of interests and costs

2. Arises from the same transaction or event as

plaintiffs claim

3. Does not require joinder of third parties

4. Not subject of another pending action

What if the defendant fails to raise such

counterclaim?

It is barred.
o How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
There is an overlap here between summary procedure and
small claims procedure. Which is preferred?

This is still open for discussion, and is not yet clear.

Sir suggests that the option is upon the complainant,

since there is concurrent jurisdiction of both small
claims court and court of summary procedure.
o How is the hearing conducted?

The judge first attempts to arrive at mediation,

conciliation, early neutral evaluation, or any mode of
JDR.

Failing that, the JDR judge also proceeds to hearing,

which must terminate within 1 day.
N.B. Sec. 21 of BP 129, as amended, provides that the RTC has
concurrent original jurisdiction for:
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, injunction, enforceable within respective regions
o 2. Actions affecting ambassadors, other public ministers, and
consuls
What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
o How do you know whether its ejectment/UD or claim over
real property or a title therein?

If the issue is just possession, its E/UD. If it involves

rights of the parties to the property, then its not.
What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
judgment of RTC

N.B. Its original jurisdiction is exclusive as regards

annulment of judgment of RTC
o Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies

What is the jurisdiction of the SC?

o Also both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, disciplinary actions
over PLUS

Actions against members of the Bar [concurrent with

IBP];

actions against ambassadors, public ministers,

consuls, etc.;

constitutionality of treaties, laws, proclamations, etc.;

declaratory relief only when there is a question of

constitutionality
o Appellate:

decision of CA, decision of CTA en banc, decision of

SB, decision of RTC on pure questions of law;

REMEMBER this motherhood statement: the only

way to go up to the SC is for petition for review on
certiorari (RULE 45). This applies to civil and criminal
cases, except if the penalty in a criminal case is
death, RP, of life imprisonment.
Jurisdiction over the person of the defendant:
o 1. Voluntary appearance

By submitting to the jurisdiction of the court; ex.

Appearing in court or filing an answer or filing motion
for extension of time without disputing the courts
jurisdiction
o 2. Proper service of summons

Rule 14
Filing fees:
o Rule #1: payment of filing fees is jurisdictional in civil cases
o Rule #2: how does the court determine filing fees?

You include interest, damages, attorneys fees etc.

pay everything that you allege for court fees

But for jurisdictional purposes, just the principal claim

o Rule #3:

Sun Insurance

Filing fees must be paid within prescriptive period or

reglementary period (for appeals or compulsory
counterclaims), or else it is deemed prescribed

Rule #4:

Alday v. FGU Insurance

Permissive counterclaims require docket fees

The claim does not arise from the principal

action, but involves the same parties. This
could easily have been filed separately.

Compulsory counterclaims do not require docket fees

BUT read Korean Technologies case of 2009 this

is how you answer the question whether compulsory
counterclaims require filing fees

From nowhere, this case required that even

compulsory counterclaims have docket fees
paid. Korean Technologies cited Rule 141.

But in practice, based on an SC Resolution,

the collection of filing fees on compulsory
counterclaims is suspended. This has not
been lifted yet.

Alday: Payment of filing fees for compulsory

counterclaims is not required. But you have
to take note of Korean Technologies now
Lien on the judgment?

If there are damages granted to the complainant, but

there has been lack of payment of filing fees. The
payment of docket fees is a lien on the damages.

Also applies if damages are awarded in the judgment

but not specified in the pleading.

What if the claim has already ripened upon the

filing of the complaint, but by omission, but you
were not able to allege it. Can this be a basis for a
lien on the judgment?

Proton Pilipinas v. Banque Nacional

There was a claim that has ripened but was

not included, and there were interests that
would ripen once the action is pending.

SC said that a claim ripened during the

pendency of the case, it can be a lien on the
judgment.

But if you did not allege it, the court cannot

grant an award because you did not pay
docket fees.
o What is the rule on deficient or insufficient payment of
filing fees?

Rivera v. Del Rosario

You have to pay full filing fees. The deficiency must

not be based on the fault of complainant. But if the
fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the deficiency.

Jurisdiction is not automatically lost. Clerk of court

makes a deficiency assessment.

There must be no intention to defraud.

Planters v. Fertiphil:
o Planters did not pay appellate docket fees. But this was in
1992, prior to the 1997 Rules on Civil Procedure, which began
the requirement of appellate docket fees. The 1997 Rules
must not apply retroactively.
Thornton:
o Husband filed for habeas corpus in RTC Makati to recover
child from wife
o What are the two kinds of habeas corpus?

N.B.: there are two kinds of habeas corpus custody

of minors and regular habeas corpus in the Rules of
Court
o RTC Makati dismissed the case because the child was
allegedly in Basilan.
o What is the effectivity of writs of habeas corpus?

N.B.: Effectivity of writ issued by regular court only

enforceable in the territorial jurisdiction. But CA and
SC everywhere.
o Filed with the CA, but was denied because the RTC (Family
Courts) have original jurisdiction over custody of minor Habeas
Corpus cases.
o HELD: Can file with CA. It has jurisdiction. SC has
jurisdiction, too. The CA and SC have concurrent jurisdiction
over habeas corpus cases.
o But always remember that when you talk about concurrent
jurisdiction, you still have to follow hierarchy of courts.

Herrera v. Bollas
o Ejectment case (1 year period). Filed within the proper
period, but the complaint was amended to add additional
defendants beyond the 1 year period. Does the court still
have jurisdiction?

HELD: MTC still had jurisdiction for ejectment (based

on original complaint.)
o After the lapse of the year period for ejectment, has the
claim prescribed?

No. N.B. One year period is not prescriptive period.

You just file action pubiciana with the appropriate
court (RTC or MTC, depending on the assessed
value), not the MTC by default (for ejectment).
Oca:
o Repetition of Tijam v. Sibonghanoy estoppel by laches. After
active participation in a case, you cannot question the courts
jurisdiction anymore.
o Went up to the SC through Rule 43 (appeal to CA from a QJA)
o But what is the general rule?

Question of jurisdiction can be raised even for the first

time on appeal, as long as estoppel by laches does
not apply.

One cannot question jurisdiction which he himself

invoked. (Ex. obtaining affirmative relief against the
other party and then after failing to obtain that relief,
question the courts jurisdiction)
Usually decisions of QJA go up to the CA under Rule 43. What are
the exceptions?
o 1. HLURB decisions, as provided in charter, appealable to the
Office of the President
o 2. CTA decisions, under amended rules, appealable to the
CTA en banc, then SC
o 3. NLRC decisions, although by a QJA, are reviewable by the
CA although not under Rule 43, but Rule 65 (GADALEJ).
o 4. OMB decisions go to the CA, under Rule 43, for
administrative cases. But if there is GADALAEJ, go to the SC,
under Rule 65.
Mijares:

Which court has jurisdiction over enforcement of foreign

judgments?

RTC, because enforcement of foreign judgments are

incapable of pecuniary estimation.

ALWAYS, regardless of amount of judgment, since it

is not based on the amount of the claim.

In this type of action, you dont need to prove the facts

again, etc.
o Marcoss group that docket fees must be based on the
value/amount of the claim, which is up to the Billions. Is
this correct?

This rule applies to money claims against an estate,

but without judgment yet. Here, there already was a
judgment in DC of Hawaii.
o How do you impugn a judgment?

Lack of notice

Lack of jurisdiction

Collusion

Fraud
o What is the rule on Arbitral awards?

These must be should be enforced or recognized

An arbitral award is not a foreign judgment (Under

ADR Rules)
Zamboanga Barter Goods:
o N.B. Rule 65 is not an appeal. It is a special civil action.
o Being one, RTC, CA, and SC have concurrent jurisdiction.
When you discuss concurrent jurisdiction, you cannot avoid
discussing hierarchy.
o But when you talk about appeals, no need to consider
hierarchy. The law already makes a decision for you.
Can a court lose jurisdiction after acquiring it?
o Generally, no.
o Exceptions:

1. Subsequent law provides prohibition for continued

exercise of jurisdiction

2. Law penalizing the act is repealed by a subsequent

law

3. Accused deprived of constitutional right

4. Proceedings are terminated, abandoned, declared

void

5. Appeal has been perfected

6. Curative law
What is the principle of exercise of equity jurisdiction?
When the court is called upon to decide a particular situation
and release the parties from correlative obligations, but if it
would result in adverse consequences to the parties and the
public, the court would go beyond its powers to avoid negative
consequences in the release of the parties

Jurisdiction of special bodies and courts

CHR:
o

Can it review court decisions?

No; separation of powers

o Can it issue injunctions?

No. Just fact finding and investigative.

What is the extent of the labor arbiters power on claims for
damages by employees?
o Action for damages incident to dismissal is part of LAs powers.
o BUT NOT if the damages are based on quasi-delict not arising
from ER-EE relations.
What is the remedy for annulment of NHA awards?
o With the Office of the President.
o And then from there, Rule 65.
What are the cases under HLURB jurisdiction?
o 1. Claims of condo buyers against project owner, developer, or
dealer
o 2. Specific performance of contractual and statutory obligations
filed by condo buyers against same parties
o Does HLURBs jurisdiction cover actions filed by the
project owner, developer, or dealer?

No. Its always the other way around.

COMELEC:
o When can the SC review COMELEC decisions?

Only when there is GADALEJ

o Can the COMELEC issue writs of certiorari, prohibition, or
mandamus?

No.
What is the jurisdiction of Family Courts?
o 1. Criminal cases where one or more of the accused is below
18 or one or more of the victims was a minor
o 2. Petition for guardianship, custody of children, habeas corpus
for custody of children
o 3. Adoption of children and revocation
o 4. Annulment, nullity, and actions on status and property
relations of married people
o 5. Support and/or acknowledgement
o 6. Summary judicial proceedings other the FC
o 7. Declaration of status of children (abandoned, dependent,
neglected, etc.) and actions on parental authority
o 8. Constitution of family home
o 9. Cases against minors under the DDA
o 10. Violation of Child Abuse Act (RA 7610)
o 11. VAWC cases
What are the provisional remedies the Family Court can issue?
o Restraining order against accused or defendant if there is
finding of abuse
o Temporary custody over children
o Support pendente lite
What is the Katarungang Pambarangay Law?
o There must be settlement of disputes between individual
residents of the same city or municipality, through mediation,
arbitration, or conciliation, before the Katarungang
Pambarangay. Compliance with this is a condition precedent
to filing a complaint or information before the fiscal or court.
What are the cases over which the lupon can take cognizance of?
o ALL cases between parties residing in the same municipality or
city.
o What is determinative, residence or postal address?

Residence, which is actual place which one inhabits.

Must be more or less permanent, not merely

transient.

But it need not be domicile or legal residence;

physical presence is controlling.
o X filed a case against Y, who lived in the same barangay,
and Z, who didnt. Is barangay conciliation needed?

No. At least one respondent lived elsewhere.

What are the exceptions to this rule?
o [Nature of a party]
o 1.
One
party
is
the
government
or
any
subdivision/instrumentality
o 2. One party is a public officer or employee and the dispute is
re: official functions
o 3. There is no private offended party
o 4. Complaint against juridical entities
o [Nature of complaint]
o 5. Offenses punishable by imprisonment of more than 1 year or
fine exceeding 1000 pesos
o 6. Labor disputes arising from ER-EE
o 7. Disputes arising from CARL
o 8. Action to annul judgment upon compromise
o [City/municipality requirement]
o 9. Dispute is re: real properties in different cities or
municipalities

Can be waived by the parties by consenting to submit

the case to the lupon first
o 10. Parties reside in barangays of different cities or
municipalities

Except where the barangays adjoin each other and

the parties consent to submit the case to the lupon
o [Equity]
o 11. As determined by the President in the interest of justice, or
upon recommendation by the SOJ
o 12. Where urgent legal action is necessary to prevent injustice,
specifically:

A. criminal case where the accused is under custody

or detention

B. habeas corpus filed by one illegally detained

C. actions with provisional remedies

D. action may be barred by statute of limitations

Where are objections raised?
o For objections to referral to the lupon, raise before the punong
barangay else, waived
o Failure to refer to lupon may be raised as a ground for motion
to dismiss else, waived

What is the procedure before the lupon?

o 1. Pay filing fees and submit complaint
o 2. Within the next day the lupon summons respondents and
complainants for mediation
o 3. Failure of mediation within 15 days from first meeting:
constitute the pangkat
o 4. Pangkat has 15 days to resolve the dispute from when it
convenes, extendible for another 15 days
o Who appears before the lupon or pangkat?

Just the parties, without counsel or representative,

except minors who may be assisted by next of kin
who are not lawyers
What is the form for settlement needed?
o 1. In writing
o 2. In a language known to the parties
o 3. Signed by them
o 4. Attested by lupon chairman
o When may it be executed by the lupon?

Within 6 months from date of settlement.

If it exceeds 6 months, then it can be enforced by

action in the MTC.
o Within what period may the settlement be repudiated?

10 days, on the ground of vitiation of consent.

Actions

What are the kinds of actions?

o Civil

Protection or enforcement of a right, or prevention or

redress of a wrong

Two types?

Ordinary

Special
o Criminal

Once the information is in court, only then does it

become a criminal action, that has already been
prosecuted by the State through the prosecutor.
o Special proceedings

Establishes a right, status, or condition

When is a civil action commenced?

o Upon filing of original complaint in court.
o For additional defendants later impleaded, on the date of filing
of the later pleading.
Are civil actions always based on a cause of action?
o No.
Distinguish ordinary civil action from special civil action?
o There is Cause of Action in ordinary civil action.
o Ex. Special Civil Action like declaratory relief does not need
cause of action
Requisites of cause of action?
o 1. Right of one party
o 2. Obligation of the other to respect
o 3. Breach MOST IMPT!
Distinguish cause of action from right of action:
o Right of action is the right to commence and prosecute an
action to obtain the relief sought. Elements:

1. Existence of cause of action

2. Performance of all conditions precedent to bring

the action

3. Right to bring an maintain the action must be held

by the person instituting it
What is the test of sufficiency of a complaint?
o Whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with the
prayer in the complaint
o Determined by the facts alleged, not defense alleged
What is splitting of a cause of action?
o Dividing one cause of action into different parts and making
each part a separate complaint
o Test: how many wrongs or breaches are there?
o Is splitting cause of action a ground for MTD?

No it is Res Judicata and Litis Pendentia

o Is the rule against splitting of causes of action absolute?

No. Except: if the reliefs sought for are cognizable by

different tribunals. An example is an Ejectment suit
cannot include recovery for unpaid telephone, electric,
and water bills, which must be filed in a separate
action.

Can there be joinder of cause of action?

o Yes.
o BUT it is not mandatory.
Does there have to be just one breach or numerous violations?
o Numerous.
o For every cause of action, there is one breach.
o For as many breaches as there are, there are as many causes
of action.
If there is a claim for sum of money, and several claims for
damages (moral, exemplary, etc.) are there multiple causes of
action?
o No. Just one, because claims for damages are incidents of the
one breach (failure to pay).
There are three promissory notes, with amounts of 50K, 100K, and
200K, and there is just one loan. There was failure to pay. How
many causes of action do you have?
o Three PNs, three causes of action.
Can there be joinder of alternative causes of action?
o Yes. Example is shipping of goods. First cause of action is
based on breach of shipping contract. In case it is void, the
alternative is to sue based on quasi-delict.
If you join cause of action should it arise from the same series of
transactions, or can it be totally unrelated?
o Scenario 1: X versus Y (just two parties). Can join as many
causes of action, even if totally unrelated.
o Scenario 2: X versus ABCD (multiple defendants). Can only
join the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law Rule 3 Section 6)
o Scenario 3: XYZ against A (multiple plaintiffs). Can only join
the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law Rule 3 Section 6)
Can you join ordinary civil actions with special civil actions?
o No.
Can you join two special civil actions?
o No. Because they have their own special rules.
Can you join recovery of sum of money and ejectment?

o No. Ejectment is summary proceeding, so it has its own rules.

What is the totality rule?
o When all of the claims are claims for sums of money, even if
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o But you cannot do this when not all are for sums of money.
o When does the totality rule apply?

1. Single plaintiff with multiple causes of action

against the defendant

2. Multiple plaintiffs with separate causes of action

against the defendant join in a single complaint
o Xs claims against Y are both for claim of ownership for
real property: property 1 is assessed at 49K, and property
2 is assessed at 15K and both are in manila. Can X file in
the RTC?

No. While the total exceeds the 50K threshold in

Manila, neither property falls within RTC jurisdiction
so the action cannot be filed there.
There is a sum of money claim and recovery of property in Cavite.
Can you join the action in Cavite?
o Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the property
(real).
o N.B. as well that venue is not jurisdictional in civil cases, unlike
criminal cases. Note as well that venue is waivable.
o Answer: Theoretically, you can join. But the other party is
expected to file a motion to dismiss on the ground of improper
venue. FOLLOW THE GENERAL RULE: The higher court
absorbs the claim (RTC > MTC).
What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
court.
o What happens to the balance?

Its lost. So its better to file a separate action in this

scenario.
Is misjoinder of cause of action a ground for its dismissal?
o No, it will NOT cause dismissal of the principal action.

It is severed and these proceed with separately.

10

Although there can only be separate proceeding when

there is separate filing.
o The court is not duty-bound to proceed with it, especially when
it appears that it has no jurisdiction.
What is a special civil action?
o Covered by special rules.
Distinguish actions in rem, actions in personam, and actions
quasi-in-rem:
o Action in rem is one instituted against the whole world.
o Action in personam is one against a definite defendant. It is
intended to subject the interest of the defendant on a property
to an obligation or lien.
o Action quasi-in-rem

When jurisdiction over the person cannot be acquired

(usually, non-residents) and instead, jurisdiction over
the res is acquired, although the owner is still named
as defendant, unlike true cases in rem

Ex. by attaching the property of the nonresident

The relief granted can only be limited to the res

because there is no jurisdiction to grant a personal
judgment

If the person appears, it becomes an action in

personam. If the person does not, jurisdiction is
limited to the property
What are personal and real actions?
o 1. Real action is one affecting title to or recovery of possession
or partition, condemnation, or foreclosure of mortgage on real
property
o 2. Personal action covers all others

Specific performance for delivery of real property is a

personal action
What are the tests to determine the nature of an action?
o 1. Ultimate objective test

If the ultimate objective is to recover real property, it is

a real action
o 2. Allegations and prayer test

The allegations of fact and relief prayed for determine

the nature of the action

What is a local action?

o One founded on privity of estates only and there is no privity of
contracts
What is a transitory action?
o One founded on privity of contracts between the parties
Atlantic Erectors:
o Collection for sum of money over construction project over
property. The plaintiff attempted to make an annotation of lis
pendens on the title of the property. HELD: You cannot do
this. This is an action in personam, not in rem, as regards the
property.
o A notice of lis pendens will only lie if it is a right, title, or interest
over real property. Outside of this, you cannot avail of a notice
of lis pendens.
Diaz:
o Rule 43, up to the CA. Attached duplicate of decision, but not
pleadings. This is enough for CA to give due course to the
petition.
PDIC:
o The main case is for declaratory relief (SCA). The question is
whether there can be execution of such (yes). There can also
be a counterclaim, even if declaratory relief is an SCA and the
counterclaim is an ordinary action.
Tolentino v. Natanauan:
o There is no res judicata between recovery of possession and
nullity of deed of sale.
o Requisites of res judicata?

A) Former judgment final

B) Court had jurisdiction

C) judgment on merits

D) Identity of parties, subject matter, causes of action

Parties

Who can be parties to an action?

o Natural persons
o Juridical persons
o Those authorized by law
What is the general rule?

11

o All those with capacity can be a party.

o For natural persons, that is the age of majority.
Can a six year old boy be a party?
o Yes, but with assistance of parent, guardian, or guardian-adlitem.
o A minor can sue, a minor can be sued if assisted.
What is the rule on married parties?
o Sue and sued jointly.
o What are the exceptions?

Judicial separation of property

Abandonment

Exclusive property of spouses

Involving practice of profession

What if the natural person is incapacitated?
o Can sue and be sued, but must be assisted.
o What if the person becomes incapacitated (supervening
incapacity), will the case be dismissed?

No. Sec. 18 provides that the court will provide

assistance.
When can we say that a juridical person has capacity?
o Duly incorporated and registered with the SEC.
[Mild segue into summons] If the defendant is a natural person, how
do you serve summons?
o Priority is personal service. It must be served to the persons,
wherever he may be found. (Ex. The James Yap rule they
tried serving it to him in Araneta)
o If he cannot be found, substituted service to a a) person of
sufficient age and discretion and b) residing therein. Either
residence or office.

What is sufficient age and discretion? Recent

ruling says age of majority.

Should not be a transient. Must reside therein.

Can a foreign corporation sue and be sued?
o If its an isolated transaction, a foreign corporation can sue and
be sued.
o If its doing business but not licensed, it CANNOT sue, but can
be sued.
o If its doing business and is licensed, it can sue and be sued.
Service of summons to a domestic corporation?

Rule 14, Sec 11: president, managing partner, general

manager, corporate secretary, treasurer, in-house counsel
How do you serve summons to a foreign corporation?
o Resident agent one named to receive summons
o Representatives and officers found in the Philippines (if it has a
branch, for instance)
What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
o No separate juridical existence.
o They can be parties, as defendants, and named as such
(under the name under which they are generally and
commonly known).
o They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
How do you serve summons to a non-juridical entity?
o To anyone or person in charge of the office.
Who are those authorized by law? Give examples.
o Political parties
o Labor unions
o Archdiocese
o Estate
How do you serve summons?
o Depending on the entity they have different rules.
Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
For public corporations?
o Province executive head (governor)
o City city mayor
o Municipality municipality mayor
Who is a real party in interest?
o A party who stands to be benefitted or prejudiced by the
judgment.
Does the concept extend even to defendants and third party
plaintiffs/defendants? What about an intervener?
o The law does not limit it to plaintiffs only it uses party as a
generic term, so it can encompass any party impleaded, if he
will benefit or be injured.
Does this concept of real party in interest apply to all cases?

12

No. The concept of real party in interest will only apply to

private suits.
o Does it apply to a taxpayer suit?

No. Locus standi applies here.

o Does it apply to criminal cases?

[Not answered, but I think not]

o What is the difference from legal standing/locus standi?

This is from public suit filed by a private party. There

is a broader policy concern here, even if there can be
benefit or injury as well.
o A Congressman does not believe in the act of the
President, so he questions it as part of his legislative
prerogative. Is he a RPII?

No. Locus standi applies as well.

Thus, differentiate RPII from locus standi:
o Locus standi pertains to acts of government. By reason of this
act, you suffered injury.
o You do NOT use legal standing in private suits. Only in public
suits.
Who is a necessary party?
o A) They are not indispensable, B) but ought to be joined if one
needs complete determination of the case.
Who is an indispensable party?
o If not impleaded, there can be no final determination.
o N.B. The codal does not use the word complete. So they are
compulsorily joined.
What if there is a suit against joint debtors?
o The other parties not sued are necessary parties.
o Can you sue one of them only?

Yes. The court can issue a valid judgment, although

not complete.
o Can you then proceed against the other one, though not
impleaded at first?

Yes.
What if there is a solidary obligation, not joint? Ex. X and Y
solidarily owe Z PHP 100,000. Z sues.
o Neither necessary nor indispensable.
o Can you sue X only?

Yes.

Can there be judgment?

Yes, because the obligation is joint and several

(solidary).
o Can you sue Y later on, having recovered from X?

No, because you recovered already.

o Can you sue at the same time?

Yes. The case can proceed against either, or both.

There is an action for recovery of title AND possession. X holds
title; Y has possession of the property. The action is just for
recovery of title. Can you sue X?
o Yes, because X is the proper party.
Same facts. Can you sue Y for recovery of title, without suing X?
o No. Y is a mere possessor. The court cannot render judgment
without impleading X. X is an indispensable party in this case.
What is the failure of failure to implead?
o If it is a necessary party, the general rule is that failure to
implead is non-prejudicial. There is no waiver of right to
implead.

BUT if there is an order to implead by the court and

there is failure to comply, there is a waiver of claim.
o If it is an indispensable party, the court should order that the
indispensable party be impleaded (Domingo).

If despite this order to implead, the plaintiff did not

comply, the case should be dismissed.
o What if the court did not notice non-joinder, and thus did
not order to implead the indispensable party, and renders
a decision?

The judgment is null and void.

What is a class suit?
o One where the subject matter of the controversy is of common
or general interest to many persons so numerous that it is
impracticable to join all as parties
o What is the rule?

The court will allow a number of them sufficiently

numerous and representative to fully protect the
interests of all to sue or defend on behalf of all
o What is the right of an individual party in interest?

May intervene to protect his individual interest

13

When is there substitution of parties in a civil case? There are

three.
o 1. Death

Who should die?

Any party. The law does not distinguish.

This is the most common.

o 2. Change of holder of public position (death, resignation,
removal, cease to hold position)

This is a very limited application, since it just applies

to public officers.
o 3. Transfer of interest
What are the requisites of substitution by death?
o 1. A party dies
o 2. The pending action is not extinguished by reason of death
(IMPT)
o Why does the law need to say this?

Because there are actions that are extinguished by

death. Examples are actions that are purely personal
to the party

Give examples.

Ex. Contract for Michael Jackson to sing in a

party.

Ex. Receipt of a widow of support. When

she dies, the support from widowers estate
is gone.
What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.

When is the 30 day period counted?

From the FACT of death, and not from the

knowledge thereof.
o 2. Give names and addresses of the legal representatives

Who should be legal representatives?

Legal heirs, administrator, or executor

N.B.
The law provides for legal heirs,
because there is procedure to be done
before appointment of administrator or
executor (ex. probate of the will for the
latter).

o 3. Court orders substitution and for the substitute to appear

There is action of A and B against C, D, and E. What if E dies?
o The counsel of E names a substitute. The court will then act
accordingly.
Same facts. However, there was no successful substitution (i.e.
the duties were not complied with). What happens?
o There can be a valid judgment, but only against C and D.
o There can be no valid judgment against E.
Same facts. No substitution of E either. But C and D are
incidentally, heirs of E. Can there be a valid judgment as to C and
D? Is there a need for substitution?
o There is still a need for substitution, even if C and D are
already parties. That C and D are incidentally Es heirs as well
does not change the result.
o This is the Brioso case. There is valid judgment only against
C and D. It is wrong to say that C and D automatically
substitute for E. There are other heirs who are affected by this
improper automatic substitution.
o What is the effect if E is necessary? If E is indispensable?

