GENERAL

PRINCIPLES
CONCEPT OF REMEDIAL LAW
Remedial law is that branch of law which
prescribes the method of enforcing rights or
obtaining redress for their invasion (Bustos v.
Lucero, 81 Phil. 640).
Remedial statute or statutes:
(1) Relating to remedies or modes of
procedure;
(2) Do not take away or create vested rights;
(3) BUT operate in furtherance of rights
already existing. (Riano citing Systems
Factor Corporation v NLRC (2000))
Source
Remedial law is basically contained in the Rules
of Court. Circulars of the Supreme Court
implementing the Rules of Court (e.g. Rules on
Summary Procedure) also contain remedial law.
The Rules of Court, promulgated by authority of
law, have the force and effect of law, if not in
conflict with positive law (Inchausti & Co v de
Leon (1913)]. The rule is subordinate to the
statute, and in case of conflict, the statute will
prevail. [Shioji v Harvey (1922)].
Applicability
The Rules of Court is applicable in ALL COURTS,
EXCEPT as otherwise provided by the SC [Rule 1,
Sec. 2].
It governs the procedure to be observed in CIVIL
or CRIMINAL actions and SPECIAL proceedings
[Rule 1, Sec. 3].
It does not apply to the following cases:
1. Election cases,
2. Land registration cases,
3. Cadastral cases
4. Naturalization cases,
5. Insolvency proceedings
6. Other cases not herein provided for
Except by analogy or in a suppletory
character and whenever practicable and
convenient [Rule 4, Sec. 4]
Prospectivity/ Retroactivity
The Rules of Court are not penal statutes and
cannot be given retroactive effect [Bermejo v
Barrios (1970)].

Rules of procedure may be made applicable to

actions pending and undetermined at the time of
their passage, and are deemed retroactive in
that sense and to that extent. [In the Matter to
Declare in Contempt of Court Hon. Simeon
Datumanong (2006)].
The Rules of Court shall govern cases brought
after they take effect, and also all further
proceedings then pending, EXCEPT to the extent
that in the opinion of the Court their application
would not be feasible or would work injustice.
[Riano citing Rule 114]

SUBSTANTIVE LAW VIS--VIS

REMEDIAL LAW
Substantive Law - creates, defines and
regulates rights and duties regarding life, liberty
or property which when violated gives rise to a
cause of action (Bustos v. Lucero, 81 Phil. 640)
SUBSTANTIVE LAW
It is that part of the
law which creates,
defines, or regulates
rights, concerning life,
liberty or property or
the powers of
agencies or
instrumentalities for
the administration of
public affairs
It makes vested rights
possible
It is prospective in
application
It cannot be enacted
by the SC

REMEDIAL LAW
It refers to the
legislation providing
means or methods
whereby causes of
action may be
effectuated, wrongs
redressed, and relief
obtained
It is also called
Adjective Law
It has no vested rights
It governs acts and
transactions which
took place
(retroactive)
The SC is expressly
empowered to
promulgate procedural
rules

RULE MAKING POWER OF THE

SUPREME COURT
Judicial Power includes the duty of the courts of
justice to settle actual controversies involving
rights, which are legally demandable and
enforceable, and to determine whether or not
there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government (Sec. 1, Art. VIII, 1987 Constitution)
The power of judicial review is the SCs power to
declare a law, treaty, international or executive
agreement, presidential decree, proclamation,
order, instruction, ordinance, or regulation
unconstitutional

Sec. 5(5), Art. VIII, of the 1987 Constitution

provides that that the Supreme Court shall have
the power to:
1. promulgate
rules
concerning
the
protection
and
enforcement
of
constitutional rights, pleading, practice,
and procedure in all courts;
2. admission to the practice of law;
3. the Integrated Bar;
4. and
legal
assistance
to
the
underprivileged
Limitations on the rule-making power of
the Supreme Court
Sec 5(5) of Art. VIII of the Constitution sets forth
the limitations to the power:
1. That the rules shall provide a simplified
and inexpensive procedure for speedy
disposition of cases;
2. That the rules shall be uniform for courts
of the same grade; and
3. That the rules shall not diminish, increase
or modify substantive rights.
Power of the Supreme Court to Amend and
Suspend Procedural Rules
Power to Amend Remedial Laws
1. The constitutional faculty of the Court to
promulgate
rules
of
practice
and
procedure necessarily carries with it the
power to overturn judicial precedents on
points of remedial law through the
amendment of the Rules of Court. [Pinga
v Heirs of Santiago (2006)].
2. The SC has the sole prerogative to
amend, repeal, or even establish new
rules for a more simplified and
inexpensive process, and the speedy
disposition of case [Neypes v CA (2005)]
Power to Suspend Remedial Laws
1. It is within the inherent power of the
Supreme Court to suspend its own rules
in a particular case in order to do justice
[De Guia v De Guia (2001)].
2. When the operation of rules will lead to
an injustice or if their application tends to
subvert and defeat instead of promote
and enhance justice, their suspension is
justified [Republic v CA (1978)].
3. There is no absolute rule as to what
constitutes good and sufficient cause that
will merit suspension of the rules. The
matter is discretionary upon the Court
[Republic v Imperial Jr. (1999)].
4. The bare invocation of "the interest of
substantial justice" is not a magic wand
that will automatically compel this Court
to suspend procedural rules [Ramos v Sps
Lavendia (2008)].
5. Procedural rules are not to be belittled or
dismissed simply because their non-

observance may have resulted in

prejudice to a party's substantive rights.
Like all rules, they are required to be
followed except only for the most
persuasive of reasons when they may be
relaxed to relieve a litigant of an injustice
not commensurate with the degree of his
thoughtlessness in not complying with
the procedure prescribed. [Polanco v Cruz
(2009)].

NATURE OF PHILIPPINE COURTS

Meaning of a Court
A court is an organ of the government belonging
to the judicial department, the function of which
is the application of the laws to controversies
brought before it (and) as well as the public
administration of justice.
Generally, the term describes an organ of the
government consisting of one person or of
several persons, called upon and authorized to
administer justice. It is also the place where
justice is administered. [Riano citing Blacks and
Am. Jur. and C. J. S.]
Court as Distinguished from a Judge
COURT
A tribunal officially
assembled under
authority of law
An organ of the
government with a
personality separate
from the person or
judge
A being in imagination
comparable to a
corporation
May be considered an
office

JUDGE
An officer of such
tribunal
The judge is the one
who sits in court
A physical and
natural person
A public officer

The circumstances of the court are not affected

by the circumstance that would affect the judge.
The continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the
judge presiding over it. In other words, the judge
may resign, become incapacitated, or be
disqualified to hold office, but the court remains.
The death of the judge does not mean the death
of the court [Riano citing ABC Davao Auto
Supply v. CA (1998)].
Classification of Philippine Courts
1. Courts
of
original
and
appellate
jurisdiction
2. Courts of general and special jurisdiction
3. Constitutional and statutory courts

4. Courts of law and equity

5. Superior and Inferior Courts
6. Courts of record and not of record

Inferior courts Those which, in relation to

another court, are lower in rank and subject to
review and supervision by the latter. [Regalado]

Courts of original and appellate jurisdiction

Courts of record and not of record

Courts of original jurisdiction Those courts in

which, under the law, actions or proceedings
may be originally commenced.

Courts of record Those whose proceedings are

enrolled and which are bound to keep a written
record of all trials and proceedings handled by
them. [Regalado] One attribute of a court of
record is the strong presumption as to the
veracity of its records that cannot be collaterally
attacked except for fraud. All Philippine courts,
including inferior courts, are now courts of
record. [Riano]

Courts of appellate jurisdiction Courts which

have the power to review on appeal the
decisions or orders of a lower court. [Regalado]
Courts of general and special jurisdiction
Courts of general jurisdiction Those competent
to decide their own jurisdiction and to take
cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.
Courts of special or limited jurisdiction Those
which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Regalado]
Constitutional and statutory courts
Constitutional courts Those which owe their
creation and existence to the Constitution and,
therefore cannot be legislated out of existence or
deprived by law of the jurisdiction and powers
unqualifiedly vested in them by the Constitution.
e.g. Supreme Court; Sandiganbayan is a
constitutionally-mandated court but created by
statute.
Statutory courts Those created, organized and
with jurisdiction exclusively determined by law.
[Regalado]
Courts of law and equity
Courts of Law- Those courts which administer
the law of the land. They settle cases according
to law.
Courts of Equity- Those courts which rules
according to the precepts of equity or justice.
They settle cases according to the principles of
equity referring to principles of justice, fainess
and fair play.
Philippine courts are both courts of law and
equity. Hence, both legal and equitable
jurisdiction is dispensed with in the same
tribunal [U.S. v. Tamparong (1998)]
Superior and Inferior Courts
Superior courts Courts which have the power of
review or supervision over another and lower
court.

Courts not of record Courts which are not

required to keep a written record or transcript of
proceedings held therein.
Principle of Judicial Hierarchy
The judicial system follows a ladderized scheme
which in essence requires that lower courts
initially decide on a case before it is considered
by a higher court. Specifically, under the judicial
policy recognizing hierarchy of courts, a higher
court will not entertain direct resort to it unless
the redress cannot be obtained in the
appropriate courts. [Riano citing Santiago v.
Vasquez (1993)]
The principle is an established policy necessary
to avoid inordinate demands upon the Courts
time and attention which are better devoted to
those matters within its exclusive jurisdiction,
and to preclude the further clogging of the
Courts docket [Lim v. Vianzon (2006)].
When the doctrine/principle may be disregarded:
A direct recourse of the Supreme Courts original
jurisdiction to issue writs (referring to the writs of
certiorari, prohibition, or mandamus) should be
allowed only when there are special and
important
reasons
therefor,
clearly
and
specifically set out in the petition. [Mangahas v.
Paredes (2007)]. The Supreme Court may
disregard the principle of hierarchy of courts if
warranted by the nature and importance of the
issues raised in the interest of speedy justice
and avoid future litigations [Riano].
Doctrine of Non-Interference or Doctrine of
Judicial Stability
The principle holds that courts of equal and
coordinate jurisdiction cannot interfere with each
others orders [Lapu-lapu Development and
Housing Corp. v. Group Management Corp.
(2002)] The principle also bars a court from
reviewing or interfering with the judgment of a
co-equal court over which it has no appellate
jurisdiction or power of review [Villamor v. Salas
(1991)].

The doctrine of non-interference applies with

equal force to administrative bodies. When the
law provides for an appeal from the decision of
an administrative body to the SC or CA, it means
that such body is co-equal with the RTC in terms
of rank and stature, and logically beyond the
control of the latter [Phil Sinter Corp. v. Cagayan
Electric Power (2002)].

General Rule: No court has the authority

interfere by injunction with the judgment
another court of coordinate jurisdiction or
pass upon or scrutinize and much less declare
unjust a judgment of another court

JURISDICTION

How jurisdiction over the DEFENDANT is acquired

- Acquired by the
1. Voluntary appearance or submission by
the defendant or respondent to the court
or
2. By coercive process issued by the court
to him, generally by the service of
summons [de Joya v. Marquez (2006),
citing Regalado]

JURISDICTION IN GENERAL
Jurisdiction is defined as the authority to try,
hear and decide a case [Tolentino v. Leviste
(2004)].
Judicial power includes the duty of the courts of
justice: [Art 8, Sec. 1, Constitution]
1. To settle actual controversies involving
rights which are legally demandable and
enforceable;
2. To determine WON there has been a
grave abuse of discretion amounting to
lack or excess of jurisdiction on the part
of
any
government
branch/
instrumentality.
All courts exercise judicial power. Only the
Supreme Court is the court created by the
Constitution [Art 8, Sec. 1, Constitution]. The
Sandiganbayan is a Constitutionally mandated
court, but it is created by statute. [PD 1486]
REQUISITES FOR A VALID EXERCISE OF
JURISDICTION
1. Court must have jurisdiction over the
persons of the parties
2. It must have jurisdiction over the subject
matter of the controversy
3. It must have jurisdiction over the res
4. It must have jurisdiction over the issues
JURISDICTION OVER THE PARTIES
The manner by which the court acquires
jurisdiction over the parties depends on whether
the party is the plaintiff or the defendant.
The mode of acquisition of jurisdiction over the
plaintiff and the defendant applies both to
ordinary and special civil actions.
How jurisdiction over the PLAINTIFF is acquired Jurisdiction over the plaintiff is acquired by filing
of the complaint or petition. By doing so, he
submits himself to the jurisdiction of the court
[Davao Light & Power Co., Inc. v CA (1991)].

to
of
to
as

Exception: The doctrine of judicial stability does

not apply where a third party claimant is
involved

NOTE: In an action in personam, jurisdiction over

the person is necessary for the court to validly
try and decide the case, while in a proceeding in
rem or quasi in rem, jurisdiction over the person
of the defendant is not a prerequisite to confer
jurisdiction on the court provided the latter has
jurisdiction over the res [Alba v. CA (2005)].
JURISDICTION OVER THE SUBJECT MATTER
Jurisdiction over the subject matter is the power
to deal with the general subject involved in the
action, and means not simply jurisdiction of the
particular case then occupying the attention of
the court but jurisdiction of the class of cases to
which the particular case belongs (Riano citing
CJS).
It is the power to hear and determine cases of
the general class to which the proceedings in
question belong [Reyes v. Diaz (1941)]
Jurisdiction versus the exercise of jurisdiction
Jurisdiction: the authority to hear and determine
a cause the right to act in a case. [Arranza v.
BF Homes (2000)].
Exercise of Jurisdiction.: the exercise of this
power or authority
Jurisdiction is distinct from the exercise thereof.
Jurisdiction is the authority to decide a case and
not the decision rendered therein. When there is
jurisdiction over the subject matter, the decision
on all other questions arising in the case is but
an exercise of jurisdiction. [Herrera v. Baretto et
al (1913)]
Error of Jurisdiction as distinguished from Error of
Judgment
Error of judgment

Error of jurisdiction

It is one where the act

complained of was
issued by the court
without or in excess of
jurisdiction [Cabrera v.
Lapid (2006)].

It is one which the

court may commit in
the exercise of its
jurisdiction [Cabrera
v. Lapid (2006)].
It includes errors of
procedure or
mistakes in the
courts mistakes in
the courts findings
[Banco Filipino
Savings v. CA (2000)]

Correctible only by the

extraordinary writ of
certiorari [Cabrera v
Lapid (2006)]

Correctible by appeal
[Cabrera v Lapid
(2006)]

Renders a judgment
void or voidable [Rule
16 Sec. 1, Rule 65]

Ground for reversal

only if it is shown that
prejudice has been
caused [Banco
Espaol-Filipino v
Palanca (1918)]

How conferred and determined:

1. Jurisdiction being a matter of substantive
law, the statute in force at the time of the
commencement of the action determines
the jurisdiction of the court.
2. It is conferred only by the Constitution or
the law.
3. Jurisdiction CANNOT be:
a. Fixed by agreement of the parties;
b. Cannot be acquired through, or
waived, enlarged or diminished by,
any act or omission of the parties;
c. Neither can it be conferred by the
acquiescence of the court [Regalado
citing De Jesus v Garcia (1967)].
d. Cannot be subject to compromise
[Civil Code, Art 2035]
4. Jurisdiction over the subject matter is
determined by the allegations of the
complaint and the reliefs prayed for.
[Gulfo v. Ancheta (2012)]
5. It is not affected by the pleas set up by
the defendant in the answer or in the
answer or in a motion to dismiss. [Sindico
v. Diaz (2004)].

the prescribed docket fee vest a trial

court with jurisdiction over the subject
matter or the nature of the action [CB v.
CA (1992)](2008 Bar Exam).
a. Exception: Non-payment of docket fee
does not automatically cause the
dismissal of the case on the ground of
lack of jurisdiction as long as the fee
is
paid
within
the
applicable
prescriptive or reglementary period,
more so when the party involved
demonstrates a willingness to abide
by
the
rules
prescribing
such
payment. [Go v. Tong (2003)]
Doctrine of Primary Jurisdiction
Courts cannot and will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal,
especially where the question demands the
exercise of sound administrative discretion
requiring the special knowledge, experience and
services of the administrative tribunal to
determine technical and intricate matters of fact
[Paloma v. Mora (2005)].
Objective is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect
of some question arising in the proceeding
before the court [Riano citing Omictin v. CA
(2007)]
Doctrine of Adherence of Jurisdiction
Also known
jurisdiction

as

doctrine

of

continuity

of

The court, once jurisdiction has been acquired,

retains that jurisdiction until it finally disposes of
the case [Bantua v. Mercader (2001)].
As a consequence, jurisdiction is not affected by
a new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
1. Where there is an express provision in the
statute
2. The statute is clearly intended to apply to
actions pending before its enactment
[Riano citing People v. Cawaling (1998)].

6. Once attached to a court, it cannot be

ousted by subsequent statute.
a. Exception:
The
statute
itself
conferring new jurisdiction expressly
provides
for
retroactive
effect.
[Southern Food v. Salas (1992)]

Objections to Jurisdiction over the Subject Matter

7. The filing of the complaint or appropriate

initiatory pleading and the payment of

The court may on its OWN INITIATIVE object to

an erroneous jurisdiction and may ex mero motu

When it appears from the pleadings or evidence

on record that the court has no jurisdiction over
the subject matter, the court shall dismiss the
same. (Sec. 1, Rule 9)

take cognizance of lack of jurisdiction at any

point in the case and has a clearly recognized
right to determine its own jurisdiction [Fabian v.
Desierto (1998)].
Earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed
before the filing or service of an answer. Lack of
jurisdiction over subject matter is a ground for a
motion to dismiss. If no motion is filed, the
defense of lack of jurisdiction may be raised as
an affirmative defense in the answer. [Riano
citing Sec. 1(b) and 6 of Rule 16].
Jurisdiction over the subject matter may be
raised at any stage of the proceedings, even for
the first time on appeal. When the court
dismisses the complaint for lack of jurisdiction
over the subject matter, it is common reason
that the court cannot remand the case to
another court with the proper jurisdiction. Its
only power is to dismiss and not to make any
other order.
Effect of Estoppel on Objections to Jurisdiction
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a
cause of action. Jurisdiction is conferred by law.
Where there is none, no agreement of the
parties can provide one. Settled is the rule that
the decision of a tribunal not vested with
appropriate jurisdiction is null and void.
[SEAFDEC-AQD v. NLRC (1992)]
Exception: Participation in all stages of the case
before the trial court, that included invoking its
authority in asking for affirmative relief,
effectively barred petitioner by estoppel from
challenging the courts jurisdiction. [Soliven v.
Fastforms (2004)]
JURISDICTION OVER THE ISSUES
It is the power of the court to try and decide
issues raised in the pleadings of the parties.
An issue is a disputed point or question to which
parties to an action have narrowed down their
several allegations and upon which they are
desirous of obtaining a decision. Where there is
no disputed point, there is no issue.
Generally, jurisdiction over the issues is
conferred and determined by:
1. The pleadings of the parties. The
pleadings present the issues to be tried
and determine whether or not the issues
are of fact or law.
2. Stipulation of the parties as when in the
pre-trial,
the
parties
enter
into
stipulations of facts and documents or

enter into agreement simplifying the

issues of the case.
3. Waiver or failure to object to the
presentation of evidence on a matter not
raised in the pleadings. Here the parties
try with their express or implied consent
or issues not raised by the pleadings. The
issues tried shall be treated in all respects
as if they had been raised in the
pleadings.
JURISDICTION OVER THE RES OR PROPERTY
IN LITIGATION
Jurisdiction over the res refers to the courts
jurisdiction over the thing or the property which
is the subject of the action.
Jurisdiction over the res may be acquired by the
court
1. By placing the property or thing under its
custody (custodia legis)
a. The seizure of the thing under legal
process whereby it is brought into
actual custody of law
b. Example: attachment of property.
2. Through statutory authority conferring
upon it the power to deal with the
property or thing within the courts
territorial jurisdiction
a. Institution of a legal proceeding
wherein the power of the court over
the thing is recognized and made
effective
b. Example: suits involving the status of
the parties or suits involving the
property in the Philippines of nonresident defendants.

JURISDICTION OF THE
METROPOLITAN TRIAL COURTS AND
MUNICIPAL TRIAL COURTS
JURISDICTION OF THE MTCs IN CIVIL CASES
Exclusive Original Jurisdiction
1. If the amount involved does not exceed
P300,000 outside Metro Manila or does
not exceed P400,000 in Metro Manila in
the following cases:
a. Actions involving personal property
b. Probate Proceeding (testate and
intestate) based on gross value of the
estate
c. Admiralty and maritime cases
d. Demand for money
NOTE: Do not include Interest,
Damages of whatever kind, Attorneys
fees, Litigation Expenses, and Costs
(IDALEC). However, in cases where
the claim for damages is the main
cause of action, or one of the causes
of action, the amount of such claim
shall be considered in determining the
jurisdiction of the court.
2. Actions involving title to, or possession of,
real property, or any interest therein
where the assessed value of the property
or interest therein does not exceed
P20,000 outside Metro Manila or does not
exceed P50,000 in Metro Manila
3. Inclusion and exclusion of voters
4. Those governed by the Rules on
Summary Procedure
a. Forcible entry and unlawful detainer
(FEUD)
(1) With jurisdiction to resolve issue of
ownership to determine ONLY
issue of possession (provisional
only)
(2) Irrespective of the amount of
damages or unpaid rentals sought
to be recover
(3) Where
attorneys
fees
are
awarded, the same shall not
exceed P20,000
b. Other civil cases, except probate
proceeding, where the total amount of
the plaintiffs claim does not exceed
P200,000 in MM, exclusive of interests
and costs.
Special Jurisdiction over petition for writ of
habeas corpus OR application for bail in criminal
cases in the absence of all RTC judges in the
province or city
Delegated Jurisdiction to hear and decide
cadastral and land registration cases where:

1. There is no controversy over the land

2. In case of contested lands, the value does
not exceed P100, 000:
a. The value is to be ascertained:
(1) By the claimants affidavit
(2) By agreement of the respective
claimants, if there are more than
one
(3) From
the
corresponding
tax
declaration of the real property
NOTE: MTC decisions in cadastral and
land registration cases are appealable in
the same maner as RTC decisions
1st level courts:
a. Metropolitan Trial Court Metro Manila;
b. Municipal Trial Courts in Cities situated
in cities
c. Municipal Circuit Trial Court composed
of multi-sala
d. Municipal
Trial
Courts

in
one
municipality

JURISDICTION OVER SMALL CLAIMS,

SUMMARY PROCEDURE, AND
BARANGAY CONCILIATION
JURISDICTION OVER SMALL CLAIMS
MTCs, MeTCs and MCTCs shall have jurisdiction
over actions for payment of money where the
value of the claim does not exceed P100,000
exclusive of interest and costs (Sec. 2, AM 08-87-SC, Oct. 27, 2009).
Actions covered are
1. Purely civil in nature where the claim or
relief prayed for by the plaintiff is solely
for payment or reimbursement of sum of
money, and
2. The civil aspect of criminal actions, either
filed before the institution of the criminal
action, or reserved upon the filing of the
criminal action in court, pursuant to Rule
111 (Sec. 4, AM 08-8-7-SC).
These claims may be:
1. For money owed under the contracts of
lease, loan, services, sale, or mortgage;
2. For damages arising from fault or
negligence, quasi-contract, or contract;
and
3. The enforcement of a barangay amicable
settlement or an arbitration award
involving a money claim pursuant to Sec.
417 of RA 7160 (LGC).
CASES COVERED BY RULES ON SUMMARY
PROCEDURE

All cases of forcible entry and unlawful detainer

(FEUD), irrespective of the amount of damages
or unpaid rentals sought to be recovered. Where
attorneys fees are awarded, the same shall not
exceed P20,000;
All other cases, except probate proceedings
where the total amount of the plaintiffs claim
does not exceed P100,000 (outside Metro
Manila) or P200,000 (in Metro Manila), exclusive
of interest and costs.
Prohibited Pleadings:
1. Motion to dismiss the compliant except
on the ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion
for
new
trial,
or
for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions.
[Sec.
14,
Prohibited
pleadings and motions]
CASES COVERED BY THE RULES ON
BARANGAY CONCILIATION
The Lupon of each barangay shall have the
authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes
EXCEPT:
1. Where one party is the government or
any subdivision or instrumentality thereof
2. Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions
3. Offenses punishable by imprisonment
exceeding one (1) year or a fine
exceeding P5,000
4. Offenses where there is no private
offended party
5. Where
the
dispute
involves
real
properties located in different cities or
municipalities unless the parties thereto
agree to submit their differences to
amicable settlement by an appropriate
lupon
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities,
except
where
such
barangay units adjoin each other and the
parties thereto agree to submit their

differences to amicable settlement by an

appropriate lupon
7. Such other classes of disputes which the
President may determine in the interest
of justice or upon the recommendation of
the Secretary of Justice
8. Any complaint by or against corporations,
partnerships, or juridical entities. The
reason is that only individuals shall be
parties
to
barangay
conciliation
proceedings either as complainants or
respondents
9. Disputes where urgent legal action is
necessary to prevent injustice from being
committed
or
further
continued,
specifically:
a. A criminal case where the accused is
under police custody or detention
b. A petition for habeas corpus by a
person illegally detained or deprived
of his liberty or one acting in his
behalf
c. Actions coupled with provisional
remedies,
such
as
preliminary
injunction, attachment, replevin and
support pendente lite
d. Where the action may be barred by
statute of limitation
10. Labor disputes or controversies arising
from employer-employee relationship
11. Where the dispute arises from the CARL
12. Actions to annul judgment upon a
compromise which can be directly filed in
court.
NOTE: It is a condition precedent under Rule 16;
can be dismissed but without prejudice

JURISDICTION OF THE REGIONAL

TRIAL COURTS, FAMILY COURTS,
AND SHARIA COURTS
JURISDICTION OF THE RTC IN CIVIL CASES
General Original Jurisdiction All cases not
within the exclusive jurisdiction of any
court/tribunal/person/ body exercising judicial or
quasi-judicial functions
Exclusive Original Jurisdiction
1. The action is incapable of pecuniary
estimation
a. Such as rescission of contract, action
to revive judgment, declaratory relief
(1st part), support, expropriation)
b. If the action is primarily for the
recovery of a sum of money, the claim
is considered capable of pecuniary
estimation, and jurisdiction over the
action will depend on the amount of
the claim. [RCPI v. CA (2002)]
c. If the basic issue is something other
than the right to recover a sum of

money, if the money claim is purely

incidental to, or a consequence of, the
principal relief sought, the action is
one where the subject of the litigation
may not be estimated in terms of
money. [Soliven v. Fastforms (1992)]
2. Title to, possession of, or interest in, real
property with assessed value exceeding
P20,000 outside Metro Manila, or exceeds
P50,000 in Metro Manila
a. Except: Forcible entry and unlawful
detainer cases
3. If the amount involved exceeds P300,000
outside
Metro
Manila
or
exceeds
P400,000 in Metro Manila in the following
cases:
a. Admiralty and maritime cases
b. Matters of Probate (testate and
intestate)
c. Other actions involving personal
property
d. Demand for money
NOTE: The exclusion of the term
damages of whatever kind in
determining the jurisdictional amount
under Sec. 19(8) and Sec. 33 (1) of BP
129, as amended by RA 7691, applies
to cases where the damages are
merely incidental to or a consequence
of the main cause of action. However,
if the claim for damages is the main
cause of action, or one of the causes
of action, the amount of such claim
shall be considered in determining the
jurisdiction of the court.[Admin Circ.
09-94]
4. All actions involving the contract
marriage and family relations

of

JURISDICTION OF FAMILY COURTS (RA

8369)
a. Petitions for guardianship, custody of
children and habeas corpus involving
children
b. Petitions for adoption of children and
the revocation thereof
c. Complaints
for
annulment
of
marriage, declaration of nullity of
marriage and those relating to status
and property relations of husband and
wife or those living together under
different status and agreements, and
petitions for dissolution of conjugal
partnership of gains
d. Petitions
for
support
and/or
acknowledgment
e. Summary judicial proceedings brought
under the provisions of EO 209
(Family Code)
f. Petitions for declaration of status of
children as abandoned, dependent or

neglected children, petitions for

voluntary or involuntary commitment
of
children,
the
suspension,
termination or restoration of parental
authority and other cases cognizable
under PD 603, EO 56 (1986) and other
related laws
g. Petitions for the constitution of the
family home
NOTE: In areas where there are no Family
Courts, the above-enumerated cases shall
be adjudicated by the RTC (RA 8369)
5. To hear and decide intra-corporate
controversies, as per Sec. 52, Securities
and Regulations Code
a. Cases involving devises or schemes
employed by or any acts, of the board
of directors, business associates, its
officers or partnership, amounting to
fraud and misrepresentation which
may be detrimental to the interest of
the public and/or of the stockholders,
partners, members of associations or
organizations registered with the SEC
b. Controversies arising out of intracorporate or partnership relations,
between and among stockholders,
members or associates; between any
or all of them and the corporation,
partnership or association of which
they are stockholders, members or
associates, respectively; and between
such corporation , partnership or
association and the state insofar as it
concerns their individual franchise or
right to exist as such entity
c. Controversies in the election or
appointments of directors, trustees,
officers
or
managers
of
such
corporations,
partnerships
or
associations
d. Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases
where
the
corporation,
partnership of association possesses
sufficient property to cover all its
debts but foresees the impossibility of
meeting them when they respectively
fall due or in cases where the
corporation, partnership of association
has no sufficient assets to cover its
liabilities,
but
is
under
the
management of a Rehabilitation
Receiver or Management Committee.
Concurrent Jurisdiction
1. With the Supreme Court in actions
affecting ambassadors, other public
ministers and consuls
2. With the SC and CA in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies in

petitions for quo warranto, habeas

corpus, and writ of continuing mandamus
on environmental cases
3. With the SC, CA and Sandigabayan in
petitions for writs of habeas data and
amparo
4. With Insurance Commissioner claims
not exceeding P100,000
Appellate Jurisdiction over cases decided by
lower courts in their respective territorial
jurisdictions EXCEPT decisions of lower courts in
the exercise of delegated jurisdiction.
Special Jurisdiction - SC may designate certain
branches of RTC to try exclusively criminal cases,
juvenile and domestic relations cases, agrarian
cases, urban land reform cases not falling within
the jurisdiction of any quasi-judicial body and
other special cases in the interest of justice.
JURISDICTION OF THE SHARIA COURTS
Exclusive Jurisdiction
1. All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
under the Code of Muslim Personal Laws;
2. All
cases
involving
disposition,
distribution and settlement of estate of
deceased Muslims, probate of wills,
issuance of letters of administration of
appointment administrators or executors
regardless of the nature or aggregate
value of the property;
3. Petitions for the declaration of absence
and death for the cancellation and
correction of entries in the Muslim
Registries;
4. All actions arising from the customary
contracts in which the parties are
Muslims, if they have not specified which
law shall govern their relations; and
5. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus and
all other auxiliary writs and processes in
aid of its appellate jurisdiction
Concurrent Jurisdiction
1. Petitions of Muslim for the constitution of
the family home, change of name and
commitment of an insane person to an
asylum
2. All other personal and legal actions not
mentioned in par 1 (d) wherein the
parties involved are Muslims except those
for forcible entry and unlawful detainer,
which shall fall under the exclusive
jurisdiction of the MTC.
3. All special civil actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims
Cases Cognizable

1. Offenses defined and punished under PD

1083
2. Disputes relating to:
a. Marriage
b. Divorce
c. Betrothal or breach of contract to
marry
d. Customary dowry (mahr)
e. Disposition
and
distribution
of
property upon divorce
f. Maintenance
and
support
and
consolatory gifts (muta)
g. Restitution of marital rights
3. Disputes relative to communal properties
NOTE: The Sharia District Court or the Sharia
Circuit Court may constitute an Agama
Arbitration Council to settle certain cases
amicably and without formal trial.
The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
conflicting parties.

JURISDICTION OF THE
SANDIGANBAYAN
Original Jurisdiction in all cases involving:
1. Violations of RA 3019 (Anti-Graft and
Corrupt Practices Act)
2. Violations of RA 1379 (Anti-Ill-Gotten
Wealth Act)
3. Sequestration cases (E.O. Nos. 1,2,14,14A)
4. Bribery (Chapter II, Sec. 2, Title VII, Book
II, RPC) where one or more of the
principal accused are occupying the
following positions in the government,
whether in permanent, acting or interim
capacity at the time of the commission of
the offense:
a. Officials of the executive branch
occupying the positions of regional
director
and
higher,
otherwise
classified as Grade 27 and higher, of
the
Compensation
and
Position
Classification Act of 1989 (RA 6758)
b. Members of Congress and officials
thereof classified as G-27 and up
under RA 6758
c. Members of the Judiciary without
prejudice to the provisions of the
Constitution
d. Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution
e. All other national and local officials
classified as Grade 27 and higher
under RA 6758
f. Other offenses or felonies committed
by the public officials and employees
mentioned in Sec. 4(a) of RA 7975 as

amended by RA 8249 in relation to

their office
g. Civil and criminal cases filed pursuant
to and in connection with EO Nos. 1,
2, 14-A (Sec. 4, RA 8249)
NOTE: Without the office, the crime
cannot be committed.
Appellate Jurisdiction Over final judgments,
resolutions or orders of the RTC whether in the
exercise of their original or appellate jurisdiction
over crimes and civil cases falling within the
original
exclusive
jurisdiction
of
the
Sandiganbayan but which were committed by
public officers below Salary Grade 27.
Concurrent Original Jurisdiction with SC,
CA, and RTC for petitions for writs of habeas
data and amparo
NOTE: The requisites that the offender the
offender occupies salary Grade 27 and the
offense must be intimately connected with the
official function must concur for the SB to have
jurisdiction

JURISDICTION OF THE COURT OF

TAX APPEALS
UNDER RA 9282 and RULE 5, AM 05-11-07 CTA
Exclusive Original or Appellate Jurisdiction
to Review by Appeal:
1. Decisions of CIR in cases involving
disputed assessments, refunds of internal
revenue taxes, fees or other charges,
penalties in relation thereto, or other
matters arising under the NIRC or other
laws administered by BIR;
2. Inaction by CIR in cases involving
disputed assessments, refunds of IR
taxes, fees or other charges, penalties in
relation thereto, or other matters arising
under
the
NIRC
or
other
laws
administered by BIR, where the NIRC or
other applicable law provides a specific
period of action, in which case the
inaction shall be deemed an implied
denial;
3. Decisions, orders or resolutions of the
RTCs in local taxes originally decided or
resolved by them in the exercise of their
original or appellate jurisdiction;
4. Decisions of the Commissioner of
Customs
a. in cases involving liability for customs
duties, fees or other charges, seizure,
detention or release of property
affected, fines, forfeitures or other
penalties in relation thereto, or
b. other matters arising under the
Customs law or other laws, part of

laws or special laws administered by

BOC;
5. Decisions of the Central Board of
Assessment Appeals in the exercise of its
appellate jurisdiction over cases involving
the assessment and taxation of real
property originally decided by the
provincial or city board of assessment
appeals;
6. Decision of the secretary of Finance on
customs
cases
elevated
to
him
automatically for review from decisions of
the Commissioner of Customs which are
adverse to the government under Sec.
2315 of the Tariff and Customs Code;
7. Decisions of Secretary of Trade and
Industry in the case of non-agricultural
product, commodity or article, and the
Secretary of Agriculture in the case of
agricultural
product,
commodity
or
article, involving dumping duties and
counterveiling duties under Secs. 301 and
302, respectively, of the Tariff and
Customs Code, and safeguard measures
under RA 8800, where either party may
appeal the decision to impose or not to
impose said duties.
Exclusive Original Jurisdiction
1. Over all criminal cases arising from
violation of the NIRC and the TCC and
other laws, part of laws, or special laws
administered by the BIR or the BOC
where the principal amount of taxes and
fees, exclusive of charges and penalties
claimed is less than P1M or where there is
no specified amount claimed (the
offenses or penalties shall be tried by the
regular courts and the jurisdiction of the
CTA shall be appellate);
2. In tax collection cases involving final and
executory assessments for taxes, fees,
charges and penalties where the principal
amount of taxes and fees, exclusive of
charges and penalties claimed is less
than P1M tried by the proper MTC, MeTC
and RTC.
Exclusive Appellate Jurisdiction
1. In criminal offenses
a. Over appeals from the judgment,
resolutions or orders of the RTC in tax
cases originally decided by them, in
their respective territorial jurisdiction,
and
b. Over petitions for review of the
judgments, resolutions or orders of
the RTC in the exercise of their
appellate jurisdiction over tax cases
originally decided by the MeTCs,
MTCs, and MCTCs in their respective
jurisdiction.
2. In tax collection cases
a. Over appeals from the judgments,
resolutions or orders of the RTC in tax

collection cases originally decided by

them in their respective territorial
jurisdiction; and
b. Over petitions for review of the
judgments, resolutions or orders of
the RTC in the exercise of their
appellate
jurisdiction
over
tax
collection cases originally decided by
the MeTCs, MTCs and MCTCs in their
respective jurisdiction.

JURISDICTION OF THE COURT OF

APPEALS
JURISDICTION OF THE COURT OF APPEALS
IN CIVIL CASES
Exclusive Original Jurisdiction in actions for
annulment of judgments of the RTC
Concurrent Original Jurisdiction
1. With SC to issue writs of certiorari,
prohibition and mandamus against the
RTC, CSC, CBAA, other quasi-judicial
agencies mentioned in Rule 43, and the
NLRC (however, this should be filed first
with the CA as per St. Martin Funeral
Home case), and writ of kalikasan.
2. With the SC and RTC to issue writs of
certiorari, prohibition and mandamus
against lower courts and bodies and writs
of quo warranto, habeas corpus, whether
or not in aid of its appellate jurisdiction,
and writ of continuing mandamus on
environmental cases.
3. With SC, RTC and Sandiganbayan for
petitions for writs of amparo and habeas
data where the action involves public
data or government office
Exclusive Appellate Jurisdiction
1. By way of ordinary appeal from the RTC
and the Family Courts.
2. By way of petition for review from the RTC
rendered by the RTC in the exercise of its
appellate jurisdiction.
3. By way of petition for review from the
decisions, resolutions, orders or awards of
the CSC, CBAA and other bodies
mentioned in Rule 43 and of the Office of
the
Ombudsman
in
administrative
disciplinary cases.
4. Over decisions of MTCs in cadastral or
land registration cases pursuant to its
delegated jurisdiction; this is because
decisions of MTCs in these cases are
appealable in the same manner as
decisions of RTCs.

JURISDICTION OF THE SUPREME

COURT

JURISDICTION OF THE SUPREME COURT IN

CIVIL CASES
Exclusive Original Jurisdiction in petitions for
certiorari, prohibition and mandamus against the
CA, COMELEC, COA, CTA, Sandiganbayan
Concurrent Original Jurisdiction
1. With Court of Appeals in petitions for
certiorari, prohibition and mandamus
against the RTC, CSC, Central Board of
Assessment Appeals, NLRC, Quasi-judicial
agencies, and writ of kalikasan, all subject
to the doctrine of hierarchy of courts.
2. With the CA and RTC in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies and in
petitions for quo warranto, and writs of
habeas corpus, all subject to the doctrine
of hierarchy of courts.
3. With CA, RTC and Sandiganbayan for
petitions for writs of amparo and habeas
data
4. Concurrent original jurisdiction with the
RTC in cases affecting ambassadors,
public ministers and consuls.
Appellate Jurisdiction
1. By way of petition for review on certiorari
(appeal by certiorari under Rule 45)
against CA, Sandiganbayan, RTC on pure
questions of law and CTA in its decisions
rendered en banc.
2. In cases involving the constitutionality or
validity of a law or treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty,
jurisdiction of a lower court; and
3. All cases in which the jurisdiction of any
court is in issue;
4. All cases in which an error or question of
law is involved
5. The SC may resolve factual issues in
certain exceptional circumstances (Josefa
v. Zhandong, 2003)
a. The conclusion is grounded on
speculations/ surmises /conjectures
b. The
inference
is
manifestly
mistaken/absurd/impossible;
c. There is grave abuse of discretion;
d. The judgment is based on a
misapprehension of facts;
e. The findings of fact are conflicting;
f. There is no citation of specific
evidence on which the factual findings
are based;
g. The finding of absence of facts is
contradicted by the presence of
evidence on record;
h. The findings of the CA are contrary to
those of the trial court;
i. The CA manifestly overlooked certain
relevant and undisputed facts that, if

properly considered, would justify a

different conclusion;
j. The findings of the CA are beyond the
issues of the case;
k. Such findings are contrary to the
admissions of both parties.

Where there are several claims or causes of

actions between the same or different parties,
embodied in the same complaint, the amount
of the demand shall be the totality of the
claims in all the claims of action, irrespective
of whether the causes of action arose out of the
same or different transactions (Sec. 33[1], BP
129).

TOTALITY RULE

COMMENCEMENT
OF ACTIONS TO
TRIAL
ACTIONS
ACTIONS IN GENERAL: An ordinary suit in a
court of justice by which one party prosecutes
another for the enforcement/ protection of a
right or the prevention/redress of a wrong
[Santos v. Vda. De Caparas, (1959)]
An action is a formal demand of ones legal
rights in a court of justice in the manner
prescribed by the court or by the law.
Determinative fact which converts a claim into
an action or suit is the filing of the same with a
court of justice. (Herrera)
Action v. Cause of Action
CAUSE OF ACTION
A cause of action is the
basis of the action filed
[Rule 2, Sec.1]
Fact or combination of
facts which affords a
party a right to judicial
interference in his
behalf. [Into v. Valle
(2005)]

ACTION
Ordinary suit in a court
of justice, by which one
party prosecutes
another for the
enforcement or
protection of a right, or
the prosecution or
redress of a wrong

Kinds of Action
1. Civil or Criminal
a. Civil one by which a party sues
another for the enforcement or
protection of a right, or the prevention
or redress of a wrong
b. Criminal one by which the State
prosecutes a person for an act or
omission punishable by law
2. Ordinary or Special both are governed
by the rules of ordinary civil actions,

subject to the specific rules prescribed for

a special civil action
a. Special
b. Ordinary may be classified as:
(1) As to place
(a) Transitory action founded on
privity of contract between
parties; brought in the place
where the party resides
(b) Local action founded on privity
of estate only and there is no
privity of contract; brought in a
particular place
(2) As to object or against which the
action is directed, actions may be
classified as:
(a) In personam;
(b) In rem; or
(c) Quasi in rem
(3) As to cause or foundation
(a) Real, or
(b) Personal
ORDINARY CIVIL ACTIONS: An ordinary civil
action is one that is governed by the rules for
ordinary civil actions [Rule 1, Sec. 3(a) par 2]
SPECIAL CIVIL ACTIONS: A special civil action
is one that is subject to the specific rules
prescribed for a special civil action; it is also
governed by the rules for ordinary civil actions
[Rule 1, Sec. 3(a) par 2]
CRIMINAL ACTIONS: A criminal action is one by
which the State prosecutes a person for an act or
omission punishable by law. [Rule 1, Sec. 3(b)]
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
A civil action is one by which a party sues
another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
[Rule 1, Sec. 3(a) par 1]
A special proceeding is a remedy by which a
party seeks to establish a status, a right, or a
particular fact. [Rule 1, Sec. 3 (c)]
Action

Special Proceeding

As to Parties
Involves 2 or more
Involves at least 1
parties
party or 2 or more

parties in proper
cases
As to cause of action
Involves a right and a
May involve a right,
violation of such right
but there need not
by the defendant
be a violation of this
which causes some
right
damage/prejudice
upon the plaintiff
As to formalities
Requires the
Requires no such
application of legal
formalities, as it
remedies in
may be granted
accordance with the
upon application
prescribed rules
As to governing rules
Ordinary rules of
Special rules of
procedure
procedure
As to appeal from an interlocutory
Order
Cannot be directly and
immediately appealed
Can be immediately
to the appellate court
and directly
until after final
appealed to the
judgment on the
appellate court
merits
PERSONAL ACTIONS AND REAL ACTIONS
Real Actions: Actions affecting title to or
possession of real property, or interest therein.
[Rule 4, Sec. 1 par 1]
Personal Actions: All other actions are personal
actions. [Rule 4, Sec.2]
Importance of Distinction: For purposes of
determining venue of the action (Riano)
1. Real actions shall be commenced and
tried in the proper court which has
jurisdiction over the area wherein the real
property involved, or a portion thereof, is
situated. [Rule 4, Sec.1]
2. Personal actions may be commenced and
tried where the plaintiff or any of the
principal plaintiffs resides, or where the
defendant or any of the principal
defendants resides, or in the case of a
non-resident defendant, where he may be
found, at the election of the plaintiff.
[Rule 4, Sec.2]
NOTE: Not every action involving a real
property is a real action because the realty
may only be incidental to the subject matter
of the suit. To be a real action, it is not
enough that the action must deal with real
property. It is important that the matter in
litigation must also involve any of the
following
issues:
title
to,
ownership,
possession,
paritition,
foreclosure
or
mortgage or any interest in real property.
(Riano)

Real action

Ownership or
possession of
real property
is involved

Founded on
privity of real
estate
Filed in the
court where
the property
(or any
portion
thereof) is
situated

Personal
action
Personal
property is
sought to be
recovered or
damages for
breach of
Contract or
the
enforcement
of a contract
are sought
Founded on
privity of
contract
Filed in the
court where
the plaintiff or
any of the
defendants
resides, at the
plaintiffs
option

Mixed action

Both real and

personal
properties
are involved

Founded on
both

The rules on
venue of real
actions
govern

LOCAL AND TRANSITORY ACTIONS

Local action
One that could be
instituted in one
specific place [Manila
Railroad v. AttorneyGeneral (1911)]

Transitory action
One that could be
prosecuted in any one
of several places
[Manila Railroad v.
Attorney-General
(1911)]
Its venue depends
upon the residence of
the plaintiff or the
defendant at the
option of the plaintiff
(Riano)

Venue depends upon

the location of the
property involved in
the litigation (Riano)
E.g. Action to recover
real property

E.g. Action to recover

sum of money

If action is founded on privity of contract

between parties, then the action is transitory
But if there is no privity of contract and the
action is founded on privity of estate only, such
as a covenant that runs with the land in the
hands of remote grantees, then the action is
local and must be brought in the place where the
land lies
ACTIONS IN REM,
QUASI IN REM

IN

PERSONAM,

ACTION IN
REM

ACTION IN
PERSONAM

Directed
against the

Directed
against

AND

ACTION
QUASI IN
REM
Directed
against

thing itself

particular
persons

Jurisdiction
over the
person of the
defendant not
required

Jurisdiction over
the person of
defendant
required

Proceeding to
determine the
state or
condition of a
thing

Judgment is
binding on the
whole world
E.g. Probate
proceeding,

Action to
impose a
responsibility or
liability upon a
person directly

Judgment is
binging only
upon impleaded
parties or their
successors in
interest
E.g. Specific
performance,

particular
persons
Jurisdiction
over the
person of
defendant is
not required
as long as
jurisdiction
over the res
is required
Proceeding
to subject
the interest
of a named
defendant
over a
particular
property to
an
obligation or
lien
burdening it
Judgment
binging
upon
particular
persons
E.g. Action
for partition;

CAUSE OF ACTION
CAUSE OF ACTION: A cause of action is the act
or omission by which a party violates a right of
another. [Rule 2, Sec.2]
Every ordinary civil action must be based on a
cause of action [Rule 2, Sec. 1]
A cause of action stems from the sources of
obligations under Art. 1156, CC - Law, Contract,
Quasi-contract, Acts and omissions punishable
by law and Quasi-delict. [Sagrada Orden etc v.
National Coconut Corporation (1952)]
Elements of a Cause of Action:
1. Plaintiffs legal right;
2. Defendants correlative obligation to
respect plaintiffs right;
3. Defendants act/omission in violation of
plaintiffs right [Ma-ao Sugar Central v.
Barrios (1947)]
RIGHT OF ACTION vs. CAUSE OF ACTION
(Regalado)
Right of action

Cause of action

cadastral
proceeding

action for
breach of
contract

foreclosure
of real
estate
mortgage

The question of whether the trial court has

jurisdiction depends on the nature of the action,
i.e., whether the action is in personam, in rem,
or quasi in rem. [Riano citing Biaco v. Philippine
Countryside Rural Bank (2007)]
The distinction is important to determine
whether or not jurisdiction over the person of the
defendant is required and consequently to
determine the type of summons to be employed.
[Riano citing Gomez v. Court of Appeals (2004)]
INDEPENDENT CIVIL ACTIONS
Rule 111, Sec 3:
When civil action may
proceeded independently. In the cases
provided for in Articles 32, 33, 34 and 2176 of
the Civil Code of the Philippines, the
independent civil action may be brought by the
offended party. It shall proceed independently of
the criminal action and shall require only a
preponderance of evidence. In no case, however,
may the offended party recover damages twice
for the same act or omission charged in the
criminal action.
The remedial right or
right to relief granted
by law to a party to
institute an action
against a person who
has committed a
delict or wrong
against him
Right to sue as a
consequence of the
delict
Whether such acts
give him right of
action determined by
substantive law

The delict or wrongful

act or omission
committed by the
defendant in violation
of the primary rights
of the plaintiff
The delict or wrong
Determined by the
averments in the
pleading regarding
the acts committed
by the defendant

There can be no right of action without a cause

of action being first established [Regalado citing
Espaol v. The Chairman of PVA (1985)]
FAILURE TO STATE CAUSE OF ACTION
There is a failure to state a cause of action if the
pleading asserting the claim states no cause of
action. This is a ground for a motion to dismiss.
[Rule 16, Sec.1(g)]
It is submitted that the failure to state a cause of
action does not mean that the plaintiff has no
cause of action. It only means that the
plaintiffs allegations are insufficient for the court

to know that the rights of the plaintiff were

violated by the defendant. [Riano]
There is a failure to state a cause of action if
allegations in the complaint taken together, do
not completely spell out the elements of a
particular cause of action. [Riano]
A failure to state a cause of action is not the
same as an absence or a lack of cause of action.
The former refers to an insufficiency in the
allegations of the complaint while the latter
refers to the failure to prove or to establish by
evidence ones stated cause of action. [Riano]

order that
dismissed.

the

complaint

may

be

Ratio: A party may not institute more than one

suit for a single cause of action. [Rule 2, Sec. 3]
1. To prevent repeated litigation between
the same parties in regard to the same
subject or controversy;
2. To
protect
the
defendant
from
unnecessary vexation. Nemo debet
vexare pro una et eadem causa (No man
shall be twice vexed for one and the
same cause);
3. To avoid the costs and expenses incident
to numerous suits. [City of Bacolod v. SM
Brewery (1969)]

TEST OF THE SUFFICIENCY OF A CAUSE OF

ACTION
Whether or not admitting the facts alleged, the
court could render a valid verdict in accordance
with the prayer of the complaint [Santos v. de
Leo (2005)]
SPLITTING A SINGLE CAUSE OF ACTION;
EFFECTS
Definition: The act of instituting two or more
suits on the basis of the same cause of action.
[Rule 2, Sec.4]
The act of dividing a single or indivisible cause of
action into several parts or claims and bringing
several actions thereon. (Regalado)
The test of singleness of cause of action lies in
the singleness of the delict or wrong violating
the rights of one person.
For a single cause of action or violation of a
right, the plaintiff may be entitled to several
reliefs. It is the filing of separate complaints for
these several reliefs that constitutes splitting up
of the cause of action which is proscribed by
Rule 2, Sec. 3 and 4. [City of Bacolod v. SM
Brewery (1969)]
Effects:
1. The filing of one or a judgment upon the
merits in any one is available as a ground
for the dismissal of the others. [Rule 2,
Sec.4]
2. Filing of the 1st complaint may be
pleaded in abatement of the 2nd
complaint, on the ground of litis
pendentia; or
3. A judgment upon the merits in any of the
complaints is available as ground for
dismissal of the others based on res
judicata.
4. A Motion to Dismiss under Rule 16 (litis
pendentia or res judicata) may be filed in

JOINDER OF CAUSES OF ACTION

It is the assertion of as many causes of action as
a party may have against another in one
pleading alone. It is also the process of uniting 2
or more demands or rights of action in one
action. [Riano citing Rule 2, Sec. 5 and CJS]
By a joinder of actions, or more properly, a
joinder of causes of action is meant the uniting
of two or more demands or rights of action in
one action, the statement of more than one
cause of action in a declaration [Ada v. Baylon
(2012)]
SPLITTING OF CAUSES
There is a single
cause of action
Prohibited
It causes multiplicity
of suits and double
vexation on part of
defendant

JOINDER OF CAUSES
Contemplates several
causes of action
Encouraged
It
minimizes
multiplicity of suits
and inconvenience on
the parties

Ratio: To avoid a multiplicity of suits and to

expedite disposition of litigation at minimum
cost [Ada v. Baylon (2012)]
The rule however is purely permissive as the
plaintiff can always file separate actions for each
cause of action. [Baldovi v. Sarte, (1917)]
Joinder shall not include special civil actions
governed by special rules. [Ada v. Baylon (2012)]
Requisites [Rule 2, Sec. 5]:
1. The party joining the causes of action
must comply with the rules on joinder of
parties;
2. The joinder shall not include special civil
actions or actions governed by special
rules;
3. Where causes of action are between the
same parties but pertain to different
venues/jurisdictions, the joinder may be

allowed in the RTC provided one of the

causes of action are within the RTCs
jurisdiction and the venue lies therein;
4. TOTALITY RULE - Where the claims in all
the causes of action are principally for
recovery of money, the aggregate
amount claimed shall be the test of
jurisdiction.

only when the court trying the case has

jurisdiction over all of the causes of action
therein notwithstanding the misjoinder of the
same. This is because if the court has no
jurisdiction to try the misjoined action, then the
same must be severed and if not so severed, any
adjudication rendered by the court with respect
to the same would be a nullity. [Ada v. Baylon
(2012)]

MISJOINDER OF CAUSES OF ACTION (Rule 2,

Sec. 6)

There is no sanction against non-joinder of

separate causes of action since a plaintiff needs
only a single cause of action to maintain an
action (Regalado).

Misjoinder of causes of action is not a ground for

dismissal of an action. A misjoined cause of
action may, on motion or motu propio, be
severed
and
proceeded
with
separately.
However, if there is no objection to the improper
joinder or the court did not motu proprio direct a
severance, then there exists no bar in the
simultaneous adjudication of all the erroneously
joined causes of action. However, this rule exists

PARTIES TO CIVIL ACTIONS

REQUIREMENTS FOR A PERSON TO BE A
PARTY TO A CIVIL ACTION:
For a Person to be a Party to a Civil Action:
1. He must be a natural or juridical person
or an entity authorized by law
2. He must have legal capacity to sue; and
3. He must be the real party-in-interest
A party must be a natural or juridical person or
an entity authorized by law
- Only natural and juridical persons may be
parties
- See Art. 44, NC
- Entities authorized by law may also be
parties, e.g.:
a. Partnership has a juridical personality
separate and distinct from that of each
of the partners, even in case of failure
to comply with the requirements in Art
1772 NCC (Art. 1768 NCC)
b. Labor organizations organized in
accordance with law may file a
complaint or petition in court in
representation of its members (Art 242
LC)
c. As to properties of the Roman Catholic
Church, the Archbishop or diocese to
which they belong may be a party
(Ponce v. Roman Catholic)
Legal Capacity to Sue
Legal capacity to sue or be sued means that the
party is free from general disability (e.g. minority
or insanity) or, in case of juridical entities, that it
must be duly registered in accordance with law
Under Sec. 4, Rule 8, legal capacity to sue must
be averred

In case of misjoinder of causes of action, the

cause of action erroneously joined need only be
separated and dismissed, without affecting the
action with regard to other causes of action
(Regalado).
Lack of legal capacity
to sue
The plaintiffs general
disability to sue, such
as on account of
minority, insanity,
incompetence, lack of
juridical personality or
any other general
disqualifications
It can be a ground for
a MTD [Rule 16 (1)
(d)]

Lack of legal
personality to sue

The plaintiff is not the

real party in interest

It can be used as
ground for a MTD
based on the failure of
complaint to state a
cause of action. [Rule
16 (1) (g)]

Real- Party in Interest

Interest within the meaning of the Rules of Court
means material interest or an interest in issue to
be affected by the decree or judgment of the
case, as distinguished from mere curiosity about
the question involved. [Ang v. Sps. Ang (2012)]
PARTIES TO A CIVIL ACTION
Plaintiff one having an interest in the matter of
the action or in obtaining the relief demanded.
The term may either refer to the claiming party,
counter-claimant, cross-claimant, or third-party
plaintiff
Defendant one claiming an interest in the
controversy or the subject thereof adverse to the
plaintiff. Term may also include:
1. An unwilling co-plaintiff or one who
should be joined as plaintiff but refuses to
give his consent thereto (Sec. 10, Rule 3)
2. The
original
plaintiff
becoming
a
defendant to the original counterclaim of
defendant; and

3. One
necessary
to
a
complete
determination or settlement of the
questions involved therein
REAL PARTIES IN INTEREST
Who is a real party-in-interest: (Rule 3, Sec. 2)
1. The
party
who
stands
to
be
benefited/injured by the judgment in the
suit;
2. The party entitled to the avails of the suit.
Rules:
1. Every action must be prosecuted or
defended in the name of the real party in
interest. [Rule 3, Sec.2]
2. The partys interest must be direct,
substantial and material [Sumalo v. Litton
(2006)].
3. Husband and wife shall sue and be sued
jointly, except as provided by law [Rule 3,
Sec. 4]
4. A minor or a person alleged to be
incompetent may sue or be sued, with
the assistance of his father, mother,
guardian, or if he has none, a guardian ad
litem. [Rule 3, Sec. 5]
5. Minors (represented by their parents) are
real parties in interest under the principle
of intergenerational responsibility. [Oposa
v. Factoran (1993)]
6. If
a
party
becomes
incompetent/
incapacitated during the pendency of the
action, the action survives and may be
continued by/against the incompetent/
incapacitated assisted by his legal
guardian or guardian ad litem [Rule 3,
Sec. 18]
Failure to Name Real Party in Interest
a. Effect: a motion to dismiss may be filed
on the ground that the complaint states
no cause of action
(a) If a complaint is filed for and in behalf
of a plaintiff who is not authorized to
do so, the complaint is not deemed
filed
b. Remedies:
(1) Amendment of pleadings (Alonso v.
Villamor, 1910); or
(2) Complaint may be deemed amended
to include the real party-in-interest
(Balquidra v. CFI Capiz, 1977)
c. Exception: A real litigant may be held
bound as a party even if not formally
impleaded provided he had his day in
court (Albert v. University Publishing Co.,
1958)

A party who has such an interest in the

controversy or subject matter that a final
adjudication cannot be made, in his absence,
without injuring or affecting that interest. [Riano]
The joinder of a party becomes compulsory when
the one involved is an indispensable party.
[Riano citing Rule 3, Sec.7]
A person is NOT an indispensable party if his
interest in the controversy or subject matter is
separable from the interest of the other parties,
so that it will not necessarily be directly or
injuriously affected by a decree which does not
complrete justice between them. [Riano]
REPRESENTATIVE AS PARTIES
Who: Those acting in fiduciary capacity, such as
a trustee/guardian/executor/administrator or a
party authorized by law or ROC. (Rule 3, Sec. 3)
The beneficiary shall be included in the title of
the case and shall be deemed to be the real
party in interest.
General Rule: An agent acting in his own name
and for the benefit of an undisclosed principal
may sue or be sued without joining the principal.
Exception: If the contract involves things
belonging to the principal. [Art. 1883, CC]
NECESSARY PARTIES
Who: One who is not indispensable but ought to
be joined as a party if complete relief is to be
accorded as to those already parties, or for a
complete determination or settlement of the
claim subject of the action (Rule 3, Sec. 8)
Indispensable parties v. Necessary parties
Indispensable parties
[Rule 3, Sec. 7]
Must be joined under
any and all
conditions, his
presence being a
sine qua non for the
exercise of judicial
power
No valid judgment if
indispensable party
is not joined.

INDISPENSABLE PARTIES
Who: An indispensable party is a real party-ininterest without whom no final determination can
be had of an action. [Rule 3, Sec.7]

They are those with

such an interest in

Necessary parties
[Rule 3, Sec. 8]
Should be joined
whenever possible; the
action can proceed
even in their absence
because their interest
is separable from that
of the indispensable
party
The case may be
determined in court
but the judgment
therein will not resolve
the entire controversy
if a necessary party is
not joined
They are those whose
presence is necessary

the controversy that

a final decree would
necessarily affect
their rights so that
the court cannot
proceed without their
presence.

to adjudicate the
whole controversy but
whose interests are so
far separable that a
final decree can be
made in their absence
without affecting
them.

Whenever in any pleading in which a claim is

asserted a necessary party is not joined, the
pleader is under obligation to:
1. Set forth the name of the necessary
party, if known, and
2. State the reason why the necessary party
is omitted. [Riano citing Rule 3, Sec. 9 par
1]
The non-inclusion of a necessary party does not
prevent the court from proceeding in the action,
and the judgment rendered therein shall be
without prejudice to the rights of such necessary
party [Rule 3, Sec. 9 par 3]
INDIGENT PARTIES

Compulsory Joinder of Indispensable Parties

(Rule 3, Sec. 7) - Parties in interest without
whom no final determination can be had of an
action shall be joined either as plaintiffs or
defendants
Joinder
of
mandatory

INDISPENSABLE

PARTIES

are

Effect of Absence of Indispensable Parties:

1. It is the duty of the court to stop the trial
and to order the inclusion of such party
(Cortez v. Avila). Such an order is
unavoidable
2. Absence of an indispensable party
renders all subsequent actuations of the
court null and void, for want of authority
to act, not only as to the present parties
but even as to those present
Permissive Joinder (Rule 3, Sec. 6) - Parties can
be joined, as plaintiffs or defendants, in one
single complaint or may themselves maintain or
be sued in separate suits.