Relate the provisions above. If necessary, you can

subsequently file a suit against Es heirs to complete
the judgment. If indispensable, the judgment is null
and void, even against C and D.
What if no legal representative is named by the counsel for the
deceased party or the one named fails to appear?
o The court may order the other party to procure the appointment
of an executor or administrator for the estate of the deceased.
o The costs for appointment may be recovered by the appointing
party.
What are the requisites for substitution of public officer?
o 1. Removal/death of public officer and appointment of
successor within 30 days unless otherwise provided
o 2. Successor adopts, continues, or threatens to continue the
action sued against
o 3. There is substantial need to continue the action
Substitution is not automatic. What are needed to be done to
substitute the new public officer?
o 1. Give notice to the new public officer
o 2. Opportunity to be heard for the new officer

14

Mere fact that he is inclined to continue the action of

the predecessor is not enough
Give an example of transfer of interest.
o A sues B for judgment for sum of money based on contract. B
assigns the contract to C and C accepts.
o Can the case continue against B despite the transfer of
interest?

Yes.
o Can the court order that C be impleaded?

Yes. But there is no substitution here. C is just

joined.
o How then can there be substitution?

The court has to order a substitution, not mere

impleading. BOTTOM LINE: there has to be a court
order.
In case of death of a defendant in a contractual sum of money
case, will there be substitution? (VERY IMPORTANT)
o Section 20. It will NOT go to the heirs, but it will continue
against the estate. (Remember Succession!)
o This is the special rule for contractual sum of money cases.
o Ratio for this?

Because you ultimately deal with the executor or

administrator anyway.

But its wrong to say there is substitution, because the

law does not mandate it.
o This position is further supported by Rules 86 and 87.
o What are the requisites for this rule to apply?

1. The DEFENDANT must die

2. It must be a sum of money case based on contract

o What if the plaintiff dies?

The general rule will apply, even if its a sum of

money case.
Indigents Algura v. Local Government of Naga: Resolves the
apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.
o If the indigent fits within the parameters set by Rule 141, Sec.
19, then the court must declare him to be an indigent.

What is the Rule 141 requirement?

Gross income + family income does not

exceed twice of monthly minimum wage

And owns real property whose FMV is less

or equal to PHP 300K
o If he doesnt, he falls under Rule 3, Sec. 21 and must apply for
indigent status. (Indigency test) Here, the court exercises
discretion as to whether you are an indigent or not.
o So can a person owning real property with FMV of PHP
300,001 be declared an indigent?

Yes, but under the indigency test.

If you are declared an indigent, you do not pay filing fees. But
what happens when there is a judgment?
o There is a lien, as regards filing fees.
What is the rule on stenographic notes?
o It is free. There is no lien on the judgment.
What happens when the court finds out you are not an indigent?
o The court can require you to pay.
o What if you refuse to pay?

The court can order execution.

o What if you fail to pay or ignore the execution?

The court can dismiss the case, for failure to comply

with an order of the court.
When does the court in its discretion require the Solicitor General
to be heard in person or through a representative?
o When the action involves validity of a law, treaty, ordinance,
EO, PD, or rules and regulations.

Venue

What is the appropriate venue for:

o 1. Real actions where the real property is found
o 2. Personal actions residence of (principal) plaintiff,
residence of (principal) defendant, or wherever a non-resident
may be found
o 3. Against non-residents and (a) the action affects the personal
status of the plaintiff or (b) any property of the defendant in the
Philippines

Residence of plaintiff

Or where the non-residents property may be found

N.B. I suppose this pertains to the two situations,

respectively

15

Do not make the mistake of confusing venue and jurisdiction in civil

procedure. Jurisdiction is the power given by law to hear, try, and
decide cases. Knowing what court is one thing, but knowing where to
file it is different.
There was an agreement to develop a piece of land in Tanay, Rizal
to become a memorial park. The duty of the owner (living in
Quezon City) of the piece of land is to provide property. The duty
of the developer (located in Pasig) is to dig up the land, put
drainages, etc. The owner of the land died, and the heirs are now
substituting for their father. They want to rescind the agreement to
develop. Where do they file?
o There are two steps in venue problems. First, determine: is it
a real action or a personal action?

Its a personal action.

It involves rights and
obligations of parties, although the subject matter
involves land.
o Where do you file it?

At the option of the plaintiffs. Either in their principal

residence (Quezon City) or the defendants (Pasig)
o Which court has jurisdiction?

RTC, because it is an action incapable of pecuniary

estimation (rescission)
Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the
codal provides the word principal before plaintiff and
defendant, so that the plaintiffs will not file the case before farflung or inconvenient areas.
o In this case, Aileen Marcos is filing a case to enforce a trust,
and some nominees live in Batac, Ilocos. Marcos lives in
Makati. She filed in Batac.
o HELD: Should have filed in Makati, because she is the
principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
Its not covered by the Rules of Court, but Act 2135. For
purposes of EJ foreclosure, it should be filed where the
property is located.
o But the mere filing and payment of fees (for multiple properties
in various areas) can be paid in one office, as long as it can be

established that it covers all areas. But the actual sale will only
be done in the place where the properties are located.
What about judicial foreclosure?
o Rule 68 does not provide for venue for this SCA. But it is filed
where the property is located.
o But if it is for collection of a sum of money, file it as a personal
action.
Where do you file an action for nullity of marriage?
o RTC where the plaintiff resides, where the defendant resides,
or where their conjugal home is located (special rule in Family
Courts issuance)
What should be your first consideration? What is the general rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specific
law provides otherwise.
On specific venues, as provided by law
o Give an example.

Actions for Quo warranto if the Solicitor general

commences it, in can be in the SC, CA, or RTC of
Manila
o What if you want to file an action for perpetuation of
testimony?

This is covered by Rule 24 (deposition before action

or pending appeal).

Special rule: Place of residence of any expected

adverse party or defendant
o What about adoption?

Where the prospective adoptive parents reside

o What about probate?

Where the deceased last resided at his time of death

o Writ of habeas corpus on residence of minors?

General rule: RTC where the minor is supposed to be

found

Thornton: But if unknown or cannot be found, in the

CA or SC
Can the parties stipulate on venue?
o Yes, they can.
o In an ejectment case, the property is located in Cebu.
Plaintiff resides in Makati, defendant in QC. Where do you
file it?

16

In the MTC of Cebu. Residence in general does not

matter.
o What if I file it in Makati?

Yes.

But what will you expect?

Motion to dismiss on the ground of wrong

venue, coming from the defendant.

But what if there was no motion to dismiss, and in

the answer, there was no allegation of improper
venue?

There is waiver on the rules of venue.

Remember Rule 9, Section 1. This is the general rule on waivers and
objections on grounds not raised in an answer or MTD. Failure to raise
these grounds in MTD or answer is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
What is the distinction that you have to make as to stipulations?
o If there are no words of exclusivity, then it is only an additional
venue.
o If there are words of exclusivity (ex. can only be filed in Cebu,
waiving all other venues), then you can only file it there.
o (PBCom v. Lim is an example of a case with restrictive words)

In this case, the stipulation on venue in the principal

agreement (PN) applies to the accessory contract,
which is the surety agreement which cannot exist
without the prior agreement.
What if there was no Motion to Dismiss and no answer filed?
Apparently, the defendant did not notice the improper venue, or he
decided to waive it. Can the judge later motu propio dismiss the
case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground of
improper venue. (Gumabon)
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
filing an ejectment case in the MTC.) Here, while the rules on summary
procedure include MTD as a prohibited pleading, an exception is lack of
jurisdiction (contra. wrong venue).
What is the local version of forum non conveniens?

Prohibited forum shopping (Read Bank of America)

Summary procedure

1. Filing of the complaint

o In summary procedure, after filing the complaint, what can
the court do?

A) Dismiss the case outright

B) Issue summons
o What is the responsive pleading?

Answer.

Can you file a MTD?

In general, no. It is a prohibited pleading.

When do you file the answer?

10 days, not the usual 15.

o Can the plaintiff file a reply?

No. Its also a prohibited pleading.

o What if there is no answer?

The plaintiff can file a motion for the court to render

judgment.

A motion to declare the defendant in default is a

prohibited pleading. Just ask the court to render
judgment.
o After the filing of the last pleading, move on to next stage.
o N.B. all pleadings (complaint, compulsory counterclaim, crossclaim, answer) must be verified
2. Preliminary conference.
o Take note, in SP, it is NOT pre-trial but preliminary conference.
o When does the court set this?

Within period of 30 days.

o What happens here?

The parties can compromise, identify issues, etc.

o Can the court render a judgment based on what was
presented in the preliminary conference?

Yes, the court can, if it is convinced at this point in

time.
o Assuming there is no judgment in steps 1 and 2, move to the
next step
3. Submission of judicial affidavits or position papers

17

Is there a hearing in summary proceeding or trial?

No hearing, no trial.
o Within how many days do you submit affidavits?

Within 10 days from the receipt of the order (record of

preliminary conference)
o What is required for the affidavits submitted?

Must be within personal knowledge of affiants; or

else, expunge the affidavit and subject the party or
counsel to disciplinary action
o Can the court render judgment?

General rule: 30 days from the filing of the last

pleading

NOT submission for resolution, but

submission of the last pleading

Exception: 15 days, if the court asks for further

clarificatory documents
What are the prohibited pleadings?
o [Standard pleadings]
o 1. MTD

Except lack of jurisdiction over subject matter

Or failure to refer to lupon

o 2. Bill of particulars
o 3. Reply
o 4. Motion to declare in default
o 5. Memoranda
o [Adding other people]
o 1. Interventions
o 2. Third party complaint
o [Remedial pleadings]
o 1. MR or MNT
o 2. Petition for relief from judgment
o 3. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
o [Extensions]
o 1. Dilatory motions for postponement

Does this cover motion for cancellation of

hearing?

If is not dilatory. But be careful with this,

because the judge has to determine first if it
is dilatory.
o 2. Motion for extension of time
Jalique v. Dandan:
o This is a case where the respondents filed a joint counter
affidavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintiff. RTC affirmed. CA moved to
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
Bonifacio v. Bellosillo
o The judge was sanctioned here, because there was no
answer, and instead of promulgating judgment, he still called
for a preliminary conference.
Pascual v. Jovellanos
o The defendant filed a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
Boy v. CA:
o May the MTC pass upon questions of ownership in an
ejectment case?

YES, only provisionally and for the purpose of

resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This special
authorization is a valid cause for someone else to appear in
the plaintiffs or defendants behalf.
o What happens when the plaintiff is absent in preliminary
conference?

Case is dismissed
o What happens when the defendant does not appear?

As if he didnt file an answer. The court can render

judgment.

What is the stopgap?

Have an explanation OR send a representative

Where does this rule come from?

Provision on authorization does not appear in the

rules on summary procedure. But the SC applied to
Rule 70 suppletorily, the rules of Rule 18 on pretrial
and appearance by representative.

Small claims

18

What should a plaintiff file?

o 1. Statement of claim
o 2. Together with certificate of non forum shopping
o 3. Authentic copies of document from which the action stems
from (actionable documents)
Who signs the statement of claim?
o The claimant. No need for the lawyer.
o [Atty. Salvador: maybe this special rule is for bar flunkers to
practice, because the claimant still needs to file certain
documents he may not know how to execute]
What happens after?
o Court files notice for defendant to submit response
o Defendant has 10 days to file a response
o What are the formal requirements?

There is already a form provided for the plaintiff and

defendant to fill in.

They just need to attach documents.

o Can there be a counterclaim in a small claim action?

Yes. As long as within jurisdiction of the court, and

arising from the same transaction, and does not
require joinder of third parties.
And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o Can a claimant apply as an indigent litigant?

Yes. (Aldura)
o Will there be presentation of evidence?

Yes, but it is not a strict and formal trial. You can only
present the evidence attached to the claims.

Is there a preliminary conference?

None mentioned.
o Do the parties have to appear?

Yes, or at least their representatives. Failure for the

plaintiff to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same effect as not filing a response.
What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral
o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral
by JDR judge
Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception.
o Why is failure to refer to the lupon not an exception?

Because the claim is below P100K (no barangay

conciliation required)
Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?

Rule 65 (petition for certiorari) because there is no

plain, adequate, speedy remedy

Pleadings

What must be in the complaint?

o Claims a cause of action
o Must contain allegations brief and concise statement of
ultimate facts, devoid of evidentiary matters

You can also allege as to fraud, mistake, malice,

illegality, condition of the mind, etc.
As to matters of fraud, how must it be alleged?
o With particularity
As for mistake, how must it be alleged?
o With particularity

19

If its a condition of the mind (malice, intent, knowledge, etc.)?

o Generally
You can also base your claim on an actionable document. How to
do you allege it?
o 1. You can attach or append the document

To show the court that this is where your cause of

action arises
o 2. You can reproduce the contents of the document in the
pleading en toto

(But in practice, just always append anyway)

How do you deny an allegation under an actionable document?
o Specifically denied, under oath
o What is the exception to the oath requirement?

1) When the adverse party is not a party to the

instrument

2) When there is an order for inspection and it is

refused
What is the effect of failure to specifically deny under oath an
actionable document?
o It is an admission ONLY as to the genuineness and due
execution of the actionable document
But what about the rights and obligations of the parties arising
from that document?
o It is up to the court to determine it.
What is the period for a motion to strike out a pleading or a matter
contained therein?
o 1. Before responding to a pleading
o 2. If no responsive pleading is allowed, then within 20 days of
service of that pleading upon him
o 3. Upon courts initiative, at any time
o What are the grounds to strike out a matter from a
pleading?

1. Sham or false

2. Redundant, immaterial, impertinent

3. Scandalous
What is the period to file an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?

For foreign corporation and service is done to

government official designated by law
What is the period to answer an amended complaint?
o A. If amended as a matter of right, 15 days from service of
copy of the amended pleading (N.B. not from summons
anymore since the defendant has already been summoned)
o B. If not a matter of right, 10 days from notice of order
admitting it

N.B. This is not from receipt but notice of admission

because the proposed amended pleading is attached
to the motion to amend the complaint anyway.
What if there is no new answer filed?
o The prior answer serves as the new answer too if no new one
is filed
What are the defenses available in answer?
o 1) Affirmative defense

If you only hypothetically admit, without raising

any defense, what happens?

In this case, there is no more issue. This will

lead to a judgment on the pleadings (Rule
34)

This occurs when the answer does not

tender an issue or admits the material
allegations
o 2) Negative defense

Specific denial of facts alleged essential to the cause

of action.

What are the kinds of specific denial?

1) general denial

2) specific denial

3) disavowal of knowledge (lack of

knowledge and belief to form a specific
denial)
o What is a negative pregnant?

A denial which implies its affirmative opposite by

seeming only to deny a qualification of the allegation
and not the allegation itself (Ex. I have never
consumed cocaine while on duty implies the
defendant has consumed cocaine otherwise)

20

Is the counterclaim or cross-claim in a separate pleading?

o No.
What is a compulsory counterclaim?
o Arises out of the transaction constituting subject matter of the
action and does not require the presence of third parties of
whom the court cannot acquired jurisdiction
What is a permissive counterclaim?
o Arising from an event unrelated.
What is the period to answer a counterclaim?
o 10 days
o (In practice, you only answer a permissive counterclaim. In
practice, a compulsory counterclaim is not answered.)
What is the remedy of the other party if the facts from which the
counterclaim arises from only came about or ripened after the
answer has been filed?
o With leave of court, may be presented as a counterclaim (or
cross-claim) by supplemental pleading before judgment
What is a cross claim?
o Made against a person/party on the same side.
Can there be a counterclaim defendant cross claim?
o Yes. The counterclaim defendant is the original plaintiff. He
can file a cross claim against a co-party.
Is there a period to answer a cross claim?
o 10 days
Do you need leave of court to file a counter or cross claim?
o No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
For a third party complaint, do you need leave of court?
o Yes. You cannot just file a third party complaint.
o Who is usually the third party plaintiff?

The defendant in the main case, who feels that he

should file a complaint against someone that court
has yet to acquire jurisdiction from.

This is the reason why there is need for leave of

court. You need to have the third party impleaded.

Why would you want a third party complaint?

To contribute or indemnify

Classic case: car crash a hit b hit

c. C sued B. B sued A for
indemnification.

Subrogation

Any other similar ground

What is the period to answer a third party complaint?

15 days, because it is treated as an entirely new

complaint
o

o
o
o

Is the reply a mandatory pleading?

o No.
What is the period to file a reply?
o 10 days.
What do you do in a reply?
o To controvert the new matters raised in the answer
What is the effect of failure to file a reply?
o All new matters stated in the answer are deemed controverted
What happens after answer, etc?
o Pre-trial

Three important things:

o Signature, verification, and CNFS
What is the effect of a lawyer affixing his signature in a pleading?
o 1. He has read the pleading
o 2. To the best of his knowledge, the information is correct
o 3. The filing of the same is not for the purposes of delay
There are some pleadings that are left unsigned. What happens?
o It has no legal effect at all.
o Is there a way to cure it?

If counsel can show it is due to mere inadvertence

and not for delay
o Will the court just give effect to the pleading or will it still
require actual signing?

[Didnt answer]
If a lawyer changes his address, what is his duty?
o Inform the court. Failure to do so may lead to disciplinary
action.
What are the contents of the verification?

21

Affidavit stating:
1. That the affiant has read the pleading
2. The allegations are true and correct based on personal
knowledge or authentic records

Based on personal knowledge, not information and

belief or knowledge, information and belief
Must it be under oath?
o Yes.
Is it mandatory?
o No. Only when the law requires you to verify.
o Give examples:

Rule 45 (Petition for review on certiorari)

Rule 65 (Petition for certiorari)

Rules 57-61 (Provisional remedies)

Is it jurisdictional?
o No. Failure to attach is not fatal.
o But why do the SC and CA dismiss cases for failure to
attach verification?

Although it can be cured, the court may dismiss a

pleading for failure to comply with procedural
requirements.
Who signs the verification?
o The party filing the pleading.
Can the lawyer sign it?
o General rule, no. Unless there is some compelling reason.
o For example, the partys father is to be buried on the day of
filing of the petition the court allowed it.
o Also, the distance of the petition from the counsel (ex. the
petitioner is in the USA and the counsel is in Manila, and there
are only 15 days to file.)
Can a minor sign?
o Must be assisted.
Can a married person sign by himself or herself?
o One spouse is enough, but only if there is common interest.
(N.B. but see note below)
For co-owners or those in the same residence?
o Signature of one is enough if there is common interest. (N.B.
but see note below)

TAKE NOTE: The key when it comes to multiple parties, all of them
have to sign. However, if there is a common interest among the parties,
a signature of a number of them may be enough.
o BUT in practice, do not take chances.
When is a verified pleading/motion needed?
o 1. Rule 24 (depositions pending action/depositions pending
appeal)
o 2. Rule 38 (petition for relief from judgment)
o 3. Rule 42 (petition for review: RTC to CA)
o 4. Rule 43 (appeal from quasi-judicial agency to CA)

Also: exemption from payment of lawful fees under

Rule 43
o 5. Rule 45 (petition for review on certiorari)
o 6. Rule 47 (annulment of judgment (CA))
o 7. Rule 58 (application for preliminary injunction)
o 8. Rule 59 (application for receivership)
o 9. Rule 61 (application for support pendente lite)

Also: comment on the application for support

pendente lite
o 10. Rule 64 (review of judgments/final orders of COMELEC
and COA)
o 11. Rule 65 (petition for certiorari, prohibition, or mandamus)
o 12. Rule 66 (quo warranto)
o 13. Rule 67 (expropriation)
o 14. Rule 70 (forcible entry and unlawful detainer)

N.B. covers all pleadings, including answer,

compulsory counterclaim, and cross-claim
o 15. Rule 71 (petition for indirect contempt)
o 16. ROP of envi cases, Part II: a) civil complaints, b) answer
o 17. ROP of envi cases, Part III: a) petition for writ of kalikasan,
b) return to writ of kalikasan, c) motion for ocular inspection or
production/inspection
o 18. Rule 93 (appointment of guardians)
o 19. Rule 95 (petition of guardian to sell or encumber property
of the ward)
o 20. Rule 97 (petition to examine competency of a ward, for
termination of guardianship)
o 21. Rule 102 (application for writ of habeas corpus)
o 22. Rule 103 (change of name)

o
o
o

22

23. Rule 108 (cancellation or correction of entries in civil

registry)
24. Habeas data: a) petition for writ, b) written return by
respondent, c) return of service by officer executing judgment
25. Writ of amparo: a) petition, b) written return by respondent,
c) motion for inspection, d) motion for production, e)
26. Rule 126 (Sec. 26: inventory of things seized under
warrant)

CNFS:
When is a CNFS required?
o For a complaint or other initiatory pleading
o So a compulsory counterclaim does not require a CNFS
What about a juridical entity? Who can sign?
o [Anyone, as long as authorized by a board resolution]
What are the contents of the form?
o 1. Plaintiff/principal party shall certify under oath that he has
not filed a similar complaint involving the same issues in
another court, tribunal, QJ agency
o 2. If there is any other pending claim, provide status
o 3. If he learns about similar action, report fact within 5 days to
the court
Why does the law require that it is the party that signs?
o Because it is only the party, and not even the lawyer, that
knows whether there is another action.
For those with no separate juridical existence, who signs?
o All the parties, since there is no juridical personality.
What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
o It will be dismissed. It can be re-filed because it is without
prejudice.
Can it be amended to cure?
o No, the defect cannot be cured by an amendment. Just re-file.
What is the effect of non-compliance? (Note: this occurs when there
is a CNFS, but you did not respect your commitment under the CNFS)
o 1. Dismissal of the case
o 2. Indirect contempt (Failure to comply with order or process of
court)

3. Administrative and criminal sanctions (since you lied under

oath)
What if there is willful and deliberate forum shopping?
o (Meaning, its not only false, but you also deliberately disregard
it)
o 1. Dismiss the case with prejudice

What kind of dismissal?

Summary dismissal cannot contest

o 2. Placed in direct contempt
o 3. Administrative sanctions
BPI v. CA
o There was a CNFS filed in the first place. What was not
attached was the board resolution showing the authority of the
Vice President to sign the CNFS on behalf of the company.
This authorization was submitted on the MR.
o NOTE:
There was a valid CNFS.
There was liberal
interpretation of this provision for these reasons.
Donato
o Here, the lawyer signed the verification, not the party. This
was validly excused by the court since the party was in the US,
and could not sign the pleading in time given the 15 day
period. There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
Young v. Seng
o There was no forum shopping, because the first case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and that
party can file the same case again.
o Failure to disclose this fact is not a violation of the CNFS.
OSM Shipping
o Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
Tan v. Kaakbay
o No need for a CNFS for a compulsory counterclaim
New Sampaguita
o There was no forum shopping here, because the first case
questioned whether there can be a writ of execution when the
parties agreed to compromise in the first place, when the court

dismissed the initial case. The second case was whether the
court approved the compromise agreement in the first place.
These are different.

Solar
o

Musa
o

Is the rule on personal service mandatory?

Yes. The rule is priority is by personal service. If you

cannot do it by personal service, you can do it by
registered mail, but you have to make an explanation.
In this case, it was made by registered mail and there was no
explanation. For this reason, the decision of the court to allow
it was based on its reasonable discretion. BUT this is not the
rule.
What are the material dates here?

Period only commences to run from date of receipt of

the decision

Date of filing of the MR

Date of receipt of denial of the MR

Amendments and supplements

23

There is amendment for civil cases and there is amendment for criminal
cases.
For civil cases, amendment may either be:
o 1) As a matter of right
o 2) With leave of court
When is it a matter right?
o Before an answer or within 10 days of service of reply (if the
reply is the one being amended)
o What do you need to file?

NOTICE to amend
When do you need leave of court?
o After an answer has been made
o What do you need to file?

Motion to amend
For criminal cases, the reference point is not an answer. Instead, it is
plea.
o Before plea, can you amend?

Yes, whether as to matter of form or substance

After plea, can you still amend?

Yes, but only as to matters of form, for as long as it

will not prejudice the rights of the accused

Dont forget that last bit!

What is the test when it will prejudice the rights of

the accused, even if its a matter of form?

If the original defense of the accused will not

change.
What is amendment to conform to evidence?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o If the evidence you presented went beyond the allegations, you
may file a motion to amend the pleading to conform to
evidence
o What if evidence is objected to on the ground that it is not
within the issues in the pleadings?

1. The court may sustain the objection

2. The court may allow the pleadings to be amended

if the ends of substantial justice will be served
There are two kinds of amendments to conform to evidence. What
are these?
o First kind no objection on the part of the other party. For this
reason, it will be allowed even after judgment.
o Second kind if the other party objects, the amendment is left
to the sound discretion of the court.
Can you amend a complaint when it originally has no cause of
action?
o If in the first place there is no cause of action, no amendment
will cure such an absence.
o Can the court order an amendment even if there is no
application to amend?

1. Yes, if it is a mere formal (typo) amendment

2. For bill of particulars, the court can either order

compliance OR an amendment

3. Motion to dismiss the court can either grant,

deny, or order an amendment
There was an amendment of an original complaint, which was the
basis for the issuance of summons. If the original complaint is

24

amended and that is granted by the court, is there a need for

issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o It is a question of jurisdiction over the person, not a question of
amendment.
o HOWEVER, if there are additional defendants, new summons
must be served to them.
What is a supplemental pleading?
o A pleading filed in addition to a prior one that has been filed,
pursuant to new transactions, occurrences, or events that have
arisen.
o Can there be a supplemental complaint?

Yes
o Can there be a supplemental answer?

Yes
o Can there be a supplemental reply?

Yes
o Can there be a supplemental petition?

Yes
So what is the general rule?
o You can file a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the filing
of the first pleading.
o What is the exception?

Usually you cannot do this to the Supreme Court,

because you cannot file something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
What is the difference between amendments and supplements?
o Amendments pertain to events, transactions, or occurrences
that exist during the filing of the original pleading, but were not
placed in the pleading. There was just an omission.

May be filed without leave of court (before responsive

pleading)
o For supplements, the events, transactions, or occurrence only
arose after the filing of the original pleading.

Always with leave of court

What is the period to respond to a supplemental pleading?

10 days from notice of order admitting the supplemental

pleading

Default

N.B. 1: What is the rule on objections?

o General rule: all objections on grounds not raised in an answer
or motion to dismiss are deemed waived.
o What are the exceptions?

1. Lack of jurisdiction over SM

2. Res judicata

3. Litis pendentia

4. Prescription
o What is the fifth exception provided by jurisprudence?

5. Lack or absence of cause of action

This is different from Rule 16 (that the

pleading states no cause of action)
N.B. 2: What is the rule on failure to allege a counterclaim?
o Any compulsory counterclaim or cross claim not set-up: barred
forever
o In special proceedings a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the exception?

If there was a suit started by the estate against you,

the claim can be raised as a counterclaim.
N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.

There are no defendants, so notice is made to the

public that all oppositors have to come forward and
object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial

Called as in default in the 1964 Rules of Court

If the defendant fails to attend, the plaintiff can

present evidence ex parte
o 3. Failure to file answer
What are the requisites to declare the other party in default?
o 1. Did not file answer
o 2. There is proof of such failure

You have to show the return

25

o 3. File motion with court, with notice to defending party

Upon order of default, what are the options of the court?
o 1. Can render judgment

No need to present evidence ex parte anymore in this

case.

What is the extent of relief that can be awarded by

the court?

Not exceed the kind or amount from that

prayed for

Cannot award unliquidated damages

N.B. This is a new provision introduced only in the

1997 Rules of Civil Procedure. This has not been
asked in the Bar examination yet. So be careful.
o 2. Can require submission of evidence

Can delegate this to the clerk of court

How can you set aside an order of default?
o 1) File a motion on any of these grounds:

1. Fraud

2. Accident

3. Mistake

4. Excusable negligence
o 2) It has to be under oath
o 3) State that you have a meritorious defense, without
necessarily giving an answer
o What kind of fraud is needed?

Extrinsic fraud.
o Is the fraud needed here the same fraud needed for motion
for new trial, petition for relief from judgment, and motion
for annulment of judgment?

YES. For all of these, you need extrinsic fraud.

How do you set aside an order of as in default [or allowance for
plaintiff to present evidence ex parte for the plaintiff]?
o Saguid: Remedy is to file an MR or relief from order of default
also on the ground of FAME
o Do you have to add that you have a meritorious defense?

No need. Youre already in pre-trial.

Can there be partial default?
o Yes.

In a case where you file a case against A, B, C, D, and E. E

did not file an answer, while A to D did. Will A to D be
allowed to present evidence?

Yes.
o Will E be allowed to present evidence?

No. He is in default.
o Can A to Ds evidence be used against E or in favor of E?

Yes. In fact, E can still win the case along with the
others.
Where can there be no order of default?
o 1. Nullification/annulment/legal separation
o 2. Summary Procedure

N.B. When there is failure to file answer, there can

be judgment rendered by court.
o 3. Certiorari, Prohibition, etc. Some SCAs require a
comment, so there can be no declaration of default

Are there SCAs where there can be declaration of

default?

Yes, like interpleader where the special rules

are deficient so there is suppletory
application of the ROC
Cerezo v. Tuazon:
o Order of default failure to submit an answer, so the
defendant is declared in default
o Judgment by default after the defendant is given notice of the
court processes, the court renders a decision without hearing
defendants defense, which he lost
o Remedy for an order of default?

Motion to set aside or lift an order of default based on

FAME (under oath, and you have to show you have a
good defense)

SSS v. Chavez: This must be accompanied by a

verification (under oath), affidavit of merit (that you
have a good defense), and notice of hearing. If this is
missing, the motion is lost.
o Remedy for a judgment by default?

1. MR or MNT (FAME) within period for filing an

appeal

2. Petition for relief from judgment

After the reglementary period for appeal; i.e.

when there is entry of judgment

Period: 6 months from entry of judgment

AND within 60 days from knowledge

3. Rule 65 certiorari

If there is GADALEJ
Remington Steel:
o When there are multiple defendants, even if one has already
answered, you may amend the complaint as a matter of right
as to the other since there is no defense yet that would be
affected or altered by the amendment.
Philippine Export and Foreign Loans:
o When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-file a case or file for a petition for
certiorari.
o Amendment to conform to evidence What if it was not
allowed, but the evidence was proven, can there be a valid
judgment based on that evidence?

Yes. It is valid, even if it is not consistent with what

was alleged.

Bill of particulars

26

Can there be Bill of Particulars in criminal cases?

o Yes. Rule 116, Sec. 9.
Only four things to remember in BOP:
o 1. What is the definition of BOP?
o 2. What is the period to file a BOP?
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to
file a BOP?
When you file for a BOP, what do you want to achieve?
o A more definite statement of facts that appear in the complaint
that are not averred with sufficient particularity
o You are to identify the defects and the details desired.
Can you file a motion for BOP after an answer has been filed?
o No more, because issues have already been joined.
What is the effect of filing a motion for BOP on the period?

The period is interrupted upon filing, but you always have at

least five days to file the answer after.
Deadline to file an answer is in 15 days. You received the
complaint December 1. You filed a motion on December 5. How
many days do you have?
o TWELVE, not eleven. You dont count the day causing the
interruption. [VERY IMPT]
o This is the same way you count a motion to dismiss.
[Same facts] If you filed a motion for bill of particulars on
December 14, the motion is interrupted. How many days do you
have?
o You still have Five days.
What can the court do?
o 1. Grant motion
o 2. Deny it
o 3. Allow the parties to be heard
What if the court grants the BOP?
o The party directed to do so must comply within 10 days
What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB) Rule 17, Sec 3:
non-compliance with court order
What if the person fails to file an answer in the time left?
o Will be declared in default

Service

Filing and service of pleadings

Filing

REGISTERED MAIL: Pay for registry receipt and you have to

accomplish a return card
What is the proof that you personally filed?
o 1. Primary: if the pleading is found in the records of the court.
o 2. If it does not appear, you can present the received copy
What is your proof of registered mail filing?
o 1. Registry receipt
o 2. Affidavit of the person mailing
o 3. Return card

What are the modes of filing?

o 1. Personal
o 2. Registered mail
Can there be filing by ordinary mail?
o None. Because here there is no way the court can find out
when you filed it.
o But there can be service by ordinary mail.
What are the requirements for personal and registered mail?
o PERSONAL: Stamped, dated, and signed by the clerk of court.

27

What are the modes of service?

o 1. Personal
o 2. Registered mail
o 3. Ordinary mail
What does rule 14 cover?
o 1. Party serving to another party,
o 2. Party serving to court,
o 3. Court serving notices (section 9)
If the person to whom you are serving is not available, then how do
you file substituted service?
o Delivery to the clerk of court with proof of failure of both
personal service and service by mail.

N.B. This is different from substituted service of

summons, which is to a person of suitable age and
discretion residing in the same residence
o There should be proof of both failure of personal service and
service by mail.
What is completeness of personal service?
o Actual delivery
What is completeness of registered mail?
o Actual receipt or 5 days after first notice of postmaster
o whichever comes first
What is completeness of ordinary mail?
o 10 days after mailing
What are the proofs of personal service?
o 1. Written acknowledgement of the party served
o 2. Affidavit of the person serving

3. Official return of server

This refers to service by the court

What are the proofs of registered mail?
o 1. Registry receipt and affidavit of one who mailed
o 2. Return card or unclaimed letter with certified/sworn copy of
notice given by the postmaster to the addresee
What are the proofs of ordinary mail?
o Affidavit of person serving
What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed). What
do you do to prove delivery?
o You have to file the return card plus the unclaimed document,
plus before you file, secure a certification from the post office.
Take note that a return card is required by law to be filed, but in
practice, we do not.
What is the priority of service?
o Personal service is always preferred
o What is the effect of filing by registered mail?

Put an explanation why you did not serve it through

personal service
o What if you dont comply?

As if the pleading was not filed.

Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
What if service was made to a security guard on the ground floor
of a condominium building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel.
What is Lis Pendens?
o In an action involving right, title, or interest over a property, you
annotate it on the title of the property.
I file a case in the bureau of lands to declare null and void a title.
Can this be subject to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
Atlantic Erectors: You can only apply for Lis Pendens if the property is
the subject of the action.
o Can you put a notice of lis pendens in a partition case?

Yes.

Do you need court approval to effect a notice of Lis Pendens?

o Not at all. Just send a memorandum to the ROD, even without
court involvement.
When do you need court approval?
o When you intend to cancel the notice.
o Grounds:

1) purpose is to molest other party

2) no need for the notice to protect the rights of the

parties who caused it

Summons

28

When does the clerk of court issue summons?

o Upon filing of complaint and payment of legal fees by the
plaintiff
o What are the contents?

1. Name of court and names of parties

2. Direction to answer within required time

3. Notice that no answer can lead to judgment by

default
o Who serves?

Sheriff, deputy, or other proper court officer, or any

suitable person designated by court (for justifiable
reasons)
o What is the return?

1. When service has been completed, the server

within 5 days serves a copy of the return (personally
or registered mail) to plaintiffs counsel, and

2. Return summons to the clerk with proof of service

Can personal service and substituted service of summons work
simultaneously?
o No. Personal service first, and this is the priority. You cannot
have these simultaneously.
Where?
o WHEREVER HE IS FOUND. Always remember the James
Yap rule.
What are the requirements for substituted service? Under what
circumstances?
o Only if personal service is IMPOSSIBLE.

Proof of this: defendant cannot be served summons after all

efforts have been exhausted.

Is there a set of standards given by law on how

many times you have to try to serve?

A case says that it must be at least three

times on two different days.
o There has to be an explanation.
o Where will the explanation appear?

In the sheriffs return

o How is substituted service of summons done?

1. Leaving copies at defendants residence with

person of suitable age and discretion residing therein,
or

2. Leaving copies at defendants office with

competent person in charge thereof
Summons must be served within reasonable time. What do you
mean by this?
o For the sheriff, 15-30 days according to jurisprudence. After
th
the 30 day, the court will require the sheriff to submit the
return.
o Why is this important?

If you file a complaint and you dont see to it that the

summons is served, your complaint can be dismissed
for failure to prosecute.
What is alias summons?
o If the original summons has been lost or the original summons
was returned to court, unserved.
o Then you can apply for alias summons.
When do you talk about suitable age or discretion, to what kind of
substituted service does this apply?
o To service at the residence.
When you talk about suitable age or discretion for substituted
service, what do you mean?
o There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistent
jurisprudence that it must be age of majority.
Who must it be? Could it be a house helper?
o She or he must reside therein. This must concur with suitable
age or discretion. So these are two elements.

29

A visitor or a transient cannot receive summons. But a house

helper can.
For offices, to whom must it be served?
o To a a) competent person b) in charge.
o Can a middle manager the same rank as Mr. X receive
summons for Mr. X?

He must be in charge of receiving summons in the

office.
o What does in charge mean?

In charge of the office. President or manager.

For corporations, what is the special rule?
o President, General Manager, Managing Partner, Corporate
Secretary, Corporate Treasurer, In-house Counsel
o Memorize this. It is a closed list.
What about foreign corporations doing business?
o 1. Resident agent
o 2. Any officer within Philippines
o 3. Government official designated by law to that effect
How is service done to entities without juridical personalities sued
under the name by which it is commonly known?
o 1. Serve to any one of them or
o 2. Upon person in charge of office/place of business
o Who is not bound by this, as an exception?

Person whose connection with the entity has, upon

due notice, been severed prior to the action
Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
For public corporations?
o RP Solicitor General
o Province executive head (governor)
o City city mayor
o Municipality municipality mayor
Can substituted service be served on non-residents?
o No. None as a general rule. You cannot do substituted
service to a non-resident.
o [Sec. 15 does not talk about this situation. Sec. 15 talks about
non-resident and cannot be found.]
o Is there an exception?

Yes, but its very narrow. But there must a a) resident

spouse b) who was previously appointed as attorneyin-fact.
In Secs. 14, 15, and 16: how can summons be done?
o By publication.
Distinguish.
o Section 14: Defendant is unknown or his whereabouts are
unknown.

How do you do this?

Just publish.

Do you even have to try personal service?

No need for personal service (since you

dont know him or where he is).

In what kind of case?

Whatever kind of action, whether in rem or in

personam you can do it by publication, as
clarified by the SC.

Not just in rem or quasi in rem anymore.

How does publication in 14 differ from 15 and 16?

In 14, ONLY publication is needed. It does

not require service by registered mail in the
last known address.
o Section 15: Defendant that does not reside in the Philippines
and is not found in the Philippines.

In what subject matter?

1. Involving personal status of the defendant

2. Property of non-resident defendant

3. Property is attached

4. Where defendant has actual or contingent

interest over property

What are the modes of service?

1. Personal service outside the Philippines

2. Publication AND service by registered

mail in his last known address
o N.B. Both must concur. Take note
of this.

3. Other modes deemed applicable by the

court

30

How much time does the defendant have to

answer the complaint?

Reasonable time determined by court, which

must not be less than 60 days from notice
o Section 16: Temporarily absent from the Philippines

Can he be a resident of the Philippines?

Yes. But hes just temporarily absent.

What is the length of time needed here?

None provided

How do you do serve summons?

1. Personal service outside the Philippines

2. Publication AND service by registered

mail in his last known address
o N.B. Both must concur. Take note
of this.

3. Other modes deemed applicable by the

court

4. Substituted service, if there is impossibility

and there are earnest efforts to serve.
What is required for Sections 14, 15, and 16?
o Must ask for leave of court, through motion in writing,
supported by affidavits setting for the grounds, to allow for
such service of summons
o What if the leave is granted?

Can serve summons through publication, etc.

Court specifies a reasonable time (not less than 60

days) for defendant to answer
What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
the person.
What is the proof of service of summons?
o Sheriffs return.
What is the proof of service by publication?
o 1. Affidavit of printer, foreman, or principal clerk or affidavit of
editor, business or advertising manager, and
o 2. Copy of publication, and

3. Affidavit showing deposit of copy of summons and order for

publication in the post office directed to be sent by registered
mail to last known address (if applicable)
What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
What is the rule on Motions to Dismiss?
o If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o Old rule: you have to separate the MTD based on lack of
jurisdiction.
Maximo v. Montalban:
o In this case, his residence is known and he is just temporarily
absent. So substituted service is not proper.
Samarino v. Ralu:
o Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.) it must be shown in the sheriffs return
Ancheta:
o There are only a few remedies when the judgment is already
final and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because lack of jurisdiction is used, it can cover both
lack of jurisdiction over both SM and the person).
Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?

You can still do personal service, in case you find him

somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.

Motions

What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an
answer.

Does a motion to dismiss take the nature of an answer?

No, because it will not lead to a joinder of issues

What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?

To parties.

But also give notice to the clerk of court (even if the

provision does not say it), because he schedules the
hearings.
o Absence of a notice of hearing has what effect?

The motion becomes a mere scrap of paper.

When must notice be given?
o The motion must be filed in court and served to the other party
at least three days before the date of hearing. (Three day
notice rule)
What is the ten day rule?
o The hearing itself must be scheduled no later than 10 days
from the filing of the motion

Ex. you file it December 6. The last date you can set
the hearing for is December 16.
o Understand this along with the three day rule.
What is the Omnibus Motion rule?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?

1. Lack of subject matter jurisdiction

2. Res judicata

3. Litis pendentia

4. Statute of limitations
What is motion day?
o Friday afternoon.
o If it is a holiday, set it on the next working day
o Is this mandatory?

Yes. But some judges apply the rule liberally.

But since 2008, this rule has been applied strictly.

What is required for motion for leave to file a pleading or motion?
o Attach the pleading or motion sought to be admitted

Motion to dismiss

31

What are the kinds of dismissal in Civil Procedure?

o 1. There is a motion to dismiss in Rule 16, prompted by
defendant. MOST COMMON
o 2. But there is also a motion to dismiss in Rule 17, filed by the
very same plaintiff who filed.

Rule 17 also covers failure to prosecute, which is

another form of motion to dismiss.
o 3. Demurrer to evidence
What are the grounds in Rule 16?
o 1. Lack of J over the SM

How
do
you
determine
subject
matter
jurisdiction?

It is the law that confers the right to hear, try,

and decide a case

The most common source is RA 7691

amending BP 129
o 2. Lack of J over the defendant

Look again into proper service of summons

Or voluntary appearance
o 3. Improper venue

Fall back to Rule 4, or special rule under law

o 4. No legal capacity to sue

Minor age of majority

Corporation must be duly registered with SEC

Attorney in fact look into scope of authority

o 5. Pleading Asserting the Claim States no COA (PACS-COA)

Does not go into the falsity or truthfulness of the claim

The pleading does not appear to state a COA

o 6. Res judicata

What are the elements?

1. Final judgment

2. J over SM and person

3. Judgment on merits

4. Identity of parties, SM, cause of action

o 7. Litis pendentia

Same as RJ, but without final judgment yet

o 8. Prescription
o 9. Failure to comply with condition precedent

Ex. Failure to refer to Katarungang pambarangay

32

Is this waivable?
o YES.
Because it is not
jurisdictional.

Ex. Earnest efforts to compromise

Ex. Exhaustion of administrative remedies

Does this fall under this ground?

o Some commentators say yes. But
some say failure to exhaust must
fall under PACS-COA
o 10.
PWEA
(Payment,
waiver,
extinguishment,
or
abandonment)
o 11. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed?
o ALL
o Except [F,H,I]

1. Prescription

2. Unenforceable under Statute of Frauds

3. Res judicata

4. Extinguish of claim or demand (PWEA)

When can you file a MTD?
o Within the reglementary period. Fifteen days.
How do you count a period?
o Just remember the rule on interruption. [Read up Bill of
Particulars portion same rule for counting here, including the
5 day buffer]
There was MTD filed on basis of lack of J over the defendant. The
court, instead of dismissing the action, dismissing the MTD, or
ordering amendment of the complaint, filed alias summons. Is this
grave abuse of discretion?
o There was none. Instead of dismissing the case and waiting
for re-filing, the court issued alias summons which will produce
the same effect.
Preliminary hearing of the affirmative defenses. What is this?
o You can file an answer, and the court has discretion to hold
preliminary hearing of your affirmative defenses and use it to
dismiss the complaint. Thus, an answer can be treated as a
MTD.

This is a new feature of the 1997 Rules of Court. This

has never been asked in the Bar.

What is the reason for this new rule?

Note: a MTD is not a prohibited pleading, but when it

issues summons, the court persuades parties not to
file an MTD, but to file an answer with an affirmative
defense.
o Why such court attitude?

Because issues will be joined, and pre-trial sets in

where parties can compromise.
o What is the difference between filing a MTD and an
answer?

There is no preliminary hearing of defenses in a MTD.

Obviously, in an MTD, the motion itself will be heard
anyway and that is where the grounds will be proved.
In an answer, the court can prioritize the grounds to
dismiss the case, which is why the preliminary
hearing is needed.
What actions are available to the court?
o 1. Dismiss action or claim
o 2. Deny the motion
o 3. Order amendment of the pleading
o Can the court defer resolving the motion because the
ground is not indubitable?

No, it cannot.
If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main
proceedings?

No. Even if there is a pending petition for certiorari,

the main proceedings will not be suspended unless
you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly abused,
invoking judicial courtesy here, does not apply anymore.
o Can the Court of Appeals dismiss the case if it feels the
RTC committed GADALEJ? Or should it only remand?

The court, subject to its discretion, can either dismiss

or remand it. There is no hard and fast rule.

Dismissal of Actions

33

What are the ways by which a plaintiff can dismiss a case?

o Filing a notice of dismissal any time before the answer is
served (or before his motion for summary judgment, if
applicable). Dismissal is a matter of right.
o What happens to the counterclaim?

There is no counterclaim yet, because there is no

answer.
o Can this case be re-filed?

Yes.
o What is the exception?

Dismissed a second time under this section.

What if there is already an answer? See Pingga case
o File a motion for dismissal.
o What happens to the counterclaim, if there is?

It does not get dismissed. Pingga limits the dismissal

to the complaint, not the counterclaim.
This
abandoned BA Finance rule.
o Does this rule cover both permissive and compulsory
counterclaim?

Yes.
o What is the option of the counterclaimant?

Within 15 days, the party would have to manifest its

willingness to prosecute it in the same action;
otherwise it will be prosecuted in a separate action.
When is there dismissal due to the fault of the plaintiff?
o 1. Plaintiff fails to appear on the date of presentation of his
evidence in chief without just cause
o 2. Failure to prosecute his action for an unreasonable length of
time
o 3. Failure to comply with the ROC or any order of the court
o How is the dismissal under this section done?

1. Upon motion of the defendant

2. Upon courts own discretion

o How does this affect counterclaims?

Same; it can be prosecuted by the defendant in the

same or separate action.
o What is the effect of dismissal under this section?

It is an adjudication upon the merits (thus with

prejudice)

Pre-trial

When is pre-trial conducted?

o Rule 18 Sec 1 does not say, it just says that the ex parte
motion by the plaintiff to move the case for pre-trial must be
done promptly
o BUT the 2004 guidelines say it must be within 5 days after the
last pleading has been filed
What if the plaintiff fails to move for pre-trial?
o The 1997 rules are silent.
Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specific outcome.
o 2004 rules: DUTY OF THE CLERK OF COURT to move for
pre-trial.
Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o They explore possibility of compromise, etc.
o This is almost like a mini pre-trial.
Expect two dates in one notice
o One setting the preliminary conference
o One setting the pre-trial itself
On the first day of pre-trial what is the order of the day?
o The court issues an order referring the case to a courtannexed mediator. Forward the records to him.
o You have to pay fees for a mediator.
o For the time-being, the pre-trial proceedings are suspended.
o What is the period for suspension?

30-60 days.

But in the same order, the court will say that if within
this period, there is no compromise, there will be
resumption of pre-trial on a later day.
What if there is inability to compromise?
o Records returned to court. The court will resume pre-trial.
o The Judge with all tact, patience, and impartiality, endeavor
to arrive at a settlement of the dispute

Confers with each party as to what is acceptable as a

compromise at the present stage

34

Judge talks to parties and their counsel separately

Judge talks to only parties

What do you need to submit at pre-trial?
o Pre-trial brief.
o What if you fail to submit a PTB?

Same effect as if you didnt appear at pre-trial.

Request for admissions: Rule 129 Section 4 Judicial Notice:
o No need for introduction of evidence
o You want an admission to abbreviate the proceedings
o You are submitting just proposals. If accepted by the other
party, it becomes an admission.
Issues to be submitted for resolution
Documentary and testimonial evidence to be presented:
o One day examination of witness rule if you can direct,
cross, re-direct, and re-cross a witness in one day, do so.
(This is in the guidelines, not in the Rules of Court.)
o Submit the most important evidence first.
o Evidence will be pre-marked.

What is the effect of failure to pre-mark?

You can no longer present the evidence if

you failed to pre-mark it.

Unless the court allows you in the interest of

justice, or if newly discovered.
o What if you fail to name the witness in court?

You cannot present the witness anymore.

What are the other contents of the brief that you may put?
o Referral to Commissioners
o Explore possibility of compromise
o Possibility of judgment on pleadings or summary judgment
o Avail of deposition/modes of discovery
How do you avoid consequences of absence?
o According to the provision, if there is a good excuse for
absence, the consequence will not vest. You can also
authorize someone to appear on your behalf in pre-trial.
What happens next?
o Pre-trial order is issued by the court.
DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL

What if it is a criminal case and the prosecution is absent.

What happens?

It will be re-scheduled.
o What if the accused is absent?

The prosecution CANNOT present evidence ex-parte

because it will violate the accused persons right to
confront witnesses.
o RULE 118.
TAKE NOTE OF THIS.
THIS IS THE
DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.
o For an admission of the accused to take effect against
him, what must be done?

It must be in writing and signed, by both the counsel

and accused.

No such requirement in civil admissions in pre-trial.

Judicial Dispute Resolution
o In the past, the JDR process only applies in Makati. Now it
also applies in QC and Manila.
o The judge here is both a mediator and a conciliator and an
independent evaluator.
o Unless the parties consent to continue with the JDR judge, it is
mandatory that there will be a new raffle and the new judge
who will undergo pre-trial, hear, try, and decide the case is the
trial judge
o This step happens when the Clerk of Court receives the
Mediators Report of a not settled mediation
o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
To summarize:
o 1. Preliminary conference
o 2. Court-annexed mediation
o 3. Judicial Dispute Resolution

If QC, Makati, Manila

o 4. Pre-trial

Intervention

What is the concept of intervention?

o A third party takes part in a case between other parties

35

Because he has a legal interest in the subject matter of the

case or he will be adversely affected by distribution/disposition
of property in custody of the court
What are the requisites of intervention?
o 1. Either:

a. Legal interest in the matter in controversy

b. Legal interest in the success in either of the parties

c. Legal interest against both

d. Will be adversely affected by distribution or

disposition of property in the custody of the court
o 2. Intervention will not unduly delay or prejudice the
adjudication of rights of the original parties
o 3. Interveners rights may not be fully protected in a separate
proceeding
How do you intervene requisites?
o 1. File a motion to intervene
o 2. Attach the pleading-in-intervention to it

What are the pleadings in intervention?

1. Complaint-in-intervention if he asserts
against either or all of the original parties

2. Answer-in-intervention if he unites with the

defending party
o 2. Serve to the original parties
When can you intervene?
o Any time before rendition of judgment in the trial court
o For appellate courts, it is subject to their discretion (because
the ROC is silent)
After judgment, can there still be intervention?
o As a rule, no.
o But for an indispensable party, the court will allow intervention
even after judgment.
Nordic:
o There was a mortgage over a vessel to secure a loan. There
was a default in the payment. For this reason, there was an
Extra-judicial foreclosure. While the petition was there, there
was a subsequent case filed.
o There was a complaint filed by the crew members of the vessel
against the vessel in RTC Manila (sum of money case).

The mortgagee sought to intervene in the sum of money case,

because it held a Preferred Ship Mortgage.
o HELD: No legal interest, no cause of action. There must be a
personal cause of action in order to intervene. Here, the
mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
foreclosure case.
What is the remedy if the intervention is denied?
o Aggrieved party must appeal.
o Mandamus will not lie except in case of GADALEJ
What is the remedy if the intervention is granted?
o Petition for certiorari (since the order is interlocutory, unlike the
dismissal of the complaint/answer-in-intervention, which is
final.

Subpoena

Types of subpoena?
o 1. Ad testificandum: appear and testify
o 2. Duces tecum: appear and bring with him the documents or
things

N.B. He must appear too. Cannot just mail or send.

Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
o Can the OMB issue a subpoena?

Yes.
o Can the office of the prosecutor issue?

Yes.
Is the receipt of a subpoena by a respondent in a case filed before
the office of the prosecutor necessary for the office to acquire
jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the
Office of the Prosecutor is a statutory right, not constitutional
right. You can altogether dispense with it, or waive it. It is not
essential for due process.

36

There is an express provision in Rule 112(D) that says failure

to receive the subpoena will not bar the prosecutor from
issuing a resolution. It is not imperative.
Can a regular court judge subpoena a convicted person?
o Yes, but the judge examines if it is for a valid purpose
o For those under death/RP/Life and confined: must be
authorized by the SC to appear under subpoena
Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o How do you quash a subpoena ad testificandum?

1. Witness is not bound thereby

What is an example of this?

o If the witness is not qualified. Ex
the witness is the spouse of the
person he/she is testifying against

2. Witness fees and kilometrage allowed by the Rules

were not tendered

Witness must live within 100 KM of the place

where hearing is conducted
o How do you quash a subpoena duces tecum?