NOTE: The amount of docket and other

lawful fees is a lien on any judgment
rendered in favor of indigent party, unless
court otherwise provides.

Requisites of Permissive Joinder:

1. Right to relief arises out of the same
transaction or series of transactions
a. Transaction - not only a stipulation or
agreement but any event resulting in
wrong, without regard to whether the
wrong has been done by violence,
neglect, or breach of contract
b. Series of transaction transactions
connected with the same subject of
the action
2. There is a question of law or fact common
to all the plaintiffs or defendants
3. Such joinder is not otherwise proscribed
by the rules on jurisdiction and venue

Adverse party may contest: Authority may be

contested by the adverse party at any time
before judgment is rendered
- If the court determines after hearing that
the party declared indigent has sufficient
income or property, the proper docket
and other lawful fees shall be assessed
and collected by the clerk of court

Distinguished from Joinder of Causes of Action

- In joinder of causes of action, it is enough
if the cause of action arises out of the
same contract
- Unlike permissive joinder of parties, in
joinder of causes of action, there is no
need for a common question of fact or
law

ALTERNATIVE DEFENDANTS

MISJOINDER AND NON-JOINDER OF PARTIES

Where the plaintiff is uncertain against whom of

several persons he is entitled to relief, he may
join any or all of them in the alternative,
although a right to relief against one may be
inconsistent with a right to relief against the
other. (Rule 3, Sec. 13)

A party is misjoined when he is made a party to

the action although he should not be impleaded.

Who: An indigent is one who has no money or

property sufficient and available for food,
shelter, and basic necessities (Rule 3, Sec. 21)
Authority to Litigate as Indigent Party
- May be granted upon an ex parte
application and hearing
- It shall include an exemption from
payment of docket and other lawful fees
(e.g. fees for TSN)

COMPULSORY AND PERMISSIVE JOINDER OF

PARTIES

A party is not joined when he is supposed to be

joined but is not impleaded in the action. (Riano)
Effect:
1. Neither misjoinder nor non-joinder of
parties is a ground for dismissal of an
action. [Rule 3, Sec. 11]

a. Non-joinder of an indispensable party

is not a ground for outright dismissal.
Reasonable opportunity must be given
for his inclusion by amendment of the
complaint [Cortez v Avila (1957)].
b. In case of non-joinder of a necessary
party, if the court should find the
reason
for
such
omission
unmeritorious, it may order the
inclusion of such omitted necessary
party
2. Parties may be dropped or added by
order of the court on motion of any party
or on its own initiative at any stage of the
action and on such terms as are just.
[Rule 3, Sec.11]
Objections to defects in parties: Objections to
defects in parties should be made at the earliest
opportunity.
- The moment such defect becomes
apparent, a motion to strike the names of
the parties must be made.
- Objections to misjoinder cannot be raised
for the first time on appeal [Lapanday
Agricultural & Development Corporation
v. Estita (2005)]
CLASS SUIT
Requisites: (Rule 3, Sec. 12)
1. Subject matter of the controversy is one
of common/general interest to many
persons;
2. The persons are so numerous that it is
impracticable to join them all as parties
(i.e. impracticable to bring them all
before the court);
3. Parties bringing the class suit are
sufficiently numerous and representative
of the class and can fully protect the
interests of all concerned;
4. The representative sues/defends for the
benefit of all.
Any party in interest shall have the right to
intervene to protect his individual interest. [Rule
3, Sec. 12]
If a class suit is improperly brought, the action is
subject to dismissal regardless of the cause of
action [Rule 16, Sec 1 (d)].
A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]
There is no class suit in an action filed by
associations of sugar planters to recover
damages in behalf of individual sugar planters
for an allegedly libelous article in an
international magazine. There is no common or

general interest in reputation of a specific

individual. Each of the sugar planters has a
separate and distinct reputation in the
community not shared by the others. [Riano
citing Newsweek, Inc. v. Intermediate Appellate
court (1986)]
A class suit does not require a commonality of
interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation. [Riano citing Mathay v. Consolidated
Bank &Trust Company (1974)]
Class Suit
There is a single
cause of action
pertaining to
numerous persons.

Permissive Joinder of
Parties
There are multiple
causes of action
separately belonging
to several persons.

Class Suit

Derivative Suit

When the subject

matter of the
controversy is one of
common or general
interest to many
persons, and the
parties are so
numerous that it is
impracticable to bring
them all before the
court, one or more
may sue or defend for
the benefit of all.
[Rule 3, Sec. 12]

An action brought by
minority shareholders
in the name of the
corporation to redress
wrongs committed
against it, for which
the directors refuse to
sue.
It is a remedy
designed by equity
and has been the
principal defense of
the minority
shareholders against
abuses by the
majority.
In a derivative action,
the real party in
interest is the
corporation itself, not
the shareholders who
actually instituted it
[Lim v. Lim Yu (2001))

SUITS
AGAINST
ENTITES
JURIDICAL PERSONALITY

WITHOUT

Requisites: (Rule 3, Sec. 15)

1. There are 2 or more persons not
organized as a juridical entity;
2. They enter into a transaction;
3. A wrong is committed against a 3rd
person in the course of such transaction.
Effect: Persons associated in an entity without
juridical personality may be sued under the
name by which they are generally/commonly

known, but they cannot sue under such name.

[Rule 3, Sec. 15]

to procure the appointment of an executor or

administrator for the estate.

The service of summons may be effected upon

all the defendants by serving upon any of them,
or upon the person in charge of the office or
place of business maintained under such name.
[Rule 14, Sec. 8]

The substitute defendant need not be

summoned. The order of substitution shall be
served upon the parties substituted for the court
to acquire jurisdiction over the substitute party
[Ferreria v Vda de Gonzales (1986)].

EFFECT OF DEATH OF PARTY LITIGANT

Death or separation of a party who is a public

officer [Rule 3, Sec. 17]

Survival or Death of Action

The question as to whether an action survives or
not depends on the nature of the action and the
damage sued for
1. Causes of Action that SURVIVE the
decedent
a. The wrong complained of affects
primarily and principally property and
property rights
b. Injuries to the person are merely
incidental
c. E.g. Purely personal actions like
support
3. Causes of Action which DO NOT SURVIVE
a. The injury complained of is to the
person
b. Property and property rights affected
are incidental
c. E.g. actions to recover real and
personal property or to enforce liens
thereon
Substitution of Parties: For causes of action that
survive the death of the party, there is
substitution of parties
Counsels duty:
1. Inform court within 30 days after such
death of the fact thereof;
2. Give the name and address of the legal
representatives.
NOTE: Failure to comply with this duty is a
ground for disciplinary action.
Courts duty: in case of death, the court if the
action survives, shall order, upon proper notice,
the legal representative of the deceased to
appear and to be substituted for the deceased
within a period of 30 days or within such time as
may be granted.
- If there is notice of death, court should
await
appointment
of
legal
representative; otherwise, subsequent
proceedings are void. Period of filing of
brief is suspended.
If no legal representative is named or if the one
so name shall fail to appear within the specified
period, the court may order the opposing party

Requisites:
1. Public officer is a party to an action in his
official capacity;
2. During the pendency of the action, he
either dies/resigns or otherwise ceases to
hold office;
3. It is satisfactorily shown to the court by
any party, within 30 days after the
successor takes office, that there is a
substantial need to continue/maintain the
action and
4. The successor adopts/continues (or
threatens to do so) his predecessors
action
5. The party or officer affected was given
reasonable notice of the application
therefore and accorded an opportunity to
be heard.
Action on Contractual Money Claims [Rule 3, Sec.
20]
Requisites:
1. The action must primarily be for recovery
of money/debt or interest thereon;
2. The claim arose from express/implied
contract;
3. Defendant dies before the entry of final
judgment in the court in which the action
was pending.
4. The defendants death will not result in
the dismissal of the action.
The deceased shall be substituted by his legal
representatives in the manner provided for in
Rule 3, Sec. 16, and the action will continue until
the entry of final judgment.
However, execution shall not issue in favor of the
winning plaintiff. It should be filed as a claim
against the decedents estate without need of
proving the claim.
Transfer of Interest During Pendency of Action
[Rule 3, Sec. 19]
General rule: The rule does not consider the
transferee an indispensable party. Hence, the
action may proceed without the need to implead
him.

Exception: When the substitution by or joinder of

the transferee is ordered by court.

are several plaintiffs, in which case the

remaining plaintiffs can proceed with their own
cause of action.

The case will be dismissed if the plaintiffs

interest is transferred to defendant unless there

VENUE
Venue is the place, or the geographical area
where an action is to be filed and tried. In civil
cases, it relates only to the place of the suit and
not to the jurisdiction of the court. [Riano citing
Manila Railroad Company v. Attorney General
(1911)]
Choosing the venue of an action is not left to a
plaintiffs caprice; the matter is regulated by the
Rules of Court. [Ang v. Sps. Ang (2012)]
VENUE VERSUS JURISDICTION
Venue
Place where the action
is instituted

May be waived

Procedural
May be changed by
the written agreement
of the parties
Establishes a relation
between plaintiff and
defendant, or
petitioner and
respondent
Not a ground for a
motu propio dismissal
(except in cases of
summary procedure;
Rule 4, Rule on
Summary Procedure)

Jurisdiction
Power of the court to
hear and decide a
case
Jurisdiction over the
subject matter and
over the nature of the
action is conferred by
law and cannot-be
waived
Substantive
Is fixed by law and
cannot be the subject
of the agreement of
the parties
Establishes a relation
between the court
and the subject
matter
Lack of jurisdiction
over the subject
matter is a ground for
a motu proprio
dismissal.

VENUE OF REAL ACTIONS

1. Shall be commenced and tried in the
proper court which has jurisdiction over
the area wherein the real property
involved, or a portion thereof is situated.
[Rule 4, Sec. 1(1)]
2. Forcible entry and detainer actions shall
be commenced and tried in the municipal
court of the municipality or city wherein
the real property involved, or a portion
thereof, is situated. [Rule 4, Sec. 1(2)]

3. If the property is located at the

boundaries of 2 places, file the case in
either place (at the plaintiffs option).
4. If the case involves 2 properties located
in 2 different places:
a. If the properties are the object of the
same transaction, file it in any of the
2 places;
b. If they are the objects of 2 distinct
transactions, separate actions should
be filed in each place unless properly
joined.
VENUE OF PERSONAL ACTIONS
At the plaintiffs election: [Rule 4, Sec. 2]
1. Where the plaintiff or any of the principal
plaintiffs resides;
2. Where the defendant or any of the
principal defendants resides;
3. In case of a non-resident-defendant,
where he may be found.
NOTE: The plaintiff or the defendant must be
residents of the place where the action has been
instituted at the time the action is commenced.
[Ang v. Sps. Ang (2012)]
The residence of a person is his personal, actual
or physical habitation or his actual residence or
place of abode, which may not necessarily be his
legal residence or domicile provided he resides
therein
with
continuity
and
consistency.
[Boleyley v. Villanueva]
A corporation cannot be allowed to file personal
actions in a place other than its principal place of
business unless such place is aso the residence
of a co-plaintiff or defendant. [Clavecilla Radio v.
Antillon]
VENUE
OF
ACTIONS
RESIDENTS (Rule 5, Sec. 3)

AGAINST

NON-

Non-resident FOUND in the Philippines:

1. For personal actions Where the plaintiff
resides
2. For real actions Where the property is
located
NOTE: The alternative venues granted to
plaintiffs in Sec. 2, Rule 4 is not available
to a non-resident

Non-resident NOT FOUND in the Philippines: An

action may be filed ONLY when the case
involves:
1. Personal status of plaintiff File at the
place where plaintiff resides
2. Any property of said defendant located in
the Philippines File at the place where
the property (or any portion thereof) is
situated/found
NOTE: When there is more than one defendant
or plaintiff, the residences of the PRINCIPAL
parties should be the basis for determining
proper venue (Herrera)
WHEN THE RULES ON VENUE DO NOT APPLY
(Rule 4, Sec. 4)
Rules on Venue DO NOT apply:
1. If a specific rule/law provides otherwise
(e.g. action for damages arising from
libel);
2. If there is a stipulation as to venue which
is permitted if the parties have validly
agreed
(1) in writing
(2) before the filing of the action
(3) on the exclusive venue
EFFECTS OF STIPULATIONS ON VENUE
To be binding, the parties must have agreed on
the exclusive nature of the venue of any
prospective
action
between
them.
The
agreement of parties must be restrictive and not
permissive. [Regalado]
In the absence of qualifying restrictive words
(e.g. only/solely/exclusively in such court),
venue stipulation is merely permissive; that is,
the stipulated venue is in addition to the venue
provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
bringing a case in other venues. The parties

must be able to show that such stipulation is

EXCLUSIVE. In the absence of qualifying or
restrictive words, the stipulation should be
deemed as merely an agreement on an
additional forum, not as limiting venue to the
specified place. [Riano citing Spouse Lantin v.
Lantion, (2006)]
The court may declare agreements on venue as
contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres
(1978)].
OTHER RULES ON VENUE
Improper Venue - The Court may not motu
propio dismiss an action on the ground of
improper venue. [Dacoycoy v. IAC (1991)]
EXCEPTION: In summary procedures
Change of Venue - The SC has the power to
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, 1987 Constitution]
Waiver of Venue - Until and unless the defendant
objects to the venue in a motion to dismiss prior
to a responsive pleading, the venue cannot truly
be said to have been improperly laid since for all
intents and purposes, the venue though
technically wrong may yet be considered
acceptable to the parties for whose convenience
the rules on venue had been devised. Although
venue is mandatory, it is waivable. [Diaz v.
Adiong (1993)]
Means of waiving venue:
1. Where parties validly agreed in writing
before the filing of the action on the
exclusive venue thereof [Rule 4, Sec 4
(b)]; and
2. Failure to raise improper venue as
affirmative defense or
in motion to
dismiss

PLEADINGS
May be initiatory

DEFINITION
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate judgment
[Rule 6, Sec. 1]

Always filed before

judgment
Only 9 kinds of
pleading are allowed
by the rules

Pleading v. Motion
PLEADING
Purpose: to submit a
claim or defense for
appropriate judgment

MOTION
Purpose: to apply for
an order not included
in the judgment

Must be written

Cannot be initiatory as
they are always made
in a case already filed
in court
May be filed even after
judgment
Any application for
relief not by a pleading
is a motion
May be oral when
made in open court or
in the course of a
hearing or trial

KINDS OF PLEADINGS
Kinds of Pleadings Allowed (Rule 6, Sec. 2)
1. Complaint
2. Answer
3. Counterclaim
4. Cross-claim
5. 3rd-party Complaint
6. Complaint-in-intervention
7. Reply
COMPLAINT(Rule 6, Sec. 3)
Definition - The pleading alleging the plaintiffs
cause/s of action. It should contain a concise
statement of the ultimate facts constituting the
plaintiffs cause/s of action, not evidentiary facts
or legal conclusions.
Contents Statement of ultimate facts on which
the plaintiff relies for his claim:
1. It must be in a methodical and logical
form
2. Plain, concise, and direct
3. Statement of mere evidentiary facts are
omitted (Rule 8, Sec. 1)
Function
1. Its function is to inform the defendant
clearly and definitely of claims made
against him so that he may be prepared
to meet the issues at trial.
2. It should inform the defendant of all
material facts on which the plaintiff relies
to support his demand.
3. It should state the theory of a cause of
action which forms the bases of plaintiffs
claim of liability. [Tantuico v. Republic
(1991)]
Ultimate Facts - Essential facts constituting the
plaintiffs cause of action. A fact is essential if it
cannot be stricken out without leaving the
statement of the cause of action insufficient.
[Remitere v. Montinola (1966)]
Non-Ultimate Facts:
1. Evidentiary or immaterial facts;
2. Legal
conclusions,
conclusions
or
inferences of facts from facts not stated,
or incorrect inferences or conclusions
from facts stated;
3. Conclusions of law alleged in the
complaint are not binding on the court.
4. The details of probative matter or
particulars of evidence, statements of
law, inferences and arguments.
Test of Sufficiency of the Facts alleged in the
Complaint: WON upon the averment of facts, a
valid judgment may be properly rendered
[Pamintan v. Costales (1914)].

ANSWER (Rule 6, Sec. 4)

Definition - The pleading where the defendant
sets forth his affirmative/negative defenses. It
may also be the response to a counterclaim or a
cross-claim.
Two kinds of Defenses that may be set forth in
the Answer (Rule 6, Sec. 5)
1. Negative Defenses - Specific denials of
the material facts alleged in the pleading
of the claimant essential to his cause of
action.
A denial is not specific just because it
is so qualified (Agton v. CA)
A general denial will be deemed an
admission of the averments in the
complaint; it has to be specific
Modes of Denial (Sec. 10, Rule 8)
a. Defendant must specify each
material allegation of fact the
truth of which he does not admit
b. If pleader decides to deny only a
part or a qualification of an
averment, he shall specify so
much of it as true and deny the
remainder
c. If pleader is without knowledge or
information sufficient to form a
belief as to the truth of a material
averment, he shall so state
2. Affirmative Defenses - Allegations of new
matters which, while hypothetically
admitting the material allegations in the
claimants pleading, would nevertheless
prevent/bar recovery by him. It includes
fraud, prescription, release, payment and
any other matter by way of confession
and avoidance.
Negative Pregnant - Denial pregnant with an
admission. It is a denial pregnant with the
admission of the substantial facts in the pleading
responded to which are not squarely denied. It is
in effect an admission of the averment it is
directed to. [Philamgen v. Sweet Lines (1993)]
While it is a denial in the form its substance
actually has the effect of an admission because
of a too literal denial of the allegation sough to
be denied. This arises when the pleader merely
repeats the allegations in a negative form.
Insufficient denial or denial amounting to
admissions:
1. General denial; and
2. Denial in the form of a negative pregnant
COUNTERCLAIM

Definition - Any claim which a defending party

may have against an opposing party.
1. A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in
the answer, it is not part of the answer.
2. Upon its filing, the same proceedings are
had as in the original complaint.
3. For this reason, it must be answered 10
days from service [Rule 11, Sec 4]

Need not be
answered; no default.

How to Raise Counterclaims

1. By including it in the Answer
a. A compulsory counterclaim or a crossclaim that a defending party has AT
THE TIME he files his answer shall be
contained therein. [Rule 11, Sec. 8]
b. Exception:
Pleadings
may
be
amended under Rule 11, Sec. 10:
(1) By leave of court;
(2) Before judgment;
(3) On the grounds of:
(4) Oversight;
(5) Inadvertence;
(6) Excusable neglect;
(7) When justice requires.
2. By filing after the Answer (Rule 11, Sec.
9)
a. Counterclaims/cross-claims
arising
AFTER the answer,
b. How done:
(1) By filing a supplemental pleading
before judgment
(2) WITH courts permission
Rules on Counterclaims
1. In an original action before the RTC, the
counterclaim
may
be
considered
compulsory regardless of the amount.
[Rule 6, Sec. 7]
2. In the case of Agustin v. Bacalan (1985),
if a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
excess is considered waived.
3. But in Calo v. Ajax (1968), the remedy
where a counterclaim is beyond the
jurisdiction of the MTC is to set off the
claims and file a separate action to
collect the balance.
Kinds of Counterclaims
Compulsory
counterclaim
One which arises out
of or is necessarily
connected with the
transaction or
occurrence -that is
the subject matter of
the opposing party's
claim.

Does not require for

its adjudication the
presence of third
parties of whom the
court cannot acquire
jurisdiction.
Barred if not set up in
the action.

Permissive
counterclaim
It does not arise out
of nor is it necessarily
connected with the
subject matter of the
opposing party's
claim.

No need for separate

docket fees

May require for its

adjudication the
presence of third
parties over whom
the court cannot
acquire jurisdiction.
Not barred even if not
set up in the action.
Must be answered,
otherwise, the
defendant can be
declared in default.
Since permissive, it
requires the payment
of docket fees (Sun
Insurance v.
Asuncion, 1989)

Compulsory Counterclaim
1. Requisites:
a. It must arise out of, or be necessarily
connected
with,
the
transaction/occurrence that is the
subject matter of the opposing party's
claim;
b. It does not require for its adjudication
the presence of 3rd parties of whom
the court cannot acquire jurisdiction;
c. It must be within the courts
jurisdiction both as to the amount and
the
nature.
[Regalado,
citing
Quintanilla v CA (1997)]
2. General Rule: A compulsory counterclaim
not set up in the answer is deemed
barred.
a. Exceptions:
(1) If it is a counterclaim which either
matured or was acquired by a
party after serving his answer. In
this case, it may be pleaded by
filing a supplemental answer or
pleading before judgment. [Rule
11, Sec. 9]
(2) When a pleader fails to set up a
counterclaim through oversight,
inadvertence,
excusable
negligence, or when justice so
requires. He may, by leave of
court, set-up the counterclaim by
amendment of the pleading (Rule
11, Sec. 10)
3. A plaintiff who fails or chooses not to
answer a compulsory counterclaim may
not be declared in default, principally
because the issues raised in the
counterclaim are deemed automatically
joined by the allegations in the complaint.
[Gojo v. Goyala (1970)]
4.
5. The filing of a MTD and the setting up of a
compulsory
counterclaim
are
incompatible remedies.

a. In the event that a defending party

has a ground for dismissal and a
compulsory counterclaim at the same
time, he must choose only one
remedy.
b. If he decides to file a MTD, he will lose
his counterclaim. But if he opts to set
up his counterclaim, he may still plead
his ground for dismissal as an
affirmative defense in his answer.
c. If any of the grounds to dismiss under
Rule 17, Sec. 3 arise, the proper
recourse for a defendant who desires
to
pursue
his
compulsory
counterclaim in the same proceeding
is not a MTD.
d. Instead, he should only move to have
the plaintiff declared non-suited on
the complaint so that the latter can no
longer present his evidence thereon,
and simultaneously move that he be
declared as in default on the
compulsory counterclaim, and reserve
the right to present evidence ex parte
on his compulsory counterclaim. [BA
Finance v. Co (1993)]
Permissive Counterclaim
1. Counterclaim is permissive if it does not
arise out of, nor is necessarily connected
with, the subject matter of the opposing
partys claim
a. This is not barred even if not set up in
the action
b. Must have independent jurisdictional
ground (Herrera). Hence, the filing of
a separate docket fee.
2. Test to determine whether a counterclaim
is compulsory or permissive: LOGICAL
RELATIONSHIP TEST
a. Where conducting separate trials of
the respective claims would entail
substantial duplication of effort and
time and involves many of the same
factual and legal issues. [Meliton v.
CA (1992)]
3. NOTE: If the counterclaim matures AFTER
the Answer, it is merely PERMISSIVE

2. It must arise out of the subject matter of

the complaint or of the counterclaim;
3. The cross-claimant is prejudiced by the
claim against him by the opposing party.
General
Rule:
A
cross-claim
is
always
compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]
Exceptions: Permissive Cross-Claims
1. When it is outside the courts jurisdiction;
2. If the court cannot acquire jurisdiction
over 3rd parties whose presence is
necessary for the adjudication of said
cross-claim. In this case, the cross-claim
is considered permissive.
3. Cross claim that may mature or may be
acquired AFTER service of Answer
Effect on Cross-Claim when Complaint is
Dismissed - The dismissal of the complaint
carries with it the dismissal of a cross-claim
which is purely defensive, but not a cross-claim
seeking an affirmative relief. [Torres v. CA
(1973)]
Improper Cross-Claims
1. Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
2. The dismissal of a cross-claim is
unappealable when the order dismissing
the
complaint
becomes
final
and
executory (Ruiz, Jr. v. CA, 1993)
3. A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of
default because then the cross-claimant
would re-obtain a standing in court as
party litigant
Counter-Counterclaims
and
Counter-CrossClaims (Rule 6, Sec. 9)
1. Counter-Counterclaim - A claim asserted
against an original counter-claimant.
2. Counter-Cross-claim - A claim filed
against an original cross-claimant.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS (Rule
6, Sec. 11)

Effect on Counterclaim when Complaint is

Dismissed - Under Section 3, Rule 17, dismissal
of action due to plaintiffs fault shall be without
prejudice to the defendants right to prosecute
his counterclaim in the same/separate action.

Definition - It is a claim that a defending party

may, with leave of court, file against a person
not a party to the action for contribution,
indemnity, subrogation or any other relief, in
respect of his opponent's claim.

CROSS-CLAIM

There could also be a 4th/etc.-party complaint

with the same purpose and function.

Requisites:
1. A claim by one party against a co-party;

Cross-claim

Counterclaim

Against a

Against an

3rd Party
complaint
Against a

co-party

opposing party

person not a
party to the
action

Must arise
out of the
transaction
that is the
subject
matter of
the original
action or of
a
counterclai
m therein

May arise out of

or be necessarily
connected with
the transaction
or the subject
matter of the
opposing partys
claim
(compulsory
counterclaim),
or it may not
(permissive
counterclaim)

Must be in
respect of
the
opponents
(plaintiffs)
claim

No need for
a leave of
court

No need for
leave of court

Leave of
court is
needed

3rd-party complaint

Complaint in
intervention

Brings into the action

a 3rd person who was
not originally a party
Initiative is with the
person already a party
to the action

Initiative is with a
non-party who seeks
to join the action

3rd-party complaint

Counterclaim

Need not be within the

jurisdiction of the
court trying the main
case
Diminishes/defeats
the recovery sought
by the opposing party

Must be within the

jurisdiction of the
court trying the main
case
Need not
diminish/defeat the
recovery sought by
the opposing party
May exceed in
amount or be
different in kind from
that sought in the
original complaint

Cannot exceed the

amount stated in the
original complaint

Same

Basis of Third-Party Complaint - Under this Rule,

a person not party to an action may be
impleaded by the defendant either:
1. On allegation of liability to the latter
2. On the ground of direct liability to the
plaintiff; or
3. Both (1) and (2)
Situation in (1) is covered by the phrase
contribution, indemnity or subrogation,
while (2) and (3) are subsumed under the
catch-all phrase (Samala v. Victor, 1989)
Tests to Determine Whether the 3 rd-Party
Complaint is in Respect of Plaintiffs Claim
(Capayas v. CFI, 1946)

1. WON it arises out of the same transaction

on which the plaintiff's claim is based, or
although arising out of another/different
transaction, is connected with the
plaintiffs claim;
2. WON the 3rd-party defendant would be
liable to the plaintiff or to the defendant
for all/part of the plaintiffs claim against
the original defendant;
3. WON the 3rd-party defendant may assert
any defenses which the 3rd-party plaintiff
has or may have to the plaintiffs claim.
Additional Rules
1. Leave of court to file a 3rd-party
complaint may be obtained by motion
under Rule 15.
2. Summons on 3rd (4th/etc.) party
defendant must be served for the court to
obtain jurisdiction over his person, since
he is not an original party.
3. Where the trial court has jurisdiction over
the main case, it also has jurisdiction over
the 3rd-party complaint, regardless of the
amount involved as a 3rd-party complaint
is merely auxiliary to and is a
continuation of the main action. [Republic
v. Central Surety (1968)]
4. A 3rd-party complaint is not proper in an
action for declaratory relief.
COMPLAINT-IN-INTERVENTION
Pleadings-in-Intervention (Rule 19, Sec. 3)
1. Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
2. Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
Definition - INTERVENTION is a remedy by which
a third party, not originally impleaded in a
proceeding, becomes a litigant therein to enable
him to protect or preserve a right or interest
which may be affected by such proceeding.
Its purpose is "to settle in one action and by a
single judgment the whole controversy (among)
the persons involved." [First Philippine Holdings
v. Sandiganbayan (1996); Rule 19]
When Allowed - Intervention shall be allowed
when a person has:
1. A legal interest in the matter in litigation;
2. Or in the success of any of the parties;
3. Or an interest against the parties; and
4. When he is so situated as to be adversely
affected by a distribution or disposition of
property in the custody of the court or of
an officer thereof. [First Philippine
Holdings v. Sandiganbayan (1996)]

Not an Independent Action - Intervention is not

an independent action, but is ancillary and
supplemental to an existing litigation. [First
Philippine Holdings v. Sandiganbayan (1996)]
1. It is neither compulsory nor mandatory
but only optional and permissive.
[Mabayo v. CA (2002)]
2. The Court has full discretion in permitting
or disallowing intervention, which must
be exercised judiciously and only after
consideration of all the circumstances
obtaining in the case. [Mago v. CA (1999)]
3. It is not an absolute right as it can be
secured only in accordance with the
terms of applicable statute or rule. [Office
of Ombudsman v. Samaniego (2010)]
Meaning of Legal Interest - Interest must be of a
direct and immediate character so that the
intervenor will either gain or lose by the direct
legal operation of the judgment. The interest
must be actual and material, a concern which is
more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural,
consequential or collateral. [Virra Mall Tenants v.
Virra Mall (2011)]
Requisites for Valid Intervention
1. There must be a motion for intervention
filed before rendition of judgment by the
trial court.
2. Movant must show in his motion that he
has a:
a. Legal interest in (1) the matter of
litigation, (2) the success of either of
the parties in the action or (3) against
both parties.
b. That the movant is so situated as to
be adversely affected by a distribution
or other disposition of property in the
custody of the court or an officer
thereof
c. That the intervention must not unduly
delay or prejudice the adjudication of
the rights of the original parties and
that the intervenors rights may not
be fully protected in a separate
proceeding.
How to Intervene
1. With leave of court, the court shall
consider the 2 factors
2. Motion to intervene may be filed at any
time before rendition of judgment by trial
court
3. Copy of the pleadings-in-intervention
shall be attached to the motion and
served on the original parties
Time to Intervene: (Rule 19, Sec. 2)
1. General Rule: The motion to intervene
must be filed at any time before the
rendition of judgment by the trial court
2. Exceptions:

a. With respect to indispensable parties,

intervention may be allowed even on
appeal (Falcasantos v. Falcasantos)
b. When the intervenor is the Republic
(Lim v. Pacquing)
c. Intervention may be allowed after
judgment where necessary to protect
some interest which cannot otherwise
be protected, and for the purpose of
preserving the intervenors right to
appeal (Pinlac v. CA)
Remedy for Denial of Motion for Intervention
1. The movant may file a motion for
reconsideration since the denial of a
motion for intervention is an interlocutory
order.
2. Alleging grave abuse of discretion,
movant can also file a certiorari case.
REPLY
Definition - The plaintiffs response to the
defendant's answer. The function of which is to
deny or allege facts in denial or in avoidance of
new matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. (Rule 6, Sec. 10)
Effect of Failure to Reply
1. General Rule - Filing a reply is merely
optional. New facts that were alleged in
the answer are deemed controverted
should a party fail to reply thereto.
2. Exception When a Reply is necessary
a. To set up affirmative defenses on the
counterclaim (Rosario v. Martinez)
b. Where the answer alleges the defense
of usury in which case a reply under
oath should be made; otherwise, the
allegation of usurious interest shall be
deemed admitted [Rule 8, Sec. 8; Sun
Bros. v. Caluntad]
c. Where the defense in the answer is
based on an actionable document, a
reply under oath must be made;
otherwise, the genuineness and due
execution of the document shall be
deemed admitted. [Rule 8, Sec. 11;
Toribio v. Bidin]

PLEADINGS ALLOWED IN SMALL CLAIM

CASES AND CASES COVERED BY THE RULES
OF SUMMARY PROCEDURE
Under the Revised Rules on Summary Procedure
The only pleadings allowed to be filed are:
(Sec. 3)
1. Complaints
2. Compulsory counterclaims and crossclaims pleaded in the Answer; and
3. Answers thereto

Prohibited Pleadings, Motions, or Petitions (Sec.

19)
1. Motion to dismiss the complaint or to
quash the complaint or information
except on the ground of lack of
jurisdiction over the subject matter, or
failure to comply with required barangay
conciliation proceedings;
2. Motion for a bill of particulars;
3. Motion
for
new
trial,
or
for
reconsideration of a judgment, or for
opening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits or any other paper;
6. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
7. Motion to declare the defendant in
default;
8. Dilatory motions for postponement;
9. Reply;
10. Third party complaints; and
11. Interventions.
Forms Used Under the Rule of Procedure under
Small Claims Cases
1. Instead of filing complaint, a Statement of
Claim using Form 1-SCC shall be filed
[Sec. 5]
2. Answer shall be filed by way of a
Response using Form 3-SCC [Sec. 10]
3. Defendant may file counterclaim if he
possesses a claim against the plaintiff
that
a. Is within the coverage of this Rule,
exclusive of interest and costs;
b. Arises out of the same transaction or
event that is the subject matter of the
plaintiffs claim;
c. Does not require for its adjudication
the joinder of third parties; and
d. Is not the subject of another pending
action, the claim shall be filed as a
counterclaim
in
the
Response;
otherwise, the defendant shall be
barred from suit on the counterclaim.
The defendant may also elect to file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence,
provided that the amount and nature thereof are
within the coverage of this Rule and the
prescribed docket and other legal fees are paid.
NOTE: Courts decision shall be contained in Form
13-SCC
Prohibited Pleadings and Motions in Small Claims
1. Motion to dismiss the complaint except
on the ground of lack of jurisdiction;
2. Motion for a bill of particulars;

3. Motion for new trial, or for reconsideration

of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions.
PARTS OF A PLEADING (Rule 7, Sec. 1 to 3)
CAPTION
Caption - Courts name, actions title (i.e. parties
names) and docket number.
Body - Pleadings designation, allegations of
party's claims/defenses, relief prayed for and
pleadings date.
1. Paragraphs must be numbered, and each
paragraph number must contain a single
set of circumstances
2. Headings: if more than one cause of
action, use "1st cause of action," 2nd
cause of action," etc.
3. Specify relief sought, but it may add a
general prayer for such further/other
relief as may be deemed just/equitable.
4. Every pleading shall be dated.
SIGNATURE AND ADDRESS
Every pleading must be signed by the party or
counsel representing him.
The address must be stated and such address
must not be a post office box
Effect of Signature of Counsel in a Pleading Signature of counsel constitutes a certificate by
him that:
1. He has read the pleading
2. That to the best of his knowledge,
information, and belief there is good
ground to support it; and
3. That it is not interposed for delay
Unsigned Pleadings
1. No legal effect
2. Court may, in its discretion, allow such
remedy to be remedied if it appears that:
a. It was due to mere inadvertence; and
b. It was not intended for delay

VERIFICATION AND CERTIFICATION

FORUM SHOPPING (Rule 7, Sec. 4)

AGAINST

Verification - Pleadings need not be verified,

unless otherwise provided by the law/rules
Verification is Required in the following:
1. Pleadings filed in the inferior courts in
cases covered by the Rules on Summary
Procedure are all required to be verified
2. Petition for relief from judgment or order
(Sec. 3, Rule 38)
3. Petition for review from RTC to the CA
(Sec. 1, Rule 42)
4. Petition for review from quasi-judicial
agencies to the CA (Sec. 5, Rule 43)
5. Appeal by certiorari from the CTA to the
SC (Sec. 12, RA 9282 amending Sec. 19,
RA 1125)
6. Appeal by certiorari from CA to the SC
(Sec. 1, Rule 45)
7. Petition for annulment of judgments or
final orders and resolutions (Sec. 1, Rule
47)
8. Complaint for injunction (Sec. 4, Rule 58)
9. Application for appointment of receiver
(Sec. 1, Rule 59)
10. Application for support pendente lite
(Sec. 1, Rule 69)
11. Petition for certiorari against judgments,
final
orders,
or
resolutions
of
constitutional commissions (Sec. 2, Rule
64)
12. Petition for certiorari (Sec. 1, Rule 65)
13. Petition for prohibition (Sec. 2, Rule 65)
14. Petition for mandamus (Sec. 3, Rule 65)
15. Petition for quo warranto (Sec. 1, Rule 66)
16. Complaint for expropriation (Sec. 1, Rule
67)
17. Complaint for forcible entry or unlawful
detainer (Sec. 4, Rule 70)
18. Petition for indirect contempt (Sec. 4,
Rule 71)
19. Petition for appointment of a general
guardian (Sec. 2, Rule 93)
20. Petition for leave to sell or encumber
property of the ward by a guardian (Sec.
1, Rule 95)
21. Petition for declaration of competency of
a ward (Sec. 1, Rule 97)
22. Petition for habeas corpus (Sec. 3, Rule
102)
23. Petition for change of name (Sec. 2, Rule
103)
24. Petition for voluntary judicial dissolution
of a corporation (Sec. 1, Rule 104)
25. Petition for cancellation or correction of
entries in the civil registry (Sec. 1, Rule
108)
How a pleading is verified: By an affidavit
1. That the affiant read the pleading;
2. That the allegations therein are true and
correct of his personal knowledge or
based on authentic documents.

Forum Shopping - The filing of multiple suits in

different courts, simultaneously or successively,
involving the same parties, to ask the courts to
rule on the same/related causes and/or to grant
the same or substantially the same relief. [T'Boli
Agro-Industrial Development, Inc. (TADI) v.
Solidapsi (2002)] (Asked in the 2006 Bar Exam)
Test to Determine WON there is forum shopping:
WON in the 2 or more cases pending, there is
identity of:
1. Parties
2. Rights or causes of action
3. Relief sought
Certificate of Non-Forum Shopping (CNFS) (Rule
7, Sec. 5)
1. The CNFS is to be executed by the
petitioner, not by the counsel.
2. CNFS is required only for complaints or
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.).
3. CNFS is not required in a compulsory
counterclaim. A counterclaim is not an
initiatory pleading. [UST Hospital v. Surla
(1998)]
a. However, a certification is needed in
permissive
counterclaims
(Korea
Exchange Bank v. Gonzales)
4. The lack of certification against forum
shopping is not curable by mere
amendment of a complaint, but shall be a
cause for the dismissal of the case
without prejudice. The general rule is that
subsequent
compliance
with
the
requirements will not excuse a party's
failure to comply in the first instance.
[Ramirez v. Mar Fishing (2012)]
Who Executes the Certification - Certification
against forum shopping ordained by the Rules is
to be executed by the petitioner, not his counsel.
The petitioner is in the best position to know
whether he filed or caused the filing of a petition
in the case.
Certification by counsel is defective certification.
In Santos v. CA, the Court held that a special
power of attorney was insufficient.
Effect of Submission of False CNFS or NonSubmission:
1. Indirect contempt
2. Administrative and criminal actions
Effect of Willful and Deliberate Forum Shopping
1. Ground for summary dismissal of the case
with prejudice;
2. Direct contempt and administrative
sanctions.
NOTE: the CNFS is mandatory but NOT
jurisdictional.

Requirement of a Corporation executing the

verification/ CNFS - Only individuals vested with
authority by a valid board resolution may sign
the certificate of non-forum shopping in behalf of
a corporation. In addition, the Court has required
that proof of said authority must be attached.
Failure to provide a certificate of non-forum
shopping is sufficient ground to dismiss the
petition. Likewise, the petition is subject to
dismissal if a certification was submitted
unaccompanied by proof of the signatorys
authority. [PAL v. FASAP (2006)]

ALLEGATIONS IN A PLEADING (Rule 8)

MANNER OF MAKING ALLEGATIONS
In General (Rule 8, Sec. 1)
1. Every pleading shall contain a statement
of the ultimate facts on which the party
pleading relies for his claim or defense
a. In a methodical and logical form
b. A plain, concise and direct statement
c. Statement of mere evidentiary facts
omitted
2. If a defense relief is based on law, state in
a clear and concise manner:
a. Pertinent provisions of the law
b. Applicability of the law to him
Facts that must be averred PARTICULARLY Circumstances showing fraud/mistake in all
averments of fraud/mistake [Rule 8, Sec. 5]
Facts that may be averred GENERALLY:
1. Conditions precedent; but there must still
be an allegation that the specific
condition precedent has been complied
with, otherwise it will be dismissed for
lack of cause of action; [Rule 8, Sec. 3]
2. Capacity to sue or be sued;
3. Capacity to sue or be sued in a
representative capacity; [Rule 8, Sec. 4]
4. Legal existence of an organization; A
party desiring to raise an issue as to the
legal existence or capacity of any party to
sue or be sued in a representative
capacity shall do so by specific denial
which shall include supporting particulars
within the pleader's knowledge. [Rule 8,
Sec 4]
5. Malice/intent/knowledge
or
other
condition of the mind; [Rule 8, Sec. 5]
6. Judgments of domestic/foreign courts,
tribunals, boards or officers (without need
to show jurisdiction); [Rule 8, Sec. 6]
7. Official documents/acts. [Rule 8, Sec. 9]
Condition Precedent If the cause of action
depends upon a condition precedent, its

fulfillment or legal excuse for non-fulfillment

must be averred.
A general averment of the performance or
occurrence of all conditions precedent shall be
sufficient [Rule 8, Sec. 3]
All valid conditions precedent to the institution of
a particular action, whether prescribed by
statute, fixed by agreement of the parties, or
implied by law must be performed or complied
with before commencing the action. Such fact
must be pleaded.
Failure to comply with a condition precedent is a
ground for a motion to dismiss (Rule 16, Sec.
1(j))
Examples of Conditions Precedent:
1. Exhaustion of administrative remedies
2. Investigation by a fiscal is a prerequisite
to
annulment
of
marriage
when
defendant
defaults
(Tolentino
v.
Villanueva)
3. No suit shall be filed or maintained
between members of the same family
unless it should appear that earnest
efforts at compromise have been made
but that the same have failed. (Art. 222;
Versoza v. Versoza)
4. Arbitration; Barangay Conciliation
Capacity What must be averred:
1. Facts showing the capacity of a party to
sue or be sued; or
2. The authority to sue or be sued in a
representative capacity;
3. Or the legal existence of an organized
association of persons that is made a
party (Rule 8, Sec. 4)
Fraud, Mistake, Malice, Intent, Knowledge and
Other Condition of the Mind, Judgments, official
documents, or acts - Circumstances constituting
fraud or mistake must be stated with
particularity while malice, intent, knowledge or
other condition of the mind of a person may be
averred generally [Rule 8, Sec. 5]
Judgment - In pleading a judgment or decision of
a domestic or foreign court, judicial or quasijudicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision
without setting forth matter showing jurisdiction
to render it. (Rule 8, Sec. 6)
PLEADING AN ACTIONABLE DOCUMENT (Rule 8,
Sec. 7)
Actionable Document - The written instrument
upon which the action or defense is based.
Where a pleader relies upon a document, its
substance must be set out in the pleading either
by its terms or by its legal effects

Pleading the actionable document:

1. The substance of such instrument or
document shall be set forth in the
pleading; and
2. The original or copy thereof shall be
attached to the pleading as an exhibit,
which shall be deemed to be part of the
pleading; or
3. Said copy may with like effect be set forth
in the pleading
A variance in the substance of the document set
forth in the pleading and the document annexed
thereto does not warrant dismissal of the action
(Convets Inc. v. National Dev. Co.)
How to Contest an Actionable Document (Rule 8,
Sec. 8)
1. By specific denial under oath; and
2. By setting forth what is claimed to be the
facts

2. Partial Specific Denial - If pleader decides

to deny only a part or a qualification of an
averment:
a. He shall specify so much of it as is
true and material
b. He shall deny the remainder
3. Disavowal of Knowledge - If defendant is
without
knowledge
or
information
sufficient to form a belief as to the truth
of a material averment made in the
complaint:
a. He shall so state
b. This shall have the effect of a denial
Effect of Failure to make Specific Denials:
1. General Rule: Allegations not specifically
denied are deemed admitted (Rule 8, Sec.
11)
2. Exceptions: Averments not deemed
admitted even if not specifically denied
a. Allegations as to the amount of
unliquidated damages;
b. Allegations immaterial to the cause of
action
c. Allegations of merely evidentiary or
immaterial facts may be expunged
from the pleading or may be stricken
out on motion. [Rule 8, Sec. 12]
d. Conclusion of law.

NOTE: The genuineness and due execution of the

document must be denied SPECIFICALLY
- Due Execution - That the party whose
signature it bears admits that he
voluntarily signed it; or that it was signed
by another for him with his authority
- Genuineness - That the party whose
signature it bears admits that at the time
it was signed it was in words and figures
exactly as set out; and that the
formalities, such as swearing and
acknowledgement, or revenue stamps
which are required by law are waived by
him

When a specific denial requires an OATH When

the genuineness and due execution of an
actionable document is contested or denied, the
specific denial must be under oath. (Rule 8, Sec.
8)

Failure to Deny Under Oath the Actionable

Document:
1. The genuineness and due execution is
deemed admitted
2. The document need not be formally
offered in evidence

EFFECT OF FAILURE TO PLEAD (Rule 9)

FAILURE TO PLEAS DEFENSES AND OBJECTIONS

SPECIFIC DENIALS (Rule 8, Sec. 10)

The purpose of requiring the defendant to make
a specific denial is to make him disclose the
matters alleged in the complaint which he
sincerely intends to disprove at the trial,
together with matters which he relies upon to
support the denial (Herrera).
Modes of Denial:
1. Specific Absolute Denial - Defendant must
specify each material allegation of fact
the truth of which he does not admit
a. Whenever applicable, he shall set
forth the substance of the matters
which he will rely upon to support the
denial

General Rule: Defenses and objections not

pleaded in answer or motion to dismiss are
deemed waived. (Omnibus Motion Rule)
Exceptions:
1. Lack of jurisdiction over the subject
matter;
2. Litis pendentia between same parties for
the same cause
3. Res judicata
4. Action barred by statute of limitations.
FAILURE
TO
PLEAD
COMPULSORY
COUNTERCLAIM AND CROSS-CLAIM
General Rule: A compulsory counterclaim not set
up is considered barred. [Rule 9, Sec. 2]

Exception: If due to oversight, inadvertence,

excusable
neglect,
etc.
the
compulsory
counterclaim, with leave of court, may be set up
by amendment before judgment. [Rule 11, Sec.
10]
For Cross-Claims: A cross-claim is always
compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]
DEFAULT (Rule 9, Sec. 3)
Definition: Failure of the defendant to answer
within the proper period. It is not his failure to
appear nor his failure to present evidence
Dual stages of default:
1. Declaration of Order of Default when
defendant fails to answer within the time
specified in the rules, the court shall,
upon motion of the plaintiff and proof of
such failure, declare defendant in default
2. Rendition of Judgment by Default
thereafter, on the basis of the allegation
of the complaint or after receiving
plaintiffs evidence, the court shall render
judgment granting him such relief as the
complaint and the facts proven may
warrant
Order of default
Issued by the court on
plaintiffs motion, for
failure of the
defendant to file his
responsive pleading
seasonably
Interlocutory -Not
appealable

Judgment by default
Rendered by the court
following a default
order or after it
received ex parte
plaintiffs evidence
Final Appealable

When a Declaration of Default is Proper:

There is only one instance when a party
defendant can properly be declared in default
and that is when he fails to file his answer within
the reglementary period, or within such
extended time as he is allowed by the court,
under Sec. 1, Rule 18
Elements of a Valid Order of Default
1. The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons
or voluntary appearance
2. The defendant failed to file his answer
within the time allowed therefor
3. There must be a motion to declare the
defendant in default with notice to the
latter

4. There must be notice to the defendant by

serving upon him a copy of such motion
5. There must be proof of such failure to
answer
6. There must be a hearing to declare
defendant in default
Effect of Order of Default:
1. The court shall proceed to render
judgment granting the claimant such
relief as his pleading may warrant; or in
its discretion
2. Shall require the claimant to submit
evidence;
3. Loss of standing in court of the defaulting
party meaning he cannot appear
therein, adduce evidence and be heard
nor take part in the trial
4. Defendant is still entitled to notices of
subsequent proceedings
a. A defendant declared in default
cannot take part in the trial, but he
cannot be disqualified from testifying
as a witness in favor of non-defaulting
defendants. [Cavili v. Florendo (1987)]
b. A party in default is entitled to notice
of:
(1) Motion to declare him in default;
(2) Order declaring him in default;
(3) Subsequent proceedings;
(4) Service of final orders and
judgments.
5. A defending party declared in default
retains the right to appeal from the
judgment by default. However, the
grounds that may be raised in such an
appeal are restricted to any of the
following:
a. The failure of the plaintiff to prove the
material allegations of the complaint;
b. The decision is contrary to law; and
c. The amount of judgment is excessive
or different in kind from that prayed
for. [Ortero v. Tan (2012)]
Relief from an Order of Default (Lina v. CA)
1. The defendant in default may file a
motion, under oath, to set aside the order
of default
At any time after discovery thereof
(from Notice) and before judgment,
2. If the judgment has already been
rendered, he may file for new trial under
Sec. 1 (a) Rule 37
When the defendant discovered the
default,
but before the same has
become final and executory

3. If defendant discovered the default after

judgment
had
become
final
and
executory, he may file a petition for relief
under Sec. 2, Rule 38
4. He may also appeal from the judgment
rendered against him as contrary to the
evidence or to the law, even if no petition
to set aside the order of default has been
presented by him
Partial Default - When the complaint states a
common cause of action against several
defendants some of whom answers and some of
them do not, the court should declare defaulting
defendants in default, and proceed to trial on
answers of others
If the defense is personal to the one who
answered, it will not benefit those who did not
answer.
Extent of Relief to be Awarded
1. A judgment rendered against a party in
default shall not exceed the amount or be
different in kind from that prayed for nor
award unliquidated damages

2. If the claim is not proved, the case should

be dismissed
3. As held in Datu Samad Mangelen v. CA
(1992):
a. In a judgment based on evidence
presented ex parte, judgment should
not exceed the amount or be different
in kind from that prayed for.
b. On the other hand, in a judgment
where an answer was filed but
defendant did not appear at the
hearing, the award may exceed the
amount or be different in kind from
that prayed for.
Actions Where Default is NOT allowed:
1. An action for annulment or declaration of
nullity of marriage
2. For legal separation
3. Special
civil
actions
of
certiorari,
prohibition
and
mandamus
where
comment instead of an answer is required
to be filed
4. Summary procedure

DEFAULT IN ORDINARY PROCEDURE

After the lapse of time to file an answer, the plaintiff may move to declare the
If defendant
motion denied:
in default
Defendant allowed to file an answer

If motion granted:
Court issues order of default and renders judgment or require plaintiff to submit evidence ex parte

Before judgment by default is rendered, defendant may:

(1) Move to set aside order of default upon showing of FAME and that he has a meritorious defense;
(2) Avail of Rule 65 in proper cases Court maintains order of default

FILING AND SERVICE OF PLEADINGS

It is not simply the filing of the complaint or

appropriate initiatory pleading but the payment
PAYMENT OF DOCKET FEES
of the prescribed docket fee, that vests a trial
Court sets aside order of default and defendant is allowed
to filewith
an answer
court
jurisdiction over the subject matter or
As a rule, the court acquires jurisdiction over the
nature of the action [Proton Pilipinas v. Banque
case only upon payment of prescribed fees
National de Paris (2005)]
Presentation of plaintiffs evidence ex-parte

General rule: Without payment, case is

considered not filed. PaymentCase
of docket
fees is
set for pre-trial
mandatory and jurisdictional.

Effect of Failure to Pay Docket Fees at Filing

1. The Manchester Rule: Manchester v. CA
(1987)
a. Automatic Dismissal

If plaintiff proves his allegations:If plaintiff fails proves his allegations:

Judgment by default
Case is dismissed

b. Any defect in the original pleading

resulting in underpayment of the
docket fees cannot be cured by
amendment, such as by the reduction
of the claim as, for all legal purposes,
there is no original complaint over
which
the
court
has
acquired
jurisdiction

10. Similar papers.

PERIODS OF FILING OF PLEADINGS
PLEADING

2. Relaxation of the Manchester Rule by Sun

Insurance v. Asuncion (1989)
a. NOT automatic dismissal
b. Court may allow payment of fees
within reasonable period of time. Note
that payment should always be within
the prescriptive period of the action
filed.
3. Further modification by Heirs of Hinog v.
Melicor (2005)
a. Fees as lien
b. Where the trial court acquires
jurisdiction over a claim by the filing
of the pleading and the payment of
the
prescribed
filing
fee,
BUT
SUBSEQUENTLY, the judgment awards
a claim not specified in the pleading,
or cannot then be estimated, or a
claim left for determination by the
court, then the additional filing fee
shall constitute a lien on the judgment
4. Exception to the Sun Insurance doctrine:
Gochan v. Gochan
a. The Sun Insurance rule allowing
payment of deficiency does not apply
where plaintiff never demonstrated
any willingness to abide by the rules
to pay the docket fee but stubbornly
insisted that the case filed was one
for
specific
performance
and
damages.
FILING VERSUS SERVICE OF PLEADINGS
Filing - The act of presenting the pleading or
other paper to the clerk of court. [Rule 13, Sec.
2]
Service - The act of providing a party or his
counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
Papers required to be filed and served: (Rule 13,
Sec. 4)
1. Pleading subsequent to the complaint;
2. Appearance;
3. Written Motion;
4. Notice;
5. Order;
6. Judgment;
7. Demand;
8. Offer of Judgment;
9. Resolution;

PERIOD

Within 15 days

Answer to
the
Complaint

Answer to
AMENDED
Complaint
(amended
counterclai
m, crossclaim, 3rd
party
complaint,
complaint
in
interventio
n)
Answer to
Counterclai
m or CrossClaim
Answer to
third (4th,
etc)- party
complaint

Within 30 days if
the defendant is a
foreign private
juridical entity
and service of
summons is made
on government
official
At least 60 days
In case of nonresident
defendant on
whom
extrajudicial
service is made
Within 15 days
(if amendment
was a matter of
right)

PERIOD
COUNTED
FROM
Service of
summons,
unless a
different
period is fixed
by the court
(Rule 11, Sec.
1
Receipt of
summons
(Rule 11, Sec.
2)

Service of
extrajudicial
summons
(Sec. 15, Rule
14)
Service of a
copy of the
amended
complaint

Within 10 days
(if amendment
was not a matter
of right)

Notice of the
order
admitting the
same (Rule 11,
Sec. 3)

Within 10 days

From service
(Rule 11, Sec.
4)

Within 15 days

Reply

Within 10 days

Answer to
supplemen
tal
complaint

Within 10 days

Same rule as
answer to the
complaint
(Rule 11, Sec.
5)
From service
of the
pleading
responded to
(Rule 11, Sec.
6)
From notice of
the order
admitting the
same, unless a
different
period is fixed

by the court
NOTE: Upon motion and on such terms as may
be just, the court may extend the time to plead
provided in these Rules. The court may also,
upon like terms, allow an answer or other
pleading to be filed after the time fixed by these
Rules. [Rule 11, Sec. 11]
MANNER OF FILING
As per Rule 13, Sec. 3:
1. Personally
a. By By personally presenting the
original to the clerk of court.
b. The pleading is deemed filed upon the
receipt of the same by the clerk of
court who shall endorse on it the date
and hour of filing.
c. If a party avails of a private carrier,
the date of the courts actual receipt
of the pleading (not the date of
delivery to the private carrier) is
deemed to be the date of the filing of
that pleading. [Benguet Electric
Cooperative v. NLRC (1992)]
2. By Registered Mail
a. Filing by mail should be through the
registry service (i.e. by depositing the
pleading in the post office).
b. The pleading is deemed filed on the
date it was deposited with the post
office.
Filing a pleading by facsimile is not sanctioned.
But fax was allowed in an extradition case
(Justice Cuevas v. Juan Antonio Munoz)
MODES OF SERVICE
Personal Service (Rule 13, Sec. 6)
1. Delivering personally a copy to the party,
who is not represented by a counsel, or to
his counsel; or
2. Leaving a copy in counsels office with his
clerk or with a person having charge
thereof; or
3. Leaving the copy between 8am and 6pm
at the partys or counsels residence, if
known, with a person of sufficient age
and discretion then residing thereon if
not person is found in his office, or if his
office is unknown, or if he has no office
Service by Mail (Rule 13, Sec. 7)
1. Ordinary Mail - it does not constitute filing
until the papers are actually delivered
into the custody of clerk or judge
a. Service may be done by ordinary mail
if no registry service is available in the
locality of either sender or addressee

2. Registered Mail - The date of mailing is

the date of filing
a. Date of filing is determinable from 2
sources:
(1) From the post office stamp on the
envelope
(2) From the registry receipt
b. It is done by depositing in the post
office:
(1) In a sealed envelope
(2) Plainly addressed to the party or
his counsel
(a) At his office if known
(b) Otherwise, at his residence if
known
(3) Postage fully pre-paid
(4) With
instructions
to
the
postmaster to return the mail to
the sender after 10 days if
undelivered
Substituted Service (Rule 13, Sec. 8)
1. Done by delivery of the copy to the clerk
of court with proof of failure of both
personal and service by mail
2. Proper only when:
a. Service cannot be made personally or
by mail
b. Office and place of residence of the
party of his counsel being unknown
3. Service is complete at the time of such
delivery
SERVICE OF JUDGMENTS, FINAL ORDERS, OR
RESOLUTIONS (Rule 13, Sec. 9)
Service is done either:
1. Personally
2. By registered mail
3. By publication ONLY IF:
a. Party is summoned by publication
AND
b. He failed to appear in the action
NOTE: There is NO substituted service of
judgments and final orders
PRIORITIES IN MODES OF SERVICE AND FILING
General rule: Personal filing and service is
preferred. (Rule 13, Sec. 11)
Resort to other modes of filing and service must
be accompanied by an explanation why the
service/filing was not done personally. If there is
no written explanation, the paper is considered
not filed.
Exception: Papers emanating from the court.
WHEN SERVICE IS DEEMED COMPLETE

Completeness of
Proof of service
service (Rule 13
(Rule 13 Sec. 13)
Sec. 10)
Personal service
Written admission of
the party served, OR
Official return of the
server OR
Upon actual delivery
Affidavit of the party
serving, with a full
statement of the
date/place/manner of
service.
Service by ordinary mail
10 days after
Affidavit of the person
mailing, unless
mailing of facts
otherwise provided
showing compliance
by the court
with Sec. 7 of Rule 13.
Service by registered mail
Affidavit of the person
Whichever is earlier:
mailing of facts
showing compliance
Actual receipt by the
with Sec. 7 of Rule 13
addressee
OR
AND
5 days after the
addressee received
Registry receipt issued
1st
postmaster's
by the post office
notice (Constructive)
Substituted Service
At the time of delivery of the copy to the clerk
of court together with proof of failure of both
personal service and service by mail
Purpose of the rule on completeness of service
for service by registered mail:
To make sure that the party being served with
the pleading, order or judgment is duly informed
of the same so that such party can take steps to
protect the interests, i.e., enable to file an
appeal or apply for other appropriate reliefs
before the decision becomes final. [MINTERBRO
v,CA (2012)]
Service to the lawyer binds the party. But service
to the party does not bind the lawyer, unless
ordered by the court in the following
circumstances:
1. When it is doubtful who the attorney for
such party is; or
2. When the lawyer cannot be located; or
3. When the party is directed to do
something personally, as when he is
ordered to show cause. [Retoni, Jr. v. CA]
Notice to the lawyer who appears to have been
unconscionably
irresponsible
cannot
be
considered as notice to his client, as it would
then be easy for the lawyer to prejudice the
interests of his client by just alleging that he just
forgot every process of the court affecting his

clients, because he was so busy. [Bayog v.