1. Unreasonable and oppressive

2. Relevancy of the books, documents, etc. does not

appear

3. Failure to tender the costs of production

4. Kilometrage/witness fees

5. Failure to describe with particularity N.B. not in

the rules
Can the clerk of court issue a subpoena in the absence of a judicial
action? (Note, this is not referring to investigation by a quasi-judicial
body.)
o No.
What are the consequences of failure to comply with the
subpoena?
o 1. Arrest

Witness pays for the costs of arrest if failure is without

just cause
o 2. Contempt, if without just cause
o To whom do these provisions not apply to?

1. Those who reside beyond 100KM from place where

he is to testify

2. Detention prisoner where no permission of court

was obtained

Depositions (Rule 23)

What can be the subject of Modes of Discovery?

o As long as (1) relevant and (2) not privileged, and it must be in
(3) good faith
What do you mean by relevant?
o Germane need not as strict in definition as what the Rules
of Evidence require

So not covered by pleadings or not a fact in issue

is not a defense

It just needs to have something to do with the case

o Why the wide latitude in taking advantage of Modes of
Discovery?

So that litigants and lawyers cannot suppress

information, and so that all information needed for a
just decision is on the table
What is the difference between taking a deposition and using it?
o Taking deposition the court affords the widest latitude.
o Using deposition the rules are stricter

Ex. Witness is dead, abroad, cannot be summoned,

etc.

What is the difference in the standard of relevance

as regards use, vis-a-vis taking?

Follow the usual rules of evidence.

o Can a deposition take the place of an actual oral
testimony?

As a general rule, it cannot. Its hearsay. You have

to present the witness in court.

A deposition is not a substitute for oral testimony.

Oral testimony is required under Rule 132.

But this pertains to the use of depositions. In taking

them, you have wide latitude. But to use it, you have
to present the actual witness in court still.
o What are the exceptions?

37

Provided in ROC. Ex. Witness is out of the country, is

dead, resides 100 km away from place of hearing,
cannot be subpoenaed, sick, infirm, etc.
o If you take a deposition, are you compelled to present it in
court?

No.
o If you use a part of a deposition, can the rest be
presented?

Yes.
o If you fail to cross examine the witness in the deposition,
can you still cross-examine him in court?

Yes, you definitely can! (Sabio)

o Always distinguish between take and use.
Are modes discretionary?
o Yes, the court ultimately has discretion
o While the parties can resort to it without leave of court, the
latter still can control how modes of discovery are used

Ex. Changing from oral deposition to written

interrogatories; deeming something as harassment,
etc.
o Also, if there is no answer yet, there must be leave of court.
o Can the court say you have enough information already,
dont resort to modes?

Yes. Its within court discretion.

o What is the rule on SC involvement?

SC does not get involved with TC decision unless it is

committed with GADALEJ.
Are modes of discovery cumulative?
o Yes. You can use them one after another, or at the same time.
o But when will the court prevent resort to one mode after
another?

When you slept on your rights. Example: you could

have filed all at the same time, but you chose not to.
When can you avail of Modes of Discovery?
o Any time, even during execution
When do you need leave of court, and when do you not?
o Prior to filing of the answer, you need leave of court. The
issues for contention have not yet been joined. You dont
exactly know yet what is germane to the case.

o
o

After filing of the answer, no need for leave of court.

Contrast with amendments: You need leave of court after
answer; before answer, you just need notice.
Who can be examined?
o Anyone.
Who can seek deposition?
o Any party.
What is the scope of examination?
o Any matter not privileged, even if it is hearsay and may not be
used in court eventually (again, taking is different from use)
o See Sec. 2
How is information taken?
o Question and answer, like in trials. Direct, cross.
How is it used in trial (Sec. 4)?
o 1) To impeach or contradict the testimony of the deponent as
witness

What if you called the witness yourself? Can you

impeach your own witness by presenting the
deposition?

Yes. Because when you take the deposition,

you are not considered to have made the
deponent your witness.

Or, if the witness starts becoming hostile,

you can move to have him declared an
adverse witness so you can impeach him.

Alternatively: just get another witness to contradict the

prior one.
o 2) Can be used by one party against an adverse party
(including responsible officers of corporation as adverse party)
of for any purpose

WIDEST discretion.

Can be used to support own evidence, can be used to

impeach, etc.
o 3) Used in place of oral testimony, when:

A) Witness-deponent is dead

B) Resides more than 100KM away, except if the

party calling that witness procured the partys
absence // or out of the Philippines

38

C) Unable to attend due to age, sickness,

imprisonment, etc.

D) Unable to compel attendance of the witness

through a subpoena

E) Exceptional circumstances

Take note that for this ground, there must be

application and notice to the court, since it
has to decide whether exceptional
circumstances exist.
What if the witness lives in Rockwell and he is temporarily
assigned to Pangasinan, do you need to summon him to court or
can you depose him?
o Even if he is assigned elsewhere, the term is RESIDES so he
must live there. This is the rule that applies if he is still inside
the Philippines, but elsewhere.
o This rule DOES NOT apply if the person is outside the
Philippines.
Even if a party is temporarily outside the
Philippines, you can depose him.
o N.B. Take note, however of the rule that absence must not be
procured by the deposing party.
A party can present a part of a deposition at any time. What is the
right of the other party?
o Right to compel the introduction of the rest of the deposition
relevant to the fact in issue.
X substituted for Y. X raised the objection that the deposition
cannot be used against her because she said she is a new party
and the deposition cannot be used against her.
o Rule 23, Sec 5 provides that substitution does not affect the
right of depositions previously taken;
o Notice to Y is notice to X. X only stepped into the shoes of Y.
How do you object when a deposition is being used against you?
o There are actually two stages in objecting to depositions:

First stage during taking of the deposition. You can

object to questions as being leading, etc.

Second stage time of use. You can object on any

ground that would lead to the exclusion of the
deposition, as if the witness were present.

Ex. witness is incompetent to testify, is a

minor and has no capacity to perceive, etc.

Exactly in which stage of trial do you object to the use of

the deposition?

At the time it is being offered, as with all kinds of

evidence
Before whom can a deposition be taken?
o A. If in Philippines:

1. Judge

2. Notary public

3. Any person agreed upon by the parties, as long as

he can administer oaths
o B. Outside the Philippines:

1. Embassy, legation, consul, consular agent

2. Any person

By commission

Letters rogatory

3. Any person agreed upon by the parties, as long as

he can administer oaths
Who are disqualified to be deposition officers? [Memorize; this has
not yet been asked]
o 1. Sixth degree of consanguinity from party
o 2. Employee or counsel of party
o 3. Sixth degree of consanguinity or employee of partys
counsel
o 4. Financially interested in the action
Can a judge before whom the action is pending take depositions?
o Yes. (Ayala Land)
Dulay v. Dulay A brother duped his brother; both are Filipinos. One
brother is a naturalized American, and applied for the latters
naturalization. The US government approved it. The later, once there,
was made the trustee of the deposits of the former. He spent the
money. Filed case in Philippines. Took deposition of bank manager in
US. The local court communicated the request with foreign authority
(letters rogatory communication by one judicial authority to another
to follow the rules of the latter). This is distinguished from commission
where a person is appointed commissioner; the deposition is
governed by Philippine rules.
o What is the difference?

Commissioner has no power to issue compulsive

processes like subpoenas. Courts can.

39

In this case, the court of Boston ignored the letters rogatory, so

they applied for deposition before a notary public. The local
court refused to accept, requiring a consular certification.
o The court here allowed because the letters were ignored and
there was no consular office in Boston, so they allowed
deposition before NY notary.
What is the rule in setting the time/date for deposition?
o Reasonable notice is the general rule.
o What is the rule on notice?

Give name and address of deponent

Give time, place, date of deposition

o Do you have to say who the deposition officer is?

No. No need to disclose it.

o Why is notice to the other party needed?

Due process.
So the other party can make
objections, etc.
o Whose duty is it to give notice to the other party?

The party taking the deposition, because in general,

the court does not intervene
o What notice is given?

Actual notice.
Can the other party oppose the taking of a deposition?
o Yes.
o Under what grounds?

Annoy, embarrass, oppress memorize these

words

It is irrelevant
What is the process to take deposition?
o Rule 23, Sections 19-21.
o Who does the recording?

A stenographer, clerk, secretary under the direction

and supervision of the officer
o Then?

The deponent examines it and signs it

Can signing be waived?

Yes.
o After the signature, what next?

The officer certifies it first

Then files it in court with indication that it is authentic

and complete
o If there are objections, etc, can the officer rule upon them?

No. He just records the objections.

o There is a notice for oral deposition. If one of the parties
to the deposition cannot attend, and just instead sends a
list of questions, can this be done?

Yes. But the officer will read the questions verbatim

and record the answers verbatim.
o What if the deponent does not want to answer? (Ex. He
says no comment.)

Generally, if youre the officer in a deposition, you

cannot do anything about it.

EXCEPT: if you are a judge empowered through

letters rogatory
If the procedure is not followed, what will happen? What is the
consequence?
o A party can file a motion to suppress deposition because the
procedure was not followed
o What is the Ayala doctrine?

The rules can be relaxed because the deposition was

taken before the judge in the main case. The judge
knows its authentic and complete by personal
knowledge.
Can a subpoena be issued by reason of deposition-taking to make
sure that the deponent comes?
o Yes. Rule 21, Sec. 5
What if the one called for the deposition does not show up?
o He will be asked to pay for the costs of the other party/witness
which attended
o [If you ask for a deposition, you can rely on the compulsory
powers of the court (ex. To issue a subpoena) to make sure
witnesses attend, because at least you wont be liable if he
fails to show up.]
Can a deposition of a deceased person be presented in court? Is
this not hearsay?
o It can be presented, as long as it was subjected to cross
examination. It is hearsay, but it can be submitted.
o Is cross examination a necessity?

40

Yes; necessary to exempt it from the hearsay rule.

Re: irregularities on taking of deposition. What is the general rule
on errors/irregularities on taking depositions?
o General rule is that it is waivable
o What is the exception?

Relevance or competency of evidence failure to

object is not a waiver

Unless a timely objection could have obviated the

defect
How are written interrogatories different from oral deposition?
o The questions are in written form instead, instead of personally
appearing.
o This is usually the most relied upon form of deposition since it
saves time and costs, and especially if the issue to be
discovered is not very contentious
When are cross-interrogatories submitted?
o Within 10 days
Re-direct?
o Within 5 days
Re-cross?
o Within 3 days
When is the period to object?
o The same as the period to file the responsive pleading.
Can you take deposition even after pre-trial?
o Yes.
o Do you need to reserve?

No need, even if you do not reserve it during pre-trial.

(Jonathan Landoil)
What are the consequences for non-compliance with order for
deposition? Can it be dismissed?
o Yes, the court can dismiss. There can even be a judgment by
default
o However, in the old case of Arellano, the court dismissed the
case due to refusal to be subjected to deposition. But the SC
said it was wrong. In this case though, the matter subject to
deposition is an incidental matter only, not the main issue of
the case.
o Bottom line: it IS a possible result, but fall back on materiality
of the matter

Depositions before action or pending appeal

If there is no pending case can you take a deposition?

o No. You file a case for the perpetuation of a testimony
o So you file a case for the purpose of perpetuating a testimony
What is the special rule on venue here?
o Place where the expected adverse party resides
Ex. Ms. Bolong and Ms. Tan are fighting over a guy. Ms. Bolong is
expecting that Ms. Tan will file an action against her for malicious
mischief. Mr. Tuazon knows the truth, so Ms. Bolong is going to take
his deposition and file a verified petition in the court of the place where
Ms. Tan resides.
What are the contents of the petition?
o 1. That the petitioner expects to be a party to an action in a
court in the Philippines but is presently unable to bring it
o 2. Subject matter of expected action and his interest therein
o 3. Facts he wants to establish by the proposed testimony and
reasons for such
o 4. Names/description of expected adverse parties and
addresses if known
o 5. Names and addresses of persons to be examined and
substance of testimony expected
o What is the relief sought?

Ask for order authorizing petitioner to take depositions

of these persons
What is the requirement for notice and service?
o Petitioner serves notice upon each expected adverse party
o At least 20 days before hearing, court causes notice to be
served on:

1. Parties

2. Prospective deponents
For which can it be used?
o It can be used in any action involving the same subject matter
What if it involves the same subject matter but different parties
but not impleaded?
o Cannot be used. Must be the same party, or one represented
during the deposition taking. The general rule should apply.

o Before judgment becomes final

Where filed?
o In the court where judgment was rendered
o The taking is different from the use, again. So it can be taken
in the RTC but used in the CA.
There is a pending case for certiorari, can you take a deposition
pending appeal?
o No, certiorari is not an appeal

Interrogatories to parties

What is the nature of interrogatories to parties?

o Served only by parties to parties
o Generally only one set, unless allowed by court (sec. 4)
How are interrogatories to parties served?
o Serve on adverse party and file in court
o Serve on party, not on counsel; but counsel may answer
How are answers served?
o Answers are served on party submitting and filed in court
o Written, subscribed and sworn to under oath
o 15 days to file answers
When must objections be filed?
o Objections must be filed within 10 days
o N.B. Fresh period applies (according to some opinions)
What objections may be made?
o 1. Irrelevant
o 2. Meant to harass
o 3. Not within knowledge, hearsay
What is consequence of failure to file written interrogatories to
parties?
Failure to serve and file cant call adverse party as witness
Party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court
or to give deposition pending appeal
What is the scope and use of these interrogatories?
o May relate to any matter under Rule 23 Sec. 2 for same use in
Rule 23 Sec. 4
What is the effect of failure to answer?
o Case may be dismissed if material
o
o

When could you apply for deposition pending appeal?

41

Or judgment by default

Distinguish Rules 23 and 25:

o Rule 23 Party or a witness, or any person for that matter
o Rule 25 Interrogatories to PARTIES. Always to parties.
How must the questions be answered?
o Rule 23 there is direct, cross, re-direct, and re-cross
o Rule 25 Just one set of questions to be answered by the
other party
Re: time to answer
o Rule 23 no fixed time to answer, because what dictates the
period is the officer (since they have to appear before the
officer)
o Rule 25 15 days from service thereof
Segue: can you call the adverse party to the witness stand?
o YES! In general, YES. The answer is in Rule 132, Sec. 12
o It is different if you call on the witness the accused himself (in a
criminal case)

Request for admission

What is a request for admission?

o 1. Requesting to the other party that he admit the genuineness
of any material/relevant document

What else do you need to do?

Attach the document so it can be examined

Does an admission cover the contents of the

document?

No, just the genuineness so you do not

have to prove it exists and it is genuine

The contents can be up for contentions

Case: There was a pre-trial. One party submitted a

list of equipment, and wanted the other party to
accept it. The other party said it was incomplete, and
asked that the first party prepare a new list to submit
to the court within X days. Instead of submitting it to
court, the first party submitted a request for admission
to the other party. Instead of answering, the second
party kept quiet. HELD: It was an implied admission.

42

o 2. Or truth of any material and relevant matter

How do you initiate it?
o File it in court and serve it to the other party
When?
o After issues have been joined
The admission must be directed to whom?
o The adverse party (Not the counsel it must be served to the
other party) (Duque)
o But the partys counsel may answer (Larada)
What is the effect of failure to answer or reply to a request for
admission?
o It is deemed admitted.
o Must reply within 15 days.

What can the party also do in this period?

Can submit an objection

What happens to the period?

It suspends the fifteen days

What if the objection is denied, what happens to

the period?

The court sometimes gives extra 10 days, 5

days, etc. So its really within its discretion.
Who will suffer the cost?
o The other party who refused to admit, if it is eventually proven
to be genuine or true
o But in the meantime, advanced by the party requesting
What is the effect if you fail to ask the party to admit certain
material facts, which you could have asked and ought to be within
the personal knowledge of the latter?
o You cannot present evidence on such facts.
o This is very important although a lot of judges or litigants fail to
take advantage of this or recognize this.
o But this is still subject to the courts discretion.
What do you attack in requests for admission? Ultimate facts or
evidentiary matters?
o As a matter of advice, attack the evidentiary matters.
o Evidentiary matters are harder to deny (Ex. Is it true that the
day before you were caught beating the red light and your
license was already confiscated for a prior violation?)

There are four ways to respond to respond the request for written
admission:
o 1. Specifically deny written admissions
o 2. Not do anything
o 3. Admit
o 4. State why he cannot truthfully admit or deny for lack of
knowledge

N.B. A denial for want of knowledge if the fact is so

plainly and necessarily within the defendants
knowledge, his alleged ignorance or lack of
information will not be considered as a specific denial
Can you use an admission made in one case for another case?
o No. It can only be used for that case and for that purpose
alone.
o If its the same case, but for a different purpose?

Its actually hard to say because admissions are not

stated for a particular purpose.

Atty. Melo: So its safe to say that once admitted, it

usually be used in that same case.
When an admission is made, is there any way for it to be
retracted?
o The party making the admission can withdraw or amend
o Must have good reason. So this is discretionary upon the
court.

Producing or inspection of things/documents

How do you initiate or start?

o Filing a motion in the court where the case is pending
o Comply with the requisites of motions (so give notice to other
parties)
What kinds of documents can you produce or inspect?
o Anything that is relevant/material and not privileged
o But you have to show good cause
Fishing expeditions are generally allowed in Modes. Is it the
same for this rule?
o No. Rule 27 is not as free as the other rules see Solidbank

43

The SC said that the motion to produce must not

permit a roving inspection of a promiscuous mass of
documents.

So the general rule that fishing expeditions are

allowed has less application for this rule.
o Because here: (MEMORIZE)

1. You need a motion

2. You need to show good cause

3. You need to describe the documents with

particularity
Whats the difference between a subpoena duces tecum and
production of a document?
o 1. SDT: just request for a subpoena to be issued by the court
and the court will issue. POD: you have to name the
documents with more particularity.

The process to secure the subpoena is a bit more

lenient (as opposed to motion for production, which is
in a motion that must be heard)
o 2. POD: you have to file a motion and provide good cause.
Since this is a mode of discovery, you still dont have particular
documents in mind, though you still have to describe them with
some particularity.
o 3. SDT: If the one with custody over the documents is a nonparty, use a subpoena duces tecum
What must be the subject?
o Books or things in the custody of the party addressed
o Possession, control or custody So if its no longer in the
possession, control, or custody of the party, he or she may
refuse
o Control implies that sometimes the person does not have
authority to release/disclose these things or books
When can it be done?
o There must be a pending case.
Can it be applied to land or other property?
o Yes, there can be ocular inspection of land or other property.
What are the tests involved?
o Reasonableness and practicability
Tanda v. Aldaya:
o Motion to produce must be for inspection, photocopying, etc.

The document cannot be left with the court for distraint, as one
party here wanted to leave them with the clerk of court.
Is production required for presentation of secondary evidence?
o Yes, apart from a mode of discovery, it can be a preparatory
act to present secondary evidence. If you require production
and the other party refuses or says it is lost, then you can
produce secondary evidence.
o But there is need for request to produce
o So if you get a request to produce but it is targeted to a specific
document, most likely it is for secondary evidence
You applied for production of books/papers/documents, and you
are allowed to examine. Are you bound to present it as your
evidence?
o No, youre not required. It is a mode of discovery a way of
discovering evidence. If you like what you see, you still have
to go through the process of presenting it in court.
N.B. Under 2004 guidelines, it is the duty of the judge to issue an
order to the parties to avail of Modes of Discovery under Rules 23, 2527

That examining party can now also ask for previous or

subsequent examination on the same matters of the examined
party
o It must refer to the same condition. So if the examination was
on the other partys head for mental examination, she can only
ask for similar reports on the mental condition of that party.
What if the examined party refuses?
o The court may make an order for delivery of the report
o If there is refusal or failure to do so, and if by chance, that
examined partys physicians were allowed to testify, their
testimonies can be excluded.
What is the effect of the requested party requesting for a copy of
the report made or taking the deposition of the examining
physician?
o He waives any privilege in that action or another action
involving the same controversy, as regards testimony of other
examining persons, whether before or after
o N.B. Privilege of doctor-patient only applies to civil case, not
criminal case

Physical and mental examination

Consequences of non-compliance

This is so limited in its use that even the 04 guidelines do not include it
When can you apply for this?
o Mental or physical condition is in controversy
N.B. This is the only mode of discovery which the court can motu propio
can issue. The other modes, you have to apply for.
What is required?
o 1. Also upon motion
o 2. And with good cause shown
When can it be done?
o When the physical or mental condition of a party is in
controversy
o Ex. Guardianship, Physical Injuries, etc.
What does in controversy mean?
o It has to be one of the main issues of the case, not just a side
matter.
What is the consequence if the copy of the examination is given to
the party examined, upon the latters request?

44

What if there is refusal to answer questions in oral examination or

interrogatories (Rule 23 or 25)?
o 1. The proponent may pursue other questions
o 2. The examination may be adjourned
o 3. The proponent may request for a court order to compel an
answer
o What if the application for the order is granted?

1. The deponent must answer

What if the deponent still refuses to

answer?
o Indirect contempt

2. And if there was without substantial justification to

refuse, the court may compel payment of reasonable
expenses to procure the order, including attorneys
fees
o What if the application is denied?

1. The deponent need not answer

2. If the application was without substantial

justification, the court may require the proponent or
counsel or counsel (or both) to pay the deponent
reasonable expenses to oppose the application,
including attorneys fees
When is there indirect contempt of court?
o 1. The deponent refuses to be sworn in
o 2. The deponent refuses to comply with court order to answer
a question
What if a party or officer/managing agent of a party refuses to obey
either: a) order to answer, b) Rule 27 (production/inspection), or c)
Rule 28 (physical/mental examination), what are the courts
options?
o 1. The matter asked, contents of the paper/property, or
mental/physical condition deemed established, for purposes
of the action
o 2. Order refusing to oppose claims on that matter, or submit
designated documents/thing, or introducing evidence on
physical/mental condition
o 3. Any of the following:

Striking out pleadings or some parts thereof

Staying proceedings

Dismissal of the action

Judgment by default
o 4. Arrest of the party/agent of the party

Exception?

For Rule 28 (examination of physical/mental

condition)
What if a party refuses to admit genuineness of a document or
truth of a matter of fact (Rule 26) and then it was found to be
genuine/true?
o The proponent may apply to the court for an order requiring
reimbursement of reasonable fees to procure his proof,
including attorneys fees
o When does the court award this?

Every time, except:

1. If the denial was with good reasons

2. The admissions sought were without substantial

importance

Trial

45

What if a party/managing agent of a party fails to appear in

deposition or fails to serve answers to written interrogatories?
o On motion and notice, the court may:

N.B. There must be notice by the party

o 1. Strike out
o 2. Dismiss action
o 3. Enter judgment by default
o 4. Order payment of reasonable fees including attorneys fees
Against whom can there be no order of payment of expenses and
attorneys fees?
o The Republic
Can you use modes of discovery in special proceedings?
o Yes.
o Special proceedings do not provide for an answer. But the
general principle of suppletory application (Rule 72, Sec. 2).
Is there criminal deposition?
o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
about a pending criminal action, but it is no trial yet.
o You can call witnesses even before trial and obtain their
testimony.
o But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
accused.

For prosecution examination before trial can only be

done in the court where the action is pending because
the law wants it to be harder for prosecution.

For the accused, it should be made before either any

judge, before any member of the Bar (good standing,
etc.), any inferior court designated or appointed by a
superior court.
o But the law does not say its deposition. But its akin to such,
according to a Supreme Court decision.
Does physical/mental examination as a mode of discovery apply in
criminal trial?
o Its inherent.

Both civil and criminal procedures will not provide for conduct in
examination of a witness. Where is it found?
o Rules on Evidence.
What is the order of presentation of evidence?
o 1. Plaintiff, to support complaint
o 2. Defendant, present defense
o 3. Third party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
Can it be reversed?
o Yes, it can, if there is an affirmative defense.
o Plaintiff in the usual and ordinary course of things presents
before the defendant.
o Can there be reverse order if it is a civil case?

[Check answer]
Can there be judgment without trial?
o When parties agree on facts involved in the action
o If the agreement of facts is partial, trial shall be held as to
others
What are the grounds for cancellation of hearing (actually,
postponement)?
o 1. His presence is indispensable and illness is excusable

N.B. it does not say the party must be indispensable;

just his presence
o 2. Absence of evidence, and the evidence is material and
cannot be procured despite due diligence
Who can receive evidence?
o Generally, the judge
o Exception: to the clerk of court delegated authority to receive
evidence

1. There are default proceedings

2. Ex parte

Examples of ex parte proceedings?

o Default
o Application of indigent
o As in default [did not appear
during PT]

3. Parties agree in writing

Can an adoption case proceeding be delegated to the clerk of

court for reception of evidence?
o No.
o Always with the judge
Can a clerk of court issue a subpoena?
o Yes, if it is a subpoena ad testificandum. If it is a subpoena
duces tecum, there must be order by court.
Can the clerk of court resolve objections raised in an ex parte
proceeding?
o No.
o Just note the objections, and forward to the judge.
o The other party is not there who will object?

Well, the clerk of court just has to note it down if

clearly objectionable.

Trial by commissioner

46

Who is a commissioner?
o Person authorized by the court to receive evidence
o Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the
commissioner?
o 1. Requires examination of long account
o 2. Taking of account necessary for courts information for court
to render judgment/execute it
o 3. Question of fact arising from motion
Can a commissioner issue a subpoena?
o Yes.
o Can he issue a subpoena duces tecum?

Yes, as long as within the order of reference (his

authority)
What if a witness refuses to obey a subpoena issued by the
commissioner or give evidence before him?
o Deemed a contempt of the court that appointed the
commissioner
Can he resolve objections?
o Yes.

o N.B. this distinguishes him from a clerk of court

When are commissioners mandatory?
o Expropriation mandatory in second stage
o Partition only optional

If the parties stipulate how the property will be

partitioned, there is no need to go to the second stage
where commissioners are required
Report of a commissioner is not a judgment. It only aids the court.
What are the options of the court?
o It may adopt, modify, or reject the report
o What if the parties stipulate that the commissioners
findings of fact are final?

Only questions of law shall be considered thereafter

What is the rule on objections?
o 10 days from filing of report, parties can object to the findings
of the report
o BUT, must make it before the commissioner during
proceedings, if these can be made by then otherwise, will not
be considered by the court
Who shoulders the cost?
o The losing party, in general. But the court may apportion

o
o
o

Consolidation

When can there be a consolidation?

o When actions involve a common question of law or fact
What is the difference between consolidation and joinder?
o In consolidation, the cases are already pending; in joinder, the
cases are just being filed
There was a case where the court allowed for the consolidation of cases
in two different judicial regions even when it was not even an issue in
the case!
What are the grounds for separate trials?
o Convenience or avoidance of prejudice may separate a claim
(ordinary, cross, counter, third-party)

Demurrer to evidence

When do you apply for demurrer?

47

In civil, when plaintiff has completed presentation of evidence

In criminal, when the prosecution rests its case
When is this exactly?

After formal offer of evidence

Do you need leave of court?
o In civil cases, no need for leave of court.
o But if you file leave, is it okay?

Nothing really wrong, but youre just delaying your

case.
o In criminal cases, can you file demurrer without leave of
court?

Yes, but if it is denied, the consequences are serious.

If there is no leave, and demurrer is denied

accused waives the right to present evidence

If there is leave of court, and demurrer is denied

accused can still present evidence
What is your remedy of the losing party defendant if the demurrer
is granted? (civil)
o Can still appeal, because demurrer is a final disposition of a
case.
If your demurrer is denied, what do you do? (civil)
o You can submit evidence, and continue until judgment.
o Can you file for an MR of the denial?

Yes, you can file. As long as there is an order, you

can file an MR. You can even file it to a judgment,
although it is not a prerequisite for appeal.
o If the MR is denied, what can you do?

File certiorari
But in criminal demurrer, can you file for certiorari after denial of
the MR?
o You cannot appeal a denial or file for certiorari until final
disposition of the case.
Dayap: Criminal demurrer. What is the effect of dismissal in a
criminal case?
o It amounts to an acquittal. This is not a dismissal without
prejudice. You cannot re-file.
o But is it reviewable by appeal?

No. It is an acquittal. Double jeopardy has set in.

o But is it reviewable by another mode?

Petition for Certiorari (Rule 65)

Salazar: Demurrer to evidence takes the nature of a motion to dismiss.
If he files it without leave of court, he waives his right to present
evidence and he submits the case for submission purely on the
evidence presented by prosecution.
o If the demurrer is granted and the accused is acquitted,
can the accused adduce evidence on the civil aspect of
the case?

Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.

So if the accused was not able to present evidence in

the civil aspect, it is a void judgment.
Radio Wealth: Civil demurrer. What is the consequence of a
reversal by the higher court, after the initial granting of a
demurrer?
o The defendant cannot adduce evidence anymore. The court
will render judgment on the available evidence.
o This effect does not apply to criminal cases
P v. Cachola: N.B. In a bar exam, demurrer was once coined as
motion to dismiss on the ground of insufficiency of evidence. This
case used the very same terms.

Judgment on the pleadings

When is there judgment on the pleadings?

o 1. The answer fails to tender an issue
o 2. Or the answer admits the material allegations of the adverse
partys pleading
What do the material allegations mean in the second ground?
o It means the cause of action
o See the next section on Summary Judgment as to what the
difference is with that concept
Who files a motion for judgment on the pleadings?
o The plaintiff, always
Can there be partial judgment on the pleadings on this ground?
o No. Its ALWAYS a full judgment on the pleadings.

48

N.B. This is different from summary judgment, where there can

be partial or complete summary judgments.
Can the defendant file a motion for judgment on the pleadings?
o Based on a counterclaim.
If youre the plaintiff, when can you file a motion for judgment on
the pleadings?
o After the defendant files an answer.
o Can it be during pre-trial?

Yes under Rule 18, Section 2g.

But as a rule of strategy, file it upon first chance to do

so.
o Can you file a motion for judgment on the pleadings after
pre-trial?

Yes. But this is really belated.

If youre the defendant, when can you file?
o Anytime. (Note: this is on a counterclaim, so it doesnt kill the
general rule that only the plaintiff can file this motion)
Can the court motu propio render a judgment on the pleadings
without motion of the parties?
o No. It must always be upon application.
o Very important: But during pre-trial, the judge may prompt the
parties during pre-trial to have judgment on the pleadings (Rule
18). But its still, ultimately with the parties consent. So in the
end, the judge still cannot grant it on his own.
What are the effects of motion for judgment on the pleadings?
o 1. The movant admits all of the material allegations of the other
party and rests his motion for judgment on those.
o 2, Movant waives or renounces claims for damages because
allegations as to amount of damages are not deemed admitted
if not specifically denied.
What is the requirement for notice of hearing?
o 3-day notice of hearing (general rule on motions)
o N.B. in summary judgment, the opposing party is given 10
days notice
What is the remedy against judgment on the pleadings?
o Rule 45 certiorari, because a judgment on the pleadings does
not raise questions of fact, as the judgment is based on
pleadings alone and the judgment is final

Summary judgment

What is summary judgment?

o There is no genuine issue as to a material fact. Memorize this
phrase.
o When is there no genuine issue?

When the issue does not require presentation of

evidence for its resolution, and was just set up as
sham, fictitious, contrived, set-up in bad faith, or is
unsusstantial
What is the difference between this and the answer does not
tender an issue?
o There is no issue as to a material fact (note: not on the issues)
But can you have a summary judgment based on a tort?
o No. Because damages here are unliquidated, and the court
has to hear the case.
When can there be summary judgment?
o Declaratory relief
o Liquidated sum of money or action to recover a debt
The court could rely on documents, papers, affidavits, depositions.
o Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must file motion for summary judgment and
attach the document.
o N.B. these attachments must be sworn or certified copies
o What must the affiant show?

The he is competent to the matters stated therein,

that the facts are the admissible in evidence,

and it is based on personal knowledge

What is the requirement for the motion and hearing?
o Written motion at least 10 days before it is heard
o When can the opposing party serve opposing affidavits?

At least 3 days before the hearing

Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fictitious. In JOP,
the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
Promissory note with no date when it is due and demandable. X
owes Y 500K. Y sues X. X claims its not yet due! Is this

something that would lead to summary judgment or judgment on

the pleadings?
o Summary judgment; although there appears to be an issue (X
made an issue out of nothing). It is ostensible, but its actually
sham or fictitious.
o Cannot lead to judgment on the pleadings, because there was
no admission of material claims.
What is the remedy of the aggrieved party against a summary
judgment?
o Appeal
o Except if there is already a writ of execution, then certiorari
might be more applicable (because there is no plain, speedy,
available remedy)

Judgments

49

Can the court change its judgment?

o Before it becomes final (ex. appeal period), it can as a matter
of right.
o Once it becomes final, only clerical errors can be corrected.
What is immutability of judgments?
o General rule: judgments are immutable; they cannot be
modified once final and executory
When is the judgment considered promulgated or rendered?
o Filing with the Clerk of court, not mere signing
What are the exceptions?
o 1. Nunc pro tunc

antedated judgment, when delay or error is due to the

courts fault
o 2. Clerical or typographical errors
o 3. Void judgments
o 4. But some judgments cannot really obtain finality like
support
Is the judge required to take notes during course of hearing in
order to be able to render valid judgment?
o No.
Is it required that the judge who heard the case is the same who
renders the decision?
o No. But the judge must personally review it.

Is filing of memoranda by the parties (after the trial, after

submission of evidence) required/mandatory?
o It is not mandatory. It is not essential.
o Non-submission is not fatal.
What is a separate judgment?
o If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o Ex. In expropriation there are two judgments:

1. Authority to expropriate

2. Just compensation
o Ex. Summary judgment (one case has several judgments
summary as to the one with no genuine issue, and trial over
the ones with genuine issue)
What is the difference between a separate judgment from a several
judgment?
o Several refers to parties, separate refers to claims
Can the court render a judgment to a non-juridical entity?
o Judgment will be against the members, not the entity itself
The judgment awards attorneys fees. What is required for it to be
valid?
o The court must state its factual, legal, and equitable
justification. They are not recoverable as a matter of right. If
there is no factual basis, then the award of attorneys fees is
void.
What is required for a memorandum decision?
o It must attach the findings of the lower court in an attached
annex which is made an indispensable part of the decision.
o Remote reference is not allowed.
What is a sin prejuicio judgment?
o It is not binding, because it makes reservation in favor of some
parties as to the right to do something in a separate and further
proceeding
What is a mittimus?
o Final process for carrying into effect the decision of the
appellate court and the transmittal to the court a quo. It is
predicated on the finality of judgment.

Execution

50

When is execution a matter of right?

o Judgment is final and executory USUAL CASE

Ex. period appeal has already lapsed

When is execution a matter of discretion?
o For good reasons, when it is not yet final and executory
o Execution of several, separate, or partial judgment
Which court issues the writ of execution?
o Court that rendered judgment
o RTC issued a decision, it was appealed to the CA, then to
the SC. Who issues the writ of execution?

The RTC the court of original jurisdiction

o Are there instances wherein the writ will be issued by an
appellate court, or a court other than that of original
jurisdiction?

In the interest of justice, you can apply to the

appellate court. But the general rule is that it is still
the court that rendered the decision.
o Can the CA issue a writ of execution, other than in this
instance?

When it exercises original jurisdiction.

Where do you file a motion for execution?
o File it in the court that rendered the judgment.
o Can it be filed with the appellate court?

Same with above.

Do you need to file a bond to apply for discretionary execution?
o The obligor needs to file a supersedeas bond to stay
discretionary execution; but the obligee does not need to file a
supersedeas bond to apply for discretionary execution.
o What does the obligee need to present then?

Proof showing good reason

o What are examples when discretionary execution vest?

1. Perishable goods

2. Old age + sickness [?]

When does judgment become final and executory?
o A final judgment or order is one that finally disposes of a case.
This is the only thing that could be subject to execution.
What is the difference between discretionary execution and
execution pending appeal?
o They are the same. And both require good reasons.

Should the writ of execution conform to the dispositive portion?

o Execution must conform to the dispositive portion. What is
reproduced in the writ is the dispositive portion of the
judgment. (Intramuros)
Is a full blown trial required for a motion for execution?
o No.
Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
Do you need a bond to stay a writ of execution that was issued as
a matter of right?
o No. You cannot stay it anymore even with a bond. Its a
matter of right.
o What is the exception?

Get an injunction or TRO, claiming GADALEJ.

What are the judgments not stayed by appeal?
o Injunction, receivership, accounting, support, other judgments
saying its immediately executory
Can an MR stay a motion for execution?
o The provision only says an appeal can stay a judgment
theoretically, jurisdiction is still with the court of original
jurisdiction.
o But there is no clear answer.
In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?

Mina: Discretionary execution can be entertained by

the RTC.
Who has to make reports?
o The sheriff, on any matter of execution, esp. the conduct of
such.
Is a motion for execution indispensable before the court can
execute?
o Yes, even for those immediately executory in nature.
o Cagayan de Oro: A lawful levy for execution is needed before
there can be a sale can be effected.

51

Can the court motu propio issue a writ of execution?

OCA v. Corpuz: Court on its own, cannot issue a writ

of execution without motion of another party
What is revival of judgment by an independent action?
o If you went beyond 5 years from entry of judgment, but are still
within the prescriptive period, you can file an independent
action to execute.
When can you file a motion for execution?
o Within 5 years from entry of judgment
After lapse of period of ten years, can you still revive it?
o No.
o Is it always ten years?

YES.
This is the flat prescriptive period for
judgments.
Death after judgment:
o If the judgment obligee dies, then the executor/administrator
applies for execution
o If the judgment obligor dies, and judgment is for recovery of
real/personal property there is a lien over his property
o What if levy has already been effected?

Proceed to sale of the property to satisfy the

judgment.
o What if the judgment is for money, not property?

File a claim against the estate

Section 8: Contents.
o Do the contents have to always be there?

No. Only to the extent applicable.

Money judgments
o Payment must be in what form?

In cash.
o Payment must be made to whom?

To the judgment obligee, if available

What if he is not available?

To his representative

What if he is not available?

To the sheriff
o Can payment be effected not by cash (Ex. check or PN)?

Certified bank check is allowed

Or any other form of payment acceptable to the latter

What if there is no cash?

Go to
Levy on real or personal property
o What will be disposed first?

Choice of judgment obligor

If he doesnt make a choice, personal property is

prioritized over real property
o What if there is no property?

Go to
Garnishment
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?

5 days from receipt of notice. The custodian/manager

has 5 days to report if there is money.
o What does the court do next?

It issues an order requiring transfer of funds.

o Can you garnish without prior demand of payment?

No.
Specific acts
o If the court requires the obligor to do something, but he
refuses, what happens?

The court can require another person to perform it.

o If the other person does not comply?

The court may consider that it has been DEEMED

complied with.

Give an example.

The court orders that there must be

execution of deed of sale in favor of Y, done
by X. X refuses. The court orders Z to
perform it. Z refuses. The court will deem it
complied with. This deed of sale will be
forwarded to the Register of Deeds or
whoever/whatever office
o Can an order for demolition be given along with the writ of
execution?

No. It is punitive in nature, so there must be a

hearing.

How is this accomplished?

52

There must be motion of judgment obligee

after due hearing and after the former has
failed to remove the same within a
reasonable time fixed by the court
o When can there be contempt?

ONLY applies for special judgment, and there is

refusal to comply.
What are the properties exempt from judgment?
o Family home, homestead, and the land

If you mortgaged your Family Home, will it still be

exempt from execution?

No.

What are homestead lands?

Public lands given to people giving them a

chance to cultivate
o Libraries of professionals not beyond 300K
o Furniture for the family not beyond 100K
o Beasts of burden (up to 3)
o Tombstones

What about mausoleums?

No.
o [Among others]
When can you apply for a motion for execution?
o Section 14. This also tells you the life of the writ.
o What is the life of the writ?

5 years, before it expires.

Sec. 15-34:
o Important parts:

Requirements of sale

Certificates of sale

Redemption

Redemption period

Who will be in possession of the property sold in

public sale

Who will be entitled to fruits/profits of the property

What if after participating in the sale, you are unable

to take possession of the property remedies
o What are the requirements for sale?

TWO NOTICE REQUIREMENT: one to the judgment

obligor, one to the public

Public posting in 3 conspicuous places (or

even by publication if assessed value of real
property is 50K+)

What if it is a perishable good or personal

property?

Perishable goods within reasonable time

(no strict timeframe)

Personal property at least 5 days notice

Real property posted for 20 days

o N.B. not at least

What if the assessed value of the real property

exceeds 50,000, what is needed?

There must be publication

Should you notify the judgment obligor?

Perishable goods just notice before the

sale

In all cases, notice at least 3 days before the

sale

What time must the sale be?

9 am to 2 pm, and it must be in the office of

the Clerk of Court. But usually, it is done
outside the hall of justice

What if it is personal property capable of

delivery?

It must be done in the place where the

property is located
What is the consequence of selling without notice or
defacing/removing the notice?

Penalty of 5000 pesos recoverable in the same action

What if there is a third party claimant?

He asserts his claim in the proceedings through an

affidavit of title

Served on the levying officer

Serve copy to the judgment obligee

What is the effect?

The officer is not bound to keep the property

53

What is the remedy of the judgment obligee?

Post a bond approved by the court to

indemnify the claimant (value is not less than
value of property)

In such a case the officer shall not be liable

for damages for taking/keeping the property
if the bond is filed

When can there be a claim of damages for taking

or keeping of the property?

Only within 120 days from the date of filing of

the bond

N.B. The claimant is not precluded from filing a claim

to the property in a separate action
Is a certificate of sale mandatory for personal properties
capable of manual delivery?

No, it is not.

For real properties, you need a certificate of sale.

What are the contents of a certificate of sale?

1. Particular description of the real property

sold

2. Price paid for each distinct parcel or lot

3. Whole price paid

4. Statement that right of redemption expires

1 year from the date of registration of the
certificate of sale

registered with the ROD

Can you redeem personal property sold on public sale?

No. Personal properties cannot be redeemed, only

real properties.

Who can redeem real property?

The judgment obligor can redeem

Who else?

Those who have interest on the property,

either
by
credit,
encumbrance
(redemptioners)

What is the distinction?

Judgment obligor always has a period of 1

year, non-extendable

o
o

Once the judgment obligor redeems, no

further redemption is allowed.

Redemptioners may redeem, but it may

again be redeemed from them within 60
days by another redemptioner

What about the redemptioners?

o Their
rights
were
never
extinguished. It still exists, over the
property.

If the judgment obligor does not redeem,

can the redemptioners redeem beyond
the 1 year period?
o No. This is the view sir subscribes
to, even if some commentators say
there can be endless redemption
beyond the 1 year period in 60 day
intervals. But sir said that after 1
year, the last redemptioner gets the
property.
Who has possession during redemption period?

Obligor.
Who is entitled to fruits and profits?

Obligor.

N.B. The obligor cannot change the nature of the

property during the period. He must not modify it.
How must redemption be made?

It must be willingness and intention coupled with

tender of payment. Willingness and intention without
tender is not enough.

Case: The redemptioner wanted to redeem in

installments, and not full payment. This was held to
be invalid.

Beyond the redemption period, can it still be

redeemed?

It is not anymore redemption as

contemplated by law; just a contractual
arrangement between the redemptioner and
whoever purchased the property.

54

Amount subject to sale + interest + taxes, if

before the one year period; however, after
the period is over, the amount can be
dictated by the parties freely.
o I purchased property in a public sale, but someone with a
better interest came forward, so I wasnt able to get
possession and transfer of the property. But I already
parted with my money, and paid the sheriff. What should I
do?

1. You can recover its value in the same action or

separate action

2. You can have the judgment revived in the name of

the purchaser he steps into the shoes of the
judgment obligee.

In this case, he can execute just like any

other judgment obligee.

[So if he cannot pay, he can levy, and if not,

he can garnish.]
In execution, you need to remember the word satisfaction. Sections
44 and 45 have this end in mind. The books of the case will not be
closed, even if you won, if judgment has not yet been fully satisfied.
What are the remedies of the judgment obligee if the writ of
execution as returned shows that the judgment has not been
satisfied?
o 1. Call the judgment obligor and have him examined in court,
through subpoena

N.B. only if the residence of the judgment obligor is in

the province or city of the court
o 2. Call on the stand the debtor of the judgment obligor to be
examined in court, through subpoena

What if in the course of examination, we find that

he owes the obligor?

He can then be charged.

NB. Obligor/debtor of the judgment obligor may pay

what he owes directly to the sheriff, and the sheriff
issues a proper receipt enough to discharge
o 3. Amortization of payments
o 4. Court appoints a receiver over the property

Akin to the provisional remedy on receivership

This is the only provisional remedy that can be given

by the court even after judgment

The reason: to preserve the property.

5. If it is later discovered that the obligor has an interest over a
certain real property, the court can order a sale to satisfy the
judgment

Who is ordered to sell it?

The receiver

The property must be within the place in which

proceedings are had

N.B. the interest over the real property must be

ascertainable without controversy
6. If person who has possession of the property of the obligor
refuses to recognize the title of the obligor:

1. The court may issue an order that the judgment

obligee institute an action for recovery of the interest
or debt against the judgment obligor

2. The court can forbid a transfer or other disposition

of the property within 120 days from notice of the
order

3. Punish the judgment obligee for failure to comply

with the order

N.B. ironically, it is the judgment obligee

subjected to punishment for failure to comply

N.B. Atty. Salvador said the sale must be

within the 120 days provided by the order

In sum:
o 1. Examine obligor
o 2. Examine obligors obligor
o 3. Amortize
o 4. Receivership
o 5. Sale of obligors interest
o 6. Obligee action against obligors adverse claimant
What are the 3 scenarios to show full satisfaction?
o 1. The writ of execution has been returned to court

Every 30 days, the sheriff has to report on the status

of the writ
o 2. Written acknowledgement of the judgment obligee or
counsel

3. When there is an endorsement on the face of the records of

the case
Even if the other party does not consent, but the court believes that it
has been satisfied, the court may enter that it has been satisfied.
What are the effects of domestic judgment? (MEMORIZE)
o 1. As against a specific thing, condition/status/relationship of a
person conclusive upon it

As an exception to this, where a will has been

probated, is death of the party conclusive?

Its only presumed

o 2. Res judicata

Baretto v. CA: Two aspects of RJ 1. judgment bars

the prosecution of the same claim, demand, or cause
of action, 2. Precludes the re-litigation of a particular
fact or issue in another action between the same
parties in a different claim or cause of action
o 3. Preclusion of issues/conclusiveness of judgment

As to other litigation actually and necessarily included

therein
What are the effects of foreign judgment?
o 1. Conclusive as a specific thing
o 2. Presumptive evidence of rights between parties
How do you enforce foreign judgments?
o 1. File a verified petition in the RTC
o 2. Show there was jurisdiction of the court over the subject
matter and over the parties
o 3. Prove the law of that jurisdiction
How do you impugn that foreign judgment?
o 1. Want of jurisdiction/notice to party
o 2. Collusion
o 3. Fraud
o 4. Clear mistake of law/fact
How about foreign arbitral awards?
o You file an action for recognition. It is not a foreign judgment.

POST-JUDGMENT REMEDIES
Motion for reconsideration

55

Is an MR a prerequisite to appeal?
o No.
In a case involving summary procedure, is MR allowed?
o No, it is a prohibited pleading
How many days to file?
o 15 days
o Can it be extended?

Cannot be extended

This rule has never been changed. You cannot file an

extension on an MR
o So whats the remedy?

Some lawyers suggest filing a supplement. But

actually, there must be a new event or fact that arises
to do this. So this is dangerous.
How long must an MR be resolved?
o Within 30 days
Can there be a partial MR?
o Yes, when the court finds that the MR affects only a part of the
judgment (ex. just one of the issues).
Distinguish an MR from an MNT.
o A. The grounds are different. In MNT, the grounds are FAME
and newly discovered evidence.

What fraud is needed here?

Extrinsic fraud.

What is mistake?

Mistake of fact in good faith

If theres a mistake of law, the remedy is an

MR, not MNT

What is newly discovered evidence?

1. It must be material

2. It was not available during trial despite

exercise of due diligence

3. If considered by the court, it could

later/change the result
o B. The effect is different. An MR involves a trial de novo, if
approved.
o What are the grounds for MR?

1. Evidence not sufficient to support the judgment

56

2. Excessive damages

3. Decision contrary to law

What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
Does the Neypes ruling apply to other kinds of appeal?
o No. Just Rules 40 and 41 (ordinary appeal).
Why? What about the others?
o Rule 42 (petition for review) no need for Neypes ruling,
because the provision itself provides for it

The petition shall be filed and served within 15 days

from notice of the decision to be reviewed or of the
denial of the petitioners MNT/MR filed in due time
o Rule 43 (review of QJA) no need as well

Same wording as Rule 42.

o Rule 45 (petition for review on certiorari)

Same wording (15 days from notice of judgment/final

order or of denial of MNT/MR)
How many times can you file an MR?
o Just once
How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the
first MNT was filed
What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial
without retaking
Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals
(not all appellate courts).
o Rule 53 covers MNT in the CA. So that MNT is different from
the MNT here. The MNT in the Court of Appeals only has one
ground: newly discovered evidence.
o There are different periods as well

In the MNT in trial court: 15 days from judgment

In the CA: for as long as its an active case (no need

to wait for a judgment in the CA as long as the CA
has jurisdiction)
Is there a MNT in the SC?
o Rule 56

o
o

As a rule, an MNT cannot be entertained in the SC.

But it is left with the sound discretion of the court if it feels that
it should do it in the interest of justice.

Petition for relief

How many kinds of petition for relief do we have?

o Two.
o 1. From judgment
o 2. From denial of appeal
Where do you file it?
o From judgment: before the court that rendered judgment, not
before the appellate court
o From denial of appeal: from the court that gives due course to
an appeal

N.B. So if its ordinary review, to the lower court. If its

a petition for review, then to the appellate court.
A lawyer forgot to file an appeal on time. He filed late, and it was
denied. What do you apply for?
o Cannot use petition for relief from denial of appeal, because
there is no ground. He just forgot; he wasnt prevented.
o You file an MR.
o Why?

You file a petition for relief from denial of appeal if you

were prevented from filing it. Here, he was not.
What is the time period for filing petition for relief?
o Within 60 days from knowledge from the judgment of order
(count from entry of judgment)
o BUT NOT more than 6 months after entry of judgment/order
o N.B. both periods must apply (60 within 6)

The sixty days can only move around the six months.
If you found out the day before six months expire, you
are left with one day, not 60 days.
Can you file a petition for relief from judgment when there is still
an available remedy of MR, MNT, or appeal?
o No. As long as there are still available reliefs, you cannot
resort to petition for relief from judgment. Take note, that there
must be entry of judgment, which means if there is no final
judgment yet, you can still do an MR/MNT/appeal.

Where else does FAME apply?

o 1. MNT
o 2. Petition for relief from judgment/denial of appeal
o 3. MR to court order declaring defendant as in default (failed
to appear in pre-trial)
o 4. Motion to lift order of default (failure to file an answer)
What are the grounds for annulment of judgment (Rule 47)?
o 1. Extrinsic fraud

Prescribes 4 years from time of discovery

o 2. Lack of jurisdiction (covers both SM and person)

N.B. This is the only provision that uses lack of

jurisdiction both ways
Mr. X died, leaving an estate. Juan claims to be the sole heir. The
estate court adjudicated the entire estate in favor of Juan.
Judgment became final and executory. After 2 months, the rest of
the heirs who learned of the judgment came forward and filed a
motion to set aside the judgment. Court denied the motion to set
aside the judgment. So they went to the CA on an annulment of
judgment. (N.B. a petition for annulment of judgment is an original
action; it is not an appeal. You file this for a decision of the MTC, to the
RTC and for a decision of the RTC, to the CA.) Did they use the
proper remedy for filing petition for annulment of judgment in the
CA and not petition for relief to the court that issued the judgment?
(Alaban v. CA)
o Petition for relief.
o 1. Although section one states that only a party may file a
petition for relief from judgment, settlement of estate is an
action in rem. It requires publication, so the heirs have been
notified and deemed as parties.
o 2. The learned of the judgment 2 months (60 days) from
learning of the judgment. So the proper remedy is petition for
relief, since it falls within the period.
N.B. Remember this: petition for relief is filed by a party to a case.
Annulment of judgment can be availed of even by a non-party to a case.

Appeals

57

1. Appeal is a statutory privilege

o Neither a natural right nor a constitutional right

There is right to due process. But the right to appeal an

adverse decision is not part of the right to due process.
o Thus you cannot deviate from the requirements made
mandatory under that law that gave you such privilege.
2. Matter of right (qualified)
o One can technically view appeal as a right as long as there is a
statute providing you such privilege already laid down
o Ex. judgments of MTC and RTC exercising original jurisdiction

So if the RTC exercised original jurisdiction, the CA

must entertain the appeal
3. Not a matter of right
o Ex. appealing from judgment of a court already exercising
appellate jurisdiction
o Ex. MTC (original) RTC (appellate)

One may file a Petition for Review technically, this

is still a matter of right [at least, to file, from ones
point of view]

But whether it is given due course by the higher court

or not is another issue there is discretion not to
entertain the petition for review
o Ex. Rule 42, Rule 43, Rule 45
4. Purpose of appeal
o Review errors of judgment

Errors of fact or errors of law

One is talking about a court having jurisdiction over

the person and subject matter

Goal: to achieve reversal or modification of judgment

o Contra: errors of jurisdiction

Goal: set aside judgment. This is covered by Rule 65.