Natino]
PROOF OF FILING
1. Filing is proved by its existence in the
record of the case (Rule 13, Sec. 12)
2. If it is not in the record:
When pleading is
Proof of filing
deemed filed
Personally
Upon receipt of the
Written/stamped
pleading by the clerk
acknowledgment by
of court
the clerk of court
By registered mail
Registry receipt, and
affidavit of the person
who did the mailing
with:
(a) Full statement
of the
date/place of
depositing the
mail in the
post office in a
On the date the
sealed
pleading was
envelope
deposited with the
addressed to
post office
the court
(b) Postage fully
paid
(c) Instructions to
the
postmaster to
return the mail
to the sender
after 10 days
if undelivered

PROOF OF SERVICE (Rule 13, Sec. 13)

MODE

Personal Service

Service by ordinary
mail
Service by registered
mail

PROOF OF SERVICE
A written admission of
the party served, OR
The official return of
the server; OR
Affidavit of the party
serving containing a
full statement of the
date, place, and
manner of service
Affidavit of the person
mailing stating the
facts showing
compliance with Rule
13, Sec. 7
Affidavit of person
mailing containing
facts showing
compliance with Rule

13, Sec. 7, AND

Registry receipt issued
by mailing office; OR
The registry return
card which shall be
filed immediately upon
its receipt by the
sender, or in lieu
thereof of the
unclaimed letter
together with the
certified or sworn copy
of the notice given by
the postmaster to the
addressee.
AMENDMENT
PLEADINGS

AND

SUPPLEMENTAL

HOW TO AMEND PLEADINGS (Rule 10, Sec. 1)

1. Adding an allegation of a party;
2. Adding the name of a party;
3. Striking out an allegation of a party;
4. Striking out the name of a party;
5. Correcting a mistake in the name of a
party; and
6. Correcting a mistaken or inadequate
allegation or description in any other
respect
A new copy of the entire pleading,
incorporating the amendments, which
shall be indicated by appropriate marks,
shall be filed. (Rule 10, Sec. 7)
Purpose: That the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in the most
expeditious and inexpensive manner.
As a general policy, liberality in allowing
amendments is greatest in the early stages of a
law suit, decreases as it progresses and changes
at times to a strictness amounting to a
prohibition. This is further restricted by the
condition that the amendment should not
prejudice the adverse party or place him at a
disadvantage. (Barfel Development v. CA, 1993)
Types of Amendments:
1. Amendment as a matter of right
2. Amendment as a matter of
discretion

judicial

AMENDMENTS AS A MATTER OF RIGHT (Rule 10,

Sec. 2)
When amendment is allowed as a matter of
right:
1. Once as a matter of course
a. A 2nd or subsequent amendment must
now be with leave of court, not a
matter of right anymore

2. Instances:
a. Substantial amendment before
responsive pleading is filed
(1) Amendment of complaint before
an answer is filed.
(2) Amendment of answer before a
reply is filed or before the period
for filing a reply expires
(3) Amendment of reply any time
within 10 days after it is served
b. Formal amendment
AMENDMENTS BY LEAVE OF COURT (Rule 10,
Sec. 3)
When leave of court is necessary before
amendment is allowed:
1. All substantial amendments (unless it
falls under Rule 10, Sec. 2 as a matter of
right)
2. When a responsive pleading has already
been served
Requisites:
1. A motion for leave of court to amend
pleading is filed
a. Amended pleading should be attached
to the motion (see Sec. 9, Rule 15)
2. Notice is given to the adverse party
3. Parties are given opportunity to be heard
Grounds for allowance of the amendment
1. If it appears to the court that the motion
was made to delay the action, leave of
court is not given
2. There must be some reasonable grounds
justifying its exercise of discretion to
allow amendment
When amendment by leave of court may not be
allowed
1. If the cause of action, defense or theory
of the case is changed.
2. If amendment is intended to confer
jurisdiction to the court.
a. If the court has no jurisdiction in the
subject matter of the case, the
amendment of the complaint cannot
be allowed so as to confer jurisdiction
on the court over the property. [PNB v.
Florendo (1992)]
3. If amendment is for curing a premature or
non-existing cause of action.
4. If amendment is for purposes of delay.
FORMAL AMENDMENTS (Rule 10, Sec. 4)
When an amendment is formal:
1. When there is a mere defect in the
designation of the parties;
2. Other clearly clerical or typographical
errors

How formal amendments are effected

1. It may be summarily corrected by the
court at any stage of the action
2. A party may, by motion, call for the
formal amendment
NOTE: The formal amendment must NOT cause
prejudice to the adverse party

Court may allow the pleadings to be

amended and shall do so freely when
the presentation of the merits of the
action will be subserved
As safeguard, the court may grant a
continuance to enable the objecting
party to meet such evidence

SUPPLEMENTAL PLEADINGS
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE (Rule 10, Sec. 5)
Applicability of Sec. 5 This is an instance
wherein the court acquires jurisdiction over the
issues even if the same are not alleged in the
original pleadings of the parties where the trial
of said issues is with the express or implied
consent of the parties
What Sec. 5 contemplates:
1. It allows a complaint which states no
cause of action to be cured either by:
a. Evidence presented without objection
or
b. In the event of an objection sustained
by the court, by an amendment of the
complaint with leave of court
2. It also allows the admission of evidence:
a. On a defense not raised in a motion or
answer if no objection is made
thereto;
b. In the event of such objection, court
may allow amendment of the answer
in order to raise said defense
NOTE: Remember, however, that where the
plaintiff has no valid cause of action at the time
of the filing of the complaint, this defect cannot
be cured or remedied by the acquisition or
accrual of one while the action is pending
Two Scenarios:
1. When evidence is NOT objected to
When issues not raised by pleadings
are tried by express or implied
consent of the parties, they shall be
treated in all respected as if they had
been raised in the pleadings
Such amendments of pleadings as
may be necessary to cause them to
conform to the evidence and raise
these issues may be made upon
motion of any party at any time, even
after judgment
But failure to amend does not affect
the result of the trial of those issues
2. When evidence IS objected to:
Objection on the ground that it is not
within the issues made by the
pleadings

Definition: One which sets forth transactions,

occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
Purpose: To bring into the records new facts
which will enlarge or change the kind of relief to
which the plaintiff is entitled [Ada v. Baylon
(2012), citing Young v. Spouses Yu]
A supplemental complaint/pleading supplies
deficiencies in aid of an original pleading, not to
entirely substitute the latter.
How Made: It is made upon motion of a party
with reasonable notice and upon terms as are
just.
Difference with Amended Pleading
Amendments

Supplemental
pleadings

Reason for the

amendment is
available at time of
the 1st pleading

Grounds for the

supplemental
pleading arose after
the 1st pleading was
filed

Either as a matter of
right or a matter of
discretion

Always a matter of
discretion

Supersedes the
original
When an amended
pleading is filed, a
new copy of the entire
pleading must be filed

Merely supplements
the original (i.e. Exists
side by side with the
original pleading)
A supplemental
pleading does not
require the filing of a
new copy of the entire
pleading

Limitations:
1. Claims or defenses which have matured
after the filing of the original pleadings
cannot be averred in a supplemental
pleading (it may be the subject of an
amendment)
2. Supplemental pleadings are not allowed
on separate and distinct causes of action
a. A supplemental pleading may raise a
new cause of action as long as it has
some relation to the original cause of
action set forth in the original
complaint. [Ada v. Baylon (2012)]

3. The admission or non-admission of a

supplemental pleading is not a matter of
right but is discretionary on the court
EFFECT OF AMENDED PLEADING (Rule 10, Sec. 8)
1. An amended pleading supersedes the
pleading that it amends

SUMMONS
Definition: A coercive force issued by the court
to acquire jurisdiction over the person of the
defendant
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN REM,
AND QUASI IN REM
Purposes of Summons
1. For Actions in Personam
a. To acquire jurisdiction over the person
of the defendant in a civil case;
b. To give notice to the defendant that
an action has been commenced
against him.
2. For Actions in Rem and Quasi In Rem
a. Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due
process
b. Jurisdiction over the defendant is not
required and the court acquires
jurisdiction over an action as long as it
acquires jurisdiction over the res
Issuance of Summons - Upon the filing of the
complaint and the payment of legal fees, the
clerk of court shall issue the corresponding
summons to the defendants. [Rule 14, Sec. 1]
Contents of Summons (Rule 14, Sec. 2)
1. Summons shall be:
a. Directed to the defendant
b. Signed by clerk of court under seal
2. Summons shall contain:
a. Name of the court and the names of
the parties to the action
b. A direction that the defendant answer
within the time fixed by the Rules
c. A notice that unless the defendant so
answers, plaintiff will take judgment
by default and may be granted the
relief applied for
3. The following shall be attached to the
original and each copy of the summons:
a. A copy of the complaint
b. Order for appointment of guardian ad
litem (if any)
Effect of Invalid Summons

2. Admissions in the superseded pleading

can still be received in evidence against
the pleader
3. Claims or defenses alleged therein but
not incorporated or reiterated in the
amended pleading are deemed waived
1. The trial court does not acquire
jurisdiction and renders null and void all
subsequent proceedings and issuances
(Syjuco v. Castro)
2. Any
judgment
without
service
of
summons in the absence of a valid waiver
is null and void (Filmerco Commercial Co.
v. IAC)
VOLUNTARY APPEARANCE
Any form of appearance in court, by the
defendant, by his agent authorized to do so, or
by attorney, is equivalent to service except
where such appearance is precisely to object the
jurisdiction of the court over the person of the
defendant (Carballo v. Encarnacion)
General Rule: Defendant's voluntary appearance
in the action shall be equivalent to service of
summons;
Exception: Special appearance to file a MTD.
BUT inclusion in the MTD of grounds other than
LOJ over the defendants person, is not deemed
a voluntary appearance.
Any mode of appearance in court by a defendant
or his lawyer is equivalent to service of
summons, absent any indication that the
appearance of counsel for petitioner is precisely
to protest the jurisdiction of the court over the
person of the defendant. [Delos Santos v.
Montesa (1993)]
WHO MAY SERVE SUMMONS
Who May Serve Summons (Rule 14, Sec. 3)
1. The sheriff
2. His deputy
3. Other proper court officer
4. Any suitable person authorized by the
court (for justifiable reasons)
NOTE: The enumeration in Sec. 3 of the
persons who may validly serve summons
is EXCLUSIVE (Herrera)
RETURN OF SUMMONS
Return When Service has been Completed (Rule
14, Sec. 4)

1. The server shall serve a copy of the

return to the plaintiffs counsel
a. Within 5 days therefrom
b. Personally or by registered mail
2. The server shall return the summons
a. To the clerk who issue it
b. Accompanied by proof of service
It is required to be given to the plaintiffs counsel
in order to enable him:
1. To move for a default order should the
defendant fail to answer on time, or
2. In case of non-service, so that alias
summons may be sought
In either of the 2 cases, server must
serve a copy of the return on plaintiffs
counsel within 5 days from completion or
failure of service
ALIAS SUMMONS (Rule 14, Sec. 5)
Upon plaintiffs demand, the clerk may issue an
alias summons if either:
1. Summons is returned without being
served on any/all of the defendants.
2. Summons was lost.
The server shall also serve a copy of the return
on the plaintiff's counsel within 5 days
therefrom, stating the reasons for the failure of
service
MODES OF SERVICE OF SUMMONS
Modes:
1. Personal Service (Rule 14, Sec. 6)
2. Substituted Service (Rule 14, Sec. 7)
3. Service by Publication (Rule 14, Sec. 14,
15, 16)
NOTE: Summons cannot be served by mail
- Where service is made by publication, a
copy of the summons and order of the
court shall be sent by registered mail to
last known address of defendant (Sec. 15)
Resort to registered mail is only
complementary to the service of
summons by publication
But it does not mean that service by
registered mail alone would suffice
PERSONAL SERVICE OF SUMMONS (Rule 14, Sec.
6)
How Done:
1. By handing a copy of summons to him; or
2. If he refuses to receive it, by tendering it
to him
Personal Service of
Pleadings

Personal Service of
Summons on

Rule 13, Sec. 6

Personal
service
includes:
1. Service on the
party
or
his
counsel; or
2. By leaving a
copy with the
clerk or person
having charge
of his office; or
3. Leaving it with
a
person
of
sufficient
age
and discretion
at the partys or
counsels
residence

Defendant
Rule 14, Sec. 6
Service is only made
on defendant himself

SUBSTITUTED SERVICE OF SUMMONS (Rule 14,

Sec. 7)
It is only when the defendant cannot be served
personally within a reasonable time and for
justifiable reasons that a substituted service may
be made.
How Done:
1. By leaving copies of the summons at the
defendants residence with some person
of suitable age and discretion residing
therein; or
2. By leaving the copies at defendants
office or regular place of business with
some competent person in charge thereof
Necessary Requisite: For substituted service of
summons to be valid, it is necessary to establish
the following:
1. The impossibility of the personal service
of summons within a reasonable time
2. The efforts exerted to locate the person
to be served; and
3. Service upon:
a. A person of sufficient age and
discretion residing in the same place
as defendant or
b. Some competent person in charge of
his office or regular place of business
(Spouses Ventura v. CA, 1987)
Meaning of RESIDENCE
1. For a substituted service to be valid,
summons served at the defendants
residence must be served at his residence
AT THE TIME OF SERVICE; not his former
place of residence
2. dwelling house or residence refers to
the dwelling house at the time of service
3. They refer to the place where the person
named in the summons is living at the
time of when the service is made, even

though he may be temporarily out of the

country at that time (Venturanza v. CA)

The Rule on Non-Resident Defendants (Extraterritorial Service); Rule 14, Sec. 15

Meaning of Defendants Office or Regular Place

of Business
1. Office or regular place of business
refers to the office or place of business of
defendant at the time of service
2. The rule specifically designates the
persons to whom copies of the process
should be left
3. To be in charge means to have care an
custody of, under control of, or entrusted
to the management or direction of
(Sandoval II v. House of Representatives)

Extra-territorial service is allowed IF:

1. The defendant
a. Does not reside in the Philippines
b. And is not found in the Philippines
2. And the action (in rem and quasi in rem)
a. Affects the personal status of the
plaintiff, or
b. Relates to or the subject of which is
property within the Philippines
(1) In which defendant has or claims a
lien
or
interest,
actual
or
contingent; or
(2) In which the relief demanded
consists, wholly or in part, in
excluding the defendant from any
interest therein, or
(3) Property of defendant has been
attached within the Philippines

Proof of Substituted Service MUST:

1. Indicate the impossibility of service of
summons within a reasonable time;
2. Specify the efforts exerted to locate the
defendant; and
3. State that the summons was served upon
a person of sufficient age and discretion
who is residing in the address, or who is
in charge of the office or regular place of
business, of the defendant.
4. It is likewise required that the pertinent
facts proving these circumstances be
stated in the proof of service or in the
officers return. [Sps. Tiu v. Villar (2012)]
CONSTRUCTIVE SERVICE (BY PUBLICATION)
Three Situations were Summons by Publication
may be allowed under Rule 14 (Baltazar v. CA)
1. First is the situation of an Unknown
Defendant governed by Sec. 14
2. Second
is
the
situation
were
Extraterritorial service is proper
governed by Sec. 15
3. Third, is that of a resident who is
temporarily out of the Philippines
governed by Sec. 16
The Rule on Unknown Defendants (Rule 14, Sec.
14)
If a defendant is a resident and plaintiff cannot
determine the correct address of respondent,
petitioner only needs to show that:
1. Respondents address is unknown and
2. Cannot be ascertained by diligent inquiry
Upon compliance with this requirement, it
can validly serve summons by publication
in a newspaper of general circulation.
(United Coconut Planters Bank v. Ongpin)
NOTE: Under this Section, summons by
publication can be made in ANY action
(personam, in rem, quasi in rem) unlike in cases
of Non-Resident Defendants.

NOTE: Always remember that extraterritorial service, when allowed, covers

only action in rem and quasi in rem.
How Extra-territorial service is done:
1. Always by leave of court
2. Modes:
a. Personal service as under Sec. 6, Rule
14
b. Publication in a newspaper of general
circulation in such places and for such
time as court may order
(1) A copy of the summons and order
of the court shall be sent by
registered mail to the last known
address of defendant
c. In any other manner the court may
deem sufficient
NOTE: Any order granting such leave shall
specify a reasonable time within which
defendant must answer BUT the time shall not
be less than 60 days after notice
The Rule on Residents Temporarily Outside of
the Philippines (Rule 14, Sec. 16)
How done:
1. Always by leave of court
2. Modes:
a. Where the defendant is residing in the
Philippines,
jurisdiction
over
his
person
may
be
acquired
by
substituted service of summons under
Sec. 7
b. Extra-territorial service is also allowed
(also by leave of court) according to
Sec. 16
NOTE: In other words, a resident defendant in an
action personam, who cannot be personally

served with summons, may be summoned either

by:
1. Substituted service in accordance with
Sec. 7, Rule 14
2. Or by service by publication under Sec.
16, Rule 14
When the action is in rem or quasi in rem, extraterritorial service may be effected provided that
Sec. 16 requirements are met.
SERVICE UPON PRISONERS AND MINORS
Service of Summons on Different Entities:
DEFENDANT
Entity
without
juridical
personality
(Sec. 8)

Minors and
incompetent
s (Sec. 10)

Domestic
private
juridical
entity (Sec.
11)

Foreign
private
juridical
entity (Sec.
12)

SERVICE OF SUMMONS
Upon any or all the defendants
being sued under common
name; or person in charge of
the office
In case of minors: by serving
upon:
1. The minor, regardless of
age, AND
2. Upon his legal guardian,
or also upon either of his
parents
In case of incompetents: by
serving on:
1. Him personally AND
2. Upon his legal guardian,
but not upon his parents,
unless they are his legal
guardians
In any event: if the minor or
incompetent
has
no
legal
guardian, the plaintiff must
obtain the appointment of a
guardian ad litem for him
Serve to either: (Exclusive
enumeration)
1. The president,
2. Managing partner,
3. General manager,
4. Corporate secretary,
5. Treasurer, or
6. In- house counsel
Service may be done on:
1. The resident agent;
2. If no resident agent;
a. The
government
official designated by
law; or
b. Any officer or agent
of the corporation
within the Philippines

MOTIONS

Public
corporations
(Sec. 13)

In case defendant is the

Republic, by serving upon the
Solicitor General
In case of a province, city or
municipality, or like public
corporations, by serving on its
executive head or on such other
officer or officers as the law or
the court may direct

PROOF OF SERVICE
The proof of service of summons (Rule 14, Sec.
18):
1. Shall be made in writing
2. It shall:
a. Set forth the manner, place, date of
service
b. Specify any papers which may have
been served with the process and the
name of the person who received the
same
c. Shall be sworn to when made by a
person, other than the sheriff or his
deputy
If service has been made by publication, service
may be proved by: (Rule 14, Sec. 19)
1. The affidavit of the printer, his foreman,
or principal clerk; or of the editor,
business or advertising manager
Copy of the publication shall be
attached
2. AND an affidavit showing:
a. The deposit of a copy of the
summons; and
b. Order of publication in the post office,
postage
prepaid,
directed
to
defendant by registered mail to his
last known address
Effect of Defect of Proof of Service:
1. Where sheriffs return is defective,
presumption
of
regularity
in
the
performance of official functions will not
lie
2. Defective return is insufficient and
incompetent to prove that summons was
indeed served
3. Party alleging valid summons will now
prove that summons was indeed served
4. If there is no valid summons, court did
not acquire jurisdiction which renders null
and void all subsequent proceedings and
issuances
A motion is an application for relief other than by
a pleading. (1a)

MOTIONS IN GENERAL
DEFINITION OF A MOTION

MOTIONS VERSUS PLEADINGS

Motion

Pleading

Contains allegations
of facts
Prays for a relief
Grant of the relief
does not extinguish
the action
(interlocutory relief)
Generally in writing
(with some
exceptions)

Contains allegations
of the ultimate facts
Prays for a relief
Grant of relief
extinguishes the
action (final relief)

3. Notice of hearing shall be addressed to all

parties, and shall specify the time and
date of the hearing which shall not be
later than 10 days from the filing of the
motion. [Rule 15, Sec. 5]
Notice must be addressed to the
counsels. A notice of hearing addressed
to the clerk of court, and not to the
parties, is no notice at all. Accordingly, a
motion that does not contain a notice of
hearing to the adverse party is nothing
but a mere scrap of paper, as if it were
not filed; hence, it did not suspend the
running of the period to appeal.
[Provident International Resources v. CA
(1996)]

Always in writing

General Rule: A motion cannot pray for judgment

Exceptions:
1. Motion for judgment on the pleadings.
2. Motion for summary judgment.
3. Motion for judgment on demurrer to
evidence.
CONTENTS AND FORM OF MOTIONS
Contents (Rule 15, Sec. 3)
1. Relief sought to be obtained
2. Grounds upon which it is based
3. Accompanied by supporting affidavits and
other papers if:
a. Required by the Rules, or
b. Necessary to prove facts alleged
therein
Form (Rule 15, Sec. 2)
General Rule: In writing.
Exception: Oral motions:
1. Motions for continuance made in the
presence of the adverse party or those
made in the course of the hearing or trial
2. Those made in open court even in the
absence of the adverse party or those
made in the course of a hearing or trial
NOTICE OF HEARING AND HEARING OF MOTIONS
Requisites of motions (not made in open court or
in the course of hearing/trial)
1. It must be in writing; [Rule 15, Sec. 2]
Exception: Oral motions
2. Hearing on
applicant

the

motion

set

by

the

Motion Day (Rule 15, Sec. 7) - Except for

urgent motions, motions are scheduled
for hearing:
a. On Friday afternoons;
b. Afternoon of the next working day, if
Friday is a non-working day.

Effect of Want of Notice: A motion that

does not contain a notice of hearing is but
a mere scrap of paper. A court has no
jurisdiction to issue an order in
consideration of a motion for correction of
judgment which does not have a proper
notice of hearing (Fajardo v. CA)

4. Motion and notice of hearing must be

served at least 3 days before the date of
hearing; [Rule 15, Sec. 4]
Purpose: To prevent surprise upon the
adverse party and to enable the latter to
study and meet the arguments of the
motion.
Exceptions:
a. Ex parte motions;
b. Urgent motions;
c. Motions agreed upon by the parties to
be heard on shorter notice, or jointly
submitted by the parties;
d. Motions for summary judgment which
must be served at least 10 days
before its hearing.
5. Proof of Service
Proof of Service (Rule 15, Sec. 6)
General Rule: A written motion set for hearing
will not be acted upon by the court if there is no
proof of service thereof.
What may be proof:
1. If by registered mail: Affidavit or registry
receipt or postmark on envelope or return
card, with an explanation.
2. If by personal service: Affidavit or
acknowledgment of receipt by the other
party.
Exceptions:

1. If the motion is one which the court can

hear ex parte.
2. If the court is satisfied that the rights of
the adverse parties are not affected by
the motion.
3. If the party is in default because such a
party is not entitled to notice.
OMNIBUS MOTION RULE
Definition: A motion attacking a pleading/ order/
judgment/ proceeding must include all objections
then available. All objections not included in the
motion are deemed waived.
Purpose: To require the movant to raise all
available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided
Exception: When the courts jurisdiction is in
issue:
1. Lack of jurisdiction over subject-matter;
2. Litis pendentia;
3. Res judicata;
4. Prescription.
LITIGATED AND EX PARTE MOTIONS
Kinds of Motion
1. Motion Ex Parte - Made without
notification to the other party because
the question generally presented is not
debatable.
2. Litigated Motion - Made with notice to the
adverse party so that an opposition
thereto may be made.
3. Motion Of Course - Motion for a kind of
relief/remedy to which the movant is
entitled to as a matter of right,
Allegations contained in such motion do
not have to be investigated/verified.
4. Special Motion - Discretion of the court is
involved. An investigation of the facts
alleged is required.
PRO FORMA MOTIONS
Definition - A motion failing to indicate time and
date of the hearing

MOTIONS FOR BILL OF PARTICULARS

DEFINTION
It is a detailed explanation respecting any matter
which
is
not
averred
with
sufficient
definiteness/particularity in the complaint as to
enable a party to properly prepare his responsive
pleading or to prepare for trial. [Rule 12, Sec. 1]
PURPOSE AND WHEN APPLIED FOR
It is filed by the plaintiff pursuant to a court
order issued upon granting a motion for Bill of
Particulars filed by the defendant before the
latter files an answer.
- In said motion, the defendant prays for a
more definite statement of matters which
are
not
averred
with
sufficient
definiteness in the complaint.
- An action cannot be dismissed on the
ground
that
the
complaint
is
vague/indefinite. The remedy of the
defendant is to move for a Bill of
Particulars or avail of the proper mode of
discovery. [Galeon v. Galeon (1973)]
Purpose: to define/ clarify/ particularize/ limit/
circumscribe the issues in the case to expedite
the trial and assist the court.
- The only question to be resolved in a
motion for a Bill of Particulars is WON the
allegations in the complaint are averred
with sufficient definiteness/ particularity
to enable the movant to properly prepare
his responsive pleading and to prepare
for trial. [Tantuico, Jr. v. Republic (1991)]
- A Bill of Particulars becomes part of the
pleading for which it was intended. [Rule
12, Sec. 6]
When Applied For: [Rule 12, Sec. 1]
1. Before responding to a pleading
2. If the pleading is a reply, within 10 days
from service thereof
What a Motion for a Bill of Particulars should
point out: (Rule 12, Sec. 1)
1. The defects complained of;
2. The
paragraph
wherein
they
are
contained;
3. The details desired.
What cannot be done in a Bill of Particulars:
- To supply material allegations necessary
to the validity of a pleading
- To change a cause of action or defense
stated in the pleading
- To state a cause of action or defense
other than that one stated
- To set forth the pleaders theory of his
cause of action or a rule of evidence on
which he intends to reply
- To furnish evidentiary information

ACTIONS OF THE COURT

Upon the filing of the motion, the clerk must
immediately bring it to the attention of the court.
The court may: (Rule 12, Sec. 2)
1. Deny
2. Grant the motion outright
3. Allow the parties the opportunity to be
heard
COMPLIANCE WITH THE ORDER AND EFFECT OF
NONCOMPLIANCE
Compliance with Order (Rule 12, Sec. 3) If
motion is granted wholly/partially:
1. Within 10 days from notice of order, Bill of
Particulars or a more definite statement
should be submitted (unless court fixes a
different period).
2. Bill of Particulars or definite statement
filed either as a separate pleading or as
an amended pleading, a copy of which
must be served on the adverse party.
Effect of Non-Compliance (Rule 12, Sec. 4)
1. In case of non-compliance or insufficient
compliance with the order for Bill of
Particulars, the court:
a. May order the striking out of the
pleading (or portion thereof) to which
the order is directed; OR
b. Make such order as it may deem just.
2. If a party fails to obey:
a. If the plaintiff fails to obey, his
complaint may be dismissed with
prejudice unless otherwise ordered by
the court. [Rule 12, Sec. 4; Rule 17,
Sec. 3]
b. If defendant fails to obey, his answer
will
be
stricken
off
and
his
counterclaim dismissed, and he will
be declared in default upon motion of
the plaintiff. [Rule 9, Sec. 3; Rule 12,
Sec. 4; Rule 17, Sec. 4]
EFFECT ON THE PERIOD TO FILE PLEADING (Rule
12, Sec. 5)
A Motion for Bill of Particulars interrupts the
period to file a responsive pleading.
BUT only if it is sufficient in the form and
substance.
The period to which the movant is entitled at the
time of filing of the motion, which shall not be
less than 5 days in any event.
NOTE the following distinctions:

Bill of Particulars
Purpose is to enable a
party bound to
respond to a pleading
to get more details
about matters which
are alleged generally
or which are indefinite
and vague,
so as to properly
guide such party in
answering the
pleading and to avoid
surprise in the trial of
the case

Available to the
defendant before he
files his responsive
pleading

Intervention

Purpose is to enable a
person not yet a party
to an action, yet
having a certain right
or interest in such
action, the
opportunity to appear
and be joined
so he could assert or
protect such right or
interest
Available to any
person not yet a party
to the action at any
time after the
commencement of an
action, even during
the proceeding, but
not after the trial has
been concluded

Effect of Motion:
1. If the motion is granted, in whole or in
part,
a. The movant can wait until the bill of
particulars is served on him by
opposing party
b. Then he will have the balance of the
reglementary period within which to
file his responsive pleading
2. If the motion is denied
a. He will still have such balance of the
reglementary period to file his
responsive pleading, counted from
service of the order denying his
motion
IN ANY CASE: The party will have at least
5 days to file his responsive pleading

MOTION TO DISMISS
IN GENERAL
Definition A remedy of the defendant, or the
responding party in general, which attacks the
entire pleading and seeks its dismissal based on:
1. Grounds which are patent on the face of
the complaint;
2. Defenses available to the defendant at
the time of the filing of the complaint
It hypothetically admits the facts stated in the
complaint.
It is not a responsive pleading. It is not a
pleading at all. It is subject to the omnibus
motion rule since it is a motion that attacks a
pleading. Hence, it must raise all objections
available at the time of the filing thereof.
Types of Dismissal of Action:
1. MTD before answer under Rule 16;
2. MTD under Rule 17:
a. Upon notice by plaintiff;
b. Upon motion by plaintiff;
c. Due to fault of plaintiff.
3. Demurrer to evidence after plaintiff has
completed the presentation of his
evidence under Rule 33;
4. Dismissal of an appeal.
Period to File: Within the time for, but before
filing of, the answer to the complaint or pleading
asserting a claim
Exceptions:
a. For special reasons which may be
allowed even after trial has begun, a
motion to dismiss may be filed
b. The court has allowed the filing of a
motion to dismiss where the evidence
that would constitute a ground for
dismissal was discovered during trial
General Rule: A court may NOT motu propio
dismiss a case, unless a motion to that effect is
filed by a party.
Exceptions:
1. Cases where the court may dismiss a
case motu propio; [Rule 9, Sec. 1]
2. Failure to prosecute; [Rule 17, Sec. 3]
3. Sec. 4, Revised Rule on Summary
Procedure.
GROUNDS: Rule 16, Sec. 1
1. Lack of jurisdiction over the defendants
person
2. Lack of jurisdiction over the subject
matter of the claim
3. Improper venue
4. Plaintiffs lack of legal capacity to sue
5. Litis pendentia

6. Res judicata
7. Prescription
8. Failure to state a cause of action
9. Extinguished claim
10. Unenforceable claim under the Statute of
Frauds
11. Non-compliance
with
a
condition
precedent for filing claim
NOTE: Complaints cannot be dismissed on
ground not alleged in a motion to dismiss. The
motion may be based on only one of the grounds
enumerated in Sec. 1, Rule 16
Lack of Jurisdiction (LOJ) over the Defendants
Person
The objection of LOJ over the person on account
of lack of service or defective service of
summons, must be raised:
1. At the very first opportunity;
2. Before any voluntary appearance is
made.
In La Naval Drug Corp. v. CA, et al. the Court
held that while lack of jurisdiction over the
person of defendant may be duly and
seasonably raised, his voluntary appearance in
court without qualification is a waiver of such
defense.
Appearance of counsel is equivalent to
summons, unless such is made to protest the
jurisdiction of the court over the person of the
defendant. If grounds other than invalid service
of summons are raised, it cannot be considered
as a special appearance. [De los Santos v.
Montesa (1993)]
NOTE: Sec. 20, Rule 14 makes a categorical
statement that the inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant
shall not be deemed voluntary appearance on
his part.

Lack of Jurisdiction over the Subject Matter of

the Claim
If the complaint shows on its face LOJ, the court
may dismiss the case outright instead of hearing
the motion.
A MTD on the ground of LOJ over the subject
matter may be raised either:
1. Before answer;
2. After answer is filed;
3. After hearing had commenced;
4. At any stage of the proceeding, even for
the first time on appeal and even if no
such defense is raised in the answer.

NOTE: The rule refers to the subject matter of

each particular claim and not only to that of the
suit. Hence. other initiatory pleadings included.
Where a party invokes the jurisdiction of a court
to obtain affirmative relief and fails, he cannot
thereafter repudiate such jurisdiction. While the
issue of jurisdiction may be raised at any time,
he is estopped as it is tantamount to speculating
on the fortunes of litigation (Crisostomo, et al. v.
CA)
Improper Venue
Unless and until the defendant objects to the
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
improperly laid since, for all practical intents and
purposes, the venue though technically wrong
may yet be considered acceptable to the parties
for whose convenience the rules on venue had
been devised. Improper venue may be waived
and such waiver may occur by laches. [Diaz v.
Adiong (1993)]
Where a motion to dismiss for improper venue is
erroneously denied, the remedy is prohibition
(Enriquez v. Macadaeg)
Where the plaintiffs filed the action in a court of
improper venue and thereafter submitted to its
jurisdiction, the issue of venue was thereby
waived and they are in estoppel to repudiate or
question the proceedings in said court (Vda. De
Suan, et al. v. Cusi, et al.)
Objection to venue is also impliedly waived
where the party enters into trial, cross-examines
the witnesses of the adverse party and adduces
evidence (Paper Industries Corp of the
Philippines v. Samson et al.)
Plaintiffs Lack of Legal Capacity to Sue:
The plaintiff lacks legal capacity to sue:
1. When he does not possess the necessary
qualification to appear at the trial (e.g.
when he plaintiff is not in the full exercise
of his civil rights);
2. When he does not have the character
which he claims, which is a matter of
evidence (e.g. when he is not really a
duly appointed administrator of an
estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real
party in interest, in which case the ground for
dismissal would be that the complaint states no
cause of action.

The issue of plaintiffs lack of legal capacity to

sue cannot be raised for the first time on appeal
where the defendant dealt with the former as a
party in the proceedings below (Univ. of
Pangasinan Faculty Union v. Univ. of Pangasinan)
Litis pendentia
Requisites: (Anderson Group v. CA, 1997)
1. Identity of parties;
2. identity of rights asserted and relief
prayed for;
3. Relief founded on the same facts and the
same basis;
4. Identity in the 2 proceedings should be
such that any judgment which may be
rendered in the other action will amount
to res judicata on the action under
consideration.
It is not required to allege that there be a prior
pending case. It is sufficient to allege and prove
the pendency of another case, even if same had
been brought later.
It does not require that the later case be
dismissed in favor of the earlier case. To
determine which case should be abated, apply:
1. The More Appropriate Action Test;
2. The Interest of Justice Test, taking into
account:
a. Nature of the controversy;
b. Comparative accessibility of the court
to the parties;
c. Other similar factors.
In both tests, the parties good faith shall be
taken into consideration.
The 1st case shall be abated if it is merely an
anticipatory action or defense against an
expected suit. The 2nd case will not be abated if
it is not brought to harass. [Vitrionics Computers
v. RTC (1993)]
Res Judicata
Requisites:
1. Former judgment rendered by a court
having jurisdiction over the subject
matter and over the parties;
2. Judgment must be a final judgment;
3. Judgment must be on the merits;
a. There can be res judicata without a
trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
4. There must be identity of parties, of
subject matter and of the causes of
action.

For res judicata to apply, absolute identity of

parties is not required because substantial
identity is sufficient. Inclusion of additional
parties will not affect the application of the
principle of res judicata.
The test of identity of cause of action lies not in
the form of the action but on WON the same
evidence would support and establish the former
and the present causes of action. [DBP v.
Pundogar (1993)]
Rationale: The sum and substance of the whole
doctrine is that a matter once judicially decided
is finally decided because of:
1. Public policy and necessity makes it the
interest of the State that there should be
an end to litigation;
2. The hardship on the individual that he
should be vexed twice for the same
cause. [Nabus v. CA (1991)]
Two concepts of res judicata [Abalos v. CA 1993)
1. Bar by prior judgment Judgment on the
merits in the 1st case constitutes an
absolute bar to the subsequent action not
only as to every matter which was offered
and received to sustain or defeat the
claim/demand, but also to any other
admissible matter which might have been
offered for that purpose and to all
matters that could have been adjudged in
that case. (Asked in the 2002 Bar Exam)
2. Conclusiveness of judgment Where the
2nd action between the parties is upon a
different claim/demand, the judgment in
the 1st case operates as an estoppel only
with regard to those issues directly
controverted, upon the determination of
which the judgment was rendered.
Statute of Limitations
Prescription applies only when the complaint on
its face shows that indeed the action has already
prescribed.
If the fact of prescription is not indicated on the
face of the complaint and the same may be
brought out later, the court must defer decision
on the motion until such time as proof may be
presented on such fact of prescription.
Prescription

Laches

Concerned with the

fact of delay
A matter of time
Statutory
Applies in law
Based on fixed time

Concerned with the

effect of delay
A matter of equity
Not statutory
Applies in equity
Not based on fixed
time

Defense of prescription is waived and cannot be

considered on appeal if not raised in the trial
court (Ramos v. Osorio)
However, if the allegations of the complaint, or
evidence presented, clearly indicate that the
action has prescribed, or where there is no issue
in fact as to prescription, defense of prescription
is not deemed waived by failure to allege the
same (Chua Lamko v. Dioso)
Estoppel and prescription cannot be invoked
against the State (Republic v. CA)
A motion to dismiss on the ground of prescription
will be given due course only if the complaint
shows on its face that the action has already
prescribed (Sison v. McQuaid)
If it is not apparent on its face, take note that
Sec. 3 prohibits deferment of the resolution of
the motion. Thus:
1. Evidence may be received in support of
the motion under Sec. 2, Rule 16; or
2. The motion to dismiss should be denied
without prejudice to the complaints
dismissal if evidence disclose that the
action had already prescribed (Sec. 1,
Rule 9)
Complaint States No Cause of Action
Failure to state a cause of action (not lack of
cause of action) is the ground for a MTD. The
former means there is insufficiency in the
allegations in the pleading. The latter means
that there is insufficiency in the factual basis of
the action.
The failure to state a cause of action must be
evident on the face of the complaint itself.
Test: Assuming the allegations and statements
to be true, does the plaintiff have a valid cause
of action?
A MTD based upon the ground of failure to state
a cause of action imports a hypothetical
admission by the defendant of the facts alleged
in the complaint.
If the court finds the allegations of the complaint
to be sufficient but doubts their veracity, it must
deny the MTD and require the defendant to
answer and then proceed to try the case on its
merits.
A complaint containing a premature cause of
action may be dismissed for failure to state a
cause of action.
If the suit is not brought against the real partyin-interest, a motion to dismiss may be filed on

the ground that the complaint states no cause of

action. [Tanpinco v. IAC (1992)]
Complaint states no
cause of action
Insufficiency of
allegations in the
pleading
May be raised in a
Motion to Dismiss at
any time but before
the filing the answer
to the complaint or
pleading asserting a
claim
Dismissal due to
failure to state a
cause of action can
be made at the
earliest stages of an
action and without
prejudice

No cause of action
Insufficiency of factual
basis for the action

may be raised at any

time

6. A representation as to the credit of a third

person.
Unlike a motion to dismiss on the ground that
the complaint states no cause of action, a
motion invoking the Statute of Frauds may be
filed even if the absence of a cause of action
does not appear on the face of the complaint.
Such absence may be proved during the hearing
of the motion to dismiss on said ground.
(Yuviengco et al. v. Dacuycuy, etc., et al.)
Non-Compliance with a Condition Precedent

dismissal due to lack

of cause of action is
made after questions
of fact have been
resolved on the basis
of stipulations,
admissions or
evidence presented
and with prejudice

Extinguished Claim
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or
otherwise extinguished.
Unenforceable Claim under the Statute of Frauds
Article 1403 (2) CC requires certain contracts to
be evidenced by some note or memorandum in
order to be enforceable, to wit:
1. An agreement that by its terms is not to
be performed within a year from the
making thereof;
2. A special promise to answer for the debt,
default, or miscarriage of another;
3. An agreement made in consideration of
marriage, other than a mutual promise to
marry;
4. An agreement for the sale of goods,
chattels or things in action, at a price not
less than five hundred pesos, unless the
buyer accept and receive part of such
goods and chattels, or the evidences, or
some of them, of such things in action, or
pay at the time some part of the
purchase money; but when a sale is
made by auction and entry is made by
the auctioneer in his sales book, at the
time of the sale, of the amount and kind
of property sold, terms of sale, price,
names of the purchasers and person on
whose account the sale is made, it is a
sufficient memorandum;
5. An agreement for the leasing for a longer
period than one year, or for the sale of
real property or of an interest therein;

Where the plaintiff has not exhausted all

administrative remedies, the complaint not
having alleged the fact of such exhaustion, the
same may be dismissed for lack of cause of
action (Pineda v. CFI Davao, et al.)
Where the complaint does not state that it is one
of the excepted cases, or it does not allege prior
availment of conciliation process, or it does not
have a certification that no conciliation or
settlement had been reached under P 1508, case
should be dismissed on motion (Morata v. Go, et
al.)
Where the defendant had participated in the trial
court without any invocation of PD 1508, and the
judgment therein had become final and
executory, but said defendant thereafter sought
the annulment of the decision for alleged lack of
jurisdiction, the same was denied under the
doctrine of estoppel and laches (Royales, et al.,
v. IAC)

RESOLUTION OF MOTION
During the hearing of the motion: Parties shall
submit:
1. Their arguments on questions of law
2. Their evidence on questions of fact (Rule
16, Sec. 2)
a. Exception: Those not available at that
time
Parties should be allowed to present
evidence and the evidence should be taken
down
EXCEPT: when the motion is based on the
ground of insufficiency of cause of action
which must generally be determined on the
basis of the facts alleged in the complaint
Trial: If the case goes to trial, such evidence
presented shall automatically be part of the
evidence of the party presenting the same.
Lack of formal hearing of a motion to dismiss is
not fatal where the issues raised were fully

discussed in the
(Castillo v. CA)

motion

and

opposition.

After hearing: Court may either:

1. Dismiss the action/claim
2. Deny the MTD
3. Order amendment of the pleadings
The court cannot defer the resolution of the MTD
for the reason that the ground relied upon is not
indubitable.
The courts resolution on the MTD must clearly
and distinctly state the reasons therefor.
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT
IS DISMISSED
If the motion is granted, the complaint is
dismissed. Since the dismissal is final and not
interlocutory in character, the plaintiff has
several options:

from service of amended pleading

unless the court provides a longer
period
2. Another remedy is to file a certiorari, case
under Rule 65 alleging grave abuse of
discretion. [Riano]
EFFECT OF DISMISSAL
CERTAIN GROUNDS

OF

COMPLAINT

ON

General rule: The action/claim may be re-filed.

Exception: The action cannot be re-filed
(although subject to appeal) if it was dismissed
on any of the following grounds:
1. Res judicata;
2. Prescription;
3. Extinguishment of the claim/demand;
4. Unenforceability under the Statute of
Frauds. [Rule 16, Sec. 1 (f),(h),(i)]

1. Depending upon the ground for the

dismissal of the action, the plaintiff may
REFILE the complaint,
a. These are orders of dismissal which is
not tantamount to an adjudication on
the merits
b. e.g when ground for dismissal is
anchored on improper venue.

WHEN GROUNDS
DEFENSES

2. He may APPEAL from the order of

dismissal where the ground relied upon is
one which bars refilling of complaint
a. The grounds which bar re-filing are:
(1) Res judicata
(2) Prescription
(3) Extinguishment of the obligation
(4) Violation of Statutes of Fraud

NOTE: The dismissal of the complaint under this

section shall be without prejudice to the
prosecution in the same or separate action of a
counterclaim pleaded in the answer.

3. The plaintiff may also avail of a petition

for certiorari, alleging grave abuse of
discretion. [Riano]
REMEDIES OF THE DEFENDANT WHEN MOTION IS
DENIED

PLEADED

AS

AFFIRMATIVE

If no motion to dismiss had been filed, any of the

grounds for dismissal may be pleaded as
affirmative defenses and a preliminary hearing
may be had at courts discretion. (Rule 16, Sec.
6)

If the defendant would not want to file a

counterclaim, he should not file a motion to
dismiss
Instead, he should allege the grounds
of a motion to dismiss as affirmative
defenses in his answer with a
counterclaim
A preliminary hearing may be had
thereon, and in the event the
complaint is dismissed, defendant can
prosecute his counterclaim (Herrera)

Appeal is NOT a remedy since denial of a motion

to dismiss is an interlocutory order. As a general
rule, defendant files his answer and then may
appeal an adverse judgment.

DISTINGUISHED FROM DEMURRER TO EVIDENCE

UNDER RULE 33

Remedies of Defendant:

A motion to dismiss under this Rule differs from a

motion to dismiss under Rule 33 on demurrer to
evidence:

1. The movant shall file his answer within

the balance of the period described in
Rule 11 to which he was entitled at the
time of serving his motion, but not less
than 5 days in any event.
a. If pleading is ordered to be amended,
he shall file his answer within the
period prescribed by Rule 11 counted

MOTION TO DISMISS
Grounded on
preliminary objections
May be filed by any
defending party
against whom a claim

DEMURRER TO
EVIDENCE
Based on insufficiency
of evidence
May be filed only by
the defendant against
the complaint of the

is asserted in the
action
Should be filed within
the time for but prior
to the filing of the
answer of the
defending party to the
pleading asserting the
claim against him
If denied, defendant
must file an answer,
or else he may be
declared in default
If granted, plaintiff
may appeal or if
subsequent case is
not barred, he may refile the case

DISMISSAL OF ACTIONS
DISMISSAL UPON NOTICE BY PLAINTIFF;
TWO-DISMISSAL RULE (Rule 17, Sec. 1)
Dismissal by plaintiff as a matter of right
Dismissal is effected not by motion but by mere
notice of dismissal which is a matter of right
before the service of:
1. The answer; or
2. A motion for summary judgment
The dismissal as a matter of right ceases when
an answer or a motion for summary judgment is
served on the plaintiff and not when the answer
or the motion is filed with the court.
Dismissal NOT Automatic - It requires an order
by the court confirming the dismissal. Until
confirmed, the withdrawal does not take effect
Generally, Dismissal is Without Prejudice
General Rule: Dismissal is without prejudice
Exceptions:
1. Where the notice of dismissal so provides;
or
2. Where the plaintiff has previously
dismissed the same case in a court of
competent jurisdiction (Two Dismissal
Rule)
3. Even where the notice of dismissal does
not provide that it is with prejudice but it
is premised on the fact of payment by the
defendant of the claim involved (Serrano
v. Cabrera)
Two Dismissal Rule - when the same complaint
had twice been dismissed by the plaintiff without
order of the court by simply filing a notice of
dismissal, the 2nd dismissal operates as an
adjudication on the merits.

plaintiff
May be filed for the
dismissal of the case
only after the plaintiff
has completed the
presentation of his
evidence
If denied, defendant
may present evidence
If granted, plaintiff
appeals and the order
of dismissal is
reversed, defendant
loses his right to
present evidence

DISMISSAL UPON MOTION BY PLAINTIFF;

EFFECT ON EXISTING COUNTERCLAIM (Rule
17, Sec. 2)
Under this section, dismissal of the complaint is
subject to the discretion of the court and upon
such terms and conditions as may be just.
Generally, Dismissal is Without Prejudice
General Rule: Dismissal is without prejudice
Exceptions:
1. When otherwise stated in the motion to
dismiss; or
2. When stated to be with prejudice in the
order of the court
Effect on Counterclaim:
If counterclaim has been pleaded by defendant
prior to service upon him of plaintiffs motion for
dismissal, dismissal shall be limited to the
complaint
- Remember that if the civil case is
dismissed, so also is the counterclaim
filed therein
It was held that if the court does not
have jurisdiction to entertain the main
action of the case and dismiss the
case,
then
the
compulsory
counterclaim, being ancillary to the
principal controversy must likewise be
dismissed
(Metals
Engineering
Resources v. CA)
- However, under this section, if a
counterclaim has been pleaded by a
defendant PRIOR to the service upon him
of the plaintiffs motion for dismissal, the
dismissal shall be limited to the
complaint.
Such dismissal shall be without prejudice to the
right of the defendant to either:

1. Prosecute his counterclaim in a separate

action;
a. In this case, the court should render
the corresponding order granting and
reserving his right to prosecute his
claim in a separate complaint
2. OR to have the same resolved in the
same action
a. In this case, defendant must manifest
such preference to the trial court
within 15 days from notice to him of
plaintiffs motion to dismiss
NOTE: These alternative remedies of the
defendant are available to him regardless
of
whether
his
counterclaim
is
compulsory or permissive
DISMISSAL DUE TO FAULT OF PLAINTIFF
(Rule 17, Sec. 3)
Distinction between Sec. 2 and Sec. 3 of Rule 17
SECTION 2
Dismissal is at the
instance of the
plaintiff
Dismissal is a matter
of procedure, without
prejudice unless
otherwise stated in
the court order or on
motion to dismiss
Dismissal is without
prejudice to the right
of defendant to
prosecute his
counterclaim in a
separation action
unless within 15 days
from notice of motion
he manifests his
intention to have his
counterclaim resolved
in the same action

SECTION 3
Dismissal is not
procured by plaintiff
though justified by
causes imputable to
him
Dismissal is a matter
of evidence, an
adjudication on the
merits

Dismissal is without
prejudice to the right
of defendant to
prosecute his
counterclaim on the
same or separate
action

Dismissal under this Section

The case may be dismissed motu proprio or
upon the defendants motion if, without
justifiable cause, plaintiff fails either:
1. To appear on the date of the presentation
of his evidence-in-chief on the complaint;
a. The plaintiffs failure to appear at the
trial after he has presented his
evidence and rested his case does not
warrant the dismissal of the case on
the ground of failure to prosecute.
b. It is merely a waiver of his right to
cross-examine and to object to the
admissibility of evidence. [Jalover v.
Ytoriaga (1977)]

c. Since plaintiffs presence is now

required only during the presentation
of his evidence in chief, his absence
during the presentation of defendant
or other parties evidence, or even at
rebuttal or subsequent stages, is not a
ground for dismissal.
2. To
prosecute
his
action
for
an
unreasonable length of time (nolle
prosequi);
a. The test for dismissal of a case due to
failure to prosecute is WON, under the
circumstances,
the
plaintiff
is
chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
b. The dismissal of an action pursuant to
this rule rests upon the sound
discretion of the court ( Smith Bell and
Co. v. American President Lines Ltd.)
c. The action should never be dismissed
on a non-suit for want of prosecution
when the delay was caused by the
parties looking towards a settlement.
(Goldloop Properties Inc. v. CA)
3. To comply with the Rules or any court
order.
a. The order must be valid
b. Failure to comply with order:
(1) Dismissal for failure to comply
with order to amend complaint to
make
claims
asserted
more
definite is ground for dismissal
(Santos v. General Wood Craft)
(2) Failure to comply with an order to
include indispensable parties is
ground for dismissal (AranicoRubino v. Aquino)
(3) The failure to comply with order of
new judge to recall witness so he
may
observe
demeanor
is
sufficient ground for dismissal
(Castillo v. Torres)
c. Failure to comply with rules
(1) The failure of the parties to submit
a compromise agreement within
period granted to them by court is
not a ground for dismissal
(Goldloop Properties Inc. v. CA)
(2) Dismissal is improper where a 3rd
party
complaint
has
been
admitted and the 3rd party
defendant had not yet been
summoned (Sotto v. Valenzuela)
(3) A case may be dismissed for
failure
to
answer
written
interrogatories under Rule 25 even
without an order from the court to
answer. (Arellano v. CFI- Sorsogon)
Effect of Dismissal:
General Rule: Dismissal of actions under Sec. 3
which do not expressly state whether they are

with or without prejudice are held to be with

prejudice on the merits
Exceptions:
1. The court declares otherwise, without
prejudice to the right of the defendant to
prosecute his counter-claim in the same
or separate action
2. If court has not yet acquired jurisdiction
over the person of the defendant
Effect on Counterclaim:
Defendant is granted the choice to prosecute
that counterclaim in either the same or a
separate action, just like the grant of that
remedy in Sec. 6, Rule 16
In this section (as well as in Sec. 6, Rule 16),
defendant is not required to manifest his
preference within a 15-day period as in Sec. 2
- The motions to dismiss in this section and
in Sec. 6, Rule 16, are filed by defendant
who perforce has already deliberated
upon the course of action he intends to
take on his counterclaim and which he
may even manifest right in his motion to
dismiss
- The dismissal in Sec. 2 is at the instance
of plaintiff, hence, defendant is granted
the time and duty to manifest preference
within 15 days from notice, after an
opportunity to study the situation
DISMISSAL OF COUNTERCLAIM, CROSSCLAIM, OR THIRD-PARTY COMPLAINT

PRE-TRIAL
CONCEPT OF PRE-TRIAL
Pre-Trial is a mandatory conference and personal
confrontation before the judge between the
parties and their respective counsel, called by
the court after the joinder of issues in a case or
after the last pleading has been filed and before
trial, for the purpose of settling the litigation
expeditiously or simplifying the issues without
sacrificing the necessary demands of justice.
It is a procedural device by which the court is
called upon, after the filing of the last pleading,
to compel the parties and their lawyers to
appear before it, and negotiate an amicable
settlement or otherwise make a formal
settlement and embody in a single document the
issues of fact and law involved in the action, and
such other matters as may aid in the prompt
disposition in the case, such as:
1. Number of witnesses
2. Tenor or character of their testimonies
3. Documentary evidence; nature and
purpose of each
4. Number of trial dates

Provisions of Rule 17 shall apply to the dismissal

of any counterclaim, cross-claim, or third-party
complaint
Voluntary dismissal by claimant by notice as in
Sec. 1, shall be made:
1. Before a responsive pleading or motion
for summary judgment is served; or
2. If there is none, before introduction of
evidence at trial or hearing
Effect of Dismissals
1. Dismissal or continuance of an action
operates to annul orders, ruling, or
judgments previously made in the case
2. It also annuls all proceedings had in
connection therewith and renders all
pleadings ineffective
3. Dismissal or non-suit leaves the situation
as though no suit had ever been brought
Where a counterclaim is made the subject of a
separate suit, it may be abated upon a plea of
auter action pendentia and/or dismissal on the
ground of res judicata. Res judicata, however, is
not applicable since the court held that it did not
acquire jurisdiction due to non-payment of
docket fees.
Dismissal on the ground of LOJ does not
constitute res judicata, there being no
consideration and adjudication of the case on
the merits. Neither is there litis pendentia.
[Meliton v. CA (1992)]
NATURE AND PURPOSE
Purpose of pre-trial is to consider: (Rule 18, Sec.
2)
1. Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution;
2. Simplification of the issues;
3. Necessity/desirability of amendments to
the pleadings;
4. Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
5. Limitation of the number of witnesses;
6. Advisability of a preliminary reference of
issues to a commissioner;
7. Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefor be found to exist;
8. Advisability/necessity of suspending the
proceedings; and
9. Other matters that may aid in the prompt
disposition of the action.
Pre-trial is Mandatory
- Vital
objective:
the
simplification,
abbreviation, and expedition of the trial, if
not indeed its dispensation

Mandatory nature is addressed to both

court and parties:
Court must set the case for pre-trial
and notify the parties as well as
counsel to appear
Parties with their counsel are obliged
to obey the order of the court to that
effect

Primary Objective
Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
Thus, to obviate the element of surprise, parties
are expected to disclose at a pre-trial conference
(PTC) all issues of law and fact which they intend
to raise at the trial, except such as may involve
privileged
or
impeaching
matters.
The
determination of issues at a pre-trial conference
bars the consideration of other questions on
appeal. [Caltex v. CA (1992)]

When non-appearance is excused: A partys nonappearance may be excused only if either:

1. Valid cause is shown for it;
2. A representative appears in his behalf,
fully authorized in writing:
a. To enter into an amicable settlement;
b. To submit to alternative modes of
dispute resolution;
c. To enter into stipulations/admissions
of facts and of documents.
NOTE: The written special authority
must be in the form of an SPA (Sec.
23, Rule 38). If the party is a
corporation,
the
SPA
must
be
supported by a board resolution.
Effect of Failure to Appear; unexcused nonappearance: (Rule 18, Sec. 5)
Order of Non-suit is issued to the party who
failed to appear at pre-trial.

NOTICE OF PRE-TRIAL
When pre-trial conducted - After the last
pleading has been served and filed, it shall be
the
duty of the
plaintiff to promptly
move ex parte that the case be set for pre-trial.
(Sec. 1, Rule 18)
1. Specifically, the motion is to be filed
within 5 days after the last pleading
joining the issues has been served and
filed (Admin Circ. No. 3-99, Jan 15, 1999)
2. Within 5 days from date of filing of the
reply, plaintiff must promptly move exparte that the case be set for pre-trial
conference. If the plaintiff fails to file said
motion within the given period, the
branch clerk shall issue a Notice of PreTrial (AM No. 03-109-SC, July 13, 2004)
NOTE: Note: The Last Pleading need not be
literally construed as the actual filing of the last
pleading. For purpose of pre-trial, the expiration
of the period for filing the last pleading is
sufficient (Sarmiento v. Juan)
Notice of Pre-trial: The notice shall be served on:
1. Counsel
2. Party, only if he has no counsel (Sec. 3,
Rule 18)
The sufficiency of the written notice of pre-trial is
irrelevant where evidence shows that counsel
and the parties actually knew of the pre-trial
(Bembo v. CA)
APPEARANCE OF PARTIES;
FAILURE TO APPEAR

Duty to Appear: It is the duty of the parties and

their counsel to appear at the pre-trial. (Rule 18,
Sec. 4)
- NOTE: BOTH parties AND their counsel

EFFECT

OF

Who fails to
appear
Plaintiff

Defendant

Effect
Cause for dismissal of the action
which will be with prejudice,
unless otherwise ordered by the
court
Cause to allow plaintiff to
present evidence ex parte, and
court to render judgment on the
basis thereof

NOTE: The non-appearance of defendant in pretrial is not a ground to declare him in default.
Thus, we distinguish:

Default by defendant
(Rule 9, Sec. 3)
Upon motion and
notice to defendant.
Requires proof of
failure to answer
Court to render
judgment, unless it
requires submission of
evidence
Judgment by Default
Relief awarded must
be the same in nature
and amount as prayed
for in the complaint

Failure to appear by
defendant (Rule 18,
Sec. 5)
Not required
Not required
Court to allow
plaintiff to present
evidence ex parte,
then the court shall
render judgment
Judgment Ex Parte
Relief awarded may
be of different nature
and amount from the
relief prayed for

When we say that a defendant is in default it

speaks of his failure to file responsive pleading
and not his non-appearance at pre-trial.

trial brief was due to fraud, accident, mistake, or

excusable negligence

Remedy of Party who has been non-suited:

1. For a non-suited plaintiff:
a. Motion to set aside the order of nonsuit
b. Affidavit of merit is not necessary in a
simple motion for reconsideration of
the order of non-suit EXCEPT as to
show the cause of the failure to
appear at the pre-trial (Jonathan
Landoil
International
Inc.
v.
Mangudadatu)

PROCEEDINGS AFTER TERMINATION OF PRETRIAL

2. For a non-suited defendant:

a. File a motion for reconsideration
without need for affidavits of merits
regarding
the
fraud,
accident,
mistake, or excusable negligence
(Lucero v. Dacayo)

PRE-TRIAL BRIEF; EFFECT OF FAILURE TO

FILE
Rule 18, Sec. 6 makes it the MANDATORY duty of
the parties to seasonably file their pre-trial briefs
under the conditions and with the sanctions
provided therein.
When to File Pre-Trial Brief: Parties shall file and
serve their respective pre-trial briefs, ensuring
receipt by adverse party at least 3 days before
the date of the pre-trial.
Contents of a Pre-Trial Brief
1. Statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating
the desired terms thereof;
2. Summary of admitted facts and proposed
stipulation of facts;
3. Issues to be tried/resolved;
4. Documents/exhibits to be presented,
stating the purpose thereof;
5. Manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners;
6. Number and names of the witnesses, and
the substance of their respective
testimonies. [AM No. 03-1-09-SC]
Failure to File Pre-trial Brief: Failure to file the
pre-trial brief shall have the same effect as
failure to appear at the pre-trial.

Record of Pre-Trial: The pre-trial proceedings

shall be recorded. Upon termination of such
proceedings, the court shall issue the pre-trial
order.
Contents of Pre-Trial Order:
1. Matters taken up in the conference;
2. Action taken thereon;
3. Amendments allowed on the pleadings;
4. Agreements/admissions made by the
parties as to any matters considered;
5. Should the action proceed to trial, the
explicit definition and limit of the issues
to be tried.
Effect of Pre-Trial Order: The contents of the
order shall control the subsequent course of the
action; UNLESS:
1. Modified before trial to prevent manifest
injustice (Rule 18, Sec. 7)
2. Issues impliedly included therein or may
be inferable therefrom by necessary
implication (Velasco v. Apostol)
3. Amendment to conform to evidence (Rule
10, Sec. 5)
On Compromise:
- Upon manifestation of the parties of their
willingness to discuss a compromise, the
TC should order the suspension of the
proceedings to allow them reasonable
time to discuss and conclude an amicable
settlement.
- If despite all efforts exerted by the TC and
the parties the settlement conference still
fails, then the action should have
continued as if no suspension had taken
place. [Goldloop Properties v. CA (1992)]
- NOTE: AM 03-1-09-SC - No termination of
pre-trial for failure to settle
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
CASE AND PRE-TRIAL IN CRIMINAL CASE
Civil Case

Criminal Case

Set when the

plaintiff moves ex
parte to set the
case for pre-trial
[Rule 18, Sec. 1]

Ordered by the
court and no motion
to set the case for
pre-trial is required
from either the
prosecution or the
defense [Rule 118,
Sec. 1]
Ordered by the

Remedy of defendant is to file a motion for

reconsideration, showing that his failure to file a
Made after the

pleading has been

served and filed
[Rule 18, Sec. 1]

Considered the
possibility of an
amicable
settlement as an
important objective
[Rule 118, Sec.
2(a)]
The arrangements
and admissions in
the pre-trial are not
required to be
signed by both
parties and their
counsels. Under the
Rules, they are
instead to be
contained in the
record of pre-trial
and pre-trial order
[Rule 18, Sec. 7]
[AM No. 03-1-09] requires the
proceedings during
the preliminary
conference to be
recorded in the
Minutes of
Preliminary
Conference to be
signed by both
parties and/or
counsel.
(Note: either party
or his counsel is
allowed to sign)
The sanctions for
non-appearance are
imposed upon the
plaintiff and the
defendant [Rule 18,
Sec. 4]
A pre-trial brief is
specifically required
to be submitted
[Rule 18, Sec. 6]

court after
arraignment and
within 30 days from
the sate the court
acquired jurisdiction
over the person of
the accused [Rule
118, Sec. 1]
Does not include
the considering of
the possibility of
amicable
settlement of ones
criminal liability as
one of its purposes
[Rule 118, Sec. 1]
(Stricter procedure)
All agreements or
admissions made or
entered during the
pre-trial conference
shall be reduced in
writing and signed
by both the accused
and counsel;
otherwise, they
cannot be used
against the
accused. [Rule 118,
Sec. 2]

The Alternative Dispute Resolution System

Means any process or procedure used to resolve
a dispute or controversy, other than by
adjudication of a presiding judge of a court or an
officer of a government agency, as defined in
this Act, in which a neutral third party
participates to assist in the resolution of issue
[RA 9285, Sec. 3]
Policy Behind the ADR: To actively promote party
autonomy in the resolution of disputes or the
freedom of the party to make their own
arrangements to resolve their disputes [RA 9285,
Sec. 2]
In Relation to Pre-Trial:
1. At the start of the pre-trial conference,
the judge shall immediately refer the
parties and/or their counsel if authorized
by their clients to the PMC mediation unit
for purposes of mediation if available.[AM
No. 03-1-09-SC]
2. The pre-trial briefs of parties must include
the parties statement of their willingness
to enter into an amicable settlement
indicating the desired terms thereof or to
submit the case to any of the alternative
modes of dispute resolution [AM No. 03-109-SC]
Exception to the Application of RA 9285:
1. labor disputes covered by the Labor
Code;
2. the civil status of persons;
3. validity of a marriage;
4. any ground for legal separation;
5. the jurisdiction of courts;
6. future legitime;
7. criminal liability; and
8. those
which
by
law
cannot
be
compromised.
Modes of Alternative Dispute Resolutions:

Sanctions are
imposed upon the
counsel for the
accused or the
prosecutor [Rule
118, Sec. 3]
A pre-trial brief is
not specifically
required.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Special Rules of Court on ADR (AM No. 0711-08-SC)
The parties may be submitted to ADR during pretrial. If ADR fails, judge will schedule the
continuance of the pre-trial conference

1. Arbitration (RA 9285, Sec. 1)

a. A voluntary dispute resolution process
in which one or more arbitrators,
appointed in accordance with the
agreement of the parties, or rules
promulgated pursuant to this Act,
resolve a dispute by rendering an
award\
b. Different Kinds:
(1) Domestic
Arbitration

an
arbritration
that
is
not
international; governed by RA 876
(Arbitration Law) [RA 9285, Sec.
32]
(2) International Arbitration - An
arbitration is international if:
(a) the parties to an arbitration
agreement have, at the time of
the
conclusion
of
that

agreement, their places of

business in different States; or
(b) one of the following places is
situated outside the State in
which the parties have their
places of business [Article 3,
Model Law on International
Commercial Arbritration]

9. Recognition and Enforcement or Setting

Aside of an Award in International
Commercial Arbitration;
10. Recognition and Enforcement of a Foreign
Arbitral Award;
11. Confidentiality/Protective Orders; and
12. Deposit and Enforcement of Mediated
Settlement Agreements.