ONLY the defenses that were put up in trial court may be elevated for
appeal. Issues not discussed below at all, in the pleadings, may not be
elevated for appeal. (Rule 44, Sec. 15)
o How are issues raised in the trial court?

Raised in the pleadings

o May that issue not included in the pleadings be tried
nonetheless?

No. Except if one moves to amend the pleadings to

conform to evidence or authorize its presentation

58

A party submits evidence outside the issues raised in the

pleadings. The other party accedes to it. How does the
other party show that he did not object to the raising of
issues outside the pleadings?

Submitted evidence on that issue too

Cross-examination

Remaining silent
A question of jurisdiction is something that you can question
anytime. (A dragon that may be slain each time it rears its ugly
head.):
o It doesnt matter if you raise it on appeal or through SCA; the
point is you can raise it to a higher court.
What is the exception?
o Estoppel. For instance, X failed to object to jurisdiction of the
tribunal and actively participated in the trial.
If a party to a case got a smaller amount than prayed for, but he
won the case, can he appeal?
o Yes, he was not satisfied with the award. It does not follow
that just because a person won the case, he is not allowed to
appeal.
In a criminal case, the accused is convicted. May he appeal?
o Yes.
May the State appeal on the ground that the penalty imposed is not
what the prosecution wanted?
o Yes.
Appeal is a remedy. A remedy to what?
o An appeal may be taken from a judgment or final order that
completely disposes of the case,
o Or of a particular matter therein when declared by these Rules
to be appealable. (Rule 41, Sec. 1)

Ex. special proceedings or SCAs usually allow

multiple appeals; e.g. settlement of estate: probate of
will, appointment of executor, etc.
o Why does the provision not put the word final before
judgment?

Because if the judgment is final, then it would be

executory otherwise. To remove this confusion, then
the provision does not state final
o Why does the provision put final before order?

Because the provision wants to contrast this against

interlocutory orders, which are non-appealable.
o Is there a distinction between judgment that completely
disposes of the case and final order that completely
disposes of the case?

Judgment is based on the merits of the case, after a

full-blown trial and evaluation of evidence.

Final order is based on adjudication not after going

through a full blown trial. Ex. MTD or demurrer
The defendant files an answer but it did not controvert the
allegations in the complaint. What should the plaintiff do?
o File motion for judgment on the pleadings (Rule 34).
o This is a final order that completely disposes of the case, and
is appealable.

What matters cannot be appealed?

o 1. Order denying petition for relief from judgment:

Remedy is any of the Rule 65 remedies

o 2. Order denying interlocutory order:

Judy Ann Santos v. People MTQ denied. Filed

MR to the denial of the MTQ. HELD: The denial of
the MTQ is an interlocutory order which is not the
proper subject of appeal or petition for certiorari.

There would be no procedural void:

A) There can still be appeal of the main case

B) There can be petition for certiorari of the

main case if there is GADALEJ

Two reasons why interlocutory order cannot be

appealed:

A) Still subject to modification or rescission

by the court
o Ex. for preliminary injunction, may
file for motion to discharge the
injunction or may file counter bond

B) To avoid multiplicity of appeals

o 3. An order disallowing or dismissing an appeal.

Disallowing an appeal this is fairly obvious

Dismissing an appeal

o
o

59

This does not refer to adverse decisions. It

just gets confusing for many because the
appellate courts use the term hereby the
appeal is dismissed if a party loses an
appeal.

It actually means the same thing as

disallowance; so for instance, there was no
payment of docket fees, etc.
4. An order denying a motion to set aside judgment by
consent, confession, or compromise on ground of duress,
fraud, or mistake or any ground vitiating consent.

What is unique about judgment rendered by court

based on compromise?

It is immediately executory.

For instance, a party is defrauded by the other

party in a compromise agreement. He files a
motion to set aside the judgment. It was denied.
What is the remedy?

He cant appeal, but can avail of Rule 65.

5. Order of execution
6. Order dismissing an action without prejudice

What is a dismissal without prejudice?

One that does not bar the party from again

filing the same action disposed of.

MTD was filed by the defendant on the ground of

failure to state cause of action, and it was
granted. Is it appealable?

No. It is dismissal without prejudice.

MTD based on statute of limitations: dismissal

without prejudice?

No. It is a dismissal with prejudice, and

therefore appealable, because the action
has prescribed, and cannot be re-filed.

What are the four grounds where dismissal is with

prejudice?

1. Statute of limitations

2. Statute of frauds

3. Res judicata

4. Payment, waiver, extinguishment,

abandonment
o 7. Judgment or final order in an action with several parties or
rd
claims, counterclaims, cross-claims, and 3 party claims, when
the main case is pending unless the court allows

General rule: wait for the main decision. Even if the

main decision comes out 2 years after, the party
receiving an adverse decision may still file an appeal
in time.
In all of the grounds stated therein, where there is no appeal
allowed, what is the proper remedy?
o Rule 65.
What ground has been deleted?
o Order denying MNT or MR this used to be the first in the
enumeration
o SC-07-7 (Dec 2007) removed this from the enumeration.
o Does this mean that you may appeal from the order
denying the MR or MNT?

No, still not.

o So why was this removed from the enumeration?

So the parties cannot avail of the last paragraph of

Sec. 1 (Rule 65 certiorari, prohibition, mandamus)
to question the denial of the MR or MNT.

But this is a bit unfair, because for instance, your

MNT was denied even if there actually was new
evidence you dont have certiorari as a remedy
anymore!

Although nothing prevents filing a separate petition for

certiorari to question this act by the TC.
What are the three modes of appeal?
o 1. Ordinary appeal (Rules 40 and 41)
o 2. Petition for review
o 3. Petition for review on certiorari
What are the ordinary appeals?
o 1. Notice of appeal
o 2. Record on appeal
When is there record on appeal?
o 1. Multiple appeals
o 2. Special proceedings

What happens to the title of the case?

o The title remains the same. So the plaintiff is still mentioned
first, and the defendant next.

But the designation just changes.

Ex. Glenn Tuazon, plaintiff v. Rensi Pua, defendant

Glenn Tuazon, appellee v. Rensi Pua, appellant or

Glenn Tuazon, appellant v. Rensi Pua, appellee

o What if it goes up to the Supreme Court?

When one goes up to the Supreme Court, it becomes

petitioner v. respondent.

And the title need not remain the same.

You do not include the CA as a respondent when you

appeal to the SC, still the same private party. (The
SC already issued a circular for this.)

The lower court only becomes a respondent, for

instance, in a petition for certiorari. If there is
GADALEJ, for instance, the defendant is the court.
The private respondent just files the response on
behalf of the public respondent.
o Under Rule 43 (Q-J), what is the rule?

There is no set rule. It can be appellant/appellee or

petitioner/respondent.
o What if both parties appeal?

Plaintiff-appellant v. Defendant-appellant

But in their briefs, they would refer to the other party

as appellee

Ordinary appeals (Rule 40-41)

60

Period to appeal?
o 15 days for notice of appeal, from receipt of notice of the
judgment
o Receipt by whom?

The party or the counsel

o If there was notice sent to both the party and the counsel,
and the notice to counsel arrived earlier, what is the
reckoning point?

The notice to counsel, because notice to counsel is

notice to the party.

If you have multiple counsels, and the court clerk sent a

copy to all such, what is the reckoning point?

Upon the receipt of the lead counsel, as opposed to

collaborating counsel.

If both are co-counsels, then receipt by either starts

the reglementary period.
o Can you extend the period of 15 days?

Not extendable

But if you file an MR and it is denied, following

Neypes (as adopted by SC 07-7), you get a fresh
period.

X set a hearing for MNT on June 20. The court

ruled on July 6, denying the MNT. X got a copy on
July 9 by registered mail.

X can still appeal. It is immaterial how long

the court took to resolve the MNT.

Fresh period of 15 days to appeal.

o X, instead of filing an MR, filed a motion for extension to
th
file the MR. He filed on the 14 day. It was denied outright.
Having the motion denied, how many days remain to file a
notice of appeal?

This is a prohibited motion, so it should be treated as

if it were not filed. The period continues to run. If it
th
was decided beyond the 15 day, then X is barred.
When is the period of appeal 30 days?
o Record on appeal (to be discussed in Rule 41)
o But you must file both notice and record. When is the
notice of appeal filed?

There is no separate time frame for the notice of

appeal. Both can be filed within the 30 day period.
o Can you extend the period of 30 days?

No

Except when there is an authorized alteration or

modification of the record
What is the period to appeal for Habeas Corpus cases?
o Within 48 hours
o What about Writ of Amparo and Writ of Habeas Data
cases?

61

Within 5 working days, Petition for Review on

Certiorari (Rule 45) but can raise both questions of
fact and law
Appeal docket fee and other lawful fees when and where do you
pay?
o Where: to the court that rendered the decision
o When: within the period to take appeal (so same as 15/30)
o Note: this above requirement is MANDATORY AND
JURISDICTIONAL.
o What if the notice was filed within 15 days, but the docket
fees were not paid within the same time (ex. 18 days)?

The dismissal is not automatic the trial court still

retains jurisdiction. It can decide whether to decide to
dismiss the appeal (failure to comply with a
mandatory and jurisdictional requirement) or to
continue with the appeal.
o What if he paid but the fees are short?

What is mandatory and jurisdictional is the payment of

the whole docket fee.

Usually the judge gives an order giving the party time

to comply with filing the entire docket fee.
Contrast the Neypes fresh period with other fresh periods in Civil
Procedure
th
o Filed motion to dismiss on the 13 day. It was denied.
How many days remain for you to file an answer the 2
days or a fresh period?

Fresh period of 5 days. (Rule 16)

th
o If it is a bill of particulars, filed on the 13 day. 2 days
remain or fresh period?

Fresh period of 5 days. (Rule 12)

If the notice of appeal to the MTC did not make mention to which
court the appeal will go to, is it fatal?
o No. The law will fill the gaps that it would be the RTC hearing
the appeal.
If the notice of appeal to the MTC was flawed enough to state that
the appeal will go straight to the Supreme Court, because he is just
raising pure questions of law?
o The court may have discretion to send it to the RTC instead.
But of course, this is up for question.

If a court must to make a ruling that the appeal is erroneous, who

makes that decision? The trial court or the erroneously selected
higher court?
o Higher court.
What if there was no copy of the notice filed to the other party?
o It is a fatal defect.
What is a record on appeal?
o Its a sequential compilation of the pleadings, orders, etc. of the
judge.
o Unlike a notice of appeal, which is just a statement of: a) when
you received the decision, b) that you paid appeal docket fees
within period, and c) you intend to appeal
When is a record of appeal required?
o 1. Special proceedings
o 2. Separate or multiple appeals if allowed by law or the rules

For separate appeals, the judge decides if it is

allowed. GENERAL rule: wait for all the claims to be
decided (in a case with multiple claims).
Can there be record on appeal be required for an appeal coming
from the MTC?
o Yes. For example, settlement of estate of decedent who
resided outside MM, and 300K or less.
Why is there a need for approval of the Record by the trial court?
o The court must determine whether the record of appeal is
complete.
o Note: the copy furnished to the other party also gives him
chance to scrutinize the completeness of the record.
When will you not indicate which documentary or testimonial
evidence you are including in the record in the reference?
o When ALL of the testimonial and documentary evidence is
included. One just has to make a statement to that effect.
When is appeal perfected?
o Upon filing notice + payment of docket fees
When is the trial courts jurisdiction lost?
o Upon the perfection of appeal by all the parties in due time OR
upon the lapse of the reglementary period given for them to
appeal lapses
How about record on appeal?

62

Not upon mere filing of notice, but upon APPROVAL of the

record on appeal
When does the court lose jurisdiction over the whole case?
o Only upon final order or decision of the case
o Because the record on appeal is only about a particular subject
matter in the trial
If you go from the MTC to the RTC, what is the process?
o Take note that the RTC is an appellate court here.
o Parties file a memorandum to the RTC. The RTC will not
reexamine the evidence and witnesses.
o Period for filing of briefs?

15 days, appellants memorandum (from notification

of RTC clerk of receipt of complete record/record on
appeal)

15 days, appellees memorandum (from receipt of

appellants memorandum)
In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
o Because its only been decided on once, and will be reviewed
for the first time.
o What is the procedure in the CA?

Filing of appellants and appellees brief.

The
procedure is found in Rule 44, not 41.
o Period for filing of briefs?

45 days, appellants brief (from receipt of notice of the

clerk that all evidence have been attached to record)

45 days, appellees brief (from receipt of appellants

brief)

20 days, for reply (from receipt of appellees brief)

Coming from a loss in the RTC (exercising original jurisdiction),
what are the available remedies?
o 1. Ordinary appeal
o 2. Petition for review on certiorari (Rule 45)

For pure questions of law

o 3. Record on appeal + Notice of appeal
Differentiate:
o Petition for certiorari (Rule 65) errors of jurisdiction
o Petition for review (Rule 42 and 43) second level appeal

Petition for review on certiorari (Rule 45) pure questions of

law
When can you NOT go straight to the SC despite the appeal being
of pure questions of law?
o If it is coming from the MTC, it has to go to the RTC first, then
CA, then SC. Cannot go straight to the SC.
o N.B. If the RTC is exercising appellate J (came from the
MTC), you cannot go straight to the SC by Rule 45. If original,
you can go straight to the SC by Rule 45.
A case was filed in the MTC, but it was dismissed for lack of
jurisdiction. There was notice of appeal filed, and it was held that
the RTC had jurisdiction, which heard the case. Is the RTC
performing original or appellate jurisdiction?
o Either argument seems defensible.
o As a practitioner, what would be more protective of your
client, Rule 41 or 42?

Rule 41 seems precarious. Play safe, go for Rule 42.

Although using Rule 42 would be more burdensome,

since you have to come up with your entire
assignment of errors within 15 days (rather than just
filing the notice).

Petitions for review (Rules 42-43)

HLURB Office of the President CA

NLRC CA, but under Rule 65, not 43
DARAB CA
CTA CTA en banc SC
COMELEC, COA SC (Rule 65)
CSC CA (Rule 43)
OMB CA (Rule 43) for admin cases
OMB SC (Rule 65) for non-admin cases
DOJ Prosecutors DOJ Secretary (petition for review) CA
(Rule 65, based on GADALEJ)

N.B. this is only for civil procedure. The rule for

criminal procedure differs (involves Office of the
President)
If the issues you are going to raise are questions of fact (ex.
whether there was cultivation of the land, to the DAR), where
should he bring that problem?
o To the CA (of course, exhaust admin remedies first)
If the question you are going to raise is purely legal, where do you
go?
o Still to the CA
o Sec. 3 (whether the appeal involves questions of fact, law, or
mixed questions of fact and law)
Why is Rule 43 still called petition for review even if the QJ-A is
exercising original jurisdiction?
o Because the QJ-A is presumed to have the proper expertise,
beyond what the courts possess. The presumption is definitely
against the one appealing.
o This is why the CA does not automatically provide due course.
What are the periods?
o Same for Rule 42 and 43 15 days
o Can you ask for an extension?

Yes, you can ask for one during the reglementary

period.

Upon motion and payment of docket fees

o Can you ask for a second extension?

General rule is that no further extensions are allowed,

except for the most compelling reasons.
What are the requirements of a Rule 42?
o 1. It must be verified
o
o
o
o
o
o
o
o
o

What are the two kinds of petition for review?

o Rule 42
o Rule 43 (quasi judicial agencies)
o What about petition for review of the decisions of the
Prosecutor?

It is technically not a petition for review because it is

for criminal procedure, and is in the executive branch
When does Rule 42 apply?
o There is denial in the MTC, and then denial in the RTC, and
then it goes up to the CA through Petition for Review.
When does Rule 43 apply?
o Body with original jurisdiction is a quasi-judicial agency
o Is the enumeration in Rule 43 of QJAs exclusive?

No.
Particular rules:

63

o
o

2. Attach a copy of the decision or a duplicate original

3. Affidavit of material dates

Date of receipt of decision, date of filing of MR, date

of denial of MR
o 4. Contents of petition:

Parties

Issues, grounds relied upon, errors

Explanation if service is other than personal

o 5. Furnish RTC and other copy a copy of the petition
o 6. Pay docket fees to CA
o What are some causes that will dismiss the petition?

1. The jurat does not comply with the requirements of

the notarial law

2. Failure to attach registry receipt

What are the requirements of a Rule 43?
o SAME, but you attach all certified true copies
o Why?

Because it came from a QJA, the court cannot verify if

the issued resolutions, etc. are genuine
Is a Certification of Non-Forum Shopping required?
o Yes, for both Rules 42 and 43.
What actions can be taken by the CA?
o 1. Require respondent to file comment within 10 days of notice

Not motion to dismiss

o 2. Dismiss petition outright if:

A) patently without merit

B) manifestly filed for delay

C) too unsubstantial to require consideration

What are the requirements of the comment to be filed by the
adverse party?
o 1. 7 copies
o 2. Accompanied by relevant certified true copies of material
portions of record
o 3. Contents:

A) whether or not he accepts statement of matters

B) point out insufficiencies and inconsistencies in

statement of matters

C) reasons why petition must not be given due course

o 4. Copy given to petitioner

64

What is due course?

o That which is given when the CA finds prima facie that the
lower court has committed an error of fact or law that will
warrant reversal or modification of decision
o You have to wait for a notice whether the CA is giving due
course to the petition.
o When does the CA decide w/n to give due course?

After submission of the comment or expiration of date

to file it.
Does the appeal stay the implementation or execution of the
judgment of lower courts in a Rule 42 petition?
o Yes.
o Exception: summary proceedings in MTC

Ex. Ejectment from MTC. The judgment in this

ejectment case is immediately executory.

But it can be appealed to the RTC. However, even

pending appeal, it is still executory.

BUT it can be stayed by posting supersedeas bond

and making deposit of monthly rentals and fair
compensation for usage.
Does the appeal stay the implementation or execution of the
judgment of QJAs in a Rule 43 petition?
o QJ-As decisions is NOT stayed, as a general rule.
o Although each law creating the administrative agency will
provide a specific rule as to whether its decision will be stayed
by appeal to the CA. BUT remember the general rule. It will
not be stayed.
o Why is it that the general rule under Rule 42, is that the
judgment of the RTC will be stayed pending resolution,
whereas in Rule 43, it will not be stayed?

Because there is presumption of correctness on the

matter of expertise of the QJ-A.
When is there elevation of record from the RTC?
o Only when CA deems necessary
o May order clerk of RTC to elevate records 15 days from notice
When is there perfection of appeal?
o Upon timely filing of petition for review + payment of docket
and other lawful fees
o When does the RTC lose jurisdiction over the case?


Perfection of appeals + expiration of time for others
When can the RTC issue orders under its residual
powers?

Before giving due course by CA

o Residual powers:

1. Protection and preservation of rights of parties on

matter not subject of appeal

2. Approve compromises

3. Permit appeals of indigent litigants

4. Order execution of judgment pending appeal

5. Approve withdrawal of appeal

o Why are there no residual powers in Rule 43?

Because we are dealing with QJ-As, not regular

courts.
After giving due course, what may the CA require?
o 1. Set case for oral argument
o 2. Or require parties to submit memoranda within 15 days
When is the case deemed submitted for decision?
o Upon filing last memorandum or pleading

o
o

Petition for Review on Certiorari (Rule 45)

The only way to go up to the SC is through Petition for Review on

Certiorari.
o EXCEPTION: what if in a criminal case, the judgment of
the SB, RTC, or CA is life imprisonment or reclusion
perpetua?

Go to the SC, but NOT by appeal by certiorari but by

notice of appeal.
o There are two situations where the SC can entertain
questions of facts, apart from life/RP decisions. What are
these?

Writ of amparo (2007)

Writ of habeas data (2008)

(Any aggrieved party in a lower court decision re:

WOA or WOHD may go straight to the SC, even if
there are questions of fact.)
What does Rule 45 cover?
o Only appeals involving pure questions of law

65

Because the SC does not try facts, nor calibrate evidence

Question of law:

If the doubt or the difference pertains to what law

applies to a given set of facts.
o Question of fact:

If the doubt pertains to the truth or falsity of an alleged

fact
o What if the issue raised in appeal is whether the contract
between parties is a contract of sale or contract of
equitable mortgage what is the nature of the question?

Question of fact and law.

What are the exceptions to the rule that the SC cannot review
findings of fact of the lower court?
o 1. Conclusion based on speculation, surmises, conjectures
o 2. Inference is manifestly absurd, mistaken, impossible
o 3. Grave abuse in apprehension of facts
o 4. Decision based on misapprehension of facts
o 5. Contradicting findings of fact
o 6. Lower court went beyond issues raised and against what
was stipulated by the parties
Whose decisions can you appeal to the SC under Rule 45?
o 1. CA

EITHER original or appellate (from RTC) jurisdiction,

as long as questions are purely of law

Examples of original J: certiorari, prohibition, etc.

o 2. CTA

Under RA 9282, it must be a decision of the CTA en

banc
o 3. RTC

ONLY those decided under its original jurisdiction.

Because for decisions under its appellate jurisdiction,

you have to go to the CA. (Rule 42), EVEN IF it is
only pure questions of law.
o 4. Sandiganbayan

It goes automatically to the SC, because it is a coequal court with the CA. So the CA cannot review its
decisions
Take note of this amendment: AM 07-7-12-SC:

o
o
o

The petitioner can now apply for provisional remedies (like

preliminary injunction, TRO) along with the petition for review
by certiorari
o May seek these same remedies through verified motion in the
same action or proceeding anytime during its pendency
o N.B. can include attachment, but this would be rare in the SC
level. Support pendente lite is fairly common. Replevin is also
fairly common.
Petition for Review on certiorari what is the period?
o 15 days.

N.B. count from receipt of final order or judgment, or

denial of the MR (auto fresh period)
o Can there be extension?

ONLY ONE extension for 30 days, for good reason

o I asked only for an initial extension of 15 days. But I
realized I needed more time. Can I ask for the last 15?

NOPE. You only get one extension.

o What are the requirements for motion for extension?

1. Pay docket and filing fees.

N.B. The docket and filing fees must be paid

at the time you ask for the extension; and
NOT during the extended period.

2. There must be a justifiable reason.

3. Serve a copy of the motion for extension of time to

the adverse party
You raise a question of law to the SC. Is the review on certiorari a
matter of right?
o No. It is still subject to judicial discretion.
So what questions of law do you need to raise to raise the
likelihood that your appeal will be given due course?
o It must not just be a question of law; it must be a substantial
question of law.
o What are the grounds to not give due course?

1) patently without merit

2) filed manifestly for delay

3) too unsubstantial to require further consideration

N.B. Same as in the CA

What are the contents of the petition?
o 1. Full name of the parties, without impleading the lower court

66

2. Material dates showing timeliness

3. Concise statement of matters involved
4. Duplicate or CTC of judgment or final order or resolution
appealed from
o 5. Sworn certification against forum shopping

This is an odd rule, since usually it is only required for

initiatory pleadings
COMPARE with Rule 65.
o Who is the private respondent in a petition for certiorari
(Rule 65)?

The other party, who benefited from the adverse

decision.
o Who is the public respondent in Rule 65?

The judge or public officer.

Not required to answer the petition.

o What about Rule 45?

The lower court is NOT impleaded. The case title

also doesnt change.

So instead of Tuazon v. CA, it is still Tuazon v. Pua

Why is there a need to append to the appeal material portions of
the record?
o Because the matter of elevating the records comes at a later
time, from the CA clerk to the SC. So at the time of the filing of
petition, you need to pinpoint the errors ahead of time.
What are the factors that must be considered whether the petition
should be given due course?
o N.B. These are not controlling over the courts ultimate
discretion
o 1. The question of substance has not yet been passed upon by
the SC [novel issue]; or decided not according to law [power of
correction]
o 2. Departed from usual accepted course of judicial
proceedings, or sanctioned such an act by a lower court
[power of supervision]

E.g. In a lower court hearing, the judge arbitrarily

disallowed a party from presenting evidence.

This is an example of #2.

How do you differentiate it from GADALEJ under

Rule 65?

Its difficult to do so, because the wording of

the second ground has all the trimmings of
Rule 65 Petition on Certiorari.
The CA and SC have concurrent jurisdiction over original petitions
for certiorari, mandamus, prohibition, etc. What negative
considerations must you have in deciding where to file?
o For CA know that this is not final. There is still possibility of
petition for review by certiorari to SC.
o For SC Sol-Gen can launch the issue of judicial hierarchy
There are possible sanctions in case of non-filing or unauthorized filing,
or non-compliance with conditions, when the SC asks for comment.
Sec 8 due course after exchange of pleadings
o It is a good sign and there is a receipt of resolution that the SC
has given due course to the petition

Rules 44-56 CA

How is jurisdiction acquired over persons for original cases filed in

CA?
o Service of order/resolution or voluntary submission to the
courts jurisdiction
o What does service of order or resolution mean?

Akin to Rule 13 service of judgment

o What if there was an effort to serve and it was not
received?
Is the court deemed to have acquired
jurisdiction?

No. There must be proper service of the resolution or

order. Not like summons, but the same as Rule 13.
Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings
or arguments for certiorari, annulment of judgment,
mandamus, prohibition, quo warranto.
o N.B. Annulment of judgment is an original action seeking
annulment of judgment of an RTC decision.

Can you seek an annulment of judgment of an

MTC decision?

Yes. You file annulment in the RTC.

Can you seek an annulment of judgment of a CA

decision?

67

No. Fall back to the usual rule that you can

only go up to the SC through Rule 45.
o Can the justices hear the case?

Yes. Alternatively, it can ask the RTC to receive

evidence.
Preliminary conference is the equivalent of pre-trial in the CA. Whether
it is an original or appealed case, the CA can set it for preliminary
conference.
o What is the effect if the appellant is absent here?

The appeal will be dismissed. This is provided in

Rule 50. This is almost the same rule as absence of
the plaintiff in a regular pre-trial.
Rule 50 enumerates grounds for dismissal of appeals:
o [Failure to properly appeal]
o 1. Order or judgment is not appealable
o 2. Failure to file notice of or record of appeal within proper
period
o 3. Failure of appellant to pay docket and lawful fees
o [Record of appeal-related]
o 1. Failure of record on appeal to show on its face that the
appeal was taken within the proper period
o 2. Unauthorized alterations, omissions, additions to the
approved record on appeal
o 3. Failure to make necessary corrections or completion of
record, according to order by court
o [Brief-related]
o 1. Failure to serve proper number of copies of brief or
memorandum

When is a brief filed, and when is a memorandum

filed?