2. Mediation
a. a voluntary process in which a
mediator, selected by the disputing
parties, facilitates communication and
negotiation, and assist the parties in
reaching a voluntary agreement
regarding a dispute
b. includes conciliation

Service and Filing of Petition The petitioner

shall serve, either by personal service or courier,
a copy of the petition upon the respondent
before the filing thereof. Proof of service shall be
attached to the petition filed in court.

3. Mini-Trial
a. A
structured
dispute
resolution
method in which the merits of a case
are argued before a panel comprising
senior decision makers with or without
the presence of a neutral third person
after which the parties seek a
negotiated settlement
4. Early Neutral Evaluation
a. An ADR process wherein parties and
their lawyers are brought together
early in a pre-trial phase to present
summaries of their cases and receive
a nonbinding assessment by an
experienced, neutral person, with
expertise in the subject in the
substance of the dispute
5. Combination of ADR
a. Example: Med-Arb - step dispute
resolution process involving both
mediation and arbitration
Special Rules of Court on ADR (AM No. 07-11-08SC)

Notice served once court finds petition

sufficient in form and substance
1. Notice is sent to parties directing them to
appear at a particular time and date for
hearing
2. Hearing shall not be set no later than 5
days from lapse of period for filing
opposition or comment
3. Notice to respondent shall contain a
statement allowing him to file a comment
or opposition to petition within 15 days
from receipt of notice
4. For
Referral
to
ADR
or
Confidentiality/Protection Orders:
a. Follow Rule 15 Rules of Court
Summary Hearing - In all cases, as far as
practicable, the summary hearing shall be
conducted in one (1) day and only for purposes
of clarifying facts.
Prohibited Submissions (Rule 1.6)
1. Motion to dismiss;
2. Motion for bill of particulars;
3. Motion for new trial or for reopening of
trial;
4. Petition for relief from judgment;
5. Motion for extension, except in cases
where an ex-parte temporary order of
protection has been issued;
6. Rejoinder to reply;
PRE
TRIAL to declare a party in default; and
7. Motion
8. Any other pleading specifically disallowed
under any provision of the Special ADR
FAILURERules.
TO APPEAR

The Special ADR Rules shall apply to and govern

the following cases (Rule 1.1)
1. Relief on the issue of Existence, Validity,
or Enforceability of the Arbitration
Agreement; NO SETTLEMENT
AMICABLE SETTLEMENT
2. Referral ADR
3. Interim Measures of Protection;
No summons (Rule 1.9 - In cases covered by the
4. Appointment of Arbitrator;
Special ADR Rules, a court acquires authority to
5. Challenge to Appointment of Arbitrator;
act on the petition or motion upon proof of
6. made
Termination
Mandate
of Arbitrator;
jurisdictional
facts,
i.e.,
that
the respondent
was
Agreements
by parties;
Ifof
plaintiff
Amendments
is absent
to when
pleading;
so required
Schedule
If defendant
to of
attend,
Trialis court
absent,
may
court
dismiss
may
the
hear
case
evidence
of plaintiff ex
parte
7. Assistance in Taking Evidence;
furnished a copy of the petition and the notice of
8. Confirmation, Correction or Vacation of
hearing.
Award in Domestic Arbitration;
TRIAL
If evidence is insufficient to prove plaintiffs cause of action or defendants counterclaim, court rules in favor

COURT RENDERS DECISIO

INTERVENTION
DEFINITION
A legal remedy whereby a person is permitted to
become a party in a case, by either:
1. Joining the plaintiff;
2. Joining the defendant;
3. Asserting his right against both plaintiff
and defendant, considering that either:
a. He has a legal interest in the subject
matter of the action;
b. He has legal interest in the success of
either of the parties
c. He has legal interest against both of
the parties
d. He is going to be adversely affected
by the disposition of the property in
the custody of the court (Rule 19,
Sec. 1)

or lose by the direct legal operation of the

judgment. The interest must be actual and
material, a concern which is more than mere
curiosity, or academic or sentimental desire; it
must not be indirect and contingent, indirect and
remote, conjectural, consequential or collateral.
[Virra Mall Tenants v. Virra Mall (2011)]
Notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound
discretion of the court, the exercise of which is
limited by considering "whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties
and whether or not the intervenors rights may
be fully protected in a separate proceeding.
[Virra Mall Tenants v. Virra Mall (2011)]

TIME TO INTERVENE

Intervention is never an independent action, but

is ancillary and supplemental to the existing
litigation. Its purpose is to afford one not an
original party, yet having a certain right/interest
in the pending case, the opportunity to appear
and be joined so he could assert or protect such
right/interest. (Carino v. Ofilada, 1993)

How Intervention is Done

1. By a motion to intervene
2. Attaching the pleading-in-intervention to
the motion
3. Copies served on the original parties
(Rule 19, Sec. 2)

REQUISITES FOR INTERVENTION

When should it be filed The motion to intervene

may be filed at ANY TIME before rendition of
judgment by the court

The requisites of intervention are:

1. Legal interest:
a. In the matter in controversy; or
b. In the success of either of the parties;
or
c. Against both; or
d. So situated as to be adversely
affected by a distribution or other
disposition of property in the custody
of the court or of an office thereof;
2. Intervention will not unduly delay or
prejudice the adjudication of rights of
original parties
3. Intervenors rights may not be fully
protected in a separate proceeding
(Lorenza Ortega v. CA, 1998)
MEANING OF LEGAL INTEREST
Interest must be of a direct and immediate
character so that the intervenor will either gain

General Rule: Allowance of

discretionary with the court
Exception:
When
indispensable party

the

intervention

intervenor

is

is
an

Pleadings-in-Intervention:
1. Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
2. Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
3. Answer to complaint-in-intervention [Rule
19, Sec. 4] - It must be filed within 15
days from notice of the order admitting
the complaint-in-intervention, unless a
different period is fixed by the court.

REMEDY FOR
INTERVENE

DENIAL

OF

MOTION

TO

1. If intervention is denied
a. Aggrieved party may appeal
b. Mandamus will not lie except in case
of grave abuse of discretion

SUBPOENA

Kinds:
1. Subpoena duces tecum (SDT)
2. Subpoena ad testificandum (SAT)

DEFINITION
Subpoena is a process directed to a person
requiring him:
1. To attend and to testify at the hearing or
the trial of an action, or at any
investigation conducted by competent
authority, or for the taking of his
deposition; or
2. To bring with him any books, documents,
or other things under his control (Rule 21,
Sec. 1)
SUBPOENA
An order to appear
and testify or to
produce books and
documents
May be served to a
non-party
Needs tender of
kilometrage,
attendance fee and
reasonable cost of
production fee

2. If intervention is granted
a. A grant of a motion to intervene is
interlocutory
b. Hence, anyone who objects can file a
petition for certiorari for improper
granting of intervention

SUMMONS
An order to answer
complaint
Served on the
defendant
Does not need tender
of kilometrage and
other fees

Who May Issue: (Rule 21, Sec. 2)

1. Court before whom the witness is
required to attend
2. Court of the place where the deposition is
to be taken
3. Officer or body authorized by law to do so
in
connection
with
investigations
conducted by said officer or body; or
4. Any justice of the SC or of the CA, in any
case or investigation pending within the
Philippines
NOTE: Sec. 38(2), BP 129 All processes issued
by the MTC and MCTC in cases falling within their
jurisdiction may be served anywhere in the
Philippines without the necessity of certification
by the judge of the RTC
Form and Contents: (Rule 21, Sec. 3)
1. Shall state the name of the court and the
title of the action or investigation
2. Shall be directed to the person whose
attendance is required
3. In case of a subpoena duces tecum, shall
contain a reasonable description of the
books, documents, or things demanded
which must appear to the court to be
prima facie relevant

SUBPOENA AD TESTIFICANDUM
A process directed to a person requiring him to
attend and to testify at the hearing or the trial of
an action, or at any investigation conducted by
competent authority or for the taking of his
deposition
SUBPOENA DUCES TECUM
A process directed to a person requiring him to
bring with him books, documents, or other things
under his control
The SDT is, in all respects, like the ordinary SAT
with the exception that it concludes with an
injunction that the witness shall bring with him
and produce at the examination the books,
documents, or things described in the subpoena
Before SDT may issue, the court must first be
satisfied that the following requisites are
present:
1. Test
of
RELEVANCY:
The
books,
documents, or other things requested
must appear prima facie relevant to the
issue subject of the controversy
2. Test of DEFINITENESS: Such books must
be reasonably described by the parties to
be readily identified (test of definiteness)

SERVICE OF SUBPOENA (Rule 21, Sec. 6)

How Made: Same manner as PERSONAL or
SUBSTITUTED service of summons
Formalities:
1. The original shall be exhibited
2. A copy is delivered to the person on
whom it is served
3. Fees and costs:
a. Tender to the person on whom it is
served the fees for one days
attendance and the kilometrage
allowed by the Rules
(1) EXCEPT: Tender need not be made
if issued by or on behalf of the
Republic or an officer of agency
thereof

b. If SDT, reasonable cost of producing

the books, documents, or things
demanded shall also be tendered
Service must be made so as to allow the witness
reasonable time for preparation and travel to the
place of attendance

2. Permission of the court in which the

detention prisoners case is pending was
not obtained
QUASHING OF SUBPOENA (Rule 21, Sec. 4)
How Done: By motion promptly made

COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT
General Rule:
1. The court which issued the subpoena may
issue a warrant for the arrest of the
witness and make him pay the cost of
such warrant and seizure, if the court
should determine that his disobedience
was willful and without just cause (Sec. 8)
2. The refusal to obey a subpoena without
adequate cause shall be deemed
contempt of the court issuing it (Sec. 9)
Exception: Provisions regarding the compelling of
attendance (Sec. 8) and contempt (Sec. 9) do
not apply where:
1. Witness resides more than 100km from
his residence to the place where he is to
testify by the ordinary course of travel
(Viatory Right) and
a. NOTE: This refers to civil cases only,
not criminal

MODES OF DISCOVERY
DISCOVERY a device employed by a party to
obtain information about relevant matters on the
case from the adverse party in the preparation
for trial
Purpose to enable the parties to obtain the
fullest possible knowledge of the issues and
evidence long before the trial to prevent such
trial from being carried on in the dark
Modes:
1. Depositions pending actions Rule 23
2. Depositions before action or pending
appeal Rule 24
3. Interrogatories to parties Rule 25
4. Admission by adverse party Rule 26
5. Production or inspection of documents or
thing Rule 27
6. Physical and mental examination of
persons Rule 28
DEPOSITIONS PENDING ACTION (Rule 23)
Meaning of Deposition - Deposition is chiefly a
mode of discovery, the primary function of which
is to supplement the pleadings for the purpose of

Period to File: A motion to quash may be made

at or before the time specified in the subpoena
Grounds:
1. For quashal of subpoena duces tecum:
a. It is unreasonable and oppressive
b. The articles sought to be produced do
not appear prima facie to be relevant
to the issues; or
c. The person asking for the subpoena
does not advance the cost for the
production of the articles desired
d. Failure to tender witness fees and
kilometrage allowed by the Rules
2. For quashal of subpoena ad testificandum
a. That the witness is not bound thereby,
or
b. That the witness fees and kilometrage
allowed by the Rules were not
tendered when subpoena was served

disclosing the real points of dispute between the

parties and affording an adequate factual basis
during the preparation for trial.
General Uses of Deposition:
1. Intended as a means to compel disclosure
of facts resting in the knowledge of a
party or other person, which are relevant
in a suit or proceeding
2. Dual functions:
a. A method of discovery
b. A method of presenting testimony in
lieu of oral open court testimony
Scope of Examination
1. Matter which is relevant to the subject of
the pending action made by the
pleadings or likely to arise under the
pleadings
2. Matter that is not privileged
3. As well as:
a. The existence, description, nature,
custody, condition and location of any
books, documents, or other tangible
things; and
b. The identity and location of persons
having knowledge of relevant facts
(Rule 23, Sec. 2)

NOTE: Under such limitations as the court

may order under Sec. 16 and 18
When Depositions Pending Action Taken: (Rule
23, Sec. 1)
1. With leave of court:
a. AFTER jurisdiction has been obtained
over any defendant or over the
property which is the subject of the
action, but
b. BEFORE an answer has been served
2. Without leave of court
a. AFTER answer has been served
Depositions before an answer should be
granted only under special circumstances
where the conditions point to the necessity of
presenting a strong case for allowance of the
motion.
There must be some necessity or good
reason for taking the testimony immediately
or that it would be prejudicial to the party
seeking the order to be compelled to await
joinder of issues.
Specific Uses of Depositions Pending Action: the
use of depositions depends on whether deponent
is a party or not (Rule 23, Sec. 4)
1. The depositions may be used for
contradicting
or
impeaching
the
testimony of deponent not as proof of
specific facts
a. If deponent does not testify and is not
a party, deposition cannot be used for
this purpose
2. Deposition of an ADVERSE party may be
used for any purpose
a. It may be used as an admission
b. A deposition cannot, however, be
used in the trial of a case against a
defendant who was not a party to the
action when the deposition was taken
3. Deposition of a witness or party may be
used for any purpose under the following
circumstances:
a. Witness is dead there must be proof
of death or presumption of death and
that deposition was legally taken
b. Non-residence of deponent where it
appears that the absence of deponent
was procured by the party offering the
deposition of the same cannot be
received in evidence
c. Disability of a witness age, sickness,
infirmity,
or
imprisonment.
The
certificate of the attending physician
that the witness is in a precarious
condition is sufficient

d. Inability to procure attendance of

witness by subpoena
DEPONENT
Any person

USE
By any party for
contradicting or
impeaching the
testimony of deponent
as witness

A party or anyone
who at the time of the
deposition was an
officer, director, or
managing agent, of a
public or private
corporation or
partnership, or
association which is a
party

By an adverse party
for any purpose

Witness, whether or
not a party

By any party for any

purpose if the court
finds the 5 instances
occurring

NOTE: Depositions can be used as evidence by a

party (for any purpose) under the specific
conditions in Sec. 4
REMEMBER: Generally, a deposition is not
generally supposed to be a substitute for the
actual testimony in open court of a party or
witness. If the witness is available to testify, he
should be presented in court to testify.
If
available to testify, a partys or witness
deposition is inadmissible in evidence for being
hearsay. (Dasmarinas Garments Inc. v. Reyes,
1993). Exceptions to this rule are those found in
Sec. 4.
Persons before whom depositions may be taken
(Rule 23, Sec. 10 and 11)
1. Within the Philippines:
a. Judge
b. Notary Public, or
c. Any person authorized to administer
oaths, as stipulated by the parties in
writing
2. Outside the Philippines
a. On notice before a secretary of
embassy or legation, consul general,
consul, vice-consul, or consular agent
of the Philippines
b. Before such person or officer as may
be appointed by commission or under
letter rogatory or
c. Any person authorized to administer
oaths as stipulated by parties in
writing
Disqualification by interest: No deposition shall
be taken before a person who is: (Rule 23, Sec.
13)
1. A relative within the 6th degree of affinity
or consanguinity

2. An employee or counsel of any of the

parties
3. A relative within the same degree or
employee of such counsel
4. Financially interested in the action
Procedure in Taking Depositions:
1. A party desiring to take the deposition of
any person upon oral examination shall
give reasonable notice in writing to every
party to the action stating the time and
place for taking the deposition and the
name and address of each person to be
examined. [Rule 23, Sec. 15]
2. After the notice is served, the court may
make any order for the protection of the
parties and the deponent. [Rule 23, Sec.
16]
3. The attendance of the witnesses may be
compelled by the use of subpoenas. [Rule
23, Sec. 1]
4. The deponent may be examined or cross
examined following the procedures for
witnesses in a trial. He may be asked
questions on direct, cross, re-direct or recross. He has the same rights as a
witness and may be impeached like a
court witness because Sections 3 to 18 of
Rule 132 apply to deponent. [Rule 23,
Sec. 3]
5. The officer before whom the deposition is
being taken has no authority to rule on
objections interposed during the course
of the deposition although any objections
shall be noted by him upon the
deposition. Any evidence that is objected
to shall still be taken but subject to the
objection. [Rule 23, Sec. 17]
When may objections to admissibility be made
(Rule 23, Sec. 6) - Objection may be made at the
TRIAL or HEARING to receiving in evidence any
deposition or part thereof for any reason which
would require the exclusion of the evidence if the
witness were then present and testifying
Effect of Taking and Using Depositions:
1. General Rule: A party shall not be
deemed to make a person his own
witness for any purpose by taking his
deposition because depositions are taken
for discovery and not for use as evidence.
(Rule 23, Sec. 7)
2. Exception: If a party offers the deposition
in evidence, then he is deemed to have
made the deponent his witness (Sec. 8)
3. Exceptions to the Exception:

a. The deposition is that of an opposing

party, OR
b. The deposition is used to impeach or
contradict opponent. (Sec. 8)
When may taking of deposition be terminated or
its scope limited (Rule 23, Sec. 18)
1. How done:
a. A motion or petition for termination or
limit examination is filed by any party
or of the deponent
b. Filed in the court where the action is
pending OR the RTC of the place
where deposition is being taken
2. When done: At any time during the taking
of deposition
3. Grounds: That the examination is being
conducted:
a. In bad faith, or
b. In such manner as unreasonably to
annoy, embarrass or oppress the
deponent or party
Effect of Errors and Irregularities in Depositions
(Rule 23, Sec. 29)
Error and
Irregularities
As to notice
for taking
depositions
Objection to
taking
deposition
because of
disqualificatio
n of officer
before whom
it is to be
taken
Objection to
the
competency
of a witness
or
competency
or relevancy
or materiality
of testimony

Occurring at
oral
examination
and other
particulars

Objections to
the form of

Effect
Waived
Unless written objection is
promptly served upon party
giving notice
Waived
Unless made:
1. Before
taking
of
deposition begins or
2. As soon thereafter as
disqualification becomes
known or could be
discovered
with
reasonable diligence
Not waived by failure to make
them before or during the
taking of deposition
Unless the ground of the
objection is one which might
have been obviated or removed
if presented at that time
In the manner of taking, in the
form of questions or answers, in
the oath or affirmation, or in
conduct of parties and errors of
any kind which might
be
obviated or removed if promptly
prosecuted are waived
Unless reasonable objection
thereto is made at the time of
taking the deposition
Waived
Unless served in writing upon

written
interrogatorie
s under Sec.
In the
manner in
which
testimony is
transcribed or
in the
preparation
under Sec.
17, 19, 20,
and 26

the party propounding them

within the time allowed for
serving succeeding cross or
other interrogatories and within
3 days after service of last
interrogatories authorized
Waived
Unless motion to suppress
depositions
or
some
part
thereof is made with reasonable
promptness after such defect is
ascertained,
or
with
due
diligence might have been
ascertained

Orders that may be issued by the court

regarding deposition taking
1. That the deposition shall not be taken;
2. That it may be taken at some designated
place other than that stated in the notice;
3. That it may be taken only on written
interrogatories;
4. That certain matters shall not be inquired
into
5. That the scope of the examination shall
be held with no one present except the
parties to the action and their officers or
counsel;
6. That after being sealed, the deposition
shall be opened only by order of the
court;
7. That secret processes, developments, or
research need not be disclosed;
8. That the parties shall simultaneously file
specified documents or information
enclosed in sealed envelopes to be
opened as directed by the court;

DEPOSITIONS BEFORE ACTION OR PENDING

APPEAL (Rule 24)
A deposition before action and a deposition
pending appeal are referred to as perpetuation
of testimony (perpetuam rei memoriam) because
their objective is to perpetuate the testimony of
a witness for future use.
Purpose: To perpetuate the testimony of
witnesses for probable use in the event of
further proceedings in said court.
Who may avail: Any person:
1. Who wants to perpetuate his own
testimony; or
2. Who wants to perpetuate the testimony
of another person
Procedure for Deposition Pending Action:
1. File a verified petition in the court of the
place of the residence of any expected
adverse party
a. Petition shall be entitled in the name
of petitioner
b. It shall show:
(1) That the petitioner expects to be a
party to an action in a court of the
Philippines but is presently unable
to bring it or cause it to be
brought;
(2) The
subject
matter
of
the
expected action and his interest
therein;
(3) The facts which he desires to
establish
by
the
proposed
testimony and his reasons for
desiring to perpetuate it;
(4) The names or a description of the
persons he expects will be adverse
parties and their addresses so far
as known; and
(5) The names and addresses of the
persons to be examined and the
substance of the testimony which
he expects to elicit from each, and
shall ask for an order authorizing
the
petitioner
to
take
the
depositions of the persons to be
examined named in the petition
for the purpose of perpetuating
their testimony.
2. Notice and service to each person named
in the petition as an expected adverse
party, together with a copy of the
petition, stating that the petitioner will
apply to the court, at a time and place
named therein, for the order described in
the petition.
3. At least twenty (20) days before the date
of the hearing, the court shall cause
notice thereof to be served on the parties

and prospective deponents in the manner

provided for service of summons.

WRITTEN INTERROGATORIES TO ADVERSE

PARTIES (Rule 25)

4. Order and Examination: If the court is

satisfied that the perpetuation of the
testimony may prevent a failure or delay
of justice, it shall make an order
designating or describing the persons
whose deposition may be taken and
specifying the subject matter of the
examination and whether the depositions
shall be taken upon oral examination or
written interrogatories.

Purpose - This mode of discovery is availed of by

the party to the action for the purpose of
eliciting material and relevant facts from any of
the adverse party. [Rule 25, Sec. 1]

Use of Deposition: If a deposition to perpetuate

testimony is taken under this Rule, or if, although
not so taken, it would be admissible in evidence,
it may be used in any action involving the same
subject
matter
subsequently
brought
in
accordance with the provisions of sections 4 and
5 of Rule 23. (Rule 24, Sec. 6)

NOTE: Written interrogatories must not

only be served but also filed.

Procedure for Deposition Pending Appeal:

1. During the pendency of an appeal, the
court in which the judgment was
rendered may allow the taking of
depositions of witnesses to perpetuate
their testimony in the event of further
proceedings in the said court.
2. The party who desires to perpetuate the
testimony may make a motion in the said
court for leave to take the depositions,
upon the same notice and service thereof
as if the action was pending therein. The
motion shall state:
a. The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each, and
b. The reason for perpetuating their
testimony.
3. Order allowing the deposition: If the court
finds that the perpetuation of the
testimony is proper to avoid a failure or
delay of justice, it may make an order
allowing the deposition to be taken.

Service of Interrogatories to Parties Any party

desiring to elicit material and relevant facts from
any adverse party shall file and serve upon the
adverse party written interrogatories to be
answered by the party served.

Manner of Service:
1. Without leave of court After answer
has been served; and for the first set
of interrogatories
2. With leave of court before the
answer has been served; and for
subsequent sets of interrogatories
NOTE: No party may, without leave of
court, serve more than one set of
interrogatories to be answered by the
same party. (Rule 25, Sec. 4)
Answer to Interrogatories: (Rule 25, Sec. 2)
1. Written interrogatories and the answers
thereto must both be filed and served
a. Hence, the answers may constitute as
judicial admissions (Sec. 4, Rule 129)
2. Form of answer:
a. It must be answered fully in writing
b. And signed and sworn to by the
person making them
3. Service and Filing
a. Party upon whom interrogatories were
served shall file and serve a copy of
the answers on the party submitting
interrogatories
b. Time period:
(1) Within 15 days after service
thereof
(2) UNLESS court extends or shortens
the time on motion and for good
cause shown
Objections to Interrogatories: (Rule 25, Sec. 3)
Objections may be presented to the court within
10 days after service thereof with notice as in
case of a motion.
Effect: Answers shall be deferred until objections
are resolved
Grounds:
1. They
require
conclusions of

the
law

statements
or answers

of
to

hypothetical questions or opinion, or

mere hearsay, or matters not within the
personal knowledge of the interrogated
party
2. Frivolous interrogatories need not be
answered (Herrera)
Scope and Use of Interrogatories (Rule 25, Sec.
5)
Interrogatories may relate to any matters than
can be inquired into under Sec. 2, Rule 23
Answers may be used for the same purposes
provided in Sec. 4, Rule 23
Effect of Failure to Serve Written Interrogatories
(Rule 25, Sec. 6)
A party not served with written interrogatories
may not be compelled by adverse party to:
1. Give testimony in open court; or
2. Give deposition pending appeal
UNLESS thereafter allowed by the court for good
cause shown and to prevent a failure of justice
NOTE: This should not be confused with
the provisions of Rule 29. Sec. 6 Rule 25
as well as a similar provision in Rule 26
are directed to a party who fails or
refuses to resort to discovery procedures
therein. Rule 29 provides for sanctions or
other consequences upon a party who
refuses or fails to comply with discovery
procedures duly availed of by his
opponent
Written
Parties

Interrogatories

Written Interrogatories
The deposition is takes
before a deposition
officer
Questions are prepared
beforehand. These are
submitted to the
deposition officer who
will ask the deponent
the questions and he
will record the answers.
The deposition of any
person may be taken,
whether he is a party or
not.

v.

Interrogatories

Interrogatories
to Parties
There is no
deposition
officer.

The questioning
is direct.

The deposition
of the parties
are only taken.

to

REQUEST FOR ADMISSION (Rule 26)

Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegation in a
pleading.
Purposes:
1. To allow one party to request the adverse
in writing to admit certain material and
relevant matters which most likely will
not be disputed during the trial.
2. To avoid unnecessary inconvenience to
the parties in going through the rigors of
proof, before the trial, a party may
request the other to:
a. Admit the genuineness of any
material and relevant document
described in and exhibited with the
request; or
b. Admit the truth of any material and
relevant matter of fact set forth in the
request [Rule 26, Sec. 1]
How made:
1. A party files and serves upon any other
party a written request
2. Copies of the documents shall be served
with the request unless already furnished
When made: At any time after issues have been
joined.
The request for admission MUST BE SERVED ON
THE PARTY and NOT ON THE COUNSEL. This is an
exception to the general rule that notices shall
be served upon counsel and not upon the party.
(Duque v. CA, 2002)
Implied Admission by Adverse Party (Rule 26,
Sec. 2)
Each of the matters which an admission is
requested shall be deemed admitted UNLESS the
party to whom request is directed files and
serves upon the party requesting admission a
SWORN STATEMENT
1. Contents of the sworn statement:
a. Denying specifically the matters of
which an admission is requested, or
b. Setting forth in detail the reasons why
he cannot truthfully either admit or
deny those matters
2. Period to file and serve the sworn
statement
a. Within a period designated in the
request
b. Which shall not be less than 15 days
after service thereof, or
c. Within such further time as the court
may allow on motion
Objections to any request for admission
Objections shall be submitted to the court by the

party requested within the period for and prior to

filing of his sworn statement. Compliance with
the sworn statement shall be deferred until
objections are resolved.
Effect of Admission (Rule 26, Sec. 3)
1. Any admission made by a party pursuant
to such request is for the purpose of the
pending action only
2. It shall not:
a. Constitute an admission by him for
any other purpose; nor
b. Be used against him in any other
proceeding
Effect of Failure to File and Serve Request for
Admission (Rule 26, Sec. 5)
A party who fails to file and serve a request for
admission on the adverse party of material and
relevant fact at issue which are, or ought to be,
within the personal knowledge of the latter:
1. He shall not be permitted to present
evidence on such facts
2. UNLESS otherwise allowed by the court
for good cause and to prevent a failure of
justice
NOTE: This is similar to the provision on
unjustified failure of a party to avail of
written interrogatories under Sec. 6, Rule
25.

PRODUCTION
OR
INSPECTION
DOCUMENTS OR THINGS (Rule 27)

OF

Rule 27 applies only to a PENDING ACTION and

the documentary things subject of the motion
must be only WITHIN the possession, control, or
custody of a party
PRODUCTION OR
INSPECTION OF
DOCUMENTS OR
THINGS
Essentially a mode of
discovery
Rules is limited to the
parties of the action
The order under this
Rule is issued only
upon motion with
notice to the adverse
party
May be asked before
and/or during trial
Necessary to show
good cause

Ground for quashal:

No good cause shown

Consequence of
disobedience, see
Rule 29, Sec. 3

SUBPOENA DUCES
TECUM
A means of compelling
production of evidence
It may be directed to a
person whether a
party or not
It may be issued upon
an ex parte application
May be asked only
during trial
Not necessary to show
good cause
Grounds for quashal:
1. Unreasonable,
oppressive,
irrelevant
2. Failure
to
advance
reasonable
costs
of
production
Disobedience
constitutes contempt
of court

Procedure:
1. A motion must be filed by the party
seeking the production or inspection of
documents and things and the motion
must show good cause supporting the
same. [Rule 27, Sec. 1]
2. The court in which the action is pending
shall issue an order:
a. which shall specify the time, place
and manner of making the inspection
and taking copies and photographs,
and
b. which may prescribe such terms and
conditions as are just. [Rule 27, Sec.
1]
Court Order:
1. The court may:
a. Order any party to produce and
permit the inspection and copying or
photographing,
(1) By or on behalf of the moving
party

(2) Of any designated documents,

papers, books, accounts, letters,
photographs, objects or tangible
things, not privileged, which
constitute or contain evidence
material to any matter involved in
the action
(3) And which are in his possession,
custody or control

PHYSICAL AND MENTAL EXAMINATION OF

PERSONS (Rule 28)

b. Order any party to permit entry upon

designated land or other property in
his possession or control
(1) For the purpose of inspecting,
measuring,
surveying,
or
photographing, property or any
designated relevant object or
operation thereon

How Done:
1. Motion for examination is filed
2. Filed in the court in which the action is
pending
3. Court may, in its discretion, order him to
submit
to
a
physical
or
mental
examination by a physician

2. Contents of the Order

a. Time, place, and manner of making
the inspection and taking copies and
photographs, and
b. Such terms and conditions as are just

When available: In an action in which the mental

or physical condition of a party is in controversy.
(Rule 28, Sec. 1)
- NOTE: It is the mental and physical
condition of a PARTY not a WITNESS that
is in controversy

NOTE: Since the results of the examination are

intended to be made public, the same are not
covered by physician-patient privilege (Sec.
24(b), Rule 130)
Requisites to Obtain an Order for Examination
1. A motion must be filed for the physical
and mental examination
2. The motion must show good cause for the
examination
3. Notice to the party to be examined and to
all other parties;
4. The motion shall specify the time, place,
manner, conditions, and scope of the
examination and the person or persons
by whom it is made (Rule 28, Sec. 2)
Report of Findings (Rule 28, Sec. 3)
1. If requested by the party examined:
a. The party causing the examination to
be made shall deliver to him a copy of
a detailed written report of the
examining physician setting out his
findings and conclusions
2. After such request and delivery:
a. The party causing the examination to
be made shall be entitled upon
request to receive from the party
examined a like report of any
examination, previously or thereafter
made, of the same mental or physical
condition
3. If party examined refuses to deliver such
report:
a. The court on motion and notice may
make an order requiring delivery on
such terms as are just
b. And if a physician fails or refuses to
make such a report the court may
exclude his testimony if offered at the
trial
Waiver of privilege (Rule 28, Sec. 4)

Where the party examined requests and obtains

a report on the results of the examination, the
consequences are:
1. He has to furnish the other party a copy
of the report of any previous or
subsequent examination of the same
physical and mental condition; AND
CONSEQUENCES OF REFUSAL TO COMPLY
WITH MODES OF DISCOVERY (Rule 29)
REFUSAL TO
COMPLY
WITH
MODES OF
DISCOVERY

Refusal to
answer any
question
(Sec. 1 and
2)

Refusal to
be Sworn
(Sec. 2)
Refusal to
answer
designated
questions or
refusal to
produce
documents
or to submit
to physical
or mental
examination

2. He waives any privilege he may have in

that action or any other involving the
same
controversy
regarding
the
testimony of any other person who has so
examined him or may thereafter examine
him

SANCTIONS
(Sec. 3)
1. The court may, upon proper
application, compel a
refusing deponent to answer
(Sec. 1)
a. If granted, and refusal to
answer is without
substantial justification,
court may require the
refusing party to pay
proponent the
reasonable expenses
incurred in obtaining the
order
b. If denied, and filed
without substantial
justification, court may
require proponent to pay
refusing party the
reasonable expenses
incurred in obtaining the
order
2. A refusal to answer after
being directed by court to do
so may be constituted as
contempt of court
Cite the disobedient deponent in
contempt of court
The court may make the
following orders:
1. Prohibit the disobedient
party to introduce evidence
of physical or mental
condition
2. Refuse to allow the
disobedient party to support
or oppose claims or defenses
3. Strike out pleadings or parts
thereof

TRIAL
DEFINITION
A trial is the judicial process of investigating and
determining the legal controversies, starting with
the production of evidence by the plaintiff and
ending with his closing arguments [Acosta v.
People (1962)].

Refusal to
admit under
Rule 26
(Sec. 4)

Failure of
party to
attend or
serve
answers to
written
interrogatori
es
(Sec. 5)

4. Stay further proceedings

5. Dismiss the action or
proceeding or any part
thereof
6. Render a judgment by
default against disobedient
party
7. Direct the arrest of any party
disobeying any of such
orders except an order to
submit to a physical or
mental examination
8. Other orders as may be just
The
court,
upon
proper
application, issue an order
requiring the other party to pay
him
reasonable
expenses
incurred, including attorneys
fees
PROVIDED that party requesting
proves genuineness of such
document or truth
UNLESS court finds:
1. There were good reasons
for denial
2. Admissions sought were
of no importance
The court on motion and notice
may:
1. Strike out all or any part of
any pleading of disobedient
party
2. Dismiss the action or
proceeding or any part
thereof
3. Enter a judgment by default
against disobedient party
4. Order payment of reasonable
expenses incurred by the
other including attorneys
fees

NOTE: Expenses and attorneys fees are not to

be imposed upon the Republic of the Philippines.
(Rule 29, Sec. 6)
A hearing is a broader term. It is not confined to
the trial and presentation of the evidence
because it actually embraces several stages in
the litigation. It includes the pre-trial and the
determination of granting or denying a motion.
[Trocio v. Labayo (1973)]
NOTICE OF TRIAL (Rule 30, Sec. 1)

Upon entry of a case in the trial calendar, the

clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
before the trial date.

(2) That the character of his illness is

such as to render his nonattendance excusable

GENERAL RULE: When an issue exists, trial is

necessary. Decision should not be made without
trial.

AGREED STATEMENT OF FACTS (Rule 30, Sec.

6)

EXCEPTIONS: When there may be judgment

without trial
1. Judgment on the pleading (Rule 34)
2. Summary Judgment (Rule 35)
3. Judgment on Compromise
4. Judgment on Confession
5. Dismissal with Prejudice (Rule 17)
6. Judgment under Rule on Summary
Procedure, and
7. Stipulation of fact
ADJOURNMENTS
(Rule 30, Sec. 2)

AND

POSTPONEMENTS

GENERAL RULE: A court may adjourn a trial from

day to day, and to any stated time, as the
expeditious and convenient transaction of
business may require
LIMITATION: The court has no power to adjourn a
trial for:
1. A period longer than one month for each
adjournment; or
2. More than 3 months in all

The parties may agree in writing upon the facts

involved in the litigation and submit the case for
judgment in the facts agreed upon without the
introduction of evidence
If the parties agree only on some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
Stipulation Of Facts in
Civil Cases
May be signed by the
counsel alone who
has an SPA
May be made verbally
or in writing

Stipulation Of Facts in
Criminal Cases
Must be signed by
both counsel and
accused
Strict; it must always
be in writing

An agreed statement of facts is conclusive on

the parties, as well as on the court. Neither of
the parties may withdraw from the agreement,
nor may the court ignore the same. [McGuire v.
Manufactures Life]
ORDER OF TRIAL; REVERSAL OF ORDER
(Rule 30, Sec. 5)

EXCEPTION: Unless authorized in writing by

the Court Administrator, SC

General Rule: Trial shall be limited to the issues

stated in the pre-trial order.

Postponement is not a matter of right. It is

addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela (1989)]

Exceptions:
1. Provisions on separate trials under Rule
31, Sec. 2
2. When for special reasons the court directs
otherwise

REQUISITES
TRIAL

OF

MOTION

TO

POSTPONE

1. For absence of evidence (Rule 30, Sec. 3)

a. Submission of affidavit showing that:
(1) The evidence is relevant; and
(2) Diligent efforts had been exerted
to procure the evidence
2. For illness of party or counsel (Rule 30,
Sec. 4)
a. A motion for postponement stating
the ground relied upon must be filed;
and
b. The motion must be supported by an
affidavit
or
sworn
certification
showing:
(1) The presence of such party or
counsel
at
the
trial
is
indispensable; and

General Order of Trial:

1. Plaintiffs evidence in chief
2. Defendants evidence in chief and
evidence in support of his counterclaim,
cross-claim and 3rd-party complaint
3. 3rd-party defendant shall adduce evidence
of his defense, counterclaim, cross-claim,
and 4th party complaint
4. 4th-party
defendant
shall
adduce
evidence, and so forth
5. Parties against whom any counterclaim or
cross-claim has been pleaded shall
adduce evidence in support of their
defense, in the order to be prescribed by
court
6. Parties may then respectively adduce
rebutting evidence only
a. Unless the court permits them to
adduce evidence upon original case

7. Upon admission of evidence, case

submitted for decision
a. Unless court directs parties to argue
or to submit respective memoranda or
any further pleading
Reverse Order of Trial:
in this situation, the defendant
evidence ahead of the plaintiff

presents

SEVERANCE
When proper: This contemplates a single action
having a number of claims, counterclaims, crossclaims, third-party complaints or issues which
may be separately tried

When Proper: If the defendant in his answer

relies upon an affirmative defense

When separate trial of claims is conducted by

the court under this section, it may render
separate judgments on each claim (see Sec. 5,
Rule 36)

Where the answer of the defendant

admitted the obligation stated in the
complaint, although special defenses
were pleaded, the plaintiff has every right
to insist that it was for the defendant to
come forward with evidence to support
his special defenses (Yu v. Mapayo)

This
provision
permitting
separate
trials
presupposes that the claims involved are within
the jurisdiction of the court
- When one of the claims is not within its
jurisdiction,
the
same
should
be
dismissed, so that it may be filed in the
proper court

Ratio: Plaintiff need not have to present

evidence since judicial admissions do not require
proof (Sec. 2, Rule 129)

DELEGATION OF RECEPTION OF EVIDENCE

(Rule 30, Sec. 9)

CONSOLIDATION
OR
SEVERANCE
HEARING OR TRIAL (Rule 31)

General Rule: The judge of the court where the

case is pending shall personally receive the
evidence to be adduced by the parties.

OF

CONSOLIDATION
When proper: When actions involving a common
question of fact or law are pending before the
court
Court action: The court may:
1. Order a joint hearing or trial of any or all
matters in issue in the actions
2. Order all actions consolidated
3. Such orders concerning proceedings
therein as may tend to avoid unnecessary
costs or delay
Purpose: To avoid multiplicity of suits, guard
against oppression or abuse, prevent delay, clear
congested dockets, simplify the work of the trial
court and save unnecessary costs and expenses
Where a case has been partially tried before one
judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation
not
mandatory.
[PCGG
v.
Sandiganbayan (1992)]
It has been held that the rules do not distinguish
between cases filed before the same branch or
judge and those that are pending in different
branches or before different judges of the same
court, in order that consolidation may be proper,
as long as the cases involve the resolution of
questions of law or facts in common with each
other (Active Woods Products Co. Inc. v. CA)

Exception: The court may delegate the reception

of evidence to its clerk of court who is a member
of the bar in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.
However, the clerk of court has no power to rule
on objections to any question/admission of
exhibits.
Objections shall be resolved by the court upon
submission of the clerks report and TSN within
10 days from termination of the hearing.
The rule requires that, where the reception of
evidence is delegated to the clerk of court, he
must also be a member of the bar. Neither
agreement by parties nor their acquiescence can
justify its violation. [Umali-Paco v. Quilala]
TRIAL BY COMMISSIONERS (Rule 32)
CONCEPTS
Commissioner - A person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon to
the court, and upon whose report, if confirmed,
judgment is rendered
General rule: Trial by commissioner depends
largely upon the discretion of the court

Exception: In the following instances,

appointment of a commissioner is necessary:
1. Expropriation (Rule 67)
2. Partition (Rule 69)
3. Settlement of Estate of a Deceased
Person in case of contested claims; and
4. Submission of Accounting by executors or
administrators
Kinds of trial by commissioners
1. Reference by consent of both parties.
2. Reference ordered on motion when:
a. Trial of an issue of fact requires the
examination of a long account on
either side
b. Taking of an account is necessary for
the
courts
information
before
judgment,
or
for
carrying
judgment/order into effect.
c. A question of fact, other than upon
the pleadings, arises in any stage of a
case or for carrying a judgment/order
into effect.
REFERENCE BY CONSENT
The court may order any or all of the issues in a
case to be referred to a commissioner by written
consent of BOTH parties. (Rule 32, Sec. 1)

Proceedings before the Commissioner (Rule 32,

Sec. 5)
1. Upon receipt of the order of reference,
the commissioner shall set a time and
place for the first meeting of parties or
their counsel
2. Notices shall be sent to parties or counsel
3. Hearing is to be held within 10 days after
date of order of reference
4. If a party fails to appear, the
commissioner may: (Sec. 6)
a. Proceed ex parte; or
b. Adjourn the proceedings to a future
date giving notice to the absent party

1. When filed:
a. Filed upon completion of the trial or
hearing or proceeding before the
commissioner
b. Filed with the court

REFERENCE ORDERED ON MOTION

When proper:
1. When trial of an issue of fact requires
examination of long account
2. When taking of an account is necessary
3. When question of fact, other than upon
pleadings,
arises
upon
motion
or
otherwise, in any stage (Rule 32, Sec. 2)
Order of Reference: (Rule 32, Sec. 3)
1. When a reference is made, the clerk shall
furnish the commissioner with a copy of
the order of reference
2. Contents of the order:
a. It may specify or limit the powers of
commissioner
b. It may direct him to report only upon
particular issues; or to do or perform
particular acts; or to receive and
report evidence only
c. It may fix the date for beginning and
closing the hearings and for the filing
of his report
regulate

NOTE: Limitations on the powers of

commissioner are found in the Order of
Reference.

REPORT OF COMMISSIONER (Rule 32, Sec. 9)

Commissioners are to be:

1. Agreed upon by the parties; or
2. Appointed by the court

Powers of Commissioner:
1. Exercise
power
to
proceeding before him

2. Do all acts and take all measures

necessary or proper for the efficient
performance of his duties
3. Swear witnesses
4. Issue subpoena and subpoenas duces
tecum
5. Rule upon the admissibility of evidence
a. UNLESS otherwise provided in the
order of reference

the

2. Contents:
a. Report in writing upon the matters
submitted to him by the order of
reference
b. When his powers are not specified or
limited, he shall set forth his findings
of fact and conclusions of law in his
report
c. He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if
any,
of
testimonial
evidence
presented before him
NOTICE AND HEARING ON THE REPORT (Rule 32,
Sec. 10 and 11)
Upon filing of the report of the commissioner:
1. Parties shall be notified by the clerk
2. Parties shall be allowed 10 days within
which to object to the findings of the
report
NOTE: Objections to the report based
upon grounds which were available to the
parties during the proceedings before the
commissioner shall not be considered by

the court UNLESS they were made before

the commissioner
Hearing on the Report:
1. When made: Upon expiration of the 10
day period in Sec. 10
2. The report shall be then set forth in
hearing
3. After the hearing, the court shall issue an
order, either:

a. Adopting, modifying, or rejecting the

report in whole or in part
b. Or recommitting it with instructions
c. Or requiring the parties to present
further
evidence
before
the
commissioner or the court

DEMURRER TO EVIDENCE

defendants evidencein-chief [Northwest

Airlines v. CA (1998)]

CONCEPTS:
Definition - A species of MTD that may be
invoked based on insufficiency of evidence (i.e.
upon the facts and the law the plaintiff has
shown no right to relief). [Rule 33, Sec. 1]
It is invoked after the plaintiff has presented all
the evidence available to him
Judgment on Demurrer to Evidence It is a
judgment rendered by the court dismissing a
case upon motion of defendant, made after
plaintiff has rested his case, on the ground that
upon the facts presented and the law on the
matter, plaintiff has not shown any right to relief.
Distinctions
DEMURRER TO
EVIDENCE
It is presented after
the plaintiff has rested
his case
The ground is based
on the insufficiency of
evidence
If the motion is
denied, the defendant
may present his
evidence
If the motion is
granted, the
complaint is dismissed
The plaintiffs remedy
is to appeal

MOTION TO DISMISS
Presented before a
responsive pleading is
made by the
defendant
It may be based on
any of those
enumerated in Rule 16
If the motion to
dismiss is denied, the
defendant may file his
responsive pleading
If the motion to
dismiss is granted, the
complaint is dismissed
and depending on the
ground, the complaint
may be re-filed

EFFECT OF DENIAL; EFFECT OF GRANT

Grant of demurrer
The case shall be
dismissed

Plaintiff's remedy
would be to appeal.
However, if the order
granting the demurrer
is reversed on appeal,
the defendant loses
his right to present
evidence. [Rule 33,
Sec 1; Republic v.
Tuvera (2007)]
The appellate court
should render
judgment on the basis
of the evidence
submitted by the
plaintiff. [Radiowealth
Finance v. Del Rosario
(2000)]
Equivalent to
judgment (i.e. based
on the merits of the
evidence presented
so far)

An interlocutory order
and not appealable.
However, it may be
the subject of a
petition for certiorari
for GAD under Rule 65
[Katigbak v.
Sandiganbayan
(2003)]

WAIVER OF RIGHT TO PRESENT EVIDENCE

If the order granting the demurrer is reversed on
appeal, the defendant loses his right to present
evidence. [Rule 33, Sec .1; Republic v. Tuvera
(2007)]
Two scenarios:

Denial of demurrer

MOTION DENIED

The defendant shall

have the right to
present evidence

Movant shall have the

right to present his
evidence

The court should set

the date for the
reception of the

xxx

MOTION GRANTED
BUT REVERSED ON
APPEAL
Movant is deemed to
have waived his right
to present evidence.
The decision of the
appellate court will be
based only on the
evidence of the

plaintiff as the
defendant loses his
right to have the case
remanded for
reception of his
evidence
Denial is
INTERLOCUTORY
Sec. 1, Rule 36 (that
judgment should state
clearly and distinctly
the facts and the law
on which it is based)
will NOT apply.
The denial is NOT
appealable

Order of the court is

an ADJUDICATION ON
THE MERITS
Hence, the
requirement in Sec. 1,
Rule 36 should be
complied with

DEMURRER TO EVIDENCE IN CIVIL CASES

VERSUS CRIMINAL CASES
CIVIL CASES

Defendant need not

ask for leave of court

If the court finds

plaintiffs evidence
insufficient, it will
grant demurrer by
dismissing the

CRIMINAL CASES
May be filed with or
without leave of court.
Leave of court is
necessary so that the
accused could present
his evidence if
demurrer is denied
If the court finds the
prosecutions evidence
insufficient, it will
grant demurrer by
rendering judgment of

JUDGMENTS AND
FINAL ORDERS
JUDGMENTS IN GENERAL
Definition - The final ruling by a court of
competent jurisdiction regarding the rights and
obligations of the parties or other matters
submitted to it in an action/proceeding
[Macahilig v. Heirs of Magalit (2000)]
Requisites of a Valid Judgmen (Rule 36, Sec. 1;
Art. VIII, Sec. 14, 1987 Constitution)
1. Court/tribunal must be with authority to
hear and determine the matter before it;
2. Court must have jurisdiction over the
parties and the subject matter;
3. Parties must have been given an
opportunity to adduce evidence in their
behalf;
4. Evidence must have been considered by
the tribunal in deciding the case; [Acosta
v. COMELEC (1998)]
5. Judgment must be in writing, personally
and directly prepared by the judge. A
verbal judgment is, under the law,

complaint
The judgment of
dismissal is
appealable.
If plaintiff appeals and
judgment is reversed
by the appellate
court, it will decide
the case on the basis
of plaintiffs evidence
with the consequence
that the defendant
already loses his right
to present evidence.
There is no res
judicata in dismissal
due to demurrer.
The plaintiff files a
motion to deny
motion to demurrer to
evidence

If court denies the

demurrer, defendant
will present his
evidence

acquittal.

Judgment of acquittal
is NOT appealable.
Double jeopardy sets
in.

The court may motu

proprio deny the
motion
If court denies the
demurrer filed with
leave, accused may
present his evidence.
If court denies the
demurrer filed without
leave, accused can no
longer present his
evidence and submits
the case for decision
based on the
prosecutions evidence

ineffective. [Corpus v. Sandiganbayan

(2004)]
6. Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the
clerk of court. [Rule 35, Sec. 1]
Kinds of Judgment:
1. JUDGMENT ON COMPROMISE - It is one
conferred on the basis of a compromise
agreement entered into between the
parties. It is immediately executory in the
absence of a motion to set aside on the
ground of FAME.
2. JUDGMENT UPON CONFESSION - It is one
rendered by the court when a party
expressly agrees to the other partys
claim or acknowledges the validity of the
claim against him.
a. JUDGMENT BY COGNOVIT ACTIONEM
After service, the defendant, instead
of entering a plea, acknowledged and
confessed that the plaintiffs cause of
action was just and rightful.
b. JUDGMENT BY CONFESSION RELICTA
VERIFICATIONE After pleading and
before trial, the defendant both: (a)

confessed the plaintiffs cause of

action and (b) withdrew his plea or
other
allegations,
whereupon
judgment was entered against him
without proceeding to trial.
3. JUDGMENT UPON THE MERITS - It is one
that is rendered after consideration of the
evidence submitted by the parties during
the trial of the case. A judgment is on
the merits when it amounts to a legal
declaration of the respective rights and
duties of the parties, based upon the
disclosed facts
4. CLARIFICATORY JUDGMENT - It is rendered
to clarify an ambiguous judgment or one
difficult to comply with.
5. JUDGMENT NUNC PRO TUNC - Literally,
now for then. It is a judgment intended
to enter into the record the acts which
had already been done, but which do not
appear in the records. [Lichauco v. Tan
Pho (1923)]
6. JUDGMENT SIN PERJUICIO - It may refer to
a dismissal of a case without prejudice to
it being re-filed.
7. CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an
event. Such a judgment is generally void
because of the absence of a disposition
[Cu-Unjieng v. Mabalacat Sugar Co.
(1940)]
8. SEVERAL JUDGMENT - It is one rendered
by a court against one or more
defendants and not against all of them,
leaving the action to proceed against the
others. [Rule 36, Sec. 4] It is proper when
the liability of each party is clearly
separate and distinct from his co-parties
such that the claims against each of them
could have been the subject of separate
suits, and the judgment for or against one
of them will not necessarily affect the
other.
9. SEPARATE JUDGMENT - It is one rendered
disposing of a claim among several
others presented in a case, after a
determination of the issues material to a
particular claim and all counterclaims
arising out of the transaction or
occurrence that is the subject matter of
said claim. [Rule 36, Sec. 5] It is proper
when more than one claim for relief is
presented
in
an
action
for
the
determination as to the issues material to
the claim has been made.

10. MEMORANDUM DECISION - A decision of

the appellate court which adopts the
findings and conclusions of the TC.
a. A judgment is considered rendered
upon the filing of the signed decision.
b. This includes an amended decision
because an amended decision is a
distinct and separate judgment and
must
follow
the
established
procedural rule.

JUDGMENT WITHOUT TRIAL

CONTENTS OF A JUDGMENT

When trial is NOT necessary:

1. The pleadings of the parties tender no
issue at all judgment on the pleadings
may be directed by the court [Rule 34]
2. There is actually no genuine issue from
the pleadings, affidavits, depositions and
other papers court may render a
summary judgment [Rule 35]
3. Parties entered into a compromise or an
amicable settlement either during the
pre-trial or during the trial [Rule 18; Art.
2028 Civil Code]
4. Complaint has been dismissed with
prejudice [Rule 16, Sec. 5; Rule 17, Sec.
3; Rule 7, Sec. 5 (last par.)]
5. Case falls under the Rules on Summary
Procedure
6. Agreed statement of facts [Rule 30, Sec.
6]

Parts of a Judgment
1. Body, Ratio decidendi, or Opinion of the
court It contains the findings of facts
and conclusions of law;
2. Fallo, or Disposition of the case It is the
dispositive part of the judgment that
actually settles and declares the rights
and obligations of the parties, finally,
definitively, and authoritatively [Light Rail
Transit Authority v. CA] (2004); The part
of the judgment that is subject to
execution [Riano]
3. Signature of the judge
Distinction between Judgment and Opinion of
the Court
1. A judgment (or FALLO) must be
distinguished from an opinion.
2. The latter is the informal expression of
the views of the court and cannot prevail
against its final order or decision.
3. While the two may be combined in one
instrument, the opinion forms no part of
the judgment.
4. So there is a distinction between the
findings and conclusions of a court and its
judgment.
5. While they may constitute its decision
and amount to a rendition of a judgment
they are not the judgment itself.
6. They amount to nothing more than an
order for judgment, which, of course,
must be distinguished from the judgment.
[Freeman on Judgments, Vol. I, 5th
Edition, page 6, quoted in Casilan v.
Salcedo (1969)]
Conflict Between Dispositive Portion and Body of
Decision
Rule: Where there is a conflict between the fallo
and the body of the decision, the fallo controls.
Qualification: This rule applies only when the
dispositive
part
is
definite,
clear,
and
unequivocal [Union Bank v. Pacific Equipment
Corporation (2008)]
Basis: The fallo is the final order. The opinion in
the body is merely a statement ordering nothing
[Poland
Industrial
Limited
v.
National
Development Company (2005)]

JUDGMENT ON THE PLEADINGS

SUMMARY JUDGMENTS

Judgment on the Pleadings is a judgment

rendered by the court if the answer fails to
tender an issue, or otherwise admits the material
allegations of the adverse partys pleading. It is
rendered without a trial, or even without a pretrial

Summary Judgment is a judgment rendered by a

court without trial if it is clear that there exists
NO GENUINE ISSUE or controversy as to any
material fact, EXCEPT as to the amount of
damages

It has been held that a motion for a judgment on

the pleadings, were the answer admits all
material averments, is one that may be
considered ex parte because upon the particular
facts thus presented and laid down before the
court, the plaintiff is entitled to a judgment (Dino
v. Valencia), or motu proprio under Rule 18(2g)
(Luzon Dev. Bank v. Conquilla)
Grounds for Judgment on the Pleadings (Rule 34,
Sec. 1)
1. The answer fails to tender an issue
because of:
a. General denial of the material
allegations of the complaint;
b. Insufficient denial of the material
allegations of the complaint; OR
2. The answer admits material allegations of
the adverse partys pleading
Judgment on the Pleadings is NOT proper in
actions for:
1. Declaration of Nullity of Marriage
2. Annulment of marriage; and
3. Legal Separation
4. Unliquidated damages; claims for such
damages must be alleged and proved
5. Admission refers only to allegations of
fact and not conclusions of law
6. Insufficiency of facts; proper remedy is
amendment
NOTE: If the complaint states no cause of action,
a motion to dismiss should be filed and not a
motion for judgment on the pleadings.

Genuine Issue - an issue of fact which calls for

the presentation of evidence as distinguished
from an issue, which is a sham, fictitious,
contrived, and patently unsubstantial so as not
to constitute a genuine issue for trial
PROCEDURE (Rule 35, Sec. 3)
1. Movant files a motion for summary
judgment with supporting affidavits,
depositions or admission
2. Service to the adverse party at least 10
days the hearing
3. Adverse party may serve opposing
affidavits, depositions or admissions at
least 3 days before the hearing
4. Hearing Court shall determine if a
genuine issue as to any material fact
exists and if the movant is entitled to a
summary judgment as a matter of law
5. Court renders summary judgment
NOTE: Damages must still be proven even
if not denied.
Bases for Summary Judgment:
1. Affidavits made on personal knowledge;
2. Depositions of the adverse or a 3rd party;
(Rule 23)
3. Admissions of the adverse party; (Rule
26)
4. Answers to interrogatories. (Rule 25)
WHO MAY FILE
Who may file the
motion

When

Claimant

May file the motion only

after the answer has been
served
May file the motion any
time

Defendant

NOTE: Filing of a motion for summary judgment

does not interrupt the running of the period for
filing an answer. Hence, the movant must also
file a Motion for Extension of Time to File Answer.
TEST: Whether or not the pleadings, affidavits
and exhibits in support of the motion are
sufficient to overcome the opposing papers and
to justify the finding that, as a matter of law,
there is no defense to the action or claim is
clearly meritorious (Estrada v. Consolocaion, et
al.)

WHEN
THE
ADJUDICATED

CASE

IS

NOT

FULLY

Partial Summary Judgment - Applies when for

some reason there can be no full summary
judgment. Trial should deal only with the facts
not yet specified or established.
Nature It is interlocutory in nature and is not a
final and appealable judgment. (Guevarra v. CA)
Duty of the Court (Rule 35, Sec. 4)
1. Ascertain what material facts exist
without substantial controversy and what
are
actually
and
in
good
faith
controverted based on:
a. An examination of the pleadings and
evidence before it
b. Interrogation of the counsel
2. Make an order specifying the facts and
the extent of the amount of damages that
appear without substantial controversy
3. Direct further proceedings as are just
4. Conduct trial on the controverted facts
accordingly
Effect - A partial summary judgment is not a final
judgment, but merely a pre-trial adjudication
that said issues in the case shall be deemed
established for the trial of the case. [Guevarra v.
CA (1983)]
AFFIDAVITS AND ATTACHMENTS
These are submitted to support the motion for
summary judgment.
Form of affidavits and supporting papers (Rule
35, Sec. 5)
1. Made on personal knowledge
2. Shall set forth such facts as would be
admissible in evidence
3. Shall show affirmatively that the affiant is
competent to testify to the matters stated
therein.
4. Sworn or certified true copies of all
papers or parts thereof referred to in the
affidavit shall be attached thereto OR
served therewith.
Affidavits in bad faith
1. Affidavits presented under this Rule which
appear to the court at any time as
presented in bad faith or solely for the
purpose of delay
2. Effects:
a. Court shall order the offending party
or counsel to pay the other party
amount of reasonable expenses which

the filing of the affidavits caused him

to incur, including attorneys fees
b. Court may adjudge the offending
party or counsel guilty of contempt,
after hearing
SUMMARY JUDGMENT
Validity: Sec. 3, Rule 35 requires:
1. That there must be NO genuine issue as
to any material fact, except for the
amount of damages; and
2. That the party presenting the motion for
summary judgment must be entitled to a
judgment as a matter of law
SUMMARY JUDGMENT v. JUDGMENT ON THE
PLEADINGS v. JUDGMENT BY DEFAULT
SUMMARY
JUDGMENT

JUDGMENT ON
THE
PLEADINGS

JUDGMENT BY
DEFAULT

Based on the
pleadings,
depositions,
admissions,
and affidavits

Based solely
on the
pleadings

Based on the
complaint and
evidence, if
presentation
is required

Available to
both plaintiff
and
defendant

Generally
available only
to the plaintiff,
unless the
defendant
presents a
counterclaim

Available to
plaintiff

The answer
fails to tender
an issue or
there is an
admission of
material
allegations

No issue as no
answer is filed
by the
defending
party

3-day notice
required

3-day notice
rule applies

On the merits

On the merits

Available in
any action
except
annulment of
marriage, or
legal
separation
cases

Available in
any action
except
annulment of
marriage, or
legal
separation
cases

There is
already an
answer filed

There is no
answer filed

There is no
genuine issue
between the
parties
i.e. There
may be
issues but
these are
irrelevant
10-day notice
required
May be
interlocutory
or on the
merits
Available only
in actions to
recover a
debt, or for a
liquidated
sum of
money or for
declaratory
relief
If filed by
plaintiff, it
must be filed
at any time
after an

answer is
served.
If filed by
defendant,
may be filed
at any time
even before
there is
answer

RENDITION OF JUDGMENTS AND

FINAL ORDERS
FORM OF JUDGMENT (Rule 36, Sec. 1)
1. In writing
2. Personally and directly prepared by the
judge
3. Stating clearly & distinctly the facts and
the law on which it is based
4. Signed by the judged
5. Filed with the clerk of court.
DEFINITION OF RENDITION OF JUDGMENT
It is the filing of the judgment with the clerk of
court. It is not the pronouncement of the
judgment in open court that constitutes the
rendition. Even if the judgment has already been
put in writing and signed, it is still subject to
amendment if it has not yet been filed with the
clerk of court and before its filing does not yet
constitute the real judgment of the court. [Ago v.
CA (1962)]
PERIOD OF RENDITION (Art VIII, Sec. 5, 1987
Constitution)
1. All cases filed must be decided or
resolved by the Supreme Court within 24
months from the date of their submission
for decision.
2. Unless reduced by the SC, within 12
months for lower collegiate courts and
within 3 months for all other lower courts.
A case is deemed submitted for resolution upon
the filing of the last pleading, brief or
memorandum required by the Rules of Court or
by the court.
An extension of the period may be set by the SC
upon request by the judge concerned on account
of heavy caseload or by other reasonable excuse
[Arap v Mustafa (2002)]

ENTRY OF JUDGMENT AND FINAL

ORDER

2. Signed by the clerk with a certification

that such judgment or final order has
become final and executory.

DEFINITION
The entry of judgment refers to the physical act
performed by the clerk of court in entering the
dispositive portion of the judgment in the book
of entries of judgment after the same has
become final and executory. [Riano]

AMENDMENTS TO JUDGMENT

It is the filing of the signed decision with the

clerk of court, and not its pronouncement in
open court that constitutes rendition of judgment
(Ago v. CA)

Exceptions:
1. Clerical errors
2. Nunc Pro Tunc entries
3. Void judgments - Final judgment can be
annulled on the ground of fraud or lack of
jurisdiction or contrary to law (Panlilio v.
Garcia)
4. Whenever circumstances transpire after
finality of the decision making its
execution unjust and inequitable:
a. Cases where, because of supervening
events, it becomes imperative, in the
higher interest of justice, to direct its
modification in order to harmonize the
disposition
with
the
prevailing
circumstances (Seavan Carrier Inc. v.
GTI Sportswear Corp.)
b. Whenever
it
is
necessary
to
accomplish the aims of justice
(Pascual v. Tan)

Promulgation refers to the process by which a

decision is published, officially announced, made
known to the public or delivered to the clerk of
court for filing, coupled with notice to the parties
or their counsel
Rendition of
judgment

Entry of judgment

Filing of the judgment

with the clerk of court

Act of clerk of court in

entering the
dispositive portion of
the judgment in the
book of entries of
judgment

ENTRY OF JUDGMENTS AND FINAL ORDERS

(Rule 36, Sec. 2)
When entered: If no appeal or motion for new
trial or reconsideration is filed within the time
provided in the Rules, judgment or final order
shall forthwith be entered by the clerk in the
book of entries of judgments
Date of Finality: Date of finality is the date of
entry.
Contents of the Records in the Book of Entries:
1. Dispositive part of the judgment or final
order

POST-JUDGMENT
REMEDIES
MOTION FOR RECONSIDERATION
AND MOTION FOR NEW TRIAL
REMEDIES BEFORE FINALITY OF JUDGMENT
1. Motion for reconsideration
2. Motion for new trial
3. Appeal

General Rule: Once a judgment becomes final

and executory, such judgment can no longer be
disturbed, altered, or modified

Amended/clarified
judgment
An entirely new
decision and
supersedes the
original judgment
Court makes a
thorough study of the
original judgment and
renders the amended
and clarified
judgment only after
considering all the
factual and legal
issues

Supplemental
decision
Does not take the
place of or extinguish
the original judgment

Serves to add to the

original judgment

DEFINITION
A motion for reconsideration under Rule 37 is
directed against a judgment or final order. It is
not
the
motion
for
reconsideration
of
interlocutory order, which often precedes a
petition for certiorari under Rule 65. It does not
apply to cases that fall under Summary
Procedure.
GROUNDS: (Rule 37, Sec. 1)
Grounds for Motion for New Trial:

1. FAME

Fraud,
accident,
mistake,
excusable negligence
a. Conditions:
(1) Which ordinary prudence could not
have guarded against; and
(2) By reason of which such aggrieved
party has probably been impaired
in his rights
NOTE: Fraud must be extrinsic fraud
which means any fraudulent scheme
executed by the prevailing party outside
of the trial against the losing party who
because of such fraud is prevented from
presenting his side of the case.
2. Newly discovered evidence
a. Requisites:
(1) It must have been discovered after
the trial
(2) It could not have been discovered
and produced at the trial even
with the exercise of reasonable
diligence; and
(3) The evidence is of such weight
that if admitted, would probably
alter the result of the action; and
(4) It must be material and not merely
collateral,
cumulative,
or
corroborative
Grounds for Motion for Reconsideration:
1. Damages awarded are excessive
2. Evidence is insufficient to justify the
decision or final order
3. The decision or final order is contrary to
law
WHEN TO FILE:
An aggrieved party may file a motion for new
trial or reconsideration within the period for
taking an appeal.
The motions are filed with the court which
rendered the questioned judgment or final order.
The period for appeal is within 15 days after
notice to the appellant of the judgment or final
order appealed from. The 15-day period is
deemed to commence upon receipt by the
counsel of record, which is considered notice to
the parties. Service upon the parties themselves
is prohibited and is not considered as official
receipt of judgment.
Effect of Filing The filing of a timely motion
interrupts the period to appeal.
FORM AND CONTENTS (Rule 37, Sec. 2)
Form:
1. The motion must comply with the
provisions of Rule 15 otherwise it will not
be accepted for filing and/or will not

suspend the running of the reglementary

period.
2. It shall be made in writing, stating the
ground or grounds therefor
3. Written notice shall be served by movant
on the adverse party
NOTE:
Non-compliance
with
this
requirement would reduce the motion to
a mere pro forma motion, which shall not
toll the period for appeal.
Contents of a motion for new trial
1. If based on FAME, it shall be supported by
an affidavit of merits
NOTE: An affidavit of merits is one which
recites the nature and character of FAME
on which the motion is based and stating
the movants good and substantial cause
of action or defense and the evidence he
intends to present if granted
2. If based on newly found evidence, it shall
be supported by:
a. Affidavits of witnesses by whom such
evidence is expected or given; or
b. Duly authenticated documents which
are proposed to be introduced in
evidence
Contents of a motion for reconsideration
1. Shall point out specifically the findings or
conclusions of the judgment or final order
which are not supported by evidence or
which are contrary to law
2. Make express reference to testimonial or
documentary evidence or provisions of
law alleged to be contrary to such
findings or conclusions
RESOLUTION
ACTION

OF

MOTION

AND

COURT

Court action The court may: (Rule 37, Sec. 3)

1. Set aside the judgment or final order and
grant a new trial; or upon such terms as
may be just
2. Deny the motion
3. Amend such judgment or final order
accordingly if:
a. The court finds that excessive
damages have been awarded or that;
or
b. That the judgment or final order is
contrary to the evidence or law
Resolution (Rule 37, Sec. 4) he motion shall be
resolved within 30 days from submission
The 30-day period to resolve the motion is held
to be mandatory [Gonzales v. Bantolo (2006)]
GRANT OF THE MOTION; EFFECT

Grant of motion for reconsideration - The court

may amend the judgment or final order
accordingly. The amended judgment is in the
nature of a new judgment, which supersedes the
original judgment.
Grant of motion for new trial - The original
judgment shall be vacated, and the action shall
stand for trial de novo. The recorded evidence
upon the former trial shall be used at the new
trial without retaking them (if they are material
and competent).
Partial grant Rule 37, Sec. 7 allows the court to
order a new trial or grant reconsideration as to
such issues if severable without interfering with
the judgment or final order upon the rest.
REMEDY WHEN MOTION IS DENIED; FRESH
15-DAY RULE
Effect of Denial of Motion The judgment or final
order shall stand as is
Single-Motion Rule (Rule 37, Sec. 5) A party
shall not be allowed to file a 2nd motion for
reconsideration.
- Follow the Omnibus Motion Rule
NOTE: While a 2nd motion for reconsideration is
not allowed, a second motion for new trial is
authorized
- However, it must be based on a ground
not existing nor available when the 1 st
motion was made within the period
allowed but excluding the time during
which the first motion had been pending.
Fresh 15-Day Rule: The aggrieved party has a
fresh period of 15 DAYS within which to file his
appeal.
If the motion is denied, the movant has a fresh
period of 15 days from receipt or notice of the
order denying the motion for new trial or motion
for reconsideration within which to file an
appeal. (Neypes v. CA, 2005)
NOTES:
1. This fresh period becomes significant only
when a party opts to file a motion for new
trial or reconsideration
2. This rule does not refer to the period
within which to appeal from the order
denying the motion for reconsideration
but to the period within which to appeal
from the judgment itself.
Filing of a proper motion for new trial interrupts
the running of the period of appeal which begins

APPEALS IN GENERAL
NATURE OF APPEAL

to run again from receipt of the notice of the

movant of the order denying his motion (fresh 15
day period) (Phil. Commercial and Industrial
Bank v. Ortiz)
Remedies if Motion is DENIED:
1. To appeal from the judgment or final
order itself
2. The order denying the motion may itself
be assailed by a petition for certiorari
under Rule 65
3. Rule 37, Sec. 9 says that an order
denying a motion for new trial or
reconsideration is NOT appealable
a. NOTE
HOWEVER:
AM
07-7-12
amended Sec. 1 of Rule 41 by
deleting An order denying a motion
for new trial or reconsideration from
the non-appealable orders.
MOTION FOR
NEW TRIAL
Grounds:
1. Fraud,
accident,
mistake,
or
excusable
negligence
2. Newly
discovered
evidence
Note
the
qualificatio
ns of each

MOTION FOR
RECONSIDERATION
Grounds:
1. Damages
awarded
are
excessive
2. That evidence
is insufficient to
justify
the
decision or final
order
3. That
decision
or final order is
contrary to law
Second motion from
Second motion may
the same party is
be allowed so long as
prohibited.
based on grounds not The prohibition applies
existing or available
only to final orders or
at the time the first
judgments, hence it is
motion was made
allowed in
interlocutory orders
If the court finds that
If a new trial is
excessive damages
granted, original
have been awarded or
judgment or final
that the judgment or
order is vacated.
final order is contrary
The case stands for
to the evidence or law,
trial de novo and will
it may amend such
be tried anew
judgment or final order
accordingly
Available even on
Available against the
appeal but only on the
judgments or final
ground of newly
orders or both the trial
discovered evidence
and appellate courts
Both are prohibited motions under Summary
Procedure

1. Not a natural right nor a part of due

process
2. It is merely a statutory right, and may be
exercised only in the manner and in

accordance with provisions of the law. It

must comply with the requirements;
failing to do so, the right to appeal is lost
3. Once granted, appeals become part of
due process and should be liberally
applied in favor of the right to appeal
JUDGMENTS AND FINAL ORDERS SUBJECT
TO APPEAL; MATTERS NOT APPEALABLE
Rule 41, Sec. 1, as amended by AM 07-7-12-SC
(2007) provides:
1. Appeal may be taken from a judgment or
final order that completely disposes of
the case, or of a particular matter therein
when declared by the Rules to be
appealable
2. No appeal may be taken from:
a. An order denying a petition for relief
or any similar motion seeking relief
from judgment;
b. An interlocutory order;
c. An order disallowing or dismissing an
appeal;
d. An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or duress, or
any other ground vitiating consent;
e. An order of execution;
f. A judgment or final order for or
against one or more of several parties
or in separate claims, counterclaims,
cross-claims
and
third-party
complaints, while the main case is
pending, unless the court allows an
appeal therefrom; and
g. An order dismissing an action without
prejudice.
NOTE: AM 07-7-12-SC removed from
the original list an order denying a
motion
for
new
trial
or
reconsideration.
NOTE, HOWEVER: Rule 37, Sec. 9
which states that no appeal can be
made from an order denying MR or
MNT.
Only final judgments or orders can be appealed
as distinguished from interlocutory judgments or
orders which are not appealable.
Final Order

Interlocutory Order

Disposes of the
matter in its
entirety, leaving
nothing more to be
done but to enforce
execution

Does not dispose of

a case completely
but leaves
something more to
be decided upon.

Appealable

Not appealable
except through a
petition for
certiorari under Rule
65

Must clearly and

distinctly state the
law and the facts
on which it is based

No need to comply
with such a
requirement

An interlocutory order is one that does not finally

dispose of the case, and does not end the court's
task of adjudicating the parties contentions and
determining their rights and liabilities as regards
each other, but obviously indicates that other
things remain to be done. [BPI v. Lee (2012)]
REMEDY AGAINST JUDGMENTS AND ORDERS
WHICH ARE NOT APPEALABLE
The aggrieved party may file a special civil
action under Rule 65. (Rule 41, Sec. 1)
MODES OF APPEAL
1. Ordinary appeal Rule 40 and 41
a. Notice of appeal
b. Record on appeal
2. Petition for review Rule 42
3. Petition for review on certiorari Rule 45
ORDINARY
APPEAL
Appeal by
writ of error
Case is
decided by
RTC in its
original
jurisdiction
Appealed to
the CA

PETITION FOR
REVIEW

PETITION FOR
REVIEW ON
CERTIORARI

Rule 42

Rule 45

Case decided
by RTC in the
exercise of its
appellate
jurisdiction
Petition for
review with
the CA

Case decided
by the RTC,
CA, CTA, and
Sandiganbaya
n

File notice of
appeal or
record of
appeal with
court of
origin and
give a copy
to adverse
party

File a verified
petition for
review with
CA.
Pay docket
and lawful
fees and P500
as deposit for
costs with the
CA.
Furnish RTC
and adverse
party a copy of
such

Within 15
days from
notice of
judgment for
notice of

Within 15 days
from notice of
decision to be
reviewed or
from denial of

Appealed to
the SC
File verified
petition for
review on
certiorari with
the SC.
Pay docket
and lawful
fees and P500
for costs.
Submit proof
of service of a
copy to the
lower court
and adverse
party
Within 15
days from
notice of
judgment or
order of

appeal and
30 days for
records on
appeal

a MFR or MFNT

denial of MFR
or MFNT

ISSUES TO BE RAISED ON APPEAL

Limited to cognizable judgments/issues.
The appellate court has no jurisdiction to review
a judgment which is immediately final and
executory by express provision of law. [Republic
v. Bermudez-Lorino (2005)]
Rationale: Appeal is merely a privilege conferred
by law upon the litigants.
A party cannot change the theory on appeal.
Only issues pleaded in the lower court and
properly raised may be resolved by the appellate
court. [Medina v. CA (1992)]
However, issues which are inferred from or
necessarily connected with the issue properly
raised and pleaded may be resolved by the
appellate court. [Espina v. CA (1992)]
PERIOD OF APPEAL
PERIOD TO APPEAL

EXTENSIONS

MTC to RTC
By notice of appeal;
No
within 15 days from
extensions
notice of judgment
allowed
or final order
By record of
appeal;
within 30 days from
notice of judgment
or final order
RTC to CA
By notice of appeal;
Within 15 days
No
from notice of
extensions
judgment or final
allowed
order
By record of
appeal;
within 30 days from
notice of judgment
or final order
MTC to RTC to CA
15 days from notice The CA may
of the judgment or
grant a 15
final order OR from
day
denial of MR or
extension.
MNT
No further
extension
shall be
granted
except for

EFFECT OF
MR or MNT
Interrupts
period to
appeal

Interrupts
period to
appeal

the most
compelling
reasons and
in no case
longer than
15 days.
QJA to CA
The CA may
grant a 15
day
15 days from notice
extension.
of the award,
No further
judgment, final
extension
order or resolution
shall be
or from date of last
granted
publication if
except for
required by law OR
the most
from denial of MR
compelling
or MNT
reasons and
in no case
longer than
15 days.
RTC to SC
RTC to CA to SC
CA to SC
15 days from notice
The SC may
of judgment or final
grant a 30
order OR from
day
denial of
extension for
petitioners MR or
justifiable
MNT.
reasons.

Fresh
period to
appeal
from denial
MR or MNT

Fresh
period to
appeal
from denial
MR or MNT

The fresh period rule shall apply to:

1. Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial
Courts;
2. Rule 42 on petitions for review from the
Regional Trial Courts to the Court of
Appeals;
3. Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
4. Rule 45 governing appeals by certiorari to
the Supreme Court. The new rule aims to
regiment or make the appeal period
uniform, to be counted from receipt of the
order denying the motion for new trial,
motion for reconsideration (whether full
or partial) or any final order or resolution.
[Neypes v. CA, (2005)]
Being
procedural
in
nature, Neypes is
deemed to be applicable to actions pending
and undetermined at the time of its
effectivity and is thus retroactive in that
sense and to that extent. [First Aqua Sugar v.
BPI (2007)]

Fresh
period to
appeal
from denial
MR or MNT

PERFECTION OF APPEAL
Perfection of an appeal in the manner and within
the period laid down by law is mandatory and
jurisdictional. [Balgami v. CA (2004)]
Effect of Failure to Perfect Appeal

1. Defeats a partys right to appeal.

2. Precludes appellate court from acquiring
jurisdiction.

APPEAL FROM MUNICIPAL TRIAL

COURTS TO THE REGIONAL TRIAL
COURTS (RULE 40)
OUTLINE OF PROCEDURE (Rule 40, Sec. 7)

Appeal decision of MTC by filing notice of appeal and pay within 1

15 days from perfection of appea

MTC clerk transmits record to RTC

Notice to parties that an appeal is being

from the decision of the MTC

Within 15 days from notice of appe

Appellant submits memorandum to th
Appellee files his own memorandum 15 days from receipt o

Court acts on the appeal

If uncontested, judgment is Any

entered
party
inmay
the book
appeal
of by
entries
filing a

WHERE APPEAL IS TAKEN

It is taken to the RTC exercising jurisdiction over
the area to which the MTC pertains. (Rule 40,
Sec. 1)
WHEN TO APPEAL (Rule 40, Sec. 2)
1. If by notice of appeal, within 15 days after
notice to appellant of judgment or final
order appealed from
2. If record of appeal is required, within 30
days from notice of judgment or final
order
3. Period of appeal shall be interrupted by a
timely
motion
for
new
trial
or
reconsideration
NOTE: The fresh 15 day period rule
applies.
HOW TO APPEAL (Rule 40, Sec. 3)
By Notice of Appeal
1. File a notice of appeal with the trial court
that rendered the judgment or final order
appealed from
2. The notice of appeal must indicate the
parties, the judgment or final order or
part thereof appealed from; the material
date showing timeliness of appeal
3. A copy served on the adverse party; and
4. Payment in full of docket fees and other
lawful fees

By Record on Appeal
1. Record on appeal is required for the
following cases:
a. Special proceedings
b. In such other cases where multiple
appeals are allowed
2. Form and contents of the record on
appeal: (Rule 41, Sec. 6)
a. Within 15 days from perfection of
appeal, clerk of court or the branch
clerk of the lower court shall transmit
to the RTC:
(1) Original record or record on appeal
(2) Together with transcripts and
exhibits
b. Clerk shall make a certification that
the documents are complete
c. Clerk shall also furnish the parties a
copy of his letter of transmittal of the
records to the appellate court
3. Copy is served on the adverse party
4. Payment in full of docket fees and other
lawful fees
PERFECTION OF APPEAL
Since appeals from inferior courts may now be
either by notice of appeal or record on appeal,
the rules on the perfection and the effect thereof
are the same. See Sec. 9, Rule 41
APPEAL FROM ORDERS DISMISSING THE
CASE
WITHOUT
TRIAL;
LACK
OF
JURISDICTION (Rule 40, Sec. 8)
Two Scenarios:
1. If the MTC dismissed the case without
trial on the merits, the RTC may:
a. AFFIRM, if the ground of dismissal is
lack of jurisdiction over the subject
matter
(1) If the RTC has jurisdiction, it shall
try the case on the merits as if the
case was originally filed therein
b. REVERSE, in which case,
remand
the
case
for
proceedings

it shall
further

2. If the case was tried on the merits by the

MTC without jurisdiction over the subject
matter:
a. The RTC shall NOT dismiss the case if
it has original jurisdiction
b. If it has original jurisdiction, the RTC
shall decide the case and admit
amended pleadings or additional
evidence
APPLICABILITY OF RULE 41 - The other
provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not

inconsistent with or may serve to supplement

the provisions of this Rule.

APPEAL FROM THE REGIONAL TRIAL

COURTS (RULE 41)
MODES OF APPEAL: There are three modes of
appeal from judgments or final orders of the RTC:
1. ORDINARY APPEAL or appeal by writ of
error, where judgment was rendered in a
civil or criminal action by the RTC in the
exercise of its original jurisdiction
a. This mode of appeal, governed by
Rule 41, is taken to the CA on
questions of fact or mixed questions
of fact and law
2. PETITION FOR REVIEW, where judgment
was rendered by the RTC in the exercise
of its appellate jurisdiction
a. This mode of appeal, covered by Rule
42, is brought to the CA on question
of fact, of law, or mixed questions of
fact and law
3. PETITION FOR REVIEW ON CERTIORARI, or
appeal by certiorari to the SC
a. This mode of appeal, provided for by
Rule 45, is brought to the SC from the
decision of the RTC in the exercise of
its original jurisdiction and only on
questions of law
HOW ORDINARY APPEAL VIA RULE 41 IS
MADE:
Appeal via Rule 41 presupposes that:
1. The RTC rendered the judgment or final
order in the civil action or special
proceeding in the exercise of its ORIGINAL
jurisdiction; and
2. That the appeal is taken to the CA on:
a. Questions of fact or
b. Mixed questions of fact and law
Notice of Appeal Filed with the court which
rendered the judgment or final order appealed
from. A copy is served on the adverse party.
(Rule 41, Sec. 5)
Contents of the Notice of Appeal:
1. Parties to the appeal
2. Judgment or final order or part thereof
appealed from
3. The court to which the appeal is being
taken; and
4. The material dates showing the
timeliness of the appeal
Record on Appeal Done in special proceedings
and other cases where multiple or separate
appeals are allowed. This is filed and served in
the same manner as notice of appeal.
Contents of the Record (Rule 41, Sec. 6)

1. Full names of all the parties to the

proceedings shall be stated in the
caption of the record on appeal
2. It shall include the judgment or final
order from which the appeal is taken,
3. In chronological order, copies of only
such pleadings, petitions, motions,
and all interlocutory orders as are
related to the appealed judgment or
final order
4. For the proper understanding of the
issue involved
5. Together with such data as will show
that the appeal was perfected on time
Approval of the Record on Appeal (Rule
41, Sec. 7) Upon filing of the record for
approval and if no objection is filed by the
appellee within 5 days from receipt of a
copy thereof, the trial court may:
1. Approve it as presented; or
2. Direct its amendment by the inclusion
of any omitted matters which are
deemed essential
Joint Record on Appeal (Rule 41, Sec. 8)
Where both parties are appellants, they
may file a joint record on appeal.
PERIOD TO APPEAL (Rule 41, Sec. 2)
1. 15 days from notice of judgment or final
order appealed from
2. 30 days from notice of judgment or final
order where a record on appeal is
required
3. 48 hours from notice of judgment or final
order appealed from in habeas corpus
cases
Reckoning point of reglementary period: Period
for filing the appeal should be counted from the
date when the partys counsel received a copy of
the judgment or final order
When a party is represented by a counsel,
service of process must be made on
counsel, not on party (Fajardo v. CA)
Effect
of
Motions
for
New
Trial
and
Reconsideration Originally, the period to
appeal is interrupted by a timely motion for new
trial and reconsideration. However, with the
Neypes doctrine, a party has a fresh 15-day
period from a denial of the motion to perfect an
appeal.
Extension of Period to Appeal
Period to appeal may be extended but such
extension is addressed to the sound discretion of
the court (Socco v. Garcia)
The mere filing and pendency of motion for
extension to perfect appeal does not suspend

the running of the reglementary period (Bello et

al., v. Fernandez)
PLEADINGS FILED (See Rule 44, Procedure in
the CA)
Appellants Brief
1. Filed within 45 days from receipt of notice
of clerk that all evidence is attached to
record
2. Follow the Efficient Use of Paper Rule,
one original properly marked and 2 copies
with annexes
3. Attach proof of service to adverse party
Grounds for dismissal with respect to
appellants brief:
1. Failure to file brief on time
2. Failure to make specific assignment of
errors in his brief
Contents:
1. Subject index
2. Assignment of Errors
3. Statement of the Case
4. Statement of Facts
5. Statement of Issues
6. Arguments
7. Relief
8. Copy of judgment or
appealed from

final

order

Appellees Brief:
1. Filed within 45 days from receipt of
appellants brief
2. Manner of filing is similar to that in
appellants brief
Contents:
1. Subject index
2. Statement
of
Facts
Statement of Facts
3. Arguments

and

Counter-

Appellants Reply Brief

1. Filed within 20 days from receipt of
appellees brief
2. This is not mandatory as it is optional on
the part of the appellant
Extension of Time for Filing Briefs:
1. General rule: Not allowed
2. Exception: For good reasons and only if
motion for extension is filed before
expiration of time sought to be extended
PERFECTION OF APPEAL
Payment of Docket Fees (Rule 41, Sec. 4)
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order

appealed from, the full amount of the appellate

court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the
appellate court together with the original record
or the record on appeal.
Payment of docket fees in full is mandatory and
is a condition sine qua non for the perfection of
an appeal.
Perfection of Appeal (Rule 41, Sec. 9)
1. If appeal is by notice of appeal it is
deemed perfected as to him upon the
filing of the notice of appeal in due time
2. If appeal is by record on appeal it is
perfected as to him with respect to the
subject matter thereof, upon approval of
the record on appeal filed in due time
Effect of Perfected Appeal
1. In appeals by notice of appeal:
a. Court loses jurisdiction over the case
upon perfection of appeal filed in due
time and expiration of the time to
appeal of the other parties
b. NOTE: This rule applies individually
and to each of the parties since the
timeliness of their recourse for
appellate remedy depends on when
they respectively received a copy of
the judgment or final order
2. In appeals by record on appeal:
a. Court loses jurisdiction only over the
subject matter thereof upon approval
of the records on appeal filed in due
time and the expiration of the time to
appeal of the other parties
b. NOTE: The effect is limited to the
subject matter only. Jurisdiction over
the case is still with the trial court
Residual Powers/Jurisdiction of the RTC After
losing jurisdiction but prior to the transmittal of
the original record on appeal, the RTC may:
1. Order execution pending appeal under
Rule 39, Sec. 2 (motion for execution was
filed before expiration of the period to
appeal)
2. To issue orders for preservation of the
rights of the parties which do not involve
matters litigated by appeal
3. To approve compromise prior to the
transmittal of the record
4. Permit appeal by an indigent
5. Allow withdrawal of the appeal
The concept of residual jurisdiction of the trial
court is available at a stage in which the court is
normally deemed to have lost jurisdiction over
the case or the subject matter involved in the
appeal. There is no residual jurisdiction to speak
of where no appeal or petition has even been
filed (Fernandez v. CA).

Duty of Clerk Upon Perfection of Appeal (Rule 41,

Sec. 10) Within 30 days after perfection of all
appeals, the RTC clerk shall:
1. Verify completeness of original record or
record on appeal and make certification
as to its correctness
2. Verify completeness of records that will
be transmitted to appellate court
3. If found to be incomplete:
a. Take such measures as may be
required to complete records
b. If efforts to complete records fail:
(1) Indicate in his letter of transmittal
the exhibits or transcripts not
included
(2) Reasons for their transmittal
(3) Steps taken or that could be taken
to have them available
4. Transmit the records to appellate court
and furnish the parties with copies of his
letter of transmittal
DISMISSAL OF APPEAL (Rule 41, Sec. 13)
When can the RTC dismiss the appeal?
1. Prior to transmittal of original record to
appellate court; or
2. Prior to transmittal of record on appeal to
the appellate court
How done: By the court, motu proprio, or on
motion to dismiss appeal by a party
Grounds:
1. Appeal was taken out of time
2. Non-payment of docket and other lawful
fees within the reglementary period
NOTE: The dismissal of the appeal in RTC
is limited only to these two grounds

PETITION FOR REVIEW FROM THE

REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS (RULE 42)
Under this mode of appeal, it is NOT a matter of
right but is a matter of DISCRETION on the part
of the CA on whether or not to entertain the
appeal.
Appeal via Rule 42 is proper when one appeals
from a decision of the RTC in the exercise of its
APPELLATE jurisdiction.
Appeal under Rule 42 may be on either
questions of fact or of law or on mixed questions
of both
HOW APPEAL IS TAKEN; PERIOD OF APPEAL
(Rule 42, Sec. 1)
If a party desires to appeal from a decision of
the RTC in its appellate jurisdiction:
1. File a VERIFIED petition for review with
the CA
a. Within 15 days from notice of
decision, or
b. Within 15 days from notice of denial
of petitioners motion for new trial or
reconsideration
2. Pay the corresponding docket fee and
other lawful fees and depositing P500 for
costs
3. Furnish the RTC and adverse party a copy
of the petition
Extension of period: - The CA may grant an
additional 15 days within which to file the
petition for review
- Conditions:
1. There was a motion filed to this effect
2. Payment in full of docket fees and
other lawful fees as well as deposit for
costs
3. To be done within the reglementary
period
No further extension may be granted
EXCEPT for the most compelling reason
and in no case to exceed 15 days.
FORM AND CONTENTS OF THE PETITION
FOR REVIEW (Rule 42, Sec. 5)
Form of the petition:
1. Original copy is filed intended for the
court, properly marked and 2 copies with
their annexes (Efficient Use of Paper
Rule)
2. Accompanied by clearly legible duplicate
originals or true copies of judgments or
final orders of both lower courts certified
correct by the RTC clerk

3. Also with pleadings and other material

portions of record as would support the
allegations of the petition
Contents of the petition:
1. Full names of the parties without
impleading the lower courts or judges
thereof
2. Specific
material
dates
showing
timeliness of appeal
3. Concise statement of:
a. Matters involved
b. Issues raised
c. Specification of errors of fact or law,
or both
d. Reasons or arguments relied upon
4. A certificate of non-forum shopping must
also be attached
EFFECT OF FAILURE TO COMPLY
REQUIREMENTS (Rule 42, Sec. 3)

WITH

Failure to comply with any of the following

requirements shall be sufficient ground for
DISMISSAL
1. Payment of docket and other lawful fees
NOTE: In petitions for review under Rules
42, 43, and 45, the docket fee is paid in
the appellate courts
2. Deposit for costs
3. Proof of service of petition
4. Contents of the documents, which should
accompany the petition
ACTION ON PETITION (Rule 42, Sec. 4)
The CA may:
1. Require respondent to file a comment on
the petition not a motion to dismiss
within 10 days from notice; or
2. Dismiss the petition if it finds the same to
be:
a. Patently without merit
b. Prosecuted manifestly for delay; or
c. The questions raised therein are too
unsubstantial to require consideration
REMEMBER: Under this Rule, appeal is
discretionary on the CA which may give its due
course only when the petition shows prima facie
that the lower court has committed error.

4. Copy of
petitioner

the

comment

served

on

Contents of Comment: The comment shall

1. State whether or not he accepts the
statement of matters involved in the
petition
2. Point
out
such
insufficiencies
or
inaccuracies as he believes exist in
petitioners statement of matters but
without repetition
3. Reasons why the petition should not be
given due course
DUE COURSE (Rule 42, Sec. 6)
If upon the filing of the comment or such other
pleadings as the court may allow or require, or
after the expiration of the period for the filing
thereof without such comment or pleading
having been submitted, the Court of Appeals
finds prima facie that the lower court has
committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition.
PERFECTION OF APPEAL (Rule 42, Sec. 8)
Appeal is deemed perfected as to PETITIONER
upon:
1. Timely filing of the petition
2. Payment of docket and lawful fees
Jurisdiction of the RTC
1. RTC loses jurisdiction upon:
a. Perfection of appeals filed in due time;
and
b. Expiration of the time to appeal of
other parties
2. RTC may exercise residual jurisdiction
before the CA gives due course to the
petition
General Rule: Perfected appeal
challenged judgment or final order

stays

the

Exceptions:
1. Unless the CA, law, or Rules, provide
otherwise
2. Also in civil cases decided under the
Rule on Summary Procedure; Stay of
judgment is not applicable here since
these are immediately executory

COMMENT BY RESPONDENT (Rule 42, Sec. 5)

SUBMISSION OF DECISION (Rule 42, Sec. 9)

Form of Comment:
1. An original is filed, properly marked,
together with 2 copies with their annexes
(Efficient Use of Paper Rule)
2. Accompanied by certified true copies of
such material portions of the record
referred to therein
3. Together with other supporting papers

If the petition is given due course

1. Case may be set for oral argument, or
2. The parties may be required to submit
memoranda within 15 days from notice
3. Case shall be deemed submitted for
decision upon filing of last pleading or
memoranda

APPEALS FROM QUASI-JUDICIAL

AGENCIES TO THE COURT OF
APPEALS (RULE 43)
SCOPE
Appeals from awards, judgments, final orders or
resolution of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions
A quasi-judicial agency or body is an organ of
government other than a court and other than a
legislature, which affects the rights of private
parties though either adjudication or rule-making
NOTE: A party adversely affected by a decision
or ruling of the CTA en banc may file with the SC
a verified petition for review on certiorari via
Rule 45 (Sec. 12, RA 9282 and AM 07-7-12-SC)
The CTA is no longer a quasi-judicial agency
under RA 9282, as of April 7, 2004.
QJAs covered by Rule 43:
1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents Trademarks and
Technology Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications Commission
11. Department of Agrarian Reform under RA
6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction
Industry
Arbitration
Commission, and
19. Voluntary arbitrators authorized by law
WHERE TO APPEAL (Rule 43, Sec. 3)
Appeal is taken to the CA on questions of fact, of
law, or mixed questions of fact and law.
PERIOD TO APPEAL (Rule 43, Sec. 4)
Period to appeal is 15 days from:
1. Notice of award, judgment, final order, or
resolution OR
2. Date of publication, if publication is
required by law for its effectivity, OR
3. Denial of petitioners MNT or MFR
Extension of Period: Additional 15 days only

1. Extension is granted upon motion for

extension and payment of full docket
fees, both within the reglementary period
2. No further extension is allowed except for
the most compelling reasons and in no
case shall exceed 15 days
HOW APPEAL IS TAKEN (Rule 43, Sec. 5)
1. A verified petition for review is filed with
the CA following the Efficient Use of
Paper Rule
a. Attach proof of service of a copy to
the adverse party and to the court or
agency a quo
2. Upon filing, pay the docket and lawful
fees as well as a P500 deposit for costs
a. Payment is made to the CA clerk
b. Exemption from payment may be
granted by the CA by filing a verified
motion for exemption;
if denied,
party must pay within 15 days from
notice of denial
CONTENTS OF THE PETITION: (Rule 43, Sec.
6)
1. Statement of full names of parties to the
case without impleading court or
agencies
2. Concise statement of facts and issues
involved and grounds relied upon for
review
3. Accompanied by:
a. Clearly legible duplicate original or a
certified
true
copy
of
award,
judgment, final order, or resolution
appealed from
b. Certified true copies of such material
portions of record referred to in the
petition and other supporting papers
4. Certificate of non-forum shopping
5. Statement of specific material dates
showing timeliness of appeal
EFFECT OF FAILURE TO COMPLY: Dismissal
(Rule 43, Sec. 7) for failure to comply with the
following:
1. Payment of docket and lawful fees
2. Deposit for costs
3. Proof of service of petition
4. Contents of petition
5. Documents which should accompany the
petition
ACTION ON THE PETITION (Rule 43, Sec. 8)
The CA may:
1. Require respondent to file Comment
within 10 days from notice
2. Dismiss the petition if CA finds the same
to be:
a. Patently without merit
b. Prosecuted manifestly for delay, or

c. Questions raised are too unsubstantial

to require consideration
FORM AND CONTENTS OF COMMENT (Rule
43, Sec. 9)
Form of comment:
1. Filed within 10 days from notice following
the Efficient Use of Paper Rule
2. Accompanied
by
the
following
documents:
a. Clearly legible certified true copies of
such material portions of the record
referred to therein
b. And such other supporting documents
3. Copy of Comment is served on petitioner
with proof of such service filed with the
CA
Contents of Comment: The comment shall:
1. Point insufficiencies or inaccuracies in
petitioners statement of facts and issues
2. State reasons why petition should be
denied or dismissed
DUE COURSE (Rule 43, Sec. 10)
CA may give due course if CA finds prima facie
that court or agency has committed errors of
fact or law that would warrant reversal or
modification
If not, then the CA may dismiss the same.
TRANSMITTAL OF RECORDS (Rule 43, Sec. 11)
Within 15 days from notice that petition has
been given due course, the CA may:
1. Require court or agency concerned to
transmit original or legible certified true
copy of entire record of proceeding under
review
2. Require or permit subsequent correction
or addition to record
EFFECT OF APPEAL (Rule 43, Sec. 12)
General Rule: Appeal shall not stay the award,
judgment, final order or resolution sought to be
reviewed
Exception: When the CA shall direct otherwise
upon such terms as it may deem just
SUBMISSION FOR DECISION (Rule 43, Sec. 13)
If petition is given due course, the CA may set
the case for oral argument or require parties to
submit memoranda within 15 days from notice.

Upon filing of last pleading or memorandum

required, case is deemed submitted for decision.
APPEAL FROM JUDGMENTS
ORDERS OF THE CTA

OR

FINAL

A party adversely affected by a decision or ruling

of the CTA en banc may file with the Supreme
Court a verified petition for review on certiorari
pursuant to Rule 45. (Sec. 19, RA 1125 as
amended by RA 9282)
APPEAL FROM JUDGMENTS
ORDERS OF THE COMELEC

OR

FINAL

Unless otherwise provided by law, or by any

specific provisions in these Rules, any decision,
order or ruling of the Commission may be
brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) days from
its promulgation. (Rule 37, Sec. 1, COMELEC
Rules of Procedure)
Decisions in appeals from courts of general or
limited jurisdiction in election cases relating to
the elections, returns, and qualifications of
municipal and barangay officials are not
appealable. (Rule 37, Sec. 2, COMELEC Rules of
Procedure)
Decisions in pre-proclamation cases and
petitions to deny due course to or cancel
certificates of candidacy, to declare a candidate
as nuisance candidate or to disqualify a
candidate, and to postpone or suspend elections
shall become final and executory after the lapse
of five (5) days from their promulgation, unless
restrained by the Supreme Court. (Rule 37, Sec.
3, COMELEC Rules of Procedure)
APPEAL FROM JUDGMENTS
ORDERS OF THE OMBUDSMAN

OR

FINAL

The following decisions are unappealable:

1. In administrative cases where respondent
is absolved of the charge
2. In case of conviction, where penalty
imposed is public censure or reprimand,
or suspension of not more than one
month or a fine equivalent to one month
salary (AO 7, Rule III, Sec. 7)
Jurisdiction of the CA
1. CA has jurisdiction over orders, directives,
and
decisions
of
the
Office
of
Ombudsman in administrative disciplinary
cases only
2. It cannot review orders, directives,
decisions
in
criminal
and
nonadministrative cases
Jurisdiction of the SC

1. In criminal cases, ruling of Ombudsman

shall be elevated to the SC via Rule 65
2. In cases in which it is alleged that the
Ombudsman has acted with grave abuse
of discretion amounting to lack or excess
of jurisdiction, a special civil action of
certiorariunder Rule 65 may be filed with
this Court to set aside the Ombudsmans
order or resolution. [Nava v. NBI (2005)]
APPEAL FROM JUDGMENTS
ORDERS OF THE NLRC

OR

FINAL

Rule 43, Sec. 2 states that Rule 42 shall not

apply to judgments or final orders issued under
the Labor Code.
The law no longer provides for an appeal from
decisions of the LA or from the NLRC. Mode of
review from said decisions is the special civil
action for Certiorari under Rule 65 in the CA.
NLRC judgments and final orders or resolutions
are now reviewable, in the first instance, by the
Court of Appeals on certiorari under Rule 65, but
those
of
the
Employees
Compensation
Commission should be brought to the Court of
Appeals through a petition for review under this
Rule. Also, appeals from the Office of the
Ombudsman in administrative disciplinary cases
are now covered by this Rule. [Fabian v. Desierto
(1998)]

APPEAL BY CERTIORARI TO THE

SUPREME COURT (RULE 45)
CERTIORARI AS A MODE OF APPEAL (RULE
45) AND CERTIORARI AS A SPECIAL CIVIL
ACTION (RULE 65)
APPEAL BY
CERTIORARI
Rule 45
Based on questions of
law which appellant
desires the appellate
court to resolve

Involves review of
judgment, award or
final order on merits

Must be made within

the reglementary
period of appeal

Stays the judgment,

award, or order
appealed from

Petitioner and
respondent are
original parties to the
action
Prior filing of MR not
required

Appellate court is in
the exercise of
appellate jurisdiction
and power of review

CERTIORARI AS AN
ACTION
Rule 65
Petition raises the
issue as to whether
the lower court acted
without or in excess of
jurisdiction or with
grave abuse of
discretion
May be directed
against an
interlocutory order of
the court prior to
appeal from the
judgment or where
there is no appeal or
any other plain,
speedy, or adequate
remedy
May be filed not later
than 60 days from
notice of judgment,
order or resolution
sought to be assailed
Does not stay the
challenged
proceedings
(unless a writ of
preliminary injunction
or TRO is issued)
The parties are the
aggrieved party
against the lower court
or quasi-judicial
agency as prevailing
parties
A filing of a MR is a
condition precedent,
subject to certain
exceptions
Higher court exercises
original jurisdiction
under its power of
control and
supervision over
proceedings of lower
courts

A party desiring to appeal by certiorari from a

judgment, final order or resolution of the CA, the
Sandiganbayan, the CTA, the RTC or other
courts, whenever authorized by law, may file
with the Supreme Court a verified petition for
review on certiorari.

The petition may include an application for a writ

of preliminary injunction or other provisional
remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner
may seek the same provisional remedies by
verified motion filed in the same action or
proceeding at any time during its pendency.
(Rule 45, Sec. 1, as amended by A.M. 07-7-12SC)
OUTLINE OF PROCEDURE
RTC, Sandiganbayan, CTA en banc, or CA renders a
decision

Any party files a petition for review on certiorari

Within 15 days from notice
of final judgment or order of lower court
or notice of denial of motion for reconsideration or new
trial

Appellant serves copies of petition on adverse parties

And to the lower court,
And pay the corresponding docket fees

SC may dismiss the petition or require appellee to

comment

If given due course, parties may submit memoranda

The SC is not a trier of facts, and is not to review

or calibrate the evidence on record. Moreover,
findings of facts of trial court, as affirmed on
appeal by the CA, are conclusive on the court
(Boston Bank of the Philippines v. Manalo)
It has to be emphasized that it is not the duty of
the SC to review, evaluate, and weigh the
probative value of the evidence adduced before
the lower courts (Frondarina v. Malazarte)

SC may affirm, reverse, or modify judgment of lower

court

APPEAL FROM RTC TO SC UNDER RULE 45

To appeal under Rule 45, RTC must render
judgment in the exercise of its original
jurisdiction

PROPRIETY OF RULE 45 AS A MODE OF

APPEAL
Appeals to the SC Can be taken from a judgment
or final order or resolution of the CA,
Sandiganbayan, CTA en banc, RTC or such other
courts as may be authorized by law
Only questions of law are allowed. Whether an
appeal involves only questions of law or both
questions of law and fact is best left to the
determination of an appellate court and not by
the court which rendered the decision appealed
from (PNB v. Romillo, etc., et al.)
QUESTIONS OF LAW
Doubt or controversy
as to what the law is
on certain facts

QUESTIONS OF FACT
Doubt or difference as
to the truth or
falsehood of facts, or
as to probative value
of the evidence
presented

If the appellate court

can determine the
issue without
reviewing or
evaluating the
evidence

The determination
involves evaluation or
review of evidence

Can involve questions

of interpretation of
law with respect to
certain set of facts

Query involves the

calibration of the
whole evidence
considering mainly the
credibility of
witnesses, existence,
and relevancy of
specific surrounding
circumstances and
relation to each other
and the whole
probabilities of the
situation

If the RTC is in exercise of its appellate

jurisdiction, proper remedy is to appeal to the CA
via Rule 42 even if only questions of law are
raised
If the other party had already taken an appeal to
the CA to question the RTC decision, the property
remedy of petitioner is simply ordinary appeal to
the CA as well (First Phil. International Bank v.
CA).
Grave abuse of discretion is not an allowable
ground under Rule 45 (Martires v. CA).
APPEAL FROM CA IS ALWAYS BY RULE 45
Appeal under Rule 45 is the proper review of
decisions of the CA even in special civil actions.
Any alleged errors committed by it in the
exercise of jurisdiction would be errors of
judgment which are reviewable by timely appeal
and not by special civil action of certiorari.
Rule 45 is clear that decisions, final orders, or
resolutions of the CA in any case, regardless of
the nature of the action or proceedings involved,
may be appealed to the SC by filing a petition for
review, which would but be a continuation of the
appellate process over the original case.
CONCLUSIVENESS OF FINDINGS OF FACT
General Rule: The findings of fact of the CA are
final and conclusive and cannot be reviewed on
appeal to the SC
Exceptions: CAs findings of fact may be
reviewed by the SC on appeal by certiorari when:
1. Conclusion is a finding grounded entirely
on speculations, surmises or conjectures
[Joaquin v. Navarro (1953)].
2. Inference made is manifestly mistaken,
absurd or impossible [Luna v. Linatok
(1942)].

3. There is grave abuse of discretion in the

appreciation of facts [Buyco v. People
(1954)].
4. Judgment is based on a misapprehension
of facts [De la Cruz v. Sosing (1953).
5. The Court of Appeals findings of fact are
conflicting [Casica v. Villaseca (1957)].
6. The Court of Appeals, in making its
findings, went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
7. The
Court
of
Appeals
manifestly
overlooked certain relevant facts not
disputed by the parties and which, if
properly considered, would justify a
different conclusion [Abellana v. Dosdos
(1965)].
8. The Court of Appeals findings of fact are
contrary to those of the trial court, or are
mere conclusions without citation of
specific evidence, or where the facts set
forth by the petitioner are not disputed by
the respondent, or where the findings of
fact of the Court of Appeals are premised
on absence of evidence but are
contradicted by the evidence of record
[Manlapaz v. CA (1987)].
PERIOD OF APPEAL: (Rule 45, Sec. 2)
Time for Filing: 15 days from
1. Notice of judgment, final order, or
resolution appealed from, or
2. Notice of denial of motion for new trial or
reconsideration filed in due time after
notice of judgment
The Neypes doctrine is also applicable in
Rule 45.
Extension of Period: 30 days upon
1. Motion duly filed and served; and
2. Payment of docket and lawful fees and
deposit for costs
3. And for justifiable reasons
FORM OF PETITION
1. The petition must be VERIFIED
2. Following the Efficient Use of Paper Rule:
a. One original, properly marked, and 4
copies
b. If the case is referred to En Banc, 10
additional copies is filed
3. Payment of docket and other lawful fees
and deposit of P500 for costs is made
with the SC Clerk at the time of filing
4. Proof of service of the petition to the
lower court and adverse party are
attached
CONTENTS OF PETITION (Rule 45, Sec. 4)
1. State full names of the parties
a. Appealing party = as Petitioner

2.

3.
4.

5.

b. Adverse party = as Respondent

c. Do not implead lower courts or judges
Indicate material dates showing:
a. When notice of judgment or final
order or resolution was received
b. When a motion for new trial or
reconsideration, if any, was filed and
when a denial thereof was received
Concise statement of:
a. The matters involved
b. Reasons or arguments relied on
Accompanied by a clearly legible
duplicate original, or a certified true copy
of the judgment or final order or
resolution certified by the clerk of court
and court a quo
Certificate of non-forum shopping

GROUNDS FOR DENIAL OF PETITION (Rule

45, Sec. 5)
1. Failure of petitioner to comply with:
a. Payment of docket or other lawful fees
b. Deposit for costs
c. Proof of Service; and
d. Contents of and documents which
would accompany the petition
2. Appeal is without merit
3. Is prosecuted manifestly for delay
4. That the questions raised are so
unsubstantial as to require consideration
NOTE: SC may dismiss the petition motu proprio
REVIEW IS DISCRETIONARY (Rule 45, Sec. 6)
Appeal to the SC is NOT a matter of right. It will
be granted only when there are special and
important reasons therefor.
Some indications of the character of reasons
which will be considered:
1. When the court a quo has decided the
question of substance, not theretofore
determined by the SC, or has decided it in
a way probably not in accord with law or
with the applicable provisions of the SC;
or
2. Court a quo has so far departed from
accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for
an exercise of power of supervision
ELEVATION OF RECORDS: (Rule 45, Sec. 8)
If the petition is given due course, the Supreme
Court may require the elevation of the complete
record of the case or specified parts thereof
within fifteen (15) days from notice

GROUNDS FOR DISMISSAL OF

APPEAL
DISMISSAL BY THE CA (RULE 50)
An appeal may be dismissed by the CA, on its
own motion, or on that of the appellee on certain
grounds.
Grounds for Dismissal as provided in Sec. 1, Rule
50
1. Failure of record on appeal to show on its
face that appeal was taken within the
period fixed by Rules
2. Failure to file notice of appeal or record
on appeal within prescribed period
3. Failure of appellant to pay docket and
other lawful fees as provided in Sec. 4,
Rule 41
4. Unauthorized alterations, omissions, or
additions in approved record on appeal as
provided in Sec. 4, Rule 44
5. Failure of appellant to serve and file
required number of copies of his brief or
memorandum within time provided by
Rules
6. Absence of specific assignment of errors
in the appellants brief, or of page
references to record as required in Sec.
13, (a), (c), (d), (f), Rule 44
7. Failure of appellant to take necessary
steps for correction or completion of
record within time limited by the court in
its order
8. Failure of appellant to appear at
preliminary conference under Rule 48 or

comply with orders, circulars, directives

of the court without justifiable cause
9. Fact that the order or judgment appealed
from is not appealable
Other Grounds
1. By agreement of the parties (i.e. amicable
settlement)
2. Where appealed case has become moot
or academic
3. Where appeal is frivolous or dilatory
DISMISSAL BY THE SC (RULE 56)
The appeal may be dismissed motu proprio or on
motion of the respondent on the following
grounds:
1. Failure to appeal within reglementary
period
2. Lack of merit of petition
3. Failure to pay docket and lawful fees and
deposit
4. Failure to comply with requirements on
proof of service, contents, and documents
accompanying petition
5. Failure to comply with circular, directive,
or order of SC without justifiable cause
6. Error in choice of mode of appeal
7. The case is not appealable to the SC

COMPARATIVE TABLE ON THE MODES OF APPEAL

RULE 40

RULE 41

ORDINARY APPEAL
Matter of Right; Filed with the court of origin
All records are elevated from court of origin
Appeal from a decision of
Appeal from a judgment or
the RTC in the exercise of
final order of a MTC
its original jurisdiction

Rule 41 provisions shall apply to Rule 40 if not consistent

with Rule 40 provisions

RULE 40
Filed with the MTC
Appeal to the RTC
Questions of fact or mixed
questions of fact and law
RULE 40

RULE 41
Filed with the RTC
Appeal to the CA
Questions of fact or mixed
questions of fact and law
RULE 41

BY NOTICE OF APPEAL
Within 15 days after notice of judgment or final order
BY RECORD ON APPEAL
Within 30 days from notice of judgment or final order by
filing a notice of appeal and a record on appeal

WHEN PROPER
RULE 42

RULE 43
RULE 45
PETITIONS FOR REVIEW
Discretionary; No records are elevated unless the court decrees it
Filed with the appellate court
Appeals to the SC from a
judgment or final order or
resolution of the CA,
Sandiganbayan, CTA en
banc, RTC (original
Appeals from awards,
jurisdiction) or such other
Appeal from a decision of
judgments, final orders or
courts as may be
the RTC rendered in the
resolution of or authorized
authorized by law
exercise of its appellate
by any quasi-judicial
Decisions, final orders, or
jurisdiction
agency in the exercise of its
resolutions of the CA in any
quasi-judicial functions
case, regardless of the
nature of the action or
proceedings involved, may
be appealed to the SC by
filing a petition for review,
WHERE TO FILE
RULE 42
RULE 43
RULE 45
Filed with the CA
Filed with the CA
Filed with the SC
Appeal to the CA
Appeal to the CA
Appeal to the SC
Questions of fact, Questions Questions of fact, Questions
of law, or Mixed questions
of law, or Mixed questions
Only Questions of Law
of both
of fact and law
TIME FOR FILING
RULE 42
RULE 43
RULE 45
Within 15 days from:
1. Notice of award,
Within 15 days from:
judgment, final
1. Notice of judgment,
Within 15 days from notice
order, or resolution
final order, or
of decision, or
OR
resolution appealed
Within 15 days from notice
2. Date of publication,
from, or
of denial of petitioners
if publication is
2. Notice of denial of
motion for new trial or
required by law for
motion for new trial
reconsideration
its effectivity, OR
or reconsideration
3. Denial of
filed in due time
petitioners MNT or
after notice of
MR (only one MR
judgment
allowed)

RELIEF FROM JUDGMENTS, ORDERS, AND OTHER

PROCEEDINGS (RULE 38)
CONCEPT
Remedies AFTER finality of judgment
1. Petition for relief (Rule 38)
2. Action to Annul Judgment (Rule 47)
3. Collateral Attack of a Judgment that is Void on its Face
A petition for relief from judgment together with a motion for new trial
and a motion for reconsideration are remedies available only to parties
in the proceedings where the assailed judgment is rendered. In fact, it
has been held that a person who was never a party to the case, or even
summoned to appear therein, cannot avail of a petition for relief from
judgment (Alaban v. Cam)

verified

verified

Rule 37 and Rule 38 are EXCLUSIVE remedies.

A party who has filed a timely motion for new trial and/or
reconsideration cannot file a petition for relief after his motion has been
denied.
A party who has filed a timely motion for new trial or motion for
reconsideration can no longer file a petition for relief from judgment
after his motion has been denied. These remedies are mutually
exclusive. It is only in appropriate cases where a party aggrieved by the
judgment has not been able to file a motion for new trial or motion for
reconsideration that a petition for relief can be filed. (Francisco v. Puno,
1981)

NOTE: This is not applicable to the SC since it is not a trier of facts.

WHEN PROPER

RULE 37 v. RULE 38

Rule 38 can be availed of once the judgment has become final and
executory.

RULE 37
Available BEFORE
judgment becomes
final and executory
Applies to judgments
or final orders only
Grounds: (1) FAME
and (2) Newly
discovered evidence
Filed within the time
to appeal
If denied, order of
denial is not
appealable; hence,
remedy is appeal from
judgment
Legal remedy
Motion need not be

RULE 38
Available AFTER
judgment has become
final and executory
Applies to judgments,
final orders and other
proceedings
Ground: FAME
Filed within 60 days
from knowledge of
judgment and within 6
months from entry of
judgment
If denied, order
denying a petition for
relief is not
appealable; remedy is
appropriate civil action
under Rule 65
Equitable remedy
Petition must be

The relief provided for by Rule 38 is of equitable character and is only

allowed in exceptional cases, that is where there is no other available or
adequate remedy. A petition for relief is not regarded with favor and
judgment will not be disturbed where the party complaining has or by
his exercising proper diligence would have had an adequate remedy at
law, as where petitioner could have proceeded by appeal to vacate or
modify the default judgment. [Manila Electric v. CA (1990)]
Under Sec. 1, it is also available when any other proceeding is
thereafter taken against the petitioner in any court through FAME
Thus, it was held that a petition for relief is also applicable to a
proceeding taken after entry of judgment or final order such as an order
of execution (Cayetano v. Ceguerra) or an order dismissing an appeal
(Medran v. CA)
WHERE FILED
Rule 38 is not an independent action but a continuation of the old case.
Hence, it is filed with the same court and same branch which decided
the case.

GROUNDS: (Rule 38, Sec. 1 and 2)

1. When judgment or final order is entered or any other proceeding
is thereafter taken against petitioner through FAME
2. When petitioner has been prevented from taking an appeal by
FAME
PERIOD FOR FILING: (Rule 38, Sec. 3)
1. Within 60 days after petitioner learns of the judgment, final
order, or other proceeding to be set aside; AND
2. Not more than 6 months after such judgment or final order was
entered, or such proceeding was taken
The two periods for the filing of a petition for relief are not extendible
and never interrupted. Both periods must be complied with. (Phil.
Rabbit Bus Lines Inc. v. Ariaga)
Reckoning points:
1. The 60-day period is reckoned from the time the party acquired
knowledge of the order, judgment or proceeding. Not from the
date he actually read the same (Perez v. Araneta)
2. 6-months period is computed from the date of entry of the order
or judgment
FORM AND CONTENTS OF THE PETITION
1. The petition for relief must be verified
2. The petition must be accompanied by an affidavit showing the
FAME relied upon; and
3. The affidavit of merit accompanying the petition must also show
the facts constituting the petitioners good and substantial cause
of action or defense as the case may be

4. When judgment was entered by mistake or was obtained by

fraud; or
5. Other similar cases.
ORDER TO FILE ANSWER (Rule 38, Sec. 4)
An order to answer shall issue only if petition is sufficient in form and
substance.
If petition is sufficient in form and in substance, the court shall issue an
order requiring the adverse party to answer within 15 days from receipt
thereof.
PROCEEDINGS AFTER ANSWER IS FILED (Rule 38, Sec. 6)
After filing of answer or expiration of the period therefor, court shall
hear the petition.
If the court finds that the allegations are not true Petition is dismissed.
If the court finds that allegations are true:
1. It shall set aside the judgment, final order, or other proceeding
complained of upon such terms as may be just
2. Thereafter, case shall stand as if such had never been rendered,
issued, or taken
3. The court shall then proceed to hear and determine the case as
if timely motion for new trial or reconsideration has been
granted by it
REMEDY FOR DENIAL OF PETITION FOR RELIEF.

The absence of an affidavit of merits is a fatal defect and warrant denial

of the petition (Fernandez v. Tan Tiong Tick)

Appeal from an order denying a petition for relief is no longer available

under the present rules.

However, it is not a fatal defect so long as the facts required to be set

out also appear in the verified petition (Fabar Inc. v. Rodelas)

The remedy against a denial of a petition for relief is certiorari under

Rule 65, when proper.

When
1.
2.
3.

Affidavit of Merit is not necessary:

When there is lack of jurisdiction over the defendant;
When there is lack of jurisdiction over the subject matter;
When judgment was taken by default;

ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND

RESOLUTIONS (RULE 47)

has the discretion on

whether or not to
entertain the petition

required to consider it
as an ordinary civil
action

Annulment of Judgment is a remedy in law independent of the case

where the judgment sought to be annulled was rendered and may be
availed of though the judgment has been executed.

WHO CAN FILE

NATURE

Petitioner need not be a party to the judgment sought to annulled.

The purpose of such action is to have the final and executory judgment
set aside so that there will be a renewal of litigation.

A person who is not a party to the judgment may sue for its annulment
provided that he can prove the same was obtained through fraud or
collusion and that he would be adversely affected thereby. (Alaban v.
CA)

Resorted to in cases where ordinary remedies of new trial, appeal,

petition for relief, or other appropriate remedies are no longer available
through no fault of petitioner
It is not a mode of appeal but an Independent Civil Action.
WHEN PROPER (Rule 47, Sec. 1)
It is available when the petitioner failed to move for new trial in, or
appeal from, or file a petition for relief against, or take other appropriate
remedies assailing the questioned judgment or final order or resolution
through no fault attributable to him
The remedy may no longer be invoked where the party has availed
himself of the remedy of new trial, appeal, petition for relief, or other
appropriate remedy and lost or where he has failed to avail himself of
those remedies through his fault or negligence
WHERE FILED
JUDGMENTS, FINAL
ORDERS, OR
RESOLUTIONS OF THE
RTC
Filed with the CA
CA has exclusive and
original jurisdiction
over said action under
Sec. 9 (2) of BP 129
The CA may dismiss
the case outright; it

JUDGMENTS, FINAL
ORDERS, OR
RESOLUTIONS OF THE
MTC
Filed with the RTC
RTC as a court of
general jurisdiction
under Sec. 19(6) BP
129
The RTC has no such
discretion, it is

GROUNDS (Rule 47, Sec. 2)

Annulment may be based only on TWO grounds:
1. Extrinsic Fraud
2. Lack of Jurisdiction
Although Sec. 2 provides that annulment of judgment or order may be
based only on extrinsic fraud and lack of jurisdiction, jurisprudence
recognizes DENIAL OF DUE PROCESS as an additional ground (Sps.
Benatiro, et al. v. Heirs of Cuyos et al.) This was recognized in the 2013
case of Leticia Diona, represented by her Attorney-in-fact, Marcelina
Diona v. Romeo Balangue, Sonny Balangue, Reynaldo Balangue, and
Esteban Balangue, Jr.
Extrinsic or Collateral Fraud - Refers to any fraudulent act of the
prevailing party in the litigation which is committed outside of the trial
of the case, whereby the defeated party has been prevented from
exhibiting fully and fairly presenting his side of the case
Lack of Jurisdiction - Lack of jurisdiction refers to either lack of
jurisdiction over the person of the defending party or over the subject
matter of the claim, and in either case, the judgment or final order and
resolution are void.
NOTE: In a petition for annulment of judgment based on lack of
jurisdiction, petitioner must show an ABSOLUTE LACK of
jurisdiction not merely abuse of jurisdictional discretion.
As to Evidence
1. When the ground invoked is extrinsic fraud, extraneous evidence
is admitted

2. However, when the ground is lack of jurisdiction, only evidence

found in the records of the case can justify nullity of judgment
PERIOD FOR FILING (Rule 47, Sec. 3)

PERIOD
OF
FILING

EXTRINSIC
FRAUD
4 years from
discovery of
fraud

LACK OF
JURISDICTION
Before it is barred
by laches or
estoppel

There must be a manifest showing with petition that it was filed within
the 4-yr period.
The rule does not fix the period to annul judgment based on lack of
jurisdiction but recognizes the principle of estoppel as first laid down by
Tijam v. Sibonghanoy.
FORM AND CONTENTS OF PETITION (Rule 47, Sec. 3)
1. Verified petition, alleging therein:
a. With particularity, the facts and the law relied upon
b. Petitioners good and substantial cause of action or defense
2. Filed following the Efficient Use of Paper Rule
3. Certified true copy of the judgment or final order or resolution
shall be attached to the original copy of the petition
4. Affidavits of witnesses or documents supporting the cause of
action or defense; and
5. Certificate of non-forum shopping
PROCEEDINGS
There are two stages in the disposition of the petition:
1. A preliminary evaluation of the petition for prima facie merit
(Sec. 5)
The rule allows the CA to dismiss the petition outright as in
special civil actions
If prima facie merit is found, petition is given due course and
summons is served on respondent
2. If prima facie merit is found, petition is given due course and
issuance of summons as in ordinary civil cases is made (Sec. 6)
Procedure in ordinary civil cases is observed

NOTE: Prima facie determination is not available in annulment of

judgments or final orders of MTCs before the RTC. (Rule 47, Sec. 10)
EFFECT OF JUDGMENT OF ANNULMENT (Rule 47, Sec. 7)
Effect of annulment based on lack of jurisdiction
1. The same shall be set aside and considered null and void
2. Aggrieved party may refile the action in the proper court
a. This may involve a different court of competent jurisdiction
b. But where the reason for such annulment was because of
lack of jurisdiction over defendant, the action may be refilled
in the same original court provided it has proper jurisdiction
and venue
Effect of annulment based on extrinsic fraud
1. The same shall be set aside and considered null and void
2. On motion of the prevailing party on justifiable grounds, he may
be allowed to no longer refile the action
a. The trial court which rendered the questioned judgment shall
be ordered to try the case anew
The prescriptive period for the refiling of the aforesaid original action
shall be deemed suspended from the filing of said original action until
the finality of the judgment of annulment. However, the prescriptive
period shall not be suspended where the extrinsic fraud is attributable
to the plaintiff in the original action. (Rule 47, Sec. 8)

COLLATERAL ATTACK OF JUDGMENTS

ON ATTACKING THE VALIDITY OF A JUDGMENT
Direct Attack v. Collateral Attack:
1. Direct attack upon a judgment is an action or proceeding to
annul it, this being the main object of the proceeding
2. Collateral attack upon a judgment is one made to obtain relief
other than the setting aside of the judgment, the attack on the
judgment itself being incidental
When Collateral Attack Proper: This is proper only when the judgment
on its face is null and void as where it is patent that the court which
rendered said judgment has no jurisdiction
The validity of a judgment or order of the court, which has become final
and executory, may be attacked in three ways:
1. Only by a direct action or proceeding to annul the same
This proceeding is a direct attack against the order of
judgment because it is not incidental to, but is the main
object of, the proceeding
A direct action to annul and enjoin enforcement of the
judgment where the alleged defect is not apparent on its
face or from the recitals contained in the judgment
See Rule 47
2. Or by direct action, as certiorari, or by collateral attack in case of
apparent nullity
The collateral attack must be against a challenged judgment
which is void upon its face or that the nullity of the judgment
is apparent from its own recitals
3. Or by a Petition for Relief under Rule 38
This third manner of attacking must be taken in the same
action or proceeding in which the judgment or order was
entered
VOID JUDGMENT
A void judgment is no judgment at all. It cannot be the source of any
right nor the creator of any obligation. All acts performed pursuant to it
and all claims emanating from it have no legal effect. Hence, it can

never become final and any writ of execution based on it is void.