If you lose in an SCA in the lower court, you

file a memorandum on appeal.

Otherwise, you file a brief.

o 2. Absence of specific assignment of errors in appellants brief;
OR absence of page references to the record
o [Failure to comply]
o 1. Failure of appellant to appear in preliminary conference;
o 2. Failure to comply with orders, circulars, directives of court
without justifiable cause

If any one of these circumstances appear, will the dismissal be

mandatory?
o No. It may be dismissed. There is court discretion.
o Except: if order of judgment cannot be appealed
If your appeal in disallowed, what is the remedy?
o Petition for certiorari, or petition for mandamus
Two errors noted by Sec. 2 and the appeal SHALL be
dismissed:
o 1. Pure questions of law sent to CA, instead of SC
o 2. Notice of appeal instead of petition for review from RTC to
CA
When is withdrawing appeal a matter of right?
o Before filing of appellees brief matter of right
o After: discretion of court
o Motion for withdrawal.
What is the legal effect of withdrawal?
o Lower court decision becomes final and executory.
Compromise agreement when can it be done?
o Anytime. Even when the judgment has become final and
executory.
Can the parties stipulate on the facts?
o Yes, if it is an original action, or there is a grant of new trial on
the ground for newly discovered evidence
o (Note: newly discovered evidence is the only ground for the
CA; FAME is not included)
Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases

But if the CA feels that there is a need for the parties

to ventilate their arguments through oral discussion,
then it can do it in its discretion.
o 2. Motions are NOT heard in the CA

While for trial courts, motions will be heard, except

those that will not prejudice the rights of the other
party.

BUT in the Court of Appeals, motions in the CA need

not be heard (same with the SC)
o 3. Comply with minimum requirements of Rule 44 and 50.

What if you dont have an assignment of errors?

Your appeal will be dismissed.

What if you dont comply with court circulars?

Dismissed.
Rule 51 provision on judgment.
o For trial courts, it is Rule 36.
Can you file an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds except that the period to resolve in the
CA (90 days) is longer than the TC (30 days)
Can you file a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?

TC reglementary period within receipt of adverse

decision

CA from the time appeal is perfected and as long as

the CA has jurisdiction

Annulment of judgment in the CA

68

When does annulment of judgment vest as a remedy?

o For final judgments of the RTC where ordinary remedies of
MNT, appeal, petition for relief, or other remedies are not
available
o What if its a decision of the MTC?

File with the RTC and follow these same rules, and
treat it as an ordinary civil action
What are the grounds?
o 1. Extrinsic fraud

But not if it could have been availed of in an MNT or

petition for relief
o 2. Lack of jurisdiction
When is the period for filing?
o If based on extrinsic fraud, within 4 years from discovery
o If based on lack of jurisdiction, before barred by laches or
estoppel
Must it be verified?

o Yes
What else is required?
o 1. Attach CTC of the judgment sought to be annulled
o 2. CNFS
What is the court action available?
o Either dismiss it or issue summons to respondent
What is the effect of a favorable judgment on the action?
o The judgment becomes null and void, without prejudice to
refilling
o Or if the ground is extrinsic fraud, the court can order a trial de
novo, as if an MNT was granted
o The court can grant damages

Rule 56 Supreme Court

Remember Sec. 1 and 3. Memorize the cases that will be originally filed
in the SC.
What are the cases that can be originally filed in the SC?
o 1. Certiorari, prohibition, mandamus
o 2. Quo warranto
o 3. Disciplinary actions against members of the Bar/bench

But if you file a case against a member of the Bench,

it will be referred to the Court Administrator. If against
a member of the Bar, it will be referred to the IBP.
o 4. Against ambassadors, consuls, other public ministers, etc.
o 5. Found in the Constitution: constitutionality of law, treaty,
ordinance, tax imposition, EO, etc.
What do you need to follow for original cases?
o Rule 46 original cases
o PLUS:

Rule 48 (preliminary conference),

Rule 49 (oral argument),

Rule 51 (judgment),

Rule 52 (MR)
o Is there a MNT?

No.
For appealed cases to the Supreme court, what is the mode?
o Rule 45 the only way to go up to the Supreme Court
o PLUS:

69

Rule 48 (preliminary conference),

Rule 51 (judgment),

Rule 52 (MR)
o Is there oral argument?

No.
Grounds for dismissal of appeals in the Supreme Court?
o
[Failure to properly appeal]
o 1. Failure to appeal within proper period

Ex. 15 days in Rule 45

o 2. Failure to pay docket and lawful fees or make deposit for
costs

You have to pay directly to the SC because you are

appealing directly to the SC

The usual rule that you pay the docket and lawful fees
in the lower court, and it will merely transmit to the
higher court does not apply here
o 3. Error in the choice or mode of appeal
o 4. Fact that case is not appealable to SC

Always think of rule 45, general rule

Note: Rule 65 is not an appeal, but an

original action

There is no other. Ex. Notice of appeal is improper,

except one situation: Reclusion Perpetua or Life
Imprisonment (to be discussed later)
o [Patently without merit]
o 1. Lack of merit in the petition

An appeal patently without merit

o [Failure to comply]
o 1. Failure to comply with requirements regarding proof of
service and contents of and the documents which should
accompany the petition

Not just to adverse party, but also the lower court who
rendered the judgment
o 2. Failure to comply with circular, directive, or order of SC
without just cause

Ex. Indicating telephone number, e-mail address

stuff in addition to PTR, etc.
N.B. For all grounds, take note it says MAY BE dismissed, so it is not
automatic.

What if there is appeal by Rule 45 to the SC from the RTC

submitting issues of fact?
o May be referred to CA for decisions or appropriate action.
Determination of SC whether or not there are issues of fact is
final
o What is the situation contemplated here?

On its face, there are only issues of law. But after a

while, the SC realized there are mixed questions of
fact and law.
o Options of SC:

1) dismiss the case improper mode

Consequence: appellant had lost his time to

properly appeal to the CA (15 days only)

2) remand to the CA

Because otherwise, there would be no more

time for you to go to the CA
What is the procedure if opinion of the SC is equally divided
(stalemate situation)?
o This applies in an en banc case. This rule does not apply to a
division in the SC.
o 1. Deliberate again.
o 2. If still no majority:

Original action dismissed

Appealed cases decision affirmed

Incidental matters petition of motion denied

4.

5.

6.

7.
8.

i. Nature of action
ii. Summary of proceedings
iii. Appealed rulings and orders, and nature of judgment
b. Easiest way to do it: chronological sequence
c. Dont bother mentioning the irrelevant motions like motion to
extend, unless there is a timing issue, etc.
Statement of Facts
a. Clear and concise statement in narrative form of the facts
b. E.g. The following facts are not disputed by both parties:
Statement of issue
a. Just a simple statement of what the court needs to resolve:
e.g. W/N the marriage between plaintiff and defendant should
be declared void on the ground of psychological incapacity.
Arguments
a. Must be with reference to the record
b. And cite authorities
Relief
Copy of the final order or judgment being appealed
a. In cases not brought up through record on appeal, appellants
brief must contain this as an appendix,

[Appellees brief]
1.
2.
3.

Contents of briefs

Subject index
Statement of facts
a. Or counter-statement
Arguments

[Appellants brief]
PROVISIONAL REMEDIES
1.

2.

3.

Subject index
a. Like a table of contents
b. For posteritys sake, put this even if its just short
Assignment of errors
a. How the lower court erred
b. Key word: specific errors. Not allowed to just make general
statements
Statement of the Case
a. Clear and concise statement of:

Rule 57 attachment

70

When should jurisdiction over the defendant vest in attachment?

(Manguila, citing Davao Light and Power)
o Distinguish between issuance and implementation of the writ of
attachment to determine when jurisdiction is needed over the
defendant.

Remember you could file an attachment will the initiatory

pleading and apply for it ex parte. You can also apply for it
upon motion.
o To answer the question: there are three stages for attachment

1. Court issues order granting application

2. Writ of attachment issues pursuant to the order

3. Implementation of the writ

FOR THE FIRST TWO STAGES, jurisdiction over the

defendant is not yet required because it is an ex parte
application. However, when you are implementing
the writ, you need jurisdiction over the defendant.
o Thus, how can the writ be implemented?

You have to get jurisdiction over the defendant first.

o Summons should be served prior to, or contemporaneous with
the order (for implementation). Contemporaneous is better.
o Summons belatedly served does not cure fatal defect in the
enforcement of the writ.

Either personal or substituted service.

o What are the exceptions to prior or contemporaneous
service of summons?

1. Summons cannot be served personally or by

substituted service, despite diligent efforts

2. Defendant is a resident of the RP temporarily

absent therefrom

3. Defendant is a nonresident of the RP

4. Action is in rem or quasi in rem

Grounds for attachment? MEMORIZE
o 1. Any claim for money or damages except moral/exemplary, if
the claim arises from an obligation (law, contract, quasicontract, delict, quasi-delict) AND defendant is about to depart
with intent to defraud

What if claim is recovery for sum of money only?

No. You could only apply for attachment if

the defendant is about to depart with intent
to defraud.
o 2. Embezzlement/abuse of trust by one with a fiduciary
relationship

For all intents and purposes, this is estafa

71

3. Action to recover property and there is willful fraudulent

concealment of the property
o 4. Action against a person who removes/conceals property

Unlike (3), this is directed against a person

o 5. Fraud in contracting the obligation or fraud in the
performance thereof most asked ground

First: If not for the fraud, the other party would not
have entered into the transaction

Second: In the manner of the performance, it was

fraudulent
o 6. Defendant is a non-resident

Fraud not required here, because he can leave at any

time
What are the contents of affidavit for attachment?
o 1. Cause of action
o 2. Statement that any of the grounds applies
o 3. There is no sufficient security
o 4. Amount due to applicant or value of the property he seeks to
recover is as much as the sum for which the order is granted,
above all legal counterclaims
How do you discharge an attachment?
o 1. Most common: post a counter-bond

When do you post a counter-bond?

Can be posted after enforcement of the writ.

You cannot anticipate its enforcement.

o 2. Improper, irregular, or excessive attachment

What is improper?

Grounds are not present in the case

What is irregular?

Wrong process.

When can this be raised?

ANYTIME, even before enforcement.

o What if the writ of attachment was issued for a ground that
it is also the cause of action of the plaintiff?

The only way to dissolve it is to post a counter bond.

Can you recover damages?
o Yes, Section 20 if there is improper, irregular, or excessive
attachment.

N.B. Section 20 applies to all provisional remedies

except support pendent lite.
o Where can you apply for it?

In the trial court; during or after trial.

You can apply for it within reglementary period, or

when appeal has been perfected. AS LONG AS it is
pending, and not yet final and executory.
o If you post a counter bond, does this waive any further
claim for damages arising from wrongful attachment?

No.
What kind of damages can be recovered?
o Yu v. Ngo: Evidence required for wrongful attachment. When
there is wrongful attachment, defendant may recover actual
damages, without need of proof of bad faith. When there is
malicious attachment, defendant may recover actual, moral,
and exemplary damages.
o What is the scope of the award of actual damages from
attachment?

1. With best evidence obtainable, fact of loss or injury

2. Amount thereof
o Can actual damages cover unrealized profits?

Yes.
But the amount must be supported by
independent evidence of mean income of the
business undertaken.
o How do you prove moral/exemplary damages?

Prove that the wrongful attachment was with malice or

bad faith.
How about attorneys fees?
o Generally, attorneys fees cannot be awarded when moral or
exemplary damages are not granted.
o Exception: when a party incurs expenses to lift wrongfully
issued writ of attachment.
What is the procedure for terceria (third party claim)?
o The applicant has posted a bond when he applied for a writ of
attachment (to cover whatever damages defendant will suffer
due to attachment)
o By reason of a third party claim (with no bond needed from the
third party claimant just an affidavit of his title), the process
will be suspended.

72

Now it is the burden of the applicant to post another bond in

the value of the property, to cover the third partys damages.
o How long can a claim for damages for taking/keeping of
property be enforced against the bond?

Within 120 days from date of filing of the bond

What is the difference in the third party claim in execution of
judgment (Rule 39) and Preliminary Attachment (57) or other
provisional remedies?
o The right of the third party claimant in attachment could be
vindicated in the same or in a separate action. In execution, it
could only be done in a separate action.
o Why?

Because in execution, the judgment is already final.

In Rural Bank, a motion was filed to release property from attachment,
giving affidavit of title to the sheriff. The court said that the filing of the
motion can be deemed the same as a third party claim (because 3P
claim must be filed with sheriff). It can also be treated as a form of
intervention.
What takes precedence, levy on attachment or prior unregistered
sale?
o Levy on attachment duly registered takes preference over a
prior unregistered sale. The preference created by attachment
is not defeated by the subsequent registration (to the
attachment) of a prior sale, because attachment is a
proceeding in rem.
What is the procedure when there is an alleged irregular and
improper issuance of attachment?
o When the attachment is challenged for being illegally or
improperly issued, there must be a hearing. The hearing
embraces the right to present evidence, and also the
establishment of rights of other parties.
o Mere filing of opposition is not equivalent to a hearing.
Absence of a hearing does not discharge attachment.
o N.B. The discharge of an attachment, whether through
counterbond or irregular, improper, or excessive can only be
done through hearing.
o Security case: Two ways to secure discharge of attachment.
1) Party whose property or his representative has been
attached can post a security. 2) Said party can show that the

attachment has been improperly or irregularly issued. Mere

posting of counter bond does not discharge the attachment.
There should be a specific resolution for the discharge.
What if the court renders a judgment and there is a previous
attachment, duly registered, what will the subject of execution?
o 1. If there is money duly garnished or obtained through sale of
perishable goods, the money will be applied.

What does this refer to?

If the property attached is perishable or the

sale of the property will best subserve the
parties interests, as determined by the court,
the property can be sold in public auction

The proceeds will be deposited in court and

take the place of the property
o 2. If not sufficient, sell real or personal property that has been
attached. These have to be sold on public sale. Procedure is
consistent with Rule 39.
o 3. What if the properties attached are not sufficient to
satisfy the judgment?

Court proceeds with ordinary execution to cover the

balance.
What if the defendant filed a counterbond?
o Recovery can be sought against it; it takes the place of the
property sought to be attached, but released by the CB

Rule 58 - Injunction

N.B. Rule 58 has been amended on Dec 2007. It was amended

alongside Rules 41 and 65.
What was affected by the amendment?
o Rule 58, Sec. 5. [Discussed later on]
Bacolod City v. Labayo: Can there be a principal action for
injunction?
o Yes. There can be a principal action for injunction. There is a
distinction made in this case between principal action and
preliminary injunction:
o Principal action seeks a judgment for a final injunction which
is separate and distinct from a preliminary injunction
o Preliminary injunction object is just to preserve status quo

73

What are the requisites for a PI?

o 1. A clear and unmistakable right
o 2. The right has been violated, and invasion has been material
and substantial

Borromeo: Where the parties stipulated in their credit

agreement, PN, contract, etc., that the mortgagee has
the right to foreclose in case of default, this defeats
any future claim for the issuance of a PI.
o 3. There is an urgent and permanent necessity for the writ to
prevent serious damage
How is a WPI granted?
o 1. Verified application showing facts entitling applicant to the
relief demanded
o 2. Bond (to cover for damages to other party in case the
WPI/TRO is wrongfully issued)
o 3. If the application for WPI or TRO is alongside a complaint or
initiatory pleading,:

A. Notice given to party to be enjoined

Raffle case only after such notice, and in the

presence of that person

B.
Notice
preceded
or
contemporaneously
accompanied by summons

What are the exceptions to the

requirement that summons are required
to
be
served
prior
or
contemporaneously?
o 1. Cannot be served personally or
through substituted service despite
diligent efforts
o 2. Defendant is a resident
temporarily absent from the RP
o 3. Defendant is a nonresident of the
RP
o 4. Action is in rem or quasi in rem

C. Notice with copy of the initiatory pleading + bond

o 4. Hold a summary hearing conducted within 24 hours after the
sheriffs return of service and the records are received by the
branch selected to hear it
Types of PI?

o
o

1. Preliminary injunction to prohibit or stop (status quo ante)

2. Preliminary mandatory injunction an injunction which
requires you to do something or perform something that you do
not ordinarily want to perform, in order to maintain the status
quo
Estares: A writ of PI based only on initial and incomplete evidence
is this allowed? What kind of evidence is required?
o You dont need to present your entire case. Only a sampling of
evidence is needed, to give the court an idea to justify why you
need to obtain the PI.
Can a judge issue a PI without a notice and hearing?
o No. Its an absolute no. (Dela Paz)
Can the court issue a TRO without notice and hearing?
o Today, yes. (This is the amendment)
o 1. 20 day TRO ex parte if great and irreparable injury
o 2. 72-hour TRO ex parte if the matter is of extreme urgency
and the applicant will suffer grave injustice and irreparable
injury
o N.B. Ex parte means no notice and hearing
What are the differences between the 20 day and the 72 hour
TROs?
o 1. Only an executive judge of a multi-sala court, or the
presiding judge of a single-sala court, there can issue a 72
hour TRO
o 2. Count the 20 days from service to the party or person to be
enjoined; count the 72 hours from issuance of the TRO

N.B. this is because the 72 hour TRO can precede

summons, which must still be complied with and
served after
o 3. What is heard/determined within the period

Within the 20 day period, the court must order the

enjoined person or party to show cause at a specified
time and place which the PI should not be granted
(and the court decides);

Can a 20 day TRO be extended?

o No, it automatically expires w/ or
w/o a period.
o Unless you obtain a preliminary
injunction

74

Within the 72 hour period, the court determines

whether extension to a 20 day TRO must be granted
in a summary hearing
How long is a TRO that was issued by a higher court?
o CA: 60 days from service on the party enjoined
o SC: indefinite
Can a preliminary injunction be issued without notice and
hearing??
o No. NEVER. There must always be notice and hearing.
o The hearing is always summary in nature whether TRO or
preliminary injunction.
Can an injunction have an effect if enforced outside the judicial
district? (ex. enforced in Makati and Mandaluyong, and the judge
is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
What is the purpose of the bond?
o To protect the person against whom the writ of injunction has
been issued. Garcia: Posting of a bond is a condition sine qua
non to issue a writ of PI.
o The posting of a bond in connection with PI does not operate
to relieve the party obtaining the injunction from paying
damages the bond only gives additional protection in favor of
the defendant
o So Rule 57, Sec 20 also applies here. Read above, on the
rule re: damages.

Aquino: Dissolution of the injunction, even if it was

obtained in good faith, amounts to a determination
that it was wrongfully obtained. A right of action
against the bond accrues.
A court issued a writ of PI. What is the duty of the court in relation
to the main case?
o The main case has to be decided within 6 months or else the
judge can be disciplined by the court. This is a new provision.
SC Circular (2007): On issuance of PI on extrajudicial and judicial
foreclosure cases.
o 1. Today it is not enough to say that you have paid the amount.
Mere allegation of payment without showing actual payment is
not basis for issuance of PI.

2. Mere claim/allegation that the interest is unconscionable or

excessive does not justify issuance of the PI unless the legal
interest is paid.
What is a Status quo order?
o It is not a preliminary injunction. Minimum requirements of
TRO/injunction do not apply to status quo orders.
o It can be applied in TC or appellate court. A status quo order
can be issued without a bond, or without a fixed term.
o BUT in the SC Circular (2007): requirements for TRO must
apply to status quo orders if issued for judicial or extrajudicial
foreclosure of mortgage.
Can the court require you to post a bond for a TRO?
o Yes.
If you file a petition for certiorari against the PI, does it suspend
the main case?
o No, it does not. This is an amendment introduced in 2007.
o Can you extend the period by which you can file a petition
for certiorari (60 days)?

No more.

Before the 2007 amendment, you can ask for a 15

day extension. This was removed already.
How can you deny a writ of PI or TRO?
o Prove insufficiency of the application for injunction.
o This is just a ground to deny but not to dissolve; so once the
WPI or TRO is granted, insufficiency is not a ground anymore.
How can you dissolve a writ of PI or TRO?
o 1. File affidavits showing there is no reason for the PI
o 2. File a counterbond + an affidavit showing that he will suffer
more damage than applicant will

Is a mere counterbond enough?

No

Is the mere statement enough?

No
o N.B. Note the difference with preliminary attachment, where a
counterbond alone can dissolve the writ. In preliminary
injunction, it has to be statement + counterbond.
What is the prohibition under RA 8975?
o There can be no PI or TRO against acquisitions, bidding or
awarding of contracts, commencement or execution of such,

o
o

termination or rescission of the same, or other similar lawful

activities in relation to government projects.
Any TRO or PI issued is null and void.
What is the exception?

Except when issued by the SC.

Rule 59 Receivership

75

The only provisional remedy that can be applied for post-judgment and
even if it is already final and executory.
Grounds:
o 1. There is interest in property which is in danger of being lost
o 2. In a foreclosure action, and the property is in danger of
being wasted/dissipated, and that its value will not be sufficient
to cover the value of the debt

Or there is a stipulation for such in the mortgage

contract
o 3. Preserve property during pendency of appeal, to dispose of
it according to judgment, to aid execution if execution is
returned unsatisfied, or to carry judgment into effect
o 4. Other reasons the court finds convenient and feasible
What are the requirements?
o 1. The applicant files a bond
o 2. The receiver must also file a bond and take oath
o N.B. TWO bonds (applicant and receiver himself)
What are the ways to dissolve the bond?
o 1. Show no cause
o 2. Post a counter bond
What are the general powers of a receiver that need no court
approval?
o 1. Take and keep possession of property in controversy

Receive rents
o 2. Collect debts due on the property, estate, person, fund, etc.

Compound for and compromise these

Make transfers

Pay outstanding debts

o 3. Divide money and other property remaining among persons
legally entitled
o 4. Perform acts authorized by the court

What powers of the receiver need court approval?

o 1. Bring and defend actions in his name

N.B. need court approval for either

o 2. Invest the funds must have written consent of the parties
to the action
When is receivership terminated?
o When there is no more need for a receiver.

1. Motu propio determined by the court or

2. Upon motion of either party

o What happens?

After due notice to all interested parties and hearing,

settle accounts of receiver, and direct delivery of
property.

The receiver receives reasonable compensation.

Rule 60 Replevin

What are the contents of the affidavit?

o Memorize this for the bar
o 1. The applicant is the owner of the thing
o 2. Property is wrongfully detained
o 3. Property is not lawfully taken
o 4. The fair market value of the property
Can property held as evidence in criminal case be subject to a writ
of replevin?
o Superlines: NO. In the affidavit of the affiant, the property is
not subject of custodia legis, execution, or attachment. The
deprivation, to be validly subject to replevin, must be illegal or
unlawful.
o Property can be said to be in custodia legis, not only when it is
in official custody, but if it pursuant to a legal order in a case
Danao: Can you subject to replevin a motor vehicle in custody of
another court?
o No. It is in custodia legis.
Can goods under custody of an agency of the government (here,
ex. Bureau of Forestry) be subject to a writ of replevin?
o No. It is under lawful process.
Can one quash a writ of replevin?
o Of course, it may be quashed or dissolved

76

How do you dissolve?

1. If you want to regain immediately custody or

possession, you just simply post a counter-bond

N.B. Take note. No need to oppose the

grounds, etc. Just post a counterbond.

When can he post this counterbond?

o Anytime before the property is
delivered to applicant

What is the time period between the

sheriffs taking of the property and its
delivery to the applicant?
o 5 days. So this is the time frame to
object.

2. Attack the sufficiency of the bond

Here, you cannot effect an immediate

release
What is the value of the bond?
o This is the only provisional remedy where the
bond/counterbond is double the value of the property.
o Pinggol: A replevin bond was deemed invalid because the
officer who signed the bond is without authority to do so from
his company.
When can replevin be applied for?
o You can only apply for this at any time before an answer.
o For the other provisional remedies, you can apply anytime
while the action is pending (or for receivership, even after)
What is your remedy after an answer is filed?
o You file an attachment, but the effects are different.
o What are the differences?

1. In replevin, the property subject of the action is

taken. In attachment, properties, whether real or
personal are attached to secure the judgment

2. In replevin, when the writ is served, the sheriff

takes possession, and delivers it to the applicant
(unless a counterbond is filed within 5 days). In
attachment, personal property is taken by the sheriff
and delivered to the court; for real property, the sheriff
annotates at the dorsal portion of the title.

Note that the main action is recovery of possession of property. The

issuance of a writ of replevin is just a provisional remedy.
Once the sheriff takes the property what is his duty?
o He delivers it to the applicant for the writ of replevin.
o How long does the adverse party have to object?

Within 5 days of taking, can object to sufficiency of

the bond
Can there be a principal action for replevin as a provisional
remedy?
o No, just like everything else, it is a provisional remedy.
o BUT because of the ADR rules, you can file any provisional
remedy as a main action in aid of an arbitration clause. (!!!)
In attachment and replevin, there are rules for third party claims.
What are these?
o 1. Rule 39 Sec 16
o 2. Rule 57 Sec 14
o 3. Replevin
o Note that unlike execution, in attachment and replevin, a third
party claimant can vindicate his right in the same or a separate
action. In Rule 39, a third party claimant can only vindicate his
right in a separate action, because judgment is final and
executory.
o What is the rule on intervention (Rule 19)?

You can intervene anytime before judgment. But this

only applies to trial courts.
o What about appellate courts?

You can still intervene, but subject to the appellate

courts sound discretion.

Rule 61 Support pendente lite

When can you apply for this?

o Anytime before final judgment
What is the procedure?
o 1. Submit verified application for SPL stating grounds,
attaching affidavits, depositions, documents
o 2. Adverse party files verified comment within 5 days
o 3. Set for hearing not more than 3 days thereafter
o N.B. only provisional remedy that cannot have ex parte hearing

This is the only provisional remedy that does not require a bond. The
four others require a bond. The person applying for support obviously
needs money.
o N.B. For all these other provisional remedies, just follow Rule
57 Rule 23. The general rule is you can only recover damages
from a bond while the action is pending.
o So what is the rule if you are wrongfully compelled to give
support?

You dont recover damages.

You ask for
reimbursement.
What if there is refusal to comply with court order to give support?
o The court can order execution.
o There are only two instances where there can be writ of
execution even when there is no final judgment:

1. Support pendente lite

2. Indigent (which the court finds that you are not an

indigent and requires you to give filing fees)
Who can apply for support in criminal cases where the accused is
charged with a crime where a child is borne by the offended party?
o 1. Offended party
o 2. Parents
o 3. Grandparents
o 4. Guardian
o 5. State
What if a person believed that he is the father and he gave
support? Then, it turns out he is not the father.
o If the action is still pending, you can apply for reimbursement in
the same action.
o If there is a judgment already, you can apply for it in a separate
court proceeding.
Can you dissolve support pendente lite?
o When there is no reason to give support pendente lite.