[Polystyrene Manufacturing v. Privatization Management (2007)]
A void judgment may be likened to a lawless thing which can be treated
as an outlaw and slain at sight, or ignored wherever and whenever it
rears its head. [Banco Espanol-Filipino v. Palanca (1918)]
A judgment may be void for lack of due process of law. [Spouses
Benatiro v. Heirs of Cuyos (2008))
ATTACKING A VOID JUDGMENT
It may be assailed anytime, collaterally or in a direct action or by
resisting such judgment or final order in any action or proceeding
whenever it is invoked, unless barred by laches. [Spouses Benatiro v.
Heirs of Cuyos (2008))
REMEDIES
If the reglementary period for appeal has not yet lapsed, some
remedies are New Trial and Reconsideration. Appeal, Petition for Relief,
and Other Appropriate Remedies such as Certiorari may also be used.
If the appropriate remedies are no longer available without the fault of
the petitioner, the equitable and extraordinary remedy of Petition for
Annulment of Judgment may be resorted to.
When all else fails, there is jurisprudence to the effect that a patently
void judgment may be dealt with by a Main Action for Injunction. [See
Barrameda v. Moir (1913)]
JURISPRUDENTIAL BASIS
Remedial Law Jurisprudence such as Spouses Benatiro v. Heirs of Cuyos,
(2008) and Agustin v. Bacalan, (1985) on the matter of void judgment
particularly refer to Rule 47 as a remedy against a void judgment. This
remedy, however, should be availed of only when the appropriate
remedies are no longer available without fault on the part of the
petitioner.
Although Section 2 of Rule 47 of the Rules of Court provides that
annulment of a final judgment or order of an RTC may be based "only on

the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence

recognizes denial of due process as additional ground therefore
(Spouses Benatiro Case).
A void judgment is like an outlaw which may be slain at sight wherever
or whenever it exhibits its head. The proper remedy in such case, after
the time for appeal or review has passed, is for the aggrieved party to
bring an action to enjoin the judgment. (Montinola v. Judge Gonzales,
1989)

EXECUTION,
SATISFACTION, AND
EFFECT OF JUDGMENTS
DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR
PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION
The term finality of judgment for purposes of appeal refers to
interlocutory orders which:
1. Are not decisions within the constitutional definition [Armargo v.
CA (1973)]
2. are those that determine incidental matters that do not touch on
the merits of the case or put an end to proceedings. The
following are examples of an interlocutory order:
a. An order denying a motion to dismiss;
b. An order granting an extension of time to file a pleading, or
one authorizing an amendment thereof;
c. Order granting or denying applications for postponement or
inspection of documents. [Riano]
The word interlocutory refers to something intervening between the
commencement and the end of a suit which decides some point or
matter but is not a final decision of the whole controversy. [Ramiscal, Jr.
v. Sandiganbayan (2004)]
A final judgment or order is one that finally disposes of a case, leaving
nothing more to be done by the Court in respect thereto, e.g., an
adjudication on the merits which, on the basis of the evidence

Assuming the judgment to have been void as alleged by the proponent

of this motion, the proper remedy was by an original proceeding and
not by motion in the cause" [Banco Espanol v. Palanca (1918)]. A final
judgment may be annulled on the ground of lack of jurisdiction, fraud,
or that it is contrary to law. [Panlilio v. Garcia (1982)]

presented at the trial, declares categorically what the rights and

obligations of the parties are and which party is in the right; or a
judgment or order that dismisses an action on the ground, for instance,
of res judicata or prescription.
Once rendered, the task of the Court is ended, as far as deciding the
controversy or determining the rights and liabilities of the litigants is
concerned. Nothing more remains to be done by the Court except to
await the parties' next move (which among others, may consist of the
filing of a motion for new trial or reconsideration, or the taking of an
appeal) and ultimately, of course, to cause the execution of the
judgment once it becomes 'final or, to use the established and more
distinctive term, 'final and executory.
Execution is a matter of right upon the expiration of the period to
appeal and no appeal was perfected from a judgment or order that
disposes of the action or proceeding. [Rule 39, Sec. 1]
It can be noted that the Supreme Court made a hairline distinction
between finality of order for appeals and for execution. It is submitted
that upon courts issuance of a judgment touching upon the merits of a
case, it is final for the purposes of an appeal, but NOT for execution.
NOTE: Finality for the purposes of execution refers to the expiration of
the period to appeal and no appeal was perfected.

WHEN EXECUTION SHALL ISSUE

Execution is a process provided by law for the enforcement of a final
judgment. Enforcement is part of courts jurisdiction. It is not an action
but is included in the phrase Process in an action part of the
proceedings considered as still pending.
Cases where Execution may Issue even if judgment NOT Final:

1.
2.
3.
4.
5.

Support pendente lite

Judgments of inferior courts in ejectment cases
Execution pending appeal
Injunction, accounting, receivership, support (Rule 39, Sec. 4)
Decision of the RTC in appealed civil cases under Summary
Procedure, including forcible entry and unlawful detainer
6. Decision of the LA reinstating dismissed employee, insofar as
reinstatement aspect is concerned
Writ of Execution: A judicial writ issued to an officer authorizing him to
execute the judgment of the court.
Dispositive Portion as Subject of Execution
1. General Rule: The dispositive portion of the decision is that part
that becomes the subject of execution
2. Exceptions:
a. Where there is ambiguity, the body of the opinion may be
referred to for purposes of construing the judgment because
the dispositive part of a decision must find support from
decisions ratio decidendi
b. Where extensive and explicit discussion and settlement of
the issue is found in the body of the decision
Two Whom Issued:
1. General Rule: Only real parties in interest in an action are bound
by judgment rendered therein and by the writs of execution
2. Exceptions: There are certain cases where the writ may be
issued against non-parties
a. One who is privy to judgment debtor can be reached by an
order of execution and writ of demolition (Vda. De Medina v.
Cruz)
b. Issued against one who not being originally a party to the
case submits his interest to the court for consideration in the
same case and invites adjudication regarding said interest
(Jose v. Blue)
c. Where non-parties voluntarily signed the compromise
agreement or voluntarily appeared before court (Rodriguez v.
Alikpala)
d. Where the remedy of a person not a party to the case which
he did not avail of, was to intervene in the case in question
involving rights over the same parcel of land and said person
in another case was adjudged buyer in bad faith thereof
(Lising v. Plan)
e. In an ejectment case, where 3rd party derived his right of
possession from defendant particularly when such right was

acquired only after filing of ejectment suit (Cordova v.

Tornilla)
EXECUTION AS A MATTER OF RIGHT (Rule 39, Sec. 1)
The finality of judgment has the effect of entitling prevailing party to
execution as a matter of right. It is the ministerial duty of the court to
do execution. (Herrera)
Execution as a matter of right, TWO INSTANCES:
1. No appeal has been perfected or period of appeal has expired
2. Appeal has been perfected and finally resolved
How Done:
CASE
If no appeal has
been perfected,
or the period of
appeal has
expired

If appeal has
been perfected
and finally
resolved

HOW EXECUTION IS CARRIED

Prevailing party applies by
motion for a writ of execution
which is granted by the judge
since it is a matter of right
Prevailing party:
1. Files a motion in the
court of origin,
2. Submitting
certified
true copies of the
judgment
or
final
orders sought to be
enforced
3. Submitting the entry
thereof,
4. With notice to adverse
party
Appellate court may also
direct the court of origin to
issue the writ of execution:
1. Upon motion in the
same case AND
2. When the interest of
justice so requires

General Rule: It is a matter of right on the part of the winning party

when the judgment or order becomes executory. The court cannot
refuse execution.

Exceptions: The issuance of a writ of execution which issues as a matter

of right can be countered in any of the following cases
1. ):
2. When a PETITION FOR RELIEF or an action to enjoin judgment is
filed and a preliminary injunction is prayed for and granted (Rule
38, Sec. 5);
3. When the judgment turns out to be INCOMPLETE OR IS
CONDITIONAL since as a matter of law, such judgment CANNOT
BE FINAL;
4. When the judgment has been NOVATED BY THE PARTIES
5. When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to
render such execution unjust or impossible
6. On EQUITABLE GROUNDS as when there has been a change in
the situation of the parties which makes execution INEQUITABLE.
7. When the judgment becomes DORMANT, the 5-year period under
Rule 39.6 having expired without the judgment having been
revived
NOTE: Execution may only issue upon motion with notice of hearing.
Supervening Event Doctrine A supervening event can be invoked for
the modification or alteration of a final judgment. This refers to:
1. Facts which transpire after judgment has become final and
executory. Or
2. New circumstances which developed after the judgment has
acquired finality
3. Matters which the parties were not aware of prior to or during
the trial as they were not yet in existence at that time
4. The supervening facts or circumstances must either bear a direct
effect upon the matters already litigated and settled or create a
substantial change in the rights or relations of the parties therein
which render execution of the final judgment unjust or
impossible (Lim v. Jabalde)
DISCRETIONARY EXECUTION (Rule 39, Sec. 2)
DISCRETIONARY
EXECUTION
May issue before the
lapse of period to
appeal, and even
during appeal
Discretionary upon

EXECUTION AS A
MATTER OF RIGHT
Period to appeal has
already lapsed and no
appeal is perfected
Ministerial duty of the

the court
Upon showing of good
reason for execution

court
Provided there are no
supervening events

Under the Rule on Discretionary Execution (also called execution

pending appeal), the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order execution pending
appeal.
It is the execution of a judgment or final order before it attains finality.
The court which rendered the decision can grant an execution pending
appeal if it still retains jurisdiction over the case and is in possession of
the records at the time of the filing of the motion; otherwise, the motion
shall be acted upon by the appellate court.
To be valid, there should be a good reason to justify the execution of the
judgment pending appeal, the same to be stated in the order granting
it.
Discretionary Execution is NOT applicable in the case of the Court of
Appeals:
1. The Rule on Discretionary Execution contemplates a situation
where a judgment or final order rendered in the exercise of its
original jurisdiction and the prevailing party in said decision
seeks immediate execution during the pendency of an appeal.
2. The CA has no authority to issue IMMEDIATE EXECUTION
PENDING APPEAL OF ITS OWN DECISIONS THEREIN.
3. Discretionary execution is allowed pending appeal of judgment
or final order of the trial court upon good reasons to be stated in
a special order.
A judgment of the CA cannot be executed pending appeal. (Heirs of
Justice JBL Reyes v. CA, 2000)
When Proper and How Done
1. Execution pending appeal The duration of the courts
discretionary power to order execution pending appeal depends
on:
a. Where the record on appeal is required,
(1) The court loses jurisdiction only over the subject matter
thereof upon approval of the record on appeal and
expiration of the time to appeal of the other party

b. Where no record on appeal is required, court may issue writ

of execution before perfection of appeal
c. If the court lost jurisdiction, the writ may be issued by the
appellate court, as such:
CASE
If the trial court
still has
jurisdiction over
the case and is
still in possession
of either the
original record or
record on appeal

If the trial court

has lost
jurisdiction

HOW EXECUTION IS
CARRIED
Prevailing party:
1. Files a motion with
notice to the adverse
party
2. Motion is filed with
the TRIAL court
3. Good reasons must
be shown
The prevailing party:
1. Files a motion with
notice to adverse
party
2. Motion is filed with
the
APPELLATE
COURT
3. Good reasons must
be shown

2. Execution of several, separate, or partial judgments may also be

executed under the same terms and conditions as execution
pending appeal.
Requisites for Discretionary Execution:
1. There must be a motion filed by prevailing party with notice to
adverse party
2. There must be a hearing of the motion for discretionary
execution
3. There must be good reasons to justify the discretionary
execution
4. These good reasons must be stated in a special order after due
hearing
Examples of Good Reasons:
1. Where the goods subject of the judgment stand to perish or
deteriorate during the pendency of the appeal (Yasuda v. CA)

2. The award of actual damages is for an amount fixed and certain

(Radio Communications Inc. v. Lantin). But not an award for
moral and exemplary damages
3. Insolvency of a defeated party (Hacienda Navarro v. Labrador)
4. The prevailing party is of advanced age and in a precarious state
of health and the obligation in the judgment is nontransmissible, being for support (De Leon v. Soriano)
5. Where defendants were exhausting their income and have no
other property aside from proceeds of the property subject in
litigation (Lao v. Mencias)
The Supersedeas Bond
Discretionary execution may be stayed upon approval by the proper
court of a sufficient supersedeas bond filed by the party against whom
it is directed.
1. It is conditioned upon the performance of the judgment or order
allowed to be executed in case it shall be finally sustained in
whole or in part
2. Bond may be proceeded against on motion with notice to surety
General Rule: The filing of a supersedeas bond is sufficient to stay the
enforcement of a discretionary execution.
Exception: However, THE FILING OF SUPERSEDEAS BOND does not
entitle the judgment debtor to the suspension of execution as a MATTER
OF RIGHT. Where the needs of the prevailing party are URGENT, the
Court can order immediate execution despite such SUPERSEDEAS
BOND. [Regalado]
If judgment is reversed totally or partially, or annulled The trial court
may, on motion, issue such orders of restitution or reparation of
damages as equity and justice may warrant under the circumstances
Remedy against Execution pending Appeal The remedy is certiorari by
Rule 65. The appeal could not be an adequate remedy for such
premature execution. (Jaca v. Davao Lumber Co.)

HOW JUDGMENT IS EXECUTED

EXECUTION BY MOTION OR BY INDEPENDENT ACTION (Rule 39,
Sec. 6)
Modes of Enforcement of Execution:
MODE
By Motion
By
Independent
Action

WHEN ENFORCED
Within 5 years from date of entry
of judgment
After the lapse of 5 years from
date of entry and before it is
barred by statute of limitations
which is 10 years from date of
entry (Art. 1144(3))

If it be against real or
personal property in
the hands of personal
representatives, heirs,
devisees, legatees,
tenants, or trustees of
judgment obligor

To sell such property

described
If it be for sale of real
or personal property

ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION (Rule 39,

Sec. 8)
Contents of the Writ of Execution
1. Issued in the name of the Republic from the court which granted
the motion
2. States the name of the court, case number and title, dispositive
part of judgment or order
3. Requiring the sheriff or other proper officer to whom it is directed
to enforce the writ according to its terms
4. In all cases, it shall also specifically state the amount of interest,
cost, damages, rents, or profits due as well as the principal
obligation
Manner of Execution
If it be against property
of judgment obligor

To satisfy judgment
plus interest out of his
real or personal
property

Then apply proceeds in

conformity with
judgment
To deliver possession
of the same, describing
it, to the party entitled
thereto

NOTE: The revived judgment may be enforced by motion within 5 years

from date of its entry and thereafter by action before it is barred by
statute of limitations.
Once the judgment is revived, the 10-year prescriptive period
commences to run from the date of finality of the REVIVED JUDGMENT
and not the original judgment.

To satisfy judgment
with interest out of
such

If it be for delivery or
possession of real or
personal property

Then to satisfy any

costs, damages, rents,
or profits covered by
the judgment
Out of the personal
property of obligor
In case of insufficiency,
then out of real
property

Remedies Against a Writ of Execution

1. If there is a defect in the writ, file a motion to quash the writ of
execution
a. Quashal is proper when:
(1) A change in the situation of the parties renders execution
inequitable
(2) Issued against wrong party
(3) Issued without authority
(4) Improvidently issued
(5) Defective in substance
(6) Judgment already satisfied; and
(7) The controversy was never submitted to the court
(8) Where the writ varies the terms of the judgment

(9) It is sought to be enforced against property exempt from

execution
(10)
Where there is ambiguity in the terms of the
judgment
b. If motion to quash is denied, appeal from said denial
2. An order granting the issuance of the writ is not appealable,
except where:
a. The order varies the terms of the judgment, or
b. Where, being vague, the court renders what is believed to be
a wrong interpretation

EXECUTION FOR JUDGMENTS OF MONEY

If the award is for payment of money, execution is enforced by: (Rule
39, Sec. 9)
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment of debts and credits
IMMEDIATE PAYMENT ON DEMAND
Procedure:
1. The officer shall demand from judgment obligor the immediate
payment of the full amount stated in the writ and all lawful fees
2. The judgment obligor shall pay the amount of the judgment debt
a. Payable in Cash, Certified bank check payable to judgment
obligee, or any other form of payment acceptable to
judgment obligee
(1) In no case shall sheriff demand that any payment by
check be made payable to him
(2) Amount of judgment under proper receipt directly to the
judgment obligee or his authorized representative if
present at time of payment
b. If judgment oblige or his representative is present to receive
payment:
(1) Judgment obligor shall delver payment to executing
sheriff
(2) Sheriff shall turn over the amounts within the same day
to the clerk which issued the writ or deposit the amounts
to a fiduciary account in the nearest government
depository bank of the RTC of the locality
3. The judgment obligor shall pay the lawful fees handed over to
the sheriff. Sheriff shall turn over the said amount within the
same day to the clerk that issued the writ
4. If there is any excess it shall be delivered to the judgment
obligor. Lawful fees shall be retained by the clerk
SATISFACTION BY LEVY

Levy is the act whereby a sheriff sets apart or appropriates for the
purpose of satisfying the command of the writ, a part or the whole of
the judgment debtors property.

Garnishment is considered as a species of attachment for reaching

credits belonging to the judgment debtor and owing to him from a
stranger to the litigation

Levy means the act or acts by which an officer sets apart or

appropriates a part or the whole of the property of the judgment debtor
for purposes of the prospective execution sale [Llenares v. Vandevella
(1966)].

The Officer may levy on:

1. Debts due the judgment obligor and other credits,
2. Including
bank
deposits,
financial
interests,
royalties,
commissions,
3. And other personal property not capable of manual delivery in
possession and control of third parties

If susceptible of appropriation, the officer removes and takes the

property for safekeeping; otherwise the same is placed under sheriffs
guards. Without valid levy having been made, any sale of the property
thereafter is void.
Conditions to be met before resort to satisfaction by levy:
1. If the judgment obligor cannot pay all or part of the obligation
then the officer shall levy upon the properties of the judgment
obligor
2. Characteristics of properties to be levied
a. Properties of every kind and nature whatsoever
b. Which may be disposed of for value
c. Not otherwise exempt from execution
Procedure:
1. The judgment obligor have the option to immediately choose
which property or part thereof may be levied upon, sufficient to
satisfy judgment

The process of levying shall be called garnishment if the property

involved is money, stocks, or other incorporeal property in the HANDS
OF THIRD PERSONS. Garnishment merely sets apart such funds but
does not constitute the creditor as owner of the garnished property.
Garnishment is not a violation of RA 1405 on the secrecy of bank
deposits. [Chinabank v. Ortega (1973)]
Notes: Upon service of the writ of garnishment, the garnishee becomes
a virtual party or forced intervenor to the case and the trial court
thereby acquires jurisdiction to bind the garnishee to comply with its
orders and processes. [BPI v. Lee (2012)]
UPs funds, being government funds, are not subject to garnishment.
Moreover, The execution of the monetary judgment against the UP was
within the primary jurisdiction of the COA. [UP v. Dizon (2012)]

2. If judgment obligor does not exercise the option:

a. The officer shall first levy on personal properties, if any
b. If personal properties are insufficient, then on the real
properties

Procedure:
1. Levy shall be made by serving notice upon:
a. The person owing such debts, or
b. Having in his possession or control such credits to which
judgment obligor is entitled

3. Sheriff shall sell only sufficient portion of personal or real

property of the judgment obligor levied upon

2. Garnishment to cover only such amount as will satisfy judgment

and lawful fees

4. If there is more property than is sufficient to satisfy judgment

and lawful fees, then sell only so much as is sufficient

3. If there are 2 or more garnishees, holding deposits or credits

sufficient to satisfy judgment, judgment obligor shall have the
right to indicate the garnishee/s who shall be required to deliver.
Otherwise, the choice shall be made by judgment obligee

GARNISHMENT OF DEBTS AND CREDITS

4. The garnishee shall make a written report to the court within 5

days from service of notice of garnishment. The report shall
state whether:

a. Judgment obligor has sufficient funds or credits to satisfy

judgment, OR
b. Judgment obligor has insufficient funds or credits to satisfy
judgment
5. Garnish the amount which may be in cash, or
check issued in the name of judgment obligee

certified bank

6. Garnished amount shall be delivered directly to judgment

obligee within 10 working days from service of notice on said
garnishee requiring such delivery
7. Follow procedure under Immediate Payment on Demand with
respect to delivery
8. Lawful fees shall be paid directly to court

EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS

When proper: (Rule 39, Sec. 10)
1. Resorted to if the judgment directs a party to:
a. Execute a conveyance of land or personal property, or
b. Deliver deeds or other documents, or
c. Perform any other specific act in connection therewith.
2. AND the party fails to comply within the time specified
Procedure:
1. Court may direct the act to be done
a. At the cost of disobedient party
b. Or by some other person appointed by the court
2. In case of directing conveyance of real or personal property
located in the Philippines:
a. Court may divest the title of any party and vest it in others
by court order
b. This shall have the force and effect of conveyance executed
in due form
Sale of real or personal property
If judgment is rendered ordering the sale of real or personal property,
an order for execution shall be issued describing such property as may
be ordered sold, selling it, and applying the proceeds in conformity with
the judgments instructions.
Delivery or restitution of real property
The officer shall demand of the person against whom the judgment for
the delivery or restitution of real property is rendered and all persons
claiming rights under him to peaceably vacate the property within three
(3) working days, and restore possession thereof to the judgment
obligee.
Otherwise, the officer shall oust all such persons therefrom with the
assistance, if necessary, of appropriate peace officers, and employing
such means as may be reasonably necessary to retake possession, and
place the judgment obligee in possession of such property.
Any costs, damages, rents or profits awarded by the judgment shall be
satisfied in the same manner as a judgment for money.

Removal of improvements on property subject of execution

When the property subject of the execution contains improvements
constructed or planted by the judgment obligor or his agent, the officer
shall not destroy, demolish or remove said improvements except upon
special order of the court, issued upon motion of the judgment obligee
after the hearing and after the former has failed to remove the same
within a reasonable time fixed by the court.
Delivery of personal property
In judgment for the delivery of personal property, the officer shall take
possession of the same and forthwith deliver it to the party entitled
thereto and satisfy any judgment for money as therein provided.

EXECUTION OF SPECIAL JUDGMENTS

When Proper: (Rule 39, Sec. 11)
When a judgment requires performance of any other act than those
mentioned in Sec. 9 and 10.
Special Judgment is one which can only be complied with by the
judgment obligor because of his personal qualifications or
circumstances. It requires performance of an act other than payment of
money or sale or delivery of property. A special judgment may be
enforced by contempt if defendant refuses to comply
Procedure:
1. A writ of execution shall be issued. Attached to this is a certified
copy of the judgment
2. Service by the officer upon:
a. The party against whom the same is rendered, or
b. Any other person required thereby, or by law, to obey the
same
3. Failure of such party to obey the judgment
contempt

is punishable by

Examples:
1. A judgment in mandamus to reinstate petitioner as chief clinic of
the hospital (Vital-Gozon v. CA)
2. A judgment directing petitioner to vacate the land which is a
judgment to deliver possession of real property and not special
judgment. No contempt for refusal (Moslem v. Soriano)
3. A judgment directing defendant to remove a fence from a certain
place is a special judgment (Marquez v. Marquez)

EFFECT OF LEVY ON THIRD PERSONS

PROPERTIES EXEMPT FROM EXECUTION

The levy on execution shall create a lien in favor of the judgment

obligee over the right, title and interest of the judgment obligor in such
property at the time of the levy, subject to liens and encumbrances
then existing. (Rule 39, Sec. 12)

General Rule: Except as otherwise expressly provided by law, the

following property, and no other, shall be exempt from execution (Rule
39, Sec. 13)
1. The judgment obligor's family home as provided by law, or the
homestead in which he resides, and land necessarily used in
connection therewith;

NOTE: The power of the court in execution extends only over properties
UNQUESTIONABLY belonging to judgment debtor.

2. Ordinary tools and implements personally used by him in his

trade, employment, or livelihood;
3. Three horses, or three cows, or three carabaos, or other beasts
of burden, such as the judgment obligor may select necessarily
used by him in his ordinary occupation;
4. His necessary clothing and articles for ordinary personal use,
excluding jewelry;
5. Household furniture and utensils necessary for housekeeping,
and used for that purpose by the judgment obligor and his
family, such as the judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
6. Provisions for individual or family use sufficient for four months;
7. The professional libraries and equipment of judges, lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors,
clergymen, teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
8. One fishing boat and accessories not exceeding the total value
of one hundred thousand pesos owned by a fisherman and by
the lawful use of which he earns his livelihood;
9. So much of the salaries, wages, or earnings of the judgment
obligor for his personal services within the four months
preceding the levy as are necessary for the support of his family;
10. Lettered gravestones;
11. Monies, benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance;

12. The right to receive legal support, or money or property obtained

as such support, or any pension or gratuity from the
Government;
13. Properties specially exempted by law. (e.g., property mortgaged
to the DBP [Section 26, CA 458]; savings of national prisoners
deposited with the POSTAL SAVINGS BANK [Act 2489]; benefits
from
private
retirement
systems
of
companies
and
establishments with limitations [RA 4917]; laborers wages
except for debts incurred for food, shelter, clothing and medical
attendance [ART 1708, CIVIL CODE]; benefit payments from SSS
[Section 16, RA 1161 AS AMENDED])
Exception: However, no article or species of property mentioned in this
section shall be exempt from:
1. Execution issued upon a judgment recovered for its price, or
2. Upon a judgment of foreclosure of a mortgage thereon.
The exemptions MUST BE CLAIMED, otherwise they are deemed waived.
It is not the duty of the sheriff to set off the exceptions on his own
initiative. (Herrera v. Mcmicking, 1909)

RETURN OF WRIT OF EXECUTION

Procedure for Return of Writ of Execution if Judgment is Satisfied within
30 days (Rule 39, Sec. 14)
1. Writ of execution shall be returnable to the court issuing it
immediately after judgment has been satisfied in part or in full
2. The return shall set forth the whole of the proceedings taken
3. Return is filed with the court
4. It shall also be reproduced and copies thereof furnished to
parties
Procedure if Judgment is NOT satisfied within 30 days:
1. Officer shall report to the court stating the reason for nonsatisfaction
2. The writ shall continue in effect during the period within which
judgment may be enforced by motion
3. Officer shall make a report to the court every 30 days on the
proceedings taken thereon, until either:
a. Judgment is satisfied in full, or
b. Its effectivity expires
4. The periodic reports shall:
a. Set forth the whole of the proceedings taken, and
b. Be filed with the court
c. Be reproduced and copies thereof furnished to parties
NOTE: The lifetime of a writ of execution is without limit for as long as
the judgment has not been satisfied.
But it is returnable to the court issuing it immediately after judgment
has been satisfied in full or in part.
The writ shall continue in effect during period within which the
judgment may be enforced by motion which is 5 years from date of
entry. After the first 5 years, judgment becomes dormant and subject to
revival action.

PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD

PERSON

Effect of Third-Party Claim: When a third-party claim is filed, sheriff is

not bound to proceed with the levy of the property unless judgment
creditor or latters agent posts an indemnity bond against the claim.

CONCEPTS
Rule 39, Sec. 16 and other provisions which provide for a mode of
recovering property allegedly to have been wrongfully taken by sheriff
pursuant to a writ of execution or other process, refers to a STRANGER
to an action.
Remedies of Third-Party Claimant:
1. Summary hearing before the court which authorized the
execution
2. Terceria or third-party claim filed with the sheriff (Rule 39, Sec.
16)
3. Action for damages on the bond posted by the judgment creditor
4. Independent reivindicatory action
The aforementioned are cumulative remedies and may be resorted to
by a third-party claimant independently of or separately from and
without need of availing of the others. [Sy v. Discaya (1990)]
For a Third-Party Claim to be Sufficient:
1. Must be filed by a person other than the defendant or his agent,
at any time before sale
2. Must be under oath or supported by affidavit stating the
claimants title to, or right of possession of, the property, and
grounds therefor
3. Must be served upon the officer making levy and a copy thereof
upon the judgment creditor
The timing of the filing of the claim is important because it determines
the remedies available to the claimant:
1. If the claim is filed under Rule 39, Sec. 16:
a. Claimant may vindicate his claim in a separate action
b. Intervention is no longer allowed since judgment has already
been rendered
2. If the claim is filed under Sec. 14, Rule 57 (Attachment) or under
Sec. 7, Rule 60 (Replevin)
a. Claimant may vindicate his claim by intervention as he has a
legal interest in the matter of litigation
b. Intervention is allowed as these actions are still pending in
court

SUMMARY HEARING BEFORE COURT AUTHORIZING EXECUTION

A third-person whose property was seized by a sheriff to answer for an
obligation of a judgment debtor may invoke the supervisory power of
the court which authorized such execution
Procedure:
1. Claimant files application
2. Court conducts summary hearing
a. The court may command that the property be released from
the mistaken levy and restored to rightful owner or possessor
b. If claimants proofs do not persuade, the claim will be denied
by the court
3. Note however that the court determination is limited
a. Limited only to a determination of whether the sheriff has
acted rightly or wrongly in performance of his duties
b. The court does not and cannot pass upon the question of
title. It can treat of the matter only insofar as may be
necessary to decide if sheriff acted correctly or not
TERCERIA
Independent of the foregoing, a third-party claimant may also avail of
the remedy of Terceria. Terceria is provided in Sec. 16, Rule 39.
This is an action for damages by claimant against officer within 120
days from date of filing of bond for taking or keeping the property
subject of the terceria
Procedure
1. Claimant serves on the officer making levy an affidavit of his title
and a copy thereof to judgment creditor
2. Officer shall not be bound to keep property

a. Unless judgment creditor, or his agent, on demand of officer,

posts indemnity bond not lesser nor greater than value of
property
3. Where a third-party claim has been filed in due form:
a. Prevailing party can compel the sheriff to proceed by filing of
a bond to answer for damages as a consequence of the
execution
b. If sheriff proceeds with the sale without such bond, he will be
personally liable for such damages as may be sustained by
and awarded to the claimant
4. Action against Indemnity
a. Action against indemnity bond must be filed within 120 days
from date of filing of the bond
b. After lapse of 120 days, no claim for damages for taking or
keeping of property may be enforced against the bond
The right of a third-party claimant to file a terceria is founded on his
title or right of possession. Corollary thereto, before the court can
exercise its supervisory power to direct the release of the property
mistakenly levied and the restoration thereof to its rightful owner, the
claimant must first unmistakably establish his ownership or right of
possession thereon. (Magdalena T. Villasi v. Filomena Garcia,
substituted by his heirs, namely, Ermelinda H. Garcia, et al, 2014)
In Spouses Sy v. Hon. Discaya (1990]), SC declared that for a third-party
claim or a terceria to prosper, the claimant must first sufficiently
establish his right on the property
REINVINDICATORY ACTION
The aforesaid remedies are nevertheless without prejudice to any
proper action that third-party claimant may file to vindicate his claim
over the property (ownership claim). This action is separate and
independent
Procedure
1. He must institute an action, distinct and separate from that
which the judgment is being enforced, with the court of
competent jurisdiction
2. No need to file a claim in the court which issued a writ. The latter
is not a condition sine qua non for the former.

3. In such proper action, validity and sufficiency of title of claimant

will be resolved.
4. A writ of preliminary injunction against sheriff may be issued

RULES ON REDEMPTION
WHEN AVAILABLE
1. For personal property there is NO right of redemption as the
sale is absolute
2. For real property right of redemption is available
WHO MAY REDEEM REAL PROPERTY SO SOLD (Rule 39, Sec. 27)
Who may redeem:
1. Judgment obligor, or his successor in interest, in the whole or
any part of the property
2. Remptioner who is a creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold,
subsequent to the lien which the property was sold
Successors-in-interest - They include, among others, one to whom the
debtor has conveyed HIS INTEREST in the property for purposes of
redemption
The Redemptioner
He is a creditor with a lien SUBSEQUENT to the judgment which was the
basis of the execution sale.
Unlike the judgment debtor, a redemptioner must prove his right to
redeem by producing the documents required in Sec. 30, to wit:
1. Copy of the judgment or final order under which he claims the
right to redeem certified by the clerk wherein judgment or final
order was entered OR
2. If he redeems upon a mortgage or other lien, a memorandum of
the record thereof, certified by the Register of Deeds; OR
3. An original or certified copy of any assignment necessary to
establish his claim; OR
4. An affidavit executed by him or his agent showing the amount
then actually due on the lien (Sec. 30)
If the lien of the creditor is PRIOR to the judgment under which the
property was sold:
1. He is not a redemptioner
2. He cannot redeem since his interests in his lien are fully
protected. Any purchaser at a public auction takes the same
subject to such prior lien which he has to satisfy

WHEN CAN REDEMPTION BE MADE (Rule 39, Sec. 28)

WHO
By the
JUDGMENT
DEBTOR
By FIRST
REDEMPTIONE
R
BY ALL
SUBSEQUENT
REDEMPTIONE
RS

WHEN
Within 1 year from date of
registration of certificate of
sale
Within 1 year from date of
registration of certificate of
sale
Within 60 days from last
redemption
PROVIDED that judgment
debtor has not exercised his
right of redemption

In all cases, judgment debtor shall have the entire 1 year period from
date of registration of sale to redeem the property. If judgment debtor
redeems, no further redemption is allowed (Sec. 29).
NOTE: There is no extension or interruption of redemption period.
REDEMPTION PRICE
1. By
a.
b.
c.

the Judgment Debtor or First Redemptioner:

Purchase PRICE
1% INTEREST thereon up to time of redemption
Any amount of ASSESSMENTS OR TAXES which purchaser
may have paid after purchase as well as interest on such last
named amount at the same rate
d. If purchaser is also a creditor having a PRIOR LIEN to that of
redemptioner, other than the judgment under which such
purchase was made, the AMOUNT of such OTHER LIEN, also
with interest

2. By
a.
b.
c.

all Subsequent Redemptioners

AMOUNT paid on last redemption
2% INTEREST thereon
Any amount of ASSESSMENTS OR TAXES which purchaser
may have paid after purchase as well as interest on such last
named amount at the same rate
d. Amount of any LIENS held by said last redemptioner prior to
his own, also with interest

NOTE: The redemption price for subsequent redemption shall be the

same, so the price becomes higher and higher.
EFFECT OF REDEMPTION BY THE JUDGMENT OBLIGOR (Rule 39,
Sec. 29)
If Judgment debtor redeems the property:
1. No further redemption is allowed
2. He is restored to his estate
When a judgment debtor redeems the property, what is effected is the
elimination of the lien created by the levy on attachment or judgment
on the registration of mortgage thereon. Note that he never lost
ownership so there is no recovery of ownership.
Payments mentioned in Sec. 28 and 29 may be made to the:
1. Purchaser, or
2. Redemptioner, or
3. For him to the officer who made the sale
The person to whom redemption payment is made must execute and
deliver to him a CERTIFICATE OF REDEMPTION
1. Acknowledged by a notary public or other officer authorized to
take acknowledgements of conveyances of real property
2. Filed and recorded in the registry of deeds of the place which the
property is situated
3. Registrar must note the record on the margin of the record of the
certificate of sale
RIGHTS PENDING REDEMPTION (Rule 39, Sec. 31 and 32)
Right of Judgment Creditor Pending Redemption
1. Apply for injunction to restrain the commission of waste on the
property
Rights
1.
2.
3.
4.

of the Judgment Debtor Pending Redemption

Remain in possession of the property
Cannot be ejected
Use the property in the same manner it was previously used
Make necessary repairs to buildings thereon while he occupies
the property
5. Use it in the ordinary course of husbandry (Sec. 31); and

6. Collect rents, earning and income derived from property until the
expiration of period of redemption
EXPIRATION OF REDEMPTION PERIOD (Rule 39, Sec. 33)
Judgment obligor shall have the entire period of ONE YEAR from date of
registration of sale to redeem the property
Entitlement to a CONVEYANCE and POSSESSION:
1. To the PURCHASER
If there is no redemption made within 1 year from date of
registration of the certificate of sale
2. To the LAST REDEMPTIONER
If there was redemption, and 60 days have elapsed and no
other redemption has been made
Notice must have been given, and the redemption period has
elapsed
Two Documents which the Sheriff Executes in case of Real Property
1. CERTIFICATE OF SALE
After auction sale, he will execute in favor of the purchaser
the certificate of sale under Sec. 25
From registration of said certificate, the one year redemption
period starts
Certificate of sale after execution sale is merely a memorial
of the fact of sale and does not operate as conveyance
2. DEED OF CONVEYANCE
Issued if after expiration of redemption period there is no
redemption
Operates to transfer to purchaser whatever rights the
judgment debtor had in the property
The effect of a final deed of sale transfers the right as of the
time of the levy
RECOVERY OF PRICE IF SALE IS NOT EFFECTIVE (Rule 39, Sec. 34)
Purchaser may recover the purchase price WHEN:
1. Purchaser or his successor-in-interest fails to recover possession
the property; or
2. Evicted due to:
a. Irregularities in the proceedings concerning the sale; or

b. Judgment has been reversed or set aside; or

c. The property sold was exempt form execution; or
d. A third person has vindicated his claim to the property
Remedies of the Purchaser
1. File a motion in the same action or file a separate action to
recover from judgment creditor the price paid
2. File a motion for revival of judgment in his name against
judgment debtor; or
3. Bring an action to recover possession of property
Effect of revived judgment it has the same force and effect as an
original judgment would have as of the date of revival and no more
REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION OR IF
JUDGMENT IS NOT FULLY SATISFIED (Rule 39, Sec. 36 43)
1. SEC. 36 If execution is returned unsatisfied, he may cause
examination of the judgment debtor as to his property and
income
a. When: At any time after return is made
b. The court issues an order requiring the judgment debtor to
appear and be examined
c. Limitations on examination:
(1) Judgment debtor cannot be made to appear before a
judge or commissioner outside the province where debtor
resides
(2) He may no longer be examined after lapse of 5 years
within which a judgment may be enforced by motion for
execution (Umali v. Coquia)
2. SEC. 37 He may cause examination of the debtor of the
judgment debtor as to any debt owed by him or to any property
of the judgment debtor in his possession
a. Requisites:
(1) The writ must be returned unsatisfied; and
(2) Proof that person, corporation, or other legal entity has
property of such judgment debtor or is indebted to him
b. Where? Before a judge or commissioner appointed by him at
a time and place where such debtor resides or is found
c. Effect: Service of order shall bind all credits due to judgment
debtor and all money and property
d. This rule is not applicable if there is no issue concerning the
indebtedness of the person

3. SEC. 37 If after examination, court finds property of the

judgment debtor, either in his own hands or that of any a
person, court may order the property applied to the satisfaction
of judgment
a. SEC. 39 - Note that the person indebted to judgment obligor
may pay to the sheriff holding the writ the amount of his
debt or so much thereof as may be necessary to satisfy the
judgment
4. SEC. 38 A party or other person may be compelled to attend
before the court or commissioner to testify as provided in Sec.
36 and 37
a. This must be done by order of the court or by subpoena
b. Failure to obey: Contempt
c. All examinations and answers must be under oath
5. SEC. 40 Order for application of property and income to
satisfaction of judgment
a. Court may order any property of judgment debtor, or any
money due him, or in the hands of another to be applied to
the satisfaction of judgment
b. If the court finds the earning of the judgment debtor for his
personal services are MORE than sufficient for his familys
needs, it may order payment in FIXED MONTHLY
INSTALLMENTS
c. Failure to do so: Punish for contempt
6. SEC. 41 Appointment of a Receiver
a. Court may appoint a receiver for the property of judgment
debtor not exempt from execution
b. Court may also forbid disposition or interference with the
property
7. SEC. 42 Sale of Ascertainable Interest of Judgment Obligor in
Real Estate by Receiver
a. Requisites:
(1) The court finds that the judgment debtor has an
ascertainable interest in real property
(2) Such interest can be ascertained without controversy
b. If the requisites are met, the court can order the sale of such
interest. Procedure is the same as in sale of real estate upon
execution
8. SEC. 43 Institution of an action to recover property

a. If person alleged to have property of judgment debtor or

person indebted to him, claims an adverse interest in the
property or denies his debt
b. Court may authorize judgment creditor to bring an action to
recover the property, forbid its transfer
c. Action must be instituted within 120 days from notice of
order
d. Failure is contempt
e. Such order may be modified or vacated at any time by the
court

EFFECT OF JUDGMENT OR FINAL ORDERS

Rule 39, Sec. 47 refers to judgments which are considered as conclusive
and may be rebutted directly by means of relief from judgment or
annulment of judgment or indirectly by offering them in evidence under
the parole evidence rule.
Immutability of Judgments - Once a judgment attains finality it thereby
becomes immutable and unalterable
DUAL ASPECT OF RES JUDICATA
1. Bar by Former Judgment - Direct Estoppel by Judgment; covers
paragraph (a) and (b)
2. Conclusiveness of Judgment Estoppel by Verdict, Estoppel by
Record, Collateral Estoppel by Judgment or Preclusion of Issues
or Rule of Auter Action Pendant; it covers paragraph (c)
BAR BY FORMER
JUDGMENT
There is identity of
parties, subject
matter, and causes of
action
The first judgment
constitutes as an
absolute bar to all
matters directly
adjudged and those
that might have been
adjudged
Preclusion of claims

CONCLUSIVENESS OF
JUDGMENT
There is only identity
of parties and subject
matter
Cause of action are
different
The first judgment is
conclusiveness only as
to matters directly
adjudged and actually
litigated in the first
action.
The second action can
be prosecuted
Preclusion of issues
only

BAR BY FORMER JUDGMENT

Res judicata is a rule that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of the
parties and their privies, and, as to them, constitutes an absolute bar to
a subsequent action involving the same claim, demand, or causes of
action.

Against a specific thing

IN REM
(Paragrah A)
Decision is
CONCLUSIVE upon
title the thing, will or
administration of
condition, status or
relationship of the
person
e.g. land registration

IN PERSONAM
(Paragraph B)
The judgment or final
order is CONCLUSIVE
as between parties
and their successors in
interest, litigating for
the same thing and
under the same title
an in the same
capacity
e.g. accion
reinvindicatoria

Bar by prior judgment is a preclusion of claims - The first judgment is a

bar to the prosecution of a second action upon the same claim,
demand, or cause of action
Requisites:
1. A FINAL judgment or order
2. JURISDICTION over the subject matter and the parties by the
court rendering it
3. Judgment UPON MERITS
4. Between the TWO CASES, there is:
a. IDENTITY OF PARTIES
b. IDENTITY OF SUBJECT MATTER
c. IDENTITY OF CAUSE OF ACTION
General Rule: For res judicata to apply, trial must be made on the merits
of the case.
Exception: Section 3, Rule 17 of ROC: If plaintiff fails to appear at the
time of the trial , or to prosecute his action for an unreasonable length
of time, or to comply with these rules or any order of the court, the
action may be dismissed upon motion of the defendant or upon the
court's own motion . This dismissal shall have the effect of an
adjudication upon the merits , unless otherwise provided by court.
[Development Bank v. CA]

Probate of a will or administration

of the estate of a deceased
person
in respect to the personal,
political, or legal condition or
status of a particular person or
his relationship to another

Title of the thing

The will or administration.
However, the probate of a will or
granting of letters of
administration shall only be
prima facie evidence of the death
of the testator or intestate;
Condition, status or relationship
of the person,

Res Judicata in Judgments in Personam

In other cases, the judgment or final order is, with respect to the matter
directly adjudged or as to any other matter that could have been
missed in relation thereto, conclusive:
1. Between the parties and
2. Their successors in interest, by title subsequent to the
commencement of the action or special proceeding, litigating for
the same thing and under the same title and in the same
capacity.
CONCLUSIVENESS OF JUDGMENT
Preclusion of issues (auter action pendant)
In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former
judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or
necessary thereto.
Issue Preclusion The first judgment precludes the re-litigation of a
particular fact or issue in another action between the same parties on a
different cause of action.
Requisite: Identity of ISSUES

Res Judicata in Judgments in Rem

RES JUDICATA v. LAW OF THE CASE v. STARE DECISIS
Judgments or final order

Conclusive as to

Stare Decisis - When the SC has laid down a principle of law applicable
to a certain state of facts, it will adhere to that principle and apply to it
all future cases where the facts are substantially the same
Doctrine of the Law of the Case - Whatever is once irrevocably
established as the controlling legal rule or decision between the same
parties in the case continues to be the law of the case whether correct
on general principles or not, so long as the facts on which such decision
was predicated continue to be the facts of the case before the court.
As discussed in Ayala Corp. v. Rosa-Diana Realty, 2000:
Res Judicata
The ruling in one
case is carried over
to another case
between the same
parties

Law of the Case

Operates only in the
particular and single
case where the ruling
arises and is not
carried into other
cases as a precedent
The ruling adhered to
in the particular case
need not be followed
as a precedent in
subsequent litigation
between other parties

Stare Decisis

Once a point of law

has been established
by the court, that
point of law will,
generally, be followed
by the same court and
by all courts of lower
rank in subsequent
cases where the same
legal issue is raised

EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS

PUBLIC POLICY PRINCIPLE
A judgment by a foreign court is enforceable only within its territorial
jurisdiction.
A valid judgment rendered by a foreign tribunal may be recognized
insofar as the immediate parties the underlying cause of action are
concerned so long as it is convincingly shown that:
1. There has been an opportunity for a fair hearing before a court
of competent jurisdiction
2. Trial upon registered proceedings has been conducted
3. There is nothing to indicate either a prejudice in court and in the
system of laws under which it is sitting or fraud in procuring the
judgment [Philippine Aluminum v. Fasgi Enterprises (2000)]
Such limitation on the review of foreign judgment is adopted in all legal
systems to avoid repetitive litigation on claims and issues, prevent
harassment of the parties and avoid undue imposition on the courts.
This policy of preclusion rests on principles of comity, utility and
convenience of nations.
As a generally accepted principle of international law, it is part of the
law of the Philippines by virtue of the Incorporation Clause [Section 2,
Article II of the 1987 Constitution] [Regalado]
Two Ways of Giving Effect to Foreign Judgment:
1. An ordinary action to enforce the foreign judgment may be filed
in court; or
2. It may be pleaded in an Answer or a Motion to Dismiss.
EFFECT OF FOREIGN JUDGMENTS (Rule 39, Sec. 48)
NATURE
In judgments against a
specific thing (in rem)
In judgments against a
person (in personam)

EFFECT
Judgment is
CONCLUSIVE upon the
title to the thing
Judgment is
PRESUMPTIVE evidence
of a right as between
parties and their

successors-in-interest
by a subsequent title
In both cases, judgment may be repelled by evidence of:
1. Want of jurisdiction
2. Want of notice
3. Collusion
4. Fraud
5. Clear mistake of law or fact

PROVISIONAL REMEDIES
NATURE OF PROVISIONAL REMEDIES
Provisional remedies are writs and processes available during the
pendency of the action which may be resorted to by a litigant for the
preservation or protection of their rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final judgment in
the case; also known as ancillary or auxiliary remedies.
They are applied to a pending litigation, for the purpose of securing the
judgment or preserving the status quo, and in some cases after
judgment, for the purpose of preserving or disposing of the subject
matter. [Calo v. Roldan (1946)]
Orders granting or denying provisional remedies are merely
interlocutory and cannot be the subject of an appeal. They may
however be challenged before a superior court through a petition for
certiorari under Rule 65.
The Provisional Remedies under the Rules of Court
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
NOTE: The enumeration above is not exclusive. The court may
invoke its equity jurisdiction and order the appropriate reliefs during
the pendency of an action

A foreign judgment is presumed to be valid and binding in the country

from which it comes, until a contrary showing, on the basis of a
presumption of regularity of proceedings and the giving of due notice in
the foreign forum.
Before our courts can give the effect of res judicata to a foreign
judgment, it must be shown that the parties opposed to the judgment
had been given ample opportunity to do so on grounds under Section
48 of Rule 39 of the Rules of Court. [Roehr v. Rodriguez (2003)]

JURISDICTION OVER PROVISIONAL REMEDIES

The court which grants or issues a provisional remedy is the court which
has jurisdiction over the main action.
Inferior courts may also grant all appropriate provisional remedies in an
action pending with it and is within its jurisdiction (Sec. 33, (1), BP 129)

PRELIMINARY ATTACHMENT
DEFINITION
A provisional remedy issued upon order of the court where an action is
pending to be levied upon the property of the defendant so the property
may be held by the sheriff as security for the satisfaction of whatever
judgment may be rendered in the case [Davao Light v CA ](1991)
PURPOSES
1. To seize the property of the debtor in advance of final judgment
and to hold it for purposes of satisfying the said judgment.
2. To enable the court to acquire jurisdiction over the action by the
actual or constructive seizure of the property in those instances
where personal service of summons on the creditor cannot be
effected. [Quasha v. Juan (1982)]
GROUNDS FOR ISSUANCE (Rule 57, Sec. 1)
There are only specific situations where preliminary attachment may
issue. The grounds are EXCLUSIVE:
1. Action for recovery of a specified amount of money or damages,
EXCEPT moral and exemplary,
a. On a cause of action arising from law, contract, quasicontract, delict, or quasi-delict
b. Against a party who is about to depart from the Philippines
with intent to defraud his creditors;
2. Action for money or property, embezzled or fraudulently
misapplied or converted to his own use by either:
a. A public officer, an officer of a corporation, an attorney,
factor, broker, agent, or clerk, in the course of his
employment as such,
b. OR by any other person in a fiduciary capacity, or for a willful
violation of duty;
3. Action to recover the possession of property unjustly or
fraudulently taken, detained or converted,
a. When the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken
by the applicant or an authorized person;

NOTE: rule makes no distinction between real and personal

property [Riano]
4. Action against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation upon which the
action is brought, OR in the performance thereof;
NOTE: the delivery of counterfeit money or knowingly
issuing a bounced check are considered as grounds under
this rule [Riano]
5. Action against a party who has removed or disposed of his
property, or is about to do so, AND with intent to defraud his
creditors; or
6. Action against a party who does not reside and is not found in
the Philippines, OR on whom summons may be served by
publication.
Note: the rule also refers to persons on whom summons
may be served by publication and against whose
property, preliminary attachment may be availed of such
as:
(1) Residents defendants whose identity or whose
whereabouts are unknown [Rule 14, Sec. 14]
(2) Resident defendants who are temporarily out of the
country [Rule 14, Sec. 16]
REQUISITES FOR PRELIMINARY ATTACHMENT TO ISSUE:
1. The case must be any of those where preliminary attachment is
proper (Sec. 1, Rule 57)
2. Applicant must file a motion whether ex parte or with notice and
hearing
3. Applicant must show by affidavit that there is no sufficient
security for the claim sought to be enforced and that the amount
claimed in the action is as much as the sum of which the order is
granted above all counterclaims
4. Applicant must post a bond executed to adverse party
A writ of preliminary attachment is too harsh a provisional remedy to be
issued based on mere abstractions of fraud. Rather, the rules require
that for the writ to issue, there must be a recitation of clear and
concrete factual circumstances manifesting that the debtor practiced
fraud upon the creditor at the time of the execution of their agreement

in that said debtor had a preconceived plan or intention not to pay the
creditor. [Equitable v. Special Steel (2012)]
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT (Rule 57,
Sec. 2)
When may one apply: A preliminary attachment may be applied for
1. At the commencement of the action or
2. At any time before the entry of judgment.
Who may apply: It may be applied for by the plaintiff OR any proper
party (including a defendant who filed a counterclaim, cross-claim, or a
third party complaint)
Methods to Procure Preliminary Attachment:
1. Writ may be prayed for in the complaint itself providing the
allegations warranting its issuance
2. May be issued pursuant to a separate motion for attachment
whenever the writ is not prayed for in the original complaint
Three
1.
2.
3.

Stages in the Grant of a Preliminary Attachment:

The court issues the order granting the application
Writ of attachment issues pursuant to the order granting the writ
The writ is implemented
NOTE: For the initial two stages, it is not necessary that
jurisdiction over person of defendant be first obtained
However, once implementation of writ commences, court must
have acquired jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority to act

Issuance of the Order of Attachment

1. The order may be issued either:
a. Ex parte (service of summons to defendant required)
b. Or upon motion with notice and hearing
2. The order is issued by the court in which the action is pending or
the CA, or the SC
Contents of the Order of Attachment:
1. It must require the sheriff to attach so much of the property of
the party against whom it is issued as may be sufficient to
satisfy applicants demand
a. Property must be within the Philippines

b. And it must not be exempt from execution

2. It shall contain an amount for the attachment bond:
a. The amount sufficient to satisfy the applicants demand, or
b. The value of the property to be attached as stated by
applicant
AFFIDAVIT AND BOND (Rule 57, Sec. 3 and 4)
For the writ to issue, the applicant must submit an affidavit and post
bond. The affidavit and bond required must be duly filed with the clerk
before order issues
Contents of the Affidavit: The affidavit must establish:
1. A sufficient cause of action exists
2. Cause is one of those mentioned in Sec. 1
3. No other sufficient security for the claim sought to be enforced
by action
4. Amount due to applicant or possession of which is entitled to
recover is as much as the sum for which the order is granted
above all legal counterclaims
Applicants Bond: The party applying for the order must give a bond
executed to the adverse party
1. Amount is fixed by the court in its order granting the issuance of
the writ
2. Conditioned that, if the court shall finally adjudge that applicant
was not entitled to the writ, the bond will pay:
a. All costs which may be adjudged to adverse party and
b. All damages which he may sustain by reason of attachment
The bond shall only be applied to all damages sustained due to the
attachment. It cannot answer for those that do not arise by reason of
the attachment [Riano].
THE RULE ON PROR OR CONTEMPORANEOUS SERVICE OF
SUMMONS
General Rule: A writ of attachment may be issued ex parte even before
the summons is served upon the defendant. BUT a writ may not be
implemented until jurisdiction over the person is acquired by service of
summons. Otherwise, the implementation is null and void. [Riano]

Exceptions to Contemporaneous Service of Summons: [Rule 57, Sec. 5]

1. Summons could not be served personally or by substituted
service despite diligent efforts, or
2. Defendant is a resident of the Philippines temporarily absent
therefrom, or
3. Defendant is a non-resident, or
4. The action is in rem or quasi in rem.
MANNER OF ATTACHING PROPERTY (Rule 57, Sec. 5)
The sheriff enforcing the writ shall attach only so much of the property
in the Philippines of the adverse party not exempt from execution as
may be sufficient to satisfy the applicants demand, UNLESS
1. Party against whom writ is issued makes a deposit with the court
from which the writ is issued, or
2. He gives a counter-bond executed to the applicant
ATTACHMENT OF REAL AND PERSONAL PROPERTY (Rule 57, Sec.
7)
1. Real property, or growing crops thereon, or any interest therein
a. File with the Registry of Deeds:
(1) A copy of the order together with a description of the
property
(2) And a notice that the property is attached
b. The registrar of deeds must index attachments in the names
of the applicant, adverse party, or person by whom the
property is held or in whose name it stands in the records
c. If attachment is not claimed on the entire area of land,
description sufficiently accurate for identification of such
shall be included in the registration
2. Personal property capable of manual delivery
a. Issue a corresponding receipt therefor
b. Then sheriff takes it and safely keeps it in his custody
3. Stocks or Shares, or an Interest therein, of any corporation or
company
a. Leave a copy of the writ and a notice stating that these
properties are attached in pursuance of such writ
b. Leave these documents with the president, or managing
agent thereof

4. Debts, credits, bank deposits, financial interest, royalties,

commissions and other personal property not capable of manual
delivery
1. Leave a copy of the writ and a notice that the debts owing,
credits, and other personal property are attached in
pursuance of such writ
2. Leave these documents with:
a. The person owing such debts, or
b. Having in his possession or under his control, such credits
or other personal property, or
c. With his agent
5. The interest of the party against whom attachment is issued in
property belonging to the estate of decedent, whether as heir,
legatee, or devisee
a. By service of a copy of the writ, and notice that said interest
is attached
b. Service is made to:
(1) The executor, or administrator, or
(2) Other personal representative of the decedent
c. Copy of the writ and notice:
(1) Shall be filed with the clerk in which said estate is being
settled, and
(2) Served upon the heir, legatee, or devisee concerned
Property in custodia legis may be attached by:
1. Filing a copy of the writ of attachment with the proper court or
quasi-judicial agency
2. Serving a notice of attachment upon the custodian of the
property [Rule 57, Sec. 7]
A previously attached property may also be subsequently attached. But
the first attachment shall have priority over subsequent attachments.
[Riano]
PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY
THIRD PERSON
A third person who has a claim to the property attached may avail of
the following remedies:
1. File terceria or third-party claim (Rule 57, Sec. 14)

a. Note that a third-party claim may be filed with the sheriff

while has possession of the properties levied upon, this being
the only time fixed for the purpose
b. The claimant makes an affidavit of his title or right to
possession, stating the grounds of such right or title. The
affidavit must be served upon the sheriff
c. Substantial identical procedure as in terceria in Rule 39, Sec.
16
2. File independent action to recover property; or
3. File motion for intervention
a. This is available only before judgment is rendered

Only the defendant or party whose property is attached may move for
its lifting. If the attachment is proper, the discharge should be by
counterbond under Sec. 12 (KO Glass v. Valenzuela)
Effect of Dissolution on Plaintiffs Attachment Bond
1. Dissolution of preliminary attachment upon security given, or a
showing if its irregular issuance, does not operate to discharge
the sureties on the attachment bond
2. That bond is executed to adverse party conditioned that the
applicant will pay all the costs which may be adjudged to
adverse party and all damages which he may sustain by reason
of the attachment, if the court shall finally adjudge that
applicant was not entitled thereto (Sec. 4)
3. Until that determination is made, as to applicants entitlement to
attachment, his bond must stand and cannot be withdrawn

DISCHARGE OF ATTACHMENT AND COUNTER-BOND

After a writ of attachment has been enforced, the party whose property
has been attached, or the person appearing on his behalf, may move
for the discharge of the attachment wholly or in part on the security
given.
Ways of Discharging Attachment
1. Counterbond under Sec. 12
2. Motion for Discharge under Sec. 13
Grounds for Discharge of Preliminary Attachment:
1. Debtor has posted a counterbond or has made the requisite cash
deposit (Sec. 12)
2. Attachment was improperly or irregularly issued (Sec. 13)
a. As where there was no ground for attachment, or
b. The affidavit and/or bond filed are defective or insufficient
(Sec. 3)
3. Judgment is rendered against attaching creditor (Sec. 19)
4. Attachment is excessive, but the discharge shall be limited to
the excess (Sec. 13)
5. Property attached is exempt from execution
NOTE: There is a difference between the bond for issuance of writ and
bond for lifting the writ
1. Bond for issuance of writ (Sec. 4) This is for damages by reason
of the issuance of the writ
2. Bond for lifting of writ (Sec. 5 and 12) This is to secure the
payment of the judgment to be recovered

SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED (Rule

57, Sec. 15)
Procedure:
1. Pay to judgment obligee the proceeds of sale of perishable
property
2. If there is any balance that remains due, sell property as may be
necessary to satisfy the balance if enough remains in the sheriff
or those of the clerk
3. Collection of property of garnishee and proceeds paid to
judgment oblige without need of prior permission to file action
but may be enforced in the same action
4. Return must be made within 10 days from receipt of writ

PRELIMINARY INJUNCTION
DEFINITIONS AND DIFFERENCES
Injunction is a judicial writ, process, or proceeding whereby a party is
ordered to do or refrain from doing a particular act
Preliminary Injunction is an ancillary or preventive remedy where a
court requires a person, a party or even a court or tribunal either to
REFRAIN (prohibitory) from or to PERFORM (mandatory) particular acts
during the pendency of an action. It is only a temporary remedy.
Injunction
Main action
seeks a judgment embodying a
final injunction
Based on all evidence gathered
by court to determine main
action

Preliminary injunction
Ancillary; exists only as part or
incident of an independent action
or proceeding
sole object of which is to preserve
the status quo until the merits
can be heard
based solely on initial and
incomplete evidence

Purpose: To prevent future injury and maintain the status quo (i.e. the
last actual, peaceable, uncontested status which preceded the pending
controversy) for [Knecht v. CA, (1993)]
The injunction should not establish new relations between the parties
but merely re-establish the pre-existing relationship between them.
TRO v. Injunction
TRO
May be granted ex parte if great
and irreparable injury would
result otherwise

Injunction
Cannot be granted without notice
and hearing

A TRO is issued in order to preserve the status quo until the hearing of
the application for preliminary injunction. [Bacolod City Water v.
Labayen (2004)]

Same requirements for application as preliminary injunction.