SPECIAL CIVIL ACTIONS

Rule 62 Interpleader

77

When is interpleader proper (Requisites)?

o
o

1. Conflicting claims on the same subject matter

2. Made against a person who:

Claims no interest over it

Or an interest which is not disputed by the claimants

What is the procedure?
o 1. Action for interpleader brought to court
o 2. Court issues order requiring parties to interplead

May ask for subject matter to be delivered/paid to

court
o 3. Issue summons to parties, with complaint and order
o 4. Parties can file:

MTD (if denied, at least 5 days to file answer)

Answer
Can there be a counterclaim in an interpleader case?
o Yes.
Stuff to remember:
o In the interpleader case, the one filing the case was not
violated. There was no breach.
o The person filing the action can either have an interest which is
not in conflict with the claiming parties, or has no interest at all.
Are there filing fees for an interpleader action?
o Yes.
o However, the applicant, not being violated nor is he a Real
Party in Interest is entitled to a lien on the judgment award
What is the difference with intervention?
o In intervention, there is already a pending case. Here, you
initiate the action.

Rule 63 Declaratory relief and Similar Remedies

What are the requisites of declaratory relief?

o 1. Subject matter is a deed, will, contract, or other written
instrument, statute, EO, or regulation
o 2. The terms of the documents are doubtful and require judicial
construction
o 3. There must have been no breach of the documents in
question

Malana:
Reiterates
that
declaratory
relief
presupposes no actual breach.
An action for

declaratory relief must be dismissed if there is a

pending action for unlawful detainer.
o 4. Actual justiciable controversy
o 5. Ripe for judicial determination
o 6. Adequate relief is not available
Bottom line: purpose is for interpretation and determination of validity.
Its not about constitutionality.
o Also, there must be no breach
What if there is breach?
o There will be conversion to an ordinary civil action. This is the
only such action that can be converted.
Do you need to pay filing fees when it is converted?
o Yes, you need.
Which court has original jurisdiction?
o RTC.
o What if there is an allegation of unconstitutionality?

The RTC has no exclusive jurisdiction; you can file it

elsewhere like the SC. The RTC only has exclusive
jurisdiction if it is a pure question of declaratory relief
What are the other similar remedies covered by par. 2?
o 1. Removal of cloud
o 2. Quieting of title
o 3. Reformation of instrument

When can you reform?

There must be mutual mistake.

Can there be execution in a declaratory relief case?
o Yes, nothing prevents the filing of a counterclaim in a
declaratory relief, and there can be execution pursuant to this.
Who intervenes when there is challenge against validity of statute,
EO, or other government regulation?
o Solicitor General
o What about local government ordinances?

LGU prosecutor or attorney

Solicitor General as well, if there is challenge against

constitutionality

Rule 64 Review of judgments and Final orders of COMELEC/COA

78

What is the nature of this petition?

Rule 65 Petition for certiorari, mandamus, prohibition

This is actually a petition for certiorari. If you file under Rule

64, it will be named a Petition for Certiorari
o This has a limited application; it only covers decisions by the
COMELEC and COA.
What is the difference in period for a Rule 64 petition as compared
to Rule 65?
o The period to file a petition for certiorari under Rule 64 is 30
days, non-extendable.
o What if there was an MR/MNT and it was denied?

If there is an MR or MNT and denied, you get the

period remaining which will always be at least 5 days
(partial fresh period)
o N.B. this is unlike the 60 day period for Rule 65
o N.B. for Rule 65, you always get the full 60 days period even
after denial of MR/MNT
What must be the nature of the attachments?
o As with Rule 43, all the attachments in Rule 64 are certified
true copies, because you involve Quasi Judicial Agencies.
Must it be verified?
o Yes.
Is a CNFS needed?
o Yes.
After filing the petition and serving a copy with the adverse party
and the Commission, what is the next step?
o 1. If SC finds the petition sufficient in form and substance, it
orders respondents to file comment within 10 days from notice.

N.B. Comment: 18 copies too, with CTC of record and

supporting papers
o 2. SC may dismiss the petition outright if:

A. It is not sufficient in form or substance

B. it was filed manifestly for delay

C. Questions raised are too unsubstantial to warrant

further proceedings
Does the Rule 65 petition stay execution of judgment?
o No, unless the SC directs otherwise
When is the case deemed submitted for decision?
o Upon submission of the comment by the respondent
o Unless the SC requires submission of memoranda or requires
oral argument

79

First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule
65: you do not talk about Rule 65. Third rule of Rule 65: You have to
fight on your first night.
Real first rule of Rule 65: this is not an appeal
Elements of certiorari?
o 1. GADALEJ
o 2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?
o Yes. The same is required GADALEJ. No plain, available,
speedy ordinary remedy.
o It is the same as certiorari.
o In prohibition, you cannot prohibit an act that has already been
performed. It is already moot.
Certiorari whose decision can you question?
o Judicial or QJA
Prohibition whose decision can you question?
o Judicial, QJA, or ministerial
How does mandamus differ from prohibition?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
Can the OMB be compelled by mandamus to file an information?
o No. It is not ministerial.
If you entered into a contract with X to build a house for you, and X
received the advance of the contract price, and X did not build the
house, can you compel his performance by mandamus?
o No; it is not a ministerial function. It is a contractual obligation
specific performance is the proper remedy.
How can an OMB judgment be reviewed?
o Generally, under Rule 43.
o However, if the decision of the OMB in a criminal case is
tainted with GADALEJ, Rule 65 Certiorari can be filed with SC.
Must a petition under Rule 65 (C, P, or M) be verified?
o Yes.
What must be included too?
o 1. CNFS

2. For certiorari or prohibition, the copies of order, resolution,

or judgment (for certiorari) questioned, and all pertinent
documents
What is the period to file the petition?
o 60 days from the notice of judgment, order, or resolution
o What if an MR or MNT is denied?

Count 60 days from denial of the motion (real fresh

period rule)

N.B. this is different from Rule 64 where only the

remaining period not less than 5 days would remain
Where do you file a Rule 65 petition?
o A. For MTC, corporation, board, officer, or person:

RTC

It could be in the CA or SB, whether or not the same

is in aid of the courts appellate jurisdiction
o B. Act or omission of a QJA:

CA only
o C. Election cases involving act or omission of MTC or RTC:

COMELEC, in aid of appellate jurisdiction

[N.B. based on 2007 amendment]

Who defends the questioned judgment, order, etc?
o The private party interested in the judgment
o The public party will be nominally made a party but shall not
appear in or file an answer/comment to the petition or file a
pleading
What does the court do after filing of the petition?
o If sufficient in form and substance, issue an order requiring
respondent/s to comment on the petition within 10 days from
receipt of copy
o What is the rule if the petition is filed before the CA or SC?

Before giving due course, it can require the

respondents to file their comment to the petition and,
if it wants to, a reply from the petitioner

Can the respondent file a motion to dismiss

instead?

No.
What happens after comment is filed?
o 1. The court may hear the case or require submission of
memoranda

2. Or it may dismiss the petition if it is found to be:

A. Patently without merit

B. prosecuted manifestly for delay

C. Questions raised are too unsubstantial to require

consideration
Does Rule 65 suspend the principal case?
o No, unless the court where the petition is filed issues a TRO or
preliminary injunction
o If there is no TRO or PI, the public respondent must proceed
with the principal case within 10 days from the filing of the
petition

N.B. else, administratively liable

What are the consequences of filing a petition patently without
merit or manifestly for delay, or questions are too unsubstantial for
consolidation?
o 1. The court may award in favor of respondent treble costs
solidarily against petition and counsel
o 2. Counsel may be subjected to administrative sanctions
o May the court motu propio impose disciplinary sanctions
and measures on erring lawyers?

Yes, based on res ipso loquitur

Quo Warranto

80

Who commences an action for quo warranto?

o Liban: Generally commenced by the government.
o 1. President, directing the Sol-Gen
o 2. Sol-Gen, in the name of the government, when he has good
reason to believe
o 3. Upon the relation of another person, telling the Sol-Gen to
institute the action

What is the special requirement if it is upon the

relation of another person?

There must be approval by the court. If not

approved by the court, the Sol-Gen will not
file.

N.B. also, the Solicitor General will require the other

person to file indemnity for expenses/costs of the
action to the court

N.B. the respondent will also be given prior notice and

the chance to be heard prior to the court giving
approval for the filing
o 4. The person instituting quo warranto in his own behalf must
show that he is entitled to the office in dispute.

This is where the person aggrieved himself files

What should he show?

1. His claim

2. And that he is entitled to the office

When can you file it?
o 1. Usurpation of public office, position, or franchise
o 2. Public officer who does or suffers an act constituting ground
to forfeit office
o 3. Association acting as a corporation but not duly incorporated

Quo warranto is also available if a government

corporation has offended against its chapter.
It is a prerogative writ, where the government can exercise its right to
demand proof of what right a person has over office
What is the venue?
o 1. RTC where respondent resides
o 2. CA
o 3. SC
o This is another example of concurrent jurisdiction
o What is the special rule?

If it is the Sol-Gen who institutes the action, it can be

filed in the RTCs of the City of Manila
What is the period to institute an action for quo warranto?
o One year from happening of the event (usurpation)
Can you recover damages from a quo warranto judgment?
o One year from entry of judgment entitling petitioner to the
position
What are the rights of the person adjudged entitled to the public
office?
o A. After taking oath and executing any bond required by law,
may demand books and papers in respondents custody

What if the respondent refuses?

Contempt of court
o B. Action for damages against usurper

If there is a dispute between and among the Board of Directors of a

private corporation, one group claiming that they have been
usurped, is the proper remedy quo warranto?
o No. This is an intra-corporate dispute to be filed in the regular
courts (RTC) having original jurisdiction.
Distinguish from Quo Warranto in election cases:
o 1. Filed by any registered voter in the constituency
o 2. On grounds of a) ineligibility or b) disloyalty to the RP (ex.
Having a green card)
o 3. Within 10 days from proclamation of results

Rule 67 Expropriation

81

Who can expropriate?

o National government
o LGU
o Instrumentality of government
Veluso v. Panay:
o LGUs by themselves have no inherent power of eminent
domain. Thus, strictly speaking, the power delegated to the
LGUs is inferior domain.
o But an LGU can expropriate.
o What are the requisites before an LGU can exercise
eminent domain?

1. Public use, public purpose, public welfare

2. Ordinance by local legislative body authorizing

local chief executive to exercise eminent domain

3. Just compensation

4. Valid and definite offer previously made to owner

but not accepted
What must be alleged in the expropriation complaint?
o 1. Right and purpose of expropriation
o 2. Description of the property sought to be expropriated
o 3. Names of persons owning or claiming to own it, or
possessing it, or having interest over it
o N.B. it must be verified
Can a complaint for expropriation be withdrawn?
o It can be withdrawn for as long as there is no judgment yet

Once there is an order for expropriation, it can no longer be

withdrawn
What if the defendant has no objection?
o He files and serves a notice of appearance and manifestation
only. Thereafter, he is entitled to notices.
What if the defendant has objections?
o He files and serves an answer within the time stated in the
summons, stating his objections.
o Can there be a counter-claim, cross-claim, or third party
complaint?

No.
o Can there be amendments to the answer filed?

Generally no, but in the interest of justice, the court

may allow an extension of not more than 10 days.
o N.B. Even if the defendant initially objected and filed an
answer (not a manifestation/appearance), he is still entitled to
just compensation.
When does an order of expropriation issue?
o If the objections and defenses are overruled, or when there is
no defendant, the court issues an order of expropriation
o May the order of expropriation be appealed?

Yes, but it does not prevent the court from entering

the second stage (just compensation)
After order of expropriation, what is the second stage?
o Determination of just compensation
o The court appoints not more than 3 commissioners to ascertain
the value of the property.

Non-compliance with this step is a denial of due

process
When can the plaintiff enter the property and appropriate it for
public use?
o In general, after judgment and payment of just compensation
as determined by the court
o Or the plaintiff can continue its possession of the property if it
made a prior deposit and entry

N.B. see below

When is there immediate entry allowed for expropriation under
Rule 67?
o 1. Filing of complaint + due notice to defendant and

82

2. Deposit with authorized government depositary an amount

equivalent to the assessed value of the property
When is there immediate entry allowed for expropriation under the
LGC?
o 1. Filing of complaint for expropriation sufficient in form and
substance and
o 2. Deposit of amount equivalent to 15% of FMV of the property
to be expropriated, based on latest tax declaration
When is there immediate entry allowed for expropriation under RA
8974 (acquisition of property for right of way or for government
infrastructure projects)?
o 1. Filing of complaint + immediate payment of 100% assessed
value of the property and the improvements (same rule as Rule
67)
o 2. If there is no zonal valuation AND the expropriation is of
utmost importance: Filing of complaint + payment of proffered
value of the property
What is the general rule for valuation?
o Rule 67, Sec 2 provides that for real property, it must be
assessed value, in general. If it is personal property, assessed
too
Government entered property (took it) and caused demolition of
improvements. But before there was order for expropriation, the
government said huwag na lang. Can the government withdraw?
o Yes. But it is liable for damages.
What if there is a subsisting contract between government and the
private person?
o There can be no expropriation contrary to that contract.
What is the nature of determination of just compensation?
o It is a judicial function, which is why the judiciary still has
control over the commissioners.
In traversing a lot with transmission lines, is there expropriation or
easement?
o There is expropriation (NPC v. Manubay)
What is the nature and limitation of public purpose?
o Mactan Cebu Airport: When you say public purpose, it must
be the purpose stated, and not another, even if public too

Rule 68 Foreclosure

The acquisition of government of property is limited to the

public purpose stated, because it is not a simple purchase in
fee simple, unlike in the normal purchase of property.
How is just compensation ascertained?
o 1. Court appoints 3 commissioners

Copies of order served on the parties

Objections to appointment of commissioners must be

filed within 10 days of service

Resolved within 30 days after all commissioners have

received copies of the objections
o 2. Commissioners take oath
o 3. Commissioners receive evidence

Consider consequential damages and consequential

benefits

N.B. But in no case should he be deprived of actual

value of the property taken
o 4. Commissioners issue report

Can they issue partial reports?

Yes

What is the time period for the report?

60 days from notice of appointment

What is the period to file objections?

10 days from receipt of the report by the

parties
o 5. Court may accept, reject, or recommit the report

N.B. can be in part or wholly

When does the court do this?

After expiration of 10 day period or after

submission of objections by all parties

What else can the court do?

Secure to the plaintiff the property essential

to the right of expropriation and to the
defendant, just compensation
o 6. Plaintiff may take over property after payment of costs

What if the defendant refuses to accept the

payment?

Tender in court
Does appeal stay entry by the plaintiff?
o No.

83

Two kinds of foreclosure?

o Judicial foreclosure (Rule 68)
o Extrajudicial (Act 3135)
What is the difference?
o Rule 68 you have to file a case, just like any other action; you
have to pay filing fees
o Act 3135 you file a verified petition before the office of the
clerk of court, who is the ex-officio sheriff

When is the EJF scheduled?

After paying of incidental fees and fees for

publication
What is diff between JF and execution?
o A. When there is award of JF, the mortgagor continues to be in
possession of the property.

When does the purchaser at auction sale or the

last redemptioner get possession of the property?

Finality of the order of confirmation (or

expiration of redemption period if allowed by
law)
o B. In execution, the obligor continues to be in possession of
the property.
o C. What about Banking Law?

In Banking Law, the possession is different. If the

lender is a bank and the borrower/mortgagor is an
individual the one in possession after foreclosure
sale is the purchaser or the bank, if it purchased.
o D. What about Act 3135?

After foreclosure, the mortgagor still possesses.

Unless the lender is a banking institution follow the

Banking law.
How is the disposition of the proceeds of sale?
o 1. Deduct costs of sale
o 2. Pay to the person foreclosing the mortgage
o 3. Balance or residue to junior encumbrancers in order of
priority
o 4. If no junior encumbrancers, balance to mortgagor or his
agent

What if after execution, there is still a deficiency?

Can execute against the mortgagor

What is the redemption period in JF?
o Equity of redemption: period 90-120 days.

This is just the general rule. If there is a law giving a

longer period of redemption for the mortgagor, then
that prevails.
o In execution in Rule 39?

Redemption is one year.

o In Act 3135?

Redemption is one year.

o Bank as lender and mortgagor/borrower is a corporation?

90 days or registration of certificate of sale, whichever

comes first.
Metrobank v. Tan:
o Filing of a civil case involving annulment and cancellation of an
EJF sale.
o The general rule in redemption not enough to manifest intent
to redeem.
It must be accompanied by actual and
simultaneous tender of payment. (This also applies even to
redemption in execution.)
What constitutes payment for purposes of redemption?
o 1. The price which the purchaser paid for the property
o 2. Interest of 1% per month on the purchase price
o 3. Amount of any assessment or taxes which the purchaser
may have paid on the property
o 4. Interest of 1% per month on such assessment
Distinguish a legal redemption from conventional redemption?
o Legal redemption is one that is within the period provided for
by law.
o Conventional redemption beyond the redemption period, and
you still want to redeem, and you would like to agree on a
different price

Governed by contractual law. So the redeemer

cannot insist on the calculation above
Metrobank case:
o When the complaint to enforce a repurchase, if filed within the
redemption period is treated as an offer to redeem and will
have the effect of preserving the right of redemption.

Take note of the 2007 SC Circular re: TRO and injunction of

foreclosures [discussed in Rule 58]
Different types of sale of property?
o 1. Ordinary execution sale

Governed by Rule 39
o 2. Judicial foreclosure sale

Rule 68
o 3. Extrajudicial foreclosure sale

Act 3135
What is the jurisdiction of courts in JF?
o Any right title or interest over real property depends on
assessed value. So decide whether its RTC or MTC.

Rule 69 Partition

84

In the last five years, there were questions in the Bar exam, but they
involved EJ partition, not J partition.
Compare an EJP from a JP?
o JP covered by Rule 69

You must implead all the co-owners because

everyone is an indispensable party
o EJP covered by Rule 74
What are the two stages in JP?
o 1. Determination of existence of a co-ownership

The co-ownership is created by agreement of the

parties or by operation of law
o 2. Partition of the property
Who institutes action for JP?
o Any co-owner
What is the role of the commissioner?
o There is a need to refer the matter to a commissioner. But
remember that under this rule, it is NOT mandatory. If the
parties agreed, the matter will not be referred. (As compared to
expropriation, where failure to refer to commissioners is a
violation of due process)
Step-by-step example of JP:
o There is a co-ownership created by death (inheritance)
o An action was instituted under Rule 69.

The provision of law does not provide for an answer. But in the
absence of rules, there is an answer. So file one.
o The pre-trial.
o Then parties can agree. If they do, there will be a judgment
based on the stipulation of the parties.
o If there is lack of agreement, refer to commissioners.

What if the property cannot be divided without

prejudice to the interest of the parties?

Commissioners can assign the property to

one party, who reimburses the others

If one party asks that the property be sold

instead, the commissioners sell it

What is the procedure for approval of the

Commissioners report?

Same as expropriation (10 days to object

and court may accept, reject, etc. it)
Examples of EJP:
o 1. Affidavit of self-adjudication
o 2. EJP upon a notarized public instrument
o 3. Even if there is petition for JP, but the parties agreed, it will
be treated as an EJP

Needs publication
Do you need a bond?
o For JP, no.
o For EJP, yes, for personal property.
Requisites of EJP?
o 1. There is no will
o 2. There is no debt
o 3. If there are minors, there is appointment of guardians
Until what period can you contest the distribution of the estate
under EJP?
o Within a period of 2 years.
Can you contest a JP?
o Paramount rights cannot be prejudiced, even if there is
judgment already
Can JP cover both real and personal properties?
o Yes.

Rule 70 Forcible entry and unlawful detainer

85

Distinguish.
o Forcible entry possession by reason of force, intimidation,
strategy, threat, or stealth
o Unlawful detainer previous lawful possession but by violation
of K or expiration of the period, it became unlawful
What is the most important allegation in FE cases?
o Prior physical possession and when
o This must be proved because it is the way the 1 year period is
counted
What is the most important requirement in UD cases?
o A demand letter is a specific requirement
o 1. There is a demand to pay unpaid rentals or comply
o 2. AND vacate

There must always be a demand to vacate for

unlawful detainer
o What if the demand letter is defective?

The complaint can be dismissed. A defective demand

letter is jurisdictional.
o When is demand not required?

Expiration of contract, because theres nothing left to

pay
o When should demand to vacate be given prior to action for
unlawful detainer?

15 days prior in case of land

5 days prior in case of buildings

What is the period to file this action?
o Within 1 year of entry into the property for forcible entry

Except if done by stealth 1 year from discovery of

entry and prohibition
o Within 1 year of the last demand for unlawful detainer
Can you touch on the question of ownership in FE and UD cases?
o Yes, but only to preliminarily determine who is entitled to
possession.
o But the determination is not binding /prejudicial to future
questions of ownership.
Salient portions of procedure:
o In ejectment cases, unlike ordinary cases, the court can
dismiss the case outright.

Absence of an answer will not lead to default, but a judgment

of the court. No need to declare the defendant in default.
o There is a Preliminary conference, just like summary
procedure. But after preliminary conference even without
position papers, the court can render judgment if it is already
satisfied.
o Third chance to make a decision: 30 days from filing of last
judicial affidavit or position paper
How do you stay execution of the MTC decision?
o 1. File notice of appeal and pay filing fees
o 2. Post a supersedeas bond

Covers arrearages
o 3. Pay the monthly rentals before the trial court
o What if the defendants appeal is clearly frivolous or
dilatory or the plaintiffs appeal is prima facie meritorious?

Upon motion of the plaintiff, within 10 days of

perfection of appeal, the RTC may issue a writ of
preliminary mandatory injunctions restoring the
plaintiff to possession of the property
Can you file an MR in an ejectment case?
o No, it is a prohibited pleading.
o Dont file an MR, file a notice of appeal.
Are you entitled to a provisional remedy?
o Yes. You can apply for a TRO or preliminary mandatory
injunction so you can recover possession in the pendency of
the case.
o But you have to file it within 5 days from filing of the complaint.

In the rule on property, it says 10 days.

What prevails: 5 days.

Can you appeal?
o Yes. The appeal will be elevated to the RTC.
o The decision of the RTC, once final, is executory and cannot
be stayed.
o Even an appeal will not stay the execution.
o Benedicto v. CA: If you can get a preliminary injunction or
TRO from the next level court, it can be stayed.
What is the mode of appeal from RTC decision in exercise of its
appellate jurisdiction?
o Petition for review

Can you file an MR before you file a petition for review?

Yes, because RTC is an appellate court and not

subject to rules of summary procedure.
What is accion publiciana?
o Action to recover right to possess property
o Filed in the RTC or MTC depending on property value
o File within 10 years after possession was lost
What is accion reivindicatoria?
o Action to recover ownership of property
o Follow same valuations for jurisdiction
o Filed within 10 years or 30 years, as the case may be (if the
defendant is in GF or BF)
Usually, ejectment suit is in personam. But who else can be bound
by the judgment even if not impleaded?
o 1. Trespasser, squatter, or agent of defendant occupying the
property to frustrate the judgment
o 2. Guest of the defendant or member of family
o 3. Sub-lessee, co-lessee
o 4. Transferee pendente lite or privy of defendant
Will the filing of another action for annulment of sale, cancellation
of title, etc. suspend the action fro ejectment?
o No. Note that the other actions all deal with ownership and
ejectment is just a matter touching on possession so the
actions can coincide.

Rule 71 Contempt

86

What is direct contempt?

o An act of disrespect in the presence of, or so near the court of
a judge
o It MUST be within the four corners of his office
o Ex. Refusal to take the witness stand or refuses to take an
oath. Or wearing shorts in court. Or your phone keeps ringing.
What is the nature of direct contempt?
o Direct contempt is summary. You will not be asked to explain.
Distinguish from indirect contempt.
o Contempt which is in violation of order or process of court.

Ex. failure to comply with subpoena of court.

o There is notice and hearing.

How do you charge?

o For direct contempt, there is no need to charge. You just need
to disobey or disrespect.
o For indirect contempt, there are two ways:

1. Formal charge of the judge motu propio

2. Upon a verified complaint filed and docketed

separately
o Where do you file case for indirect contempt?

If against an RTC, file in the RTC

If against MTC, either:

RTC

Or MTC, subject to appeal to RTC

X had a main case pending in an RTC branch in Makati. X obtained
a preliminary injunction but the other party refused to comply.
Can he file a motion for indirect contempt in the same court that
issued the injunction?
o No, a motion for indirect contempt is NOT a remedy now.
o You file a verified petition (separate case).
o After it gets raffled to another branch, you can either:

Let them proceed separately

File a motion to consolidate.

What is your remedy for direct contempt?
o Its immediately executory, so you can stay its execution by
posting a bond.
o File a petition for certiorari or prohibition based on GADALEJ.
What is your remedy for indirect contempt?
o Remedy is an appeal.
o Judgment will only be stayed from being executed by posting a
bond.
What are the penalties for direct contempt?
o If in the RTC or higher court, imprisonment up to 10 days. Fine
not exceeding 2,000.
o In MTC, imprisonment not exceeding 1 day.
Fine not
exceeding 200.
Penalty for indirect contempt?
o RTC or up. Imprisonment not exceeding 6 months, Fine not
exceeding 30,000.
o MTC not exceeding 1 month. Fine of 5,000 pesos.

When is imprisonment imposed?

o When the contempt stems from the refusal or omission to do
an act which is yet in the power of the respondent to perform
he may be imprisoned by the court until he performs it
What is difference between criminal and civil contempt?
o Criminal contempt disrespect of the court/judiciary
o Civil contempt violation of right of other party
o Can there be administrative contempt? See below (QJAs)
o In case of absence of rules in QJA, what is the rule?

Venue is RTC where the contemptuous act was

performed (default)

Rules of Court apply

PART II: CRIMINAL PROCEDURE

General matters, jurisdiction

87

When did Rules on Criminal Procedure take effect?

o Dec 1, 2000
What is the rule on venue and jurisdiction?
o VENUE IS JURISDICTIONAL. The place of commission
determines jurisdiction.
o Contrast with civil cases where these are separate concepts.
o The crime of stabbing was committed in Makati; where can
it be filed?

ONLY in the courts of Makati.

o What is the exception?

Transitory and continuing offenses, wherein one or

more of the elements happened in more than one
venue.

Ex. Estafa, where the elements may be committed in

different places (ex. misappropriation in one place
and damage in another).

Ex. BP22 either place of issue, or where the check

bounced
Can an offense be committed outside the Philippines yet be filed
here?
o Yes.