An application for a TRO shall be acted upon only after all parties are
heard in a summary hearing, which shall be conducted within 24 hours
after the sheriff's return of service and/or the records are received by
the branch selected by raffle. [Rule 58, Sec.4
Status Quo Order v. Injunction
A status quo order is in the nature of a cease and desist order. It is
resorted to when the projected proceedings in the case made the
conservation of the status quo desirable or essential, but the affected
party neither sought such relief nor did the allegations in his pleading
sufficiently make out a case for a temporary restraining order.
It does NOT direct the doing or undoing of acts but is an order to
maintain the last, actual, peaceable and uncontested state of things
which preceded the controversy.
Status Quo Anter Order
Directs the maintenance of the condition prevailing before the
promulgation of the assailed decision.
It has the nature of a TRO. [Dojillo v. COMELEC, 2006]
REQUISITES:
1. There must be a verified application
2. The applicant must establish that:
a. He has a right to relief or a right to be protected and
b. The act against which the injunction is sought violates such
right
c. There is a need to restrain the commission or continuance of
the acts complained of and if not enjoined would work
injustice to him
3. A bond must be posted unless otherwise exempted by the court
4. The threatened injury must be incapable of pecuniary estimation
5. Prior notice and hearing for party/person sought to enjoined
(except in 72-hour TROs)

KINDS OF INJUNCTION
Kinds of Injunction:
1. Preliminary Preventive Injunction Prohibits the performance of
a particular act or acts
2. Preliminary Mandatory Injunction Requires the performance of
a particular act or acts. This is an extreme remedy which will be
granted only on showing that:
a. The invasion of the right is material and substantial
b. Right of complainant is clear and unmistakable
c. There is an urgent and paramount necessity
PRELIMINARY
PROHIBITORY
INJUNCTION
Purpose is to prevent
a person from the
performance of a
particular act

PRELIMINARY
MANDATORY
INJUNCTION
Purpose is to require a
person to perform a
particular act

The act had not yet

been performed

The act has already

been performed and
this act has violated
the rights of another

Status Quo is
preserved

Status Quo is restored

When preventive injunction does not lie; examples:

1. To restrain collection of taxes [Valley Trading v. CA](1989),
except where there are special circumstances that bear the
existence of irreparable injury. [Churchill & Tait v. Rafferty
(1915)]
2. To restrain the sale of conjugal properties where the claim can be
annotated on the title as a lien, such as the husbands obligation
to give support. [Saavedra v. Estrada (1931)]
3. To restrain a mayor proclaimed as duly elected from assuming
his office. [Cereno v. Dictado (1988)]
4. To restrain registered owners of the property from selling,
disposing and encumbering their property just because the
respondents had executed Deeds of Assignment in favor of
petitioner. [Tayag v. Lacson (2004)]
5. Against consummated acts. [PNB v. Adi (1982); Rivera v.
Florendo (1986); Ramos, Sr. v. CA (1989)]
When mandatory injunction does not lie; examples

1. To compel cohabitation [Arroyo v. Vasquez (1921)]

2. Cancellation of attachment [Levy Hermanos v. Lacson (1940)]
3. Release imported goods pending hearing before the
Commissioner of Customs. [Commissioner of Customs v. Cloribel
(1967)]
4. To take property out of the possession or control of one party
and place it into that of another whose title has not clearly been
established [Pio v. Marcos (1974)]
WHEN WRIT MAY BE ISSUED
When: It may be issued at ANY stage PRIOR to the judgment or final
order
Who: It may be granted by the court where the action or proceeding is
pending. If the action or proceeding is pending in the Court of Appeals
or in the Supreme Court, it may be issued by said court or any member
thereof. (Rule 58, Sec. 2)
GROUNDS FOR THE ISSUANCE OF PRELIMINARY INJUNCTION
(Rule 58, Sec. 3)
Preliminary injunction may be granted when it is established that:
1. Applicant is entitled to the relief demanded, or
2. Commission, continuance, or non-performance of the act
complained of would work injustice to applicant, or
3. Party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done, some
act or acts probably in violation of the rights of the applicant
respecting the subject of the action or proceeding
GROUNDS FOR OBJECTION TO, OR FOR MOTION OF DISSOLUTION
OF, INJUNCTION OR RESTRAINING ORDR (Rule 58, Sec. 6)
Grounds for objection or dissolution
1. Upon showing of its insufficiency
2. Other grounds upon affidavits of the party or person enjoined.
This may be opposed by the applicant by affidavits
3. If it appears after hearing that although applicant is entitled to
injunction or TRO, the issuance or continuance thereof, would

cause irreparable damage to party enjoined while applicant can

be fully compensated for such damages as he may suffer
a. PROVIDED that he files a bond
(1) Amount to be fixed by the court
(2) Conditioned that he will pay all damages which the
applicant may suffer by denial or dissolution of the
injunction or TRO
If it appears that the extent of the preliminary injunction or restraining
order granted is too great, it may be modified.
TEMPORARY RESTRAINING ORDER (TRO)
General Rule: Before preliminary injunction may be granted, there must
be prior notice to person sought to be enjoined and there must be a
hearing
Procedure: When an application for a writ of preliminary injunction or
TRO is included in a complaint or initiatory pleading, the case, if filed in
a multiple-sala, shall proceed as follows:
1. Verified complaint and bond is filed
2. Determine if there is great or irreparable injury or extreme
urgency, which warrants the issuance of a TRO
a. If yes, go to Procedure for Issuance of TRO
3. In both cases, Notice shall then be served to the party sought to
be enjoined
(a) There must be prior and contemporaneous service of
summons (exceptions also apply)
Procedure for Issuance of TRO:
1. If it appears that great or irreparable injury would result to the
applicant before the matter can be heard on notice:
a. Summary hearing on the application of the TRO within 24
hours after sheriffs return of service and/or records are
received by the branch selected by raffle
b. The court may issue a TRO effective for 20 days from service
on the party sought to be enjoined
Within the 20 day period:
(1) The applicant must show cause why injunction should not
be granted
(2) The court will determine WON the preliminary injunction
shall be granted. If granted, the court will issue the
corresponding order

2. If the matter is of extreme urgency and the applicant will suffer

grave injustice and irreparable injury
a. A TRO may be issued ex parte (after raffling of case) ordered
by the Executive judge of a multiple sala court or the
presiding judge of a single-sala court
b. Effective for 72 hours from issuance
(1) The applicant must then immediately comply with Sec. 4
as to service of summons and documents
(2) The Executive Judge shall then summon the parties to a
conference and raffle the case in their presence
Within the 72-hr period
(1) The Presiding Judge before whom the case is pending
shall conduct a summary hearing to determine whether
the TRO shall be extended until application for
preliminary injunction can be heard
(2) In no case shall the total period of effectivity of the TRO
exceed 20 days, including the original 72 hours
Effectivity of TRO
1. Effectivity is not extendible. No court shall have authority to
extend or renew the same on the ground for which it was issued
2. If issued by the CA effective for 60 days from service
3. If issued by SC effective until further orders
TRO ISSUED BY
EXECUTIVE JUDGE
(MULTI-SALA) OR
ORDINARY JUDGE
(SINGLE-SALA)
Matter is of extreme
urgency and that
grave injustice and
irreparable injury will
arise unless
immediately issued
May be issued ex
parte
Good for 72 hours
Issued before raffling
Issued ex parte

TRO ISSUED BY
ORDINARY JUDGE

If it appears that great

or irreparable injury
would result
A summary hearing
must be done before
issuance
Good for 20 days
including first 72 hours
Issued after raffling
Issued after summary
hearing

Upon the expiration of the non-extendible period, the

automatically terminated. No judicial declaration necessary.

TRO

is

IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT

OF
INJUNCTION
IN
CASES
INVOLVING
GOVERNMENT
INFRASTRUCTURE PROJECTS
Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any
TRO, preliminary injunction or preliminary mandatory injunction against
the government, or any of its subdivisions, officials or any person or
entity, whether public or private acting under the government direction,
to restrain, prohibit or compel the following acts:
1. Acquisition, clearance and development of the right-of-way
and/or site or location of any national government project
2. Bidding or awarding of contract/ project of the national
government as defined under Section 2 hereof;
3. Commencement
prosecution,
execution,
implementation,
operation of any such contract or project;
4. Termination or rescission of any such contract/project; and
5. The undertaking or authorization of any other lawful activity
necessary for such contract/project.
This prohibition shall apply in all cases, disputes or controversies
instituted by a private party, including but not limited to cases filed by
bidders or those claiming to have rights through such bidders involving
such contract/project.
This prohibition shall NOT APPLY when the matter is of extreme urgency
involving a constitutional issue, such that unless a temporary
restraining order is issued, grave injustice and irreparable injury will
arise. The applicant shall file a bond, in an amount to be fixed by the
court, which bond shall accrue in favor of the government if the court
should finally decide that the applicant was not entitled to the relief
sought.
Any TRO, preliminary injunction, or preliminary mandatory injunction
issued in violation of Sec. 3 is void and of no force and effect. [Sec 4]
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS
IN RELATION TO ATTACHMENT
When an application for a writ of preliminary injunction or a temporary
restraining order is included in a complaint or any initiatory pleading,

the case, if filed in a multiple-sala court, shall be raffled only after

notice to and in the presence of the adverse party or the person to be
enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied, by service of summons, together
with a copy of the complaint or initiatory pleading and the applicant's
affidavit and bond, upon the adverse party in the Philippines.
Exception:
Where the summons could not be served personally or by substituted
service despite diligent efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a nonresident thereof, the
requirement of prior or contemporaneous service of summons shall not
apply. [Rule 58, Sec.4] The executive judge of a multiple-sala court or
the presiding judge of a single sala court may issue ex parte a TRO
effective for only 72 hours from issuance if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable
injury. However, he shall immediately comply with the provisions of Rule
38, Sec. 4 as to service of summons and the documents to be served
therewith. [Rule 38, Sec. 5]
WHEN FINAL INJUNCTION GRANTED
If after the trial of the action it appears that the applicant is entitled to
have the act or acts complained of permanently enjoined, the court
shall grant a final injunction perpetually restraining the party or person
enjoined from the commission or continuance of the act or acts or
confirming the preliminary mandatory injunction. (Rule 58, Sec. 9)

RECEIVERSHIP
NATURE
Receiver A person appointed by the court in behalf of all the parties to
the action for the purpose of preserving and conserving the property in
litigation and prevent its possible destruction or dissipation if it were left
in the possession of any of the parties.
Purpose
The purpose of a receivership as a provisional remedy is to protect and
preserve the rights of the parties during the pendency of the main
action, during the pendency of an appeal or as an aid in the execution
of a judgment when the writ of execution has been returned unsatisfied.
The receivership under Rule 59 is directed to the property which is the
subject of the action and does not refer to the receivership authorized
under banking laws and other rules or laws. Rule 59 presupposes that
there is an action and that the property subject of the action requires its
preservation. Receivership under Rule 59 is ancillary to the main action.
(Riano).
The guiding principle is the prevention of imminent danger to the
property. If an action by its nature, does not require such protection or
preservation, said remedy cannot be applied for and granted.
(Commodities Storage v. CA, 1997)

the judgment obligor refuses to apply his property in satisfaction

of the judgment, or otherwise to carry the judgment into effect;
4. Whenever in other cases it appears that the appointment of a
receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in
litigation.
Specific cases where receiver was appointed
1. If a spouse without just cause abandons the other or fails to
comply with his/her obligations to the family, the aggrieved
spouse may petition the court for receivership. [Family Code,
Article 101]
2. The court may appoint a receiver of the property of the
judgment obligor; and it may also forbid a transfer or other
disposition of, or any interference with, the property of the
judgment obligor not exempt from execution. [Rule 39, Sec. 41]
3. After the perfection of an appeal, the trial court retains
jurisdiction to appoint a receiver of the property under litigation
since this matter does not touch upon the subject of the appeal.
[Rule 41, Sec. 9; Acua v. Caluag (1957)]
4. After final judgment, a receiver may be appointed as an aid to
the execution of judgment. [Philippine Trust Company v.
Santamaria (1929)]
5. Appointment of a receiver over the property in custodia legis
may be allowed when it is justified by special circumstances, as
when it is reasonably necessary to secure and protect the rights
of the real owner. [Dolar v. Sundiam (1971)]

CASES WHEN RECEIVER MAY BE APPOINTED (Rule 59, Sec. 1)

1. When it appears from the verified application and other proof
that the applicant has an interest in the property or fund which is
the subject of the action or proceeding, and that such property
or fund is in danger of being lost, removed, or materially injured
unless a receiver be appointed to administer and preserve it;
2. When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger of being
wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the
parties have so stipulated in the contract of mortgage;
3. After judgment, to preserve the property during the pendency of
an appeal, or to dispose of it according to the judgment, or to aid
execution when the execution has been returned unsatisfied or

REQUISITES; REQUIREMENTS BEFORE ISSUANCE OF AN ORDER

Procedure:
1. Verified application filed by the party requesting for the
appointment of the receiver;
2. Applicant must have an interest in the property or funds subject
of the action;
3. Applicant must show that the property or funds is in danger of
being lost, wasted, or dissipated;
4. Application must be with notice and must be set for hearing;
5. Before appointing a receiver, the court shall require applicant to
post a bond in favor of the adverse party. When the receiver is
appointed, the receiver shall file a bond then take his oath.
6. Before entering upon his duties, the receiver must be sworn to
perform his duties faithfully.

Who Appoints Receiver:

1. Court where the action is pending
2. CA
3. SC
4. During the pendency of an appeal, the appellate court may allow
an application for the appointment of a receiver to be filed in
and decided by the court of origin. [Rule 59, Sec. 1]
Receivership may be denied or lifted:
1. If the appointment was sought or granted without sufficient
cause (Sec. 3)
2. Adverse party files a sufficient bond to answer for damages (Sec.
3)
3. Bond posted by applicant for grant of receivership is insufficient
(Sec. 5)
4. Bond of the receiver is insufficient (Sec. 5)
THE RECEIVER
Who May Be Appointed As Receiver
The general rule is that neither party to the litigation should be
appointed as a receiver without the consent of the other because a
receiver is supposed to be an impartial and disinterested person.
(Alcantara v. Abbas, 1963)
A clerk of court should not be appointed as a receiver as he is already
burdened with his official duties. (Arigo v. Kayanan, 1983)
Powers of a Receiver
1. Bring and defend in such capacity actions in his own name with
leave of court
2. Take and keep possession of the property in controversy
3. Receive rents
4. Collect debts due to himself as receiver or to the fund, property,
estate, person, or corporation of which he is the receiver
5. Compound for and compromise the same
6. Make transfers
7. Pay outstanding debts
8. Divide the money and other property that shall remain among
the persons legally entitled to receive the same
9. Generally, to do such acts respecting the property as the court
may authorize

10. Invest funds in his hands, ONLY by order of the court upon the
written consent of all the parties. [Rule 59, Sec. 6]
Liability for refusal or neglect to deliver property to receiver:
1. Contempt; and
2. Be liable to the receiver for the money or the value of the
property and other things so refused or neglected to be
surrendered together with all damages that may have been
sustained by the party or parties entitled thereto as a
consequence of such refusal or neglect. [Rule 59, Sec. 7]
Remedies Against the Receiver
1. No action against receiver can be maintained without leave of
court
2. An aggrieved party may:
a. Take the matter into the court which appointed the receiver
and ask either for an accounting or take some other
proceeding, and ask for consequent judgment on the acts
complained of; or
b. Ask for leave of court to bring him an action directly
TWO KINDS OF BOND
The Applicants Bond
1. Applicant must file a bond executed to the party against whom
the application is presented
a. Amount to be fixed by the court
b. CONDITION: To the effect that applicant will pay such party
all damages he may sustain by reason of the appointment IN
CASE the applicant shall have procured such without
sufficient cause
2. The court may require additional bond after appointment in the
exercise of its discretion as further security for such damages
(Rule 59, Sec. 2)
The Receivers Bond
1. As a precondition before entering into his duties, receiver must
file a bond
2. The bond is executed to such person and in such sum as the
court may direct
3. CONDITION: To the effect that he will faithfully discharge his
duties and obey the orders of the court (Rule 59, Sec. 4)
DAMAGES RESULTING

DAMAGES ARISING

FROM APPOINTMENT
Damages resulting
from appointment
The right is statutory
The damages may be
caused before the
receiver qualifies or
takes possession of
the property
The applicants bond
is responsible

AFTER APPOINTMENT
Damages which arise
due to receivers
negligence or
mismanagement
The right rests on
general principles of
law
Liability rests on the
mismanagement or
negligence of receiver
The receivers bond is
responsible

TERMINATION OF RECEIVERSHIP

REPLEVIN
NATURE
Replevin is the provisional remedy seeking for the possession of the
property prior to the determination of the main action for replevin.
Replevin may also be a main action with the ultimate goal of recovering
personal property capable of manual delivery wrongfully detained by a
person. In this sense, it is a suit in itself
WRIT OF REPLEVIN
The purpose is to
recover personal
property capable of
manual delivery from
the defendant

Ground: The necessity for a receiver no longer exists

Procedure:
1. The court shall determine that the necessity for a receiver no
longer exists
a. Motu proprio, or on motion of either party
2. Due notice shall be given to all interested parties
3. A hearing shall be conducted
4. The court shall then settle the accounts of the receiver
5. The court directs delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive them
6. The court will then order the discharge of the receiver
Effect:
1.
2.
3.
4.

Settle accounts of receiver

Delivery of funds to person entitled
Discharge of receiver
Receiver entitled to reasonable compensation to be taxed as
costs against defeated party

The property either

belongs to the plaintiff
or one over which the
plaintiff has a right of
possession
May be sought only
when the principal
action is for the
recovery of personal
property
Can be sought only
when defendant is in
actual or constructive
possession of the
property
Cannot be availed of
when property is in
custodia legis
Available before
defendant answers
Bond is double the
value of the property

WRIT OF PRELIMINAY
ATTACHMENT
The purpose is to have
the property put in the
custody of the court to
secure the satisfaction
of the judgment that
may be rendered in
favor of the plaintiff at
some future time
The property does not
belong to the plaintiff
but to the defendant
Available even if
recovery of property is
only incidental to the
relief sought
May be resorted to
even if property is in
possession of a third
person
Can be availed of even
if property is in
custodia legis
Available from
commencement but
before entry of
judgment
Bond is fixed by the
court

Extends only to
personal property
capable of manual
delivery
Available to recover
personal property
even if the same is
not being concealed,
removed, or disposed
of

Extends to all kinds of

property whether real,
personal, or
incorporeal
Attachment to recover
possession of personal
property unjustly
detained presupposes
that the same is being
concealed, removed,
or disposed of to
prevent its being
found or taken by the
applicant

NOTE: There can be no replevin and preliminary attachment in the

same case because the purposes are different.
1. In Rule 57, it is for security
2. In Rule 60, it is for recovery of possession

1. Applicant is owner of the property claimed or is entitled to

possession
2. Property is wrongfully detained by the adverse party
3. Property is not distrained or taken for tax assessment or fine
pursuant to law, or seized (if seized, that the property is exempt)
4. Principal purpose of the action is to recover possession of
personal property
PROCEDURE (Rule 60, Sec. 2 and 3)
1. An application is filed at the commencement of the action or at
any time before answer of defendant
2. Application must contain an affidavit
3. Applicant must file a bond
4. Approval of the bond by the court
5. Court shall then issue an order and the writ of replevin:
a. It must describe the personal property alleged to be
wrongfully detained
b. Requiring the sheriff to take such property into his custody

WHEN MAY WRIT BE ISSUED

NOTE: The writ of replevin may be served anywhere in the Philippines.

When Applied For A writ of replevin must be applied for:

1. At the commencement of the action, or
2. At any time before defendant files his answer

AFFIDAVIT AND BOND; REDELIVERY BOND

NOTE: There can be no replevin before the appellate courts

The provisional remedy of replevin is available where the PRINCIPAL
PURPOSE of the action is to recover the possession of PERSONAL
property.
Who May Avail of the Remedy?
1. Plaintiff where the complaint prays for recovery of possession
of personal property
2. Defendant where a counterclaim was set out in the answer for
recovery of personal property
It is available to any other party asserting affirmative allegations
praying for the recovery of personal property unjustly detained.
REQUISITES

Contents of the Affidavit

1. That the applicant is:
a. The owner of the property
particularity
b. Or is entitled to possession

claimed

describe

with

2. Property is wrongfully detained by adverse party

a. Allege the cause of detention
b. According to his best knowledge, information, belief
3. That the property has not been :
a. Distrained, or
b. Taken for a tax assessment, or
c. Taken as a fine pursuant to law, or
d. Seized under a writ of execution or preliminary attachment,
or under custodia legis; if so taken, that said property is
exempt

4. The affidavit must also state the actual value of the property
subject of replevin and not just its probable value. This value will
be the basis of the bond.
The Applicants Bond
1. Executed to the adverse party
2. Amount is DOUBLE the value of the property stated in the
affidavit
3. Conditions of the Bond:
a. The return to of property to adverse party, if such return be
adjudged, and
b. The payment to adverse party of such sum as he may
recover from the applicant in the action
Return of Property (Sec. 5)
1. If the adverse party objects to the sufficiency of the bond, he
cannot immediately require the return of the property even by
counterbond.
2. If the adverse party DOES NOT object to the sufficiency of the
bond, he may require the return of the property
a. When: At any time before delivery to applicant
b. How: By filing a redelivery bond
The Redelivery Bond
1. This is executed to the applicant and filed where the action is
pending
2. Amount is double the value of the property as stated in the
affidavit of the applicant
3. Conditions of the Bond:
a. The delivery thereof to the applicant, if such delivery be
adjudged, and
b. The payment of such sum to him as may be recovered
against the adverse party
SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT
Duties of the Sheriff (Rule 60, Sec. 4)
1. Serve a copy of the order, together with the copies of the
application, the affidavit, and bond to the adverse party
2. Take the property:

a. If it be in the possession of the adverse party or his agent

Take the property into custody
b. If property is concealed in a building or enclosure:
(1) Demand delivery of the property
(2) If not delivered, cause the building or enclosure to be
broken open and then take the property into possession
3. After taking possession:
a. Keep the property in a secure place
b. He shall be responsible for delivery to party entitled
Unlike a preliminary attachment and preliminary injunction, the rule on
prior or contemporaneous jurisdiction is not provided for in replevin.
However, the rule requires that upon such order, the sheriff must serve
a copy on the adverse party together with the required documents.
A sheriffs prerogative does not give him the liberty to determine who
among the parties is entitled to possession.
When a writ is placed in the hands of a sheriff, it is his duty to proceed
with reasonable celerity and promptness to execute it according to its
mandate.
DISPOSITION OF PROPERTY BY SHERIFF (Rule 60, Sec. 6)
The adverse party is entitled to the return of the property taken under
writ of replevin, if:
1. He seasonably posts a redelivery bond
2. The applicants bond is found to be insufficient or defective and
is not replaced with a proper bond
3. The property is not delivered to the plaintiff for any reason
The sheriff shall retain the property for 5 days; Within such period, the
adverse party:
1. May object to the sufficiency of the applicants bond or surety; or
2. May file a redelivery bond, if he does not object to the
sufficiency of the bond
NOTE: These remedies are alternative.

WHEN PROPERTY IS CLAIMED BY THIRD PARTY

When third party claims the property and such person makes affidavit
of his title thereto stating his grounds, and serves such affidavit upon
the sheriff while the latter has possession of the property and a copy
upon the applicant, the sheriff SHALL NOT BE BOUND to keep property
under replevin or deliver property to the applicant UNLESS the applicant
files a bond approved by the court in favor of the third person (the bond
should not be less than the value of stated under Sec. 60, Sec. 2; the
court shall determine the value in case of disagreement).

Difference in Service of Affidavits:

1. Sec. 14, Rule 57 affidavit is served upon the sheriff while he
has possession of the attached property
2. Sec. 7, Rule 60 affidavit is served within 5 days in which sheriff
has possession (in connection with Sec. 6)

No claim for damages for the taking or keeping of the property may be
enforced against the bond UNLESS the action is filed within 120 days
from filing of the bond.

After trial of the issues, the court shall determine who has the right of
possession to and the value of the property and shall render judgment
in the alternative for the delivery thereof to the party entitled to the
same, or for its value in case delivery cannot be made, and also for
such damages as either party may prove, with costs.

The procedure in Rule 60, Sec. 7 is similar to that in third-party claims in

execution (Sec. 16, Rule 39) and in attachment (Sec. 14, Rule 57).

JUDGMENT (Rule 60, Sec. 9)

A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES

PURPOSE

Preliminary Attachment
To have the property of adverse
party attached as security for
satisfaction of judgment that may
be recovered in cases falling
under Sec. 1, Rule 57
To enable the court to acquire
jurisdiction over the action by the
actual or constructive seizure of
the property in those instances
where personal service of
summons on creditor cannot be
effected

SUBJECT
MATTER

Personal or real property

WHEN
APPLIED/
GRANTED

At the commencement of action

OR `At any time prior to entry of
judgment

Preliminary Injunction
To require a party or a court,
agency, or a person to reframe
from doing a particular act/s

Or to require the performance of

particular act/s

Receivership

Replevin

To place the property subject of

an auction or proceeding under
the control of a third party for its
preservation and administration
pendente lite or as an aid to
execution

To recover possession of personal

property

Personal or real property

Personal property capable of

manual delivery

Particular act/s
At any stage prior to final
judgment or final order

File verified application and

applicants bond
If application is included in
HOW APPLIED
File affidavits and applicants
initiatory pleading, adverse party
FOR
bond
should be served with summons
together with a copy of initiatory
pleading and applicants bond
Required
EXCEPT:
Great or irreparable injury would
REQUIREMENT
Not required
result or Extreme urgency and
OF A HEARING
May be issued ex parte
applicant will suffer grave
injustice and irreparable injury
(Sec. 5, Rule 58
Only the court where the action is
pending
Courts where the action is
Lower court, CA or SC provided
WHO MAY
pending, the CA or the SC even if
action is pending in the same
GRANT
action is pending in lower court
court which issues the injunction
Also with the Sandiganbayan and
CTA
REQUISITES
1. Sufficient cause of action
1. Applicant is entitled to relief
FOR GRANTING 2. Case is covered by Sec. 1, Rule
demanded
APPLICATION
57
2. Act/s complained of would
3. No other sufficient security for
work injustice to applicant if
the claim exists
not enjoined
4. Amount due to applicant or
3. Acts sought to be enjoined

At any time prior to satisfaction of

judgment
It may be availed of even after
judgment becomes final under
Sec. 41, Rule 39
File verified application and
applicants bond

At the commencement of the

action
BUT before the filing of answer

File affidavits and applicants

bond

Application may also be included

in initiatory pleading in actions for
foreclosure of mortgage

Required

Not Required
May be issued ex parte

Court where action is pending

The CA or SC even if action is
pending in the lower court
Appellate court may allow
application for receivership to be
decided by the court of origin

Only the court were action is

pending

1.
2.

Applicant has interest in

property or fund, subject
matter of action
Property or fund is in danger
of being lost, or removed, or
material injured

1.
2.
3.

Applicant is owner of the

property claimed or is
entitled to possession
Property is wrongfully
detained by the adverse party
Property is not distrained or

value of property he is entitled

to recover is equal to the sum
which the order of attachment
4.
is granted

probably violates applicants

rights respecting the subject
of the action or proceeding
Threatened injury incapable of
pecuniary estimation

SPECIAL CIVIL ACTIONS

IN GENERAL

3.

Appointment is the most

convenient and feasible
means of preserving,
administering, disposing of
property in litigation

residences of the
parties when action is
personal or by the
location of the
property when the
action is real

NATURE
Since a civil action in general is one by which a party sues another for
the enforcement of a right, or the prevention or redress of a wrong, a
special civil action is generally brought or filed for the same purpose.
[Riano]

May be filed initially in

either the MTC or RTC

ORDINARY CIVIL ACTIONS v. SPECIAL CIVIL ACTIONS

A special civil action is governed by the rules of ordinary civil actions
but there are certain rules that are applicable only to special civil
actions.
ORDINARY CIVIL
ACTION

SPECIAL CIVIL ACTION

Governed by ordinary
rules

Also governed by
ordinary rules but
subject to specific
rules prescribed

Formal demand of
ones legal rights in a
court of justice in the
manner prescribed by
the court or by the
law
Must be based on a
cause of action which
means that the
defendant has
violated plaintiffs
rights
Venue is determined
by either the

Special features not

found in ordinary civil
actions
The concept of cause
of action in an
ordinary action does
not always fit in a
special civil action
(e.g. interpleader)
This dichotomy does
not always apply in a

They are denominated

as complaints when
filed

taken for tax assessment or

fine pursuant to law, or seized
(if seized, that the property is
exempt)

special civil action

(e.g. the venue in a
petition for quowarranto is where the
SC or CA sits)
There are special civil
actions which can be
filed with the MTC (e.g.
forcible entry and
unlawful detainer)
There are also those
which cannot be
commenced in the
MTC (e.g. certiorari,
prohibition,
mandamus)
Some special civil
actions are initiated by
petitions

JURISDICTION AND VENUE

The Special Civil Actions (SCA) under the Rules of Court
1. SCAs initiated by complaints:
a. Interpleader
b. Foreclosure of Real Estate Mortgage
c. Forcible Entry and Unlawful Detainer
d. Partition
e. Expropriation
2. SCAs initiated by petitions:
a. Declaratory Relief
b. Review or Adjudication of COMELEC/COA Decisions
c. Certiorari
d. Prohibition
e. Mandamus
f. Quo Warranto
g. Contempt

The venue of special civil actions is governed by the general rules on

venue EXCEPT as otherwise indicated in the particular rule for said
special action.
Actions for certiorari, prohibition and mandamus should be commenced
in the proper RTC, but the same may, in proper cases, be commenced in
the SC or the CA and a specific rule of venue is provided for quo
warranto proceedings
In the absence of special reasons, the SC will decline original jurisdiction
in certiorari, prohibition, and mandamus since it is not a trier of facts
and, that is a function which can be better done by the trial courts. The
same rule applies for quo warranto wherein the SC has concurrent
jurisdiction with the RTC.
Special civil actions that can be filed in or are within the jurisdiction of
inferior courts:
1. Interpleader -- Provided that amount involved is within its
jurisdiction
2. Ejectment suits
3. Contempt

INTERPLEADER
NATURE
Definition - A remedy whereby a person who has property in his
possession or has an obligation to render wholly or partially, without
claiming any right in both, comes to court and asks that the defendants
who have made conflicting claims upon the same property or who
consider themselves entitled to demand compliance with the obligation
be required to litigate among themselves in order to determine who is
entitled to the property or payment or the obligation [Beltran v. PHHC,
(1969)]
The peculiar characteristic of an interpleader is that there is NO CAUSE
OF ACTION on the part of the plaintiff but only a threat of cause of
action.
Purposes
1. To compel conflicting claimants to interplead and litigate their
several claims among themselves. [Rule 62, Sec. 1]
2. To protect a person against double vexation in respect of one
liability [Beltran, supra]
REQUISITES FOR INTERPLEADER
1. The plaintiff clams no interest in the subject matter or his claim
thereto is not disputed
2. The parties to be interpleaded must make effective claims
3. There must be at least 2 or more conflicting claimants with
adverse or conflicting interests to a property in custody or
possession of the plaintiff; and
4. The subject matter must be one and the same
NOTE: Interpleader applies regardless of nature of subject matter.
Cannot be availed of to resolve the issue of breach of undertakings
made by defendants, which should be resolved in an ordinary action for
specific performance or other relief [Beltran, supra].
WHEN TO FILE
Who Files the Complaint - A complaint for interpleader is filed by the
person against whom the conflicting claims are made

When to File - REASONABLE TIME

An action for interpleader should be filed within a reasonable time after
a dispute has arisen without waiting to be sued by either of the
contending parties. Otherwise, it may be barred by laches or undue
delay.
Jurisdiction and Venue General rules on jurisdiction and venue apply
as in ordinary civil actions.
PROCEDURE
1. A complaint is filed.
2. Upon filing of complaint, the court issues an Order (Sec. 2)
requiring conflictng claimants to interplead with one another
3. Summons shall then be served upon the conflicting claimants
with a copy of the complaint and the order to interplead (Sec. 3).
4. Each claimant has a 15-day period to file: (Sec. 4)
a. An answer
b. A motion to dismiss. If filed, period to answer is filed
a. Grounds:
(1) Same as in Rule 16
(2) Impropriety of interpleader action
b. If motion is denied, movant may file his answer within the
remaining period but it shall not be less than 5 days in
any event from notice of denial
5. From service of Answer, the claimants may file their Reply
serving copies to all parties. Parties may file counterclaims,
cross-claims, third-party complaints, responsive pleadings
EFFECT OF FAILURE TO ANSWER: Default.
a. The claimant may be declared, on motion, in default
b. Unlike ordinary default, default in interpleader allows the
court to render judgment barring him from any claim in
respect to the subject matter
6. Pre-trial is conducted.

7. After all pleadings have been fled, the court shall then determine
the respective rights and adjudicate their several claims (Sec. 6)

DECLARATORY RELIEFS AND SIMILAR REMEDIES

NATURE
In Declaratory Relief, the subject matter is a deed, will, contract, or
other written instrument, statute, executive order, or regulation, or
ordinance;

2. If action involves the validity of a statute/executive

order/regulation/other governmental regulation, the Solicitor
General shall be notified. [Rule 63, Sec. 3]
3. If action involves the validity of a local government ordinance,
the prosecutor/attorney of the LGU involved shall be notified.
[Rule 63, Sec. 4]

Issue is the validity or construction of the subject matter

Non-joinder of interested persons is not a jurisdictional defect; but

persons not joined shall not be prejudiced in their interests unless
otherwise provided by the Rules. (Baguio Citizens Action v. City Council
of Baguio, 1983)

Relief: declaration of the petitioners rights and duties

WHERE TO FILE

Purpose: To relieve the litigants of the common law rule that no

declaration of rights may be judicially adjudged unless a right has been
violated and for the violation of which relief may be granted.

It is filed In the appropriate RTC (incapable of pecuniary estimation)

Note: The enumeration of the subject matter is EXCLUSIVE

Characteristics
1. The concept of a cause of action is not applicable to declaratory
relief since this SCA presupposes that there has been no breach
or violation of the
2. instruments involved
3. Unlike other judgments, judgment in an action for declaratory
relief does not essentially entail any execution process
WHO MAY FILE THE ACTION (Rule 63, Sec. 1)

REQUISITES OF ACTION FOR DECLARATORY RELIEF

1. Subject matter of controversy must be a deed, will, contract, or
other written instrument, statute, executive order or regulation,
or ordinance. (Enumeration is exclusive)
2. Actual justiciable controversy or ripening seeds of one
between person whose interests are adverse
3. No breach of documents in question

1. Any person interested under a deed, will, contract or other

written instrument
a. He must file before breach
2. Any person whose rights are affected by a statute, executive
order or regulation, or ordinance, or any other governmental
regulation
a. He must file before violation
PARTIES
1. All persons who have or claim any interest
affected by the declaration [Rule 63, Sec. 2]

Original jurisdiction of a petition for declaratory relief is with the RTC.

4. Doubtful as to the terms and validity of the document and

require judicial construction
5. Issue is ripe for judicial determination,
administrative remedies have been exhausted

as

where

all

6. Adequate relief is not available through other means or other

forms of action or proceeding
WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION

which would be

Court has DISCRETION to REFUSE to Grant Declaratory Relief when:

(Rule 63, Sec. 5)

1. The decision will not terminate the controversy or uncertainty

giving rise to the action; or
2. The declaration or constitution is not necessary and proper
under the circumstances
How Done: Motu proprio, or on motion
CONVERSION TO ORDINARY ACTION (Rule 63, Sec. 6)

REVIEW OF JUDGMENTS AND FINAL ORDERS OR

RESOLUTION OF THE COMELEC AND COA
SCOPE (Rule 64, Sec. 1)
Applicable only to judgments and final orders of the COMELEC and COA
[Rule 64, Sec. 1]

When proper: If before the final termination of the case, a breach or

violation of the instrument or status occurs. Then, petition is converted
into an ordinary action

Judgments/orders of the Civil Service Commission are now reviewable

by the Court of Appeals under Rule 43, eliminating recourse to the
Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No.
1-95]

Effect of Conversion: Parties shall be allowed to file such pleadings as

may be necessary or proper

An aggrieved party may bring the questioned judgment, etc. directly to

the SC on certiorari under Rule 65. [Rule 64, Sec. 2]

NOTE: If there has been breach or violation BEFORE filing of the

petition, declaratory relief cannot be availed of.

Basis: This new rule is based on the provisions of Art. IX-A, 1987
Constitution regarding the three constitutional commissions provided
for therein.

PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES

Actions similar to Declaratory Relief and may be brought under Rule 63:
(may be filed with the MTC)
1. Action for reformation (See Art. 1359-1369 Civil Code)
2. Action to quiet title or remove cloud (See Art. 476-481 Civil
Code)
3. Action to consolidate ownership (See Art. 1607 Civil Code)
These remedies are considered similar to declaratory relief because
they also result in the adjudication of the legal rights of the litigants
often without the need of execution to carry the judgment into effect
However we must make a distinction:
1. In those cases similar to declaratory relief, the court is BOUND to
render judgment
2. In actions for declaratory relief, the court MAY REFUSE to
exercise the power to declare rights and to construe instruments

APPLICATION OF RULE 65 UNDER RULE 64

The aggrieved party may bring a judgment or final order or resolution of
the COMELEC and COA to the SC on certiorari under Rule 65 and not on
appeal by certiorari under Rule 45
NOTE: The petition should be filed EXCLUSIVELY with the SC
Unlike in Rule 65, petition should be filed within 30 days from notice of
judgment or final order or resolution sought to be reviewed.
Filing of MFR or MNT, if allowed under the procedural rules of the
Commission, shall interrupt the 30-day period.
If denied, aggrieved party may file petition within the remaining period
but it shall not be less than 5 days in any event from notice of denial.
NOTE: The Fresh Period Rule is NOT applicable
PROCEDURE
1. A verified petition is filed (Sec. 5) with payment of docket and
lawful fees (Sec. 4)

2. Service of petition to the Commission and parties concerned

(Sec. 5)
3. SC shall act on the petition:
a. It may dismiss the petition:
(1) Failure to comply with the form and content requirements
in Sec. 5
(2) If SC finds the petition insufficient in form and substance
(Sec. 6)
(3) If it was filed manifestly for delay (Sec. 6)
(4) Questions raised are too unsubstantial to warrant
proceedings (Sec. 6)
b. If sufficient in form and substance, the SC will require the
respondents to file their Comments (Sec. 6) within 10 days
from notice
4. SC may also require oral argument or submission of memoranda
(Sec. 9)
5. The case is then submitted for decision (Sec. 9)
DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS
OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65
TO OTHER TRIBUNALS, PERSONS, AND OFFICERS
Rule 64
Directed only to the judgments,
final orders or resolutions of
COMELEC and COA
Filed within 30 days from notice
of the judgment
The filing of a MR or a Motion for
New Trial if allowed, interrupts
the period for the filing of the
petition for certiorari. If the
motion is denied, the aggrieved
party may file the petition within
the remaining period, but which
shall not be less than 5 days
reckoned from the notice of
denial.

Rule 65
Directed to any tribunal, board, or
officer exercising judicial or quasijudicial functions
Filed within 60 days from notice
of the judgment

The period within which to file the

petition if the MR or new trial is
denied, is 60 days from notice of
the denial of the motion.

CERTIORARI, PROHIBITION, MANDAMUS

DEFINITIONS AND DISTINCTIONS
Writ of Certiorari is a writ emanating from a superior court directed
against an inferior court, tribunal, or officer exercising judicial or quasijudicial functions. The purpose of which is to correct errors of
jurisdiction.
Writ of Prohibition is a writ issued by a superior court and directed
against an inferior court, board, officer or other person whether
exercising judicial, quasi-judicial, or ministerial functions for the purpose
of preventing the latter from usurping jurisdiction with which it is not
legally vested.
Writ of Mandamus is a writ issued in the name of the State, to an
inferior tribunal, corporation, board, or person, commanding the
performance of an act which the law enjoins as a duty resulting from an
office, trust, or station.
CERTIORARI
Directed
against an
entity or
person
exercising
judicial or
quasi-judicial
functions

PROHIBITION
Directed
against an
entity or
person
exercising
judicial, quasijudicial, or
ministerial
functions

Entity or person is alleged to

have acted:
(1) Without jurisdiction
(2) In excess of jurisdiction; or
(3) With grave abuse of
discretion amounting to lack or
excess of jurisdiction

PURPOSE
To annul or
nullify a

PURPOSE:
To have
respondent

MANDAMUS
Directed
against an
entity or
person
exercising
ministerial
functions
Entity or
person is
alleged to
have:
(1) Neglected
a ministerial
duty; or
(2) Excluded
another from
a
right
or
office
PURPOSE:
For
respondent

proceeding

Covers
discretionary
acts
Corrective
remedy
To correct
usurpation of
jurisdiction

desist from
further
proceeding
Covers
discretionary
and
ministerial
acts
Negative and
Preventive
remedy
To restrain or
prevent the
said
usurpation

to: (1) Do the

act required,
and (2) Pay
damages
Covers
ministerial
acts

This remedy
is affirmative
or positive
or negative

Distinguished from Injunction

INJUNCTION
Ordinary civil action
Directed only to the
party litigants, without
in any manner
interfering with the
court
INJUNCTION
Ordinary civil action
Directed against a
litigant
Purpose is to either
refrain the defendant
from performing an
act or to perform not
necessarily a legal
and ministerial duty

PROHIBITION
Special civil action
Directed to the court
itself, commanding it
to cease from the
exercise of a
jurisdiction to which it
has no legal claim
MANDAMUS
Special civil action
Directed against a
tribunal, corporation,
board, or officer
Purpose is for the
tribunal, corporation,
board, or officer, to
perform a ministerial
and legal duty

Certiorari as a Mode of Appeal and as a Special Civil Action

CERTIORARI AS A

CERTIORARI AS A

MODE OF APPEAL
(Rule 45)
A continuation of the
appellate process
over the original case

Seeks to review final

judgment or final
orders

Raises only questions

of law

Filed within 15 days

from notice of
judgment or final
order appealed from,
or of the denial of
petitioners motion for
reconsideration or
new trial
Extension of 30 days
may be granted for
justifiable reasons
Does not require a
prior motion for
reconsideration
Stays the judgment
appealed from

SPECIAL CIVIL ACTION

(Rule 65)
An original action and
not a mode of appeal
May be directed
against an
interlocutory order of
the court or where no
appeal or plain or
speedy remedy is
available in the
ordinary course of law
Raises questions of
jurisdiction that is,
whether a tribunal,
board or officer
exercising judicial or
quasi-judicial functions
has acted without
jurisdiction or in
excess of jurisdiction
or with grave abuse of
discretion amounting
to lack of jurisdiction
Filed not later than 60
days from notice of
judgment, order, or
resolution sought to be
assailed and in case a
motion for
reconsideration or new
trial is timely filed, the
60-day period is
counted from notice of
said denial
Extension no longer
allowed
Motion for
reconsideration is a
condition precedent,
subject to exceptions
Does not stay the
judgment or order

subject of the petition,

unless enjoined or
restrained
Parties are the original
parties with the
appealing party as the
petitioner and the
adverse party as the
respondent without
impleading the lower
court or its judge

The tribunal, board,

officer, exercising
judicial or quasijudicial functions is
impleaded as
respondents

Filed only with the SC

May be filed with the

SC, CA,
Sandiganbayan, RTC

SC may deny the

decision motu proprio
on specific grounds
NOTE: An original action for Certiorari, Prohibition, or Mandamus, is an
Independent Action, as such:
1. Does not interrupt the course of the principal action
2. Does not affect the running of the reglementary periods involved
in the proceedings
3. Does not stay the execution of judgment unless a TRO or writ of
preliminary injunction has been issued
ACQUISITION OF JURISDICTION
In original actions for Certiorari, Prohibition, Mandamus, when does the
court acquire jurisdiction over the person of the respondent? IT
DEPENDS:
1. IF ACTION IS FILED WITH THE RTC - We follow rules on ordinary
civil actions. Jurisdiction is acquired by:
a. Service of summons to respondent or
b. By his voluntary appearance in court
2. IF ACTION IS FILED WITH THE CA OR SC - Court acquires
jurisdiction over respondents by:
a. Service on them of its orders indicating its initial action on
the petition or
b. By their voluntary submission to such jurisdiction
REQUISITES

Requisites of Certiorari:
1. There must be a controversy
2. Respondent is exercising judicial or quasi-judicial function
3. Respondent acted without or in excess of its jurisdiction or acted
with grave abuse of discretion amounting to lack of jurisdiction;
and
4. There must be no appeal or other plain, speedy, and adequate
remedy
Requisites of Prohibition:
1. There must be a controversy
2. Respondent is exercising judicial, quasi-judicial, or ministerial
functions
3. Respondent acted without or in excess of its jurisdiction or acted
with grave abuse of discretion amounting to lack of jurisdiction;
and
4. There must be no appeal or other plain, speedy, and adequate
remedy
Requisites of Mandamus:
1. There must be a clear legal right or duty
If there is discretion as to the taking or non-taking of the
action sought, there is no clear legal duty, and mandamus
will not lie
2. The act to be performed must be practical
Within the powers of the respondent to perform such that if
the writ of mandamus was issued, he can comply with it, or
else the essence will be defeated
3. Respondent must be exercising a ministerial duty
A duty which is absolute and imperative and involves merely
its execution
4. The duty or act to be performed must be existing
A correlative right will be denied if not performed by the
respondents
5. There is no other plain, speedy, and adequate remedy in the
ordinary course of law
DISCRETIONARY ACT
One where public
functionaries, by
virtue of a power or
right conferred upon
them by law, can act

MINISTERIAL ACT
One which an officer
or tribunal performs in
a given state of facts,
in a prescribed
manner, in obedience

officially under certain

circumstances,
uncontrolled by the
judgment or
conscience of others

to the mandate of a
legal authority,
without regard to or
the exercise of his own
judgment upon the
propriety or
impropriety of the act
done

General Rule: Prohibition does NOT ordinarily lie to restrain an act which
is already fait accompli.
Exception: Writ of prohibition will lie to prevent the unlawful creation of
a new province by those in the corridors of power who could avoid
judicial intervention and review by merely speedily and stealthily
completing the commission of such illegality (Tan, et al. v. COMELEC)
WHEN PETITION FOR MANDAMUS PROPER

WHEN PETITION FOR CERTIORARI IS PROPER

Only to correct errors of jurisdiction, not errors of judgment.
Questions of fact cannot be raised in an original action for certiorari.
Only established or admitted facts may be considered. (Suarez, NLRC,
1998)
Where appeal is available, certiorari will not lie. Exceptions:
1. Where the appeal does not constitute a speedy and adequate
remedy
2. Where orders were also issued either in excess or without
jurisdiction
3. For certain special considerations, as public welfare or public
policy
4. Where, in criminal actions, the court rejects the rebuttal
evidence for the prosecution as, in case of acquittal, there could
be no remedy
5. Where the order is a patent nullity
6. Where the decision in the certiorari case will avoid future
litigations
WHEN PETITION FOR INJUNCTION IS PROPER
Prohibition is a preventive remedy. However, to prevent the respondent
from performing the act sought to be prevented during the pendency of
the proceedings for the writ, the petitioner should obtain a restraining
order and/or writ of preliminary injuction. [Regalado]
The office of prohibition is not to correct errors of judgment but to
prevent or restrain usurpation by inferior tribunals and to compel them
to observe the limitation of their jurisdictions. (Herrera)

The purpose of mandamus is to compel the performance, when refused,

of a ministerial duty, this being its main objective.
A writ of mandamus will not issue to control the exercise of official
discretion or judgment, or to alter or review the action taken in the
proper exercise of the discretion of judgment, for the writ cannot be
used as a writ of error or other mode of direct review.
However, in extreme situations generally in criminal cases, mandamus
lies to compel the performance of the fiscal of discretionary functions
where his actuations are tantamount to a wilful refusal to perform a
required duty. [Regalado]
Grounds for Mandamus:
1. When any tribunal, corporation, board, officer or person,
UNLAWFULLY NEGLECTS the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or
station
2. When any tribunal, corporation, board, officer, or person,
UNLAWFULLY EXCLUDES another from the due and enjoyment of
a right or office to which the other is entitled
MANNER OF FILING THE PETITION
1. A verified petition is filed in the proper court accompanied by:
a. Certified true copy of the judgment, order, resolution subject
thereof
b. Copies of all pleadings and relevant and pertinent documents
c. Sworn certification of non-forum shopping
2. Contents of the petition
a. Allegation of facts with certainty
b. Prayer

Prayers:
1. In certiorari
a. That the judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer; and
b. Granting such incidental reliefs as law and justice may
require
2. In prohibition
a. That the judgment be rendered commanding the respondent
to desist from further proceedings in the action or matter
specified; or
b. Otherwise granting such incidental reliefs as law and justice
may require
3. In mandamus
a. That the judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the
court, to do the act required to be done to protect the rights
of the petitioner ; and
b. To pay the damages sustained by the petitioner by reason of
the wrongful acts of the respondent
EXCEPTIONS TO FILING MOTION FOR RECONSIDERATION BEFORE
FILING PETITION
General Rule: A MR is an essential precondition for the filing of a
petition for certiorari, prohibition, or mandamus. It is a plain, speedy,
and adequate remedy. This is to enable the lower court, in the first
instance, to pass upon and correct its mistakes without the intervention
of the higher court
If a MR is filed, the period shall not only be interrupted but another 60
days shall be given to the petitioner within which to file the appropriate
petition for certiorari or prohibition with the superior court (SC Admin
Circular 00-2-03)
Exceptions: MR may be dispensed with in some cases:
1. Where the order is a patent nullity
2. Where questions raised in the certiorari proceeding have been
duly raised and passed upon by the lower court , or are the same
as those raised and passed upon in the lower court
3. Where there is urgent necessity for the resolution of the question
and any further delay would prejudice the interests of the
Government

4. Where under the circumstances, a MFR would be useless, as

where the court had already indicated that it would deny any
motion for reconsideration of its questioned order
5. Where petitioner was deprived of due process and there is
extreme urgency for relief
6. Where, in a criminal case, relief from an order of arrest is urgent
and granting such relief by trial court is improbable
7. Where the proceedings in the lower court are a nullity for lack of
due process
8. Where the proceeding was ex parte or in which the petitioner
had no opportunity to object
9. Where the issue raised is one purely of law or where public
interest is involved
10. Where the subject matter of the action is perishable
PROCEDURE
1. A petition for certiorari/ mandamus/ prohibition is filed
When filed:
a. Not
later
than
60
days
from
notice
of
judgment/order/resolution
b. If a motion for reconsideration/new trial is filed, the 60-day
period shall be counted from notice of denial of motion.
c. Extension may be granted for compelling reasons, not
exceeding 15 days. [Rule 65, Sec. 4]
Where filed: (Follow hierarchy of courts)
a. Supreme Court
b. Court of Appeals; Whether or not the same is in aid of its
appellate jurisdiction BUT if it involves the acts of a quasijudicial agency, the petition shall be filed only in the CA,
unless otherwise provided by law or the Rules.
c. Regional Trial Court, if it relates to acts / omissions of a lower
court / corporation / board / officer / person. RTC must
exercise jurisdiction over the territorial area
d. Sandiganbayan, if it is in aid of its appellate jurisdiction.
[Rule 65, Sec. 4]
e. The COMELEC in election cases involving an act or omission
of the MTC/RTC
2. Order to Comment - If the petition is sufficient in form and
substance to justify such process, the court shall issue an order

requiring the respondent(s) to comment on the petition within 10

days from receipt of a copy thereof.
Such order shall be served on the respondents in such manner
as the court may direct, together with a copy of the petition and
any annexes thereto. [Rule 65, Sec. 6]
3. Hearing or Memoranda - After the comment or other pleadings
required by the court are filed, or the time for the filing thereof
has expired, the court may hear the case or require the parties
to submit memoranda. [Rule 65, Sec. 8]
4. Judgment - If after such hearing or submission of memoranda or
the expiration of the period for the filing thereof, the court finds
that the allegations of the petition are true, it shall render
judgment for the relief prayed for or to which the petitioner is
entitled.
The court, however, may dismiss the petition if it finds the same
to be:
a. Patently without merit,
b. Prosecuted manifestly for delay, or
c. The questions raised therein are too unsubstantial to require
consideration. [Rule 65, Sec. 8]
5. Service and Enforcement of Order or Judgment - A certified copy
of the judgment rendered shall be served upon the court, quasijudicial agency, tribunal, corporation, board, officer or person
concerned in such manner as the court may direct, and
disobedience thereto shall be punished as contempt.
RELIEFS PETITIONER IS ENTITLED TO
Petitioner may be entitled to:
1. Injunctive relief Court may may issue orders expediting the
proceedings, and it may also grant a temporary restraining order
or a writ of preliminary injunction for the preservation of the
rights of the parties [Rule 65, Sec. 7]
2. Incidental reliefs as law and justice may require [Rule 65, Secs. 1
and 2]
3. Other reliefs prayed for or to which the petitioner is entitled
[Rule 65, Sec. 8]

QUO WARRANTO

INJUNCTIVE RELIEF
Rule 65, Sec. 7 provides for the issuance of a temporary restraining
order, and not only for a writ of preliminary injunction, but such order
shall be subject to the rules on the grounds and duration thereof.
[Regalado]
General Rule: The petition shall not interrupt the course of the principal
case.
The public respondent shall proceed with the principal case WITHIN 10
DAYS from filing of the petition for certiorari with the higher court,
absent a TRO or preliminary injunction, or upon its expiration. Failure
may be a ground for an administrative charge (AM No. 07-7-12-SC)
Exception: Unless a TRO or preliminary injunction has been issued
against the public respondent from further proceedings in the case
FACTS/OMISSIONS OF MTC/RTC IN ELECTION CASES
In election cases involving an act or an omission of a municipal or
regional trial court, the petition shall be filed EXCLUSIVELY with the
Commission on Elections, in aid of its appellate jurisdiction (Rule 65,
Sec. 4, as amended in AM No. 07-7-12-SC)
EFFECTS OF FILING AN UNMERITORIOUS PETITION
The court, however, may dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to require consideration.
(Rule 65, Sec. 8)
In these cases, the court may award TREBLE COSTS solidarily against
petitioner and counsel, in addition to administrative sanctions
Court may impose, motu proprio, based on res ipsa loquitur, other
disciplinary sanctions for patently dilatory and unmeritorious petitions
(AM No. 07-7-12-SC)
NATURE

Quo Warranto literally means by what authority.

public office, position or franchise;

It is a prerogative writ by which the government can call upon any

person to show by what warrant he holds a public office or exercises a
public franchise.
When the inquiry is focused on the legal existence of a body politic, the
action is reserved to the State in a proceeding for quo warranto or any
other direct proceeding.
Subject Matter: The subject matter of a quo warranto may be a public
office, franchise, or position.
NOTE: NOTE: Rule 66 deleted an office in a corporation created
by authority of law. This falls under the jurisdiction of the SEC
under PD 902-A.
Jurisdiction to Issue Writ: Original jurisdiction to issue the writ of quo
warranto is vested in the SC, CA, and RTC.
DISTINGUISHED
ELECTION CODE

FROM

QUO

WARRANTO

IN

THE

OMNIBUS

OEC Sec. 253

Filed by whom
Solicitor General or Public
Prosecutor in behalf of the Republic;
Any voter
Individual
Where filed
COMELEC, if against election
of a Member of Congress,
By SolGen: RTC Manila, CA or SC;
Regional, Provincial or City
Otherwise, RTC with jurisdiction
Officer;
over territorial area where
respondent resides, CA or SC
appropriate RTC or MTC, if
against a municipal or
barangay officer
Period for filing
Within 1 year from ouster, or from
Within 10 days after
the time the right to the position
proclamation of results
arose
Against whom, grounds
A person, who usurps, intrudes into Ineligibility or disloyalty to the
or unlawfully holds or exercises a
Republic

A public officer, who does or suffers

an act which, by provision of law,
constitutes a ground for forfeiture
of office
In fine, Rule 66 applies to quo warranto IN GENERAL while election law
governs quo warranto against SPECIFIED elective officials.
AGAINST WHOM MAY THE ACTION BE BROUGHT (Rule 66, Sec. 1)
1. A PERSON who USURPS, intrudes into, or unlawfully holds or
exercises a public office, position, or franchise
2. A PUBLIC OFFICER who does or suffers an act, which, by
provision of law, constitutes a ground for FORFEITURE OF OFFICE
3. An ASSOCIATION which acts as a corporation within the
Philippines without being legally incorporated or without lawful
authority to act
Actions for quo warranto against corporations with regard to franchises
and rights granted to them, as well as their dissolution now fall under
the jurisdiction of the RTC (Securities Regulation Code, Sec. 5.2)

ROC Rule 66

WHO MAY COMMENCE THE ACTION (Rule 66, Sec. 2 5)

General Rule: The Government, through the Solicitor General or public
prosecutor
1. MANDATORY (Sec. 2); When to commence:
a. When directed by the President, or
b. When upon complaint or otherwise he has good reason to
believe that any case in Sec. 1 can be established by proof
2. DISCRETIONARY (Sec. 3); When to commence:
a. This is upon permission of court
b. Bringing such action (ex relatione) at the request and upon
the relation of another person, PROVIDED:
(1) Officer bringing it may require an indemnity bond
(2) Leave of court will have to be obtained
Exception: An
individual may commence the action (Sec. 5);
PROVIDED:
1. He institutes the action in his own name

a. He does not have to secure the intervention of the Solicitor

General or public prosecutor
b. No leave of court necessary
2. HOWEVER, he must claim to be entitled to the office or position
usurped or unlawfully held or exercised by another.
a. He must aver and be able to show that he is entitled to the
office in dispute. There must be an allegation that
respondent is either a de facto or de jure officer
PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE REDUCED
(Rule 66, Sec. 8)
Period to File: The action must be commenced within 1 year from the
date after the cause of such ouster or the right of the petitioner to hold
such office or position arose. (Sec. 11)
Laches does not attach and failure to file quo-warranto proceedings
does not operate adversely against a dismissed government employee
where it was the act of responsible government official which
contributed in the delay of filing of complaint for reinstatement
(Cristobal v. Melchor).
Reduction of Period: The court may reduce the period for filing and for
all other proceedings in the action to secure most expeditious
determination of the matters involved therein, consistent with the rights
of the parties.
JUDGMENT IN QUO WARRANTO ACTION (Rule 66, Sec. 9)
When respondent is found guilty of usurping, intruding, or unlawfully
holding, judgment rendered:
1. That such respondent is ousted and altogether excluded
therefrom
2. That petitioner or relator, as the case may be, recover his costs
3. May determine the respective rights in and to the public office,
position, or franchise of all parties
RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE
(Rule 66, Sec. 10)
Rights of persons adjudged entitled to office:
1. Execution of the office

After taking oath of office and executing any official bond

required by the law
2. Demand from respondent all the books and papers appertaining
to the office to which judgment relates
Respondents neglect or refusal to comply with the demand
is punishable by contempt
3. Bring an action for damages against respondent
For damages sustained by him by reason of the usurpation
Must be commenced within 1 year after entry of judgment
establishing petitioners right to the office in question (Sec.
11)

EXPROPRIATION
NATURE
Eminent Domain is the right and authority of the State, as sovereign, to
take private property for public use upon observance of due process
and payment of just compensation.
It is a governments right to appropriate, in the nature of a compulsory
sale to the State, private property for public use or purpose.
Requisites for the Valid Exercise of the Right
1. There must be due process of law
2. Payment of just compensation
3. Taking must be for public use
Subject Matter of Expropriation: All properties can be expropriated,
EXCEPT:
1. Money (futile; because of just compensation)
2. Choses in action (conjectural in nature; validity and its value)
When is Expropriation Proper:
1. When the owner refuses to sell
2. When he agrees to sell but an agreement as to the price cannot
be reached.
MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION
Contents of the Complaint (Rule 67, Sec. 1)
1. State with certainty the right and purpose of expropriation
a. Where the right of the plaintiff to expropriate is conferred by
law, complaint does not have to state with certainty the right
of expropriation (MRR Co. v. Mitchel)
2. Describe the real or personal property sought to be expropriated
3. Joining of defendants
a. All persons owning or claiming to own, or occupying, any part
thereof or interest therein. showing separate interest of each
defendant, as far as practicable
b. Make the following averments, if needed:
(1) If title appears to be in the Republic, although occupied
by private individuals
(2) If title is otherwise obscure or doubtful so that plaintiff
cannot with accuracy or certainty specify who the real
owners are

Where to File: RTC where property is located. MTC has no jurisdiction

since an action for expropriation is incapable of pecuniary estimation.
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION
First Stage: Determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its exercise in the
context of the facts involved. This ends with either:
1. An order of dismissal, or
2. An order of expropriation
Second Stage: Determination of the just compensation for the property
sought to be taken.
NOTE: Multiple appeals is allowed in expropriation. Aggrieved party may
appeal in each stage separately.
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION
OF THE REAL PROPERTY, IN RELATION TO R.A. NO. 8974
Plaintiff shall have the right to take or enter upon possession of the real
property upon:
1. Filing of complaint or at any time thereafter, and after due notice
to defendant
4. Making preliminary deposit (Rule 67, Sec. 2)
Preliminary deposit:
Provide damages if court finds that
the
plaintiff has no right to
expropriate
Purpose
s

Value

Where

Advance
payment
for
just
compensation, if property is finally
expropriated
If Real Property - Equivalent to the
assessed value of the property for
purposes of taxation
If Personal Property Value shall be
provisionally ascertained and fixed by
the court
With the authorized government

to
deposit

Form of
Deposit

depositary
Amount is to be held by such bank
subject to the orders of the court
Deposit shall be in money
UNLESS, in lieu of money, court
authorizes deposit of a certificate of
deposit of a government bank of the
Republic, payable on demand to the
authorized government depositary

After the deposit, court shall order sheriff or proper officer to place
plaintiff in possession of the property. Such officer shall promptly submit
a report to the court with service of copies to parties.
NOTE: Preliminary deposit is only necessary if the plaintiff desires entry
on the land upon its institution of the action. Otherwise, he could always
wait until the order of expropriation is issued before it enters upon the
land.
Once the preliminary deposit has been made, the expropriator is
entitled to a writ of possession as a matter of right, and the issuance of
said writ becomes ministerial on the part of the trial court (Biglang-Awa
v. Bacalla)

On Nov. 7, 2000, Congress enacted RA 8974, a special law to facilitate

the acquisition of right of way, site, or location for national government
infrastructure projects:
RULE 67,
SEC. 2

FOR WRIT OF
POSSESSION

AMOUNT OF
PAYMENT OR
DEPOSIT

Equal to
assessed
value of
real
property for
purposes of
taxation

Expropriati
on in
general

Governmen
t is

RA 8974
Only when
national
government
expropriates
property for
national
government
infrastructure
projects
Government is
required to make

immediate
payment to owner
upon filing of
complaint
Equal to the
market value of
the property as
stated in the tax
declaration or
current relevant
zonal value of BIR,
whichever is
higher, and value
of improvements
and/or structures
using replacement
cost method

Remember the Applicable Rules:

1. RA 8974 specifically governs expropriation for national
government infrastructure projects
2. Sec 19, LGC governs the exercise of the power of eminent
domain by LGUs through an enabling ordinance
NEW SYSTEM OF
COMPENSATION

On RA 8974

APPLICATION

TO ISSUE

required to
make
preliminary
deposit

IMMEDIATE

PAYMENT

OF

INITIAL

JUST

For the acquisition of right-of-way, site or location for any national

government infrastructure project through expropriation, upon the filing
of the filing of the complaint, and after due notice to the defendant, the
implementing agency shall immediately pay the owner of the property
the amount equivalent to the sum of (1) 100 percent of the value of the
property based on the current relevant zonal valuation of the BIR; and
(2) the value of the improvements and/or structures as determined
under Sec. 7 of RA 8974 (Sec. 4, RA 8974)
DEFENSES AND OBJECTIONS
No Objection Or Defense To The
Taking

Has Objection Or Defense To

The Taking

What to file and serve

Notice of appearance and

manifestation

2. No party appears to defend the case

Answer to the complaint

Contents of the Order:

1. That the plaintiff has a lawful right to take the property sought to
be expropriated
2. For public use or purpose described in the complaint
3. Upon payment of just compensation
a. To be determined as of the date of taking, or
b. The filing of the complaint, whichever came first

Period to file
Time stated in the summons
Contents
Specifically
designating/identifying the
Manifestation to the effect that
property in which he claims to
he has no objection or defense;
have an interest in and the
nature and extent of the
Specifically
interest;
designating/identifying the
property in which he claims to be
ALL his objections and defenses
interested
to the complaint or any
allegation therein
Prohibited

Remedy of Defendant: Order of condemnation is final, not interlocutory.

Hence, it is appealable.
Effects of the Order:
1. Plaintiff not permitted to dismiss or discontinue the proceeding
a. EXCEPTION: On such terms as the court deems just and
equitable, plaintiff may be allowed to dismiss or discontinue
2. Forecloses any further objections to the right to expropriate,
including the public purpose of the same

Counterclaim, cross-claim, third

party complaint in any pleading
NOTE: A defendant waives all defenses and objections not so alleged,
but the court, in the interest of justice, may permit amendments to the
answer not to be made later than ten (10) days from filing thereof.
NOTE: In any case, in the determination of just compensation,
defendant may present evidence as to the amount of compensation to
be paid.
NOTE: The defendant CANNOT be declared in default for failure to file
Answer. Failure to file an answer would result to the courts judgment on
the right to expropriate without prejudice to the right to present
evidence on the just compensation and to share in the distribution of
the award.
ORDER OF EXPROPRIATION (Rule 67, Sec. 4)
Order of Expropriation - It is the order declaring that the plaintiff has
lawful right to take the property.
When Issued: It is issued when:
1. Objections or defenses against
expropriate are overruled; or

the

right

of

plaintiff

to

ASCERTAINMENT OF JUST COMPENSATION (Rule 67, Sec. 5)

Upon rendition of the Order of Expropriation, the court issues an Order
of Appointment.
Order of Appointment:
1. Court appoints not more than 3 commissioners to ascertain and
report to the court the just compensation for the property
2. Contents:
a. It shall designate the time and place of the first session of
hearing to be held by commissioner
b. Specify the time within which their report shall be submitted
to court
3. Procedures:
a. Copies of the Order shall be served on the parties
b. Objections to appointment:
(1) Filed with the court within 10 days from service
(2) Objections shall be served to all commissioners
(3) Resolved within 30 days after all commissioners shall
have received copies

Just Compensation
Just Compensation has been defined as the full and fair equivalent of
the property taken from its owner by the expropriator. Just
compensation means not only the correct determination of the amount
to be paid but also the payment of the land within a reasonable time
from its taking.

2. They shall assess the consequential damages to the property not

taken and deduct from such the consequential benefits to be
derived by owner
a. In no case shall the consequential benefits assessed exceed
the consequential damages
b. In no case shall the owner be deprived of the actual value of
his property taken

Market Value

Report by Commissioners (Rule 67, Sec. 7)

Is that sum of money which a person desirous but not compelled to

buy, and an owner willing but not compelled to sell, would agree on as a
price to be given and received therefore. [BPI v. CA (2004)]

Commissioners shall make a full and accurate report to the court of all
their proceedings.

Time when market value should be fixed:

1. When plaintiff takes possession before institution of proceedings,
value should be fixed as of the TIME OF TAKING
2. When the taking coincides with or subsequent to the
commencement of proceedings, DATE OF FILING of the
complaint should be the basis

APPOINTMENT OF COMMISSIONERS; COMMISSIONERS REPORT;

COURT ACTION UPON REPORT
Qualifications of the Commissioners:
1. Competent and
2. Disinterested
Proceedings by Commissioners (Rule 67, Sec. 6)
1. Commissioners shall first take and subscribe an oath that they
will faithfully perform their duties. Oath shall be filed in court
together with other proceedings.
2. Evidence may be introduced by either party before the
commissioners who are authorized to administer oaths on
hearings before them
Duties of Commissioners:
1. View and examine the property sought to be expropriated and its
surroundings, and may measure the same
a. Due notice to parties to attend must first be given UNLESS
the parties consent to the contrary
b. After this, each party may argue the case

Such proceeding shall not be effectual until court has accepted their
report
and
rendered
judgment
in
accordance
with
their
recommendations.
Report shall be filed within 60 days from date commissioners were
notified of their appointment. Time may be extended by court
discretion,
Upon filing, clerk shall serve copies of the Commissioners Report to all
interested parties. Clerk includes a notice that parties are allowed to file
objections to the report within 10 days from notice
Action Upon Commissioners Report (Rule 67, Sec. 8)
1. When court renders judgment: Upon
a. Filing of objections to the report or of the agreement thereon
of all interested parties; or
b. Expiration of 10-day period to object from the report
2. Court may:
a. After hearing, accept the report and render judgment in
accordance therewith
b. Recommit to commissioners for further report of facts, for
cause shown
c. Set aside the report and appoint new commissioners;
d. Accept the report in part and reject in part
e. Make such order or render such judgment as shall secure the
plaintiff and the defendant
RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT (Rule 67,
Sec. 10)

When will the right of plaintiff TO ENTER the property sought to be

appropriated or RIGHT TO RETAIN it should he have taken immediate
possession thereof accrue?
1. RIGHT TO RETAIN: Upon filing of complaint, serving notice to
defendant, and after depositing the assessed value of property
for taxation purposes with authorized government depositary
(Sec. 2)
2. RIGHT TO ENTER:
a. Upon payment by plaintiff to defendant of compensation
fixed by judgment, with legal interest from taking (Sec. 10)
b. After tender to defendant of amount so fixed and payment of
the costs (Sec. 10)
EFFECT OF RECORDING OF JUDGMENT

FORECLOSURE OF REAL ESTATE MORTGAGE

NATURE
Foreclosure of Mortgage is a proceedings in a court of justice conducted
according to legal forms by which the mortgagee or his successors or
one who has by law succeeded to the rights and liabilities of the
mortgagee undertakes to dispose of, to ban, to cut-off the legal and
equitable claims of lien holders or of the mortgagors or those who have
succeeded to the rights and liabilities of the mortgagor.
The cause of action in a foreclosure suit is generally the non-payment of
the mortgage loan, but it may be on other grounds which under the
contract warrant the foreclosure, such as the violation of the other
conditions therein.

Contents of the Judgment

1. Statement of the particular property or interest therein
expropriated, with adequate description
2. Nature of the public use or purpose for which it is expropriated

Foreclosure may be made:

1. Judicially governed by Rule 68
2. Extrajudicially proper only when so provided in contracts in
accordance with Act. No. 3135; governed by A.M. No. 99-10-050.

In case of real estate, a certified true copy of such judgment shall be

recorded in the registry of deeds of the place in which property is
situated. Effect is to vest title.

COMPLAINT IN AN ACTION FOR FORECLOSURE (Rule 68, Sec. 1)

Title in Expropriation is vested:

1. If PERSONAL property, upon payment of just compensation (Sec.
10)
2. If REAL property, upon payment of just compensation AND
registration of property (Sec. 13)

Venue: A foreclosure action must be brought in the RTC of the province

where the land or any part thereof is situated
Contents of the Complaint:
1. The following dates:
a. Date and due execution of the real mortgage
b. Date of the note or other documentary evidence of the
obligation secured by the mortgage
2. Its assignments, if any
3. The following names and residences:
a. Of the mortgagor and mortgagee
b. Of all persons having or claiming an interest in the property
subordinate in the right to that of the holder of the mortgage
4. Description of the mortgaged property
5. Amount claimed to be unpaid
Defendants in a judicial foreclosure
1. Persons obliged to pay the mortgage debt
2. Persons who own, occupy, or control the mortgaged premises or
any part thereof

3. Transferee or grantee of the property

4. Second mortgagee or junior encumbrancers or any person
claiming a right or interest in the property subordinate to the
mortgage sought to be foreclosed to foreclose their equity of
redemption
But if the action is by the junior encumbrancer, first
mortgagee MAY also be joined as defendant
5. Mortgagor even if not owner of the mortgaged property should
be included to satisfy the deficiency
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE (Rule 68,
Sec. 2)
If upon trial, the facts set forth in the complaint are true, the court shall:
1. Ascertain the amount due to the plaintiff upon the mortgage
debt or obligation including interests, other charges approved,
costs
2. Render judgment for the sum so found due
3. Order that the amount be paid to the court or to judgment
obligee
a. Within a period of not less than 90 days but not more than
120 days from entry of judgment
b. In default of such payment, property shall be sold at public
auction to satisfy judgment
Judgment on Foreclosure is the judgment of the court ordering the
debtor to pay within 90-120 days from entry of judgment after
ascertaining the amount due to plaintiff
NOTE: Multiple appeals are allowed under Rule 68
1. Judgment of foreclosure is appealable (Sec. 2)
2. Order confirming foreclosure sale is a final disposition with
respect to the issue of validity and regularity of the sale (Sec. 3)
3. Deficiency judgment is a disposition on the merits of the
correctness of such award (Sec. 6)
SALE OF MORTGAGED PROPERTY; EFFECT (Rule 68, Sec. 3)
When Proper: When Defendant fails to pay the amount of judgment
within the period specified, the court shall order the property to be sold.

How: By motion and under the provisions of Rule 39.

It is the ministerial duty of the court to order the foreclosure of the
property when the debt is not paid within the period specified.
A motion for such order of sale is non-litigable and may be made ex
parte. [Govt of P.I. v De las Cajigas (1931)]
NOTE: Such sale shall not affect the rights of persons holding prior
encumbrances upon the property or a part thereof.
Order of Confirmation - When confirmed by an order of the court, also
upon motion, it shall operate to divest the rights in the property of all
the parties to the action and to vest their rights in the purchaser,
subject to such rights of redemption as may be allowed by law.
Confirmation of the sale of mortgaged real property vests title in the
purchaser including the equity of redemption, it retroacts to the date of
the sale. It cuts off all the rights or interests of the mortgagor and of the
mortgagee. [Lozame v Amores (1985]].
The motion for the confirmation of the sale requires a hearing to grant
an opportunity to the mortgagor to show cause why the sale should not
be confirmed [Tiglao v Botones, 90 Phil 275], as by proof of
irregularities therein or of gross inadequacy of the price. Lack of notice
vitiates the confirmation of the sale.
Writ of Possession - Upon the finality of the order of confirmation or
upon the expiration of the period of redemption when allowed by law,
the purchaser at the auction sale or last redemptioner, if any, shall be
entitled to the possession of the property, unless a third party is
actually holding the same adversely to the judgment obligor.
DISPOSITION OF PROCEEDS OF SALE (Rule 68, Sec. 4)
1. Amount realized from the foreclosure sale, less costs of the sale,
shall be paid to the person foreclosing
2. When there is a balance or residue after paying the mortgage
debt, the same shall be paid to junior encumbrancers in the
order of priority as ascertained by the court

3. If there are no junior encumbrancers, the residue goes to the

mortgagor or his authorized agent, or any other person entitled
to it

which is to rely upon his mortgage alone and foreclosing the

same within the statute of limitations (Sec. 7, Rule 86)
JUDICIAL FORECLOSURE vs. EXTRAJUDICIAL FORECLOSURE

DEFICIENCY JUDGMENT; INSTANCES WHEN COURT

RENDER DEFICIENCY JUDGMENT (Rule 68, Sec. 6)

CANNOT

Deficiency Judgment is judgment rendered by the court holding

defendant liable for any unpaid balance due to the mortgagee if the
proceeds from the foreclosure sale do not satisfy the entire debt.
In extrajudicial foreclosure, the mortgagee can also recover by action
any deficiency in the mortgage account which was not realized in the
foreclosure sale. [PNB v. CA (1999)]
A motion for deficiency judgment may be made only after the sale and
after it becomes known that a deficiency exists. [Governor of the
Philippine Islands v. Torralba Vda. de Santos (1935)]
If the debtor dies, the deficiency may be filed as a claim against his
estate. [Rule 86, Sec. 7]
How Done:
1. Judgment creditor files motion for deficiency judgment
2. Court shall then render judgment against defendant for any such
balance for which he may personally be liable to plaintiff
3. Execution may then issue immediately if balance is all due at the
time of rendition of judgment
a. If not, plaintiff shall be entitled to execution at such time as
the balance remaining becomes due
Instances when court CANNOT render deficiency judgment
1. Recto Law (Art. 1484, par. 3)
2. When mortgagor is a non-resident and is not found in the
Philippines
3. When mortgagor dies, mortgagee may file his claim with the
probate court (Sec. 7, Rule 86)
4. If mortgagor is a third person but not solidarily liable with debtor
No deficiency judgment may be rendered against owner who
is not a mortgagor and has not assumed personal liability for
the debt
Remedy is ordinary action against debtor
5. In case of a mortgage debt due from the estate of a deceased
mortgagor and the mortgage creditor availed of the third remedy

JUDICIAL
FORECLOSURE
Requires court
intervention
There is only an
equity of redemption
Governed by Rule 68
There could be a
Deficiency Judgment
Recovery of
deficiency can be
done by mere
motion

EXTRAJUDICIAL
FORECLOSURE
No court intervention
necessary
Right of redemption
exists
Governed by Act 3135
No Deficiency
judgment because
there is no judicial
proceeding but
recovery of deficiency
is allowed
Recovery of deficiency
is through an
independent action

EQUITY OF REDEMPTION vs. RIGHT OF REDEMPTION

Equity of Redemption is the right of the defendant mortgagor to
extinguish the mortgage and retain ownership of the property by paying
the secured debt within the 90 to 120 day period after entry of
judgment or even after the foreclosure sale but prior to its confirmation
EQUITY OF
REDEMPTION
Right of the defendant
mortgagor to
extinguish the
mortgage and retain
ownership of the
property by paying
the secured debt
within the 90 to 120
day period after entry
of judgment or even
after the foreclosure

RIGHT OF
REDEMPTION
Right of the debtor, his
successor in interest,
or any judicial creditor
of said debtor or any
person having a lien
on the property
subsequent to the
mortgage or deed of

sale but prior to its

confirmation
Period is 90-120 days
after entry of
judgment or even
after foreclosure sale
but prior to
confirmation
Governed by Rule 68
JUDICIAL
FORECLOSURE
No right of
redemption, only
equity of redemption

EXCEPT: Those
granted by banks or
banking institutions as
provided by the
General Banking Act
(mortgagor may
exercise a right of
redemption)

PARTITION
NATURE
Period is 1 year from
date of registration of
certificate of sale
Governed by Sec. 2931, Rule 39
EXTRAJUDICIAL
FORECLOSURE
Mortgagor has a right
to redeem the
property within one
year from registration
of the deed of sale
EXCEPT: Sec. 47 of the
General Banking Act
provides that in case
of extrajudicial
foreclosure, juridical
persons shall have the
right to redeem until,
but not after, the
registration of the
certificate of
foreclosure sale with
the Register of Deeds
which in no case shall
be more than 3
months after
foreclosure, whichever
is earlier

NOTE: What Sec. 2 and 3, Rule 68 provide for is the mortgagors

EQUITY, nor right, of redemption. - This may be exercised by him even
beyond the period to pay the judgment obligation and even after the
foreclosure sale itself, provided it be before the order of the
confirmation of sale

Partition is the process of dividing and assigning the property owned in

common among the various co-owners thereof in proportion to their
respective interests in said property.
Partition may be:
1. JUDICIAL Procedure is Rule 69
2. EXTRAJUDICIAL No court intervention required
The partition of property may be made voluntarily (by agreement) or
compulsorily under the Rules. Even if the parties had resorted to judicial
partition, they may still make an amicable partition of the property.
An action for partition and accounting under Rule 69 is in the nature of
an action QUASI IN REM. Such an action is essentially for the purpose of
affecting the defendants interest in a specific property and not to
render a judgment against him.
WHEN CAN PARTITION BE MADE
General Rule: It can be made anytime. The right to demand partition is
imprescriptible.
Exception to Imprescriptibility of Right to Partition: If a co-owner asserts
adverse title to the property. In which case, period of prescription runs
from such time of assertion of adverse title.
Exceptions to the Right to Ask for Partition:
1. When there is a stipulation against it, not exceeding 10 years
[Art. 494, Civil Code]
2. When partition is prohibited by the donor or testator for a period
not exceeding 20 years [Art. 494, 1083 Civil Code]
3. When partition is prohibited by law (e.g. ACP, party wall) [Art.
494, Civil Code]
4. When the property is not subject to a physical division and to do
so would render it unserviceable for the use for which is it
intended [Art. 495 Civil Code] or
5. When the condition imposed upon voluntary heirs before they
can demand partition has not yet been fulfilled. [Art. 1084 Civil
Code]

WHO MAY FILE COMPLAINT;

DEFENDANTS (Rule 69, Sec. 1)

WHO

SHOULD

BE

MADE

This is also a complete proceeding and the order or decision is

appealable.

Who May File: A person having the right to compel partition of real
estate, or of personal property, or both real and personal property (Sec.
1, Sec. 13)

When there was a prior partition, the fact that the share of each co-heir
has not been technically described and the title over the whole lot
remains uncancelled does not negate such partition.

Venue: An action for partition should be filed in the RTC of the province
where the property or part thereof is situated.

There can be no partition again because there is no more common

property. [Noceda v. CA (1999)]

Parties
1. The plaintiff is the person who is supposed to be a co-owner of
the property
2. Defendants are all the co-owners, who are indispensable parties
3. Creditors or assignees of co-owners may also intervene and
object to the partition
MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION
Contents of the Complaint:
1. Nature and extent of his title
2. Adequate description of the real estate sought to be partitioned
3. Joining of Defendants All other persons interested in the
property
TWO STAGES IN EVERY ACTION FOR PARTITION
First Stage: Determination of the propriety of partition
This involves a determination of whether the subject property is owned
in common and whether all the co-owners are made parties in the case.

ORDER OF PARTITION AND PARTITION BY AGREEMENT

Order of Partition: The court issues an order of partition AFTER the trial
and the court finds that the plaintiff has a right to partition. The court
orders the partition of the property.
The parties may make the partition proper themselves, by agreement:
1. After the issuance of the order of partition, the parties will then
be asked if they agree to make partition of the property among
themselves
2. If they agree, proper instruments of conveyance will be executed
to effect the partition.
3. After the execution of instruments of conveyance, the court shall
confirm the partition through a final order.
4. The final order of partition and the instruments of conveyance
shall be registered with the Registry of Deeds where the property
is situated. [Rule 69, Sec. 2]

The order may also require an accounting of rents and profits recovered
by the defendant. This order of partition is appealable. [Miranda v.
Court of Appeals (1976)]

PARTITION
BY
COMMISSIONERS;
APPOINTMENT
OF
COMMISSIONERS; COMMISSIONERS REPORT; COURT ACTION
UPON COMMISSIONERS REPORT

If not appealed, then the parties may partition the common property in
the way they want. If they cannot agree, then the case goes into the
second stage. However, the order of accounting may in the meantime
be executed. [De Mesa v. CA (1994)]

When proper: If parties fail to agree on the manner of partition,

commissioners are appointed to make partition.

Second Stage: Actual partitioning of the subject property

How Done: The court appoints not more than 3 competent and
disinterested commissioners to make the partition. (Sec. 3)

Oath of the Commissioners: Before entering into their duties,

commissioners must first make an oath that they will faithfully perform
their duties as commissioners. Such oath is to be filed in court. (Sec. 4)
Duties of the Commissioners:
1. They shall view and examine real estate, after due notice to
parties to attend at such view and examination
2. They shall hear the parties as to their preference in the portion
to be set apart to them
3. They shall also determine the comparative value thereof
4. They shall set apart the same to the parties in lots or parcels as
will be most advantageous and equitable considering the
improvements, situation, and quality of the parts thereof
Assignment of Real Estate to One Party (Sec. 5)
1. General Rule: If the commissioners should determine that the
real estate cannot be divided without prejudice to the interests
of the parties, the court may order that the property be assigned
to one of the parties willing to take the same PROVIDED he pays
to the other parties such amounts as the commissioners deem
equitable
2. Exception: if one of the parties asks that the property be sold
instead of being so assigned, then the court shall ORDER the
commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine
Commissioners Report: Commissioners shall make a full accurate
report to the court. Contents:
1. All proceedings as to the partition, or
2. The assignment of real estate to one of the parties, or
3. The sale of the same
Upon filing of Commissioners Report:
1. Clerk shall serve copies on all interested parties with notice that
they are allowed to file objections
2. Parties may file objections within 10 days upon receipt of notice
Hearing on the Report (Sec. 7)
1. When Conducted:
a. Upon expiration of the 10 day period for filing objections; or
b. Even before expiration but after the interested parties have
filed their objections or their statement of agreement
therewith

2. The court may:

a. Accept the report and render judgment in accordance
therewith; or
b. Recommit the same to commissioners for further report of
facts, for cause shown; or
c. Set aside the report and appoint new commissioners; or
d. Accept the report in part and reject in part;
e. Make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of its
value, if assigned or sold
JUDGMENT AND ITS EFFECTS (Rule 69, Sec. 11)
Contents of Judgment

Effects of Judgment

If Actual Partition Is Properly Made

Judgment shall state definitely, by
Judgment shall vest in each
metes and bounds and adequate
party to the action in severalty
description, the particular portion
the portion of the real estate
of the real estate assigned to each
assigned to him.
party.
If The Whole Property Is Assigned To One Of The Parties After
Payment
Judgment shall vest in the party
Judgment shall state the fact of
making the payment the whole
such payment and of the
of the real estate free from any
assignment of the real estate to
interest on the part of the other
the party making the payment.
parties.
If Property Is Sold And Sale Is Confirmed By The Court
Judgment shall state the name of
the purchaser or purchasers and a
definite description of the parcels
of real estate sold to each
purchaser

Judgment shall vest the real

estate in the purchaser(s),
making the payment(s) free
from the claims of any parties
to the action.

A certified copy of the judgment shall in either case be recorded in the

registry of deeds of the place in which the real estate is situated. [Rule
69, Sec. 11]

PARTITION OF PERSONAL PROPERTY

FORCIBLE ENTRY AND UNLAWFUL DETAINER

The provisions of Rule 69 shall apply to partitions of estates composed

of personal property, or of both real and personal property, in so far as
the same may be applicable. (Sec. 13)

NATURE

PRESCRIPTION OF ACTION

Reason: The owners of property have no authority to use force and

violence to eject alleged usurpers who were in prior physical possession
of it. They must file the appropriate action in court and should not take
the law in their own hands.

The right of action to demand partition does not prescribe [De Castro v.
Echarri (1911)], EXCEPT where one of the interested parties openly and
adversely occupies the property without recognizing the co-ownership
[Cordova v. Cordova (1958)] in which case, acquisitive prescription may
set in.
If a co-owner repudiates the co-ownership and makes known such
repudiation to the other co-owners, then partition is no longer a proper
remedy of the aggrieved co-owner. He should file an accion
reivindicatoria, which is prescriptible. [Roque v. IAC (1988)]

Ejectment cases are SUMMARY proceedings intended to provide an

expeditious means of protecting actual possession of property.

NOTE: The Rule on Summary Procedure applies only in cases

filed before the MTC
DEFINITIONS AND DISTINCTIONS
FORCIBLY ENTRY
(Detentacion)
Possession of land by
defendant is unlawful
from the beginning as
he acquires
possession by force,
intimidation, strategy,
threat, or stealth
No previous demand
for defendant to
vacate the premises is
necessary
Plaintiff must prove
that he was in prior
physical possession of
the premises until he
was deprived thereof
by defendant
The 1-year period is
generally counted
from date of actual
entry on land
The issue centers on

UNLAFUL DETAINER
(Desahucio)
Possession is
inceptively lawful but
it becomes illegal by
reason of the
termination of his right
to possession of the
property under his
contract with the
plaintiff
Demand is
jurisdictional if the
ground is nonpayment of rentals or
failure to comply with
lease contract
Plaintiff need not have
been in prior physical
possession
Period is counted from
the date of last letter
of demand
The issue centers on

who was in prior

possession de facto.

whether the
defendants right to
possess has expired or
not.

DISTINGUISHED
FROM
ACCION
PUBLICIANA,
REINVINDICATORIA, ACCION INTERDICTAL
The Three Kinds of Action for Recovery of Possession
ACCION
INTERDICTAL

ACCION
PUBLICIANA

ACCION
REINVINDICATOR
IA

Summary
action for
recovery of
physical
possession
where the
dispossession
has not lasted
for more than
1 year

A plenary
action for
recovery of
real right of
possession
when
dispossessi
on has
lasted for
more than
one year

An action for
recovery of
ownership, which
necessarily
includes the
recovery of
possession

All cases of
forcible entry
and unlawful
detainer,
irrespective of
the amount of
damages or
unpaid
rentals
sought to be
recovered
should be
brought to
the MTC.
However, if
not brought
within 1 year,
RTC has
jurisdiction

RTC has jurisdiction if value of

the property exceeds P20,000
outside Metro Manila; exceeds
P50,000 within Metro Manila.
MTC has jurisdiction if value of
property does not exceed the
above amounts
(RA 7691 expanded the
jurisdiction of 1st level courts)

HOW TO DETERMINE JURISDICTION

In Accion Interdictal: In the proper Municipal Trial Court
ACCION

NOTE: Amount of rents and damages claimed does not affect the
jurisdiction of the MTC because they are only incidental or
accessory to the main action
HOWEVER, municipal courts have no jurisdiction over a FEUD case
involving agricultural tenants. Jurisdiction is with the HLURB
In accion publiciana and accion reinvindicatoria:
1. RTC has jurisdiction where the assessed value of the property
exceeds P20K or, in MM, P50k
2. MTC has jurisdiction if the assessed value does not exceed said
amounts
WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM
MAINTAINED
Who May Institute Proceedings (Rule 70, Sec. 1)
1. In Forcible Entry:
a. A person deprived of possession of any land or building by
force, intimidation, strategy, threat, or stealth (FISTS)
2. In Unlawful Detainer:
a. Lessor, vendor, vendee or other person against whom any
land or building is unlawfully withheld
b. Or their legal representatives or assigns
Period of Filing: Within ONE (1) year after such unlawful deprivation or
withholding of possession. Reckoning points:
1. For forcible entry, it is counted from date of entry or taking of
possession
2. For unlawful detainer, it is counted from:
a. Date of last demand to vacate in case of non-payment of rent
or non-compliance with conditions of the lease
b. Date of notice to quit, in case of tacit renewal of lease
c. Date of revocation of the permit in case of occupancy on
mere tolerance or under temporary permit

Against whom may the action be maintained - Person or persons

unlawfully withholding or depriving of possession, or any person/s
claiming under them:
1. Action of Forcible Entry and Unlawful Detainer (FEUD) may be
maintained only against one in possession at the
commencement of the action
2. Tenant with right of possession may bring action against another
tenant
3. Vendor may bring action for ejectment against vendee upon
failure to pay installments
4. FEUD lie against the very owner of the property
5. Action may be maintained against government officials or agents
acting in behalf of the government, even if government is not
made a party to the action
PLEADINGS ALLOWED
Pleadings must be VERIFIED. (Rule 70, Sec. 4)
What must be alleged in a complaint for forcible entry:
1. That plaintiff was in prior physical possession of the property in
litigation until he was deprived thereof by defendant
2. That the dispossession was through FISTS
3. That the complaint was filed within 1 year from dispossession
What must be alleged in a complaint for unlawful detainer:
1. That defendant is unlawfully withholding possession from
plaintiff because his right to possess had expired
2. That landlord has made a demand upon tenant to comply with
the terms of the contract and to return the possession of the
property, and that the tenant failed to satisfy the demand within
15 or 5 days, in case of buildings
3. That the complaint is filed within 1 year from demand
Allowed pleadings:
1. Complaint
2. Compulsory Counterclaim pleaded in the answer
3. Cross-claim pleaded in the answer
4. Answer
ACTION ON COMPLAINT (Rule 70, Sec. 5)
From the examination of allegations in the complaint, the court may:

1. Dismiss the case outright on any grounds mentioned in Rule 16

2. If there is no ground for dismissal, court issues summons
Answer by defendant (Rule 70, Sec. 6) Defendant shall file his answer
within 10 days from service of summons
Effect of Failure to Answer (Rule 70, Sec. 7) - Court shall render
judgment; motu proprio or upon motion
1. Judgment:
a. Warranted by the facts alleged in the complaint
b. Limited to what is prayed for
2. Court may reduce the amount of damages and attorneys fees
claimed
a. For being excessive or otherwise unconscionable
b. In the exercise of its discretion
c. No prejudice to applicability of Sec. 3(c), Rule 9 if there are 2
or more defendants
Preliminary Conference (Rule 70, Sec. 8) Preliminary conference shall
be held not later than 30 days after filing of last answer.
Submission of Affidavits and Position Papers (Rule 70, Sec. 10)
Affidavits and position papers are to be submitted within 10 days from
receipt of the Order stating the matters taken in the preliminary
conference.
Rendition of Judgment (Rule 70, Sec. 11) Court shall render judgment
within 30 days after receipt of affidavits and position papers.
WHEN DEMAND NECESSARY
Rule 70, Sec. 2 requires a prior written demand against the lessee
before the lessor can proceed against him.
NOTE: This applies ONLY to unlawful detainer cases.
It is only where defendant fails to comply with the demand within the
periods provided by Sec. 2 will his possession become unlawful.
Requisites before the lessor can proceed against lessee
1. Demand is made by lessor to lessee:
a. Demand to pay and vacate; or
b. Demand to comply with conditions of the lease and to vacate
2. Lessee fails to comply with the demand:

a. After 15 days in the case of lands; or

b. After 5 days in case of buildings
NOTE: Demand contemplated by Sec. 2 is jurisdictional and is always
two-fold.
Demand upon a tenant may be oral. (Jakihaca v. Aquino, 1990)
A person who occupies the land of another at the latter's tolerance or
permission, without any contract between them is necessarily bound by
an implied promise that he will vacate upon demand, failing which, an
action for unlawful detainer may be instituted against him. (Dakudao v.
Consolacion, 1983)
PRELIMINARY
INJUNCTION

INJUNCTION

AND

PRELIMINARY

MANDATORY

In an action for unlawful detainer, the question of possession is

primordial while the issue of ownership is generally unessential. The
issue of ownership should be raised by the affected party in an
appropriate action.
Under BP 129, when in FEUD cases, the defendants raise the question
of ownership in his pleadings, and the issue of ownership, the MTCs
nevertheless have undoubted competence to resolve the issue of
ownership ONLY TO DETERMINE THE ISSUE OF POSSESSION
Guidelines laid down by the Court in Refugia, et al. v. CA regarding the
legislative prescription in Sec. 33 (2). BP 129:
1. Primal rule is that the principal issue must be that of possession
a. Ownership is merely ancillary
b. Issue of ownership may be resolved but only for the purpose
of determining the issue of possession

Court may grant preliminary injunction in accordance with Rule 58 to

prevent defendant from committing further acts of dispossession
against plaintiff (Rule 70, Sec. 15).

2. It must sufficiently appear from allegations of complaint that

what plaintiff really and primarily seeks is restoration of
possession

How done: Possessor may present a motion in the action for issuance of
preliminary mandatory injunction within 5 days from filing of complaint
to restore him in his possession. Court shall decide the motion within 30
days from filing.

3. Inferior court cannot adjudicate on the nature of ownership

where relationship of lease has been sufficiently established
a. UNLESS it be proven that there has been a subsequent
change in or termination of that relationship between parties

Preliminary mandatory injunction shall be available:

1. At the start of the action (Rule 70, Sec. 15)
2. On appeal to the RTC (Sec. 2) upon motion of plaintiff within 10
days from perfection of appeal

4. The rule in forcible entry, but not in unlawful detainer, is that a

party who can prove prior possession can recover such
possession even against the owner himself
a. Hence, it prior possession may be ascertained in some other
way, inferior court cannot intrude into the issue of ownership

Preliminary preventive injunction is available in either case. Note

that Sec. 15 makes the provisions of Rule 58 applicable to Rule 70.
NOTE: Note that there is no distinction as to the type of ejectment case
involved.
The injunction is to restore to plaintiff in possession
1. If the court is satisfied that the defendants appeal is frivolous or
dilatory, or
2. That the appeal of plaintiff is prima facie meritorious
RESOLVING DEFENSE OF OWNERSHIP (Rule 70, Sec. 16)

5. Where the question of who has prior possession hinges on the

issue of who the real owner is
a. Inferior court may resolve issue of ownership
b. But such pronouncement is merely provisional
c. It does not bar or prejudice an action between the same
parties involving title
HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT (Rule 70,
Sec. 19)

GENERAL RULE: Judgment of the MTC against defendant in ejectment

cases is immediately executory
EXCEPTION: When the following concur:
1. The defendant perfects his appeal
2. He files a sufficient supersedeas bond
To pay the rents, damages, and costs accruing down to the
time judgment appealed from
The supersedeas bond shall be transmitted by the MTC, with
the other papers, to the RTC Clerk
3. He deposits with the appellate court:
a. The amount of rent due from time to time under the contract,
or
b. In the absence of contract, the reasonable value of the use
and occupation of premises for the preceding month or
period determined by judgment on or before the 10 th day of
each succeeding month or period (Chua v. CA, 1998)
The judgment of the Regional Trial Court against the defendant shall be
immediately executory, without prejudice to a further appeal that may
be taken therefrom. (Rule 70, Sec. 21)
SUMMARY PROCEDURE, PROHIBITED PLEADINGS
GENERAL RULE: All actions for FEUD shall be governed by the summary
procedure of Rule 70, irrespective of the amount of damages or unpaid
rentals sought to be recovered
EXCEPTIONS:
1. In cases covered by the agricultural tenancy laws
2. When the law otherwise expressly provides
Prohibited Motions:
1. Motion for a BILL of particulars
2. Motion for EXTENSION of time to file pleadings, affidavits, or any
other paper
3. Motion for NEW trial, or for reconsideration of a judgment, or for
reopening of trial
4. Motion to DISMISS the complaint; Except on the ground for lack
of jurisdiction over the subject matter or failure to comply with
Sec. 12
5. Motion to DECLARE defendant in default
6. DILATORY motions for postponement

Prohibited Pleadings:
1. THIRD-party complaints
2. REPLY
3. INTERVENTIONS
4. PETITION for relief from judgment
5. PETITION for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court

CONTEMPT
NATURE
Contempt of Court is disobedience to the court by acting in opposition
to its authority, justice, and dignity. It signifies not only a willful
disregard of disobedience to the courts orders but also conduct tending
to bring the authority of the court and administration of law into
disrepute, or, in some manner, to impede the due administration of
justice.
The power to declare person in contempt of court and in dealing with
him accordingly is an INHERENT power of the court. It is used as a
means to protect and preserve the dignity of the court, the solemnity of
the proceedings, and administration of justice.
KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH
According to Nature
1. CRIMINAL CONTEMPT conduct directed against the authority
and dignity of the court or a judge acting judicially
2. CIVIL CONTEMPT failure to do something ordered to be done by
a court or by a judge for the benefit of the opposing party
CRIMINAL CONTEMPT
Punitive in nature
Purpose is to preserve
the courts authority
and to punish for
disobedience of its
orders
Intent is necessary
State is the real
prosecutor
Proof required is proof
beyond reasonable
doubt

CIVIL CONTEMPT
Remedial in nature
Purpose is to provide a
remedy for an injured
suitor and to coerce
compliance with an
order; for the
preservation of the
rights of private
persons
Intent is not necessary
Instituted by the
aggrieved party, or his
successor, or someone
who has a pecuniary
interest in the right to
be protected
Proof required is more
than mere
preponderance

If accused is
acquitted, there can
be no appeal

If judgment is for
respondent, there can
be appeal

According to Manner of Commission

1. DIRECT CONTEMPT act committed in the presence of or so near
the court or judge as to obstruct or interrupt the proceedings
before the same
2. INDIRECT CONTEMPT one not committed in the presence of the
court. It is an act done at a distance which tends to belittle,
degrade, obstruct, or embarrass the court and justice
DIRECT CONTEMPT
Committed in the
presence of or so near
a court
Summary in nature
Punishment:
If committed against
the RTC: Fine of not
exceeding P2,000
and/or imprisonment
not exceeding 10 days
If committed against
the MTC: Fine not
exceeding P200 and
or imprisonment not
exceeding 1 day
Remedy is certiorari
or prohibition
Otherwise known as
Contempt in Facie
Curiae

INDIRECT CONTEMPT
Not committed within
the presence of the
court
There is charge and
hearing
Punishment:
If committed against
RTC: Fine not
exceeding P30,000
and/or imprisonment
not exceeding 6
months
If committed against
MTC: Fine not
exceeding P5,000
and/or imprisonment
not exceeding 1 month
Remedy is appeal
Otherwise known as
Constructive Contempt

Contempt, whether direct or indirect, may be civil or criminal depending

on the nature and effect of contemptuous act.
The real character of the proceedings in contempt cases is to be
determined by the relief sought or by the dominant purpose. The
proceedings are to be regarded as criminal when the purpose is
primarily punishment, and civil when the purpose is primarily
compensatory or remedial.

(2) Conditioned that he will abide by and perform the

judgment should the petition be decided against him

DIRECT CONTEMPT
For a person to be adjudged guilty of direct contempt, he must commit
a misbehavior in the presence of or so near a judge as to interrupt the
administration of justice
Grounds for Direct Contempt (Rule 71, Sec. 1)
1. DISRESPECT toward the court;
2. OFFENSIVE personalities toward others
3. REFUSAL to be sworn or answer as witness or subscribe an
affidavit when lawfully required to do so
4. MISBEHAVIOR in the presence of or so near a court as to
obstruct or interrupt the proceedings
5. When the counsel WILLFULLY and deliberately engages in forum
shopping
Procedure: Summarily adjudged in contempt by such court
By whom initiated:
1. Generally, civil contempt proceedings should be instituted by an
aggrieved party, or his successor, or someone who has
pecuniary interest in the right to be protected
2. In criminal contempt proceedings, it is generally held that the
State is the real prosecutor
Penalties:
OFFENSE
If RTC or a court of
equivalent or higher
rank
If lower court:

PENALTY
Fine not exceeding
P2,000 and/or
Imprisonment not
exceeding 10 days
Fine not exceeding
P200 and/or
Imprisonment not
exceeding 1 day

Remedy of a person adjudged in direct contempt (Rule 71, Sec. 2)

1. He cannot appeal
2. But he may file certiorari or prohibition
a. Execution of judgment shall be suspended pending resolution
of such petition, PROVIDED:
(1) He files a bond fixed by the court which rendered
judgment, and

INDIRECT CONTEMPT
Specific acts constituting indirect contempt (Rule 70, Sec. 3)
1. MISBEHAVIOR of an officer of a court in the performance of his
official duties or in his official transactions
2. ABUSE of or any unlawful interference with processes or
proceedings of a court not constituting direct contempt
3. DISOBEDIENCE or resistance to lawful writ, process, order, or
judgment of a court, or any unlawful intrusion to any real
property after being ejected
4. FAILURE to obey subpoena duly served
5. ASSUMING to be an attorney or officer of a court, and acting as
such without authority
6. IMPROPER conduct tending to impede, obstruct, or degrade
administration of justice
7. RESCUE, or attempted rescue, of a person or property in custody
of an officer
8. Failure by COUNSEL to inform the court of the death of his client
Procedural requisites for indirect contempt proceedings:
1. A charge in writing or an order of the court to appear and explain
2. An opportunity for respondent to comment on the charge and to
appear and explain his conduct
Two modes of commencing a proceeding for indirect contempt (Rule 70,
Sec. 4)
1. Motu proprio by the court against which contempt was
committed
a. By order or any other formal charge requiring respondent to
show why he should not be punished for contempt
2. Independent action in all other cases
a. By a charge commenced by a verified petition with
supporting particulars
Where Charge is to be Filed (Rule 70, Sec. 5)
1. General rule: Proceeding for Indirect Contempt shall be filed and
tried by the court against which the contumacious conduct was
committed.
2. Exceptions:

a. If committed against a lower court, it may be tried by the

RTC, regardless of the imposable penalty; and
b. If committed against the SC, it may cause it to be
investigated by the prosecutor and filed with the RTC, or for
hearing and recommendation where the charge involves
questions of fact
Penalties for indirect contempt (Rule 71, Sec. 7)
OFFENSE
If against RTC, or
court of
equivalent or
higher rank
If committed
against lower
court

If contempt
consists in
violation of a writ
of injunction, TRO,
or status quo
order

If committed
against a person
or entity
exercising quasijudicial functions

PENALTY
Fine not exceeding P30,000
and/or
Imprisonment not
exceeding 6 months
Fine not exceeding P500,
and/or
Imprisonment not
exceeding 1 month
Offender may also be
ordered to make complete
restitution to the party
injured by such violation of
the property involved or
such amount as may be
alleged and proved.
If there is nothing more to
return, offender is
personally liable for the
restitution of the money
equivalent to the lost thing
(Rosario Textile Mills v. CA)
Penalty shall depend upon
the provisions of the law
which authorizes penalty for
contempt against such
persons or entities

Remedy of a person adjudged in indirect contempt (Rule 71, Sec. 11)

May be appealed to the proper court as in criminal cases, but execution
shall not be suspended until BOND is filed.
WHEN IMPRISONMENT SHALL BE IMPOSED

When the contempt consists in the refusal or omission to do an act

which is yet in the power of the respondent to perform, he may be
imprisoned by order of the court concerned until he performs it. (Rule
71, Sec. 8)
The respondent carried the keys to his prison in his own pocket.
[Galvez v. Republic Surety & Insurance Co., Inc. (1959)]
Only the judge who ordered the confinement of the person for contempt
of court can issue the Order of Release. [Inoturan v Limsiaco, Jr. (2005)]
Rule 71, Sec. 8 does not apply to tenants who refused or failed to pay
their rentals to the special administratrix of the property. The nonpayment of rentals, which is a civil debt, is covered by the constitutional
guarantee against imprisonment. [Regalado]
CONTEMPT AGAINST QUASI-JUDICIAL BODIES (Rule 71, Sec. 12)
Rule 71 shall apply to contempt committed against persons, entities,
bodies, or agencies exercising quasi-judicial functions or have
suppletory effect to such rules as they may have adopted.
RTC of the place where the contempt was committed shall have
jurisdiction.
It is not within the jurisdiction and competence of quasi-judicial bodies
to decide indirect contempt cases. The requirement for a verified
petition must also be complied with (e.g. DARAB has no power to decide
the contempt charge filed before it). [Land Bank v Listana (2003)]
Rule 71, Sec. 12 confers contempt powers on all Quasi-Judicial entities
or supplements their rules, unless the applicable law provides
otherwise.
Acts or violations against quasi-judicial bodies punishable as contempt:
where a person, without lawful excuse, fails to appear, make oath, give
testimony or produce documents when required to do so by the official
or body exercising such powers. Other acts or violations cannot be
punished as contempt unless specifically defined in the governing law
as contempt of court or if it authorizes the quasi-judicial body to punish
for contempt, and providing the corresponding penalty. [People v.
Mendoza (1953), 13, Ch. 3, Bk VII, Admin Code of 1987]

THE SPECIAL CIVIL ACTIONS

JURISDICTION
Personal Property:
1. MTC if value not more than P300,000 outside Metro Manila,
or not more than P400,000 in Metro Manila (Sec. 33, BP129)
2. RTC value exceeds P300,000 outside Metro Manila, or
P400,000 in Metro Manila, or if incapable of pecuniary
estimation (Sec. 19, BP129)
INTERPLEADER

Real Property
1. MTC assessed value not more than P20,000 outside Metro
Manila or not more than P50,000 in Metro Manila (Sec. 33,
BP 129)
2. RTC value exceeds P20,000 if outside Metro Manila, or
P50,000 if in Metro Manila, or incapable of pecuniary
estimation (Sec. 19, BP129)

VENUE

Rule 4 applies
If the action affects title to or possession of real property
Venue is where the real property involved or a portion thereof is situated
All other actionsAt the election of the plaintiff
1. Where plaintiff or any of the principal plaintiffs reside; or
2. Where defendant or any of the principal defendants resides; or
3. In case of an non-resident, where he may be found

Rule 4 applies
GENERAL RULE: In the appropriate RTC
DECLARATORY
RELIEF

REVIEW OF
JUDGMENTS AND
FINAL ORDERS OF
COMELEC/COA

EXCEPTION: Where the action is for reconveyance, cancellation or

quieting of title to real property, jurisdiction will depend on the
assessed value of the property

If the action affects title to or possession of real property

Venue is where the real property involved or a portion thereof is situated
All other actionsAt the election of the plaintiff
1. Where plaintiff or any of the principal plaintiffs reside; or
2. Where defendant or any of the principal defendants resides; or
3. In case of an non-resident, where he may be found

With the SC
Via Special Civil Action of Certiorari

Certiorari rules apply

CERTIORARI
PROHIBITION
MANDAMUS

RTC, CA, SC,

Sandiganbayan (in aid of its appellate jurisdiction),
COMELEC (in election cases involving an act or omission by MTC or
RTC, in aid of its appellate jurisdiction_

RTC where the respondent is situated, where petition relates to an act or omission of a
corporation, board, an officer, or person
(Rule 65, Sec. 4)

QUO WARRANTO

RTC, CA, SC
Sandiganbayan (exclusive original jurisdiction over quo warranto
cases filed by the PCGG)
COMELEC (exclusive jurisdiction over cases falling under the OEC)
SEC for quo warranto against duly licensed association (Corp Code
rules apply, not the ROC)

EXPROPRIATION
JUDICIAL
FORECLOSURE

Action can be brought in: The SC, CA, or RTC exercising jurisdiction over the territorial area
where respondent resides or any of the respondent resides
If commenced by the SolGen, it may be filed with: RTC Manila, CA, or SC

With the RTC

File in the SEC (following the Corp Code):If petition for quo warranto is against a
corporation or against persons who usurp an office in a corporation
Where the real property involved, or a portion thereof, is situated

With the RTC

Where the real property involved, or a portion thereof, is situated

Rule 4 applies

PARTITION

With the RTC

If the action affects title to or possession of real property

Venue is where the real property involved or a portion thereof is situated
All other actionsAt the election of the plaintiff

FORCIBLE ENTRY
AND UNALWFUL
DETAINER
CONTEMPT

With the MTC

Where the real property involved, or a portion thereof, is situated

MTC, RTC, CA, SC

If committed against RTC or a court of equivalent or higher rank, or against an officer

appointed by it: File with such court

If committed against a lower court. File with the RTC of the place in which lower court is
sitting
If act was committed against persons or entities exercising quasi-judicial functions: File
with the RTC of the place wherein contempt was committed

SPECIAL RULES
REVISED RULES ON SUMMARY PROCEDURE
CASES COVERED BY THE RULE (Sec. 1)
Rule shall govern the summary procedure in the MTC, MTC in Cities,
MCTC in the following cases falling within their jurisdiction:
For Civil Cases:
1. Cases of forcible entry and unlawful detainer
a. Irrespective of the amount of damages or unpaid rentals
sought to be recovered
b. Where attorneys fees are awarded, it shall not exceed
P20,000
2. All other civil cases where total amount of plaintiffs claim does
not exceed P100,000 or P200,000 in Metropolitan Manila,
exclusive of interest and costs
a. EXCEPT: probate proceedings
For Criminal Cases
1. Traffic laws, rules, and regulations violation
2. Rental law violations
3. Municipal or city ordinance violations
4. All other criminal cases where penalty prescribed by law for
offense charged is imprisonment not exceeding 6 months and/or
a fine not exceeding P1,000
a. Irrespective of other imposable penalties, accessory or
otherwise, or of civil liability arising therefrom
b. In offenses involving damage to property through criminal
negligence, this rule shall govern where imposable fine does
not exceed P10,000
Rule shall not apply:

1. To a civil case where plaintiffs cause of action is pleaded in the

same complaint with another cause of action subject to ordinary
procedure
2. To a criminal case where offense charged is necessarily related
to another criminal case subject to ordinary procedure
EFFECT OF FAILURE TO ANSWER (Sec. 6)
If defendant fail to answer the complaint within the period provided,
court (motu proprio or on motion of plaintiff) shall render judgment
The judgment:
1. As may be warranted by the facts alleged in the complaint and
2. Limited to what is prayed for
The court may in its discretion reduce the amount of damages and
attorneys fees claimed for being excessive or unconscionable without
prejudice to the applicability of Sec. 4, Rule 18 ROC, if there are 2 or
more defendants
PRELIMINARY CONFERENCE AND APPEARANCES OF
(Sec. 7)

PARTIES

A preliminary conference shall be held not later than 30 days after the
last answer is filed.
Rules on pre-trial in ordinary cases shall be applicable unless
inconsistent with the provisions of this Rule
Failure of plaintiff to appear in preliminary conference
1. Cause for dismissal of complaint
2. Defendant who appears in the absence of plaintiff shall be
entitled to judgment on his counterclaim in accordance with Sec.
6
3. All cross-claims shall be dismissed
If sole defendant shall fail to appear
1. Plaintiff entitled to judgment in accordance with Sec. 6

2. Rule shall not apply where one of 2 or more defendants sued

under a common cause of action who had pleaded a common
defense shall appear at preliminary conference

KATARUNGANG PAMBARANGAY LAW (PD 1508; RA

7160 as amended)
SCOPE AND APPLICABILITY OF THE RULE
RA 7610 Sec. 399-422, and 515 is applicable. The LGC is now the
governing law on Katarungang Pambarangay. PD 1508 was expressly
repealed
CASES COVERED
All disputes, civil and criminal in nature, where parties actually reside in
the SAME CITY/MUNICIPALITY are subjected barangay conciliation.
SUBJECT MATTER FOR AMICABLE SETTLEMENT (Sec. 408, RA 7160)
The lupon of each barangay shall have authority to bring together the
parties actually residing in the same city or municipality for amicable
settlement of all disputes.
WHEN PARTIES MAY GO DIRECTLY TO COURT
In these cases, referral to barangay conciliation is not a condition
precedent for filing a case to court:
1. Where one party is the government, or any subdivision or
instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;
3. Offenses punishable by imprisonment exceeding one (1) year or
a fine exceeding Five thousand pesos (P5,000.00);
4. Offenses where there is no private offended party;
5. Where the dispute involves real properties located in different
cities or municipalities unless the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;
6. Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay
units adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;

7. Such other classes of disputes which the President may

determine in the interest of Justice or upon the recommendation
of the Secretary of Justice.
The court in which non-criminal cases not falling within the authority of
the lupon under this Code are filed may, at any time before trial motu
propio refer the case to the lupon concerned for amicable settlement.
VENUE (RA 7610, Sec. 409)
PARTIES
Between actual
residents of the same
barangay
Between actual
residents of different
barangays but within
same
city/municipality
Involving real
property or any
interest therein
Between parties
arising at the
workplace or at
institutions of
learning

LUPON
Lupon of said
barangay
Lupon of the barangay
where the respondent
or any of the
respondents actually
resides at the option of
complainant
Lupon of barangay
were the real property
or the larger portion
thereof is located
Lupon of the barangay
were the workplace or
institution is located

EXECUTION
The amicable settlement or arbitration award may be enforced by
execution by the lupon within six (6) months from the date of the
settlement. After the lapse of such time, the settlement may be
enforced by action in the appropriate city or municipal court. (Sec. 417,
RA 7160)
REPUDIATION
Any party to the dispute may, within ten (10) days from the date of the
settlement, repudiate the same by filing with the lupon chairman a
statement to that effect sworn to before him, where the consent is
vitiated by fraud, violence, or intimidation. Such repudiation shall be

sufficient basis for the issuance of the certification for filing a complaint
as hereinabove provided. (Sec. 418, RA 7160)

RULES OF PROCEDURE FOR SMALL CLAIMS CASES

(A.M. No. 08-8-7-SC)
SCOPE AND APPLICABILITY OF THE RULE
This Rule shall govern the procedure in actions before the MeTC, MTC in
Cities, MTC and MCTC for payment of money where the value of the
claim does not exceed P100,000 exclusive of interest and costs. (Sec. 2)
This Rule is applicable in all actions which are; (Sec. 4)
1. Purely civil in nature where the claim or relief prayed for by the
plaintiff is solely for payment or reimbursement of sum of
money, and
2. Civil aspect of criminal action, or reserved upon the filing of the
criminal action in court, pursuant to Rule of 111 of the Revised
Rules of Criminal Procedure.
These claims or demands may be;
1. For money owned under any of the following;
a. Contract of Lease;
b. Contract of Loan;
c. Contract of Services;
d. Contract of Sale; or
e. Contract of Mortgage;

3. Affidavits of witnesses and other evidence to support the claim

NOTE: No evidence shall be allowed during the hearing which was
not attached to or submitted together with the Claim. UNLESS good
cause is shown for admission of additional evidence.
No formal pleading, other than the Statement of Claim, is necessary to
initiate a small claims action.
After examination of allegations of the Claim, the court may dismiss
outright the case for any of the grounds apparent for the dismissal of a
civil action. (Sec. 9)
If no ground of dismissal is found, the court shall issue Summons
directing defendant to submit a verified response. (Sec. 10)
The defendant shall file with the court and serve on the plaintiff a duly
accomplished and verified Response within a non - extendible period of
ten (10) days from receipt of summons (Sec. 11). Attachments:
1. Certified photocopies of documents
2. Affidavits of witnesses
3. Evidence in support
NOTE: No evidence shall be allowed during hearing which was
not attached or submitted together with the Response.

2. For damages arising from any of the following;

a. Fault or negligence;
b. Quasi-contract; or
c. Contract;

Should the defendant fail to file his response within the required period,
the court by itself shall render judgment as may be warranted by the
facts alleged in the Statement of claim limited to what is prayed for. The
court however, may, in its discretion, reduce the amount of damages for
being excessive or unconscionable. (Sec. 12)

3. The enforcement of a barangay amicable settlement or an

arbitration award involving a money claim covered by this Rule
pursuant to Sec. 417, LGC.

PROHIBITED PLEADINGS AND MOTIONS (Sec. 14)

COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE (Sec. 5)

How commenced: By filing with the court an accomplished and verified
STATEMENT OF CLAIM in duplicate
Attachments to the Statement of Claim:
1. Certification of Non-forum Shopping
2. Two (2) duly certified photocopies of the actionable document/s
subject of the claim

The following pleadings, motions, and petitions shall not be allowed in

the cases covered by this Rule:
1. Motion to dismiss the compliant except on the ground of lack of
jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits, or any
other paper;

6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions.

Absent such agreement

1. In case of a multi-sala court , the case shall, on the same day, be
transmitted to the Office of the Clerk of Court for immediate
referral by the Executive Judge to the pairing judge for hearing
and decision within five (5) working days from referral; and
2. In case of single sala court, the pairing judge shall hear and
decide the case in the court of origin within five (5) working days
from referral by the JDR judge.

APPEARANCES

FINALITY OF JUDGMENT

The parties shall appear at the designated date of hearing personally or

through a representative authorized under a Special Power of Attorney
to:
1. Enter into an amicable settlement,
2. Submit of Judicial Dispute Resolution (JDR) and
3. Enter into stipulations or admissions of facts and of documentary
exhibits (Sec. 16)

After the hearing, the court shall render its decision on the same day,
based on the facts established by the evidence.

No attorney shall appear in behalf of or represent a party at the

hearing, unless the attorney is the plaintiff or defendant. (Sec. 17)
Failure to appear:
1. If plaintiff fails to appear it shall be a cause for dismissal
without prejudice. Defendant present shall be entitled to
judgment on permissive counterclaim.
2. If defendant fails to appear same effect as failure to file
Response.
HEARING; DUTY OF THE JUDGE
At the beginning of the court session, the judge shall read aloud a short
statement explaining the nature, purpose and the rule of procedure of
small claims cases. (Sec. 20)
At the hearing, the judge shall conduct JDR through mediation,
conciliation, early neutral evaluation, or any other mode of JDR. (Sec.
21)
If JDR fails and the parties agree in writing that the hearing of the case
shall be presided over by the judge who conducted the JDR, the hearing
shall so proceed in an informal and expeditious manner and terminated
within one (1) day. (Sec. 22)

The decision shall immediately be entered by the Clerk of Court in the

court docket for civil cases and a copy thereof forthwith served on the
parties.
The decision shall be final and unappealable. (Sec. 23)

EFFICIENT USE OF PAPER RULE (A.M. No. 11-9-4-SC)

FORMAT AND STYLE
All pleadings, motions and similar papers intended for the court and
quasi-judicial bodys consideration and action (court-bound papers)
shall:
1. Be written in single space with one-and-a half space between
paragraphs,
2. Use an easily readable font style of the partys choice, of 14-size
font, and on a 13 inch by 8.5- inch white bond paper

In the Court of Appeals and the Sandiganbayan,

1. One original (properly marked) and
2. Two copies with their annexes;
In the Court of Tax Appeals,
1. One original (properly marked) and
2. 2 copies with annexes
On appeal to the En Banc:
a. One Original (properly marked)
b. 8 copies with annexes; and

All decisions, resolutions and orders issued by courts and quasi-judicial

bodies under the administrative supervision of the Supreme Court shall
comply with these requirements. Similarly covered are the reports
submitted to the courts and transcripts of stenographic notes.

In other courts,
1. One original (properly marked)
2. With the stated annexes attached to it.

MARGINS AND PRINTS

ANNEXES SERVED ON ADVERSE PARTY

The parties shall maintain the following margins on all court-bound

papers:
1. Left hand margin of 1.5 inches from the edge;
2. Upper margin of 1.2 inches from the edge;
3. Right hand margin of 1.0 inch from the edge;
4. Lower margin of 1.0 inch from the edge.

A party required by the rules to serve a copy of his court-bound on the

adverse party need not enclose copies of those annexes that based on
the record of the court such party already has in his possession.

Every page must be consecutively numbered.

COPIES TO BE FILED
Unless otherwise directed by the court, the number of court- bound
papers that a party is required or desires to file shall be as follows:
In the Supreme Court,
1. One original (properly marked) and 4 copies
2. Two sets of annexes, one attached to the original and an extra
copy
If the case is referred to the Court En Banc:
a. Parties shall file 10 additional copies.
b. For the En Banc, the parties need to submit only 2 sets of
annexes, one attached to the original and an extra copy.
All members of the Court shall share the extra copies of annexes
in the interest of economy of paper.

In the event a party requests a set of the annexes actually filed with the
court, the part who filed the paper shall comply with the request within
five days from receipt.
APPLICABILITY
This Rule applies to all courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court.

END OF CIVPRO!!!